Bancroft-Whitney Co. PUBLISHERS AND SELLERS OF LAW BOOKS SAN FRANCISCO 6-l-j-i:;-7:;t--.M :„:::, UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY TEN PAGES SAN FRANCISCO LAW JOURNAL; Vol,. C. No. 102. Act Abolishing Writs or Er- ror in Federal Courts Amended by Congress. Act Abolishing Writs of Error in Federal Courts Amended by Congress! President Signs Measure Designed to Clear Up ConfuJ sion as Result of the Enactment of Act of January 31, 1928. By PAUL P. O'BRIEN, Clerk U. S. Circuit Court of Appeals. receivership or to take appropfiat| steps, to accomplish the purpose there of, such as th" directing a sale d 11. K. };ill 12441, amending Seelion i of iin Act entitled "An Act in refer- ence to Write of Error," approved January ?A. 1928, passed the Houses on April 2d. the Senate on April 20. 1928, and was approved by the President on April 26th. It is effective forthwith. The measure is designed to clear up any confusion that hr.s ari.sen as a alt of the ena< I nent cf the Act of January 31. 1928. The Act, as amended, follows: Be it enacted* etc., That the wiii of error in eases, civil ami criminal, is abolished. All reliel which here! ofore could be obtained by writ of error shall hereafter I"' obtained by appeal. See. _'. The statutes regulating the right to -i writ of error, defin- ing thi n !i"T which may b ■ had l, and prescribing the mode Of eyercisins thai rivh' and of invoking such re'ief, including (lie provisions relating to costs, super- sedeas and mandate, shall he ap- ] licabl ; in I 'a- appeal Which 1 le; preceding section substitutes for a writ of ei ror. The procedure of giving notice of appeal and having bond approved does a. a meet statute requirements for it will P.- > >en i hat, as now amended, the Ad requires all of the o!d steps. the only effect being to call the re- F I view an appeal rather than a writ of error. Tile Old piaeliee of petitioning for an appeal, obtaining an order allow- ing appeal and fixing amount "f honil. and/or supersedeas, aiiproval of the bond b> llie judge who allowe.l the appeal, issuance of citation on appeal and filing' of ii -sigmu ail of ei i j mUsI lie I'nllon e(|. 'I'lie iM-i- ity for the preservation ■ ol' the record in the trial court by noting specific objections and excep- : i Pais, request for lindings of fad ami [conclusions of law. preparation and I setth 'ii.' iP of bill of exceptions and ['statement of evidence is not changed by the recent enactment. [Outline of the Time Limits and Steps to Be Taken in Connection With Ob- taining the Allowance of an Appeal to the United States Circuit Court of Appeals. i I. Time. ia) In all ' "i her i ha ii those In I ''in' II i i [ |,e. ilieil. I luce months from entr.v of judgment or 1 1. . i 1 1. 1 ,\ i" e 1 1 from •• n interlocutory order or decree, grunting, continuing, modifying, refusing 01 granting an in- jun< I ion, or an Inl erl< culor< 01 Icr or decree appointing a i eceiver, or re- fusing an ordor lo wind up a pending other disposal of property thcreunde' —thirty days from the entry of sue. order or decree. (Sec. 129, Judick Code. I (c) An interlocutory decree in acj miralty — within fifteen days after erj try of decree, provided that with! twenty days after such entry the aj pellant shall give notice of the appej to the appellee; the taking of such a appeal does not stay proceedings ltd der the interlocutory decree mile, otherwise ordcre l by the Distri* Court upon such terms as it sha deem jusl. (Sec. 129, Judicial Cud' II Stat. I. 233.) \ (d) In bankruptcy cases under So 24a and b of the Bankruptcy Acl ( 'May 28, 1926— within thirty days aftJ the judgment or order or other ma] ter complained of has been render or entered such appeal to be allowi in the discretion of the appellal COUl t. (e) tn bankruptcy cases under S< 25a of said Bankruptcy Act— with thirty days after the judgment a; pealed from has been rendered. (f) Appeal from decision of Distri Court sustaining or overruling excel tions to awards in arbitration und \ei providing for mediation, concili Hen and arbitration in controversi Pel wen cei lain employers and the (Continued on Page Five.) (Continued from Page One) employees, approved July 1.1. 1913 Stats. 11(7 i — within 10 days alter judg- ment entered. (g) Review of decisions ol Board of Tax Appeals — within six months after decision renderi 2. Steps. (a) file petition for appeal with clerk id' ti ial court. (b) File assign. i of eiTor with clerk of trial court. (c) Withdraw said papers tempo- rarily from clerk's office- and present same with order allowing appeal and fixing amount of bond, costs and or supersedeas to judge of trial court. Have judge of trial court sign order allowing appeal ami fixing amount of bond, as required. Si 1000, 1007 and 1012, IP-vised Statutes and Rule I-:. C. C. A. In criminal cases, in addition to executing i bond, usually fixed at $250, bail bond may Ije obtained in amount to be fixed l>\ trial judge. (e) Citation on appeal should be signed by judge allowing appeal. (Citation should be tested in the name of judge signing same.) if) Return petition ha- appeal and assignments of error to thi clerk's office of trial court. (g) Pile with clerk of trial the order allowing appeal and fixing amount of bond. (h) Bond duly executed should be presented to judge who allowed peal for his approval. (i) File with clerk of trial court bond bearing approval of judge. (j) After serving citation on appeal on adverse party, or "Counsel, file with the clerk of the trial conn. (It is advisable for counsel for the appel- lant to serve a copy of the assign- ment of errors on the adverse party or the attorney of record with th< cita t ion.) (k) Praecipe for transcript of rec- ord should be entitled ill the District Court, addressed to the clerh of said court, served upon opposing coin and ti led with the clerk of said court. (1) If the clerk of the trial court unable to prepare and file the tran script of record with the clerk of the appellate court within the time fixed by the citation, an order should be ob- tained from the judge who signed the citation, or a judge of the appell court, agreeably to the provisions of subdivision 1 of Kid.- 1G ol' the IP- of Practice of the appellate courl and filed with ihi- clerk of the appellate courl The clei Is ol the disl icl i ourt liould i" advised ol the period ol • (' Hi. ai grant) :] 22. Effect of admissions by the defendant upon the value of the matter in dispute r>5 23. Effect of a defense apparent in the plaintiff's pleading upon the value of the matter in dispute 55 24. -Suits arising under the Constitution or laws of the United States. Jn general .->t; 25. Suits arising under the Constitution of the United States .... 68 26. Suits arising under treaties f the United States 78 vii Vlll TABLE OF CONTENTS. Tage § 27. Suits where the parties arc Federal corporations. In general 79 28. National banking associations 81 29. Patent and copyright cases 8.3 30. Trademark cases 86 31. Land and milling cases 87 32. Cases arising under the laws relating to navigable waters .... 89 33. Suits on judicial and official bonds 90 34. Suits by and against officers of the United States 91 35. Suits by and against receivers of national banks 93 36. Suits by and against receivers of Federal corporations 93 37. Suits by and against receivers of Federal courts 94 38. Suits by and against trustees in bankruptcy 95 39. Suits arising out of litigation in the Federal courts 95 40. Controversies between citizens of different States. In general. . 97 41. Parties to the controversy 100 42. Formal parties to the controversy 109 43. Unnecessary parties to the controversy US 44. Trustees and other representatives 120 45. Controversies to which aliens are parties 122 46. Determination of citizenship. Natural persons 126 47. Corporations 133 48. Unincorporated stock companies and associations 140 49. Partnerships 141 50. Under grants of different States 142 51. Ancillary jurisdiction 142 52. Property in the custody of another court of co-ordinate jurisdic- tion. In general 151 53. Property covered by insolvent assignments 159 54. Property in the custody of State courts of probate 160 55. Property in the custody of receivers 164 56. Controversies between State sheriffs and United States mar- shals; and those arising out of attachments, garnishee process and executions 160 57. Effect of jurisdiction of another court over same cause of action 173 58. Effect of the custody, by another court, of the person of an accused in criminal proceedings, or otherwise 175 59. Effect of the custody of property by the State court, where the Federal courts exercise jurisdiction under the Constitution and laws of the United States 177 60. Property in the custody of another Federal court 170 61. Limitations under jurisdiction by residence 181 62. Limitation upon jurisdiction in patent cases 196 63. Suits by assignees 109 64. Territorial jurisdiction of the District Courts of the United States. In general - 208 65. Terms of the District Court- of the United States, In general 211 66. Territorial jurisdiction and terms of the different District Courts of the United States 213 TABLE OF CONTENTS. IX Page § 67. Jurisdiction of District Court of Alaska 263 68. Jurisdiction of the Supreme Court of the District of Columbia 264 69. Jurisdiction of the Court of Appeals of the District of Columbia 266 70. Jurisdiction of District Court of Porto Rico 26S 71. Jurisdiction of District Court of Hawaii 269 72. Jurisdiction of the Supreme Court and other courts of the Philippine Islands 270 73. Jurisdiction of the United States Court for China 277 74. Jurisdiction of the Consular Courts 280 75. Jurisdiction and practice of the Commerce Court 298 76. Jurisdiction of the Board of General Appraisers 303 77. Jurisdiction of the Court of Customs Appeals 310 CHAPTER II. JURISDICTION IN EQUITY. § 7S. Equitable jurisdiction in general 315 79. General survey of the jurisdiction of courts of equity 317 80. The distinction between law and equity in the Federal courts 336 81. General rules affecting the jurisdiction in equity of the Federal courts 336 82. State laws creating new rights are enforced by Federal courts at law or equity 342 83. State statutes cannot impair the jurisdiction nor regulate the practice of Federal courts of equity 348 84. Sources of Federal equity practice 350 CHAPTER III. PERSONS WHO MAY BE PLAINTIFFS OR DEFENDANTS IN A SUIT IN EQUITY. § 85. General rule as to persons capable of being plaintiffs 3i>4 86. States as plaintiffs 354 87. Alien enemies as plaintiffs 354 88. Foreign corporations as plaintiffs 355 89. Married women as plaintiffs 355 90. Suits on behalf of infants 35(5 91. Suits on behalf of idiots, lunatics and persons of weak mind 359 92. Capacity of foreign executors and administrators to sue 360 93. Capacity of foreign receivers to sue 361 94. Who may be defendants 363 95. The United States as a defendant. In general 363 96. Liability of the United States and officers thereof to suits for the recovery of monev 360 TABLE OF CONTENTS. Pago 97. District Court practice in suits against the United States . . . 376 Its. Suits against the United States for partition 379 99. Suits by Indians for allotments of land 379 100. Injunctions against officers of the United States 3S0 101. Ejectment against officers of the United States 383 102. Replevin against officers of the United States 384 103. Liability of a State to a suit by the United States 384 104. Liability of a State to a suit by another State 384 11)5. Liability of States to suits by private persons 387 106. Suits against infants 398 107. Suits against idiots, lunatics, and persons of weak mind.... 400 108. Suits against married women 401 109. Foreign executors and administrators as defendants 401 CHAFTEE IV. PARTIES. § 110. General rule as to parties 402 111. Parties with no interest in the subject-matter of the suit .. 404 1 12. Persons who on account of their interest need not be made parties to a suit in equity 407 113. Cases where the law has furnished a representative 415 114. Class suits 423 115. Suits against one or more of a class 420 116. Suits by or against one or more as representatives of a class claiming a common right . . 428 117. Omission of defendants not within the jurisdiction of the court 430 US. Formal parties who may be omitted when without the juris- diction 433 1 1!). Tail ies whose interest is separable 434 120. Parties indispensable to a decree 443 121. When numerous interests have been created for the purpose of preventing the plaintiff from obtaining equitable relief .... 451 122. When a person consents to the relief sought 452 123. When the plaintiff waives his right against a person 452 124. When the interest of an absent person is evidently very small 453 125. When the absent persons are unknown 453 126. When the right of administration is in dispute 453 127. Relaxation of rule as to parties in special cases 453 128. Restatement of the rules as to parties 451 129. Objection for want of parties 455 130. Objection for joinder of improper parties 458 TABLE OF CONTENTS. XI CHAPTER V. BILLS IN EQUITY. Page § 131. Informations 460 132. Definition and classification of bills 405 133. Frame of a bill in equity 467 134. Address and caption 469 135. Introduction and jurisdictional averments 469 136. Narrative part of a bill 475 1 37. Certainty 478 138. Inconsistency and bills with a double aspect 485 139. Multifariousness or misjoinder. In general 490 140. Multifariousness by misjoinder of plaintiffs 492 141. Multifariousness by misjoinder of defendants 496 142. Multifariousness without misjoinder of parties 506 143. Objections for multifariousness or mjsjoinder 508 144. General rules of equity pleading 510 145. Stockholders' bills 515 146. Bills to enjoin the infringement of patents 525 147. Bills to compel the issue of patents and bills to obtain relief against interfering patents 536 148. Bills to restrain infringements of trade-marks 539 149. Bills to obtain relief against interfering trademarks 542 150. Bills to restrain infringement of copyrights 543 151. Bills in equity under the Interstate Commerce Law 51-9 152. Interrogatory clause 552 153. Waivers and offers 552 154. The prayer for relief 557 155. The signature to a bill 50 1 156. Affidavits to bills : 502 157. Bills of interpleader 563 158. Bills in the nature of interpleader 567 159. Bills of certorari 568 CHAPTER VI. SUBPOENAS TO ANSWER. § 100. Definition and form of subpoena 570 101. Issue of the subpoena 573 102. When a subpoena is necessary 574 103. Personal service of a subpoena 574 104. Service upon corporations 579 1 05. Substituted service of a subpoena 587 166. Statutory service of a subpoena 590 167. Exemptions from service of subpoena or other process, legal or equitable, other than arrest 601 XH TABLE OF CONTENTS. CHAPTEK VII. APPEARANCE. Tage § 168. Definition of an appearance 606 169. What constitutes an appearance 606 170. Effect of an appearance 611 CHAPTER VIII. TAKING BILLS PRO CONFESSO. § 171. When a bill may be taken pro confesso 614 1 72. Practice in taking a bill pro confesso t 617 CHAPTER IX. ANSWERS. ? 1 73. Answers in general 623 174. Admissions and denials and discovery 624 175. Pleading defenses in answer 630 176. Defenses in answer. In general 631 177. Pendency of another suit 635 178. Defenses in bar 639 1 79. Defenses of statutes. In general 639 ISO. Federal statutes of limitations 639 181. State statutes of limitations 645 182. Equitable laches 648 183. Pleading statute of limitations 649 184. Defense of statute of frauds 050 185. Defenses of matter in pais 051 186. Defenses of matter of record or res judicata 652 187. Form of defense of res judicata 669 188. Defenses peculiar to Patent Cases 671 1 89. Proceedings to compel answer 681 190. Frame of answer 681 191. Signature and seal to answer 6S3 192. Oath to answer . 684 193. Motions to take answers' off the file 685 194. Exceptions for insufficiency 686 195. Supplemental answers 687 196. Disclaimers 6S7 TABLE OF CONTENTS. Xlll CHAPTER X. CROSS-BILLS AND COUNTER-CLAIMS. Page 107. Definition and origin of cross-bills 690 1 98. Counter-claims 694 199. New parties to cross-hills and counter-claims 699 200. Time of filing set-offs, counter-claims and cross-bills 703 201. Proceedings upon cross-bills 703 CHAPTER XL REPLIES. 202. Definition and history of replies 70S 203. When a reply should be filed . 709 204. Effect of reply 712 205. Frame of a reply 712 CHAPTER XII. AMENDMENTS OF WRITS. PROCESS AND PLEADINGS, AT LAW AND IN EQUITY. § 206. Amendments in general 714 207. Amendments of writs and process 715 208. Amendment of pleadings at common-law 710 209. When lulls in equity can be amended 710 210. Form and effect of amendment of a bill 718 211. What amendments may be made to bills in equity and declara- tions at common law 721 212. Amendment by pleading matters subsequent to the filing of the bill 720 213. Proceedings upon an amended bill 728 214. Amendment of answers and pleas 720 215. Practice in obtaining leave to amend 731 CHAPTER XIII. ABATEMENT, REVIVOR AND SUPPLEMENT AT LAW AND IN EQUITY. § 216. Abatement 736 217. Effect of abatement 742 2 IS. When a suit may be revived and effect of revivor 74 4 219. Who may revive a suit 745 220. Manner of revivor at common law 747 XIV TABLE <>1- CONTENTS. Page § 221. Manner of revivor in equity in general 750 222. Definition of bill of revivor and parties to the same 7oi 223. Frame of bill of revivor 752 224. Proceedings upon bills of revivor 753 225. Bills in nature of bills of revivor in general 75fi 226. Frame of bills in the nature of bills of revivor and proceedings upon them 758 227. Manner of revivor upon appeal or error 758 228. Bills of revivor and supplement 761 220. Supplemental bills in the nature of bills of revivor 7(i2 230. What renders a suit defective 7G3 231. Supplemental bills 765 232. Parties and frame of a supplemental bill 771 233. Proceedings upon supplemental bills 773 234. Bills in the nature of supplemental bills in general 776 235. Frame of a bill in the nature of a supplemental bill 778 236. Proceedings upon bills in the nature of supplemental bills .... 779 CHAPTER XIV. IMPERTINENCE AND SCANDAL. § 237. Impertinence 780 238. Scandal 783 239. Striking out scandal and impertinence 785 CHAPTER XV. MOTIONS TO MAKE PLEADINGS MORE DEFINITE AND CERTAIN AND BILLS OF PARTICULARS. § 240. Distinction between motions to make pleadings more definite and certain and bills of particulars 788 241. Motions to make pleadings more definite and certain 788 242. Bills of particulars 791 243. Practice upon motion for bill of particulars 792 2 ( L Remedy for failure to give a bill of particulars 793 245. Form of bill of particulars 793 246. Amendment" of bill of particulars 794 CHAPTER XVI. MOTIONS AND PETITIONS. § 247. Definition and classification of interlocutory applications .... 796 248. Definition and classification of motions 796 TABLE OF CONTENTS. XV Page § 249. Motions of course 7!>t; 250. Special motions without notice 7<)7 251. Notice of motion 7!>s 252. Argument of motions 803 253. Petitions in general 806 254. Form of petitions and practice upon them 80S 255. Orders s 1 256. Judges who may grant orders 816 257. The clerk's office 817 CHAPTER XVII. INTERVENTIONS. § 258. Petitions of intervention 821 259. Practice upon interventions 833 260. Rights of intervening complainants 842 261. Rights of intervening defendants 843 CHAPTER XVIII. INJUNCTIONS. § 262. Definition, classification, and objects of injunctions 846 263. Injunctions to enforce trusts and other purely equitable rights 846 264. Injunctions to restrain corporations from violating their charters 847 265. Injunctions to enforce the specific performance of covenants and other contracts affecting land 850 266. Injunctions to prevent a multiplicity of suits 851 267. Injunctions to prevent irreparable injury for which the remedy at law is inadequate; in general 852 268. Injunctions to stay proceedings in other courts. In general . . 853 269. Injunctions to stay proceedings in Federal courts 854 270. Injunctions to stay proceedings in State courts 856 271. Injunctions against criminal proceedings Slil 272. Injunctions to restrain the alienation of property 863 273. Injunctions to prevent waste 864 274. Injunctions to prevent the continuance of a nuisance 865 275. Injunctions to restrain trespass SOS 276. Injunctions against strikers 870 277. Injunctions to restrain the infringement of patents 873 278. Injunctions to restrain the infringements of copyrights.... 882 279. Injunctions to restrain the unlawful use of trade-marks .... 886 280. Injunctions to prevent the opening of letters 889 XVI TABLE OF CONTENTS. Tagt 1 § 281. Injunctions to compel the performance or prevent the breach of contracts not affecting land 889 282. Injunctions to compel the delivery of personal property torti- ously withheld 891 283. In junct ions authorized by statute 891 284. When injunctions will not issue 893 285. Distinction between the judicial writ and the writ remedial.. SOS 286. Distinction between mandatory and prohibitory injunctions .. 899 287. Distinction between provisional and perpetual injunctions .... 901 288. Distinction between common and special injunctions 902 2S9. Time and place of applications for interlocutory injunctions . . 902 290. Injunctions not prayed for in the bill 903 291. Special practice of the Federal courts in the issue of in- junctions 904 292. Notice of application for interlocutory injunction 906 293. Affidavits upon an application for an injunction 90S 294. Rules of decision upon applications for interlocutory injunc- tions ■ 910 295. The writ of injunction 91.3 296. Dissolution and modification of interlocutory injunctions .. 917 297. The imposition of terms upon the issue, denial, dissolution, or continuance of an injunction 922 298. Collection of injunction bonds : 925 299. Perpetual injunctions 928 300. Appeals from injunction orders 929 CHAPTER XIX. RECEIVERS. § 301. Definition of receiver 937 302. When receivers will be appointed 937 303. Rules regulating the appointment of receivers 948 304. Ancillary receivers 949 305. Terms upon the appointment of receivers, and preferences in foreclosure suits 956 300. Property over which receivers may be appointed 974 307. Powers of receivers in general 978 308. Powers of receivers of railroads 982 309. Receivers' certificates 987 310. Advice to receivers 994 .311. Litigation by receivers 995 312. Duties of receivers 100.3 313. Liability of a receiver 1007 314. Suits against receivers 1011 315. Manner of applying for the appointment of a receiver 1017 310. Who may apply for the appointment of a receiver 1021 TABLE OF CONTENTS. XV11 Page § 317. Manner of the appointment of a receiver 102] 318. Wlio should be appointed receiver 1022 319. The receiver's security 1025 320. Proof of claims against receivers 1027 321 . Receiver's accounts 1 030 322. Compensation of receivers 1033 323. Removal of receivers L036 324. Discharge of a receiver 1039 325. Appeals from orders appointing receivers 1042 CHAPTER XX. THE WRIT OF NE EXEAT REPUBLICA § 326. Definition of the writ of ne exeat republica, and when it will issue 1 045 327. Against whom the writ will issue 1040 328. Practice in obtaining the writ of ne exeat 1048- VOLUME II. CHAPTER XXI EVIDENCE AND DISCOVERY AT LAW AND IN EQUITY. § 329. Evidence in general 1 053 330. Admissions 1057 331. Constructive admissions 1059 332. Documentary evidence in general 1000 333. Federal statutes regulating admission of documentary evidence 1003 334. Definition and use of an affidavit 1081 335. Manner of verifying an affidavit 1081 336. Title of an affidavit 1082 337. Form of an affidavit 1083 338. Execution of an affidavit 1085 339. Competency of witnesses : 1086 340. Subpoena ad testificandum 1 10O 341. Subpoena duces tecum 1102 342. Service of a subptena ad testificandum 1 105 343. Compelling a witness to testify 1 109 344. Testimony taken in equity which may be used in other courts 1112 345. Bills to perpetuate testimony 1112 340. Bills to take testimony de bene esse 1115 347. Bills of discovery 1 1 1 (5 348. Discovery in equity 1118 349. Inspection in equity 1 126 X viii TABLE OF CONTENTS. § 350. Inspection at common law 1127 35]. Testimony taken before a cause is at issue 1129 35-2. Testimony taken within the jurisdiction of the court after a cause is at issue 1130 353. Testimony taken after a cause is at issue and beyond the jur- isdiction of the court ' 1;>>,i .'!.->4. Depositions de bene esse under the acts of Congress 1 137 :;:>.->. Form of deposition under acts of Congress 1145 :i.->(i. Commissions issued under a dedimus potestatem 1150 357. Proceedings under a dedimus protestatem 1154 358. Letters rogatory 1 158 359. Testimony taken in the manner prescribed by the State law 1161 CHAPTER XX IT. DISMISSAL OF BILLS BEFORE A HEARING. : | 360. Dismissal of bills before a hearing. In general 1164 361. Dismissal of bills by the plaintiff H64 362. Dismissal of bills for want of prosecution or fur failure to per- fect or revive the suit 1108 '363. Dismissal for want of jurisdiction H69 364. Motions to dismiss because the complaint shows no cause of 1 1 ~ x action mt 365. Demurrers under the former practice 1175 366. Admissions by a demurrer • H75 367. Classification of demurrers 1 18u 368. Election and transfer to the law side of the court 1184 CHxVPTER XXIII. THE HEARING. • | 369. Bringing a suit to a hearing 1187 370. Judges who can try cases at law and in equity 1188 371. Challenge of a judge for interest 1191 372. Challenge of a judge for prejudice 1191 37".. Arrangement of calendar 1 1!)4 374. Manner of hearing a cause 1195 37"). Rules of decision upon a hearing 1196 376. Objections which cannot be made at the hearing 1U)9 377. Action of the court upon a hearing 1200 TABLE OF CONTEXTS. XIX CHAPTER XXIV. ISSUES AT LAW. 378. Power of courts to direct issues at law 1203 370. Matters concerning whieli an issue is directed 1204 380. Time when an issue is directed 1205 381. Manner of trying an issue 120f> 382. Effect of the finding of a jury upon an issue 1207 383. Proceedings after the trial of an issue 1200 CHAPTER XXV. PROCEEDINGS IN A MASTER'S OFFICE. § 384. References to masters in general 12] J 385. Who may be appointed master 121 3 380. Bringing on a reference 1214 387. Parties entitled to attend a reference before a master 1215 38S. Proceedings before a master in general 1217 389. Proceedings upon accountings 1210 300. A state of facts and ciaim 1 227 391 . Evidence before a master 1 228 392. Masters' repors and compensation 1230 393. Exceptions to masters' reports 1231 394. Judicial sales by masters and other officers 1235 395. Compensation of masters 1255 CHAPTER XXVI. DECREES. § 396. Definition and classification of decrees 1257 397. Final and interlocutory decrees 1257 398. Decrees in personam 1260 399. Decrees in rem 1262 400. Absolute and conditional decrees 1202 401 . Decrees nisi 1 204 402. Decrees in the nature of decrees nisi 1208 403. Time of entry of decree 1269 404. Frame of decree 1 209 405. Motions at the foot of a decree 1274 406. Enrollment of decree 1275 XX TABLE OF CONTENTS. CHAPTER XXVII. COSTS. Page § 407. Costs in general at law 3277 108. < !osts at common law 1280 109. Costs in equity 1281 410. ( 'osts iii patent and trademark cases 1285 411. ( losts in admiralty ]2S(i 412. ( osts mi error and appeal 1289 413. Petitions for leave to sue in forma pauperis ]290 414. Classification of costs 1204 415. Costs as between party and party 1204 416. Attorney'-, fees .' 1294 417. Clerk's fees 1301 418. Marshal's fees 1313 410. Witness fees 1320 420. Miscellaneous disbursements 1324 421. Costs out of the fund 1330 122. Losts as between solicitor and client 1335 42:!. Taxation of costs 1337 424. Appeal from taxation of costs 1338 42."). Security for costs 1330 CHAPTER XXVIII. . ENFORCEMENT OF DECREES AXD ORDERS, INCLUDING EXECU- TIONS AND WRITS OF POSSESSION. § 126. Enforcement of decrees and orders in general 1343 427. Executions and proceedings supplementary thereto 134:5 428. ( lontempts 1353 420. Practice in contempt proceedings. In general 1304 4-'!0. Criminal proceedings to punish for contempt 1308 431 . Civil contempt proceedings 1375 t.!2. Writ of attachment against the person 1370 433. Execution of writ of attachment 1377 C!4. Review of commitments for contempt. In general 1370 4:;.">. Review by habeas rot-pits of commitment for contempt 1380 4-'!0. Review by writ of error of commitment for contempt 1382 437. Review by appeal of commitment for contempt 1383 438. Review by revisory petitions of commitment for contempt in bankruptcy proceedings 1384 439. Sequestration 1384 440. Writ of assistance and writ of possession 1385 441. Action by court itself 1387 442. ISills to carry decrees into execution 1389 TABLE OF CONTENTS. XXI CHAPTER XXIX. CORRECTION OF DECREES OTHERWISE THAN BY APPEAL. Page § 443. Correction of decrees in general 13 ^ 444. Amendment of decree without a rehearing ]39 ~ 445. Petition for a rehearing - ' 446. Supplemental bills in the nature of bills of review . 447. Bills of review 448. Provisions peculiar to bills of review for matters of fact newly ,. i 1406 discovered • 449. Provisions common to all bills of review 141 ° 450. Bills in the nature of bills of review ■ • 1415 451 Bills to impeach decrees on account of fraud, accident or. mis- , , 1410 take 452. Bills to suspend or avoid the operation of decrees or judgments 142(1 CHAPTER XXX. PRACTICE AT COMMON LAW IN CIVIL ACTIONS. 8 453. Common-law practice in general 3 , • 142s 454. Pleading at common law 455. Writs and process in general 1437 4.-.I}. Writs of prohibition 457. Mandamus 458. Jurisdiction of the Supreme Court of the District of Columbia to issue a writ of mandamus to an officer of the United , . 1456 States 459. Practice on application for mandamus 14<>1 460. Writs of certiorari 461. Writs of habeas corpus in general ' v ' " '.'. 462.' Habeas corpus to review proceedings for extradition .... 1482 463. Habeas corpus for immigrants 14H 464 Discharge of soldiers from the army by the writ of habeas 1501 corpus • 465. Suspension of writ of habeas corpus 150 '^ 466. Practice on application for habeas corpus 1507 467. Appeals in habeas corpus proceedings 151 ' 468. Writs of quo warranto ' -_ 469. Writs of scire facias 152 ' 470. Attachment of property 1; '" ._. A , 1540 47 1 . Arrests ; 472. Consolidation at law and in equity lo4 4 473. Trials 1547 474. Trials by the court 1;, ' lS .__ -o • •- \ 1504 4< o. References XX11 TABLE OF CONTENTS. Pago § 476. Agreed statement of facts 1566 477. Rules of decision at common law 1567 478. New trials 15S0 47'.'. Bills of except ions 1588 480. Judgments 1601 481. Correction of judgments by courts that render them 1604 482. Condemnation proceedings 16U9 CHAPTER XXXI. PRACTICE IN CRIMINAL CASES. § 483. Criminal practice in general 16] 5 484. Arrests without warrants 1618 485. The complaint 1618 486. The warrant 1619 1 87. Search warrants 1621 488. Preliminary examination 1623 489. Warrants of removal 1627 490. Extradition to foreign countries 1633 491. Extradition from one State to another 1643 4'»2. Summons in criminal cases 1646 493. Bail 1646 4'.t4. Information 1658 405. Indictments 1660 496. Caption of indictment 1661 497. Body of indictment 1662 498. Signature of indictment 1668 499. Indorsement of indictment 1669 500. Duplicity 1670 501. Joinder of counts 1671 502. Misjoinder ei counts 1673 503. Joinder of charges of unlawful use of the mails 1674 504. Joinder of defendants to indictment 1675 ")!»."). Consolidation of indictments 1676 506. Indictment for the violation of the national banking laws .... 1677 507. Ordinance of Constitution as to juries. In criminal prosecu- tions ' 1 68S 508. Qualifications of grand and petit jurors 1689 509. Selection of grand and petit juries 1691 5 1 0. Writ of venire facias 1 696 51 1. Proceedings of grand jury 1698 512. Challenges to grand jurors 1702 513. .Manner of taking objections to an indictment 1702 514. Arraignment 1702 515. Motion to quash an indictment 1703 ."> lii. Demurrer to indictment 1705 TABLE OF CONTENTS. XX111 Pag • § 517. Pleas in abatement 1 ' 1 " 518. Plea of nolo contendere 1 < ! ! 519. Plea of pardon 1 ' ! - 520. Plea of former jeopardy, acquittal or conviction 1712 52 1 . Proceedings upon pleas 1713 522. Bills of particulars 1713 523. Evidence in criminal cases 1713 524. List of jurors and witnesses • ■ • • 172] 525. Place of trial 1722 526. Challenges to petit jurors 1725 527. Trials in criminal cases 1731 528. Summary trials or offenses against navigation laws 1735 529. Practice in prosecutions under the civil rights laws 1736 530. New trials • ■ 3 '■''' 531. Motion in arrest of judgment 1 < 38 532. Judgment in criminal cases • • • • 1 < 40 533. Suspension of judgment in criminal cases 1-44 534. Execution of judgment 1744 535. Bills of exceptions 174!) 536. Writs of error in criminal cases 1750 CHAPTER XXXII. REMOVAL OF CAUSES. § 537. Removal of cases from the State courts to the District Courts of the United States. In general 1754 538. Cases which are the subject of removal 17 554. Proceedings in the State courts after the removal 1882 Xxiy TABLE OF CONTENTS. Pago § 555. Proceedings in Federal court after removal 1893 556. Remand 191n :..-)7. Review of order of remand 1926 558. Review of order denying remand 19,5U 551). Proceedings after remand 1931 CHAPTEK XXXIII. ADMIRALTY AND SEIZURES. .")60. Admiralty jurisdiction 193 - 561. Libel ..: 194 * .">02. Security for libelant's costs ji)4( 563. Parties 194S .i64. Mesne process— Joinder of process in rem and in personam . . 1950 10 V? :>o;>. Process wi rem • ■" 7U " 566. Cases in which the res cannot be arrested 1953 567. Process in persoilam 568. Return of process and defaults 1 9,),J 569. Release of property from custody of marshal— Claim 1950 570. Security for defendant's costs 1!, ->' 571. Stipulation for vahn — Sureties 195 ^ 572. Bond to the marshal • iy,yj 573. Appraisement ]!H ' U .->74. Petition to bring in additional parties under Rule 59 I960 375. Answer, when filed— Defenses ; Contributory negligence, limita- tions, laches 11)61 ,">70. Laches in admiralty 1!)t ' 4 .) i i . 1 ender ■ 578. Exceptions and amendments •. 1(J,JJ 579. Amendments , 106t ^ 580. ( ross-libel 1967 581. Interrogatories 1968 _,.,.-, 1900 s>82. I rial 583. Evidence — Depositions ; oS4. Interlocutory decree and reference l 9 ^- 585. Final decree 1973 586. Sales ] ^ d 587. Sales as perishable 1976 588. Lntervenors 1977 ."..so. Petition against proceeds of sale I 9 ' ' 1070 590. Priorities Lyi J } 591. Libel of review ]9 ' 9 _ no . , 1979 .)02. Appeals 593. Limitation of the liability of shipowners • ■• 1!)8r> 7,04. Court where petition for limitation of liability may be filed 1001 595. Privity or knowledge of owner 19!) ' 2 8 TABLE OF CONTENTS. XXV Page S 596 The libel or petition for limitation of liability 507. Surrender to secure limitation of liability 59S. Appraisement in proceedings for limitation of liability 1998 599 Injunctions in proceedings to limit liability 2000 600. Injunctions in proceedings to limit liability-Monition 601. Proofs of claim in proceedings for limitation of liability . ... : 602. Answer in proceedings for the limitation of liability 2002 603. Trial of proceedings for limitation of liability 2004 604. Summary proceedings to collect sailors' wages - 605. Proceedings in prize causes - 606. Proceedings on seizures 607. The Pure Food and Drugs Act 201, » CHAPTER XXXIV. BANKRUPTCY. § 608. Courts of bankruptcy and their jurisdiction 2020 609. Jurisdiction in bankruptcy by consent ■ 202 < 610. Jurisdiction of courts of bankruptcy over plenary suits.... 2029 611. Extra-territorial jurisdiction of courts of bankruptcy .... 2034 612. Ancillary jurisdiction in bankruptcy 2036 613 Jurisdiction of state courts in cases affecting bankruptcy pr<>- .. 2037 ceedings • 614. Practice in bankruptcy proceedings in general 2041 615 Jurisdiction in bankruptcy as affected by residence or place , , . 20 15 of business • 616. Parties in bankruptcy til 7. Corporations who may be bankrupts 615. Partnerships and unincorporated associations 2051 619. Creditors who may petition for involuntary bankruptcy 20.., 620. Acts of bankruptcy 6->l Fraudulent transfers. Concealment or removal of property as . . , , + 2064 acts of bankruptcy 622. Transfer of property with the intent to create a preference 2066 623. Preferences by legal proceedings as acts of bankruptcy 206') 624. General assignments for the benefit of creditors as acts of bankruptcy 625. Appointments of receivers or trustees as acts of bankruptcy 2072 626. Admission in writing as act of bankruptcy 2074 627. Petitions in bankruptcy -' "' 628. Amendments to petitions in bankruptcy - ,,s - 629. Process and notices to creditors 630 Pleadings by the respondents in bankruptcy 2089 ->0'll 631. Warrants of seizure 2093 632. Arrest of bankrupt 633. Injunctions in aid of bankruptcy proceedings 2094 XXVI TABLE OF CONTEXTS. Page § 034. Receivers in bankruptcy 2102 635. Summary orders for the payment of money or delivery of property 2110 636. Dismissal of petitions 21 IS (137. Trials - 1 ,!l 638. References 2123 639. K\ idence and examinations 2132 640. Meetings of creditors and appointments of trustees 2143 ii41. Qualifications of trustees 214s 642! Duties of trustees 214!) ' 043. Title and powers of trustees 2159 044. Right of trustee to set aside preferences and liens 210S 645. Proof and allowance of claims 21X0 040. Time for proof of claim 2108 047. Provable claims : 2201 648. Set-offs and counter-claims 2207 04!). Priorities and liens 2209 650. Exemptions of bankrupt property 2217 651. Exemption of bankrupt from arrest 2224 052. Declaration and payment of dividends 2220 653. ( (impositions 2-29 054. Reopening estates in bankruptcy 2235 055. Discharge of bankrupts • • • • 2235 656. Grounds for refusing discharge 2240 057. < ^ligations released by discharge 2253 05S. Revocation of discharge 2258 659. ( losts and fees 2200 660. Clerk's fees 2204 661. Marshall's fees 2205 002. Referee's fees 2200 003. Trustee's fees 22os 004. Receiver's fees 22, 065. Attorney's fees — •'- 000. Review by Circuit Courts of Appeals 2277 067. Practice on appeals in bankruptcy 2285 668. Practice upon petition for a revision 2291 669. Review by the Supreme Court of the United States 2294 VOLUME III. CHAPTER XXXV. COURT OF CLAIMS. § 670. Organization of Court of Claims 2299 671. Jurisdiction of Court of Claims 2300 TABLE OF CONTENTS. XXV11 Page § 672. Statute of limitations in Court of Claims 2313 673. Petitions anil parties plaintiff in Court of Claims 2315 674. Pleadings by defendant in Court of Claims 2325 675. Amendments in Court of Claims 2326 676. Attorneys in Court of Claims j:!2'.' 677. Evidence before the Court of Claims 2330 678. Motions and notice in Court of Claims 2:140 679. Abatement and revivor i.U 1 680. Discontinuance and withdrawal of papers 2-'!4 I 681. Trials in Court of Claims 2342 682. References by Court of Claims 2344 683. New trials 2345 684. Judgments in ( kmrt of Claims 2349 685. Costs in Court of Claims 2352 6S6. Appeals from Court of Claims 2352 CHAPTER XXXVI. . WRITS OF ERROR AND APPEALS. § 687. Writs of error ami appeals in general 2:~!ofi 688. Review by the Supreme Court of decisions of the Federal Courts 2361 6S9. Certification to the Supreme Court by the Circuit Courts of Appeals 2:!7S 690. Review of decisions of ( ourts of Claims 2385 691. Review bv Supreme Court of decisions of the Courts of the District of Columbia, Alaska, and the Islands 2385 692. Writs of error from the Supreme Court to the State courts 2393 693. Writs of error from and appeals to the Circuit ( ourts of Appeals 24H11 694. Appeals to District Courts 24 IS 695. Judgments, orders, and decrees which may be reviewed by writs of error or appeals 2421 696. Value of the matter in dispute upon writs of error and appeals 2436 697. Parties to writs of error and appeals 2445 698. Time within which writs of error and appeals must be taken 2456 699. Writs of error 2462 700. Appeals 2470 701. Assignments of errors 2473 702. Security on writ of error or appeal 2479 703. Supersedeas 2482 704. Return to writ of error or appeal 2494 705. Motions to dismiss appeals and writs of error 2507 706. Printing the record 2521 XXV111 TABLE OF CONTENTS. Pagr § 7('7. Argument of appeals and writs of error 2524 7ns. Rehearings 1 : > : >- 709. Further proof on appeal 2535 710. Amendments in court of review 2538 711. Decisions on writs of error and appeals 2538 712. .Mandate 2558 713. Second writ of error or appeal 2570 Appendix 2577 APPENDIX. I. FORMS IN CIVIL CASES AT COMMON LAW AND IN EQUITY. Page I. Bill in equity in patent case 2577 * II. Modern bill in equity in patent case 2581 III. Bill in equity in copyright case 2581 IV. Petition or bill under anti -monopoly law 2592 Y. Complaint at common law under anti-monopoly law . . .'. 2602 Yl. Bill in equity for appointment of receiver 2608 VII. Friendly liill for appointment of receiver 2619 VIII. Bill in equity for the appointment of ancillary receiver 2627 IX. Petition for appointment of receiver at foot of decree.. 2632 X. Bill of foreclosure of railway mortgage 2640 XL Xotiee of filing and petition against United States under Tucker act of March 3. 1SS7 2652 XII. Answer 2054 XIII. Answer in copyright suit in equity 2656 XIV. Answer to friendly bill for receiver 2669 XY. Amendments to bill in equity 2670 XVT. Bill of revivor 2072 XVII. Supplemental bill 2075 XVIII. Xotiee of motion to dismiss Mil 2077 XIX. Writ of injunction against strikers 2077 XX. (Oder to show cause against appointment of receiver at foot of decree 2679 XXI. Order appointing receiver at foot of decree 2680 XXII. Order appointing receivers of street railway company .. 2682 XXIII. Order appointing ancillary receiver 2684 XXIV. Order extending receivership 26S0 XXV. Order for examination of third party by receivers 2687 XXVL Petition by lessor corporation for extension of receiver- ship for it* protection 20SS TABLE OF CON t'KXTS. XXIX XXVII. XXVIII. XXIX. XXX. XXXI. XXXII. XXXII 1. XXXIV. XXXV. XXXVI. XXXVII. XXXVIII. XXXIX. XL. XLI. XLII. XLIII. XLIV. XLV. XLVI. XLV 1 1. XLVIII. XLIX. L. LI. LII. L1II. LIV. LV. LVI. LVII. LVIII. LIX. LX. LXI. LXII. LXIII. LX7V. LXV. LXVI. LXVII. LXVIJl. Pack Xotice of deposition under revised statutes 26!)3 Order for dedimus potestatem 2693 Letters rogatory 2695 Petition for subpoena dace* t< Citation on appeal 27:>7 Writ <>l" error from supreme court to district court .... 27.17 Writ of error from supreme court to circuit court of appeals 2738 Writ of error from circuit court of appeals to districl court 27:11' Writ of error to state court 2739 Petition for writ of error to state court 274U Prayer for reversal 2743 Xotice to join in writ of error —74-1 Certificate of quest ion of jurisdiction 274t> Supersedeas bond 2747 Assignment of errors 274S ( lertificate by clerk to transcript 27 4'.' Citation on writ of error 2740 Petition for writ of certiorari to circuit court of appeals and proceedings upon same 27">o Answer to petition for writ of certiorari 27-V.* 'Motion for leave to file petition tor mandamus 27*»:{ XXX TABLE Ol- CONTENTS. Page LXIX. Petition for mandamus to set aside receivership 2764 LXX. Return of order to show cause against issue of mandamus 2772 LXXT. Writ of mandamus 277o LXXII. Motion to dismiss appeal 2777 LXX) 1 1. Motions to dismiss and to affirm 2770 LXRIV. Xotice of submission of motions to dismiss and to affirm 2780 FORMS IX CRIMINAL PROCEDURE. I. Complaint for warrant 2781 II. Warrant of arrest 2781 III. Mittimus pending examination 27S2 IV. Final mittimus 2782 V. Recognizance of accused pending examination 27S."> VI. Final recognizance of accused 27*4 VII. Recognizance of witnesses 2785 VTH. Certificate of proceedings 2785 IX. < (Hiiplaint for extradition warrant 2786 X. Extradition warrant 27S6 XI. Certificate of extradition proceedings 27*7 XII. Proceedings upon application of poor convict for discharge 27^* XIII. Mandate to jailer for the production of poor convict... 27S'.i XIV. Oath of poor convict 2789 XV. Certificate of discharge of poor convict 2700 MARSHALS' AND CLERKS" FORMS. XVI. Bench warrant or capias 2700 XVIT. Return to bench warrant or capias 2790 XVIII. Capias pro tine 2701 XIX. Return to capias pro fine 2791 XX. Attachment for contempt 2701 XXI. Return to attachment 2702 XXII. Warrant for removal of prisoner to another district .... 2702 XXTII. Return to warrant for removal of prisoner 2702 XXIV. Receipt of marshal for prisoner 2703 XXV. Venire facias 2793 XXVI. Commitment to penitentiary 270! XXVII. Marshal's return to commitment to penitentiary 2704 XXVIII. Criminal information 27 ( >4 XXIX. indictment. — General form 2703 XXX. indictment for offense on the high seas 2795 XXXI. Indictment fur offense committed at a place within ex- clusive jurisdiction of the United States 2796 XXXTT. Consolidated indictment for violation of national hank- ing laws 2797 XXXIII. Petition for removal of criminal case from state court under section 643, United St.ites Revised Statutes . . . 282.°. TABLE 02? CONTENTS. XXXI XXXIV. Certiorari for removal of case from state court .... XXXV. Appearance bond on writ of error in criminal cases ., Pace 2824 2824 ADMIRALTY FORMS. I. Libel in rem 2£'26 II. Interrogatories annexed to libel 2829 III. Libel in personam with clause of foreign attachment.. 2829 IV. Stipulation for libelant's costs 2834 V. Claim of owner 2835 VI. Claim of agent 2835 VI T. Stipulation for claimant'- costs 2836 VIII. Stipulation for value 2836 IX. Bond to marshal 2S37 X. Order appointing appraisers 2^38 XL Notice to appraisers * 2838 XII. Oath of appraisers 2839 XIII. Notice of appraisement 2S3!i XIV. Report of appraisers 2839 XV. Exceptions to libel 2N3!t XVI. Answer in admiralty 2840 XVII. Petition to bring in vessel under Supreme Court Rule 59 2*42 XVIII. Interlocutory decree and default in admiralty 2843 XIX. Interlocutory decree in admiralty 2843 XXII. Final decree in admiralty 2S44 XXIII. Final decree in admiralty 2S44 XXIV. Final decree in admiralty 2845 XXV. Final decree in admiralty for summary judgment on bond to marshal 2846 XXVI. Final decree and order of sale in admiralty 2S47 XXVII. Notice of appeal in admiralty 2S47 XXVIII. Petition on appeal 2848 XXIX. Order for mandate in admiralty 2849 XXX. .Mandate in admiralty 2S4\ bankruptcy 3066 7. Order for jury trial 3066 8. Special warrant to marshal 3067 9. Bond of petitioning creditor 3068 10. Bond to marshal 3068 1 1. Adjudication that debtor is not bankrupt 306!) 12. Adjudication of bankruptcy 3070 13. Appointment, oath, and report of -appraisers 3070 14. Orders of reference 3071 15. Order of reference in judge's absence 3072 16. Referee's oath of office 3073 17. Bond of referee 3073 18. Notice of first meeting of creditors 3074 19. List of debts proved at first meeting 3074 20. General letter of attorney in fact when creditor is not represented by attorney at law 3075 21. Special letter of attorney in fact 3076 22. Appointment of trustee by creditors 3076 table of contents. xxx111 Page 23. Appointment of trustee by referee 3077 24. Notice to trustee of his appointment 3077 25. Bond of trustee 3078 2G. Order approving trustee's bond 3078 27. Order that no trustee be appointed 3070 28. Order for examination of bankrupt 3079 29. Examination of bankrupt or witness 3080 30. Summons to witness 3080 31. Proof of unsecured debt 308 1 32. Proof of secured debt 308 1 ."{3. Proof of debt due corporation , 3082 34. Proof of debt by partnership 3083 35. Proof of debt by agent or attorney 3083 36. Proof of secured debt by agent 3084 37. Affidavit of lost bill, or note 3085 38. Order reducing claim 3086 30. ( )rder expunging claim . 3086 40. List of claims and dividends to lie recorded by referee and by him delivered to trustee 3087 41 . Notice of dividend 3088 42. Petition and order for sale by auction of real estate 3088 43. Petition and order for redemption of property from lien 3089 44. Petition and order for sale subject to lien 3090 45. Petition and order for private sale 3090 46. Petition and order for sale of perishable property 3001 47. Trustee's report of exempted property 3092 4S. Trustee's return of no assets . . 3092 40. Account of trustee 3093 50. Oath to final account of trustee 3094 51. Order allowing account and discharging trustee 3094 52. Petition for removal of trustee 3005 53. Notice of petition for removal of trustee 3005 54. Order for removal of trustee 3096 .^^>. < >rder for choice of new trustee 3096 56. Certificate by referee to judge 3097 57. Bankrupt's petition for discharge 3007 58. Specifications of grounds of opposition to bankrupt's discharge 3000 5!t. Discharge of bankrupt 3099 60. Petition for meeting to consider composition 3100 (il. Application for continuation of composition 31C9 62. Order confirming composition 3101 63. Order of distribution on composition 3102 FEDERAL PRACTICE VOLUME I. CHAPTER I. ORIGINAL JURISDICTION". § 1. Constitutional provisions concerning the courts of the United States. Sec. 1. The Constitution of the United States ordains: "Article III, Section 1. The judicial Power of the United States, shall be vested in one supreme court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compen- sation, which shall not be diminished during their Continuance in Office. Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambas- sadors, other public Ministers and Consuls ; — to all Cases of ad- miralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State ; — between Citizens of different States ; — between Citizens of the same State claiming lands under Grants of different States. and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Im- peachment, shall be by Jury ; and such Trial shall be held in Fed. Prac. Vol. I.— 1. 2 ORIGINAL JURISDICTION. [§ 2 the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. ]S«o Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or For- feiture except during the Life of the Person attainted." The jurisidetion of the Courts of the United States is restrict- ed by the Eleventh Amendment, which ordains: "The Judicial power «>f the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." The Sixth Amendment ordains : "In all criminal prosecu- tions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him : to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defense." The Seventh Amendment: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." The Eighth Amendment: "Excessive bail shall not be re- quired, nor excessive fines imposed, nor cruel and unusual pun- ishments inflicted." § 2. Enumeration of the courts of the United States. The Courts of the United States are, the Supreme Court, the Circuit Courts of Appeals, the Court of Customs Appeals, the District Courts, the Court of Claims and the Commerce Court. * § 2. iThe Circuit Courts of the District Courts. Ex yarle U. S., 226 United States have been abolished U. S. 420, by the Judicial Code, en- and their powers transferred to the acted March 3, 1911, §§ 289, 291, § 3] ORIGINAL JURISDICTION AND TERMS OF SUPREME COURT. The statutes of the United States have also created certain courts which are usually considered not to be courts of the United States. 2 These are, the District Court of Alaska, the District Court of the United States for Porto Kico, the District Court of Hawaii, the Supreme Court of the Philippines, the United States Court for China, the Supreme Court of the Dis- trict of Columbia and the Court of Appeals of the District of Columbia. The Board of General Appraisers and the United States Commissioners have also certain judicial powers, both civil and criminal which are hereinafter considered. § 3. Original Jurisdiction and Terms of the Supreme Court. The. jurisdiction of the Supreme Court of the United States is original and appellate. Its appellate jurisdiction is hereinafter considered. 1 The Supreme Court has original jurisdiction both at law and equity in all cases affecting ambassadors, other public ministers and consuls, and those in which a State is a party, 2 except where a citizen of the same State is a party, when it has no jurisdic- tion. 3 The jurisdiction of the Supreme Court over contro- versies to which a State is a party is exclusive, except as regards controversies between a State and its citizens, or between a State and citizens of other States. 4 The Supreme Court has exclusively all such jurisdiction of suit sagainst amabssadors or other public ministers, or their domestics or domestic serv- ants, as a court of law can have consistently with the law of nations; and original, but not exclusive, jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul is a party. 5 A State can sue the United States with 36 St. at L. 1087. It is probable that the Commerce Court will be destroyed before this work is through the press. 2 American Insurance Co. v. Can- ter, 1 Peters, 511, 7 L. ed. 242; Benner v. Porter, 9 How. 235, 13 L. ed. 11 9; Clinton v. Englebrecht. 13 Wall. 434. 20 L. ed. 659; McAllister v. U. S. 141 U. S. 174, 35 L. ed. 693 ; Romeu v. Todd, 206 U. S. 358, 368, 51 L. ed. 1093, 1097 (United States Court for Porto Rico). But it has been held that the Supreme Court of the District of Columbia is a court of the United State? with- in the meaning of U. S. R. S. § 714. James v. U. S. 202 U. S. 401. 50 L. ed. 1079. § 3. l See Chapter on "Writs of Error and Appeals." 2 Constitution, art. III. 3 California v. Southern Pac. Co., 157 U. S. 229, 39 L. ed. 683. 4,Tud. Code, § 233, 36 St. at L. 1087. 5 Ibid. 36 St. at L. 1087; Bors v. Preston. Ill V. S. 252, 28 L. ed. ORIGINAL JURISDICTION. [§ 3 its consent to establish or to protect a right of property owned by the State, 6 but not one in which the State has no interest although a part of its citizens are interested therein. 7 A State cannot sue the United States without the latter*s consent. 8 A State cannot sue to enforce or protect a right which is purely political. 9 A State cannot obtain an order or judgment com- pelling a governor of another State to return a fugitive from labor or justice. 10 A State may tile a bill against another State to settle and establish a disputed boundary. 11 In such a suit the United States has an interest in the controversy, and the attorney-general on his application may intervene, appear on behalf of the United States, adduce proofs and be heard in argument without making the United States a party in the technical sense of the term ; but he has no right to interfere in the pleading or evidence or admissions of either of the States ; and in such a suit the judgment cannot be either for or against the United States. 12 A State may sue another State for an injunction against the diversion of the waters of a stream flow- ing through both which unreasonably interferes with their use for irrigation, 13 and at least when the stream is not navigable, the United States cannot intervene. 14 A State may sue another 419; U. S. v. Ravara, 2 Dall. 297, 1 L. ed. 38S: Gittings v. Crawford, Taney. I : St. Luke's Hospital v. Barclay, 3 Blatclif. 258; Graham v. Stricken. 4 Blatclif. 50. 6 Minnesota v. Hitchcock, 185 U. S. 373, 4(5 L. ed. 954. 7 Kansas v. U. S.. 204 U. S. 331, .11 L. ed. 510. 8 Mississippi v. Johnson, 4 Wall. 475. 478. IS L. ed. 437. 9 Mississippi v. Johnson, 4 Wall. 475, IS L. ed. 437; Georgia v. Stan- ton, 6 Wall. 50, 18 L. ed. 721; § 79, infra. 10 Kentucky v. Dennison, 24 How. 66, 16 L. ed. 717. 11 Kew Jersey v. New York, 3 Pet. 461, 7 L. ed. 741 : s. C, 5 Pet. 284, 8 L. ed. 127: -. ... 6 Pet. 323, 8 L. ed. 414; Massachusetts v. Rhode Island, 12 Pet. 755, 9 L. ed. 1272: Rhode Island v. Massachu- setts, 13 Pet. 23. 10 L. ed. 41; Rhode Island v. Massachusetts, 15 Pet. 233, 10 L. ed. 72]; s. c, 4 How. 591, 11 L. ed. 1116: Missouri v. Iowa, 7 How. UG0. 12 L. ed. 861; Florida v. Georgia, 17 How. 478, 15 L. ed. 181: Virginia v. West Vir- ginia, 11 Wall. 39, 20 L. ed. 67: Missouri v. Iowa. HI How. 1, 13 L. ed. 303; AJabama v. Georgia, 23 How. 505, 16 L. ed. 556; Mis- souri v. Kentucky.. 11 Wall. 395, 20 L. ed. 116. 12 Florida v. Georgia, 17 How. 478, 15 L. ed. 181. 13 Kansas v. Colorado, 2Q6 U. S. 46, 51 L. ed. 956. "Kansas v. Colorado, 206 U. S. 46, 51 L. ed. 956. 3] ORIGINAL JURISDICTION AND TERMS OF SUPREME COURT. 5 State 15 and a public 16 or private 17 corporation of the latter to enjoin a public nuisance affecting' a large number of the com- plainant's citizens; such as the pollution of water 18 or the dis- charge of noxious gases over its territory. 19 Otherwise, it seems that a State cannot maintain a suit to redress the wrongs of a part of its own citizens. 20 for example, to enjoin a railway company from charging unreasonable rates within its jurisdic- tion ; 21 nor, it has been held, to enjoin the governor and health officer of another State from enforcing unreasonable quarantine regulations, which interfere with commerce between these States. 22 A State cannot file a bill in the Supreme Court of the United States to enforce a penal statute, such as a bill to pre- vent a railway company from violating its prohibition law; 23 nor to enforce a judgment for penalties rendered in its courts against a foreign corporation. 24 A State cannot sue another State to collect bonds and coupons of the defendant which have been assigned to the plaintiff by its own citizens in order that it may collect them and pay the proceeds to the assignors. 25 But, a State may sue another State to collect bonds that have been given to the plaintiff absolutely. 26 A State may sue for an in- junction against the collection by citizens of other States of cer- tain bonds of the United States which are the property of such State, and for the delivery to it of such bonds, and for a declara- tion that the contract under which the defendants claim a title "Missouri v. Illinois, 180 U. S. •208: s. c, 200 U. S. 496. 16 Missouri v. Illinois, 180 U. S. 20S. 45 L. ed. 497; S. c, 200 U. S. 496, 50 L. ed. 572. 17 Georgia v. Tennessee Copper Co.. 20G U. S. 230, 51 L. ed. 1038. 18 Missouri v. Illinois, 180 U. S. 208, 45 L. ed. 497; s. c, 200 U. S. 496, 50 L. ed. 572. 19 Georgia v. Tennessee Copper Co.. 200 U. S. 230, 51 L. ed. 1038. 20 Louisiana v. Texas, 176 U. S. 1. 44 L. ed. 347: Oklahoma v. Atchi- son, T. & S. F. Ryl Co., 220 U. S. 277, 55 L. ed. 465; Oklahoma v. Gulf, C. & S. F. Ry. Co., 220 U. S. 290, 55 L. ed. 469. 21 Oklahoma v. Atchison, T. & S. F. Ry. Co.. 220 U. S. 277, 55 L. ed. 465. 22 Louisiana v. Texas, 176 U. S. 1, 44 L. ed. 347. 23 Oklahoma v. Gulf, C. & S. I". Ry. Co.. 220 V. S. 290, 55 L. ed. 469. 24 Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 32 L. ed. 239. 25 New Hampshire v. Louisiana. 10S U. S. 70, 27 L. ed. 650. 26 South Dakota v. North Caro- lina. 192 U. S. 286, 48 L. ed. 44S; infra, § 104. 6 ORIGINAL JURISDICTION. [§ 3 to such bonds is void 27 A State may maintain a bill against citizens of other States to enforce its title to a railroad. 28 The Supreme Court has no jurisdiction of a suit by a State against a citizen of the District of Columbia ; 29 nor of a suit by a State against one of its own citizens, 30 or to which one of its citizens is an indispensable party. 81 The allegation that a defendant corporation is a "body politic in the law of and doing business in the State of California" is insufficient to establish that the de- fendant is a California corporation, and is insufficient to show- that the defendant is not a Pennsylvania corporation. 32 The I'nited States may sue a State in the Supreme Court. 33 The fact that a State is a stockholder in a corporation by or against which a suit is brought does not make the State a party to such suit. 34 The Supreme Court of the United States considers the former practice of the courts of Chancery and of King's Bench, in England, as affording outlines for its practice in the exer- cise of its original jurisdiction. 35 It has made a few rules regulating the same. 36 In suits to which a State is 8 party, the practice in equity is followed. 37 It is the regular practice to obtain from the court, upon a motion, leave to file the bill. The motion is usually heard ex parte, 36 and where the State is a party, leave is ordinarily granted as of course; 39 but 27 Texas v. White. 7 Wall. 700, 741-743, 19 L. ed. 227, 242, 243. 28 Florida v. Anderson, 91 U. S. 667, 23 L. ed. 290. 29 Re Massachusetts, 197 U. S. 482, 49 L. ed. 845. 30 Pennsylvania v. Quicksilver Co., 10 Wall. 553, 19 L. ed. 998; Min- nesota v. Northern Securities Co., 184 U. S. 199, 46 L. ed. 499; Wash- ington v. Northern Securities Co., }Sr, U. S. 254, 46 L. ed. 897. 31 Minnesota v. Northern Securi- ties Co., 184 U. S. 199, 46 L. ed. 499; Washington v. Northern Secu- rities Co., 185 U. S. 254. 46 L. ed. 897. 32 Pennsylvania v. Quicksilver Co., 10 Wall. 553, 19 L. ed. 9^8. 33 U. S. v. Texas, 143 U. S. 621, 36 L. ed. 285. 34 Bank of U. S. v. Planters' Bank of Ga., 9 Wheat. 904, 6 L. ed. 244. 35 Supreme Court Rule 3. 36 Supreme Court Rules 3, 5. 37 Georgia v. Brailsford. 2 Dall. 402, 1 L. ed. 433; Kentucky v. Den- nison, 24 How. 66, 16 L. ed. 717. 38 Georgia v. Grant, 6 Wall. 241. 18 L. ed. 848; Washington v. North- ern Securities Co., 185 U. S. 254, 46 L. ed. 897. 39 Mississippi v. Johnson. 4 Wall. 47-">. 478, 18 L. ed. 437: Washington v. Northern Securities Co., 185 U. S. 254, 255, 46 L. ed. 897; Kansas v. U. S., 204 U. S. 331, 337. 51 L. ed. 510, 511. 3] ORIGINAL JURISDICTION AND TERMS OF SUPREME COURT. under special circumstances, the court will require notice to be served upon the proposed defendant ; 40 and leave to file a bill lias been denied. 41 Written authority from the governor of a State is sufficient to authorize a suit on behalf of the State. 42 All process of the court is in the name of the President of the Unit- ed States. 43 In a suit by a State against another State the serv- ice of a subpoena sixty days before the return day is sufficient. 44 Service should be made on both the governor and the attorney- general. 45 In one case a subpoena served upon the governor by leaving a copy at his house and there shoving the original to the secretary of state was held sufficient. 46 The filing of a pleading by the attorney-general of a State who has been admitted to practice in the Supreme Court of the Unit- ed States is an appearance on behalf of such State. 47 The rules concerning the time for pleading in suits between individuals do not apply to suits between the different States. 48 The State of Massachusetts was allowed to answer an amended bill of the State of Rhode Island one vear after the filing of such amended lull. 49 If the State fail to appear, or if the State withdraw its appearance, no coercive measures will be taken to compel its appearance, but the complainant may be allowed to proceed ex parte. 50 In a suit to settle a disputed boundary, the most appro- priate mode of proceeding is by bill and cross-bill. 51 In suits 40 Louisiana v. Texas, 176 U. S. ], 44 L. ed. 347; Minnesota v. Northern securities Co., 184 U. S. lit!). 46 L. ed. 499; Washington t. Northern Securities Co., 185 U. S. 254. 4(i L. ed. S97. 41 Mississippi v. Johnson, 4 Wall. 475, 18 L. ed. 437; Georgia v. Grant, (5 Wall. 241. 18 L. ed. 848; Minne- sota v. Northern Securities Co., 184 U. S. 199. 40 L. ed. 499. 42 Texas v. White, 7 Wall. 700, 719. 19 L. ed. 227, 235. 43 Supreme Court Rule 5: New Jersey v. New York, 6 Pet. 323. 8 L. ed. 414. 44 Supreme Court Rule 5: Chis- liolm v. Georgia, 2 Dall. 419. 1 L. ed. 440; Grayson v. Virginia, 3 Dall. 320, 1 L. ed. 019; New Jersey v. New York. 3 Pet. 461, 7 L. ed. 741 ; s. c, 5 Pet. 284, 8 L. ed. 127; Ken- tucky v. Dennison, 24 How. 66, 16 L. ed. 717. 45 Supreme Court Rule 5. 46 Huger v. South Carolina, 3 Dall. 339, 1 L. ed. 027. 47 New .lei sty v. New York, 6 Pet. 323. 8 L. ed. 414. 48 Rhode Island v. Massachusetts, 13 Pet. 23. 10 L. ed. 41. 49 Rhode Island v. Massachusetts, 13 Pet. 23, 10 L. ed. 41. 50 Massachusetts v. Rhode Island, 12 Pet. 755. 9 L. ed. 1272; Oswald v. New York, 2 Dall. 415, 1 L. ed. 438; Chisholm v. Georgia, 2 Dall. 419. 1 L. ed. 440. 51 Missouri v. Iowa, 7 How. 660, 12 L. ed. 861. 8 ORIGINAL JURISDICTION. [§ 4 against a State the practice is very liberal, and the utmost lib- erality is exercised by the court in the correction of slips of practice or errors. 52 The appellate jurisdiction of the Supreme Court is explained in the final chapter of this work. Incidental to such appellate jurisdiction, the Supreme Court has power in certain limited cases to issue writs of prohibition, 53 manda- mus, 54 habeas corpus, 55 scire facias, 56 and other writs. 57 The Supreme Court holds one term annually, at Washington, beginning on the second Monday in October, and such adjourned or special terms as it finds necessary for the dispatch of busi- ness. 58 In case of a contagious or epidemic disease, a term may be held at another place. 59 § 4. The jurisdiction and terms of the circuit courts of appeals and the judicial circuits. There are nine Circuit Courts of Appeal, one in each circuit. 1 Their jurisdiction is exclusively appellate, and will be explained in the concluding chapter of this work. Incidental to such appellate jurisdiction, they have the power to issue all writs not specifically provided for by statute, which are necessary for the exercise of their re- spective jurisdiction and agreeable to the usages and principles of law. 2 The territorial jurisdiction of the Circuit Courts of Appeals is as follows: The First Circuit includes the districts of Rhode Island, Massachusetts, New Hampshire, and Maine. The Sec- ond Circuit includes the districts of Vermont, Connecticut and Xcw York. The Third Circuit includes the districts of Penn- 52 Iowa v. Illinois, 151 U. S. 238, &* Infra, § 457. 38 L. ed. 145; Rhode Island v. Mass- 55 tj. S. R. S., § 751. See infra, achusetts, 13 Pet. 23, 10 L. ed. 41. § 461. It has been said that, even in a 56 J ut i. Code, § 262, 36 St. at L. .case which should be disposed of 1087. See infra, § 461. without undue delay, "a State can- 57 Ibid. See infra, §§ 455, 459. not be expected to move with the 58 j U( j. Code, § 230, 36 St. at L. celerity of a private business man; 1087. it is enough if it proceeds, in the 59 rj. S. R. S., § 4799. language of the English Chancery, § 4. 1 Jud. Code, § 116, 36 St. with all deliberate speed." Virginia at L. 1087. v. West Virginia, 222 U. S. 17, 56 2 Ibid. § 262. See infra, § 455. L. ed. 71. 53 Jud. Code, § 234, 36 St. at L. 1087. See infra, § 456. § 4] OF CIRCUIT COURTS OF APPEALS. 9 sylvania, New Jersey, and Delaware. The Fourth Circuit in- cludes the districts of Maryland, Virginia, West Virginia, North Carolina and South Carolina. The Fifth Circuit includes the districts of Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas. The Sixth Circuit includes the districts of Ohio, Michigan, Kentucky, and Tennessee. The Seventh Circuit in- cludes the districts of Indiana, Illinois, and Wisconsin. The Eighth Circuit includes the districts of Colorado, Arkansas, Iowa, Kansas, Minnesota, Missouri, Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Utah, and Wyoming. The Ninth Circuit includes the districts of Arizona, California, Hawaii, 3 Idaho, Montana, Nevada, Oregon, and Washington. 4 Final decisions of the District Court for Alaska 5 and the Unit- ed States Court for China, 6 are heard by the Circuit Court of Appeals for the Ninth Circuit. The term of the Circuit Court of Appeals for the First Cir- cuit is held in the City of Boston, Massachusetts on the first Tuesday of October at 10 A. M. Stated sessions thereof are held at the same hour on the first Tuesday of every month. The clerk's office is in the City of Boston. The term of the Circuit Court of Appeals for the Second Circuit is held in the City of New York on the third Tuesday of October. The clerk's office is in the City of New York. The terms of the Circuit Court of Appeals for the Third Circuit are held in the City of Phila- delphia on the first Tuesday of March and the first Tuesday of October. The clerk's office is in Philadelphia. The terms of the Circuit Courts of Appeals for the Fourth Circuit are held in the City of Richmond, Virginia, on the first Tuesday of Feb- ruary, the first Tuesday of May and the first Tuesday of Novem- ber. Special sessions of the court are held at Richmond, Vir- ginia, on the second Tuesday of every month of the year, except in those months in which regular terms are held. The clerk's office is in Richmond. The terms of the Circuit Court of Ap- peals for the Fifth Circuit are held: at Atlanta, Georgia, on the first Monday in October ; at' Montgomery, Alabama, on the third Monday in October ; at Ft. Worth, Texas, on the first Mon- day in November ; at New Orleans, Louisiana, on the third 3 Ibid. §§ 116, 133. Wilder's S. S. 5 Ibid. § 135. Co. v. Low, C. C. A., 112 Fed. 161. 6 Act of June 30, 1906, 34 St. at 4 Ibid. § 116. L. 814. 10 ORIGINAL JURISDICTION. [§ 1 Monday in November. The clerk's office is in New Orleans. All appeals, writs of error and other appellate proceedings, taken or prosecuted from the District Courts, in the State of Georgia, are heard and disposed of at the term of the Circuit Court of Appeals held in Atlanta, and all such, taken or prosecuted from the District Courts of Texas, held at Beaumont in the Eastern District of Texas, are heard at the term of the Court of Appeals held at New Orleans; with the exception in both districts of appeals from orders of injunctions and other cases, which, under the statutes and rules, or in the opinion of the court are entitled to be brought to a speedy hear- ing. The term of the Circuit Court of Appeals for the Sixth l 'ircuit is held in the City of Cincinnati, Ohio, on the Tuesday after the first Monday of October, and adjourned sessions on the Tuesday after the first Monday of each other month in the year, except August and September. At the July sessions, no cases are heard except upon special order of the court. The clerk's office is at Cincinnati. The term of the Circuit Court of Appeals for the Seventh Circuit is held at Chicago, Illinois, en the first Tuesday in October and continues until the first Tuesday of October of the succeeding year. Unless otherwise specially ordered, the court holds at Chicago three sessions for the hearing of causes during each term, beginning of the first Tuesdays in October, January and May. The clerk's office is in Chicago. The terms of the Circuit Court of Appeals for the Eighth Circuit are held: at St. Paul, Minnesota, on the first Monday of May; at Denver, Colorado, on the first Monday of September ; and at St. Louis, on the first Monday of December. The clerk's office is at the City of St. Louis. Cases from Minne- sota, North Dakota, South Dakota, Nebraska, Iowa, Kansas, Missouri, Arkansas, Oklahoma and the Indian Territory in which transcripts are filed on or before the 1st day of April, and cases from Colorado, Utah, Wyoming and New Mexico in which transcripts and stipulations of the parties for their hear- ing at the May term in St. Paul are filed on or before the 1st day of April, and those only, are heard at the succeeding May term of the court in St. Paul. Cases from Colorado, Wy- oming, Utah and New Mexico in which transcripts are filed on or before the 1st day of July, and cases from the remainder of the circuit in which transcripts and stipulations of the parties § 5] DISTRICT COURTS. 11 for their hearing at the September Term in Denver are filed on or before the 1st day of July, and those only, are heard at the succeeding September term in Denver. Cases from Minne- sota, North Dakota, South Dakota. Nebraska, Iowa, Kansas, Missouri, Arkansas, Oklahoma and the Indian Territory in which transcripts are filed on or before the 1st day of October, and cases from Colorado, Wyoming, Utah and New Mexico in which transcripts and stipulations of the parties for their hear- ing at the December term in St. Louis are filed on or before the 1st day of October, and those only are heard at the succeed- ing December term in St. Louis. The term of the Circuit Court of Appeals for the Ninth Circuit is held at San Francisco, Cal- ifornia; on the first Monday of October. The clerk's office is at San Francisco, California. 7 It seems that the term of a Circuit Court of Appeals may be extended. 8 § 5. Jurisdiction of the District Courts in general. The unit of Federal territorial jurisdiction is in the judicial dis- trict. There is at least one district in each state of the Union. Some of the States are divided into several districts. And some districts are divided into two or more divisions. 1 The jurisdic- tion of the District Courts is thus defined by statute: "The district courts shall have original jurisdiction as follows: First. Of all suits of a civil nature, at common law or in equity. brought by the United States, 2 or by any officer thereof anthor- 7.Tud. Code, § 126, 36 St. at L. 1087; l". 8. R. S., § 604; 25 St. at L. 070 ; 26 St. at L. 830; 130 TJ. S. 707 : 26 St. at L. 217 ; 33 St. at L. 59, 249, 548; 31 St. at L. 414. Original Rules of C. C. A„ 150 Fed. xxv. Amended Rules of C. C. A., 150 Fed. xxxvii. 8 Guaranty Tr. Co. v. Metropoli- tan Ry. Co., C. C. A., 177 Fed. 925. § 5. lJud. Code, §§ 69-115, in- fra, § 64. 2 Such is a suit by the United States for the use of anyone of the five civilized tribes of Indians, in- cluding the Creek Nation, under Acts of March 1, 1901, Ch. 676, § 10. 31 St. at L. 864, and April 26, 190(3, Ch. 1870, § 18, 34 St. at L. 144. to cancel patents or deeds to town lots obtained by fraud for less than the statutory price, or other- wise, "for the collection of any moneys or recovery of any land claimed by any of said tribes." U. S. v. Rea-Read Mill & Elevator Co., 171 Fed. 501. It has been held that a suit by an individual upon a mar- shal's bond cannot be maintained in a Federal court unless the matter in dispute exceeds the jurisdictional amount. Pierson v. Phillips, 30 Fed. 837 : and that such a suit upon a bond given by a contractor for the 12 ORIGINAL JURISDICTION. % ized by law to sue, 3 or between citizens of the same State claim- ing lands under grants from different states; 4 or, where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars, 5 and (a) arises under the Constitution or laws of the United States, 6 or treaties made, or which shall be made, under their authority, 7 or (b) is between citizens of different States, 8 or (c) is between citizens of a State and foreign States, citizens, or subjects. 9 No district court t :hall have cognizance of any suit (except upon foreign bills of exchange) to recover upon any promissory note or other chose in 'action in favor of any assignee, or of any subsequent holder if construction of a public work to se- cure payment to laborers and ma- terial man may be, irrespective of the amount involved, U. S. Fidelity & G'y. Co. v. U. S. for the benefit of Kenyon, 204 U. S. 340, 51 L. ed. 516. When suits of the latter class are brought by the Government for its own benefit, it is not required to serve or publish notice to claimants, nor, it has been held, to bring the suit in the district where the con- tract was to be performed, as is re- quired in suits brought by a claim- ant to enforce the same by Act of February 24, 1005, Ch. 778, 33 St. at L. 811, Comp. St. Supp. 1911, p. 1071; U. S. v. McGee, 171 Fed. 209. It is not a condition precedent to such a suit by a claimant, that he should have filed affidavits with the Quartermaster's Department and obtained a certified copy of the bond with leave to sue. U. S. v. Massa- chusetts Bonding & Ins. Co., 198 Fed. 923. 3 This includes actions by the re- ceiver of a national bank appointed by the comptroller, Johnson v. Ran- kin (Texas) 95 S. W. 665; infra, § 35. It seems that a suit by an agent of the stockholders of a na- tional bank, appointed in pursuance with the Revised Statutes, fall3 within this clause. Snohomish County v. Puget Sound Nat. Bank, 81 Fed. 518; Guarantee Co. v. Han- way, C. C. A., 104 Fed. 369 ; Weeks v. International Trust Co., C. C. A., 125 Fed. 370, 373. Where the plain- tiff, who was receiver of a national bank, assigned his cause of action to one of the defendants after the commencement of the suit, the suit was dismissed, Weaver v. Kelly, C. C. A., 92 Fed. 417, 34 C. C. A. 423. For cases brought by receivers ap- pointed by the Federal courts, see infra, § 37. 4 Infra, § 50. 5 This increases the jurisdictional amount, which formerly was $2,000, exclusive of interest and costs. 24 St. at L. 552. For the construction of the clause, see infra, §§ 6-23. It has been held, that where the cause of action arose prior to January 1st, 1912, the amount necessary for the jurisdiction is not enlarged, al- though the action is subsequently commenced, Taylor v. Midland Val- ley R. Co., 197 Fed. 323; construing Jud. Code, § 299. 8 Infra, §§ 24-39. 1 1nfra, § 26. 8 Infra, §§ 40-49. 9 Infra, § 45. §5] DISTBICT COURTS. 13 such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover upon said note or other chose in action if no assignment had been made: 10 Provided, however, That the foregoing provision as to the sum or value of the matter in con- troversy shall not be construed to apply to any of the cases men- tioned in the succeeding paragraphs of this section. Second. Of all crimes and offenses cognizable under the authority of the United States. 11 Third: Of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it; of all seizures on land or waters not within admiralty and maritime jurisdiction; of all prizes brought into the United States ; and of all proceedings for the condemnation of property taken as prize. 12 Fourth. Of all suits arising under any law relating to the slave trade. Fifth. Of all cases arising under any law providing for internal revenue, or from revenue from imports or tonnage, except those cases arising under any law- providing revenue from imports, jurisdiction of which has been conferred upon the court of Customs Appeals. Sixth. Of all cases arising under the postal laws. Seventh. Of all suits at law or in equity arising under the patent 13 the copy- 10 Infra, § 53. "The several courts vested with ju- 11 See infra, Chapter on Practice risdietion of cases arising under the in Criminal Cases. patent laws shall have power to 12 See infra, Chapter on Admiral- grant injunctions according to the ty. course and principles of courts of 13 Infra, §§ 29, 146, 147, 188. equity, to prevent the violation of U. S. R. S.. § 4919: ''Damages any right secured hy patent, on such for the infringement of any pat- terms as the court may deem rea- ent may be recovered by action on sonable: and upon a decree being the case, in the name of the party rendered in any such case for an interested, either as patentee, as- infringement, the complainant shall signee. or grantee. And whenever he entitled to recover, in addition in any such action a verdict is ren- to the profits to be accounted for by dered for the plaintiff, the court may the defendant, the damages the corn- enter judgment thereon for any sum plainant has sustained thereby. above the amount found by the ver- and the court shall assess the same diet as the actual damages sustained, or cause the same to be assessed according to the circumstances of the under its direction. And the court case, not exceeding three times the shall have the same power to in- amount of such verdict, together crease such damages, in its discre- with the costs." U. S. R. S., § 4921 : tion, as is given to increase the 14 ORIGINAL JURISDICTION. Ci right, 14 and the trade mark laws. 15 Eighth. Of all suits and proceedings arising under any law regulat- ing commerce, except those suits and proceedings ex- clusive jurisdiction of which has been conferred upon the Commerce Court, 16 Ninth. Of all suits and pro- ceedings for the enforcement of penalties and forfeitures in- curred under any law of the United States. 17 Tenth. Of all suits by the assignee of any debenture for drawback of duties, issued under any law for the collection of duties, against the person to whom such debenture was originally granted, or against and indorser thereof, to recover the amount of such debenture. Eleventh. Of all suits brought by any person to recover damages for any injury to his person or property on account of anv act done bv him, under any law of the United States, for the protection or collection of any of the revenues thereof, or to enforce the right of citizen- of the United States damages found by verdicts in ac- tions in the nature of actions of trespass upon the case." For a case where an injunction and an account- ing were denied when brought by the buyer against the seller of a patent, because of the sale of the patented machinery by the vendor in violation of the contract, see United Cigarette Mach. Co. v. Winston Cigarette Mach. Co., C. C. A., 194 Fed. 947. Where a bill charged that, after the termination of a li- cense, the licensees obtained large numbers of the patented devices from sources to complainants un- known and sold the same within the district without right or authority, was held to arise under the patent laws and that the Federal court might take jurisdiction of the same regardless of the amount involved. X. J. Patent Co. v. Martin. 172 Fed. 760. U. S. R. S., § 4918: '-When- ever there are interfering patents, any person interested in any one of them, or in the working of the in- vention claimed under either of them, mav have relief against the interfering patentee, and all parties interested under him. by suit in equity against the owners of the in- terfering patent : and the court, on notice to adverse parties, and other due proceedings had according to the course of equity, may adjudge and declare either of the patents void in whole or in part, or inoper- ative, or invalid in any particular part of the United States, according to the interest of the parties in the patent or the invention patented. But no such judgment or adjudica- tion shall affect the right of any person except the parties to the suit and those deriving title under them subsequent to the rendition of such judgment." See infra. § 147. A suit to enjoin a tax on a patent does not arise under the patent laws. Holt v. Indiana Mfg. Co.. 176 U. S. 68, 44 L. ed. 374. 14 Infra. §§ 29. 150. Vilnfra, §§ 80, 148. 149. n Infra, §§ 75, 151. 17 See U. S. v. Mexican Nat. Ry. Co.. 40 Fed. 709. § 5] DISTRICT COURTS. 15 to vote in the several States. Twelfth. Of all suits authorized by law to be brought by any person for the recovery of damages on account of any injury to his person or property, or of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy men- tioned in section nineteen hundred and eighty, Revised Stat- utes. Thirteenth. Of all suits authorized by law to be brought against any person who, having knowledge that any of the wrongs mentioned in section nineteen hundred and eighty, Pie- vised Statutes, are about to be done, and, having power to pre- vent or aid in preventing the same, neglects or refuses so to do, to recover damages for any such wrongful act. Fourteenth. Of nil suits at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, custom or usage of any State, of any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law of the United States providing for equal rights of citizens of the Unit- ed States, or of all persons within the jurisdiction of the United States. Fifteenth. Of all suits to recover possession of any office, except thai of elector of President or Vice President, Representative in or Delegate to Congress, or member of a State legislature, authorized by law to be brought, wherein it appears that the sole question touching the title to such office arises out of the denial of the right to vote to any citizen offering to vote, on account of race, color, or previous condition of servitude: Provided, That such jurisdiction shall extend only so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the Constitution of the United States, and secured by any law, to enforce the right of citizens of the United States to vote in all the States. Sixteenth. Of all cases commenced by the United States, or by direction of any officer thereof, against any national banking association, and cases for winding up the affairs of any such bank; and of all suits brought by any banking association established in the dis- trict for which the court is held, under the provisions of title 'National Banks,' Revised Statutes, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by said title. And all national banking associations established under the laws of the United States shall, for the 16 ORIGINAL JURISDICTION - . [§ 5 purposes of all other actions by or against them, real, personal, or mixed and all suits in equity, be deemed citizens of the States in which they are respectively located. 18 Seventeenth. Of all .suits brought by any alien for a tort only in violation of the laws of nations or of a treaty of the United States. Eighteenth. Of all suits against consuls and vice consuls. 19 Nineteenth. Of all matters and proceedings in bankruptcy. 20 Twentieth. Concur- rent with the Court of Claims, of all claims not exceeding ten thousand dollars founded upon the Constitution of the United States or any law of Congress, or upon any regulation of an Executive Department, or upon any con tract, express or im- plied, with the Government of the United States, or for dam- ages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty if the United States were suable, and of all set-offs, counterclaims, claims for damages, whether liquidated or un- liquidated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Government in said court: Provided, however, That noth- ing in this paragraph shall be construed as giving to either the district courts or the Court of Claims jurisdiction to hear and determine claims growing out of the late Civil War, and com- 18 See infra, § 28. The former tion in cases affecting consuls; Con- statute contained the following ad- stitution, Art. Ill; U. S. R. S., ditional clause: "And in such cases § 687 ; supra, § 3: The State courts the Circuit and District Courts shall formerly had jurisdiction of ac- not have jurisdiction other than tions against consuls in civil cases; such as they would have in cases Hall v. Young, 3 Pick. (Mass.) 80, between individual citizens of the 15 Am. Dec. 180; Sartori v. Hamil- same State," 25 St. at L. 433. ton, 13 N. J. L. 107; Com. v. Kos- There is room consequently for ar- loff, 5 Serg. & R. (Pa.) 545; Kidder- gument in support of the contention lin v. Meyer, 2 Miles (Pa.) 242; that the District Courts have juris- Durand v. Halbach, 1 Miles (Pa.) diction of all actions by or against 46; State v. De la Foret, 2 Xott & them, which involve more than the M. (S. C.) 217; Wilcox v. Luco, 118 jurisdictional amount, as arising Cal. 639. 62 Am. St. Rep. 305, 50 under the Constitution and laws of Pac. 758. But sec Jud. Code, § 256, the United States. 36 St. at L. 1087, quoted infra. 19 This jurisdiction is not exclu- 20 See infra, Chapter on Bank- sive. The Supreme Court of the ruptey. United States has original jurisdic- 5] DISTRICT COURTS. 17 monly known as 'war claims' or to hear and determine other claims which had been rejected or reported on adversely prior to the third day of March, eighteen hundred and eighty-seven, by any court, department, or commission authorized to hear and determine the same, or to hear and determine claims for pen- sions; or as giving to the district courts jurisdiction of cases brought to recover fees, salary, or compensation for official serv- ices of officers of the United States or brought for such purpose by persons claiming as such officers or as assignees or legal rep- resentatives thereof; but no suit pending on the twenty-seventh day of June, eighteen hundred and ninety-eight, shall abate or be affected by this provision: And provided further That no suit against the Government of the United States shall be allowed under this paragraph unless the same shall have been brought within six years after the right accrued for which the claim is made: Provided, That the claims 'of married women, first ac- crued during marriage, of persons under the age of twenty-one years, first accrued during minority, and of idiots, lunatics, in- sane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the suit be brought within three years after the disability his ceased ; but no other disability than these enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively. All suits brought and tried under the provisions of this paragraph shall be tried by the court without a jury. Twenty-first. Of proceedings in equity, by writ of injunction, to restrain violations of the provisions of laws of the United States to prevent the unlawful inclosore of public lauds; and it shall be sufficient to give the court jurisdiction if service of orig- inal process be had in any civil proceeding on any agent or em- ployee having charge or control of the inclosure. Twenty-sec- ond. Of all suits and proceedings arising under any law regu- lating the immigration of aliens, or under the contract labor laws. 22 Twenty-third. Of all suits and proceedings arising under any law to protect trade and commerce against restraints and monopolies. 23 Twenty-fourth, Of all actions, suits, or 21 See infra, §§ 96. 97, and Chap- 23 26 St. at L. 209: U. S. v. E. C. ter on Court of Claims. Knight Co., 156 U. S. 1, 39 L. ed 22 See infra, § 403. and Chapter 325; U. S. v. Trar^Missoun Freight on Writs of Error and Appeals. Ass'n., 106 U. S. 290, 41 L. ed. 1007 ; Fed. Prac. Vol. I.— 2. 18 ORIGINAL JURISDICTION. u proceedings involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty. And the judgment or decree of any such court in favor of any claimant to an allotment of land shall have the same effect, when properly certified to the Secretary of the Interior, as if snch allotment had been allowed and approved by him; but this provision shall not apply to any lands now or heretofore held by either of the Five Civilized Tribes, the Osage Xation of Indians, nor to any of the lands within the Quapaw Indian Agency: Provided, That the right of appeal shall be allowed to either party as in other cases. Twenty-fifth. Of suits in equity brought by any tenant in common or joint tenant for the partition of land in cases where the United States is •me of such tenants in common or joint tenants, such suits to be brought in the district in which such land is situated." 24 They have also jurisdiction of proceedings to condemn for na- tional public uses land within their respective districts ; 25 con- currently with the State courts, of proceedings for the naturali- zation of aliens, 25 and of suits by beneficial purchasers of land U. S. v. Joint Traffic Ass'n., 171 U. S. 505, 43 L. ed. 259; Addyston Pipe & Steel Co. v. U. S., 175 U. S. 211, 44 L. ed. 136; Montague & Co. v. Lowry, 193 U. S. 38, 48 L. ed. 608; Northern Securities Co. v. U. S.. 193 U. S. 197, 48 L. ed. 679; Minnesota v. Northern Securities Co.. 194 U. S. 48, 48 L. ed. 870; Swift & Co. v. U. S., 196 U. S. 375. 49 L. ed. 518; Loewe v. Lawlor, 208 U. S. 274, 52 L. ed. 488; Shaw- nee Compress Co. v. Anderson, 209 {'. S. 423, 52 L. ed. 865; Continental Wall Paper Co. v. Voight & Sons Co.. 212 U. S. 227, 53 L. ed. 486: U. S. v. Lehigh Valley P. P. Co. 220 U. S. 257. 55 L. ed. 45S ; Standard Oil Co. v. U. S.. 221 U. S. 1, 55 L. ed. 619, 34 L.P.A.iX.S.) 834: U. S. v. Am. Tobacco Co.. 221 U. S.. 106, 55 L. ed. 663: U. S. v. Union Pac. R. P. Co.. 226 U. S. 61, 57 L. ed. 53; 8. c, 226 U. S. 470. 57 L. ed. 90; U. S. v. Patten, 226 U. S. 525, 57 L. ed. — ; U. S. v. Reading Co., 226 U. S. 324, 57 L. ed. 90; U. S. v. Jellico Mountain Coke & Coal Co., 43 Fed. 898; s. c, 12 L.R.A. 753, 46 Fed. 432; Bigelow v. Calumet & Hecla Min. Co., 155 Fed. 869. See American Biscuit & Mfg. Co. v. Klitz, 44 Fed. 721, 725, 726. 24Jud. Code, § 24, 36 St. at L. 10S7, as amended by 37 St. at L. part 2, p. 46. 25 25 St. at L. Ch. 728, p. 357. See infra, § 486. 26.34 St. at L. 596, .Comp. St. Supp. 1909, p. 477. See U. S. v. Ojala, C. C. A., 182 Fed. 51. It lias been held: that a suit to cancel a certificate of naturalization is a spe- cial proceeding and that the plead- ings and procedure may be moulded in any way which seems best cal- culated to meet the needs of justice, but that the proof must be of the 5] DISTRICT COURTS. 19 erroneously patented under railroad or wagon land grants to establish their rights to such land. 27 "The district courts and the United States commissioners shall have power to carry into effect, according to the true intent and meaning thereof, the award or arbitration or decree of any consul, vice consul, or commercial agent of any foreign nation, made or rendered by virtue of authority conferred on him as such consul, vice consul, or commercial agent, to sit as judge or arbitrator in such differences as may arise between the cap- tains and crews of the vessels belonging to the nation whose in- terests are committed to his charge, application for the exercise of such power being first made to such court or commissioner, by petition of such consul, vice consul, or commercial agent. And said courts and commissioners may issue all proper reme- dial process, mesne and final, to carry into full effect such award, arbitration, or decree, and to enforce obedience thereto by imprisonment in the jail or other place of confinement in the district in which the United States may lawfully imprison any person arrested under the authority of the United States, until such award, arbitration, or decree is complied with, or the par- ties are otherwise discharged therefrom, by the consent in writ- ing of such consul, vice consul, or commercial agent, or his suc- cessor in office, or by the authority of the foreign government appointing such consul, vice consul, or commercial agent: Pro- vided, however, That the expenses of the said imprisonment and maintenance of the prisoners, and the cost of the proceedings, shall be borne by such foreign government, or by its consul, vice consul, or commercial agent requiring such imprisonment. The marshals of the United States shall serve all such process, and kind and force required to set aside a judgment, U. S. v. Mansour, 170 Fed. (570. That the subpoena which, under § 5 of the act, the clerk is authorized to issue, is the ordinary subpoena ad testificandum and that where one of the witnesses specified in the published notice cannot be produced the petitioner can substi- tute another whose name has not been posted, and that no postpone- ment of the hearing is then re- quired, Re Neugebauer, 172 Fed. 943. That the declaration of an in- tention to become a citizen of the United States is not a part of a judicial proceeding and that a de- fect in the same cannot be subse- quently cured by an amendment nunc pro tunc. Re Stack. 200 Fed. •330. 27 Act of March 2, 1800. 20 St. at L. Ch. 39, p. 42: Oregon & C. R. Co. v. U. S., C. C. A. 144 Fed. 832. 20 ORIGINAL JURISDICTION. [§ 5 do all other acts necessary and proper to carry into effect the premises, under the authority of the said courts and commis- sioners." 28 The District Courts have also jurisdiction, by re- moval from the State courts, of all cases in which they have original jurisdiction and of which the State courts have concur- rent jurisdiction, with the exception of those arising under the Employers' Liability Act of April 22nd, 1908. 29 Such suits of the latter class when brought in a State court, cannot be removed to any court of the United States. 30 The District Courts have also other jurisdiction, by removal, of certain civil and criminal cases. 31 This will be described in the subsequent chapter on the removal of causes. It has been held that such a court has in- herent jurisdiction to punish as a contempt the unlawful ouster of the court, its officers and records, from the rooms of a public building, where they are located, and as an incidental to the contempt proceedings it may issue a stay order against such a removal. 32 Such courts have also jurisdiction to compel the at- tendance of witnesses and the production of books or papers, be- fore the Interstate Commerce Commission 33 or the Commission- er of Corporations, 34 and investigations under the Anti-Monop- oly Law, 35 and in aid of the assessment of the Corporation In- come Tax. 36 The District Courts have also certain ancillary ju- risdiction which is hereinafter considered. 364 "The district courts f-hall have appellate jurisdiction of the judgments and orders of United States commissioners in cases arising under the Chinese exclusion laws." 37 "The district court for the district of Wyo- ming shall have jurisdiction of all felonies committed within the Yellowstone National Park and appellate jurisdiction of judg- ments in cases of conviction before the commissioner authorized to be appointed under section five of an Act entitled 'An Act 28Jud. Code, § 271, 36 St. at L. 34 32 St. at L. 825, 828; infra, ]087. § 339 - 29 Jud. Code, § 28, 30 St. at L. 35 26 st - at L - 209 > Com P- st - ]087 _ 1901, p. 3200; 34 St. at L. 798, 30j 1)id Comp. St. Supp. 1911, pp. 1319, 31 Ibid SS 30-34 1320; infra > § 339 - ,,t> T ' , ' , on (0 36 Act of August 5, 1909, 36 St. 32 Re Lyman, 5o l'ed. 29, 43. . _ & 33 32 St. at L. 847, § 3, 10 Fed. *„„'.*, 36a § 5 1 , Itl j ret . St. Ann. 170, Comp. St. Supp. 1911, MT ., „ , .-.„, .,,. „, , T 1 ' 37 j lK i. Code, § 2o, 36 St. at 1-. pp. 1309. 1312, Pierce Fed. Code, ^ ^ , Qn ^ § 6453; infra, § 339. of Errorg and Appea]g §5] DISTRICT COURTS. 21 to protect the birds and animals in Yellowstone National Park, and to punish crimes in said IV. rk, and for other purposes/ ap- proved May seventh, eighteen hundred and ninety-four.'' 'The district court of the United States for the district of South Da- kota shall have jurisdiction to hear, try, and determine all ac- tions and proceedings in which any person shall be charged with the crime of murder, manslaughter, rape, assault with intent to kill, arson, burglary, larceny, or assault with a dangerous weap- on, committed within the limits of any Indian reservation in the State of South Dakota." 39 "The jurisdiction vested in the courts of the United States in the cases and proceedings hereinafter mentioned, shall be ex- clusive of the courts of the several States : First. Of all crimes and offenses cognizable under the author- ity of the United States. Second Of all suits for penalties and forfeitures incurred under the laws of the United States. Third. Of all civil causes of admiralty and maritime juris- diction ; saving to suitors, in all cases, the right of a common- law remedy, where the common law is competent to give it. Fourth. Of all seizures under the laws of the United States, on land or on waters not within admiralty and maritime juris- diction ; of all prizes brought into the United States ; and of all proceedings for the condemnation of property taken as prize. Fifth. Of all cases arising under the patent-right, or copy- right laws of the United States. Sixth. Of all matters and proceedings in bankruptcy. Seventh. Of all controversies of a civil nature, where a State is a party, except between a State and its citizens, or between a State and citizens of other States, or aliens. Eighth. Of all suits and proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, or against consuls or vice-consuls. The Bankruptcy Act provides: '"Suits by the trustee shall only be brought or prosecuted in the courts where the bankrupt, whose estate is being administered by such trustee, might have brought or prosecuted them if proceedings in bankruptcy had not been instituted, unless by consent of the proposed defendant, 38 ibid. § 26. 40 Jud - Code - § 256 > 36 st - at L ' 39 Ibid. § 27. 1087 - 22 ORIGINAL JURISDICTION. [§ o except suits for the recovery of property under section sixty, subdivision b, section sixty -seven, subdivision e, and section seventy, subdivision e." 41 The jurisdiction of the District Courts is restricted in most instances by the residence of the parties or of their assignors. These restrictions are hereinafter considered. 42 § 6. Value of the matter in dispute. In General. The value of the matter in dispute in suits brought in the District Courts of the United States or removed thereto, when the juris- diction depends upon difference of citizenship, or because the case arises under the Constitution or laws of the United States or treaties made under their authority, must ordinarily exceed, ''exclusive of interest and costs, the sum or value of three thou- sand dollars." 1 The exceptions are stated in the preceding sec- tion. 2 This enlarges the former jurisdiction from two thousand to three thousand dollars, and the statute does not apply to cases pending when it was passed, nor to causes of action that arose prior to February 1st, 1912. 3 The matter in dispute must be of such a nature as to be capable of being reduced to a pecu- niary standard of value. 4 Such is not the right to personal lib- erty. Consequently, an application for the writ of habeas cor- pus cannot be removed ; 5 and the writ of habeas corpus cannot issue originally from a District Court of the United States, to determine the right to the custody of a child, or in any other case, when it is not authorized by statute. 6 Nor the right to a "Act of July 1, 1898, 30 St. at L. 544, § 23b as amended by Act of February 5, 1903, 32 St. at L. 797, and Act of June 25, 1910, 36 St. at L. 838. See Chapter on Bank- ruptcy, infra. 42 See infra, §§ 62, 63. § 6. 1 Jud. Code, § 24, 36 St. at L. 1087. 2 Supra, § 5. 3 Jud. Code, § 299, 36 St. at L. 1087; Taylor v. Midland Valley R. Co., 197 Fed. 323. 4 Kurtz v. Moffitt, 115 U. S. 487, 29 L. ed. 458. See also Snow v. U. S., 118 U. S. 346, 354, 30 L. ed. 207, 209; In re Burrus, 136 U. S. 586, 593, 597, 34 L. ed. 500, 503, 514; Perrine v. Slack, 164 U. S. 452. 454, 41 L. ed. 510, 511 ; Whitney v. Dick, 202 U. S. 132, 50 L. ed. 963; Ex parte Evert, 1 Bond. 197: In re Barry, 42 Fed. 113; Clifford v. Wil- liams, 131 Fed. 100. Such is not the right to compel the Secretary of State to assert a claim by the petitioner against a foreign govern- ment. U. S. ex rel. Holzondorf v. Hay. 194 U. S. 373, 48 L. ed. 1025 (appellate jurisdiction). 5 Kurtz v. Mofiitt, 115 U. S. 487, 29 L. ed. 458. 6 Clifford v. Williams. 131 Fed. 6] MATTER IN DISPUTE. 23 divorce. 7 It has been said : that in a suit for a divorce, where the plaintiff prays alimony charging, that the defendant is the owner of valuable real estate and property interests, and also re- ceives a yearly income of not less than $10,000 ; it does not ap- pear that the value of the matter in dispute exceeds the sum of $2,000, since it is uncertain what amount of alimony the court may allow, and the alimony is only an incident to the right to a divorce. 8 The same rule has been applied, by a State court, upon an application to remove a suit to set aside a decree of divorce. 9 It has been held that, for a similar reason, a suit by a stockholder to compel the corporation to permit him to inspect its books and records is not removable, 10 but that the value of the right to appeal from the probate of a will is at least equal to the share of the appellant in case the decedent had died in- testate. 11 The value of the matter in dispute is not the amount of any contingent loss or damage which one of the parties may sus- tain by a decision against him ; but the amount in dispute be- tween the parties to the pending suit. 12 Thus, the reason that, <»n account of its probative force, the judgment may operate as an estoppel in a subsequent proceeding; 13 or affect his rights against a stranger to the suit ; " does not increase the value of the matter in dispute. In a suit by a State treasurer, to recover a balance of unpaid taxes, less than the jurisdictional amount, where the defense was, that the defendant had tendered, in pay- 100. See In re Burrus, 136 U. S. 586, 593, 597, 34 L. ed. 500, 503, 514; Perrine v. Slack, 164 U. S. 452, 454, 41 L. ed. 510, 511; Ex parte Evert, 1 Bond, 197 ; In re Barry, 42 Fed. 113; also reported 136 U. S. 597, 34 I,, ed. 514. 7 Johnson v. Johnson, 13 Fed. 193. The court might, however, take ju- risdiction of a suit to enforce a de- cree awarding alimony. Barber v. Barber, 21 How. 5S2, 16 L. ed. 226. 8 Bowman v. Bowman. 30 Fed. 849. 9 Caswell v. Caswell. 120 111. 377, 11 N. E. 342. 10 Whitney v. Am. Shipbuilding Co., 197 Fed. 777. 11 Erwin v. Walsh, 27 Fed. 579. 12 Ross v. Prentiss. 3 How. 771, 772, 11 L. ed. 824; Elgin V. Mar- shall, 106 U. S. 579, 27 L. ed. 249; Bruce v. M. & K. R. Co., 117 U. S. 514. l3FJ> 82 p e d. 209. & N. W. Ry. Co., 115 U. S. 611, 616, For Nvliat j s sullicient evidence of 29 L. ed. 502, 504: Smith v. Green- „ ood f a ith, see Peeler v. Lathrop r how, 109 U. S. 609, 27 L. ed. 1080; 84 Fed. 780; infra, § 303. Mayor, etc., of Baltimore v. Postal 6 Wilson v. Daniel. 3 Dallas 401, Tel. C. Co., 02 Fed. 500; Bank of 407, 1 L. ed. 655, 657. Arapahoe v. David Bradley & Co., 72 7 Barataria Canning Co. v. Louis- Fed. 807; Shields v. McCaudlish, ville & N. R. Co., 143 Fed. 113. 30 ORIGINAL JURISDICTION. [§ 7 formed, were too remote and must be excluded from considera- tion in the estimate of the jurisdictional amount. 8 Upon a complaint alleging that plaintiff employed defendant to locate him on a half section of government land, which he entered under the homestead and timber acts, for which service he paid defendant $200, and seeking to recover damages for false and fraudulent representations as to the quantity and quality of limber on such land; it was held, that it did not state a cause of action for the recovery of damages, beyond the amount paid defendant, if there could be any recovery, and that the action was not within the jurisdiction of a ederal court, although the damages were laid in a sum exceeding the jurisdictional amount. 9 An action was brought by a city in a State court, to recover a tax of $2 for each of 50!) telegraph poles main- tained in the streets; but the declaration concluded: "And plaintiff claims $10,000." It was held, that the actual amount in dispute was but the amount of the tax, $1,018, and that the Federal Court could not take jurisdiction by removal. 10 The law of Arkansas having limited plaintiff's recovery, in an ac- tion of unlawful detainer, to the rent due at the commencement of the suit and up to the time of rendering judgment, or the value of the occupation during the time of the unlawful deten- tion of the premises, with damages for withholding the same ; it was held, that a Federal court, in that State, does not have jurisdiction of such an action, when the complaint alleges that the amount due is the rent for nine months at $25 per month, 11 although damages are also claimed in a sum exceeding the juris- dictional amount, without showing that plaintiff is entitled to anything but actual damages. 12 A cause is not removable, when the prayer for relief asks for "$3,000 and all other proper relief;" if, under the pleadings, no other relief can be granted. 13 Where the State practice allows no greater damage than that [.rayed, the value of the matter in dispute will be considered to be no more than the amount stated in the plaintiff's praver for 8 North American Transporta- U Sand. & H. Digest. 670. § 345S. tion & Trading Co. v. Morrison. ITS 12 Battle v. Atkinson, 115 Fed. l : . S. 262. 44 L. ed. 1061. 384; aff'd. 101 U. S. 559, 48 L. ed. 9 Wines v. Cobb Real Estate Co.. 302. 128 Fed. 108. 13 Baltimore & O. R. Co. v. Wor- 10 Baltimore v. Postal Tel. Cable man. 12 Iml. (App.), 494, 40 N. E. Co., 62 Fed. 500. 751. § 7] MATTER IN DISPUTE. 31 relief, although the body of the complaint contains allegations showing greater damages. 14 In a suit for the conversion of property, upon which plaintiff claimed liens, where the several liens were specifically set forth, and aggregated less than the jurisdictional amount; it was held that a Circuit Court of the United States was without jurisdiction, although the dam- ages claimed were the amount of a previous judgment establish- ing the liens against the original debtor for a sum, including interest and other expenses, exceeding the same to which judg- ment the defendants, who had subsequently acquired the prop- erty, were not parties. 15 In an action for the denial of the right to vote; 16 or for false imprisonment; 17 or for assault and bat- tery; or in any other case in which exemplary damages may properly be awarded, the law prescribes no limitation to the amount that can be. recovered, and the amount claimed by the plaintiff is the sole criterion to which resort can be had in set- tling the question of jurisdiction. 18 In an action for damages resulting from the death of plaintiff's husband and father, the sum named and prayed for was " thousand dollars ;" it was held, that it did not appear that the case involved the juris- dictional amount. 19 Where the plaintiff brought his action in the Circuit Court of the United States claiming that it sounded in tort, in which exemplary damages might be allowed and that consequently, the matter in dispute exceeded the jurisdictional .tmount, which otherwise w T ould not have been the case ; it was held, that he was estopped from contending, after the defend- ant's death, that it was not in tort, but in contract; and that, therefore, it might be revived. 20 14 Simmons v. Mutual Reserve Fund Life Ass'n, 114 Fed. 785; Swami v. Mutual Reserve Fund Life Ass'n, 110 Fed. 232; Barber v. Boston & M. R. Co., 145 Fed. 52. 15 Bergman v. Inman, Poulsen & Co.. 91 Fed. 203. 16 Wiley v. Sinkler, 179 U. S. 58, 21 8. Ct. 17. 45 L. ed. 84. 17 Hynes v. Brigga, 41 Fed. 468. 18 Wilson v. Daniel. 3 Dallas 401, 407, 1 L. ed. 655, 057 ; Barry v. Ed- munds. 116 U. S. 550. 560, 29 L. ed. 729. 732. In an action for damages because of the circulation of a muti- lated map with plaintiff's name, where the complaint did not show special damage, it was held that no more than nominal damages could be recovered and that the jurisdic- tional amount was not involved. Oliraan v. City of New York. 168 Fed. 953. 19 Varde v. Baltimore & O. R. Co., 57 Fed. 9 13. 20 Iron Gate Bank v. Brady. 184 U. S. 665, 46 L. ed. 739. 32 ORIGINAL JURISDICTION. [§ 8 § 8. Value of the matter in dispute in ejectment, and other suits to obtain the possession of land. It has been held: that, in ejectment, the value of the matter in dispute is that of the interest in the land, to recover which the suit is brought; although the defendant claims a less interest, 1 or only an easement 2 in the same ; together with any special damages that are alleged, and can be recovered in the suit. 3 It has been held : that where a bill to recover an interest in lands alleged, "'that complainants are informed and believe that the whole of said lands are worth $12,000, and the amount demanded by them herein is more than $2,000" was argumentative; since it left the court to make a calculation, and was insufficient to show the jurisdiction. 4 Under the former statute where in an action involving the title to land, the plaintiff claimed the right there- to without making a payment of $2,200, demanded by one of the defendants, it was held, that the action was one involving more than $2,000 and was removable. 5 Where no special acts of damage are pleaded, only nominal damages can be recovered; and the amount of damages alleged in general language cannot affect the value of the matter in dispute. 6 Where the manner in which the land is used enhances its value to the defendant, that fact must be taken into consideration in the estimate. 7 It has been held : that in an action of unlawful detainer in Arkansas, in the absence of an allegation of special damages, the value of the matter in dispute is no more than the amount of two years' rents, or the rental value for two years of the property in ques- tion, irrespective of its fee value. 8 § 8. l\Vay v. Clay, 140 Fed. 352. See Vieksburg, S. & P. R. Co. v. Smith, 135 U, S. 195, 34 L. ed. 95; Dupree v. Leggette. 140 Fed. 77ti. Contra, Thompson v. Ken- drick's Lessee, »i Tenn, (5 Bawy.) 113. See Jones v. Rowley. 73 Fed. 286. 2 Greene v. Taeoma, 53 Fed. ~>'>2 : Butters v. Carney, 127 Fed. (122. See Vieksburg, S. & P. R. Co. v. Smith. 135 I . S. 195, 34 L. ed. 95. 8 See Wa\ v. Clay, 140 Fed. 352. 4 Dupree v. Leggette, 140 Fed. 776. 5 Withers v. Johns Hopkins Place Sav. Bank, 30 S. W. 766. 6 Way v. Clay, 140 Fed. 352: Elk Garden Co. v. T. W. Thayer Co., 179 1 rd. 556. under Virginia Code 1904, §§ 2750, 2751. 7 Greene v. Taeoma, 53 Fed. 562: King v. Southern Ry. Co., 119 Fed. 1016. 8 Battle v. Atkinson, 115 Fed. 3S4: affirmed 191 U. S. 559, 48 L. ed. 302. § 10] MATTER VE[ DISPUTE. 33 § 9. Value of the matter in dispute in action to recover possession of personal property. In an action or proceeding to recover the possession of personal property, it seems, that the value of the property sought by the plaintiff, or by the claim- ant, is that of the matter in dispute. 1 It is not enlarged by a claim of special damages for injury to plaintiff's business, when the State practice would not allow the recovery thereof. 2 In replevin to collect rent by distress, the sum claimed as rent, if Jess than the value of the property replevied, but where replevin is brought as a means of trying the title to property, then the value of the whole; is the pecuniary test of jurisdiction. 3 In a suit to compel the issue to complainant of a certificate for cor- porate stock, and the cancellation of a certificate previously issued to another, the par value of the stock was held to be the value of the matter in dispute. 4 In a suit to compel inspectors to allow complainant an examination for a pilot's license, which they had refused to do, where the complaint alleged that the complainant was thereby -deprived of a right given him by the laws of the United States, to his damage in "over one thousand dollars," and no objection was made in the court of first in- stance because of the inadequacy of the matter in dispute ; it was held upon appeal that it might be inferred that the damages would exceed the jurisdictional amount. 5 In an action to re- cover a claim of less than $2,000, begun by an attachment of property worth more, claimed by a receiver who removed the cause, it was held, that the value of the whole property was that of the matter in dispute. 6 § 10. Value of the matter in dispute in suits of fore- closure. In a suit to foreclose a mortgage or other lien, the amount in dispute, for the purpose of determining the jurisdic- § 9. 1 Peyton v. Robertson, 9 3 Peyton v. Robertson. 9 YVhea- Wheaton, .527, 6 L. ed. 15] ; Gibson ton, 527, 6 L. ed. 151; approved Gib- v. Shufeldt, 122 U. S. 27, 29, 30 L. son v. Shufeldt, 122 U. S. 27, 29, 30 ed. 1083, 1084; Hoover & Allen Co. L. ed. 1083, 1084. v. Columbia Straw-Paper Co., 68 * Ryan v. Seaboard & R. R. Co. Fed. 945; Ryan v. Seaboard R. R. 89 Fed. 397. Co., 89 Fed. 397. 5 Williams v. Molther, C. C. A., 2 Vance v. W. A. Vandercook Co., 198 Fed. 400. 170 U. S. 468, 42 L. ed. 1111, 18 S. 6 Hoover & Allen Co. v. Colum- Ct. 645 ; reversing 80 Fed. 786. bia Straw-Paper Co., 68 Fed. 945. Fed. Prac. Vol. I.— 3. 34 ORKMXAL JUEISDICTION. [§ 11 tion, is the sum sought to be recovered through the lien; 1 to- gether with anv damages not covered bv the -lien, for which judgment is prayed. 2 But it was held that a suit by the vendor upon a contract to pay for land in installment-, where the com- plaint prayed the court to ascertain the aim unit due and to become due and to fix a time for its payment, in default of which defendant "be foreclosed of all right or title to interest in or lien upon said land;" was brought not for foreclosure, but to determine the rights of the parties in the land, and that the value of the real estate, not the amount due, was the matter iu dispute. 3 In a suit to foreclose a mortgage securing the sum of $2,000, the bill alleged that plaintiff advanced an additional $2.25 to pay the fee for recording the mortgage, "for which de- fendant is liable to him." It was held: that the averment of liability was a mere conclusion of law; and that, the bill, there- fore, failed to show that more than $2,000 was involved. 4 The value of the matter in dispute is not limited by the value of the property subject to the lien or mortgage. 5 § 11. Value of the matter in dispute in suits to redeem. In a suit to redeem land, the value of the equity of redemption is the value of the matter in dispute. 1 Where the bill prayed, that a trust deed purporting to be security for a loan and a sub- sequent deed executed upon a foreclosure thereof be set aside, or in the alternative, that complainants be permitted to redeem on payment of the mortgage deed, interest and costs; it was held, that the value of the matter in dispute was that of the land. not the amount required to redeem. 2 § 12. Value of the matter in dispute in suits to quiet title. In a suit to quiet title or to remove a cloud therefrom, the value of the matter in controversy is that of so much of plaintiff's property as is affected by the adverse claim. 1 Where § 10. IGibson v. Shufeldt, 122 * Less v. English. 85 Fed. 471. 29 U. S. 27. 30, 30 L. ed. 1083. 10S4 ; C. C. A. 273. Stillweli; B. & S. V. Co. v. Williams- 5 Stillwell-Bierce & Smith-Vaile ton, O. & F. Co., 80 Fed. 08; Wake- Co. v. Williamston Oil & Fertilizer man v. Throckmorton, 124 Fed. Co.. 80 Fed. 68. 1010. § 11. iCarne v. Russ, 152 U. ZLilienthal v. McCormick, 117 S. 250, 38. L. ed. 428. Fed. 89, 54 C. C. A.. 475. 2 Greenfield v. U. S. Mtg. Co., 3 Squire v. Robertson, 191 Fed. 133 Fed. 784. 733. § 12. 1 Parker v. Morrill, 106 § 12] MATTER IX DISPUTE. 35 the land was part of a railroad's right of way, one hundred feel distant from its tracks, which had never been used in the op- < ration of the railroad; it was hel'd that the value of that part of the land, not the value of the company's right to operate the railroad, was that of the matter in dispute. 2 In a suit to cancel ? paper purporting to be a marriage contract, which, if valid, gave the alleged wife an interest in the property of the plain- liff, it w T as held, that the amount of the provision, which the wo- man would be entitled to receive were the contract held binding, was the value of the matter in dispute. 3 Where plaintiff sued to quiet title and to set aside a deed of trust on certain land, and also to vacate a deed executed to the purchaser under fore- * closure of such deed of trust, but asked in the alternative that, if the deeds bo not set aside, she be permitted to redeem on payment of the mortgage debt, interest and costs ; it was held, that the amount involved was the value of the land, and not the amount required to redeem. 4 Allegations in a complaint for the cancellation of a lease, and to enjoin the lessees from using the premises : that the value of the leased premises was $10,000 ; and that the rental value of the property was $2,400 a year; it was held, were sufficient to give jurisdiction to the Federal court. 5 It was held: that the Circuit Court has no jurisdiction of a suit to correct an ambiguity in the deed of a railroad right of way, and to restrain the removal of gates at a crossing in the enclosure thereof, where the value of the realtv and the damage accruing to adjacent property from the road's construction were not shown to exceed the jurisdictional amount; and the fact that animals might stray on the track through the threat- ened openings in the enclosure, and cause wrecks occasioning great damage, did not help the case; since, when jurisdiction L'. S. 1, 27 L. ed. 72; Lehigli, Z. & Co., 125 Fed. 970: Building & Loan I. Co. v. X. J. Z. & I. Co., 43 Fed. Ass'n of Dakota v. Cunninham 545; Simon v. House. 46 Fed. 317; I Texas 189S|, 47 S. YV. 714. Riggs v. Clark, 71 Fed. 560, 18 C. C. 2 Union Pac. R. Co. v. Cunning- A. 242, 37 U. S. App. 626; Felch v. ham, 173 Fed. 90. Travis, 92 Fed. 210: Woodside v. Ci- 3 Sharon v. Terry, 3(5 Fed. 337. ceroni, 93 Fed. 1, 35 C. C. A. 177; See Fidelity & Deposit Co. v. Mo- ( ' (1 \vell v. City Water-Supply Co., shier. 151 Fed. S06. 96 Fed. 769: Cowell v. City Wa- * Greenfield v. U. S. Mtg. Co., 133 ter-Supply Co.. 121 Fed. 53, 57 C. Fed. 784. C. A. 393; FIvde v. Victoria Land 5 Reese v. Zinn. 103 Fed. 97. 36 ORIGINAL JURISDICTION. [§ 13 depends on a particular sum, suits "where the right involved cannot be calculated in money are not within it. 6 In suits to set aside, as clouds upon the title to lands ; a tax ; 7 an assess- ment for a street improvement ; 8 and to cancel certain street improvement certificates; 9 it was held, that the amount of the tax, assessment and certificates, respectively, was the value of the matter in dispute; not the value of the lands affected. 10 § 13. Value of the matter in dispute in suits for injunc- tions. In a suit for an injunction, the value of the matter in dispute is that of the object of the bill, 1 namely, the value, to the plaintiff, of the right for which he prays protection ; 2 or the value, to the defendant, of the acts of which the plaintiff prays prevention ; 3 together with the amount of the damages which 6 Oregon R. & Nay. Co. v. Shell, 125 Fed. 979. 1 Douglas Company v. Stone, 191 1". S. 557; s. c, 110 Fed. 812; Pur- nell v. Page, 128 Fed. 496; Turner v. .Jackson Lumber Co., C. C. A., 159 Fed. 923. 8 Eachus v. Hartwell, 112 Fed. 564. 9 Shewalter v. Lexington, 143 Fed. 161. 10 See infra, §§ 13-16. § 13. 1 Western Union Tel. Co. v. City Council, 56 Fed. 419. 420; citing with approval Foster's Fed. Pr.. (2nd ed.) § 16. 2 Bitterman v. Louisville & N. R. Co.. 207 U. S. 205, 52 L. ed. 171 ; Oleson v. Northern Pac P. Co.. 44 Fed. 1: Herbert v. Eainey, 54 Fed. J4S: Nashville, C. & St. L. Ry. Co. v. McConnell, 82 Fed. 65; Von Schroeder v. Brittan, 93 Fed. 9; Humes v. City of Fort Smith, Ark., 93 Fed. 857: Maffet v. Quine, 95 Fed. 199; denying rehearing, 93 Fed. 347; State of Arkansas v. Kansas & T. Coal Co., 96 Fed. 353; Delaware, L. & W. R. Co. v. Frank. 110 Fed. 6S9: Riverside & A. Ry. Co. v. City of Riverside, 118 Fed. 736; American Fisheries Co. v. Len- nen, 118 Fed. 869; Cowell v. City Water-Supply Co., 121 Fed. 53, 57 C. C. A. 393 : reversing decree 96 Fed. 769: McKee v. Chautauqua Assembly. 124 Fed. 808: State v. Frost, S9 N. W. 915, 113 Wis. 623; Morris v. Bean, 146 Fed. 423; Spaulding v. Evenson, 149 Fed. 913: Rocky Mountain Bell Tel. Co. v. Montana Federation of La- bor, 156 Fed. 809; Northern Pac. Ry. Co. v. Pacific Coast Lumber Mfrs. Ass'n., C. C. A., 165 Fed. 1, 11, the right to maintain a schedule of charges for transportation. 3 Cowell v. City Water-Supply Co. C. C. A., 121 Fed. 53. 57 C. C. A. 393; reversing decree 96 Fed. 769; Am. Smelting & Refining Co. v. God- frey C. C. A., 158 Fed. 225. 14 Ann. Cas. 8 ; Mississippi & Mo. R. R. Co. v. Ward, 2 Black. 485, 17 L. ed. 311; Whitman v. Hubbell, 30 Fed. 81; Oleson v. Northern Pac. R. Co.. 44 Fed. 1 : Rainey v. Herbert, C. C. A., 55 Fed. 443; American Fisheries Co. v. Lennen. 118 Fed. S09: Amelia Milling Co. v. Tennessee Coal, Iron & R. Co.. 123 Fed. Sll: Memphis v. Postal Tel. Cable Co.. C. C. A., 146 Fed. 602. 13] MATTER IN DISPUTE. 37 the plaintiff claims that he has already sustained and prays to have awarded to him. 4 It is not limited by the amount of damages claimed by the plaintiff to have already accrued 5 . When the value of the right sought to be protected is uncertain, the averment in the bill upon that subject will usually govern, 6 provided it can be reasonably inferred to have some pecuniary value; but where a right, such as that to inspect the books or records of a corporation, is ordinarily not one of pecuniary value, the rule is otherwise. 7 In a bill by the owner, to enjoin a trespass, which it was alleged would entirely destroy the use of certain land ; it was held, that the value of the land was the test. 8 Where a mortgagor sued to enjoin the sale of land under a mortgage, which it was claimed was void; it was held, that the value of the matter in dispute was that of the mortgage, al- though the suit also prayed judgment against the defendant for monev usurionsly charged and received bv it, which was less than the jurisdictional amount. 9 In a suit by a mortgagee, to enjoin an act which he claimed would impair the value of his securitv, it was held: that the amount of the damage, which would result from the threatened act, was the test. 10 In a suit to enjoin the illegal seizure of imported liquors ; the value to the plaintiff of the right to make such importations, and of the articles, which he intended to import and which defendants threatened to seize. 11 When a railroad company sued to enjoin the collection of penaliies of $500 each by a commission and a 4 Scott v. Donald, 165 U. S. 107, 115. 41 L. ed. 648, 654. 5 Scott v. Donald, 1 65 U: S. 107, 115, 41 L. ed. 648, 654: Whitman v. Hubbell. 30 Fed. 81; Rainey v. Her- bert, 55 Fed. 443; Nashville, C. & St. L. Ry. Co. v. McConnell, 82 Fed. 65; American Fisheries Co. v. Len- nen, 118 Fed. 869; Rocky Mountain Bell: Tel. Co. v. Montana Federa- tion of Labor, 156 Fed. 809. 6 Texas & P. Ry. Co. v. Kuteman, 54 Fed. 547; Studebaker v. Salina Waterworks Co., 195 Fed. 164: Mar- tin v. City Water Co., 197 Fed. 462; both of which involved the right to measure its charges by meters: En- Shipbuilding 56 Fed. 352: Co. v. Guil- ders v. Supreme Lodge Knights and Ladies of Honor, 176 Fed. S32. the right of an insurance association to levy an assessment. 7 Whitney v. Am. Co., 197 Fed. 777. 8 Smith v. Bivens, Northern Pac. Ry. ningham, 103 Fed. 708; Sheriff v. Turner. 119 Fed. 231. But see Hagge v. Kansas City S. Ry. Co., 104 Fed. 391. 9 Dickinson v. Union Mtg. & Tr. Co.. 64 Fed. 895. lOClapp v. Spokane, 53 Fed. 515. iiS^cott v. Donald. 165 U. S. 107, 115, 41 L. ed. 648, 654. 38 ORIGINAL JURISDICTION. [§ 1 shipper, alleging that the penalties, for which it would be sued in the future, would exceed the jurisdictional amount; and that the right sought to be protected was more than that amount; it was held, that the jurisdiction sufficiently appeared, although the dispute arose concerning demurrage to the amount of $146. 18 It was so held of a similar suit against a commissioner alone. 13 In a suit by a railroad company, to enjoin a shipper from a multiplicity of suits to recover overcharges; it was held, that the value of the matter in dispute was the value to the plaintiff of the right to maintain its schedule rates. 14 In a suit by the receiver of a water company to restrain a multiplicity of suits by customers to compel him to reduce the water rates ; it was held, that the value of the right to maintain his schedule rates was the test of jurisidction. 15 In suits by a railway com- pany, to enjoin the scalping or resale of non-transferrable tick- ets ; the value of the business sought to be protected was held to be the test. 16 In a suit to restrain the infringement of a trade- mark, the value of the trademark, and to compel an account of the profits; the value of the matter in dispute is the value of the trade-mark, not the amount of the profits which the defendant has derived from its use. 17 In a suit to enjoin the un- lawful use of a trade name; the damages already incurred, plus those which the bill alleged would be suffered in the future, unless the relief prayed was granted. 18 But in a suit to enjoin an unlawful use of complainant's trade name, where it was not alleged that the acts complained of would destroy the value of said name; the value thereof was held not to be that of the 12 McNeill v. Southern Ry. Co.. 202 U. S. 543. 548, 50 L. ed. 1142, 1145. 13 Railroad Commission v. Texas & P. Ry. Co., C. C. A., 144 Fed. 08. "Texas & P. Ry. Co. v. Kutc- man. C. C. A.. 54 Fed. 547. 15 Lanning v. Osborne. 70 Fed. 657. 16 Bitterman v. Louisville & X. R. Co.. 207 U. S. 205, 52 L. ed. 171 ; affirming Louisville & X. R. Co. v. Bitterman, C. C. A., 144 Fed. 34; Del., L. & W. R. Co. v. Frank. 110 Fed. G89. In a suit for specific per- formance of a contract to carry the complainants free during their lives, the value of the rij^ht to the same was held to be that of the matter in dispute. Mottley v. Lou- isville & X. R. Co., 150 Fed. 40G. 17 Symonds v. Greene, 28 Fed. 834: Hennessy v. Herrmann, 89 Fed. G69; Draper v. Skerrett, 110 Fed. 200. 18 Draper v. Skerrett, 116 Fed. 200. § 13] MATTER IN DISPUTE. 39 matter in dispute. 19 In a suit to enjoin the unlawful use of market quotations posted in the plaintiff's exchange; the value of the exclusive right to the same is the test. 20 In a suit to enjoin the cancellation of a contract, it was held, that the mat-, ter in dispute was the right to maintain the contract; which was to be measured by the profits, not by the gross receipts, from the defendant thereunder, nor by the cost to the plaintiff of prepa- ration to perform its part of the same. 21 But in another case, it was held : that the value of the matter in dispute was the amount, which the plaintiff had contracted to pay in cash upon an exchange of property. 22 In suit to enjoin the use, as a rail- road, of a highway, it was held: that the value of the matter in dispute was that of the use of the highway for the railway com- pany. 2 ' Where a suit was brought by a city against a telegraph company, to recover $1,772 for street rentals for the mainte- nance of defendant's poles and wires, and the bill prayed for the payment of the rentals or forfeiture of defendant's right in the streets, and that its occupation thereof should cease ; it was held, that the matter in controversy was not necessarily limited to the amount of the money sought to be recovered ; and hence that a certified petition of removal, stating that the value of the matter in controversy was more than the statutory amount, showed that the amount in eontroversv was sufficient to confer %J Federal jurisdiction. 24 In an action to abate a nuisance, it has been held: that the value of the article sought to be abated, or of the acts sought to be enjoined, is the test of the jurisdic- tion. 5 It has been said: that the amount involved, for jurisdictional purposes, in a suit to enjoin the maintenance of 19 Winchester Repeating Arms Co. 24 Memphis v. Postal Tel. Cable v. Butler, 128 Fed. 976. Co., C. C. A., 145 Fed. 002. 20 Board of Trade v. Cella Com- 25 Mississippi & Mo. R. R. Co. v. mission Co., C. C. A., 145 Fed. Ward. 2 Black, 485, 17 L. ed. 311 28, where an allegation that com- (a railroad bridge) ; Whitman v. o v plainant realizes $30,000 a year Hubbell, 30 Fed. 81 (an awning; from the right it sued to protect where the value of the right to use was held to be sufficient. tlie awning was held to be the test) : 21 Riverside & A. Ry. Co. v. Riv- Rainey v. Herbert, C. C. A., 55 Fed. erside. 118 Fed. 730, 737. 738, 743. 443 (coke ovens); Am. Smelting & 22[\irby v. Am. Soda Fountain Refining Co. v. Godfrey, C. C. A., Co.. 1»4 U. S. 141, 48 L. ed. 911. 158 Fed. 225, 14 Ann. Cas. 8. 23 (Meson v. Northern Pac. R. Co., 44 Fed. 1. 40 ORIGINAL JURISDICTION. [§ 14 11 nuisance, cannot be measured solely by the damage suffered by complainant ; nor by the actual outlay of money, which de- fendant would be required to make if the relief should be granted ; but the value of the right, of which he is sought to be deprived, is to be taken into consideration. 26 Where there was no allegation of the value of the structures sought to be abated, which were obstructions to navigation; and the damages alleged to have been suffered because of the same, prior to the beginning of the suit, were less than the jurisdictional sum; it was held : that the jurisdiction did not appear. 27 In a suit to enjoin the defendant from continuing a business, in violation of a contract with complainant, it was held: that the court had jurisdiction, where the value of the plant owned and operated by them, and the amount of their annual business, exceeded such amount. 28 In a suit in the nature of an interpleader, the pecuniary test of the jurisdiction is the amount claimed by the defendants, whom the complainant seeks to enjoin, not the amount which complaint admits to be due and seeks to deposit in court 29 § 14. Value of the matter in dispute upon taxpayers' bills. In a suit to enjoin the collection of a tax, the amount of the tax, not the value of the property which the defendant threatens to seize, 1 nor of that, the title to which is clouded, 2 is the test of jurisdiction. But, it has been held: that, where an injunction is sought against the collection of an annual tax or license fee, imposed upon a franchise or upon the right to ex- ercise a certain occupation, resistance to the payment of which would result in the destruction of the plaintiff's business; the 26 Amelia Milling Co. v. Tennes- see Coal, Iron & R. Co., 123 Fed* 811. 27 Kenyon v. Knipe, 46 Fed. 309. 28 American Fisheries Co. v. Len- nen, 118 Fed. 869. 29 Hayward & Clark y. McDonald. C. C. A., 192 Fed. 890. § 14. 1 Washington & G. R. Co. v. District of Columbia, 146 U. S. 227. 232, 36 L. ed. 951, 953; King v. Wilson. Fed. Cas. No. 7,810 (1 Dill. 5.35 i : Linehan Railway Trans- fer Co. v. Pendergrass, 70 Fed. 1, 16 C. C. A. 585, 36 U. S. App. 48; Eachus v. Hartwell, 112 Fed. 564; Field v. Barber Asphalt Pav. Co.. 117 Fed. 925; Turner v. Jackson Lumber Co., C. C. A., 159 Fed. 926; Risley v. City of Utica, 168 Fed. 737. 2 Douglas Company v. Stone, 191 U. S. 557, 24 S. Ct. S43, 48 L. ed. S01: s. c, affirming 110 Fed. 812; Eachus v. Hartwell, 112 Fed. 564: Purnell v. Page, 128 Fed. 496; Tur- ner v. Jackson Lumber Co., C. C. A., 159 Fed. 923. § 14] MATTEL IN DISPUTE. 41 value of the right to exemption, including the threatened dam- age to that business, not the amount of the tax or license fee which has accrued, is to be considered. 3 Upon a bill to enjoin an income tax upon a salary annexed to an office, claimed to be exempt; the specific tax sought to be enforced, not the right to exemption, was held to be the test. 4 It has been held, upon a bill to enjoin the collection of a land tax, filed by a corporation claiming an exemption; that the amount of the tax claimed to be already due was the sole, test, since it could not be assumed that the assessment for subsequent years would be for a like amount. 5 The cases conflict as to whether, in a suit to enjoin a municipality from issuing bonds or otherwise incurring in- debtedness, the pecuniary test of the jurisdiction is the amount of the tax, to which the complainant would be thereby subject- ed, or the whole debt, the creation of which complainant seeks to prevent. 6 In a suit to enjoin a municipality from issuing bonds, to an amount charged to be in excess of the constitutional limit of its indebtedness; the value of the power of the city to issue such bonds, not the tax to which the complainant would be thereby subject, was held to be the value of the matter in dis- pute. 7 It has been held: that upon a taxpayer's bill, to enjoin the execution of a contract for a public work ; the value of the 3 American Fertilizing Co. v. 6 In the following cases., the Board of Agriculture, 43 Fed. 609, amount of the plaintiff's tax was 11 L.R.A. 179; Western Union Tel. held to be the test: El Paso Wa- Co. v. City Council, 56 Fed. 419; ter Co. v. El Paso, 152 U. S. 157, Humes v. City of Fort Smith, Ark., 159, 3S L. ed. 396, 397; Colvin v. 93 Fed. 857; Southern Exp. Co. Jacksonville, 158 U. S. 456, 460; v. City of Ensley, 116 Fed. 756; Adams v. Douglas County, Fed. Cas. Hutchinson v. Beckham, 118 Fed. No. 52; McCahon, 235, 1 Kan. 627; 399, 55 C. C. A. 333; Berryman v. Murphy v. East Portland, 42 Fed. Board of Trustees of Whitman Col- 308. lege, 222 U. S. 334; Postal Tele- 7 Ottumwa v. City Water-Supply graph-Cable Co. v. City of Mobile, Co., C. C. A, 59 L.R.A. 604, 119 Fed. 179 Fed. 955; Jewel Tea Co. v. Lee's 315; City of Helena v. Helena Wa- Summit, Mo., 198 Fed. 532. terworks Co., C. C. A., 173 Fed. 18; 4Purnell v. Page, 128 Fed 496. Larabee v. Dolley, 175 Fed. 365. 5 Citizens' Bank of Louisiana v. See Brown v. Trousdale, 138 U. S. Cannon, 164 U. S. 319, 41 L. ed 389, 11 Sup. . 3 Where the counterclaim belongs to a class which, by the State practice is barred unless pleaded in the suit ; it must be added to the sum demanded by the plaintiff when determining the juris- dictional amount. 4 It has been said that a defendant who pleads a counter-claim in a court of the United States is ( stopped to deny jurisdiction because of the insufficiency of the amount in dispute. 5 An adjudication sustaining a set-off, coun- terclaim, or partial defense, so as to reduce the recovery below the jurisdictional amount, something still being allowed the plaintiff; is no reason for a dismissal or remand; provided that it does not appear that the original claim was exaggerated in bad faith. 6 The filing' of a cross-bill, by one defendant against another, does not deprive him of the right of removal. 7 It has been held: that the pleading, by the original defendant, of a counterclaim, or demand in reconvention, which exceeds the jurisdictional amount, does not put the original plaintiff in the position of a defendant so that he can remove the case. 8 (as. No. 8.802: Sturgeon River Boom Co. v. W. H. Sawyer Lumber Co., 89 Fed. 1]3. 2 Crane Co. v. Guanica Centrale iS. D. X. Y.) 132 Fed. 713. 3 New York I. & P. Co. v. Mil- burn Gin & Machine Co.. 3o Fed. 225. Cf. Bennett v. Forrest. 69 Fed. 421. 4I.ee v. Continental I. & 74 Fed. 424. 5 O. J. Lewis Mercantile Klepner. C. C. A., 176 Fed 6 Lozano v. YVehmer. 7 .">.">: Peeler v. Lathrop. 48 Fed. 780. 1 C. C. A. 93, 2 U. S. App. 40; Wheeler Bliss Mfg. Co. v. Pickham, S. Co., Co. v. 343. 22 Fed. 69 Fed. 419: Stillwell-Bierce & Smith-Yaile Co. v. Williamston Oil &. Fertilizer Co.. SO Fed. 68? Wash- ington County v. Williams. Ill Fed. 801, 49 C. C. A. 021. 7 Jackson & S. Co. v. Pearson, 60 Fed. 113, 123. Contra. Bennett v. Devine, 45 Fed. 70.") (counter- claim i . 8 Waco Hardware Co. v. Michi gan Stove Co.. C. C. A.. 91 Fed 289; McKown v. Kansas & T. Coal Co., 105 Fed. 657: Smithes \ Smith (Texas). 80 S. W. 646: re hearing -ranted 81 S. W. 283. Contra. Price & Hart v. T. J. Elli- & Co.. 129 Fed. 482. § 23] MATTES IX DISPUTE. 55 § 22. Effect of admissions by the defendant upon the value of the matter in dispute. An admission or disclaimer, in the defendant's answer, which makes the subsequent matter in dispute less than the jurisdictional amount, will not divest t he Federal court of jurisdiction of a suit beg'nn there by the plaintiff; 1 but where the plaintiff sued to recover the posses- sion of a large tract of land, and the defendant, in a plea of abatement, denied that he was in possession of more than a- small part of the same, and alleged that the value thereof was less than the jurisdictional amount; the court intimated with- out deciding that the jurisdiction might be thereby defeated. 8 Whether such an admission or disclaimer will defeat the right of removal has not yet been authoritatively decided. 3 Where the defendant, before a removal was attempted, admitted the plaintiff's claim, but disputed the validity of an attachment in the case, and made no formal claim for damages; it was held, that sufficient did not appear to show that the matter in dispute exceeded the jurisdictional amount, although the property at- tached was more than that sum. 4 § 23. Effect of a defense apparent in the plaintiff's pleading upon the value of the matter in dispute. The fact that the plaintiff's pleading shows a sufficient defense to part of his claim to reduce it below the jurisdictional amount, does not divest the court of jurisdiction; 1 unless it is apparent that that part of the claim was not made in good faith, but was §22. 1 Re Metropolitan Kail- way Receivership, 208 CJ. S. 90, 52 L. ed. 403; Fuller v. Metropolitan Life Ins. Co.. 37 Fed. 103: Stillwell- Bierce & Smith-Vaile Co. v. YYil- liamston Oil & Fertilizer Co.. 80 Fed. G8. 2 Jones v. Rowley. 73 Fed. 286. 3 A decision of a State court seems to hold that it will defeat the right of removal. Thompson v. Kendrick's Lessee. G Term. (5 Hayw.) 113. But see supra, § 6. See Cooper v. Preston. 105 Fed. 403. 4 Keith v. Levi, 2 Fed. 743 ( 1 McCrarv. 343). § 23. 1 Schunk v. Moline, Mil- burn & Stoddart Co.. 147 U. S. 500. 13 Sup. Ct. Rep; 416, 37 L. ed. 255, following Gaines v. Fuentes, 92 U. S. 111. 23 L. ed. 524: Upton v. Mc- Laughlin. TO.", 0. S. 640, 26 L. ed. 1197. and distinguishing Bowman v. Chicago & X. W. Ry. Co.. L15 U. S. till. G Sup. Ct. 102. 29 I., ed. 502; Johnston v. Straus, 20 Fed. 57: Hardin v. Cass County, 42 Fed. G52 (statute of limitations) : Industrial & Min. G'y. Co. v. Elec- trical Supply Co.. C. C. A.. 38 Fed. 732: Hank of Arapahoe v. David Bradley & Co.. C. C. A., 72 1-Vd. SG7: Interstate Building & Loan 5G ORIGINAL JURISDICTION. [§ H manifestly fictitious; 2 or else that the court has no jurisdiction thereof. 3 § 24. Suits arising under the Constitution or laws of the United States. In general. A suit arises under the Consti- tution or law of the United States whenever its correct decision depends on the construction of either. 1 It has been said: that i! suit cannot be removed, from a State court to a Federal court. Ass'n v. Edgefield Hotel Co., 109 Fed. 092; Waterfield v. Rice, 111 Fed. 625, 49 C. C. A., 504 (statute of limitations) ; Washington County V. Williams, C. C. A., Ill Fed. 801, 811; Board of Com'rs of Kearny County, Kan. v. Vandriss, C. C. A., 115 Fed. 866 (statute of limita- tions). . 2 Edwards v. Bates County, 55 Fed. 436; reversed on another point, 103 U. S. 269, 273; Chicago Cheese Co. v. Fogg, 53 Fed. 72. 3 Coulter v. Fargo, 127 Fed. 912, 62 C. C. A. 144. § 24. 1 Cohens v. Virginia, 6 Wheat. 264, 379, 5 L. ed. 257, 285; Feibelman v. Packard, 109 U. S. 421, 27 L. ed. 984: Tennessee v. Davis, 100 U. S. 257. 264, 25 L. ed. 648, 050: Starin v. New York, 115 U. S. 248, 257, 29 L. ed. 388, 390: South- ern Pac. R. Co. v. California, 118 U. S. 109, 112, 30 L. ed. 103. 104; Wiley v. Sinkler, 179 U. S. 58, 45 L. ed. 84: Swafford v. Templeton, 185 I. S. 487. 46 L. ed. 1005; New Or- leans v. Seixas (Louisiana), 35 La. Ann. 36; McKee v. Brooks (Texas), 64 Tex. 255. Complainant brought suit in a State court to subject a judgment, obtained by the defend- ant against the United States in the Court of Claims, to the pay- ment of a judgment lie had against defendant, and for an injunction to i est rain defendant from collecting, transferring, or otherwise dispos- ing of said claim against the gov- ernment, and for the appointment of a receiver to collect and hold the fund. The suit was removed to the United States court, and, upon motion to remand, held, that it involved the construction of R. S. § 3477, which declares that all "transfers and assignments made of any claim upon the United States . . . shall be absolutely null and void, unless they are freely made, and executed in the presence of at least two attesting witnesses," &c, and the motion was therefore denied. Wiljard v. Mueller, 23 Fed. 209. A proceeding to exclude a bridge company from the use of a fran- chise to operate railroad tracks in a public street does not raise a Federal question, although such tracks lead to its bridge, built un- der Acts July 14, 1862, and Feb. 17, 1805, authorizing the construc- tion of a railroad bridge over the Ohio river, and declaring that it "shall be a lawful structure, and shall be recognized and known as a post route," since those acts do not attempt to give the right to the use of the street as an ap- proach. Kentucky v. Louisville Bridge Co.. 42 Fed. 241. In an ac- tion against a railroad company to enforce a schedule of rates adopted by the railroad commis- sioners, the State court refused to remove the cause to the Federal court on the ground that under Act of Congress of Julv 25. 1866. 24] SUITS UNDER FEDERAL CONSTITUTION OR LAWS. simply because, in its progress, a construction of the Constitu- tion or a law of the United States may be necessary, unless it, in part at least, arises out of a controversy in regard to the operation and effect of some provision in that Constitution or law upon the facts involved. 2 In order to remove a cause, on the ground that it arises under a statute of the United States, the record must affirmatively show, from the facts alleged, that some disputed construction of the statute will arise for decision. Where the contest is about the facts only, there can be no re- moval. 3 A case removed to a Federal court, on the ground that the suit arose under the Constitution or laws of the United States, will be remanded where the record fails to show that there will arise some contested point of law depending upon the Constitution or laws of the United States, what the ques- its road in the State was made sub- ject to national control only, and therefore was not subject to State legislation; the act referred to giv- ing defendant's lessor aid in the con- struetion of the road, which in all other matters was to be governed by the law of the State. State v. Southern Pac. Co., 23 Or. 424, 31 Pac. 960. No removable question arises from the fact that plaintiff ac- quired title from the United States to the funds loaned defendant, and to recover which suit is brought. Houston & T. C. R. Co. v. State (Texas), 41 S. \V. 157. The State of South Carolina filed a bill in one of its own courts, alleging: that defendant corporation was chartered by the State to build and operate a railroad between the interior and the seaboard; that since it was built the Central Company, a Georgia cor- poration, and a competitor of de- fendant, had purchased enough of the stock and bonds of defendant to give it control of the corporation, and had diverted the business of defendant, and crushed competi- tion; that the Central Company had no power to purchase stock in defendant corporation, and that the latter was disabled to fulfill the purposes for which it was chartered. It prayed that such holding by the Central Company be declared ultra vires, and that defendant's . charter be forfeited. The petition for removal alleged that the Central Company was an instrument of interstate com- merce, and that for the purposes of such commerce, and under the interstate commerce clause, of the Constitution and the laws passed in pursuance thereof, it had power to purchase defendant's stock, and control its operation. Held, that the determination of the contro- versy thus developed involved the construction of the Constitution and laws of the United States, ami so presented a Federal question. South Carolina v. Port Royal & A. K. Co., 56 Fed. 333. 2(iold Washing & Water Co. v. Keyes. 96 U. S. 109. 24 L. ed. 656. 3 Austin v. Gagan, 39 Fed. 626, 5 L.R.A. 476. 58 OKIGINAL JURISDICTION. [§ M tion is and how it will arise. 4 It has been said: that a cause is not removable simply because an act of Congress must be construed or applied; but that there must be a dispute as to the construction of the act, and facts to show the dispute must appear in the record. 5 It has been held: that a bill by one railroad company against another and its employees, to enforce the interstate commerce act, by enjoining the defendants from refusing to receive plaintiff's cars, 6 and one to enjoin a common carrier from enforcing an unreasonable rate for transportation, 7 in violation of the same statute; arose under the Constitution and laws of the United States. Tt has been held: that an application for a mandamus, to compel a railroad engaged in interstate commerce to run its trains to a certain station, in obedience to a State statute, involves a Federal question, since a judgment therein may impose a burden on interstate com- merce. 8 But, it has been said, that a constitutional question is not presented where the court has occasion to apply the rules of the common law regulating transportation charges, whether or not the carriage be interstate. 9 Suits to enjoin combina- tions 10 and to cancel agreements n which are in restraint of com- merce between States, arise under the laws of the United States. A suit to determine the validity of the action of State author- ities with reference to a tax imposed by the United States in- volves a Federal question. 12 A cause involving the question whether an express company or its customer must furnish the stamp required by the war revenue act of USDS, to be affixed to a receipt given by the company, is one arising under a law of the United States. 13 So do suits brought by a State attorney 4 McFadden v. Robinson, 22 Fed. 10. 10 Sawyer, 398. 5 Fitzgerald v. Missouri Pae. R. Co.. 45 Fed. 812. 6 Ex parte Lennoh, 166 C S. 548, 41 L. ed. 11 Id. 7 Macon Grocery Co. v. Atlantic (oast Line R. R. Co., 21.1 C. S. 501, :>4 L. ed. 300. affirming Atlantic Coast Line R. Co. v. Macon Grocery Co.. c. C. A.. 166 Fed. 206; Tift v. Southern Ry. Co.. 123 Fed. 78'.); Kalispell Lumber Co. v. Great Northern Ry. Co., 157 Fed. 845; Sunderland Bros. v. Chicago, R. I. & P. Ry. Co., 158 Fed. s?7. 8 Illinois v. Rock Island & P. R. Co.. 71 Fed. 753. 9 Mm ray v. Chicago & N. W. Ry. Co.. 92 Fed. 868, 33 C C. A. 62; affirming 02 Fed. 24. io Mannington v. Hocking Valley Ry. Co.. 183 Fed. 133. 11 Chalmers Chemical Co. v. Chad- eloid Chemical Co.. 175 Fed. 995i 12 Dinsmore r. Southern Exp. Co., 92 Fed. 714. 13 Crawford v. Hubbell, 89 Fed. §- 24] SUITS L'.XUKlt FEDERAL CONSTITUTION OK LAWS. 59 general, to test the validity of a consolidation of railroad com- panies, which affect their rights under acts of Congress. 14 It has been said that where the plaintiff pleads a breach of the rules and regulations made by a Department of the United States, the case does not arise under a law of the United States, unless a recovery of damages for a disregard of such regula- lions is expressly authorized by statute. 15 Suits for malicious prosecution or false imprisonment upon a charge of the viola- tion of a law of the United States. 16 or where the illegality depended upon a right granted by a statute of the United States; 17 an action for damages for preventing plaintiff from voting at a Congressional election, 18 and under ordinary cir- cumstances a controversy as to the right to. the custody of an Indian child, 19 do not arise under the laws of the United State>. The Federal question in the case must be substantial, and not merely colorable. 20 "When a proposition has once been decided by the Supreme Court of the United States, it can no longer be said that in it there still remains a Federal question.' 1 21 The 1. See, however, Attorney General v. American Express Co. ( Michi- gan ), 77 X. W. :5] 7. 14 Ames v. Kansas, 111 U. S. 449, 28 L. ed. 482. 15 Heck v. Johnson, 169 Fed. 154, 103. 16 Ma-ka-ta-wali-qua-twa v. Rebok, 111 Fed. 12. 17 Peters v. Malin, 111 Fed. 244. 18 Knight v. Shelton, 134 Fed. 423. 19 Iii re Celestine. 114 Fed. 551. 20Sitarin v. New York. 115 U. S. 248, 257, 29 L. ed. 38S. 390; South- ern Pac. R. Co. v. California. 118 U. S. 109. 112. 30 L. ed. 103, 104; New Orleans v. Benjamin. 153 U. S. 411. 38 L. ed. 764; St. Joseph & G. I. R. Co. v. Steele. 167 U. S. 659, 42 L. ed. 315; McCain v. Des koines, 174 U. S. 168, 43 L. ed. 936; \V. U. Tel. Co. v. Ann Arhor R. Co., 178 V. S. 239. 44 L. edr 1052 : Swaf- ford v. Templet on. 185 V. S. 487, 494. 46 L. ed. 1005, 1008: Cummings v. Chicago, 188 U. S. 410. 47 L. ed. 52.3; Rankers' Mut. Casualty Co. v. Minneapolis. St. P. & S. S. M. Ry. Co., 192 U. S. 371, 48 L. ed. 484; Underground R. R. Co. v. New York, 193 U. S. 416, 48 L. ed. 733: Barney v. New York. 193 U. S. 430, 48 L. ed. 737: Newburyport Water Co. v. Xewlmrvport, 193 U. S. 561. 48 L. ed. 79.1 ; Sloan v. I". S.. 193 U. S. 614. 4S L. ed. 814: Fan ell v. O'Brien, 199 U. S. 89. 50 L. ed. 101 -. Harris v. Rosenberger. C. C. A.. 14.") Fed. 149: Blue Bird Min. Co. v. Largey, 4'.i Fed. 289, 291 ; St. Louis, I. M. & S. Ry. Co. v. Davis. 132 Fed. 629; Montana Catholic Mis- sions v. Missoula County. 200 \J. S. il8. 50 1,. ed. 398- 21 Brewer. J., in Kansas v. Brad ley. 26 Fed. 289. 290. See Western Union Tel. Go. v. Ann Arbor R. Co.. 178 U. S. 239. 44 L. ed. 1052, re> ve-rsed 90 Fed. 379, 33 C. C. A. 113; Kentucky v. Louisville Bridge Co.. 42 Fed. 241 ; People of Slate of Cali- fornia v. Brown's Valley Irr. Di>(.. 60 OEIGixal jrnisnicTiox. [§ 24 right of removal of a suit involving a Federal question, is not affected by the fact that the Supreme Court has laid down, in previous decisions on different facts, general principles,- which will probably control the decision. 22 It was said: that the decisions of the Supreme Court, in cases from the Circuit Courts, and those on writ of error to a State court, were equally instructive in determining when there is a Federal question, such as to support the jurisdiction of the Cir- cuit Court, originally or upon removal. 23 Where the complaint shows upon its face, that the relief sought would be inconsistent with a provision of the Federal Constitution, such as the grant of power to regulate commerce between the States, or the Four- teenth Amendment ; that only demonstrates that the suit cannot be maintained at all, not that the cause of action arises under the Constitution or laws of the United States. 24 Where the plaintiff sought to recover damages because the defendant, as Chief Justice of the Supreme Court of the State, had remitted a case to an inferior court ; it was held, that there was nothing to show a ground of Federal jurisdiction. 25 A suit does not arise under the Constitution or laws of the United States, unless the Federal ques- tion appears clearly, not merely by inference, 26 upon the face of the plaintiff's initial pleading in his state- ment of his own case, 27 and in a necessary allega- 119 Fed. 535: Arkansas v. Choctaw & M. R. Co., 134 Fed. ]0G: Myrtle v. Nevada, C. & 0. Ry. Co., 137 Fed. 193; Harris v. Rosenberger, C. C. A.. 145 Fed. 449. 22 MalloB v. Hyde, 76 Fed. 388. 28 Nashville, C. & St. L. Ry. v. Taylor, 86 Fed. 168. 24 Arkansas v. Kansas & T. Coal Co., 183 U. S. 185; South Carolina v. Virginia-Carolina Chemical Co., 117 Fed. 727, 731. See Washington v. Island Lime Co., 117 Fed. 777. 25 Kinney v. Mitchell. 13S Fed. 270. 26]Tanford v. Davies, 163 U. S. 273. 41 L. ed. 157; W. U. Tel. Co. v. Ann Arbor R. Co., 178 U. S. 239, 44 L. ed. 1052. 27 Chappell v. Watcrworth. 155 V. S. 102, 39 L. ed. 85: Tennessee v. Union and Planters' Bank, 152 U. S. 454, 38 L. ed. 511; Postal Tel. Cable Co. v. Alabama, 155 U. S. 482, 39 L. ed. 231; East Lake Land Co. v. Brown, 155 U. S. 488, 39 L. ed. 233; Oregon Short Line & U. X. R. Co. v. Skottowe, 162 U. S. -190, 40 L. ed. 104S: Walker v. Collins, 167 U. S. 57, 42 L. ed. 76; Galveston, H. & S. A. Ry. Co. v. State of Texas, 170 U. S. 226, 42 L. ed. 1017; Third St. & S. Ry. Co. v. Lewis, 173 V. S. 457, 43 L. ed. 766; Minnesota v. Northern Securities Co., 194 U. S. 48, 4S L. ed. 870: reversing 123 Fed. 692: Iowa v. Chicago, M. & St. P. R. Co., 33 Fed. 391; appeal «li- § 24] SUITS UNDER FEDERAL CONSTITUTION OR LAWS. 61 tion in such pleading. 28 The appearance of a Federal question in the defendant's answer, 29 or petition for removal, 30 or even ? it has been held, in his demurrer, 31 or in the plaintiff's plead- ing in reply or rebuttal, 32 or in a bill of repleader by the plain- tiff, 33 is insufficient. A Federal question, first raised by the defendant, must be tried by the State court, subject to review by the Supreme Court of the United States upon writ oJ error. 34 To give a court of the United States jurisdiction of a cause, on the ground that it presents a Federal question, such question must appear from plaintiff's statement of his own cause of action, and his right to the relief sought must depend directly upon the construction of some provision of the Con- stitution or laws of the United States. 35 Where the controversy missed, Chicago. M. & St. P. Ry. Co. v. Iowa, 145 U. S. 632, 36 L. ed. 857 ; Haggin v. Lewis. 66 Fed. 199; Caples v. Texas & P. K. Co., 67 Fed. 9: Holland v. Texas & P. R. Co., 67 Fed. 9: Cruz v. Texas & P. R. Co., 67 Fed. 9; Wichita Nat. Bank v. Smith. 72 Fed. 568, 19 C. ('. A. 42, 36 U. S. App. 530; Florida v. Charlotte Harbor Phosphate Co., 74 Fed. 578, 20 C. C. A. 538, 41 U. S. App. 405; Dewey Min. Co. v. Miller, 96 Fed. 1; South Carolina v. Virginia-Carolina Chemical Co., 117 Fed. 727; Wichita v. Missouri & K. Telephone Co.. 122 Fed. 100; Darton v. Sperry (Connecticut), 41 Atl. 1052, 71 Conn. 339; Mills v. Central R. Co. of New Jersey (Xew Jersey), 7 N. J. Law J. 230: State v. Port Royal & A. Ry. Co. (South Carolina), 45 S. C. 413, 23 S. E. 363; Texas & P. Ry. Co. v. Caples (Texas), 36 S. W. 516. 28 Wise v. Nixon, 78 Fed. 203; California Oil & Gas Co. of Arizona v. Miller, 96 Fed. 12; Henuy v. La Compagnie Generale Trahaatlan- tique, etc., 96 Fed. 497; Filhiol v. Torney, 119 Fed. 974; McLane v. Leicht (Iowa), 69 la. 401, 29 N. W. 327. 29 Guarantee Co. of North Dakota v. Hanway, 104 Fed. 369, 44 C. C. A. 312; Lincoln v. Lincoln St. Ry. Co., 77 Fed. 658; Broadway Ins. Co. v. Chicago G. W. Ry. Co., 101 Fed. 507; Ralya Market Co. v. Armour & Co., 102 Fed. 530; Mayo v. Dock- ery, 108 Fed. 897; Mitchell En- gineering & Machinery Co. v. Worth- ington, 140 Fed. 947; Cella v. Brown, 144 Fed. 742. 30 Ibid. 31 Indiana v. Alleghany Oil Co. r 85 Fed. 870; Shields v. Boardman r 98 Fed. 455. 32 Houston & T. C. R. Co. v. State (Texas), 41 S. W. 157: Houston & T. C. R. Co. v. State of Texas. 177 U. S. 66, 44 L. ed. 673. But see, Smith v. Greenhow, 109 U. S. 669, 27 L. ed. 1080. 33 Cella v. Brown, 144 Fed. 742. 34 Tennessee v. Union & Planters' Bank, 152 U. S. 454, 462, 38 L. ed. 511. 514. 35 Montana Ore-Purchasing Co. v.. Boston & M. Consol. Copper & Silver Min. Co., C. C. A.. 93 Fed. 274. 35. C. C. A. 1: Shulthis v. McDongal.. 225 U. S. 561, 56 L. ed. 1205: Bare v. Birkenneld, C. C. A., isl Fed. 825; Bovd v. Great Western Coal & G2 ORIGINAL JURISDICTION. [§ 24 might have arisen both under the laws in the United States and under the common law or a State statute, the complaint m nsr clearly show that it arises under the former. 36 Jurisdic- tion cannot be sustained upon allegations that defendant does or may assert some right under such Constitution or laws as :i defense. 37 An averment by the plaintiff, that the defendant will set up a defense based upon a Federal statute or the Con- stitution of the United States, 88 or based upon a State statute repugnant to the Federal ( Ymstitution, 39 will not bring the case Coke Co.. 180 Fed. 115: The Dalles & Rockland Ferry Co. v. llendryx, IS!) Fed. 2GG. 36Shulthia v. McDougal, 225 U. S. 561; Beck v. Johnson. 169 Fed. 154. But see Nelson v. Southern lly. Co.. 172 Fed. 478; Bottoms v, St. Louis & S. F. R. Co.. 17!) Fed. .'.IS. It was contended by the de- fendant that these two cases arose under the Employers" Liability Act (35 St. at L. 05), but the Federal court refused to take jurisdiction because there was no reference to the statute in the plaintiff's plead- ings. Miller v. Illinois Cent. R. Co.. 108 Fed. 982, where, although the pleading set forth this Federal stat- ute, it did not show that the con- struction thereof was involved. Contra Smith v. Detroit & T. S. L. R. Co.. 175 Fed. 506. See Missouri K. & T. Ry. Co. v. W'ulf, 220 C. S. 570. infra. § 211. In Clark v. South- ern Pac. Co.. 175 Fed. 122. it was held that the petition sufficiently showed that the case arose under that Act of Congress. 37Shulthis v. McDougal, 225 C. S. 561, 50 L, ed. 1205: Montana Ore- Purcbasing Co. v. Boston & M. Gonsol. Copper & Silver Min. Co., O. C. A.. 03 Fed. 274, 35 G. C. A. 1: Mare v. Birkenfield, C. C. A.. 181 led. 825; Boyd v. Great Western Coal & Coke Co., 189 Fed. 115; The Dalles & Rockland Ferry Co. v. Hendryx, ISO Fed. 200: Kansas City Southern Ry. Co. v. Quiiiley. 181 Fed. 100. a bill quia timet. 38 Florida qent. & P. Co. v. Bell. 170 U. S. :!21. 44 L. ed. 480; City Ry. Co. v. Citizens' St. R. Co., 100 F. S. 557. 4 1 L. ed. 1114: Boston & Consoj. Copper & Silver Min. Co. Montana Ore-Purchasing Co., 188 S. 032. 47 L. ed. 020; Id.. 188 S. 045, 47 F. ed. 034: affirming, M v. U u C. C. A Tornev, !):; Fed. 274: Filhiol v. 104 1014; affirming 110 F. S. 350, 48 L. ed. Fed. !)74: I )e vine v. Los Angeles, 202 I". S. 313. 50 L. ed. 1040; Fouisville & Nash- ville R. R. Co. v. Mottley. 211 F. S. 140. 53 L. ed. 120; Kansas v. Atchi- son. T. & S. F. Ry. Co.. 77 Fed. 330: Montana 0. P. Co. v. Boston & M. C. C. & S. M. Co., C. C. A.. 93 Fed. 274; Peabody Gold Min. Co. v. Gold Hill Min. Co.. C. C. A.. Ill Fed. 817. But see, Walla Walla City v. Walla Walla Water Co., 172 U. S. 1, 43 L. ed. 341; Cox v. Gil- mer, 88 Fed. 343: Yazoo & M. V. R. Co. v. Adams. 81 Miss. 00. 32 So. 037. 39 Devine v. Los Angeles, 202 F. S. 313, 50 L. ed. 1040; Cox v. Gil- mer, 88 Fed. 343. But see South Carolina v. Coosaw Min. Co., 45 Fed. S04; Green v. Oemler, 151 Fed. 936. £ 24] SUITS UNDER EEDEBAL CONSTITUTION OR LAWS. 63 within the Federal jurisdiction; even though the plaintiff sues to quiet his own title, which does not depend upon a Federal statute. 40 Where a complaint in the State court alleged that complainants claimed under a designated State statute, not sel Out in full in the complaint, and Jthat defendant's claim arose under a previous statute, also designated, which was alleged to he contrary to the State Constitution; the Federal court, upon defendant's petition for removal, on the ground that the latter statute was contrary to the United States Constitution as im- pairing the obligation of their contract under the former stat- ute, took judicial notice of the statutes in determining its juris- diction. 41 It has been said: that the rule, that a cause is not removable, as one arising under the Constitution or laws of- the United States, unless such fact appears from the plaintiff's pleading, applies only to cases in which the Federal question is one inherent in the controversy itself, so that if raised bv the defendant, and determined against him by the State court, he may remove it to the Supreme Court for review by appeal or writ of error that such rule cannot be extended as to -per- mit a plaintiff to prevent the removal of a suit against a re- ceiver of a Federal court by omitting to state, in his pleadings, by what court defendant was appointed receiver; and that such an omission, when relied upon to pervent the removal of the cause, may fairly be considered as a fraud upon the jurisdiction of the Federal court, whether so intended or not. 42 The court will take judicial notice of the fact that a defendant corpora- tion was incorporated by an act of Congress, although the plaintiff has averred that it was incorporated under the State laws; and such a case may be removed. 43 Although a complaint 40 Boston & M. Consol. Copper & Silver Min. Co. v. Montana Ore Purchasing Co., 188 U. S. 032, 47 L. ed. 626; affirming, C. C. A., 93 Fed. 274; Devine v. Los Angeles. 202 U. S. 313, 50 L. ed. 1040: Cali- fornia Oil & Gas Co. of Arizona v. Miller, 90 Fed. 12. 41 South Carolina v. Coosaw Min. Co., 45 Fed. 804. 42 Winters v. Drake, 102 Fed. 545. See Washington v. Island Lime Co.. 117 Fed. 777, 778: where it was held, that the pleading did not show fraud in concealing the real contro- versy by an insufficient statement of the facts constituting plaintiff's cause of action. See also infra, § 27. .;< 43 Texas & P. Ry. Co. v. Cody, 100 U. S. 000. 41 L. ed. 1132; Texas & P. Ry. Co. v. Barrett. 100 V. S. 617, 41 L. ed. 1336; Spokane Fall- & \. Ry. Co. v. Ziegler. 107 V. S. or>. 42 64 ORIGINAL JURISDICTION. [§ 2-i by a settler claiming title under the pre-emption laws of the United Suites against a railroad company stated that defendant claimed under the laws of the Territory of Washington au- thorizing railroad companies to appropriate land for right of way, it disclosed a cause of auction arising under the laws of the United States, so as to authorize a removal from a State court to the Federal court, the court having judicial knowledge that the authority of the Territory to legislate as to the matter in question was derived from the act of Congress, granting to railroad companies the right of way through the public lands of the United States. 44 "Resort cannot be had to the expedient of importing into the record the legislation of the State as judicially known to its courts, and holding the validity of such legislation to have been drawn in question, and a decision neces- sarily rendered thereon, in arriving at conclusions upon the matters actually presented and considered. A definite issue as to the validity of the statute or the possession of the right must be distinctly deducible from the record. " 45 In an action for false imprisonment, averments in the declaration that de- fendants, acting as judges of an election, caused plaintiff's arrest and imprisonment under color of a State law which is repugnant to the Constitution of the United States, are not open to the objection of anticipating the defense for the purpose of showing that a Federal question is involved. 46 Where the facts stated in the plaintiff's petition set forth a cause of action authorized by both an act of Congress and a State statute, although he did not specifically refer to either, it was held that the case might be removed. 47 It has been held: that an action against an interstate common carrier by rail, for damages caused by unjust discrimination in rates and charges gainst plaintiff as a shipper over its road, and in afford- ing other shippers better facilities, and for unlawfully demand- ing ami receiving extortionate rates from plaintiff, is an action L. ed. 79; Scott v. Choctaw, 0. & 44 Spokane Falls & X. Ry. Co. v. G. It. Co., 112 Fed. ISO. See, how- Ziegler, ]67 I". S. 65', 42 L. ed. 79. ever, Oregon Short Line & U. No. 45 Powell v. Brunswick County, l!y. Co. v. Skottowe; 162 V. S. 490, 150 U. S. 433, 440; Fuller. C. J. 40 L. ed. I04K; cited infra, § 27. 46 Cox v. Gilmer. 88 Fed. 343. Contra, Texas & P. Ry, Co. x. High- 47 Hall v. Chicago* R. I. & P. Ry. tower (Texas), 12 Tex. Civ. App. Co.. 149 Fed. 654. 41, 33 S. W. 541. § 24] SUITS UNDER FEDERAL CONSTITUTION OR LAWS. g; arising under the Interstate Commerce law, although not in express terms based on that act, and, although an action wqnld lie for the same cause at common law; and is removable, when the petition for removal sets up a defense under the act of Con- gress. 48 An action in a State court, to recover for personal in juries alleged to have been received by reason of the failure of defendant railroad company properly to equip its cars with safety appliances, is not removable merely because of an allega- tion in the complaint that defendant is engaged in interstate commerce, where it does not appear that there is any contro- versy as' to the construction or effect of the Federal law relating to railroads engaged in such commerce, since the questions of fact whether defendant is engaged in interstate commerce, and, if so, whether it has complied with the law, are not Federal questions. 49 The mere fact that, in the progress of the trial of a case, it may become necessary to construe the Constitution or laws of the United States, does not give the Federal courts jurisdiction thereof; but the decision must depend on such construction. 50 The existence in the case, of other questions than that aris- ing under the Constitution or laws of the United States, does not impair the right of removal. 51 It was said: that the clause of the removal act of 1888, authorizing the removal of civil suits arising under the Constitution or laws of the United States, relates only to the entire action and does not permit the re- moval of a part thereof when the rest is not removable. 52 A hill to enjoin the enforcement of a municipal ordinance au- thorizing a street-railroad company to condemn for its use cer- tain parts of the track of another corporation was entertained by a Circuit Court of the United States upon the ground, that 48 Lowry v. Chicago, B. & Q. Ry. Co., 4(i Fed. 83. » Myrtle v. Nevada C. & 0. Ry. Co., 137 Fed. 103. 50 Wise v. Nixon, 78 Fed. 203. 51 Connor v. Scott, Fed. Cas. No. 3.119 (4 Dill. 242); Fisk v. Union Pac. R. Co.. Fed. Cas. No. 4,827 (0 Blatchf. 302); s. c, Fed. Cas. No. 4,828 (8 Blatchf. 243); Illinois v. Illinois Cent. R. Co., 16 Fed. 881; Fed. Prac. Vol. I.— 5. People v. Sanitary Dist. of Chicago, 98 Fed. 150; Manigault v. S. M. Ward & Co., 123 Fed. 707; Mastin v. Chicago, R. I. & P. Ry. Co., 123 Fed. 827; New Orleans M. & T. R. Co. v. State of Mississippi (Ky.), 2 Ky. Law Rep. 137. 52 Texas v. Day Land & Cattle Co., 49 Fed. 593; Chapter on Re- moval of causes. GC FEDERAL PRACTICE. [§ 24 the violation of a previous grant to the latter company, which complainant alleged, impaired the obligation of a contract. It was held : that, this did not give that court jurisdiction to decide a question arising on a supplemental bill as to the right of condemnation by the former company under its charter, pur- suant to which the city determined, pending the suit, that the streets were not wide enough for two companies to lay tracks side by side; because the matter involved was beyond the scope of the controversy, which gave the court jurisdiction of the case originally. 53 It has been said: that the nature of the action, and not the character of the defense, constitutes the test of the deter- mination whether it arises under the laws of the United States ; and that if the case made by the complaint arises under an act (d' Congress, the right of removal by the defendant is not lost by insufficient denials in the answer, 54 or by the interposition of a good defense. 55 It has been held : that a Federal court loses jurisdiction of a suit originally brought there, and that the same will be dismissed, upon the defendant's filing a disclaimer of any interest in the matter concerning which the plaintiff claims title under the laws of the United States, and denying that it has made any claim to the same. 56 In a suit in a Federal court, raising the question whether the State was attempting to impair the obligation of a contract, a decision that this question was res adjudicata as against the State does not oust the Federal jurisdiction on the theory that it makes the case turn on a question not Federal. 57 Where the bill brings before the court for determination a Federal question not merely colorable, but raised in good fairh not. merely for the purpose of giving jurisdiction to the District Court of the United States, the court can take juris- 53 Mercantile Trust & Deposit Co. S. 522, .">24. 30 L. ed. 1021; Excel- v. Collins Park & Belt R. Co.. 107 sior Wooden Pipe Co. v. Pacific Fed. 762. See August Buseh & Co. Bridge Co., IS.", U. S. 282, 287. 4G v. Webb, 122 Fed. 655, 662. L. ed. 910, 0]:]; Boston & M. Consol. 54 Miller v. Tobin, 18 Fed. 009, 9 C. & S. Min. Co. v. Montana Ore P. Sawyer, 401. Co.. 188 U. S. 632, 47 L. ed. 626: 55 Guarantee Co. of Xorth Dakota Crystal Springs Land & Water Co. v. Hanway, 104 Fed. 309. 44 C. C. v. Los Angeles, 82 Fed. 114. A. 312. 57 Bank of Kentucky v. Stone, 88 56 Robinson v. Anderson, 121 U. Fed. 383. 24J SUITS UNDER FEDERAL CONSTITUTION OR LAWS. G7 diction and does not. lose the same by deciding the case upon other points and omitting to decide the Federal questions or deciding them adversely to the party claiming their benefit. 58 It was formerly held that, when a case involving several ques- tions ha3 been removed because one of them arises under the Constitution or laws of the United States, after a decision of the court disposing of the Federal question there should be a remand: 59 but that a Federal question, which is not frivolous. l 60 cannot be decided upon a motion to remand. 58 Riler v. Louisville & Nashville R. R. Co.. 213 U. S. 175. 53 L. ed. 753, 29 Sup. Ct. Rep. 451; Omaha H. Ry. Co. v. Cahle Tr. Co., 32 Fed. 727: per Brewer, J.; s. c, 33 Fed. 6S0; Nashville, C. & St. L. Ry. Co. v. Taylor, 8G Fed. 168, 178, 188; Louisville Tr. Co. v. Stone, C. C. A., 107 Fed. 305, 309, 310: Bernstein v. Danwitz, 190 Fed. G04: Central R. Co. of New Jersey v. Jersey City, 199 Fed. 237, 24G; Michigan Rail- road Tax Cases, 138 Fed. 223; Ore- gon R. & Navigation Co. v. Camp- bell. 173 Fed. 957: Larabee v. Dol- ley, 175 Fed. 305: Risley v. City of Utica, 179 Fed. 875. But see Un- derground Railroad v. City of New York. 193 U. S. 416, 48 L. ed. 733, 24 Sup. Ct. 494, affirming, s. c, 110 Fed. 952 : Mercantile Tr. & Deposit Co. v. Collins Park & Belt R. Co., 107 Fed. 762, 765: People's Gaslight & Coke Co. v. City of Chicago. 114 Fed. 384, holding that where the hill did not show that an ordinance fixing the rate for the price of gas, impaired the obligation of a con- tract, or took property without due process of law, the court could not consider the question whether the city had the power, under the laws of the State, to enact such an ordi- nance. Minnesota v. Northern Se- curities Co., 194 U. S. 48. 48 L. ed. 870: Cf. Penn. Mut. L. I. Co. v. Aus- tin. 108 U. S. 085. 695. 42 L. ed. 626, 030: and infra. But it has been held, in New York Mackin- tosh Co. v. Flam, 198 Fed. 571, that where the plaintiff failed to establish a cause of action under the Federal statute concerning trademarks, he could not obtain an injunction because of unfair compe- tition. Similar rulings were made in copyright cases: Larro\ve-I oisette v. O'Louglilin. 88 Fed. 896: Scribner v. Straus, C. C. A., 147 Fed. 28. Similar rulings were made in pat- ent cases: Mecky v. Grabowski, 177 Fed. 591 ; National Casket Co. v. New York & Brooklyn Casket Co., 185 Fed. 533. Elgin Nat. Watch Co. v. Illinois Watch Co.. 179 U. S. 605. 21 Sup. Ct. 270, 45 L. ed. 305: Leschen Rope Co. v. Broderick, 201 U. S. 100. 20 Sup. Ct. 425. 50 L. ed. 710: Burt v. Smith, C. C. A., 71 Fed. 101, 17 C. C. A. 573; Hutchin- son, Pierce & Co. v. Loewy. C. C. A.. 163 Fed. 42. 90 C. C. A. 1. Contra, Dicta of Ray. J. in Onondaga In- dian Wigwam Co. v. Ka-Xoo-Xo. I. Mfg. Co., 182 Fed. 832. 59 Hamblin v. Chicago, B. & Q. R. Co., 43 Fed. 401. 60 Lowry v. Chicago, B. & Q. R. Co.. 46 Fed. 88. 08 ORIGINAL JURISDICTION. [§ 25 § 25. Suits arising under the Constitution of the United States. A suit arises under the Constitution of the United States when the plaintiff's cause of action depends upon the violation of a right under the same by an individual who does not act under color of any statutory authority; 1 or where the cause of action depends upon the unconstitutionality of an act of Congress; 2 or the repugnancy of a State statute to the Federal Constitution ; 3 or, it has been held, where it depends upon a statute, which the defendant contends in good faith to be in violation of the same, and there is ground for a reason- able doubt as to the soundness of the contention, 4 or the com- plaint shows that the plaintiff's claim would be defeated by a construction of the Federal Constitution, as to which there is room for a reasonable doubt. 5 The pleadings need not state what particular clause of the Constitution is in question. 6 It has been said: that it is not essential to the jurisdiction of a Federal Court over a suit based on an alleged impairment of a contract by a State, that there should be a valid contract, or that the impairment complained of should in fact be effected; but it is sufficient, for jurisdictional purposes, if the plaintiff claims the existence of such contract and its impairment in good faith. 7 Where a bill is filed to enjoin the enforcement of § 25. 1 An action to recover damages for preventing plaintiff from exercising the right to vote for a member of Congress is one arising under the Constitution of the United States. Wiley v. Sink- ler, ]79 U. S. 58, 45 L. ed. 84; Knight v. Shelton, 134 Fed. 423. 2Patton v. Brady, 184 U. S. 008, 4i! L. ed. 713. 3 ( ovington & L. Turnpike Road Co. v. Sandford, 164 U. S. 578, 41 L. ed. 560; Green v. Oemler, 151 Fed. 036. 4 Railroad Co. v. Mississippi, 102 U. S. 135, 141, 26 L. ed. 96, 98; Ames v. Kansas, 111 U. S. 449, 28 L. ed. 482; Southern Pac. R. R. Co. v. California. 118 U. S. 109, 30 L. ed. 103: Kansas v. Walruff, 26 Fed. 178; Kessinger v. Hinkhouse, 27 Fed. 883; Mahin v. Pfeiffer, 27 Fed. 892: Minnesota v. Duluth & I. R. R. Co., 87 Fed. 497. Contra, Ken- tucky v. Chicago, I. & L. Ry. Co., 123 Fed. 457. To the same effect are: Lemen v. Wagner (Iowa), 68 Iowa, 660, 27 N. W. 814; Judge v. Arlen (Iowa), 71 Iowa. 186, 32 X. W. 326; Dickinson v. Herb Brewing Co. (Iowa), 73 Iowa. 705, 36 X. W. 651; Shear v. Bolinger (Iowa), 74 Iowa. 757, 37 X. W. 104. 5 Minnesota v. Duluth & I. R. R. Co.. 87 Fed. 497. 6 Crystal Springs Land & Water Co. v. Los Angeles, 76 Fed. 14S. 7 Pacific Electric Co. v. Los An- geles, 118 Fed. 746. But see Ri>l" v. City of Utica, 179 Fed. 875 24] SUITS U^BER CONSTITUTION. 69 a municipal ordinance, 8 or resolution of a city council, which has the effect of an ordinance, 9 or to prevent the passage of one, 10 which will violate an existing contract with the com- plainant; the case arises under the Constitution of the United States; provided that the ordinance is otherwise within the powers of the municipality. A municipal ordinance, not passed in accordance with legislative authority, is not a law of the State; and a suit to enjoin its enforcement does not arise under the Constitution of the United States. 11 Where the complaint averred that the enforcement of the ordinance would deprive the complainant of its property without due process of law and the State constitution contained a prohibition of such depriva- tion, it was held that the remedy must be first sought in the State courts. 12 It has been said : that under the settled doctrine 8 Walla Walla City v. Walla Walla Water Co., 172 U. S. 1, 43 L. ed. 341: affirming 60 Fed. 957 ;. Mercantile Tr. & D. Co. v. Colum- bus, 203 U. S. 311, 51 L. ed- 198; Indianapolis Gas Co. v. Indianapo- lis, 82 Fed. 245 ; Consolidated Water Co. v. San Diego, 84 Fed. 369; Michigan Tel. Co. v. Charlotte, 93 Fed. 11 ; Consolidated Water Co. v. San Diego, 93 Fed. 849. 35 C. C. A. 631 ; Iron Mountain R. Co. of Mem- phis v. Memphis, C. C. A., 96 Fed. 113: Kimball v. City of Cedar Ra- pids, 99 Fed. 130: Mercantile Trust & Deposit Co. of Baltimore v. Col- lins Park & B. R. Co.. 99 Fed. 812; Anoka Water Works, Electric Light &„ Power Co. v. City of Anoka, 109 Fed. 580; American Water Works & Guarantee Co. v. Home Water Co., 115 Fed. 171: Riverside & A. Ry. Co. v. Riverside. 118 Fed 736; Des Moines City Ry. Co. v. Des Moines, 151 Fed. 854. But sec Bien- ville Water-Supply Co. v. Mobile, 175 U. S. 109, 44 L. ed. 92; affirm- ing 95 Fed. 530. 9 Des Moines City Ry. Co. v. Des Moines, 151 Fed. 854. 10 Vicksburg Waterworks Co. v. Vicksburg, 185 U. S. 65, 46 L. ed. 808; s. c, as Vicksburg v. Vicks- burg Water Works Co., 202 U. S. 453, 50 L. ed. 1102; Farmers' Loan & Tr. Co. v. Meridian, 139 Fed. 673. But see infra, § 79 and note 25, infra. 11 Mayor, etc., of Savannah v. Hoist, C. C. A., 132 Fed. 901; re- versing 131 Fed. 931 ; Louisville v. Cumberland Tel. & T. Co., C. C. A., 155 Fed. 725, 12 Ann. Cas. 500; Seattle El. Co. v. Seattle, R. & S. Ry. Co., C. C. A., 185 Fed. 365; City and County of San Francisco v. United Railroads of San Francisco, C. C. A.. 19(1 Fed. 507. 12 Seattle El. Co. v. Seattle. R. & S. Ry. Co., C. C. A., 185 Fed. 365. 372. See, also, Hamilton Ga> Light Co. v. Hamilton City, 146 U. S. 258, 265, 13 Sup. Ct. Rep. 90. 36 L. ed. 963: Barney v. New York. 193 U. S. 430. 24 Sup. Ct. 502, 48 L. ed. 737. Contra. San Francisco Gas & El. Co. v. City and County of San Francisco, 189 Fed. 943. 70 FEDERAL PRACTICE. [§ 25 that the courts can only deal with the question of the constitu- tionality of a legislative act after it has been passed, and are without jurisdiction to interfere with proposed or pending leg- islation, either State or municipal, the action of a city council in adopting the report of a committee finding that the franchise of a street railway company will expire at a certain time, con- trary to the contention of the company, and recommending that the council take measures to dispossess the company at the expiration of such time unless there is a previous renewal, does not give a Federal court jurisdiction of a suit to determine the controversy between the company and the city in respect to the terms of the grant, on the ground that it presents a constitu- tional question as to the impairment of the contract rights of the company. 13 Where, in addition to these facts, it appeared that the receivers of the corporation had received a notice from the superintendent of streets, that all permits issued to the company to work and make repairs upon the streets of the city were to be revoked at a specified time, it was held, that the receivers had a cause of action arising under the Constitution of the United States. 14 The mere refusal of a municipal cor- poration to perform a contract, even though that refusal is expressed in an ordinance containing a direction that the other party to the contract perform some act which the 'contract does not require but imposing no penalty for disobedience, 15 does not present a case arising under the Constitution of the United States. 16 In an action to vacate the charter of a railroad com- pany because a majority interest therein had been purchased by a competitor, the bill alleged that such purchase was ultra vires because the Georgia Constitution forbade the legislature to grant such powers to any corporation where its effect might be to lessen or destroy competition. The petition for removal contended that this impaired the obligation of the contract em- bodied in the company's charter, which was granted before this provision of the Constitution took effect. It was held, that 13 Elkins v. Chicago. 119 Fed. 057. Dawson v. Columbia Tr. Co.. 197 U. H Blair v. Chicago, 201 U. S. 400, S. 178, 49 L. ed. 713; Shawnee Sew- 405, 50 L. ed. 801. erage & Drainage Co. t. Stearns, 15 St. Paul Gas Light Co. v. St. 220 U. S. 462, 55 L. ed. .141. See Tan]. 181 U. S. 142. 45 L. ed. 7S8. Defiance Water Co. v. City of Defi- le St. Paul Gas Light Co. v. St. ance, 191 U. S. 184^ 48 L. ed. 140. Paul. 181 U. S. 142. 45 L. ed. 788; § 24] SUITS UXDKR CONSTITUTION - . 71 this presented a Federal question, although the Supreme Court of Georgia had theretofore decided that the charter did not confer the right claimed. 17 It was held: that, in an action by stockholders of a corporation, to set. aside a lease executed by it as inconsistent with its charter, illegal and void, no Federal question was involved within the meaning of the removal act, when complainant alleged that the action of the directors in mak- ing the lease without the consent of the stockholders was not due process of law, and the defendants relied upon an act of the legislature not mentioned in the bill, which they averred thai the plaintiff claimed impaired the obligation of a contract. 18 In an action in the nature of quo warranto, brought in the name of the State by her attorney general to prevent a railroad com- pany from controlling certain lands, defendant petitioned for removal, alleging that it acquired ownership in the land under an act of the legislature, and in accordance therewith exercised rights of ownership ; that subsequently the act granting the land was repealed; and that such repealing act was a law im- pairing the obligation of contracts, and depriving persons of property without due process of law. It was held, that the peti- tion showed a case arising under the Constitution of the United States, which was not eliminated by the attorney general's dis- claimer of reliance on the repealing act. 19 It was held : that where a railroad corporation set up as a defense that its charter was a grant by the State, giving to the railroad com- pany, without any qualification, the right to prescribe upon what terms and at what rates freight should be transported on the road, that this grant was protected by the Constitution of the United States, and that a subsequent statute of the State upon the subject impaired the validity of such grant in violation of the Constitution, that such defense involved a question arising un- der the ( Constitution of the United States, and the case was remov- able. 20 In a suit, in a Federal court raising the question whether the State was attempting to impair the obligation of a contract. 17 South Carolina v. Port Royal 19 Illinois v. Illinois Cent. R. Co.. & A. R. Co., 5(5 Fed. 333. 33 Fed. 721. Rut see § 24, note :><;. 18 Central R. Co. of New Jersey supra. v. Mills, 113 U. S. 24!), 28 L. ed. 20 Illinois v. Chicago, B. & Q. R. 949: affirming .Mills v. Central R. Co.. Ill Fed. 706. Rut see supra, Co., 20 Fed. 449. § 24. notes 26-3.5. 72 ORIGINAL JURISDICTION". [§ 25 a decision that this question was res adjudicate/, as against the State does not oust the Federal jurisdiction, on the theory that it makes the case tarn on a question not Federal. 21 It was held : that jurisdiction in the Circuit Courts of the United States ever cases where any person is sought to he deprived of his rights under the Constitution of the United States, did not authorize a writ of certiorari to a State court for the removal of proceedings by the State against a railroad company, under a State statute, entitled "An act to prevent extortion and unjust discrimination in the rates charged the passengers, etc., and to punish the same," where it was insisted by defendant that this act of the State legislature impaired the obligation of the eon- tract which the State had made with the company by its char- ter. 22 A proceeding by a State to forfeit a franchise cannot be removed to the Federal courts, on the ground that it impairs the obligation of a contract; the prohibition of the Constitution being that "no State shall pass any law impairing the obliga- tion of contracts." 23 Whenever the right or title of either party is grounded upon State legislation which undertakes to transfer to him property belonging to the other without due process of law, there is a controversy as to the operation and effect of the Constitution, to which the Federal jurisdiction attaches. 24 A suit to enjoin an action by or under a State authority within the jurisdiction conferred by a State statute, which action is alleged with some reasonable foundation for the position, to take the complainant's property without due process of law; 25 or to deny him the equal protection of the laws; 26 or, when such action is legislative in its nature, to impair the obligation 21 Stone v. Bank of Kentucky, 174 U. S. 799, 43 L. ed. 1187; affirming Bank of Kentucky v. Stone, 38 Fed. 383. 22 Illinois v. Chicago & A. R. Co., Fed. Cas. No. 7,006 (6 Biss. 107). 23 Kentucky v. Louisville Bridge ( u.. 42 Fed. 241. 24 Crystal Springs Land ft Water Co. v. Los Angeles, 76 Fed. 148. 25 Norwood v. Baker, 172 1. S. 269, 13 L. ed. 443; San Joaquin & King's River Canal ft Irrigation Co. v. Stanislaus County. 9U Fed. 516; San Francisco Gas & El. Co. v. City and County of San Francisco, 189 Fed. 943. See Covington & L. Turn- pike Road Co. v. Sandford, 164 U. S. 578, 41 L. ed. 560. 26 Southern Ry. Co. v. North Carolina Corp. Commission, 97 Fed. 513; St. Louis, I. M. & S. Ry. Co. v. Davis, 132 Fed. 629: Douglas Park Jockey Club v. Grainger, 146 Fed. 414; Michigan Railroad Tax Cases, 138 Fed. 223: Central R. Co. of New Jersey v. Jersey City, 199 Fed. 237, 245. In the last two § 25] SUITS UNDER CONSTITUTION. 73 of a contract that plaintiff holds, 27 arises under the Constitu- tion of the United States. Such a suit, when there is no color for the contention that the defendants act under a statute of the State, does not ; 28 unless perhaps when they act in a quasi- judicial capacity. 29 Trespasses on the property rights of an individual, committed by public officers or agents professedly acting under authority of a State law, but which are not only unauthorized by such law, but by a fair construction thereof are prohibited, cannot be imputed to the State, so as to bring them within the constitutional inhibition to deprive persons of property without due process of law, and therefore do not con- fer jurisdiction on a Federal court to grant relief. 30 The pro- visions of the Fourteenth Amendment, securing personal rights, are directed against the States and their agencies, and not against the acts of private individuals, and these give no right of action in the Federal courts on the ground that a constitutional question is involved. 31 A suit arises under the Constitution of the United States when brought to enjoin the enforcement of an order by a State, or county, 32 or municipal, 33 board, which reduces the charges of a corporation employed in a public serv- ice so low as to amount to a deprivation of its property without due process of law. The averment, that, if a temporary injunc- tion granted by an inferior State court, which because of the alleged invalidity of a contract between a municipality and a water company restrained the future payment of rentals ac- cases, a charge was made of a dis- crimination against the complain- ants in assessments for taxation. 27 Walla Walla City v. Walla Walla Water Co., 172 U. S. 1, 43 L. ed. 341; affirming 60 Fed. 957. And other authorities cited supra, note 8. 28 St. Joseph & G. I. R. Co. v. Steele, 167 U.S. 650, 42 L. ed. 315; Barney v. New York, 103 U. S. 430, 48 L. ed. 737; Huntington v. New York, 103 U. S. 441, 48 L. ed. 741; affirming 118 Fed. 683: Kievnan v. Multnomah County, 05 Fed. 849; Arbuckle v. Blackburn. 65 L.R.A. 864, 113 Fed. 616, 51 C. C. A. 122; St. Louis, I. M. & S. Ry. Co. v. Davis, 132 Fed. 629. 29 Raymond v. Chicago X^nion Traction Co., 207 U. S. 20, 38, 52 L. ed. 78. 30 Barney v. New York, 103 U. S. 430, 48 L. ed. 737; Huntington v. New York, 118 Fed. 683; allirmed 193 U. S. 441, 48 L. ed. 741. 31 Marten v. Holbrook, 157 Fed. 716. 32 San Joaquin & K. R. Canal & Irr. Co. v. Stanislaus County, 90 Fed. 516. 33 Wilmington City Ry. Co. v. Taylor, 198 Fed. 159. 74 OBIGINAl JL'ItlSDK "I loX. [| 25 cruing under the same, should ultimately be made perpetual, the company would thereby be deprived of its property without due process of law, does not justify a Federal Circuit Court in assuming jurisdiction of a suit by the water company To restrain the municipality from attempting to annul the con- tract. 34 A street railroad company which has acquired a fran- chise to construct its line has a property right therein of which it cannot be deprived without due process of law, and it has also contract rights which cannot be impaired by the State through fiibsequent legislation; but, before it can invoke the provisions of the Constitution of the United States for the protection of Mich rights by a suit in a Federal court, it must show that it has done all the things required under the laws of the State to vest it with the contract and rights which it seeks to protect. 35 The Iowa Code provided, that any building where intoxicating liquors are manufactured, sold, or given away, contrary to law. shall be a nuisance, and may, along with the vessels and their contents, and fixtures, be abated by "an action in equity." The person proceeded against was also made liable to fine and im- prisonment. Defendant, in a proceeding under this statute, re-* moved the case to the Federal court on the grounds that, inas- much as the Supreme Court of the State had declared the law to be valid, he was virtually deprived of his right to a trial by jury, and that he had, prior to the passage of the act, at a large expense established the place sought to be declared a nuisance, and that it may only fit for a saloon and brewery. It was held, that no Federal question was involved, and the case was remand- ed to the State court. 36 A suit by property owners to enjoin city officials from levying taxes and from exercising any jurisdiction over annexed territory, on the ground that the statute extending the corporate limits is void under the State Constitution, can- not be maintained in a Federal court, on the theory that the assessment of taxes and other official acts by the defendants, be- ing without warrant of any valid law, will be a taking of prop- erty without due process of law, and a denial of the equal pro- tection of the laws. The real issue is whether the statute en- 34 Defiance Water Co. v. Defiance, 36 Schmidt v. Cobb. 119 U. S. 286, 191 U. S. 184. 48 L. ed. 140. 30 L. ed. 321 (a divided court). 35 Underground K. R; v. New York. 116 Fed. 95-2. § 25] SUITS UNDER CONSTITUTION. 75 largjug the corporate limits is invalid under the State Consti- tion, and no Federal question is involved. 37 A complaint which alleges that defendants entered into a conspiracy by unlawful means to deprive plaintiff of his liberty and property, and that they unlawfully, forcibly, and without due process of law caused his arrest and confinement in a State insane asylum, states a cause of action for false imprisonment, not involving any Fed- eral question, and which it is the province of the State, and not the federal courts to redress. 88 It was held : that a bill filed by the State of Illinois in a State court against the Chicago Drain- age District, a corporation created by an act of its legislature, to enjoin the defendant, in the prosecution of the work for which it, was chartered, from the reduction of the level of the water in the Illinois and Michigan canal, and alleging as grounds for such relief that, by the acts of Congress authorizing the State to construct the canal and granting lands in aid thereof, the State was required forever to maintain such canal as a navigable waterway for the free passage of any property of the United States, and that under the terms of such acts the State could confer no power on the defendant to destroy the same; shows that a Federal question is involved in the suit, which renders it re- movable. 39 It was held: that a suit which raised questions concerning the validity and construction of State legislation, dividing its territory into congressional districts in pursuance of the apportionment made by Congress, did not arise under the Constitution and laws of the United States. 40 That the State courts have the right to pass upon the title to a State office and to expel the incumbent from the same, because he holds an office under the United States, in violation of the State Constitution. 41 That an action in the nature of quo warranto, to determine the title to the office of elector of President and Vice-President of 1he United States, brought in a State court, is not removable t<» the Circuit Court of the United States on the ground that the matters in dispute therein arise under the Constitution and laws 37 McCain v. Des Moines, 174 U. 39 People v. Sanitary Dist. of Clii- S. 168, 43 L. ed. 936; affirming 84 cago, 08 Fed. 150. Fed. 726. 40 Anthony v. Burrow. 129 Fed. 38 Marten v. Holbrook, 157 Fed. 783. 716. 41 Bishop v. State. 14!) Ind. 233, 48 N. E. 1038, ::'.» L.R.A. 278. V6 ORIGINAL JURISDICTION. [§ 25 of the United States. 42 Jurisdiction of an action to enjoin the taxation of a bridge by the local authorities as a toll bridge, it being taxed by the State as a part of complainant's railroad, is not conferred upon a Federal court, by an allegation that the bridge was built under authority of an act of Congress, where the right of the State to tax the bridge is conceded, the con- troversy being as to the method of taxation under the State laws. 43 A mere protest against the payment of a license tax on the ground that the law seeking to impose the same is unconsti- tutional will not give a Federal court jurisdiction to try and de- termine the constitutionality of the law. 44 A suit brought in the State court to enjoin the threatened importation of armed men into a county where a strike existed, on the ground that this would amount to a public nuisance and would endanger the health, morals, peace and good order of the community, is not removable to a District Court of the United States as one aris- ing under the Constitution and laws of the United States; since, even assuming that the bill shows upon its face that the relief sought would be inconsistent with the power to regulate com- merce, or with regulations established by Congress, or with the Fourteenth Amendment, such an assumption only demonstrates that the bill cannot be maintained and not that the cause of action arose under the Constitution or laws of the United States. 45 A suit arises under the Constitution of the United States when brought to enjoin State officers from assessing, 46 for taxa- tion, complainant's property at a higher percentage of its value than that at which other property in the State is assessed, or from collecting taxes so assessed, 47 when the State officers act 42 State v. Bowen ( South Caro- lina), 8 S. C. (8 Rich.) 382. 43 St. Joseph & G. I. R. Co. v. Steele, 167 U. S. 659, 42 L. ed. 315. 44 Corbus v. Alaska Treadwell Gold-Min. Co., 99 Fed. 334. 45 Arkansas v. Kansas & T. Coal Co., 183 U. S. 185, 46 L. ed. 144; reversing 96 Fed. 353. 46 W. U. Tel. Co. v. Poe, 61 Fed. 449; W. U. Tel. Co. v. Norman, 77 Fed. 13; Nashville, C. & St. L. Ry. v. Taylor, 86 Fed. 168. See C. C. A., 88 Fed. 350. 47 Third Nat. Bank v. Mylin, 76 Fed. 385. See County of San Ma- teo v. Southern Pacific R. Co., 13 Fed. 145 ; where a removal of an action to collect State and county taxes was allowed, because it ap- peared that, in accordance with the State Constitution, the amount of mortgages thereupon had not been deducted from the property of the § 25] SUITS UXDER CONSTITUTION. 77 in obedience to a State statute; 48 and even, it has been held, when they do not, but the assessment is made or to be made by a State court of equalization as a quasi judicial body, although the State statutes and Constitution require uniformity. 49 Suits arise under the Constitution of the United States, which are brought: to enjoin an assessment that plaintiff alleges was made in violation of his right to an exemption because of the owner- ship of United States bonds. 50 To enjoin the enforcement of a speeial assessment for a betterment, made under a rule or system which throws such an unjust burden upon the landowner" as to deprive him of property without due process of law. 51 To en- join the collection of taxes upon shares of stock in a national bank, which are taxed at a higher rate than other moneyed capital within the State, in violation of section 5319 of the Re- vised Statutes of the United States. 52 To enjoin the collection of taxes on the capital stock of a bank, when it is claimed that the statute under which they were levied impairs the obligation of the contract concerning taxation embodied in the bank's char- ter 53 An issue whether full force and effect had been given to the judgment of a State court has been held not to involve the con- struction of the Constitution of the United States. 54 The ques- tion whether a party to proceedings in a State court continued such after a certain judgment in his favor, and the estate represented by him as administrator became bound by proceed- ings subsequent to the judgment, is not dependent for solution upon any construction of the Constitution or laws of the United defendant and other quasi public corporations when assessed; al- though in assessing for taxation other property, the amount of mort- gages thereupon was first deducted. 48 County of San Mateo v. South- ern Pacific R. Co., 13 Fed. 145. 49 Raymond v. Chicago Union Traction Co., 207 U. S. 20, 38, 52 L. ed. 78, 88; Southern Ry. Co. v. North Carolina Corp. Commission, J>7 Fed. 513. Contra, St. Louis Irr. & S. Ry. Co. v. Davis, 132 Fed. 629. 50 People's Sav. Bank v. Layman, 134 Fed. 635. 51 Norwood v. Baker, 172 Tj. S. 269, 43 L. ed. 443. 52 Third Nat. Bank v. Mvlin, 76 Fed. 385. 53 Union & Planters' Bank v. Memphis, 111 Fed. 561, 49 C. C. A. 455. 54 Chicago & A. R. Co. v. Wig- gins' Ferry Co., 108 U. S. 18, 27 L. ed. 636: affirming order Wig- gins' Ferry Co. v. Chicago & A. R. Co., 11 Fed. 381. 3 McCrary, 609; Merritt v. Am. Steel Barge Co., C C. A., 75 Fed. 813. 78 OEIGINAL JURISDICTION. [§ 26 States, so as to give the right of removal to the Federal court. 55 A mortgagee may sue in a court of the United States to prevent contracts pledged by the mortgagor from impairment by State legislation, irrespective of the citizenship of the mortgagor. 56 § 26. Suits arising under treaties of the United States. A suit arise under a treaty of the United States when its de- cision depends upon a construction or the determination of the validity of the same. 1 It was held: that an action by a tribal indian for false imprisonment under process of a State court, because of the violation of a State law from which he claimed ex- emption, arose under the laws and treaties of the United States. 2 Otherwise not, although the suit was brought to protect rights which are claimed under such treaty. 3 It was held: that where both parties claimed under Mexican grants, confirmed and pat- ented in accordance with a provision of a treaty, the plaintiff claiming certain water rights thereunder, which the defendant disputed; the suit did net arise under a treaty of the United Stales. 4 Where a complaint in ejectment against private in- dividuals alleged that plaintiff was ousted in violation of the provisions of the treaty with France, of October 21, 1808, for the protection of the inhabitants of the ceded territory in the en- joyment of their property, it was held that it did not show a case arising under a treaty of the United States, there being no as- sertion of any right, title, privilege or immunity, derived from such treaty as against the defendants, and no charge that they took possession by direction of the Government of the United States. 5 A suit may be maintained in a District Court of the United States by the consul of Austria and Hungary, to restrain a beneficial association from using the name of the Emperor of Austria and Hungary, as a part of its corporate name, and the use of his portrait as a part of its advertising literature, in order fraudulently to induce his subjects, resident in the United 55<;ibbs v. Crandall, 120 U. S. 408. 40 L. ed. 199; Muse v. Ailing 105. :!47: where the statute permitted such a suit, when the obstruction was not affirmatively authorized by law. whether State or Federal, and the only question for considera- tion was whether the obstruction was authorized by a State statute. 6 E. A. Chatfield Co. v. New Ha- ven. 110 Fed. 788. 6 New Orleans. M. & T. R. Co. v. Mississippi. 102 U. S. 135, 26 L. ed. 06. 7 King v. St. Louis, 08 Fed. 641. 8 Telluride Power-Transmission Co. v. Rio Grande W. Ry. Co.. 175 l'. S. 630, 44 L. ed. 305: dismissing appeal 51 Pac. 146, 16 Utah. 125; In re Helena & L. Smelting & Reduc- tion Co.. 48 Fed. 600. § 33. 1 Crane v. Buckley, 105 Fed. 401. 2 Lamb v. Ewing. C. C. A., 54 Fed. 269; Leslie v. Brown, 90 Fed. 171, 32 C. C. A. 556. 3 Files v. Davis. 118 Fed. 465. 4 United States v. Douglas. 113 N. C. 100, 18 S. E. 202. 5 Crawford v. Johnson, Fed. Cas. Xo. 3,369 (Deady, 457); Orner v. Saunders, Fed. Cas. Xo. 10,584 (3 Dill. 284). 6 Feibelman v. Packard. 109 U. S. 421. 27 L. ed. 984: Bachrack v. Norton, 132 U. S. 337. 33 L. ed. 377; Lawrence v. Xorton, 13 Fed. 1, 4 Woods. 383; McKee v. Brooks. 64 Tex. 255. Contra, Phillips v. Edel- stein, (Texas). 2 Willson, Civ. Cas. 34] FEDERAL OFFICERS. 91 cashiers of national banks, 7 clerks of Federal courts, 8 and other Federal officers, 9 arise under the laws of the United States. Suits by material men upon the bonds of contractors with the Federal government arise under the Constitution and laws of the United States. 10 A suit on the bond of a clerk of a court of the United States which depends upon the scope and effect of the bond and the meaning of the statutes in conformity with which it was given, is a suit arising under the laws of the Unit- ed States, of which a District Court has original jurisdiction without diversity of citizenship. 11 A District Court of the United States has jurisdiction of a suit brought by a trustee in bankruptcy, to enforce the bond of his predecessor. 12 § 34. Suits by and against officers of the United States. Suits brought by officers of the United States in the exercise of their official functions arise under the laws of the United States and are removable. 1 It was held: that an action by a United States marshal against his deputy, to recover according to con- tract a part of fees collected, is not removable. 2 Suits against officers of the United States for acts done by virtue, or under color, of their office, arise under the laws of the United States and may be removed. 3 Thus, a suit against a marshal of the Ct. App. § 449; where the suit was brought for the wrongful seizure of property under a writ of attach- ment. 7 Walker v. Windsor Xat. Bank, C. C. A., 56 Fed. 76. 8 Howard v. U. S., 184 U. S. 676, 46 L. ed. 754; affirming 102 Fed. 77, 42 C. C. A. 169. ».U. S. v. Belknap, 73 Fed. 19; an Indian agent. io u. S. Fidelity & Guaranty Co. v. F. S., 204 U. S. 349, 51 L. ed. 516; U. S. v. Churchyard. 132 Fed. 82; U. S. ex rel. Giant Powder Co. v. Axman, 152 Fed. 816. Contra, U. S. v. Henderlong, 102 Fed. 2; U. S. v. Sheridan, 119 Fed. 236; U. S. v. O'Brien, 120 Fed. 446, 448; U. S. v. Barrett, 135 Fed. 189; Burrell v. U. S., C. C. A., 147 Fed. 44. 46. ii Howard v. U. S., 184 U. S. 676, 46 L. ed. 754: affirming 102 Fed. 77, 42 C. C. A. 169. 12 U. S. ex rel. Schauffler v. Union Surety & Guaranty Co., 118 Fed. 482. § 34. 1 Johnson v. Rankin (Tex- as). 95 S. W. 665. 2Setzer v. Douglass. 91 X. C. 426; Hildebrand v. Douglass, 91 N. C. 430. 3 Cleveland, C. C. & I. R. Co. v. McClung, 119 U. S. 454. 30 L. ed. 465: affirming 15 Fed. 905; Bock v. Perkins. 139 U. S. 628, 35 L. ed. 314; Sonnentheil v. Christian Moer- lein Brewing Co., 172 U. S. 401, 43 L. ed. 492; Auten v. U. S. Nat. Bank. 174 U. S. 125. 141. 43 L. ed. 920. 926; Van Zandt v. Maxwell, Fed. Cas. No. 16,884 (2 Blatchf. 421 I ; Warner v. Fowler. Fed. Cas. No. 17,182 (4 Blatchf. 311) : Ellis 92 ORIGINAL JURISDICTION. [§ 34 United States for an abuse of Federal process against the de- fendant to the writ, 4 or for levying under a writ upon property claimed by a stranger to the suit, but which the marshal claims belongs to the defendant to the writ, 5 arises under the laws of the United States, and is removable ; at least when the plaintiff's initial pleading shows that the defendant's acts, of which com- plaint is made, were done in his official capacity. 6 Where this did not appear in the plaintiff's pleading, it was held, that the action was not removable. 7 But a suit against a marshal for a levy upon goods which he does not claim to be the property of the person named in the writ, is not removable. 8 It was held : that an action by a deputy marshal against his principal, for fees due him, is not removable. 9 The fact that a private indi- vidual is made a co-defendant with the marshal in the suit does not divest the court of jurisdiction. 10 It was held, that an action against private individuals, for wrongfully causing a United States marshal to levy execution on plaintiff's chattels, is a case arising under the laws of the United States and may be re- moved. 11 Suits against receivers of national banks and receivers appointed by the Federal courts are considered in the following sections. An action by or against the agent of the shareholders appointed to take charge of the assets of a national bank, arises under the laws of the United States. 12 v. Norton, ]6 Fed. 4, 4 Woods, 399; Front St. Cable Ry. Co. v. Drake, 65 Fed. 539; Drake v. Paulhamus, C. C. A., GG Fed. SO.! ; Wood v. Drake, 70 Fed. 8S1; Galatin v. Sherman. 77 Fed. 337; Eighmy v. Poucher, 83 Fed. 855; Woods v. Root, C. C. A., 123 Fed. 402. 4 Front St. Cable Ry. Co. v. Drake, G5 Fed. 539; Wood v. Drake, 70 Fed. 881. 5 Bock v. Perkins, 139 U. S. 628, 35 L. ed. 314; affirming 28 Fed. 123; Sonnentlieil v. Christian Moerlein Brewing Co.. 172 U. S. 401. 43 L. ed. 492; Ellis v. Norton, 16 Fed. 4, 4 Woods, 399 ; Drake v. Paulhamus, C. C. A., 66 Fed. 895. 6 Walker v. Coleman. 55 Kan. 381, 40 Pac. 640, 49 Am. St. Rep. 254. Contra, Ellis v. Norton, 16 Fed. 4, 4 Woods, 399, Wood v. Drake, 70 Fed. 881 ; Howard v. Stewart, 34 Neb. 765, 52 N. W. '714. 7 Rothschild v. Matthews, 22 Fed. 6. 8 Buck v. Colbath, 3 Wall. 334, 18 L. ed. 257 : Kelsey v. Dallon, Fed. Cas. No. 7,678; McKee v. Coffin, 66 Tex. 304, 1 S. W. 276. 9 Upham v. Scoville. 40 Ark. 170. 10 Sonnentheil v. Christian Moer- lein Brewing Co., 172 U. S. 401. 43 L. ed. 492 ; But see Wardens, etc. of St. Luke's Church v. Sowles, 51 Fed. 609 ; Frank v. Leopold & Feron Co., 169 Fed. 922; infra, § 35, supra, § 24, note 54. 11 Hurst v. Cobb. 61 Fed. 1. 12 Barron v. McKinnon, 179 Fed. 759. § 36] FEDERAL RECEIVERS. 93 § 35. Suits by and against receivers of national banks. A suit by the receiver of a national bank, appointed by the Comptroller of the Currency, arises under the laws of the Unit- ed States, and may be removed by the defendant when it in- volves the jurisdictional amount. 1 A suit against a receiver of p national bank, similarly appointed, arises under the laws of the United States and may be removed ; 2 but not unless the matter in dispute exceeds the statutory limit ; 3 nor, it has been said, when the receiver is not a necessary, although he is a proper, party to the action. 4 The receiver of a national bank cannot intervene and remove a suit instituted against the bank before his appointment, unless the bank might have removed the case. 5 A bill against such a receiver of a national bank and an executor to recover a legacy, where some of the decedent's assets were deposited in the bank, was dismissed as not arising under the laws of the United States. 6 § 36. Suits by and against receivers of Federal corpora- tions. Where either party to a suit is a receiver of a corporation created by an act of Congress, the suit arises under the laws of the United* States. 1 It has been held : that the same rule applies § 35. l Johnson v. Rankin (Tex- as), 95 S. W. (365. See Armstrong v. Ettlesohn, 30 Fed. 209; Arm- strong v. Trautman, 30 Fed. 275; McConville v. Gilmour, 1 L.R.A. 498, 36 Fed. 277; Stephens v. Ber- nays, 44 Fed. 642; Yardley v. Dick- son, 47 Fed. 835; Fisher v. Yoder, 53 Fed. 565; Short v. Hepburn, 75 Fed. 113, 21 C. C. A. 252; Thompson v. German Ins. Co., 76 Fed. 892; McCartney v. Earle, C. C. A., 115 Fed. 402. 2 Hot Springs Independent School Dist. Xo. 10 of Fall River County v. First Nat. Bank, 61 Fed. 417; Auburn Sav. Bank v. Hayes, 61 Fed. 911: Gilbert v. McNulta, 96 Fed. 83. See Merrill v. Nat. Bank cf Jacksonville, J 73 U. S. 131, 43 L. ed. 640; Auten v. U. S. Nat Bank, 174 U. S. 125, 43 L. ed. 920; Witters v. Sowies, 42 Fed. 701 ; Bartley v. Hayden, 74 Fed. 913; Mc- Donald v. State of Nebraska, 101 Fed. 171, 41 C. C. A. 278. Contra, Bird v. Cockrem, Fed. Cas. No. 1,~ 429 (2 Woods, 32) ; Tehan v. First Nat. Bank, 39 Fed. 577. SFollett v. Tillinghast, 82 Fed. 241. 4 Speckert v. German Nat. Bank, 98 Fed. 151, 38 C. C. A. 682. 5 Wicbita Nat. Bank v. Smith, 72 Fed. 568, 19 C. C. A. 42, 36 IL. S. App. 530 ; writ of error dismissed. Smith v. Wicbita Nat. Bank, 42 L. ed. 1214; Speckert v. German Nat. Bank, C. C. A., 98 Fed. 151; reversing 85 Fed. 12. 6 Wardens, etc., St. Luke's. Church v. Sowies, 51 Fed. 609.. But see supra, § 34. § 30. l Texas & Pac. Ry. Co. v. Cox, 145 U. S. 593, 36 L. ed. 829. 94 OKIGINAL JURISDICTION. [§ 37 to receivers, appointed by the Comptroller of the Currency, of the assets of banking or trust companies organized under the laws of any of the United States, which have an office or bank- ing house for the receipt of deposits or savings within the Dis- trict of Columbia. 2 § 37. Suits by and against receivers of Federal courts. A suit by a receiver appointed by a Federal court, which is brought to enforce a cause of action vested before his appoint- ment in the corporation which he represents, does not ordinarily arise under the laws of the United States ; and consequently, it cannot be removed where the requisite difference of citizenship does not exist. 1 Such a suit may, however, be begun in a Circuit Court of the United States originally, because it is ancillary to that in which the receiver was appointed. Where, however, the validity of the order or decree of a Fed- eral court appointing a receiver, or the construction of such an order or decree, is in question, the suit arises under the laws of the United States, whether the receiver is a plaintiff, 3 or defend- ant. 4 Otherwise it seems that it does not. 5 It has been held : that the court will take judicial notice of the fact that a defend- 2 Lyons v. Bank of Discount, 154 Fed. 764; for an injunction; Shin- Fed. 391. See 34 St. at L. 458. ney v. North Am. Savings, L. & § 37. iPope v. Louisville, N. A. Bldg. Co., 97 Fed. 9; to determine & C. Ry. Co.. 173 U. S. 573, 43 L. the right to assets claimed by a re- ed. 814; Pepper v. Rogers, 128 Fed. ceiver; State v. Frost, 113 Wis. 623, t;87. 89 N. W. 915; for an injunction. 2 White v. Ewing, 159 U. S. 36, 5 So held of actions against re- 40 L. ed. 67 ; Pope v. Louisville, N. ceivers to recover damages for their A. & C. Ry. Co., 173 U. S. 573, 43 L. negligence or that of their employ- ed. 814; Bowman v. Harris, 95 Fed. ees. Bailsman v. Dixon, 173 U. S. 917; Connor v. Alligator L. Co., 98 113, 43 L. ed. 633; Pope v. Louis- Fed. 155; Alexander v. So. Hom^ ville. N. A. & C. Ry. Co., 173 U. S. Bldg. & L. Ass'n, 120 Fed. 963; 573, 579, 43 L. ed. 814, 817; Ga- Hampton Roads Ry. & El. Co. v. bleman v. P., D. & E. Ry. Co., 179 Newport News & 6. P. Ry. & El. U. S. 335, 45 L. ed. 220. (These Co., 131 Fed. 534; Gunby v. Arm- cases overruled a number of de- strong, C. C. A., 133 Fed. 417. So cisions of the lower courts to the when he is an ancillary receiver. contrary.) Ray v. Peirce, 81 Fed. Brookfield v. Heckor. US Fed. 942. 881; Pitkin v. Cowen, 91 Fed. 599; 3 Pope v. Louisville, N. A. & C. Gableman v. Peoria, D. & E. Ry. Co., Ry. Co., 173 U. S. 573. 581, 43 L. ed. 101 Fed. 1, 41 C. C. A. 160; Echols g 14i gig. v. Smith (Kentucky), 42 S. VV. 538. 4 Board of Com'rs v. Peirce, 90 For damage caused through his § 39] FEDERAL LITIGATION. 95 ant is a receiver; although there is no allegation to that effect in the plaintiff's pleading; 6 and that the joinder of other defend- ants with a receiver will not deprive him of a right of removal to which he would have been entitled had he been sued alone.' § 38. Suits by and against trustees in bankruptcy. The bankruptcy law provides: that "the Circuit Courts of the United States shall have jurisdiction of all controversies at law and in equity, as distinguished from proceedings in bankruptcy, between trustees as such and adverse claimants concerning the property acquired or claimed by the trustees, in the same man- ner and to the same extent only as though bankruptcy proceed- ings had not been instituted and such controversies had been be- tween the bankrupts and such adverse claimants." 1 It has been held : that in a suit between the trustees of a bankrupt and an- other, when the requisite difference of citizenship exists between the bankrupt and such other party, and the matter in dispute exceeds the jurisdictional amount; the suit may be removed by the defendant, whether the suit is brought by, 2 or against, the trustee. 3 The effect of the new Judicial Code upon this section of the Bankruptcy Law has not yet been decided. § 39. Suits arising out of litigation in the Federal courts. It has been held: that the following cases, arising out of litiga- tion in the Federal court arise under the Constitution and laws of the United States, and may be removed when the matter in dispute exceeds the jurisdictional amount: a suit where the malicious conduct in carrying on the pointed. People v. Bleecker St. & business of the receivership. Rural F. F. R. Co., 178 Fed. 156. See, al- Home Telephone Co. v. Powers, 176 so, Dale v. Smith, 182 Fed. 300; Fed. 080. For the cancellation of Vanderbilt v. Kerr. 188 Fed. 537. notes and bonds which the plaintiff 6 Pitkin v. Cowen, 91 Fed. 599. had executed to the receivers under 7 Landers v. Felton, 73 Fed. 311. duress and fraud and for an in- Contra. Shearing v. Trumbull, 75 junction against the negotiation of Fed. 33; Marrs v. Felton, 102 Fed. the same, praying, in the alterna- 775; Rupp v. Wheeling & L. E. R. tive, a recovery of damages and the Co., 121 Fed. 825, 58 C. C. A. 101. impression of a trust upon the prop- § 38. l 30 St. at L. § 23, p. 552. ertv in the receivers' hands. 2Corhitt v. President, etc., of Wrishtsville Hardware Co. v. Hard- Farmers' Bank of Delaware. 113 ware & Woodenware Mfg. Co., 180 Fed. 417. Fed. 580. And for a vacation of the 3 Bush v. Elliott, 202 U. S. 477, franchise of the corporation over 50 L. ed. 1114. whose property the receiver. was ap- 96 ORIGINAL JURISDICTION. [§ 39 plaintiff's pleading shows that he contests the validity of a writ, order, judgment, or decree of a Federal court; 1 a suit for mali- cious prosecution, or false imprisonment, upon a charge of a violation of a law of the United States ; 2 and a suit where there is a dispute as to how far a State statute, concerning liens upon land, applies to a judgment of a court of the United States. 3 It has been held : that the purchaser at a Federal fore- closure sale, which had assumed as part of the price all liabil- ities incurred by the receivers, was not entitled to remove a suit to enforce such liability. 4 It has been said: that the construc- tion of orders and decrees of a Federal court, according to their true meaning, does not involve a Federal question. 5 It has been held : that the following cases do not arise under the laws of the United States: a suit upon a judgment recovered in a court of the United States; 6 a suit in which either party claims title under a sale made under the order, judgment, or decree of a Federal court, when the validity and construction of that order, judgment or decree is not in question; 7 a bill by a discharged bankrupt, to enjoin a levy under a judgment previous to his dis- charge, upon land which the court has set apart to him as ex- empt under the State homestead laws ; 8 an action by an attor- ney for damages caused by his disbarment by a State court, be- cause of language spoken in a court of the United States. 9 It § 39. 1 Connor v. Scott, Fed. Gas. No. 3,119, 4 Dillon, 242; to enforce a vendor's lien, where it appeared that the defendant claimed the land through the deed of an assignee in bankruptcy, the validity of which plaintiff dis- puted; First Nat. Bank v. Society for Savings, 80 Fed. 581, 25 C. C. A. 460; for an injunction against a tax levy ordered by the manda- mus of a Federal court. See Hou- ser v. Clayton, Fed. Caa. No. (5,739 (3 Woods, 273) ; Johnson v. New Orleans Nat. Banking Ass'n (Louisiana), 33 La. Ann. 479. 2 Ma-ka-ta-wah-qua-twa v. Bebok, 111 Fed. 12. 3 Cooke v. Avery, 147 U. S. 375, 37 L. ed. 209 ; Sowles v. Witters, 46 Fed. 497. 4 Reed v. Northern Pac. Ry. Co., 86 Fed. 817. But see Wabash Railroad Co. v. Adelbert College, 208 U. S. 38, 53, 52 L. ed. 379. 385; and infra, § 51. s United States v. Douglas, 113 N. C. 190. 18 S. E. 202. 6 Provident Savings Society v. Ford. 114 U. S. 635, 29 L. ed. 261; Metcalf v. Watertown, 128 U. S. 586, 32 L. ed. 543. 7 Carson v. Dunham, 121 U. S. 421, 30 L. ed. 992; Gay v. Lyons, Fed. Cas. No. 5,281, 3 Woods, 56. 8 King v. Neill. 26 Fed. 721. Slireen v. Rogers. 56 Fed. 220; Green v. Elbert, 63 Fed. 308. § 40] DIFFERENCE OF CITIZENSHIP. 97 has been further held : that a case does not arise under the laws of the United States simply because a Federal court has decided in another suit the questions of law which were involved ; 10 and that an issue, whether full force and effect had been given to the judgment of a State court, does not involve the construction of the Constitution of the United States. 11 It was held : that a suit arises under the laws of the United States, when brought against a private person for wrongfully causing a marshal to levy a Fed- eral execution upon the plaintiff's property, which the defend- ant claimed to belong to the judgment debtor. 12 The Circuit Courts of the United States have also ancillary jurisdiction over many cases connected with litigation previously brought there. This subject is considered later. 13 § 40. Controversies between citizens of different States. In general. A controversy between citizens of different States is one in which every party upon one side is a citizen of a differ- ent State from every party upon the other. 1 The citizenship of formal parties, with no real interest in the controversy, does not affect the jurisdiction. 2 In certain cases, the joinder of im- proper parties, plaintiff or defendant, will not prevent a re- moval. 3 In determining between whom the controversy exists, the court is not bound by the title of the case or the form of the proceedings; but should examine the record, ascertain the mat- ter in dispute and arrange the parties on opposite sides of the same according to the facts, no matter what their technical place as plaintiffs or defendants may be. 4 A controversy exists when- 10 Leather Manufacturers' Nat. Bank v. Cooper, 120 U. S. 77S, 30 L. ed. 816; affirming order Cooper v. Leather Manufacturers' Nat. Bank, 29 Fed. 161; Berger v. Doug- les County Com'rs, 5 Fed. 23, 2 McCrary, 483. HMerritt v. Am. Steel Barge Co., C. C. A.. 75 Fed. 813. 12 Hurst v. Cobb 01 Fed. 1. 13 Infra, § 51. § 40. 1 Blake v. McKini. 103 U. S. 336, 26 L. ed. 563. 2 Removal Cases, 100 l". S. 457, 25 L. ed. 503 : Harney v. Latham, 103 U. S. 205, 26 L. ed. 514; Harter v. Kernocl.an, 103 U. S. 502, 26 L. Fed. Prac. Vol. I.— 7. ed. 411; Maryland v. Baldwin, 112 U. S. 400. 28 L. ed. 822; Wormley v. Wormley, 8 Wheat. 421, 5 L. ed. 651 ; Taylor v. Holmes, 14 Fed. 400 ; New Chester Water Co. v. Holly Mfg. Co., C. C. A., 53 Fed. 10, 26; infra, §§ 104. IIS ; see Chapter on Removal of Causes. But see Blackburn v. Portland O. M. Co., 175 U. S. 571, 44 L. ed. 270; Pitts- burg. C. & St. L. Ry. Co. v. B. & O. R. Co.. C. C. A., 61 Fed. 705. In- fra, § 42. 3 See Chapter on Removal of Causes, infra. 4 Removal Cases. 100 U. S. 457, 98 ORIGINAL JURISDICTION. [§ 40 ever there is a justiciable demand, although the defendant does not resist the relief sought ; and at least, in the absence of fraud, even if he has requested the plaintiff to institute the suit, 5 There is no jurisdiction, because of difference of citizenship, when any one of the necessary, and not formal, parties is a citi- zen of the District of Columbia, 6 or a citizen of a Territory ; 7 even if other parties to the controversy, on the same side as such citizen of the district or Territory, are citizens of different States from that of the plaintiff; 8 but formerly a resident of the District of Columbia might, in a proper case, maintain a crossbill in a suit where the jurisdiction was founded upon there being a controversy between citizens of different States. 9 It has been said that a person who changes his permanent resi- dence to a foreign country, although he still remains a citizen of the United States, ceases to be a citizen of a State who can be sued in a Federal court, where the jurisdiction is founded upon a difference of citizenship ; 10 but a better statement of the rule seemed to be that she cannot then be sued there upon that ground, when served in the State of her former domicile. A change of citizenship after the jurisdiction has once at- tached will not divest it, 11 even, it was held, in case of a change 408, 25 L. ed. 593, 597; Pacific R. Co. v. Ketchum, 101 U. S. 289, 25 L. ed. 932; Barney v. Latham, 103 U. S. 205, 26 L. ed. 514; Carson v. Hyatt, 118 U. S. 279, 286, 30 L. ed. 107. 169; Blacklock v. Small, 127 U. S. 96, 32 L. ed. 70; Anderson v. Bbwers, 40 Fed. 708: Brown v. Mur- ray Nelson & Co., 43 Fed. 014: Man- gels v. Donau Br. Co.. 53 Fed. 513; Cilley v. Fatten. 62 Fed. 498; Board of Trustees v. Blair, 70 Fed. 414; infra, § 43. But see Reavis v. lira vis. 98 Fed. 145. 5 Re Metropolitan Railway Re- ceivership. 208 F. S. 90. 52 L. ed. 403. 6 Hepburn v. Ellzey, 2 Cranch, 445. 2 L. ed. 332; Wescott v. Fair- field, Pet. C. C. 45; Barney v. Balti- more. 1 Hughes, 118; Cameron v. Hodges, 127 U. S. 322, 32 L. ed. 132; Hooe v. Jamieson, 106 U. S. 395, 41 L. ed. 1049. 7 New Orleans v. Winter, 1 Wheaton. 91. 4 L. ed. 44; Cameron v. Hodges, 127 U. S. 322, 32 L. ed. 132; Snead v. Sellers, C. C. A.. 66 Fed. 371; McClelland v. McKane, 154 Fed. 164. 8 Watson v. Bontils, C. C. A., 116 Fed. 157. 9 riman v. Iaeger's Adm'r, 155 Fed. 1011. 10 Hammerstein v. Lyne, 200 Fed. 165. 172. See infra. § 46. 11 Morgan's Heirs v. Morgan, 2 Wheat. 290. 4 L. ed. 242; Mollan v. Torrance. 9 Wheat. 537, 6 L. ed. 154: Clarke v. Mathewson. 12 Pet. 164, 9 L. ed. 1041: Anderson v. Watt. 13S C. S. 694. 34 L. ed. 1078; Tug River Coal & Salt Co. v. Brigel, C. C. A., 86 Fed. SIS; Haracovic v. § 40] DIFFERENCE OF CITIZENSHIP. 99 of citizenship made before an amended bill was filed. 12 The subsequent consolidation of a foreign with a domestic corpora- tion will not defeat the jurisdiction. 13 When at the time a bill is filed the court has no jurisdiction, jurisdiction cannot subse- quently be conferred by an amendment striking- out a party plaintiff who was properly and necessarily made such at the com- mencement of the suit ; 14 but in one case the court retained juris- diction l)v allowing an amendment which made one of the orig- inal plaintiffs a defendant. 15 When they are not indispensable parties, jurisdiction may be retained upon a discontinuance or dismissal as regards defendants who are citizens of the same State as the plaintiff ; after, 16 as well as before, 17 they have ap- peared ; and even, it was held, where they were restored a few days later upon their petition for intervention ; 18 but the resig- nation after suit brought of a defendant trustee, 19 and the filing of a disclaimer by a defendant, 20 who were citizens of the com- plainant's State, were held not to save the jurisdiction. Juris- diction is not lost because a defendant ceases to re&ist the plain- Standard Oil Co., 105 Fed. 785; Collins v. Ashland, 112 Fed. 175. But see Weaver v. Kelly, 92 Fed. 417: Mangels v. Donan B. Co., 53 Fed. 513. 12 Tug River C. & S. Co. v. Bri- gel, 80 Fed. 818. 13 Louisville, N. A. & C. Ry. Co. v. Louisville Trust Co., 174 U. S. 552. 43 L. ed. 1081, C. C. A., 75 Fed. 433, 22 C. C. A. 378; Chicago. I. & X. P. R. Co. v. Minnesota & X. W. R. Co., 29 Fed. 337. 14 Anderson v. Watt, 138 U. S. 094, 34 L. ed. 1078. But see Hicklin v. Marco, C. C. A., 50 Fed. 549; Whittle v. Artis, 55 Fed. 919. iSConolly v. Taylor, 2 Peters, 556, 7 L. ed. 518. 16 Beebe v. Louisville, X. O. & T. R. Co., 39 Fed. 481, 484; Morse v. South, 80 Fed. R. 200, 207 ; Clai- borne v. Waddel, 50 Fed. 308; Hicklin v. Marco, C. C. A., 50 Fed. 549; Horn v. Loekhart, 17 Wall. 570, 21 L. ed. 657; Bane v. Reefer, 00 Fed. 010; Mason v. Dullinghani, 82 Fed. 0S0; Grove v. Grove, 93 Fed. 805; Sioux City T. R. & W. Co. v. Trust Co. of X. Am., C. C. A., 82 Fed. 124: Oxley Stave Co. v. Coop- ers' L T nion, 72 Fed. 095; s. c. as Hopkins v. Oxley Stave Co., C. C. A., 83 Fed. 912; Smith v. Consumers' C. O. Co.. 80 Fed. 359; Tug R. C. & S. Co. v. Brigel, C. C. A., SO Fed. 818; infra. § 40; see Chapter on Removal of Causes. 17 A. R. Barnes & Co. et al. v. Berry et al., 150 Fed. 72. 18 Sioux City T. & W. Co. v. Trust Co. of X. Am.. C. C. A.. 82 Fed. 124: s. c. 173 U. S. 99. 43 L. ed. 028. 19 Ruohs v. Jarvis-Conklin Mt. Tr. Co., 84 Fed. 513. 20 Wetherby v. Stinson, C. C. A.. 02 Fed. 193. But see Frazer Lubri- cator Co. v. Frazer, 23 Fed. 305; Wirgman v. Persons, 120 Fed. 449, 451. 100 ORIGINAL JURISDICTION. [§ 41 tiff's demand ; 21 nor by the addition of new parties, whose citi- zenship would have prevented their original joinder in the suit, and who come in by amendment, 22 or by intervention, 23 or by succession through an assignment of the plaintiff's interest, 24 or by operation of law. 1 It has been held that there is a controversy between citizens of different States when one of them has a justiciable claim against the other, although the latter consents to the jurisdic- tion and to the appointment of a receiver before the complain- ants had obtained judgment in an action at common-law; 26 and in the case of a suit by a stockholder to procure the appointment of a receiver because of insolvency, when his shares have been assigned to him for the purpose of the commencement of the suit. 27 § 41. Parties to the controversy. A controversy between citizens of different States is one in which every party upon one side is a citizen of a different State from that of every party upon the other. 1 In determining between whom the contro- 21 Park v. N. Y., L. E. & W. R. Co.. 70 Fed. 641. 22 Qbef v. Gallagher, 93 U. S. 199, 200, 23 L. ed. 829, 831 ; Stewart v. Dunham, 115 U. S. 61, 64, 29 L. ed. 329, 330; Phelps v. Oakes, 117 U. S. 236. 29 L. ed. 888; Hardenbergh v. Pay, 151 U. S. 112, 38 L. ed. 93. But si'/ Mangels v. Donau Br. Co.. 53 Fed. 513; Weaver v. Kelly, 92 Fed. 417. 23 Osborne & Co. v. Barge, 30 Fed. 805; Belmont Nail Co. v. Col. I. & S. Co.. 46 Fed. 336; Henderson v. Goode, 49 Fed. 887; United El. S. Co. v. La. El. L. Co.. 68 Fed. 673; Society v. Shakers v. Watson, C. C. A., 68 Fed. 730; Fark v. N. Y., L. E. & W. R. Co., 70 Fed. 641 ; Cole v. Philadelphia & E. Ry. Co., 140 F*ed. 944: Monmouth Tnv. Co. v. Means. C. C. A., 151 Fed. 159; in- fra, § 25S. Contra, Forest Oil Co. v. Crawford, C. C. A., 101 Fed. 849. See also Clyde v. Richmond & D. R. Co., 65 Fed. 336. 24 Sioux City Tr. R. & W. Co. v. Trust Co. of North America, C. C. A'., 82 Fed. 124; s. c. 173 U. S. 99, 43 L. ed. 628; Monmouth Inv. Co. v. Means, C. C. A.. 151 Fed. 159. Contra, Pittsburgh, S. & N. R. Co. v. Fiske, C. C. A., 178 Fed. 66. 25 Glover v. Shepperd, 21 Fed. 4S1; Jarboe v. Templer, 38 Fed. 213. Contra, Adams Exp. Co. v. Denver & R. G. Ry. Co., 16 Fed. 712. 26 Re Metropolitan Railway Re- ceivership, 208 U. S. 90, 52 L. ed. 403. 27 Re Cleland, 218 U. S. 120, 54 L. ed. 962. §41. 1 Strawbridge v. Curtiss, 3 Cranch, 267, 2 L. ed. 435; Corpo- ration of New Orleans v. Winter, 1 Wheaton, 91, 4 L. ed. 44; Conolly v. Taylor, 2 Peters, 556; Louisville, C. & C. R. Co. v. Letson, 2 How. (U. S.). 497. 11 L. ed. 353; Ohio & M. R. Co. v. Wheeler, 1 Black. 286, 17 L. ed. 130; Susquehanna & W. V. Railroad & Coal Co. v. Blatch- 41] DIFFERENCE OF CITIZENSHIP. 101 versy exists, the court is not bound by the title of the cause or the form of the pleadings; but should examine the record, as- certain the matter in dispute and arrange the parties on oppo- site sides of the same, according to the facts, no matter what their technical place as plaintiffs or defendants may be. 2 It has been held : that a party whose claim is adverse to the complainant is on the opposite side of the controversy to him, ford, 11 Wall. 172, 20 L. ed. 179; Avers v. City of Chicago, 101 U. S. 184, 25 L. ed. 838; Blake v. McKim, 103 U. S. 336, 26 L. ed. 563 ; Shain- wald v. Lewis, 108 U. S. 158. 27 L. ed. 691 ; affirming order 5 Fed. 510, 6 Sawyer, 585; Bissell v. Horton, Fed. Cas. No. 1,448; Ketchum v. Farmers' Loan & Trust Co., Fed. Cas. No. 7,736 (4 McLean, 1) ; Hub- bard v. Northern R. R. Co., Fed. Cas. No. 6,818 (3 Blatchf. 84); Tuckerman v. Bigelow, Fed. Cas. No. 14,228; Lovejoy v. Washburne, Fed. Cas. No. 8.550 (1 Biss. 416); Petterson v. Chapman, Fed. Cas. No. 11,042 (13 Blatchf. 395); Teal v. Walker, Fed. Cas. No. 13,812; Dor- mitzer v. Illinois & St. L. Bridge Co.. 6 Fed. 217: Walsh v. Memphis, C. & N. W. R. Co., 6 Fed. 797; Karns v. Atlantic & O. R. Co., 10 Fed. 309; Mitchell v. Tillotson, 12 Fed. 737 ; Ouachita & M. R. Packet Co. v. Aiken, 16 Fed. 890; Holland v. Ryan. 17 Fed. 1 ; Walser v. Mem- phis] C. & N. W. Ry. Co., 19 Fed. 152; Hazard v. Robinson, 21 Fed. 193; Saginaw Gaslight Co. v. City of Saginaw, 28 Fed. 529; Covert v. Waldron, 33 Fed. 311; Oxley Stave Co. v. Coopers' International Union of North America, 72 Fed. 695; Consolidated Water Co. v. Bab- cock. 76 Fed. 243; Ludlow's Heirs v. Kidd's Heirs, 3 Ohio (3 Ham.), 48; Miller v. Lynde (Connecticut), 2 Root, 444. 1 Am. Dec. 86; Tesson v. Gusman (Louisiana), 26 La. Ann. 248; New Orleans v. Seixas (Loui- siana), 35 La. Ann. 36; Florence Sewing Mach. Co. v. Grover & Ba- ker Sewing Mach. Co., 110 Mass. 70, 14 Am. Rep. 579; North River Steamboat Company v. Hoffman (New York), 5 Johns. Ch. 300; Fairchild v. Durand (New York), 8 Abb. Prac. 305; Fisk v. Chicago, R. I. & P. R. Co. (New York), 53 Barb. 472. Contra, Bradley, J., in Girardey v. Moore, Fed. Cas. No. 5,462 (3 Woods, 397). 2 Removal Cases, 100 U. S. 457, 468, 25 L. ed. 593; Pacific R. Co. v. Ketchum, 101 U. S. 289, 25 L. ed. 932; Barney v. Latham, 103 U. S. 205, 26 L. ed. 514; Carson v. Hyatt, 118 U. S. 279, 286, 30 L. ed. 167, 169; Blacklock v. Small. 127 U. S. 96, 32 L. ed. 70; Evers v. Watson, 156 U. S. 527, 39 L. ed. 520; Girar- dey v. Moore, Fed. Cas. No. 5.462 ( 3 Woods, 397 ) ; Dodge v. Perkins. Fed. Cas. No. 3,954 (4 Mason. 435); Burke v. Flood. 1 Fed. 541. 6 Sawyer. 220; Marvin v. Ellis, 9 Fed. 367; Saver v. La Salle & P. Gaslight & Coke Co., 14 Fed. 69. 9 Biss. 372; Anderson v. Bow- ers, 40 Fed. 70S; Brown v. Murray Nelson & Co., 43 Fed. 614: Man- gels v. Donau Br. Co.. 53 Fed. 513: Pittsburg, C. & St. L. By. Co. v. Baltimore & O. R. Co., 61 Fed. 705, 10 C. C. A. 20. 22 U. S. App. 359; Cilley v. Patten. 62 Fed. 498; Ober- lin College v. Blair. 70 Fed. 414: Hutton v. Joseph Bancroft & Sons' 102 ORIGINAL JURISDICTION. [§ 41 although their relations are not hostile, 3 and that the jurisdic- tion is not defeated because the complainant seeks to compel defend ants, who are citizens of the same State, to litigate a dis- pute between them in the Federal court, when the plaintiff has a cause of action against them both. 4 In a suit by tax- payers against county officers and bondholders, to enjoin pay- ment of the bonds, the defendant officers were presumed to be on the same side of the controversy as the taxpayers. 5 Com- plainant, a citizen of Iow r a, filed a bill charging that a judg- ment had been fraudulently obtained against a city of Iowa, in favor of defendant, citizen of another State, by means of a combination between him and others not made parties to the bill. The relief sought was to have the judgment declared void. The mayor, treasurer, and recorder of the city were made de- fendants, that they might be restrained from paying the judg- ment pendente lite, but there was no charge that they had par- ticipated in the fraud, or that they had any interest adverse to complainant. It was held: that, though there was no separate controversy between complainant and the defendant charged with the fraud, the other defendants were only nominal parties, their interest being in fact adverse to the latter ; and their joinder as defendants could not affect his right to have the cause removed. 6 A State granted to a county the swamp lands do- nated to the State by Congress, and located in said county, for school purposes. A bill was filed in a State court by the State, on behalf of the county school board, against the county and certain citizens of other States, to set aside conveyances of such lands. Defendants other than the county sought to remove the cause to the Federal court on the ground of diverse citienship. It was held : that the county was a necessary party, and, it and complainant being fellow citizens, the suit could not be Co.. 77 Fed. 4S1 ; Reese v. Zinn, 103 * Feidler v. Bar tleson, C. C. A., Fed. 97; Boatmen's Bank v. Fritz- 1(51 Fed. 30. But see First Nat. len, C. C. A., 135 Fed. 650: Mirabile Bank v. Bridgeport Tr. Co., 117 Fed. Corp. v. Purvis, 143 Fed. 920; Mil- 909; cited infra, § 42. ler v. Lynde, 2 Root, 444, 1 Am. 5 Harter v. Kernochan. 103 U. S. Dec. 86. 562, 26 L. ed. 411; Anderson v. 3 Federal Mining & Smelting Co. Bowers, 40 Fed. 708. v. Bunker Hill & Sullivan Mining 6 May v. St. John, 38 Fed. 770. & Concentrating Co., 187 Fed. 474. § 41] DIFFERENCE OF CITIZENSHIP. 103 removed. 7 In a suit by the trustee of a mortgage, to enforce a right of action held by the mortgagor, 8 or to protect the mort- gaged property from injury, 9 the mortgagor will be con- sidered to be on the same side of the controversy as the com- plainant, unless it clearly appears that he is actively opposed to the relief prayed. 10 In a suit by a bondholder or other cestui que trust, to enforce a right after his trustee has refused to sue upon the same, the defendant trustee is considered to be upon the same side of the controversy as the plaintiff; 11 unless the latter seeks some relief antagonistic to the other beneficiar- ies of the trust, 12 or when the plaintiff claims some substan- tial relief against the trustee. 13 In an action against the trustee of a deed of trust and his cestui que trust, brought by the assignee in insolvency of the grantor to prevent a sale of the property and for an accounting between the grantor and the beneficiary, the trustee is an indispensable party ad- verse in interest to the plaintiffs, and, if a resident of the same State as the plaintiffs, the District Court of the United States has no jurisdiction of the action as a controversy be- 7 Missouri v. New Madrid Coun- ty. 73 Fed. 304. 8 Dawson v. Columbia Trust Co., 197 U. S. 178. 49 L. cd. 713; Wil- liams v. City Bank & Tr. Co., C. C. A., 186 Fed. 419. See Adams v. City of Woburn, 174 Fed. 192. 9Consol. Water Co. v. Babcoek. 70 Fed. 243; Boston S. D. & Tr. Co. v. Racine, 97 Fed. 817; Old Colony Tr. Co. v. Atlanta Ry. Co., 100 Fed. 798. Cf. Mercantile Tr. & D. Co. v. Collins P. & B. R. Co., 99 Fed. 812. But see Knickerbocker Tr. Co. v. City of Kalamazoo, 182 Fed. 865. 10 Dawson v. Columbia Trust Co., 197 U. S. 178, 180, 49 L. ed. 713, 7ir,. " Pacific B. Co. v. Kotclmm, 101 l. S. 289, 25 L. ed. 932; Blacklock v. Small. 127 l". S. 96, 32 L. ed. 70; Barry v. Mo.. K. & T. Ry. Co,, 27 Fed. 1 : Needham v Wilson, 47 Fed. 97; Reinach v. Atlantic & G. W. R. Co., 58 Fed. 33; Shipp v. Wil- liams, C. C. A., 62 Fed. 4; Bowdoin College v. Merritt, 63 Fed. 213; Kil- dare Lumber Co. v. National Bank'. C. C. A., 69 Fed. 2; First Nat. Bank v. Radford Tr. Co., C. C. A., 80 Fed. 569, 573; Dunn v. Waggoner, 11 Tenn. (3 Yerg. ) 59; Swann v. Myers. 79 N. C. 101. But see Hack v. Chicago & G. S. Ry. Co., 23 Fed. 356. But see Einstein v. Georgia, So. & F. Ry. Co., 120 Fed. 1008. 12 Rust v. Brittle Silver Co.. C. C. A., 58 Fed. 611; Kildare Lum- ber Co. v. National Bank. C. C. A., 69 Fed. 2; First Nat. Bank v. Rad- ford Tr. Co.. 80 Fed. 569, 571, 573. Sec Mommouth In v. Co. v. Means, C. C. A., l.'.l Fed. 159. 13 Fit/. Gerald v. Thompson, 222 U. S. 555, 'id L. ed. 314. 104 ORIGINAL JURISDICTION. [§ 41 fcween citizens of different States, although the cestui que trust is a citizen of a different State. 14 In a stockholder's suit to enforce a right of his corporation, where it is shown that the corporation-is under the control of the other defendants, it will be treated as upon the same side of the controversy that they are, for the purpose of determining the jurisdiction. 15 In one to prevent the majority <^f the stockhold- ers from causing the corporation to act in fraud of the minority, the corporation is to be aligned on the same side as the majority stockholders. 16 It has been held: that in a stockholder's suit, where the plaintiff has failed to comply with the equity rules by showing efforts to secure action by the other stockholders on an excuse for such failure, the corporation is to be treated as upon the same side of the controversy as the complainants. 1 ' Where the controversy for the control of the corporation tran- scends the rivalry of those claiming to be members of its board of control and the corporation itself is a mere instrumentality or holder of the title, it is properly made a party defendant and should not be aligned as a plaintiff merely because the plaintiffs belong to the faction that claims the power to appoint the mem- WPeper v. Fordyce, 119 U. S. 49 L. ed. 606, it was held, that 469, 30 L. ed. 435. where a stockholder's bill did not 15 Doctor v. Harrington, 196 U. conform to the requirement of the S. 579, 49 L. ed. 606; overruling a equity rules, by showing efforts made number of decisions of the lower to secure action by the stockholders, courts to the contrary. Woolsey v. or an excuse for such failure, the Dodge, Fed. Cas. Xo. IS. 032. 6 Mc- corporation must be aligned with Lean. 142; s. c, as Dodge v. Wool- the complainants. Waller v. Co- sey, IS Now. 331, 15 L. ed. 401; ler. 125 Fed. 821. DeNeufville v. New York & X. R. 16 De Xeufville v. New York & Co., C. C. A., 81 Fed. 10; MacGin- X. Ry. Co., C. C. A., 81 Fed. 10: niss v. Boston & M. Consol. Copper Redfield v. Baltimore & O. R. Co. & Silver Min. Co., 119 Fed. 96. 55 124 Fed. 929; Elkins v. Chicago, C. C. A. 648; Redfield v. Baltimore 119 Fed. 957. & O. R. Co., 124 Fed. 929; Mills v. 17 Waller v. Coler, 125 Fed. 821; City of Chicago, 127 Fed. 731 ; Groel Groel v. United El. Co.. 132 Fed. v. United Electric Co. of New Jer- 252. These cases were decided sey, 132 Fed. 252; Howard v. Xat. before Doctor v. Harrington. 196 Telephone Co.. j82 Fed. 215; Craw- U. S. 579, 49 L. ed. 606. A similar ford v. Seattle, R. & S. Ry. Co.. 198 ruling has been made since that de- Fed. 920. Before the decision of cision. Gage v. Riverside Trust Co., Doctor v. Harrington, 196 U. S. 579, 156 Fed. 1002. 1007. 41] DIFFERENCE OF CITIZENSHIP. 105 bers of the board. 18 In such a case, it has been held that trus- tees of the corporation, although in sympathy with the com- plainant, should be aligned with the defendants. 19 But in a suit to enjoin striking employees of a contractor with com- plainant, from intimidating the contractor, it was held, that such contractor, although he did not oppose the relief sought, could not be aligned on the same side of the controversy as the plaintiff so as to defeat the jurisdiction. 20 In a suit by the creditors of an insolvent corporation cit- izens of another State from the corporation and its assignees, charging improper conduct on the part of the assignees and praying for a receiver, it was objected to the jurisdiction of the Federal court that the action was really one by the corpora- tion against the assignees, and that the suit was brought by the creditors for the purpose of bringing the suit in the Fed- eral courts. It was held, that, as the creditors had the right to sue, this objection was not tenable. 21 The jurisdiction must appear on the face of the record. 22 Where one of the parties is made a defendant merely because he has refused to join as a party plaintiff, he is considered to be on the same sale of the controversy as the plaintiff, wdien the jurisdiction is determined ; 23 unless there is a substantial dis- pute between him and the plaintiff as to the division of the proceeds, or some other question involved in the suit; in which case it has been held, that he is on the side of the controversy opposite to such plaintiff. 24 In an action on a bond secured by 18 Helm v. Zarecor, 222 U. S. 32, 56 L. ed. 77. But see Stephens v. Smartt, 172 Fed. 400. l9Sliarpe v. Bonhara, 224 U. S. 241, 50 L. ed. 747. 20 Carroll v. Cheas. & 0. Coal' Agency Co., C. C. A., 124 Fed 305; s. c, as Cheas. & O. Coal Co. v. Fire Creek C. & C. Co., 119 Fed. 942. 21 Bell v. Ohio Life Ins. Co., Fed. Cas. No. 1,261. 22 Bell v. Ohio Life Ins. Co., Fed. Cas. No. 1,2(11. 23 Edgerton v. Gilpin. Fed. Cas. No. 4,280 (3 Woods. 277): Mis- souri v. Alt. 73 Fed. 302; Johnson v. Ford. 109 Fed. 501: Einstein v. Georgia, S. & F. Ry. Co.. V20 Fed. 1008: Joseph Dry Goods Co. v. Hecht, C. C. A., 120 Fed. 760: Mene- fee v. Frost, 123 Fed. 633. See al- so Bland v. Fleeman. 29 Fed. 669; Woodrum v. Clay, 33 Fed. 897 ; Megibben's Adm'rs v. Perin, 49 Fed. 183; approved as to this point upon reversal. Perin v. Megibben, C. C. A.. 53 Fed. SO, 91. 24 Everett v. Independent >vnoot Dist. of Rock Rapids. 109 Fed. 097: Wood v. Deskins, C. C. A., 141 Fed. 500. 10G ORIGINAL JURISDICTION. [§ 41 a mortgage, brought by citizens of one State against the citi- zens of another, one of the defendants, by her answer, prayed that the mortgage and bond be declared valid and foreclosed for her benefit and that of plaintiffs. The bond and mortgage were not divisible. All the defendants, including the one praying for relict', were citizens of the same State. It was held, that the Federal court had no jurisdiction as it was substantially an action between citizens of the same State. 25 An Ohio corpora- tion filed a bill in a Federal court in West Virginia against B., as trustee and individually, M., A., P., K., and the personal representative and heirs of G., all of whom were citizens of West Virginia, and a Pennsylvania corporation, alleging that land claimed by plaintiff and by K. and G. was conveyed to B., as trustee, to sell, and pay the proceeds to plaintiff, K., and G. ; that B. conspired with M., P. and A., who, on G.'s death qualified as his personal representative, and pursuant thereto, the value of the land having greatly increased, sold it to M. for much less, fraudulently concealing from plaintiff the fact of the increase ; that the consent of K. to the sale was obtained l>y permitting him to retain a one-fifth interest in the land, the other four-fifths being held by A., who joined the conspiracy to defraud G.'s heirs, M., P. and B. ; and that after title was conveyed by B. to M. the land was leased to the P. Co. for a bonus much larger than the price accounted for by B., with a royalty on oil taken from the land and other rentals and pay- ments. Complainant prayed that M., B., A., P., and K. be decreed to account for and pay over to plaintiff K., and the heirs of G., moneys received from the Pennsylvania Company, and that the latter be required to attorn to such beneficiaries. It was held, that the real controversy was as to the fraud al- leged to have been committed by B., A., M., P. and K. ; that plaintiff and the heirs of G. were, on the one side, opposed to the other parties ; that such heirs were indispensable parties, and, being citizens fo the same State as part of the other de- fendants, the court was without jurisdiction. 26 Where one tenant in common brought a suit against his co-tenant and others for partition of the land held in common, and to quiet the title as against claims of the defendant other than his co-tenant, but 25 Black lock v. Small, 127 U. S. 26 Trustees of Oberlin Col'ege v. 90. 32 L. ed. 70. Blair. 70 Fed. 414. § 41] DIFFERENCE OF CITIZENSHIP. 107 did not press it as a bill for partition, it was held, that it might be sustained as a bill to quiet the title of the complainant's un- divided interest, notwithstanding there was a want of diverse citizenship between him and the defendant, his co-tenant. 27 In an action by two of three trustees against a corporation resid- ing in another State, it was held, that the fact that one of the trustees, who refused to join as plaintiff in the suit, and was made a defendant, was a citizen of the same State as the cor- poration, did not deprive the Federal court of jurisdiction, on the ground that the trustee residing in the same State with de- fendant was a necessary party plaintiff, since that trustee was made such in order that the rights of all interested parties might be determined in one proceeding. 28 It was said : that if the jurisdiction of the court would be ousted by making all the parties concerned in interest plaintiffs, those who are citi- zens of the same State with the real defendants may refuse* to join in the suit, and may be made defendants. 29 It has been held: that in a suit for a partition, where all the defendants were citizens of different States from that of the plaintiff s'-citi- zenship, there should be no re-alignment of parties to defeat the jurisdiction because there were disputed questions in the case between the plaintiffs, which did not appear in the bill, although they might subsequently arise and be determined in the suit. 30 Complainants tiled a bill in a Circuit Court of the United States in California against defendants, who were citizens of that State, alleging that complainants were heirs at law of a decedent from whom, prior to his death, one of the defendants, who was also a brother and one of his heirs, had procured a conveyance of all his property without considera- tion, which was invalid by reason of the decedent's insanity; that subsequently such defendant, who was insolvent, had con- 27 Morse v. South, 80 Fed. 206. defendant and so defeat the ju- But see German Savings & Loan risdiction. Soc. v. Tull, C. C. A.. 136 Fed. 1; 28 Einstein v. Georgia Southern holding: that, in a suit for parti- & F. Ry. Co., 120 Fed. 1008. See tion. the fact that disputed ques- Monmouth Inv. Co. v. Means, C. tions, not appearing upon the face C. A., 151 Fed. 159. of the bill, might arise between 29 Wisner v. Ogden, Fed. Cas. No. the plaintiffs, who were citizens 17.014 (4 Wash. 631). of the same State, did not make it 30 German Saw & Loan Soc. v. necessary to treat one of them as Tull, C. C. A., 136 Fed. 1. 10. 108 ORIGINAL JURISDICTION. [§41 vejed such property to his -co-defendant in payment of an ante- cedent indebtedness. The prayer of the Bill was that the con- veyances be set aside as to such shares of the property as would have been inherited by complainants. It was held, that the court could not determine from such allegations and prayer that the interest of the defendant, who was a co-heir with com- plainants, would be best served by their success, so as to re- quire such an arrangement of parties as would make him a complainant, and defeat the court's jurisdiction; there being no proof of fraud or collusion by him and complainants. 31 Where the validity of a mortgage is in question, the mortgagor is pre- sumed to be on the same side of the controversy as the other parties who attack the mortgage. 32 It has been held : that in an action by a mortgagor to cancel certain mortgages and to foreclose a subsequent trust deed to the same property, although the cestui* que trustent have a common interest with plaintiff in showing the discharge of said mortgages, they are neverthe- less his adversaries as to the other matters in controversy, and will not be rearranged as parties plaintiff, so as to show diver- sity of citizenship. 33 In a garnishee proceeding after judg- ment, it was held, that the judgment debtor was on the same side of the controversy as the judgment creditor. 34 In an action for damages under the Kansas statute, because the plain- tiff's cattle caught Texas fever from cattle driven into the State in violation of the law, where the importer of the Texan cattle and those to whom he had sold the same under a contract, where- by they assumed his liability to the plaintiff, were joined as defendants ; it was held, that the importer's interest was not so adverse to that of his vendees as to justify his classification as a plaintiff, and thereby give such vendees a right of removal on the 1 ground of diverse citizenship. 35 In a suit by an attaching creditor to set aside judgments obtained against the debtor by confession, it was held, that other attaching creditors, whom 3iReavis v. Reavis, 98 Fed. 145. 33 Springer v. Sheets, 115 N. C. 32 Removal Cases, 100 U. S. 457, 370. 20 S. E. 469. 409, 25 L. ed. 593; Wolcott v. 34 Baker v. Duwamish Mill Co. Spjague, 55 Fed. 545; Boatmen's 149 Fed. 012. Bank v. Fritzlen, C. C. A.. 135 Fed. 35 Woodrum v. Clay, 33 Fed. 897. 650, 658. 660; reversing 128 Fed. 608; United States Mortg. Co. v. McClure, 70 Pac. 543, 42 Or. 190. § 42] DIFFERENCE OF CITIZENSHIP. 109 he had joined as defendants, were on the same side of the con- troversy as the plaintiff. 36 § 42. Formal parties to the controversy. The citizen- ship of formal parties; with no real interest in the controversy, does not affect the jurisdiction. 1 Such are parties holding the naked legal title,, with no actual interest or control over the subject-matter of the litigation, when all the equitable interests are therein represented. 2 Plaintiff and another contracted as partners to do certain work in the construction of a railroad as subcontractors. By a contract between themselves, previous- ly made and known to the principal contractor, it was agreed: that plaintiff should furnish the materials and do the work and receive and disburse the money received therefor, accounting 36 Pollok v. Louchheim, 19 Fed. 465. § 42. 1 Wormley v. Wormley, 8 Wheaton, 421, 5 L. ed. 651 ; Wood v. Davis, 18 How. 467, 15 L. ed. 460: Removal Cases, 100 U. S. 457, 25 L. ed. 593; Barney v. Latham, 103 U. S. 205, 26 L. ed. 514; Harter v. Kernochan, 103 U. S. 562, 26 L. ed. 411; Corbin v. Van Brunt, 105 U. S. 576, 26 L. ed. 1176; Maryland v. Baldwin, 112 U. S. 490, 28 L. ed. 822; Hervey v. Illinois Midland Ry. Co., Fed. Cas. No. 6,434 (7 Biss. 103) ; Girardey v. Moore, Fed. Cas. No. 5,462 ( 3 Woods, 397 ) ; Edger- ton v. Gilpin, Fed. Cas. No. 4,280 (3 Woods, 277) ; Taylor v. Rocke- feller, Fed. Cas. No. 13,802; Chica- go, St. L. & N. O. R. Co. v. McComb, Fed. Cas. No. 2,670 (17 Blatchf. 371); Foss v. First Nat. Bank, 3 Fed. 185, 1 McCrary, 474; Deford v. Mehaffy, 14 Fed. 181; Taylor v. Holmes, 14 Fed. 49S; Bates v. New Orleans, B. R. & V. R. Co., 16 Fed. 294; Gudger v. Western N. C. R. Co., 21 Fed. 81 ; Sioux City & D. M. Ry. Co. v. Chicago. M. & St. P. Ry. Co., 27 Fed. 770; New Chester Wa- ter Co. v. Holly Mfg. Co., C. C. A., 53 Fed. 19, 26; Carver v. Jarvis- Conklin Mortgage Trust Co., 73 Fed. 9; Garrard v. Silver Peak Mines, 76 Fed. 1 ; Title Guarantee & Trust Co. v. Studebaker, 100 Fed. 358; Wirgman v. Persons, C. C. A., 126 Fed. 449; affirming decree Persons v. Beling, 110 Fed. 877; Stoiner v. Mathewson, 77 Ga. 657; Withers v. John Hopkins Place Sav. Bank (Georgia), 30 S. E. 706; Harper v. Gaitheman (Kentucky), 1 Ky. Law. Rep. 419; Danvers Sav. Bank v. Thompson, 133 Mass. 1S2; Calloway v. Ore Knob Copper Co., 74 N. C. 200; Hadley v. Dunlap, 10 Ohio St. 1; Smith v. Baltimore & 0. R. Co., 7 Ohio Dec. 542. 2 Boon v. Chiles, 8 Pet. 532, 8 L. ed. 1034; Banigan v. City of Wor- cester, 30 Fed. 392 ; Lawrence v. Southern Pac. Co., 165 Fed. 241: Atchison, T. & S. F. Ry. Co. v. Phillips, C. C. A., 176 Fed. 663, holding that in an action by a widow under the California statute to recover damages for the (hath of her husband, the other heirs of the deceased, who are not entitled to share in the recovery, are necessary, but merely formal, parties. But see Dunn v. Waggoner, 11 Tenn. (3 Yerg.), 59. 110 ORIGINAL JURISDICTION. [§ 42 to his associate only for a share of the net profits of the contract. After the completion of the work, plaintiff brought suit in a Federal court to enforce a mechanic's lien, filed in the name of the partnership, for the balance due under the contract, al- leging such facts in his bill and that no net profits were earned under the contract. It was held : that it was competent for plaintiff to allege, for jurisdictional purposes, the contract be- tween him and his nominal partner ; and that under such agree- ment the citizenship of such partner did not affect the jurisdic- tion of the court, since he had no interest in the recovery and was neither an indispensable nor a necessary party. 3 The hus- band of a married woman when made a party to a suit affect- ing her separate estate is such a formal party. 4 In a suit in which it appears by the record that a party sues for the use of another, such plaintiff is a nominal party. 5 It has been held, that the following plaintiffs are formal parties, whose citizen- ship will not affect the jurisdiction, the status of the person interested in the recovery being alone considered : a State officer who sues to collect a penalty for the benefit of the State ; 6 the nominal payee of a bond suing for the use of another, who is entitled to the benefit of the same, such as the United States in a suit upon the bond of a receiver ; 7 the State in a suit upon 3 Ban v. Columbia Southern Ry. Co., 117 Fed. 21, 54 C. C. A. 407; reversing 109 Fed. 499. 4 Wormley v. Wormley, 8 Wheat. 421, 5 L. ed. G51 ; First Nat. Bank v. Bridgeport Tr. Co., 117 Fed. 969. 5 Browne v. Strode, 5 Cranch, 303, 3 L. ed. 108; Dimmock v. Doo- little, 29 Fed. 545; New Chester Water Co. v. Holly Mfg. Co., 53 Fed. 19, 3 C. C. A. 399, 3 U. S. App. 204: affirming 48 Fed. 879. And eases cited infra, notes. 6 Ferguson v. Ross, 3 L.R.A. 322, 3S Fed. 161. As to when the State may be a forma] party see Ex parte Nebraska, 209 U. S. 436, 52 L. ed. 876. Certain State statutes re- quired railroads to post on black- boards erected in telegraph passen- ger stations the time of the arrival of passenger trains, stating whether the same are late, and, if so, how much ; and provided a penalty for a violation of this requirement, to be recovered in the name of the State by the prosecuting attorney for the benefit of himself and the county school fund. It was held: that an action by the State, under such action, was not removable to the Federal court for diversity of citizenship, on the ground that the prosecuting attorney and the county receiving the penalty, if recovered, were the real parties in interest. Southern Ry. Co. v. State (In- diana), 72 N. E. 174. 7 U. S. v. Douglas, 113 N. C. 190, 18 S. E. 202. 42] DIFFERENCE OF CITIZENSHIP. Ill the bond of a public officer; 8 or an administrator; 9 or upon the bond of an attaching - creditor ; 10 the governor of a State in a suit upon a sheriff's bond, 11 or a forthcoming bond ; 12 a marshal in a suit upon an attachment bond ; 13 and, it has been said, a State in any suit brought in its name on the relation of another; 14 but not, it has been held, the United States in a suit brought for the benefit of a material man upon a con- tractor's bond. 15 So, it has been held, are: an agent, 16 or attorney, 17 or officer, 18 or director, 19 of a corporation, when made defendant in a suit against it seeking no relief against him even when in the controversy they sympathize with the complainant, 20 public officers against whom no relief is sought, except an injunction against their official action in aid of an 8 Indiana ex rel. Stanton v. Glo- ver, 155 U. S. 513, 39 L. ed. 243. 9 Maryland v. Baldwin, 112 U. S. 490, 28 L. ed. 822. 10 Missouri ex rel. Ranch v. Bowles Milling Co., 80 Fed. 101. "McNutt v. Bland, 2 How. 9, 11 L. ed. 159. 12 Wade v. Wortsman, 29 Fed. 754; Wortsman v. Wade, 77 Ga. 651, 4 Am. St, Rep. 102. 13 Huff v. Hutchinson, 14 How. 586, 14 L. ed. 553. 14 Jack v. Williams, 113 Fed. 823, 824. See Missouri v. Alt, 73 Fed. 302. Contra, State of Ohio v. Columbus & Xenia R. Co., 48 Fed. 626; an application for a manda- mus. 15 U. S. Fidelity & G'y Co. v. U. S. for the benefit of Kenyon, 204 U. S. 349, 51 L. ed. 516; affirming U. S. v. Churchyard. 132 Fed. 82; U. S. v. Henderlong, 102 Fed. 2; U. S. v. Sheridan. 119 Fed. 236; U. S. v. O'Brien, 120 Fed. 446, 448; U. S. v. Barrett, 135 Fed. 189; Burrell v. U. S., C. C. A.. 147 Fed. 44, 46. 16 Wood v. Davis, 18 How. 467, 15 L. ed. 460; City of New York v. New Jersey Steamboat Transp. Co., 24 Fed. 817; Brown v. Murray Nel- son & Co., 43 Fed. 614; Overman Wheel Co. v. Pope Mfg. Co., 46 Fed. 577; Sidway v. Missouri Land & Live Stock Co., 116 Fed. 381: Caro- thers v. McKinley Mining & Smelt- ing Co., 122 Fed. 305. 17 Brown v. Murray Nelson & Co., 43 Fed. 614. 18 Hatch v. Chicago, R. I. & P. R. Co., Fed. Cas. No. 6,204 (6 Blatchf. 105) ; Pond v. Sibley, 7 Fed. 129, 19 Blatchf. 189; National Bank of Lyndon v. Wells River Mfg. Co., 7 Fed. 750; City of New York v. New Jersey Steamboat Transp. Co., 24 Fed. 817; Lamm v. Parrot Silver & Copper Co., Ill Fed. 241. 19 Geer v. Mathieson Alkali Works. 190 U. S. 428, 47 L. ed. 1122; Pond v. Sibley, 7 Fed. 129, 19 Blatchf. 1S9; Politz v. Wabash R. Co., 153 Fed. 941. 20Sharpe v. Bonham, 224 U. S. 241, 56 L. ed. 747; overruling Stew- art v. Mitchell, 172 Fed. 905; Steph- ens v. Smartt, 172 Fed. 466. See Helm v. Zarecor, 222 U. S. 32, 56 L. ed. 77. 112 ORIGINAL JURISDICTION. [§ 42 act of another defendant, which the bill also seeks to enjoin. 21 Where one, acting as agent only, made insurance in his own name, and for all others concerned, although he and the under- writer were citizens of the same State; it was held, that the underwriter might be sued in those courts by the principal, who was a citizen of a different State. 2 To a bill filed by trustees on behalf of the creditors of a part- nership against a corporation of which one of the partners was president, for an accounting and the appointment of a receiver, upon allegations that the president so managed the affairs was the corporation and the partnership as to defraud the latter, and to divert its funds for the benefit of himself and the cor- poration ; it was held, that the president of the corporation, his partner in the firm, 23 and the firm itself were indispensable par- ties defendant, and where they were citizens of the same State as complainants such bill could not be maintained in a Federal court. 24 The directors are not nominal parties to a suit against them and their corporation, to cancel stock subscriptions and to compel them, individually, as well as the corporation, to refund the amounts already paid by the subscribers; 25 nor where they are charged with actual participation in a fraud. It was held that the following are formal parties: State and county officers in a suit to enjoin them from levying, col- lecting and disbursing the taxes required to pay certain bonds, when the bill also sought the declaration that the bonds be de- clared void and their collection enjoined, making bondholders parties defendant ; 27 a register of deeds in a suit to set aside certain land contracts with a prayer for an injunction against his recording the same ; 28 an officer appointed to sell land under a decree, when made defendant in a suit to set aside that decree 21 So held, of a sheriff and com- 23 Cabaniss v. Reco Min. Co., C. missioners of appraisal, who were C. A. 116 Fed. 318. made defendants to a suit to en- 24 Ibid. join a corporation from prose- 25 Seddon v. Virginia, T. & C. S. cuting condemnation proceedings. & I. Co., 36 Fed. 0, 1 L.R.A. 108. Sioux City & D. M. Ry. Co. v. Chi- 26 Fox v. Maekay, 60 Fed. 4. cago, M. & St. P. Ry. Co., 27 Fed. 27 Aroma Tp. v. Auditor of Pub- 770. lie Accounts, 2 Fed. 33. 22 Ruan v. Gardner, Fed. Cas. No. 28 Hyde v. Victoria Land Co., 125 12,100 (1 Wash. C. C. 145). Fed. 970. § 42] DIFFERENCE OF CITIZENSHIP. H3 for fraud. 29 An assignee for the benefit of creditors, a citizen cf the State of Rhode Island, filed a bill in equity in the State court, against a Massachusetts creditor of his assignor, who had obtained a State execution, and the officer charged with the service thereof, who was a citizen of Rhode Island, to estab- lish his trust, and to enjoin the sale of the trust property levied upon by the execution. Upon a petition by the execution credi- tor to remove the bill into the Circuit Court of the United States for the Rhode Island district ; it was held, that the officer was not. a formal, or unnecessary party to the bill, that his presence could, not be disregarded by the court in considering whether the applicant was entitled to the jurisdiction which he invoked ; and that the petition must be dismissed. 30 Citizens of Tennessee, holding policies of life insurance in a foreign cor- poration, filed their bill in the chancery court against that and other foreign corporations for relief and to subject to the satis- faction of their claims the property of that company, including certain State bonds deposited by it with the treasurer of the State "as security for risks taken by citizens of this State," and, for this purpose, made the treasurer, a citizen of Tennes- see, a party defendant. It was held, that the treasurer was a material party defendant, and the court refused, on the appli- cation of the foreign corporations, to accept their petition and bond and to authorize a removal. 31 It was held: that the juris- diction of the Circuit Court of the United States is not defeated by the fact that with the. principal defendant are joined, as nominal parties, the executors of a deceased trustee, citizens of the same State as the complainant, in order that such executors may perform the ministerial act of conveying title, in case the power to do so is vested in them by the laws of the State, 32 Where the holder of the equitable title is a party to the suit, a dry trustee, or passive trustee, or one who merely holds the legal title without any power over the property in question, he is generally considered to be a formal party. 33 Where the trust is active and the trustee has a power over the property, he is 29 Carver v. Jarvis-Conklin Mort- 88,Walden v. Skinner, 101 U. S. gage Trust Co.. 7.3 Fed. 9. .")77. 25 L. ed. 963. 80 Nye v. Nightingale, 6 R. I. 439. 33 Boon v. Cliiles, 8 Pet. 532, 8 31 Smith v. St. Louis Mut. Life L. ed. 1034; Bftnigan v. City of Tn«. Co., 2 Tenn. Ch. 656. Worcester, 30 Fed. 392. See Law- Fed. Prac. Vol. L— 8. 114: ORIGINAL JURISDICTION. [§ 42 usually considered to be a necessary party to the suit, whose citizenship must be considered in determining the jurisdiction. 34 Where two citizens of one State, trustees for bondholders under a mortgage of a railroad owned by a corporation of another State, foreclosed the mortgage, bought in the road in trust for the bondholders, and leased it to a citizen of the State to which they themselves belonged; and then a majority of the bond- holders, citizens of the State where the original company was, in pursuance of a statute there, formed themselves into a new corporation, to which the statute gave ownership and control of the road, and suit was brought in a State court against the lessee of the road by the trustees who had made the lease ; it was held : that defendant could not remove the suit from the State court to the Federal court on the ground, that it was wholly between the new corporation and the lessee, and that the trus- tees w r ere now merely nominal parties ; they, the trustees, not having been discharged from, nor in any way incapacitated from executing, their trust, and there having been, in fact, un- paid bondholders who had not joined in the creation of the new corporation, and who had yet a right to call on the trustees to provide for the payment of their bonds. 35 It has been held : that trustees are formal parties to a controversy concerning a claim for the cancellation of bonds secured by the deed of trust, although an injunction against a foreclosure is prayed. 36 In a suit to set aside a deed of trust made for the benefit of creditors, it appeared that plaintiff and the trustee were citizens of the same State, but that the beneficiaries under the deed, other than plaintiff, were citizens of another State. It was held, that the renee v. Southern Pac. Co., 165 Fed. 241: Atchison, T. & S. F. Ry. Co. v. Phillips, C. C. A., 176 Fed. 663. But see Dunn v. Waggoner, 11 Tenn. (3 Yerg.), 59. 34 So held, of a trustee of land conveyed to him, to secure the pay- ment of a loan in a suit to cancel the conveyance or to enjoin a sale thereunder. Thayer v. Life Asso- ciation of America, 112 U. S. 717, 28 L. ed. 864; Peper v. Fordyce. 119 U. S. 469, 30 L. ed. 435; reversing decree Fordyce v. Peper. 16 Fed. 516, 5 McCrary, 221; Teal v. Walk- er, Fed. Cas. No. 13,812. Contra, Chester v. Wcllford, Fed. Cas. No. 2,662 (2 Flip. 347). So held of trustees of a mortgage in a fore- closure suit brought by the bene- ficiary, after they have refused to sue. Allen-West Commission Co. v. Brashear. 176 Fed. 119. 35K„app v. Railroad Co., 87 II. S. (20 Wall.), 117, 22 L. ed. 328. 36 Lake St. El. R. Co. v. Ziegler, 99 Fed. 114, 39 C. C. A. 431. § 42] DIFFERENCE OF CITIZENSHIP. 115 trustee was an indispensable party to the suit, and that the Federal court, and therefore, had not jurisdiction. 37 It has been held: that in a controversy as to the priority of different liens upon mortgaged land, the mortgagor is a formal party, when the validity of neither of the liens is disputed ; 38 and that so is the lessor of a railroad when the lease is for more than ninety vears and the lessee has assumed all the lessor's obliga- tions ; 39 and that so is the owner of the fee as well as the lessee railway company, in a proceeding to condemn a right of way in the possession of the lessee holding a term of ninety years. 40 Defendants sued by fictitious names are always treated as for- mal parties, whose presence on the record does not affect the right of removal. 41 A garnishee is not considered to be a party to the suit, when determining the right of removal. 42 Where the essential parties on the adverse sides of a controversy were citizens of different States; it was held, that the fact that the executors of the deceased father of the principal defendant, who had been made defendants in order to reach his interest in his father's estate, were citizens of the same State as plaintiffs, would not affect the right of removal. 43 It has been held, that the following persons are not mere formal parties, and that their citizenship must be considered when the jurisdiction is determined : a party against whom a decree is essential to the relief sought by the suit ; 44 a stakeholder in the possession of 37 R U st v. Brittle Silver Co., 58 North Carolina R. Co., 123 Fed. Fed. 611, 7 C. C. A. 389, 19 U. S. 629. App. 237. 41 Park'nson v Barr, 105 F-.-d. 81 ; 38 Removal Cases, 100 U. S. 457, Loop v. Winters' Estate, 115 Fed. 469, 25 L. ed. 593. But see Thomp- 362. son v. Dixon, 28 Fed. 5; Tug River 42 Cook v. Whitney, Fed. Cas. No. Coal & Salt Co. v. Brigel, C. C. A., 3,166 (3 Woods, 715) ; Corbitt v. 67 Fed. 625. President, etc., of Farmers' Bank of 39 Seaboard Air Line Ry. v. Delaware, 113 Fed. 417. North Carolina R. Co., 123 Fed. 629; 43 Bacon v. Rives, 106 U. S. 99, Olanta Coal Min. Co. v. Beech 27 L. ed. 69. Creek R. Co., 144 Fed. 150; Chase 44 Wormley v. Wormley, 21 U. v. Beech Creek R. Co., 144 Fed. S. (8 Wheat.), 421, 5 L. ed. 651; 571. Contra, Bellaire v. Baltimore Carneal v. Banks, 23 U. S. (10 & Ohio R. R. Co., 146 U. S. 117, 36 Wheat.), 181, 6 L. ed. 297; Ward v. L. ed. 910; Washington v. Columbus Arrcdondo, Fed. Cas. No. 17,148 (1 & C. M. R. Co., 53 Fed. 673. Paine, 410) ; Post v. Buckley, 119 40 Seaboard Air Line Ry. Co. v. Fed. 249. 116 ORIGINAL JURISDICTION. [§ 43 property, to recover which the suit is brought; 45 an adminis- trator with the will annexed in a suit for a construction of the * will; 46 the personal representative of a deceased in an action to recover damages for his death, although the proceeds are for the exclusive benefit of the members of the dead man's family ; 4 ' a tenant in common with a leasehold interest and an equity for improvements, when joined with the landlord in a suit for ejectment; 48 a corporation in a stockholder's suit, to cancel a contract which it has made; 49 a corporation in a suit by its mortgagee, to cancel a contract made by it with another, al- though it was alleged that its assets were insufficient to pay the mortgage ; 50 a corporation in a suit to compel the transfer of stock, the certificates for which were held or claimed by an- other defendant. 51 Where the stakeholder brought a suit of interpleader; it was held, that a difference of citizenship be- tween the defendants justified a removal. 52 Under the Illionis statute, which gives the right of appeal to any one aggrieved by the order of a probate court allowing a claim, as construed by the Supreme Court of the State, any person appealing, other than the administrator, might prosecute the appeal in his own name. It was held, that where the claimant was the administrator, and a temporary administrator was appoint ted by the probate court to represent the estate, but the claim was actually contested by 45 Wilson v. Oswego Tp., 151 U. S. 50, 38 L. ed. 70; Massachusetts & S. Constr. Co. v. Cane Creek Tp., 155 U. S. 283, 30 L. ed. 152; Scoutt v. Keck, 73 Fed. 900, 20 C. C. A. 103. But see Pacific R. Co. v. Ket- chum, 101 U. S. 289, 298, 25 L. ed. 932; Bacon v. Rives, 106 U. S. 99, 27 L. ed. 69; Reeves v. Corning, 51 Fed. 774, 778; N. Y. Constr. Co. v. Simon, 53 Fed. 1; and cases cited. 46 Security Co. v. Pratt, 64 Fed. 405. 47Laubscher v. Fay, 197 Fed. 879. 48 Beardsley v. Torrey, Fed. Cas. No. 1,190 (4 Wash. C, C. 286); Cleveland v. Cleveland. C. C. & St. L. Ry. Co., C. C. A., 140 Fed. 171. Contra, Gwynne v. Roe. 4 Ohio (4 Ham.), 435; Texas v. Lewis, 12 Fed. 1; brought in Texas for tres- pass to try title to land, and the tenant disclaimed title. 49 East Tennessee, V. & G. R. Co. v. Grayson, 119 U. S. 240, 30 L. ed. 382. 50 Consol. Water Co. v. Babcock, 76 Fed. 243. See Dawson v. Co- lumbia Trust Co., 197 U. S. 178. 49 L. ed. 713; cited supra. 51 Crump v. Thurber, 115 U. S. 50, 29 L. ed. 328; Rogers v. Van Xortwick. 45 Fed. 513; Patterson v. Farmington Street Ry. Co., Ill Fed. 202. 52 First Nat. Bank v. Bridgeport Tr. Co.. 117 Fed. 969; Feidler v. Bartloson. C. C. A., 101 Fed. 30, cited, supra, § 41. § 42] DIFFERENCE OF CITIZENSHIP. 117 an heir of the decedent, who appealed from an order allowing the claim, the question of diversity of citizenship between the parties was to be determined upon the citizenship of such appel- lant, and not upon that of the temporary administrator. 53 In an ejectment instituted in a State court of Pennsylvania by a citizen of Pennsylvania, against the tenant in possession, also a citizen of that State, his lessor, a citizen of Maryland, after a judgment by default against the tenant, was, upon his petition admitted as a defendant to the suit. The new defendant then removed the cause; but the Circuit Court remanded the same for want of jurisdiction; since the remover was a co-defendant with the tenant in possession, a citizen of plaintiff's State. 54 Where a stockholder in a corporation sued to enjoin the use by another corporation ' of stock in the former, upon the ground that the latter had no corporate power to acquire the same; it was held, that the former company was not a necessary party, and that its joinder could, not prevent a removal. 55 It was held: that a corporation, which had sold all its property and franchises except the mere right to exist, and which had no officers or place of business, was only a nominal party in a suit against a stockholder to make him liable for his unpaid sub- scription ; notwithstanding the fact that the corporation had still the power to recognize and collect the stockholders' dues. 56 But upon a bill for the specific performance of a contract be- tween two individuals for the sale of certain shares of stock issued by a corporation, and to recover damages for the breach of such contract, which bill did not allege the insolvency of the other party to the contract, nor that he was about to dispose of the stock ; it was held that no cause of action was stated against the corporation, and that, if joined, it was merely a formal party, which could not affect the jurisdiction. 57 It has been held: that a corporation is a mere formal, and not a necessary, party to a suit to enjoin the use or transfer of certificates of stock which it has issued. 58 In an action against a principal 53 Schneider v. Eldredge, 125 Fed. 56 Wellman v. Howland Coal & G38. Iron Works, 19 Fed. 51. 5*Beardsley v. Torrey, Fed. Cas. 57 Lukas v. Milliken, 139 Fed. 816. No. 1,190 (4 Wash. C. C. 286). 58 County Court v. Baltimore & 55 Higgins v. Baltimore & 0. R. 0. R. Co., 35 Fed. 161. Co., 99 Fed. 640. 118 ORIGINAL JURISDICTION. [§ 43 and a surety, the surety eannot be considered as a merely formal party. 59 In a suit in support of an adverse claim to a land patent, the original applicant is not a formal party, although he has assigned his claim to another person joined in the suit. 60 A defendant, who has disclaimed an interest in the contro- versy. 61 or, who has made a default in appearance or pleading, 62 is not considered as a formal party, and his citizenship may prevent a removal. The fact that a defendant is pecuniarily irresponsible, so that a judgment against him would be of no value, does not make him a formal party. 63 § 43. Unnecessary parties to the controversy. — In cer- tain cases it has been held : that the citizenship of defendants, who are proper but not necessary nor indispensable parties to the controversy may be disregarded. 1 Such it has been held are : the mortgagor in a suit to determine the ownership of the bond and mortgage ; 2 defendants who have been made parties to a suit merely because they are alleged to be indebted to the principal defendant ; 3 in a suit for an accounting of lands sold by a corporation, the stockholders and incorporators of the same, who have procured the conveyance to it of the lands, in 59 Mutual Reserve Fund Life Ass'n v. Farmer, C. C. A.. 77 Fed. 929. 60 Blackburn v. Portland Gold Min. Co., 175 U. S. 571, 44 L. ed. 276. 61 New Jersey Zinc Co. y. Trot- ter, Fed. Cas. Xo. 10.167: Hax v. Caspar. 31 Fed. 499; Dow v. Brad- street Co., 46 Fed. 824; Goodnow v. Litchfield, 47 Fed. 753. See Wetherby v. Stinson, C. C. A.. 62 Fed. 173: supra. Held contra (as to original jurisdiction) Frazer Lu- bricator Co. v. Frazer, 23 Fed. 305; (as to right to removal) Wirgman v. Persons, C. C. A., 126 Fed. 449, 451; Wallin v. Reagan. 171 Fed. 758. In the former case at least, the disclaiming defendant was not a necessary party. Contra, Day v. Oatis (Mississippi). 37 So. 559; Reed v. Hardeman County, 77 Tex. 165, 13 S. W. 1024; (removal de- nied). See Cooper v. Preston, 105 Fed. 403; Davies v. Wells, 134 Fed. 139. 62 Putnam v. Ingraham, 114 U> S. 57, 29 L. ed. 65; Brooks v. Clark. 119 U. S. 502, 30 L. ed. 482: Park v. N. Y., L. E. & W. R. Co.. 70 Fed. 641; Lederer v. Sire, 105 Fed. 529. Contra, Judah v. Iowa Barb-Wire Co., 32 Fed. 561. Steele v. Culver, 211 U. S. 26. 53 L. ed. 74. 63 Deere. Wells & Co. v. Chicago. M. & St. P. Ry. Co., 85 Fed. 876. § 43. l Barney v. Latham. 103 U. S. 205. 215. 26 L. ed. 514. 518: Ruckman v. Ruekman. 1 Fed. 5S7; Deford v. Mehaffy. 14 Fed. 181 : Cor- bin v. Boies. 18 Fed. 3: Cella, Ad- ler & Tilles v. Brown. 136 Fed. 439. 2 Ruckman v. Ruckman, 1 Fed. 587. 3 Deford v. Mehaffv, 14 Fed. 181. 43] DIFFERENCE OF CITIZENSHIP. 119 which the plaintiffs claimed an interest; 4 the debtor in a suit by a creditor to set aside a judgment against him, alleged to have been obtained by fraud ; 5 the agent for another defendant in a suit for the specific performance of a contract made by the latter with the complainant, and for the delivery of securities in pursuance of the same, although such agent claimed an in- terest in such securities ; 6 in a stockholder's suit to enjoin the exchange by his corporation of debentures for new mortgage bonds with a stock bonus, the individual directors, the registrar of the stock, the depositary of the debentures, the trustees of the mortgage, and a committee representing the debenture hold- ers in the transaction ; 7 a person for whose benefit a corpora- tion was organized in a suit to enjoin such corporation from operating a ferry. 8 It has been held : that the following per- sons are necessary parties to the respective controversies be- tween their co-defendants and the plaintiff, and that the suits in which such controversies are litigated are not removable for difference of citizenship if they are citizens of the same State as their opponent : a lessor corporation in a suit by its stockholders to set aside a lease which it had made; 9 a lessee in a suit to set aside in his lessor's title ; 10 the mortgagor who has trans- ferred the mortgaged land in a suit to foreclose the mortgage, where it is sought to charge Jiim with a deficiency; 11 in a suit to cancel a judgment the judgment creditor although he has transferred orders by the debtor for the payment of the same 4 Barney v. Latham, 103 U. S. 205, 215. 26 L. ed. 514, 518. SCorbin v. Boies, 18 Fed. 3. 6 Cella. Adler & Titles v. Brown, 13G Fed. 439. 7Politz v. Wabash R. Co., 153 Fed. 941. 8 New York v. New Jersey Steam- boat Transp. Co.. 24 Fed. 817. 9 Central R. Co. of New Jersey v. Mills, 113 U. S. 249. 28 L. ed. 949; affirming Mills v. Central R. Co. of New Jersey, 20 Fed. 449. 10 Miller v. Sharp, 37 Fed. 101. 11 Under Act Conn. 1878, provid- ing that the foreclosure of a mort- gage shall be a bar to any further suit on the debt unless the per- sons liable therefor are made par- ties, where the mortgagor and mortgagee are citizens of that State, and the mortgagor has con- veyed the premises to a citizen of New York : the mortgagor is a necessary party to foreclosure pro- ceedings against the latter, if it is sought to charge him with any de- ficiency of the appraised value of the land to pay the mortgage debt, and the case is not a controversy wholly between citizens of different States, ami is not removable. Coney v. Winchell. 110 U. S. 227. 29 L. ed. 010; affirming order Winchell v. Carll, 24 Fed. St',:.. 120 ORIGINAL JURISDICTION. [§ -±4 to him ; 12 a party who has acquired the right to redeem certain securities pledged by another, in a suit to foreclose the right of redemption thereof; 13 in a suit to recover a deposit, a savings bank after it has brought in another claimant to the deposit as an additional party defendant, when the money has not yet been paid into court; 14 and, it has been said, any person whose interest is so bound up with the others, thai his legal presence as a party is an absolute necessity. 15 In an action for the assignment of dower brought by a citizen of Illinois, it appeared that, of the defendants in possession of the property, one, a citizen of Illinois. It did not appear that the trustee was authorized to represent his interests in the property for the purposes of this suit. It was held: that, as the beneficiary was a necessary party, and a citi- zen of the same State as plaintiff, the case could not be re- moved. 16 One who appears by the proceedings in the land office to be the applicant for a patent to a mining claim, and to be asserting his compliance with the statute, is a proper and necessary party defendant in a suit in support of an adverse claim under E. S. §§ 2325, 2326, not merely a nominal party, and he cannot be disregarded in determining the question of the jurisdiction of a Federal court on the ground of diverse citizenship. 17 § 44. Trustees and other representatives. Where a party sues or is sued as a trustee, 1 receiver, 2 executor or administra- 12 Independent District of Rock Rapids v. Bank of Rock Rapids, 48 Fed. 2. 13 Danvers Saw Bank v. Thomp- son, 130 Mass. 490. 14 Bailey v. New York Sav. Bank, 2 Fed. 14, 18 Blatchf. 77. 15 City of New Orleans v. Seixas (Lxmisiana). 35 La. Ann. 36. See First. Xat. Bank v. Smith, 6 Fed. 215: Watson v. Evers. 13 Fed. 104; Xulton v. Isaacs (Virginia), 30 Grat. 726. 16 Rand v. Walker, 117 U. S. 340. 29 L. ed. 907. it Blackburn v. Portland Gold- Min. Co., 175 U. S. 571, 44 L. ed. 276. § 44. l Chappedelaine v. Deche- naux, 4 Cranch, 306, 2 L. ed. 629; Bonnafee v. Williams. 3 How. 574. ]] L. ed. 732; Susquehanna & W. V. Railroad & Coal Co. v. Blatchford, 11 Wkll. 172. 20 L. ed. 179; Dodge v. Tulleys. 144 TJ. S. 451. 36 L. ed. 501 : Glenn v. Walker. 27 Fed. 577; Earp v. Coleman. 28 Fed. 340: Morris v. Lindauer, C. C. A.. 54 Fed. 23, 4 C. C. A. 162, 6 U. S. App. 510; Gill v. Stebbins, Fed. Cas. Xo. 5,431 (2 Paine. 417) ; Adams v. White, Fed. (as. Xo. 68; Goodnow v. Oakley, 68 Iowa, 25, § 41] IMFFKREXCE OF CITIZENSHIP. 121 tor, 3 or as the representative of a class, 4 and none of the per- sons whom he represents is named in the title of the cause, 5 nor appears to have an interest hostile to such representative ; 6 his citizenship, not that of his beneficiaries, nor of those whom he represents, nor the location of the trust estate, 7 is to be considered. The citizenship of the next friend or guardian ad litem of an infant, 8 of a lunatic, 9 or of a married woman, 10 is disregarded. But where the guardian of an infant, 11 or the 25 N. W. 912. But see Mead v. Walker, 15 Wis. 499. It has been said that the rule does not apply to a mere agent or trustee for an- other's use, whose agency is not coupled with an interest, but is re- vocable at any time. Bogue v. Chi- cago, B. & Q. R. Co., 193 Fed. 728, 734. 2 Farlow v. Lea, Fed. Cas. No. 4,649, 2 Cinn. Law Bull. 329; Da- vies v. Lathrop, 12 Fed. 353; Bris- enden v. Chamberlain, 53 Fed. 307; Snead v. Sellers, C. C. A., 66 Fed. 371 ; Pepper v. Rogers, 128 Fed. 987. 3 Childress v. Emory, 8 Wheaton, 642, 5 L. ed. 705; Bonnafee v. Wil- liams, 3 How. 574, 11 L. ed. 732; Rice v. Houston, 13 Wall. 66, 20 L. ed. 484; Blake v. Mekim. 103 U. S. 336, 26 L. ed. 563; Continental L. Ins. Co. v. Rhoads, 119 U. S. 237, 30 L. ed. 380; McElmurray v. Loomis, 31 Fed. 395: Harper v. Norfolk & W. R. Co., 36 Fed. 102; Bangs v. Loveridge, 60 Fed. 963; Popp v. Cincinnati, H. & D. Ry. Co., 96 Fed. 465; Cincinnati. H. & D. R. Co. v. Thiebaud, 114 Fed. 918. 52 C. C. A. 538: Bishop v. Boston & M. R. R., 117 Fed. 771; Laubscher v. Fay. 197 Fed. 879; Browne v. Browne, Fed. Cas. No. 2,035 (1 Wash. 429) ; Dodge v. Perkins, Fed. Cas. No. 3.954 (4 Mason, 435); Carter v. Treadwell. Fed. Cas. No. 2,480 (3 Story, 25); Hill v. Hen- derson, 14 Miss. (6 Smedi'> & M.), 351; Miller v. Sunde, 1 N. D. 1, 44 N. W. 301; Geyer v. John Hancock Mut. Life Ins. Co., 50 N. H. 224, 9 Am. Rep. 185; Middleton's Ex'rs v. Middleton (Pennsylvania), 7 Wkly. Notes Cas. 144. 4 Omaha Hotel Co. v. Wade. 97 U. S. 13; Jackson & Sharp Co. v. •Burlington & L. R. Co., 29 Fed. 474; Putnam v. Timothy Dry-Goods & Carpet Co., 79 Fed. 454; Interna- tional Trust Co. v. T. B. Townsend Brick & Contracting Co., 95 Fed. 850; Alsop v. Conway, C. C. A., 188 Fed. 568. 5 U. S. v. Myers, Fed. Cas. No. 15,844 (2 Brock. 516). 6 See supra, § 41. 7 Shirk v. City of La Fayette, 52 Fed. 857. 8 Williams v. Ritchey, Fed. Cas. No. 17.734 (3 Dill. 400) ; Woolridge v. McKenna. 8 Fed. 650; Dodd v. Ghiselin, 27 Fed. 405; Voss v. Neineber, 68 Fed. 947. Contra. In re McClean's Estate. 26 V\-d. 40. 9 Wiaruins v. Bethune, 29 Fed. 51 ; Wilcoxen v. Chicago, B. & Q. R. Co.. 1 16 Fed. 444. 10 Rtickman v. Palisade Land Co., 1 Fed. 367: Mead v. Walker. 15 Wis. 409. ii Mexican Cent. Ry. Co. v. Eck- m an. 187 U. S. 429. 47 L. ed. 245. 122 ORIGINAL JURISDICTION. [§ 45 curator or committee of a lunatic, 12 sues in his own name under the authority of a State statute, his citizenship, not that of his ward, is the test of the right of removal. Notwithstanding a State statute providing that a non-resident could not act as ad- ministrator; it was held, that an administrator there appointed was not estopped from showing, upon an application for a re- moval, that he was a citizen of another State. 13 When a mort- gage bondholder sued for a foreclosure, in behalf of himself and all the other bondholders, only 120 bonds having been issued; and the latter, who had not been made parties, the complaint alleging that some, but not all, were unknown to the plaintiff, intervened and prayed the same relief; it was held, that all such bondholders were indispensable parties, and in determining the jurisdiction of the court, must be considered to be upon the same side as the plaintiff, thus compelling a dismissal of the suit. 14 In an action for the assignment of dower, brought in a State court by a citizen of Illinois, it appeared that of two de- fendants who were in possession of the property, one, who was a citizen of New York, held the legal title as trustee for his co- defendant, a citizen of Illinois, though it did not appear that he was authorized to represent his interests in the property for the purposes of the suit. It was held, that the beneficiary was a necessary party, and, being a citizen of the same State as plain- tiff, was not entitled to a removal ; and that, the controversy not being separable, the trustee, although a citizen of another State, could not sustain a petition for removal. 15 § 45. Controversies to which aliens are parties. The Judicial Code gives the District Courts original jurisdiction of all suits of a civil nature, at common-law or in equity, where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars and "is be- tween citizens of a State and foreign States, citizens, or sub- jects." 1 A District ( 'ourt of the United States has original jurisdiction of an action by an alien against a citizen and resi- 12 Wiggins v. Betlmne, 29 Fed. .53 Fed. 513: distinguishing Stewart 51: Stout v. Kigney. 107 Fed. 545, v. Dunham. 115 V. S. 61, 20 L. ed. 4t be founded on a change of domicile, and permanent residence in the State to which he may have removed from another State. Mere residence is prima facie evidence of such change, although when it is explained and shown to have been for temporary purposes, the pre- sumption is destroyed. The inten- tion is to be collected from acts.' Lessee of Butler v. Farnsworth, 4 Wash. 101, 1 Abb. (U. S.), 211. 'If a citizen of one State think proper to change his domicile, and to re- move himself and family into another State, with a bona fide intention of abandoning his former place of residence, and to become an inhabitant or resident of the State to which he removes, he becomes, immediately upon such removal, ac- companied with such intention, a resident citizen of that State within the meaning of the provision of the Constitution relative to the jurisdic- tion of the Federal courts, and may maintain an action in the Circuit Court of the State which he has abandoned. . . . Time in rela- tion to his new residence, occupa- tion, a sudden removal back after instituting a suit, and the like, are circumstances which may be relied upon to show that his first removal was not buna fide or permanent, but will not disprove his citizenship in the place of his new domicile, if the jury are satisfied that his first re- moval was bona fide and without an intention of returning." Cooper v. Galbraith, 3 Wash. 564. 'If there lias been an actual removal, with intent to make a permanent resi- dence, and the acts of the party correspond with the purpose, the change of domicile is completed, and the law forces upon him the character of a citizen of the State where he has chosen his domicile.' Butler v. Farnsworth. supra. A temporary return to one's former place of residence, with views and for objects merely temporary, does not revive a former citizenship. Burnham v. Rangely. 1 Woodb. & M. 7. 'If the change of residence or citizenship is apparent only, and there has been, in fact, no change of residence, but only transfer of ap- parent residence, animo rerertendi, to give color of jurisdiction in a suit in the State of actual resi- dence, it may not avail ; but. where there is an actual change of resi- 46] CITIZENSHIP. 131 The filing of a declaration of his intention to become a citi- zen of the United States does not terminate a party's alienage, although he is permitted by the laws of the State of his resi- dence to vote and hold office there. 20 When a naturalized citi- zen took an oath of allegiance to the sovereign of a foreign county, of whom he had never been a subject, and accepted from that King an appointment as consul, but continued to reside in the United States ; it was held, that he remained an American citizen, and could not remove a case because of alienage. 21 It was held, that the marriage, in the United States of a citizen thereof to a foreign subject, with whom she lived in the United States until his death, did not make her an alien, although her husband was never naturalized. 22 A citizen of Cuba is an alien, and may sue in a Circuit Court of the United States, or may remove to such court a suit brought against him, in the cases in which an alien might so sue or remove. 23 The fact that a plaintiff has changed his residence and citizenship, for the pur- pose of bringing suit in the Federal court, does not divest it of jurisdiction if the change has been actually made, 24 without any dence and citizenship before suit brought, the motive to such change is not material, even if it was a desire to give capacity to sue in the courts of the United States.' Pond v. Vermont Valley R. Co., 12 Blatchf. 293. So. to effect a change of citizenship from one State to an- other, there must be an actual re- moval, an actual change of domicile, with a bona fide intention of aban- doning the former place of residence and establishing a new one, and the acts of the party must correspond with such purpose. . . . The question is one of mixed law and fact. ... It is apparent that the circumstance of the plaintiff's return to Milwaukee in December was one which if unexplained, would tend to throw doubt upon the per- manency of the alleged settlement in Minnesota. But if her return was for an object merely tempora- ry, as she alleges, then her domi- ciliary stains in that State would not be affected." See Adams v. Shirk. C. C. A., 117 Fed. 801. 20Baird v. Byrne, Fed. Cas. Xo. 757 (3 Wall. Jr. 1); Maloy v. Du- den. 25 Fed. 673; Creagh v. Equita- ble Life Assur. Soc. 88 Fed. 1 : Lanz v. Randall, 4 Dill. 425; Orosco v. Gagliardo. 22 Cal. 83. 21 Fish v. Stoughton (New York), 2 Johns. Cas. 707. 22 See Comitis v. Parkerson. 56 Fed. 556, 22 L.R.A. 148. 23 Betancpurt v. Mutual Reserve Fund Life Ass'n, 101 Fed. 305: Davis v. Dixon. 184 Fed. 500. 24 Briggs v. French, 2 Sumn. 251, 255, 250; Catlett v. Pacific Ins. Co.. 1 Paine, 594: Cooper v. Galbraith, 3 Wash. C. C. 546, 553; Case v. Clarke. 5 Mason. 70: Robertson v. Carson. 19 Wall. 04, 100. 22 L. ed. 178, 180: Wiemer v. Louisville Water Co., 130 Fed. 244. 132 ORIGINAL JURISDICTION. [§ 46 intention to return. It has been held that a party may testify that up to a certain date he was a citizen of a specified State, and that others cannot, but must confine their testimony to facts from which his citizenship can be inferred. 26 An allegation that a party is "a citizen of London, England," was held, to be insufficient to show that he w T as an alien. 27 But the averment that the complainants were "all of Cognac, France, and citizens of the Republic of France," was held to be suffi- cient. 28 Where plaintiffs sued as executors ; it was held to be insufficient to allege "that said plaintiffs, as such executors, are citizens of the State of New York ;" 29 but. it was held, to be sufficient to allege that the defendants, "as they are the qualified executors of the last w r ill and testament of James Brown, de- ceased, were, each and all, at the time of the commencement of this suit, and still are, citizens of the State of Xew York; and that the defendant John S. Schultze, also a qualified executor of the last will and testament of James Brown, deceased, was then, and still is, a citizen of the State of New Jersey." 30 It has been held : that an allegation that the plaintiff was a citizen of the United States, and a resident of a specified State therein, was sufficient, in view of the Fourteenth Amendment, to show that he was a citizen of such State. 31 The fact that a plaintiff has changed his residence and citizenship for the pur- pose of bringing suit in the Federal court does not divest the jurisdiction if the change has actually been made 32 without anv intention to return. 33 It has been held : that where the 25 Morris v. Gilmer. 129 U. P. 315. 32 L. ed. 000: Kin? v. U. S.. 5Si Fed. 0: Kinsman v. Holthaus. 50 Fed. 305; Allen v. So. Cal. Ry. Co.. 70 Fed. 370: Chambers v. Prince, 75 Fed. 170: Ala. G. S. R. Co. v. Carroll. C. C. A.. 84 Fed. 772. 26Kucker v. Bolles, C. C. A., 80 Fed. 504. 27 Stuart v. Faston, 156 U. S. 4G. 30 L. ed. 341. Cf. Rondot v. Tp. of Rogers, C. C. A., 70 Fed. 670: Jennes v. Landes. 84 Fed. 73: s. c, 85 Fed. 801. But see Betancourt v. Mutual R. F. L. Ass'n. 101 Fed. 305. 28 Hennessy v. Richardson Drug Co.. ISO V. S. 25, 47 L. ed. 007. 29Amory v. Amory, 95 U. S. 180. 24 L. ed. 428. 30 Cooke v. Seligman. 7 Fed. 203. 31 Clausen v. American Tee Co., 144 Fed. 723. 82Brigg's v. French, 2 Sumn. 251, 255. 250: Catlett v. Pacific Ins. Co., 1 Paine. 504; Cooper v. Galbraith, 3 Wash. C. C. 546, 553; Case v. Clarke. 5 Mason. 70: Rohertson v. Carson. 10 Wall. 94, 106, 22 L. ed. 178. 180. 33 Morris v. Gilmer. 120 U, S. 315, 32 L. ed. 000; Ala. G. S. R. Co. v. 47] CORPORATIONS. 133 plaintiff alleges that lie is a citizen of a certain State, and that fact is denied, the burden of proof is upon the defendant. 8 47 Corporations. For the purposes of the jurisdiction of a District Court of the United States, either originally or upon removal, a corporation is treated as if it were a citizen oi the State, by or under the laws of which it was chartered; or as is generally said, it is conclusively presumed to be composed of the citizens of such State. 1 The same presumption exists as regards a corporation chartered by or under the laws of a foreign country. 2 Where, however, stockholders in a corporation are themselves joined with or against it as parties to a suit the presumption does not extend to them in their individual ca- nacitv, although it still exists so far as the corporation is con- cerned 3 The location of the principal or usual place oi busi- Carroll, C. C. A., 84 Fed. 772; King- man v. Holthaus, 59 Fed. 305; King v. U. S., 59 Fed. 9; Chambers v. Prince, 75 Fed. 176; Allen v. So. Cal. Ry. Co., 70 Fed. 370. 34 Gilmer v. Grand Eapids, 16 Fed. 70S; Foster v. Cleveland, C, C. & St. L. Ry. Co., 56 Fed. 434; Sheppard v. Graves, 14 How. 505, 14 L. ed. 518; Nat. M. Ace. Ass'n v. Sparks, C. C. A., 83 Fed. 225; Adams v. Shirk. 117 Fed. 801, 55 C. C. A. 25; Hill v. Walker, C. C. A„ 167 Fed. 241. § 47. 1 Louisville, C. & C. P. Co. V. Letson, 2 How. 497, 11 L. ed. 353: Marshall v. Baltimore & O. R. Co., 16 How. 314, 14 L. ed. 953; Muller v. Dows, 94 U. S. 446. 24 L. ed. 208; Steamship Co. v. Tugman, 106 U. S. 118; St. Louis & St. F. Ry. Co. v. James, 161 IX S. 545, 562, 40 L. ed. 802, 808; Southern Ry. Co. v. Alli- son. 19Q l". S. 326, 47 L. ed. 1078; Barney v. Globe Bank, Fed. Cas. No. i,031 ' (5 Blatchf. 107) : Terry v. Imperial Fire Ins. Co., Fed. < as. No. 13,838 (3 Dill. 408) ; Purccll v. British Land & Mortgage Co.. 42 Ted. 465; Western Union Tel. Co. v. Dickinson, 40 Ind. 444: Stanley v. Chicago, R. I. & P- Ry- Co., 62 Mo. 508 ; Barrowcliffe v. La Caisse Gen- erate des Assurances Agricoles et des Assurance Contre LTncendie (New York), 1 City Ct. R. 151: Shelby v. Hoffman (Ohio). 7 Ohio St. 451; Fox v. American Casualty & Securitv Co. (Pennsylvania). 12 Pa. Co. Ct. R. 207, 2 Pa. Dist. R. 158. See State corporation as party in Federal courts, by Judge F. E. Baker, 13 Am. Law Review, 7. 2 Merchants' Cotton-Press & Stor- age Co. v. Insurance Co. of North America, 151 U. S. 368, 3S L. ed. 195; Terry v. Imperial Fire Ins. Co., Fed. Cas." No. 13,838 (3 Dill. 408) : Purcell v. British Land & Mortgage Co., 42 Fed. 465; Barrowcliffe v. La Caisse Generale des Assurances Agricoles et des Assurance Contre LTncendie (New York), 1 City Ct. R. 151; Baumgarten v. Alliance Assur. Co., 153 Fed. 301. 3 Dodge v. Woolsey, 18 How. 331, 15 L. ed. 401: Bacon v. Robertson, 18 How. 480, 15 L. ed. 499; Doctor v. Harrington. 196 U. S. 579, 49 L. ed. 6(16: Hanchett v. Blair. 100 Fed. S17. 41 C. C. A. 76: Dodd v. Louisville Bridge Co., 130 Fed. 186; 134 ORIGINAL JURISDICTION. IS 47 ness of the corporation is immaterial ; 4 even if all of its busi- ness is transacted, and all of its offices and places of business are situated, outside of the State where it was chartered; 5 and although it was organized for the purpose of doing business in other States. 6 ]STo such presumption exists in the case of a corporation which it is proved was organized for the sole pur- pose of bringing a controversy, in which its members were inter- ested, within the jurisdiction of a District Court of the United States. 7 But where it appeared that, for several years prior to the suit in the Federal court, the original owner had dis- cussed with counsel the advisability of conveying the land in question to a corporation, in order to be able to avoid individual liability for money borrowed to use in its improvement ; 8 and where the property affected by the litigation was a small portion of that conveyed to the corporation ; it was held : that the fact that the sole consideration for the transfer was the stock of the company, which had no other assets than that received from the grantors, whose citizenship was not diverse from that of the defendants, did not prevent the maintenance of the suit by the corporation in a Federal Court. 9 Ko such presumption exists in the case of a de facto corporation, which never acquired a legal existence. 10 A municipal corporation, such as a city, 11 1'tah-Xevada Co. v. De Lamar, 133 Fed. 113, 66 C. C. A. 179. 4 Phinizy v. Augusta & K. R. Co., 56 Fed. 273; United States v. S. P. Shotter Co., 110 Fed. 1. 5 Pacific R. R. v. Missouri Pac. Ry. Co., 23 Fed. 565. 6 P>aughman v. National Water- works Co., 46 Fed. 4. 7 Lehigh Mining & Mfg. Co. v. Kelly, 160 U. S. 327, 336, 40 L. ed. 44 1. 447: Miller & Lux v. East Side Canal & Irrigation Co., 211 U. S. 293. 53 L. ed. 189; Southern Realty Investment Co. v. Walker, 211 U. S. 603, 53 L. ed. 346; Gelders v. Hay- good. 182 Fed. 109, directing the disbarment of the attorneys unless within sixty days they dissolve the corporation and dismiss all suits brought in its name. See Kreider v. Cole, C. C. A., 149 Fed. 647; § 363. infra. 8 Irvine Co. v. Bond, 74 Fed. 849. 9 Slaughter v. Mallet Land & Cat- tle Co., C. C. A., 141 Fed. 282. lOGastonia Cotton Mfg. Co. v. W. L. Wells Co., 128 Fed. 369, 63 C. C. A. Ill; reversing 118 Fed. 190; Cowles v. Mercer County. 7 Wall. 118. 19 L. ed. S6; Ysleta v. Cauda, 67 Fed. 6 ; Loeb v. Trustees of ( 'o- lumbia Tp.. Hamilton County. Ohio, 91 Fed. 37; New Orleans v. Shep- pard. 10 La. Ann. 268. " Ysleta v. Canda, 67 Fed. 6; New Orleans v. Sheppard. 10 La. Ann. 268. § 47] CORPORATIONS. 135 a township, 12 or a county, 13 or a public board, composed of public officers, which has been created a corporation by the State laws, 14 is considered to be a citizen of the State within which it is situated, or to be composed of citizens of that State. An averment that the Board of Trustees of a State University was created by and exists under and by virtue of the law of a State, with authority to sue and be sued and to make and to use a common seal, without any allegation that it was a cor- poration created by and existing under the laws thereof, was held to be insufficient to sustain the jurisdiction of the State court on the ground of diverse citienship, where the citizenship of the trustees did not appear. 15 A national banking associa- tion, so far as the jurisdiction of the Federal courts is con- cerned, stands in the same position as a citizen of the State in which it is located. 16 Where a corporation, originally created in one State, afterwards becomes compulsorily a cor- poration of another State, in order to extend its powers, and it is engaged in interstate commerce; it is treated, for the purpose of jurisdiction, as composed of citizens of the State which first gave it corporate existence ; 17 but it was said that unless the case arises under the Constitution and laws of the United States, the Federal court can- is Loeb v. Trustees of Columbia Tp., Hamilton County, Ohio, 91 Fed. 37. 13 ('owles v. Mercer County, 7 Wallace. 118, 19 L. ed. 8(5. 14 Thomas v. Board of Trustees, 195 U. S. 207. is Thomas v. Board of Trustees, 195 C. S. 207, 49 L. ed. 100. 16 24 St. at L. p. 554; Petri v. Commercial Nat. Bank, 142 U. S. 644. 35 L. ed. 1144: First Nat. Bank v. Forest. 40 Fed. 705; Farmers' Nat. Hank v. McElhinney, 42 Fed. 801 ; supra, § 28. 17 St. Louis & St. F. Ry. Co. v. James. 1(11 U. S. 545. 40 L. ed. 802: Louisville, X. A. & C. Ry. Co. v. Louisville Trust Co., 174 U. S. 552, 4.'? L. ed. 1081 ; Southern Ry. Co. v. Allison. 190 TJ. S. 326, 47 L. ed. 1078: reversing 129 N. C. 336. 40 S. E. 991: Callahan V. Louisville & N. R. Co., 11 Fed. 536: Missouri Rac. Ry. Co. v. Castle. 224 U. S. 541, 56 L. ed. 875; Atlantic Coasf Line R. Co. v. Dunning, C. C. A., 166 Fed. S50: St. Louis & S. F. R. Co. v. Cross. 171 Fed. 480; Cum- mins v. Chicago, B. & Q. R. Co., 193 Fed. 238: Wilson v. Southern Ry. Co. (North Carolina). 36 S. F. Rep. 701, (overruling: Debnam v. South- ern Bell Telephone & Telegraph Company, 126 X. C. 831. 36 S. F. 269: Layden v. Knights of Pythias, etc.. 128 X. C. 546. 39 S. E. 47: and Matins v. Railway Company, 53 S. C. 246. 257): Wilson v. Southern Ry. Co. (South Carolina ). 41 S. E. 971, 64 S. C. 162; affirming on re- hearing judgment 36 S. E, 701 ; 136 ORIGINAL JURISDICTION. [« « not adjudicate its rights or liabilities as a corporation of a State, citizens of which are upon the other side of the controversy. 18 Otherwise, where a corporation is char- tered by two or more States, it has generally been held: that it should be treated, for the purpose of jurisdiction, as composed of citizens of the State where the suit is brought ; 19 but the rule Math is v. Southern Ry. Co. (South Carolina).. 31 S. E. 240: Calvert v. Southern Ry. Co. (South Carolina), 41 S. E. 963, 64 S. C. 139: affirming on rehearing judgment 36 S. E. 750. See Patch v. Wabash Railroad Co., •207 U. S. 277, 52 L. ed. 204. 18 Louisville, N. A. & C. Ry. Co. v. Louisville Trust Co., 174 U. S. 552, 563, 577, 43 L. ed. 1081, 1087, 1092. 19 Ohio & M. R. Co. v. Wheeler, 1 Black. 286. 17 L. ed. 130: Rail- nay Co. v. Whitton, 13 Wall. 270. 20 L. ed. 571 ; Mallei v. Dows, 94 I. S. 444. 24 L. ed. 207; Memphis & C. R. Co. v. Alabama, 107 U, S. 581, 27 L. ed. 518; Patch v. Wabash Railroad Co., 207 U. S. 277. 52 L. ed. 204; Minot v. Philadelphia, W. & B. R. Co., Fed. Cas. Xo. 9,645 (2 Abb. U. S. 323); affirmed in 18 Wall. 206, 21 L. ed. 888: St. Louis, A. & T. H. R. Co. v. Indianapolis & St. L. R. Co., Fed. Cas. No. 12,237 (9 Biss. 144) ; Home v. Bos- ton & M. R. R., 18 Fed. 50: Col- glazier v. Louisville, X. A. & C. Ry. Co., 22 Fed. 568; Union Trust Co. v. Rochester & P. R. Co., 29 Fed. 609; Page v. Fall River, W. & P. R. Co., 31 Fed. 257; Phinizy v. Augusta & K. R. Co., 56 Fed. 273: Taylor v. Illinois Cent. R. Co., 89 Fed. 119; Smith v. New York, New Haven & H. Railroad, 96 Fed. .1114: Walters v. Chicago, B. & Q. R. Co.. 104 Fed. 337; Boston & Maine R. R. v. Hurd. 108 Fed. 116. 47 C. C. A. 615. 56 L.R.A. 193: Goodwin v. New York. N. H. & H. R. Co., 124 Fed. 358: Goodwin v. Boston & M. R. R.. 127 Fed. 986; Alabama & G. Mfg. Co. v. Riverdale Cotton Mills. C. C. A., 127 Fed. 497; Lake Shore & M. S. Ry. Co. v. Eder, C. C. A. 174 Fed. 944; St. Louis & S. F. R. Co. v. Cross, 171 Fed. 480: Fairfield v. Great Falls Mfg. Co., 175 Fed. 305: Lewis v. Maysville & B. S. R. Co. (Kentucky), 76 S. W. 526. 25 Ky. Law. Rep. 948; Illinois Cent. R. Co. v. Hibbs (Kentucky), 78 S. W. 1116. 25 Ky. Law Rep. 1899: Home v. Boston & M. Rail- road. 62 N. H. 454; Allegheny County v. Cleveland & P. R. Co., 51 Pa. (1 P. F. Smith), 228, 88 Am. Dec. 579: Baltimore & O. R. Co. v. Pittsburg, W. & K. R. Co., 17 W. Ya. 812. This distinction was noted by the court in South- ern Railway Co. v. Allison, 190 U. S. 326. 337. 338, 47 L. ed. 1078, 1083, 10S4: but without stating whether it would be followed in the future. Contra, Nashua & Lowell R. R. Corp. v. Boston & L. R. R. Corp., 136 U. S. 356, 34 L. ed. 363. In that case, two railroad corpora- tions with the same name, having their junction at the State line, were respectively incorporated by the laws of New Hampshire and Massachusetts, the New Hampshire corporation being the first created. Their subsequent consolidation was first authorized by a law of Massa- chusetts, which, by its terms, did not take effect until authorized bv 47] CORPORATIONS. 137 may be different where the cause of action arose in another State from that where it is sued. 20 Where the foreign cor- poration, subsequent to the injury which caused the suit, be- came incorporated in the State where the injury was done, it was held that, for the purposes of the suit, it should be treated as a foreign corporation. 21 Where there is a merger, one cor- poration remaining in existence and the other being absorbed in the same, the company continues to be a citizen of the same State as that of the former. 22 In case of a consolidation of corporations chartered by different States; if the consolidation creates a new corporate entity and is made under the laws of a single State, it seems that the new company must be treated as a a law of New Hampshire and ac- cepted by the stockholders, both of which authorities were subsequently obtained. It was held: that the consolidated company, a New Hamp- shire corporation, might sue an- other Massachusetts corporation for an accounting in a suit in the Cir- cuit Court of the United States for the District of Massachusetts. Of this case, Judge Lowell said: "The Supreme Court, although, perhaps not with complete logical consisten- cy, treated the plaintiff as being a corporation created in 1'835." the date of the first incorporation prior to the consolidation, "by New Hampshire and by New Hampshire alone. . . . The two corpora- tions of New Hampshire and Massa- chusetts, operated together, was held, by the Supreme Court, to con- stitute ... an anomalous union of two corporations created for dis- tinct purposes by different States, which had been united as to their business and property, but not as to their corporate existence.'' Good- win v. N. Y., N. H. & H. R. Co., 124 Fed. .358. 365. The statutes of Alabama required a railroad com- pany, previously incorporated in Tennessee, to open books in Alaba- ma for the subscription to "its capi- tal stock, in order to afford citizens of that State an opportunity to sub- scribe to a specified proportion of the same, and also provided that elections for directors should be held at the same time in both Ala- bama and Tennessee; the court held, that by reason of the particular lan- guage used in the act, there had been a new corporation formed in Alabama : and that the company could not remove a suit brought against it in Alabama by a citizen of that State. Memphis & Charles- ton R. R. Co. v. Alabama, 107 U. S. 581, 584, 27 L. ed. 51S, 519. 20 Patch v. Wabash Railroad Co., 207 U. S. 277, 283, 52 L. ed. 204, 207. 21 Mowery v. Southern Ry. Co., 129 N. C. 351, 40 S. E. 88. 22 Lee v. Atlantic Coast Line R. Co., 150 Fed. 775: where the fact that the transaction left a large part of the capital stock of one of the companies outstanding and all that of the other surrendered and cancelled; was held, to be evidence of the intent that the former com- pany should continue in existence. 138 ORIGINAL JURISDICTION. [§ 47 citizen of that State alone. 23 If such consolidation, however, is made under the laws of Loth the States, then, it has been held : that the consolidated corporation is to be treated as a citizen of both, and when sued in either State by a citizen thereof, it has no right of removal ; 24 but that the District Court of the United States has jurisdiction of a suit against it in one of these States by a citizen of another. 25 A general law enabling foreign corporations of a certain class to transact business in a State upon compliance with certain conditions, or a special en- abling law to such effect, does not prevent a corporation which complies with the same from removing a suit against it because of a difference of citizenship between it and a citizen of such a State. 26 The appointment of an attorney in a foreign State 23 YVestheider v. Wabash Railroad Co., 115 Fed. 840. There the for- mer corporations conveyed all their property to the new company, and the agreement of consolidation was recorded in the offices of the Secre- tary of State and recorders of the different counties "where one of the lailroads was situated in Illinois; but the new corporation was held, to have been incorporated under the laws of Ohio and to be a citizen thereof, and not a citizen of Illi- nois. In Patch v. Wabash Railroad Co., 207 U. S. 277, 52 L. ed. 204; Winn v. Wabash Railroad Co., 118 Fed. 55, it was held, that the same consolidated company remained, in each of the States where one of its constituents was situated, a citizen thereof. 24Muller v. Dows, 94 U. S. 444, 24 L. ed. 207; Patch v. Wabash Railroad Co., 207 U. S. 277, 52 L. ed. 204; Chicago & W. I. R. Co. v. Lake Shore & M. S. Ry. Co.. 5 Fed. 19, 10 Biss. 122; Johnson v. Phila- delphia. W. & B. R. Co., 9 Fed. 6; Paul v. Baltimore & O. & C. R. Co., 44 Fed. 513; Goodwin v. New York, N. H. & H. R. R. Co., 124 Fed. 358 ; Goodwin v. Boston & Maine R. R.. 127 Fed. 986; Wasley v. Chicago, R. I. & P. Ry. Co., 147 Fed. 608; Cummins v. Chicago, B. & Q. R. Co., 193 Fed. 238. But see Nashua & Lowell R. R. Corporation v. Bos- ton & Lowell R. R. Corporation, 136 U. S. 356, 34 L. ed. 363, supra, note 19. The Boston & Albany Rail- road Company has been held to be a corporation of both Massachusetts and New York so as to justify the assessment of a transfer tax on its shares in each State. Moody v. Shaw, 173 Mass. 375; Matter of Cooley, 113 App. Div. (N. Y.) 388. 25 Marshall v. Baltimore & O. R. Co., 16 Howard, 314, 14 L. ed. 953; Wheeling v. City of Baltimore, Fed. Cas. No. 17.502 (1 Hughes, 90); Williamson v. Krohn, 66 Fed. 655, 13 C. C. A. 668. 31 U. S. App. 325; Missouri Pac. Ry. Co. v. Meeh, C. C. A., 69 Fed. 753, 30 L.R.A. 250; Smith v. New York, N. H. & H. R. Co., 96 Fed. 504; Winn v. Wabash R. Co., 118 Fed. 55; Wasley v. Chicago. R. I. & P. Ry. Co., 147 Fed. 608. 26 Owen v. New York Life Ins. Co.. Fed. Cas. No. 10.631 (1 Hughes, 322) ; Scott v. Texas Land & Cattle Co., 41 Fed. 225; Amsden v. Nor- § 47] CORPORATIONS. 139 with a consent that process served upon him shall bind the cor- poration ; 27 or the operation of a railroad in another State under a lease, 28 or under a purchase from a domestic corporation ; 29 or the filing, in the office of the Secretary of State, of duly authenticated copies of its charter and by-laws; 80 or, it has been held, the subsequent acceptance of a paper described as a charter issued by the Secretary of State and reciting a merger, union and consolidation of a domestic with a foreign corpora- tion ; 31 or the legislative recognition of the existence within a State of a corporation chartered elsewhere ; 32 or even the legis- wich Union Fire Ins. Soc, 44 Fed. 515; Amsden v. Traders' Ins. Co. of Chicago, 44 Fed. 515; Goodloe v. Tennessee Coal, Iron & R. Co., 117 Fed. 348; Morton v. Mutual Life Ins. Co., 105 Mass. 141, 7 Am. Eep. 505; Fisk v. Chicago, R. I. & P. R. Co. (New York), 53 Barb. 472; Newhall v. Atlantic, etc., Ins. Co., 8 Phila. 106. 27 Lee v. Aetna Ins. Co., Fed. Cas. No. 8,181; Hatch v. Chicago. R. I. 6 P. R. Co., Fed. Cas. No. 6,204 ( 6 Blatchf. 105); Owen v. New York Life Ins. Co., Fed. Cas. No. 10,631 (1 Hughes, 322) ; Fales v. Chicago, M. & St. P. Ry. Co., 32 Fed. 673; Scott v. Texas Land & Cattle Co., 41 Fed. 225; Amsden v. Norwich Union Fire Ins. Soc, 44 Fed. 515; Amsden v. Traders' Ins. Co. of Chicago, 44 Fed. 515: Morton v. Mutual Life Ins. Co.. 105 Mass. 141, 7 Am. Rep. 505; Fisk v. Chicago, R. I. & P. R. Co. (N. Y.), 53 Barb. 472: Stevens v. Phoenix Ins. Co., 41 N. Y. 149; Newhall v. Atlantic, etc., Ins. Co., 8 Phila. 100; Fox v. Amer- ican Casualty Ins. & Security Co. (Pennsylvania), 12 Pa. Co. Ct. R. 207, 2 Pa. Dist. R. 158. 28 Baltimore & O. R. R. Co. v. Koontz, 104 U. S. 5, 26 L. ed. 643; Callahan v. Louisville & N. R. Co., 11 Fed. 536; Crane v. Chicago & N. W. Ry. Co. 20 Fed. 402: affirming Chicago & N. W. Ry. Co. v. Crane, 113 U. S. 424. 28 L. ed. 10ti4: Wil- kinson v. Delaware, L. & W. R. Co., 22 Fed. 353; Willson v. Winchester & P. R. Co., 99 Fed. 642, 41 C. C. A. 215: affirming decree. Wilson v. Winchester & P. R. Co.. 82 Fed. 15; Treadway v. Chicago & N. W. Ry. Co., 21 Iowa, 351. 29 Williams v. Missouri. K. & T. Ry. Co., Fed. Cas. No. 17,728 (3 Dill. 267) ; Antelope Co. v. Chicago, B. & Q. R. Co., 16 Fed. 295: Chica- go, St. P., M. & O. Ry. Co. v. Da- kota County, 28 Fed. 219; Conn v. Chicago. B. & Q. R. Co.. 48 Fed. 177: distinguishing Fitzgerald v. Missouri Pac. Ry. Co.. 45 Fed. 812; Morgan v. East Tennessee & V. R. Co., 48 Fed. 705. 30 Pennsylvania R. Co. v. St. Louis. A. & T. H. R. Co., 118 I . S. 290. 30 L. ed. 83; St. Louis. A. & T. H. R. Co. v. Pennsylvania R. R. Co.. 118 U. S. 630. 30 L. ed. 284: Southern Ry. Co. v. Allison, 190 U. S. 326. 47 L. ed. 1078: reversing 129 N. C. 336: Chicago. I. & N. P. R. Co. v. Minnesota & N. \V. R. Co., 29 Fed. 337. 31 Lee v. Atlantic Coast Line R. Co.. 15(1 Fed. 775. 792. 32 Martin's Adm'r v. Baltimore & Ohio R. Co.. 151 U. S. 673, 38 L. ed. 140 ORIGINAL JURISDICTION. [§ 48 lative grant of a charter making it a domestic corporation, when such grant is not accepted : 33 do not make a foreign corporation a citizen of such other State and cut off its right of removal. Where parties sued, or were sued, as corporations, and there was no averment that thev were created bv, or organized under, the laws of any specified State, it was held to be insufficient to allege that one was a citizen of a certain State; 34 or that it was "duly established by law, having its principal place of business" in a specified State, 35 or that it '"'claims to be" a corporation organized under the laws of a specified State, as a company of a specified character. 36 An allegation that a party was a cor- poration under the laws of the State of Virginia, and a citizen of Virginia, and a resident of the western district thereof, was held to be sufficient. 37 § 48. Unincorporated stock companies and associations. There is no presumption as regards the citizenship of mem- bers of unincorporated joint stock companies, even where the law under which they were organized authorizes them to sue and be sued in the name of one or more of their officers ; and, it has been held, that a case where one of them is a party cannot be removed because of diverse citizenship, unless all the mem- bers of such company are citizens of different States from those 311; Antelope Co. v. Chicago, B. & Q. R. Co.. 16 Fed. 295: Moore v. Chicago.. St. P., M, & 0. Ry. Co., 21 Fed. 817; Taylor County Court v. Baltimore & 6. R. Co., 35 Fed. 161; Baltimore & 0. R. Co. v. Ford, 35 Fed. 170; following Baltimore & 0. R. Co. v. Harris. 12 Wall. 65. 20 L. ed. 354; Chapman v. Alabama G. 5 R. Co., 59 Fed. 370; Markwood v. Southern Ry. Co., 65 Fed. 817. 33 Pennsylvania R. Co. v. St. Louis. A. & T. H. R. Co., 118 U. S. 290, 30 L. ed. 83; Nashua & Lowell R. R. Corporation v. Boston 6 Lowell R. R. Corporation, 136 U. S. 356, 34 L. ed. 363. 34 Thomas v. Board of Trustees of Ohio State University. 195 U. S. 207, 49 L. ed. 160: Lonergan v. Illinois Cent. R. Co., 55 Fed. 550; Frisbie v. Chesapeake & O. R. Co., 57 Fed. 1 : De Loy v. Traveler's Ins. Co., 59 Fed. 319; American S. R. Co. v. Johnson, 60 Fed. 503; Winkler v. Chicago & E. I. R. Co., 108 Fed. 305 : Dalton v. Milwaukee Mechan- ics' Ins. Co., 118 Fed. 876; Knight v. Lutcher & Moore Lumber Co., 136 Fed. 404. Contra, Oakey v. Com- mercial & Railroad Bank, 14 La. O. S. 515; Guarantee Co. of North America v. First Nat. Bank (Vir- ginia), 28 S. E. 909. 35 New York & New England R. R. Co. v. Hyde, C. C. A., 56 Fed. 188, 191. 36 Lownsdale v. Gray's Harbor Boom Co.. 117 Fed. 983. 87 Mathieson Alkali Works v. Mathieson, C. C. A., 150 Fed. 241. 49] PARTNERSHIPS. 141 of all the parties on the opposite side of the controversy. 1 The same rule applies to voluntary associations, such as trade unions, which are not incorporated. 2 § 49. Partnerships. There is no presumption that the members of a partnership, whether general or limited, are citi- zens of the State where it was organized; and the citizenship of all its members must be considered when a removal is sought in a suit to which it is a party, even when the State law au- thorizes them to sue and be sued in the firm name. 1 It was so held in a State where a partnership was considered to be a legal entity, 2 and as to limited partnerships organized under the Michigan, 3 Xew York, 4 and Pennsylvania 5 statutes. Where a. copartnership was sued alone by its firm name under section 3468 of the Iowa Code, authorizing a suit to be brought either against a partnership or its members, or both, the members of § 48. 1 Chapman v. Barney. 129 U. S. 677; Dinsmore v. Philadel- f phia & R. R. Co., Fed. Cas. No. 3.921; Jewish Colonization Ass'n v. Solomon & Germanski, 125 Fed. 994. Contra, Maltz v. American Ex- press Co., Fed. Cas. No. 9.002 (1 Flippin, 611) ; Fargo v. Louisville, N. A. & C. Ry. Co., 6 Fed. 787; Baltimore & 0. R. Co. v. Adams Express Co., 22 Fed. 404; Whit- man v. Hubbell, 30 Fed. 81: Saun- ders v. Adams Express Co., 136 Fed. 494. See Rosenfield v. Adams Express Co. (Louisiana), 21 La. Ann. 233. All these cases arose under the New York statute. But see Boatner v. American Express Co., 122 Fed. 714; where the treas- urer of such a joint stock associa- tion was allowed to remove a suit brought against him under section 25 of the Kentucky civil code of practice, authorizing one or more of numerous parties to sue or de- fend for the benefit of all. 2 A. R. Barnes & Co. v. Berry, 156 Fed. 72; Irving v. Joint Dist., Council of New York. &c. of United Brotherhood of Carpenters, &c, 180 Fed. 896. § 49. 1 Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 449, 44 L. ed. 842; H. L. Bruett & Co. v. F. C. Austin Drainage Exca- vator Co., 174 Fed. 668, under Iowa statute; Empire Rice Mill Co. v. K. & E. Neumond, 199 Fed. 800. 2 Empire Rice Mill Co. v. K. & E. Neumond, 199 Fed. 800, Louisiana statute. 3 Fred Macey Co. v. Macey, 135 Fed. 725, 68 C. C. A. 363. 4 Jewish Colonization Ass'n v. Solomon & Germanski, 125 Fed. 994. 6 Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 449. 44 L. ed. S42: reversing 86 Fed. 370, 30 C. C. A. 108; and overruling: Bushnell v. Park Bros. & Co., 46 Fed. 209: Carnegie. Phipps & Co. v. Hulbert. 53 Fed. 10, 3 C. C. A. 391, 10 U. S. App. 454: Andrews Bros. Co. v. Youngstown Coke Co., C. C. A., 86 Fed. 585. In all these cases the partnership was organized under Pa. Act of June 2, 1874 (P. L. 271). 142 ORIGINAL JURISDICTION. [§ 50 the firm not being named in the plaintiff's petition, which al- leged the defendant to be a corporation, it was held, that the suit could not be removed by the members of the firm, who were citizens of a different State from that of the plaintiff. 6 § 50. Under grants of different States. Where there is a controversy between citizens of the same State claiming land under grants of different States, it seems that the District Court of the United States has jurisdiction irrespective of the amount involved. 1 Where one party claimed land under a grant of Xew Hampshire made when Vermont was a part of that State, and the other under a grant from Vermont made after their separation, it was held that the controversy arose between per- sons -claiming lands under grants of different States. 2 Where. a controversy is founded upon conflicting grants of different States, the Federal courts have jurisdiction irrespective of the equitable title of the parties before either grant. 3 It was held : that the Federal courts did not take jurisdiction of a case be- tween citizens of the same States, where the defendant claimed the land in dispute under a grant by the State of North Caro- lina, while the plaintiff claimed under a grant by the State of Tennessee, in which, however, the State of Tennessee did not act by virtue of her sovereignty as a State, but only by virtue of a power delegated by Xorth Carolina to perfect titles, which, before the separation of the States, were inaccurate and imper- fect. 4 Under the former Judiciary Act, it was held that a party claiming land under a grant from a State where the suit was pending could not remove the case because the other party claimed under a grant from another State. 5 § 51. Ancillary jurisdiction. After a Federal court has acquired jurisdiction, through the existence of the necessary dif- ference of citizenship between the original parties, ancillary proceedings may be therein instituted, although parties upon BRalya Market Co. v. Armour & 3 L. ed. 73.5; Colson v. Lewis, 2 Co., 102 Fed. 530. Wheat. 377, 4 L. ed. 200. § 50. i See Holt on Concurrent 3 Colson v. Lewis, 2 Wheat. 377, Jurisdiction, § 60: In re Hohdrst, 379. 4 L. ed. 266. 150 U. S. 653, 660, 37 L. ed. 1211, 4 Thompson v. Kendrick's Les- 1214; In re Keasby & Mattison Co., see, 6 Tenn. (5 Hayw.) 113. 160 U. S. 221, 230, 40 L. ed. 402, 5 Shepherd's Heirs v. Young, 1 405. T. B. Monroe (17 Ky.) 203. 2 Pawlet v. Clark. 9 Cran.'h, 292, § 51] ANCILLARY J URISDICTIOX. 143 the different sides of the controversy are citizens of the same State and th re is no other ground of Federal jurisdiction. 1 "The question is not whether the proceeding is supplemental and ancillary, or is independent and original, in the sense of the rules of equity pleading, but whether it is supplementary and ancillary, or is to be considered entirely new and original, in the sense which this court has sanctioned with reference to the line which divides the jurisdiction of the Federal courts from that of the State courts." 2 Thus, not only can a bill of re- vivor or -a supplemental bill, 3 or a cross bill, 4 be maintained in a Federal court which had jurisdiction of the original litigation ; but so can a bill to enjoin the prosecution of proceedings therein at law or in equity, 5 or for set-off, 6 or a bill to restrain or regu- late, 7 or to set aside, 8 or to modify, 9 or to obtain a judicial con- § 51. lDunn v. Clarke. 8 Pet. I, 8 L. ed. 845; Clarke v. Matliewson, 12 Pet 163. 9 L. ed. 1041; Freeman v. Howe, 24 How. 450, 400. 1 6 L. ed. 749, 752: Minnesota Co. v. St. Paul Co., 2 Wall. 609, 17 L. ed. 886; Jones v. Andrews, 10 Wall. 327. 19 L. ed. 935; Krippendorf v. Hyde, 110 U. S. 276, 28 L. ed. 145; Pacific R. of Mo. v. Mo. P. R. Co.. Ill U.S. 505, 522, 28 L. ed. 498. 504; Dewey v. W. P. G. C. Co., 123 U. S. 329, 31 L. ed. 179; Gumbel v. Pitkin, 124 U. S. 131, 31 L. ed. 374; Sey- mour v. Phillips & C. Const. Co., 7 Biss. 460. But see Christmas v. Russell, 14 Wall 69, 20 L. ed. 762. 2. Miller, J., in Minnesota Co. v. St. Paul Co., 2 Wall. 609, 633, 17 L. ed. 886, 895. 3 Clarke v. Matliewson, 12 Pet. 164, 9 L. ed. 1041. 4 Morgan's La. & T. R. & St. Co. v. Texas Cent. Ry. Co., 137 U. S; 171, 34 L. ed. 625. See infra, § 201; Central Trust Co. v. Bridges, 57 Fed. 753. 5 Bradshaw v. Miners' Bank, C. C. A.. 81 Fed. 902; Krippendorf v. Hyde, 110 U. S. 276, 28 L. ed. 145; Leigh v. Kewanee Mfg. Co., 127 Fed. 990; South Penn Oil Co. v. Calf Creek Oil & Gas Co.. 140 Fed. 507; Campbell et al. v. Golden Cycle Min. Co., 141 Fed. 610; Loy v. Alston, C. C. A., 172 Fed. 90. 6 Loy v. Alston, C. C. A., 172 Fed. 90. 7 Dunn v. Clark, 8 Pet. 1, 8 L. ed. 845; Freeman v. Howe, 24 How. 450, 460, 16 L. ed. 749, 752: Jones v. Andrews. 10 Wall. 327. 19 L. ed. 935; Krippendorf v. Hyde, 110 U. S. 276, 28 L. ed. 145; Johnson v. Chris- tian, 125 U. S. 642, 31 L. ed. 820; Lang v. Choctaw, Oklahoma & Gulf R. Co.. C. C. A., 160 Fed. 355; Loy v. Alston. C. C. A., 172 Fed. 90. 8 Pari tic R. of Mo. v. Mo. P. R. Co., Ill U. S. 505, 522. 28 L. ed. 498. 504; Foster v. Mansfield, C. & L. M. R. Co., 36 Fed. 627: s. c, 146 I". S. 88, 36 L. ed. 899: Carey v. Houston & T. C. Ry. Co.. 161 U. S. 115, 40 L. ed. 638: Maitland v. Gibson, 79 Fed. 136; Lacanagrues v. Chapins, 144 U. S. 119. 36 L. ed. 368; Broadis v. Broadis, 86 Fed. 951; Ladd v. West, 55 Fed. 353; 144 ORIGINAL JURISDICTION. [§ 51 struction, 10 or to enforce by injunction/ 1 scire facias, 12 levy of a tax, 13 or otherwise, 14 a judgment or decree of, or a bond 15 given to, or an attachment, 16 or execution 17 issued by, a Federal court, even where other incidental relief is prayed, 18 irrespective of the citizenship of the parties. So can a bill or petition for the appointment of a receiver in aid of a pending action at law; for Hill v. KuMman, C. C. A., 87 Fed. 498; McDonald v. Seligmans, 81 Fed. 753; Richardson v. Loree, C. C. A., 94 Fed. 375: O'Connor v. O'Connor, 146 Fed. 994: Lang v. Choctaw, Oklahoma & Gulf R. Co., C. C. A., 1G0 Fed. 355; Loy v. Als- ton, C. C. A., 172 Fed. 90. Where an action was brought upon the award of an arbitrator, it Was held that a suit to set aside the award for fraud was ancillary to the same, but that the court could not thus obtain jurisdiction to bring in a stranger to the former action, who was a citizen of the same State as the complainant, for the purpose of impeaching an award in the latter's favor, made at the same arbitration, which was separate and distinct from that between the other parties, ilecht v. Youghiogheny & Lehigh Coal Co., 1G2 Fed. 812. 9 Thompson v. Schenectady Ry. Co., 124 Fed. 274. 10 Minnesota Co. v. St. Paul Co., 2 Wall. 609. 17 L. ed. 886: Jenks v. Brewster. 96 Fed. 625: Lang v. Choctaw, Oklahoma & Gulf R. Co., C. C. A.. 160 Fed. 355: Loy v. Al- ston, C. C. A., 172 Fed. 90. 11 Railroad Co. v. Chamberlain, 6 Wall. 748, 18 L. ed. 859: Root v. Woolworth, 150 U. S. 401. 37 L. ed. 1123: Riverdale Cotton Mills v. Ala. & c a . Mfg. Co.. 198 U. S. 1S8. 49 L. ed. 1008; Wabash Railroad Co, v. Adelbert College, 208 U. S. 38, 53, 52 L. ed. 379, 385. But see Alaba- ma & G. Mfg. Co. v. Riverdale Cot- ton Mills, C. C. A., 127 Fed. 497. 12 Pullman's P. C. Co. v. Wash- burn. 66 Fed. 790; s. c. in C. C. A., 76 Fed. 1005: Lafayette County v. Wonderly, C. C A., 92 Fed. 313. 13 Preston v. Calloway, C. C. A., 183 Fed. 19; Maitland v. Gibson, 79 Fed. 136: Brim v. Mann, C. C. A., 12 L.R.A.(X.S.) 154, 151 Fed. 145, 149. 14 Lang v. Choctaw, Oklahoma & Gulf R. Co., C. C. A., 160 Fed. 355; Loy v. Alston, C. C. A., 172 Fed. 90. But see Central Trust Co. v. Grant- ham, 83 Fed. 540. Where creditors brought a class-suit to administer in equity the amounts due the corpo- ration from stockholders within the territorial jurisdiction, it was held that, ancillary to the jurisdiction which was thus obtained, the court might in an ancillary bill enter a decree against a stockholder whose liability was less than $2,000. Rob- ertson v. Conway, C. C. A., 188 Fed. 579. 15 Lamb v. Ewing, 56 Fed. 269; Leslie v. Brown, 95 Fed. 171. 16 Lant v. Manley, C. C. A.. 75 Fed. 627: Davis v. Martin. C. C. A.. 113 Fed. 6: Hatcher v. Hen- drie & Bolthoff Mfg. & Sy. Co., C. C. A.. 113 Fed. 6. 17 Lant v. Mauley, C. C. A.. 75 Fed. 627 : Davis v. Martin, C. C. A., 113 Fed. 6. 18 Hill v. Kuhlman, C. C. A., 87 Fed. 498. § 51] ANCILLARY .1 rKISDICTION". 145 example, one of ejectment. 19 or, it seems, when authorized by the State practice, in aid of a judgment at law; 20 a bill by a stranger to a suit to enjoin a sale by the marshal of property which he claims to be his ; 21 and a bill to determine the manner in which the proceeds of a judgment or decree shall be distrib- uted, at least when they have been paid into court. 22 A bill to enjoin proceedings in a District Court of the United States was there maintained, although it made an indispensable party de- fendant one, a suit against whom the Federal court had pre- viously remanded because of the insufficiency of the matter in dispute. 23 A bill for the reformation of a policy of insurance is ancillary to an action upon such policy. 24 An original bill or a petition, to foreclose a mortgage, 25 or a mechanic's lien, 26 or other lien 27 upon a railway or other property, or upon the pro- ceeds of property, in the possession of a receiver appointed by a Federal court in a prior suit to foreclose a prior or subsequent mortgage, or otherwise in its possession, can be brought in such court independent of the citizenship of the parties, even after sale in the former suit; although it brings in new parties whose citizenship would have defeated the jurisdiction had they been joined in the original bill. 28 So may a suit to partition the property. 29 Ancillary jurisdiction includes the power to WTJlman v. Clark. 75 Fed. 868. 20 See Mutual Res. Fund Life Ass'n v. Phelps. 190 U. S. 147, 47 L. ed. 987. 21 Davis v. Martin, C. C. A., 113 Fed. 6. 22 Myers v. Luzerne County, 124 Fed. 43G. 23 Virginia-Carolina Chem. Co. v. Home Ins. Co., C. C. A., 113 Fed. ]. 24 P,oscnbaum v. Council Bluffs Tns. Co.. 3 L.R.A. 189. 37 Fed. 724; Abraham v. North G. F. Tns. Co., 3 L.R.A. 188, 37 Fed. 731. 25 Morgan's L. & T. R. & S. S. Co. v. Texas Cent. Ry. Co.. 137 U. S. 171. 34 L. ed. 625; Farmers' L. & Tr. Co. v. Houston & T. C. Ry. Co., 44 Fed. 115: Carey v. Huston, 'I'. & C. R. Co., 52 Fed. 671; Compton Fed. Prac. Vol. I.— 19. v. Jesup, 68 Fed. 263; Toledo, St. L. & K. C. Ry. Co. v. Continental T. R. Co.. C. C. A., 95 Fed. 497. 26 Central Tr. Co. v. Bridges C. C. A.. 57 Fed. 753. 27 Blake v. Pine M. I. & C. Co., C. C. A., 76 Fed. 624; Central Tr- Co. v. Benedict, C. C. A., 78 Fed. 198; Central Tr. Co. v. Carter, C. C. A., 78 Fed. 225; State Tr. Co. v. Kansas City P. & G. R. Co., 115 Fed. 367. As to the jurisdiction by cross- bill, see also Everett v. Independent School District. 102 Fed. 529: Brooks v. Laurent. C. C. A., 98 Fed. 647: infra, § 201. 28 Lilientlial v. McCormick, C. C. A.. 117 Fed. 89. 29 City of New Orleans v. Howard, C. C. A., 160 Fed. 393. ! 1 6 ORIGINAL JURISDICTION. [8 51 hear and determine all questions respecting the title, the pos- session, or the control, of property in the custody of the court ; 30 even after the property has been sold, when the claim relates to matters that were disposed of, or that might have been disposed of, by the proceedings resulting in the same; 31 and irrespective of any difference of the citizenship of the parties, a District Court of the United States may entertain a bill, to restrain par- ties claiming liens from seeking to enforce the same against the property elsewhere than in such District Court. 32 When prop- erty has been seized by a marshal of the United States, the Fed- eral court may take jurisdiction, by removal, of a proceeding in a State court to enjoin the marshal from proceedings under the writ. 33 There is no ancillary jurisdiction of a suit to foreclose a mortgage upon a line that has been in the possession of Fed- eral receivers of a street railroad system, who have been oper- ating the same under a lease which they have elected to surren- der, when they have offered to return the property to the lessor. After a Federal court has appointed a receiver, it has ancillary jurisdiction over all suits brought by him irrespective of the citizenship of the parties and of the amount involved. 35 ^la cannot, however, remove into such a court all suits brought 30 Wabash Railroad Co. v. Adel- bert College. 20S T". S. 38, 53, 52 L. ed. 379, 385. 31 Julian v. Central Trust Co.. ]03 U. S. 93, 48 L. ed. 629; Wabash Railroad Co. v. Adelbert College. 208 U. S. 38. 53, 52 L. ed. 379. 385. 32 Julian v. Central Trust Co., 193 U. S. 93; Wabash Railroad Co. v. Adelbert College, 208 U. S. 38, :>:!. 52 L. ed. 379, 385. 33 Frank v. Leopold & Feron Co., !69 Fed. 922. 34 Guaranty Tr. Co. v. Second Ave. R. Co., 165 Fed. 487. 35 White v. Ewing, 159 U. S. 3(3, 40 L. ed. 67: Pope v. Louisville. X. A. & C. Ry. Co., 173 U. S. 573, 43 L. ed. 814; Connor v. Alligator L. Co., 98 Fed. 155; Bowman v. Harris, 95 1'ed. 917; Alexander v. So. Home Bldg. & L. Ass'n. 120 Fed. 963; Hampton Roads Ry. & El. Co. v. Newport News' & O. P. Ry. & El. Co., 131 Fed. 534; Gunby v. Armstrong, C. C. A., 133 Fed. 417; Cooper v. Newton. 160 Fed. 190. So when he is an ancillary receiver. Brookfield v. Hecker, 118 Fed. 942. Held, that jurisdiction may thus be taken of a petition by the receivers for an in- junction to restrain the enforcement of a State statute reducing the charges for the transportation of passengers or freight. Trust Co. of America v. Chicago, P. & St. L. Ry. Co... 199 Fed. 593; that a Circuit Court of the United States would not take jurisdiction of a suit, by a receiver appointed by a Federal court, in another Circuit Court, unless the matter in dispute ex- ceeded the jurisdictional amount. Sullivan v. Swain. 96 Fed. 259. 8 ;>1] ANCILLARY JURISDICTION. 147 against him. 36 It has been held at Circuit that a suit pending against the corporation at the time of the receivership may. on the petition of the receiver, be removed into the Federal court, at least when the plaintiff has intervened there, although origi- nal jurisdiction over the same could not have been entertained. 37 Where assets are in the course of administration, all persons en- titled to participate may come in under the jurisdiction ac- quired between the parties by ancillary or supplemental plead- ing, even though jurisdiction would be lacking if said proceed- ings had been originally and independently prosecuted. 38 It has been held that a person, whose citizenship, if an original party, would have deprived the court of jurisdiction, cannot in- tervene when the court has possession of no fund or property in which he is interested. 39 It has been held that pending a fore- closure suit a bill to enjoin the sale of shares of the capital stock of the defendant, not covered by the mortgage, is not an- cillary to the former suit; although the defendant has the equity or redemption therein; 40 that where a railroad had been sold under a decree of foreclosure by a Federal court such court had no jurisdiction over a subsequent suit to restrain the enforce- ment of a State judgment of ejectment obtained by a plaintiff win. was not a party to the foreclosure ; 41 that after judgment in ejectment, which awards a writ of possession, the court has no jurisdiction of an application by the marshal or other officer to whom the writ is addressed, seeking instructions as to the performance of his ministerial duties, when there are adverse claims of strangers to the suit; 42 that a Federal court after formal judgment has no jurisdiction, independent of a differ- ence of citizenship, to enforce an agreement under which the 36Gableman v. Peoria, Decatur & 10 Fed. 204. See Benderson v. Evansville Ey. Co., 179 U. S. 335, Ooode, 49 Fed. 887: infra, § 258. 45 L. ed. 220; Baggs v. Martin, 179 39 Seligman v. Santa Rosa, 81 U. S. 200, 45 L. ed. 155; supra. Fed. 524; Tinted EL S. Co. v. La. §§ 5, 24. EL L. Co., 68 Fed. 673. 37Rj C e v. Durham Water Co.. 91 40 Raphael v. Trask, 194 U. S. Fed. 433. 272, 48 L. ed. 973. s. c, 118 Fed. 38 Rouse v. Letcher, 156 U. S. 47, ill. 49, 39 L. ed. 341. 342; Second Nat. "Central Trust Co. v. Grant- Bank v. New York Silk Mfg. Co., ham, 83 Fed. 540. !'.■<]. ('as. Xo. 12.0(11 a'; New York 42 Dickinson v. Huntington, C. C. Silf Mfg. Co. V. Second Nat. Rank, V. 185 Fed. 703. 1-iS ORIGINAL JURISDICTION. [§ 51 same was entered, when the construction of the judgment is not in question ; 43 and that upon the authorized surrender of prop- erty by Federal receivers to a State receiver, the Federal court loses jurisdiction of a suit previously begun to foreclose a mort- gage upon the same, when there is no diversity of citizenship between the parties. 44 A creditor's bill between citizens of the same State founded upon a decree in admiralty has been held not within the juris- diction of a Federal court. 45 It has been held at Circuit that a bill cannot thus be sustained, irrespective of the citizenship of the parties, when filed to set aside for fraud, subsequent to its entry, the decree of the Federal court or a contract affect- ing such decree ; 46 nor when filed to set aside for fraud a stipu- lation and decree in a former suit, the defendants to the bill being neither parties to the former suit nor the personal repre- sentatives of such parties, but trustees created by a defendant to such suit after the decree, and where none of the property affected by the former suit was within the custody of the court ; 47 nor when filed against defendants to a former decree and a third party to whom it was alleged that lands, the subject matter of the former suit, were conveyed prior to the commence- ment of the same. 48 After a final decree granting damages for the injury to a street railway by the construction of another railroad, where the jurisdiction had attached because a consti- tutional question was involved, Mr. Justice Brewer refused to take jurisdiction of a supplemental bill to enjoin the construc- tion of the rival railroad upon other grounds, none of which presented a Federal question. 49 Conversely, there is a similar limitation upon the jurisdiction of the Federal courts. This is well explained in the following extract from an opinion by Bradley, J. : "The question present- «Stillraan v. Combe, 197 U. S. 46 Yeatman v. Bradford, 44 Fed. 436, 49 L. ed. 822. 536. 44 Guaranty Tr. Co. v. Second 47 Ralston v. Sharon, 51 Fed. 702. Ave. R. Co., 171 Fed. 1020. See S. See Sowles v. First Nat. Bank of C, 165 Fed. 487. Pittsburgh et al., 133 Fed. 846. 45 Winter v. Swinburne. 8 Fed. 48 Anglo Florida P. H. Co. v. Mc- 49. See Provident Savings Soc. v. Kibben, 65 Fed. 529. See Mont- Ford, 114 U. S. 635, 29 L. ed. 261; gprnery v. McDermott, 99 Fed. 502. Metcalf v. Watertown. 128 U. S. ' » Omaha II. R. Co. v. Cable T. 586, 32 L. ed. 543; supra, § 24. \V. Co., 33 Fed. 689. §51] ANCILLARY JURISDICTION. 149 ed with regard to the jurisdiction of the Circuit Court is, wheth- er the proceeding, to procure nullity of the former judgment in such a case as the present is or is not in its nature a separate suit, or whether it is a supplementary proceeding, so connects 1 with the original suit as to form an incident to it, and substan- tially a continuation of it. If the proceeding is merely tanta- mount to the common-law practice of moving to set aside a judgment for irregularity, or to a writ of error, or to a hill of review, or an appeal, it would belong to the latter category, and the United States court could not properly entertain jurisdic- tion of the case. 80 Otherwise, the Circuit Courts of the United States would become invested with power to control the pro- ceedings in the State courts, or would have appellate jurisdic- tion over them in all cases where the parties are citizens of dif- ferent States. Such a result would be totally inadmissible. On the other hand, if the proceedings are tantamount to a bill in equity to set aside a decree for fraud in the obtaining thereof, then they constitute an original and independent proceeding, and, according to the doctrine laid down in Gaines v. Fuentes* 1 the case might be within the cognizance of the Federal courts. The distinction between the two classes of case's may be some- what nice, but it may be affirmed to exist. In the one class there would be a mere revision of errors and irregularities, or of the legality and correctness of the judgments and decrees of the State courts, and in the other class the investigation of a new case arising upon new facts, although having relation to the validity of an actual judgment or decree, or the party's right to claim any benefit by reason thereof." 52 A suit to make the judgment or decree of a State court the judgment or decree, re- spectively, of the Federal court can be maintained at common BO Graver v. Faurot, 64 Fed. 241: v. Moore. 74 Fed. 945; Strand v. Little Rock Ry. Co. v. Burke. 6fi Griffith, C. C. A., 144 Fed. 828; Fed. 83; Hall v. Ames, C. C. A., 190 Schultz v. Highland Gold Mines Co.. Fed. 138. But see Northern Pae. 158 Fed. 337. But see Travelers' Ry. Co. v. Kurtzman, 82 Fed. 241. Protective Ass'n v. Gilbert, C. C. A., 5192 V. S. 10. 23 L. ed. 524; Cf. 55 L.R.A. 538. Ill Fed. 269; Bailey Arrowsmith v. Gleason. 129 U. S. v. Willeford, 126 Fed. 803, 86. 32 L. ed. 630; Robb v. Vo, 155 82, 25 L. ed. 407. 408. See Furnald U. S. 13, 39 L. ed. 52; Hatch v. 52 Barrow v. Hunton, 99 U. S. 80. Ferguson. 52 Fed. 833; Davenport v. Glenn. 56 Fed. 372. 150 ORIGINAL JURISDICTION. [§ ol law 53 and in equity. 54 The Federal court may take jurisdic- tion of a creditor's bill to enforce a judgment of the State court in the same district. 55 Proceedings supplementary to execution under the judgment of a State court authorized by State stat- utes against a judgment debtor or third persons cannot be insti- tuted in or removed to the Federal courts, although a creditor's bill may be. 56 A petition, after judgment in a State court, by plaintiff in ejectment to have the defendant's damages allowed to him, is a mere incident to the ejectment suit and the Federal courts can take no jurisdiction of it. 57 It has been held that a bii] cannot be maintained to set aside or interfere with the en- forcement of an interlocutory decree in a cause pending in an- other court, when such decree is not a contempt of a Federal court. 58 It has been held that where the jurisdiction depends solely upon the ancillary nature of the bill, upon the dismissal of the former suit the ancillary suit must be dismissed for want of jurisdiction; 59 and that relief germane to the ancillary re- lief, if the prayer for the same does not make the bill multi- farious, can be granted, although an independent original bill for such other relief could not have been maintained in the Fed- eral court; but that if the ancillary relief is denied, all other prayers for relief fall with the same; and that affirmative re- lief against a person who is not a party, nor a privy, to the orig- inal action, and whose claims have not accrued prior to its com- mencement, cannot be granted. 60 The dependence of an ancil- lary suit upon an original suit for purposes of jurisdiction does not throw both cases into hotchpot, and dispense with the ordi- nary rules of pleading and practice as to parties proper and necessary to each cause of action. The parties to the original bill have no more right to intervene in the dependent cause than if the court had independent jurisdiction of the same; and after 53 Barr v. Simpson, Baldwin. 543. 253: s. c. 10 Fed. 406; Flash v. 54 See Davis v. Davis, 65 Fed. Dillon, 22 Fed. ]. 380; Collins v. Ashland, 112 Fed. "Chapman v. Barger. 4 Dillon, 5S7. 175. 55 Feidler v. Bartleson. C. C. A.. 58 Fvnnald v. Glenn. ( . C. A.. 04 Fed. 49. 161 Fed. 30. 59 Cabaniss v. Beep Min. Co., C. 56 Webber v. Humphreys, 5 Dill. C. A., 110 Fed. 3] 8. 223: Poole v. Thatcherdeft, 19 Fed. 60 Campbell v. Golden Cycle Min. 49: Buford v. Strother, 3 McCrary, Co., 141 Fed. (110. 014. (116 017. 52] CUSTODY OF STATE COURTS. 151 jurisdiction has been acquired, the pleadings, practice and pro- ceedings are pursued exactly as if it were an original >uir. 61 The court does not in the second suit take judicial notice of the pleadings or proceedings in the former litigation, unless they are formally put in evidence. 62 § 52. Property in the custody of another court of co- ordinate jurisdiction. In general. A court of the United States, through a spirit of judicial comity, will usually refuse to interfere with property in the custody of a State court. 1 Con- versely, it will not tolerate interference by a State court with property over which it has taken jurisdiction. 2 It has been said that "the forbearance which courts of co- ordinate jurisdiction, administered under a single system, exer- cise towards each other, whereby conflicts are avoided, by avoid- ing interference with the process of each other, is a principle of comity, with perhaps no higher sanction than the utility which comes from concord; but between State courts and those of the United States, it is something more. It is a principle of right and of law, and therefore of necessity. It leaves nothing to discretion or mere convenience. These courts do not belong to the same system, so far as their jurisdiction is concurrent; and although they co-exist in the same space, thev are in.lc pendent, and have no common superior. They exercise juris- diction, it is true, within the same territory, but not in the same place; and when one takes into its jurisdiction a specific thing, that is as much withdrawn from the judicial power of the other as if it had been carried physically into a different territorial sovereignty. To attempt to seize it by a foreign process is fu- 61 Continental Tr. Co. v. Toledo. St. L. & K. C. R. Co.. 82 Fed. 642, 645. per Taft. J. 62 Richardson v. Loree. 94 Fed. 375. But see infra, § 329. § 52. IHagan v. Lufcas, 10 Pet. 400, 9 L. ed. 470: Taylor v. Carry]. 20 How. 583; Peale v. Phipps, 14 How. 368, 14 L. ed. 459; Levi v.. Columbia Ins. Co., 1 Fed. 20G; Hub- bard v. Bellow. 3 Fed. 447: Union Mut. Life Ins. Co. v. University of Chicago. 6 Fed. 443: Hutchinson v. Green. (1 Fed. 833. 830-839: Hamil- ton v. Chouteau. 6 Fed. 339: Tleid- ritter v. Elizabeth Oil-cloth Co., 112 U. S. 294, 28 L. ed. 729. Rut see Dwight v. Central Vermont II. Co.. 9 Fed. 785. 2 Freeman v. Howe. 24 How. 450. Hi 1.. ed. 749; I leidrittor v. Kli/ abeth Oil-cloth Co.. 112 U. S. 294. 2S L. ed. 729 ; Sharon v. Terry. 1 L.R.A. 572. 36 Fed. 337: Cuv.-ll v. Heyman. Ill U. S. 176, 28 !.. ed. .".'.hi : En re Tyler. 149 U. S. Hil. 186. 37 L. ed. 689, 090: White v. Schln- erb, 178 U. S. 542. 44 L. ed. 1 is:; 152 ORIGINAL JURISDICTION. [§ 52 tile and void." 3 "This rule, in its application to Federal and State courts, being the outgrowth of necessity, is a principle of right and of law, which leaves nothing to the discretion of a court, and may not be varied to suit the convenience of liti- gants."' 4 "When a court of competent jurisdiction has, by appropriate proceeding's, taken property into its possession through its offi- cers, the property is thereby withdrawn from the jurisdiction of all other courts. The latter courts, though of concurrent juris- diction, are without power to render any judgment which in- vades or disturbs the possession of the property while it is in the custody of the court which has seized it. For the purpose of avoiding injustice which otherwise might result, a court dur- ing the continuance of its possession has, as incident thereto and as ancillary to the suit in which the possession was acquired, jurisdiction to hear and determine all questions respecting the title, the possession or the control of the property. In the courts of the United States this incidental and ancillary jurisdiction ex- ists, although in the subordinate suit there is no jurisdiction arising out of diversity of citizenship or the nature of the con- troversy. Those principles are of general application and not peculiar to the relation of the courts of the United States to the courts of the States; they are, however, of especial importance with respect to the relations of those courts, which exercise in- dependent jurisdiction in the same territory, often over the same property, persons, and controversies; they are not based upon any supposed superiority of one court over the others, but serve to prevent a conflict over the possession of property, which would be unseemly and subversive of justice ; and have been ap- plied by this court in many cases, some of which are cited, some- times in favor of the jurisdiction of the courts of the States and sometimes in favor of the jurisdiction of the courts of the United States, but always, it is believed, impartially and with a spirit of respect for the just authority of the States of the Union." 5 This is a general rule of comity, which usually pre- 3 Mr. Justice Matthews in Co- 4 Thayer. J., in Merritt v. Am. veil v. Heyman, 111 U. S. 176. 1S2, Steel BarS V. S. 3S, 52 L. ed 79: Citv of New Orleans v. 154 ORIGINAL JURISDICTION. [i held that the doctrine < 1 i « 1 not prevent a suit to foreclose a mort- gage, or to establish a lien, upon property in a State court's ens- tody; 15 provided that no sale was ordered until the proceedings in the State court were terminated; 16 and that neither the sher- iff, nor, without the permission of the court, a State receiver was a necessary party to the suit; 17 that a Federal court may foreclose a mortgage upon property, held by a receiver appointed by a State court, in a suit to which the mortgagee was not a party, and can then determine the claim of the holders of re- ceiver's certificates issued under the order of the State court to a preference over the mortgage; 18 that a State court may fore- close an attorney's lien upon a cause of action after the removal of the case to the Federal court, subsequent to a settlement be- tween the parties; 19 that a State court may institute proceed- ings to condemn land, pending a suit in equity in a Federal court for an injunction against a trespass upon the same by the respondent in the condemnation proceedings, or. in the alterna- tive, for the payment of its value; 20 that a State court proceed- ings to condemn land, pending a suit in equity in a Federal court to condemn the property for public pprposes; 21 that a proceeding in a State court for a writ of assistance, under a fore- Howard. C. C. A., 160 Fed. .103, a partition suit. See Security Trust Co. v. I'll ion Trust Co.. 134 Fed.' 301 : Lang v. Clioctaw. Oklahoma & Gulf R. Co.. C. ('. A.. ltfO Fed. 355. 15 Wheelwright v. St. Louis. X. (). & O. C. & T. Co.. 50 Fed. 700, 711: Gates v. Bucki, .53 Fed. 001. 968; Edwards v. Hill. C. ('. A.. 59 Fed. 7-23: Jeriks v. Brewster. 00 Fed. 02")-. holding that where a person, not a party to a suit in a Federal court, had subsequently to the institution of the same be- gun an action in the State court, to foreclose his lien, to which the Federal plaintiff was one of the defendants, the decree of the State court bound the parties to the same and the purchaser of the property, pending 1he litigation under the decree of the federal court. Metropolitan Trust Co. v. Lake Cities Fl. Ry. Co.. 100 Fed. 897. Contra, Cochran v. Pittsburg, S. & X. R. Co.. 158 Fed. 540: Cohen v. Solomon. Gfi Fed. 411: Hardin v. Union Tr. Co. of Philadelphia. Pa.. C. C. A.. 191 Fed. 152. 16 Wheelwright v. St. Louis. X". O. & O. C. & T. Co.. 50 Fed. 700. 711. But see Frwin v. Lowry. 7 How. 172. 12 L. ed. 17 Porter v. Sabin. 140 U. S. 473, 37 L. ed. 815. 18 Metropolitan Trust Co. v. Lake Cities El. Ry. Co.. 100 Fed. 897. Infra, § 313. 19 Oishei v. Pennsylvania R. R. Co.. 101 App. Div. (X. Y.i 473. 20 Benjamon v. Brooklyn Cnion El. R. Co.. 120 Fed. 428. 21 C S. v. Eisenbeis. C. C. A.. 112 Fed. 190. § 52] CUSTODY (F STATE COURTS. l: .).) closure decree of sale, does not operate as a bar to an action of ejectment between the same parties for the same property, brought in a Federal coiirt by the applicant for the writ; 22 that the pendency in the State court, of an action of ejectment, docs not prevent a suit in the Federal court, by the defendant against the plaintiff, to quiet the title to the same land; 23 nor an action in personam between the same parties involving the same issm s; provided that the property is not seized therein. 24 It has been held that the pendency of a suit in a Federal court to fpreclose a lien upon timber on certain lands does not prevent an attach- ment upon the same timber in a subsequent action at law in the State court for a breach of another contract for the sale of part of the same; 25 that property seized and sold by an internal reve- nue collector, under the statutes of the United States, cannot be replevied from the purchasers by the former owner, under proc- ess from the State court, since the remedy for a wrongful seiz- ure, given by the statute, is exclusive. 26 Property in the posses- sion of a statutory receiver, not appointed by the court, such as a receiver of a national bank appointed by a Comptroller of the Currency, is not considered to be in the court's custody. 27 Prop- erty is deemed to be in the custody of the court from the time when a suit or action seeking to have it placed there has been begun ; either by the levy of a writ in a proceeding in rem; 2 * or by the filing .of a bill praying the appointment of a receiver; 29 22 Lamar v. Spalding, C. C. A., ]54 Fed. 27. 23 North Carolina Mining Co. v. Weatfeldt, 151 Fed. 290. Where in an action of ejectment in a State court defendants filed a counter- claim alleging that they were in possession and praying a determina- tion of conflicting claims in accord- ance with the State statutes (Revis- al N. C. 1005, § 1580), it was held that complainant could* not subse- quently sue in equity in the Federal courts for similar relief. W'est- feldt v. North Carolina Min. Co., C. C. A., 166 Fed. TOG. 24R P jall v. Greenhood. 00 Fed. 784; Merritt v. American S. B. Co., 79 Fed. 228: Copeland v. Binning, C. C. A.. 127 Fed. 550. Infra, § 57. Cf. Huntington v. Laidley. 176 U. S. 068. 44 L. ed. 630. But see infra, § 177. 25v P 1>on v. Camp. C. C. A., 191 Fed.' 712. 26 Allen v. Sheridan. 14.3 Fed. 963. 27 In re Chetwood. 10.") U. S. 44:5. 41 L. ed. 782. 28 Taylor v. Carryl, 20 How. 583, 15 L. ed. 1028; Heidritter v. Eliza- beth Oil-cloth Co.. 112 U. S. 204. 2S L. ed. 720; U. S. v. Eisenbeis, ( . C. A.. 112 Fed. 190. 29 Farmers' L. & T. Co. v. Lake St. El. B. Co.. 177 T. S. 51. 44 L. ed. 067. Cf. Humane Bit Co. v. Barner, 1 17 Fed. 316. 156 ORIGINAL JURISDICTION. [§ 52 or by the filine; of a bill for the distribution of the assets of a corporation ; 30 or, it has been held, by the issue of a restraining order upon the tendering of a bill for filing, upon notice to the defendants, although, because of the absence of some of them, leave to file was not granted until subsequent to the institution of a suit in the State court ; 31 or by an adjudication in bank- ruptcy. 32 It has been held that property is not put into the custody of a State court by the institution of a suit to establish and enforce a lien thereupon, when no actual possession has been taken; 33 nor by the filing of a bill, which does not pray for a receiver, when a receiver is appointed by another court before the first court is asked to make such an appointment. 34 In per- sonal actions, the priority of a suit is ordinarily determined by the time when the parties are served with process and not by the date of the filing of any papers in the same. 35 Property continues in the custody of a court until the cause is practically terminated, or the custody finally abandoned; although, it has been held, that a formal order of termination is not indispen- sable. 36 When a receiver, appointed by a Federal court, has been discharged upon the filing of a bond by a defendant, the Federal court abandons its custody of the property and a State court may appoint a receiver thereof; 37 and it is improper for the District Court of the United States to vacate its order of 30 Louisville T. Co. v. Knott, C. C. A.. 130 Fed. 820. 31 St. Louis & S. F. R. Co. v. Hadley. 155 Fed. 220. 32 White v. Schloerb. 178 U. S. 542, 44 L. ed. 1183. 33 Compton v. Jesup, G8 Fed. 263, 283; Morrill v. Am. Reserve Bond Co.. 151 Fed. 305. See Jacob Tome Institute v. YYhitcomb, C. C. A., 1G0 Fed. 835. See Rodgers v. Pitt, 90 Fed. 60S. 673. Rut where the State courts had held that, under its statutes, the filing of a petition was the institution of the suit, it was held that the filing of a petition for partition precluded a subsequent suit in the Federal court prior to the service of process. Mound City Co. v. Castleman, C. C. A., 187 Fed. 921, allirming 177 Fed. 510. 34 Knott v. Evening Post Co., 124 Fed. 342. 35 1Vnoist v. Smith. 191 Fed. 514. 36 Buck v. Piedmont & A. L. Ins. Co., 4 Fed. 849; Andrews v. Smith, 5 Fed. S33; Lake Nat. Bank 7. Wolfeborough Saw Bank. C. C. A., 78 Fed. 517; Foster v. Lebanon Springs R. Co.. 100 Fed. 543. But see Shields v. Coleman, 157 U. S. 168. 181, 39 L. ed. 660. 665; Mis- souri Pac. R. Co. v. Fitzgerald, 160 U. S. 556, 40 L. ed. 536. 37 Shields v. Coleman. 157 U. S. 168, 39 L. ed. 660. But see Union Trust Co. v. Rockford. R. I. & St. L. R. Co., 6 Biss. 197; § 55 infra. § 52] CUSTODY OF STATE COURTS. 157 discharge and claim possession by virtue of its prior receiver- ship ; 38 but where, before a receiver appointed by a State court had taken possession, an appeal accompanied by a supersedeas staying proceedings was taken from a State court of review, which subsequently affirmed the order, a receiver appointed by a Federal court pending the appeal was directed to surrender his possession to the State receiver. 39 The discharge of a Fed- eral receivership, before the appointment of a State receiver, was held to validate the latter ; although made in a suit sustained during the pendency of the Federal receivership. 40 It has been held that a State sheriff may seize property while still in the possession of the United States marshal, after an order by the Federal court directing its return to its owner. 41 Where the Federal court, in its decree of foreclosure and sale, reserved, for future adjudication, all questions arising under the pleadings or proceedings not therein disposed of or determined ; it was held, that a State court had no power to establish, or to fore- close, a lien upon the property in the hands of a purchaser at the foreclosure sale. 42 But not when there is no such reserva- tion; even, it has been held, when the decree required the pur- chaser to assume the obligation that the lien secured. 43 It has been held that a State court may take jurisdiction of a suit against the purchaser at a foreclosure sale, to enforce his lia- bility to pay a debt of the mortgagor, which he assumed as part of the consideration. 44 It has been held that comity requires a State court to be bound by the Federal court's determination, as to when the latter's possession and control of property, of 38 Shields v. Coleman, 157 U. S. ]G8, 39 L. ed. GOO. But see Union Trust Co. v. Rockford, R. I. & St. L. R. Co.. 6 Biss. 197, § 55, infra. 39 Texas v. Palmer, C. C. A., 22 L.R.A.(N.S.) 316.. 158 Fed. 705; Aff'd. Palmer v. Texas. 212 U. S. 118. 40 Liggett v. Glenn, 51 Fed. 381. 41 Daniels v. Lazarus, 65 Fed. 718; Lazarus v. McCarthy, 32 N. Y. Supp. 833. But see infra, § 5G. 42 Wabash Railroad Co. v. Adel- bert College, 20S U. S. 38, 52 L. ed. 379; s. c, 208 U. S. 609. 52 L. ed. G42: Fidelity Insurance Trust & Safe-Deposit Co. v. Norfolk & W. R. Co., 88 Fed. 815; Taylor v. Norfolk & 0. V. Ry. Co., C. C. A., 1G2 Fed. 452; Lang v. Choctaw, Oklahoma &. Gulf R. Co., C. C. A., 160 Fed. 355. 43 Tr. Co. of America v. Norfolk & S. Ry. Co., 183 Fed. 803. 44 Guardian Trust Cc* v. Kansas. City Southern Ry. Co., C. C. A.,. 146 Fed. 337. But see Fidelity Insurance, Trust & Safe-Deposit Co. v. Norfolk & W. R. Co., SS Fed. S15. t58 ORIGIN AT .iriUSDTCTIOlSr. [§ 52 which it first acquired jurisdiction, ceases. 45 This doctrine does not prevent the filing of a hill to set aside, 46 or stay, 47 proceed- ings under a judgment or decree of a State court; nor, it has been held, a hill to enforce a decree of a State court pending an appeal therefrom which does not operate as a supersedeas ; 48 nor does the doctrine apply to a case where the Federal courts ex- • ivise superior jurisdiction for the purpose of enforcing the su- premacy of the Constitution and laws of the United States. 49 Where a Federal court has appointed a receiver, in a case where a receiver was previously appointed by a State court, the proper remedy is an application by the State receiver, to the Federal court, tor the delivery of the possession of the property to the applicant. 50 It has been said that where a State court has, by proper process, secured the custody or dominion of specific prop- erty, which it is one of the objects of a subsequent suit in the Federal court between the same parties to subject to its decree, the latter suit should not be stayed or dismissed, but should pro- ceed as far as may be without creating a eojifiiet concerning the possession or disposition of the property, and that then, if need be, it should be stayed until the proceedings in the State court have been completed or the time for their termination has elapsed- 45 Swinerton v. Oregon Pac. R. Co., 123 Cal. 417, 56 Pac. 40. So held of a Federal court. Hall v. Ames, 182 Fed. 1008. 46Uaines v. Fuentes, 92 U. S. 10, 23 L. ed. 524; Barrow v. Hunton, 99 U. S. 80, 83, 25 L. ed. 407. 408: Arro\vsniith v. Gleason, 129 U. S. 86, 32 L. ed. 630: Marshall v. Holmes. 141 U. S. 589, 35 L. ed. 870: Rob!> v. Vos. 155 U. 8. 13, 39 L. ed. 52: Sahlgard v. Kennedy, 2 Fed. 295: Simon v. Southern Ky. Co., C. C. hi, 195 Fed. 50. So held of a decree of naturalization and certificate of citizenship, F. S. v. Plaistow, 189 Fed. i 000: 47 Kern v. Huidekbpor, 103 FT. S. 485, 491, 492. 26 L. ed. 354. 356. 357; In re Iowa & IVinnesota Con- struction Co:. Ut Fed. 401. But see Central Xat. Bank v. Stevens, 169 U. S. 432, 42 L. ed. 807: Cornue v. Ingersoll, C. C. A.. 176 Yvd. 194. 48 Baltimore & O. R. Co. v. Wa- bash R. Co., C. C. A., 119 Fed. 678. 49Tefft v. Sterherg, 40 Fed. 2, 6, per Speer, J., citing Covell v. Hey- mW, 111 U. S. 176, 28 L. ed. 390. But see infra, § 59. 50 Texas v. Palmer. C. C. A., 22 L.R.A.(N.S.) 316, 158 Fed. 705; aff'd Palmer v. Texas, 212 U. S. 118. Waters-P. S. Oil Co. v. Texas. 47 Tex. Civ. App. 162, 103 S. W. 836; State v. Port Royal & Augusta R. R. Co., 45 S. C. 470, 23 S. E. 363 ; Peo- ple v. New York City Ry. Co., 57 Misc. (X. Y.) 114. 51 Mound City Co. v. Castleman, C. C. A., 187 Fed. 921. 53] INSOLVENT ASSIGNMENTS. 159 § 53. Property covered by insolvent assignments. It has been held; that the possession of an assignee, appointed by an insolvent in a voluntary assignment is not the possession of a State court, although in pursuance of a State statute he has tiled a bond and a petition for the settlement of his accounts, praying also for instructions concerning his administration, and that the Federal court consequently could appoint a receiver of property thus assigned ; x that where a State court has, by docket- ing the proceeding, taken possession of property covered by an insolvent's assignment, a Federal court may entertain a bill to establish a claim against it, but it may not attempt by process against the property to enforce such claim after it has been es- tablished, 2 nor appoint a receiver, 3 and that a vessel in the pos- session of an assignee, appointed by a voluntary assignment un- der the insolvent law of Minnesota, cannot be taken from him by a marshal of the United States upon a libel in rem to enforce a claim against the insolvent. 4 Where a State statute provided, that, on the making "by a judgment debtor of a general assign- ment for the benefit of creditors within ten days after the levy of an execution on his property, such levy should be dissolved and the property turned over to the assignee; it was held, that the same applied to a levy under a judgment of the Circuit Court of the United States, and that the assignee might apply to the Federal court for the release of the levy by a proceeding in the nature of a supplemental bill in equity. 5 Where the trus- tee, under an insolvent assignment, had failed to claim property until after a levy thereupon under a judgment of the Federal court; on his intervention in the Circuit Court of the United § 53. iPowers et al. v. Blue Grass B. & L. Ass'n 86 Fed. 705; under Kentucky statute; Watson v. Bettman. 88 Fed. 825; under New York statute. Cf. Adler v. Fcker, 2 Fed. 120: The James Roy, 50 Fed. 784; George T. Smith, etc.. Co. v. McGroarty, 136 U. S. 237: Swofford Bros. D. G. Co. v. Mills, 86 Fed. 556; under Wyoming statute, sus- taining an attachment by the Fed- eral court: Peale v. Phipps, 14 How. 368, 14 L. ed. 459. Contra, Val. Blatz Brewing Co. v. Walsh. 84 Fed. 5; under Minnesota statute. 2 Edwards v. Hill, C. C. A.. 50 Fed. 723. 726: under Kansas stat- ute. 3Ceilinger v. Philippi, 133 V . S. 246, 257. 33 L, ed. 614. 617: under Louisiana statute; Val. Blatz Brew- ing Co. v. Walsh, 84 Fed. 5: under ^Minnesota statute. 4 The J. G. Chapman. 62 Fed. 939. 5 Rroehon v. Wilson. C. C. A.. 01 Fed. 617; under Wisconsin statute. 1G0 oihgixal jfrisdictiox. [§ 54: States, a decree Was entered setting aside the levy, upon his pay- ment of the costs thereof and filing an order of the State .court authorizing him to take possession. 6 § 54. Property in the custody of State courts of probate. A Federal court cannot direct the distribution of all the assets held by an executor or administrator, at least so far as to affect the rights of the creditors, legatees or next of kin, who are citi- zens of the same State as the defendants, and who have no right to seek the Federal jurisdiction. 1 It has been held that a Fed- eral court of equity cannot entertain a hill by a legatee, to com- pel an accounting by the surviving partner, and a payment of the balance due by him to the ex-eeutors for distribution, when the executors and the survivor are citizens of the same state : 2 unless an executor is the surviving partner. 3 Xor issue an execution against the estate of a decedent ; 4 nor compel the repayment, by a legatee, of a surcharge which he has received under a decision of a State orphans' court ; 5 nor entertain a bill to set aside a sale of stocks, made by executors, and to take the proceeds out of their possession; 6 nor a bill by an unsecured creditor of a decedent to compel an accounting by the executor, when a pre- vious suit, in which the complainant was not a party, had been brought for an accountinc; by such executor; 7 nor to compel an executor to file a bond, 8 nor to require him to deliver funds to an administrator appointed in another State ; 9 nor. while the administration of the State court of probate is pending, a bill by the surviving husband of a decedent or his grantee against her administrator, to quiet the title to the husband's share of her separate estate; 10 nor a bill to prevent 11 or to set SOeilinger v. Philippi. 133 U. S. ley v. Lavender, -21 Wall. 276, 22 L. 240. 257, 33 L. ed. 614. 617: under ed. .136. Louisiana statute. 5 Chandler v. Pomeroy. 87 Fed. S r»4. i Byers v. McAuley. 140 V. 2G ' 2 - ' 2ti6 - S. 60S. 47 L. ed. S67. Cf'. Hale v. 6 dordan v. Taylor. 08 Fed. 643. Tvler. 115 Fed. 833. 830. 7T1,iel Detective Service Co. v. McClure, 130 Fed. 55. 8 Field v. Camp. 103 Fed. 160. 9\Vatkins v. Eaton. C. C. A.. 183 3 Am. Baptist Homo Mission Soci- y 0( \ ^^ ety v. Stewart. 102 Fed. 076. lOYliorpe v. Sampson. 84 Fed. 63. 4 Williams v. Benedict; 8 How. H Miller v. Weston. C. C. A., 199 107. 112. 12 L. ed. 1007. L008: Yon- Fed. 104. 2 Moore v. Fidelity Trust Co.. 134 Fed. 480: s. c. C. C. A.. 138 Fed. 1. 54] PROBATE. 161 aside the probate of a will; 12 unless the State law authorizes such a bill to be filed in a proceeding inter partes, which is not a mere continuation of the probate proceedings. 13 But, after a State court of probate has begun the administration of the as- sets of a decedent, a Federal court may establish a debt against the estate, 14 and direct the payment, by the personal representa- tive or his sureties, of such debt, 15 or of a legacy, or of a dis- tributive share ; 16 at least where the complainant does not seek 12 Ellis v. Davis, 109 U. S. 485, 27 L. ed. 1000 : Farrell v. O'Brien, TOO U. S. 89, 110, 50 L. ed. 101, 111 : Oakley v. Taylor. 64 Fed. 245, under Missouri statute. Stead v. Curtis, C. C. A., 191 Fed. 529, under Cali- fornia statute. The orders and judg- ments of probate courts in the due and orderly administration of es- tates are conclusive upon the Feder- al courts. Johnson v. Waters. Ill U. S. G40, 607. 4 Sup. Ct. 619, 28 L. ed. 547; Newberry v. Wilkinson, C. C. A., 199 Fed. 673, 680. Where the probate court at the place of domicile of the testatrix admitted to probate a will, but rejected a codicil for want of testamentary ca- pacity, it was held that this deci- sion must be followed by the Federal court in the northern district of New York, although the Circuit Court of New York had admitted the codicil to probate. Higgins v. Eaton, C. C. A., 183 Fed. 388, re- versing 178 Fed. 153. 13 Broderick's Will, 21 Wall. 503. 519. 22 L. ed. 599, 605; Farrell v. O'Brien, 199 U. S. 89, 110, 50 L. ed. 101, 111; holding that this cannot be done under the Washington stat- ute: Richardson v. Oreen, C. C. A., 61 Fed. 423: s. c. 159 C. S. 264, 40 L. ed. 142 (Oregon statute) ; Williams v. Crabb, C. C. A., 59 L.R.A. 425, 117 Fed. 193, 204 (Illi- nois statute): Wart v. Wart. 117 Fed. Frac. Vol. I.— 11. Fed. 766 (Iowa statute) ; Sawyer v. White. C. C. A.,. 122 Fed. 223 I Missouri statute) ; Pulver v. Leon- ard, 176 Fed. 586, under Minnesota statute. See infra, §§ 76, 82. i* Yonley v. Lavender, 21 Wall. 276, 22 L. ed. 536; Hess v. Reynolds, 113 U. S. 73, 28 L. ed. 927: Schur- meier v. Connecticut Mut. Life Ins. Co., C. C. A., 171 Fed. 1. 15 Yonley v. LaA^ender, 21 Wall. 276, 22 L. ed. 536; Hess v. Reynolds, 113 U. S. 73, 28 L. ed. 927. See also Erwin v. Lowry, 7 How. 172. 12 L. ed. 655. 16 Payne v. Hook. 7 Wall. 425, 19 L. ed. 260; Byers v. McAuley, 149 U. S. 608, 37 L. ed. 867 ; Brendel v. Charch, 82 Fed. 262; Waterman v. Canal-Louisiana Bank & Tr. Co.. 215 U. S. 33. 54 L. ed. 80: Pulver v. Leonard, 176 Fed. 586; Order of St. Benedict of New Jersey v. Stein- hauser, 179 Fed. 137; Higgins v. Eaton, C. C. A., 183 Fed. 388. revers- ing 178 Fed. 153: Am. Baptist Home Mission Society v. Stewart, 192 Fed. 976. As to the effect upon such a proceeding of a previous interven- tion in the State court by the State claiming an escheat. McClellan \. Carland, 217 U. S. 268,' 54 L. ed. 762; S. C. C. C. A., 187 Fed. 915. See, also, Barker v. Eastman. 192 Fed. 659. 162 ORIGINAL JURISDICTION. [§ 54 to establish a claim that he might have made in the probate court, 17 and it may thus or otherwise adjudicate upon the con- struction of a will, 18 and compel an accounting by an executor or administrator; 19 although, in one such case, the court, after declaring the rights of the parties by its decree, refused to take jurisdiction of an accounting and left that matter to be deter- mined by the appropriate State tribunal. 20 It may entertain a ■bill in equity against testamentary trustees for an accounting, after the administration of the personal estate by the executors has been terminated, although the State statute gives the pro- bate court jurisdiction over the accounts of testamentary trus- tees; provided that the suit in the Federal court was begun prior to an application to the probate court for an account. 21 In such a suit, the Federal court may direct a final distribution and settlement of the trust. 22 It has been held that the Fed- eral court may fix the compensation of the trustees; and that it is not bound by orders of the State probate court fixing such compensation, which were made after the bill in the Federal court was filed. 23 It has been held: that a Federal court may entertain a bill in equity to surcharge, correct and set aside, a settlement of the accounts of administrators, which has been confirmed by a decree of the proper State court; 24 to set aside ;i fraudulent transfer of property, made by an administratrix with the sanction of the State probate court; 25 to set aside a fraudulent sale of land, made by the decedent in his lifetime, although the State probate court has authority to grant a license 17 MePherson v. Mississippi Val- ley Tr. Co., C. C. A., 122 Fed. 367. 18 Byers v. McAuley, 14!) V. S. 608, 37 L. ed. 867'; Toms v. Oven. .32 Fed: 417: Wood v. Paine, 86 Bad. sii7: Waterman v. (anal-Louisiana Bank & T. Co.. 21.", V. S. 33, 54 L. ed. 80; Spcn.-cr v. Watkins. C. C. a.. 169. Fed. ;;79. 19 Payne v. Hook, 7 Wall. 425, 19 L. ed. 260* Hale v. Tyler, 115 Fed. 833. 839. See Comstock v. Herron, 55 Fed. 803. Newberry v. Wilkin- son. C. C. A., 199 Fed. 673. A Fed- eral court may take jurisdiction of ;■ -nit by the foreign guardian of an incompetent to compel an account- ing by a guardian residing within the district. Pulver v. Leonard, 176 Fed. 586. 20 Crocker v. Oakes. 117 Fed. 363. 21 Herron v. Comstock, C. C. A., 139 Fed. 370. 22 Herron v. Comstock, C. C. A., 139 Fed. 370. 23 Herron v. Comstock, C. C. A., 139 Fed. 370. 24 Bertha Zinc & Mineral Co. Vaughn, 88 Fed. 566. 25 Central Nat. Bank v. Fitzger- ald. 94 Fed. 16. £ 54] PROBATE. 1G to sell the same and thus authorize the administrator to bring a suit for the same purpose, when no such license was granted pre- vious to the filing of the hill ; 26 to set aside a release obtained by an administrator or guardian by fraud ; 27 to set aside an elec- tion obtained from a widow through fraud; 211 at the suit of a creditor to enjoin an administrator from paying over the money, or distributing the property of the estate, fcp others joined with him as parties defendant, although the Federal court cannot ascertain the amount of unpaid claims nor wheth- er the estate is in a condition for final distribution; 29 to enjoin an ancillary administrator from transmitting the assets to the court of original administration until a claim of a creditor has liecn determined; 30 after the determination by the State court is complete, to subject to the payment of a debt of the decedent, property in the hands of a distributee; 81 a bill to enforce an at- tachment on the estate of the decedent, levied by the Federal court before his death, when the State statute authorizes at- tachments and executions to be levied upon equitable interests in real estate; 32 to sell land for the benefit of a creditor of the estate, when the administratrix refuses to institute a pro- ceeding for that purpose in the proper State court under statu- tory authority, although the administration is still pending in the State court undetermined; 83 to compel specific perform- ance, by the heirs and administrators, of a contract by the de- cedent in relation to property of the decedent, which is in the process of administration in the State court ; 34 to compel an ex- ecutor to pay an assessment levied after the decedent's death upon national bank stock, which he holds; 35 to appoint a receiver of the decedent's assets within the district, where the 26 Hate v. Tyler, 115 Fed. 833. Fed. 627. See Lant v. Kinne, C. C. 27.Pulver v. Leonard, 170 Fed. A., 75 Fed. 636. 586. 33Brun v. Mann, C. C. A.. 12 28 Eddy v. Eddy, C. C. A., 168 L.R.A. (N.S.) ]54, 151 Fed. 145. Fed. 590. 34 Davis v. Davis. 89 Fed. 532. 29 Davis v. Davis, 89 Fed. 532. 35 In re Corma\vay,.17S ['. S. 421. 30lngersoll v. Coram, 132 Fed. 44 L. ed. 1134; Wickham. v. Hull. 168, 172; aff'd 211 U. S. 335. 60 Fed. 326; Brown v. Ellis, 86 Fed. 31 Hale v. Coffin, 114 Fed. 567. 357. . 32 Lant v. Manlev, C. C. A., 75 164 ..i;h;ina"L jurisdiction. [§ 55 executors disagree and ran not act together ; 36 and when no temporary administrator has been appointed, pending a conflict in the court of probate concerning the right to administration, 87 the occupation of land therein included by the widow after her quarantine has expired under a claim of title by devise does not take away such jurisdiction ; 38 at the suit of a minority stock- holder, to enjoin one of two executors from voting upon a ma- jority of the stock in the corporation pending litigation in the State court, which has enjoined the other executor from voting thereupon. 39 The property of a debtor taken into the custody of a Federal court by seizure under process issued under its judgment remains under its control to be applied in satisfaction thereof, notwithstanding the death or insolvency of the judg- ment debtor and the institution of proceedings in a State court to administer his estate, and irrespective of subsequent State legislation. 40 § 55. Property in the custody of receivers. The appoint- ment of a receiver by a court, 1 or the filing there, of a bill pray- ing for the appointment of a receiver, 2 or perhaps the present- 36 Ball v. Topkins, 41 Fed. 486. See infra, § 302. 37 Underground El. Rys*. Co. of London v. Owsley. 100 Fed. 671 ; s. c, C. C. A., 176 Fed. 20. 38 Underground El. Rys. Co. of London v. Owsley. 109 Fed. 671; s. c. C. C. A.. 176 Fed. 20. 39Villainil v. Hirsch, 13S Fed. 690. As a condition of granting the injunction, the court enjoined the holding of a stockholders' meeting until the dispute between the executors had been decided by the state court. Villainil v. Hirsch, 143 Fed. 654. 40Hio Grande R. Co. v. Gomila. 332 U. S. 478, 4S1 . 33 L. ed. 400, 401 ; Leadville Coal Co. v. McCreery, 141 U B. 475, 35 L. ed. 824: Straine v. Bradford Sav.'B. & T. Co.. 88 Fed. 571. § 55. l, Shields v. Coleman, 157 U. S. 168, 39 L. ed. 660; Texas v. Palmer, C. C. A., 22 L.R.A.(N.S.) 316. 158 Fed. 705, aff'd Palmer v. Texas, 212 U. S. 118: Garner v. Southern Mut. Building & Loan Ass'n, C. C. A.. 84 Fed. 3. 28 C. C. A. 381 : Lancaster v. Asheville St. Ry. Co., 90 Fed. 129: Sulli- van v. Algrern, C. C. A., 160 Fed. 366; Stirling v. Seattle, R. & S. Ry. Co., 198 Fed. 913. 2 Farmers' Loan & Tr. Co. v. Lake Street El. R. Co., 177 U. S. 51, 44 L. ed. 667; Appleton Water Works Co. v. Central Trust Co., C. C. A., 93 Fed. 286; Holland Trust Co. v. International Bridge & Tram- way Co., C C. A., S5 Fed. 865. See Palestine Water & Power Co. v. Palestine, 91 Tex. 540, 44 S. W. 814, 40 L.R.A. 203; affirming 41 S. W. 659. Contra, De La Vergne Refrig- erating Mach. Co. v. Palmetto Brew- ing Co., 72 Fed. 579; where the Fed- eral court appointed a receiver in a § 55] CUSTODY OF KECEIVEKS. 105 ment to the court, of a bill praying a receiver and the issue of a restraining order or other order thereupon, 3 prevents the ap- pointment of a receiver of the same property by a court of co- ordinate jurisdiction; except perhaps when the first suit is brought by creditors, secured or unsecured, or stockholders, and the second is instituted for the dissolution of the corporation, which is not prayed in the first suit. In such a case, it has been held that the prior appointment of a receiver by the Federal court will not prevent the appointment of one for the same property by the State court, in an action to dissolve the corpo- ration ; but that such receiver should apply to the State court for the return of the property to him. 4 Upon such an applica- tion by temporary receivers appointed in a dissolution suit, it was held, that the motion should be denied, without prejudice to its renewal in case their appointment should be made perma- nent. 5 The fact that the first receivership was based upon the fraud of officers and directors and the second application upon the ground of insolvency, does not affect the rule. 6 It has been held that a receiver appointed by a Federal court of equity will not be ordered to take possession of property, upon which a State court has levied an attachment, 7 or other process, 8 before his ap- pointment was prayed. Where a State court had attached a debt, before the court of another State had appointed the re- ceiver of the creditor, the Federal court directed that judgment be entered against the receiver in an action by him to collect foreclosure suit, after a rule to show R. Co.. 53 Minn. 129. See City Wa- cause in a State court why a receiv- ter Co. v. Texas, 88 Tex. 600, G04 ; er should not be appointed upon a Alderson Receivers. § 20. stockholders' bill, and refused to de- 5 Pennsylvania Steel Co. v. New liver the property to the receiver York City Ry. Co. (Lacombe, J., S. subsequently appointed by the State D. X. Y.), N. Y. L. J., February 4, cour t. 1008. But see Robinson v. Mutual 3 St. Louis & S. F. R. Co. v. Had- Reserve Life Ins. Co., 162 Fed. 704. lev. 155 Fed. 220. 6 Stirling v. Seattle, R. & S. Ry. 4 State v. Port Royal & Augusta Co., IDS Fed. 913. R. Co., 45 S. C. 470," 23 S. E. 363, 7 Southern B. & T. Co. v. Folsom, 386; Louisville, New Albany & Chi- C. C. A., 75 Fed. 929; Hale v. Bugg, cago R. R. Co. v. Cauble, 46 Ind. 82 Fed. 33; Dodds v. Palmer Moun- 277, 280; People v. New York City tain Tunnel Co., 1S8 Fed. 447. Ry. Co., 57 Misc. (N. Y.) 114; Peo- 8 Lake Bisteneau Lumber Co. v. pie v. Hasbrouck, 57 Misc. (N. Y.) Mimms. 22 So. 730, 49 La. Ann. 130; St. Louis Car Co. v. Stillwater 1283. 166 ORIGINAL JURISDICTION. [§ 55 the debt, unless he should consent to a stay of proceedings until the State court had acted upon the matter. 9 It has been held that the entire property of a corporation is not in the custody of a court that has appointed a receiver over the assets of an- other corporation, which owns a majority of its stock ami oper- ates its railroad under a lease; and that consequently, a State court may appoint a receiver of the lessor, after the appointment by a Federal court of a receiver of the lessee and stockholder; 10 but this rule will not apply if the Federal court has extended the receivership to the interest of the lessor in the property. 11 A stipulation staying proceedings in the Federal court, after a motion for a receiver has been made, does not justify the subse- quent appointment of a receiver by a State court. 12 Where, after the appointment of a receiver, the Federal court accepted a bond in lieu of the property and discharged the receiver, it was held that the State court might appoint a receiver; and that the Federal court could not subsequently appoint another receiver of its own to take the property from the possession of the State receiver; 13 but an appeal to a State court of review from the order appointing a receiver, and the filing of a super- sedeas bond, which stays the proceedings, before the receiver has taken possession, does not authorize the appointment of a receiver by the Federal court; and such Federal receiver must surren- der the property to the State receiver after the State order of appointment has been affirmed ; although such appointment was in aid of a decree, an appeal from which, accompanied by a supersedeas, is still pending in the State court of review. 14 It has been held that the appointment by the Federal court of a receiver of the assets of a lessor does not oust the State court of jurisdiction to enjoin the directors from amending the lease 15 9 Avery v. Boston Safe Deposit & Trust Co., 72 Fed. 700. 10 Central R. & B. Co. v. Farm- ers' L. & Tr. Co., 56 Fed. 357. 11 Re Metropolitan Railway Re- ceivership, 208 U. S. 90, 52 L. ed. 403. 12 McKcvlmey v. Weir, C. C. A., 118 Fed S05. 13 Shields v. Coleman, 157 U. S. 168. 39 L. ed. 660. But see Inter- state Ry. Co. v. Philadelphia, B. & T. St. Ry. Co., 164 Fed. 770. H Texas v. Palmer. C. C. A.. 22 L.R.A.fX.S.) 316, 158 Fed. 705; aff'd. Palmer v. Texas, 212 U. S. 118, 53 L.ed. 435: Sullivan v. Algrem. C. C. A., 160 Fed. 366; Stirling v. Seat- tle. R. & S. Ry. Co., 198 Fed. 913. 15 Guaranty Trust Co. v. North- ern Chicago St. Ry. Co., C. C. A., 130 Fed. 801. § 55] CUSTODY OK RECEIVERS; 107 and that after the Federal court has acquired jurisdiction of a bill praying the removal of the trustee of a corporate mort- gage, the appointment of another and the appointment of a re- ceiver of the mortgaged property pending the suit, the (State court cannot entertain proceedings for the appointment of a new trustee in accordance with the deed of trust. 16 After the appointment of a receiver and until the termination of his re- ceivership, his removal or discharge, no court, but that which appointted him, except in cases of bankruptcy. can interfere with the property placed in his custody. 17 * The unauthorized appearance of the Federal receiver in a State court does not divest the Federal court of its exclusive jurisdic- tion in this respect. 18 A receiver appointed by a State court cannot, except possibly in a suit for the infringement of a [lat- ent, be sued without the permission of his court. 19 And if he refuses to sue upon a claim belonging to his estate, no person . interested can bring a suit to collect the same without his join- der as a defendant by the permission of such court. 20 Formerly a Federal receiver could not be sued without the permission of his court. 21 . The Judiciary Act of 1887 abrogated this rule: 22 but a judgment against him cannot be enforced without the permis- sion of the Federal court. 23 It has been held : that when a re- ceiver has been appointed of the property of a corporation, its mortgagee cannot without permission of the court which made such appointment take proceedings to foreclose a mortgage there- upon because of a subsequent default; 24 that the appointment by a State court of a receiver of a corporation pending a suit in a Federal court to set aside a chattel mortgage which it had 16 State Nat. Bank v. Syndicate 20 Porter v. Sahin. 140 U. S. 473. Co., 178 Fed. 359. 37 L. ed. 815: infra. § 314. "In ,e Tyler, 149 U. S. 104. 37 21 Barton v. Barbour. 104 U. S. L. ed. 089; Porter v. Sabin. 149 U. 12fi. 20 L. ed. 672. S. 473, 37 L. ed. 815: Security Trust 22 25 St. at L. 866, § 3. p. 430: Co. v. Union Trust Co.. 134 Fed. infra, § 314. 301. 28 Porter v. Sahin. 14!» I". S. 473. 18 Memphis Sav. Bank v. Hon- 37 L. ed. 815: Mo. Pac Ry. Co. v. chens? C. C. A.. 115 Fed. 90, 111. Texas Pac Ry. Co.. 41 Fed. 311. 19 Porter v. Sabin, 140 V. S. 473, re-enacted in .Tud. Code. § 00. 30 37 L. ed. 815: Re.jall v. Greenhood. St. at L. 1087: infra. § 314. 00 Fed. 784; Ross v. Heckman. 84 24 Slade v. Massachusetts Coal & Fed. 6. But see infra, § 314. Power Co., 188 Fed. 309. 1<"> S OKIOIXAI. JIKISDIC IIOX. [§ 55 fraudulently obtained was no bar to such Federal suit; 25 that a Federal court may foreclose a mortgage upon property held by a receiver appointed by a State court in a suit to which the mortgagee was not a party; and that in such foreclosure suit the Federal court can determine the claim of the holders of receiv- ers' certificates issued under the order of the State court to a preference over the mortgage, 26 and that where a suit was brought, in a Federal court, to foreclose a mortgage, prior to the institution of a suit in a State court in which a receiver was ap- pointed ; the Federal court might decree the foreclosure sale, notwithstanding the possession of such receiver. 27 It has been held : that upon a bill to set aside the decree of a Federal court, as fraudulent, a State court has no jurisdiction to review the acts of receivers appointed by the Federal court before such decree. 28 Property in the possession of a statutory receiver not appointed by a court is not usually considered to be in the court's custody. 29 Where the receiver of a national bank appointed by the Comp- troller of the Currency refuses to sue to collect a cause of action due the bank, one of the stockholders may sue in a State court to collect such assets on behalf of the bank, and should make the bank and its receiver parties defendant. 30 After the ap- pointment by the Comptroller of the receiver of a bank, the State court may levy a w'.rit of attachment against the bank and the receiver as garnishees. The State court then has jurisdic- tion to enter a judgment establishing the claim, but not to order the receiver to make a payment out of the assets of the bank. It is the duty of the receiver upon the service of the writ to re- port the facts to the Comptroller, and it then becomes the duty of the Comptroller to hold any funds coming to his hands through the Treasurer as the proceeds of the assets subject to any rights that have been adjudicated by the State court. 31 In a proper case, an injunction may be granted to enjoin such a 25 Sims v. United Wireless Tel. 28 Kurtz v. Philadelphia & R. R. Co., 179 Fed. 540. Co., 40 Atl. 988, 187 Pa. St. 59. 26 Metropolitan Tr. Co. v. Lake 29 l„ re Chetwood, 165 U. S. 443, ( ities El, Ry. Co., 100 Fed. 897. 41 L. ed. 782. But see Wabash R. R. Co. v. Adel- 30 ibid. bert College. 208 U. S. 38. 52 L. 31 Earle v. Conway. 178 U. S. 456, ed. 379; quoted, supra. § 52. 44 L. ed. 1149: Earle v. Pennsyl- 27 Bridgeport El. & Ice Co. v. vania. 178 U. S. 449, 44 L. ed. 1146. Meader, C. C. A.. 72 Fed. 115. § 5ft] SHERIFFS AND MARSHALS. 169 receiver from transmitting the assets to the Comptroller of the Currency. The appointment of a receiver or trustee by a Court of Bank- ruptcy in a case of which it has jurisdiction supersedes the au- thority of a receiver appointed by a State court although he was previously in possession of the property; but comity requires that, except in an extraordinary case, the receiver in bank- ruptcy should apply to the State court for an order directing the delivery of possession to him before he institutes other proceed- ings for the same. 33 A suit, in which a State court has appointed a receiver, may be removed to the Federal court. 34 Where a Federal court has appointed a receiver in a case where a receiver was previously appointd by a State court, the proper remedy is an application by the State receiver, to the Federal court, for the delivery of the possession of the property to the applicant. 35 § 56. Controversies between State sheriffs and United States marshals; and those arising out of attachments, garnishee process and executions. A court, which, through its officers, has levied upon property under a common- law writ, retains the exclusive custody of the same until it aban- dons it. 1 This rule applies to- a judgment 2 and a fund in 32 American Can Co. v. Williams, C. C. A., 153 Fed. 882. 33 In re Watts and Sachs, 1 90 U. S. 1, 27, 47 L. ed. 933, 941; infra, § 59. 34 in re Iowa & Minnesota Con- struction Co., 10 Fed. 401. Where, however, all the property of a for- eign corporation had been placed in the hands of a receiver appointed by the State court, the Federal court said, that a case instituted by attachment which had been removed thereto, should be remanded. Gold- berg, Bowen & Co. v. German Ins. Co., 152 Fed. 831, 834. 35 Texas v. Palmer, C. C. A.. 22 L.R.A.(X.S.) 31fl, 158 Fed. 705; Waters-P. Oil Co. v. Texas, 47 Tex. Civ. App. 1G2, 103 S. W. 836; State v. Port Royal & Augusta R. R. Co., 45 S. C. 470, 23 S. E. 363; People v. New York City Ry. Co., 57 Misc. (X. Y.) 114. § 56. 1 Freeman v. Howe, 24 How. 450, 16 L. ed. 749; Krippen- dorf v. Hyde, 110 U. S. 270, 28 L. ed. 145; Summers v. White, C. C. A., 71 Fed. 106; De Galard v. Safe Deposit & Trust Co., 196 Fed. 981, a Federal suit in equity to obtain possession of bonds previously at- tached under process of a State court. When the sheriff held prop- city under summary proceedings for a foreclosure under the Ceorgia statute, it was held to be in the custody of a state court. Tefft v. Sternberg, 5 L.R.A. 221, 40 Fed. 2. 2 Menees v. Matthews, 197 Fid. 170 ORIGINAL JURISDICTION. [§ 56 court 3 which are not subject to attachment 4 or gar- nishee process, 5 by any other court until the fund is distributed. The entry of a final decree or order for the distribution, is not a relinquishment of the jurisdiction of the court; 6 and checks prepared by the clerk of the court for mailing", in accordance with such an order, can- not be attached or made subject to garnishee process. 7 It lias been held, however, that the State sheriff may seize property, while still in the possession of the United States marshal, after an order by the Federal court directing its return to its own- er ; 8 that where the marshal, after levy under a writ of replevin, permitted the plaintiff's agents to pack the goods, to load them into a car, and to procure a shipping receipt and bill of lading for the same, these acts constituted a delivery to the plain- tiff and a State sheriff might subsequently levy upon them under a writ of attachment issued by a State court; 9 that, where a State sheriff had made no valid levy upon property by taking possession of the same, but merely had it pointed out to him, that did not prevent a subsequent seizure thereof by a marshal under process from a United States court of admiralty. 10 In the State of Xew York, where a warrant of attachment, issued by a Cir- cuit Court of the United States, has been duly filed in the of- fice of the clerk of the court, in the same State, but in a differ- ent district from that where the writ was issued; the State court will not grant an injunction against the sale of the same, al- though the validity of the levy is contested; but will leave that matter lor determination by the Federal courts. 11 It has been 033: Mack v. Win-low. C. C. A., 59 Fed. 316. 310. 8 C. C. A. 134: and cases cited. 3 Corbitt v. Farmers' Bank of Delaware. 114 Fed. 002. 4 Ibid. 5 Mack v. Winslow, C. C. A.. 59 Fed. 310. 319, 8 C. C. A.. 134: Meneea v. Matthews, 107 Fed. 033: and cases cited: Swinerton v. Ore- gon Pac. R. Co. 123 Cal. 417. .50 Pac. 40. In Menees v. Matthews. 197 Fed. 033. the Federal court re- fused to stay an execution on its judgment because the circumstances tended to show collusion between the garnisher and the judgment debtors. 6 Corbitt v. Farmers' Bank of Del- aware. 114 Fed. 002. 7 Swinerton v. Oregon Pac. R. Co. 123 Cal. 417, 56 Pac. 40. 8 Daniels v. Lazarus, 65 Fed. 718; Lazarus v. McCarthy, 32 X. Y. Supji. S33. 9 Animarium Co. v. Bright, 82 Fed. 107. 10 Fountain v. 624 Pieces of Tim- ber. 140 Fed. 381. HBeardslee v. Ingraliam, 183 N. Y. 411. 3 L.R.A.(N.S.) 1073. Pre- vious to this decision, the Federal § 56] SHERIFFS AND MARSHALS. 171 held: that after the levy upon land, of an attachment issued by a State court of Tennessee, the Federal court cannot appoint a receiver of the same in a suit subsequently begun. 12 In the Southern District of California, it was held: that the levy of an attachment upon real estate gives to the court neither actual, nor constructive, possession thereof, but merely creates a lien upon the same; that it cart consequently be taken into the pos- session of a receiver of a Federal court subesquently appointed ; and that where the property is not ample to meet all the claims against it, the Federal court will not permit its sale under exe- cution before the title is acquired by its own decree. 13 Where a State statute provides for successive attachments of the same property, a prior attachment in a State court affords no ground for the discharge of an attachment in a Federal court. 14 Other- wise, a Federal court will not appoint a receiver of property held by a sheriff under a common-law writ, levied before the receiver's appointment was prayed. 15 A writ of replevin, issued by a State court, to take property within the possession of a mar- shal of the United States, 16 and an injunction interfering with the marshal's control of the same, 17 are void, and a case of the latter character may be removed to the District Court of the United States. The Federal court may, however, entertain a suit against a State sheriff for damages caused by any legal levy. 18 The custody of property by a Federal court, under a levy by attachment, does not prevent the State courts from sub- sequently deciding the title to the same in an interpleader mi it ; and it has been held, that the decision therein will be binding upon the District Court of the United States. 19 The levy, by a State court, upon land in the possession of a person not a party court bad denied an injunction 15 Southern B. &. T. Co. v. Fol- against the prosecution, by State som, C. C. A.. 75 Fed. 020 : Dodds receivers, of an action to enjoin the v. Palmer Mountain Tunnel Co.. 1 SS marshal's sale. Ingraham v. Xa- Fed. 447. tional Salt Co., 139 Fed. 6S4. Of. 16 Freeman v. Howe. 24 How. 450, Hale v. Bugg, 82 Fed. 33. 10 L. ed. 749; Summer> v. White, 12 Southern Bank & Tr. Co. v. C. C. A.. 71 Fed. IOC. Folsom, C. C. A., lb Fed. 929. n Frank v. Leopold & Felon Co.. 13 In re Hall & Stilson Co.. 73 169 Fed. 922. Fed. ">27. 18 Porter v. Davidson, 62 Fed. 6215; 14 D. E. Loevve & Co. v. Lawlor, 19 Montgomery v. McDermott, 87 130 Fed. 633. Fed. 374. 172 ORIGINAL .ri'RISDICTIOX. [§ 56 to the suit, will not prevent him from suing in the Federal court, to cancel the deed subsequently given to the purchaser at the execution sale; nor from obtaining, from such court, an injunc- tion against the sale. 20 In a proper case, a suit may be removed to a Federal court, notwithstanding the fact that a State court has previously therein taken property into its possession under a common-law writ. 21 Where there is a dispute between the State sheriff and the United States marshal as to the right to posesssion, the proper remedy is ordinarily a petition of intervention pro interesse suo by the sheriff in the Federal action. 22 It has been held that an original bill for an injunction will not lie. 23 But an ancillary bill has been sustained in such a case, and it was said that in some eases a summary motion might be granted according to the circumstances. 24 In order to preserve his right to a priority, it seems that the proper course is for the sheriff to serve upon the marshal as garnishee a notice of his writ. 25 A writ of replevin issued by a State court in such a case is void. 26 Although, it has been held, that proceedings in the State court, under an execu- tion against the defendant's property, cannot be enjoined by the Federal court ; when the sheriff has levied upon property not owned by the defendant judgment debtor, such an injunction was issued. 27 A State court cannot levy an attachment or gar- nishee process against a debt pending an action in a Federal court to collect the same. 28 Where the Federal court had at- tached a bank deposit, which was claimed by others not parties 20 Provident Life & Trust Co. v. Mills. 91 Fed. 435. 21 Kern v. Huidekoper. 103 U. S. 485. 493, 492, 26 L. ed. 354, 356, 357. 22 Pickett v. Tiler & S. Co., 40 Fed. 313; Gambel v. Pitkin, 124 U. S. 131, 31 L. ed. 374. See Freeman v. Howe, 24 How. 450. 16 L. ed. 749: People's Bank v. Calhoun. 102 U. S. 256. 26 L. ed. 101: Beckett v. Sheriff of Hartford Co.. 21 Fed. 32. 23 Pickett v. Tiler & S. Co.. 40 Fed. 313. 24 Krippendorf v. Hyde. 110 U. S. 276, 287, 28 L. ed. 145, 149, per Matthews, J. See Porter v. David- son, 62 Fed. 626. 25 Gambel v. Pitkin, 124 U. S. 131, 31 L. ed. 374. 26 Freeman v. Howe, 24 How. 450, 16 L. ed. 749; Summers v. White, C. C. A., 71 Fed. 106. 27 Provident Life & Trust Co. v. Mills. 91 Fed. 435. 28 Wallace v. McConnell. 13 Pet. 136, 10 L. ed. 95; Rosenstein v. Tarr. 51 Fed. 368; Mack v. Wins- low, 59 Fed. 316; Ohio R. Co. v. Fisher, C. C. A., 115 Fed. 929 § 57] LITIGATION IN ANOTHER COURT. 173 to the suit, and an action against the bank for its recovery had been instituted by one of them in a State court, it was held, that the plaintiff in the Federal court must appear in the State court and submit his rights to adjudication there for the protection of the bank; and that otherwise, his attachment should be de- nied. 29 Banruptcy cases are an exception to this rule. 30 § 57. Effect of jurisdiction of another court over same cause of action. The doctrine does not prevent an action in personam between the same parties involving the same issues; provided that the property is not seized therein. 1 Where suits are pending in a State and a Federal court, to enforce the same cause of action, the usual practice is to stay proceedings in the court where the second case was begun until the first is deter- mined ; not to dismiss the second suit. 2 A plea in abatement not in such a case was sustained ; 3 but a bill against an adminis- trator, which sought to interfere with assets in the custody of a State court of probate, was held to be demurrable. 4 Where bills to enjoin the enforcement of a State statute had been previously presented to the Federal court, upon notice of an application to file the same, and restraining orders issued, but leave to file postponed because of the absence of one of the defendant's coun- sel ; it was held: that these proceedings took precedence of sub- sequent suits in the State courts to enforce the statute; and that such subsequent suits by the defendants to the former bills might be enjoined ; 5 but where the Federal court had enjoined the enforcement of a State statute reducing the price of gas pending an adjudication concerning its validity in the suit there instituted, a State court held that it had power to enjoin the gas company from cutting off the supply of gas to a consumer for his refusal to pay the original price. 6 It has been held that 29 U. S. v. Neeley, 146 Fed. 763. 417; Hughes v. Green, C. C. A., 84 80 Infra, § 59. Fed. 833; infra, § 177. See U. S. § 57. l Porter v. Davidson, 62 v. Belknap, 73 Fed. 10. Fed. 626; Rejall v. Greenhood. 60 3 See infra, § 177. Fed. 784: Merritt v. American S. B. 4 Lant v. Mahley, 71 Fed. 7; re- Co., 79 Fed. 228; Copeland v. Bru- versed on another point, S. c, C. C. ning, C. C. A.. 127 Fed. 550. Cf. A., 75 Fed. 627. Huntington v. Laidley, 176 U. S. 5 St. Louis & S. F. R. Co. v. Had- 668. 44 L. ed. 630. But see infra, ley, 155 Fed. 220. § 177. ORiehman v. Consol. Gas. Co., 186 2 Zimmerman v. SoRelle, 80 Fed. N. Y. 209. The Court of Appeals 174 OKIWKNAL JURISDICTION, [§ 57 the pendency in a Federal court of a suit by a gas company against a city to set aside, as an impairment of the contract made by its franchise, an ordinance regulating the pressure in complainant's mains, does not justify an injunction against a subsequent suit by the city against the company in a State court for mi accounting under the original ordinance granting the franchise, upon the ground that the contract rates charged were excessive because of insufficient pressure, although such second suit prays an injunction against the further collection of such rates. 7 Where a suit by one riparian owner against another to enjoin interference with the complainant's use of water, had been first brought in a Federal court, a subsequent suit in a State court in a different State, when brought by a privy of the de- fendant against the complainant to the first suit, was held to be rightfully enjoined. 8 Similar rules- should usually be followed l>y the Federal courts when the State courts have first acquired jurisdiction of such suits for injunctions; 9 but it seems that they are not bound to do so. 10 It was held that a decree of a State court in personam, restraining a water company from re- fusing to furnish water to the city on certain conditions, did not prevent a subsequent suit in the Federal court by a person in privity with the former defendant to enjoin the city from preventing his removing the plant. 11 Where a bill was filed by a Federal court to remove a trustee, have another appointed in his place, or, in the alternative, for the appointment of a receiv- er and a cancellation of certain fraudulent bonds secured by the trust deed ; it was held that the State court was not bound to recognize any subsequent order in proceedings afterwards brought in the State court for the appointment of a new T trustee, in accordance with the deed of trust. 12 .V State court cannot levy an attachment or garnishee process, against a debt, pending intimated that the State court of 9 People's Gaslight & Coke Co. v. original jurisdiction should stay the City of Chicago, 192 Fed. 398: Moss trial until the determination in the & Co. v. McCarthy.. 191 Fed. 202. Federal court of the issues there 10 People's Gaslight & Coke Co. v. raised. City of Chicago.. 192 Fed. 398. 7 Kansas City Gas Co. v. Kansas H Laighton v. City of Carthage, ( ity. 19S Fed. .",00. Mo.. 175 Ted. 145. 8 Rickey Land & Cattle Co. v. Mil- 12 State Nat. Bank v. Syndicate lex & Lux, 218 U. S. 258, 54 L. ed. Co., ITS Fed. 359. 1032. § 58] CONFLICTING CRIMINAL PROCEEDINGS. 175 an action in a Federal court to collect tlie same. 13 It has been held: that the pendency of a suit in a State court in another dis- trict, in which a trustee has been enjoined from beginning a foreclosure suit, does not affect the jurisdiction of a Federal court to foreclose the mortgage on the property in both States, at the suit of a majority of the bondholders. 14 It has been held : that the pendency of a suit in the Federal court to foreclose a lien, in which no receiver is appointed, does not affect the juris- diction of a State court to entertain a suit for the foreclosure of a mortgage on the same property, when the mortgagee was not a party to the suit in the Federal court; and that the decree in the Federal court does not bind the mortgagee, nor affect the rights of a purchaser at the foreclosure sale. 15 § 58. .Effect of the custody, by another court, of the person of an accused in criminal proceedings, or otherwise. This doctrine applies, to a limited extent, to the custody of a person in a criminal case. 1 Thus, the Federal courts ordinarily refuse to discharge by habeas corpus before his trial, and even in some cases, before he has exhausted his remedy by writ or appeal, after conviction, a prisoner held under indictment by a State court. 2 So, where the marshal had seized under a charge of a crime against the United States a prisoner held by the sher- iff under a charge of a violation of the State criminal law, the Federal court upon a plea in abatement sustained the indict- ment found by its own grand jury, but ordered that the accused be returned to the State authorities. 3 CYmverselv, a State court has no power to release by habeak corpus a prisoner held under the process of a court of the United States. 4 The acts of Con 13 Wallace v. McConnell, 13 Pet. 136, 10 L. ed. 95: Rosenstein v. Tarr, 51 Fed. 36g; Mack v. Wins- low. 59 Fed. 31 G. 14 Woodbury v. Alleghany & K. R. Co.. 72 Fed. 371. 15 National Foundry & Pipe Works v. Oconto City Water Supply Co., C. C. A.. 113 Fed. 793. See National Foundry & Pipe Works v. Oconto Water Supply Co.. 183 U. S. 216, 46 L. ed. 157. § 58. lHarkfader v. Wadley, 372 U. S. 148. 164. 43 L. ed. 399, 4(14. per Sliiras, J., citing Ex parti' Crouch. 112 U. S. 178, 28 L. ed. 090. 2Fx parte Royall. 117 U. S. 241. 254. 2!) L. ed. 86S. 872: £§ 461. 166, infra. 3 ( . S. v. Wells, 11 Am. Law Reg. (N. S.) 424; s. C, Fed. Cases No. 16,665. 4 Ahleman v. Booth. 21 How. 506, 16 L. ed. 169. See Tarhle's Case, 13 Wail. 397. 20 L. ed. 597: Robb v. Connolly, 111 U. S. 624. 28 L. ed. 542. In the Matter of Spangler, 11 Mich. 298. 176 ORIGJXA I, JURISDICTION. [§ 58 eress, however, authorize in certain eases the removal of crim- inal proceedings from a State to a Federal court. 5 And where an officer of the United States is arrested by State process, be- cause of an act done in pursuance of his official duty, the Fed- eral courts will usually interfere, by habeas corpus, to protect him. 6 It has been held that an application for the removal of a criminal from one Federal district to another will be denied if the accused was in the custody of the State court before the V Federal court obtained jurisdiction. 7 The same rule applies when lie is. at that time, in the custody of a court of the United States, in the district from which it is sought to remove him; 8 unless such court relinquishes its jurisdictiqn, which it may do with the consent of the government ; and if it does so, the ac- cused will be removed. 9 Where the first court declines to relin- quish its jurisdiction, it has been held that the practice is for the marshal to hold, but not to execute, the second warrant, until it is determined whether the accused shall be held under that first issued. 10 It has been said: "that the sovereignty, where ju- risdiction first attaches, may yield it; and that the implied cus- tody of a defendant by his sureties cannot prevent. They may, however, claim exemption from further liability to produce him." n Where a proceeding' to determine the sanity of an al- leged lunatic had been brought in a State court, between citizens of different States, the Federal court refused, pending the de- termination thereof, to review the right of his custody upon a writ of habeas corpus. 12 "Where one commences a criminal proceeding, who is already a party to a suit then pending in equity, if the criminal proceedings are brought to enforce the 5U. S. R. S.. §§ 643, 643; IS St. at L.. p. 401 : Tennessee v. Davis. 100 U. S. 257. 25 L. ed. 64S. See §§ 537. 550. 551. infra. 6 in re Neagle, 135 U. S. 1, 34 L. ed. ~^~); Oliio v. Thomas, 173 U. S. 276, 285. 43 L. ed. 699. 702: Boske v. Comingore, 177 X*. S. 459, 44 L. ed. 84ii: Anderson v. Elliott. C. C. A., KM Fed. 609; In re Turner. 119 Fed. 231: West Virginia v. Laing, C. C. A.. 133 Fed. 887. See § 461, infra. T Re James. 18 Fed. 853: U. S. v. Corrie. 23 L. Rep. 145: U. S. v. Burr. 2 Burr's Trial. 455. See Re Johnson. 107 U. S. 120. 42 L. ed, 103. 8 Re Johnson. 167 U. S. 120, 124. 42 L. ed. 103. 104, 9 Beavers v. Haubert, 198 U. S. 77. 49 L. ed. 950: Re Beavers. ]25 Fed. 988: Peckham v.'Henkel, 160 Fed. 627. W Re Beavers. 125 Fed. 9S8. n Beavers v. Haubert. 198 U. S. 77. 85. 49 L. ed. 950, 953. 12 Hoadlev v. Chase. 126 Fed. 818. § 59] FEDEKAT. RTOHT TO CUSTODY WHEN PARAMOUNT. 177 same rights that are in issue before that court, the latter may enjoin such criminal proceedings." 13 When an indictment or proceeding is brought to enforce an alleged unconstitutional statute, which is the subject matter of inquiry in a suit already pending in a Federal court, the latter, having first obtained ju- risdiction over the subject matter, has the right to hold and maintain such jurisdiction to the exclusion of all other courts, until its duty is fully performed ; but it cauuot interfere where the proceedings were pending in the State court before the ju- risdiction of the Federal court was sought ex parte. 1 * § 59. Effect of the custody of property by the State court, where the Federal courts exercise jurisdiction under the Constitution and laws of the United States. The rule does not apply where the Federal courts exercise superior juris- diction, for the purpose of enforcing the supremacy of the Constitution and laws of the United States. 1 The institution of a proceeding in bankrutpcy gives jurisdiction to the District Court of the United States in certain cases to seize property taken into the custody of a State court, within four months before the filing of the petition. 2 The possession of the prop- erty of a corporation by receivers appointed by a State court does not affect the jurisdiction of a District Court of the United States to adjudicate that corporation a bankrupt; nor it has been held deprive the directors of any power which they may possess to make a written admission of its inability to pay its debts and its willingness to be adjudicated a bankrupt, so as to support involuntary proceedings in bank- ruptcy. 3 After an adjudication of bankruptcy, the appoint- 13 Ex parte Young, 209 U. S. 123, Tune. 115 Fed. 900; Re English. C. 162, 52 L. ed. 714, 730. C. A., 127 Fed. 940; In re Moench 14 Ibid. & Sons' Co., C. C. A.. 130 Fed. 685. § 59. lTefTt v. Sternberg. 5 See §§ 609, 635. infra. L.R.A. 221, 40 Fed. 2, G, per Speer, 3 In re Moench & Sons' Co., C. C. J.; citing Covell v. Hyman, 111 U. A - 130 Fed. 085; Re Electric Sup- S. 176. 28 L. ed. 390. P'y ^o., 175 Fed. 612; Otherwise 2 30 St. at L., p. 564; In re Ma- whon enjoined, lie Hudson River con S. D. & L. Co., 112 Fed. 323, E1 - R - t'o.. 173 Fed. 934. See infra 333; Carling v. Seymour Lumber §§ 625 > U2U ' Co., C. C. A.. 113 Fed. 483; In re Fed. 1'rac. Vol. I.— 12. 178 ORIGINAL JURISDICTION'. [§ 59 ment of a receiver 4 or trustee 5 by the bankruptcy court super- sedes the authority of a receiver previously appointed by a State court because of insolvency, although the latter is in possession of the property, but comity requires that, except in an extraordinary case, the officer of the bankruptcy court should apply to the State court for an order for the delivery or possession to him before he institutes another proceeding for the same. 6 It has been held that, before adjudication at least, the Federal court should not appoint a receiver when a receiver appointed by a State court is already in possession ; 7 and in the county of New York it is the practice of the Supreme Court, in such a case, to instruct its receiver to apply to the Federal court to set aside the appointment there made and to appeal if such application be denied. 8 The filing of a suit in equity in the District Court of the United States by a trustee in bank- ruptcy, to set aside as fraudulent a conveyance of mortgaged premises by the bankrupt and an interlocutory judgment in his favor therein, was held to be no ground for vacating an order appointing a receiver of the mortgaged premises in a suit of foreclosure subsequently brought in the State court. 9 A Dis- trict Court of the United States will enjoin a suit in a State court, begun subsequent to an adjudication of bankruptcy, to take possession of property held by the bankrupt or his trustee. 10 The rule as to proceedings in admiralty is not so clear. It has been held: that the appointment of a State receiver, who had not filed the statutory bond, nor taken possession, was no bar to the seizure of a boat by the marshal under process in ad- 4 7?e J. W. Zeigler Co., 189 Fed. 259. In that case, the court refused to punish the State receiver for re- fusal to deliver possession of the property to the receiver in bank- ruptcy when he acted under the ad- vice of counsel. See In re Watts and Sachs, 190 U. S. 1, 27, 47 L. ed. 933, 941. 5 Re Hecox, C. C. A., 1G4 Fed. 823. 6 Re Watts and Sachs, 190 U. S. 1, 27; Re Ilecox, C. C. A., 104 Fed. 823. 7 Re Spalding, C. C. A., Second Ct., May 1905, reported in Re Oak- land Lumber Co., C. C. A., 174 Fed. G34, G37; Re Desrochers, 183 Fed. 991 ; Re Standard Cordage Co., 184 Fed. 150. So held when an assignee in insolvency was in possession, Re Rosenthal, 144 Fed. 548, 549. 8 People v. P. V. Rovnianek & Co., N. Y. L. J. Jan'y. 12, 1911. 9 Mutual Life Ins. Co. v. Fleisch- man, 149 App. Div. (N. Y.) 23. 10 White v. Schloerb, 178 U. S. 542, 44 L. ed. 1183. § 60] DIFFERENT FEDERAL COURTS. 179 miralty. 11 That a vessel can be seized by the marshal under a libel in admiralty, to enforce a lien that arose for repairs be- fore the appointment of the receiver, when the seizure is made after such appointment; but before the receiver has taken actual possession or notified the master, or any person on board the vessel, that he has been appointed ; 12 but that a tug, attached under process of a State court and delivered by the sheriff to a receiver appointed by said court, cannot be taken from him by a marshal of the United States in proceedings in admiralty upon claims that arose against the tug before his appointment. 13 That, upon a similar claim, a marshal cannot take property from the hands of an assignee under the insolvency law of Minnesota. 14 That a vessel in the possession of receivers, ap- pointed by a Circuit Court of the United States, is not, with- out the permission of that court, subject to seizure on process in admiralty from the District Court for the same district, in a suit in rem to enforce a judgment which arose prior to the receivership. 15 And that a vessel operated by a State receiver can be seized in another State by the District Court of the United States, upon a libel in admiralty to enforce a claim that arose during his management of the vessel. 16 § 60. Property in the custody of another Federal court. The different District Courts of the United States, acting upon the principle of judicial comity, usually, when property has been taken into the custody of another District Court, or when proceedings have been instituted therein for such a purpose, re- fuse to interfere with the same. Thus, where proceedings to cancel a mortgage had been instituted in one district, the Fed- eral Court of another district stayed proceedings upon a bill therein filed for the foreclosure of such mortgage until the de- termination of the first suit. 1 So, where a receiver has been appointed to take possession of certain property, such as a rail- road, which is situated in several districts, it is the usual prac- llMoran v. Sturges, 154 U. S. 16 Tlie Willamette Valley, C. C. 256, 38 L. o«l. 981. A., 06 Fed. 565; s. c, Chandler v. 12 The Lotta. 65 Fed. 310. The Willamette Valley, 63 Fed. 130. 13 The E. L. Cain. 45 Fed. 367. § 60. 1 Hurd v. Moiles, 28 Fed. 14 The J. G. Chapman, 62 Fed. 897. 939. • 15 The Jonas H. French, 119 Fed, 462. 180 ORIGINAL JURISDICTION. [§ 60 tice for the District Courts in the other districts to appoint the same person as ancillary receiver of the property within their territorial jurisdiction; 8 to treat the court in which the pro- ceedings were first instituted as that of primary jurisdiction and of principal decree, and to make the administration of the property in the latter court ancillary thereto. 3 Accord- ingly, the court of ancillary jurisdiction refused to direct the payment of a judgment against the corporation recovered in a State court within its district where an account of the funds in its receiver's hands was necessary, and referred the petitioner to the court of primary jurisdiction for relief. 4 This rule however, is largely within the discretion of each District Court, and cases have arisen in which each court has administered the assets within its jurisdiction independently of the administra- tion of the court of primary jurisdiction. 5 Where the trustees of a second mortgage on a railroad had begun a foreclosure suit, making the trustee of the first mort- gage a party, and receivers had heen appointed and taken pos- session, it was held that the first mortgagee should not be al- lowed to bring an independent foreclosure suit, but must seek the relief he wished in the suit instituted by the second mort- gagee. 6 Where the evidence, affecting the decision of an appli- cation made to one of the courts of ancillary jurisdiction, was within the custody of another court of ancillary jurisdiction ; the former denied the motion, without prejudice to an application to the latter. 7 Where a controversy arose out of transactions in the ancillary jurisdiction, it was held: that that court should determine the same. 8 'That where a Federal Court in another 2 Williams r. Hintermeister, 26 Fed. 880; Parsons v. Charter Oak L. I. Co., 31 Fed. 305; infra, § 304. 3 Farmers' L. & T. Co. v. North- ern Pac. Ry. Co., 72 Fed. 20, 30, 31; Clyde v. Richmond & D. R. Co., 65 Fed. 33(5. 4 Central T. Co. v. East Tenn., Va. & G. R. Co.. 30 Fed. 805. 5 The Wabash Cases: Atkins v. Wabash, St. L. & P. Ry. Co.. 20 Fed. 101 : Central T. Co. v. Wabash, St. L. & P. Ry. Co., 20 Fed. 618; U. S. T. Co. v. Wabash, St. L. & P. Ry. Co.. 42 Fed. 343. See also ■Mercantile T. Co. v. Kanawha & O. Ry. Co.. 30 Fed. 337; Central T. Co. v. Fast Tenn.. Va. & G. Ry. Co.. GO Fed. 658; X. V. Security & T. Co. v. Equitable Mtg. Co.. 71 Fed. 556; Reynolds v. Stockton. 140 U. S. 254, 272, 35 L. ed. 464: infra, § 304. 6 Mercantile Tr. Co. v. Atlantic & P. R. Co.. 70 Fed. 518. 7 Bowker v. Haight & Freese Co., 140 Fed. 797. 8 Jones v. Central Trust Co., C. C. A., 73 Fed. 568. § 61] RESIDENCE. 181 district, in a suit between other parties, had refused an in- junction against a railroad merger and consolidation, the motion, for substantially the same relief, should be denied. 9 It was held: that a Circuit Court of the United States could, upon a creditor's bill, appoint a receiver of the assets of a foreign cor- poration, when a petition in bankruptcy was previously pending in the district of the defendant's domicile, which was subse- quently followed by an adjudication; 10 that a District Court of the United States could not, by process in admiralty, without the consent nf the Circuit Court of the United States in the same district, take property fro mthe possession of a receiver ap- pointed by the latter to apply to a claim that arose before the appointment of such receiver ; n that a Federal Court which had, through its receiver, sold vessels subject to maritime liens and liens under the State laws for supplies, had no jurisdiction to determine and enforce the same, but that those matters be- longed exclusively to the District Court in admiralty; 12 and that a District Court in admiralty might, in distributing the proceeds of a sale, grant a priority to the claims of a receiver in bankruptcy who is not a party to the admiralty proceed- ings. § 61. Limitations upon jurisdiction by residence. The Judicial Code provides: "§ 51. Except as provided in the five succeeding sections, no person shall be arrested in one dis- trict for trial in another, in any civil action before a district court; and, except as provided in the six succeeding sections, no civil suit shall be brought in any district court against any person by any original process or proceeding in any other dis- trict than that whereof he is an inhabitant- but where the jurisdiction is founded only on the fact that the action is be- tween citizens of different States/suit shall be brought only in the district of the residence of either the plaintiff or the defendant. "§ 52. When a State contains more than one district, every 9Dady v. Georgia & A. Ry„ 112 12 Hudson v. New York & A. Fed. 838. 840. Transp. Co., 175 Fed. 519. 10 Cruchet v. Red Rover Min. Co., 13 Hudson Oil & Supply Co. v. 15.-) Fed. 486. Booraem. 216 t T . S. 604; S. C; The HT'ne Jonejs H. French, 119 Fed. Falcon, C. C. A., 177 Fed. 916. 462. 1 Si? ORIGINAL JURISDICTION. [§ 61 suit imt of a local nature, in the district court thereof, against a single defendant, inhabitant of such State, must be brought in the district where he resides; but if there are two or more defendants, residing in different districts of the State, it may be brought in either district, and a duplicate writ may be issued against the defendants, directed to the marhsal of any other district, in which any defendant resides. The clerk issu- ing the duplicate Writ shall indorse thereon that it is a true copy of a writ sued out of the court of the proper district; and such original and duplicate writs, when executed and returned into the office from which they issue, shall constitute and be proceeded on as one suit; and upon any judgment or decree rendered therein, execution may be issued, directed to the mar- shal of any district in the same State." * "§ 53. When a district contains more than one division, every suit not of a local nature against a single defendant must be brought in the division where he resides; but if there are two or more defendants residing in different divisions of the district it may be brought in either division. All mesne and final process subject to the provisions of this section may be served and executed in any or all of the divisions of the district, or if the State contains more than one district, then in any of such districts, as provided in the preceding section. 2 All prose- cutions for crimes or offenses shall he had within the division of such districts where the same were committed, unless the court, or the judge thereof, upon the application of the de- fendant, shall order the cause to be transferred for prosecution to another division of the district. When a transfer is ordered by the court or judge, all the papers in the case, or certified copies thereof, shall be transmitted by the clerk, under the ^'i\\ of the court, to the division to which the cause is so ordered transferred : and thereupon the cause shall be proceeded with in said division in the same manner as if the offense had been committee! therein. In all cases of the removal of suits from the courts of a State to the District court of the United States such removal shall be to the United States District court in the § 61. 136 St. at L. 1087. may be served there in another dis- 2 Ft has been hrhJ that where de- trict from that in which the court fendanta reside in different districts sits. Babbitt v. Burgess, 2 Dillon, of the same State, an injunction 169, Fed. Cas. No. 693. § 61] RESIDENCE. 183 division in which the county is situated from which the removal is made; and the time within which the removal shall be per- fected, in so far as it refers to or is regulated by the terms of United States courts, shall be deemed to refer to the terms of the United States District Court in such division. "§ 54. In suits of a local nature, where the defendant re- sides in a different district, in the same State, from that in which the suit is brought, the plaintiff may have original and final process against him, directed to the marshal of the dis- trict in which he resides. "§ 55. Any suit of a local nature, at law or in equity, where the land or other subject-matter of a fixed character lies partly in one district and partly in another, within the same State, may be brought in the district court of either district ; and the court in which it is brought shall have jurisdiction to hear and decide it, and to cause mesne or -final process to be issued and executed, as fully as if the said subject-matter were wholly within the district for which such court is constituted. 3 " A suit by a creditor of a railroad company to have its property, sit- uated in different Federal districts of the same State, adminis- tered for the benefit of all creditors, is one of a local nature, which may be brought in either of such districts. 4 It has been said that the appointment of a receiver therein is an equitable attachment of all property of the defendant within the State. 5 Section fifty-six provides that where a receiver is appointed over land or other property of a fixed character, which lies within the district for which such court is constituted." 3 A suit issue and be executed in any district of the circuit, in the same manner and to the same extent as if the property were wholly within the same district. 6 The whole section is quoted and discussed in the chapter on "Receivers." 7 The Judicial Code further provides-: "§ 48. In suits brought for the infringe- ment of letters patent the District courts of the United States shall have jurisdiction, in law or in equity, in the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership, or corporation, shall have committed acts of infringement and have a regular 3.30 St. at L. 1087. 5 Ibid. 4 Horn v. Pere Marquette R. Co., 6 30 St. at L. 1087. 151 Fed. Cas. 626, 627. 1 1nfra, § 306. 184 ORIGINAL JURISDICTION. [§ 61 and established place of business. If such suit is brought in a district of which the defendant is not an inhabitant, but in which such defendant has a regular and established place of business, service of process, summons, or subpoena upon the defendant may be made by service upon the agent or agents engaged in conducting such business in the district in which suit is brought." 8 This section is discussed in the succeeding section. The Copyright Act of .March 4. 1000, provides: ''That civil actions, suits, or proceedings arising under this Act may be instituted in the district of which the defendant or his agent is an inhabitant, or in which he may be found. 9 "Every applicant for registration of a trademark or for renewal of registration of a trademark, who is not domi- ciled within the United States, shall, before the issuance of the certificate of registration, as hereinafter provided for, designate, by a notice in writing, filed in the Patent Office, some person residing within the United States on whom process or notice of proceedings affecting the right of ownership of the trade-mark of which such applicant may claim to be the owner, brought un- der the provisions of this Act or under other laws of the United States, may be served, with the same force and effect as if served upon the applicant or registrant in person. For the purposes of this Act it shall be deemed sufficient to serve such notice upon such applicant, registrant or representative by leaving a copy of such process or notice addressed to him at the last address of which the Commissioner of Patents has been notified." 10 In proceedings in equity to restrain violations of the provisions of laws of the United States to prevent the unlawful inclosure of public lands, "it shall be sufficient to give the court jurisdiction if service of original process be had in any civil proceeding on any agent or employee having charge or control of the in- closure." u "§ 57. When in any suit commenced in any District Court of the United States to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the district where 8 30 St. at L. 1087. 408, Comp. St. Supp. 667, Pierce 9 35 St. at L. 1075, § 35, Pierce Fed. Code, § 8809. Fed. Code (Supp.) § 1589. ".Tun. Code, § 24, subd. 21, 36 10 Act of February 20. 100"). 33 St. at L. 1087. St. at L. 724. § 3, 10 Fed. St. Ann. § 61] RESIDENCE. 185 such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or de- fendants to appear, plead, answer, or demur by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said- property, if any there be, or where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks. In case such absent' defendant shall not appear, plead, answer, or de- mur within the time so limited, or within some further time, to be allowed by the court, -in its discretion, and upon proof of the service or publication of said order and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district; but said adjudication shall, as regards said absent de- fendant or defendants without appearance, affect only the prop- erty which shall have been the subject of the suit and under the jurisdiction of the court therein, within such district; and when a part of the said real or personal property against which such proceedings shall be taken shall be within another district, but within the same State, such suit may be brought in either dis- trict in said State: Provided, however, That any defendant or defendants not actually personally notified as above provided may at any time within one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said district court, and thereupon the said court shall make an order setting aside the judgment therein and per- mitting said defendant or defendants to plead therein on pay- ment by him or them of such costs as the court shall deem just; and thereupon said suit shall be proceeded with to final judg- ment according to law." 12 "§ 40. The trial of offenses punishable with death shall be had in the county where the offense was committed, where that can be done without great inconvenience. 13 36 St. at L. 1087. See § 166, infra. 186 ORIGINAL JURISDICTION. [§ 61 "§ 41. The trial of all offenses committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district court where the offender is found, or into which he is first brought. § 42. When any offense against the United States is begun in one judicial district and completed in another, it shall be .deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district, in the same manner as if it had been actually and wholly committed therein. § 43. All pecuniary penalties and forfeitures may be sued for and recovered either in the district where the.y accrue or in the district where the offender is found. § 44. Taxes accruing under any law providing internal revenue may be sued for and recovered either in the district where the liability for such tax occurs or in the district where the delinquent resides. § 45. Proceedings on seizures made on the high seas, for forfeiture under any law of the United States, may be prose- cuted in any district into which the property so seized was brought and proceedings instituted. Proceedings on such seiz- ures made within any district shall be prosecuted in the dis- trict where the seizure is made, except in cases where it is otherwise provided. s § 46. Proceedings for the condemnation of any property captured, whether on the high seas or elsewhere out of the limits of any judicial district, or within any district, on account of its being purchased or acquired, sold or given, with intent to use or employ the same, or to suffer it to be used or employed, in aiding, abetting, or promoting any insurrection against the Government of the United States, or knowingly so used or em- ployed by the owner thereof, or with his consent, may be prose- cuted in any district where the same may be seized, or into which it may be taken and proceedings first instituted. § 47. Proceedings on seizures for forfeiture of any vessel or cargo entering any port of entry which has been closed by the President in pursuance of law, or of goods and chattels coming from a State or section declared by proclamation of the President to be in insurrection into other parts of the United States, or of any vessel or vehicle coin-eying such property, or § 01] RESIDENCE. 187 ( nnveying persons to or from such State or section, or of any vessel belonging, in whole or in part, to any inhabitant of such State or section, may be prosecuted in any district into which the property so seized may be taken and proceedings instituted; and the district court thereof shall have as full jurisdiction over such proceedings as if the seizure was made in that dis- trict." 13 The Judicial Code further provides: "§ 49. All proceedings by any national banking association to enjoin the Comptroller of the Currency, under the provisions of any law relating to national banking associations, shall be had in the district where such association is located." 14 In suits by the United States for injunctions, under the "Act to protect trade and commerce against unlawful restraints and monopolies," whenever it appears to the court before which the proceeding is pending that the ends of justice require that other parties shall be brought in, they may be summoned whether they reside in the district or not. 15 Prosecutions for the offense of unlawful discrimination in the transportation of property in interstate or foreign com- merce or for acts therewith connected are prosecuted in the dis- trict in which the violation of the law was committed or in any district through which the transportation was conducted. 16 The statute regulating the liability of employers to their em- ployees for injuries in their service, as amended April 5, 1910, provided : "Under this act an action may be brought in the Circuit Court of the United States in the district of the resi- dence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action." " The Judicial Code provides : 13 Jurisdiction of a proceeding for U. S. v. Whitcomb M. R. Co., 45 the forfeiture of smuggled goods Fed. 89. exists only in the district of seizure, 1*36 St. at L. 1087. which is the district in which the 15 Act of July 2, 1890, 26 St. at goods, if on land, are found; a col- L. 209, § 5; U. S. v. Standard Oil lector cannot, by carrying them in- Co. of New Jersey, 152 Fed. 290. to another district and there mak- 16 Act of June 29, 1906, 34 St. at ing the formal seizure confer juris- L. 584, 588. diction of the proceeding on the 17 30 St. at L. 291, court in such district. U. S. v. Lar- kin, C. C. A., 153 Fed. 113. See 188 ORIGINAL JURISDICTION. [§ 61 "That no ease arising under an act entitled 'An Act relating to the liability of common carriers by raidroad to their em- ployees in certain cases,' approved April twenty second, nine- teen hundred and eight, or any amendment thereto, and brought in any State court of competent jurisdiction shall be removed to any court of the United States." 18 Whether the District Courts can take original jurisdiction of suits under that stat- ute in any other district from that in which the defendant is an inhabitant, is a question that is undecided. 19 Prior to the Judicial Code, it was held that the sections of the Revised Statutes limiting the jurisdiction, because of the residence of the parties, did not aifect the jurisdiction in ad- miralty. 20 Courts of admiralty have jurisdiction in proceed- ings in rem wherever the property is seized and in proceedings in personam wherever the person is served with process. 21 The sections of the Judicial Code previously quoted preserve this general jurisdiction of courts of admiralty over certain pro- ceedings in rem. 22 Whether such jurisdiction remains other- wise the same as before the enactment of this Code, has not been decided. Courts of bankruptcy are not affected by these sections. Such may "adjudge persons bankrupt who have had their principal place of business, resided, or had their domicile within their respective territorial jurisdictions for the preceding six months, or the greater portion thereof, or who do not have their principal place of business, reside, or have their domicile within the United States, but have property within their jurisdictions, or who have been adjudged bankrupts by courts of competent juris- 18 § 28, 36 St. at L. 1087. 19 Under the former practice, they could not. Cound v. Atchison, T. & S. F. Ry. Co., 173 Fed. 527; Smith v. Detroit & T. S. L. R. Co.. 175 Fed. 506; Whittaker v. Illinois Cent. R. Co., 176 Fed. 130; Newell v. Baltimore & 0. R. Co.. 181 Fed. G98. 20 R e Louisville Underwriters, 134 U. S. 488, 33 L. ed. 991. 21 Ibid. It has been held: that the exception of suits "of a local character" directs, by implication, that such a suit must be brought in the division where the thing or property proceeded against happens to be situated; that a libel in ad- miralty is a suit of a local nature, and consequently must be prosecut- ed in the division where the ves- sel is seized, although her home port is in another division. The Wil- liamette, 53 Fed. 602. 22 Jud. Code, §§ 45, 46, 47, 36 St. at L. 1087. § 61] RESIDENCE. 189 diction without the United States and have property within their jurisdictions," 23 and "exercise ancillary jurisdiction over persons or property within their respective territorial limits in aid of a receiver or trustee appointed in any bankruptcy proceeding's pending in any other court of bankruptcy,'' 24 The extent to which jurisdiction in suits by aliens is affected by the residence of the parties, is discussed in a previous section. 25 It has been held: that a suit by the United States, unless the statute authorizing the same otherwise provides, can be brought only in the district of which the defendant is an inhabitant ; 2 ' and that even when an individual is surety upon a bail bond filed in a Federal court in another State, his liability cannot be established, except by proceedings in his own State and district. 28 The Act of August 13, 1894, which directs the filing of bonds by contractors upon public works of the United States, for the security of laborers and material men, provides that the suit upon such bond be brought ''in the Circuit Court of the United States in the district in which said contract was to be performed and executed, irrespective of the amount in contro- versy in such suit and not elsewhere." 29 Before the Judicial Code, it was held that this authorized the Federal court in such district to obtain jurisdiction of the persons of non-resident defendants through the service upon them of its process in what- ever district they might be? found. 30 The effect of the enact- ment of the Judicial Code upon the jurisdiction thereby granted 23 30 St. at L. 544, § 2. See infra, Chapter on "Bankruptcy.'? 24 Ibid., as amended 36 St. at L. 838. See infra, § 612. Mtiupra, § 45. 26Lederer v. Rankin, 90 Fed. 449; Lederer v. Ferris, 149 Fed 250. Contra. Fraser v. Barrie, 105 Fed. 787. 27 U. S. v. No. Pac. R. Co., C. C. A., 134 Fed. 715; Kirk v. U. S., C. C. A., 137 Fed. 753; affirmed 199 U. S. G07. 28 Kirk v. U. S., C. C. A., 137 Fed. 753; affirmed 199 U. S. 607, 50 L. ed. 331. 29 28 St. at L. 278. amended 33 St. at L. 811. It was held that this applied only to suits by claimants for labor or material supplied to the contractor and not to one brought by the Government for its own benefit. U. S. v. McGee, 171 Fed. 209. 30 U. S. v. Congress Construction Co.. 222 U. S. 199. See. also, U. S. v. Schofield Co., 182 Fed. 240. 100 OTIIOINAL JURISDICTION. [§ 61 lias not yet been decided. A former statute further provided: "That any surety company doing business under the provisions of this Act may be sued in respect thereof in any court of the United States which lias now or hereafter may have jurisdiction of actions or suits upon such recognizance, stipulation, bond, or undertaking, in the district in which 'such recognizance, stipu- lation, bond, or undertaing was made or guaranteed, or in the district in which the principal office of such company is located. And for the purposes of this Act such recognizance, stiuplation, bond, or undertaking shall be treated as made or guaranteed in the district in which the office is located, to which it is returna- ble, or in which it is filed, or in the district in which the prin- cipal in such recognizance, stipulation, bond, or undertaking resided when it was made or guaranteed." 31 How far this now applies is also an open question. In a suit within the exclusive jurisdiction of the courts of the United States, the action must be brought in the district of the defendants' residence. 32 Where the jurisdiction depends upon the existence of a Federal question and is concurrent with that of the State courts, the defendant must, unless a statute otherwise prescribes, be sued in the district which he inhabits ; 3 ' but where it depends upon citizenship in different States, the suit may be brought in the district in which either the plaintiff or the defendant resides, provided the defendant can be duly served. 34 Since the permission to sue in the district of either 31 28 St, at L. 279. 32 Macon Grocery Co. v. Atlantic Coast Line R. R. Co., 215 U. S. 501, 54 L. ed. 300; affirming Atlantic Coast Line R. Co. v. Macon Grocery Co., C. C. A., 166 Fed. 206; Sunder- land Bros. v. Chicago, R. I. & P. Ry. Co., 158 Fed. 877; Memphis Oil Co. v. Illinois Cent. R.«Co., 164 Fed. 290; Imperial Colliery Co. v. Chesa- peake & Ohio Ry. Co., 171 Fed. 589. Contra, Northern Pac. Ry. Co. v. Pacific Coast Lumber Mfrs.' Ass'n., C. C. A., 9th Ct., 165 Fed. 1, 9, and cases cited. S3MeCormick II. M. Co. v. Wal- thers, 134 U. S. 41, 43, 33 L. ed. 834; St. Louis, V. & T. H. R. Co. v. Terre Haute & I. R. Co., 33 Fed. 385, 386; In re Keasbey & Mattison Co., 160 U. S. 221; Macon Grocery Co. v. Atlantic Coast Line R. Co., 215 U. S. 501, 54 L. ed. 300. 34McCormick H. M. Co. v. Wal- thers. 134 U. S. 41, 33 L. ed. 833; Pitkin Min. Co. v. Markell, 33 Fed. 386; St. Louis, V. & T. H. R. Co. v. Terre Haute & I. R. Co., 33 Fed. 385, 386; Fales v. Chicago, M. & St. P. Ry. Co., 32 Fed. 673; Short v. Chi- cago, M. & St. P. Ry. Co., 33 Fed. 114; Gavin v. Vance. 33 Fed. 84; W. U. Tel. Co. v. Brown, 32 Fed. 337: Macon Grocery Co. v. Atlantic § 61] RESIDENCE. 191 the plaintiff or the defendant is limited to cases "where the jurisdiction is founded only on the fact that the action is be- tween citizens of different States," where the plaintiff's plead- ing shows both such a difference of citizenship and that the controversy arises under the Constitution or laws of the United States; the suit must be brought in the district of the defend- ant's habitation, 35 unless the case falls within one of the express statutory exceptions. It has been held that where a count under a Federal statute, which authories a suit in a district different from that of the residence of either party, is joined with one 'arising under the common law alone ; the suit cannot be main- tained in a district in which neither party resides. 36 Where the jurisdiction depends upon citizenship in different States, the suit may be brought in the district in which either the plaintiff or the defendant resides, provided the defendant can be duly served. 37 When one of the plaintiffs is a resident Coast Line R. Co., 215 U. S. 501, 54 L. ed. 300; affirming C. C. A., 166 Fed. 206. It was held that a suit in the Circuit Court to en- join, pending the determination of its reasonableness by the Interstate Commerce Commission, the enforce- ment of a railroad rate charged to be unlawful as in violation of the interstate commerce law and anti- trust law, arose under the laws of the United States and could only be maintained against a defendant in a State of which it was an inhabitant, Southern Pac. Co. v. Arlington Heights Fruit Co., C. C. A., 101 Fed. 101: and before the enactment of the Judicial Code, that a suit by a shipper against a carrier to com- pel the receipt and transportation of merchandise between two States did not arise under a law of the United States, and where the requi- site difference of citizenship existed might be brought in the district of the residence of either plaintiff or defendant, Danciger v. Wells, Fargo & Co., 154 Fed. 379. 35 Imperial Colliery Co. v. Chesa- peake & Ohio Ry. Co., Powhatan C. & Coke Co. v. Norfolk & Western Ry. Co., 171 Fed. 589; Cound v. Atchison, T. & S. F. Ry. Co., 173 Fed. 527; Smith v. Detroit & T. S. L. R. Co., 175 Fed. 506; Whittaker v. Illinois Cent. R. Co., 176 Fed. 130; Newell v. Baltimore & O. R. Co., 181 Fed. 698. 36 Ware-Kramer Tobacco Co. v. Am. Tobacco Co., 178 Fed. 117. See Sunderland Bros. v. Chicago, R. I. & P. Ry. Co., 158 Fed. 877; Atlantic- Coast Line R. Co. v. Macon Grocery Co., C. C. A., 166 Fed. 206: Imperial Colliery Co. v. Chesapeake & Ohio Ry. Co., 171 Fed. 589. 37McCormick H. M. Co. v. Walth- ers, 134 U. S. 41, 33 L. ed. 833; Pitkin Min. Co. v. Markell, 33 Fed. 386: St. Louis, V. & T. H. R. Co. v. Terre Haute & I. R. Co., 33 Fed. 385. 386; Fales v. Chicago, M. & St. P. Ry. Co., 32 Fed. 673; Short v. Chicago, M. & St. P. Ry. Co., 33 Fed. 114; Gavin v. Vance, 33 Fed. 192 ORIGINAL JURISDICTION. [§ 61 of the district, and the other plaintiff and the defendant are citizens of different States from those of each other and of the plaintiff, and arc both non-residents, the Federal court has no jurisdiction. 38 Where plaintiffs are citizens and residents of different States, and the defendant is a citizen and resident of a third State, the suit may be brought in the district of the de- fendant's residence. 39 Where the defendants are residents of different States, it has been hold that the suit cannot be brought in any district except that of the plaintiff's residence. 40 The defendant cannot remove a case to a district where neither party resides, 41 and if he so attempts, the plaintiff may have the case remanded. 42 It has been held that the assignee of a cause of action, when the jurisdiction is founded upon diversity of citi- zenship, can sue in the district of which he is a resident or in that of the defendant, irrespective of the district in which the assignor resided. 43 It has been said that "the words 'inhabi- tant,' 'residence,' and 'resident,' as used in the statute, are synonymous. To hold otherwise is to add confusion." 44 "The word inhabitant in that act was apparently used not in any 84; W. U. Tel. Co. v. Brown, 32 Fed. 337. 38 Smith v. Lyon, 133 U. S. 315, 33 L. ed. 635, Moffat v. Soley, Fed. Cas. No. 9,688, 2 Paine, 103; Elk- hart Nat. Bank v. N. W. G. L. Co., 84 Fed. 76; Hubbard v. Northern Railroad Co., Fed. Cas. No. 6.81 8, 3 Blatchf. 84, 25 Vt. 715. 39 Sweeney v. Carter Oil Co., 109 V. S. 252. 50 L. ed. 178. 40 Excelsior Pebble Phosphate Co. v. Brown. 74 Fed. 321. 20 C. C. A. 428, 42 U. S. Ap'p. 55. See also Smith v. Lyon. 133 U. S. 315, 33 L. ed. 65; McAulay v. Moody, 185 Fed. 144. Contra, Graig v. Cum- mings, Fed. Cas. No. 3,331. Peters C. C. 431, 2 Washington C. C, 505; Wiggins v European & X. ay. Co., Fed. ('as. No. 17,626, 1 Hask. 122: Mowrey v. Indian- apolis & C. R. Co., Fed. ('as. \'o. 9,891, 4 Bissell, 78; RawLtzer v. Wyatt, 40 Fed. 609. In Bensinger Self-Adding Cash Register Co. v. National Cash Register Co., 42 Fed. 81, the action was dismissed as to the non-resident, but retained as to the resident, defendant. 41 Ex parte Wisner, 203 U. S. 449, 51 L. ed. 264; Yellow Aster Min. & Mill. Co. v. Crane Co., C. C. A.. 150 Fed. 580; Goldberg, Bowen & Co. v. German Ins. Co.. 152 Fed. 831; H. J. Decker, Jr., & Co. v. Southern Ry. Co.. 189 Fed. 224. **Ex parte Wisner, 203 U. S. 449, 51 L. ed. 264; H. J. Decker. Jr., & Co. v. Southern Ry. Co., 189 Fed. 224. 51 L. ed. 264. 43 Stimson v. United Wrapping Mach. Co., 156 Fed. 298. Contra, Waterman v. Chesapeake & O. Ry. Co., 199 Fed. 667. 44 Bogue v. Chicago, B. k Q. R. Co., 193 Fed. 728, 733, Smith Mc- Pherson, J. 61] RESIDENCE. 193 larger meaning than 'citizen,' but to avoid the ineongnity of speaking of a citizen of less than a State, when the intention was to cover iiot only a district which included a whole State, but also two districts in one State." 45 The word "inhabitant" seems however, to be more limited than resident. 46 Inhabitancy within the State, which is divided into two districts, is not inhabitancy in both of them. 47 A corporation chartered by one of the United States cannot have a residence in another State, 48 even where it has, as a condition of doing business therein, filed a stipulation au- thorizing service of process upon its agents within the State and agreeing not to remove a suit to the Federal court on the ground of diiference of citizenship or non-residence. 49 In the absence of any provision in the charter, the principal office and the domicile of a railroad company incorporated by Congress is where the meetings of its stockholders and directors are held, and the records thereof with the registry of its stock are kept, and not where the general administrative offices of the heads of its departments are located. 50 Where a State contains more than one Federal judicial district, a corporation of the State is presumed to be a resident" and inhabitant of the district in which it has its principal office, as designated in its certificate or articles of incorporation in accordance with the statutory Rv 145 45 Gray, J„ in Shaw v. Quiney Min. Co., 145 U. S. 444, 447, 30 L. ed. 768, 770. 46 For cases of residence, see King v. U. S., 59 Fed. 9; Rivers v. Brad- ley, 53 Fed. 305; Reckling v. M>- Kinstry, 185 Fed. 842. 47 Wange v. Public Service Co., 159 Fed. 189. 48 Shaw v. Quiney Min. Co., U. S. 444, 453, 36 L. ed. 768. 772: Galveston, H. & S. A. Ry. Co. v. Gonzales, 151 U. S. 496, 38 L. ed. 248; Southern Pac. Co. v. Arlington Heights Fruit Co., C. C. A., 191 Fed. 101; Stone v. Chicago, B. & Q. R. Co., 195 Fed. 832. Contra, Bogue v. Chicago, B. & Q. R. Co., 193 Fed. 728. Fed. Prac. Vol. I.— 13. 49 Southern Pac. Co. v. Denton, 146 U. S. 202. 207, 36 L. ed. 943, 945. 50 Interstate Com. Com. v. Texas & Pac. Ry. Co., 57 Fed. 948, 955; Texas & Pac. Ry. Co. v. Interstate Com. Com., 162 U. S. 197, 204, 40 L. ed. 940, 942. It has been held that the Texas & Pacific Ry. Co. was an inhabitant of Dallas County, Texas, where it maintained an office, which it designated as its general office, and where all the acts of the board of directors in New York were subsequently affirmed at a board meeting, the senior vice-president living in the same county. Matter of Dunn, 212 U. S. 374, 388, 53 L. ed. 558, 564. 194 ORIGINAL JURISDICTION. [§ 61 requirements. 51 Where a State is divided into several Federal districts, it seems that the district of the residence of a domestic corporation is fixed by the State statute. 52 It is usually either the location of its principal place of business or the personal residence of the party whom it has appointed as its attorney -of - fact, upon whom service of process may be made. 53 Where a domestic corporation failed to comply with the statute of West Virginia, 54 by filing a power of attorney appointing a private individual with authority to accept service of process and with other statutory powers, but had complied with an- other statute appointing the State auditor its attorney to accept such service;. it was held to be liable to suit in either of the Federal districts of the State, by attachment and publication, or by serving process upon the State official in that or the other district. 55 The limitation as to residence does not apply to defendants who are served, in pursuance of the statute, by publication or without the State or district, 56 even when they are the only defendants. 57 It has been held that the limitation of the juris- diction to the place of the residence of the parties does not apply to local actions, such as ejectment, 58 or for trespass upon land ; 69 that such actions can only be brought in the district 51 Firestone Tire & Rubber Co. v. Vehicle Equipment Co., 155 Fed. 676. 52 Lemon v. Imperial Window Glass Co., 199 Fed. 927. 53 Ibid. 54 Code W. Va., § 2313. 55 Lemon v. Imperial Window Class Co., 199 Fed. 927. 56 Greeley v. Lowe, 155 U. S. 58, 39 L. ed. 69; Dick v. Foraker, 155 I . S. 404, 39 L. ed. 201; Carpenter V. Talbot, 33 Fed. 537; Pollitz v. Farmers' L. & Tr. Co., 39 Fed. 707; Ames v. Holderbaum, 42 Fed. 341 ; U. S. v. Southern Pac. R. Co.. 63 Fed. 481 ; Wheelright v. St. Louis, N. O. & 0. Canal Co., 50 Fed. 709: Texas Co. v. Central Fuel Oil Co.. C. C. A.. 194 Fed. 1; Inger- soll v. Coram, 211 U. S. 335, 53 L. ed. 208; Howard v. National Tele- phone Co., 182 Fed. 215, infra, § 166. See Kuhn v. Morrison, 75 Fed. 81 ; but see Detweiler v. Holderbaum (C. C), 42 Fed. 337. 57 Dick v. Foraker, 155 U. S. 404, 39 L. ed. 201; Wheelright v. St. Louis, N. O. & O. Canal Co., 50 Fed. 709; U. S. v. Southern Pac. R. Co., 63 Fed. 481: Single v. Scott Paper Mfg. Co., 55 Fed. 553. 58 Spencer v. Kansas City Stock Yards Co., 56 Fed. 741 ; Elk Garden Co. v. T. W. Thayer Co., 179 Fed. 556. 59 Kentucky Coal Lands Co. v. Mineral Development Co., 191 Fed. 899. See Livingston v. Jefferson. 1 Brock 203, 4 Hughes 606. 4 Hall. L. J. 78, 11 Myers' Fed. Dec. 721, 61] RESIDENCE. 195 where the land is situated; and that they may there be brought, irrespective of the residence of the parties and without the pro- curement of an order for the service of process outside the dis- trict; provided that the necessary difference of citizen- ship exists and that the defendant can be found there. 60 The fact that a suit relates to land lying within the jurisdiction does not give jurisdiction to the Federal court when there is no difference of citizenship, nor Federal question involved. 61 Where a suit was brought in a Federal court to recover land in another district, together with the rent of the same; it was held that there was jurisdiction to award judgment for the value of the rents. 62 When there is no Federal question in- volved, an action begun in the State court between two non- residents by an attachment cannot be removed, although the necessary difference of citizenship exists. 63 It has been held at circuit that the non-resident defendant alone can object, because the suit is not brought in the proper district. 64 The objection is waived by the joinder of issue, 65 or, it seems, by a general appearance, 66 without raising the Fed. Case No. 8411; Northern In- diana Ry. Co. v. Michigan Central Ry. Co.. 15 How. 233. 14 L. ed. 074; Ellenwood v. Marietta Chair Co., 158 U. S. 105, 15 Sup. Ct. 771, 39 L. ed. 913. 60 Spencer v. Kansas- City Stock Yards Co., 56 Fed. 741; Kentucky Coal Lands Co. v. Mineral Develop- ment Co., 191 Fed. 899. 61 Pooley v. Luco, 72 Fed. 5G1. 62 Eealey v. Humphrey, C. C. A., 81 Fed. 990. 63 George v. Tennessee Coal, Iron & R. Co., 184 Fed. 951. 64 Jewett v. Bradford Sav. Bank & Tr. Co., 45 Fed. 801; Smith v. Atchison, T. & S. F. R. Co., 64 Fed. 1 ; Freeman v. Am. Surety Co., 116 Fed. 548; Schiffer v. Anderson, C. C. A., 146 Fed. 457; H. J. Decker, Jr. & Co. v. Southern Ry. Co., 189 Fed. 224. 65 VVestern Loan & Savings Co. v. Butte & Boston Consol. Min. Co., 210 U. S. 368, 52 L. ed. 1101; At- chison, T. & S. F. Ry. Co. v. Gilli- land, C. C. A., 193 Fed. 608; Texas Co. v. Central Fuel Oil Co., C. C. A.. 194 Fed. 1. Where the plaintiff's pleading in an action brought in the Federal court did not refer to the Employers' Liability Act, but the court submitted the case to the jury upon the theory that it was based upon the same; it was held that the failure of the defendant to specify the objection that it could not be sued under such statute in that dis- trict was a submission to the juris- diction. Erie R. Co. v. Kennedy, C. C. A., 191 Fed. 332. 66 St. Louis & S. F. Ry. Co. v. McBride, 141 U. S. 127, 35 L. ed. 659; Texas & P. Ry. Co. v. Cox. 145 I". S. 593, 603. 36 L. ed. S29. 832; Interior Const. & I. Co. v. Gibney, 160 F. S. 217, 40 L. ed. 401: Ceil- 196 ORIGINAL JURISDICTION. [§ 62 same; even when neither of the parties resides within the dis- trict and the ease was removed from a State court. 67 It has been said that the service of a notice for the taking of deposi- tions, which is entitled in the Federal court, is not such a * I'r, waiver. § 62. Limitation upon jurisdiction in patent cases. The Judicial Code povides: a § 48. In suits brought for the infringement of letters patent the District courts of the United States shall have jurisdiction, in law or in equity, in the dis- trict of which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership, or cor- poration, shall have committed acts of infringement and have a regular and established place of business. If such suit is brought in a district of which the defendant is not an inhabi- tant, but in which such defendant has a regular and established place of business, service of process, summons, or subpoena upon the defendant may be made by service upon the agent or agents engaged in conducting such business in the district in which suit is brought." * In a suit to enjoin the infringement of a patent, the defend- ant, when not an alien, 2 may be sued in any district where his tral Trust Co. v. McGeorge, 151 U. S. 129, 38 L. ed. 98; Fosha v. W. U. Tel. Co., 114 Fed. 701: Occi- dental Consol. Min. Co. v. Comstock Tunnel Co., 120 Fed. 518; U. S. Consol. Seeded Raisin Co. v. Phoenix Raisin, S. & P. Co., 124 Fed. 234; Philadelphia & Boston Face Brick- Co. v. Warford, 123 Fed. 843: Cor- win Mfg. Co. v. Henrici Washer Co., 151 Fed. 938; Thomson-Houston El. Co. v. Electrose Mfg. Co., 155 Fed. 543; Dulles v. H. D. Crippen Mfg. Co. et ah, 156 Fed. 706; Bogue v. Chicago, B. & Q. R. Co., 193 Fed. 728. But see Chesapeake & 0. Coal Agency Co. v. Fire Creek Coal & Coke Co., 119 Fed. 942. 67 Matter of Moore, 209 U. S. 490, 52 L. ed. 904 ; where it was held that the filing by the plaintiff of an amended answer and his stipula- tion for a continuance after the re- moval was an acceptance of the ju- risdiction of the Circuit Court. In Kreigh v. Westinghouse, Church, Kerr & Co., 214 U. S. 249, 53 L. ed. 984; it was held that such a waiver was made by a joinder of issue on the merits without such an objection. To a similar effect are the rulings in Western Loan & Sav. Co. v. Butte & Boston Consol. Min. Co., 210 U. S. 368, 52 L. ed. 1101; Corwin Mfg. Co. v. Henrici Washer Co., 151 Fed. 938; Louisville & N. R. Co. v. Fisher, C. C. A., 11 L.R.A. (N.S.) 920, 155 Fed. 68; Proctor Coal Co. v. United States Fidelity & C4uaranty Co., 158 Fed. 211. 68 Hubbard v. Chicago, M. & St. P. Ry. Co.. 170 Fed. 994. § 62. 136 St. at L. 1087. 2 United Shoe Machinery Co. v. 02] RESIDENCE IN PATENT CASES. 197 infringement occurred, if he has a regularly established place of business there, or else in the district of which he is an inhabi- tant, 3 but not elsewhere. 4 When the suit is brought in the district of which the defendant is not an inhabitant, he must have a regular and established place of business there, at the time when the suit is brought. 5 Whether that was the case at the time of the commission of the acts of infringement there, is immaterial. 6 It has been held: that a corporation cannot be sued in a district where it has no regular and established place of business, although it has one in another district in the same State, where it is incorporated in the same State and it is charged with an infringement made jointly with other de- fendants residing in the district where the suit is brought and a claim of damages for conspiracy is joined with the prayer for an injunction and accounting; 7 that where the non-residence of defendant appears in the bill, there must be averments of infringement in the district ; 8 but that the phrase, "maintains a regular and established place of business," need not be used where that fact appears from the allegations, and a bill against a corporation and its president and general manager, who is so described, is not insufficient when it avers joint acts of infringe- ment within the district and the maintenance of a regular and established place of business by the corporation there, although it is silent as to the individual defendant's habitation and place of business. 9 The complainant has the burden of proof to establish an infringement within the district and the main- tenance by the defendant of a regular established place of busi- Duplessis Independent Shoe Machin- ery Co., 133 Fed. 930. 3 Bowers v. Atlantic G. & P. Co., 104 Fed. 887; Chicago Pneumatic Tool Co. v. Phila. Pneumatic Tool Co., 118 Fed. 852; U. S. Consol. Seeded Raisin Co. v. Phoenix Raisin, S. & P. Co., 124 Fed. 234. But see Noonan v. Chester Park Athletic Club Co., 75 Fed. 334. 4 Feder v. A. B. Fiedler & Sons, 110 Fed. 378; Underwood Type- writer Co. v. Fox Typewriter Co., 158 Fed. 476. 5 Feder v. A. B. Fiedler & Sons, 116 Fed. 378; Underwood Type- writer Co. v. Fox Typewriter Co., 158 Fed. 47G. 6 Underwood Typewriter Co. v. Fox Typewriter Co., 158 Fed. 476. 7 Cheatham El. Switching Device Co. v. Transit Development Co., 191 Fed. 727. 8 International Wireless Tele- graph Co. v. Fessenden, 131 Fed. 491; National El. Signaling Co. v. Telefunken Wireless Telegraph Co., 194 Fed. 893. 9 Thomson-Houston El. Co. v. Electrose Mfg. Co., 155 Fed. 543. 198 ORIGIXAL JURISDICTION. [§ 62 ness there. 10 It has been held: That it is necessary to prove and allege a complete act of infringement within the district and not merely a threat or an evident purpose of an infringe- ment there. 11 That where the defendant sells the infringing articles at a fixed place within the district and also there assem- bles different parts of the same, the court there held has juris- diction. 12 That the contributory act within the jurisdiction must be proved to have resulted in a complete infringement. 13 That proof that salesmen of the defendant exhibited infring- ing articles within the district and that one of them said that his employer had sold many there, is insufficient to establish the jurisdiction. 14 Proof that the defendant, who has constructed an infringing machine in another State, has assisted in the installation of the same for use by another defendant within the district ; is sufficient to support the jurisdiction when it has an established place of business there. 15 Where the defendant denies an allegation of infringement within the district, the issue thereupon is limited to infringement within such district. 16 The provision that service of process may be made upon the agent engaged in conducting the business within the district, is permissive only, and service may be made upon an officer of a corporation who is there found. 17 Under the former statute, 10 Underwood Typewriter Co. v. Fox Typewriter Co., 181 Fed. 541. For another case of defective proof, see Consolidated Rubber Tire Co. v. B. F. Goodrich Co.. 195 Fed. 764. Tt has been held that proof that the label, "New York," were upon infringing articles sold in another State by a corporation with a reg- ular and established place of busi- ness in New York, is insufficient to prove that they were manufactured in New York, Rum ford Chemical Works v. Egg Baking Powder Co., 145 Fed. 953; and that proof that salesmen of the defendant exhib- ited infringing articles within the district, together with statements by the salesman that his employer had sold many there, is insufficient to establish the jurisdiction. Gray v. Grinberg, 147 Fed. 732. See also the note to Bailey v. Mosher, 11 C. C. A„ 304. 313. 11 Westinghouse El. Co. v. Stan- ley El. Co., 116 Fed. 041: Gray v. Grinberg, 147 Fed. 732. 12 Am. Stoker Co. v. Underfeed Stoker Co., 182 Fed. 642. 13 Consolidated Rubber Tire Co. v. Republic Rubber Co., 195 Fed. 768. H Gray v. Grinberg, 147 Fed. 732. See also the note to Bailey v, Mosher, 11 C. C. A. 304, 313. 15 Edison v. Allis-Chalmers Co., 191 Fed. S37. 16 Gray v. Grinberg, C. C. A., 159 Fed. 138. 17 National El. Signaling Co. v. Telefunken Wireless Telegraph Co., 194 Fed. 893. § 63] ASSIGNEES. 190 it was held that a suit to compel the issue of a patent might be brought in any district whore valid service could be made upon the defendant. 18 The pendency of a suit in the district where the defendant is incorporated is no defense to another suit against the same in another district; but, in such a case, the accounting in the latter suit will be limited to infringements within the district, § 63. Suits by assignees. "Xo district court shall have cognizance of any suit (except upon foreign bills of exchange) to recover upon any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if such instrument be payable to hearer and be not made by any cor- poration', unless such suit might have been prosecuted in such court to recover upon said note or other chose in action if no assignment had been made." x "Lewis Blind Stitch Co. v. Ar- better Felling Mach. Co., 181 Fed. 974. § G3. 1 Judicial Code, § 24, subd. 1, 36 St. at L. 1087. The former statute extended this limitation upon the jurisdiction to suits "to recover the contents of any promis- sory note or other chose in action in favor of an assignee," &c. It may be that the omission of the phrase will induce the courts to dis- regard some of the earlier decisions. It seems, however, that it will be useful for the practitioner here to collect them. "The terms used, 'the contents of any promissory note or other chose in action,' were designed to embrace the rights the instrument conferred which were capable of en- forcement by suit. They were not happily chosen to convey this mean- ing, but they have received a con- struction substantially to that pur- port in repeated decisions." Shoe- craft v. Bloxham. 124 U. S. 7:50. 735, 31 L. ed. 574, 576; affirmed in Plant Inv. Co. v. Jacksonville, T. & K. W. Ry. Co., 132 U. S. 71, 76, 38 L. ed. 358, 360. The phrase "suit to recover the contents of a chose in action" includes suits to recover debts, Utah-Nevada Co. v. De Lamar, 113 Fed. 113, 66 C. C. A. 179; or any claims for damages for breach of contract, an oral contract as well as one in writing, or for torts connected with contract, Bush- nell v. Kennedy, 9 Wall. 387, 390, 19 L. ed. 736: Sere v. Pitot, 6 Cranch, 332, 335, 336, 3 L. ed. 240, 241; Sheldon v. Gill, 8 How. 441, 449, 450, 12 L. ed. 1147, 1151; Tredway v. Sanger, 107 U. S. 323, 325, 27 L. ed. 582, 583; Mersman v. Werges, 112 U. S. 139, 143, 28 L. ed. 641, 643: Corbin v. County of Black Hawk, 10.5 U. S. 659, 665, 666, 26 L. ed. 1136, 1138, 1139. But not the right of a corporation to set aside a contract made by its promoters which it had assumed, Commonwealth S. S. Co. v. Am. Shipbuilding Co., ]97 Fed. 780; nor a suit by the assignee of a note to ret-over damages against a public officer for the illegal execution of the same, Indiana v. Glover, 155 I . 200 ORIGINAL .TriMSDICTIOX. [i 0:3 The words "if such instrument be payable to bearer and be not made by any corporation" do not limit the comprehensive- S. 513, 30 L. ed. 243. The phrase also includes suits to foreclose mort- gages, Kolze v. Hoadley, 200 U. S. 7(5, 50 L. ed. 377; Hoadley v. Day. 128 Fed. 302: Ban v. Columbia Southern Ry. Co., 109 Fed. 409 (a lien) ; although the bill also prays a cancellation of a fraudulent satis- faction thereof, Kolze v. Hoadley, 200 U. S. 76, 50 L. ed. 377. It in- cludes suits to enforce the specific performance of contracts for the de- livery of real or personal property, Corbin v. County of Black Hawk, 105 U. S. 659, 665, 26 L. ed. 1136, 1138; Shoecraft v. Bloxham, 124 U. S. 730, 31 L. ed. 574; Plant Inv. Co. v. Jacksonville, T. & K. W. Ry. Co., 152 U. S. 71, 76, 38 L. ed. 358, 360; Jackson & S. Co. v. Pearson, 60 Fed. 113. A suit to quiet title and to cancel tax deeds, where complainant sues as assignee of a mortgage and of a cer- ley, 173 U. S. 243, 43 L. ed. 684; liticate of purchase, in foreclosure proceedings, without having ac- quired the legal title, Farr v. Hobe- Peters Land Co.. C. C. A.. 188 Fed. 10. reversing 170 Fed. 644; and to recover upon a contract of insurance with a reformation of the policy, Laird v. Indemnity Mut. M. Co.. 44 Fed. 712. To enforce a partner's or agent's right to an accounting. Brown v. Beacom, C. C. A., 174 Fed. 812. The phrase does not include Dodge. 16 How. 622. 631. 14 L. ed. 1085, 1088: Buckingham v. Dake, 112 Fed. 258, 50 C. C. A. 492. Or ejectment. Smith v. Kernochen. 7 How. 198. 12 L. ed. 666; Williti v. Baker. 133 Fed. 937. Or otherwise brought to recover property taken bv the defendant before the assign- ment of the title to the plaintiff', (Jest v. Packwoodj 39 Fed. 525. Evefl it has been held where the assignor was a partnership which conveyed its property to a corpo- ration, all the stock of which was divided between the members of the firm. Slaughter v. Mallet Land & Cattle Co.. C. C. A., 141 Fed. 282. But see § 46, supra. Nor a suit to recover damages for the conversion of personal property. Ambler v. Ep- pinger, 137 U. S. 4S0, 34 L. ed. 765. Nor a claim against a railroad com- pany to recover excessive over- charges for freight, Conn v. Chicago, B. & Q. R. Co., 48 Fed. 177. Nor a suit in equity to compel the transfer of stock on the books of a corpora- tion, Jewett v. Bradford S. B. Tr. Co.. 45 Fed. 801. .Nor, it has been held, a suit by the assignee of a cor- porate debt to enforce the individual liability of a stockholder, Ballard v. Bell, 1 Mason. 243. But the court refused to entertain a bill for the appointment of the receiver of a corporation filed by a pledgee of its stock whose pledgor was a citizen of the corporation's State, Gorman- Wright Co. v. Wright, 134 Fed. 363, 67 C. C. A. 345. But see Cole v. Phila. & E. Ry. Co., 140 Fed. 944. It lias been suggested that the re- striction applies only to contracts "which may be properly said to have contents," not to "mere nailed rights of action founded on some wrongful act," — some neglect of duty to which the law attaches damages, such as failure to protest a note: but to "rights of action founded on con- tracts which contain within them- selves some promise or duty to be performed," Barney v. Globe Bank, § 03] ASSIGNEES. 201 ness of the phrase "chose in action." 2 The effect of this clause is to deprive the Circuit Courts of all jurisdiction for the re- covery of promissory notes or other ehoses in action, except (1) suits upon foreign bills of exchange; (2) suits which might have been brought there had no assignment or transfer been made; and (3) suits upon ehoses in action made by corpora- tions and payable to bearer. 3 A draft drawn in one State and payable in another of the United Stales is a foreign bill of exchange. 4 A check is a bill of exchange. 5 A promissory note payable "to the order of " is equivalent to a promissory note paya- ble to bearer. 6 A bill of exchange of promissory note drawn to the order of the bearer and by him indorsed in blank is paya- ble to bearer. 7 A bill of exchange or promissory note drawn payable to the order of a specified person and indorsed by him in blank is not a promissory note payable to bearer within the statutory exception. 8 A county warrant payable to a speci- fied person or bearer is equivalent to one payable to bearer. 9 A city, 10 county, 11 incorporated town, 12 or township, 13 is held 5 Blatch. 107. See, however, Bush- nell v. Kennedy, 9 Wall. 387, 391, 1!) L. ed. 736, 738; Ambler v. Eppiiiger, 3 37 U. S. 480, 483, 34 L. ed. 765, 766. 2 Mexican Nat. R. Co. v. Davison, 157 U. S. 201, 206, 207, 39 L. ed. 672, 674, 675. 3 Xewgass v. New Orleans, 33 Fed. 196; New Orleans v. Quinlan, 173 U. S. 191, 43 L. ed. 664. 4 Buckner v. Finley, 2 Pet. 586, 7 L. ed. 528. 5 Bull v. Bank of Kasson, 123 U. S. 105, 31 L. ed. 97. 6 Steel v. Rathburn, 42 Fed. 390; Lyon County v. Keene Five Cent Sav. Bank, 100 Fed. 337. 40 C. C. A. 391; affirming 97 Fed. 159; Reynolds v. Lyon County, Iowa, 97 Fed. 155. 7 Bank of British N. A. v. Bar- ling, 46 Fed. 357; s. c. in C. C. A., 56 Fed. 260; Jones v. Shapero, 57 Fed. 457; Thomson v. Town of El- ton, 100 Fed. 145. 8 Thomson v. Town of Elton, 100 Fed. 145. 8 Gratiot County v. Aylesworth, 159 U. S. 250, 40 L. ed. 146; Thomp- son v. Searcy County, C. C. A., 57 Fed. 1030; Jerome v. Rio Grande County Comm'rs. 18 Fed. 873. 10 New Orleans v. Quinlan, 173 U. S. 191. 43 L. ed. 664; affirming 92 Fed. 695. 11 Leake County Comm'rs v. Dud- ley. 173 U. S. 243, 43 L. ed. 684; Gratiot County v. Aylesworth, 159 U. S. 250, 40 L. ed. 146; Jerome v. Rio Grante County Comm'rs, 18 Fed. 873; Rollins v. Chaffee Coun- ty, 34 Fed. 91; Wilson v. Knox County, 43 Fed. 481 ; Thompson v. Searcy County, C. C. A., 57 Fed. 1030; Board of Comm'rs of Kearny County v. Irvine, C. C. A., 126 Fed. 689. 202 ORIGINAL JURISDICTION. [§ 03 to be a corporation, and the holder of its bonds, warrants, drain orders or other written obligations payable to bearer can sue in a Federal court in a proper case irrespective of the citizen- ship of any previous holder. The assignee of a city warrant payable to the order of a specified person and indorsed by have had no jurisdiction of a suit by his assignor, 14 but if his as- signor might have sued there the assignee may do so, provided that the requisite diversity of citizenship exists. 15 Jurisdiction over a suit upon coupons, executed by a municipal corporation payable to bearer, depends upon the status of the owner of the same, 16 although they are cut from bonds payable to persons who are citizens of defendant's State. 17 The acceptance by a city of an order by a contractor directing the payment to a third person of part of the contract price was held to constitute a new contract between the city and the payee, and not to be the assignment of the original contract. 18 When his citizenship differs from that of defendant, the original beneficial owner can sue in the Federal courts upon a note, although an original but nominal payee, by reason of citizenship, could not. 19 The holder of a promissory note payable to bearer, which is secured by a mortgage, may foreclose in a Federal court in a case where the original holder could not. 20 Not, however, where the note is void and the mortgage valid. 21 The fact that a note payable to bearer and secured by a mortgage is overdue when it is as- 12 A New York town, Andes v. Ely, 158 U. S. 312, 39 L. ed. 996. 13 An Ohio township, Loeb v. Trustees of Columbia Tp., 91 Fed. 37. H Cloud v. City of Sumas, 52 Fed. 177; New Orleans v. Benjamin, 153 U. S. 411, 38 L. ed. 704, Seymour v. Farmers' L. & Tr. Co., C. C. A., 128 Fed. 907. 15 Emsheimer v. Xew Orleans, 180 U. S. 33, 40 L. ed. 1042. 16 Reynolds v. Lyon County, 97 Fed. 155; independent School Dist. of Sioux City v. Rew. Ill Fed. 1, 49 C. C. A. 198, 55 L.R.A. 304. 17 Reynolds v. Lyon County, Iowa. 97 Fed. 155. 18 City of Superior v. Ripley, 138 U. S. 93, 34 L. ed. 914. 19 Holmes v. Goldsmith, 147 U. S. 150, 13 Sup. Ct. 288, 37 L, ed. 118; Superior City v. Ripley, 138 U. S. 93, 34 L. ed. 914; Hoadley v. Day, 128 Fed. 302; Kirven v. Virginia- Carolina Chemical Co., C. C. A., 145 Fed. 288. 20 Tied way v. Sanger, 107 U. S. 323, 27 L. ed. 582; Cross v. Allen, 141 U. S. 528, 35 L. ed. 843; Hoad- ley v. Day, 128 Fed. 302. 8lMersman v. Werges, 112 U. S. 139, 28 L. ed. 641. » § 63] ASSIGNEES. 203 signed does not deprive the assignee of his right to seek the Federal jurisdiction, A mortgage given by a water company covering rentals ac- cruing to it under a contract with a city is no more than an assignment of a chose in action as to such rentals, and, in such a case, one claiming the right to enforce the contract by sub- rogation to the rights of the mortgagee is considered to be an assignee. 23 But where a municipal ordinance directed that the rents be paid directly to the mortgagee, it was held that the previous grant of the franchise to citizens of defendant's State did not affect the jurisdiction. 24 It has been held : that a sale under a decree of foreclosure of waterworks, together with the rights of all the parties in the franchise and contract under which they were constructed, does not operate merely as an assignment of the contract; that such a provision does not affect the right of the purchaser to maintain a suit in a Federal court to enforce rights under such contract; and that in such a case the conveyance vests the purchaser with rights in real property, to the full enjoyment of which the enforcement of the contract is a necessary incident. 25 A purchaser of war- rants at a judicial sale under authority of an order of the pro- bate court is an assignee, within the meaning of the statute. 26 The Illinois statute giving a plaintiff in attachment the right to bring an action on a forth-coming bond taken by the sheriff, "the same as if such bond had been assigned to him," does not render him, in fact or constructively, an assignee, within the meaning of the act. 27 The prohibition does not extend to a suit by a stockholder to procure the appointment of a receiver of his corporation, because of insolvency. 28 A suit to collect a judgment by a creditors' bill or otherwise, cannot be brought 22 Cross v. Allen, 141 U. S. 528, 25 Portage City Water Co. v. Por- 35 L. ed. 843. tage, 102 Fed. 769. 23 American Waterworks & Guar- 26 Class v. Police Jury of Con- antee Co. v. Home Water Co., 115 cordia Parish, 176 U. S. 207, 44 Fed. 171; City of Eau Claire v. L. ed. 436. Payson, 107 F. 552, 46 C. C. A. 466, 27 Smith v. Packard, 98 Fed. 793, rehearing denied 109 Fed. 676, 48 39 C. C. A. 294. C. C. A. 608. 28 R e Cleland, 218 U. S. 120, 54 24 City of Seymour v. Farmers' L. ed. 962. As to other stockhold- Loan & Trust Co., 128 Fed. 907, 63 ers' hills, see infra, § 145. C. C. A. 633. 204 ORIGINAL JURISDICTION. [§ 63 in a Federal court by an assignee, unless the assignor might have sued there. 29 But, it seems that, where the assignee of a chose in action has recovered in his own name, in a State court, a judgment upon the same; he can bring a suit founded upon such judgment in a Federal court, when there exists the requis- ite difference of citizenship between himself and the defendant, irrespective of that of his original assignor. 30 And it has been held that the citizenship of the assignor is immaterial in a suit by his assignee, to vacate the satisfaction of a judgment, 31 or to set aside a decree for fraud, although payment of the claim is incidentally requisite. 32 It seems that the holder of a mu- nicipal warrant, who seeks to recover municipal assets without a previous judgment at law, brings a suit to recover upon a chose in action within the meaning of the statute. 33 An en- dorsee, who is a citizen of the same State as the maker of the note, may sue his immediate endorser in a District Court of the United States, if the latter be a citizen of a different State from that of the plaintiff; 34 but when, in a suit by an endorser against the maker 35 or a prior endorser, 36 the plaintiff derives his title through a citizen of the same State as the defendant, such as in the former case, the original payee, there is no juris- diction on account of a difference of sitizenship between the de- fendant and the plaintiff. There is an exception in the case of accommodation paper, where a person who has advanced money upon the same can sue the maker if there is a diversity of citi- 29 Walker v. Powers. 104 U. S. 245. 2G L. ed. 729; Metcalf v. Wa- tertown, 128 U. S. 586, 32 L. ed. 543, 9 Sup. Ct. 173; Mississippi Mills v. Cohn,' 150 U. S. 202, 37 L. ed. 1052. 14 Sup. Ct. 75: First Nat. Bank v. Dull County. 74 Fed. 373; Sullivan v. Aver. 174 Fed. 199. SOOber v. Gallagher. 93 U. S. 199, 206, 23 L. ed. 829, 831: Bean v. Smith, 2 Mason, 252, 269 : Hultberg v. Anderson, 170 Fed. 657. 31 Hay v. Alexandria & W. R. Co., 20 Fed. 15. But see Blacklock" v. Small. 127 U. S. 96, 32 L. ed. 70. 32 Bertha Z. & M. Co. v. Vaughn, S8 Fed. 566. 33 New Orleans v. Benjamin, 153 U. S. 411, 38 L. ed. 764. 34 Young v. Bryan, 6 Wheat. 146, 5 L. ed. 228; Manufacturing Co. v. Bradley, 105 U. S. 175, 26 L. ed. 1034; Parker v. Ormsby. 141 U. S. SI. 35 L. ed. 654: Kolze v. Hoadley, 2(Ki C. S. 76. 50 L. ed. 377. 35 State Nat. Bank of Denison v. Eureka Springs Water Co., 174 Fed. 827. 36 Turner v. Bank of N. A., 4 Dall. 8, 1 L. ed. 718: Mollan v. Tor- rance. 9 Wheat. 537. 538, 6 L. ed. 154. But see Portage C. R. Co. v. Portage, 102 Fed. 769. §,63] ASSIGNEES. 205 zenship between them, irrespective of the citizenship of the endorser; 37 and under similar circumstances the payee of a bill of exchange can sne the acceptor although he could not have sued the drawer in the Federal court. 38 Assignees in in- solvency 39 and buyers at a judicial sale 40 are included within this restriction; but receivers 41 and executors and administra- tors 42 are not. A party who claims the benefit of a contract as an incident to another contract is to be considered as the as- signee of the former when he sues to enforce it, although it has never been formally assigned to him. 43 A party who claims by subrogation 44 or by novation 45 is not within this restriction. It was held under the old Judiciary Act that the jurisdiction over a suit by the heirs of a grantor of land who had been obliged to pay debts of their ancestor secured by a lien upon such land, to compel the grantee to reimburse them under his covenant with the grantor, was not affected by the citizenship of the grantor. 46 Where plaintiff alleged a cause of action for damages for a conspiracy charged to have been made by defend- ants against him after he became the assignee of a contract for the sale of real estate, it was held : that the citizenship of plain- 37 Blair v. Chicago, 201 U. S. 400, 50 L. ed. 801; Goldsmith v. Holmes, 36 Fed. 484; s. c, Holmes v. Gold- smith, 147 U. S. 150, 37 L. ed. 118; Wachusett Nat. Bank v. Siovix C. S. Works, 56 Fed. 321; Hoadley v. Day, 128 Fed. 302. When the notes had been pledged as collateral. 38 Superior v. Ripley, 138 U. S. 93, 34 L. ed. 914. 39 Sere v. Bitot, 6 Cranch, 332, 336, 3 L. ed. 240, 241. 40 Glass v. Concordia Farish Fo- lice Jury, 176 U. S. 207, 44 L. ed. 436. 4iUavies v. Lathrop, 12 Fed. 353. Nor the successor of a receiver. Baige v. Rochester, 137 Fed. 663. But see U. S. Nat, Bank v. McNair, 56 Fed. 323; Thompson v. Fool, 70 Fed. 725. 42 Sere v. Bitot, 6 Cranch, 332, 336, 3 L. ed. 240, 241; Chappede- laine v. Dechenaux, 4 Cranch, 306, 2 L. ed. 629; Childress v. Emory, 8 Wheat. 642. 5 L. ed. 705. 43 Blant Inv. Co. v. Jacksonville, T. & K. W. Ry. Co., 152 U. S. 71, 76, 38 L. ed. 358, 360. But see Bor- tage C. W. Co. v. Bortage, 102 Fed. 769. 44 New Orleans v. Caines' Adm'r. 138 U. S. 595, 606, 34 L. ed. 1102. 1106. Contra, Am. Waterworks & Guarantee Co. v. Home Water Co., 115 Fed. 171. 45 American Colortype Co. v. Con- tinental Colortype Co., 188 U. S. 104, 47 L. ed. 404. 46 Weems v. George, 13 How. 190, 14 L. ed. 108. 20 6 OBIGINAL JURISDICTION'. [§ 63 tiff's assignor of the contract was immaterial to the juris- diction. 4 ' A Federal court is without jurisdiction of a suit on a cause of action existing' in favor of a partnership, brought by one partner in his own right and as assignee of the interest of his copartner, unless the bill shows that the citizenship of the as- signor is such that the suit might have been maintained in that court by the firm. 48 It has been held that the restriction does not apply when the only reason why the assignor could not have sued was that his claim was less in value than the juris- dictional amount. 49 If both the original promissor and the plaintiff have a citizenship different from that of the defend- ant, the citizenship of a mesne assignee is immaterial. 50 If the requisite diversity of citizenship existed between the or- iginal parties to a note or contract, and a suit between them might have been maintained thereon in a Federal court, any subsequent assignee may maintain such action, provided he is also a resident of a State other than that in which the defend- ant resides ; and it is immaterial that an intermediate assignee was a resident of the same State. 51 It has been held: that where the requisite diversity of citizenship existed between the assignor and defendant, the residence of the assignor was im- material; 52 that where at the time of the commencement of the suit the assignor might have sued in the Federal court, but at the time of the assignment he could not, if the citizenship of the assignee and the defendant are diverse, the court may 47X«,ves v. Crawford, 133 Fed. 796. 48 Han v. Columbia Southern Ry. Co., 117 Fed. 21. 54 C. C. A. 407, reversing 109 Fed. 499. 49 Bernlieim v. Birnbaum. .'JO Fed. 885, 887; Botvden v. Burnham, C. C. A., 59 Fed. 752; Bergman v. In- man, 91 Fed. 293; Chase v. Sheldon R. M. Co.. 56 Fed. 625; Hartford Fire Ins. Co. v. Frie R. Co., 172 Fed. 899. See also Hammond v. Cleave- land, 2:5 Fed. 1. But see Woodside v. Vasey, 142 Fed. 617. 50 Emsheimer v. New Orleans, 116 Fed. 893. 51 Portage City Water Co. v. Por- tage, 192 Fed. 769; Bolles v. Lehigh Valley R. Co., 127 Fed. 884 ; Fair v. Hobe-Peters Land Co., C. C. A.. 188 Fed. 10. 52 Stimson v. United Wrapping Maeh. Co. et al., 156 Fed. 298. See Dulles v. H. D. Crippen Mfg. (.0.. 156 Fed. 706; Ferguson v. Consoli- dated Rubber Tire Co., 169 Fed. 888; Consolidated Rubber Tire Co. v. Ferguson, C. C. A., 183 Fed. 756, 106 C. C. A. 330. Contra, Waterman v. Chesapeake & Ohio Ry. Co., 199 Fed. 667. § 63] ASSIGNEES. 207 take jurisdiction in a proper case; 53 that where the original owner of a chose in action, who might have sued thereon in a Federal court, assigned the same, he was entitled to sue in such court on again becoming the owner by a reassignment from his assignee, without regard to the citizenship of the latter; 64 that where an assignee of a chose in action is entitled to sue thereon alone in the Federal courts, he and his assi°iiees may sue there together as if no assignment had been made ; 55 that where one of complainant's contracts is within the jurisdiction of a court, it draws to the court jurisdiction to determine the entire controversy, although others of the contracts, as to which the issues are the same, were acquired by complainant through assignments from persons who could not have sued therein. 56 The fact that the assignor is a national bank does not give jurisdiction. 57 The statute does not forbid one of the original contractors from suing in a Federal court the assignee of the other party, although the citizenship of the plaintiff is the same as that of the assignor. 58 The assignee must aver in his pleading that his assignor might have sued in the Federal court. 09 53 Jones v. Shapero, C. C. A., 57 Fed. 457; Noyes v. Crawford, 133 Fed. 7!Mi. 54 Moore Bros, Class Co. v. Dre- vet Mfg. Co., 154 Fed. 737. 55 Paige et al. v. Rochester, 137 Fed. 663 ; Independent School Dist. of Sioux City v. Hew, 111 Fed. 1, 49 C. C. A. 198, 55 L.R.A. 364. 56 Camp v. Peacock, Hunt & West Co., C. C. A., 129 Fed. 1005; Howe & Davidson Co. v. Haugan, 140 Fed. 182; affirming 128 Fed. 1005. 57Ceorge v. Wallace, C. C. A., 135 Fed. 286. 58 Brooks v. Laurent, 98 Vi-d. 647, 39 C. C. A. 201. 59 Parker v. Ormsby, 141 U. S. 81, 35 L. ed. 054; 0. s". Nat. Bank v. McNair, 56 Fed. 323; Kolze v. Hoadley, 200 V. S. 70. 50 I., ed. 377; .1. .1. McCaskill Co. v. Dickson, C. C. A.. 159 Fed. 704. An allega- tion in a hill filed hv an assignee of claims against a Louisiana cor- poration, that the assignors are and were citizens of States other than Louisiana, and competent as such to sue the defendant in the Circuit Court, if no assignment had been made, was held to be insufficient to confer jurisdiction on the Circuit Court because the State or States of which the assignors were citizens were not specifically designated Benjamin v. New Orleans, C. C. A.. 74 Fed. 417. Where it appeared in the record that the assignor was domiciled and resided in a State other than that of which t lie de fendant was a citizen and no ques- tion concerning his citizenship was raised in the court of first instance, the court of review refused to dis- miss the ease for want of jurisdic- tion. First Nat. Bank of Cain mi. Texas v. Crowley. C. C A.. 183 Fed. r.78. 0()S ORIGINAL JURISDICTION. [§ 64 § 64. Territorial jurisdiction of the District Courts of the United States. There is a District Court in each judicial district of the United States. 1 A District Court cannot serve process beyond its district, 2 except in the following cases : "In suits of a local nature, where the defend- ant resides in a different district, in the same State, from that in which the suit is brought, the plaintiff may have original and final process against him, directed to the marshal of the district in which he resides." 3 A subpoena ad testificandum may be served upon a witness in a civil case anywhere within the district and beyond the same within one hundred miles of the place of trial, and in a criminal case in any part of the United States. 4 In certain cases, when the prop- erty is situated within the jurisdiction, the court may authorize service of process by publication, or without the jurisdiction; but then, unless there is a general appearance, the judgment has no effect, except upon the property there situated. 5 When the service of process is made within the district, or the de- fendant voluntarily appears, the court may make a decree which directs the performance of, or abstention from, an act, or directs a transfer of, or otherwise affects the title to, prop- erty beyond the territorial jurisdiction; 6 or grants an injunc- tion against an act within the jurisdiction, such as an inter- ference with the flow of water, which injuriously affects lands beyond it. 7 Where, in order to obtain the relief sought, it will be necessary for the court to take possession, by its officers, of land beyond its territorial jurisdiction, such a decree will not § 64. I Infra, § 66. 2 Toland v. Sprague, 12 Peters, 300, 328, 9 L. ed. 1093, 1104. 3§ 54, 36 St. at L. 1087; copied from U. S. R. S., § 741, 4 Fed. St. Ann. 555. *U. S. R. S., § 876; infra, §§ 342, 523. 5 Infra, § 166. 6 Arglasse v. Musehamp, 1 Vern. 75; Carron I. Co. v. Maclaren, 5 H. L, C. 416: Mullet v. Dows. 94 U. S. 444, 24 L. ed. 207; Dull v. Black- man. 169 U. S. 243, 246, 42 L. ed. 733, 734: Selover. Bates & Co. v. Walsh. 226 U. S. 112, 57 L. ed. 69; Wheeler v. McCormack, 4 Fish. Pat. Cas. 433; s. c, 8 Blachf. 267; Lynde v. Columbus, C. & I. C. Ry. Co., 57 Fed. R. 993, 996. For an excellent review of the authorities, see the learned opinion of Davies, J., in Gardner v. Ogden, 22 N. Y. 327. See also Carpenter v. Strange, 141 U. S. 87. 35 L. ed. 640. 7 Morris v. Bean, 146 Fed. 423; Vacuum Oil Co. v. Eagle Oil Co., 154 Fed. 867. Contra. Northern In- diana R. Co. v. Michigan Cent. R. Co., 15 How. Pr. 233; affirming 5 McLean, 444. § 64] TERRITORIAL JURISDICTION OF DISTRICT COURTS. 209 be granted. 8 Thus, where the defendant is within its jurisdic- tion, it may decree specific performance of a contract, 9 or the administration of a trust, 10 or the cancellation of a convey- ance, n which affects land within the jurisdiction ; but under the former practice if the defendant refused to obey the directions of the court, the judgment had no force elsewhere, even when a State statute provided that the order directing a conveyance should have the same effect as if the conveyance were made in obedience thereto. 12 A recent, rule authorizes the court to ap- point, a person to execute a mandatory order, injunction, or de- cree for specific performance, and provides that the act, when so performed, shall have like effect as if done by the defendant. 13 Accordingly, the court will not decree a partition of land beyond the jurisdiction, since no commissioner by it could have author- ity to act there, 14 and it cannot adjudge that a deed of land in an- other State is void ; 15 nor in a suit, for a divorce award to a mar- ried woman a dower right in land elsewhere, which will be valid until a conveyance thereof has been executed by her husband. 16 SMuller v. Dows, 94 U. S. 444, 449, 24 L. ed. 207, 209; Fall v. Eastin, 215 U. S. 1, 54 L. ed. 65; affirming Fall v. Fall, 75 Neb. 104, 120, 113 N. W. 175; Macgregov v. Macgregor, 9 Iowa, 65; Glen v. Gib- son, 9 Barb. (N. Y.) 634; Story's Eq. Jur., § 1292; 2 Spenee, 8, n. (d) ; Smith's Eq. 30; Bispham's Eq. § 7. . 9Selover, Bates & Co. v. Walsh, 226 U. S. 112, 57 L. ed. where it was held that specific performance of a contract made in one State for the sale of land in another, can be decreed by tlie courts of the former State, and that the courts of the lat- ter will be bound to give effect to the judgment thus obtained; West- ern Union Tel. Co. v. Pittsburg, C, C. & St. L. Ry. Co., 137 Fed. 435; Iloblin v. Long, GO How. Pr. (N. Y.) 200. 10 Memphis Sav. Bank v. Houch- ens, C. C. A., 115 Fed. 90, 108; Fed. Prac. Vol. I— 14. affecting land situated outside the jurisdiction. Dunlap v. Byers, 110 Mich. 109 (a decree directing the conveyance of land upon the wind- ing up of a corporation. H Jones v. Byrne, 149 Fed. 457, 469. 12 Fall v. Eastin, 215 U. S. 1, 54 L. ed. 65; affirming Fall v. Fall, 75 Neb. 104, 120, 113 N. W. 175. Con- tra, Burnley v. Stevenson, 24 Ohio St. 474, 15 Am. Rep. 621. 13 Eq. Rule 8. See § 441, infra. 14 Spenee, 8, n. (d); Story's Eq. Jur., § 1292; Smith's Eq. 30; Bis- pham's Eq. § 47. 1 5 Carpenter v. Strange, 141 U. S. 87, 35 L. ed. 640; State ex rel. Hunt v. Grimm ( S. Ct. Mo., June 1912) 148 S. W. 868. where the deed was within the jurisdiction, but it had been recorded in another jurisdic- tion, where the land was situated. 10 Fall v. Eastin. 215 U. S. 1, 54 210 ORIGINAL JURISDICTION. [§ 64 A suit to abate a nuisance existing lu -yond the jurisdiction can- not be maintained. 17 It has been held that a Federal court can maintain an action for injuries caused to lands in another State by a canal within its jurisdiction. 18 Ordinarily, a court in equity cannot direct a sale of land situated in another State. 19 But the Judicial Code provides: '-Any suit of a local nature, at law or in equity, where the land or other subject-matter of a fixed character lies partly in one district and partly in an- other, within the same State, may be brought in the district court of either district; and the court in which it is brought shall have jurisdiction to hear and decide it, and to cause mesne or final process to be issued and executed, as fully as if the said subject-matter were wholly within the district for which such court is constituted/' 20 ''Where in any suit in which a receiver shall be appointed the land or other property of a fixed char- acter, the subject of the suit, lies within different States in the same judicial circuit, the receiver so appointed shall, upon giv- ing bond as required by the court, immediately be vested with full jurisdiction and control over all the property, the subject of the suit, lying or being within such circuit; subject, however, to the disapproval of such order, within thirty days thereafter, by the circuit court of appeals for such circuit, or by a circuit judge thereof, after reasonable notice to adverse parties and an opportunity to be heard upon the motion for such dis- approval; and subject, also, to the filing and entering in the district court for each district of the circuit in which any por- tion of the property may lie or be, within ten days thereafter, of a duly certified copy of the bill and of the order of appoint- ment. The disapproval of such appointment within such L. ed. 65; affirming Fall v. Fall, 7.-> Xeb. 104, 120, 113 N. W. 175. 17 Mississippi & M. R. R. Co. v. Ward, 2 Black, 485, 17 L. ed. 311; Ladew v. Tennessee Copper Co., 218 U. S. 357, 54 L. ed. 10G0, affirming 170 Fed. 245. is Rundle v. Delaware & R. Canal, 1 Wall. Jr. 275 (Fed. Cas. Xo. 12,- 139), affi'd. 14 Howard, 80, 14 L. i'd. :j :;.">. l9Lvnde v. Columbus, C. & I. C. Ry. Co., 57 Fed. 093: Farmers' L. & Tr. Co. v. Postal Tel. Co., 55 Conn. 334: 3 Am. St. Rep. 53. 11 Atl. 184: Carpenter v. Strange. 141 U. S. S7. 100. 35 L. ed. 640, 047: Mercantile Tr. Co. v. Kanawha & O. Ry. Co.. 39 Fed. 337: Re Anderson, 94 Fed. 487: York County Sav. Bank v. Ab- bot, 139 Fed. 988. 20 § :,.-,. 36 st. at L. 1087: copied from U. S. R. S., § 742, 4 Fed: St. Ann. 555. § 65] TERMS OF DISTRICT COURTS. 211 thirty days; or the failure to file such certified copy of the bill and order of appointment within ten days, as herein required, shall divest such receiver of jurisdiction over all such property except that portion thereof Lying or being within the State in which the suit is brought- In any case coming within the provi- sions of this section, in which a reeewer shall he appointed, process may issue and he executed within any district of the circuit in the same manner and to the same extent as if the property were wholly within the same district ; hut orders affect- ing such property shall be entered of record in each district in which the property affected may lie or he." 21 § 65. Terms of the District Courts of the United States. In general. No action, suit, proceeding, or process in any district court shall abate or be rendered invalid by reason of any act changing the time of holding such court, hut the same shall be deemed to be returnable to, pending; and triable in the terms established next after the return day thereof.*' "Dis- trict courts shall hold monthly adjournments of their regular terms, for the trial of criminal causes, when their business requires it to be done, in order to prevent undue expenses and delays in such rases/* 2 Ordinarily, when one term begins, the preceding terms, which is held in the same place, ends; unless it was the evident intention of the statute that the term should be concurrent in whole or in part. 3 -When the trial or hearing of any cause, civil or criminal, in a District Court, has been com- menced and is in progress before a jury or the court, it shall not be stayed or discontinued by the arrival of the time fixed by law for another session of said curt; hut the court may pro- ceed therein and bring it to a conclusion, in the same manner and with the same effect as if another stated term of the court had not intervened.*' 4 A special term of a court may he held while a regular term is in session at another place in the same district, where there are two judges, each haying authority to hold court in said district. 5 The term of a District Court 6 21 § 55, 36 St. at L. 1087. 4 •>".. 177 1087 Fed. 7S0. 3Kx parte Friday, 43 Fed. ntii. « Alder v. Edenborn, 198 Fed. 928 918. See Guaranty Tr. Co. v. Metropoli- 212 ORIGINAL JURISDICTION. [§ 65 may be extended to a period subsequent to the opening of the succeeding statutory term, for the purpose of a particular case. A term of a District Court may be adjourned to, and its regular continuous session may be resumed as a part of the same term, upon a distant day; although another term of the court has been held during the adjournment at another place. 7 Unless sooner adjourned, a term of a court of the United States may extend from the beginning thereof to the opening of the succeeding statutory term. 8 It does not necessarily end at the opening of a term, held pursuant to a statute, in another place in the same district. 9 The term does not expire until the limit set by law for its continuance; 10 except when it has been formally adjourned without a day, 11 or when there has been no attendance at the opening of the term and no instruction to the marshal to adjourn for a subsequent day. 12 "If the judge of any district court is unable to attend at the commencement of any regular, adjourned, or speeial term, or any time during such term, the court may be adjourned by the marshal, or clerk, by virtue of a written order directed to him by the judge, to the next regular term, or to any earlier day, as the order may direct." 13 "When any district judge is prevented, by any disability, from holding any stated or appointed term of his district court, and that fact is made to appear by the certificate of the clerk, under the seal of the court, to any circuit judge of the circuit in which the district lies, or, in the absence of all the circuit judges, to the circuit justice of the circuit in which the district lies, any such circuit judge or justice may, if in his judgment the pub- lic interests so require, designate and appoint the judge of any other district in the same circuit to hold said court, and to tan St. Ry. Co., C. C. A., 177 Fed. 925. 7 Florida v. Charlotte Harbor Phosphate Co., C. C. A., 70 Fed. 883. 8 Harlan v. McGourin, 218 U. S. 442, 450, 31 Sup. Ct. Rep. 44, 21 Ann. Cas. 849, 54 L. ed. 1101, 1106, affirming Ex parte Harlan, 180 Fed. lift; Fast Tennessee Iron & Coal Co. V. Wiggin, C. C. A., 68 Fed. 446. 9 [bid. 10 Schofield v. Horse Springs Cat- tle Co.. 65 Fed. 433. 11 Harlan v. McGourin, 218 U. S. 442, 450, 54 L. ed. 1101, 1106, 31 Sup. Ct. Rep. 44. 21 Ann. Cas. 849; affirming Ex parte Harlan, ISO Fed. 119. 12 Ex parte Harlan, 180 Fed. 119; r.ff'd. as Harlan v. McGourin, 218 U. S. 442. 450, 54 L. ed. 1101, 1106, 31 Sup. Ct. Rep. 44, 21 Ann. Cas. 849. WJud. Code § 12, 36 St. at L. 1087. 66] ALABAMA. 213 discharge all the judicial duties of the judge so disabled, during such disability. Whenever it shall be certified by any such circuit judge or, in his absence, by the circuit judge of the circuit in which the district lies, that for any sufficient reason it is impracticable to designate and appoint a judge of another district within the circuit to perform the duties of such disabled judge, the chief justice may, if in his judgment the public interests as require, designate and appoint the judge of any dis- trict in another circuit to hold said court and to discharge all the judicial duties of the judge so disabled, during such dis- ability. Such appointment shall be filed in the clerk's office, and entered on the minutes of the said district court, and a cer- tified copy thereof, under the seal of the court, shall be trans- mitted by the clerk to the judge so designated and appointed." 14 After the term has been regularly opened and adjourned, the failure of the judge to appear upon the adjourned day to appoint, a time when the court will be resumed, does not forfeit the right to resume sittings at any time. 15 § 66. Territorial jurisdiction and terms of the different District Courts of the United States. The Judicial Code provides : "§ 69. The United States are divided into judicial districts as follows : "§ 70. The State of Alabama is divided into three judicial districts, to be known as the northern, middle, and southern districts of Alabama. The northern district shall include the territory embraced on the first day of July ,, nineteen hundred and ten, in the counties of Cullman, Jackson, Lawrence, Lime- stone, Madison, and Morgan, which shall constitute the north- middle division of said district; also the territory embraced on the date last mentioned in the counties of Colbert, Frank- lin, and Lauderdale, which shall constitute the northwestern division of said district; also the territory embraced on the date last mentioned in the counties of Cheroffee, De Kalb, Etowah, Marshall, and Saint Clair, which shall constitutes the middle division of said district; also the territory embraced on the date last mentioned in the counties of Blount, Jefferson, and Shelby, which shall constitute the southern division of "Jud. Code § 13, 36 St. at L. aff'd. as Harlan v. Gourin, 218 U. S. 10 87. 442, 450, 54 L. ed. 1101, 1100, 31 15 Ex parte Harlan, 180 Fed. 119; Sup. Ct. Rep. 44, 21 Ann. Cas. 849. 214 ORIGINAL JURISDICTION. [§ 66 said district; also the territory embraced on the date last men- tioned in the comities of Walker, Winston, Marion, Fayette, and Lamar, which shall "constitute the Jasper division of said district; also the territory embraced on the date last mentioned in the counties of Calhoun, Clay, Cleburne, and Talladega, which shall constitute the eastern division of said district; also the territory embraced on the date last mentioned in the coun- ties of Bibb, Greene, Pickens, Sumter, and Tuscaloosa, which shall constitute the western division of said district. Terms of the district court for the northern division shall be held at Huntsville on the first Tuesday in April and the second Tues- day in October; for the northwestern division, at Florence on the second Tuesday in February an dthe third Tuesday in October: Provided, That suitable rooms and accomodations for holding court at Florence shall be furnished free of expense to the Government; for the middle division, at Gladsden on the first Tuesdays in February and August: Provided, That suit- able rooms and accommodations for the holding court at Gads- den shall be furnished free of expense to the Government; for the southern division, at Birmingham on the first Mondays in March and September, which courts shall remain in session for the transaction of business at least six months in each calendar vear; for the Jasper division, at Jasper on the second Tuesdays in January and June: Provided, That suitable rooms and ac- commodations for holding court at Jasper shall be furnished free of expense to the Government ; for the eastern division, at Anniston on the first Mondays in May and November; and for the western division, at Tuscaloosa on the first Tuesdays in January and June. The clerk of the court for the northern district shall maintain an office in charge of himself or a deputy at Anniston, at Florence, at Jasper, and at Gadsden, which shall be kept open at all times for the transaction of the business of said court. The district judge for the northern district shall reside at Birmingham. The middle district shall include the territory embraced on the first day of July, nineteen hun- dred and ten, in the counties of Autauga, Barbour, Bullock, Butler, Chilton; Coosa, Covington, Crenshaw, Elmore, Lowndes, Montgomery and Pike, which shall constitute the northern division of said district ; also the territory embraced on the date last mentioned in the counties of Coffee, Dale, Geneva, Henry. § 66] ALASKA. 215 and Houston, which shall constitute the southern division of ' said district also the territory embraced on the date last men- tioned in the counties of Chambers, Lee, Macon, Randolph, Russell and Tallapoosa, which shall constitute the eastern division of said middle judicial district. Terms of the dis- trict court for the northern division shall be held at Mont- gomery on the first Tuesdays in .May and December; and for the eastern division, at Opelika on the first Mondays in April and iSTovember: Provided, however, That suitable rooms and accommodations for holding court at Opelika shall be furnished free of expense to the Government: and for the southern divi- sion, at Dothan on the firsl Mondays in June and December. The clerk for the middle district shall maintain an office, in charge of himself or a deputy, at Dothan. and shall main- tain an office in charge of himself or a deputy, at Opelika, which said offices at Dotham and Opelika shall be open at, all times for the transaction of the business of said di- visions. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Baldwin. Choctaw. Clarke, Conecuh, Escambia, Mobile, Monroe, and Washington, which shall con- stitute the southern division of said district; also the territory embraced on the date last mentioned in the counties of Dallas, Hale, Marengo, Perry, and Wilcox, which shall constitute the northern division of said district. Terms of the district court for the southern division shall be held at Mobile on the fourth Mondays in May and November, and for the northern division, at Selma on the first Mondays in May and Xovomber." ' In the Territory of Alaska there is a District Court with general jurisdiction in civil, criminal, equity and ad- miralty cases. The court consists of three divisions, each § GO. 136 St. at L. 1087, am'd Aug. 2. 1880, ch. 842. § 2, 24 St. at Act <>f Feb'y 28, 1913. Under the L. 213, Coinp. St. 1001. p. 44!), had Act of Feb'y 25, 1907, eh. 1108, co-ordinate powers, and thai each 34 St. at L. 931; Comp. St. Supp. could appoiirl ami remove a referee 10D7. p. 1ST. which authorized the in bankruptcy within the northern appointment of a separate district district. Birch v. Steele, C. 0. A.. judge for the northern district, it 165 Fed. ")77 : affirming Re Steele, was held that he and tin- judge pre- l.'.c Fed. 853, and overruling /> viously appointed fur the middle parte Steele. 161 Fed. 886, lti-2 Fed. ami northern districts, under Act of 694. 210 ORIGINAL JURISDICTION. [§ 66 of which is hold by a different judge with separate clerk, district attorney and marshal. The jurisdiction of each di- vision extends over the entire territory; but the court, where an action is pending, may change the place of trial from one place to another in the same or another division for local pre- judice, for the convenience of witnesses, disqualification of the division judge or the convenience of the defendant, and in criminal prosecutions also to save expense to the United States, where the defendant will not be prejudiced thereby. The First Division includes all that portion of said district east of the «»ne hundred and forty-first degree of west longitnude. The Second Division of said district consists of all that, territory lying west, northwest, and north of that certain line described as follows: Commencing at the mouth of the Oolville River, on the north coast of the district of Alaska; thence following the ( 'ol villi- River south and west to a point where said river crosses the one hundred and fifty-fourth meridian line the second time; thence following: the one hundred and fifty-fourth meridian line south to the west side of Tohtankella Mountain and to the Yu- kon River; thence in a southeasterly direction to the western side of Mount McKinley.; thence in a southwesterly direction on to the most northern point of Lake Clark; thence along the northwest side of Lake Clark to the sixtieth degree of long latitude; thence west along said degree of latitude to Kuskok- wim Bay. This division shall also include the mainland west of said bay and all the islands north of the tiftv-ninth degree of north latitude. The Third Division consists of all that por- tion of the district of Alaska not included within the first or second divisions of said district as hereinbefore described. In Division One at least four terms of court are annually held, two at Juneau and two at Skaguay, at times designated by the judge in January. In Division tiro at least one term a year is held at Saint Michaels, beginning on the third Monday in June. In Division Three at least one term a year is held at Eagle City, beginning on the first Monday of June. Special terms may also be held upon thirty days' notice of the time and place. 8 The courts of Alaska have no power to punish a defend- 2 31 St. at L. 322-320: 32 St. at Coqviitlam v. I". S.. 163 U. S. 346. 41 I.. 385. See Ex parte Cooper, 143 r.. ed. 184; Decker v. Williams, 73 l'. S. 472. 30 L. ed. 232: Steamer Fed. 308; infra, § 07. § (j(3] ARIZONA ; ARKANSAS. 217 ant arrested within the district, charged with the commission of an offense on hoard an American vessel on the high seas; and consequently, such an offender is tried in the First District of the United States, to which he is brought after his arrest in Alaska. 3 The judge of each division is required to divide his division into precincts, and is authorized to alter the same and establish new precincts from time to time, as public convenience may require. He is also required to appoint commissioners, who are ex-officio probate judges, with probate and certain other jurisdiction within their respective precincts, and to remove such commissioners at pleasure. 4 It was held: that an order abolishing a precinct, providing that the territory embraced thererin should become a part of another precinct, accepting the resignation of the commissioner for the precinct abolished, and directing him to "deliver the record and property per- taining to his office" to the commissioner of the new district, with which the former one was consolidated; constituted the commissioner of the latter precinct the successor in office of the former commissioner of that abolished, and transferred to him all the probate cases pending in the former precinct, with power to proceed in the same. 5 The State of Arizona constitutes one district, with one dis- trict judge, and is attached to the ninth circuit. The regular terms of the District Court are held at the capital of that Sate, Phoenix, on he first Mondays in April and October of each year. 6 "§ 71. The State of Arkansas is divided into two districts, to be known as the eastern and western districts of Arkansas The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Sevier, Howard, Little River, Pike, Hempstead, Miller, Lafay- ette, Columbia, Nevada, Ouachita, Union, and Calhoun, which shall constitute the Texarhana division of said district ; also the territory embraced on the date last mentioned in the counties of Polk, Scott, Yell, Logan, Sebastian, Franklin, Crawford, Washington, Benton, and Johnson, which shall constiute the Fort Smith division of said district; also the territory embraced 3U. S. v. Xewth, 149 Fed. 302. Gold Min. Co.. C. C. A.. 14S Fed. •4 31 St. at L. 321. 808. 5 Cheney v. Alaska Treadwell 6 36 St. at L. 557, 576, § 31. L'l.S ORIGINAL JURISDICTION. [§ 66 on the date last mentioned in the enmities of liaxter, Boone, Carroll, Madison, Marion, Newton, and Searcy, which shall constitute the Harrison division 01 said district. Terms of the I Mstriet court for the Texarhana division shall be held at Texar- kana on the second Mondays in May and November; for the Fort Sin tl/i Division, at Fort Smith on the second Mondays in January and June; and for the Harrison division, at Harrison on the second Mondays in April and October. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Lee, Phillips, Saint Francis, Cross. .Monroe, and Woodruif, which shall con- stitute the eastern division of said district; also the territory embraced on the date last mentioned in the counties of Inde- pendence, Cleburne, Stone, Izard. Sharp, and Jackson, which shall constitute the northern division of said district; also the territory embraced on the date last mentioned in the counties of Crittenden, Clay, Craighead. Greene, Mississippi, Poinsett, Fulton, Randolph, and Lawrence, which shall constitute the Joneshoro division of said district; and also the territory em- braced on the date last mentioned in the counties .of Arkansas, Ashley, Bradley. Chicot, (lark, Cleveland, Conway, Dallas, Desha. Drew, Faulkner. Garland, Grant, Hot Spring. Jefferson, Lincoln. Lonoke, Montgomery, Perry, Pope, Prairie, Pulaski, Saline, Van Buren, and White, which shall constitute the western division of said district. Terms of the District court for the eastern division shall he held at Helena on the second Monday in March and the first Monday in October; for the northern division, at Eatesville on the fourth Monday in May and the second Monday in December; for the Joneshoro di- vision, at Joneshoro on the second Mondays in May and Novem- ber; ami for the western division, at Little Pock on the first Monday in April and the third Monday in October. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at Little Rock, at Helena, at Jonesboro, and at Batesville, which shall he kept open at all times for the transaction of the business of the court. And the clerk of the court for the ires/rrn district shall maintain an office in charge of himself or a deputy at Fort Smith, at Harri- § 66] CALIFORNIA; COLORADO. 219 son, and at Texarkana, which shall be kept open at all times for the transaction of the business of the court. 7 "§ 72. The State of California is divided into two districts, to be known as the northern and southern districts of Cali- fornia. The southern district shall include the territory em- braced on the first day of July, nineteen hundred and ten, in the counties of Fresno, Inyo, Kern, Kings, Madera, Mariposa, Merced, and Tulare, which shall constitute the northern divi- sion of said district; also the territory embraced on the date last mentioned in the counties of Imperial, Los Angeles, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, and Ventura, which shall constitute the south- ed division of said district. Terms of the district court for the northern division shall be held at Fresno on the first Monday in May and the second Monday in November; and for the southern division, at Los Angeles, on the second Monday in January and the second Monday in July, and at San Diego on the second Mondays in March and September. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alameda, Alpine, Amador, Butte, Calaveras, Colusa, Contra Costa, Del Norte, El Dorado, Glenn, Humboldt, Lake, Lessen, Marin, Mendocino, Modoc, Mono, Monterey, Napa, Nevada, Placer, Plumas, Sacramento, San Benito, San Francisco, San Joaquin, San Mateo, Santa Clara, Santa Cruz, Shasta, Sierra, Siskiyou, Solano, Sonoma, Stanislaus, Sutter, Tehama, Trinity, Tuolum- ne, Yolo, and Yuba. Terms of the District court for the north- ern district shall be held at San Francisco on the first Monday in March, the second Monday in July, and the first Monday in November ; at Sacramento on the second Monday in April ; and at Eureka on the third Monday in July. "§ 73. The State of Colorado shall constitute the judicial district, to be known as the district of Colorado. Terms of the District court shall be held at Denver on the first Tuesdays 7 30 St. at L. 1087. For the spe- pany, see 23 St. at L. § 8, p. 72; 23 cial jurisdiction of courts held in St. at L. § 8. p. 75 ; Briscoe v. South- the western district over controver- era Kan. Ry. Co., 40 Fed. 273; s. C, sies affecting the Gulf, Colorado & 144 U. S. 133, 30 L. ed. 377. As to Santa Fe Railroad Company, and Indian Territory, see 25 St. at L. the Southern Kansas Railway Com- 78G; Gowen v. Harley, 56 Fed. 973. 220 ORIGINAL JURISDICTION. [§ 66 in May antl November; at Pueblo on the first Tuesday in April ; and at Montrose on the second Tuesday in September. "§ 74. The State of Connecticut shall constitute one judicial district, to be known as the district of Connecticut. Terms of the District court shall be held at New Haven on the fourth Tuesdays in February and September, and at Hartford on the fourth Tuesday in May and the first Tuesday in December. "§ 75. The State of Delaware shall constitute one judicial district, to be known as the district of Delaware. Terms of the district court shall be held at Wilmington on the second Tues- days in March, June, September, and December. "§ 76. The State of Florida is divided into two districts to be known as the northern and southern districts of Florida. The southern district shall icnlude the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Baker, Bradford, Brevard, Citrus, Clay, Columbia, Dade, De Soto, Duval, Hamilton, Hernando, Hillsboro, Lake, Lee, Madison, Manatee, Marion, Monroe, Nassau, Orange, Osceola, Palm Beach, Pasco, Polk, Putnam, Saint John, Sumter, Suwanee, Same Lucie, and Volusia. Terms of the district court for the southern district shall be held at Ocala on the third Monday in January; at Tampa on the second Monday in February; at Key West on the first Mondays in May and No- vember; at Jacksonville on the first Monday in December; at Fernandina on the first Monday in April; and at Miami on the fourth Monday in April. The district court for the south- ern district shall be open at all times for the purpose of hearing and deciding causes of admiralty and maritime jurisdiction. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alachua, Calhoun, Escambia, Franklin, Gadsden, Holmes, Jackson, Jefferson, Lafayette, Leon, Levy, Liberty, Santa Rosa, Taylor, Wahulla, Walton, and Washington. Term sof the Dis- trict court for the northern district shall be held at Tallahassee on the second Monday in January ; at Pensacola on the first- Mondays in May and November; at Marianna on the first Mon- day in April ; and at Gainesville on the second Mondays in June and December. "§ 77. The State of Georgia is divided into two districts ,to be known as the northern and southern districts of Georgia. § 66] GEORGIA. 221 The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Campbell, Carroll, Clayton, Cobb, Coweta, Cherokee, De- Kalb, Douglas, Dawson, Fannin, Fayette, Fulton, Forsyth, Gilmer, Gwinnett, Hall, Henry, Lumpkin, Milton, Xewton, Pickens, Rockdale, Spalding, Towns, and Union, which shall constitute the northern division of said district; also the ter- ritory embraced on the date last mentioned in the counties of Banks, Clarke, Elbert, Franklin, Greene, Habersham, Hart, Jackson, Morgan, Madison, Oglethorpe, Oconee, Rabun, Steph- ens, Walton, and White, which shall constitute the eastern divi- sion of said district; also the territory embraced on the date last mentioned in the counties of Chattahoochee, Clay, Early, Harris, Heard, Meriwether, Marion, Muscogee, Quitman, Ran- dolph, Schley, Stewart, Talbot, Taylor, Terrell, Troup, and Webster, which shall constitute the western division of said district; also the territory embraced on the date last mentioned in the counties of Bartow, Chattooga, Catoosa, Dade, Floyd, Gordon, Haralson, Murray, Paulding, Polk, Walker, and Whit- field, which shall constitute the northwestern division of said district. Terms of the district court for northern division of said district shall be held at Atlanta on the second Monday in March and the first Monday in October; for the eastern did- sion, at Athens on the second Monday in April and the first Monday in November for the western division, at Columbus on the first Mondays in May and December; and for the north- western division at Rome on the third Mondays in May and "November. The clerk of the court for the northern district shall maintain an office in charge of himself or a deputy at Athens, at Columbus, and at Rome, which shall be kept open at. all times for the transaction of the business of the court. The Southern district shall include the territory embraced on the «aid first day of July, nineteen hundred and ten, in the counties of Appling, Bulloch, Bryan, Camden, Chatham, Emanuel, Ef- fingham, Glynn, Jeff Davis, Liberty, Montgomery, Mcintosh, Screven, Tatnall, Toombs, and Wayne, which shall constitute the eastern, division of said district; also the territory embraced on the date last mentioned in the counties of Baldwin, Bibb, Butts, Crawford, Dodge, Dooly, Hancock, Houston, Jasper, Jones, Laurens, Macon, Monroe, Pike, Pulaski, Putnam, Sum- 224 OKHilXAL JURISDICTION. [§ (ill nam, Peoria, Rock Island, Stark. Tazewell. Warren, and Wood- ford, which shall constitute the northern division; also the ter- ritory embraced on the date last mentioned in the comities of Adams, Bond, Brown, Calhoun, Cass. Christian, Dewitt, Greene Hancock, Jersey, Logan, McLean, Macon, Macoupin, Madison, Mason, Menard, Montgomery, Morgan, Pike. Sanga- mon, Schuyler, and Scott, which shall constitute the southern division. Terms of the district court for the northern division shall he held at, Peoria on the third Mondays in April and Octo- her; for the southern division, at Springfield on the first Mon- days in January and June, and at Quincy on the first Mondays in March and September, The clerk of the court for the south- ern district shall maintain an office in charge of himself or a deputy at Peoria, at Springfield, and at Quincy. which shall he kept open at all times for the transaction of the business of the court. The marshal for said southern district shall appoint at least one deputy residing in the said northern division, who shall maintain an office at Peoria. The eastern district shall include the territory embraced on the first day of July, nine- teen hundred and ten, in the counties of Alexander. Champaign, Clark. Clay, Clinton, Coles, Crawford. Cumberland, Douglas, Edgar, Edwards, Effingham, Fayette, Ford, Franklin, Galla- tin, Hamilton, Hardin, Iroquois, Jackson, Jasper, Jefferson, Johnson. Kankakee, Lawrence, arion, Massac, .Monroe, .Moul- trie, Perry, Piatt, Pope, Pulaski, Randolph, Richland, Saint Clair. Saline, Shelby, Union, Vermilion, Wabash, Washington, Wayne, White, and Williamson. Terms of the district court for the eastern district shall be held at Danville on the first Mondays in March and September; at Cairo on the first Mondays in April and October; and at East St. Louis on the Hrst Mondays in May and November. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at Danville, at Cairo, and at East Saint Louis, which shall be kept open at all times for the transaction of the business of the court, and shall there keep the records, tiles, and documents pertaining to the court at that place. "§ 80. The State of Indiana shall constitute one judicial dis- trict, to be known as the district of Indiana. Terms of the district court shall be held at Indianapolis on the first Tuesdays in May and November; at New Albany on the first Mondays in § 66] iowa. 225 January and July; at Evansville on the first Mondays in April and October; at Fort Wayne on the second Tuesdays in June and December; and at Hammond on the third Tuesdays in April and October. The clerk of the court shall appoint four deputy clerks, one of whom shall reside and keep office at New Albany, one at Evansville, one at Fort Wayne, and one at Hammond. Each deputy shall keep in his office full records of all actions and proceedings of the district court held at that place. 10 "§ 81. The State of loiva is divided into two judicial dis- tricts, to be known as the northern, and southern districts of Iowa. The northern district shall include the territory em- braced on the first day of July, nineteen hundred and ten, in the counties of Allamakee, Dubuque, Buchanan, Clayton, Delaware, Fayette, Winneshiek, Howard, Chickasaw, Bremer, Black- hawk, Floyd, Mitchell, and Jackson, which shall constitute the eastern division of said district; also the territory embraced on the date last mentioned in the counties of Jones, Cedar, Linn, Johnson, Iowa, Benton, Tama, Grundy, and Hardin, which shall constitute the Cedar Rapids division; also the territory embraced on the date last mentioned in the counties of Emmet, Palo Alto, Pocahontas, Calhoun, Carroll, Kossuth, Humboldt, Webster, Winnebago, Hancock, Wright, Hamilton, Worth, Cerro Gordo,- Franklin, and Butler, which shall constitute the central divi- sion; also the territory embraced on the date last mentioned in the counties of Dickinson, Clay, Buena Vista, Sac, Osceola, O'Brien, Cherokee, Ida, Sioux, Plymouth, Woodbury, and Monona, which shall constitute the the western division. Terms of the district court for the eastern division shall be held at Dubuque on the fourth Tuesday in April and the first Tuesday in December, and at Waterloo on the second Tuesdays in May and September; for the Cedar Rapids division, at Oedar Rap- ids on the first Tuesday in April and the fourth Tuesday in 10 36 St. at L. 1087. A court sit- der the Act of March 3, 1905, ch. ting in one division has jurisdiction 1427, §§ 2, 3, 23, 33 St. at L. 992, to hear and determine a motion for 997, Comp. St. Supp. 1909, pp. 123, a new trial in a criminal case tried 130, has jurisdiction to try offenses in another division. Dwyer v. U. S., committed before the creation of his C. C. A., 170 Fed. 160. The addi- office as well as those committed tional district judge, appointed for subsequently. Walsh v. U. S.. C. C. the northern district of Illinois un- A., 174 Fed. 615. Fed. Prac. Vol. I.— 15. 226 ORIOIX.W. JURISDICTION. [§ 66 September; for the central division, at Fort Dodge on the sec- one Tuesdays in June and November'* and for the western division, at Sibus City on the fourth Tuesday in May and the third Tuesday in October. The southern district shall include the territory embraced on the first day of July, nineteen hun- dred and ten, in the counties of Louisa, Henry, Des Moines, Lee. and Van Buren, which shall constitute the eastern division of said district; also the territory embraced on the date last mentioned hi the counties of Marshall, Story, Boone, Greene, Guthrie, Dallas, Polk, Jasper, Poweshiek, Marion, Warren, and Madison, which shall constitute the central division of said district; also the territory embraced on the date last men- tioned in the counties of Crawford, Harrison, Shelby, Audu- bon, Cass, Pottawattamie, Mills, and Montgomery, which shall constitute the western division of said district; also the terri- tory embraced on the date last mentioned in the counties of Scott, Muscatine, Washington, and Clinton, which shall constitute the Davenport division of said district; also the territory embraced on the date last mentioned in the counties of Davis, Appanoose, Mahaska, Keokuk, Jef- ferson, Monroe, and Wapello, which shall constitute the Ottumwa division of said district. Terms of the district court for the eastern division shall be held at Keokuk on the second Tuesday in April and the third Tuesday in October; for the central division, at Des Moines on the second Tuesday in May and the third Tuesday in November; for the western divi- sion, at Council Bluffs on the second Tuesday in March and the third Tuesday in September; for the southern division, at Cres- ton on the fourth Tuesday in March and the first Tuesday in November; for the DaVenpori division, at Davenport on the fourth Tuesday in April and the first Tuesday in October; and and for the Ottuvnim division, at Ottumwa on the first Mondav after the fourth Tuesday in March, and the first Monday after the third Tuesday in October. The clerk of the court for said district shall maintain an office in charge of himself or a deputy at Davenport and at Ottumwa, for the transaction of the busi- ness of said divisions." n Under the Act of June 1. P.mio, 12 it was provided that all "36 St. at L. 1087, am'd. Act uf 12 § 5, Ch. 501, 31 St. at L. 240, Mar. 3, L913. Comp. St. 1901. p. 3.33. § ee] KANSAS?. 227 grand and petit jurors for the southern district should ho select- ed from citizens residing therein. It was held that jurors drawn for service in the central division need not. reside therein, pro- vided they reside within the district. 13 "§ 82. The State of Katoisas shnll constitute one judicial dis- trict, to be known as the district of Kansas. It is divided into three divisions, to he known as the first, second, and third divi- sions of the district of Kansas. The first division shall in- clude the territory embraced on the first dav of July, nineteen hundred and ten. in the counties of Atchison, Brown, Chase, Cheyenne, Clay, Cloud, Decatur, Dickinson, Doniphan, Doug- las, Ellis, Franklin, Geary, Gove, Graham, Jackson, Jefferson, Jewell, Johnson. Leavenworth, Lincoln, Logan, Lyon, Marion, Marshall; Mitchell. Morris, Nemaha, Norton, Osage, Osborne, Ottawa, Phillips, Pottawatomie, Rawlins, Republic, Riley, Rooks. Russell, Saline, Shawnee, Sheridan, Sherman, Smith, Thomas, Trego, Wabaunsee. Wallace. Washington, and Wyan- dotte. The second division shall include the territtory embraced on the date last mentioned in the counties of Barber, Barton, Butler, Clark, Comanche, Cowley, Edwards, Ellsworth, Finney. Ford, Grant, Gray, Greeley, Hamilton, Harper, Harvey, Hodge- man, Haskell, Kingman, Kiowa, Kearny, Lane, McPhorson, Morton, Meade. Xess, Pratt, Pawnee, Reno, Rush, Scott, Sedg- wick, Stafford, Stevens, Seward, Sumner, Stanton, and Wich- ita. The third division shall include the territory embraced on the said date last mentioned in the counties of Allen, Anderson, Bourbon, Cherokee, Coffey. Chautauqua, Crawford, Elk, Green- wood, Labette, Linn. Miami, Montgomery, Neosho, Wilson, and Woodson. Terms of the district court for the first division shall be held at Leavenworth on the second Monday in October ; at Topcka on the second Monday in April; at Kansas City on the second Monday in January and the first Monday in October ; and at Salina on the second Monday in May; but no cause, ac- tion, or proceeding shall be tried or considered at and term held at Salina unless by consent of all the parties thereto, or by order of the court tor cause. Terms of the district court for the sec- ond division shall he held at Wichita on the second Mondays in March ami September; and for the third division, at Fort ISSpancer v. U. S., C. C. A.. Kill Fed. 502. 228 ORIGINAL JURISDICTION. [§ 66 Scott on the first Monday in May and the second Monday in November. The clerk of the district court shall appoint two deputies, one of whom shall reside and keep his office at Fort Scott, and the other at Wichita; and the marshal shall appoint a deputy who shall reside and keep his office at Fort Scott. 14 "§ 83. The State of Kentucky is divided into two districts, to be known as the eastern and western districts of Kentucky: The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Carroll, Trimble, Henry, Shelby, Anderson, Mercer, Boyle, Gallatin, Boone, Kenton, Campbell, Pendleton, Grant, Owen, Franklin, Bourbon, Scott, Woodford, Fayette, Jessamine, Gar- rard, Madison, Lincoln, Rockcastle, Pulaski, Wayne, Whitley, Bell, Knox, Harlan, Laurel, Clay, Leslie, Letcher, Perry,Ows- ley, Jackson, Estill, Lee, Breathitt, Knott, Pike, Floyd, Mag- offin, Martin, Johnson, Lawrence, Boyd, Greenup, Carter, El- liott, Morgan, Wolfe, Powell, Menifee, Clark, Montgomery, Bath, Rowan, Lewis, Fleming, Mason, Bracken, Robertson, Nicholas, and Harrison, with the waters thereof. Terms of the district court for the eastern district shall be held at Frankfort on the second Monday in March and the fourth Monday in September; at Covington on the first Monday in April and the third Monday in October; at Richmond on the fourth Monday in April and the second Monday in November; at London on the second Monday in May and the fourth Monday in Novem- ber ; at Catlettsburg on the fourth Monday in May and the sec- ond Monday in December; and at Jackson on the first Monday in March and the third Monday in September: Provide'd, That suitable rooms and accommodations are furnished for holding court at Jackson free of expense to the Government until such time as a public building shall be erectted there. The western district shall include the territory embraced on the first day of •I ulv, nineteen hundred and ten, in the counties of Oldham, Jef- ferson, Spencer, Bullitt, Nelson, Washington, Marion, Larue, Taylor, Casey, Green, Adair, Russell, Clinton, Cumberland, 14 See McGlasliern v. U. S., 71 pany, and the Southern Kansas Fed. 434. For special jurisdiction Railway Company, see 23 St. at L. of the courts held in this district 72, 75: Briscoe v. Southern Kan. Ry. ever controversies affecting the Gulf. Co., 40 Fed. 273. Colorado A Santa Fe Railroad Com- § 66] LOUISIANA. 229 Monroe, Metcalf, Allen, Barren, Simpson, Logan, Warren, Butler, Hart, Edmonson, Brayson, Hardin, Meade, Brecken- ridge, Hancock, Daviess, Ohio, McLean, Muhlenberg, Todd, Christian, Trigg, Lyon, Caldwell, Livingston, Crittenden, Hop- kins, Webster, Henderson, Union, Marshall, Calloway, Mc- Cracken, Graves, Ballard, Carlisle, Hickman, and Fulton, with the waters thereof. Terms of the district court for the western district shall be held at Louisville on the second Mondays in March and October; at Owensboro on the first Monday in May and the fourth Monday in November; at Paducah on the third Mondays in April and November; and at Bowling Green on the third Monday in May and the second Monday in December. "The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at Frankfort, at Cov- ington, at Richmond, at London, at Catlettsburg, and at Jack- son; and the clerk for the western district shall maintain an of- fice in charge of himself or a deputy at Louisville, at Owensboro, at Paducah, and at Bowling Green, each of which offices shall be kept open at all times for the transaction of the business of said court. The clerks of the courts for the eastern and western districts, upon issuing original process in a civil action, shall make it returnable to the court nearest to the county of the residence of the defendant, or of that defendant whose county is nearest to a court, and shall, immediately upon payment by the plaintiff of his fees accrued, send the papers filed to the clerk of the court to which the process is made returnable ; and when- ever the process is not thus made returnable, any defendant may, upon motion, on or before the calling of the cause, have it trans- ferred to the court to which it should have been sent had the clerk known the residence of the defendant when the action was brought." 15 "§ 84. The State of Louisiana is divided into two judicial districts, to be known as the eastern and western districts of Louisiana. The eastern district shall include the territory em- braced on the first day of July, nineteen hundred and ten, in the parishes of Assumption, Iberia, Jefferson, Lafourche, Or- 16 36 St. at L. 1087. Under the by reason of the commencement of former law, 31 St. at L. 781, Comp. intervening terms elsewhere. U. S. St. 1901, p. 3G0. it was held that a v. Louisville & N. R. Co., 177 Fed. term held in Louisville did not lapse 780. 230 ORIGINAL JURISDICTION. [§ 66 leans, Plaquemines, Saint Bernard, Saint Charles. Saint James, Saint John the Baptist, Saint Mary, Saint Tammany, Tangi- pahoa, Terrebonne, and Washington*, which shall constitute the New Orleans division; also the territory embraced on the date last mentioned in the parishes of Ascension, East Baton Rouge, East Feliciana, Livingston, Pointe Coupee, Saint Helena. West Baton Rouge, Iberville, and West Feliciana, which shall con- stitute the Baton Rouge division of said district. Terms of the district court for the New Orleans division shall be held at New Orleans on the third Mondays in February, May, and November; and for the Baton Rouge division, at Baton Ronge on the second Mondays in April arid November. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at Xew Orleans and at Baton Ronge which shall be kept open at all times for the transaaction of the business of the court. The western district shall include the territory embraced on the first day of July, nineteen hun- dred and .ten, in the parishes of Saint Landry, Evangeline, Saint Martin, Lafayette, and Vermilion, which shall constitute the Opelousas division of said district; also the territory em- braced on the dast last mentioned in the parishes of Rapides, Avoyelles, Catahoula, La Salle, Grant, and Winn, which shall constitute the Alexandria division of said district; also the ter- ritory embraced on the said date last mentioned in the parishes of Caddo, De Soto, Bossier. Webster, Claiborne, Bienville, Na- tchitoches, Sabine, and Red River, which shall constitute the Shre report division of said district; also the territory embraced on the date last mentioned in the parishes of Ouachita, Frank- lin, Richland, M»rehouse, East Carroll, West Carroll, Madison, Tensas, Concordia. Union. Caldwell, Jackson, and Lincoln, which shall constitute the Monroe division of said district; also the territory embraced on the date last mentioned in the parishes of Acadia. Calcasieu, Cameron, and Vernon, which shall con- stitute the Lake Charles division of said district. Terms of the district court for the Opelousas division shall be held at Opelous- as on the first Mondays in January ami June; for the Alexan- dria division, at Alexandria on the fourth Mondays in January and June; for the ShrevepoH division, at Shreveport on the third Mondays in February and October; for the Monroe din- sion, at Monroe on the first Mondays in April and October; § 66] MAINE; MARYLAND; MASSACHUSETTS. 231 and for the Lake Charles division, at Lake Charles on the third Mondays in May and December. The clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Opelousas, at Alexandria, at Shreveport, at Mon- roe, and at Lake Charles, which shall- be kept open at all times for the transaction of the business of the court.' 16 Prior to the Judicial Code it was held, that in a suit in admiralty in person- am, where two or more of the defendants were citizens of dif- ferent districts of the State of Louisiana, the suit might be brought in either district. 17 . L912, 39 St. at L. 50. 29 U. S. v. La Plant, 200 Fed. 92. § 66] ohio. 245 bull, and Wayne, which shall constitute the eastern division; also the territory embraced on the dale last mentioned in the counties of Auglaize, Allen, Defiance, Erie, Fulton, Henry, Hancock, Hardin, Huron, Lucas, Mercer, Marion, Ottawa, Paulding, Putnam, Seneca, Sandusky, Van Wert. Williams, Wood, and Wyandotte, which shall constitute the western divi- sion of said district. Terms of the district court for the eastern division shall be held at Cleveland on the first Tuesdays in February, April, and October, and at Youngstown on the first Tuesday after the first Monday in March ; and for the western division, at Toledo on the last Tuesdays in April and October. Grand and petit jurors summoned for service at a term of court to be held at Cleveland may, if in the opinion of the court the public convenience so requires, be directed to serve 1 also at the term then being held or authorized to be held at Youngstown. Crimes and offenses committed in the eastern division shall be cognizable at the terms held at Cleveland, or at Youngstown, as the court may direct. Any suit brought in the eastern division may, in the discretion of the court, be tried at the term held at Youngstown. The southern district shall include the terri- tory embraced on the first day of July, nineteen hundred and ten, in the counties of Adams, Brown, Butler. Champaign, Clark, Clermont, Clinton, Darke, Greene, Hamilton, Highland, Lawrence, Miami, Montgomery, Preble. Scioto, Shelby, and Warren, which shall constitute the western division; also the territory embraced on the date last mentioned in the counties of Athens, Belmont, Coshocton, Delaware, Fairfield, Fayette, Franklin, Gallia, Guernsey, Harrison, Hocking, Jackson, Jef- ferson, Knox, Licking, Logan, Madison, Meigs, Monroe, Mor- gan, Morrow, Muskingum. Noble, Perry, Pickaway, Pike, Boss. I T nion, Vinton, and Washington, which shall constitute the eastern division of said district. Terms of the district court for the western division shall be held at Cincinnati on the first Tuesdays in February, April, and October; and for the eastern division, at Columbus on the first Tuesdays in June and Decem- ber: Provided, That terms of the district court for the southern district shall be held at, Dayton on the firsl Mondays in May and November. Prosecutions for crimes and offenses committed in any part of said district shall also be cognizable at the terms held at Davton. All suits which may be brought within the southern 246 ORIGINAL JURISDICTION. [§ 60 district, or either division thereof, may be instituted, tried, and determined at the terms held at Dayton. '*>* 101. The State of Oklahoma is divided into two judieial districts, to be known as the eastern and the western districts of Oklahoma; The eastern district shall include the territory em- braced on the first day of July, nineteen hundred and ten, in the counties of Adair, Atoka. Bryan, Craig, Cherokee, Creek, Choc- taw, Coal, Carter, Delaware, Garvin, Grady, Haskell, Hughes, Johnston, Jefferson, Latimer, LeFlore, Love, McClain, Mayes, Muskogee, Mcintosh, MeCurtain, Murray, Marshall, Xowata, Ottawa, Okmulgee, Ofuskee, Pittsburg. Pushmataha, Pontotoc, Rogers, Stephens, Sequoyah, Seminole, Tulsa, Washington, and Wagoner. Terms. of the district court for the eastern district shall be held at Muskogee on the first Monday in January; at Vinita on the first Monday in March; at Tulsa on the first Mon- day in April; at South McAlester on the first Monday in June; at Ardmore on the first Mondav in October; and at Chickasha on the first Monday in November in each year. The western district shall include the territory embraced on the first dav of July, nineteen hundred and ten, in the counties of Alfalfa, Beaver, Beckham, Blaine, Caddo, Canadian, Cimarron, Cleve- land. Comanche, Custer, Dewey, Ellis, Garfield, Grant, Greer. Harmon, Harper, Jackson, Kay, Kingfisher, Kiowa, Lincoln, Logan. Majors, Xoble, Oklahoma, Osage, Pawnee, Payne, Potta- watomie, Roger Mills, Texas, Tillman. Washita, Woods, and Woodward. Terms of the district court for the western district shall be held at Guthrie on the first Monday in January; at Oklahoma City on the first Monday in March; at Enid on the first Monday in June; at Lawton on the first Monday in Sep- tember: and at Woodward on the first Monday in November: Provided, That suitable rooms and accommodations for holding court at Woodward are furnished free of expense to the United States. The clerk of the district court for the eastern district shall keep his office at Muskogee, and the clerk for the western district at Guthrie, and shall maintain an office in charge of himself or a deputy at Oklahoma City. "§ 102. The State of Oregon shall constitute one judicial district, to be known as the district of Oregon. Terms of the district court shall be held at Portland on the first Mondays in March. July, and November; at Pendleton on the first § OG] PENNSYLVANIA. 247 Tuesday in April • and at Med ford on the first Tuesday in Octo- ber. The marshal and the clerk for said district shall each appoint, in the manner provided by law, at least one deputy at Pendleton and one at Medford, who shall reside and main- tain an office at each of said places." 31 The State courts of Oregon have ''jurisdiction in civil and criminal cases upon the Columbia Eiver and Snake River, concurrently with States and Territories of which those rivers form a boundary in common with this State." 32 The District Court of Oregon has the same territorial jurisdiction. 33 This concurrent jurisdiction does not extend to permanent structures attached to the river-bed within the boundary of the other State. 34 It has been held that the District Court of Washington has concurrent juris- diction over floating structures used in connection with fish- nets in the river, although anchored by means of weights, 35 and that the District Court of Oregon has jurisidction in admiralty over a vessel moored at a wharf on the Washington shore. 86 "§ 103. The State of Pennsylvania is divided into three ju- dicial districts, to be known as the eastern, middle, and west- ern districts of Pennsylvania. The eastern district shall in- clude the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Berks, Bucks, Chester, Dela- ware, Lancaster, Lehigh, Montgomery, Northampton, Phila- delphia, and Schuylkill. Terms of the district court shall be held at Philadelphia on the second Mondays in March and June, the third Monday in September, and the second Monday in December, each term to continue until the succeeding term be- gins. The middle district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the coun- ties of Adams, Bradford, Cameron, Carlton, (.'enter, Clinton, Columbia, Cumberland, Dauphin, Franklin, Fulton, Hunting- ton, Juniata, Lackawanna, Lebanon, Luzerne, Lycoming, Mif- flin, Monroe, Montour, Northumberland, Perry, Pike, Potter, 31 3G St. at L. 1087. 34 Columbia River Packers' Ass'n. 32 Organic Act of Feb'y. 14, 1859, v. McGowan, 172 Fed. 991. ch. 33. 11 St. at L. 383. 35 ibid. 33 Nielsen v. Oregon. 212 U. S. 36 The Annie M. Small. 2 Sawyer 315, 31(3, 29 Sup. C't. 383, 53 L. ed. 220. Fed. Cas. No. 423. See. also, 528; Columbia River Packers' Ass'n. State v. Mullen. 35 Iowa, 199. v. McGowan, 172 Fed. 991. 2-18 ORIGINAL JURISDICTION. [§ 6G Snyder, Sullivan, Susquehanna, Tioga, Union, Wayne, Wyom- ing, and York. Terms of the District court shall be held at Scranton on the second Monday in March and the third Mon- day in October; at Harrisburg on the first Mondays in May and December; and at Williamsport on the first Monday in June. The clerk of the court for the middle district shall maintain an office in charge of himself or a deputy at Har- risburg and civil suits instituted at that place shall be tried there, if either party resides nearest that place of holding court, unless by consent of parties thay are removed to another place for trial. The western district shall include the territoory em- braced on the first day of July, nineteen hundred and ten, in the counties of Allegheny, Armstrong, Beaver, Bedford, Blair, Butler, Cambria, Clarion, Clearfield, Crawford, Elk, Erie, Fayette, Forest, Greene, Indiana, Jefferson, Lawrence, Mc- Kean, Mercer, Somerset, Venango, Warren, Washington, and Westmoreland. Terms of the district court shall be held at Pittsburg on the first Monday in May and the third Monday in October ; and at Erie on the third Monday in July and the second Monday in January." 37 In Porto Rico there is one district. Regular- terms of the court are held at San Juan beginning on the second Mondays of April and October, and also at Ponce on the second Monday in January in each year, and special terms are also held at May- aguez at such other stated times as the district judge deems ex- pedient. 38 At the special terms held at Mayaguez, jury cases may be tried; and section 670 of the Revised Statutes of the United States does not apply to such terms of the District Court oi Porto Rico. 39 "§ 104. The State of Rhode Island shall constitute one judi- cial district, to be known as the district of Rhode Island. Terms of the district court shall be held at Providence on the fourth Tuesday in May and the Third Tuesday in Xovember. 39a "§ 105. The State of South Carolina is divided into two dis- tricts, to be known as the eastern and western districts of South 37 St. at L. 1087, am'd. Act of 39a j u d. Code, 36 St. at L. 1087, Mar. 3, 1913. as am'd. Act of Feb'y. 1, 1912. 38 31 St. at L. 84. 85. as am'd. Act of Feb'y 1, 1912. See 39 Am. Railroad Co. v. Castro, § 70, infra. 204 U. S. 453, 51 L. ed. 564. § 66] SOUTH DAKOTA. 249 Carolina. The western district .shall include the territory em- braced on the first day of July, nineteen hundred and ten, in the counties of Abbeville, Anderson, Cherokee, Chester, Edge- field, Fairfield, Greenville, Greenwood, Lancaster, Laurens, Newberry, Oconee, Pickens, Saluda, Spartanburg, Union, and York. Terms of the District court for the western district shall be held at Greenville on the third Tuesdays in April and Octo- ber. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the coun- ties of Aiken, Bamberg, Barnwell, Beaufort, Berkeley, Cal- houn, Charleston, Chesterfield, Clarendon, Colleton, Darlington, Dillon, Dorchester, Florence, Georgetown, Hampton, Horry, Kershaw, Lee, Lexington, Marion, Marlboro, Orangeburg, Rich- land, Sumter, and Williamsburg. Terms of the District court for the eastern district shall be held at Charleston on the first Tuesdays in June and December; at Columbia on the third Tuesday in January and the first Tuesday in November, the latter term to be solely for the trial of civil cases; and at Flor- ence on the first Tuesday in 'March. The offices 'of the clerk of the district court shall be at Greenville, and at Charleston; and the clerk shall reside in one of said cities and have a deputy in the other. 39b "§ 106. The State of South Dakota shall constitute one judi- cial district, to be known as the district of South Dakota. The territory embraced on the first day of July, nineteen hundred and ten, in the counties of Aurora, Beadle, Bon Homme, Brook- ings, Brule, Charles Mix, Clay, Davison, Douglas, Gregory, Hansan, Hutchinson, Kingsbury, Lake, Lincoln, McCook, Miner, Minnehaha, Moody, Sonborn, Turner, Union, and Yank- ton, and in the Yankton Indian reservation, shall constitute the southern division of said district; the territory embraced on the date last mentioned in the counties of Brown, Campbell, Clark, Codington, Corson, Day, Deuel, Edmunds, Grant, Hamlin, Mc- Pherson, Marshall, Roberts, Schnasse, Spink, and Walworth, and in the Sisseton and Wahpeton Indian reservation, and in that portion of the Standing Rock Indian reservation lying in South Dakota, shall constitute the northern division ; the terri- tory embraced on the date last mentioned in (he counties of Arm- strong, Buffalo, Dewey, Eaulk, Hand, Hughes, Hyde, Jerauld, 39b Jud. Code, 36 St. at L. 1087, as am'd. Act of Feb'y. 5, 1912. 250 ORIGINAL JURISDICTION. [§ 66 Lyman, Potter, Stanley, and Sully, and in the Cheyenne River, Lower Brule, and Crow Creek Indian reservations, shall con- stitute the central division; and the territory embraced on the date last mentioned in the counties of Bennett, Butte, Custer, Fall River, Harding, Lawrence, Meade, Mellette, Pennington, Perkins, Shannon, Todrl. Tripp, Washabaugh, and Washington, and in the Rosebud and Pine Ridge Indian reservations, shall constitute the western dwision. Terms of the district court for the southern division shall be held at Sioux Palls on the first Tuesday in April and the third Tuesday in October; for the northern division, at Aberdeen on the first Tuesday in May and the second Tuesday in November; for the central division, at Pierre on the second Tuesday in June and the first Tuesday in October; and for the western division, at Deadwood on the third Tuesday in May and the first Tuesday in September. The clerk of the District court shall maintain an office in charge of himself or a deputy at Sioux Falls, at Pierre, at Aberdeen, and at Deadwood, which shall be kept open for the transaction of the business'of the court." 40 M § 27. The District court of the United States for the district of South Dakota shall have jurisdiction to hear, try, and de- termine all actions and proceedings in which any person shall be charged with the crime of murder, manslaughter, rape, as- sault with intent to kill, arson, burglary, larceny, or assault with a dangerous weapon, committed within the limits of any Indian reservation in the State of South Dakota." 41 The District Court of the United States for South Dakota is the same court, whether held in one division or another ; and where a recogniz- ance bound an accused to appear at a term to be held in one division; it was held, that he might be subsequently ordered to appear for trial in another division, without relieving the sure- i * * 42 ties upon his recognizance. "§ 107. The State of Tennessee is divided into three dis- tricts, to be known as the eastern, middle, and western districts of Tennessee. The eastern district shall include the territory t/ embraced on the first day of July, nineteen hundred and ten, in the counties of Bledsoe, Bradley, Hamilton, James, McMinn, Marion, Meigs, Polk, Rhea, and Sequatchie, which shall consti- M36 St. at L. 1087. « Hollister v. U. S., C. C. A., 145 41 Ibid. Fed. 773. § GG] TENNESSEE. 251 tnte the southern division of said district; also the territory em- braced on the date last mentioned in the counties of Anderson, Blount, Campbell, Claiborne, Grainger, Jefferson, Knox, Lou- don, Monroe, Morgan, Roane, Sevier, Scott, and Union, which shall constitute the northern division of said district ; also the territory embraced on the date last mentioned in the counties of Carter, Cocke, Greene, Hamblen, Hancock, Hawkins, John- son, Sullivan, Unicoi, and Washington, which shall constitute the northeastern division of said district. Terms of the Dis- trict court for the souttiern division of said district shall be held at Chatanooga on the fourth Monday of April and the second Monday in November; for the northern division, at Knoxville on the fourth Monday in May and the first Monday in May and the first Monday in December; and for the north- eastern division, at Greeneville on the first Monday in March and the third Monday in September. The middle district shall include the territory embraced on the first day of July, nineteen hundred and ten. in the counties of Bedford, Cannon, Cheatham, Coffee, Davidson, Dickson, Franklin, Giles, Grundy. Hickman, Humphreys, Houston, Lawrence, Lew'is, Lincoln, Marshall, Maury, Montgomery, Moore, Robertson, Rutherford, Stewart, Sumner, Trousdale, Warren, Wayne, Williamson, and Wilson, which shall constitute the Nashville division of said district ; also the territory embraced on the date last mentioned in the counties of Clay, Cumberland, DeKalb, Fentress, Jack- son, Macon, Overton, Pickett, Putnam, Smith, Van Buren, and White, which shall constitute the northeastern division of said district. Terms of the district court for the Nashville division of said district shall be held at Nashville on the second Monday of March and the first Monday of November; and for the northeastern division, at Cookeville on the third Monday in April and the first Monday in November: Provided, That suitable accommodations for holding court at Cookeville shall be provided by the county or municipal authorities without expense to the United States. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Dyer, Fayette. Haywood, Lauderdale, Shelby, and Tipton, which shall constitute the western division of said district; also the territory embraced on the date last mentioned in the counties of Benton, Carroll, 252 ORIGINAI .H'KTSDICTIOX. [§ 66 ( 'hester, Crockett, Decatur, Gibson, Hardeman, Hardin, Hen- derson, Henry, Lake, AlcXairy, Madison, Obion, Perry, and Weakley, including the waters of the Tennessee River to low water mark on the eastern shore thereof wherever such river forms the boundary line between the western and middle dis- tricts of Tennessee, from the north line of the State of Alabama north to the point in Henry County, Tennessee, where the south boundary line of the State of Kentucky strikes the west bank of the river, which shall constitute the eastern division of said dis- driet. Terms of the District court for the western dirts-ion of said district shall be held at Memphis on the fourth Mondays in May and November; and for the eastern division, at Jackson on the fourth Mondays in April and October. The clerk of the court for the western district shall appoint a deputy who shall reside at Jackson. The marshal for the western district shall appoint a deputy who shall reside at Jackson. The marshal for the eastern district shall appoint a deputy who shall reside at Chattanooga. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at Knoxville, #t Chattanooga, and at Greenville, which shall be kept open at all times for the transaction of the business of the court. 42a "§ 108. The State of Texas is divided into four districts, to be known as the northern, eastern, western, and southern dis- tricts of Texas. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Dallas, Ellis, Hunt, Johnson, Kaufman, Xav- arro, and Rockwall, which shall constitute the Dallas division; also the territory embraced on the date last mentioned in the counties of Archer, Baylor, Clay, Comanche, Erath, Eoard, Hardeman, Hood, Jack, Palo Pinto, Parker, Tarrant, Wichita, Wilbarger, Wise, and Young, which shall constitute the Fort Worth division; also the territory embraced on the date last mentioned in the counties of Armstrong, Bailey, Briscoe, Car- son, Castro, Childress, Cochran, Collingsworth, Cottle, Crosby, Dallam, Deaf Smith, Dickens, Donley, Floyd. Gray, Hale, Hall, Hansford, Hartley, Hemphill. Hockley. Hutchinson, King, Lamb, Lipscomb. Lubbock. Moore, Motley, Ochiltree, Oldham, Parmer, Potter, Randall. Roberts, Sherman. Swisher, and «a.Tud. Code. 3G St. at L. 1087, as am'd Act of Aug. 20. 1912. § 66] texas. 253 Wheeler, which shall constitute the Amarillo division; also the territory embraced on the date last mentioned in the counties of Andrews, Borden, Callahan, Dawson, Eastland, Fisher, Gaines, Garza, Haskell, Howard, Jones, Kent, Knox, Lynn, Mar- tin, Midland, Mitchell, Nolan, Scurry, Shackelford, Stephens, Stonewall, Tayor, Terry, Throckmorton, and Yoakum, which shall constitute the Abilene division ; also the territory embraced on the date last mentioned in the counties of Brown, Coke, Cole- man, Concho, Crockett, Glasscock, Irion, Manard, Mills, Run- nels, Schleicher, Sterling, Sutton, Tom Green, and Upton, which shall constitute the San Angelo division of the said dis- district. Terms of the district court for the Dallas division shall be held at Dallas on the second Monday in January and the first Monday in May; for the Fort Worth division, at Fort Worth on the first Monday in November and the second Monday in March; for the Amarillo division, at Amarillo on the third Monday in April and the fourth Monday in September ; for the Abilene division, at Abilene on the first Monday in Octo- ber and the second Monday in April ; and for the San Angelo division, at San Angelo on the third Monday in October and the fourth Monday in April. The clerk of the court for the northern district shall maintain an office in charge of himself or a deputy at Dallas, at Fort Worth, at Amarillo, at Abilene, and at San Angelo, which shall be kept open at all times for the transaction of the business of the court. The eastern dis- trict shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Anderson, Angelina, Cherokee, Gregg, Henderson, Houston, Nacogdoches, Panola, Rains, Busk, Smith, Van Zandt, and Wood, which shall constitute the Tyler division; also the territory embraced on the date last mentioned in the counties of Hardin, Jasper, Jef- ferson, Liberty, Newton, Orange, Sabine, San Augustine, Shelby, and Tyler, which shall constitute the Beaumont divi- sion ; also the territory embraced on the date last mentioned in the counties of Collin, Cook, Denton, Grayson, and Montague, wkich shall constitute the Sherman division; also the territory embraced on the date last mentioned in the counties of Camp. Cass, Harrison, Hopkins, Marion, .Morris, and Upshur, which shall constitute the Jefferson division; also the territory em- braced on the dast last mentioned in the counties of Delta, 254 ORIGINAL JURISDICTION. [§ CG Fannin, Red River, and Lamar, which shall constitute the Paris division; also the territory embraced on the date last mentioned in the counties of Bowie, Franklin, and Titus, which shall con- stitute the Texarhana division. Terms of the District court for the Tyler division shall be held at Tyler on the fourth Mon- days in January and April ; for the Jefferson division, at Jef- ferson on the first Monday in October and the third Monday in February; for the Beaumont Division, at Beaumont on the third Monday in November and the first Monday in April ; for the Sherman division, at Sherman on the first Monday in January and the third Monday in May; for the Paris divi- sion, at Paris on the third Monday in October and the first Monday in March ; and for the Texarhana division at Texar- kana on the third Monday in March and the first Monday in November. The clerk of tbe court for the eastern district shall maintain an office in charge of himself or a deputy at Sherman at Beaumont, and at Texarkana, which shall be kept open at all times for the transaction of the business of said court. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Bas- trop, Blanco, Burleson, Burnet, Caldwell, Gillespie, Hays, Kimble, Lampasas, Lee, Llano, Mason, McCulloch, San Saba, Travis, Washington, and Williamson, which shall constitute the Austin division; also the territory embraced on the date last mentioned in the counties of Atascosa, Bandera, Bexar, Comal, Dimmit, Edwards, Frio, Gonzales, Guadalupe, Karnes, Kendall, Kerr, Medina, and Wilson, which shall constitute the San Antonio division ; also the territory embraced on the date last mentioned in the counties of Brewster, Crane, Ector, El Paso, Jeff Davis, Loving, Reeves, Presidio, Ward, and Wink- ler, which shall constitute the El Paso division ; also the terri- tory embraced on the date last mentioned in the counties of Bell, Bosque, Coryell, Falls, Hamilton, Freestone, Hill, Leon, Limestone, McLennan, Milam, Robertson, and Somervell, which shall constitute the Waco division; also the territory embraced on the date last mentioned in the counties of Kinney, Maverick, Pecos, Terrell, Uvalde, Valverde, and Zavalla, which shall constitute the Del Rio division. Terms of the District court for the Austin division shall be held at Austin on the fourth Monday in January and § 66] texas. 255 the second Monday in June; for the Waco division on the fourth Monday in February and the second Monday in November; for the San Antonio division,, at San Antonio on the first Monday in May and the third Monday in December ; for the El Paso division, at El Paso on the first Monday in April and the first Monday in October; and for the Del Bio division, at Del Rio on the third Monday in March and the fourth Monday in October. The clerk of the court for the west- ern district shall maintain an office in charge of himself or a deputy at Austin, El Paso, and at Del Rio, which shall be kept open at all times for the transaction of business. The southern district shall include the territory embraced on the first of July, nineteen hundred and ten, in the counties of Duval, La Salle, McMullen, Nueces, Webb, and Zapata, which shall con- stitute the Laredo division; also the territory embraced on the date last mentioned in the counties of Cameron, Hidalgo, and Starr, which shall constitute the Brownsville division; also the territory embraced on the date last mentioned in the counties of Austin, Brazoria, Chambers, Galveston, Fort Bend, Matagorda, and Wharton, which shall constitute the Galveston division ; also the territory embraced on the date last mentioned, in the counties of Brazos, Colorado, Fayette, Grimes, Harris, Lavaca, Madison, Montgomery, Polk, San Jacinto, Trinity, Walker, and Waller, which shall constitute the Houston division; also the territory embraced on the date last mentioned, in the coun- ties of Calhoun, Dewitt, Goliad, Jackson, Refugio, and Victoria, which shall constitute the Victoria division. Terms of the District Court for the Galveston divi- sion shall be held at Galveston on the second Monday in January and the first Monday in June ; for the Houston division, at Houston on the fourth Mondays in February and September; for the Laredo division, at Laredo on the third Monday in April and the second Monday in November; for the Brownsville division, at Brownsville on the second Monday in May and the first Monday in December ; and for the Victoria division, at Victoria on the first Monday in May and the fourth Monday in November. The clerk of the court for the southern district shall maintain an office in charge of himself or a depul v at each of the places now designated for holding court in sail 256 ORIGINAL JtJBISDICTION. [§ 66 district."* 3 ''The counties of Bee, Live Oak, Aransas, San Patricio, Nueces, Jim Wells, Duval, Brooks, and Willaek shall constitute a division of the southern judicial district of Texas. Terms of the District Court of the United States for the said southern district of Texas shall be held twice in each pear at the city of Corpus Christi, in Neuees County, and that, until otherwise provided by law, the judge of said court shall fix the times at which said court shall be held at Corpus Christi, of which he shall make publication and give due notice." 48 " "That the counties of Beeves, Ward, Martin, Reagan, Winkler, Ector, Gaines. Andrews, Upton, Midland. Loving, Jeff Davis, and Crane shall constitute a division of the western judicial dis- trict of Texas. Terms of the District Court of the L^nited States for the western district of Texas shall be held twice in each year at the city of Pecos, in Reeves county, and that, un- til otherwise provided by law, the judge of said court shall fix the times at which said court shall be held at Pecos, of which he shall make proclamation and give due notice: Provided, however, that suitable rooms and accommodations shall be fur- nished for the holding of said court and for the use of the offi- cer of said court at Pecos, free of expense to the Government of the United States." 43 ' "§ 109. The State of Utah shall constitute one judicial dis- trict, to be known as the district of Utah. It is divided into two divisions, to be known as the northern and central divisions. The northern division shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Boxelder, ('ache, Davis. Morgan. Rich, and Weber. The central division shall include the territory embraced on the date last mentioned in the counties of Beaver, Carbon, Emery, Garfield, Grand. Iron, Juab, Kane, Millard, Piute, Salt Lake, San .hum. San Pete. Sevier. Summit, Tooele, Uinta, Utah. Wa- satch, Washington, and Wayne. Terms of the district court 43 36 St. at L. 1087. For special 273. As to jurisdiction over pend- jurisdiction of the courts held ing cases, see O'Connor v. O'Connor, in this district over controver- 146 Fed. 994. See also Re Jackson, sies affecting the Giilf, Colorado k 40 Fed. 372: International Bank & Santa Fe Railroad Company, see 23 Trust Co. v. Scott. C. C. A., 159 Fed. St. at L.. ch. 17 7. § 8. p. 72; 23 St. 58. at L. ch. 170. § S. p. 975; Briscoe «a Act of May 20. 1012. v. Southern Kan. Ry. Co., 40 Fed. «b Act of Feb'y 5, 1913. § 66] VERMONT; VIRGINIA. 257 for the northern division shall be held at Ogden on the second Mondays in March and Septemher; and for the central division, at kSalt Lake City on the second Mondays in April and Xovem- her. The clerk of the court for said district shall maintain an office in charge of himself or a deputy at each of the places where the court is now required to be held in the district. "§ 110. The State of Vermont shall constitute one judicial district, to be known as the district of Vermont. Terms of the District court shall be held at Burlington on the fourth Tuesday in February; at Windsor on the third Tuesday in May; and at Rutland on the first Tuesday in October. And at Brattleboro on the third Tuesday in December. In each year one of the stated terms of the district court may, when adjourned, be ad- journed to meet at Montpelier and one at Newport; Provided, however, that suitable rooms and accommodations shall be fur- nished for the holdings of said court and for the use of the offi- cers of said court at Brattleboro free of expense to the Govern- ment of the United States until the public building provided for by Act of Congress shall be erected." 430 "§ 111. The State of Virginia is divided into two districts to be known as the eastern and western districts of Virginia. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten. in the counties of Aectfmac, Alexandria, Amelia, Brunswick, Caroline, Charles City, Chesterfield. Cu'lpeper, Dinwiddie. Elizabeth City, Kssex. Fairfax, Fauquier, Gloucester, Goochland. Greensville, Han- over, Henrico. Tsle of Wight, James City. King and Queen. King George, King William, Lancaster, Loudoin, Louisa, Lunenburg, Mathews. Mecklenburg, Middlesex. Xanse- mond, Xew Kent, Xorfolk, Northampton, Northumber- land, Xottoway. Orange, Powhatan, Prince Edward, Prince George, Prince William, Princess Anne, Rich- mond, Southampton, Spottsylvania, Stafford. Surry, Sus- sex, Warwick, Westmoreland, and York. Terms of the District court shall be held at Richmond on the first Mon- days in April and October; at Xorfolk on the first Mondays in May and November and at Alexandria, on the first Mondays in January and July. The western district shall include the the territory embraced on the first day of July, nineteen hun- dred and ten. in the comities of Alleghany, Albemarle, Ami- Fed. Prac. Vol. I —17. 258 OK1G1NAL JURISDICTION. [§ 66 Eerstj Appomattox, Augusta, Bath, Bedford, Bland, Boteeourt, Buchanan, Bncking'ham, Campbell, Carroll, Charlotte, Clarke, Craig, Cumberland, Dickenson, Floyd, Fluvanna, Franklin, Frederick, Giles. Grayson, Greene, Halifax, Henry, Highland, Lee, .Madison, Montgomery, Nelson, Page, Patrick, Pulaski, Pittsylvania, Rappahannock, Roanoke, Rockbridge, Rocking- ham. Russell, Scott, Shenandoah, Smyth, Tazewell, Warren, Washington, Wise, and Wythe. Terms of the district court shall be held at Lynchburg on the Tuesdays after the second Mondays in March and September; at Danville on the Tuesdays after the second Mondays in April and November; at Abingdon on the Tuesdays after the first Mondays in May and October; at Harrisonburg on the Tuesdays after the first Mondays in dune and December; at Charlottesville on the second Monday in January and the first Monday in July ; at Roanoke on the third Monday in February and the third Monday in June; and at Biff Stone Gap on the fourth Monday in January and the sec- ond Monday in August. The clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Lynchburg, at Danville, at Charlottesville, at Roanoke, at Abingdon, and at Big Stone Gap, which shall be kept open at all times for the transaction of the business of the court.*' 44 The court of admiralty in the Eastern District of Virginia can serve process of the Potomac River below Georgetown, between the District of Columbia and Alexandria County, Virginia. 45 "§ 112. The State of Washingtor^is divided into two districts, to be known as the eastern and western districts of Washington. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Spokane, Stevens, Ferry, Okanogan, Chelan, Grant, Douglas, Lincoln, and Adams, with the waters thereof, including all In- dian reservations within said counties, which shall constitute the northern division : also the territory embraced on the date last mentioned in the counties of Asotin, Garfield. Whitman, Columbia, Franklin, Walla Walla, Benton. Klickitat, Kittitas. «36 St. at L. 1087. As to the « Atcheson v. The Endless Chain boundary between Virginia and Dredge, 40 Fed. 253. West Virginia, see Bluefield Water Works & Imp. Co. v. Sanders, 63 Fed. 333. § 66] WASHINGTON. 259 and Yakima, with the waters thereof, meliiding all Indian res- ervations within said counties, which shall constitute the south- ern division of said district. Terms of the District court for the northern division shall be held at Spokane on the first Tuesdays in April and September ; for the southern division, at Walla Walla on the first Tuesdays in June and December, and at North Yakima on the first Tuesdays in May and October, The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of What- com, Skagit, Snohomish, King, San Juan, Island, Kitsap, Clal- lam, and Jefferson, with the waters thereof, including all In- dian reservations within said counties, which shall constitute the northern division; also the territory embraced on the date last mentioned in the counties of Pierce, Mason, Thurston, Che- halis, Pacific, Lewis, Wahkiakum, Cowlitz, Clarke, and Skam- ania, with the waters thereof, including all Indian reservations within said counties, which shall constitute the southern division of said district. Terms of the district court for the northern division shall be held at Bellingham on the first Tuesdays in April and October; at Seattle on the first Tuesdays in May and Xovember; and for the southern division, at Tacoma on the first Tuesdays hi February and July. The clerks of the courts for the eastern and western districts shall maintain an office in charge of himself or a deputy at each place in their respect- ive districts where terms of court are now required to be held.'' 46 The United States District Court and the State courts of Washington have jurisdiction concurrent with the courts, State and Federal, in the State of Oregon, in civil and criminal cases upon the Columbia River. 47 This includes jurisdiction over a floating structure used in connection with fish-nets in the river, although anchored by means of weights. 48 It has been said, that ordinarily when such a structure is on the Oregmi side of the river, the Federal court in Washington should, through comity, decline to grant an injunction vacating the same, but should leave the parties aggrieved to their remedy in the court sitting in the other State. 49 Where the court granted an injunction against the use of such a floating structure on 46.30 St. at L. 1087. 48 [bid. See supra under Oregon. W Columbia River Parkers' Ass'n. » Columbia River Packers' Ass'n, v. McGowan, 172 Fed. 091. v. McGowan, 172 Fed. 991. 260 ORIGINAL JURISDICTION. [§ 6G the Oregon side of the Columbia TCiver, under the erroneous be- lief that it was within the boundary of Washing-ton, it refused to dismiss the suit at the complainant's request so as to deprive the defendant of its remedy upon the injunction bond. 50 "§ 113. The State of West Virginia is divided into two dis- tricts, to be known as the northern and southern districts of West Virginia. The northern district shall include the terri- tory embraced on the first day of July, nineteen hundred and ten, in the counties of Hancock, Brooke, Ohio, Marshall, Tyler, Pleasants, Wood, Wirt, Ritchie, Doddridge, Wetzel, Monon- galia, Marion, Harrison, Lewis, Gilmer, Calhoun, 1'pshur, Bar- bour, Taylor, Preston, Tucker, Randolph, Pendleton, Hardy, Grant, Mineral, Hampshire, Morgan, Berkeley ,and .Jefferson, with the waters thereof. Terms of the District court for the northern district shall be held at Martinsburg, the first Tues- day of April and the third Tuesday of September ; at Clarks- burg, the second Tuesday of April and the first Tuesday of October; at Wheeling, the first Tuesday of May and the third Tuesday of October; at Philippi, the fourth Tuesday of May and first Tuesday of November; at Parkersburg, the second Tuesday of January and second Tuesday of June: Provided, That, a place for holding court at Philippi shall be furnished the Government free of cost by Barbour County until other provision is made therefor by law. The southern district shall include the territory embraced on the first day of July, nine- teen hundred and ten. in the counties of Jackson, Roane, Clay, Braxton, Webster, Nicholas, Pocahontas, Greenbrier, Fayette, Boone, Kanawha, Putnam, Mason, Cabell, Wayne, Lincoln, Logan, Mingo, Raleigh, Wyoming, McDowell, Mercer, Sum- mers, and Monroe, with the waters thereof. Terms of the dis- trict court for the southern district shall be held at Charleston on the first Tuesday in June and the third Tuesday in Novem- ber; at Huntington, on the first Tuesday in April and the first Tuesday after the third Monday in September; At Bluefield on the first Tuesdav in Mav and the third Tuesdav in October; at Addison on the first Tuesday in September; and at Lewis- burg on the second Tuesday in July: Provided, That ac- 50 Tbid. § 66] Wisconsin. 261- commodations for holding court at Addison shall be furnished without cost to the United States. 50a § 114. The State of Wisconsin is divided into two districts, to he known as the eastern and western districts of Wisconsin. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Brown, Calumet, Dodge, Door, Florence, Fond du Lac, Forest, Green Lake, Kenosha, Kewaunee, Langlade, Man- itowoc, Marinette, Marquette, Milwaukee, Oconto, Out- agamie, Ozaukee, Racine, Shawano, Sheboygan, Wal- worth, Washington, Waukesha, Waupaca, Waushara, and Winnebago. Terms of the District court for said dis- trict shall be held at Milwaukee on the first Mondays in January and October; at Oshkosh on the second Tuesday in June; and at Green Bay on the first Tuesday in April. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Adams, Ashland, Barron, Bayfield, Buffalo, Burnett, Chippe- wa, Clark, Columbia, Crawford, Dane, Dunn, Douglas, Eau Claire, Grant, Green. Iowa, Iron, Jackson, Jefferson, Juneau, La Crosse, Lafayette, Lincoln, Marathon, Monroe, Oneida, Pepin, Pierce, Polk, Portage, Price, Richland, Rock, Rusk, Saint Croix, Sauk, Sawyer, Taylor, Trempealeau, Vernon, Vi- las, Washburn, and Wood. Terms of the District court for said district shall be held at Madison on the first Tuesday in Decem- ber ; at Eau Claire on the first Tuesday in June; at La Crosse on the third Tuesday in September; and at Superior on the fourth Tuesday in January and the second Tuesday in July. The District court for each of said districts shall be open at all times for the purpose of hearing and deciding causes of admir- alty and maritime jurisdiction, so far as the same can be done without a jury. The clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Madison, at La Crosse, and at Superior, which shall be kept open at all times for the transaction of the business of the court. The marshal for the western district shall appoint a deputy marshal who shall reside and keep his office at Superior. All writs and other process, except criminal warrants, issued at Superior may be made returnable at Superior ; and the clerk at that place shall keep in his office the original records of all 50a Jud. Code, 36 St. at L. 3087, as am'd. Act of Mar. 23. 1913. 262 ORIGINAL JURISDICTION. [§ 66 actions, prosecutions, and special proceedings so commenced and pending' therein. Criminal warrants may be returned at any place within the district where court is held. Whenever warrants issued at Superior shall be returned at any other place, the clerk of the court wherein the warrant is returned, shall certify the same, under the seal of the court, together with the plea and other proceedings had thereon, and the determina- tion of the court upon such plea or proceedings, with all papers and orders filed in reference thereto, to the clerk of the court at Superior; and the clerk at Superior shall enter upon his records a minute of the proceedings had upon the return of said warrant, certified as aforesaid. All causes and proceedings in- stituted in the court at Superior shall be tried therein, unless by consent of the parties, or upon the order of the court, they are transferred to another place for trial.'' 51 It was held : that the District Court for the Eastern District of Wisconsin had no jurisdiction of an indictment for assault, committed on a vessel on Lake Huron, within the boundary of the jurisdiction of the Eastern District of Michigan. 52 "§ 115. The State of Wyoming and the Yellowstone Na- tional Park shall constitute one judicial district, to be known as the district of Wyoming. Terms of the district court for said district shall be held at Cheyenne on the second Mondays in May and November ; at Evanston on the second Tuesdav in July; and at Lander on the first Monday in October; and the said court shall hold one session annually at Sheridan, and in said national park, on such dates as the court may order. The marshal and clerk of the said court shall each, respectively, appoint at least one deputy to reside at Evanston, and one to reside at Lander, unless he himself shall reside there, and shall also maintain an office at each of those places: Provided, That until a public building is provided at Lander, suitable ac- commodations for holding court in said town shall be fur- nished the Government at an expense not to exceed three hun- dred dollars annually. The marshal of the United States for the said district may appoint one or more deputy marshals for the Yellowstone National Park, who shall reside in said park." 53 "§ 26. The District court for tie district of Wyom- ing shall have jurisdiction of all felonies committed within the 51 3G St. at L. 1087. 53 36 St. at L. 1087. 52 U. S. v. Peterson. 64 Fed. 145. § 67] DISTRICT COUKT OF ALASKA. 263 Yellowstone National Park and appellate jurisdiction of judg- ments in cases of convictions before the commissioner author- ized to be appointed under section five of an Act entitled 'An Act to protect the birds and animals in Yellowstone National Park, and to punish crimes in said Park, and for other pur- poses/ approved May seventh, eighteen hundred and ninety- four." M "It seems that the territorial limits of these districts, as fixed by the statute, are unaffected by any subsequent State legislation authorizing new counties and changing county lines. 55 § 67. Jurisdiction of District Court of Alaska. In Alaska there is a District Court with general jurisdiction in civil, crimi- nal, equity and admiralty cases. The court consists of three divisions, each of which is held by a different judge with a sepa- rate clerk, district attorney and marshal. Jurisdiction of each division extends over the entire territory; but the court, where an action is pending, may change the place of trial from one place to another in the same or another division for local prejudice, for the convenience of witnesses, disqualification of the division judge or the convenience of the defendant, and in criminal prosecution also to save expense to the United States, where the defendant will not be prejudiced thereby. 1 The judge of each division is required to divide his division into precincts, and is authorized to alter the same and establish new precincts from time to time, as public convenience may require. 2 He is also required to appoint commissioners and to remove such com- missioners, at pleasure. 3 These commissioners have within their respective precincts the jurisdiction and powers of the commissioners of the District Courts of the United States and of notaries public. They are ex officio justices of the peace, re- corders and probate judges. They have also power to grant writs of habeas corpus, returnable before a district judge, for the purpose of inquiring into the cause of restraint of liberty. 4 It was held: that an order abolishing a precinct, providing that the territory embraced therein should become a part of an- other precinct, accepting the resignation of the commissioner 54 ibid. § 70. 55 Hyde v. Victoria Land Co., 1.25 2 ibid. Fed. 970. 3 Ibid. § 67. 123 St. at L. 24; 30 St. 4 Act of June 6. 1900. 31 St. at L. at L. .545; 31 St. at L. 321. The 321. § 6. This act contains the boundaries of these divisions are Code of Civil Procedure for Alaska, described supra, § 66, paragraph 264 ORIGINAL JURISDICTION. [§ 68 for the precinct abolished, and directing' him to "deliver the record and property pertaining to his office" to the commissioner of the new district, with which the former one was consolidated ; constituted the commissioner of the latter precinct the successor in office of the former commissioner of that abolished, and trans- ferred to him all the probate cases pending in the former pre- cinct, with power to proceed in the same. 5 The practice in Alaska is regulated by a Code of Civil Procedure for Alaska 6 and a Criminal Code. 7 The common law is also in force in ihis territory. 8 The inhabitants of Alaska, at least when they are not members of the Indian tribes there, have the right, when charged with crime, to a trial by jury of twelve, before they can be convicted. 9 § 68. Jurisdiction of the Supreme Court of the District of Columbia. The Supreme Court of the District of Columbia has in general the same civil jurisdiction that was vested in the General Court, or the Supreme Court of Chancery, of Mary- land, on February 27th, 1801. 1 It has also the same civil juris- diction as the District Courts of the United States, 2 with the possible exception of admiralty, and including jurisdiction in bankruptcy, when the bankrupt resides in the district. 3 It has no jurisdiction of suits against persons not inhabitants of the district, except in the same way that nonresidents were pro- ceeded against in the General Court or Supreme Court of Chancery of Maryland on May 3, 1802, and where such juris- diction is conferred by special statutes. 4 It has jurisdiction of applications for divorce. 5 It has jurisdiction to issue writs of For the Alaska Criminal Code, see Act of March 3, 1899, 30 St. at L. 1253. For the former statute, see the Organic Act of May 17. 1S84, 23 St. at L. 24. It has been held that such commissioners have no ju- risdiction of larceny committed in a ship, steamboat or other vessel. Ex parte Kie, 46 Fed. 485. As to pro- bate jurisdiction, see Ex parte Em- ma, 48 Fed. 211. 5 Cheney v. Alaska Treadwell Gold Min. Co., C. C. A., 148 Fed. 808. 6 31 St. at L. 321. 7 30 St. at L. 253. Act of March 3, 1899. 8 The common law is in force in this territory. McCloskey v. Pacific Coast Co.. C. C. A., 22 L.R.A.fN.S.) 673, 160 Fed. 794. 9 Rassmussen v. U. S., 197 U. S. 516. 25 Sup. Ct. 514. 49 L. ed. 863. § 68. ID. C. Code, § 1; 31 St. at L. 1189. 2 [bid. 3 R. S. D. C. § 765, 19 St. at L. 253. 254. 4 1). C. Code, §§ 105-112. 32 St. at L. 520. 5 D. C. Code, § 963. § 68] SUPREME COURT OF DISTRICT OF COLUMBIA. 265 mandamus , prohibition and certiorari which cannot lie issued by the District Courts of the United States. 6 It may thus issue the writ of mandamus addressed to administrative officers of the United States within the district. 7 It might he held that it has power to review by certiorari in a proper case a decision of a 'quasi judicial nature made by an executive officer of the [Tinted Slates at Washington ; 8 and to issue writs of prohibition directed to inferior courts and to public boards and officers acting in a quasi judicial capacity within the district/ and writs of quo warranto to determine the right to hold an office of the United States within the district. 10 The practice in this court is regu- lated by a code of procedure, enacted by Congress, which recog- nizes the distinction between common law and equity. 11 Before the enactment of that code, the court, had power to make rules for its practice at common law and in equity; 12 including a rule that in an action on contract where the plaintiff or his agent files an affidavit setting forth his cause of action and the sum claimed, exclusive of set-off and just grounds of defense, and serves the defendant with copies of the same and of his de- claration, he shall be entitled to judgment, unless the defendant filed with his plea in bar a sufficient affidavit of defense, which specifically states in precise and distinct terms grounds of a defense in whole or in part. 13 6 32 St. at L. 520. 1 I). C. Code § (58, 31 St. at L. 118!!; U. S. v. Schurz, 102 U. S. 378. 394, 26 L. ed. 107. 171: Ken- dall v. U. S., 12 Pet. r)24, 9 L. ed. 1181; Decatur v. Paulding, 14 Pet. 497, 10 L. ed. 559; Kendall v. Stokes, 3 How. 87, 11 L. ed. 506; Cbm'r of Patents v. Whiteley, 4 Wall. 522, 18 L. ed. 335: U. S. ex rel. Miller v. Black. 128 U. S. 40, 50, 32 L. ed. 354; U. S. ex rel. Redfield v. Windom, 137 U. S. 636, 34 L. ed. 811 ; U. S. ex rel. Boynton v. Blaine, 139 U. S. 306. 35 L. ed. 183; Rob- erts v. U. S., 176 U. S. 221, 44 L. ed. 443; U. S. ex rel. Riverside Oil Co. v. Hitchcock, 190 U. S. 316. 47 L. ed. 1074. See infra, § 457. 8 Alexandria C. R. & Br. Co. v. District of Columbia, 5 Mackey (D. C.) 376; Wood v. District of Colum- bia, 6 Mackey (D. C.) 142; Foster & Abbott on the Federal Income Tax. 238. See infra, % 460. 9 Smith v. Whitney, 116 U. S. 167, 173, 29 L. ed. 601, 602. See infra, § 456. 10 See the discussion in the Elec- toral Commission, cited, infra, § 468. 1131 St. at L. 1189. 12 Fidelity & Deposit Co. v. U. S.. 187 U. S. 315, 47 L. ed. 194. 13 Ibid. It is doubtful whether the Equity Pules prescribed by the Supreme Court of the United States apply to this court. The judges thereof are preparing new rules sub- stantially in accordance with these, which will probably lie in force be- fore this work is through the press. 2(jQ ORIGINAL JURISDICTION. [§ G9 § 69. Jurisdiction of the Court of Appeals of the District of Columbia. The appellate jurisdiction of the Court of Appeals of the District of Columbia is as follows: "Any party aggrieved by any final order, judgment, or decree of the supreme court of the District of Columbia, or of any justice thereof, in- cluding any final order or judgment in any case heard on appeal from a justice of the peace, may appeal therefrom to the said court of appeals ; and upon such appeal the court of appeals shall review such order, judgment, or decree, and affirm, re- verse, or modify the same as shall be just, except as provided in the following sections. Appeals shall also be al- lowed to said court of appeals from all interlocutory orders of the supreme court of the District of. Columbia, or by any justice thereof, whereby the possession of property is changed or affected, such as orders for the appointment of receivers, granting injunctions, dissolving writs of attachment, and the like; and also from any other interlocutory order, in the discre- tion of the said court of appeals, whenever it is made to appear to said court upon petition that it will be in the interest of jus- tice to allow such appeal." 1 This court has further jurisdiction of appeals from the decisions of the Commissioner of Patents refusing to issue or to reissue patents, 2 and from the decision of that commissioner in any interference case. 3 It has also juris- diction of appeals from the decisions of the commissioner upon an application for the registration of a trade-mark, or for the cancellation of such a registration, or upon an interference as to a trademark. 4 In the last class of cases, the appeal may be taken by an applicant for a registration, or a party to an inter- ference, or a party who has filed opposition to a registration, or a party to an application for the cancellation of a registration. 5 In these classes of cases, "when an appeal is taken to the [Court of Appeals] of the District of Columbia, the ap- § 69. 1 D. C. Code, § 226. 27 St. 3 D. C. Code, § 228, 27 St. at L. at L. 434. Comp. St. 573, 4 Fed. St. 436. § 9, Comp. St. 339], 5 Fed. St. Ann. 466. Ann. 502; McKnight v. Metal Vo- 2 D. C. Code. § 228, 27 St. at L. Utilization Co., 128 Fed. 51. 436, § 9, Comp. St. 3391. 5 Fed. St. * 34 St. at L. 1251. § 9; Pierce's Ann. 502. Pierce's Fed. Code, § 7336, Fed. Code, § 8815; McKnight v. D. C. R. S.. § 780; U. S.R. S., § 4912, Metal Volatilization Co., 128 Fed. 5 Fed. St. Ann. 505; Pierce's Fed. 51. Code. § 8777; McKniglit v. Metal 6 Ibid. Volatilization Co., 128 Fed. 51. § 69] COURT OF APPEALS OF DISTRICT OF COLUMBIA. 267 pellant shall give notice thereof to the Commissioner, and file in the Patent-Office, within such time as the commis- sioner shall appoint, his reasons of appeal, specifically set forth in writing." 6 "The court shall, before hearing such appeal, give notice to the Commissioner of the time and place of the hearing, and on receiving such notice the Com- missioner shall give notice of such time and place in such manner as the court may prescribe, to all parties who appear to be interested therein. The party appealing shall lay before the court certified copies of all the original papers and evidence in the case, and the Commissioner shall furnish the court with the grounds of his decision, fully set forth in writing, touching all the points involved by the reasons of appeal. And at the request of any party interested, or of the court, the Commis- sioner and the examiners may be examined under oath, in ex- planation of the principles of the thing for which a patent is demanded/' 7 "The court, on petition, shall hear and determine such appeal, and revise the decision appealed from in a summary way, on the evidence preduced before the Commissioner, at such early and convenient time as the court may appoint ; and the revision shall be confined to the points set forth in the rea- sons of appeal. After hearing the case the court shall return to the Commissioner a certificate of its proceedings and de- cision, which shall be entered of record in the Patent-Office, and shall govern the further proceedings in the case. But no opin- ion or decision of the court in any such case shall preclude any person interested from the right to contest the validity of such patent in any court wherein the same may be called in ques- tion. " 8 The statute authorizing such appeals is constitutional." It does not repeal 10 the prior statutes authorizing subsequent bill in equity to compel the issue of patents 11 and for relief against interfering patents, 12 which are discussed in a subse- 6T T . S. R. S., § 4912, 5 Fed. St. Fed. 51; Dover v. Greenwood, 14.1 Ann. 505, Pierce's Fed. Code, § 8777. Fed. 136. 7 1'. S. R. S.. § 4913, 5 Fed. St. »U, S. R. S.. § 4915. 5 Fed. St. Ann. 500, Pierce's Fed. Code; § 8778. Ann. 507; Pierce's Fed. Code, 8 U. S. R. S.. § 4914, Pierce's Fed. § 8780. Code, § 8779. 12 U. S. R. S., § 4918, 5 Fed. St. 9 1'. S. v. Duell, 172 U. S. 576. Ann. 526. 10 McKnight v. Metal V. Co., 128 9 208 ORIGINAL JURISDICTION. [§ 70 quent section of this work. 13 Upon appeals to the Court of Appeals from the District of Columbia in interference cases, the question in issue is merely the priority between the two inventors, and whether either of them was the original defend- ant is not to he determined. 14 § 70. Jurisdiction of District Court of Porto Rico. The District Court of the United States for Porto Rico has the ordi- nary Jurisdiction of the District Courts of the United States. It has jurisdiction over all controversies where the parties, or cither of them-, are citizens of the United States, or citizens or subjects of a foreign State or States ; wherein the matter in dis- pute exceeds, exclusive of interest or costs, the sum or value of $1,000. 1 This includes a suit between two subjects of a foreign government. 2 It has not jurisdiction over controversies in which any litigant on either side is a citizen of the United States or a subject of a foreign country, such as a suit where the sole plaintiff is a citizen of Porto Rico, and one or more of the defendants are citizens of the United States or aliens. 3 The laws of the United States relating to appeals, writs of error and certiorari which apply to the Supreme Courts of the Territories and those relating to the removal of causes and other matters and proceedings as between the courts of the United States and the courts of the several States, govern in such matters and persons, as between the District Court of the United States and the courts of Porto Rico. 4 The Supreme and District courts of Porto Rico, and the judges thereof, may grant writs of habeas corpus, in all cases in which the same can be made by the judges of the District Courts of the United States. 5 The District Court of the United States for Porto Rico is not a con- stitutional court of the United States. 6 Its authority emanates wholly from Congress, under the sanction of its power to govern territory occupying the relation that exists between Porto Rico and the United States. 7 When Congress has not legislated upon 13 Infra. § 147. 3 Quebas v. Cuebas. 223 U. S. 376, WWheaton v. Kendall. 85 Fed. 56 L. ed. 476. 'till. 4 31 St. at L. 84, 85, 953. § 70. 13] St. at L. 77. St. 85. 5 31 St. at L. 86. 2 £)rtega v. Darga, 202 U. S. 339, jjRoipeu v. Todd. 206 U. S. 358, 50 L. cd. 1055. :,1 L. ed. 1093. 1 Ibid. § 71] DISTRICT COURT OF HAWAII. 269 the subject, the local law of Porto Rico remains in force." The statute laws of the United States not locally inapplicable have the same force and effect in Porto Rico as in the United States, except the revenue law. 9 It is subject to the provisions of the Revised Statutes 10 providing for the surrender of fugitive criminals by Governors of Territories. 11 The Employers' Lia- bility Act 12 and the Safety Appliance Acts, 13 the there in force. The sections of the Revised Statutes regulating- bills of excep- tions apply to the District ( 1 ourt of the United States for Porto Rico. 14 It is undetermined whether the provisions of the Code of Civil Procedure of Porto Rico upon that subject apply to that court. 15 § 71. Jurisdiction of District Court of Hawaii. The Dis- trict Court of Hawaii has jurisdiction of all cases cognizable in a District Court of the United States, and it proceeds therein in the same manner as a District Court of the United States. The laws of the United States relating to juries and jury trials are applicable to this court. The laws of the United States, relating to appeals, writs of error, removal of causes, and other matters and proceedings, as between the State and Federal courts, govern in such matters and proceedings between the courts of the United States and the courts of the Territory of Hawaii, 1 Until the Act of June 14, 1900, which formally incorporated the Territory of Hawaii, 2 there was no right to a grand jury, nor to the unanimous verdict of a petit jury, in Hawaii. 3 8 ibid. 14 See U. S. R. S., § 9*53 j Guar- 9 Act of April 12, 1900, 31 St. at dian Assurance Co. v. Quintana, 227 L. 7780, Ch. 191, § 14. U. S. 100. 57 L. ed. — . 10 U. S. R. S., § 5278. 15 Ibid., 227 U. S. 100, 105, 57 L. HKopel v. Bingham, 211 U. S. ed. — . 4G8, 53 L. ed. 286. § 71. 131 St. at L. 158. 12 Act of April 22, 1908, 35 St. at 2 31 St. at L. 141. See §§ 5 and L. 65. 291 Ch. 149; Am. R. R..Co. 83. of Porto Rico v. Birch, 224 U. S. 3 Hawaii v. Mankichi. 190 U. S. 547. 56 L. ed. 879. 197, 23 Sup. Ct. 787, 47 L. ed. 1016. 13 Act of March 2. 1893, 27 St. See Dorr v. U. S.. 195 0. S. 138, 24 at L. 531, Ch. 196; Act of April , Sup. Ct. 808, 49 L. ed. 129. 1896, 29 St. at L. 85: Act of March 2, 1903, St. at L. ; Am. R. R. Co. of Porto Rico v. Didricksen, 227 U. S. 145, 57 L. ed. — . 270 ORIGINAL JURISDICTION. [§ T2 § 72. Jurisdiction of the Supreme Court and other courts of the Philippine Islands. The Acts of the Philippine Commission provide: "Courts of justice shall be maintained in every province in the Philippine Islands in which civil govern- ment is established; which courts shall be open for the trial of all causes proper for their cognizance, and justice shall be therein impartially administered without corruption or unneces- sary delay." * "The judicial power of the Government of the Philippine Islands shall be vested in a Supreme Court, Courts of First Instance, and courts of justices of the peace, together with snch special jurisdictions of municipal courts and other special tribunals as now are or hereafter may be authorized by law. The two courts first named shall be courts of record," 2 "The interlocutory jurisdiction referred to in the previous sec- tions of this chapter shall be held to include the hearing of all motions for appointment of receiver, for temporary injunction- and for all other orders of the court which are not final in then- character and do not involve a decision of the case pending upon its merits. The interlocutory jurisdiction shall also include the hearing of petitions for the writ of habeas corpus, applications for bail, the holding of preliminary examinations, and such orders in criminal causes as do not involve a final sentence of conviction or judgment of acquittal. The interlocutory juris- diction shall also include the power of appointing notaries public, as provided in section thirty-three hundred and seven ty- § 72. 1§ 2160, Compilation Acts of the Philippine Commission 1008, Part VIII. the Judiciary, Title 39, Gh. 207. 2§ 2161, Compilation Acts of the 1'hilippine Commission 1008, Part VIII. the Judiciary, Title 30, Ct. 207. See Act of July 1, 1902 (32 St. at L. 691, 695). ''Chap. 1369 — An Act temporarily to provide for the administration of the affairs of civil government in the Philippine islands, and for other purposes." "§ 9. That the Supreme Court and the court of first instance of the Philippine Islands shall possess and exercise jurisdiction as heretofore provided and such additional juris- diction as shall hereafter be pre- scribed by the government of said Islands, subject to the power of said government to change the practice and method of procedure. The mu- nicipal courts of said Islands shall possess and exercise jurisdiction as heretofore provided by the Phillip- pine Commission, subject in all mat- ters to such alteration and amend- ment as may be hereafter enacted by law." § 72] COURTS OF THE PHILIPPINES. 271 seven hereof." 3 "The Supreme Court shall consist of a Chief Justice and six associate judges, any five of whom when con- vened shall form a quorum, and may transact any of the busi- ness of the court; but in the absence of a quorum the member or members present may adjourn the court from time to time with the same effect as if all were present. The concurrence of at least four members of the court shall be necessary to pro- nounce a judgment. The word 'judges 7 or "judges of the Supreme Court when used in this title shall include the Chief .Justice." 4 "The Supreme Court shall sit in banc as a body composed of all its members, and the Chief Justice shall be the presiding officer thereof. In case of his absence at a session of the court, the judge present next in seniority to the Chief Justice shall preside. The seniority of the associate judges shall be determined by the dates of their respective commissions." 5 'The Supreme Court shall have original jurisdiction to issue writs of mandamus, certiorari, prohibition, habeas corpus, and quo warranto in the cases and in the manner prescribed in title forty-one hereof, and to hear and determine the controversies thus brought before it, and in other cases provided by law." "The Supreme Court shall have appellate jurisdiction of all actions and special proceedings properly brought to it from Courts of First Instance, and from other tribunals from whose judgment the law shall specially provide an appeal to the Su- preme Court." 7 "The Supreme Court shall have power to issue writs of certiorari and all other auxiliary writs and pro- cess necessary to the complete exercise of its original or appel- late jurisdiction." 8 "There shall be in each province a Court of 3§ 2164 {d), Compilation Acts of the Philippine Commission 1008, Part VIII. the Judiciary, Title 39, Ch. 207. 4§ 2169, Compilation Acts of the Philippine Commission 1908, Part VIII. the Judiciary, Title 39, Ch. 208. 5§ 2171, Compilation Acts of the Philippine Commission 1908. Part VIII. the Judiciary. Title 39, Ch. 208. 6§ 2177, Compilation Acts of the Philippine Commission 1908, Part VIII. the Judiciary, Title 39, Ch. 208. See chapters 252 and 253 and cases there cited. 7 § 2178, Compilation Acts of the Philippine Commission 1908, Part VIII. the Judiciary, Title 39, Ch. 208. U. S. v. Atien/.a, 1 Phil. Rep. 736. See, also, chapter 251 and cases there cited. 8§ 2179, Compilation Ms of the Philippine Commission 1908. Part VIII. the Judiciary, Title 39, Ch. 208. 272 ORIGIN" AI. JURISDICTION. [§ 72 First Instance, in each of which a judge shall preside. Each judge shall preside in all Courts of First Instance in his judi- cial district, which -hall consist of such provinces as shall be by law designated to constitute such judicial district. But this section shall not apply to the city of Manila." 9 "There shall he one Court of First Instance for the city of Manila, with three judges who shall preside in such court in separate court rooms. The judges of said court may be removed by the Gov- ernor-General, by and with the approval of the Commission. Actions brought in the Cottrt of First Instance for the city of Manila shall be equally apportioned for trial among the judges thereof in accordance with rules to be made by the judges of the Supreme Court. Any action apportioned to one judge may be tried by another judge when more convenient to the judges.'' 10 "The jurisdiction of Courts of First Instance shall be of two kinds: (a\ Original: and (b) Appellate."' 11 "Courts of First Instance shall have original jurisdiction: (a) In all civil actions in which the subject of litigation is not capable of pecuniary estimation: (b ) In all civil actions which involve the title to or possession of real property, or any interest therein, or the legality of any tax, impost, or assessment, except actions of forcible entry into and detainer of lands or buildings, original jurisdiction of which is by law conferred upon courts of justice of the peace; (c) In all case- in which the demand, exclusive of interest or the value of the property in controversy, amount- to two hundred pesos or more: (d) In all actions in admiralty and maritime jurisdiction, irrespective of the value of the prop- erty in controversy or the amount of the demand; (e) In all matters of probate, both of testate and intestate estates, appoint- ment of guardians, trustees, and receivers, and in all actions for annulment of marriage and in all such special cases and proceedings a> are not otherwise provided for; (f) In all crimi- nal cases in which a penalty of more than six months' imprison- ment or a fine exceeding two hundred pesos may be imposed ; 9§ 2108. Compilation Acts of the 209. Garcia v. Ambler. 4 Phil. Rep. Philippine Commission 190S, Part 81. VIII. the Judiciary. Title 39, Ch. n § 2204. Compilation Acts of the 209. Philippine Commission 190S, Part 10 § 2199, Compilation Acts of the VITI - the Judiciary, Title 39, Ch. Philippine Commission 1908. Part 209 - VIII. the Judiciary, Title 39, Ch. § 72] COURTS OF THE PHILIPPINES. 27^ (g) Said courts and their Judges, or any of them, shall have power to issue writs of injunction!, mandamus, certiorari, pro- hibition, quo warranto, and habeas corpus in their respective provinces and districts, in the manner provided in title fortv- one hereof; (Ji ) Of all crimes and offenses committed on the high seas or beyond the jurisdiction of any country, or with- in any of the navigable waters of the Philippine Islands, on board a ship or water craft of any kind registered or licensed in the Philippine Islands in accordance with the laws thereof. The jurisdiction herein conferred may be exercised by the Court of First Instance in any province into which the ship or water craft upon which the crime or offense was committed shall come after the commission thereof: Provided, neverthe- less, That the court first lawfully taking cognizance thereof shall have jurisdiction of the same to the exclusion of all other courts in the Philippine Islands," 12 "Courts of First Instance shall have appellate jurisdiction over all causes aris- ing in justices' and other inferior courts in their respective pro- vinces/ 1 13 "A judge of First Instance shall have power to issue writs of injunction and to make orders appointing re- ceivers in causes pending in the Court of First Instance with- in his district, and all other preliminary and interlocutory orders, when he is within the district but without the province; and to hear and determine, when within the district but without the province, any interlocutory motion or issue after due and 12 § 2205, Compilation Acts of the mentioned in this section. The Philippine Commission 1908, Part phrase "admiralty and maritime ju- VITI. the Judiciary, Title .31). Ch. risdiction" did not put in force in 200; U. S. v. Sweet. 1 Phil. Rep. 18; the Philippines the law, practice, Legarda v. Valdez, 1 Phil. Rep. 14G; and procedure in force in admiralty U. S. v. Fowler, 1 Phil. Rep. 614; courts in the United States, Ivan- U. S. v. Dasal, 3 Phil. Rep. G; Bene- cich v. Odlin. 1 Phil. Rep. 284: dicto v. De la Rama, 3 Phil. Rep. Heath v. Steamer ,- San Nicholas.'* 34; Springer v. Odlin, 3 Phil. Rep. 7 l'hil. Rep. 532. For annulment of 344: Artacho v. Provincial Board of marriage and divorce see Benedicto Pangasinan, 4 Phil. Rep. 070; Oeh- v. De la Rama, 3 Phil. Pep. 34; lers v. Hartwig, 5 Phil. Rep. 487; [banez v. Ortiz. 5 Phil. Rep. 325. Castano v. Lobingier, 7 Phil. Rep. 13 § 2200. Compilation Acts of the 91; Rafferty v. Judge of First Tn- Philippine Commission 1908, Part stance. 7 Phil. Rep. 104. See, also, VI II. the Judiciary, Title 39, Ch. chapters 238 and 250, and cases 209. there cited under different subjects Fed. Prac. Vol. I.— 18. 274 ORIGINAL JURISDICTION. [§ 72 reasonable notice to the parties ; but all final hearings shall be had within the province unless the parties by their counsel consent in writing to a hearing at a place not within the province. On the filing of a petition for the writ of habeas corpus or for release upon bail or reduction of bail in any Court of First Instance, the hearing may be tried at any place in the judicial district which the judge shall deem convenient. All criminal trials must be tried at the place designated in the law as the place at which the court having jurisdiction thereof shall be held, unless the Secretary of Finance and Justice shall otherwise order, as provided in section twenty-two hundred and twenty-seven hereof." 14 "In every province in which there now is, or shall hereafter be established,, a Court of First Instance, courts of justices of the peace shall- be main- tained in every organized municipality." 15 ''In all civil actions including those mentioned in sections twenty-six hundred and ninety to twenty-seven hundred, inclusive, hereof, arising in his municipality and not exclusively cognizable by the Court of First Instance, the justice of the peace shall have exclusive original jurisdiction where the value of the subject-matter or amount of the demand does not exceed two hundred pesos, ex- clusive of interest and costs; and where such value or demand exceeds two hundred pesos but is less than six hundred pesas the justice of the peace shall have jurisdiction concurrent with the Court of First Instance. In forcible entry and detainer pro- ceedings the justice shall have original jurisdiction but he may receive evidence upon the question of title therein solely for the purpose of determining character and extent of possession and damages for detention. A justice of the peace shall have no jurisdiction to adjudicate questions of title to real estate or any interest therein, and whenever a case requiring such adjudica- tion is brought before him it shall be his duty, upon discovering the same, to suspend further proceedings therein and certify the cause forthwith to the Court of First Instance. The juris- diction of a justice of the peace shall not extend to civil actions 14 § 2229, Compilation Acts of the 15 § 2234, Compilation Acts of the Philippine Commission 1008. Part Philippine Commission 1908, Part VIII. the Judiciary, Title 39, Ch. VIII. the Judiciary. Title 39, Ch. 209. V. S. v. Tan Bauco. 4 Phil. 210. Pep. 325. § 72] COURTS OF THE PHILIPPINES. 275 in which the subject of litigation is not capable of pecuniary estimation, except in forcible entry and detainer cases; nor to those which involve the legality of any tax, impost or assess- ment; nor to actions involving admiralty or maritime juris- diction ; nor to matters of probate, the appointment of guar- diens, trustees, or receivers ; nor to actions for annulment of marriage." 16 "The territorial jurisdiction of a justice of the peace, except in the case of ex officio justices and in other special cases provided by existing law, shall be coextensive with his municipality, and the civil process of his court shall not run beyond the same except to summon a defendant impleaded with one who resides and has been served therein as provided in section twenty-four hundred and seventy-nine hereof. Forcible entry and detainer actions shall be brought in the municipality where the subject-mater thereof is situated. All other proceedings shall be instituted in the municipality where- in a defendant resides or may be served with summons."' 17 "Justices of the peace, except in the city of Manila, shall have original jurisdiction to try parties charged with misdemeanors, offenses, and infractions of municipal ordinances, arising with- in the municipality, in which the penalty provided by law does not exceed six months' imprisonment or a fine of two hundred pesos, or both such imprisonment and fine." 18 "Concurrent jurisdiction is hereby conferred upon the justices of the peace for the municipalities of Iloilo and Buenavista over causes aris- ing in the barrio now known as Sanao, on the Island of Guimaras, in the Province of Iloilo, anything in existing law to the contrary notwithstanding: Provided, however, That the justice of the peace first acquiring jurisdiction over any cause shall have exclusive jurisdiction thereof." 19 "The governor of the Province of Palawan is hereby made ex officio justice of the peace with authority to perform all the duties of a justice of the peace throughout the whole of the Province of 16 § 2237, Compilation Acts of the 18 § 2239, Compilation Acts of the riiilippine Commission 1908, Part Philippine Commission 190S, Part VIII. the Judiciary, Title 39, Ch. VIII. the Judiciary, Title 39, Ch. 210. 210. 17 § 2238, Compilation Acts of the 19 § 2240, Compilation Acts of the Philippine Commission 1908, Part Philippine Commission 1908, Part VIII. the Judiciary, Title 39, Ch. VIII. the Judiciary, Title 39, Ch. 210. 210. 276 ORIGINAL JURISDICTION. [§ 72 Palawan. His jurisdiction as justice of the peace shall be concurrent in every municipality and in every part of said province with that of the proper justice of the peace of the municipality. The fees that would accrue to a justice 1 of the peace shall, in all cases where the provincial governor acts as justice of the peace, be covered into the treasury of the province for the general purposes of the province." 20 ''The governor of the Province of Mindoro is hereby made ex officio justice of the peace with authority to perform all the duties of a justice of the peace throughout the whole of the Province of Mindoro. His jurisdiction as justice of the peace shall be concurrent in every municipality and in every part of said province with that of the proper justice of the peace of the municipality. The fees that would accrue to a justice of the peace shall, in all cases where the provincial governor acts as justice of the peace, be covered into the treasury of the province for the general purposes of the province." 21 "The Governor-General is authorized, with the advice and approval of the Philippine Commission, to appoint a justice of the peace and auxiliary justice of the peace, from time to time, for the Island of Basilan, notwithstanding said island has been included within the municipality of Zamboanga by Act Numbered Twenty-one of the legislative council of the Moro Province. The justice of the peace and auxiliary justice of the peace appointed by virtue of this section shall have jurisdiction throughout the Island of Basilan to the same extent and with the same effect as though the Island of Basilan constituted a regular municipality. The justice of the peace and auxiliary justice of the peace for the municipality of Zamboanga shall not have jurisdiction within the Island of Basilan." 22 The commission has also passed statutes regulating the practice in these courts in civil 23 and criminal procedure. 24 The power to enact such 20 § 2241, Compilation Acts of the 22 § 2243, Compilation Acts of the Philippine Commission 1908, Part Philippine Commission 1908, Part VIII, the Judiciary, Title 39, Ch. VIII. the Judiciary, Title 39, Ch. 210. 210. 21 § 2242, Compilation Acts of the 23 Ibid. Title 41, chaps. 29-275, Philippine Commission 1908. Part §§ 2403, 3248. VHI. the Judiciary, Title 39, Ch. 24 ibid. Title 42, chaps. 276-290, 210. § 3249, 3375. § 73] UNITED STATES COURT FOI? CHINA. 277 legislation is given by the Act of July 1, 1002. 25 The Ad of February 6, 1905, after providing for the guarantee by the Philippine Government of the payment of interest on certain railroad bonds and of the security for the same by lien upon the railroad and the company's other property, subsequent to the mortgage, under -which the bonds were issued, continues "The Supreme Court of the Philippine Islands shall have original and exclusive jurisdiction in all actions, proceedings or suits at law or in equity brought by the Philippine government against any person or corporation involving the construction of this section or any right existing under, duty enjoined, or act prohibited by said section or any contract made in pur- suance thereof; and jurisdiction is hereby vested in the supreme court to make such order, to enter such judgment or decree and to take such proceedings in enforcement thereof as may be proper. During the vacations of said court the chief jur- tice or any judge thereof shall have all the power to grant restraining orders, orders of injunction, to appoint receivers, or to do any other act under authority herein granted, that a judge of a court of general jurisdiction may do in the vacation of court." 26 It also has jurisdiction to determine adverse claims to land. 27 The Constitution of the United States does not guarantee to the inhabitants of the Philippine Islands the right to trial by jury. 28 It has been said that this right cannot exist until these Islands have been by Congress formally in- corporated into the United States. 29 § 73. Jurisdiction of the United States Court for China. The United States Court for China has exclusive jurisdiction in all cases and judicial proceedings whereof jurisdiction might on June :>0tli, 190G, 1 "be exercised by United States consuls and ministers by law and by virtue of treaties between the United States and China, except in so far as the said juris- 25.S2 St. at L. 691. 605; un- 29 Dorr v. U. S., 395 U. S. 138, changed in this respect by Act of '149, 24 Sup. Ct. S08, 49 L. ed. 129. February 6, 1905, Ch. 453, 33 St. at § 73. l This jurisdiction is shown L. 689, 691: Quoted supra, note 2. in V. S. R. S.j §§ 4083-4130, quoted 26 Ch. 453, § 4, 33 St. at L. 089, infra; § 74, and the treaties with 091. China of Dec. 31, 184G, by Malley's 27 Ibid. § 39. Treaties, I, 196. 28 Dorr v. U. S.. 195 U. S. 138, 24 Sup. Ct. 808, 49 L. ed. 129. 278 OBIGINAL .TUKISDK TloX. [§ 73 • I iction is qualified by section two of this act. The said court shall hold sessions at Shanghai, China, and shall also hold sessions at the cities of Canton, Tientsin, and Hongkong, at stated periods, the dates of such sessions at each city to he an- nounced in such manner as the court shall direct, and a session of the court shall he held in each of these cities at least once annually. It shall be within the power of the judge, upon due notice to the parties in litigation, to open and Hold court for the hearing of a special cause at any place permitted by the treaties, and where there is a United States consulate, when, in his judgment, it shall be required by the convenience of wit- nesses, or by some public interest. The place of sitting of the court shall be in the United States consulate of each of the cities, respectively." "§ 2. The consuls of the United States in the cities of China to which they are respectively accredited shall have the same jurisdiction as they now possess in civil cases where the sum or value of the property involved in the contro- versy does not exceed five hundred dollars United States money and in criminal cases where the punishment for the offense charged cannot exceed by law one hundred dollars fine or sixtv days' imprisonment, or both, and shall have power to arrest, examine, and discharge accused persons or commit them to the said court. From all final judgments of the consular court either party shall have the right of appeal to the United States court for China : Provided, also, That appeal may be taken to the United States court for China from any final judgment of the c< insular courts of the United States in Korea so long as the rights of extra-territorialitv shall obtain in favor of the United States." "§ 4. The jurisdiction of the said United States court, both original and on appeal, in civil and criminal matters, also the jurisdiction of the Consular courts in China, shall in all cases be exercised in conformity with said treaties and the laws of the United States now in force in reference to the American Consular courts in China, and all judgments and decisions of said Consular courts, and all decisions, judgments, and decrees of the United States court, shall be enforced in accordance with said treaties ami laws. But in all such cases when such laws are deficient in the provisions necessary to give jurisdiction or to furnish suitable remedies, the common 73] UNITED STATES COURT FOR CHINA. 270 law and the law as established by the decisions of the courts of the United kStates shall be applied by said court in its decisions and shall govern the same subject of the terms of any treaties between the United States and China." 2 The provisions of the statute making the common law applicable to criminal offenses, committed by American citizens in China, are construed as referring to the common law in force in the several American Colonies at the time of their separation from England, and include, not only the ancient common or internal law, but also statutes, which had previously been passed amendatory or in aid of the common law. 3 Among these was chapter 24 of the Statutes of 30, George II, enacted in 17f>7, creating the offense of obtaining money or goods under false pretenses, and subsequent amendments to the same. 4 The judicial authority of the United States Court in China is re- stricted to the five ports mentioned in the treaty with that nation, 5 namely, Kwang-Chow, Amoy, Fuchow, Ningpo and Shanghai. 6 The jurisdiction of Consular Courts is explained in the succeeding section. 7 The Chinese Court Regulations of 1864 promulgated the following rule: "Civil actions, based on written promise, contract, or instrument, must be commenced within six years after the cause of action accrues; others, with- in two." 8 Final decrees and judgments of this court may be 2 Act of June 30, 1906, »4 Stat, at L. 814, Chap. 3934, "An Act cre- ating a United States court for Chi- na and prescribing the jurisdiction thereof." 3 Hiddle v. U. S., C. C. A., 156 Fed. 759. As to the effect of a plea of former acquittal, hased upon pro- ceedings in the former United States Consular Court of Shanghai, see Price v. U. S.. 1.16 Fed. 9:10. 85 C. C. A. 247, 13 Ann. Cas. 483, 15 L.R.A.(N.S.) 1272. 4Biddle v. U. S.. C. C. A., 156 150 Fed. 950. 5 See 9 Op. A. G. 294. 6 Treaty of Dec. 31, 1840, Malley's Treaties. T. 196. 7 Jnfra, § 74. 8 Secretary Bayard said concern- ing- this: "I do not, it is true, re- gard this rule as a statute. Not only had Mr. Burlingame no power to en- act a statute, as such, but the lan- guage of the rule shows that it can- not be regarded as a statutory en- actment. It limits suits on even sealed instruments to six years, and on unwritten engagements, no mat- ter how solemn or how strongly evi- denced, to two years. It contains no exception in favor of minors or persons under disability. It must be regarded, therefore, not as a stat- ute covering civil limitations in all their bearings, but as an assertion that suits in consular courts in China are to be limited as to time, the limitation to he adapted to the social and business conditions of the 280 ORIGINAL, JURISDICTION. [§ 74 brought for review to the Circuit Court of Appeals for the Ninth Circuit, by appeal or writ of error, as the case may be. 9 Upon an appeal from this court, the record in this court should show an allowance of the appeal. 10 Unless the appeal is allowed in open court, a citation should be issued and served, 11 and the proceedings should conform in other respects to those of appeals to the Circuit Court of Appeals. § 74. Jurisdiction of the Consular Courts. The Re- vised Statutes provided as follows: ''To carry into full effect the provisions of the treaties of the United States with China, Japan, Siein, Egypt, and Madagascar, respectively, the minister and the consuls of the United States, duly appointed to reside in each of those countries, shall, in addition to other powers and duties imposed upon them, respectively, by the provisions of such treaties, respectively, be invested with the judicial authority herein described, which shall appertain to the office of minister and consul, and be a part of the duties belonging thereto, wherein, and so far as, the same is allowed by treaty." x period of suit. Tn tliis way we can explain not only the limitation of two years for unwritten engage- ments, wliicli in the then immature and unsettled condition of our busi- ness in China may have been emin- ently proper, but the omission of the exceptions I have noticed above. I held, therefore, that Rule XV. of the Regulations of 18G4, while not to be regarded as having the authority or the fixedness of a statute, is to be viewed as a rule of court expressing a principle open to modification by the court that issued it. It stands in the same position as do the equi- ty rules adopted by the Supreme Court of the United States and courts of the several States, not as a statutory mandate, to remain in force until expressly repealed or modified, but as a principle and reg- ulation of practice which it is open to the court to expand or vary as the purposes of justice may require. As to the importance of your adopt- ing such a rule there can be no question. Were there no such limi- tation required in China, American merchants in China might be har- assed by old debts and stale de- mands outlawed in the United States, and their business much im- peded. Aside from this the princi- ple that the right of suit should be limited as to time, is as essential to public justice as is the principle that the right of suit should exist at all." Mr. Bayard to Mr. Denby, April 27, 1887. Wharton's Dig., § 125. Vol. Ill, Appendix, pp. 883, 884. 9 § 3, 34 St. at L. 814. 815, Jud. Code, § l:il. 3ti St. at L. 1087. 10 Steamer Spark v. Lee Choi Chum. 1 Sawyer 713. 11 Ibid. § 74. 1U. S. R. S., § 4083, 2 Fed. St. Ann. 819, Pierce's Fed. Code, § 4245. § 74] CONSULAR COURTS. 281 "The officers mentioned in the preceding sept-ion are fully era- powered to arraign and try, in the manner herein provided, all citizens of the United States charged with offenses against law, committed in such countries, respectively, and to sentence such offenders in the manner herein authorized; and each of them is authorized to issue all such processes as are suitable and nec- essary to carry this authority into execution." 2 "Such officers are also invested with all the judicial authority necessary to execute the provisions of such treaties, respectively, in regard to civil rights, whether of property or person ; and they shall entertain jurisdiction in matters of contract, at the port where, or nearest to which, the contract was made, or at the port at which, or nearest to which, it was to be executed, and in all other matters, at the port where, or nearest to which, the cause of controversv arose, or at least whore, or nearest to which, the damage complained of was sustained, provided such port be one of the posts at which the United States are represented by consuls. Such jurisdiction shall embrace all controversies between citizens of the United States, or others, provided for by such treaties, respectively/' 3 "Jurisdiction in both criminal and civil matters shall, in all cases, be exer- cised and enforced in conformity with the laws of the United States, which are hereby, so far as is necessary to execute such treates, respectively, and so far as they are suitable to carry the same into effect, extended over all citizens of the United States in those countries, and over all others to the extent that the terms of the treaties, respectively, justify or require. But in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law and the law of equity and admiralty shall be extended in like manner over such citizens and others in those countries ; and if neither the common law, nor the law of equity or admiralty, nor the statutes of the United States, furnish appropriate and sufficient remedies, the ministers in those countries, respectively, shall, by decrees and regulations which shall have the force of law, supply such defects and 2U. S. R. S„ § 4084, 2 Fed. St. 3 U. S. R. S„ § 4085. 2 Fed. St. Ann. 819, Pierce's Fed. Code, § 4246. Ann. 819, Pierce's Fed. Code, § 4247 282 ORIGINAL JURISDICTION. [§ 74 deficiencies. 1 '* 4 "Each of the consuls mentioned in section forty hundred and eighty-three, at the port for which he is appointed, is authorized upon facts within his own knowledge, or which he has g'ood reason to believe true, or upon com- plaint made or information filed in writing and authenticated in such way as shall be prescribed by the minister, to issue his warrant for the arrest of any citizen of the United States cbarged with committing in the country an offense against law; and to arraign and try any such offender; and to sentence him to punishment in the manner herein prescribed." 5 "The consuls and commercial agents of the United States at islands or in countries not inhabited by any civilized people, or recog- nized by any treaty with the United States, are authorized to try, hear, and determine all cases in regard to civil rights, whether of person or property, where the real debt or damages do not exceed the sum of one thousand dollars, exclusive of costs, and upon full hearing of the allegations and evidence of both parties, to give judgment according to the laws of the United States, and according- to the equity and right of the matter, in the same manner as justices of the peace are now au- thorized and empowered where the United States have exclu- sive jurisdiction. They are also invested with the powers con- ferred by the provisions of sections forty hundred and eighty- six and forty hundred and eighty-seven for trial of offenses or misdemeanors." 6 "Any consul when sitting alone may also decide all cases in which the fine imposed does not exceed five hundred dollars, or the term of imprisonment does not exceed ninety days ; but in all such cases, if the fine exceeds one hun- dred dollars, or the term of imprisonment for misdemeanor exceeds sixty days, the defendants or any of them, if there be more than one, may take the case, by appeal, before the min- ister, if allowed jurisdiction, either upon errors of law or mat- ters of fact, under such rules as may be prescribed by the min- ister for the prosecution of appeals in such cases." 7 "Capital cases for murder or insurrection against the government of either of the countries hereinbefore mentioned, by citizens *U. S. R. S., § 4086, 2 Fed. St. H - . S. R. S.. § 4088, 2 Fed. St. Ann. 820, Pierce's Fed. Code, § 4248. Ann. 820, Pierce's Fed. Code, § 4250. 5 U. S. R. S.. § 4087. 2 Fed. St. 7 U. S. R. S., § 4089, 2 Fed. St. Ann. 820, Pierce's Fed. Code, § 4249. Ann. 821, Pierce's Fed. Code. § 4251. 8 74] CONSULAR COURTS. 2sr Q of the United States, or for offenses against the public peace amounting to felony under the laws of the United States, may be tried before the minister of the United States in the country where the offense is committed if allowed jurisdiction; and every such minister may issue all manner of writs, to prevent the citizens of the United States from enlisting in the military or naval service of either of the said countries, to make war upon any foreign power with whom the United States are at peace, or in the service of one portion of the people against any other portion of the same people ; and he may carry out this power by a resort to such force belonging to the United States, as may at the time be within his reach." 8 "Each of the min- isters mentioned in, section forty hundred and eighty -three shall, in the country to which he is appointed, be fully author- ized to hear and decide all cases, criminal and civil, which may come before him, by appeal, under the provisions of this Title, and to issue all processes necessary to execute the power con- ferred upon him ; and he is fully empowered to decide finally any case upon the evidence which comes up with it, or to hear the parties further, if he thinks justice will be promoted there- by ; and he may also prescribe the rules upon which new trials may be granted, either by the consuls or by himself, if asked for upon sufficient grounds." 9 "In all cases, criminal and civil, the evidence shall be taken down in writing in open court, un- der such regulations as may be made for that purpose ; and all objections to the competency or character of testimony shall be noted, with the ruling in all such cases, and the evidence shall be part of the case." 10 "It shall be the duty of the ministers and the consuls in the countries mentioned in section forty hundred and eighty-three, to encourage the settlement of con- troversies of a civil character, by mutual agreement, or to sub- mit them to the decision of referees agreed upon by the par- ties; and the minister in each country shall prepare a form of submission for such cases, to be signed by the parties, and ac- knowledged before the consul. When parties have so agreed to refer, the referees may, after suitable notice of the time and 8U. S. R. S., § 40!10, 2 Fed. St. »'Ui Si R. S., § 4097. 2 Fed. St. Ann. 821, Pierce's Fed. Code, § 4252. Ann. 822, Pierce's Fed. Code, § 4259. 9TJ. S. R. S., § 4091, 2 Fed. St. Ann. 821, Pierce's Fed. Code, § 4253. 084 ORIGINAL JURISDICTION. [§ 74 place of meeting for the trial, proceed to hear the case, and a majority of them shall have power to decide the matter. If either party refuses or neglects to appear, the referees may pro- ceed ex parte. After hearing any case such referees may deliver their award, sealed, to the consul, who, in court, shall open the same; and if he accepts it, he shall indorse the fact, and judgment shall be rendered thereon, and execution issue in compliance with the terms thereof. The parties, how- ever, may always settle the same before return thereof is made to the consul," n In all criminal cases which are not of a hein- ous character, it shall be lawful for the parties aggrieved or con- cerned therein, with the assent of the minister in the country, or consul, to adjust and settle the same among themselves, upon pecuniary or other considerations. " 12 "The ministers and con- suls shall be fully authorized to call upon the local authorities to sustain and support them in the execution of the powers confided to them by treaty, and on their part to do and perform whatever is necessary to carry the provisions of the treaties into full effect, so far as they are to be executed in the countries, re- spectively." 13 "In all cases, except as herein otherwise pro- vided, the punishment of crime provided for by this Title shall be by fine or imprisonment, or both, at the discretion of the officer who decides the case, but subject to the regulations here- in contained, and such as may hereafter be made. It shall, how- ever, be the duty of such officer to award punishment according to the magnitude and aggravation of the offense. Every per- son who refuses or neglects to comply with the sentence passed upon him shall stand committed until he does comply, or is discharged by order of the consul, with the consent of the min- ister in the country." 14 "Insurrection or rebellion against the government of either of those countries, with intent to subvert the same, and murder, shall be capital offenses, punishable with death; but no person shall be convicted of either of those crimes, unless the consul and his associates in the trial all con- cur in opinion, and the minister also approves of the convic- tion. But it shall be lawful to convict one put upon trial for ill'. S. K. S., § 4098, 2 Fed. St. lft,U, S. R. S.. § 4100, 2 Fed. St. Ann. 822. Pierce's Fed. Code, § 4200. Ann. 823. Pierce's Fed. Code, § 4202. 12 f. S. R. S.. § 4099, 2 Fed. St. 1* U. S. R. S., § 410 J, 2 Fed. St. Ann. 823, Pierce's Fed. Code, § 4261. Ann. 823, Pierce's Fed. Code, § 4263. § 74] CONSULAR COURTS. 285 either of these crimes, of a less offense of a similar character, if the evidence justifies it, and to punish, as for other offenses, by fine or imprisonment, or both.'" 15 "Whenever any person is convicted of either of the crimes punishable with death, in either of these countries, it shall be the duty of the minister to issue his warrant for the execution of the convict, appoint- ing the time, place, and manner; but if the minister is satisfied that the ends of public justice demand it, he may from time to time postpone such execution; and if he finds mitigating circumstances which authorize it, he may submit the case to the President for pardon." 16 "No fine imposed by a consul for a contempt committed in presence of the court, or for fail- ing to obey a summons from the same, shall exceed fifty dol- dars ; nor shall the imprisonment exceed twenty-four hours for the same contempt." 17 "Any consul, when sitting alone for the trial of offenses or misdemeanors, shall decide finally all cases where the fine imposed does not exceed one hundred dol- lars, or the term of imprisonment does not exceed sixty days." 18 "Whenever, in any case, the consul is of opinion that, by reason of the legal questions which may arise therein, assistance will be useful to him, or whenever he is of opinion that severer pun- ishments than those specified in the preceding sections will be required, he shall summon, to sit with him on the trial, one or more citizens of the United States, not exceeding four, and in capital cases not less than four; who shall be taken by lot from a list which had previously been submitted to and ap- proved by the minister, and shall be persons of good repute and competent for the duty. Every such associate shall enter upon the record his judgment and opinion, and shall sign the same; but the consul shall give judgment in the case. If the consul and his associates concur in opinion, the decision shall, in all cases, except of capital offenses, and except as provided in the preceding section, be final. If any of the associates dif- fer in opinion from the consul, the case, without further pro- ceedings, together with the evidence and opinions, shall be re- ferred to the minister for his adjudication, either by entering 15 U. S. R. S., § 4102, 2 Fed. St. " U. S. R. S.. § 4104. 2 Fed. St. Ann. 823, Pierce's Fed. Code, § 42(>4. Ann. 824. Pierce's Fed. Code. § 4206. 16 U. S. R. S., § 4103, 2 Fed. St. 18 U. S. R. S.. § 4105. 2 Fed. St. Ann. 823. Pierce's Fed. Code. § 42G5. Ann. 824, Pierce's Fed. Code. § 4207. 280 ORIGINAL JURISDICTION. [§ 74 up judgment therein, or by remitting the same to the consul with instruction how to proceed therewith." 19 "Each of the consuls mentioned in section "four thousand and eighty-three shall have at the port for which he is appointed, jurisdiction as herein provided, in all civil cases arising under such treaties, respectively, wherein the damages do not exceed the sum of fire hundred dollars, and, if he sees fit to decide the same without aid, his decision thereon shall be final. But whenever he is of opinion that any such case involves legal perplexities, and that assistance will be useful to him, or whenever the damages de- manded exceed five hundred dollars, he shall summon, to sit with him on the hearing of the case, not less than two nor more than three citizens of the United States, if such are resid- ing at the port, who shall be taken from a list which had pre- viously been submitted to and approved by the minister, ami shall be of good repute and competent for the duty. Every such associate shall note upon the record his opinion, and also, in case he dissents from the consul, such reasons therefor as he thinks proper to assign; but the consul shall give judgment in the case. If the consul and his associates concur in opinion, the judgment shall be final. If any of the associates differ in opinion from the consul, either party may appeal to the minis- ter, under such regulations as may exist ; but if no appeal is lawfully claimed, the decision of the consul shall be final."* "The jurisdiction allowed by treaty to the ministers, respect- ively, in the countries named in section four thousand and eighty-three shall be exercised by them in those countries, re- spectively, wherever they may be." 21 ''The jurisdiction of such ministers in all matters of civil redress, or of crimes, except in capital eases for murder or insurrection against the governments of such countries, respectively, or for offenses against the public peace amounting to felony under the laws of the United States, shall be appellate only; Provided, That in cases where a consular officer is interested, either as party or witness, such minister shall have original jurisdiction." 22 "All such officers shall be responsible for their conduct to the United 19 U. S. R. S., § 4106, 2 Fed. St. 21 U. S. R. S.. § 4108, 2 Fed. St. Ann. 824, Tierce's Fed. Code. § 4208. Ann. 825. Pierce's Fed. Code. § 4270. 20TJ. S. R. S., § 41(17. 2 Fed. St. 22r. s. K. S.. § 4109, 2 Fed. St. Ann. 824. Pierce's Fed. Code, § 4269. Ann. 825, Pierce's Fed. Code, § 4271. § 74] CONSULAR COURTS. 287 States, and to the laws thereof, not only as diplomatic or consu- lar officers, but as judicial officers, when they perform judicial duties, and shall be held liable for all negligences and miscon- duct as public officers." 23 "The President is authorized to appoint marshals for such of the consular courts in those countries as he may think proper, not to exceed seven in number, namely: one in Japan, four in China, one in Siam, and one in Turkey, each of whom shall receive a salary of one thousand dollars a year, in addition to the fees allowed by the regulations • of the ministers, respectively, in those countries." 24 "It shall be the duty of the marshals, respectively, to execute all process issued by the minister of the United States in those countries, respectively, or by the consul at the port at which they reside, and to make due return thereof to the officer by whom it was issued, and to conform in all respects to the regulations pre- scribed by the ministers, respectively, in regard to their duties." 25 "Each marshal, before entering upon the duties of his office, shall give bond for the faithful performance there- of in a penal sum not to exceed ten thousand dollars, with two sureties to be approved by the Secretary of State. Such bond shall be transmited to the Secretary of the Treasury, and a certified copy thereof be lodged in the office of the minister." 26 "Whenever any person desires to bring suit upon the bond of any such marshal, it shall be the duty of the Secretary of the Treasury, or of the minister having custody of a copy of the same, to give to the person so applying a certified copy thereof, upon which suit may be brought and prosecuted with the same effect as could be done "upon the original : Provided, The Secre- tary of the Treasury, or the minister to whom the application is made, is satisfied that there is probable cause of action against the marshal." 27 "Upon a plea of non est factum, verified upon oath, or any other good cause shown, the court or the consul or minister trying the cause may require the original bond of the marshal in those countries to be produced ; 23 U. S. R. S., § 4110, 2 Fed. St. &U. s. R. S., § 4113, 2 Fed. St. Ann. 825, Pierce's Fed. Code, § 4272. Ann. 826, Pierce's Fed. Code, § 4273. 24 U. S. R. S., § 4111, 2 Fed. St. 27 u. S. R. S., § 4114, 2 Fed. St. Ann. 825. Pierce's Fed. Code, § 4273. Ann. 820, Pierce's Fed. Code, § 4276. 25 U. S. R. S., § 4112, 2 Fed. St. Ann. 825, Pierce's Fed. Code, § 4274. 288 ORIGINAL, JUBJSDI.CTJON. [§ 7-t and it shall be the duty of the Secretary of the Treasury to forward the original buud to the court,_or consul, or minister requiring the same." 28 "All rules, orders, "writs, and processes of every kind which are intended to operate or be enforced against any of the marshals, in any of the countries named in this Title, shall be directed to and executed by such persons as may be appointed for that purpose by the minister or consul issuing the same." 29 "In order to organize and carry into effect the system of jurisprudence demanded by such treaties, respectively, the ministers, with the advice of the several consuls in each of the countries, respectively, or of so many of them as can be conveniently .assembled, shall prescribe the forms of all processes to be issued by any of the consuls ; the mode of executing and the time of returning the same; the manner in which trials shall be conducted, and how the records thereof shall be kept ; the form of oaths for Christian witnesses, and the mode of examining all other witnesses ; the costs to be allowed to the prevailing party, and the fees to be paid for judicial services; the manner in which all officers and agents to execute process, and to carry this Title into effect, shall be appointed and compensated; the form of bail-bonds, and the security which shall be required of the party who appeals from the decision of a consul ; and shall make all such further decrees and regulations from time to time, under the provisions of this Title, as the exigency may demand." 30 "All such regu- lations, decrees, and orders shall be plainly drawn up in writ- ing, and submitted, as hereinbefore provided, for the advice of the consuls, or as many of them as can be consulted without prejudicial delay or inconvenience, and such consul shall signi- fy his assent or dissent in writing, with his name subscribed thereto. After taking such advice, and considering the same, the minister in each of those countries may, nevertheless, by causing the decree, order, or regulation to be published with his signature thereto, and the opinions of his advisers inscribed thereon, make it binding and obligatory, until annulled or modi- tied by Congress ; and it shall take effect from the publication 28 U. S. R. S.. § 4115. 2 Fed. St. 30 U. S. R. S., § 4117, 2 Fed. St. Ann. 826, Pierce's Fed. Code, § 4277. Ann. 826, Pierce's Fed. Code, § 4279. 29 T. S. R. S.. § 4116, 2 Fed. St. Ann. 826, Pierce's Fed. Code, § 4278. § 74] CONSULAR COURTS. 289 or any subsequent day thereto named in the act." 31 "All such regulations, orders, and decrees shall, as speedily as may be after publication, be transmitted by the ministers, with the opinions of their advisers, as drawn up by them severally, to the Secretary of State, to be laid before Congress for revision.'' 32 "It shall be the duty of the minister in each of those countries to establish a tariff of fees for judicial services, which shall be paid by such parties, and to such persons, as the minister shall direct; and the proceeds shall, as far as is necessary, be applied to defray the expenses incident to the execution of this Title ; and regular accounts, both of receipts and expenditures, shall be kept by the minister and consuls and transmitted annually to the Secretary of State." 33 "The President, when provision is not otherwise made, is authorized to allow, in the adjustment of the accounts of each of the ministers or consuls, the actual expenses of the rent of suitable buildings or parts of buildings to be used as prisons for American convicts in those countries, not to exceed in any case the rate of six hundred dollars a year; and also the wages of the keepers of the same, and for the care of offenders, not to exceed, in any case, the sum of eight hun- dred dollars per annum. But no more than one prison shall be hired in Japan, four in China, one in Turkey, and one in Siam, at such port or ports as the minister, with the sanction of the President, may designate, and the entire expense of prison and prison-keepers at the consulate of Bangkok, in Siam, shall not exceed the sum of one thousand dollars a year." 34 "The provisions of this Title, so far as the same relate to crimes and offenses committed by citizens of the United States, shall extend to Turkey, under the treaty with the Sublime Porte of May seventh, eighteen hundred and thirty, and shall be executed in the Ottoman dominions in conformity with the provisions of the treaty, and of this Title, by the minister and the consuls appointed to reside therein, who are hereby ex-officio vested with the powers herein conferred upon the ministers and consuls in China, for the purposes above expressed, so far as regards the punishment of crime, and also for the exercise of 31 U. S. R. S., § 4118, 2 Fed. St. 33 u. S . R. S.. § 4120. 2 Fed. St. Ann. 827, Pierce's Fed. Code, § 4280. Ann. S27. Pierce's Fed. Code. § 4282. 32 U. S. R. S., § 4119, 2 Fed. St. 34 1.-. s. R. S., § 4121, 2 Fed. St. Ann. 827, Pierce's Fed. Code, § 4281. Ann. 827, Pierce's Fed. Code, § 42S3. Fed. Prac. Vol. I.— 19. 290 ORIGINAL JURISDICTION. [§ 74 jurisdiction in civil cases wherein the same is permitted by the laws of Turkey, or its usages in its intercourse with the Franks, or other foreign Christian nations." 35 "The pro- visions of this Title shall extend to Persia, in respect to all suits and disputes which may arise between citizens of the United States therein; and the minister and consuls who may be appointed to reside in Persia are hereby invested, in relation to such suits and disputes, with such powers as are by this Title conferred upon the ministers and consuls in China. All suits and disputes arising in Persia between Persian subjects and citizens of the United States shall be carried before the Persian tribunal to which such matters are usually referred, at the place where a consul or agent of the United States may reside, and shall be discussed and decided according to equity, m the presence of an employe of the consul or agent of the United States; and it shall be the duty of the consular officer to attend the trial in person, and see "that justice is admin- istered. All suits and disputes occurring in Persia between the citizens of the United States and the subjects of other foreign powers, shall be tried and adjudicated by the intermediation of their respective ministers or consuls, in accordance with such regulations as shall be mutually agreed upon by the minis- ter of the United States for the time being, and the ministers of such foreign powers, respectively, which regulations shall from time to time be submitted to the Secretary of State." 36 "The provisions of this title so far as the same are in conformity with the stipulations in the existing treaties between the United States and Tripoli, Tunis, Morocco, Muscat, and the Samoan or Xavigator Islands, respectively, shall extend to those countries, and shall be executed in conformity with the provisions of the treaties and of the provisions of this title by the consuls appointed by the United States to reside therein, who are here- by ex officio invested with the powers herein delegated to the ministers and consuls of the United States appointed to reside in the countries named in section four thousand and eighty- three, so far as the same can be exercised under the provisions of treaties between the United States and the several countries 35 1. S. R. S., § 412-i. 2 Fed. St. 36 U. S. R. S.. § 4120, 2 Fed. St. Ann. S28. Pierce's Fed. Code, § 4287. Ann. 829, Pierce's Fed. Code, § 4290. § 74] CONSULAR COURTS. 291 mentioned in this section, and in accordance with the usages of the countries in their intercourse with the Franks or other foreign Christian nations. And whenever the United States shall negotiate a treaty with any foreign government, in which the American consul-general or consul shall be clothed with judicial authority, and securing the right of trial to American citizens residing therein before such consul-general or consul, and containing provisions similar to or like those contained in the treaties with the governments named in this act, then said title, so far as the same may be applicable, shall have full force in reference to said treaty, and shall extend to the country of the government negotiating the same." 37 "If at any time there be no minister in either of the countries hereinbefore mentioned, the judicial duties which are imposed by this Title upon the minister shall devolve upon the Secretary of State, who is authorized and required to discharge the same." 38 "The provisions of this Title relating to the jurisdiction of consular and diplomatic officers over civil and criminal cases in the countries therein named, shall extend to any country of like character with which the United States may hereafter enter into treatv relations." 39 "The word 'minister ' when used in this title shall be understood to mean the person invested with, and exercising, the principal diplomatic functions. The word 'consul' shall be understood to mean any person invested by the United States with, and exercising, the functions of consul- general, vice consul-general, consul or vice-consul or a consular agent." 40 Formerly the acting consul 41 or acting consul-gen- eral could not exercise the jurisdiction conferred by those stat- utes. 42 Where no treaty otherwise provided, it was the opinion (if Attorney General Gushing that the authority of consuls of the United States in foreign countries, in cases of crime at sea or in port, was ministerial and not judicial. 44 37 U. S. R. S., § 4127, 2 Fed. St. 41 Acting Secretary Adee, March Ann. 82(1, Pierce's Fed. Code, § 4291. 22, 1894, Moore's Dig., § 204, II.. 38 U. S. R. S., § 4128, 2 Fed. St. G22. Ann. 830, Pierce's Fed. Code, § 4292. 42 Moore, §§ 261-284, Secretary 39 T. S. R. S.. § 4129, 2 Fed. St. Fish, Feb'y 9, 1876, Moore's Dig. § Ann. 830, Pierce's Fed. Code, § 4293. 264. II., 623. 40 U. S. R. S., § 4130, 2 Fed. St. 44 8 Op. A. G. 830. Ann. 830. Pierce's Fed. Code, § 4294. Act of Feb'y. 1876, as amended by 19 St. ut L. 2. 292 ORIGINAL JURISDICTION. [§ 74 Consuls have exclusive jurisdiction over disputes between captains and crews of vessels of the United States, including questions of wages, by treaties or conventions, in the following countries: Austria-Hungary, Belgium, Columbia, Denmark, Dominican Republic, France, Germany, Greece, Italy, Kongo Free State, Netherlands (and colonies), Portugal, Roumania, Salvator, Sweden and Norway, and Tripoli. 45 Similar powers were given by a treaty with Russia ; 46 but whether that will be in force at the time this book is published, is a doubtful ques- tion. Tn Sweden and Norway at least, this power does not extend to public offenses, nor to actual breaches of the public peace or other differences between the captains and crews which "disturb the order or tranquility of the country.'" 47 They have also power to adjust damages suffered at sea and in matters of wrecks and salvage, granted to them by treaties with Austria- Hungary, Belgium, Bolivia, Borneo, China, Columbia, Domini- can Republic, Ecuador, France, Germany, Greece, Guatemala, Hayti, Honduras, Italy, Japan, Corea, Liberia, Madagascar, Maskat, Morocco, Netherlands (including colonies), Ottoman Porte, Paraguay, Roumania, Salvador, Siam, Spain, Sweden and Norway, Tripoli, and Tunis. 48 In Maskat and the Ottoman dominions, they have the right, in the absence of the owner or agent, to receive the property of American citizens wrecked or captured from pirates. 49 Conventions secure to them the right to take depositions in Austria-Hungary, Belgium, Colum- bia, France, Germany, (for American citizens only), Italy, Kongo Free State, Netherlands, Roumania, Servia and Salva- dor. 50 The advice of a consul in a foreign port gives the master of a vessel no justification for an illegal act. 51 His action in discharging a seaman in a foreign port is not conclusive where the latter subsequently files a libel for wages, 52 and where he has discharged seamen at the request of a master, the consul cannot detain them in prison as a punishment. 53 A consul has no au- « Consular Regulations, 1890, V. 50 ibid. V. 87. 88. 61 Wilson v. The Mary, Gilpin 31. 46 Ibid. 52 Campbell v. The Uncle Sam, 47 15 Op. A. G. 178. McAllister 77. 48 Consular Regulations, 1896, V. 53 Jordan v. Williams, 1 Curtis, 90. 69. 49 Ibid. V. 90. § 74] CONSULAR COURTS. 293 thority to order the sale of a ship in a foreign port, whether on complaint of the crew or otherwise. 54 Where such a sale took place and the consul retained the money for the payment of sailors' wages, Attorney General Gushing was of the opinion that the United States were not liable to the owners for the money thus illegally collected and retained. 55 He has no au- thority to demand and receive from the master of a vessel, the money and effects belonging to aa deserter from the same, 56 nor to retain the papers of vessels which he suspects are destined for the slave trade. 57 American consuls have no authority to require masters of American ships to carry to the United States for trial, persons accused of crime. 58 The constitutionality of the statute granting judicial powers to consuls in countries where Christianity does not prevail has been sustained- under the treaty power. 59 The consular courts have jurisdiction 54 6 Op. A. G. 617. 55 Ibid. 56]4 Op. A..G. 520. 57 9 Op. A. G. 426. 58 7 Op. A. G. 722. 59 Re Ross, 140 U. S. 453, 462- 463, 11 Sup. 897, 35 L. ed. 581, per Field, J.: "The practice of European gov- ernments to send officers to reside in foreign countries, authorized to exercise a limited jurisdiction over vessels and seamen of their country, to watch the interests of their coun- trymen and to assist in adjusting their disputes and protecting their commerce, goes back to a very early period, even preceding what are termed the Middle Ages. During those ages these commercial magis- trates, generally designated as con- suls, possessed to some extent a rep- resentative character, sometimes dis- charging judicial and diplomatic functions. In other than Christian countries they were, by treaty stipu- lations, usually clothed with au- thority to hear complaints against their countrymen and to sit in judg- ment upon them when charged with public offenses. After the rise of Islamism, and the spread of its fol- lowers over eastern Asia and other countries bordering on the Mediter- ranean, the exercise of this judicial authority became a matter of great concern. The intense hostility of the people of Moslem faith to all other sects, and particularly to Christians, affected all their inter- course, and all proceedings had in their tribunals. Even the rules of evidence adopted by them placed those of different faith on unequal grounds in any controversy with them. For this cause, and by rea- son of the barbarous and cruel pun- ishments inflicted in those countries, and the frequent use of torture to en- force confession from parties ac- cused, it was a matter of deep in- terest to Christian governments to withdraw the trial of their subjects, when charged with the commission of a public offense, from the arbi- trary and despotic action of the local officials. Treaties conferring such jurisdiction upon these consuls ?94 ORTGIXAL JURISniCTIOX. [J 74 of crimes committed on water within the territory of their district. 60 A consular court has jurisdiction of a criminal offense, such as murder, committed in a port of its district. by a citizen of a foreign State, such as a British subject, while duly enrolled as a seaman on a merchant vessel of the United States. 61 By a regulation of the Minister to China, approved by the State Department, 62 when a criminal prose- cution was pending in any consular district of China against a citizen of the United States, who might be found in another district, the consul before whom the prosecution is pending might issue a warrant for the arrest, under which, when based by the consul of the latter district, the accused might be arrested and transported to the former district for trial. 63 The State De- partment has expressed the opinion : that the statutes confer no jurisdiction over citizens of the United States serving on board foreign vessels of war ; 64 nor authority to make a regulation re- quiring citizens of the United States to register their names, nor power to enforce such a regulation judicially; 65 nor to banish a convict to China or another foreign country; 66 nor to try a criminal charge against anyone who is not a citizen of the United States; 67 nor a regulation concerning the importation of fire-arms and ammunities into a port, with the government of which there is no treaty. 68 The provisions of the Constitution which guarantee trial by jury under an indictment by a grand jury do not apply to the consular courts, 69 nor to their juris- were essential to the peaceful resi- dence of Christians within those countries and the successful prose- cution of commerce with their peo- ple. The treaty-making power vest- ed in our government extends to all proper subjects of negotiation with foreign governments. It can. equally with any of the former or present governments of Europe, make treat- ies providing for the exercise of ju- dicial authority in other countries by its officers appointed to reside 1 therein." 60 Ee Ross, 140 U. S. 453, 11 Sup. Sy?, 35 L. ed. 581. 61 Ibid. 62 Secretary Olney, Feb'y. 2, 1897. 63 Moore's Dig., § 263. II:, 62li 64 Mr. Cadwalader, November 26. 1875. Wharton's Dig.. § 125, Vol. I.. p. 809. 65 Secretary Fish. February 26, 1873. Wharton's Dig.. § 125. Vol. I., p. 803. 66 Mr. Fish. September 10, 1870. \\ harton's Dig.. § 125. Vol. I., p. 805. 67 Mr. Fish, January 8, 1873, Wharton's Dig., § 125. Vol. I., p. SIlS. 68 Instruction of August 15. 1895, Moore's Dig.. § 263, I.. 622. 69 Re Ross. 140 U. S. 453, 464- 465, 11 Sup. Ct. 897. 35 L. ed. 581, n] CONSULAR COURTS. 295 diet imi over persons charged with crimes committed within their districts, 70 or upon vessels of the United States. 71 In the trial of a crime hefore a consular court, the accused should have an opportunity of exhibiting the complaint against him or should be presented with a copy stating the offense he has com- mitted. 72 At least in the absence of an act of Congress author- per Field, J.: "By the Constitution a government is ordained and estab- lished (for the United States of America), and not for countries outside of their limits. The guar- antees it affords against accusation of capital or infamous crimes, ex- cept by indictment or presentment by a grand jury, and for an impar- tial trial by a jury when thus ac- cused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed else- where, and not to residents or tem- porary sojourners abroad. Cook v. United States, 138 U. S. 157, 181, 34 L. ed. 906. 912. The Constitu- tion can have no operation in an- other country. When, therefore, the representatives or officers of our government are permitted to exer- cise authority of any kind in an- other country, it must be on such conditions as the two countries may agree, the Taws of neither one being obligatory upon the other. The deck of a private American vessel, it is true, is considered for many purposes constructively as territory of the United States, yet persons on board of such vessels, whether offi- cers, sailors, or passengers, cannot invoke the protection of the provi- sions referred to until brought with- in the actual territorial boundaries of the United States. And. besides, their enforcement abroad in numer- ous places, where it would be highly important to have consuls invested with judicial authority, would be impracticable from the impossibili- ty of obtaining a competent grand or petit jury. The requirement of such a body to accuse and to try an offender would, in a majority of cases, cause an abandonment of all prosecution. The framers of the Constitution, who were fully aware of the necessity of having judicial authority exercised by our consuls in non-Christian countries, if com- mercial intercourse was to be had with their people, never could have supposed that all the guarantees in the administration of the law upon criminals at home were to be trans- ferred to such consular establish- ments, and applied before an Amer- ican who had committed a felony there could be accused and tried. They must have known that such a requirement would defeat the main purpose of investing the consul with judicial authority. While, there- fore, in one aspect the American accused of crime committed in those countries is deprived of the guar- antees of the Constitution against unjust accusation and a partial trial, yet in another aspect he is the gainer, in being withdrawn from the procedure of their tribunals, often arbitrary and oppressive, and sometimes accompanied with ex- treme cruelty and torture." 70 Ibid. 71 Ibid. 72 Ibid. 296 OIUGIXAL JIKISIUCTIOX. [§ 74 izing proof by the depositions of witnesses beyond the juris- diction, he is entitled to be confronted with the witnesses against him and to cross-examine them. 73 He has the right to be represented by counsel. 74 The State Department has dis- approved the use of torture to elicit testimony, although author- ized by the law of the country where the consul holds court, 75 and the infliction of flogging as a punishment for wife-beating. 76 The Attorney General has expressed the opinion that a consular court cannot execute a sentence of imprisonment beyond its territorial jurisdiction, so that, in the absence of legislation, a convict of a consular court cannot be imprisoned in the United States. 77 The State Department has directed that, in all cases of capital punishment, the execution shall be postponed until the case has been reported, copies of the judgment and testimony transmitted to the Department, and the President's views in the premises shall have been received. 78 Consuls exercise in the Turkish dominions, by usage, the power to adjudicate contro- versies between Christian citizens of the United States and the trial of suits by foreign Christians against the same. 79 Citizens of a foreign country, who are not in the employ of the consu- late, nor enrolled on American ships, can only sue in the courts of the United States by comity. 80 The Attorney General has ruled that a consular court cannot, in a suit by a person not a citizen of the United States, enter judgment for a set-off beyond the extent of the claim asserted by the plaintiff, nor render a judgment against a person of foreign birth not a citizen of the United States. 81 In Oriental countries, consuls may probate wills. 82 They have granted decrees of divorce. 83 In Turkey, 73 Ibid. 74 Ibid. 76 Assistant Secretary Hay, Au- gust 16. 1880, Wharton's Dig.. (2nd ed.) § 125. Vol. I, p. 810. 76 Moore's Dig., § 266, Vol. II, p. 632. 77 u Op. A. G. 522. 78 Wharton's Dig.. § 125. Vol. I, p. 819. 79 7 Op. A. G. 565; Consular Reg- ulations, XXX. 620. See V. S. R. S., § 4125, 2 Fed. St. Ann. 820, Pierce's Fed. Code, § 4291, quoted supra. 80 Acting Secretary Davis, August 11, 1882, Moore's Dig., § 260, Vol. II. p. 604. 81 11 Op. A. G. 474. 82 Secretary Evarts, March 15, 1879. Moore's Dig., § 265, Vol. II, p. 626. 83 See Xaggar's Case in Cairo, Egypt. Moore's Dig., § 265, Vol. IT, p. 626. Regulations concerning di- vorce by Minister of Japan were 74] CONSULAR COURTS. 297 the consular courts have exclusive jurisdiction to decide who are the heirs and widow of an American citizen who died when there domiciled. 84 It seems to be the rule that, in the absence of legislation by Congress, consuls and consular courts have no jurisdiction over the property of Americans in a foreign country who have abandoned their residence or have never resided there. 85 it has been ruled by the State Department that a Consul General in a country with which there is no treaty. has no power to promulgate a regulation concerning tbe validity of mortgages and bills of sale, 86 nor to adjudicate upon" the title to land ; but that he may pass on the rights of landlord and tenant or adverse claims to the right of possession under a written contract. 87 The power of the Secretary of State to exer- cise the right to review by appeal a consular decision or the exer- cise of other judicial functions, has been said to be doubtful. 88 It has been said that where the consul acts bevond his iuris- diction, his order may be set aside by the Secretary of State or the President, but tbat, in the absence of a treaty giving such authority, this cannot be done in case of an erroneous decision upon the merits within the consular jurisdiction. 89 A person imprisoned within the United States by the order of a consul or a consular court acting beyond its jurisdiction may, in a proper case, have a review by habeas corpus. 90 Except possibly in the live ports of China, 91 an action will lie against the consul if his order is void for want of jurisdiction. 92 It has been disapproved; Secretary Fish, De- cember 26, 3 870, Wharton's Dig. (2nd ed.), § 125, Vol. T, p. 807. 84 Decree of Turkish Council of Ministers, Moore's Dig., § 265, Vol. IT, p. 627. 85 Mr. Fish, December 20, 1870, Wharf on's Dig., § 125, Vol. 1. p. 807. See Dainese v. Hale, 91 U. S. 13. 86 Assistant Secretary Rockhill, Oct. 0, 1896, Moore's Dig., § 263, II, 622. 87 Assistant Secretary Hunter, Sept. 3, 1874, Moore's Dig., § 265, IT, 627. 88 Assistant Secretary Strobell, January 16, 1894, concern ing the Madagascar Treaty, Moore's Dig., § 266, Vol. IT. p. 631. See Re Ross, 140 U. S. 453, 11 Sup. Ct. 897, 35 L, ed. 581. 89 Pacific Mail S. S. Case, by Sec- retary Seward, Moore's Dig., Au- gust 18, 1868, § 265, Vol. II, p. 629. 90 Be Ross, 140 U. S. 453, 11 Sup. Ct, 897, 35 L. ed. 5S1. 91 See Lange v. Benedict, 73 N\ Y. 12. 29 Am. Rep. SO. 92 Dainese v. Hale. 91 U. S. 13, 23 L. ed. 190; Secretary Seward in Pacific Mail S. S. Case. Moore's Dig., August 18, 1868, § 265, Vol. 298 ORIGINAL JURISDICTION. [§ 75 held that a Consular Court is a court of limited jurisdiction and that all the jurisdictional facts must be alleged in the plaintiff's libel, petition or other pleading, which otherwise will be insufficient. 93 § 75. Jurisdiction and practice of the Commerce Court. The Commerce Court is composed of five judges, selected from the Circuit Judges of the United States ; in the first instance, by the President, and in the case of subsequent vacancies, by the Chief Justice of the United States. 1 A quorum must con- sist of four judges and at least a majority of the whole court must concur in all decisions. 2 The Commerce Court has ex- elusive jurisdiction of the following cases: ''First. All cases a for the enforcement, otherwise than by the adjudication and "collection of a forfeiture or penalty or by infliction of criminal "punishment, of any order of the Interstate Commerce Corn- emission other than for the payment of money. Second. "Cases brought to enjoin, set aside, annul, or suspend in whole "or in part any order of the Interstate Commerce Commission. 3 "Third. Such cases as by section three of the Act, which is "usually known as the Interstate Commerce law, entitled 'An "Act to further regulate commerce with foreign nations and "among the States,' approved February nineteenth, nineteen "hundred and three, are authorized to be maintained in a circuit "court of the United States. Fourth. All such mandamus II, p. 629. But see Lange v. Bene- dict, 73 N. Y. 12, 29 Am. Rep. 80. 93 Steamer Spark v. Lee Choi Chum, 1 Sawyer, 713. For this sub- ject generally, see Wharton's Dig., § 125, Vol. I, Moore's Dig. §§ 259- 266. and the authorities therein cited. § 75. 1 It has been said that the phrase "other than for the pay- ment of money" refers to actions in which there is a right under the Constitution to a trial by jury and that the Commerce Court lias juris- diction of a suit to annul an order of the commission awarding repara- tion in damages under the Inter- state Commerce Act. Southern Ry. Co. v. U. S., (Comm. Ct.) 193 Fed. 664. 2 The court has jurisdiction of a petition by a carrier to restrain an older of the commission directing it to desist from an alleged dis- crimination in allowances for lith- erage. U. S., Interstate Commerce Commission, and Federal Sugar Re- fining Co. v. The Baltimore & Ohio Railroad Co., (Comm. Ct.) 225 U. S. 306, 56 L. ed. 1100. It has been said that an order of the commis- sion fixing a rate should be set aside when it is not based upon evi- dence which the carrier has had an opportunity to answer. Atlantic Coast Line R. Co. v. Interstate Cuin- merce Commission, (Comm. Ct.) 194 Fed. 449. 3 Tn such a suit under the act of § 75] JURISDICTION AND TERMS OF COMMERCE COURT. 299 "proceedings 4 as under the provisions of section twenty or "section twenty-three of the Act, which is usually known "as the Elkins law, entitled 'An Act to regulate commerce,' "approved February fourth, eighteen hundred and eighty- "seven, as amended, are authorized to be maintained in a "circuit court of the United States. 5 Fifth. "Suits to en- "join, set aside, annul, or suspend any order of the Inter- state Commerce Commission shall be brought in the Com- "merce Court against the United States. The pendency of "such suit shall not of itself stay or suspend the operation of "the order of the Interstate Commerce Commission; but the "Commerce Court, in its discretion, may restrain or suspend, "in whole or in part, the operation of the commission's order "pending the final hearing and determination of the suit. No "order or injunction so restraining or suspending an order of "the Interstate Commerce Commission shall be made by the "Commerce Court otherwise than upon notice and after hear- "ing, except that in cases where irreparable damage would "otherwise ensue to the petitioner, said court, or a judge there- "of, may, on hearing after not less than three days' notice to the "Interstate Commerce Commission and the Attorney General, "allow a temporary stay or suspension in whole or in part of "the operation of the order of the Interstate Commerce Com- "mission for not more than sixty days from the date of the "order of such court or judge, pending application to the "coufct for its order or injunction, in which case the said order "shall contain a specific finding, based upon evidence submitted "to the judge making the order and identified by reference "thereto, that such irreparable damage would result to the "petitioner and specifying the nature of the damage. The court "may, at the time of hearing such application, upon a like find- "ing, continue the temporary stay or suspension in whole "or in part until its decision upon the application." 6 "All "cases and proceedings in the Commerce Court which but for March 2, 38S9, the Circuit Court * See U. S. v. Louisville & N. R. li ail no power to amend or modify Co., (Comm. Ct.) 195 Fed. 88. the order of the commission, but 5 Jud. Code, § 207, 36 St. at L. v. as obliged to enforce it, if at all, 1087. in its entirety. Interstate Com- 6 Ibid. § 208. mercc Comm. v. Lake Shore & M. S. Ry. Co., 3 34 Fed. 942. 300 ORIGINAL JURISDICTION. [§ 75 "this chapter would be brought by or against the Interstate "Commerce Commission, shall be brought by or against the "United States, and the United States may intervene in any "case or proceeding in the Commerce Court whenever, though "it has not been made a party, public interests are involved." 7 The attorney general has charge of the interests of the govern- ment in all cases and proceedings in the Commerce Court and in the Supreme Court of the United States upon appeal there- from. He may employ special attorneys and counsel for his assistants. 8 The Interstate Commerce Commission and any party or parties in interest to a proceeding before the com- mission, in which an order or requirement is made, may appear as parties of their own motion and as of right and may be represented by their own counsel, in any suit wherein is in- volved the validity of such order or requirement or of any part thereof and the interest of such party. 9 The court may make all such rules and orders as to such appearance and represen- tations, the number of counsel, and all matters of procedure and otherwise, as will subserve the ends of justice and speed the determination of such suits. 10 Communities, associations, cor- porations, firms and individuals, interested in a controversy or question before the Interstate Commerce Commission or in any suit relating to action of the Interstate Commerce Commission, which may be brought in the Commerce Court, may intervene in such suit or proceedings at any time after the institution thereof, and the attorney general cannot dispose of or discon- tinue the same against the objection by such party or inter- venor ; but such intervenor or intervenors may prosecute, de- fend or continue such suit by proceedings unaffected by 'the action or non-action of the attorney general therein. 11 "Com- plainants before the Interstate Commerce Commission in- terested in a case shall have the right to appear and be made "parties to the case and be represented before the courts by "counsel, under such regulations as are now permitted in similar "circumstances under the rules and practice of equity courts "of the United States." 12 A suit in the Commerce Court is begun by filing a petition setting forth briefly the facts consti- 1 Ibid. § 2J1. 10 Ibid. 8 II, id. § 212. "Ibid. 9 Ibid. 12 Ibid. § 215. § 75] JURISDICTION AXD TERMS OF COMMERCE COURT. 301 tutiug the petitioner's cause of action and specifying the relief sought. 13 A copy of the petition is forthwith served by the marshal or a deputy marshal of the Commerce Court or by the proper United States marshal or deputy marshal upon every defendant therein named, except the United States, and upon the United States when a defendant by filing a copy of the petition in the office of the Secretary of the Interstate Com- merce Commission and in the Department of Justice. 14 An answer to the petition must be filed in the clerk's office within thirty days after its service, unless the time is extended by order of the court or a judge thereof, and at the same time a copy of the answer must be mailed to the petitioner's attorney. 15 The answer must briefly and categorically respond to the allegations of the petition. 16 This sets the case at issue and no replication or other pleading is required. 17 Objections to the sufficiency of the petition or answer, as not setting forth a cause of action or defense, as the case may be, must be specifically taken at the final hearing or by a motion to dismiss the petition made before the answer is filed. 18 If the defendant files no answer, the petitioner may apply on notice for such relief as may be proper upon the facts alleged in the petition. 19 The court may by rule prescribe the method of taking evidence in cases there- in pending and it may prescribe that the evidence be taken before a single judge with power to rule upon the admission of evidence. 20 Otherwise, unless there is a rule of the court to the contrary, the practice and procedure in the Commerce Court conforms as nearly as may be in like cases to that of the Dis- trict Court of the United States. 21 The Commerce Court has no jurisdiction to entertain a complaint because of the refusal of the commission to act; its jurisdiction is limited to the re- view of affirmative orders of the commission. 22 Accordingly, this court has no jurisdiction of a claim by a shipper to re- cover from a carrier excessive freight charges which has not 13 Ibid. § 209. 19 Ibid. 14 Ibid. 20 ibid. 15 Ibid. 21 ibid. 16 Ibid. 22 Proctor & Gamble Co. v. U. S., "Ibid. 225 U. S. 282, 50 L. ed. 1091, (re- 18 Ibid. versing 188 Fed. 221 I. 302 ORIGINAL JURISDICTION. [§ 75 been presented to the commission, 2 * by the claimant 84 nor of a claim upon which the commission has not passed. 25 nor to review the denial by the commission of a petition by a carrier tor leave to refund an excessive freight charge. 8 ' ]t seems that the District Courts of the United States are not deprived of jurisdiction of actions by shippers from the recovery of freight Charges which have been declared by the commission to be ex- cessive, ** and to recover damages under the statute because of secret advantages given by a carrier to his competitor, in vio- lation of its published rates. 28 It seems that this court has jurisdiction of a suit to annul an order of the commission which awards reparation to a complainant under the Interstate Com- merce Act. 29 This court has jurisdiction over a constitutional question dependent upon the provisions of the Interstate Com- merce Act when reviewing an affirmative order of the Commis- sion, but not to review an order by the commission denying a constitutional right asserted in a petition to it, which is inde- pendent of all questions of rights and remedies under this statute. 30 The direction that the order shall contain a finding concerning irreparable damages 31 applies only to a stay of an older of the commission pending an application to the court for an injunction. 32 It has been held that when an order of the commission fixing a rate for the transportation of freight has been directed against several carriers, either of them may pe- tition the Commerce Court for redress without joining the other parties, since the suit is plenary and the injury is several and not joint. 33 23 ibid. 24 National Pole Co. v. Chicago & \. W. Ry. Co., 200 Fed. 185. 25 U. 8. ex rel. Stony Fork Coal Co. v. Louisville & N. R. Co. (Conim. Ct.) 195 Fed. 88. 26 Arkansas Fertilizer Co. v. U. S., (Conim. Ct.) 19.3 Fed. 667. 27 Chicago, B. & Q. R. Co. v. Feintuch, 191 Fed. 482. 28 A. J. Phillips Co. v. Grand Trunk Westei n Ry. Co.. C. C. A.. !95 Fed. 12; Langdon v. Pennsyl- vania R. Co., 194 Fed. 486. 29 Arkansas Fertilizer Co. v. U. S., (Comm. Ct.) 193 Fed. 667: Southern Ry. Co. et al. v. United States (Interstate Commerce Com- mission, Intervener). 30 Proctor & Gamble Co. v. U. S., 225 U. S. 282. 56 L. ed. 1091. SlJud. Code, § 208: .36 St. at L. 1087. 32 r. S. v. P. & O. R. R. Co. 225 U. S. 306. 33 Atlantic Coast Line R. Co. v. Interstate C. Commission, (Comm. Ct.) 194 Fed. 449. § 76] BOARD OF GENERAL APPRAISERS. 303 § 76. Jurisdiction of the Board of General Appraisers. The Payne Tariff Law of August 5, 1909, contains the follow- ing provisions concerning the Board of General Appraisers of merchandise : "§ 12. That there shall be appointed hy the President, by and with the advice and consent of the Senate, nine general appraisers of merchandise. Not more than five of such general appraisers shall be appointed from the same political party. They shall not be engaged in any other business, avocation, or employment. That the office of said general appraisers shall be at the port of New York, and three of them shall be on duty at that port daily as a board of general appraisers. "All of the general appraisers of merchandise heretofore or hereafter appointed under the authority of said Act shall hold their office during good behavior, but may, after due hear- ing, be removed by the President for the following causes, and no other: Neglect of duty, malfeasance in office, or inefficiency. "That hereafter the salary of each of the general appraisers of merchandise shall be at the rate of nine thousand dollars per annum. "That the boards of general appraisers and the mem- bers thereof shall have and possess all the powers of a circuit court of the United States in preserving order, compelling the attendance of witnesses, and the production of evidence, and in punishing for contempt. "All notices in writing to collectors of dissatisfaction of any decision thereof, as to the rate or amount of duties chargeable upon imported merchandise, including all dutiable costs and charges, and as to all fees and exactions of whatever character ( except duties on tonnage), with the invoice and all papers and exhibits, shall be forwarded to the board of nine general ap- praisers of merchandise of New York to be bv rule thereof assigned for hearing or determination, or both. The President of the United States shall designate one of the board of nine general appraisers of merchandise as president of said board and others in order to act in his absence. Said general ap- praisers of merchandise shall be divided into three boards of three members each, to be denominated respectivly Board 1, Board 2, and Board :>. The president of the board shall assign three general appraisers to each of said boards and shall desig- nate one member of* each of said boards as chairman thereof. 304 ORIGINAL JURISDICTION. [§ 76 and such assignment or designation may be by him changed from time to time, and he may assign or designate all boards of three general appraisers where it is no wor heretofore was provided by law that such might be assigned or designated by the Secretary of the Treasury. The president of the board shall be competent to sit as a member of any board or assign one or two other members thereto, in the absence of or inability of any one or two members of such board. Each of the boards of three general appraisers where it is now or heretofore was full power to hear and determine all cases and questions aris- ing therein or assigned thereto; and the general board of nine general appraisers, each of the boards of three general appraisers and each of the general appraisers of merchandise, shall have all the jurisdiction and powers and proceed as now, heretofore, and herein provided. The said board of nine general appraisers shall have power to establish from time to time such rules of evidence, practice, and procedure, not inconsistent with the statutes, as may be deemed necessary for the conduct and uni- formity of its proceedings and decisions and the proceedings and decisions of the boards of three thereof; and the production, care, and custody of. samples and records of said board. The president of the board shall have control of the fiscal affairs and the clerical force of the board, make all recommendations for appointment, promotion, and otherwise affecting said clerical force; he may at any time before trial under the rules of said board assign or reassign any case for hearing, determination, or both, and shall designate a general appraiser, or a board of general appraisers, and, if necessary, a clerk thereto, to proceed to any port within the jurisdiction of the United States for the purpose of hearing, or determining if authorized by law, causes assigned for hearing at such port, and shall cause to be prepared duly promulgated dockets therefor. No member of any of said boards shall sit to hear or decide any case on appeal in the decision of which he may have previously participated. The board of three general appraisers, or a majority of them, who decided the case, may. upon motion of either party made within thirty days next after their decision, grant a rehearing or retrial of said case when in their opinion the ends of justice may require it. "§ 13. That the appraisers shall revise and correct the § 76] BOARD OF GENERAL APPRAISERS. 305 reports of the assistant appraisers as he may judge proper, and the appraisers" at ports where there is no appraiser, the person acting as such, shall report to the collector his decision as to the value of the merchandise appraised. At ports where there is no appraiser the certificate of the customs officer to whom is committed the estimating and collection of duties, of the dutiable value of any merchandise required to be appraised, shall be deemed and taken to he the appraisement of such merchandise. If the collector shall deem the appraisement of any imported merchandise too low, he may, within sixty days thereafter, appeal to reappraisement, which shall he made by one of the general appraisers, or if the importer, owner, agent or consignee of such merchandise shall be dissatisfied with the appraisement thereof, and shall have complied with the re- quirements of law with respect to the entry and appraisement of merchandise, he may within ten days thereafter given notice to the collector, in writing, of such dissatisfaction. The decision of the general appraiser in cases of reappraisement shall be final and conclusive as to the dutiable value of such merchan- dise against all parties interested therein, unless the importer owner, consignee, or agent of the merchandise shall be dissatis- fied with such decision, and shall, within five days thereafter, give notice to the collector, in writing, of such dissatisfaction, or unless the collector shall deem the reappraisement of the merchandise too low, and shall within ten days thereafter appeal to re-appraisement; in either case the collector shall transmit the invoice and all the papers appertaining thereto to the board of nine general appraisers, to be by rule thereof duly assigned for determination. In such cases the general appraiser and boards of general appraisers shall proceed by all reasonable ways and means in their power to ascertain, estimate, and de- termine the dutiable value of the imported merchandise, ami in so doms may exercise both judicial and inquisitorial func- tions. In such cases hearings may in the discretion of the General Appraiser or board of General Appraisers before whom the case is pending be open and in the presence of the importer or his attorney and any duly authorized representative of the Government, who may in like discretion examine and cross- examine all witnesses produced. The decision of the appraiser, or the person acting as such (in case where no objection is Fed. Prac. Vol. I.— 20. f!06 ORIGINAL JURISDICTION. [§ 76 made thereto, either by the collector or by the importer, owner, consignee or agent) or the single general appraiser in case of no appeal, and the board of three general appraisers in all re- appraisement cases, shall be final and conclusive against all parties and shall not be subject to review in any manner for any cause in any tribunal or court, and the collector or the person acting as such shall ascertain, fix and liquidate the rate and amount of the duties to be paid on such merchandise, and the dutiable costs and charges thereon according to law. ''§ 14. That the decision of the collector as to the rate and amount of duties chargeable upon imported merchandise, in- cluding all dutiable costs and charges, and as to all fees and exactions of whatever character (except duties on ton- nage), shall be final and conclusive against all persons in- terested therein, unless the owner, importer, consignee, or agent of such merchandise, or the person paying such fees, charges, and exactions other than duties, shall, within fifteen days after but not before such ascertainment and liquidation of duties, as well in cases of merchandise entered in bond as for consumption, or within fifteen days after the payment of such fees, charges, and exactions, if dissatisfied with such decision, give notice in writing to the collector, setting forth therein distinctly and specifically, and in respect to each entry or payment, the reasons for his objections thereto, and if the merchandise is entered for consumption shall pay the full amount of the duties and charges ascertained to be due thereon. Upon such notice and payment the collector shall transmit the invoice and all the papers and exhibits connected therewith to the board of nine general appraisers, for due assignment and determination as hereinbefore provided ; such determination shall be final and conclusive upon all persons interested therein, and the record shall be transmitted to the proper collector or person acting as such, who shall liquidate the entry accordingly, except in cases where an application shall be filed in the United States Court of Customs Appeals within the time and in the manner provided for in this Act. "§ 15. That the general appraisers, or any of them, are herein- authorized to administer oaths, and said general ap- praisers, the board of general appraisers, the local appraisers or the collectors, as the case may be, may cite to appear before § 76] BOARD OF GENERAL APPRA1SEKS. 307 them, and examine upon oath any owner, importer, agent, con- signee, or other person touching any matter or thing which they, or either of them, may deem material respecting any imported merchandise, in ascertaining the dutiable value or classification thereof; and they, or either of them, may re- quire the production of any letters, accounts, or invoices relat- ing to said merchandise, and may require such testimony to be reduced to writing, and when so taken it shall be filed in the office of the collector, and preserved for the use or reference until the final decision of the collector or said board of ap- praisers shall be made respecting the valuation or classification of said merchandise, as the case may be. "§ 16. That if any person so cited to appear shall neglect or refuse to attend, or shall decline to answer, or shall refuse to answer in writing any interrogatories, and subscribe his name to his deposition, or to produce such papers when so re- quired by a general appraiser, or a board of general appraisers, or a local appraiser or a collector, he shall be liable to a penalty of one hundred dollars ; and if such person be the owner, im- porter, or consignee, the appraisement which the general ap- praiser, or board of general appraisers, or local appraiser or collector, where there is no appraiser, may make of the mer- chandise shall be final and conclusive ; and any person who shall willfully and corruptly swear falsely on an examination before any general appraiser, or board of general appraisers, or local appraiser or collector, shall be deemed guilty of perjury; and if he is the owner, importer, or consignee, the merchandise shall be forfeited. *'§ 17. That all decisions of the general appraisers and of the boards of general appraisers, respecting values and rates of duty, shall be preserved and filed, and shall be open to in- spection under proper regulations to be prescribed by the Secre- tary of the Treasury. All decisions of the general appraisers shall be reported forthwith to the Secretary of the Treasury and to the board of general appraisers on duty at the port of Kew York, and the report to the board shall be accompanied, whenever practicable, by samples of the merchandise in ques- tion, and it shall be the duty of the said board, under the di- rection of the Secretary of the Treasury, to cause an abstract to be made and published of such decisions of the appraisers as o 08 ORIGINAL JURISDICTION. [§ 76 they may deem important, and of the decisions of each of the general appraisers and boards of general appraisers, which abstract shall contain a general description of the merchandise in question, and of the value and rate of duty fixed in each case, with reference, whenever practicable, by number or other des- ignation, to samples deposited in the place of samples al New York, and such abstract shall be issued from time to time, at least once in each week, for the information of customs officers and the public. *'§ 22. No allowance shall be made in the estimation and liquidation of duties for shortage or non-importation caused by decay, destruction or injury to fruit or other perishable articles imported into the United States whereby their commercial value has been destroyed, unless under regulations prescribed by the Secretary of the Treasury. Proof to ascertain such destruction or non-importation shall be lodged with the col- lector of customs of the port where such merchandise has been landed, or the person acting as such, within ten days after the landing of such merchandise. The provisions hereof shall apply whether or not the merchandise has been entered, and whether or not the duties have been paid or secured to be paid, and whether or not a permit of delivery has been granted to the owner or consignee. Nor shall any allowance be made for damage, but the importers may within ten days after entry abandon to the United States all or any portion of goods, wares or merchandise of every description included in any invoice and be relieved from the payment of the duties on the portion so abandoned: Provided, That the portion so abandoned shall amount to ten per centum or more of the total value or quantity of the invoice. The right of abandonment herein provided for may be exercised whether the goods, wares or merchandise have been damaged or not, or whether or not the same have any commercial value. Provided further, That section twenty- eight hundred and ninety-nine of the Revised Statutes, relat- ing to the return of packages unopened for appraisement, shall in no wise prohibit the right of importers to make all needful examinations to determine whether the right to abandon accrues, or whether by reason of total destruction there is a non-im- portation in whole or in part. All merchandise abandoned to the Government by the importers shall be delivered by the im- § 76] BOARD OF GENERAL APPRAISERS. 309 porters thereof at such place within the port of arrival as the chief officer of customs may direct, and on the failure of the importers to comply with the direction of the collector or the chief officer of customs, as the case may he, the abandoned merchandise shall be disposed of by the customs authorities under such regulations as the Secretary of the Treasury may prescribe, at the expense of such importers. Where imported fruit or perishable goods have been condemned at the port of original entry within ten days after landing by health officers or other legally constituted authorities the importers or their agents shall, within twenty-four hours after such condemnation, lodge with the collector, on the person acting as collector, of said port, notice thereof in writing, together with an invoice description and the quantity of the articles condemned, their location, and the name of the vessel in which imported. Upon receipt of said notice the collector, or person acting as col- lector, shall at once cause an investigation and a report to be made in writing by at least two customs officers touching the identity and quantity of fruit or perishahle goods condemned, and unless proof to ascertain the shortage of non-importation of fruit or perishable goods shall have been lodged as herein re- quired, or if the importer or his agent fails to notify the col- lector of such condemnation proceedings as herein provided, proof of such shortage or non-importation shall not be deemed established and no allowance shall be made in the liquidation of duties chargeable thereon. "Sec. 23. That whenever it shall be shown to the satisfaction of the Secretary of the Treasury that, in any case of unascer- tained or estimated duties, or payments made upon appeal, more money has been paid to or deposited with a collector of customs than, as has heen ascertained by final liquidation thereof, the law required to be paid or deposited, the Secretary of the Treas- ury shall direct the Treasurer to refund and pay the same out of any money in the Treasury not otherwise appropriated. The necessarv moneys therefor are hereby appropriated, and this appropriation shall he deemed a permanent indefinite appro- priation; and the Secretary of the Treasury is hereby author- ized to correct manifest clerical errors in any entry or liquida- tion, for or against the United States, at any time within one vear of Hie date of such entrv, hut not afterwards: Provided, 310 ORIGINAL JURISDICTION. [§ 77 That the Secretary of the Treasury shall, in his annual report to Congress, give a detailed statement of the various sums of money refunded under the provisions of this Act or of any other Act of Congress relating to the revenue, together with copies of the rulings under which repayments were made." * § 77. Jurisdiction of the Court of Customs Appeals. The Court of Customs Appeals was created by the Payne Tariff Law of August 5, 1909. 1 It was continued by the Judicial Code which provides for the same as follows: § 188. There shall be a United States Court of Customs Ap- peals, which shall consist of a presiding judge and four associate judges, each of whom shall be appointed by the President, by and with the advice and consent of the Senate, and shall receive a salary of seven thousand dollars a year. The presiding judge shall be so designated in the order of appointment and in the commission issued to him bv the President ; and the associate judges shall have precedence according to the date of their com- missions. Any three members of said court shall constitute a quorum, and the concurrence of three members shall be neces- sary to any decision thereof. In case of a vacancy or of the Temporary inability or disqualification, for any reason, of one or two of the judges of said court, the President may, upon the request of the presiding judge of said court, designate any qualified United States circuit or district judge or judges to act in his or their place ; and such circuit or district judges shall be duly qualified to so act. "§ 180. The said court of Customs Appeals shall always be open for the transaction of business, and sessions thereof may, in the discretion of the court, be held in the several judicial circuits, and as such places as said court may from time to time designate. "§ 104. The said Court of Customs Appeals shall be a court of record, with jurisdiction as in this chapter established and limited. It shall prescribe the form and style of its seal, and the form of its writs and other process and procedure, and exer- cise such powers conferred by law as may be conformable and necessary to the exercise of its jurisdiction. It shall have power to establish all rules and regulations for the conduct of the busi- § 7G. 136 St. at L. 11. § 77. 136 St. at L. 11, 105, § 77] COURT OF CUSTOMS APPEALS. 311 ness of the court, and as may be needful for the uniformity of decisions within its jurisdiction as conferred by law. It shall have power to review any decision or matter within its juris- diction, and may affirm, modify, or reverse the same and remand the case with such orders as may seem to it proper in the prem- ises, which shall be executed accordingly. "§ 195. The Court of Customs Appeals established by this chapter shall exercise exclusive appellate jurisdiction to review by appeal, as herein provided, final decisions by a Board of General Appraisers in all cases as to the construction of the law and the facts respecting the classification of merchandise and the rate of duty imposed thereon under such classification, and the fees and charges connected therewith, and all appealable questions as to the jurisdiction of said board, and all appealable questions as to the laws and regulations governing the collec- tion of the customs revenues; and the judgments and decrees of said Court of Customs Appeals shall be final in all such cases. "§ 196. After the organization of said court, no appeal shall be taken or allowed from any Board of United States General Appraisers to any other court, and no appellate jurisdiction shall thereafter be exercised or allowed by any other courts in eases decided by said Board of United States General Appraisers ; but all appeals allowed by law from such Board of General Apprais- ers shall be subject to review only in the Court of Customs Appeals hereby established, according to the provisions of this chapter: Provided, That nothing in this chapter shall be deemed to deprive the Supreme Court of the United States of jurisdiction to hear and determine all customs cases which have heretofore been certified to said court from the United States circuit courts of appeals on applications for writs of certiorari or otherwise, nor to review by writ of certiorari any customs case heretofore decided or now pending and hereafter decided by any circuit court of appeals, provided application for said writ be made within six months after August fifth, nineteen hundred and nine; Provided further, That all customs case- decided by a circuit or district court of the United States or a court of a Territory of the United States prior to said date above mentioned, and which have not been removed from said courts by appeal or writ of error, and all such cases theretofore submitted for decision in said courts and remaining undecided ;J12 ORIGINAL JURISDICTION. [§ 77 may be reviewed on appeal at the instance of either party by the United States Court of Customs Appeals, provided such appeal be taken within one year from the date of the entry of the or- der, judgment, or decrees sought to be reviewed." 2 "§ 198. If the importer, owner, consignee, or agent of any imported merchandise, or the collector or Secretary of the Treasury, shall be dissatisfied with the decision of the Board of General Appraisers as to the construction of the law and the facts respecting the classification of such merchandise, and the rate of duty imposed thereon under such classification, or with any other appealable decision of said board, they, or either of them, may, within sixty days next after the entry of such de- cree or judgment, and not afterwards, apply to the Court of Customs Appeals for a review of the questions of law and fact involved in such decision: Provided, That in Alaska and in the insular and other outside possessions of the United States ninety days shall be allowed for making such application to the Court of Customs Appeals. Such application shall be made by filing in the office of the clerk of said court a concise statement of errors of law and fact complained of; and a copy of such statement shall be served on the collector, or on the importer, owner, consignee, or agent, as the case may be. Thereupon the court shall immediately order the Board of General Appraisers to transmit to said court the record and evidence taken by them, toe-ether with the certified statement of the facts involved in the case and their decision thereon ; and all the evidence taken by and before said board shall be competent evidence before said Court of Customs Appeals. The decision of said Court of Customs Appeals shall be final, and such cause shall be re- manded to said Board of General Appraisers for further pro- ceedings to be taken in pursuance of such determination. "§ 190. Immediately upon receipt of any record transmitted to said court for determination the clerk thereof shall place the same upon the calendar for hearing and submission, and such calendar shall be called and all cases thereupon submitted, except for good cause shown, at least once every sixty days: Provided, That such calendar need not be called during the month of July and August of any Year." Prior to the creation of this court, the (pies! ions of law and fact involved in the de- 2 36 St. at L. 1087. ^ 77] COURT OF CUSTOMS APPEALS. 313 cisions of the Board of General Appraisers were reviewed by the Circuit Court of the United States within the district in which the matter arose. 3 No appeal would lie from the deci- sion of the Hoard of General Appraisers ascertaining and fixing the dutiable value of goods when the board had acted regularly and without fraud or other misunderstanding. 4 The return of the hoard was compared to a master's report. 5 Where, on re- view by a Circuit Court of a decision of the Board of General Appraisers, the record returned by the Board was defective by reason of the loss of the evidence on which the Board's findings were based, it wjis held that, no other evidence being presented, is must be conclusively presumed that the findings by the Board were proper and justifiable. 6 The Board may make a different finding from the local appraiser without taking additional evi- dence. 7 In a case where the only fact certified by the appraisers was that "silk is the component material of chief value," it was held that the return should be sent back for a further statement. Judge Lacombe then said: "Had the board also certified that the articles were correctly described in the invoice or entry, or in the appraisers' return, there might be sufficient; but, as it is, there is nothing to show wdiat the articles really are." 8 In a case where the return stated that "all the facts involved in said case, so far as ascertained by the board, are fully stated in [a certain opinion] and decision annexed thereto; and in such opinion it was stated, that inasmuch as some of the questions raised by protest were "understood to be now pending in the United States courts, [they] do not deem it advisable to enter into the merits of the same, but affirmed the [collector's] as- sessment of dues;" a further return was ordered. 9 A single day's delay after the period of thirty days allowed for filing the application compelled the dismissal of the appeal although the parties have gone to trial in the Circuit Court upon the merits "' 10 3 26 St. at L., ch. 407, § 15, 6 Schoellkopf, Hartford & Ma- p. 131; 35 St. at L. 403. See Louis- clagan v. U. S., 147 Fed. 855. ville Pub. W. Co. v. Collector, 49 7 TJ. S. v. Strauss Bros. & Co., 128 Fed. 501. Fed. 473. 4Passavant v. U. S., 148 U. S. 8 R e DieckerhofT. 45 Fed. 235. 214, 37 L. ed. 420. 9 Re Blumlein, 45 Fed. 230: Re 5 Re Van Blankeusteyn, C. C. A., Downing. 45 Fed. 412. 56 Fed. 474. 10 Carriere & Son v. U. S., 163 Fed. 1009. 314: OlUGINAL JURISDICTION. [§ 77 The provision in the former Act, that upon an appeal to the Circuit Court the board should return "the record and the evi- dence taken before them," was held not to require the return of evidence which was excluded. 11 Where a party wished to have the court upon appeal review evidence that had been excluded, he was required either to except below to the ruling excluding the same and bring the matter up by assignments of error or else offer it as additional evidence upon the appeal. 12 An importer who had offered evidence before the board was not thereby pre- cluded from introducing new evidence in the Circuit Court upon an appeal from the board's decision. 13 Where no new evi- dence was offered by the importers before the Board of General Appraisers, it was held that they could offer none before the Circuit Court. 14 11 Harris v. U. S., 177 Fed. 475. 12 Ibid. 13 Wm. Wolff & Co. v. U. S., 168 Fed. 970. 14 William F. Allen & Co. .v. U. S., 127 Fed. 777. See also U. S. v. Klingenberg, 153 U. S. 93, 38 L. od. (547; U. S. v. Jahn, 155 U. S. 109, 39 L. ed. 87; U. S. v. Lies, 170 U. S. 628, 42 L. ed. 1170; Earn- shaw v. U. S. 146 U. S. 60, 36 L. ed. 887 ; Apgar v. Q. S., C. C. A., 78 Fed. 332; Marine v. Lyon, C. C. A., 65 Fed. 992; U. S. v. Davis, C. C. A., 54 Fed. 147 ; Re Marquand, 57 Fed. 189; U. S. v. Rosenwald, C. C. A., 67 Fed. 323; White v. U. S., C. C. A., 72 Fed. 251 ; U. S. v. Lies, 74 Fed. 546; U. S. v. Kenwortliy, C. C. A., 68 Fed. 904; "Zante Cur- rants," 73 Fed. 183; Sang Lung v. Jackson, 85 Fed. 502; Foster v. Vocke, 60 Fed. 745; Be Chase, 50 Fed. 695; Re Wyman, 45 Fed. 469; Re Sternbach, 44 Fed. 413; Re Sherman, 49 Fed. 224 ; s. c, sub nom. Re Collector of Customs, C. C. A., 55 Fed. 276; Re Kursheedt Mfg. Co., 49 Fed. 633; s. c, C. C. A., 54 Fed. 159; Re Muser, 49 Fed. 831; Re Crowly, 50 Fed. 465; S. c, C. C. A., 55 Fed. 283; Re Bache, 54 Fed. 371 ; s. c, U. S. v. Baehe, C. C. A., 59 Fed. 762; Mexican Onyx & Tr. Co. v. U. S., 66 Fed. 732; Re Buffalo Natural Fuel Co., 73 Fed. 191; s. c, U. S. v. Buffalo N. G. F. Co., C. C. A., 78 Fed. 110; Stern v. U. S., 77 Fed. 607; Lesser v. U. S., 89 Fed. 197; U. S. v. Hahn, 91 Fed. 755; Morris E. & A. Ex. Co. v. U. S., 94 Fed. 643; Re F. W. Myers & Co., 123 Fed. 952. CHAPTER II. JURISDICTION IN EQUITY. § 78. Equitable jurisdiction in general. Equity is that system of jurisprudence which was administered by the High Court of Chancery of England in the exercise of its extraordi- nary jurisdiction, and which has been amplified and extended by the more modern decisions of the English and American courts. It owed its origin to a desire upon the part of the English sov- ereigns and their chancellors to supplement the deficiencies and soften the rigors of the common law; and whereas the well- springs of this were such of the customs of the German tribes as had been brought with them from their Fatherland by the Jutes and Angles ; 2 those of that, which was administered at first conclusively bv ecclesiastics are in the canon, which was itself derived from the greatest monument of the genius of Ancient Rome, the civil law. 3 Since the time of Xottingham, before whom each succeeding chancellor had decided the cases brought before him in accordance with his own notions of what was proper, or in the language of Selden, 4 measured justice out by the length of his foot, the same respect has been paid to precedent in the courts of equity and common law. But the rules regulating the remedies administered by the former are much more plastic. And even at the present time cases often occur where the judges sitting at equity, with the approval and assistance of the profession, invent and adopt new remedies suited to a state of society and of civilization unknown and not anticipated when the procedure in chancery first assumed the form that it still substantially retains. 5 The chronicles of the § 78. 1 Mitford's Pleadings ; Bisp- 5 Kennedy v. St. Paul & Pacific ham's Equity. § 1. E. Co., 2 Dill. 448; Wallace v. 2 Holmes' Com. Law. Loomis, 07 U. S. 140. 24 L. ed. 895; 8Langdell's Eq. PI., Introduction. Joy v. St. Louis. 138 U. S. 1, 50, 4 Seld°en's Table Talk, Title 34 L. ed. 843, 850 ; Toledo, A. A. & "Equity." N - M - R y- Co - v - Pennsylvania Co., 315 316 JURISDICTION IX EQUITY, [{ growth and development of equity abound with names well known to the students, as well of general history as of juris- prudence. Among them Wolsey, More, Bacon, Clarendon, Somers, and Erskine are the most familiar to the former, while the members of the profession look back with especial admira- tion upon the careers of Nottingham, Hardwicke, Eldon, West- bury, Kent, Story, and Taney. Although originally no one could seek their aid who was not denied justice by the courts of common law ; yet after he had once shown a title to their as- sistance, courts of equity would almost always give a suitor com- plete relief in the matter about which he complained. 6 And now that since the time of Mansfield the courts of common law have, abandoning their former jealousy, in many instances of their own accord as well as under the compulsion of statutes, accepted doctrines first created by courts of equity, 7 the latter have not felt obliged to relinquish the jurisdiction which they formerly acquired. 8 One of the marked characteristics which distinguish equity from the common law, is that, while the lat- ter, as a general rule, acts against and exercises control over property alone; has but a very limited and merely incidental power, mostly borrowed from chancery, to enforce obedience to a personal command, its procedure being founded upon the theory that the parties to an action owe no obedience to the court; 9 and is consequently restricted in its operation when the property which is the subject of a contention is beyond the reach of its writs ; equity acts directly against and exercises complete control over persons, and does not lose jurisdiction when the parties are subject to its process, because the property over which it thereby assumes control is beyond the territory under those laws whence its own power is derived. 10 19 L.R.A. 395, 5 Inters. Com. Rep. 545, 54 Fed. 746, 751; Wallwortb. v. Holt, 4 Mylne & Cr. G19. 6 1 Fonblanque's Equity, b. i, ch. i ; § 3, note (/) ; Motteux v. London Assur. Co.. 1 Atk. 545: Tayloe v. Merchants' Fire Tns. Co., 9 How. 390, 405, 13 L. ed. 187. 7 Moses v. Macferlan, 2 Burr. 1005; Dickerson v. Colgrove, 100 U. S. 578, 25 L. ed. 618. 8 Putnam v. New Albany, 4 Biss. 365. 9 Langdell's Eq. PL, § 40. 10 Archer v. Preston, 1 Eq. Cas. Ab. 133, pi. 3, cited and followed in Arglasse v. Muschamp, 1 Vern. 75; s. c.. 1 Vein. 135: Penn v. Lord Baltimore. 1 Yes. Sr. 444; Massie v. Watts. 6 Crunch. 148, 3 L. ed. 181; Muller v. Dows, 94 U. S. 443, 24 L. ed. 207, at Pages 449-450. The au- § TO] SURVEY OF EQUITABLE JURISDICTION. 317 § 79. General survey of the jurisdiction of courts of equity. The jurisdiction of courts of equity is exercised either for the protection of rights which the common law does not rec- ognize; or for the prevention or redress of wrongs for which the common law affords no adequate remedy. A full considera- tion of this topic is beyond the scope of this treatise. The fol- lowing summary, although imperfect, may occasionally assist the reader. The rights which a court of equity alone respects are: the rights of beneficiaries under a trust, 1 either express or thorities are well collected in a learned opinion by Judge, subse- quently Chief Judge, Henry E. Davies, in Gardner v. Ogden, 22 N. Y. 327, 78 Am. Dec. 192. Cf. Car- penter v. Strange, 141 U. S. 87, 106, 35 L. ed. 640, 647, cited infra, § 325. § 79. l Stuart v. Mellish, 2 Atk. 610; New Orleans v. Morris, 105 U. S. 600, 26 L. ed. 1184; Smith v. Am. Nat. Bank, C. C. A., 89 Fed. 832. By a legatee against an ex- ecutor, Mayer v. Foulkrod, 4 Wash. C. C. 349; Speckart v. Schmidt, C. C. A., 190 Fed. 499; and by one of the next of kin against an ad- ministrator and his sureties, Payne v. Hook, 7 Wall. 425, 19 L. ed. 200; Pratt v. North am, 5 Mason, 95, supra, § 54 ; to recover the com- plainant's share of a decedent's es- tate. So may an executor to estab- lish his individual claim against the estate. Glover v. Patten, 165 U. S. 394, 41 L. ed, 760. By a married woman to recover money which belongs to her separate es- tate, Hunt v. Danforth, 2 Curt. 592. By a municipal corporation to en- join the sale on execution of prop- erty held by it in trust, New Or- leans v. Morris, 105 U. S. 600, 20 L. ed. 1184. By a trustee and his beneficiary to obtain possession of land subject to the trust, Harrison v. Rowan, 4 Wash. C. C. 202. To recover from a bank money of the plaintiff deposited by a third per- son in the latter's name, Union S. Y. Bank v. Gillespie, 137 U. S. 411, 420, 34 L. ed. 724, 727; National Bank v. Insurance Co., 104 U. S. 54, 26 L. ed. 658. To compel the assignment to a principal by his agent of judgments recovered by the latter for the benefit of the former, Burke v. Davis, 63 Fed. 456. But not a bill by the assignee of a cause of action to enforce for his own use the legal right of his assignor, when he seeks the aid of equity merely upon the ground that he cannot maintain an action at law in his own name, Hayward v. Andrews, 100 U. S. 672. 27 L. ed. 271: New York Guaranty Co. v. Memphis Water Co., 107 U. S. 205, 27 L. ed. 484. In the absence of any statu- tory restrictions, by a resident tax- payer in a county to prevent an ille- gal disposition of the county funds, or the illegal creation of a debt which he in common with the other property holders there may be com- pelled to pay, Field, J., in Cramp- ton v. Zabriskie, 101 U. S. 601. 609, 25 L. ed. 1070, 1071. By the bene- ficiary of a trust against his trus- tee and a debtor of the trust estate to enforce a cause of action be- longing to the trust estate, upon which the trustee has refused to sue, U. S. v. Myers, 2 Brock. 516: 318 J l KISDICTION IN EQUITY, [i Davis v. Davis, 89 Fed. 532; Brun v. Mann, 12 L.R.A.(N.S.) 154, 151 Fed. 145. By a stockholder in a corporation to recover its money fraudulently misappropriated by its directors, Gindrat v. Dane, 4 Cliff. 260. See infra, § 145. But not, by a stockholder, to recover damages for a depreciation of his stock, by an injury to the property or busi- ness of the corporation, Kelly v. Mississippi River Coaling Co., 175 Fed. 4S2. For a case where a mi- nority dissenting stockholder was refused a decree for an accounting by a consolidated railroad company, when he objected to the merger of his corporation therein, see Miller v. Chicago & A. R. Co., 198 Fed. G95. By a stockholder against a corporation to compel the transfer of stock fraudulently transferred to another. Kilgour v. N. 0. Gas-Light Co., 2 Woods, 144; and to compel the transfer of stock to its equita- ble owners, Mechanics' Bank v. Seton, 1 Pet. 299, 7 L. ed. 152; Jessup v. Chicago & N. W. Ry. Co., 188 Fed. 931, unless it has been acquired unconscientiously or for speculative purposes, Mississippi & Mo. R. Co. v. Cromwell. 91 U. S. 043. 23 L. ed. 307; Foil's Appeal, 91 Pa. St. 434, 438, 36 Am. Rep, 671; Randolph's Ex'r v. Quidnick Co., 135 U. S. 457, 34 L. ed. 200. '"It has been held that a person may purchase stock in a corpora- tion for the very purpose of bring- ing a stockholder's suit, and that the law will not inquire into the motive which actuated his purchase. Bloxom v. Met. Railway, L. R. 3 Ch. App. 337: Seaton v. Grant, L. R. 2 Ch. App. 459; Elkins v. Cam- den & Atlantic Railroad. 30 N. J. Fq. 5." Brown, J., in Dickerman v. Northern Trust Co.. 176 U. S. 181, 192, 44 L. ed. 423, 430. See Jahu v. Champagne Lumber Co., 147 Fed. 631. In the absence of statutory authority, a private indi- vidual cannot file a bill to obtain the forfeiture of a corporate fran- chise, Gaylord v. Fort Wayne, M. & C. R. Co., 6 Biss. 286. Nor a stock- holder a bill to dissolve a foreign corporation under a statute of the country which chartered it, Repub- lican Silver Mines v. Brown, 24 L.R.A. 776, 58 Fed. 644. But see F. L. & Tr. Co. v. Sioux Falls. 131 Fed. 890. Nor, in the absence of a State or Federal statute, can a bill for the dissolution of a State cor- poration be maintained, Jacobs v. Mexican Sugar Co., 130 Fed. 589, 592. where the court said that the New Jersey statute, authorizing a dissolution of a corporation by the state court of chancery, could be followed by the Federal court. Tn Conklin v. U. S. Ship Building Co., 140 Fed. 219, held, that such a stat- ute could not be followed by the Federal court, infra, § 82. For the power of congress to enact a statute regulating the internal management of state corporations and authoriz- ing the disintegration of its assets by the Federal courts, see Northern Securities Co. v. U. S., 193 U. S. 197, 48 L. ed. 679. Nor can a cor- poration be enjoined from acting be- yond its legal powers at the suit of a business rival not one of its stock- holders, Railroad Co. v. Fllerman, 105 U. S. 160, 26 L. ed. 1015. To compel specific performance of a contract for the sale of a patent- right. Hall v. Pitrat, 45 Fed. 94, of a contract to issue an insurance policy, and in the same suit to com- pel payment of the policy, Tayloe v. Merchants' F. Ins. Co., 9 How. 390, 13 L. ed. 187; Hebert v. Mu- tual L. Ins. Co.. 12 Fed. S07 : Brug- ger v. State Inv. Ins. Co.. 5 Saw. 79] SURVEY OF EQUITABLE JURISDICTION. 319 304; of a contract for the purchase of an entire stock of general mer- chandise for a lump sum, that had been paid when it was alleged that defendant had delivered about two- tin rds of the goods, but refused to deliver the remainder, which he had concealed, so that complainant could not obtain them by an action of re- plevin, Raymond Syndicate v. Brown, 124 Fed. 80; of a contract between a railroad and a telegraph company, authorizing the mainte- nance and operation of the tele- graph line upon the railroad com- pany's right of way, with a provi- sion for free telegraph service to be given to the railroad company, and a graoit to the railroad company of the right to string and use a wire. Western Union Tel. Co. v. Pennsyl- vania Co., C. C. A., 68 L.R.A. 968, 129 Fed. 849; Pennsylvania R. Co. v. St. L., A. & T. H.*R. Co., 118 U. S. 290, 30 L. ed. 83; Franklin Tel. Co. v. Harrison, 145 U. S. 459, 30 L. ed. 83; St. Louis A. & T. H. R. Co. v. I. & St. L. R. Co., 9 Biss. 144. But not of a contract containing a power of revocation by the defend- ant, Express Co. v. Railroad Co., 99 U. S. 191, 25 L. ed. 319. It has been held that a provision that the employer may terminate by ten days' notice a contract does not pre- vent his obtaining an injunction against its violation by the em- ployee. Phila. Ball Club v. Lajoie, 202 Pa. 210, 58 L.R.A. 227, 90 Am. St. Rep. 627, 51 Atl. 973. Nor of a bill to compel a railway company to maintain its permanent terminus at a certain place, Texas & Pac. Ry. Co. v. Marshall, 136 U. S. 393, 34 L. ed. 385. But a bill was sustained to compel specific performance of a covenant, to construct and to main- tain a station upon land which the complainant had conveyed to a rail- road company, Murray v. North- western R. Co., 64 S. C. 520, 42 S. E. 617. Nor, except perhaps under special circumstances, to compel a railroad company to compel specific performance by either party to a contract for the construction of a railroad, Strang v. Richmond, P. & C. R. Co., 93 Fed. 71. See also Fal- lon v. Railroad Co., 1 Dill. 121; Ross v. Union Pac. Ry. Co., 1 Woolw. 26. As early as Year Book 8 ed. IV. 4, it was held that spe- cific performance of a contract to build could be decreed. But the adequacy of the plaintiff's remedy at law, as he could have the work done by a stranger to the contract, as well as the difficulty of super- vision, afterwards led the courts to refuse to take jurisdiction in the case of an ordinary building con- tract. Errington v. Aynesly (1788) 2 Bro. Ch. 341 ; Lucas v. Commer- ford (1790) 3 Bro. Ch. 166. Where, however, the building is to be done on land conveyed to the defendant as consideration the plaintiff can obtain the expected benefit in no other way; and in such cases the courts do not always find insur- mountable the difficulty that super- vision of the construction or even of indefinite maintenance is in- volved. Hood v. N. E. R. Co. (1869) L. R. 8 Eq. 666; Gregory v. Ingwersen (1880), 32 N. J. Eq. 199; Lawrence v. Saratoga Lake R. Co. (1885). 36 Hun, 467; Jones v. Parker (1895), 163 Mass. 564, 47 Am. St. Rep. 485, 40 N. E. 1044. It has been said that a court of equity has no power to seize a man's property, and through its officers complete a bridge in pursuance of a contract which he has made. Texas & St. Louis Ry. Co. v. Rust, 17 Fed. 275. To establish an attor- ney's lien. Coram v. Ingersoll, 211 320 JUKI SDK TION IN EQUITY. [§ 79 implied, — which latter term includes those which are resulting' or constructive : 3 the right to be relieved from an obligation which has been entered into, or to recover a right which has been lost by accident, — 4 which expression is said to include the cases where one has become subject to a penalty or forfeiture. 5 or has lost a document the possession of which was essential to his success in an action at common law, 6 and is also often used to bolster up a weak equity of another kind — ; 7 by mistake, 8 — which must be mutual, material, and not caused by the negli- gence of the party seeking relief, 9 and which, if solely of a point U. S. 335. By the holder of a cor- porate bond or other claim to en- force his lien upon tolls or other income pledged to secure its pay- ment. Good Templars' L. Ass'n v. United L. I. Ass'n, 59 Fed. 220; Grand Trunk Ry. Co. v. Central Vt. Ry. Co., 85 Fed. ST. See Townsend v. Yanderwerker, 160 U. S. 171, 40 L. ed. 383; Vallette v. White W. V. C. Co., 4 McLean, 192. 2 Dyer v. Dyer, 2 Cox Eq. Cas. 92 ; Hoxie v. Carr, 1 Sumn. 173. 3 National Bank v. Insurance Co., 104 U. S. 54, 64-71, 26 L. ed. 693, 698-700. 4L. Bucki & Son Lumber Co. v. Atlantic Coast Line Co., C. C. A., 116 Fed. 1. To enjoin a township from setting up, as a defense to an action upon bonds issued by it, the accidental omission of the town seal thereon. Bernard's Township v. Stebbins, 109 U. S. 341, 27 L. ed. 956. 5 1 Spence Eq.. §§ 629, 630: Bisp- ham's Eq., § 178. Mortgages are included under this head. Mitford's PI. 118-276; Story's Eq. Jur., § 89. To set aside a contract entered into by a mistake of law, the execution of which would subject the com- plainant to penalties under the anti-trust law. Chalmers Chemical Co. v. Chadeloid Chemical Co., 175 Fed. 995. 6 Savannah Nat. Bank v. Haskins, 101 Mass. 370, 3 Am. Rep. 373; Donaldson v. Williams, 50 Mo. 408; Story's Eq. Jur., § 84; Bispham's Eq., §§ 176, 177. But not. it has been said, to assist in maintaining an action for a tort. Security S. & L. Ass'n v. Buchanan, C. C. A., 66 Fed. 799. Story's Eq. Jur., §§ 90-99; Bisp- ham's Eq., §§ 182, 183. Cases where this head of equity is invoked for relief against a defective execution of a power are included here. 8 For a case where relief was de- nied because of negligence, see Ar- mour & Co. v. Renaker, 191 Fed. 48. The court refused to set aside a judgment recovered in favor of the United States through an alleged misunderstanding between the de- fendant and the district attorney. Buckley v. U. S., 196 Fed. 429. 9 Bispham's Eq., § 191; Whitte- more v. Farrington, 76 N. Y. 452; McFerran v. Taylor, 3 Cranch, 281, 2 L. ed. 440; Elliott v. Sackett, 108 U. S. 132, 27 L. ed. 678; Williams v. U. S.. 138 U. S. 514, 34 L. ed. 1026; Duke of Beaufort v. Neeld, 12 CI. & Fin. 248, 286; Stephenson v. Wilson, 2 Vern. 325: New River Mineral Co. v. Seeley, C. C. A., 120 Fed. 193. To reform an instrument executed by mistake. Walden v. § T9] SURVEY OF EQUITABLE JURISDICTION. 321 of law, will very rarely release one from his contractual obli- gations — ; 10 by fraud, whether actual n or constructive ; 12 or by Skinner, 101 U. S. 577, 25 L. ed. 963. io Hunt v. Rousmanier's Adm'rs, 8 Wheat. 174. 215, 5 L. et when the hill is tiled by one who has never placed himself in privity with the United States by the ac- ceptance of a grant, or settlement 334 JURISDICTION IN EQUITY. [§ 79 apparent flaw in, a person's title, or would render it difficult for him to resist an unjust demand, or to dispose of property by sale. It has been said: "To give a court of equity jurisdiction, the nature of the relief asked must be equitable, even when the suit is based on an equitable title." 32 The inadequacy of the remedy at law which will justify relief in equity does not con- sist merely in its failure to produce the relief sought, — that is a. not unusual result of all remedies, — but that in its nature or' character it is not fitted or adapted to the end in view. 33 Where a bill rightfully invokes the equitable jurisdiction of the court, the court cannot refuse to entertain it because of condi- tions that came into existence after it w 7 as filed. 34 He who seeks equity must come with clean hands. 35 This doctrine is most frequently enforced in trademark cases where a party whose trademark contains a fraudulent representation is denied re- lief. 36 It relates to the subject-matter of the suit only, and improper conduct by the complainant in matters not and improvement, or occupation, en- try or payment. Campbell v. Wey- erhaeuser, C. C. A., 161 Fed. 332. A person whose application to pur- chase has been rejected by the Land Department cannot bring such a suit. Ibid. "It is possible that one who holds land under grant from the United States, who has done everything in his power to en- title him to a patent (which he cannot compel the United States to issue to him), and is deemed the legal owner, so far as to render the land taxable to him by the State in which it lies, may be considered as having sufficient title to sustain a a bill in equity to quiet his right and possession." Gray, J., in Frost v. Spitley. 121 U. S. 552, 556, 30 L. ed. 16 16: citing Carroll v. Saf- ford. 3 How. 441, 463, 11 L. ed. 671 ; Van Wyrk v. Knevals. 106 U. S. 360, 370, 27 L. ed. 201 ; Van Brock- lin v. Tennessee. 117 U. S. 151, 169, 20 L. ed. 845, 851. 32 Fussell v. Gregg, 113 U. S. 550, 554, 28 L. ed. 993, 994, per Woods, J. 33 Miller, J., in Thompson v. Al- len County, 115 U. S. 550. 554, 29 L. ed. 472^ 473. Cf. Texas & P. Ry. Co. V. Marshall, 136 U. S. 303, 405, 34 L. ed. 385, 300. 34 Carnegie Steel Co. v. Colorado Fuel & Iron Co., 165 Fed. 195. 35 Primeau v. Granfield, C. C. A., 193 Fed. 911; Mathews v. Wayne Junction Tr. Co., 197 Fed. 237; Pickford v. Talbott, 225 U. S. 651, 56 L. ed. 1240: Dancigar v. Stone, 187 Fed. 853. It is no defense to a contract which has been performed by the promisee, that the promisor knew that the performance of the agreement might aid the former to violate public policy, when the two parties did not conspire to accom- plish that result, nor share in the benefits of such a violation. Me- chanics' Ins. Co. v. Hoover Distill- ing Co.. C. C. A.. 31 L.Pv.A.(X.S.) 873, 182 Fed. 590. 36Ubeda v. Zialcita, 226 U. & § 79J SURVEY OF EQUITABLE JURISDICTION. 335 therewith connected will not bar equitable relief. 37 Except in an extraordinary case, it will not defeat a suit to enjoin the in- fringement of a patent because the complainant denies the public the right to use the invention which it protects, 38 nor be- cause he uses the same in such a manner as to restrain trade in interstate commerce. 39 It has been held : that it does not apply to a case where, subsequent to suit brought, the complainant has been guilty of reprehensible conduct, which does not affect the cause of action, 40 and that plaintiff might recover at common law when he repudiated a contract to commit a fraud upon strangers and sued to recover the money he had paid thereunder, on the ground that he had been induced to enter into the same by fraud, since he was not in pari delicto with the defendant. 41 The doc- trine does not apply to a defendant who does not seek affirmative relief. 42 "A man by committing a fraud does not become an outlaw and caput lupinum."* 3 "He may have no standing to rescind his transaction, but when it is rescinded by one who has the right to do so the courts will endeavor to do substantial jus- tice so far as is consistent with adherence to law." 44 The 452, 57 L. ed. — . The doctrine has 39 Henry v. A. B. Dick Co., 224 not been extended so as to deny U. S. 1, 50 L. ed. 045. the right to sue for the infringe- 40 Chute v. Wisconsin Chemical ment of a trademark or unfair com- Co., 185 Fed. 115. petition, by imitation thereof, when « Stewart v. Wright, C. C. A., the trademark is a label which con- 147 Fed. 321. tains a notice of a copyright that « Armour & Co. v. Renaker, 191 does not exist. Fed. 48. 37 Camors-McConnell v. McCon- « Stoffela v. Nugent, 217 U. S. nell, 140 Fed. 412; holding that 499, 501, 54 L. ed. 850, 858, per a bill to enforce, by injunction, a Holmes, J. contract for the sale of property 4 * Ibid. Where municipal bonds and the good will therewith con- have been issued to an amount be- nected, should not be dismissed be- yond the constitutional limit, a cause the purchaser acquired the bondholder may sue to obtain a ju- property for the purpose of obtain- dicial determination as to what ing a monopoly of the business and part, if any, of the debt thus cre- in pursuance of an illegal combina- ated can be enforced. Everett v. tion in restraint of trade. Independent School District, 109 38 Continental Paper Bag Co. v. Fed. 097. 702; Truman v. Inhabi- Eastern Paper Bag Co., ( Paper Bag tants of Town of Harmony, 198 Patent Case) 2 Hi l. S. 405, 430, 52 Fed. 557. L. ed. 1122, 1133. 336 JURISDICTION IN EQUITY. [§ 80 maxim that he who seeks equity must do equity does not apply to a defendant. 45 § 80. The distinction between law and equity in the Federal courts. The fact that those who framed the Consti- tution thought it necessary to mention law and equity separate- ly, when blocking out the. jurisdiction of the Federal courts, has caused some judges to think, and even to say in their opinions, that it was thereby intended that these branches of the law should always be kept apart. 1 The better opinion, however, seems to be that this distinction between law and equity is en- forced by the Constitution only to the extent to which the Seventh Amendment forbids any infringement of the right of trial by jury," as fixed by the common law. TheEquity Rules of 1912 provide: "If at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, it shall be forthwith transferred to the law side and be there proceeded with, with only such alteration in the pleadings as shall be essential." 3 "If in a suit in equity a mat- ter ordinarily determinable at law arises, such matter shall be determined in that suit according to the principles applicable without sending the case or question to the law side of the court." 4 Previously, it had been held that, where, in a suit for a partition, the defendant denied the title of complainant and pleaded sole seisin in himself, an issue was raised triable only at law, and that the suit in equity must be stayed to per- mit the plaintiff to bring an action at law for that purpose. 5 § 81. General rules affecting the jurisdiction in equity of the Federal courts. The jurisdiction in equity of the Fed- eral courts is, subject to the limitations of the Constitution, sub- 45 Columbus v. Mercantile Trust Co., 2] 8 U. S. G45. § 80. 1 Parsons v. Bedford, 3 Pet. 433, 7 L. ed. 732; Bennett v. Butterworth, 11 How. 669, 674, 13 L. ed. 859, 861 ; Hipp v. Babin, 19 How. 271, at p. 277, 15 L. ed. 633, 634: Feiin v. Holme, 21 How. 481, 486; Costs in Civil Cases, 1 Blatchf. C. C. 652. 654; Butler v. Young. 1 Flip. 276, 278; Meade v. Beale, Taney, 339, at p. 361; Thompson v. Railroad Cos., 6 Wall. 134. 18 L. ed. 765; Reubens v. Joel, 13 N. Y. 488, p. 497. A similar remark is contained in the message of President Taft on Dec 7th 1909. 2 Mr. Justice Matthews in Root v. Railway Co.. 105 U. S. .189, 206. 26 L. ed. 975. 981. Cf. Ex parte Boyd, 105 U. 8. 647, 26 L. ed. 1200. 3Eq. Rule 22. 4 Eq. Rule 23. 5 Gilbert v. Hopkins, 171 Fed. 704. § 81] FEDERAL EQt'TTABLE JtTBTSDICTION. 337 stantially the same as that of the English Court of Chancery in 1787, when the Federal Constitution was adopted; 1 though, in the absence of special statutory authority, they do not have those extrajudicial powers which were exercised over the per- sons and estates of infants, idiots, lunatics, and charities by the Lord Chancellor, as the representative of the sovereign and by virtue of the latter's prerogative as parens patriae? ''The rule being that this equity power must be construed according to equity jurisdiction in England as exercised at the time of the adoption of the Constitution and of the judiciary act, any juris- diction exercised by that court in its earlier history, but sub- sequently abandoned, and any enlargement of its jurisdiction by statute subsequent to 1789 are to be excluded." 3 The dis- tinction between law and equity as recognized in the jurispru- dence of England is to be observed in the courts of the United States, in administering the remedy for an existing right ; it does not follow that every right given by the English law, and which at the time the Constitution was adopted might have been enforced in the Court of Chancery, can also be enforced in a court of the United States. The right must be given by the law of the State or of the United States. 4 The Judicial Code provides that: "Suits in equity shall not be sustained in § 81. 1 Robinson v. Campbell, 3 Wheat. 212, at p. 221, 4 L. eel. 372, 37.1; Fenn v. Holme, 21 How. 481, at p. 484, 1G L. ed. 198, 199; Meade v. Beale, Taney. 339, at p. 3G1 ; Gor- don v. Hobart. 2 Sumn. 401. at p. 41).-)-. Fletcher v. Morey, 2 Story. 555. at p. 5(17: Root v. Railway Co., 105 U. S. 180, at p. 207, 26 L. ed. 97o. 981. 2 Fontain v. Ravenel, 17 How. 309, at p. 391, 15 L. ed. 80, 89: Loring v. Marsh, 2 Clifford. 469, at p. 492: In re Barry, 42 Fed. 113; In re Burrus, Petitioner, 136 U. S. 586, 34 L. ed. 500; N. Y. Foundling Hospital v. Gatti, 203 U. S. 429, 439, 51 L. ed. 254, 259. As to their jurisdiction to inquire into the cus- tody of the lunatic, see King v. Mc- Lean Asylum. C. C. A., 64 Fed. 325. Fed. Prae. Vol. I.— 22. Hoadley v. Chase, 126 Fed. 818. But see the Late Corporation of The Church of Jesus Christ of Lat- ter Day Saints v. U. S., 136 U. S. 1, 51, r .6, 34 L. ed. 478, 493, 495; s. c, 140 U. S. 665. 35 L. ed. 592. 3 Alger v. Anderson. 92 Fed. 696; Fontain v. Ravenel. 17 How. 369, 394, 395. 15 L. ed. 80, 90, 91; per Taney. ('. .1. "The grant of power cannot be enlarged by resorting to a jurisdiction which the Court of Chancery in England, centuries ago, may have claimed as a part of its ordinary judicial power, but which bad been abandoned and repudiated as untenable on that ground, by the court itself, long before the Consti- tui ion was adopted." 4 Taney. ( .'. .1., in Meade v. Beale, 339. 361. 33$ JURISDICTION IN EQUITY. [§ 31 either of the courts of the United States in any ease where a plain, adequate, and complete remedy may be had at law." 5 The Supreme Court has construed a previous statute in the same words substantially as follows: The effect of this pro- vision is that whenever a court of law is competent to take cog- nizance of a right, and has power to proceed to a judgment which affords a plain, adequate, and complete remedy, without the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right to a trial by jury. 6 "It would be difficult, and perhaps impossible, to state anv general rule which would determine in all cases, what should be deemed a suit in equity as distinguished from an action at law, for particular elements may enter into consideration which would take the matter from one court to the other ; but this may be said, that, where an action is simply for the recovery and possession of specific real or personal property, or for the re- covery of a money judgment, the action is one at law. An action for the recovery of real property, including damages for with- holding it, has always been of that class." 7 "Accordingly, a suit in equity to enforce a legal right can be brought only when the court can give more complete and effectual relief in kind or in degree on the equity side than on the common-law side ; as, for instance, by compelling a specific performance, or the removal of a cloud on the title to real estate; or preventing an injury for which damages are not recoverable at law, as in Watson v. Sutherland, 5 Wall. 74; or where an agreement procured by fraud is of a continuing nature, and its rescission will .prevent a muntiplieity of suits." 8 "By inadequacy of the remedy at s.Jud. Code, § 267, 36 St. at L. 1087, re-enacting U. S. R. S., 723. 6 Hipp v. Babln, 19 flow. 271, 15 L. ed. 633; Insurance Co. v. Bailey, 13 Wall. 6]0, 621, 20 L. ed. 501, 503; Grand Chute v. Winegar, 15 Wall. 373, 375, 21 L. ed. 174. 175; Lewis v. Cooks, 23 Wall. 460. 470, 23 L. ed. 70, 71; Root v. Railway Co.. 105 U. S. 189, 212, 26 1.. ed. 075, 983; Killian v. Ebbingliaus, 110 U. S. 508, 573. 28 L. ed. 246: X. Y. Guaranty Co. v. Memphis Water Co., 107 U. S. 205, 214. 27 L. ed. 484, 487, per Bradley, J.: "This enactment certainly means something; and if only declaratory of what was always the law, it must, at least, have been intended to emphasize the rule, and to im- press it upon the attention of the courts." 7 Whitehead v. Shattuck, 138 U. S. 146, 151, 34 L. ed. 873, 874, per Field, J. SBuzard v. Houston. 119 U. S. 347, 351, 352, 30 L. ed. 451, 452, 453, per Gray, J. § 81] FEDERAL EQUITABLE JURISDICTION. 339 law is here meant, not that it fails to produce the money, — that is a very usual result in the use of all remedies, — but that in its nature or character it is not fitted or adapted to the end in view.'' 9 "When irreparable injury is spoken of, it is not meant that the injury is beyond the possibility of repair or beyond the possibility of compensation and damages; but it must be of such constant and frequent recurrence that no fair or reason- able redress can be had therefor in a court of law." 10 "If the remedy at law is adequate in theory it deprives equity of juris- diction, although practically it may be inadequate to secure the collection of the claim sued on." n Equitable jurisdiction does not accrue to the Federal court because it is thought that the law as administered by it is more favorable to a party seeking its aid than the law as administered by the courts of a State in which he has been sued. 12 "There may consequently be cases over which the English courts of chancery would have taken jurisdiction, which are not cognizable by the Federal courts when sitting at equity." 13 The facts stated, and the relief sought in a first pleading, and not its form or name, determine whether it invokes the jurisdiction and commences a suit at law or in equity. 14 Where the complainant has a remedy at law by man- damus, the fact that a Federal court has no jurisdiction to grant the mandamus does not make the remedy at law inadequate. 15 The fact that a judgment can only be enforced by application to a court of equity does not take the case from the common-law side of the court. 16 "The adequate remedy at law which is the 9 Thompson v. Allen Co., 115 U. S. 550, 554, 29 L. ed. 472, 473, per Miller, J. 10 Chicago General Ry. Co. v. C, B. & Q. R. R. Co., 181 111. 605, 611 ; quoted with approval in Donovan v. Pennsylvania Co., 199 U. S. 279, 305. 50 L. ed. 192, 204. n Safe Deposit & T. Co. v. City of Anniston, 96 Fed. 661, 663, per Shelby, J. 12 Cable v. Uniteed States Life Insurance Co., 191 U. S. 288, 48 L. ed. 188. WRuzaid v. Houston, 119 U. S. 347, 352, 30 L. ed. 451, 453. 14 Armstrong Cork Co. v. Mer- chants' Refrigerating Co., C. C. A., 184 Fed. 199. 15 Smith v. Bourbon Co., 127 U. S. 105. 32 L. ed. 73. Contra, Pro- visional Municipality of Pensacola v. Lehman, 57 Fed. 324, 331. As to the rule where the State courts give a remedy by certiorari, Ewing v. City of St. Louis, 5 Wall. 413, 18 L. ed. 657; Taylor v. Louisville & N. R. Co.. 88 Fed. 350, 359. 16 Thompson v. Northern Pac. Ry. Co., 93 Fed. 384. 340 JURISDICTION IN EQUITY. [§ 81 test of equitable jurisdiction in these courts, is that which exist- ed when the Judiciary Act of 1789 was adopted, unless subse- quently changed by Congress," 17 A State statute giving an adequate relief at law does not affect the equitable jurisdiction of a Federal court. 18 Whether the equitable jurisdiction is lost when a statute of the United States gives the same or adequate relief at law, — as, for example, in the ease of discovery, — has not yet been settled. 19 If a statute of the United States creates a new right, the remedy will be in equity if the relief thereby afforded is in analogy with a species of relief ordinarily given by equity alone. 20 Thus, it has been held that a suit to enforce the individual liability of stockholders or directors to creditors of a corporation, 21 or to determine the question of the right of possession to land under section 2326 of the Revised Statutes when there are conflicting claims to patents before a land of- WMcConihay v. Wright, 121 U. S. 201, 206, 30 L. ed. 932, 933, per Matthews, J. 18 Missouri, K. & T. Ry. Co. v. Elliott, 5G Fed. 772: Mississippi Mills v. Cohn, 150 U. S. 202, 37 L. ed. 10.52: Sheffield Furnace Co. v. Witherow, 119 TJ. S. 574, 37 L. ed. 853; Smyth v. Ames, 109 U. S. 466, 42 L. ed. 819; Lindsay v. First Nat. Bank, 156 U. S. 485, 39 L. ed. 505; Travelers' Protective Ass'n v. Gilbert, C. C. A., 55 L.R.A. 538. Ill Fed. 269. Borden's Condensed Milk Co. v. Baker, C. C. A., 177 Fed. 906, where the State statute gave relief in certiorari; Western Union Tel. Co. v. Trapp, C. C. A., 186 Fed. 114, a suit to enjoin the collection of taxes. 19 Compare Vaughan v. Central Pac. R. Co.. 4 Sawy. 280; Pratt v. Northam, 5 Mason, 95; Peters v. Prevost, 1 Paine, 64; Home Ins. Co. v. Stanchfleld, 1 Dill. 424: Markov v. Mut. Ben. Life Ins. Co.. 6 lus. L. J. 537: Heath v. Erie R. Co.. 9 Blatchf. 3K3; Drexel v. Berney, 14 Fed. 268; Post v. Toledo. C. etc. R. Co., 144 Mass. 341, 59 Am. Rep. 86, 4 New Eng. R. 221. 20 Edgell v. Haywood, 3 Atk. 354; Hornor v. Henning, 93 U. S. 228, 23 L. ed. 879; Terry v. Little, 101 U. S. 216, 25 L. ed. 864; Manu- facturing Co. v. Bradley, 105 U. S. 175, 26 L. ed. 1034; Doe v. Water- loo Min. Co., 43 Fed. 219. 21 Hornor v. Henning. 93 U. S. 228. 23 L. ed. 879: Terry v. Little, 101 l". S. 216, 25 L. ed. 864; Manu- facturing Co. v. Bradley. 105 U. S. 175. 26 L. ed. 1034; Stone v. Chis- olm, 113 U. S. 302, 28 L. ed. 991; Goss v. Carter, C. C. A.. 156 Fed. 746. But see as to the Maine stat- ute, Alderson v. Dole, C. C. A., 74 Fed. 29. Under Kansas Gen. Stat., ch. 23, the creditor may proceed at law or in equity. X. Y. Life Ins. Co. v. Beard, 80 Fed. 66. As to proceedings under the Texas statute, see Thomson-Houston El. Ry. Co. v. Dallas Con. Tr. Ry. Co., 54 Fed. 1001. See notes to Rickerson Roller Mill Co. v. Farrell Foundry & M. Co., 75 Fed. 554, 23 C. < '. A., 302; Scott v. Latimer, 33 C. C. A. 1. § 81] FEDERAL EQUITABLE JURISDICTION. 341 fice, 22 must be brought in equity. A suit by the receiver of a national banking association, to recover dividends paid to stock- holders when the corporation was insolvent, may be brought in equity. 23 It has been held : that suits by a trustee in bankruptcy, to recover money paid as a preference, should be brought in equity, 24 that a suit to foreclose a mechanic's lien must be brought in equity. 28 The proceeding under the act of Congress to prevent the unlawful occupancy of public lands 26 is a sum- mary proceeding in the nature of a suit in equity and may be tried without a jury. 27 In the absence of express provisions to that effect, it was held that a statute directing the Attorney- General to take "proper proceedings to prevent any unlawful interference with the rights and equities of the United States under this act," and other acts of Congress, "and to have legally ascertained and firmly adjudicated all alleged rights" of per- sons claiming any control or interest in the property of a cor- poration and to have annulled all contracts beyond the corporate powers; did not authorize the joinder of applications for com- mon-law and chancery writs in the same suit, 28 A suit under section 5239 of the Revised Statutes to recover of a director of a national bank the damages sustained in con- sequence of excessive loans should be brought on the common- law side of the court. 29 It has been held : that a suit to collect the double liability imposed by the Constitution and statutes of Kansas, upon the stockholders of certain corporations, is contractual in its nature and runs to the creditors individually, not to the corporations ; and that it can only be enforced in an action at common law, even when the petition charges that the 22 Doe v. Waterloo Min. Co., 43 State statute gave a right of action Fed. 219. at law. Healey Ice Mach. Co. v. 23Hayden v. Thompson, 71 Fed. Green. 181 Fed. 890. 00. 26 23 St. at L. 321. 24 Parker v. Black. C. C. A., 151 27 Cameren v. U. S., 148 U. S. Fed. 18. But see § 644, infra. 301, 304, 37 L. ed. 459, 460; Duf- 25 Armstrong Cork Co. v. Mer- field v. San Francisco Chemical Co., chants' Refrigerating Co., C. C. A., 198 Fed. 942. 184 Fed. 199: Pioneer Min. Co. v. 28 Union Pac. Ry. Co. v. U. S., 59 Delamotte. C. C. A., 185 Fed. 752. Fed. 813. So held where there were conflicting 29 Stephens v. Overstolz, 43 Fed. liens to be adjusted, although the 771. 342 JURISDICTION IN EQUITY. [§ 82 defendant and other stockholders have made a colorable and fraudulent transfer of their stock to another corporation for the purpose of escaping such liability. 30 A suit by the receiver of a New Jersey corporation, 31 or of a Nebraska bank, 32 to col- lect an assessment upon its stockholders may be brought in equity* § 82. State laws creating new rights are enforced by Federal courts at law or equity. If. however, the custo- mary 1 or statute 2 law of a State has created a new right, the Federal courts will enforce the same at law or equity, if it falls within the remedies authorized by either branch of their juris- diction. Such are statutes giving a mortgagor or his judgment creditors a certain time within which to redeem land after a foreclosure sale ; 3 authorizing a suit to set aside the probate of a will, or a will itself, for fraud.* even though the statute pro- vides that the suit shall be brought in a specified State court, and that an issue of fact therein shall be tried by a jury; since the Federal court of equity can empanel a jury for that pur- pose. 6 But this cannot be done unless the proceeding is an ac- 30Anglo-Ani. Land M. & A. Co. v. Lombard, 132 Fed. 721. 31 Brown v. Allebaeh, 156 Fed. 097. § 82. 1 Neves v. Seott, 13 How. 268, 271, 14 L. ed. 140, 142; Gaines v. Fnentes, 92 U. S. 10, 20, 23 L. ed. 524. 528; Ellis v. Davis, 109 U. S. 4S5. 27 L. ed. 1006; Lorman v. Clarke. 2 McLean, 568, 577; Nichols v. Eaton. 91 U. S. 716, 729, 23 L. ed. 254, 258: Fisher v. Shropshire, 147 1". S. 133, 37 L. ed. 109; St. Louis & S. F. R. v. S. W. Tel. & T. Co.. C. C. A.. 121 F. 276. 2 Clark v. Smith, 13 Pet. 195, 10 L. ed. 123; Fitch v. Creighton, 24 How. (U. S*.) 159, 16 L. ed. 596; Brine v. Insurance Co.. 96 U. S. 627, 24 L. ed. 858: Mills v. Scott. 99 C. S. 25, 25 L. ed. 315; Van Xorden v. Morton. 99 U. S. 378, 25 L. ed. 315: Cummings v. National Bank, 101 U. S. 153, 157. 25 L. ed. 903, 904: Holland v. Challen, 110 U. S. 15, 28 L. ed. 52; Reynolds v. Craw- fordsville First Nat. Bank, 112 U. S. 405. 28 L. ed. 733. 3 Brine v. Insurance Co., 96 U. S. 627, 24 L. ed. 858; Orvis v. Powell, 98 U. S. 176, 178, 25 L. ed. 238, 239; Connecticut Mut. L. Ins. Co. v. Cushman, 108 U. S. 51, 27 L. ed. 648. 4Broderick's Will, 21 Wall. 503, 519, 520, 22 L. ed. 599, 605, 606; Sawyer v. White, C. C. A., 122 Fed. 223 (Missouri Statute); Richard- son v. Green, C. C. A., 61 Fed. 423; s. c, 159 U. S. 264, 40 L. ed. 142 (Oregon Statute) ; Williams v. Crabb, C. C. A., 59 L.R.A. 425, 117 Fed. 193, 204 (Illinois Statute); Wart v. Wart, 117 Fed. 766 (Iowa Statute). See § 54. supra. 5 Williams v. Crabb, C. C. A., 117 Fed. 193. 204, 59 L.R.A. 425; Wart v. Wart. 117 Fed. 766. See Chica- go, B. & Q. R. Co. v. Oglesby, 198 Fed. 153. But. in Sexton Mfg. Co. § 82] STATE STATUTES CREATING RIGHTS. 343 tion or suit inter partes, which relates to independent contro- versies, and not merely to those controversies which may arise upon an application for probate, or upon disputes concerning the setting aside of a probate of a will, when the remedy afford- ed by the court is a mere continuation of the probate proceed- ing, merely a method of procedure ancillary to the original probate allowed by the State court, for the purpose of giving to the probate its ultimate and final effect. 6 A Federal court of equity will follow a State statute authorizing a person in possession of land and unmolested ; 7 or even one out of posses- sion of vacant land, 8 to maintain a bill to determine in equity the title to the same or to recover possession thereof; but not a State statute authorizing one out of the possession of land without a trial by jury to obtain possession of the same when occupied by an adverse claimant. 9 It will follow a State statute v. Singer Sewing Mach. Co., C. C. A., 194 Fed. 50; held that the sec- tion of the Mechanic's Lien Law of Illinois, which provided that the lien shall not be enforced to the prejudice of any other creditor, en- cumbrancer or purchaser, unless the contractor within four months after completion "shall either bring suit to enforce his lien therefor or shall file with the clerk of the circuit court in the county in which the building," &c, is situated, a claim of lien (111. L. 1903, p. 230; 111. R. S. 3905, Hurd, p. 1319). was not complied with by bringing a suit in the Federal court within the prescribed time, when no notice was filed in the office of the clerk of the State Circuit Court. 6 Farrell v. O'Brien.. 199 U. S. 89, 50 L. ed. 101. See § 54, supra. But see Preston v. Chicago, St. L. & N. O. R. Co., 175 Fed. 487. 7 Clark v. Smith, 13 Peters, 195, 10 L. ed. 123; U. S. Min. Co. v. Lawson, C. C. A., 134 Fed. 769; North Carolina Mining Co. v. West- feldt, 151 Fed. 290; Kraus v. Cong- don, C. C. A., 1G1 Fed. 18. Contra, Am. Ass'n v. Williams. C. C. A., 166 Fed. 17. See Woods v. Woods, 184 Fed. 159. A state statute giving a tenant under a lease for more than 10 years the right to maintain an action in his own name to remove a cloud upon title will be given effect by a federal court, and un- der such statute the lessor is not an indispensable party to a suit by a lessee for ninety-nine years, obli- gated by the terms of the lease to pay all taxes and assessments against the property, to set aside an assessment for local improve- ments on the ground of its invalid- ity. New York, N. H. & H. R. Co. v. City of New York, 145 Fed. 661. 8 Holland v. Challen, 110 U. S. 15. 28 L. ed. 52; Southern Pac. R. Co. v. Stanley, 49 Fed. 203; Field v. Barber Asphalt Co., 117 Fed. 925: Smith Oyster Co. v. Darbee & Im- mel Oyster & Land Co., 149 Fed. 555. 9 Whitehead v. Shattuck. 138 U. S. 140. 34 L. ed. S73; Wehrman v. Conklin. 155 U. S. 314. 325, 39 L. 344 JURISDICTION IN EQUITY. [§ 82 imposing on stockholders individual liability to the creditors of their corporations ; 10 making an assessment for opening streets a lien upon abutting lands, which can be foreclosed by the city or its assignee; 11 authorizing the appointment of a re- ceiver under certain conditions, which in the Federal courts must then also be performed; 12 authorizing any creditor or stockholder to sue to wind up the affairs of a corporation which has become insolvent or suspended its ordinary business for want of funds, 12 but not a State statute authorizing a court of equity to dissolve a corporation; 14 authorizing a bill for a par- tition of an equitable claim to land the legal title to which is in the United States; 15 authorizing an injunction to be granted in a new class of cases, 16 where there is no dispute as to the legal title of the complainant, as in a taxpayer's suit to restrain the waste of municipal property. 17 But, it has been held, that^ a Federal court of equity cannot follow a State statute authoriz- ing an injunction against the collection of a tax, in a case where equity, independently of statutory authority, would have no such jurisdiction. 18 Federal courts of equity have followed ed. 167, 173; Giberson v. Cook, 124 Fed. 98G ; Union Pac. R. Co. v. Cun- ningham, 173 Fed. 90; Baum v. Long-well, 200 Fed. 4.~>0. See Klenk v.Byme, 143 Fed. 1008; Contra Farr v. Hobe-Peters Land Co., C. C. A., 188 Fed. 10. It has been held that the bill is demurrable when it fails to allege affirmatively either that the plaintiff is in possession, or that both complainant and defend- ant are out of possession. So. Pac. R. Co. v. Goodrich, 57 Fed. 879. X0 Borland v. Haven, 37 Fed. 394. ll Fitch v. Creighton, 24 How. (U. S.) 159, 16 L. ed. 596. WMcGraw v. Mott, C. C. A., 179 Fed. 646. ( § 65 of X. J. Corp. Act, X. J. P. L. 1896, p. 298). 13 Flash v. Wilkerson, 22 Fed. 689; Fechheimer v. Baum, 2 L.R.A. 153, 37 Fed. 167; T. & W. M. Co. V. Shatto, 34 Fed. 380; Conklin v. I . S. Shipbuilding Ass'n. 123 Fed. 913; s. c. ('. C. A.. 126 Fed. 132; Land Title & Tr. Co. v. Asphalt Co., C. C. A., 127 Fed. 1. But see Scott v. Neely, 140 U. S. 106, 35 L. ed. 358. 14 Conklin v. U. S. Shipbuilding Co., 140 Fed. 219. Co»tra. Jacobs v. Mexican Sugar Co., 130 Fed. 589. 15 Aspen Mining & Smelting Co. v. Rucker, 28 Fed. 220. 16 Cummings v. National Bank, 101 U. S. 153, 157, 25 L. ed. 903, 904; Lanier v. Alison, 31 Fed. 100; Grether v. Wright, C. C. A., 75 Fed. 742; Weidenfeld v. Sugar Run R. Co., 48 Fed. 615, 619; St. Louis & S. F. R. Co. v. S. W. Tel. & T. Co., C. C. A., 121 Fed. 276. But see Davidson v. Calkins. 92 Fed. 230; Lehigh Valley C. Co. v. Hamblen, 23 Fed. 225. nSeccoinb v. Wurster, 83 Fed. 856; Larabee v. Dolley, 175 Fed. 365. 18 Illinois Life Ins. Co. v. New- § 82] STATE STATUTES CREATING RIGHTS. o45 statutes authorizing an action for the protection of a water right, in which all persons who have diverted water from the same stream or source are joined, and the court, in one judg- ment, settles the relative rights and priorities of all parties to the action ; 19 empowering a guardian, with the permission of the State court, to mortgage his ward's estate, but not clauses providing that such a mortgage can only be foreclosed in the court which authorized its execution; 20 creating and providing for the enforcement of a mechanic's lien ; 21 authorizing a bill by the debtor, to compel the return or cancellation of securities for a usurious loan, without payment or the offer of payment of the amount borrowed with the lawful interest 22 — but it has been held that a court of equity may allow interest upon an un- liquidated claim, although, by the State practice, such interest is not allowed, 23 and although at common law the State rulings upon this point would be followed ; 24 authorizing a State court of equity to enforce an order of the State railroad commissioners, when a bill was filed to restrain the enforcement of such or- der ; 25 authorizing a court of equity after the destruction of the public records to enter a decree establishing and confirming the title of a landowner; 26 authorizing the assignee of an insolvent to apply for the dissolution of levies of attachments and execu- tions against his property ; 27 and they enforce a vendor's lien recognized by the State common law. 28 The United States Cir- man, 141 Fed. 449. See, however, the authorities cited § 70, supra. W Ames Realty Co. v. Big Indian Mining Co., 146 Fed. 106. 20 Davis v. James, 2 Fed. 618. 21 Idaho & 0. L. I. Co. v. Brad- bury, 132 U. S. 509, 33 L. ed. 433; Sheffield Furnace Co. v. Witherow, 149 U. S. 574, 579, 37 L. ed. 853, 856. But see as to attorney's lien, Sherry v. 0. S. N. Co., 72 Fed. 565. 22 Missouri, Kansas & Texas Tr. Co. v. Krumseig, 172 U. S. 351, 43 L. ed. 474; Olds v. Curlette, 145 Fed. 661. But see Matthews v. Warner, 6 Fed. 461, 465; affirmed without passing on this point, 112 U. S. 600, 28 L. ed. 851. 23 Pennsylvania Steel Co. v. N. Y. City Ry. Co., C. C. A., 198 Fed. 778, 779. 24 Stephens v. Phrenix Bridge Co., C. C. A., 139 Fed. 248, 71 C. C. A. 374. 25 Piatt v. Lecocq, C. C. A., 15 L.R.A.(N.S.) 558, 158 Fed. 723. 26Gormley v. Clark, 134 U. S. 338, 33 L. ed. 909. 27Brochon v. Wilson, 91 Fed. 617. 28 Fisher v. Shropshire, 147 U. S. 133, 37 L. ed. 109; Chilton v. Brai- den's Adm'x. 2 Black, 458, 17 L. ed. 304; Wilson v. Plutus Mill. Co., C. C. A., 174 Fed. 317. :;n; JURISDICTION IN EQUITY. [§ 82 cuit Court for the District of Connecticut followed the State statute, providing that "Courts of equity may pass the title to real estate by decree without any act of the respondent, . . . and such decree when recorded shall be as effectual as the ad- verse deed of respondent." 29 It has been held that the Federal courts in Ohio should follow the State statute authorizing a de- cree of specific performance against a non-resident not served within the State, provided that jurisdiction is obtained under the Revised Statutes of the United States; 30 that the summary method of foreclosing a mortgage under the Louisiana Code be- longs on the equity side of the court ; 31 and that the Louisiana statute authorizing a summary proceeding to set aside an in- correct assessment for taxation will be enforced pursuant to the chancery practice on the equity side of the court, and not in accordance with the State practice by a petition upon the common-law side. 32 The Massachusetts employers' liability act, which authorizes an action to recover damages for the death of an employee, "to be assessed with reference to the degree of culpability of the employer or of the person for whose negli- gence the employer is liable," is not a penal statute, in such a sense that an action based thereon may not be maintained in a Federal court at common law. 33 A State statute cannot give a Federal court jurisdiction in equity of a case in which there is an adequate remedy at common law. 34 A Federal court will not follow a State statute which authorizes a creditor's bill against an individual 35 or a corporation, 36 even against a stock- holder where no accounting is required, 37 by a complainant wdio has not obtained a judgment establishing his claim; but a State statute was followed which gave such a remedy to the 29 A. & W. Sprague Mfg. Co. v. Hoyt. 29 Fed. 421. See infra, § 441. 30 Single v. Scott Paper Mfg. Co., 55 Fed. 553, 557. 31 Fleitas v. Richardson, 147 U. S. 538, 37 L. ed. 272. 32 Lindsay v. First Nat. Bank. 156 U. S. 485. 39 L. ed. 505. 33 Malloy v. American Hide & Leather Co.. 148 Fed. 4S2. 34 Whitehead v. Shattuck, 138 U. S. J 46, 34 L. ed. 873; Scott v. Neely, 140 U. S. 10(3, 35 L. ed. 358. 35 Scott v. Neely, 140 U. S. 106, 35 L. ed. 358, Gates v. Allen, 149 C. S. 451, 37 L. ed. 804. 36 Morrow Shoe Mfg. Co. v. New Eng. Shoe Co., 60 Fed. 341; Atlan- tic & F. R. Co. v. Western Ry. Co., C. O. A.. 50 Fed. 790. 37Alderson v. Dole, C. C. A., 74 Fed. 29. § 82] STATE STATUTES CREATING EIGHTS. 347 creditor of an insolvent decedent. 38 It has been held: that the New Jersey statute authorizing the inspection, by a stockholder, of the books of his corporation, cannot be enforced by a suit in equity ; 39 and that the Federal court will not enforce the Massachusetts statute authorizing the holder of a tontine policy to maintain a bill in equity against the insurance company for an accounting. 40 The Federal court in that State refused to fol- low a statute of Virginia which gave the complainant in a cred- itor's bill a priority over other creditors of the same class. 41 Whether a mortgagee must sue at law or in equity to recover from one who by a covenant with the mortgagor has assumed the mortgage depends upon the law of the forum, not on the law of the place where the deed and mortgage were made and the land is situated. 42 When a State statute creating a new liabil- ity provides an exclusive remedy, such liability can be enforced in the Federal courts in no other manner. 43 When a State stat- ute creates a new liability and provides that it can only be en- forced in a specified State tribunal, the Federal courts will en- force the liability, and reject the clause respecting the exclusive jurisdiction. 44 Where, however, the suit authorized is one against the State itself, and the statute shows that the legis- lature contemplated that the State court alone should entertain the same, the Federal courts have no jurisdiction. 45 Otherwise, the exceptions made by the State statute will be usually recog- nized by the Federal court. 46 38Lilienthal v. Drucklieb, C. C. A., 92 Fed. 753. In the District of Columbia such a bill may bo maintained without statutory au- thority. Kennedy v. Cresvvell, 101 U. S. 641 (at p. 645), 25 L. ed. 1075. 1076; s. c, Creswell v. Ken- nedy, 3 MacArthur, 78. Other au- thorities in the District Court to the same effect are, Dunn v. Mutt, 4 Mack, 289; Richardson v. Penicks, 1 App. D. C. 261, at p. 267: Offutt v. King. 1 MacArthur, 312. But see Thiel Detective Service Co. v. McClure, 130 Fed. 55. 39 Maeder v. Buffalo Bill's Wild West Co., 132 Fed. 280. 40 Peters v. Equitable Life Assur- ance Society, 149 Fed. 290. «Talley v. Curtain, C. C. A., 54 Fed. 43. 42 Willard v. Wood, 135 U. S. 309, 34 L. ed. 210. « Fourth Xat. Bank v. Franck- lyn, 120 C. S. 747, 30 L. ed. 825; Flour City Nat. Bank v. Wechsel- berg, 45 Fed. 547. 44 Davis v. James, 2 Fed. 618. Cf. Bowker v. Hill. 115 Fed. 528; Hale v. Tyler. 115 Fed. 833. 45 Chandler v. Dix, 194 U. S. 590, 48 L. ed. 1129. Infra, § 105. 46 Harrison v. Remington Paper 348 JURISDICTION IN EQUITY. [§ 83 § 83. State statutes cannot impair the jurisdiction nor regulate the practice of Federal courts of equity. No State Statute giving one of its courts — for example, a court of pro- bate — exclusive jurisdiction of a certain class of litigation can impair the jurisdiction of the Federal courts. 1 Xo State stat- ute enlarging the powers of courts of common law can impair the jurisdiction of a Federal court of equity. 2 Xo State stat- ute diminishing or destroying an equitable remedy, or in any way regulating the practice in courts of equity, can have any effect upon the jurisdiction or practice of the Federal courts. 3 Such are statutes requiring a mortgagor to tender the debt se- cured by his mortgage before filing a bill to redeem the mort- gaged premises ; 4 requiring a bill to foreclose a mortgage given to secure a judgment to show that execution has been issued un- der the judgment and returned unsatisfied; 5 requiring leave to be obtained from a State court before a suit can be brought to enforce a judgment therein entered ; 6 or the presentment of a claim to the comptroller 7 or city council 8 or the termination of an appeal to a specified State court from the decision of the municipal authorities upon such an appeal, 9 before a suit against the city: or the presentment of a claim to an executor Co., C. C. A., 3 L.R.A,(N.S.) 954, 140 Fed. 385. § 83. 1 Suydam v. Broadnax, 14 Pet. 07, 10 L. ed. 357; Hull v. Dills, 10 Fed. 657; Serames v. Whitney, 50 Fed. 000; Hershberger v. Blew- ett, 55 Fed. 170; Heaton v. Thatcher, 59 Fed. 731. 2McConihay v. Wright, 121 U. S. 201, 200, 30 L. ed. 932, 933; and cases cited. Borden's Condensed Milk Co. v. Baker, C. C. A., 177 Fed. 906, where the State statute gave relief in certiorari^ Western Union Tel. Co. v. Trapp, C. C. A., 186 Fed. 114, a suit to enjoin the collection of taxes. 3 Boyle v. Zacharie, 6 Pet. 648, 8 L. ed. 532; Bein v. Heath. 12 How. (U. S.) 168, 179, 13 L. ed. 939, 044: Noonan v. Lee, 2 Black, 499, 509, 17 L. ed. 278, 281; Thomp- son v. Railroad Cos., 6 Wall. 134, 18 L. ed. 705: Cowles v. Mercer County, 7 Wall. 118, 19 L. ed. 86; Payne v. Hook, 7 Wall. 425, 19 L. ed. 260; Railway Co. v. Whitton's Adm'r, 13 Wall. 270, 285, 20 L. ed. 571, 576; Smith v. Railroad Co., 99 U. S. 398, 25 L. ed. 437. But see Massachusetts B. L. Ass'n v. Loh- miller, C. C. A., 74 Fed. 23. 4 Gordon v. Hobart, 2 Sumn. 401. See Klenk v. Byrne, 143 Fed. 1008. 5 Dow v. Chaniberlin, 5 McLean, 281. 6 Phelps v. O'Brien County, 2 Dill. 518. 7Gamewell F. A. Tel. Co. v. Mayor, etc.. 31 Fed. 312. 8 Barber Asphalt Pav. Co. v. Mor- ris, 132 Fed. 945, 66 C. C. A. 55, 07 L.R.A. 761. 9 Ibid. § 83] STATE STATUTES REGULATING EQUITY PRACTICE. 349 before a suit thereupon can be revived against the estate of a decedent; 10 forbidding an injunction against the collection of illegal taxes; n requiring that a bond be given before an injunc- tion can be granted; or regulating the form of the security then required or the proceedings to enforce the same ; 13 regulating the fees in receiverships; 14 determining what shall consti- tute notice of a pending suit ; 15 authorizing persons to agree upon a statement of facts, and to stipulate that the court take jurisdiction to try a cause and render a decree without pleadings ; 16 authorizing an appearance by his general guardian, to bind an infant not personally served with proc- 18 ess ; 17 authorizing the examination of a party before trial ; or, in the absence of a Federal statute regulating the manner of taking depositions ; 19 providing that a county can be sued only in a specified State court; 20 forbidding a foreign corporation to sue until it has complied with a statutory condition. 21 It has been said that proceedings for the foreclosure of a mortgage in a Federal court should proceed upon the ordinary lines of 10 Pond v. U. S., C. C. A., Ill Fed. 989; Western Union Tel. Co. v. Trapp, C. C. A., 186 Fed. 114. " In re Tyler, 149 U. S. 1G4, 189, 37 L. ed. 689, 697. 13 Bein v. Heath, 12 How. (U. S.) 168, 13 L. ed. 939; Russell v. Far- ley, 105 U. S. 437. 26 L. ed. 1061 ; Meyers v. Block. 120 U. S. 206, 211, 30 L. ed. 642, 643. 14 Guaranty Tr. Co. v. Galveston City R. Co., 107 Fed. 311. But see 25 St. at L. 436. iSMcClaskey v. Barr, 48 Fed. 130, 132. Contra, Jones v. Smith, 40 Fed. 314; Gamble v. Rural In- dependent School Dist., 76 C. C. A., 539, 146 Fed. 113. 16 Xickerson v. Atchison, T. & S. F. R. Co., 1 McCrary, 383. 17 N. Y. Life Ins. Co. v. Bangs, 103 U. S. 780. 26 L. ed. 609. 18 Ex parte Fisk, 113 U. S. 713, 28 L. ed. 1117; Dravo v. Fabel, 132 U. S. 487, 33 L. ed. 421; Harks Dental Ass'n v. International T. C. Co., 194 U. S. 303, 4S L. ed. 989. See infra, § 359. 19 Ex parte Fisk. 113 U. S. 713, 28 L. ed. 1117: Dravo v. Fabel, 132 U. S. 487. 33 L. ed. 421: Hanks v. Dental Ass'n v. International T. C. Co., 194 U. S. 303, 306, 48 L. ed. 989, 990: U. S. v. 50 Boxes and Packages of Lace, 92 Fed. 601: Tabor v. Indianapolis Journal News- paper Co., 66 Fed. 423. See infra, §§ 284, 372. 20 Cowles v. Mercer County, 7 Wall. 118, 19 L. ed. 86; Lincoln County v. Luning, 133 U. S. 529, 33 L. ed. 766. See Chicot County v. Sherwood, 148 U. S. 529, 37 L. ed. 546. 21 Bank of X. A. v. Barling, 44 Fed. 641 ; affirmed^ as Barling v. Bank of X. A.. C. C. A., 50 Fed. 260; Vitagraph Co. v. Twentieth Century Optiscope Co., 157 Fed. 699. 350 JURISDICTION IN EQUITY. [§ 84 such proceedings in the State courts. 22 But it has been held that equitable relief ruay be given on the submission, upon an agreed statement of facts, of an action of assumpsit brought on the common-law side of the court, and a stipulation that judg- ment should be rendered in accordance with the opinion of the court thereupon. 23 A State statute providing that if by mistake a suit was brought in equity which should have been at common law there should be no abatement, but that the cause be trans ferred to the common-law docket, was followed in the Federal court. 24 The New York statute providing that, upon the consol- idation of two corporations, suits pending by or against either shall not abate, will be followed by the Federal courts at equity, "not because the State statute is operative to regulate the prac- tice and procedure of Federal courts in equity suits, but because, so far as the litigated life of the artificial person (properly a party to the suit when brought) is concerned, there has been no change, the only power which could destroy it having scrupu- lously refrained from doing so." 25 § 84. Sources of Federal equity practice. The Revised Statutes provide: "The Supreme Court shall have power to prescribe, from time to time, and in any manner not inconsistent with any law of the United States, the forms of writs and other process, the modes of framing and filing proceedings and plead- ings, of taking and obtaining evidence, of obtaining discovery, of proceeding to obtain relief, of drawing up, entering, and en- rolling decrees, and of proceeding before trustees appointed by the court, and generally to regulate the whole practice to be used in suits in equity or admiralty, by the Circuit and District Courts." * The several "District Courts mav, from time to time, and in any manner not inconsistent with any law of the United States, or with any rule prescribed by the Supreme Court under the preceding section, make rules and orders directing the returning of writs and processes, the filing of pleadings, the 22 Deck v. Whitman, 96 Fed. 873; 25 Edison Electric Light Co. v. U. Knickerbocker Tr. Co. v. Penacook S. El. Light Co., 52 Fed. 300, 313; .Mfg. Co., 100 Fed. 814. See, how- s. c, 3 C. C. A. 83, per Lacombe, ever, Xalle v. Young, 1G0 U. S. 024, J. See Marion Phosphate Co. v. 40 L. ed. 5G0. Perry, 74 Fed. 425. 23 Knight v. Fisher, 58 Fed. 991. § 84. 1 U. S. R. S., § 917. 24 TJ. S. Bank v. Lyon County, 48 Fed. 632. § §1] SOURCES OF EQUITY PRACTICE. 351 taking of rules, the entering and making up of judgments by de- fault, and other matters, in vacation, and otherwise regulate their own practice as may be necessary or convenient for the advancement of justice and the prevention of delays in proceed- ings." 2 These statutes are constitutional 3 and the rules thus promulgated, when not in conflict with the Federal Constitution or a statute of the United States, have the force and effect of law. 4 They bind the United States as well as individuals. 6 Under these provisions prior to the year 1912 the Supreme Court had from time to time promulgated ninety four rules of equity practice 6 and most of the inferior courts have also adopted rules of their own. The ninetieth equity rule of the Supreme Court, which was promulgated in March, 1842, provided that, ''in all cases where the rules prescribed by this court or by the Circuit Court do not apply, the 2U. S. R. S., § 918. This must be construed in connection with U. S. R. S., § 914, requiring the prac- tice in actions at common law to conform as near as may be to the practice in the State courts of rec- ord; any rule of the court to the contrary notwithstanding. Import- rs' & Traders' Nat. Bank v. Lyons, 134 Fed. 510. 3 Wayman v. Southard, 10 Wheat. 1, 6 L. ed. 253; Beers v. Houghton, 9 Peters, 338, 359, 9 L. ed. 149; White v. Toledo, St. L. & K. C. R. Co., 79 Fed. 133. 4 Bank of U. S. v. White, 8 Peters, 262, 269, 8 L. ed. 938, 941 ; Seymour v. Phillips & Colby Const. Co., 7 Biss. 460, Fed. Cas. No. 12689; Northwestern Mut. Life Ins. Co. v. Keith, C. C. A., 77 Fed. 374; Am. Graphophone Co. v. Nat. Phono- graph Co., 127 Fed. 349; U. S. v. Barber Lumber Co.. 169 Fed. 184. It was held that a Circuit Court of Appeals had no authority to pro- mulgate a rule permitting the pros- ecution of appellate proceedings in forma pauperis. Bradford v. South- ern Ry. Co., 195 U. S. 243, 25 Sup. Ct. 55, 49 L. ed. 178; Re Bradford's Petition, C. C. A., 139 Fed. 518, 71 C. C. A. 334; overruling Reed v. Pennsylvania Co., C. C. A., Ill Fed. 714, 49 C. C. A. 572. See infra, 413. 5 U. S. v. Barber Lumber Co., 169 Fed. 184. The Equity Rules of 1822 are published in 7 Wheaton xvil., 5 L. ed. 375. The Equity Rules of 1842, in 1 Howard, xli. The amendments thereto are to be found in the volumes of the reports, pub- lished about the time of their pro- mulgation. For a criticism of the practice under these rules, see Monarch Vacuum Cleaner Co. v. Vacuum Cleaner Co., 194 Fed. 172. In minor particulars, many of the courts disregarded them. In C. C, W. D. Tenn., no entry was made in the order-book for more than seven years. Electrolibration Co. v. Jackson, 52 Fed. 773, 774. In E. D. Mo., for a long time no order-book was kept. Hopkins' Rules, 10. 6 See Kelley v. T. L. Smith Co., C. C. A., 196 Fed. 466. 353 JUEISDICTIOX IN EQUITY. [§ S-i practice of the Circuit Court shall be regulated by the present practice of the High Court of Chancery in England, so far as the same may reasonably be applied consistently with the local circumstances and local conveniences of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice.'' The previous rule promul- gated at the October term, 1822. was: "In all cases where these rules prescribed by this Court or the Circuit Courts, do not apply, the practice of the Ciruit Courts shall be regulated by the practice of the High Court of Chancery in England." 7 Judge Sawyer said: "The rule quoted simply regulates the practice in exercising the jurisdiction of the court in those respects wherein the rules adopted do not apply ; but the practice of the High Court of Chancery is to be applied, not as con- trolling, but simply as furnishing just analogies to regulate the practice." 8 By reference to these sources and the decisions of the courts resulting from them, the practice at equity in the courts of the United States was formerly determined. In the district of New Jersey, where the Federal statutes and equity rules were silent, the State chancery rules were followed. At the October term of 1912, the Supreme Court promulgated eighty-one new rules of equity practice, which, although they retain many of the rules of 1842, omitted the ninetieth rule, which has just been quoted. What practice should be followed in eases where "the present rules and statutes are silent has not yet been decided. The prudent practitioner will in such case follow the chancery practice in England as it existed in 1842 or previ- ouslv. 9 Sine the alterations in the new rules are based to a large extent upon provisions in the English Rules of 1883, which in their turn were suggested by the New York Code of Pro- cedure, written by David Dudley Field, where, the construction of the equity rules of 1012 is doubtful, the decisions of the 7 Rule xxxiii, 7 Wheaton, xni. works which host explain the Eng- 8 Lewis v. Shainwald, 7 Saw. 40.1, lish chancery practice in 1841. 405. Note by Mr. Justice Bradley in 9 The first American edition of Thomson v. Wooster. 114 U. 8. 104, Daniell's Chancery Practice and the 29 L. ed. 105. 107: Maeder v. Buf- second American edition of Smith's falo Bill's Wild \Vest Co., 132 Fed. Practice, both of which were pub- 280. lished in 1837, are the autboritative § 84] SOURCES OF EQUITY PRACTICE. 353 English courts since 1883 and of the courts of New York since 1848 should be consulted. 10 10 ]t is the duty of the courts as far as possible to mould procedure so as to meet the exigencies of the case. Davies v. Andre', 24 Q. B. D. 598, 607. They must not give to the rules a pleader's construction, but a construction consistent with common sense. Edwards v. Low- ther, 24 W. R. 434. "Practical rules ought not to be construed ac- Fed. Prac. Vol. I —23. cording to mere grammar, if that which is an absurdity from a busi- ness point of view is thereby pro- duced." Hannay v. Smurthwaite (1893), 2 Q. B. 412, 420, per Esher, M. R. Where one rule is general and another specific, the latter should prevail. Cavendish v. Strutt (1904), 1 Ch. 524, 526, 527, 531; Locke v. White, 33 Ch. D. 308. CHAPTER III. PERSONS WHO MAY BE PLAINTIFFS OR DEFENDANTS IN A SUIT IN EQUITY. § 85. General rule as to persons capable of being plaintiffs. All persons may file a bill in equity in their own right, except alien enemies, infants, idiot*, lunatics, married women, foreign corporations who have been deprived of the right by statute, and possibly those who by the laws of a State have been declared civilly dead. § 86. States as plaintiffs. A State may sue as plaintiff in any court of the United States which has jurisdiction of the case. 1 A State cannot sue in the Supreme Court of the United States to collect a judgment for a penalty recovered in the court of such State against a corporation chartered by another State. 2 § 87. Alien enemies as plaintiffs. Subjects of a country at war with the United States cannot sue in the State or Federal courts before the conclusion of peace, unless they are residents of this country or within the jurisdiction of one of our allies. 1 If a complainant become an alien enemy after a suit has been begun, the defense may be interposed by answer. 2 The effect of such a defense is then, however, merely to suspend the cause of action and suit, not to dismiss the bill. 3 § 86. 1 Ames v. Kansas, 111 U. Clarke v. Morey, 10 Johns. (X. Y.) S. 440. 28 L. ed. 482; U. S. v. 69; 2 Kent's Com. 63. Louisiana. 123 U. S. 32, 31 L. ed. 2 Bell v. Chapman, 10 Johns. (N. 69; supra, § 13. For the jurisdic- Y.) 183. tion of suits brought in the name 3 Hutchinson v. Brock, 11 Mass. of a State ex relatione, see supra, 119; Parkinson v. YVentworth. 11 § 40. Mass. 26; Levine v. Taylor, 12 Mass. 2 Wisconsin v. Pelican Ins. Co., 8; Hamersley v. Lambert, 2 Johns. 127 U. S. 265. 32 L. ed. 230. (\ (X. Y.) 508; Ex parte Bouss- § 87. 1 Wilcox v. Henry. 1 Dall. maker, 13 Yes. 71 : Wilcox v. Henry. CO. 1 L. ed. 41; Crawford v. The 1 Dall. 60. 1 L. ed. 41: Story's Eq. William Penn, 1 Pet. C. C. 106; PI., § 54. But see Mumford v. Mumford v. Mumford, 1 Call. 366; Mumford, 1 Gall. 366. 354 § 89] MARRIED WOMEX AS PLAT XTI FES. or>:> § 88. Foreign corporations. The State statute cannot de- prive a foreign corporation from suing in its courts upon a con- tract connected with interstate commerce. 1 To what extent it can deny a corporation of another State, not so engaged, equality of treatment with individual citizens, in respect to the right to sue and defend in its courts, is a doubtful question. 2 It may forbid a corporation of another State from making a contract within its borders which is not connected with interstate commerce, until it has complied with certain reasonable statu- tory provisions, such as the tiling of a copy of its charter and the payment of an annual license fee ; and may further direct that every contract made within the State before such con- ditions have been complied with shall be void ; 3 but no stat- ute can deprive such a corporation of the right to sue in a court of the United States held within such State. 4 And where the State statute provided, "No foreign stock corporation doing- business in this state shall maintain any action in this state upon any contract made by it in this state, unless prior to the making of such contract it shall have procured such certificate" ; 5 this did not prevent the recovery upon such contract in the Federal court there held. 6 § 89. Married Women as Plaintiffs. A married woman originally could only sue when "joined with her husband, unless he had deserted her, and was without the realm or civilly dead, when she could sue alone; 1 or unless the suit concerned her separate property, when she was obliged to sue by her next § 88. l International Textbook Co. v. Pigg, 217 U. S. 91, 112, 54 L. ed. 078. 687; Buck Stove Co. v. Vickers, 226 U. S. 205, 214, 57 L. ed. — . 2 International Textbook Co. v. Pigg. 217 U. S. 91, 112, 54 L. ed. 678, 687. 3 Diamond Glue Co. v. U. S. Glue Co.. 187 U. S. 611. 47 L. ed. 328. 4 David Lupton's Sons Co. v. Au- tomobile Club of America, 225 U. S. 489, 56 L. ed. 1177. In Boston Towboat Co. v. John H. Sesnon Co., 199 Fed. 445. it was held that when a suit was brought by such a cor- poration, which had no statutory right to sue, the court might adju- dicate upon a counter-claim inter- posed by the defendant and allow it as a set-off against the plaintiff's demand, although it could not ren- der an affirmative judgment in favor of the plaintiff for any excess. 5N. Y. Consol. Laws. Ch. 23, § 15, 6 David Lupton's Sons Co. v. Au- tomobile Club of America. 225 U. S. 489, 56 L. ed. 1177. § 89. 1 Story's Eq. PI., § 61: Countess of Portland v. Prodgers, ■2 Vein. 104. 356 CAPACITY TO SUE. [§ 00 friend. 2 The next friend, however, was chosen by herself; 3 and the husband was then usually made a party defendant, that he might have an opportunity to assert any claim he might have to the subject-matter of the suit. 4 In the courts of the United States, however, the rule was early laid down as follows: "'Where the wife complains of the husband and asks relief against him she must use the name of some other person in prose- cuting- the suit; but where the acts of the husband are not com- plained of, he would seem to be the most suitable person to unite with her in the suit. This is a matter of practice within the discretion of the court." 5 In the District Courts held in the State of New York, where a married woman has substantial- ly all the powers of a spinster, she may sue in equity, as if she were single, at least if she be a citizen of that State. 6 In the District Courts in the districts of California the rule is otherwise. 7 When a suit has been begun by a married woman alone who should have sued by her next friend, leave to amend by adding to the title the name of a next friend will always be granted. § 90. Suits on behalf of infants. The Equity Rules pro- vide: ''All infants and other persons so incapable may sue by their guardians, if any, or by their proehein ami ; subject, how- ever, to such orders as the court or judge may direct for the protection of infants and other persons." A guardian, as such, cannot maintain an action in a Srate other than in which he was appointed, in the absence of a statute of the forum per- mitting him to sue. 2 By the old Chancery practice, an infant could only sue by his next friend, 2a who might be any person 2 Wake v. Parker, 2 Keen. 70; Story's Eq. PL, § 63. 3 Story's Eq. PL, § 61; Garaber v. Atlee. 2*DeO. & Sm. 74:,. *Sigel v. Phelps, 7 Sim. 239; Wake v. Parker, 2 Keen. 70; Story's Eq. PL. § 63. 5 Mr. Justice McLean in Bein v. Heath, 6 How. 228, 240, 12 L. ed. 416, 421. See Douglas v. Butler, 6 Fed. 228. 6 Lorillard v. Standard Oil Co.. 2 Fed. 902. But see Taylor v. Holmes, 14 Fed. 499, .".14: U. S. v. Pratt Coal & Coke Co., 18 Fed. 708; O'Hara v. MacConnell, 93 L T . S. 150, 23 L. ed. 840. 7 Wills v. Pauly. 51 Fed. 257. 8 Douglas v. Butler, 6 Fed. 228; Taylor v. Holmes, 14 Fed. 499. § 90. lEq. Rule 70; copied in substance from Eq. Rule 87, of 1842. 2 Lawrence v. Nelson, 143 U. S. 215. 222. 12 Sup. Ct. 440. 36 L. ed. 130: Re Kingsley, 160 Fed. 275; Pulver v. Leonard. 176 Fed. 586. 2a Rule 87; Story's Eq. PL § 57; Dudgeon v. Watson, 23 Fed 161; § 90] INFANT PLAINTIFFS. 357 that would undertake the suit in his behalf, subject, however, to the costs and the censure of the court, if it were improperly brought. 3 The next friend might, at any time, be removed by the court either summarily or after a reference, if it seemed for the best interest of the infant to appoint another. 4 This is usually done if he is interested in the suit. 5 It was doubtful whether insolvency and consequent inability to respond for costs was, in itself, a ground for the next friend's removal. 6 That might, however, be a reason for an order directing him to give security for costs. 7 The court might, at any time, order a refer- ence to a master, to determine the propriety of a suit ; and, if it appeared to have been brought against the infant's interest, would stay proceedings in it or dismiss the bill, with costs to be paid by the next friend. 8 This could be done even without a reference. 9 No such reference would, it seems, be ordered at the request of the next friend himself, 10 unless there were an- other cause pending by reason of which the infant's property was subject to the control of the court, when such a reference might be ordered at the instigation of a next friend, and he be paid his costs out of the estate even if the bill were finally dis- missed. 11 An application to dismiss a bill as improperly filed on behalf of an infant might be made by a person "as next friend for the purpose of this application," 12 or by a defendant to the bill. 13 It seems that any motion clearly for the interest of an infant complainant could be made by a next friend for the purpose of the application, when the next friend who filed the bill refused to move. 14 If two suits were instituted on be- Bradwell v. Weeks, 1 J. Ch. (N. Y.) 325. 3 Campbell v. Campbell, 2 M. & C. 25, 30; Sale v. Sale. 1 Beav. 586; Starten v. Bartbolomew, 6 Beav. 143. *Naldei v. Hawkins, 2 M. & K. 243; Russell v. Sharpe, 1 Jac. & \\ . 482; Jarvis v. Crozier, 98 Fed. 753, 755. 5 .Jarvis v. Crozier, 98 Fed. 753, 755. See in Re Corsellis, 50 Law T. N. S. 703. «Anon., 1 Ves. Jr. 409. t Fulton v. Rosevelt, 1 Paige (X. Y.), 178, 180. 19 Am. Dec. 409. 8 Da Costa v. Da Costa. 3 P. Wins. 140; Nakler v. Hawkins, 2 M: & K. 243; Sale v. Sale, 1 Beav. 586. See King v. McLean Asylum of Massachusetts General Hospital, 64 Fed. 325. 9 Sale v. Sale, 1 Beav. 586. 10 Jones v. Powell, 2 Mer. 141. "Taner v. Ivie, 2 Ves. Sen. 466. 12 0uy v. Guy, 2 Beav. 460. 13 Fox v. Suwerkrop, 1 Beav. 583. 1* Furtado v. Furtado, 6 Jur. 358 CAPACITY TO SUE. [ § 90 half of the same infant for the same purpose by two next friends, the court would direct a master to inquire which is most for the infant's benefit. 15 A bill might be filed by a next friend on behalf of a child still in its mother's womb. 16 If an infant were made co-plaintiff with others, and it ap- peared that it would be more for his advantage that he should be made a defendant, an order to strike out his name as plaintiff, and to make him a defendant, might be obtained. 17 When a bill was filed on behalf of an infant, his coming of age did not abate the suit; but he might then elect whether he would pro- ceed with it or not. 18 If he chose to go on with the case, all further proceedings could be carried on without any amendment or the filing of a supplemental bill. 19 He was then liable for all costs of the suit, as if he had filed the bill after he came of age. 20 Otherwise, he was not personally chargeable with costs ; 21 unless he made a motion to dismiss the bill ; which it seems could only be done upon the payment of costs by himself, 22 if he could not establish that the bill was improperly filed by his next friend. 23 If the next friend died during the infant's minority, and the latter took no step in the cause after he had come of age, the defendant might have the bill dismissed, but without costs, since there would then be no one living w T ho was liable to pay them. 24 The suit is brought in the name of the infant, not in that of the next friend, 25 and the infant's citizen- ship is the test of the jurisdiction. 26 Where the bill shows that the suit was brought by a guardian in a representative capacity, but by the title it appears that he sues individually, the title, if necessary, may be amended. 27 A guardian ad litem for an infant, although appointed in a State court before the removal 227; Cox v. Wright, 9 Jur. (X. S.) 21 Waring v. C;ane, 2 Paige (N. 981; Guy v. Guy, 2 Beav. 4C0. Y.), 79. 21 Am. Dec. 70. 15 Calvert on Parties (2d ed.), 22 Waring v. Crane, 2 Paige (N. 418. Y.) 79, 21 Am. Dec. 70. WLuterel's Case, cited Prec. Ch. 23 Turner v. Turner, 2 Stra. 708. 50; Musgrave v. Parry, 2 Yern. 710. 24 Morgan v. Potter, 157 U. S. "Tappen v. Norman, 11 Yes. 195. 39 L. ed. 670. 563; Jarvis v. Crozier. 9s Fed. 753. 25 Wool ridge v. McKenna, 8 Fed. 18 Guy v. Guy, 2 Beav. 460. 650: supra, § 44. 19 Hoffman's Ch. Pr. 60: Daniell's 26 Ibid. Ch. Pr. (2d Am. ed.) 102. 27 Pulver v. Leonard, 176 Fed. 20 Daniell's Ch. Pr. (2d Am. ed.) 586. 102. 91] IDIOT? AND LUNATICS AS PLAINTIFFS. 359 of the cause, cannot without the approval of the court, bind the infant by a contract concerning the amount of the attorney's fees. 28 § 91. Suits on behalf of idiots, lunatics, and persons of weak mind. Idiots and lunatics sue by their committees or guardians, if they have any, otherwise by next friends. 1 It is the usual practice to join them as plaintiffs with their represen- tatives, though it might be held unnecessary to do so when one has a committee authorized by statute to sue in his name. 2 If the interest of the committe be adverse to that of his ward, the latter should sue by a next friend. 3 Although the practice is un- settled, it would be advisable to have the next friend appointed by the court. 4 Where a volunteer applied for the writ of habeas corpus on behalf of a person whom he alleged to be wrongfully confined as a lunatic, the court appointed another guardian ad litem with the direction that he examine the facts and use his own discretion in determining whether to continue the proceed- ing. 5 If a plaintiff become a lunatic after the institution of a suit, a supplemental bill may be riled in the joint names of the lunatic and of the committee of his estate, which will answer the same purpose as a bill of revivor in procuring the benefit of former proceedings. 6 If a committee die and a new committee is appointed after a suit has been instituted by the former for the benefit of his idiot or lunatic, the proper way of continuing the suit is by a supplemental bill filed by the idiot or lunatic and the new committee. 7 In England, a committee usually be- fore the institution of a suit prayed the sanction of the Lord 28 Ryan v. Philadelphia & Read- ing Coal & Iron Co., 180 Fed. 253. § 91. 1 Rule 87: Hoffman's Ch. Pr. 61. 2 See Ortlcy v. Mossoio. 7 Johns. Ch. (X. V.i 139; Harrison v. Row- an, 4 Wash. C. C. 202; Palmer. At- torney-General, v. Parkhurst, 1 Chan. Cas. 112; Gorham v. Gorham, 3 Barh. Ch. (X. V.) 24: Hoffman's Ch. Pr. 61 : Story's Eq. PI.. § 6.1, and notes. 3 Compare Attorney-General v. Tiler, 1 Dick. 378; Hoffman's Ch. Pr. 61. 4 Compare Attorney-General v. Tiler, 1 Dick. 378: Hoffman's Ch. Pr. 61; Story's Eq. PI., § 64, and notes. 5 King v. McLean Asylum, 26 L.R.A. 784. 64 Fed. 331. 6 See Brown v. Clark. 3 Woode- son's Lect. 378: Daniell's Ch. Pr. 108. 7 In re Reynolds. Shelf on Lun. 417; Daniell's Ch. Pr. 108. 360 CAPACITY TO SUE. [§ 92 Chancellor by a petition, which was often referred to a master. 8 Where a bill had been filed in the name of an alleged lunatic under an order of the court, and thereafter the plaintiff ap- peared by an attorney and moved to dismiss the bill, upon the ground that she was mentally competent ; it was held, that the court was not ousted of its jurisdiction, but might inquire into the mental competency of the plaintiff. 9 It has been said : that in such a case, the issue concerning the mental competency should be determined by a jury ; but that it may be decided by the court. 10 If a person of full age is neither an idiot nor a lunatic, and is yet incapable of managing his affairs, the court may appoint a next friend to sue for him. 11 If a bill has been filed in the name of a plaintiff, who, at the time of filing it, is in a state of mental incapacity, it may, on motion, be taken off the file, 12 but it has been held that a bill cannot be dismissed upon the motion of the defendant because the complainant was in filing the same dominated by another person, to such an extent that she was not free to exercise her will, when the com- plainant does not unite in the motion. 13 If, however, after a suit has been properly instituted, a plaintiff becomes imbecile, the bill cannot for that reason be taken off the file. 14 § 92. Capacity of foreign executors and administrators to sue. Foreign executors and administrators, under which term are included those appointed in other States than that where the court is held, cannot sue until they have taken out ancillary letters of administration, 1 unless the State statute au- 8 In re Webb. Shelf on Lun. 417; Darnell's Ch. Pr. 108. 9 Isle v. Cranby, 199 111. 39, 64 L.R.A. 513, 64 X. E. 1065. 10 Howard v. Skinner, 87 Md. 556. 40 L.R.A. 753; Pyott v. Pyott. 191 111. 280. n Wartnaby v. Wartnaby, .lac. 377; Ovving's Case, 1 Bland (Md.), 370, 373, 17 Am. Dec. 311; Story's Eq. PI. § 66. 12 Wartnaby v. Wartnaby, Jac. 377; Story's Eq. PI. § 66. WSpeekart v. Schmidt, C. C. A., 190 Fed. 499. 14 Wartnaby v. Wartnaby, Jac. 377. § 92. 1 Fenwick v. Sears, 1 Cranch, 259, 2 L. ed. 101; Dixon v. Ramsay, 3 Cranch, 319, 2 L. ed. 453; Doe v. McFarland, 9 Cranch, 151, 3 L. ed. 687; Kerr v. Moon, 9 Wheat, 565, 6 L. ed. 161; Mason v. Hartford. Providence & Fishkill R. Co., 19 Fed. 53; Duchesse d'Auby v. Porter, 41 Fed. 68; Johnson v. Powers, 139 U. S. 156, 158, 35 L. ed. 112. 113; Re Kingsley, 160 Fed. 275; J. B. & J. M. Cornell Co. v. Ward, C. C. A... 168 Fed. 51; Dodge 93] FOREIGN RECEIVERS AS PLAINTIFFS. 3G1 thorizes such suit; in which case the Federal Court will follow the State practice. 8 This rule forbids an action by a foreign ad- ministrator without ancillary letters to recover damages for the death of his intestate within the State where the suit was brought. 3 It has been held: that a foreign administrator, with- out ancillary letters, may sue to recover damages for the death of his intestate, within the State of his appointment; when the cause of action arises under a statute of such State; 4 but that a foreign administrator, appointed in the State of his decedent's domicile, cannot sue to recover damages for the death, under a statute of a State where the decedent died, which is different from those where the appointment was made and the suit is brought. 5 A foreign executor may sue without ancillary letters when the title is vested in him as trustee by devise. 6 A foreign executor or administrator, without ancillary letters, may sue to recover the proceds of the decedent's estate, which is in the hands of an agent of such personal representative. 7 § 93. Capacity of foreign receivers to sue. Ordinarily, a foreign receiver cannot sue to collect a cause of action that belongs to the corporation; 1 even when he brings a suit in the v. Town of North Hudson, 177 Fed. 986; Watkins v. Eaton, C. C. A., ]83 Fed. 384. An act of Congress authorizes them to sue without an- cillary letters in the District of Co- lumbia. 24 St. at L. 431; Overby v. Gordon, 177 U. S. 214. 44 L. ed. 741 ; Brownson v. Wallace, Fed. Cas. No. 2,042, 4 Blatchf. 4G5. The omission is cured by the issue of ancillary letters at any time before the hearing. Hodges v. Kimball, C. C. A., 91 Fed. 845. 2 Hayes v. Pratt, 147 U. S. 557, 37 L. ed. 279 ; Beaumont v. Beau- mont, 144 Fed. 128, under New Jer- sey Statute. 3 J. B. & J. M. Cornell Co. v. Ward, C. C. A., 1G8 Fed. 51 ; Dodge v. Town of North Hudson, 177 Fed. 986. 4 McCarty v. N. Y.. L. E. & W. R. Co., 62 Fed. 437. SMaysville Street R. R. & Trans- fer Co. v. Marvin, C. C. A., 59 Fed. 91; Brooks v. Southern Pac. Co., 148 Fed. 986. 6 De Forest v. Thompson, 40 Fed. 375. 7 Moore v. Petty, C. C. A., 135 Fed. 668. § 93. l Bootli v. Clark, 17 How. 322, 15 L. ed. 164; Hale v. Allin- son, 188 U. S. 56, 47 L. ed. 380; Great Weston Mining & Mfg. Co. v. Harris, 198 U. S. 561, 49 L. ed. 1163; Burr v. Smith, 113 Fed. 858; Hilliker v. Hale, C. C. A., 117 Fed. 220; certiorari denied 188 U. S. 739, 47 L. ed. 677; Edwards v. Na- tional Window Glass Jobbers Ass'n, 139 1-Vd. 795; Covell v. Fouler. 144 Fed. 535. It has been held: that this rule applies to a receiver ap- pointed by a United States court of 362 CAPACITY TO SUE. [§ 93 name of the corporation itself. 2 A receiver can never sue in a foreign court, to enforce a cause of action, upon which he could not sue in the courts of the State where he was appointed. 3 Tt has been said : that a defendant to the suit, in which the foreign receiver was appointed, cannot, if he has been duly served with process, dispute the authority of the receiver to sue in a foreign court, at least where the judgment appointing the receiver expressly authorized him to sue in such foreign court. 4 The fact that the court, which appointed the receive]-, gave him leave to sue in another district, does not authorize him there to sue without an ancillary appointment. 6 It hns been held that a foreign receiver cannot obviate this objection by bring- ing a suit in the name of the corporation. 6 Tt has been said: that when the foreign receiver is the statutory successor of a corporation, he can sue in a foreign court without an ancillary appointment. 7 Tie can also do so when he has received a volun- tary assignment of the assets of the insolvent ; 8 and where the statute vests in him the right to sue for and collect an assess- ment upon the stockholders, he is a quasi assignee and can maintain such suit in another jurisdiction; 9 but it has been held that where he has recovered a judgment in another juris- bankruptcy. Tn Re National Mer- cantile Agency, 128 Fed. 639. 2 Great Western Mining & Mfg. Co. v. Harris, 198 U. S. 561, 49 L. ed. 1163. See, however, Great West- ern Telegraph Co. v. Purdy, 162 U. S. 329, 40 L. ed. 98G. 3 Hale v. Allinson, 188 U. S. 56, 47 L. ed. 380. 4 Burr v. Smith, 113 Fed. 858. 5 Fowler v. Osgood, 4 L.R.A. (N.S.) 824, 141 Fed. 20. 6 Great Western Min. & Mfg. Co. v. Harris. 198 V. S. 561, 25 Sup. Ct. 770. 4!) L. ed. 1163; Fairview Fluor Spar & Lead Co. v. Finch. C. C. A., !92 \-\>d. 894: Strout v. United .Shoe Machinery Co.. 195 Fed. 313. See infra, §§ 304, 311. fRelfe v. Rundle, 103 U. S. 222. 26 L. ed. 337 (where the statute up- on the dissolution of an insurance company vested its assets in the su- perintendent of the insurance de- partment and the latter was allowed to sue in a foreign jurisdiction) ; Bernheimer v. Converse, 206 U. S. 516; Avery v. Boston Safe Deposit & Trust Co., 72 Fed. 700; Rogers v. Riley, 80 Fed. 759; Hale v. Hardon, 89 Fed. 283, 287; Hale v. Coffin, 114 Fed. 567. But see Hale v. Allinson, 188 U. S. 56, 69, 47 L. ed. 380. 389. 8 Hawkins v. Glenn, 131 V. S. 319, 33 L. ed. 184; Lewis v. Clark. C. C. A., 129 Fed. 570; (where the assignment was made by a foreign receiver to a receiver appointed in another State, who was allowed to sue in a third State). 9 Converse v. Hamilton. 224 V. S. 243, 56 L. ed. 749: Irvine v. Put- nam, 190 Fed. 321. § 95] UNITED STATES DEFENDANT. 363 diction, he cannot sue to recover equitable assets until he has obtained a judgment in the State where they are situated; 10 even though he shows that the debtor has no other property. A receiver, appointed by a Federal court, can sue in the courts of the State where the Federal district is located. 11 It seems that a receiver, appointed by a State court, can sue in the Federal court in the same district. 12 § 94. Who may be defendants. All persons may be made defendants, except the United States, without their consent, 1 or a Territory thereof; 2 foreign States and sovereigns for acts done in a political capacity; 3 "one of the United States by citizens of another State, or by citizens or subjects of any foreign State ;" 4 receivers appointed by State courts without the leave of such courts; 5 and foreign executors and adminis- trators, 6 unless they have assets within the jurisdiction of the court where the bill is filed, 7 in which case they are liable, as trustees, to account for the same, to those entitled thereto. 8 Whether a suit can be brought against the President of the United States is undecided. 9 § 95. The United States as a defendant. In general. The United States cannot be sued in any court without their 10 Trotter v. Lisman, 199 N. Y. 497. 11 Grant v. Buckner, 172 U. S. 232, 238, 43 L. cd. 430. 12 Porter v. Sabin, 149 U. 8. 473, 37 L. cd. 81.5. § 94. lCarr v. U. S., 98 U. S. 433. 25 L. ed. '209; Kansas v. U. S., 204 U. S. 331, 51 L. ed. 510. infra, §§ 94-97. 2 Kawananakoa v. Polyblank, 205 U. S. 349. 51 L. ed. 834. 3 Duke of Brunswick v. King of Hanover, 6 Beav. 1 ; Hullett v. King of Spain. 2 Bligh N. R. 31. 4 Eleventh Amendment to Consti- tution. 5 Barton v. Barbour. 104 U. S. 126, 26 L. ed. 072: Thompson v. Scott, 4 Dill. 508; Express Co. v. Kailroad Co.. 99 U. S. 191, 25 L. ed. 319. See § 314, infra. 6 Vaughn v. Xorthrup, 15 Pet. 1, 10 L. ed. 639; Courtney v. Pradt, 196 U. S. 89, 49 L. ed.*398: s. c, 135 Eed. 818; Lewis v. Parrish, C. C. A., 115 Eed. 2S5: Skiff v. White, 127 Eed. 175; Story's Eq. PL, § 179, infra, § 311. 7 Sandilands v. Inness, 3 Sim. 363; McNamara v. Dv.yer. 7 Paige (X. Y.) 239. 32 Am! Dec. 627: Campbell v. Tousey, 7 Cow. (X. Y.) 64, infra, § 311. 8 Lewis v. Parrish. C. C. A., 115 Fed. 285. infra, § 311. 9 See Mississippi v. Johnson. 4 Wall. 475, 18 L. ed. 437: People ex rel. Broderick v. White. 156 X. Y. 136, 4 L.R.A. 231. 66 Am. St. Rep, 547, and cases cited. 364 LIABILITY TO SUIT. [§ 95 consent. 1 A Territory of the United States, such as the Terri- tory of Hawaii, has the same immunity. 8 The District of Columbia has not. 3 Neither has the city of Manila in the Philippines. 4 Even if there is no remedy adequate to the collection of a claim against a municipality when reduced to judgment, a plaintiff having a valid claim is entitled to main- tain an action thereupon and to reduce the same to judgment against it. 5 The United States may waive their exemption from suit by statute, 6 but not bv the act of any of their officers. 7 A Terri- § 95. iCarr v. U. S., 98 U. S. 433, 25 L. ed. 209; Kansas v. U. S.,, 204 IT. S. 331. 51 L. ed. 510. 2 Kawananakoa v. Polyblank, 205 U. S. 349. 51 L. ed. 834. 3 Metropolitan R. R. Co. v. Dis- trict of Columbia, 132 U. S. 1, 33 L. ed. 231. 4 Vilas v. City of Manila. 220 U. S. 345. 55 L. ed. 491. 5 Mount Pleasant v. Beckwith, 100 IT. S. 514, 530. 25 L. ed. 699, 703; Vilas v. City of Manila, 220 I". S. 345,352, 55 L. ed. 491, 494. It has been held that the National Home for Disabled Volunteer Soldiers, in Tennessee, a charitable institution engaged as an agency of the Federal Government in the discharge of a govermental function, is not subject to an action sounding in tort to re- cover damages for the negligence of its officers in diverting and pollut- ing the waters of plaintiff's spring; since the power '"to sue and to be sued at law and in equity," con- ferred on the corporation by its .barter ( U. S. R. S., § 4825, Comp. St. 1901. p. 3337), is limited to matters within the scope of the oth- er corporate powers with which it is vested. Lyle v. National Home for Disabled Volunteer Soldiers. 170 Fed. 842. 6 U. S. v. Clarke. 8 Pet. 436. 8 L. ed 1001; The Siren, 7 Wall. 152, 19 L. ed. 129; Kawananakoa v. Polyblank. 205 U. S. 349, 353, 51 L. ed. 834. 836; per Holmes, J.: "Some doubts have been expressed as to the source of the immunity of a sovereign power from suit without its own permission, but the answer has been public property since be- fore the days of Hobbes. (Levia- than, c. 26, 2.) A sovereign is ex- empt from suit, not because of any formal conception or obsolete theo- ry, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. 'Car on pent bien reerrnir loy d'autruy, mats il est impossible par nature de se don tier loy.' Bodin, Republique, 1, c. 8. Ed. 1629. p. 132. Sir John Eliot, De Jure Maiestatis, c. 3. "Nemo suo statuto ligatur nec- essitative. Baldus., De Ley. et Const.. Digna Vox (2d ed., 1496, fol. 51b. Ed. 1539, fol. 61). As the ground is thus logical and practical, the doctrine is not confined to pow- ers that are sovereign in the full sense of juridical theory, but natur- ally is extended to those that in ac- tual administration originate and change at their will the law of con- tract and property, from which per- sons within the jurisdiction derive § 05] UNITED STATES DEFENDANT. 365 tory waives exemption by failing to object to the jurisdiction. 8 When the United States institute a suit, thev waive their exemption so far as to allow a presentation by the defendant of any set-off, legal and equitable, to the extent of the demand made or property claimed. 9 No affirmative judgment can be entered by the defendant, upon his set off or counterclaim. 10 The Revised Statutes provide: "In suits brought by the United States against individuals, no claim for a credit shall be admitted, upon trial, except such as appear to have been presented to the accounting officers of the Treasury, for their examination, and to have been by them disallowed, in whole or in part, unless it is proved to the satisfaction of the court that the defendant is, at the time of the trial, in possession of vouchers not before in his power to procure, and that he was prevented from exhibiting a claim for such credit at the Treasury by absence from the United States or by some un- avoidable accident." 11 It has been held that this applies to all counterclaims against the United States. 12 When the United States proceed in rem, they open to consideration all claims and equities in regard to the property libeled. 13 Where property of the United States is involved in a litigation to which they are not technically parties, the attorney for the district where the suit is brought may intervene by way of suggestion ; and in such a case the court will either stay the suit or adjust its judgment according to the rights disclosed their rights. A suit presupposes that the defendants are subject to the law invoked. Of course it can- not be maintained unless they are so." 7(arr v. U. S., 98 U. S. 433, 25 L. ed. 209. 8 Kawananakoa v. Polyblank, 205 U. S. 349, 353, 51 L. ed. 834, 836. 9 Reeside v. Walker, 11 How. 272, 13 L. ed. 693; U. S. v. Kerr, 196 Fed. 503. 10 Reeside v. Walker, 1 1 How. 272, 13 L. ed. 693; New York v. Denni- son, 84 N. Y. 272. 11 U. S. R. S.. § 951. 12 U. S. v. Kerr, 196 Fed. 503. 13 Mr. Justice Field in The Siren, 7 Wall. 152, 154; Walker v. U. S., 139 Fed. 409. A more liberal rule against the government is sug- gested in Fifth Xat. Bank v. Long, 7 Biss. 502; Elliot v. Van Voorst, 3 Wall. Jr. 299; Briggs v. The Light Boats, 11 Allen (Mass.), 157; Stanley v. Schwalby. 162 U. S. 255, 272. In U. S. v. Ansonia Brass & Copper Co., 218 U. S. 452. it was held that certain stipulations made by a District Attorney of the United States, in order to obtain possession of vessels seized by judicial proceed- ings while in the course of construc- tion, should not be construed as de- o66 LIABILITY TO SLIT. [§96 on the part of the government ; H but no judgment can then be entered against the United States for costs or divest them of their title to property. 15 § 96. Liability of the United States and officers thereof to suits for the recovery of money. The Judicial Code provides : District Courts of the United States shall have jurisdiction, ''Concurrent with the Court of Claims, of all claims not exceeding ten thousand dollars founded upon the Constitution of the United States or any law of Congress, or upon any regulation of an Executive Department, or upon any contract, express or implied, with the Government of the UniWl States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable, and of all set-offs, counterclaims, claims for dam- ages, whether liquidated or unliquidated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Government in said court : Provided, however, That nothing in this paragraph shall be construed as giving to either the district courts or the Court of Claims jurisdiction to hear and determine claims growing out of the late Civil War, and commonly known as 'war claims,' or to hear and determine other claims which had been rejected or reported on adversely prior to the third day of March, eighteen hundred and eighty-seven, by any court, de- partment, or commission authorized to hear and determine the same, or to hear and determine claims for pensions; or as giv- ing to the district courts jurisdiction of cases brought to recover fees, salary, or compensation for official services of officers of the United States or brought for such purpose by persons claim- ing as such officers or as assignees or legal representatives there- of; but no suit pending on the twenty-seventh day of June, eighteen hundred and ninety-eight, shall abate or be affected by this provision: And provided further, That no suit against priving the Government of any llii. 147. But see Stanley v. lights asserted under the contracts Schwalby, 1(52 U. S. 255. for such construction. 15 Stanley v. Schwalby, 162 U. S. 14 Stanley v. Schwalby, 147 U. S. 255, 272. Infra, § 105. 50S, 513; The, Exchange, 7 Cranch, § 96] UNITED STATES DEFENDANT. 307 the Government of the United States shall be allowed under this pragraph unless the same shall have been brought within six years after the right accrued for which the claim is made: Provided, That the claims of married women, first accrued during marriage, of persons under the age of twenty-one years, first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the suit be brought within three years after the disability has ceased; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively. All suits brought and tried under the provisions of this paragraph shall be tried by the court without a jury." 1 This withholds from the District Courts jurisdic- tion over all claims against the United States which exceed ten thousand dollars and all cases brought to recover fees, salary or compensation for the services of officers. In such cases, suit must be brought in the Court of Claims; 2 but it has been held that the District Courts have jurisdiction of suits to recover dis- bursements made by marshals in payment of the services of court bailiffs. 3 Actions for similar causes may be brought in the District Court of the United States for Porto Rico. 4 It is doubtful whether an alien corporation can maintain such a suit in any court. 5 It has been said: that the words "in cases not sounding in tort" limit only the last part of the clause, and do not affect claims founded upon the Constitution of the United States or a law of Con- gress. 6 It has been held: that an action will lie against the United States for the recovery of duties illegally exacted upon merchandise, which is alleged not to have been imported from a foreign country, when the construction of the Constitution of § 9G. 1 30 St. at L. 1087, § 24, 3 U. S. v. Swift, C. C. A., 139 Fed. subd. twentieth. Tliis is practically 225. a re-enactment of the Tucker act, 4 Hijo v. U. S., 194 U. S. 31.1, 48 passed in 1887, as subsequently L. ed. 994. amended 24 St. at L. 505, 30 St. at 5 Hijo v. U. S., 104 U. S. 315, 48 L. 494. L. ed. 994. ilnfra, Chapter on Court of BDooley v. U. S.. 1S2 U. S. 222, Claims. 45 L. ed. 1074; C. S. v. Lynah, 188 U. S. 445, 475, 47 L. ed. 539. 550. 3G3 LIABILITY TO SUIT. [§ 96 the United States 7 or of an act of Congress, 8 was involved; to recover revenue taxes illegally exacted and paid under protest, when the payment was necessary to avoid stopping the business in which the plaintiff was engaged, 9 and fines illegally imposed, the non-payment of which would have prevented the clearance of vessels carrying the mails. 10 In such a case, the collector, 11 or a commissioner of internal revenue, 12 or other officer who has compelled the unlawful payment, may be sued personally, as well as the United States. 13 It has been held that an appeal to the Commissioner of Internal Revenue is not a prerequisite to an action against the' collector. 14 The Act to simplify the laws in relation to the collection of the revenues provides: "That from and after the taking effect of this Act, no col- lector or other officer of the customs shall be in any way liable to any owner, importer, consignee, or agent of any merchan- dise, or any other person, for or on account of any rulings or decisions as to the classification of said merchandise or the duties charged thereon, or the collection of any dues, charges, or duties on or on acount of said merchandise, or any other matter or thing as to which said owner, importer, consignee, or agent of such merchandise might, under this Act, be en- titled to appeal from the decision of said collector or other officer, or from any board of appraisers provided for in this Act." 15 The same statute directs the Secretary of the Treas- ury to refund and pay, out of any money in the treasury not otherwise appropriated, all moneys that are shown to his satis- faction to have been paid to or deposited with a collector of customs in any case of unascertained or estimated duties. In fDooley v. U. S., 182 U. S. 222, " De Lima v. Bidwell, 182 U. S. 45 L. ed. 1074. 1, 45 L. ed. 1041. 8 Lincoln v. U. S., 197 U. S. 419, 12 Ewers v. Weaver, 182 Fed. 713. 49 L. ed. 810. 13 Emery, Bird, Thayer Realty Co. 9 Swift Co. v. U. S., HI U. S. 22, v. U. S., 198 Fed. 242. 28 L. ed. 341; Christie Street Com- 14 Ewers v. Weaver, 182 Fed. 713. mission Co. v. U. S., C. C. A., 130 15 Act of June 10, 1890, § 24, as Fed. 32G; reversing 129 Fed. 506. amended Aug. 5. 1909, 30 St. at L. See N. Y. Consol. Card Co. v. U. S., 11. Pierce's Fed. Code, *§ 1032. 20 Ct. CI. 174. is Ibid., § 23. 10 Oceanic Steam Navigation Co. v. Stranahun, 214 U. S. 320, 329. 53 L. ed. 1013, 1018. {< 90] UNITED STATES DEFENDANT. 369 case of his failure so to do, an action might lie against the United States to recover the same. It seems that a suit will lie against the United States to recover excess postage paid under protest. 17 It has been suggested that an action might lie against the postmaster under the same circumstances. 18 Suits cannot be brought against the United States to recover taxes paid voluntarily without any contemporary protest or notice of objection, 19 nor money paid for the purchase of revenue stamps under similar circumstances. 20 Neither a statute im- posing a tax, nor execution thereunder, nor a mere demand for payment, constitutes duress; but where the statute contains self-operating provisions, by which non-payment of the tax re- sults in heavy penalties and a forfeiture of the right to do busi- ness, payment by one within the class affected is not volun- tary, but compulsory. 21 In such a case, payment by one not in- cluded in such class is not made under duress. 22 The refusal, by a recorder, to accept a deed without the revenue stamps, 23 and the refusal of the collector to give to a ship a clearance without such stamps; 24 do not constitute such duress as will authorize a suit to recover the taxes, when there was no con- temporary protest or notice, although the statute made the omission of the stamps a misdemeanor. 25 A subsequent appli- cation to the internal revenue commissioner for a return of the money paid for stamps is not equivalent to a contemporary protest or notice. 26 The payment of an inheritance tax under protest, after a threat by the collector that, unless promptly paid, it would be collected with a penalty and interest of one per cent a month, was held to be involuntary and to justify a suit against the internal revenue collector to recover the 17 Lewis Pub. Co. v. Wyman, C. 20 ibid. C. A., 182 Fed. 13, 17, 18. 21 Qaar, Scott & Co. v. Shannon, 18 Jbid. 223 U. S. 468, 56 L. ed. 510. 19 Chesebrough v. U. S., 192 U. 22 ibid. S. 253. 48 L. ed. 432; U. S. v. New 23 Chesebrough v. U. S., 192 U. S. York & Cuba Mail S. S. Co., 200 U. 253, 48 L. ed. 432. S. 488, 50 L. ed. 560. Rut it seems 24 u. S. v. N. Y. & Cuba Mail S. that where one proL t has been S. Co.. 200 U. S. 488, 50 L. ed. 569. duly made, subsequent protests 25 Cheseb rough v. U. S., 192 U. S. against similar exactions are not 253. 48 L. ed. 432. necessary. Johnson v. Herolcl, 161 26 ITerold v. Kahn, C. C. A., 159 Fed. 593. Fed. 608. Fed. Prac. Vol. I.— 24. :;7o LIABILITY TO SUIT. [§ 96 same. 27 Such has been held to be the payment of an illegal tax upon land for the purpose of obtaining possession of the same. 28 Suits may be brought against the United States to re- cover money paid under the void judgment of a military com- mission, 29 or a fine illegally imposed by a provisional court, 30 to recover taxes which a statute has directed the Secretary of the Treasury to refund. 31 Suits may be brought to recover money paid to a public officer under a mutual mistake of fact, 32 but not money paid under a mutual mistake of law ; 33 to recover the purchase price paid upon void entries of pub- lic land ; 34 to recover money paid a land officer as part pay- ment for a certificate of entry which he refuses to deliver, the consideration for the payment thus failing ; 35 to recover money of the claimant received by the United States for other pur- poses, and appropriated by them for the payment of an illegal tax ; 36 to recover money of the claimant obtained and paid into the Treasury by a fraud perpetrated by an officer of the United States; 37 to recover the value of property delivered in pur- suance of an express contract which is void; 38 to recover the damage to property leased by the government and injured by the want of reasonable care' while in its possession ; 39 to recover for salvage services, 40 including maritime services in saving property, upon which duties had been paid that the govern- ment might otherwise have been obliged to refund, 41 and for 27 Simons v. U. S., 19 Ct. CI. G01. 28 Devlin v. U. S., 12 Ct. CI. 2G6. But see Carver v. U. S., Ill U. S. 009. 28 L. ed. 540. 29 Basso's Case, 40 Ct. CI. 202. 30 U. S. v. Shipley, C. C. A., 197 Fed. 2G5. 31 Nelson v. U. S., 35 Ct. CI. 427; Ingram v. U. S., 32 Ct. CI. 147; 32 U. S. v. Edmonston, 181 U. S. 500. 45 L. ed. 971; U. S. v. Wilson, 168 U: S. 273, 42 L. ed. 404: U. S. v. Lawson, 101 U. S. 1G4, 25 L. ed. 800. 33 Emmons v. U. S. 42 Fed. 2G. 34 Slocum v. U. S.. 35 Ct. CI. 485; Anthracite Mesa Coal Min. Co. v. U. S., 38 Ct. CI. 56, 63. 35 Johnston v. U. S„ 17 Ct. CI. 157. 36 U. S. v. State Bank, 96 U. S. 30, 24 L. ed. 647. 37TIeathlield v. U. S., 8 Ct. CI. 213. 38 U. S. v. Bostwiek. 94 U. S. 53, 24 L. ed. 65. 39 Bryan v. U. S., 6 Ct. CI. 128; McGowan v. U. S., 20 Ct. CI. 147. 40 U. S. v. C rnell Steamhoat Co.. 202 U. S. 184. 50 L. ed. 987; affirm- ing, C. C. A., 137 Fed. 455. 41 Brown v. U. S.. 15 Ct. CI. 392. § f J6] UNITED STATES DEFENDANT. 371 the share of general average reasonably due; 42 by a Contractor for extra work clone by him under the direction of a government agent authorized to order the same, and for damages for an im- proper interference by such agent with the fulfillment of the contract. 43 When the government of the United States, by such formal proceedings as are necessary to bind the same, takes for public use land to which it asserts no claim or title, but admits the ownership to be private or individual, there arises an im- plied obligation to pay the owner its true value, 44 unless Con- gress has provided for the payment of the same, in which case no more -can be recovered, although the owner has protested. 45 Tt has been held : that an action will lie to recover damages to land, to which the Government obtains no title, if the same is permanently flooded by a work, such as a dam, built on ad- joining land under the direction of an Act of Congress ; 46 and that where the Government has agreed to furnish a coffer dam to a contractor for the construction of a public work, it is liable for damage caused by negligence in the construction of the dam. although there Avas no stipulation in the contract to the effect; 47 but that it is not liable for damages caused by temporarv floods to land which was previously subject to over- flow in time of freshets, although increased by a Government dam on adjacent land, 48 or by revetments erected by the Govern- ment along the banks of a river to prevent erosion from natural causes. 49 When damages for the flooding of land are allowed ; 42 Bowe v. U. S., 42 Fed. 76]. 43B \ve v. U. S., 42 Fed. 761. 44Langford v. U. S., 101 U. S. 341, 25 L. ed. 1010. See Hill v. U. S.. 149 U. S. 593, 37 L. ed. 862; Great, Falls Mfg. Co. v. Att'y Gen., 124 U. S. 581. 31 L. ed. 527; U. S. v. Russell, 13 Wall. 623. 20 L. ed. 474; Grant v. U. S.. 1 Ct. CI. 41 ; Hollis- ter v. Benedict & B. Mfg. Co., 113 U. S. 59, 67. 28 L. ed. 901, 903; Mills v. U. S.. 19 Ct. CI. 79: Kettler v. U. S.. 21 Ct. CI. 175: Alexander's Case, 39 Ct. CI. 383 (land used for a camp) ; Philippine Sugar Estates Development Co. v. U. S. 40 Ct. CI. 33. 45 Hooe v. U. S., 218 U. S. 322, 54 L. ed. 1055. 46 U. S. v. Lynah, 188 U. S. 445, 47 L. ed. 539; U. S. v. Welch, 217 U. S. 333; U. S. v. Grizzard, 219 U. S. 180, 55 L. ed. 165, 31 L.B.A. (N.S.) 1135. 47 Collins & Farwell v. U. S.. 34 Ct. CI. 294. 48 Coleman v. U. Si, 181 Fed. 599. 49 Bedford v. U. S., 192 U. S. 217, 48 L. ed. 414. See Manigault v. Spring-. 199 U. S. 473. 485. 50 L. ed 274, 280; Mills v. U. S., 46 Fed. 738. 372 LIABILITY TO SUIT. [§ 96 they include the value of a private right of way to other land of .plaintiffs, which is thus destroyed, 50 and the loss and ease- ment of access from other land of the plaintiff to a public road. 51 Whenever there has been an actual physical taking of part of a distinct tract of land, the compensation to be awarded includes not only the market value of so much as is actually appropriated, but also the damage to the remainder which therefrom results, including injury due to the probable use to which the part appropriated is to be devoted by the Govern- ment; 52 but damage resulting to adjacent but distinct parcels of land has been admitted. 53 In a proceeding to condemn the locks and dams of a corporation, the value of the franchise to take tolls for their use must be included in the compensation. 54 Before the Tucker act, it was held: that, when the United States takes possession of property, asserting a title hostile to that of the true owner, such owner cannot recover, in a suit in any court, the reasonable value of its use, or the reason- able value of the fee of the same. 55 Whether the Tucker act has changed this rule has not yet been authoritatively decided. 56 When the claim is not based upon the Constitution, or a law of the United States, or a department regulation, it must "be founded on a convention between the parties, a coming to- gether of minds." 57 It has been said that to constitute an im- 50 U. S. v. Welch, 217 U. S. 333, 54 L. ed. 787, 28 L.R.A.(N.S.) 385, 10 Ann. Cas. G80. 51 U. S. v. Grizzafd, 219 U. S. 180, 00 L. ed. 165, 31 L.R.A.(N.S.) 1135. 52 u. S. v. Grizzard, 219 U. S. ISO. 55 L. ed. 165, 31 L.R.A.(N.S.) 1135. See Sharp v. U. S., 191 U. S. 341. . 53 Sharp v. U. S., 191 U. S. 341, 353, 48 L. ed. 211, 215. 54 Monongahela Navigation Co. v. 1 . S., 148 U. S. 312, 315, 37 L. ed. 463, 464. 55Langford v. U. S., 101 U. S. 341. 25 L. ed. 1010. 56 U. S. v. Lynah, 188 U. S. 44."), 474, 47 L. ed. 539, 550; wliere Brown, J., with the concurrence of Shiras and Peckham, JJ., expressed the opinion: that a case of trespass upon real estate by the government, was a taking of property within the meaning of the Fifth Amendment to the Constitution of the United States, and was the subject of an action under the Tucker act. See Dooley v. U. S., 182 U. S. 222. 45 L. ed. 1074; Hooe v. U. S., 218 U. S. 322, 54 L. ed. 1055. But see O. S. v. Lynah, 188 U. S. 445, 47 L. ed. 539; U. S. v. Welch, 217 U. S. 333, 54 L. ed. 787, 28 L.R.A.(N.S.) 385, 19 Ann. Cas. 680; U. S. v. Grizzard, 219 U. S. 180, 55 L. ed. 165, 31 L.R.A.(N.S.) 1135. 57Harley v. U. S., 198 U. S. 229, 234, 49 L. ed. 1029, 1030. The re- tention without express rejection of a proposal, although the proposal § 90] UNITED STATES DEFENDANT. 3*T> plied contract upon which a suit can be brought, "there must have been some consideration moving to the United States, or they must have received the money charged with a duty to pay it over ; or the claimant must have had a lawful right to it when it was received, as in the case of money paid by mistake." 58 With the exception of claims for the proceeds of captured or abandoned property and others arising under special statutes, the courts have no jurisdiction of claims upon torts committed by the United States, 59 except where the claimant can waive the tort and sue upon an implied contract, 60 or where the case arises purports to be an assignment, does not amount to an acceptance of the same, when it expressly states that it shall not bind the proposer unless accepted by the officer before a speci- fied date, and it was an answer to an advertisement stating that the proposals were for investigation and estimate and that the advertising officer had no authority to contract for the expenditure of money. Beach v. U. S., 226 U. S. 243, 57 L. ed. — . See infra, § 368. 58Knote v. U. S., 95 U. S. 149, 157, 24 L. ed. 442, 444. 59 "'There can be no reasonable doubt that this limitation to cases of contract, express or implied, was established in reference to the dis- tinction between actions arising out of contracts, as distinguished from those founded on torts, which is in- herent in the essential nature of ju- dicial remedies under all systems, and especially under the system of the common law. The reason of this restriction is very obvious on a moment's reflection. While Con- gross might be willing to subject the Government to the judicial en- forcement of valid contracts, which could only be valid as against the United States when made by some officer of the Government acting un- der lawful authority, with power vested in him to make such con- tracts, or to do acts which implied them, the very essence of a tort is that it is an unlawful act done in violation of the legal rights of some one. For such acts, however higli the position of the officer or agent of the Government who did or com- manded them, Congress did not in- tend to subject the Government to the results of a suit in that court. This policy is founded in wisdom, and is clearly expressed in the act defining the jurisdiction of the court; and it would ill become us to fritter away the distinction be- tween actions ex delicto and actions ex contractu, as well understood in our system of jurisprudence, and thereby subject the Government to payment of damages for all the wrongs committed by its officers or agents, under a mistaken zeal, or actuated by less worthy motives." Miller, J., in Langford v. U. S., 101 U. S. 341, 25 L. ed. 1010. Where a statute which authorized a suit against the United States for a continuous tort was repealed pending such a suit, it was held that the damages sustained up to the time of the repeal only cculd be recovered. Paine L. Co. v. U. S.. 55 Fed. 854. 60 Ingram v. U. S., 32 Ct. CI. 147. 74 LIABILITY TO SUIT. [§ 96 under the Constitution or a law of the Fn i tod States. 61 The United States are not liable for injury resulting from the negli- gence of their officers to those who are not in a contractual or a r/(/fl.s<-contractual relation with them. 62 A person injured by the negligence of a government employee operating an elevator cannot waive the tort and sue the United States upon an implied contract to carry him with care. 63 Where the Register of the Treasury canceled registered bonds without au- thority of law, a party who bought them on the faith of such cancellation and subsequently was obliged to repay their value to the original owner, was not allowed to recover from the United States the amount for which he was thus mulcted. 64 An action for the unlawful seizure of private property for the use of the army sounds in tort and the courts have no juris- diction of the same. 65 Where a suit was brought by an army officer against the United States for indemnity because of his payment of a judgment recovered against him on account of his seizure and use of a boat for the benefit of the government under the orders of his superior officer ; it was held that, if the liability of the United States was in tort, no action would lie, and that if the liability was upon an implied contract, it arose when the seizure was made, not when the judgment was re- covered. 66 Damages have been awarded against the govern- ment for the use of a vessel impressed during the Spanish 162, per Xott, C. J.: "The common law reduces all civil actions be- tween individuals to two simple classes, ex contractu and ex de- licto. There are many subdivisions of the former, but generally it may be said that what is not r.r delicto is . .;• cm frui-lii. It is the opinion of this court that Congress use] the language "upon any contract, ex- pressed or implied.' with reference to this general classification of the common law. The moaning is that the court shall have jurisdiction of all actions ex contractu whether the contract be express or implied, but shall not have jurisdiction of ac- tions ex delicto." eiDooley v. V. S.. 182 U. S. 22J. 45 L. ed. 1074; Lincoln v. U. S.. in? U. S. 419, 49 L. ed. 816. 62 German Bank of Memphis v. U. S., 148 U. S. 573. 37 L. ed. 564. 63 Bigby v. L. S.. 188 U. S. 400. 47 L. ed. 519. 64f;erman l>ank of Memphis v. 1 . S.. 14S L. S. 573. 37 L. ed. 564. 65 Herrera v. U.S., 222 U. S, 558, 55 L. ed. 316. 66 Carpenter v. U. S., 42 Fed. 264. 8 96] UNITED STATES DEFENDANT. 37"> War. 67 The liability of the United States and officers thereof for the infringement of patents, is subsequently considered. 63 "The words 'hear and determine' are used four times, — once as applied to the Court of Claims, twice as applied to that court and to the Circuit and District Courts, and again as applied to any court, department, or commission. These words must be taken to be used in each instance in the same sense, and as implying an adjudication conclusive as between the parties, in the nature of a judgment or award. The proviso that nothing in this section shall be construed as giving to either of the courts named in the act jurisdiction to hear and determine claims 'which have heretofore been rejected or reported on adversely bv anv court, department, or commission authorized to hear and determine the same; must be limited to a rejection of a claim, or an adverse report thereon, by a court, department, or commission which determines the rights of the parties, such as the approval by the Secretary of the Treasury of an account of expenses under the captured and abandoned property acts, 69 or the decisions of an international commission. Moreover, the Court of Claims, even before the passage of the Act of 18*7. had jurisdiction of Claims under an act of Congress or under a contract, and could therefore hear and determine claims for legal salaries or fees. 70 We cannot believe that the Act of 1887, entitled 'An act to provide for the bringing of suits against the government of the Fnited States,' the manife'sl scope and purpose of which are to extend the liability of the government to be sued, was intended to take away a juris- diction already existing, and to give to the decisions of account- ing officers an authoritv and effect which thev never had be- fore.'' 71 Consequently, the rejection of a claim by the First 6TXeal's Case, 30 Ct. CI. 40. See 70 Meade v. U. S., 9 Wall. 69], U. S. v. Russell, 13 Wall. 623. 20 L. 19 L. ed. 687. ed. 474. 71 Meade v. U. S., 18 Ct. CI. 281 ; 68 Infra, § 100, and chapter on s. c. 10!) U. S. 146: Adams v. U. Court of Claims. 8.. 20 Gt_Cl. 115; U. S, v. McDon- 69 U. S. v. Johnson. 124 U. S. aid. 128 T. S. 471. 32 L. ed. 506; 236. 31 L. ed. 389, 8 Sup. Ct. R. U. S. v. Jones, 131 II. S. 1, 13. 446. 376 LIABILITY TO SUIT. [§ 07 ( 'oiuptroller of the Treasury, which is only conclusive within the Department of the Treasury, is not a bar to such a suit. 72 § 97. District Court practice in suits against the United States. The practice in such suits in the District Courts is as follows : The plaintiff must file a petition duly verified with the clerk of the respective courts having juris- diction of the case, and in the district where the plaintiff resides. 1 Such petition should set forth the full name and residence of the plaintiff, the nature of his claim, and a succinct statement of the facts upon which the claim is based, the money or any other thing claimed, or the damages sought to he recovered, and must pray the court for a judgment or decree based upon the facts and the law. 2 The plaintiff must cause a copy of his petition, after filing the same, to be served upon the district attorney of the United States in the district wherein suit is brought, and must mail another copy by registered letter To the Attorney-General of the United States ; and must there- upon file with the clerk of the court wherein the suit is institut- ed, an affidavit of such service and mailing. 3 The United States appears by the district attorney, and is allowed sixty days, or as much more time as the court may in its discretion allow, within which to file a plea, answer, or demurrer; "and to file a notice of any counter-claim, set-off, claim for damages, or other demand or defense whatsoever; of the government in the premises : provided, that should the district attorney neglect or refuse to file the plea, answer, demurrer, or defense, as re- quired, the plaintiff may proceed with the case under such rules as the court may adopt in the premises." But the plain- tiff cannot have a judgment or decree in his favor unless he establishes the same by proof satisfactory to the court. 4 It is the duty of the court to cause a written opinion to be filed in the cause, "setting forth the specific findings by the 72 U. S. v. Harmon, 147 U. S. 268; 2 Mr. Justice Gray, Colt, J., con- s. c, as Harrison v. U. S. 4] Fed. curring, in Harmon v. U. S., 43 Fed. 560; U. S. v. Rand. C. C. A., 53 Fed. 560. 564, 565. 348: U. S. v. Jones, 131 U. S 1, 13, 3 24 St. at L. Ch. 3.59, p. 505, § 6, 33 L. ed. 90. 2 Fed. St. Ann. 80, Comp. St. 752, § 97. 124 St. at L. Ch. 359, Pierce Fed. Code, § 7826. p. 505, § 5, 2 Fed. St. Ann. 80, 4 Ibid. < omp. St. 752, Pierce Fed. Code, § 7825. § Q»7] UNITED STATES DEFENDANT. 377 s 1 court of the facts therein and the conclusions of the court upon all questions of law involved in the case, and to render judgment thereon. 5 "That opinion is not to be regarded as the usual opinion of the trial judgment, but must be accepted as a part of the record." 6 "The purpose of the opinion is to enable the public and the Appellate Court, to find upon the record a formal statement of the findings of the Circuit Court, both upon questions of law and fact, and the rea- sons for such findings." 7 It seems that an agreed statement of facts, when filed, will be accepted as a part of the record. 8 Where a trial judge filed two papers, one entitled a decree for the petitioner, and the other the opinion of the court, the two setting out sufficient findings of fact to sustain its conclusions ; it was held, that these papers were sufficiently formal to consti- tute a compliance with the statute. 9 A general refusal to com- ply with the Government's requests for several findings of fact and rulings of law was held to be as effectual as if the same were denied seriatim?* "If the suit be in equity or admiralty, the court shall proceed with the same according to the rules of such court." 10 Judgment may be rendered in favor of the United States for the balance due upon a counterclaim. 11 If the United States puts in issue the right of the plaintiff to re- cover, the court may in its discretion allow costs to the prevail- ing party, which, however, cannot exceed what is actually in- curred for witnesses, "and for summoning the same, and fees paid to the clerk of the court." 12 From the date of final judg- ment or decree against the government, interest is allowed "to be computed thereon, at the rate of four per centum per annum, until the time when an appropriation is made for the payment 5 Ibid., § 7, Pierce Fed. Code, »U. S. v. Swift, C. C. A.. 139 § 7827. For findings concerning the Fed. 225, 226. services of a marshal, which were 9 U. S. v. Hyams. C. C. A., 146 Held not to be sufficiently specific Fed. 15. to enable the appellate court to 9a Ibid. determine the Government's liabil- 10 U. S. v. Hyams, C. C. A.. 1,46 ity, see U. S. v. Tisdale, 114 Fed. Fed. 15, 24 St. at L. Cb. 350. § 7. 883. P- 506 - 6U. S. v. Swift, C. C. A., 139 Fed. " U. S. v. Saunders, C. C. A.. 79 225. 226. Fed. 407; McElratb v. U. S>, 102 "YlJvams v. U. S., 130 Fed. 997, U. S. 426, 26 L. ed. 189. 990. 12 24 St. at L. 508. § 15. See V. LIABILITY TO SUIT. [§ 97 of the judgment or decree.'? 13 It lias been held that no interest can be allowed before judgment; except upon a contract which stipulates for interest. 14 The plaintiff can appeal where the ;ii n< »unt in controversy exceeds three thousand dollars, or where his claim is forfeited to the I nited States by the judg- ment of the court below 14a for fraud in connection with its presentation or proof.* 15 Before the creation of the Cir- cuit Courts of Appeal, an appeal or writ of error under this act was heard by and returnable to the Supreme Court, 16 not to the Circuit Court. 17 Since the Evarts Act, unless a question of jurisdiction, a constitutional question, or the construction of a treaty is involved, the Circuit Court of Appeals is the first court of review 7 , 18 except in cases of appeals from the Court of Claims. 19 A judgment in a suit to recover official fees, salary or compensation is ordinarily reviewable by writ of error, not by appeal. 20 A judgment in a suit to recover rent is reviewable by writ of error. 21 Such appeal or writ of error should be taken within ninety days after the judgment is rendered. 22 An appeal or writ of error may be taken, irre- spective of the amount involved, by the district attorney, at the direction of the Attorney-General, w 7 ithin six months after the judgment or decree. 23 Otherwise, the practice in all courts in suits brought under this statute is similar to that in other suits, 23 with "such additions and modifications as said courts may adopt." 24 S. v. Harmon. 147 U. S. 26S, 282, 37 L. ed. 104, ICO. 13 24 St. at L. 507, § 10. Hint. B. & S. Dock Co. v. I". S., 60 Fed. f>23, 527; U. S. R. S., § 1091. Ha 24 St. at L. 506, § 9. 15 Jud. Code, § 182, re-enact ing l. S. R. S.. § 1086-; U. S. E. S., §707; U. S. v. Davis. 131 U. S. 36. 39, 33 L. ed. 93, 94; Strong v. U. S.. 40 Fed. 183. 16 r. S. v. Davis, 131 U. S. 36. 33 L. ed 93. "Strong v. U. 9.; 40 Fed. 183. 18 U. S. v. Morgaii, C. C. A., 64 Fed. 4. 19 r. S. K. S.. § 707. 20 TJ. S. v. Harsha, 172 U. S. 567, 43 L. ed. 556; IT, S. v. Ady, C. C. A., 76 Fed. 359: U. S. v. Tinsley. C. C. A., 75 Fed. 369; U. S. v. Morgan, C. C. A,, 64 Fed. 4; U. S. v. Fletcher, C. C. A., GO Fed. 53. 21 Chase v. U. S.. 155 U. S. 489, 39 L. ed. 234. 22 24 St. at L. 506, § 9 ; U. S. R. S.. § 708. But see U. S. v. Davis, 131 U. S. 36, 39, 33 L. ed. 93, 94. 23 24 St. at F.. eh. 350. 507 ; § 10; U. S. v. Davis, 131 U. S. 36. 39, 33 L. ed. 93, 94; U. S. v. Yukers, 60 Fed. 641. 24 24 St. at L.. ch. 359, 506, § 4. § 99] INDIAN ALLOTMENT SUITS. 379 § 98. Suits against the United States for partition. The Judicial Code gives the District Courts jurisdiction "of suits in equity brought by any tenant in common or joint ten- ant for the partition of lands in cases where the United States is one of such tenants in common or joint tenants, such suits to be brought in the district in which such land is situate." The Act of .May 17, 1898, of part of which this is a reenact- ment, further provides: "That when such suit is brought by any person owning an undivided interest in land, other than the United States, against the United States alone or against the United States and any other of such owners, service shall be made on the United States by causing a copy of the bill filed to be served upon the district attorney of the district wherein the suit is brought, or by mail- ing a copy of the same by registered letter to the Attorney- General of the United States ; and the complainant in such bill shall file with the clerk of the court in which such bill is filed an affidavit of such service and of the mailing of such letter. It shall be the duty of the district attorney upon whom service of the bill is made as aforesaid to appear and defend the interests of the government, and within sixty days after service upon him as hereinabove prescribed, unless the time shall be enlarged by order of the court made in the case, to file a plea, answer or demurrer on the part of the government, and the cause shall proceed as other Cases for partition by courts of equity, and in making such partition the court shall be gov- erned by the same principles of equity that control courts of equity in partition proceedings between private persons. Whenever in such suit the court shall order a sale of the prop- erty, or any part thereof, the Attorney-General of the United States may, in his discretion, bid for the same in behalf of the United States. And if the United States shall be the pur- chaser, the amount of the purchase-money shall be paid from the treasury of the United States upon a warrant drawn by the Secretary of the Treasury on the requisition of the Attorney- General." 2 § 99. Suits by Indians for allotments of land. The Ju- dicial Code gives the District Courts of the Tinted States juris- § 98. 136 St. ;it L. 1087. § 21. 830 St. at L. 416. sub'd. twentv-fifth. 380 LIABILITY TO SLIT. [§ 100 diction "of all actions, suits, or proceedings involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty." * The Act of August 15, 1894, of which this is a reenactment, further provides: ''And the judgment or decree of any such court in favor of any claimant to an allotment of land shall have the same effect, when properly certified to the Secretary of the Interior, as if such allotment had been allowed and approved by him ; but this provision shall not apply to any lands now held by enther of the Five Civilized Tribes nor to any of the lands within the Quapaw Indian Agency; provided, that the right of appeal shall be allowed to either party as in other cases." 2 This act gives the district courts jurisdiction to decree relief to an In- dian, entitled under the law to an allotment of land, when he has been deprived of that right by the rulings of the Land De- partment. 3 The provision of the act, that the decree of the court, in favor of a claimant, shall have the same effect as an al- lotment allowed and approved by the Secretary of the Interior is a consent upon the part of the United States to be bound by such decree ; and where the suit involves simply a question of priority of right between two claimants, the United States is not a necessary party. 4 § 100. Injunctions against officers of the United States. An officer of the United States, 1 even a cabinet officer, 2 may be enjoined from an act in violation of the complainant's rights, which is not discretionary and which is beyond the scope of his authority, such as the revocation of the approval by his predecessor of the maps of a right of way over public land?; 3 or the unlawful removal of imports from his district by a collector, acting under an order of the Secretary of the Treasury ; 4 or the withholding of mail by a postmaster, under § 90. l 36 St. at L. 1087, § 24, An injunction may be granted when subd. twenty-fourth. the officer transcends the limits of 2 28 St. at L. 286, 305. his authority under a constitutional 3Hy-Yu-Tse Mil-Kin v. Smith, C. statute. Philadelphia Co. v. Stim- C. A., 119 Fed. 114. son. 223 U. S. 605, 56 L. ed. 570. 4 Ibid. 3 Noble v. Union R. L. R. Co.. 147 § 100. 1 Caldwell v. Robinson. 59 I'. S. 165, 37 L. ed. 123. Fed. 653. 660. * Bruhl Bros, k Co. v. Wilson, 2 Noble v. Union R. L. R. Co., 147 123 Fed. 457. U. S. 165, 171, 37 L. ed. 123, 125. § 100] INJUNCTIONS AGAINST FEDERAL OFFICERS. 381 an order of the Postmaster General, when the plaintiff's rights are clear. 5 But an injunction to prevent the withholding of mail will rarely be granted, in a case where the Postmaster General has made a decision against the complainant upon a. disputed question of fact or a mixed question of fact and law,, which is committed by Congress to his judgment ; 6 nor when his decision depends upon a doubtful question of law. 7 Where there has been a dispute as to the right to send publications through the mails as second-class matter, preliminary injunc- tions have been granted in return for a bond, given by the complainant, to pay the excess postage in case the controversy should ultimately be /lecided against him. 8 In such a case r where payments of postage had been made under protest, it was held that the complainant's right to recover the same was enforceable at common law and that upon a determination that it was not entitled to an injunction the bill should be dismissed without prejudice. 9 The Supreme Court took jurisdiction of a suit by a State, to enjoin the Secretary of the Interior from selling certain land upon the ground that the United States was a party and had given statutory consent to suits against it in 5 Am. School of Magnetic Heal- U. S. 106, 48 L. ed. 804; Central ing v. Mc Annuity, 187 U. S. 94, 47 Trust Co. v. Central Trust Co. of L. ed. 90; New Orleans Nat. Bank Illinois, 216 U. S. 251, 54 L. ed. v. Merchant, 18 Fed. 841; Hoover v. 469; Enterprise Saw Ann's v. Zum- McChesney, 81 Fed. 472; Fairfield stein, C. C. A., 67 Fed. 1000; Peo- Floral Co. v. Bradbury, 87 Fed. pie's United States Bank v. Gilson. 415; Davis v. Brown, 103 Fed. 909; 140 Fed. 1; holding that upon the. Kosenberger v. Harris, 136 Fed. hearing, the person affected may be 1001; Donnell Mfg. Co. v. Wyman, required to assume the burden of 156 Fed. 415; Lewis Pub. Co. v. proof and to show affirmatively that Wyman. 152 Fed. 787, where the his business is legitimate and lion- complainant had been denied a full est. Appleby v. Cluss, 160 Fed. hearing before an order, excluding 984, People's United States Bank v. his publication from second class Gilson, C. C. A.. 161 Fed. 2S6: Put- matter in the mails, was made. But nam v. Morgan, 172 Fed. 450; Bran- see S. c, 168 Fed. 752: Aff'd. C. C. anian v. Harris. 189 Fed. 40!. A., 182 Fed. 13. Lewis Pub. Co. v. 1 Smith v. Hitchcock. 226 U. S. Wyman. 168 Fed. 756; Brooklyn 53, 57 L. ed. — . Daily Fagle v. Voorhies, 181 Fed. 8 Lewis Pub. Co. v. Wyman, C. C. 579. See a note to Timmons v. U. A,. 182 Fed. 13. S., 30 C. C. A. 74. 9 Ibid. 6 Bates & Gould Co. v. Payne, 194 382 LIABILITY TO SUIT. [§ 100 respect to the subject matter; 10 but where no such statutory consent had been given, that court refused to entertain juris- diction of a similar case. 11 In the absence of the statutory consent of the United States, a suit cannot be brought to enjoin the Secretary of the Interior from executing an act of Con- gress, authorizing the sale of certain lands, the title to which is still in the government, in which the complainant claims an interest, and for an accounting of the proceeds of the same. 12 The Supreme Court has no jurisdiction of an action brought by a State against the Secretary of the Interior to establish title to lands and to prevent other disposition of the same, where, there is a disputed question of law and fact concerning the ownership thereof by the United States. 13 An Indian agent may be enjoined against interfering with rights to lands which he claims belonged to an Indian tribe. 14 ' In general, no injunction will lie against an officer of a Department interfer- ing with the discharge of his duties in the sale of public lands, so long as the title thereto remains in the United States. 15 An injunction was denied when prayed to prevent an army officer, acting under the orders of the Secretarv of War and claiming statutory authority, from constructing in a proper manner a sewer upon Government lands which would injuriously affect other land on the stream into which the sewer emptied. 16 hi a [> roper case, an injunction will lie against a marshal of the United States to prevent the enforcement of a judgmnet which is void for want of jurisdiction, when such want of jurisdiction does not appear upon the face of the writ ; 17 but in such a case, "no injunction will be granted against the United States or a 10 Minnesota v. Hitchcock, 185 V. S. 373, 46 L. ed. 954. ""Oregon v. Hitchcock, 202 U. S. (ill, 50 L. ed. 935. WNaganab v. Hitchcock, 2Q2 U. S. 473. 50 L. ed. 1 I 13. 13 state of Louisiana v. Garfield, 211 I*. S. 70. 14 Caldwell v. Robinson. 5!) Fed, rG53; Wadsworth v. I'.oysen, C. C. A., I IS Fed. 71. It has been held that an Indian agent was a proper, al- though not an indispensable party to a suit to determine rights under leases of Indian lands. Texas Co. v. Central Fuel Oil Co., C. C. A.. 104 Fed. 1. 15 Johnson v. Towsley, 13 Wall. 72. 87, 20 L. ed. 485, 45S: Marquez v. Frishie. 101 U. S. 47.']. 475. 25 L. «-d. 800, SOI : Humbird v. Avery, 195 U. S. 480, 503. 49 U ed. 280, 290. IP Sheriff v. Turner, 119 Fed. 782. 17 Kirk v. U. S., 124 Fed. 324; s. C, F'.l Fed. 331. But see Buckley v. U. S., 196 Fed. 429, 431. § 101] EJECTMENT AGAINST FEDEKAL OFFICERS. 383 clerk of one of its courts. 18 Payment of a sum of money by the United States cannot be compelled by a suit against the Comp- troller of the Treasury or other public officer. 19 An injunc- tion will not be granted against an officer or agent of the United States forbidding the infringement of a patent right in the use of Government property. 20 The only remedy of the patentee in such a case is a suit in the Court of Claims against the United States to recover reasonable compensation for the use of the patent, in accordance with the Act of -Tune 2."). 1910, 21 except when the facts show an express or implied con- tract between the parties, when a suit will lie upon the same. 22 It has been held that no injunction will lie against an indi- vidual or corporation to prevent the infringement of a patent by the use of a chute used in the collection of the mail under the regulations of the Post Office Department and that an action for damages is the only remedy, if any, of the patentee, against the owner of the building where the same is used. 23 § 101. Ejectment against officers of the United States. An action of ejectment has been sustained against government officers sued as individuals for land, such as a soldiers' ceme- tery l and a pier 2 held by them for governmental purposes in 18 Buckley v. U. S.. 196 Fed. 429. 19 Case v. Terrell., 11 Wall. 199, 20 L. ed. 134; Van Antwerp v. IIul- burd, Fed. Cas. No. 16,827 (8 BlatcM. 282). 20 Cammeyer v. Newton, 94 U. S. 225, 235. 24 L. ed. 72, 75; Belknap v. Schild, Kil U. S. 10, 17, 40 L. ed. 599, 601 ; International Postal Sup- ply Co. v. Bruce. 194 P. S. 601, 48 P. ed. 1134. affirming 114 Fed. 509; infra, § 100. Crozier v. Fried, Krupp Aktiengesell-Schaft, 224 U. S. 290, 56 L. ed. 771. 2136 St. at L. 851; Crozier v. Fried. Krupp Aktiengesell-Schaft, 224 l". S. 290. 56 L. ed. 771. See Chapter on the Court of Claims, infra. 22 U. S. v. Palmer, 128 U. S. 262, 32 L. ed. 442; The United States v. Societe Anonyme des Anciens Es- tablissements Yjail, 224 U. S. 309, 56 L. ed. 778:' § 96. supra. But see Schillinger v. U. S.. 155 U. S. 163. 39 L. ed. 108; Russell v. U. S.. 182 U. S. 516, 45 L. ed. 1210; Harley v. U. S., 198 U. S. 229, 49 L. ed. 1029: Beach v. P. S., 226 U. S. 243, 57 L. ed. — . In the last three cases, it was held that the facts did not jus- tify an inference of such a contract. So as to the use of copyright. Lau- mairs Case, 27 Ct. CI. 260. 23 Cutler v. Maryland Hotel Co., 168 Fed. 931. § 101. 1U. S. v. Lee. 106 P. S. 196. L. ed. 171 ; Stanley iv. Schvvalby, 147 U. S. 508. 37 L. ed. 259: Tindal v. Wesley, 167 P. B. 204, 42 L. ed. 137. But see Stanley v Schwalby, 162 P. S. 255, 40 L. ed. 960. 2 Scranton v. Wheeler, C. C. A., 57 Fed. 803, 807. 384: LIABILITY TO SLIT. [§ 102 the name of the United States; but the United States are not bound by any adjudication in such a suit. 3 § 102. Replevin against officers of the United States. Papers on file in a Government Department cannot be obtained by replevin. 1 Before the Tucker act, it was held that no suit would lie to compel the Treasurer and Comptroller of the United States to deliver to the complainant the surplus of bonds deposited as security for bank notes when the bank notes had been paid. 2 Since the Tucker act, it has been held that a suit thereunder will lie against the United States to recover taxes which a statute had directed the Secretary of the Treas- ury to refund, 3 but that no injunction should issue to prevent a collector from disposing of duties paid by the complainant, which the Board of General Appraisers and the court have held should be refunded. 4 § 103. Liability of a State to a suit by the United States. A State may be sued by the United States in any proper case, without consenting to the jurisdiction. 1 Such consent was given by the State when it was admitted into the Union, upon an equal footing with the other States. 2 § 104. Liability of a State to a suit by another State. The Constitution provides that "the judicial Power shall ex- tend ... to Controversies between two or more States, .... and between a State, or the Citizens thereof, and for- eign Stares, Citizens or Subjects." 1 The Eleventh Amendment has not taken away the liability of one of the United States to a suit by another such State or a foreign State. Such juris- diction, however, is confined to controversies concerning rights affecting property; not to those merely affecting political 3TJ. S. v. Lee, 306 TJ. S. 196, 223, 27 L. ed. 171. 182; Stanley v. Sehwalby. 147 I'. S. 508, 37 L. ed. 259; s. c. 162 U. S. 255; 272. 40 L. ed. !tiii>. 960; Scranton v. Wheeler, .".7 Fed. 803. 80T; Tindal v. Wesley; 167 U. S. -2H4. 22.",. 42 L. ed. 137, i i:;. § 1025 i VaU Antwerp v. Ilul- l.i! id. Fed. Cas. No. 16,827 (8 Blatchf. 282 i . See Case v. Ten-el. 1 1 Wall. 199, 20 L. ed. 134. 2 Brent v. Hagner, 5 Cranch (C. C.) 71, 6 Opinions of Attorney Gen- eral, 223. 3U. S. v. Shipley. C. C. A., 197 Fed. 265. *Joaiinidis vi Loeb, 191 Fed. 93. § 103. U'. S. v. Texas. 143 U. S. 621. 36 L. ed. 2S5: Kansas v. U. S.. 2D4 I . S. 331, 51 L. ed. 510. 2 F. S. v. Texas. 143 U. S. 621, 646, 36 L. ed. 285, 293. § 104. 1 Art. III., § 2. 104] STATE AGAINST STATE. ;o. rights. 2 It includes controversies concerning boundaries be- tween different States, even though the complainant claim no title other than that of sovereignty and jurisdiction over the lands m question. 3 For, "in this, country, where feudal ten- ures are abolished, in cases of escheat the State takes the place of the feudal l rd, by virtue of its sovereignty, as the original and ultimate proprietor of all the lands within its jurisdic- tion." If, however, in a bill which prays relief against a threatened invasion of rights purely political in tiieir nature a threatened injury to property be stated "only by wax- of showing one of the grievances resulting from the threatened destruction of the State, and in aggravation of it, not as a specific ground of relief;'' and "this matter of property is neither stated as an independent ground, nor is it noticed at all in the prayers for relief:" the bill will be dismissed. 5 A suit cannot be maintained when brought by one State against an- other to enforce the payment by the latter of its bonds original- ly held by citizens of the former State, and assigned by them to it solely for the purpose of collection. 6 But a State which own- absolutely the bonds of another State, although it has receive! them as a gift after they have been due, may sue the latter and recover a decree adjudging the amount due and directing the foreclosure and sale of shares of corporate stock owned by the defendant and mortgaged as security for the bonds. 7 A State 2 Cherokee Nation v. Georgia, 5 Pet. ],8L. ed. 25; Georgia v.°Stan- ton, 6 Wall. 50, 18 L. ed. 721; Georgia v. Grant, 6 Wall. 241. 18 L. ed. 848. 3 Rhode Island v. Massachusetts. 12 Pet. 657, 9 L. ed. 1233; Missouri v. Iowa, 7 How. 060, 12 L. ed. 861; Florida v. Georgia. 17 How. 478, 15 L. ed. 181 : Alahama v. Georgia. 23 How. 505, 16 L. ed. 556; Virginia v. West Virginia. 11 Wall. 39, 20 L. ed. 67. * Georgia v. Stanton, 6 Wall. 50. 73, 18 L. ed. 721, 724. 5 Georgia v. Stanton. 6 Wall. ."in. 77, 18 L. ed. 721. 725. 6 New Hampshire v. Louisiana. 108 U. S. 76, 27 L. ed. 656. Fed. Prac. Vol. I.— 25. 7 South Dakota v. North Caro- lina, 192 U. S. 286, 48 L. ed. 448. Pefore the day fixed for the sale, tin- defendant paid the amount of the plaintiff's claim in full, namely, $27,400. with costs. The Committee of the North Carolina bondholders subsequently offered, to the Gover- nor of South Dakota, other bonds of North Carolina, which with princi- pal and interest aggregated $150.- 000. Governor EIrod wrote, in an- swer: "Your kind offer is declined, for the reason that it seems to m,. to Im- against public policy and good conscience." On January 8th, 1907. he recommended the passage of an act returning the money received from South Carolina, saying: "Mor- 386 LIABILITY TO SUIT. [§ 104 may sue another State, and a municipal corporation of the lat- ter, for an injunction against the excessive and unreasonable discharge of sewage into a river, which poisons the water sup- ply of the inhabitants of the plaintiff and injuriously affects that portion of the bed of a river which lies within the plain- tiff's territory. 8 A State may sue another State, to prevent the latter from authorizing the diversion of the waters of a stream flowing through both States, so as to deprive the plaintiff's in- aily, we have no right to one cent of this money, and we ought to he brave enough and true enough to give it back. This money was clear- ly intended for our university. She can use it. but it is tainted money. I would send this money back to North Carolina for her university and appropriate a like sum for our splendid university. It will be no burden on our people. Tt is en- tirely plain that ingenious schem- ers are using our State for private ends. ... It is plain that de- signing individuals would continue to use the good name of the State of South Dakota to collect question- able securities of other States. . . . It is clear to me that our State ought not to become a collecting agency, neither ought it to forget the doctrine of 'comity between States.' The decision in the case of the State of South Dakota v. the State of North Carolina opens up endless opportunities for States to deal in the bonds and other obliga- tions of sister States. It is not possible to exaggerate the scandals. the corruption of Legislatures and State officials, and the possibilities of graft which would follow if States should start to trade on the power which the decision gives them. Xo State ought to be endowed with the power to speculate upon unen- forceable claims of individuals against other States. Under the Federal Constitution individuals cannot sue States on such bonds, so the holder gives or sells them to us. and we can sue the State that issued the bonds. The de- cision in the above entitled case hangs entirely on the fact that South Dakota was the bona fide owner of the bonds in question. There is no magic in the fact that she got them as a gift. She would be equally the bona fide owner if she had bought them." The Sun. January 15th, 1907. .Mr. Justice Brewer said: "I can but think her conduct far above that of the State of South Dakota, which willingly took a donation of bonds with the idea of collecting them from a sister State, in disre- gard of that generous feeling which should control all the States of t lie Union: and I do not wonder that the Governor of South Dakota, who retired from office last January, in his final message recommended that the Legislature appropriate the full amount of the money received and tender it back to North Caro- lina!'' Report, p. 171, Mohonk Con- ference. A. D. 1907. 8 Missouri v. Illinois, 180 U. S. 208, 45 L. ed. 497; s. c, 200 U S. 49C. 50 L. ed. 572: where the bill was dismissed without prejudice aft- er a trial of the issues of fact. § 105] STATE AS DEFENDANT. 387 habitants of the water, to which they were entitled ; 9 and where the navigability of the stream is not affected, the United States has no right of intervention because of its alleged duty of legislating for the reclamation of arid lands. 10 A State can- not sue another State, to enjoin the enforcement of quarantine regulations, which impose unreasonable restraint upon com- merce between ports of the two States. 11 A tribe of Indians domiciled within the borders of the United States does not con- stitute a foreign State within the meaning of the Constitu- tion. 12 § 105. Liability of States to Suits by Private Persons. Under the Constitution of the United States as originally adopted, it was provided that the judicial power of the United States should extend to controversies "between a State and Citizens of another- State." x This was held to subject a State to liability to an action by a citizen of another State. 2 The de- cision was opposed to the opinions of Marshall and others, as expressed in the conventions which ratified the Constitution, 3 and was repugnant to the feelings of the people. Consequent- ly, the Eleventh Amendment was adopted, This enacted that "the Judicial Power of the United States shall not be construed to extend to any suit, in law or equity, commenced or prose- cuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." A State cannot, without its consent, lie sued by one of its own cit- izens, even on a cause of action arising under the Constitution 9 Kansas v. Colorado. 185 U. S. flow of the river. Kansas v. Colo- 125; 46 L. ed. 838: where the bill rado, 200 V. S. 46, 117, 118, 51 L. was eventually dismissed, without ed. 956, 983. prejudice to the right of the plain- 10 Kansas v. Colorado. 206 V . K. tiff to institute new proceedings 46, 86, 51 L. ed. 956, 970. whenever it shall appear that M Louisiana v. Texas, 176 U. S. through a material increase in the 1, 44 L. ed. 347. Supra, § 3. depletion of the waters of the Ar- !2 Cherokee Nation v. Georgia, 5 kansas by Colorado, its corporations Pet. 1, 8 L. ed. 25. or citizens, the substantial interests § 105. l Art. III., § 2. of Kansas are being injured to the 2 Chisliolm v. Georgia, 2 Dall. 419, extent of destroying the equitable 1 L. ed. 440. apportionment of benefits between 3 See Elliott's Debates. In Hans the two States resulting from the v. Louisiana. 134 I'. S. 1, Bradley, 388 LIABILITY TO SUIT. [§ 105 and laws of the United States. 4 It has been suggested, but not decided, that, in a case arising under the Fourteenth Amend- ment, the inhibition of the Eleventh Amendment may not applv. 5 It has been said: "The Constitution, with its amendments, is construed as one instrument, and the Eleventh Amendment cannot be applied to nullify the power conferred on Congress to regulate commerce among the sev- eral States. It is not a barrier to judicial investigation to as- certain whether other provisions of the Constitution have been disregarded by State action." 6 A corporation chartered by Congress cannot sue a State. 7 An action at law or a suit in equity or in admiralty, against a municipal corporation, 8 or against a county, 9 or any other political subdivision of a State, 10 is not a suit against a State and a State statute cannot divest a Federal court of jurisdiction over such a suit. 11 Where a State statute authorizes suits against the State only in a State court, the District Courts of the United States have no juris- diction. 12 An action against a corporation, such as a railroad company, all the stock of which is owned by a State, is not an action against a State. 13 A State agricultural college may be sued for a tort. 14 It has been held at circuit, that a crossbill J., speaking for the court, said that Chisholm v. Georgia was erro- neously decided. 4 Hans v. Louisiana, 134 U. S. 1, 33 L. ed. 842; North Carolina v. Temple, 3 34 U. S. 22, 33 L. ed. 849. 5 Perkins v. Northern Pac. Ry. Co., 155 Fed. 445, 447: Ex parte Young. 209 U. S. 123, 150, 52 L. ed. 714. 725. 13 L.R.A.(N.S.) 932, 14 Ann. Gas, 764. 6 Illinois Cent. R. Co. v. Mis- >issi]ipi Railroad Commission, C. C. A., 13S Fed. 327, 331; per Shelby, J. See also Southern Ry. Co. v. Greensboro Ice & Coal Co., 134 Fed. 82. 7 Smith v. Reeves, 178 U. S. 436, 44 L. ed. 1140. 8 Camden Interstate Ry. Co. v. Catlettsburg, 129 Fed. 421 ; U. S. v. Tort of Portland, 147 Fed. 865. 9 Lincoln County v. Liming, 133 U. S. 529, 33 L. ed. 766. 10 Hopkins v. Clemson Agricul- tural College of South Carolina, 221 U. S. 636, 55 L. ed. 890. 11 Lincoln County v. Luning, 133 U. S. 529, 33 L. ed. 766. 12 Smith v. Reeves, 178 U. S. 436, 44 L. ed. 1140; Smith v. RacklifFe, C. C. A., 87 Fed. 964. 13 Southern Ry. Co. v. North Car- olina R. Co., 81 Fed. 595, 599, 600; Siinonton, J.: "When the State entered into this enterprise with private persons, she did not carry into it her functions of sover- eignty; but stripped herself of them." 14 Hopkins v. Clemson Agricul- tural College of South Carolina, 221 I . S. (136, 55 L. ed. 890. But a State court has held that an action § 105] STATE AS DEFENDANT. 389 mav be filed against a State, which has brought an original bill; 15 but it seems that no affirmative judgment can be ren- dered against the State in such case. 16 It has been held at cir- cuit: that after the removal of a suit brought by a State, an injunction mav be granted to stay further proceedings in the State court therein. 17 A State may waive its exemption from suit. 18 An appearance by the State attorney general, "for and on behalf of the State." under statutory authority was held to be a waiver, by the State, of its immunity from suit. 19 When the statute creating a State board makes it a body corporate, with power to sue and be sued without limitations, the State waives its immunity so far as such board is concerned. 20 A statute providing that a State officer should be made a party defendant to all actions to set aside tax sales of land held as State tax land, was held not to be a waiver, by the State, of its constitutional immunity from suit in a State court. 21 It has been held that the defense that the defendant is a State, which cannot be sued without its consent, may be raised for the first time upon an appeal. 22 Where, in the regular course of judicial administration, property of the State, or in which the State has an interest, has come under the control of the court, without being forcibly taken from the possession of the government ; the court will pro- ceed to discharge its duty in regard to the same ; and the State, if it choose to come in as plaintiff, as in prize cases, or to inter- against a State industrial school in Alabama is an action against the State. Alabama Girls' Industrial School v. Reynolds. 143 Ala. 579, 42 So. 114. 15 Port Royal & A. Ry. Co. v. South Carolina. 60 Fed. 552. See the Siren, 7 Wall. 152, 154, 19 L. ed. 129. 130. Supra, § 95. 16 Reeside v. Walker, 11 How. (U. S.), 272, 13 L. ed. 693; New York v. Dennison, cS4 N. Y. 272* 17 Abeel v. Culberson, 56 Fed. 329. See infra, §§ 268. 284, 361. 18Gunter v. Atlantic Coast Line R. R. Co., 200 U. S. 273. 50 L. ed. 477 : Interstate Const. Co. v. Re- gents of the University of Idaho, 199 Fed. 509. 19 Gunter v. Atlantic Coast Line R. R. Co., 200 U. S. 273, 50 L. ed. 477. See Cutting v. Kansas City Stock Yards Co., 183 U. S. 79. 114. 46 L. ed. 92, 110. 20 Interstate Const. Co. v. Regents of the University of Idaho, 199 Fed. 509. 21 Smith v. Reeves, 178 U. S. 436. 46 L. ed. 1140; Chandler v. Dix, 194 U. S. 590, 48 L. ed. 1129. 22 Alabama Girls' Industrial School v. Reynolds, 143 Ala. 579, 42 So. 114. 390 LIABILITY TO ST IT. [§ 105 veno in other cases where it has a lien or other claim upon the property, will be permitted so to do, subject, however, to the State's rights and will receive the same consideration as those of any other party interested in the matter, and will so far as its rights in such property are concerned be subjected in like manner to the judgment of the court. 23 ( iases have often arisen where, although a State was not a party to the record, it had rights which it claimed would be af- fected by the determination of the suit before the court. To determine accurately the jurisdiction of the Federal court in such cases has been a very difficult and delicate matter; and the questions which thus continually arise are hard to answer. The fact that a State is not named as a party to the record does not of itself remove a case from the terms of the Eleventh Amendment. 24 Whether a State is an actual party in the sense of the prohibition must be determined by a con- sideration of the nature of the case as presented by the whole l 25 record. An action at common law against a public officer who is sued as an individual and justifies under the authority of the State, is usually held to be an action against the State. 26 To make out his defense, he must show that his authority was sufficient in law to protect him. 27 It has been so held of an action of ejectment against a State officer, who held land in the name and for the uses of the State ; 28 even when the defend- ant was sued as comptroller of the State ; 29 and that after a judgment in ejectment against him, another State officer can- 23 (lark v. Barnard, 108 U. S. 43G, 27 L. ed. 780: Cunningham v. Macon & Brunswick R. Co.. 109 U. S. 44G, 452, 27 L. ed. 992. 994; citing The Si,,„. 7 Wall. 152, 157, 19 L. ed. 129; The Davis, 10 Wall. 15. 20, 19 L. ed. 875. S77. 24 Elliott v. Wiltz. 107 U. S. 711, 27 L. ed. 448; Cunningham v. Macon & Brunswick R. Co.. 109 U. S. 446. 27 L. ed. 992; Hagood v. Southern. 117 U. S. 52. 29 L. ed. 805: In re Ayrrs. 12:3 U. S. 443. 31 L. ed. 216; Fitts v. McGhee, 172 ('. S. 516, 43 L. ed. 535. 25 Poindexter v. Greenhow, 114 U. S. 270. 287, 29 L. ed. 185. 191; In re Avers. 123 U. S. 443, 492. 29 L. ed. 185, 191; Fitts v. McGhee, 172 U. S. 516, 43 L. ed. 535. 26 Cunningham v. Macon & Bruns- wick R. Co.. 109 U. S. 4411. 452. 27 L. ed. 992. 994. 27 Cunningham v. Macon & Bruns- wick *R. Co.. 109 U. S. 446, 452, 27 L. ed. 992. 994. 28Tindal v. Wesley. 167 U. S. 204. 42 L. ed. 137. 29 Saranac. L. & T. Co. v. Rob- erts, us Fed. 521. 105] STATE AS DEFENDANT. 301 not intervene and have the judgment opened upon an answer containing the same defense. 30 An action of detinue may be maintained against a State officer, to recover the possession of personal property, which he has seized under State authority. 31 A State officer may be sued in trespass for the seizure of per- sonal property in obedience to an unconstitutional statute of the State ; 32 but an action against a State treasurer, to recover taxes illegally exacted, 33 and an action against a County Dis- pensary Board to recover the price of supplies, 34 are suits against the State, and cannot be maintained. And, it has been held, that a State officer cannot be sued for damages under the Federal anti-trust law 35 for aiding the State in monopoliz- ing interstate commerce. 36 When a State officer has a well defined duty in regard to a specific matter, which is not dis- cretionary, and which does not affect the general powers or functions of the government ; but in the performance of which one or more individuals have a distinct interest capable of enforcement by judicial process, a writ of mandamus will usually issue against him ; and it is ordinarily held, that an application for such a writ is not a suit against the State : 37 but an application for a writ of mandamus, to compel a State officer to pay money out of the treasury of a State, is a suit against the State and cannot be maintained. 38 ''Courts of equity proceed upon different principles in regard to parties." 39 A suit in equity cannot be maintained, in a 30 Vance v. Wesley, 85 Fed. 357. 31 Poindexter v. Greenhow, 114 U. S. 270, 20 L. ed. 185. 82 Virginia Coupon Cases, 114 U. S. 269, 20 L. ed. 185; McGahey v. Virginia. 135 V. S. 662. 684. 34 L. ed. 304. 312: Scott v. Donald. 165 U. S. 58, 41 L. ed. 032. 33 Smith v. Reeves, 178 U. S. 430. 44 L. ed. 1140. 34 Carolina Glass Co. v. Murray. 197 Fed. 302. where the statute (25 St. at L.. South Carolina, p. 463) provided for a purchase in the name of the State and "that the State should not be liable on any contract for the purchase thereof beyond the actual assets of the dispensary for which the purchase was made." 35 26 St. at L. 209. 36 L'bwenstein v. Evans. 69 Fed. 90S. 37 Board of Liquidation of Mc- Comb, 92 U. S. 531, 23 L. ed. 1123: Cunningham v. Macon & Brunswick R. Co., 109 U. S. 440. 453. 27 1.. ed. 992, 994. See Rolston v. Missouri Fund Commissions. 120 U. S. 390, 411. 30 L. ed. 721, 728. 38 Elliott v. Wiltz. 107 V. S. 711. 27 L. ed. 448. 39 Cunningham v. Macon & Bruns- wick R. Co.. 100 U. S. 446, 456, 27 L. ed. 902, 995. 392 LIABILITY TO SUIT. [§ 105 case where the State would be an indispensable party if it were an individual similarly affected. 40 Consequently, a suit cannot be maintained against the officers of a State, to compel specific performance by them of its contract for the sale of land; 41 nor for the reformation of such a contract ; 42 nor to compel its officers to pay out of the money in its treasury, taxes which have been assessed for the purpose of paying interest upon the plaintiff's bonds, 43 or to pay out of such treasury any money in discharge of its debts ; 44 nor to establish a claim to property held by its officers claiming a title in the State thereto; al- though the relief prayed is a declaration that a sale, 45 or a deed in pursuance of a sale, 46 is void ; nor to compel a railroad company to pay to the complainant dividends declared upon shares of the corporate stock standing in the name of a State ; nor for a receiver of such stock ; nor for its sale ; 47 nor to com- pel State officers to redeem certain certificates of State indebt- edness and accept the same in payment for taxes ; 48 nor, it has been held, to compel a State officer to execute a trust vested by 40 Louisiana v. Jumel, ]07 U. S. 71], 27 L. ed. 448; Walsh v. Preston, 109 U. S. 297, 27 L. ed 940; Cun- * ningham v. Macon & Brunswick R. Co., 109 U. S. 446, 450, 27 L. ed. 992; Hagood v. Southern, 117 U. S. 52, 29 L. ed. 805 ; Rolston v. Mis- souri Fund Com'rs, 120 U. S. 390, 30 L. ed. 721 ; Christian v. Atlantic & X. C. R. Co., 133 U. S. 233, 33 L. ed. 589; Chandler v. Dix, 194 U. S. 590, 48 L. ed. 1129; Preston v. Walsh, 10 Fed. 315; Brown University v. Rhode Island College, 56 Fed. 55; Morrill v. American Reserve Bond Co., 151 Fed. 305; Sanders v. Sax- ton, 182 N. Y. 477. But see Swasey v. N. C. R. Co., 1 Hughes, 17. 41 Preston v. Walsh, 10 Fed. 315. See Walsh v. Preston, 109 U. S. 297, 27 L. ed. 940; Jobe v. Ur- quhart, OS Ark. 525, 136 S. W. 663. 42 .lobe v. Urquhart, 98 Ark. 525, 136 S. W. 663. 43 Louisiana v. Jumal, 107 U. S. 711, 27 L. ed. 448. It has been held, however, that a State treasurer may be compelled to deliver to receivers of a corporation, securities depos- ited with him, to secure perform- ance of the contracts of such com- pany. Morrill v. American Re- serve Bond Co., 151 Fed. 305. 44 Ibid. 45 Cunningham v. Macon & Bruns- wick R. Co., 109 U. S. 446, 27 L. ed. 992; (a foreclosure sale to the gov- ernor) ; Chandler v. Dix, 194 U. S. 590, 48 L. ed. 1129; (a tax sale where the auditor general was made defendant in pursuance of a State statute) . 46 Sanders v. Saxton, 182 N. Y. 477, 1 L.R.A.(N.S.) 727, 108 Am. St. Rep. 826. 47 Christian v. Atlantic & N. C. R. Co., 133 U. S. 233, 33 L. ed. 589. But see Swasey v. N. C. R, Co., 1 Hughes, 17. 48 Hagood v. Southern, 117 U. S. § 105] STATE AS DEFENDANT. 393 the statute in the State or in such officer, designated by his official title; 49 nor to abate a nuisance upon property belonging to the State, 60 nor to restrain the infringe* ment in a county court house of a patent. 51 But a State is not an indispensable party to a suit against a private individual to cancel a contract between him and that State, by which the State acquired lands of the United States through mistake or fraud. 52 It seems, that a State is not an indispensable party to a stockholder's suit, to enjoin a corporation from obeying an unconstitutional State law. 53 A suit cannot be maintained against State officers for an injunction, which will indirectly compel the specific performance of a contract by a State through the prohibition of all acts which constitute breaches of the contract. 54 It has been held, however, that the State governor and the commissioner of its land office may be enjoined from the sale and delivery of patents for land, which the State has previously granted to the complainant. 55 A State board 52, 29 L. ed. 805. But see Rolston v. Chittenden, 120 U. S. 390, 30 L. ed. 721. 49 Brown University v.. Rhode Island College, 56 Fed. 55. Contra, Morrill v. American Reserve Bond Co., 151 Fed. 305, (a suit to compel the State treasurer to deliver to re- ceivers security deposited to insure policy-holders against loss). 50 Hopkins v. Clemson Agricul- tural College of South Carolina, 221 U. S. 636, 55 L. ed. 890. 51 McCreery Engineering Co. v. Massachusetts Fan Co., 180 Fed. 115. 52 Williams v. U. S., 138 U. S. 514, 516, 34 L. ed. 1026, 1028. 53 Cotting v. Kansas City Stock Yards Co., 183 U. S. 79. 114, 46 L. ed. 92, 110; Poor v. Iowa Cent. Ry. Co.. 155 Fed. 226. 54 In Re Avers, 123 U. S. 443, 502, 31 L. ed. 216, 228: Parsons v. Slaughter. 63 Fed. 876: Smith v. Alexander. 146 Fed. 106. An in- junction was granted against the State governor and attorney general, to prevent their aiding in the viola- tion of a contract by a railroad com- pany, in which the State owned all the capital stock. Southern Ry. Co. v. North Carolina R. Co., 81 Fed. 595. A specific act, in violation of a contract, may be enjoined. Da- vis v. Gray, 16 Wall. 203, 21 L. ed. 447; Pennoyer v. McConnaughy, 140 U. S. 1, 35 L. ed. 363; University of the South v. Jetton, 155 Fed. 182. 55 Davis v. Gray, 16 Wall. 203, 21 L. ed. 447. "It is clear that in enjoining the governor of the State in the performance of one of his executive functions, the case goes to the verge of sound doctrine, if not beyond it, and that the principle should be extended no further." Miller, J., in Cunningham v. Macon & Brunswick R. Co.. 109 U. S. 446. 453, 27 L. ed. 992. 995. The orig- inal case was followed, however, in Pennoyer v. McConnaugliy. 140 U. S. 1, 35 L. ed. 363; s. c. 43 Fed. 196, 339. 39-t LIABILITY TO SLIT. [§ 105 has been enjoined from exchanging new State bonds for a class of bonds previously issued, as to which the statute did not authorize such an exchange. 56 An injunction was granted against a State treasurer forbidding him from paying, to any- one but the plaintiff the income of a fund, to which the plain- tiff had a contractual right. 57 To prevent irreparable injury, an injunction may be granted against a State officer, to prevent him from making a trespass by seizure of personal property in obedience to an unconstitutional State statute ; 58 even when acting under the orders of the. State court in a case of which the Federal court had prior jurisdiction; 59 from infringement of the copyright of an edition of the State statutes under express legislative authority ; 60 from revoking a license to transact business in the State, which has been issued to a foreign cor- poration. 61 or from annulling the franchise of a corporation, in pursuance of an unconstitutional State statute ; 62 but not, it has been held, from refusing to reissue an annual license to a foreign corporation, unless it complies with the terms of a statute which it claims is unconstitutional ; 6S from levying an illegal tax ; 64 or making an illegal assessment for taxation. 65 But where the defendant had no authority to compel the pay- ment of the tax and had, previous to the suit, performed the last act within his official functions in connection with such collection ; it was held, that the suit was one against the State and could not be maintained. 66 It has been held : that a Fed- eral court of equity has no jurisdiction to enjoin State officers, acting under a State statute, from issuing a certificate of nomin- 56 Board of Liquidation v. Mc- Ry. Co. v. Ludwig, 156 Fed. 152; Comb, 92 U. S. 531, 23 L. ed. 023. Chicago, R. I. & P. Ry. Co. v. 57 President, etc., of Yale College Swanger..l57 Fed. 783. v. Sanger, 62 Fed. 177. See Chaf- ^.Chicago, R. I. & P. Ry. Co. v. fraix v. Board of Liquidation. 11 Ludwig. 156 Fed. 152. Fed. 03S. ^ Manchester Fire Ins. Co. v. 58 scott v. Donald. 165 U. S. 107, Herriott. 01 Fed. 711, 716. 41 L. ed. 648. 64 Osborne v. Bank of U. S., 9 59 In Re Tyler, 149 U. S. 164. ::7 Wheat. 738. 6 L. ed. 204. L. ed. 689. 65 Fnion Pac. Ry. Co. v. Alexan- 60 Howell v. Miller, C. C. A.. 91 der, 113 Fed. 347. Fed. 129. But see supra, § 100. 66 Coulter v. Weir, C. C. A., 127 61 Met. Life Ins. Co. v. McNall, Fed. 897. 81 Fed. 888; Chicago. R. I. & P. 105] STATE AS DEFENDANT. 395 a'tion to a candidate for Representative in Congress, or to require a State officer to certify the nomination of a certain candidate for such office. 67 A suit may be maintained to en- join the State Attorney, 68 or any prosecuting officer, 69 or other State officer, except possibly the State governor, or State judges. or to enjoin a State board, 70 from bringing suits, whether civil or criminal, in its courts, in pursuance of a State statute, which is unconstitutional ; or from enforcing the order of a State board in pursuance of such a statute; 71 or to enjoin a State railroad commission from suing to recover penalties for the violation of an order made by it, which was void as a regula- tion of interstate commerce. 72 It has been held that a Federal 67 Anthony v. Burrow, 329 Fed. 783. 68 Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819; Cotting v. Kansas City Stock Yards Co., 383 U. S. 79, 46 L. ed. 92; Prout v. Starr, 188 U. S. 537, 47 L. ed. 584: Ex parte Young, 209 U. S. 123, 52 L. ed. 714; Hunter v. Wood, 209 U. S. 205, 52 L. ed. 747; Reagan v. Farmers' L. & T. Co., 154 U. S. 362, 38 L. ed. 1014; St. Louis & S. F. R. Co. v. Hadley, 161 Fed. 410; Western Union Tel. Co. v. Julian. 169 Fed. 166. The late decisions have over- ruled a number of cases to the con- trary. It was held in 1899: that such a suit could not be maintained in a case where the defendants were not specially charged with the exe- cution of an unconstitutional stat- ute, and were not, under the au- thority of the same, committing or about to commit some specific wrong or trespass, to the injury of the plaintiff's rights. Fitts v. Mc- Ghee, 172 U. S. 516, 529. 43 L. ed. 535, 541; Ball v. Rutland R. Co., 93 Fed. 513. 69 Herndon v. Chicago. Rock Is- land & Pad. Ry. Co.. 218 U. S; 135, 54 L. ed. 970; St. Louis ,V S. F. R. Co. v. Allen, 181 Fed. 710. 70 Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819; University of the South v. Jetton, 155 Fed. 182. ap- proved as to this, reversed upon an- other point, 208 U. S. 489, 52 L. ed. 584. Scully v. Bird, 209 U. S. 481, 52 L. ed. 899. Western Union Tel. Co. v. Andrews. 216 U. S. 165. 54 L. ed. 430; Herndon v. Chicago, Rock Island & Pac. Ry. Co., 218 U. S. 135, 54 L. ed. 970; St. Louis & S. F. R. Co. v. Hadley, 161 Fed. 419: Cen- tral of Georgia Ry. Co. v. Railroad Commission of Alabama. 161 Fed. 925; Kansas Natural Gas Co. v. Haskell, 172 Fed. 545; St. Louis & S. F. R. Co. v. Allen. 181 Fed. 710: Louisville & N. R. Co. v. Railroad Commission of Alabama. 101 Fed. 757. An individual may be enjoined from suing, to recover a penalty or damages under a State statute, which is unconstitutional. McNeil v. Southern Ry. Co., 202 U. S. 543, 50 L. ed. 1142. 71 Smyth v. Ames, 169 U. S. 466, 42 L. ed 819; Herndon v. Chicago, Rock Island & Pac. Ry. Co.. 218 C. S. 135, 54 L. ed. 970. 72 McNeill v. Southern Ry, Co., 202 U. S. 543. 50 L. ed. 1142: affirm- ing Southern Ry. Co. v. Greensboro Ice & Coal Co.. 134 Fed. 82; Cen- 396 LIABILITY TO SUIT. [§ 1 5 Harrison v. Rowan. 4 Wash. C. C. 202. 6 Brasher's Ex'rs. v. Van Cort- landt. 2 Johns. Ch. (N. Y.) 242. 'Harrison v. Rowan, 4 Wash. C. C. 202, 207. 109] SUITS AGAINST FOREIGN EXECUTORS. 401 duced by age or infirmity to a second infancy may defend by guardian." 8 Jt is said that the answer of a superannuated person, put in by guardian, may be read against him as an answer of one of full age put in in person ; and that the differ- ence in this respect between such answer and that of an infant put in by guardian is, because an infant improves and mends, and therefore is to have a day to show cause after he comes of age ; but the other grows worse, and is to have no day. 9 § 108. Suits against married women. In suits against a married woman by a third person, her husband, if not civilly dead or permanently absent from the State, should be joined with her as a co-defendant; 1 except in States where she has the same rights and liabilities as a spinster, 2 or when she is sued in a representative capacity. 3 She may, however, answer separately from her husband. 4 A bill filed in the name of a married woman suing alone, may be amended by the addition of a next friend, when necessary. 5 § 109. Foreign executors and administrators as defend- ants. Foreign executors and administrators are not subject to suit, 1 unless they have assets within the jurisdiction where the suit was filed. 2 In that case, they are liable, as trustees, to account for the same, to those entitled thereto. 3 But a Federal court has no power to require an executor or administrator to deliver a fund to an administrator appointed in another State. 4 8 Markle v. Markle, 4 J. Ch. 168. SDaniell's Ch. Pr. (2d Am. ed.) 224. 225; citing Leving v. Caverly, Prec. Cli. 229. § 108. 1 Story's Eq. PL, § 71 ; Calvert on Parties, Book IIP, ch. xxx ; Hulnie v. Tenant, 1 Brown, Ch. C. 16; Taylor v. Holmes, 14 Fed. 498. 514. 2Lorillard v. Standard Oil Co., 2 Fed. 902. But see Taylor v. Holmes, 14 Fed. 499, 514: Douglas v. Butler. 6 Fed. 228; P. S. v. Pratt Coal & Coke Co., IS Fed. 70S; OTIara v. MacGonnell, 93 P. S. 150, 23 L. ed. 840. 3 Moore v. Meynell, 2 Vein, (ill, note. 4 Duke of Chandos v. Talbot, 2 P. Wins. 372. Fed. Prac. Vol. P— 26. 5 Douglas v. Butler, 6 Fed. 228. § 109. l Vaughn v. Northrup, 15 Pet. 1, 10 L. ed. 639; Courtney v. Pradt, 196 PJ. S. 89, 49 L. ed. 398; s c, 135 Fed. 818; Lewis v. Parrish. C. C. A. Fed. 285; Skiff v. White, 127 Fed. 175; Lawrence v. Southern Pac. Co. 177 Fed. 547: Story's Eq. PL, § 179. 2 Sandilands v. Innes, 3 Sim. 303 , McNamara v. Dwyer, 7 Paige (N. Y.), 239, 32 Am. Dec. 027; Campbell v. Tousey, 7 Cow. (N. Y.) 64. 3 Lewis v. Parish. ( '. Q, -A.. 115 Fed. 285. See Columbia Law Lev., June 191 1. quoted in X. V. L. .1. June 8, 191 1. MVatkins v. Eaton, C. C. A., 183 Fed. 384. CHAPTER IV. PARTIES. § 110. General rule as to parties. In ordinary cases, all persons should be made parties to a suit in equity, who are directly interested in obtaining or resisting the relief prayed for in the bill or granted in the decree. 1 If interested in obtain- ing the relief prayed for, they should join as plaintiffs ; unless some refuse to appear in that capacity, when the rest should make them defendants. 2 This rule has been also stated by the expressions : that "all persons interested in the subject of the suit should be before the court;" 3 and that "all persons who have in the object or objects of the suit an interest or interests apparent upon the record, are necessary parties." 4 "In determining who are proper parties to a suit, courts of equity are guided by two leading principles. One of them is a principle admitted in all courts of justice in this country, upon questions affecting liberty, or life, or property; namely, that no proceeding's shall take place with respect to the rights of any one, except in his presence. Thus a decree of a court of equity binds no one who is not to be regarded, according to the rule of the court, either as a party, or else as one who claims under a party, to the suit. The second is a principle which in this country is peculiar to courts of equity ; namely, that when a decision is made, it shall provide for all the rights which differ- ent persons have in the matters decided. For a court of equity § 110. i Calvert on Parties, Book 3 Sir William Grant in Wilkina I, ch. i, and cases there cited. v. Fry, 1 Mer. 244, 202. 2Hardirig v. Handy, 11 Wheat. 4 Calvert on Parties (2d ed.), 103. 6 L. ed. 420: Wisner v. Barnet, p. 13, and cases there cited. Iron 4 Wash. C. C. 631, 642; Fallows v. Cliffs Co. v. Xegaunee Iron Co., I9V Williamson, 11 Ves. 313; Calvert on U. S. 403. 40 L. ed. S36: Clagett v. Parties, Book T. ch. viii. But see Duluth Tp., 143 Fed. 824; holding Hie Jin v. Marco. 5(j Fed. .")40. For that an injunction restraining a the rule in patent cases, see in- municipal corporation from buying fra, § 44. bonds is no defense to an action 402 § HO] PARTIES. 403 in all cases delights to do complete justice, and not by halves; 5 to put an end to litigation, and to give decrees of such a nat.ire that the performance of them may be perfectly safe to all who obey them: interest reipublicce tit sit finis Jitium. In this re- spect there is manifest distinction between the practice of a court of law and that of a court of equity. A court of law de- cides some one individual question which is brought before it ; a court of equity not merely makes a decision to that extent, but also arranges all the rights which the decision immediately affects.'' 6 Thus, when a person Avho is charged with the pay- ment of a sum of money is surety to another, the principal must be joined as defendant to the bill ; as in the case of a suit against an heir for the performance of a covenant by his an- cestor which binds him as well as the ancestor's personal estate, when the personal representative must also be joined. For "the court of equity in all cases delights to do complete justice, and not by halves : as, first to decree the heir to perforin this cove- nant, and then to put the heir upon another bill against the executor to reimburse himself out of the personal assets, which, for aught appears to the contrary, may be more than sufficient to answer the covenant ; and when the executor and heir are both brought before the court, complete justice may be done by decreeing the executor to perform this covenant as far as the personal assets will extend, the rest to be made good by the heir out of the real assets. And here appears no difficulty or incon- venience in bringing the executor before the court. On the con- trary, it would prevent a multiplicity of suits, which a court of equity ought to do." 7 The equity rules now provide: "All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs, and anv person may be made a defendant who has or claims an interest adverse to the plaintiff. Any person may at any time be made a party if his presence is necessary or proper to a complete de- termination of the cause. Persons having a united interest must be joined on the s&me side as plaintiffs or defendants, against it by a bondholder, who was 6 Calvert on Parties (2d. ed)., not a party to that suit. pp. 2. 3. 5 Knight v. Knight, 3 P. Wms. 'Lord Chancellor Talbot in 333. . Knight v. Knight. 3 P. Wms. 33], 334. 401 PARTIES WITH XO INTEREST. [§ HI but when any one refuses to join, he may for such reason be made a defendant." 8 § 111. Parties with no interest in the subject-matter of the suit. As a general rule, no person can be made a party against whom, if brought to a hearing, the plaintiff can have no decree. 1 The clerk of a conrt is not a proper party to a suit to enjoin the enforcement of a judgment entered in his office. 2 The English practice allowed strangers in certain cases to be made parties for the sake of discovery, and even in order to mulct them with costs. In a suit against a corporation, its officers, book-keeper, or members might be made parties for the sake of discovery concerning matters which had come to their knowledge while transacting the business of the corporation ; 3 but not, it seems, to obtain discovery of such as they knew only through their participation in its formation. 4 It is held in the Federal courts that when an answer under oath is waived, it is improper to make the officers of a corporation parties to a suit against it, if no relief is asked against them; and a de- murrer by them to such a bill making them parties defendant was sustained. 5 Officers of corporations, who have taken no part in an unlawful contract that it has made, are not proper parties to a suit for an injunction against its enforcement. 6 It has been held that officers of a corporation, who have committed- no acts of infringement except in their official capacity, can- not properly be made defendants to a suit to enjoin the in- 8 Eq. Rule 37. §3.11. lWych v. Meal, 3 P. Wins. 310, 313, note; Dan. Ch. Pr. ,2d Am. ed. 342.) 2 Buckley v. U. S., 196 Fed. 42!). 3\V\ch v. Meal, 3 P. Wins. 310; Anon.. 1 Vern. 117; Fenton v. Hughes, 7 Ves. 289; Glyn v. Soares, 1 Y. & C. 644; Many v. Beekman Iron Co., 9 Paige [N. Y.] 189; Doyle v. San Diego L. & Tr. Co., 43 Fed. 349; Virginia & A. Mill. Si Mfg. Co. v. Hale. 93 Ala. .->42. «) So. 256; Continental Nat. Bank v. Heihnan, 66 Fed. 184: Consoli- dated Brake-Shoe Co. v. Chicago;, P. & St. L. Ry. Co., 69 Fed. 412; Calvert on Parties (2d ed.), 92-94. But see Boston W. H. Co. v. Star R. Co., 40 Fed. 167; Cleveland F. & B. Co. v. U. S. Rolling S. Co., 41 Fed. 476. 4 McComb v. Chicago, St. L. * N,'. 0. R. Co., 7 Fed. 426. s Colonial & U. S. Mtg. Co.. Ld., v. Hutchinson Mtg. Co., 44 Fed. 219; Matthews & W. Mfg. Co. v. Trenton L. Co.. 73 Fed. 212. See Boston W. 11. Co. v. Star Rubber Co.. 40 Fed. 167. 6TJ. S. v. Standard Sanitary Mfg. Co., 191 Fed. 172. Ill] PA K TIES. 405 fringement of a patent, 7 or trademark, 8 unless the corporation is insolvent ; 9 or unless the officers took part in the formation of the corporation to continue infringements made by them- selves in their individual capacity ; 10 or under other special circumstances. 11 Where an officer of a corporation lias actively participated in a tort, 12 or the violation of a contract by the cor- poration, 13 he may be joined with the latter in an action by the party injured. Where fraud or ultm vires is charged against them, the officers, directors and attorneys, of a corporation, are proper, 14 but not indispensable parties. 15 Stockholders who 7 Loomis-Manning Filter Co. v. Manhattan Filter Co.. 117 Fed. 325; Farmers' Mfg. Co. v. Spmks Mfg. Co., 119 Fed. 504; Greene v. Buck- ley, 120 Fed. 955; National Casket Co. v. Stolts, C. C. A., 135 Fed. 534; (a suit against the agent of a joint stock association) ; Glucose Sugar Refining Co. v. St. Louis, S. & P. Co., 135 Fed. 540; Weston El. In- strument Co. v. Empire Electrical Instrument Co., C. C. A., 177 Fed. 1000. Contra, Peters v. Union Bis- cuit Co., 120 Fed. 679, 685. See Saxleliner v. Eisner, C. C. A., 147 Fed. 189; s. c, 140 Fed. 938. 8 Vassar College v. Loose-Wiles Biscuit Co., 197 Fed. 982. 9 Saxlehner v. Eisner, 140 Fed. 938. 10 Wm. G. Rogers Co. v. Interna- tional Silver Co., C. C. A., 118 Fed. 133; Simplex El. Heating Co. v. Leonard, 147 Fed. 744. 11 Westinghouse El. & Mfg. Co. v. Mutual Life Ins. Co.. 129 Fed. 213; Simplex El. Heating Co. v. Leon- ard. 147 Fed. 744; Weston EI. In- strument Co. v. Empire Electrical Instrument Co.. C. C. A., 177 Fed. 1006. 12 Saxlehner v. Eisner. 140 Fed. 938; Favorite v. Cottrill, 62 Mo. App. 119; Peck v. Cooper, 112 111. 192, 54 Am. Rep. 231 ; Cameron v. K-C Com. Co., 22 Montana 312, 56 Pac. 358. 44 L.R.A. 508, 74 Am. St. Rep. 602. It has been held that directors of a corporation cannot be held individually liable for the in- fringement of a patent by the com- pany merely because they have signed a paper agreeing to save harmless from infringement suits purchasers who had previously bought the infringing devices. Am. Bank Protection Co. v. Electric Protection Co., 181 Fed. 350. Where the officers of a corporation were joined with it as defendants to a suit for the infringement, it was held that they were not liable to account for profits realized by the corporation alone. McSherry Mfg. Co. v. Dowagiac Mfg. Co., C. C. A., 160 Fed. 948. 13 United Cigarette Mach. Co. v. Winston C. Mach. Co., C. C. A., 194 Fed. 947. 14 Ceer v. Mathieson Alkali Works. 190 U. S. 428. 436. 47 L. ed. 1122, 1126; Ervin v. Oregon Ry. & Nav. Co., 27 Fed. 625; Jones v. Mis- souri-Edison Electric Co.. C. C. A., 144 Fed. 765: United Cigarette Mach. Co. v. Winston C. Mach. Co., C. C. A.. 194 Fed. 947: Ferguson v. Wilson. L. R. 2 Ch. App. 77, 90: Clinch v. Financial Corporation, L. R. 4 Ch. App. 117. 15 Sidway v. Missouri Ld. & L. S. Co., 116 Fed. 381: Geer v. Mathie- 400 PAUTIES WITH NO INTEREST. [§ HI have not taken part in the transactions of which complaint is made are improper parties defendant to a suit for an injunc- tion: 16 not even, it has been held, in a stockholders' suit, 17 nor in the case of a corporation holding a majority of the stock of another corporation, which has taken part in an infringe- ment ; 18 but they may be joined when they have organized the corporation with a small capital for the purpose of the infringe- ment. 19 A party, with whom a corporation has contracted to make the article which is charged to be an infringement of a patent, and another, corporation, with whom he has contracted to have the same made, are properly joined as parties defend- ant to an infringement suit. 20 A party cannot be made defend- ant to a suit because he has contributed to the defense of the same. 21 Agents to sell, auctioneers, arbitrators, and attorneys, could, under the former practice, be made defendants for the purpose of discovery in any suits against their principals con- cerning transactions, with which they were connected ; M but it is now held, that this cannot usually be done where their principals are peculiarly responsible. 23 And in a few cases of fraud it has been held that persons implicated in the fraud might be made parties merely to make them liable for costs. 24 An Indian agent is a proper, although not an indispensable party, to a suit to determine rights under leases of Indian lands. 25 son Alkali Works, 190 U. S. 428, 436, 47 L. ed. 1122, 1126; Hatch v. Chicago. Rock Island & Pac. R. R. Co.. 6 Blatchf. 105. 114. 16 Westinghouse El. & Mfg. Co. v. Allis-Chalmers Co., 168 Fed. 91; Johns-Pratt Co. v. Sachs Co., C. C. A., 175 Fed. 70. 17 McCrea v. McClenahan, 114 App. Div. (X. Y.), 70. 18 Westinghouse El. & Mfg. Co. v. Allis-Chalmers Co., 168 Fed. 91. 19 Crown Cork & Seal Co. v. Brook- lyn Bottle Stopper Co., 172 Fed. 225: s. c, 190 Fed. 323. 20 Nat. Mechanical Directory Co. v. Polk, 121 Fed. 742. 21 Parsons Xon-Skid Co. v. E. J. Willis Co., 176 Fed. 176. 22 Fenton v. Hughes, 7 Yes. 288, 36 App. v. Stew- 2S9 : Dummer v. Corporation of Chippenham, 14 Yes. 252; Bowles v. Stewart, 1 Scho. & Lefr. 209: Brady v. McCorker, 1 X. Y. 214; s. c, 1 Barb. Ch. 343. 23 Seiferd v. Mulligan. Div. (X. Y.) 33: Bowles art, 1 Scho. & Lef. 209. 2*Taylour v. Rochford, 2 Ves. Sen. 281 ; Smith v. Green. 37 Fed. 424; Huggins v. King, 3 Barb. (X. Y. ) 617: Hammond v. Hudson R. I. & X. Co., 20 Barb. (X. Y.) 386; Pritchard v. Palmer. SS Hun. 412; Calvert on Parties (2d ed. ), 96. and cases cited. See Ervin v. Oregon Ky. & Xav. Co.. 27 Fed. 625. 25 Texas Co. v. Central Fuel Oil Co., C. C. A., 194 Fed. 1. § 112] UNNECESSARY PARTIES. 407 § 112. Persons who on account of their interest need not be made parties to a suit in equity. jSTo persons should be joined as parties to a suit in equity, either as co-plaintiffs or co-defendants, who are not directly interested in obtaining or resisting the relief prayed for in the bill * or who claim the property in question under inconsistent titles. 2 Thus, prior incumbrancers should not be made parties to a bill for the fore- closure of a mortgage, 3 unless it prays for a receiver, 4 or seeks to obtain a sale of the entire mortgaged property free from all liens, 5 or unless "there is substantial doubt respecting the amount of debts due prior lien creditors," in which ease "there is obvious propriety in making them parties, that the amount of the charge remaining on the land after the sale may be de- termined, and that purchasers at the sale may be advised of what they are purchasing;" 6 or unless there are other peculiar circumstances making it necessary. Xor need a mortgagor who has sold his equity of redemption. 7 or a guarantor of the mort- gage, even if he has paid interest, 8 be made a party to a fore- closure, unless relief is sought against him. 9 When, however, such relief is sought against the mortgagor or a grantee of the equity of redemption who has assumed payment of the mort- gage, all grantees who have made such an assumption should ordinarily be joined as defendants in order that their respect- ive rights may be determined. 10 Lessees are not necessarv, al- § 112. 1 Calvert v. Parties (2d ed.), 6; Mare v. Malachy, 1 M. & C. 559; Seymour v. Farmers' L. fc T. Co., C. C. A., 128 Fed. 907. 2 Calvert on Parties (2d ed.), 105; Marquis Cholmondely v. Lord Clinton, 2 Jac. & W. 138; Saumarez v. Saumarez, 4 M. & C. 331 ; Dial v. Reynolds, 96 U. S. 340, 24 L. ed. (•44; infra, § 141. 3Hagan v. Walker. 14 How. 29, 37, 14 L. ed. 312, 310: Jerome v. Mc- Carter, 94 U. S. 734, 24 L. ed. 136; Nalle v. Young, lfiO U. S. 624, 40 L. ed. 560. 4 Miltenberger v. Logansport Ry. Co., 106 U. S. 286, 306, 27 L. ed. 117, 125. 5 Hagan v. Walker, 14 How. 29. 14 L. ed. 312; Jerome v. McCarter, 94 U. S. 734, 735, 24 L. ed. 136. 137; McClure v. Adams, 76 Fed. 899. 6 Strong, J., in Jerome v. McCar ter, 94 V. S. 734. 735, 736. 24 L. ed. 136, 137. 'Kanawha Coal Co. v. Kanawha & O. C. Co., 7 Blatch. 391, 416: Grove v. Grove, 93 Fed. 865. But see Matcalm v. Smith, 6 McLean. 416. As to receivers, infra, § 113. 8 Columbia F. & Trust Co. v. Kentucky U. Ry. Co.. 60 Fed. 794. 9 Avers v. Wisawall. 112 U. S. 187. 28 L. ed. 693. 10 Skinner v. Marker, 23 Colo. 333: s. c. 48 Pac. 648. But see 408 PARTTES. [•§ 112 though they are proper parties to a suit to foreclose a nlcirtggge prior to their leases. 11 or to foreelose a vendor's lien. 12 Where part of the mortgaged premises had been sold to the sovereign power, which refused to waive its exemption from suit, and all the other parties in interest were joined; it was held. that. the court could except the land so conveyed, decree a sale of the balance and enter a deficiency judgment, if the proceeds were insufficient. 13 To a snit by the holder of bonds secured by a trust mortgage to recover damages from the trustee for his negligent administration of the trust, the mortgagor need not be made a party, but it has been held that the bill must be filed on behalf of all the bondholders and not merely on behalf of those who are joined as complainants. 14 It seems: that in a suit to set aside attachments, attaching creditors, who have no joint interest with the defendants, may be omitted if their citizenship will oust the court of jurisdiction. 15 Where the receivers of a corporation had made an absolute assignment of a cause of action to the complainant ; it was held, that neither the corporation nor its receivers were necessary parties to a bill to enforce that cause of action, although one of the re- ceivers was entitled to one-quarter of the collection. 16 The personal representatives of a deceased partner are not neces- sary parties to a bill to vacate a decree in favor of the partner- Kelly v. Ashford, 133 U. S. 610. 626, 33 L. ed. 667. 674: infra. § 120. 11 Tyler v. Hamilton. 62 Fed. 187. It has been held that tenants un- der leases by a railway company, subject to mortgages of the prop- erty, are not necessary parties to a foreclosure suit, and that their rights are therefore extinguished by the foreclosure sale (Ibid.), and that when all the property is in the hands of the receivers, neither the first mortgagee, the mortgagor, nor any lessor, is a necessary party to the foreclosure of a second rail- road mortgage covering leased lines. but not affecting the rights of the lessors. ship. 17 The United States are not necessary parties to a suit by a materialman upon a bond given to the Government for the benefit of the plaintiff and persons similarly interested. 18 So in suits for specific performance, it is a general rule that none are necessary parties hut parties to the contract, or thejr repre- sentatives, including in a proper case their heirs 20 and dev- isees; 21 unless there are other persons, such as the wife of the defendant. 22 with such an interest in the contract or the prop- erty agreed to be sold that their concurrence is necessary to the completion of the title, or that their rights would be preju- diced were a decree made in their absence, 23 In a suit to en- force a constructive trust in certificates of the stock of a cor- poration, neither the corporation nor the former owner of the stock is a necessary party. 24 In a suit by the pledgee of cor- porate bonds to protect the security from waste, seeking a re- ceivership, the appointment of a new trustee and the termina- tion of the company's business, the pledgor is a proper party. 20 !NTor need the assignor of the whole interest in a thing in ac- tion be made a party to a suit by the assignee ; 26 except in the case of a suit by the equitable assignee of a patent, 27 or 17 Perkins v. Hendryx, 149 Fed. 526. 18 Title Guaranty & Trust Co. of Scranton, Pa. v. Crane Co., 219 U. S. 24, 55 L. ed. 72. 19 Tasker v. Small, 3 M. & C. 63. 68: Calvert on Parties (2d ed.), P>ook III, ch. xvii. 20 Morgan's Heirs v. Morgan, 2 Wheals. 290, 4 L. ed. 242. 21 Woodward v. Davidson, 150 Fed. S40. 22 Buck v. Buck. 11 Paige (X. Y.), 170. 23 Jones v. Lewis. 1 Cox. Eq. 199; Evans v. Jackson. 8 Sim. 217; Cal- vert on Parties. Book III, ch. xvii. Where the contract is made by an agent in his own name he is a necessary party to a suit by his principal for specific performance. Pennsylvania & X. J. R. Co. v. Byerson. 36 X. J. Eq. 112, 116. It has been held that in such a case he can sue without joining his prin- cipal although defendant knew that he acted as an agent only. Kellev v. Tracy, 102 Mo. 522. 24 Brissell v. Knapp, 155 Fed. 809. 25 State Xat Bank v. Syndicate Co., 178 Fed. 359. 26 Harris v. Johnston, 3 Cranch, 311, 2 L. ed. 450; Boon v. Chiles. S Pet. 532. 8 L. ed. 1034: Robertson v. Carson, 19 Wall. 94. 22 L. ed. 178; s. c. Chases' Dec. 475: Bates- ville Institute v. Kaufl'man, IS Wall. 151, 21 L. ed. 775: Fulham v. McCarthy, 1 H. L. C. 703. 27 Stimpson v. Rogers, 4 Blatchf. 333: North v. K.-r-lmw. 4 Blatchf. 70: Patterson v. Stapler. 7 Fed. 210: Goodyear v. Allen. 3 Fi.-dier. 284. To a suit by the assignee of an applicant for a patent against. 410 PARTIES. [§ 112 copyright, 28 or trade-mark 29 or by the licensee, 30 or mortgagor the applicant and a corporation, to which the patent had been issued, later applicants, who were in inter- ference with the first, are not nec- essary parties, although they have :i--if;ned their applications to the same company and received stock in return. Thompson v. Automatic Fire Protection Co., 397 Fed. 750. For transactions that passed the legal title see Am. Bank Protection Co. v. City Nat. Bank 3 81 Fed. 375. 28 Colburn v. Duncombe, 9 Sim. 151: Chappell v. Purday. 4 Y. & C. 485. Calvert on Parties (2d ed.). 315. 29 A singer, who receives a roy- alty on the number of mechanical records of his song that are sold, is not a necessary party to a suit by the patentee and owner of the records for an injunction against the sale of copies made by a re- production of the same. Fonotipia Limited v. Bradley. 171 Fed. 951. 30 Krauss v. Jos. R. Peebles Sons Co.. 58 Fed. 585. Waterman v. Mackenzie, 138 TJ. S. 252. 255. 250. 260, 261, 34 L. ed. 923, 925. 926, 927. 928, per Gray, J.: "The patentee or his assigns may, by instrument in writing, assign, grant and convey either, first, the whole patent, comprising the exclu- sive right to make, use and vend the invention throughout the Unit- ed States: or. second, an undivided part or share of that exclusive right: or. third, the exclusive right under the patent within and throughout a specified part of the United States, R. S., § 4898. A transfer of either of these three kinds of interests is an assignment, properly speaking, and vests in the assignee a title in so much of the patent itself, with a right to sue infringers; in the second case, jointly with the assignor; in the first and third cases, in the name of the assignee alone. Any as- signment or transfer, short of one of these, is a mere license, giving the licensee no title in the patent, and no right to sue at law in his own name for an infringement. R. S.. § 4919: Gayler v. Wilder, 10 How. 477, 494, 495, 13 L. ed. 504, 511. 512; Moore v. Marsh, 7 Wall. 515. 19 L. ed. 37. In equity, as at law, when the transfer amounts to a license only, the title remains in the owner of the patent and suit must be brought in his name, and never in the name of the licensee alone, unless that is necessary to prevent an absolute failure of jus- tice, as where the patentee is the infringer, and cannot sue himself." Aflriance. P. & Co. v. McCormick H. M. Co., C. C. A., 56 Fed. 918; Littlefield v. Perry. 21 Wall. 205, 22 L. ed. 577. Where the owner of the patent has been enjoined in an- other jurisdiction from suing al- leged infringers of the same, the li- censee may sue alone. Hurd v. James Goold Co.. 197 Fed. 756. ''Any rights of the licensee must be enforced through or in the name of the owner of the patent, and perhaps, if necessary, to pro- tect the rights of all parties, joining the licensee with him as a plaintiff. R. S.. § 4921; Little- field v. Perry, 21 Wall. 205, 223, 22 L. ed. 577, 579; Paper Bag Cases, 105 U. S. 766-771, 26 L. ed. 959- 961; Birdsell v. Shaliol, 112 U. S. 485-487, 28 L. ed. 768, 769. And see Renard v. Levinstein, 2 Hem. & 112] UNNECESSARY PARTIES. 411 Mil. G2S. Whether a transfer of a particular right or interest under a patent is an assignment or a li- cense does not depend upon the name by which it calls itself, but upon the legal effect of its provi- sions. For instance, a grant of an exclusive right to make, use and vend two patented machines within a certain district is an assignment, and gives the grantee the right to sue in his own name for an in- fringement within the district, be- cause the right, although limited to making, using and vending two ma- chines, excludes all other persons, even the patentee, from making, using or vending like machines within the district. Wilson v. Rousseau, 4 How. 646, 686." 11 L. ed. 1143, 1159. See D. M. Sechler Carriage Co. v. Deere & Mansur Co., 113 Fed. 285. "Where, how- ever, the patentee reserved the right to use the inventions within the territory, for a specified pur- pose, and to make them therein for such use and for use outside of the territory, and the licensee agreed not to lease or sell any part of the inventions for use outside of the territory, without the patentee's consent: it was held, that the li- censee could not sue in his own name." Bowers Hydraulic Dredg- ing Co. v. Vare, 112 Fed. 63. "On the other hand, the grant of an exclusive right under the patent within a certain district, which does not include the right to make, and the right to use, and the right to sell, is not a grant of a title in the whole patent-right within the district, and is therefore only a li- cense. Such, for instance, is a grant of 'the full and exclusive right to make and vend' within a certain district, reserving to the grantor the right to make within the district to be sold outside of it. Gayler v. Wilder, above cited, ID How. 477, 13 L. ed. 504. So is a grant of 'the exclusive right to make and use,' but not to sell, patented machines within a certain district. Mitchell v. Hawley, 16 Wall. 544, 21 L. ed. 322. So is an instrument granting 'the sole right and privilege of manufacturing and selling' patented articles, and not expressly authorizing their use, be- cause, though this might carry by implication the right to use articles made under the patent by the li- censee, it certainly would not au- thorize him to use such articles made by others. Hayward v. An- drews, 106 U. S. 672, 27 L. ed. 271. See also Oliver v. Rumford Chem- ical Works, 109 U. S. 75, 27 L. ed. 8,62." It has been held: that an al- legation that a patentee assigned to complainant the exclusive right to make, use, and sell for use with- in the United States and its terri- tories and foreign possessions, "in connection with wireless telephone work and wireless telephonic com- munication only, apparatus and equipment embodying said methods and apparatus under the patents hereinabove mentioned. or any other patent or patents now or hereafter owned or controlled" by the assignor or his assignee, did not show a conveyance to the as- signee of the entire monopoly granted by the government to the patentee, but a mere license; and hence the assignee had no capacity to sue in his own name to restrain infringers. Do Forest v . Collins Wireless Telephone Co., 174 Fed. S21. A patent-right is incorporeal 412 PART IKS. [§ 13: bv a mortgage duly recorded at Washington, 31 or by an assignee under an assignment still executory, 32 or by an assignee, such as a pledgee, whose assignor has an equitable interest in the property, 33 when it is the safer practice to join, as plaintiff or defendant, the assignor, licensor, or mortgagee, as the case may be. The exclusive licensee of a patent for a specified terri- tory has the implied authority, even against the will of the owner, to join him as a co-complainant in a bill to enjoin an infringement. 34 The patentee and his exclusive licensee may property, not susceptible of actual delivery or possession; and the re- cording of a mortgage thereof in the Patent Office, in accordance with the act of Congress, is equiva- lent to a delivery of possession, and makes the title of the mort- gagee complete towards all other persons, as well as against the mortgagor. . . . The necessary conclusion appears to us to be that Sliipman. being the present owner of the whole title in the patent un- der a mortgage duly executed and recorded, was the person, and the only person, entitled to maintain such a bill as this, and that the plea, therefore, was rightly ad- judged good." An applicant for a patent cannot sue for an injunction against an infringement before the patent is issued to him. Standard Scale & Foundry Co. v. McDonald, 127 Fed. 709. 31 Waterman v. Mackenzie. 138 I . S. 252, 34 L. ed. 923. 32 Land Co. of New Mexico v. Elkins. 20 Fed. 545. 33 Hubbard v. Manhattan Trust Co., C. C. A.. 87 Fed. 51. 57: West- ern Nat. Bank v. Armstrong. 152 U; S. 340. 38 L. ed. 470: Ackerson v. Long Branch & L. Co.. 28 X. J. Eq. 542: Comptograph Co. v. Uni- versal Accountant Mach. Co., 142 Fed. 539. Contra, Walker on Pat- ents, § 400. 34 Brush-Swan El. L. Co. v. Thomson-Houston El. Co., 48 Fed. ■224: Brush El. Co. v. El. Imp. Co., 49 Fed. 73: Brush El. Co. v. Cali- fornia El. L. Co.. C. C. A., 52 Fed. 945: Excelsior W. P. Co. v. Allen. C. C. A., 104 Fed. 553; Havens v. W. R. Ostrander & Co.. 190 Fed. 199. It. was held in Van Orden v. Nashville. (57 Fed. 331. that the part owner of a patent cannot sue at law for damages caused by an infringement without joining hi.-, fellow-owners as co-plaint ill's, and that he cannot make them defend- ants when they refuse to sue. Where, in consideration of the as- signment' of applications, the as- signee agreed to prosecute the same and also proposed interference pro- ceedings between them and a patent issued to a stranger, together with an infringement suit against the latter in case patents issued: it was held that the assignor was not lia- ble to reimburse the assignee for expenses paid in such prosecution, although the issue of the patents was refused because the assignor refused so to amend his application as to cancel rejected claims. Strauss v. Dilg. 140 App. Div. ( N. Y.) 424. § 112] UNNECESSARY PARTIES. 413 join in a suit to enjoin the infringement of a patent, 35 lint tin- patentee and a licensee whose license is not exclusive cannot.. 36 Such a licensee is ordinarily not a proper party plaintiff. 37 Where the bill alleges, that the licensee has an interest in the inventions which is capable of being impaired by the infrini;r- ment, the licensee may properly be joined as a complainant. 38 A former licensee cannot join as a co-plaintiff, unless all subse- quent licensees and assignees of the license are also joined. 39 An exclusive licensee need not ordinarily be joined as com- plainant with the patentee. 40 When the patentee sues alone, he cannot recover profits which, but for the infringement, would have enured to the sole benefit of the licensee. 41 The assignee of the whole of a patent, so far as a particular territory is concerned, need not be made a party to a suit by the assignor to enjoin infringements elsewhere. 42 It has been held that an inventor, who has assigned his application, may maintain a suit in his own name to compel the issue of the patent. 43 It has been held that any party against whom an order fixing rate- is made by the Interstate Commerce Commission, may apply to the proper court for relief without joining other parties to the order, since the injury was said to be several and not joint. 44 It has been held at Circuit that a tax collector is not a proper party to a bill to set aside a conveyance made by him. 45 And, as has been said before, no persons should be joined as plain- 35 Ibid., Havens v. W. R. Ostran- der & Co., 190 Fed. 199. 36 Blair v. Lippincott Gl. Co., 52 Fed. 220. 37 Ibid. 38 Daimler Mfg. Co. v. Conklin, 145 Fed. 955. 39 Victor Talking Machine Co. v. Am. Craphophone Co., 118 Fed. 50. 40 Union S. & S. Co. v. Johnson R. R. Signal Co., 52 Fed. S67 : Gayler v. Wilder, 10 How. 477, 13 L. ed. 504. "In the case of Water- man v. MacKenzie, 138 U. S. 252, 34 L. ed. 923, 11 Supr. Ct. R. 334, the Supreme Court held that a li- censee might sue in his own name when it was necessary to prevent an absolute failure of justice. This, is the effect, I take it, of the lan- guage -of the court there used."" Knowles. I). J., in Brush Fl. Co. v. California E. L. Co., C. C. A. T 52 Fed. 945. 961. 41 Bredin v. Solmson. 145 Fed. 944. 42 Canton S. R. Co. v. Kannebcvg,. 51 Fed. 599. 600. «\V,.nde v. ITorine, 191 Fed. f.20. Contra, Smith v. Thompson. 177 Fed. 721. 44 Atlantic Coast Line R. Co. v. Interstate Commerce Commission. 194 Fed. 449. 45 West v. Duncan, 42 Fed. 430. 4U PAETIBS. [§ 112 tilfs. 46 or defendants, 47 who claim the property in question un- der inconsistent titles. For example, a mortgagee cannot main- lain a bill against the mortgagor for a foreclosure, which at the same time seeks to enjoin a claimant adverse to both mort- gagor, and mortgagee from asserting his title to the mortgaged property. 48 An interest in the question of law involved is not sufficient to make a person a necessary or even a proper party. 49 except when a bill of peace is filed. The equity rules, fol- lowing the English Orders in Chancery, also provide that "in all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court as parties to a suit concerning such demand all the persons liable thereto; but the plaintiff may proceed against one or more of the persons sever- ally liable." 50 This rule, however, only applies when the de- mand is both joint and several, not when it is merely joint; 51 and when one of two or more jointly and severally indebted is the principal debtor, to whom the others are sureties, it must, it seems, always be joined in a bill filed by the creditor to enforce a security against either of the latter. 52 Concerning the chancery order from which the rule was copied. Viee- Chancellor Shadwell said that it "applied to cases where sev- eral persons were liable in different characters, — that is, some as principals and the rest as sureties; and then it was sufficient to make one individual of each class a party; but where there was only one principal and one surety, both of them must be made parties.*' 53 46 Marquis Cholmondeley v. Lord Clinton. 2 Jac. & W. 1, at p. 135. Saumarez v. Saumarez, 4 M. & C. 331, 336. See Parsons v. Lyman. 4 Blatchf. C. C. 432: infra. § 141. 47 Dial v. Reynolds. 0(> U. S. 340. 24 L. ed. G44: infra, § 141. 48 Ibid. But see Hefner v. North- western Life Ins. Co.. 123 U. S. 747, 31 L. ed. 309. 49 Valette v. Whitewater Valley Canal Co.. 4 McLean. 102. 50 Eq. Rule 42: copied from Rule 51, of 1842. which was copied from the 32d Order in Chancery of An gust, 1841. David v. McRae, 183 Fed. 812. 51 Pierson v. Robinson, 3 Swanst. 139. n. 52 Robertson v. Carson. 19 Wall. 94. 22 L. ed. 178: Wilson v. City Bank. 3 Sumn. 423: Allen v. Houl- den. ti Reav. 148: Pinkus v. Peters, 5 Beav. 253. 53 Lloyd v. Smith, 13 Sim. 457, 458. 459. 113] PERSONS REPRESENTED. 415 § 113. Cases where the law has furnished a representa- tive. On account of the inconvenience which would be caused if the general rule were enforced in all cases, there are several classes of exceptions to it. 1 The first of these exists when the law has furnished a representative of the inter- est in question. In such a case, those whom he represents are not usually necessary parties to the suit. 2 The equity rules now provide: "Every action shall be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute, may sue in his own name without joining with him the party for whose benefit the action is brought." 3 Thus, until they have distributed the deced- ent's estate, 4 executors and administrators are deemed suffi- ciently to represent all legatees, creditors, and next of kin in suits brought by or against them in their representative ca- pacitv, 5 except when they are made defendants to a suit by a residuary legatee for his share of the estate, 6 or when the rights of the legatees or next of kin between one another are in ques- tion. 7 or in a suit to obtain a construction of the will ; or where they are sued for collusion with a legatee who should then be made a party. 9 or, perhaps, when an executor or adminis- trator is charged with a breach of trust and an accounting is required; but the executors do not represent the heirs at law § 133. l Wallworth v. Holt, 4 M. & C. 619; Powell v. Wright, 7 Beav. 4-10. 2 Calvert on Parties (2d ed.), 22. See Hopkins v. Page, 2 Brock. 20, 42. 3Eq. Rule, 37. 4 Carey v. Roosevelt, 81 Fed. 608. 5 Brown v. Dowthwaite, 1 Madd. 448; Potter v. Gardner, 12 Wheat. 499, 6 L. ed. 706; Burton v. Smith, 4 Wash. C. C. 522; Dandridge v. Washington's Ex'rs, 2 Pet. 370, 377, 7 L. ed. 454, 457; Wainwright v. Waterman, 1 Ves. Jr. 313; Anon., 12 Mod. 522; Glover v. Patten, 165 t. S. 394, 41 L. ed. 760. 6 Atwood v. Hawkins, Rep. temp. Finch, 113; Faithful v. Hunt, 3 Anst. 751; Calvert on Parties (2d ed.), 20G, 20S. But see tVTcArthur v. Scott, 113 U, S. 340, 345, 28 L. ed. 1015; Martin v. Fort, 83 Fed- 19. Hardenhergh, 94 Fed. v. Smith, C. C. A. r 7 Kendall v 911; Stevens 126 Fed. 700. 8 Stevens v. Fed. 706. Cf Fed. 417. 9 Attorney-General Mos. 126. Smith, C. C. A., 120 Toms v. Owen. 52: Wvnne, 4:16 I'AHTIES. [§ 113 in a suit affecting the real estate, 10 and the devisees were held to be indispensable parties to a suit to foreclose a mortgage made bv an executor. 11 It has been held that where a suit is brought to determine the ownership of a fund in the hands of the trustee of an intestate, an administrator of the decedent's estate must first be appointed, and it is error to decree that the fund be paid "to such person as may hereafter be appointed ad- ministrator," 12 So a bankrupt or insolvent debtor 13 and his creditors 14 are not usually necessary parties to a suit brought by or against his trustee or assignee. An assignment by the owners of a number of claims against the same party, to an attorney, under an agreement that he shall receive for his serv- ices a certain percentage of the amount collected, will support an action by the assignee in his own name where there is no agreement that he shall pay the costs of the litigation. 15 A stockholders' agent, elected at a meeting of shareholders in pur- suance of statute, may after he has qualified sue on their be- balf directors to recover money by malfeasance or misfeasance upon the part of the latter. 16 It has been held improper for a creditor of an estate to join with its receiver in a suit concern- ing it. 17 A corporation need not be, although it usually is, joined as a co-defendant to a suit against its receiver to fore- close a lien upon its property where no personal relief is sought against it. 18 It has been held that the Comptroller of the Cureney and the Treasurer of the Tinted States are not neces- sary parties to a suit to recover from the receiver of a national bank, appointed by the Comptroller, the amount of an assess- ment erroneously made by the Comptroller, paid by the com- plainant to the receiver, and paid by him into the Treasury. 19 10 Wooslin v. Cooper (N. J. Ch . Calvert on Parties (2d ed.), 24. 1897), 36 Atl. 281. See § 11'). 14 Spragg v. Binkes, 5 Ves. 587. infra. Hut see Alger v. Anderson, 15 Northwestern S. S. Co. v. Ccfcli- 78 Fed. 729, 733. ran, C. C. A., 191 Fed. 146. 11 Detweilter v. tfoldferbaum, 42 16 McKinnon v. Morse, 177 Fed. Fed. 337. 576. 12 Road v. Bennett (X. J. Errors 17 Dogpett v. Railroad Co.. 99 V. & Vppeals, 1S97). 37 Atl. 75; infra, S. 72, 25 L. ed. 301. S 126. 18 Central Trust Co. v. Chicago, 13 Do Wolf v. Johnson. 10 Wheat. K. & T. Ry. Co.. 54 Fed. 598. 367, 384, 6 L. ed. 343, 347: Van 19 t'.iown v. Tillinghast, 84 Fed. Reimsdyk v. Kane. 1 Gall. 371; 17. § 113] PERSONS REPRESENTED. 417 It has been held that a receiver appointed upon a creditor's bill should not be made a defendant to an ancillary foreclosure suit; that a receiver of a corporation is a necessary party to a suit to enforce a corporate right of action ; 21 that a re- ceiver of a bank is a proper, but not a necessary, party to a suit in equity instituted before his appointment to recover from the bank money obtained by it through fraud; 22 that a receiver is an improper party to an action at law for a tort committed before his appointment, 23 but that he is a necessary party to such an action when he holds a policy insuring the corporation from loss by the tort and the plaintiff has joined the insurer with the receiver's corporation as a co-defendant; 24 and that he and the corporation may be joined as defendants to a bill to enjoin infringements of a patent and for an accounting of the profits made by infringements before and after his appoint- ment ; 5 that the creditors of an insolvent bank are necessary parties to a suit by a stockholder against the bank and its re- ceiver to have his certificate cancelled; 26 and that after the dis- charge of a receiver and the transfer of the property to a corporation, which as part consideration for the purchase, agreed to pay all valid claims against the receiver, the pur- chaser is the only proper defendant to a suit to collect such a claim. 27 It has been held : that the treasurer of a corporation may sue his predecessor in office for an accounting of the cor- porate funds, without joining the corporation. 28 Ordinarily, a corporation represents the stockholders thereof in all liti- gation affecting corporate rights; 29 and when a statute imposes 20 Continental Tr. Co. v. Toledo, St. L. & K. C. R. Co., 82 Fed. 042. 21 Porter v. Sabin, 149 U. S. 473, 37 L. ed. 815. But see Palestine W. & P. Co. v. City of Palestine, 91 Tex. 540, 40 L.R.A. 203: s. c, 44 S. \V. 814: s. c. 40 L.R.A. 203. 22 Dfenton v. Baker, C. C. A., 79 Fed. 189: Speekart v. German Nat. Bank. 85 Fed. 12. 23 Northern Pac. R. Co. v. Heflin, C. C. A.. S3 Fed. 93. 24 Moore v. Los Angeles 1. & S. Co., 89 Fed. 73. But see Palestine W. & P. Co. v. City of Palestine, 91 Fed. Prac. Vol. L- 27. Tex. 540. 44 S. W. 814: s. c, 40 L.R.A. 203. 25 Union S. & S. Co. v. Philadel- phia & R. R. Co., 69 Fed. 833. 26 Dunn v. State Board. 59 Minn. 221, 61 N. W. 27. 27 Thompson v. Northern Pae. Ry. Co., 93 Fed. 384. 28 Hunter v. Robbins. 117 Fed. 920. 29 It has been held that a corpo- ration is so far a representative of its stockholders that none of them need be joined in a suit for an ac- counting, under a lease which pro- 418 PARTIES. [§ 113 a tax upon shares of its capital stock and directs it to pay the same, it may sue to test the validity thereof: 30 hut where a question arises affecting the respective rights of different classes of stockholders, the members of each class or represen- tatives thereof, as well as the corporation, must be joined in the suit. 31 In a suit against a corporation to enforce specific performance of a contract made by it in behalf of subsidiary companies, which it controlled through ownership of their stock, it was held that such subsidiary companies were not in- dispensable, nor even necessary, parties. 32 It has been held that a State statute authorizing one or more officers of an un- incorporated association to represent the others in the courts, when suing or beino- sued about a matter concerning their common interest, will be followed by a Federal court of equity, and the members conclusively presumed to have the same citi- zenship as such officers. 33 In suits by or against strangers affecting the partnership property, surviving partners need not have joined with them the personal representatives of their deceased associate. 34 and firm creditors may proceed directly against the personal representative of a deceased partner with- out asking for judgment against the firm or the surviving part- ners, although the surviving partners must be made parties, since thev are interested in taking the account. 35 It has been held that a city and county sufficiently represents gas con- sumers within their territory as to justify, in a suit in Avhich the former are made parties defendant, an injunction against the vides for the payment of dividends directly to its stockholders, Pacific R. of Mo. v. Atlantic & P. R. Co., 20 Fed. 277. See Witherbee v. Bowles. 201 N. Y. 427, 435; Wcid- enfeld v. Northern Pac. R. Co., C. C. A.. 12!) Fed. 305, 311. 30Cuinmings v. Nat. Bank, 101 U. S. 153. 157, 25 L. ed. 903; San Francisco Nat. Bank /. Dodge, 197 U. S. 70. 75, 113, 49 L. ed. 669: Charleston Nat. Bank v. Melton, 171 Fed. 743. 31 Baltimore, C. & A. Ry. Co. v. Godeffroy, C. C. A., 182 Fed. 525; Carpenter v. Knollwood Cemetery, 198 Fed. 297. But see Witherbee v. Bowles. 201 N. Y. 427. 32 Texas Co. v. Central Fuel Oil Co.. C. C. A.. 194 Fed. 1. 33 Fargo v. Louisville, N. A. k C. Ry. Co.. 6 Fed. 787; Whitman v. Hubbell, 30 Fed. SI; Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566, 19 L. ed. 1029. But see Chapman v. Barney, 129 U. S. 677, 32 L. ed. 800, and supra, § 46. 34 Pagan v. Sparks, 2 Wash. C. C. 325. 35 f. S. v. Hughes, 161 Fed. 1021, 1023; Story on -Partnership," § 362. § 113] PERSONS REPRESENTED. 4:19 latter, although not formally joined. 36 The United States may, without joining- the allottee Indians, sue to set aside their conveyances of lands within the statutory period of restriction, 37 and may sue upon the official bond of the clerk of a Federal court to recover deposits made by litigants as security for costs without joining any of the persons entitled to share in the fund. 38 The English rule was that "a court of equity in many cases considers the tenant in tail as having the whole estate vested in him. at least for the purposes of suit; and for these purposes does not look beyond, the estate tail in a suit aiming by the decree to bind the right to the land. 1 ' 39 "Those in re- mainder were considered as cyphers." 40 "It appears that this rule was originally founded upon analogy to common law. As a tenant in tail might bar subsequent remaindermen, — in fact, might at any moment make himself master of the entire estate, — it was considered by the court that he might be assumed to offer a satisfactory defense for all those subsequent interests. The court has, however, gone one step farther, and has treated infants as sufficient representatives of the inherit- ance, although they are unable, by reason of infancy, to bar re- maindermen. In truth the court has gone to the full extent which is requisite for convenience in practice." 41 It has been held that a tenant for life and the contingent remainderman in fee may represent the inheritance in a bill for specific per- formance, if the children of the remainderman will inherit if he does not. 42 But the court refused to decide whether a will conveyed a fee or a life estate, when the parties were not in existence who would take the remainder if the estate were for life only. 43 Lord El'don said that in most cases respecting trust property the beneficiaries of the trust were necessary parties. 44 The expression naturally suggests the inquiry. In what cases are they not to be made parties '( There are some 36 San Francisco Gas & El. Co. v. 40 Lord Camden in Reynoldson v. City and County of San Francisco, Perkins, Ambler, 564. 164 Fed. 884, 887. « Calvert on Parties (2d e.1.1. 56. 37 Heckman v. U. S., 224 U. S. « Sohier v. Williams. 1 Curt. 470. 413, 36 L. ed. 820. « Talor v. Fisk, 04 Fed. 242. 38 ('. S. v. Abeel, C. C. A., 174 44 Adams v. St. Leger, 1 B. & B. Fed. 12. 182. 39 Lord Eldon in Lloyd v. Johnes, Ves. 65. 4 I'll PARTIES. [§ 11 cases in which the existence or enjoyment of property is affected by the prayer of the suit. There are others in which the existence of the property is not affected, and the only object is to transfer if into the hands of the trustees. 45 In the latter cases the beneticiaries of the trust need not. 46 although it seems they may be made parties. 47 In the former, when not too numer- ous, their presence was always required, before the equity rules. 48 The former equity rules, following- an English Chan- cery order. 49 provided that: "In all suits concerning real estate which is vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons beneficially interested in the estate, or the proceeds, or the rents and profits, in the same manner and tn the same extent as the executors or administrators in suits concerning personal estate represent the persons bene- ficially interested in such personal estate ; and in such cases it shall not be necessary to make the persons beneficially in- terested in such real estate, or rents and profits, parties to the suit, but the court may, upon consideration of the matter on the hearing, if it shall so think fit, order such persons to be made parties." 50 ''ft seems doubtful, however,"' says Daniell of the English order, "whether this order will apply to cases where a mortgagee seeks to foreclose the equity of redemption of estates which are subjects to such trusts."' 51 Trustees under a railroad mortgage, 52 or under anv other trust-deed of a 45Calvert on Parties (2d ed.), ver v. Piatt. 3 How. 333, 11 L. ed. 277. 622: s. c.. 2 MeLoan. 268; Cross v. 46 Franco v. Franco, 3 Yes. 70; De Valle. J Wall. 5. 17 L. ed. 515. Carey v. Brown, 02 U. S. 171. 23 See Pollitz v. Wabash R. R., Bis- L. ed. 469; Calvert on Parties (2d chulT. J.. X. Y. Sup. Ct. Sp. Tm., ed.), 277. 278. X. V. L. .T. Sept. 10. 1912. 47Harrison v. Rowan, 4 Wash. C. 49 30th Order of August, 1841. C. 202: McCaniphell v. Brown. 48 50 |> u le 40. of 1842. Fed. 795; Hayes v. Pratt. 147 t". S. 51 BariieH'e Ch. Pr. 1 2d Am. ed.) 557, 37 L. ed, 270: In re E. T. Ken- 304. See also Whilton v. Jones. 2 11. v Co.. 13(5 Fed. 451. Contra; Con- Y. & C. 244: Cross v. De Yalle, 1 solidated Water Co. v. City of San Wall. 5, 17 L. ed. 535, Diego, 02 Fed. 750: Perkins v. 52 Shaw v. Railroad Co.. 100 U. ETendryx, 140 Fed. 520. S. 005. 011. 25 L. ed. 757, 758; 48 Whistler v. Webb, Bunb. 53; Beals v. Illinois. Mo; & T. R. Co., Greene v. Sisson, 2 Curt. 171; Oli- 133 U. S. 290. 33 L. ed. 008: Elwell 113] PERS< >NS REPRESENTED. 421 similar nature securing the rights in real property of a large number of beneficiaries. 53 are held, in all proceedings affeet- ing the property which they thus hold, adequately to represent the latter, who will he bound, in the absence of fraud, by notice given to, or a decree entered against trustees^ although the I'wurt may in its discretion make any of such beneficiaries a party to the suit at his application 54 but he cannot maintain an action at law upon the bonds, and they are not merged in a deficiency judgment taken bv him in a foreclosure suit. 55 A bondholder cannot sue to foreclose where there is a trustee under his mortgage in existence without making the trustee a de- fendant and alleging the hitter's refusal to sue, or at least his unwillingness to sue, and such a state of facts as to make the request an idle ceremony. 56 Even where the mortgage can only be foreclosed at the request of a majority of the bondholders, the trustee need not join with him in the suit any of those who have made the request. 57 In such a case, the trustee is bound to recognize the rights of the holders of all bonds that are prima facie valid and to act on their request to foreclose when made by the requisite number. 58 A provision requiring the request of the holder of one-fourth of the bonds before a fore- closure Avas held not to prevent a foreclosure at the suit of holders of a smaller number, when more than three-fourths were v. Fosdick, 134 U. S. 500, 33 L. ed. 998; Leavenworth County Conrrs v. Chicago, R. I. & P. Ry. Co., 134 U. S. (588, 33 L. ed. 1064: Allen-West Commission Co. v. Brasliear. 17G Fed. 119. 53 Van Vechten v. Terry, 2 Johns. Ch. (N. Y.) 197; Kerrison v. Stew- art, 93 U. S.- 155, 23 L. ed. S43 ; McKee v. Lamon, 159 U. S. 317, 40 L. ed. 165; Dalton v. llazelet, C. ('. A.. 182 Fed. 5(51; Carpenter v. Knollwood Cemetery, 198 Fed. -297. The power of a trustee to sue to protect the trust estate, by the foreclosure of a mortgage or other- wise, cannot be restricted by agree- ment of the parties. N. Y. Tr. Co. v. Michigan Traction Co.. 193 Fed. 175. 54 Williams v. Morgan. HI U. S. G84, 28 L. ed. 559; Thomas v. Brownville, F. K. & P. R. Co.. 109 U. S. 522. 27 L. ed. 1018: infra, § 258. 55 Mackay v. Randolph Macon Coal Co., C. C. A., 178 Fed. Ssi. 56 Consol. Water Co. v. San Diego, 89 Fed. 272. It was held that a bondholder cannot be joined as a co-plaintiff with the trustee. Con- sol. Water Co. v. San Diego. 92 Fed. 759. 57 Grand Tr. Ry. Co. v. Central Yt. Ry. Co.. SS Fed. G22. See X. Y. S. & Tr. Co. v. Lincoln St. Ry. Co., 74 Fed. 07. 58 Central Tr. Co. v. Cincinnati, II. & D. Ry. Co.. 109 Fed. 40(1. £22 PARTIES. [§ 113 held by a party wlio had caused the default by misappropri- ating the earnings of the railroad. 59 The power of the trustee to sue to preserve the trust estate cannot be abridged or restrict- ed, eyen by agreement of the parties. 60 In a foreclosure suit brought by holders of a minority of bonds, where there is a claim that the consent of the holders of a majority is required, it is proper to join the majority as defendants. 61 The fact that the trustee represents conflicting interests does not incapacitate him from bringing a suit to protect the trust estate. 62 although that might make it proper for the bondholders or for bene- tieiaries to be joined as parties to the suit. 63 In certain cases committees of bondholders have been made parties to railroad foreclosures. 64 Under a railroad lease by which the les-ee cove- nanted to pay to a bank selected by the lessor a sum sufficient to pay the interest upon the lessor's mortgage bonds and taxes, it was held that the bondholders might present their claim directly against the receivers, of the lessee without the joinder of the receiver of the lessor who had been appointed by a State court. 65 It was held that a trustee appointed by a rail- way company to hold mortgage bonds, pledged as security for negotiable notes of the corporation, was the agent of the latter only and not of the note holders^ and did not represent them in a suit affecting the validity of the notes. 66 It has been held that to a bill against the heirs of a trustee to quiet the title to property conveyed by the trustee to the complainant, the beneficiary of the trust need not be joined as a party; 67 but that, the beneficiaries must be made parties to a bill by a 59Linder v. Hartwell R. Co., 73 62 Central Tr. Co. v. Cincinnati, Fed. 320. See Hubbard v. Calves- II. & D. Ry. Co., 169 Fed. 466. ton, II. & S. A. Ry. Co., C. C. A., 63 Farmers' L. & H. Co. v. Xorth- 200 Fed. 504, 309. ern Pac. R. Co.. 66 Fed. 169. 60 X. Y. Tr. Co. v. Michigan Trac- 64 Fanners' L. & Tr. Co. v. Cap.' tion Co., 193 Fed. 173, 180; citing Fear & Y. V. Ry. Co., 71 Fed. 38 old Colony Tr. Co. v. City of Wichi- (by intervention), ta. 123 Fed. 762; Guaranty Tr. Co. 65 Mercantile Tr. Co. v. Baltimore .. i „ Cove Springs Co.. 139 U. & O. R. Co.. 94 Fed. 722. S. 137, 11 Sup. Ct. 512. 35 L. ed. 66 Central Tr. Co. v. Cincinnati, 116. H. & 1). Ry. Co.. 169 Fed. 466. BiToler v. Fast Tenn. & C. Ry. 67Grid1ey v. Wynant, 23 How. Co.. 67 Fed. 168. 500, 16 L. ed. 411. § 114] class suits. 423 stranger to set aside the deed of trust for fraud, 63 and to a suit by one of several stockholders to set aside an agreement to pool their stock bv depositing the same with trustees the other stockholders, as well as the trustees, are necessary parties. 6 * 9 § 114. Class suits. When a number of persons have a common interest in a thing- which is the subject of litigation, and, in some instances, when a number of persons have a common interest in a question which is before the court for decision, one or more may sue or be sued in behalf of the rest. Judge Story divides the first of these divisions into two : "(1) When the question is one of a common and general in- terest, and one or more sue or defend for the benefit of the whole;" and (2) when the parties form a voluntary association for public or private purposes, and those who sue or defend may fairly be presumed to represent the rights and interests of the whole." 1 But there seems to be no reason for treating the two classes separately. They are called "class suits/.' "creditors' suits/' or "stockholders' suits," as the case may be. 2 "When the question is one of common or general interest to many persons constituting a class so numerous as to make it im- practicable to bring them all before the court, one or more may sue or defend for the whole." 3 When one or more thus tile a bill on behalf of themselves and others similarly interested, they should state in the title of their bill that they so sue. and show that the others are numerous or unknown. 4 Any others of the class have the right to join with them in the suit at any time before its settlement or termination upon payment of their share of the costs, 5 and counsel fees 6 which have been then paid or incurred, provided they do not seek to act in hostility to 68 Collin Tdfg. Co. v. Ferguson & 5 Ogilvie v. Knox Tns. Co.. 2 JTutter's Trustee, 54 Fed. 721. Con- Black. 530. 17 L. ed. 340: s. c. 22 tra, Vetterlein v. Barnes, 124 U. S. How. 380. 16 L. ed. 340: Ex parte ]69, 31 L. ed. 400. Jordan. 04 U. Si 248. 24 L. ed. 123: 69 Ryan v. Seaboard R. Co.. 89 Hallett v. Ballet*, 2 Paige i X. Y.)', Fed - 39 ?- 15: Leigh v. Thomas. 2 Yes. Sen. § 114. 1 Story's Eq. PI. § 07. 313: Ransom v. Davis. 18 How. 205. 2 Seminole Securities Co. v. South- 15 L. ed. 38,8: Story's Eq. PL. § 99. ern Life Ins. Co.. 1S2 Fed. 85. 9G. 6 Centra;] R. Co. v. Pettus. 113 U. 3Fq. Rule 38. S. 110. 28 L. ed. 015: Trustees v. * Hoe v. Wilson, 9 Wall. 501. 19 Oreenough, 105 U. S. 527. 26 L. ed. L. ed. 762. 1157. 424 PARTIES. [§ H-i the origina] complainants, 7 in which case the court may in its discretion allow them to intervene. 8 If their joinder as plain- tiffs would oust the court of jurisdiction, they may be brought in as defendants. 9 Such a bill may be filed even when a ma- jority of those interested object to the suit. 10 ''For where a matter is nccessarilv injurious to the common right, the ma- jovity of the persons interested can neither excuse the wrong nor deprive all other parties of their remedy by suit." 11 To such a bill it is not necessary to make defendants all who ob- ject to its being filed, provided that enough are brought before the court to sufficiently represent their interest. 12 It was originally held that no one could sue on .behalf of others who claimed for himself an interest in the matter in controversy distinct from that <5f those whom he sought to represent; for example, a mortgagee was not allowed to sue in behalf of general creditors while enforcing his mortgage, 13 but recent authorities seem to have changed this doctrine. 14 All on whose behalf one sues must appear to have an interest in the relief prayed for by him. 15 In such a suit, the bill may be dismissed at any time before decree by the consent of those who are then joined as plaintiffs, 16 but not afterwards, since by the decree a right becomes vested in the others. 17 The court will nearly vr> always allow a bill filed by an individual in his own right to 7 Forbes v. Memphis. El Paso & Pacific R. Co., 2 Woods, 323. 8 Galveston R. Co. v. Cowdrey, 11 Wall. 450, 478, 20 L. ed. 205. 9 Brown v. Pacific Mail S. S. Co., 5 Blatchf. C. C. 525. 535. But see Stewart v. Dunham, 115 U. S. 61. 29 L. ed. 329. 10 Bromley v. Smith, 1 Simons. S: Taylpr v. Salmon, 4 Myl. & Cr. 134: Story's Eq. PI., § 114. But see. Jones v. Garcia del Rio. 1 Turn. 6 Russ. 300. 11 Bromley v. Smith. 1 Simons, 8, 11. 12 Clinch v. Financial Corpora- tion. L. P. < Ch. App. 117. at p. 122: Story's Eq. PI.. $135b. 13 Burney v. Morgan, 1 Sim. & S. 358. 362: Palmer v. Foote, 7 Paige (N: Y.) 437: White v. Hillacre, 3 Y. & C. 597. 14 Galveston R. Co. v. Cowdrey, 11 Wall. 459, 20 L. ed. 199; Mason v. Bogg. 2 Myl. & Cr. 443; Story's Eq. Pl..'§ 101. and cases there cited. 15 Newton v. Earl of Egmont. 4 Simons. 574, 585; Jones v. Garcia del Pio. 1 T. & P. -2U7. 16 Handford v. Storie. 2 Sim. & S. 196: HuBbell v. Warren. 8 Allen (Mass. i. 173; llirshfeld v. Fitzger aid. 157 X. V. 166, 46 L.R.A. 839: § 361. infra. 17 Handford v. Storie, 2 Sim. & S. 196; York v. White. 10 Jurist, 168: times v. Lansing, 7 Paige (X. Y., 583. 114] CI.ASs SUITS. 425 be amended, so as to allow him to sue on behalf of himself and other members of a class. 18 The ordinary cases of bills tiled by one person of a class on behalf of others similarly situated are bills by stockholders of corporations; 19 by mem- bers of nninrouoratcd associations; 20 by railroad bondhold- ers, 21 of whom one holding bonds secured by successive mort- gages may. after the death of all the trustees, sue for a fore- closure on behalf of himself and the holders of each class of the bonds which he owns; 22 and bills by creditors. 23 It was held that such a suit could not be filed by a stockholder of an insolvent railroad company, to compel the issue to him of stock, which he claimed under a reorganization agreement, when he alleged: "Your orator does not know how many others are similarly situated; but he avers, upon information and belief, that there are many other stockholders of the Georgia Pacific Railway similarly situated, and that their stock amounts to at least $500, 000. " 24 Tn a case where a rail- road mortgaged its property directlv, without the intervention of a trustee, to fifteen bondholders, naming them, and the adequacy of the security was doubtful, it was held that one could not sue on behalf of the rest, but that all the bondholders must be joined as parties to the bill. 25 Where there were one hundred and twenty bonds of $500 each, secured by a mortgage to a trustee, and all the bonds were held by three persons, it was held that all the bondholders were indispensable parties to a bondholder's foreclosure suit, although the plaintiff's bond- 18 Jolm.son v. Compton, 4 Simons, 47; Lloyd v. Loarfrig, Ves. 773; Darnell's Ch. Pr. (5th Am. ed.) 236, note (5. and 245. and cases cited. 19 Bacon v. Robertson. 18 How. 480. 15 L. ed. 409; Seminole Securi- ties Co. v. Southern Life Ins. Co, 182 Fed. 85. 80: Walhvorth v. Holt. 4 jlyi: & Cr. 619; Taylor v. Salmon, 4 Myl. & Cr. 334; Hichens v. ( on- gieve', 4 Russell, 562; Cray v. Chap- lin. 2 Sim. & S. 267 ; Crease v. Bab- ceck, lit Met. (Mass.) 5>2; Xul.le v. G'adsderi I.. & hup. Co.. 133 Ala. 250. 01 Am. St. Rep. 27: s. C, 31 So. 8*56. 20 Bainbridge v. Burton. 2 Beavan. 539. 21 Trustees of the Wabash & Erie Canal Co. v. Beers. 2 Black. 448. 17 L. ed. 327 : Calveston R. Co. v. Cow- drey. 11 Wall. 450, 20 L. ed. 399; Central R. Co. v. Pettus, 113 l. S. 110. 28 L. ed. 015. 22 Calveston R. Co. v. Cowdrey, 11 Wall. 450. 478. 20 L. ed. lO'l. 205. 23 Fink v. Patterson. 21 Fed. 602. 24Mot] ( >y v. Southern Ry. Co., 1S4 Vv<}. O.lti. 958. 25 Railroad Co. v. Orr. IS Wall. 471. 21 L. ed. 810. t26 PARTIES. [§ 11§ holder filed his bill on behalf of the others as well as of him- self. 26 Tt was held that such a suit could not be brought by the holder of a certificate of stock which had not been transferred on the books of the corporation to his name. 27 Such bills may also be tiled by one or more legatees. 28 at least if not residuary legatees; 29 by one of several next of kin; 30 by one of several beneficiaries of a trust fund. 31 by one of many partners; 32 by one of a class for the benefit of which a charity was founded : 33 by one of the crew of a privateer seeking an account from a de- fendant who has collected their joint prize money; 34 by one or more taxpayers, 35 or property owners; subject to an assess- ment: 36 but not by one of several importers to enjoin the seizure of their different imports under an unconstitutional statute. 37 Where none of the complainants in the class suit are entitled to relief, the court cannot grant relief to persons who have not been joined as parties, on whose behalf it is claimed the suit was brought. 38 § 115. Suits against one or more of a class. Similarly. where persons who are jointly liable are very numerous, some may be sued instead of all, provided that the manner in which they are sued, and the fact that they are numerous, are stated in the bill. 1 Ordinarily, the complainant selects such of the class as he chooses to represent the rest. The persons thus selected may be a committee chosen by the rest of the class to 26 .Mangels v. Donau Brewing Co.. 53 Fed. 513. 27 Rrown v. Duhitli & X. Ry. Co.. 53 Fed. 889, 894. But see § 145. infra. 28 Bennett v. Honywood, Ambler. 70S: Story's Eq. PL § 104, and cases cited. 29 Upon this point there is a con- flict of authority. Compare Brown v. Ricketts, 3 J. Ch. (X. Y.) 555, sind Davoue v. Fanning. 4 J. Ch. (X. Y.l inn. with Kettle v. Craiy. 1 Paige ( X. Y.i. 417. note. See also Story's Eq. PL. § so. 30 story's Fq. PL. § 105. 81 Watson v. National Life & Tr. Co.. C. C A., 162 Fed. 7. 32Chancey v. May, Prec. Ch. 592: Small v. Atwood. 1 Younge, 407. 33 Smith v. Swormstedt, 16 How. 288, 14 L. ed. n42. 84 Good v. Blewitt. 13 Yes. 397: West v. Randall, 2 Mason, 181, 194. 35 Crampton v. Zabriskie, 101 I". S. 601, 2.i L. ed. 1070. 36McIntosh v. Pittsburg. 112 Fed. 7".-,. 37 Scott v. Donald. 165 U. S. 107, 4 1 L. ed. 648. 38 Watson v. National Life & Tr. Co., C. C. A.. 189 Fed. 872. § 115. l Story's Eq. PL. §§ 116, 117: McArthtir v. Seott. 1 13 l. S. 340, 395, 28 L. ed. 101."). 1032; Bal- timore. C. & A. Ry. Co. \. Godeffroy, § 11 SUITS ALiAJ.NST <>.\K OF A CLASS. 427 act for them in the matters complained of, such as a reoreani- znrioii. (n- a protective^ committee of stockholders and bond- holders^ or the managing committee of a clearing-house asso- ciation. 3 It is proper, however, to name all of the class in the title to the bill, and then have the court select some of 'these to be served and to defend for the rest. 4 This rule has been applied to members of a club. 5 or of another unincorporated association when sued for the collection of its debts, or to enjoin a violation of the anti-trust act; 6 to members of a trades union engaged in a strike; 7 and to the stockholders of a corporation in a suit brought by a creditor after its dissolu- tion to recover the amount of its capital stock which has been divided among them. 8 It has been held: that in a suit for an injunction, against a voluntary association with numerous members, the whole association will be brought before the court, by service upon its president, secretary, manager and superintendents. 9 It has been said that ''this rule has always been understood to modify somewhat the general doctrine in England, that parties, not formally served with process, nntv yet be bound on the principle of representation to the fullest extent that those are bound who are their representatives in the suit. The language of the reservation is that in such cases the decree shall be without prejudice to the rights and claims of all absent parties. The rule especially is framed to allow a suit to proceed without having all the members of an asso- ciation or of a class of defendants formal parties; but. while C. C. A.. 182 Fed. 525; Carpenter v. Knollwood Cemetery, 108 Fed. 297. 2 Railroad Co. v. Howard. 7 Wall. 392, lit L. ed. 117: Carpenter v. Knollwood Cemetery. 19S Fed. 297. 3 Yardlev v. Phifler, 58 Fed. 746. 4 Ayres v. Carver. 17 How. 591, 15 L. ed. 179. 5 C'ullei) v. Duke of Queensberry, 1 Brown's Ch. 101: Cousins v. Smith, 1.'! Yes. o44: Story's Eq. PI., § 116. 6 1". S. v. Coal Dealers' Ass'n of California. 85 Fed. 252. 'Am. Steel & Wire Co. v. Wire Drawers* & Die Makers" Cnions, 90 Fed. 598. 8 Mandeville v. Riggs, 2 Pet. 482. 7 L. ed. 493: Railroad Co. v. How- ard, 7 Wall. .392.. Ill L. ed. 117: Wood v. Dummer, 3 Mason, 315. 9 Spauldirig v. Evenson, 1-19 Fou. 913, 916. See also Stationary en- gineer Pul». Co. v. Cbmerfordl 155 Fed. GG7. 670; A. P.. Barnes Co, v. Berry, C. C. A., 156 Fed. 72. But see Allis-Chalm'ers ( o. v. Iron Muld- ers" Union, 150 Fed, 155, is:;-, hold- ing that the decree did not hind the absentees of defendants who had been represented but not served. 428 PARTIES. [§ 116 preserving the right of the absent ones to afterwards litigate for themselves the same question, it does not prohibit the whole clasSj when plaintiffs, from taking the benefit of a decree in favor of those who represent them, nor preclude a plaintiff who has" sued the whole class by their representatives; from binding the absent parties by supplemental proceedings to bring them in when known, if necessary, and subject them to the decree, when they have had that opportunity to defend against it." 10 § 116. Suits by or against one or more as representa- tives of a class claiming a common right. In some in- stances when a number of persons have a common interest in the decision of a question of fact or law, though they have no common interest in any property which is the subject of liti- gation, yet as they are said to claim under a common right, one or mure of them have been allowed to represent the rest as plaintiffs or defendants in a suit to determine the disputed question. 1 Ordinarily, the complainant selects such defendants as he considers proper and sufficient ; but he may name all of the class in the title of his bill and ask the court to select a few to defend on behalf of the rest. 2 Instances where a suit of this kind has been allowed by one or more as plaintiffs in behalf of others similarly situated have usually occurred when, although the plaintiff and those represented by him had no com- mon interest in property, yet he sought a determination of a question 1 affecting the enjoyment of estates which, though dis- tinct, came to him and the rest from a common source. Thus, one or more tenants or parishioners may sue a lord of a manor or parson, to establish a right of common, 3 or of turbary. 4 Two or more foreign corporations were permitted to file a bill, on behalf of themselves and all other foreign corporations similarly affected, in order to enjoin the execution of an un- io. \in. Steel >.V Wire Co. v. Wire 3 Anon., 1 Chancery Cases, 209; Drawers' & Die Makers' Unions, 00 Comers v. Lord Abergavenny, 1 Fed. 598, (iu.">. per Hammond, -T. Atk. 2S.~. ; Brown v. Vermudeni, 1 § llti. l Wist v. Randall. 2 Ma- Cli. Cas. 272: Smith v. Earl Brown- son, 181, 195. See Percy Summer low, L. R. 9 Eq. 241. ( lub v. .-tie. 145 Fed. :>3. 4 Baker v. Rogers, Sel. Ch. Cas. 2 Ayrcs v. Carver. 17 How. 591, 74. 1.-. L; ed. 170. § 116] SUITS AGAINST ONE OF A CLASS. 429 constitutional statute. 5 A few defendants have been allowed to represent a large class not only when all of that class had some .privity of estate, hut also in other cases. Thus, a parson was allowed to sue a few on hehalf of all his parishioners to estab- lish a disputed right to tithes. 6 A lord of a manor may sue some on behalf of all of his tenants to establish their duty to grind at his mill, or his right of enclosure, 7 or to enforce a rent-charge. 8 Bills were sustained when brought !>v those in- forested in contesting the legality of the issue of certain certifi- cates of indebtedness-, against some on behalf of all of the holders of such certificates; 9 and when brought by the pur- chaser to set aside a sale to him by a decedent against the executor of the vendor and some of his heirs at law. the other heirs at law being unknown. 10 It seems that a bill can be sus- tained when filed by a claimant to the equitable title to a tract of land against some on behalf of all who have severally bought with notice parcels of it since his right accrued, praying that their conveyances be set aside as in fraud of his rights. 11 It has been held that in a suit by a railroad company against a State Commission, to enjoin the enforcement of charges for freight, shippers of articles affected by such charges may properly be joined as defendants, as representatives of then- class, upon an allegation that unless an injunction is granted against them they will attempt to enforce such rights. 12 "It has long been settled, that if a person has a common right ■ against a great many of the king's subjects, inasmuch as he cannot contend with all the king's subjects, a court of equity will permit him to file a bill against some of them, taking care to bring so many persons before the court that their interests shall be such as to lead to a fair and honesl support of the puh- 5 Greenwich Ins. Co. v. Carroll. 107: Attorney-General v. Jackson. 125 Fed. 121. 11 Yes. 365, 307 : Attorney-General 6 Brown v. Vermiiilon, 1 Cli. Cas. v. Shelly, 1 Salk. 1(52. 272: TIaideastle v. Smithson, 3 Atk. 9 Sheffield Water Works v. Yeo- 240. mans, L. R. 2 Cli. App. 8. ' Brown v. Vermuden, 1 CI.. Cas. io Alger v. Anderson, 7S Fed. 720, 272. Gf. U. S. v. Dastefvignes, IIS 733. Fed. 199; s. c. C. C. A.. 122 Fed. n Ayres v. Carver. 17 How. 591, 30. 15 L. ed. 17!). 8 Attorney-General v. YVyburgh, 1 12 Northern Pac. Ry. Co. v. Lee, P. Wins. 59!): s. c. 2 Eq. Cas. Ahr. 199 Fed. 021. 430 PARTIES. [§ m lie interest; and when a decree has been obtained, then with respect to the individuals whoso interest is so fully and hone-sfr lv established, the court on the footing- of the former decree will carry the benefit of it into execution against other individuals who were not parties/' 13 Thus, a city may file such a hill to establish its right to levy a duty: 14 and it has been suggested tHat a suit may thus he brought by one of many persons jointly interested in a geographical trade-mark. 15 Tn these cases, as has been said, a decree against the defendants before the court has been hold in England to hind others of the same class. 16 It has been said that this would be the rule here. 17 Under the former Eefuity Rules, 18 it was said that the doctrine did not apply tO members of unincorporated trades* unions. 19 § 117. Omission of defendants not within the jurisdic- tion of the court. The second exception to the general rule is. that persons who cannot be subjected to the jurisdiction of a court of equity need not be joined as parties to a bill, provided that their presence is not indispensable to a decree. "When any are absent from the jurisdiction who. if within it, would he necessary parties defendant, their presence will ordinarily he dispensed with, provided an equitable and effectual decree can he made against those who have been served with process. The former English practice was to charge in the hill the fact of the absence from the realm of any who otherwise ought to have been joined as defendants, and to pray that they might be served with process if they came within the jurisdiction. Under the modern English system this strictness is not re- quired, aiid it seems to be sufficient if the excuse for not mak- 13 Lord ETdon in Weale v. -West Middlesex Water Works Co.. 1 Jac. & Walk. 358, 369. 14 City of London v. Perkins. 3 Bro. Pail. Cas. 602; Mayor of York v. Pilkington, 1 Atk. 282. 15 City of Carlsbad v. Tibbetts, 51 Fed. 852, 856, per Putnam. J. 16 Brown v. Vermuden, 1 Ch. ('as. 272: Lord Eldon in Weale v. West Middlesex Water Works Co., 1 Jac. & Walk. 358. 36!). "Wallace v. Adams. 204 C. S. 415. 42."). .">! L. ed. 547. 552: Cliisolin \. Caines. 121 Fed. 397. 400. Of. U. S. v. Old Settlers. 148 U. S. 127. 480. 37 L. ed. 509. 529. 18 Eq. Rule 48. of 1842. 19 See McArthur v. Scott. 113 U. S. 340, 395. 28 L. ed. 1015. 1032; Am. Steel & Wire Co. v. Wire Draw- ers* & Dye Makers' Unions, 90 Fed. 598: r.rving v. Joint District Coun- cil, &c, of United Brotlierhood of Carpenters, etc., 180 Fed. 896. § 11 7-J ABSENT DEFENDANTS. 431 ing the absent parties defendant appears on the faee of the bill." * This rule of equity practice has been confirmed by stat- ute iu tliii Tinted States. "When there are several defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may entertain jurisdiction, and proceed to the trial and adjudi- cation of the suit between the parties who are properly before it. but the judgment or decree rendered therein shall not con- clude or prejudice other parties not regularly served with pro- cess nor voluntarily appearing to answer; and non-joinder of parties who are not inhabitants of, nor found within the district as aforesaid, shall not constitute matter of abatement or ob- jection to the suit." 2 This statute is, however, merely declara- tory, and does not enlarge the power previously possessed by courts of equity. 3 The power has been extended by rule, and parties not indispensable to an equitable decree may be omitted if their joinder would oust the court of jurisdiction by plac- ing persons of the same citizenship npon different sides of a controversy. "'In all cases where it shall appear to the court that persons, who might otherwise be deemed proper parties to the suit cannot be made parties by reason of their beiiur out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the juris- diction of the court as to the parties before the court, the court may in its discretion proceed in the cause without making such persons parties; and in such cases the decree shall be without prejudice to the rights of the absent parties." 4 "If any per- sons, other than those named as defendants in the bill, shall appear to be necessary or proper parties thereto, the bill shall aver the reason why they are not made parties, bv showing them to be without the jurisdiction of the court, or that they cannot be joined without ousting the jurisdiction of the court as to § 117. 1, Judge Dwight Foster in 3 Shields v. Barrow, 17 How. 130. Talmer v. Stevens, 100 Mass. 461, 141. IS L. ed. 158, 101. 466 - 4 Eq. Rule 39. This modifies th- 2 l*. S. R. S., § 737. See Conolly language of Eq. Rule 47. of 1842, v. VYells. 33 Fed. 20.5-. Wall v. by omitting the words "necessary Thomas. 41 Fed. (120; Greenhall v. or" before the word "proper." Carnegie Tr. Co., ISO Fed. 812. {3-2 PARTIES. [§ 117 other parties. And as to persons who are without the juris- diction and may properly be made parties, the bill may pray that process may issue to make them parties to the bill if they should come within the jurisdiction. " 5 "Such being the gen- eral rule it remains to be considered what parties are indis- pensable to an equitable decree. As has been said above, a court of equity will ordinarily seek to have before it as parties all persons in any manner interested in the subject-matter of the litigation, in order to make a decree that will prevent the necessity of a subsequent appeal to its aid. 6 This rule, how- ever, having* been established for the promotion of justice, will be modified whenever its rigid enforcement Would prevent the court from doing justice to a person invoking its protection. Accordingly it will proceed to a decree without the presence of such parties as cannot be subjected to its jurisdiction, pro- vided it can determine the respective rights of the parties be- fore it without affecting those of the rest. There are three classes of parties: formal parties; parties necessary to a decree which completely disposes of the controversy, so that the aid of the court need not be invoked again, but whose interests are so far separable from those of the parties before the court, that it can dispose of the controversy between the latter with- out affecting the interests of the former; and parties with an interest in the controversy "of such a nature that a final decree cannot he made without either affecting that interest, or leav- ing the controversy in such a condition that its final determin- ation may lie wholly inconsistent with equity and good con- science." 7 Of these the first two classes can always be omitted, when they are beyond the reach of the process of the court or when their joinder would oust its jurisdiction 8 Thus where a 5 Simms v. Guthrie, 9 Cranch, 10. The rule upon the subject lias been 3 L. ed. 642: Meredith, 21 How. well stated by Mr. .Justice Bradley: 489. ll! L. ed. 201. "The general rule as to parties in 6 § 110, supra. chancery is thai all ought to be 7 Mr. Justice Curtis in Shields v. made parties who are interested in Barrow., 17 How. 130, 139, 15 L. ed. the controversy, in order that there 158. See Chadbourne v. Coe, 51 uiay be an end of litigation. But Fed. 479. there are qualifications of this rule 8 Fei ral Mining & Smelting Co. arising out of public policy r nd the v. Bunker Hill & Sullivan Mining necessity of particular cases. The & Concentrating Co., 187 Fed. 474. true distinction appears to be as 118] FORMAL PARTIES. •i •) •> bill was filed for the construction of a will, an account by the' executrix, and a declaration that certain heirs had abandoned their rights in a part of the estate, in the absence of one of the heirs the court took jurisdiction so as to grant all the relief prayed except that which affected him. 9 § 118. Formal parties who may be omitted when with- out the jurisdiction. Formal parties are those with a naked legal title, but no equitable interest in the subject-matter of the controversy. When the persons really interested are be- fore the court, formal parties can always be omitted if with- out the jurisdiction, 1 and their joinder, no matter whether as plaintiffs or defendants, cannot oust the court of juris- diction, as they are in reality upon neither side of the contro- versy. 2 Such are: a husband against whom no relief is sought, in a suit by his wife to enforce the trusts of a marriage settle- ment ; 3 trustees of prior railroad mortgages in a suit for the foreclosure of a subsequent mortgage and the sale of the mort- gaged property subject to their liens; 4 and parties with the follows: First, when a person will be directly affected hy a decree he is an indispensable party, unless the parties are too numerous to be brought before the court, when the case is subject to a special rule. Secondly, when a person is inter- ested in the controversy, but will not be directly affected by a decree made in his absence, he is not an indispensable party, but he should be made a party if possible, and the court will not proceed to a decree without him if he can be reached. Thirdly, when he is not interested in the controversy between the im- mediate litigants, but has an inter- est in the subject-matter, which may be conveniently settled in the suit, and thereby prevent further litigation, he may be a party or not at the option of the complainant." Williams v. Brownhead, 19 Wall. 563, 571, 22 L. ed. 184. 187. See Chadbourne v. Coe, 51 Fed. 479. 9 Waterman v. Canal-Louisiana IVd. Prac. Vol. I.— 28. Bank & Tr. Co., 215 U. S. 33. 49, 54 L. ed. 80, 86. § 118. ISimms v. Guthrie, 9 Cranch, 19, 25, 3 L. ed. 642, 644; Wormley v. Wormley, 8 Wheat. 421, 451, 5 L. ed. 651, 659; Boon's Heirs v. Chiles, 8 Pet. 532, 8 L. ed. 1034; Union Bank of Louisiana v. Staf- ford, 12 How. 327, 13 L. ed. 1008; New Orleans Canal & Banking Co. v. Stafford, 12 How. 343. 13 L. ed. 1015. 2 Wormley v. Wormley, 8 Wheat. 421, 451. 5 L. ed. 651, 659: Removal Cases, 100 U. S. 457, 25 L. ed. 593: Pacific P. Co. v. Ketchum. 101 tJ. S. 289, 25 L. ed. 932; Wablen v. Skinner, 101 U. S. 577, 25 L. ed. 963; Harter v. Kernochairl 103 U. S. 562; supra, § 60. 3 Wormley v. Wormley. 8 Wheat. 421. 5 L. ed. 651 ; Taylor v. Holmes, 14 Fed. 499. But see Watts v. Waddle. 1 McLean, 200. 4 Pacific R. Co. v. Ketchum. 101 T T . S. 289, 298, 25 L. ed. 932, 936. 404 PARTIES. [§ 119 naked, legal title having no interst in the controversy. 5 A per- son against whom an injunction is sought, unless he consents thereto, cannot be omitted. 6 When a suit is brought to recover the possession of real or personal property the person in pos- session is not a formal party. 7 Where policy holders sued to enforce their rights against assets transferred to insurance com- panies, with whom they had not contracted, and the bill also prayed relief against funds deposited by some of the corpo- ration defendants with the State auditor; it was held that his absence would not prevent the grant of the rest of the relief which the complainants sought. 8 § 119. Parties whose interest is separable. The second class is not so easy to define; and it is difficult to mark the limits between this and the third class of parties who are always indispensable. It includes all having an interest in the controversy so far separable from that of those before the court that a decree can be made and enforced which disposes of the matter in dispute between the latter without affecting their ria'hts. 1 Thus, a trustee or director or executor bevond the jurisdiction has been held properly omitted in a suit against his colleagues for a breach of trust, or for an account- inff. 2 For a trustee's liability is joint and several. One of 5 Simnis v. Guthrie, 9 Cranch, 19, 2.5, 3 L. ed. 042, 044; Boon's Heirs v. Chiles, 8 Pet. 532, 8 L. ed. 1034; Union Bank of Louisiana v. Staf- ford, 12 How. 327, 13 L. ed. 1008; New Orleans Canal & Banking Co. v. Stafford. 12 How. 343. 13 L. ed. 1015; Walden v. Skinner, 101 I . S. 577, 588, 25 L. ed. 903, 9G7; Bacon v. Rives, 106 U. S. 99. 27 L. ed. 09 ; Jackson v. Jackson, C. C. A., 175 Fed. 710, 717. 6 Ward v. Arredondo, 1 Paine, 4Kt: Mills v. Hard, 32 Fed. 127. 7 Mass. & So. Const. Co. v. Cane (reck Tp., 155 U. S. 2S3, 39 L. ed. 152. 8 Watson v. National Life & Tr. Co.. C. C. A.. 162 Fed. 7. § 119. l Cameron v. McRoberts, 3 Wheat. 591. 4 L. ed. 467; Mallow v. Hinde, 12 Wheat. 193, 6 L. ed. 599; Gridley v. Wynant, 23 How. 500, 16 L. ed. 411; Horn v. Lock- hart, 17 Wall. 570, 21 L. ed. 657; Nesmith v. Calvert, 1 Woodb. & M. 34. 2 Parsons v. Howard, 2 Woods, 1, 5; Heath v. Erie Ry. Co.. 8 Blatehf. C. C. 345; Hazard v. Durant, 19 Fed. 471, 476: Plume & A. Mfg. Co. v. Baldwin. 87 Fed. 785; Bay State Gas Co. v. Rogers, 147 Fed. 557, where it was not charged that the omitted trustees had shared in the money, as to which an accounting was prayed. But see Wall v. Thom- as, 41 Fed. 620. 3 Parsons v. Howard. 2 Woods, 1, 5; Heath v. Erie Ry. Co., 8 Blatehf. 347. § 119] SEPARABLE INTERESTS. r.): the next of kin 4 may sue an administrator and his sureties; and a legatee, 5 at least if not a residuary legatee, 6 may sue an executor to recover his share of a decedent's estate without joining the rest of the class to which he belongs. It seems that the executor of a dead debtor need not be a party to a bill brought by a creditor of the estate to obtain payment out of assets in the hands of a legatee. 7 One of several tenants in common is not an indispensable party to a suit by another against a stranger, to establish the plaintiff's interest in the property. 8 "'In suits to execute the trusts of a will, it shall not be necessary to make the heir at law a party ; but the plain- tiff shall be at liberty to make the heir at law a party whore he desires to have the will established against him." 9 It has been held : that an heir at law, whose presence could oust the jurisdiction, may be omitted from a suit by another heir, to set aside a deed and will by their common ancestor, and to recover the plaintiff's share of the common property. 10 The mortgagor is not an indispensable, although he is a proper, party to a bill to collect a mortgage from a purchaser who has assumed it, when, before the bill is filed, the mortgaged prop- erty was sold upon the foreclosure of a prior mortgage ; n nor are the heirs of the mortgagor indispensable parties to a fore- 4 Payne v. Hook. 7 Wall. 425, 19 L. ed. 260. See, however, West v. Randall. 2 Mason, 181; Wisner v. Barnet, 4 Wash. C. C. 631, 642; Greene v. Sisson, 2 Curtis, 171. 5 Dandridge v. Washington's Ex'rs, 2 Pet. 377, 7 L. ed. 457. See West v. Randall, 2 Mason, 181. 6 See McArthur v. Scott. 113 U. S. 340, 395. 28 L. ed. 1015: Braduin v Harpur, Ambler, 374: Hawly v. Harvey. 4 Beav. 215; S. c. 5 Beav. 134. 'Milligan v. Milledge, 3 Cranch, 220, 2 L. ed. 417. S.Martin v. Fort. S3 Fed. 19. 27 C. C. A. 428: Williams v. Cr&bb, 117 Fed. 193. 54 C. C. A. 213. 59 L.R.A. 425; North Carolina Mining Co. v. Westfeldt, 151 Fed. 290. 296; Alfred v. Smith, 135 N. C. 443. 452, 47 S. E. 597, 65 L.R.A. 924; Browne v. Browne, Fed. Cas. No. 2,035 (1 Wash. C. C. 429). 9 Eq. Rule 41, copied from Eq. Rule 50 of 1S42. It has been held: that the heirs of a decedent, who hold a beneficial life interest in, and a power of testamentary ap- pointment over, certain property, are not indispensable parties to a suit against the representatives of the trustee to enforce the rights of the complainants to the same. Mar- tin v. Fort. 83 Fed. 19. 27 C. C. A. 428. 10 Williams v. Crabb. 117 Fed. 193. 54 C. C. A. 213. 59 L.R.A. 425. 11 Kelly v. Ashford, 133 Fed. 610. 62G, But see Skinner v. Barker, 23 Colo. .".33. Supra, § 112. 43 G PARTIES. [§ 119 closure suit, when the bill and answer show that the entire interest in the premises has passed to the defendant; although the bill alleges that it passed by descent at the death of the mortgagor, and the answer that the defendant had acquired it bv purchase. 12 Subsequent lienors are not indispensable par- ties to a foreclosure. 13 Where the title to part of the mortgaged premises had passed to a sovereign, who could not be sued, and all the other parties in interest were joined ; it was held, that the court could except the land so conveyed, decree a sale of the balance and enter a deficiency judgment, if the proceeds of the sale were insufficient. 14 Persons in possession of the property, as agents of a defendant, are not indispensable par- ties to a foreclosure suit. 15 It has been held : that the pledgee of corporate stock is not an indispensable party to a suit to determine the title to the name; provided that its citizenship would defeat the jurisdiction; and that the court may, in its decree, protect the interests of the pledgee, by declaring the stock to be subject to the same lien, if any, that it had at the beginning of the suit. 16 It has been held: that neither a State, nor any of its officers, is a necessary party to a suit by an executor to compel a corporation to transfer to him stock standing in the testator's name, with a claim for damages be- cause of the delay, although the stock is subject to a lien for an inheritance tax. 17 It has been held that the mortgagor is not an indispensable party to a suit by the mortgagee to enjoin the enforcement against the mortgaged property of unconsti- tutional legislation, 18 or to a suit by the mortgagee, 19 or bv the 12 Cooper v. Johnson, 1.17 Fed. 15 Golden Cross Min. & Mill. Co. 104. v. Free Gold Min. Co., C. C. A., 154 13 Brewster v. Wakefield, 22 How. Fed. 441. ]]8. 129, 16 L. ed. 301; Union Bank 16 Edwards v. Mercantile Trust of Louisiana v. Stafford, 12 How. Co., 124 Fed. 381, 389. 327, 13 L. ed. 1008; New Orleans "Jessup v. Chicago & N. W. Ry. C. & B. Co. v. Stafford, 12 How. Co., 18S Fed. 931. 343. ]."> L. ed. 1015; Howard v. Rail- 18 Knickerbocker Tr. Co. v. City way Co., 101 U. S. 837, 25 L, ed. of Kalamazoo, 182 Fed. 865; City 1081 ; Nalle v. Young, 1G0 U. S. (524, and County of Denver v. N. Y. Tr. 40 L. ed. 560. See supra, § 112. Co., C. C. A . 187 Fed. 890. 14 Kawananakoa v. Polyblank. 205 19 Ban v. Columbia Southern Ry. I". S. 349. Co., C. C. A., 117 Fed. 21. § 119] SEPARABLE INTERESTS. 437 bondholders, 20 to enjoin trespasses on the mortgaged property by striking employees of the mortgagor, and even that such bondholders need not allege a previous demand for the insti- tution of such a suit by the mortgagor or by their trustee. 21 To a bill to enjoin trespass upon land, the person under a contract with whom the trespassers claim the right to use the land is not an indispensable party. 22 The early English cases hold: that in a suit against a firm, by strangers, a partner be- yond the jurisdiction may be omitted if no injustice will be done him by a decree in his absence; 23 but the American au- thorities seem to be opposed to this. 24 It has been held that in a suit by one partner against another for an account of money received by the defendant in excess. of his share of the firm assets, partners beyond the jurisdiction may be omitted if it appears that each has received his full share of the joint prop- erty, 25 and that a partner, whose sole interest is a share of the joint profits of a contract, is not an indispensable party to a suit by another member of the firm, to foreclose a mechanic's lien for the gross amount due. 26 A subcontractor who has fraudulently collected money from the United States may be sued at law to recover this without the joinder of the contractor, although the latter at the former's instigation made the fraud u- 20 The trustee does not seeem to ard, 2 Woods, 1 ; Bell v. Donoughue, have been a party, although the ob- 17 Fed. 710; Mudgett v. Gager, 52 jection for not joining appears not Maine, 541. See § 119, infra. to have been raised. Carter v. Fort- 25 Towle v. Pierce, 21 Met. ney, 170 Fed. 463. But see Consol. (Mass.) 329; Kilboum v. Sunder- Water Co. v. City of San Diego, 89 land, 130 U. S. 505, 32 L. ed. 1005. Fed. 272. But see § 119, infra. 21 Carter v. Fortney, 170 Fed. 463. 26 Ex parte Haggerty, 124 Fed. 22 Paint Creek Co. v. Gallego Coal 441. Where the business of the & Land Co., C. C. A., 166 Fed. 62. firm was conducted by two houses, 23 Cowslad v. Cely, Prec. Ch. 83; and those who managed one house Darwent v. Walton. 2 Atk. 510; had assigned their interest to the Calvert on Parties, Book III, ch. managers of the other; it was held: xxiii; Smith v. Consumers' Cotton- that the former, who filed a flis- Oil Co., 86 Fed. 359; Vose v. Phil- claimer, might be made defendants; brook, 3 Story C. C. 335. Of. Per- and that their citizenship, which kins v. Hendryx, 127 Fed. 448; s. was the same as that of the prin- C., 149 Fed. 526. 529: Lawrence v. cipal defendant, did not defeat the Pokes, 53 Maine, 110. jurisdiction. Poole v. West Point 24 Raphael v. Trask, 194 U. S. Butter & Cheese Ass'n, 30 Fed. 513. 272. 48 L. ed. 973; Parsons v. How- i:;s J'AKTIES. [§ 119 lent representations. 27 "The owners of partial interests in <•< .11 tracts for land, acquired subsequently to their execution, are not necessary parties to bills for their enforcement. The original parties on one side are not to be fixed np in contro- versies between the parties on the other side, in which they have no concern." 28 An heir may file a bill for the specific performance of a contract entitling his ancestor to purchase laud without bringing in the personal representative of his an- cestor, provided that he offers himself to provide for the pay- ment of the purchase-money. 29 Specific performance of a con- tract for the sale of land may be enforced against one of several joint tenants without joining the others with him as defend- ants. 30 It was held that to a bill to set aside a deed and power 27 U. S. v. Salisbury, 157 U. S. 121, 39 L. ed. (142. 28 Mr. Justice Field in Willard v. Tayloe, 8 Wall. 557. 571, 19 L. ed. 501, 505. But see Hoxie v. Carr, 1 Sumner. 173. It lias been beld: that, to a suit by an assignee of part of the rights under a contract to compel specific performance of the same, the owners of the other parts are necessary parties under the old Chancery rule; but not in- dispensable parties under the rule of the Federal court. Rogers v. Pen- obscot Min. Co., C. C. A., 154 Fed.. 606, (J 10. A party to a contract, who has received a release, Dodge v. Frank Waterhouse & Co., 156 Fed. 57 : or one who has released his interest, Canal Co. v. Gordon, Wall. 561, 18 L. ed. 894. is not an indispensable party to a suit to enforce the same. 29 Prout v. Roby. 15 Wall. 471. 21 L. ed. 58. 30 Stephen v. Beall, 22 Wall. 329, 22 L. ed. 7S0. It has been held, thai a corporation, which is not a party to a contract for the convey- ance of certain property thereto, is not an indispensable party to a suit to compel specific performance, Rogers v. Penobscot Miri: Co.. C. C. A., 154 Fed. 606. 616; and that corporations are not indispensable parties to a suit for specific per- formance of a contract to convey land owned by them, which was made on their behalf by a corpora- tion which held the control of their stock, Texas Co. v. Central Fuel Oil Co., C. C. A., 194 Fed. 1. A rail- way company is not an indispensa- ble party to a bill against its re- ceiver to enforce specific perform- ance of a contract made by it. Ex- press Co. v. Railroad Co., 99 U. S. 191, 25 L. ed. 319. To a bill to enjoin the execution of a judgment of ejectment and to decree a con- veyance of lands, when the plain- tiffs had an equitable title only, the persons whose legal title the com- plainants asserted were held prop- erly omitted, when no relief was prayed against them, and their joinder would have ousted a court of jurisdiction. Simms v. Guthrie. 9 Cranch, 19, 25, 3 L. ed. 642. 044. See also Boon's Heirs v. Chiles, 8 Pet. 532. 8 L. ed. 1034. But com- pare Mallow v. Hinde, 12 Wheat. § 119] SEPARABLE INTERESTS. 4:39 of attorney for the sale of land, a purchaser of part of the land from one of the defendants was not an indispensable party. The assignor of a claim is not a necessary party to a suit upon it by his assiimee, 32 unless the assignment be executory, 33 tin- assignor has an equitable interest in the claim. 34 Where a contract is joint and several, all parties to the same are not in- dispensable to a suit to enforce it. 35 A party to a contract with a trustee, which has been released, is not an indispensable party to a suit by the cestui que trust to compel such trustee to account for the loss he has thereby sustained. 36 It has been held: that a State is not an indispensable party to a bill, by the United States against a private individual, to cancel a contract between him and the State for the purchase of land obtained by the State from the national Government through mistake or fraud. 37 It has been held that a corporation, whose citizenship will defeat the jurisdiction, is not an indispensable party to a suit by a minority stockholder to compel the' majority to account to the complainants for their share of the property, which such majority have misappropriated 38 that a corporation is not an indispensable party to a suit in equity by bondholders against directors, to compel them to make good fraudulent representations recited in their mortgage, 39 that an officer of a corporation, who has deposited with the defendants money, which it is charged he embezzled from the company, is not an indispensable party to a suit to establish a trust in the same. 40 The holder of a certificate of stock in a corporation, which has 193, 6 L. ed. 590. A border case is 35 Richmond Cedar Works v. Elmendorf v. Taylor, 10 Wheat. 152. Etickner. 181 Fed. 424. Under the 6 L. ed. 289. Iowa Code of 1807, § 3465, a surety 31 Billings v. Aspen M. & S. Co.. may be sued without joining the 51 Fed. 338, 350. See Hieklin v. principal upon the bond. Kaus v. Marco, 56 Fed. 540. Am. Surety Co., 100 Fed. 072. 32 P>atesville Tnst. v. Kauffman. 36 Frank Waterhouse & Co. v. 18 Wall. 151, 21 L. ed. 775; Treco- Dodge. C. 6. A.. 102 Fed. 1. thick v. Austin, 4 Mason, 16; Rogers 87 Williams v. 1". S.. 138 U. S. v. Penobscot Min. Co.. C. C. A.. 154 514. 510, 34 L. ed. 1020. 1028. Fed. 600. * 38 Kuchler v. Greene. 103 Fed. 01. 33 Land Co. v. Elkins, 20 Fed. 545. 39 Slater Tr. Co. v. Randolph- 34 Western Nat. P>ank v. Arm- Macon Coal Co.. 100 Fed. 171 . strong, 152 l". S. 340. 38 L. ed. 470: 40 White Swan Mines Co. v. Bal- Huhbard v. Manhattan Tr. Co., C. iet. 134 Fed. 1004. C. A.. 87 Fed. 51, 57. 440 PARTIES. [§ 11!) been cancelled by a decree in another court, is not an indis- pensable party to a bill to compel the issue to the complainant of a new certificate for the same stock. 41 Stockholders and creditors are not necessary parties to a suit to foreclose a lien Upon the property of the corporation. 42 Tt has been held: that to a hill to restrain the directors of a corporation from negotiat- ing a fraudulent sale of its property, the person to whom the sale is about to be made is not an indispensable party if no con- tract has been made with him; 43 that a party, whose presence will defeat the jurisdiction, is not an indispensable party to a suit to enjoin the making of a contract with him ; 44 that con- tractors of a city are not indispensable parties to a suit to enjoin the municipal corporation from creating a debt beyond the constitutional limit, by carrying out its contract with them, 45 and that a non-resident is not an indispensable party to a bill to enjoin the transfer of property to it.* 6 In proceed- ings under section 18 of the Interstate Commerce Act against a railroad company to enforce an order of the commission, it is not necessary that another carrier making the forbidden rate jointly with the defendant be made a party when it is without the jurisdiction. 47 To a suit by one indorser of a bill of exchange to restrain the collection of a judgment against him upon the ground that the bill had been paid by an- other indorser, the latter is not a necessary party. 48 To a bill by a creditor to satisfy a judgment out of land in a debtor's possession, but fraudulently conveyed by him to a person beyond the jurisdiction of the court, the person in whose name the land stood was held not to be an indispen- 41 Citizens Sav. & L. Ass'n v. tuimva. 120 Fed. 309- But see in- Belleville & S. I. R. Co., C. C. A., fra, § 119. 117 Fed. 109. 46 Wilson v. Am. Palace Car. Co., «Godcliaux v. Morris, C. C. A., 67 N. J. Eq. 262, 58 At]. 195. See 121 Fed. 482. City Water Supply Co. v. Ottunnva, 43 Abbot v. American H. R. Co., 120 Fed. 309. 4 Blatchf. C. C. 489; Wallace v. « Interstate Com. Com'n v. Texas Holmes. 9 Blatchf. C. C. 65. '& P. Ry. Co., 52 Fed. 187: s. c. as 44 Cherokee Nation v. Hitchcock, T. & P. Ry. Co. v. Interstate Com. 187 U. S. 294. 47 L. ed. 183; Wilson Com'n. 162 U. S. 197, 265, 40 L. v. Am. Palace Car Co., 67 N. J. Eq. ed. 940. 262. 58 Atl. 195. 48 Atkins v. Dick, 14 Pet. 114, 10 45 (ify Water Supply Co. v. Ot- L. ed. 378. 119] SEPARABLE INTERESTS. 411 able party. 49 It has been held that a tenant in common of a water-right may sue to enjoin an injury to the property with- out making his co-tenant a party, 50 but that where the com- plainant seeks an injunction against interference by owners of the upland with his right to divert the water for irrigation, all persons who claim any right to use the waters of the stream are indispensable parties, although their joinder would defeat the jurisdiction. 51 It has been said that, to a bill by a private individual to enjoin the maintenance of a public nuisance, neither persons jointly interested with him nor those jointly guilty with the defendant are indispensable parties. 52 It has been suggested that the absence of one person guilty of a joint fraud might not prevent the court from taking jurisdiction over the others. 53 And in general to a suit for an injunction against a tort, 54 not committed under color of a contract right, or against the infringement of a patent when no accounting is prayed, 55 one or more of the joint wrong-doers may be 49 McCoy v. Rhodes, 11 How. 131, 141. 13 L. ed. G34, 638. But see Billings v. Aspen M. & S. Co., 51 Fed. 338. 50 Union M. & M. Co. v. Dangberg. 81 Fed. 73, 87; Washington State Sugar Co. v. Sheppard, 186 Fed. 233. 51 Washington State Sugar Co. v. Sheppard, 186 Fed. 233. In view of the water code of Oregon, Act of February 24, 1909, L. 1909, p. 319, it was held that, where a suit was there brought to enjoin the defend- ants from using the waters of a stream, the Federal court should re- quire the parties either to proceed under the statute or to bring in all other persons in interest. Pacific Live Stock Co. v. Silvies River Irr. Co., 200 Fed. 487. 5« Miss. & Mo. R. Co. v. Ward, 2 Black, 485, 17 L. ed. 311. 53 Judge D wight Foster in Palmer v Stevens, 100 Mass. 461, 466. See also Heath v. Erie Ry. Co.. 8 Blatchf. C. C. 347 and note 2 supia. But see Bell v. Donohoe, 17 Fed. 710; Wall v. Thomas. 41 Fed. 620. 54 Miss. & Mo. R. Co. v. Ward, 2 Black, 485, 17 L. ed. 311; Cole Sil- ver Min. Co. v. Virginia & Gold Hill Water Co., Fed. Cas. No. 2,989 (1 Sawy. 470). The directors of a cor- poration are not indispensable par- ties to a suit by a stockholder to restrain it from acting in violation of his rights fraudulently or ultra vires, Geer v. Mathieson Alkali Works, 190 U. S. 428, 436, 47 T>. ed. 1122, 1120; Hatch v. Chicago, Bock Island & Pac. R. R. Co.. »i Blatchf. 105, 114; Sidway v. Mis- souri L'd. & L. S. Co., 116 Fed. 381 ; Witherbee v. Bowles, 201 X. V. 427. A corporation, the entire capital stock of which is owned by another company, is not an indispensable party to a suit by a stockholder of the latter, to restrain the latter from leasing the former's railroad. Sabre v. United Tr. & El. Co., 156 Fed. 79, 81. 55 American B.-Mach. Co. v. Cros- 442 PARTIES. [§ 1*9 omitted. In an action by a creditor of a corporation to enforce the individual liability of its directors or stockholders, or to t'cllcct unpaid assessments or subscriptions from them, he can- not usually sue alone at law, but should file a bill in equity in behalf of himself and the other creditors, if any; 56 accord- ing to his pleasure. 57 The United States are not indispensable parties to a suit to enjoin a marshal from executing- a judgment in their favor which was entered without jurisdiction; 58 but it has been held that an Indian agent is a proper, although not an indispensable, party to a suit to determine rights under leases of Indian lands. 59 A State is not an indispensable party to a bill seeking to restrain its officers from levying for its benefit an illegal tax ; 60 nor, it has been held, to a bill to prevent their illegal issue of land warrants for property which it had agreed to convey to the plaintiff ; 61 nor to a bill to restrain their un- lawful issue of bonds which would diminish the value of bonds held by the complainant. 62 To such bills the persons to whom the unlawful issue of bonds or land warrants is about to be made, are not indispensable parties. 63 It has been said, that, in proceedings to establish claims against decedents estates, the Federal courts should follow the local law, and that man. 57 Fed. ]021 (partners). The officers, agents and stockholders of a corporation may be enjoined from infringing a patent while acting for the company when the corporation itself is not a party and is beyond the jurisdiction. Edison El. L. Co. v. Packard El. L. Co.. Gl Fed. 1002. 56 Homor v. Henning, 93 U. S. 228, 23 L. ed. S79 ; Terry v. Little. ]01 U. S. 21(1. 2.") L. ed. 804: Terry v. Tubman. 92 U. S. 156, 23 L. ed. 537: Pollard v. Bailey. 20 Wall. 520, 22 L. ed. 37S: Welles v. Craves. 41 Fed. 459; First Nat. Bank v. Pea- ve; . 75 Fed. 154. But see Alder son v. Dole. C. C. A.. 74 Fed. 29: supra, § 81. S'Ogilvie v. Knox Ins. Co., 22 How. 38(1. 10 L. ed. 349: Hatch v. Dana. 101 U. S. 205, 25 L. ed. 885: Manufacturing Co. v. Bradley, 105 U. S. 175, 2G L. ed. 1034. 58 Buckley v. U. S., 19G Fed. 429. 59 Texas Co. v. Central Ftiel Oil Co.. C. C. A.. 194 Fed. 1. eoOshorn v. Bank of U. &., 9 Wheat 73S. G L. ed. 204: Dodge v. Wcolsey. 18 How. 331. 15 L: ed. 401. 61 Davis v. Gray, 1G Wall. 203, 21 L. ed. 447: Hancock v. Walsh. 3 Woods. 351. But see Cunningham v. Macon & B. R. Co., 109 I". S. 44G. 453. 27 L. ed. 992. 994. 62 Board of Liquidation v. Mc- Comb. 92 I". S. 531. 23 L. ed. 623; supra. § 105. 63 Davis v. Cray, 1G Wall. 203, 233, 21 L. ed. 447, 457: Cherokee Nation v. Hitchcock, 187 U. S. 294, 4 7 L, ed. 183. § 120] INDISPENSABLE PARTIES 44 • > no persons are indispensable parties who won],] not be such were the proceedings instituted in a State court. 64 § 120. Parties indispensable to a decree. Xo suit, how- ever, can proceed unless the court have before it as parties all persons who will be directly affected by the decree sought, or whose obedience is necessary to its enforcement, when it does not appear that they consent thereto. 1 A person is affected bv a decree when his rights against, or liability to, any of the par- ties to the suit is thereby determined. If a decree in favor of the complainant would cast a cloud upon another's title, that person, it seems, is thereby directly affected. 2 All tenants in common of land are necessary parties to an action for trespass upon the same. 3 It has been held that the several lessors of lands are indis- pensable parties to a suit between their respective lessees, when the validity of their title is in question. 4 The United States are necessary parties to a suit brought by a State against the Secretary of the Interior to establish the title to, and to pro- vent the other disposition of, lands which the Xational Govern- ment claims to own. 5 A State is an indispensable party to a bill against its officers to compel specific performance bv them for it of its contract for the sale of land; 6 or to establish a claim to property held by its officers claiming a title in the State thereto; 611 or a claim to corporate stock registered in its name, the certificates of which are held by its officers; 7 or to 64 Farmers' Bank of Cuba City, 3 Cochran v . Brannan, 196 Fed Wis. v. Wright. 158 Fed. S41. 210. § 120. iSee § 122. But see 4 South Penn Oil Co. v.' Miller, C Eagle Mfg. Co. v. Miller. 41 Fed. C. A.. 175 Fed. 720. 736. ' 5 State of Louisiana v. Garfield, 8 Young v. GuShing, 4 Biss. 456; 211 V. S. 7o, :,:\ L. ed. 02. California v. Southern Pae. R. Co., 6 Preston v. Walsh. 10 Fed 315 157 C. S. 220. :505 L . ed. 683. lint See also Walsh v. Preston, 100 V. see Hicklin v. Marco, 56 Fed. 540. S. 207. 27 L. ed. 0411. It was held improper to compel de- 6a See § 103. supra. fendant to make a deed confirming 7 Cunningham v. Macon & B. H. complainant's title to land conveyed Co.. loo V. S. 44<;. 27 I., ed. 00-> ■ by the lattei\ grantors wl.en such hritpra, § :!7. Christian v. Atlantic ,v grantors were not parties'; Zen- X. ('. i:. ( ,,.. 1:;:; [\ s. 2:;:;. :;:; I.. « d bVugg v. Reed (X. .1. (I,.. lSOiii, 5891; stlprd § 103 35 Atl. 208. 444 PAKTIES. [§ 120 compel the removal of a nuisance from State laud; 8 but not, it has been held, to a bill by the United States against a private individual to cancel a contract between him and the State for the purchase of land obtained by the State from the plaintiff through mistake or fraud. 9 All attaching creditors are indispensable parties to a suit to obtain the possession of assets, which have been seized by the sheriff under attachments issued at their application. 10 The trustee of an active trust is a necessary party to a suit affect- ing the trust estate, 11 but the legal representative of a trustee is not an indispensable party to a suit by a cestui que trust to enforce a contract concerning the trust property made by the former with the consent of the latter. 12 Every party to a con- tract, whether of sale or for another purpose, except one who has released, 13 or assigned, 14 his interest, or who has been re- leased, 15 or an agent through whom the title has passed ; 16 is ordinarily a necessary party to a suit to enforce it ; 17 or to set it aside ; 18 or unless its performance would amount to a 8 Hopkins v. Clemson Agricultural College of South Carolina, 221 U. S. 636, 55 L. ed. 890. 9 Williams v. U. S., 3 38 U. S. 514, 516, 34 L. ed. 1026. 10 De Galard v. Safe Deposit & Trust Co. of Baltimore, 190 Fed. 981. 11 McRea v. Branch Bank of Ala- bama. 19 How. 376. 15 L. ed. 68S : O'Hara v. MaeCohnell, 93 U. S. 150, 23 L. ed. 840; Thayer v. Life Ass'n, 112 U. S. 717, 28 L. ed. 8(14: Ameri- can B. S. v. Price, 110 U. S. 61, 28 1.. ed. 70; Billings v. Aspen M. & S. Co., 51 Fed. 338, 350; s. c. in C. C. A., 52 Fed. 250. But see New Ches- ter Water Co. v. Holly Mfg. Co., C. C. A., 53 Fed. 19; supra, § 113. 12 Sage Land & Improvement Co. v. Ripley, C. C. A., 192 Fed. 785, where no such representative had been appointed. 13 (anal Co. v. Gordon, 6 Wall. 5111. 18 L. ed. 894. l* Northern Pac. Rv. Co. v. Kin- dred, 14 Fed. 77; Mackay v. Ga- bel, 117 Fed. 873; U. S. v. Clark, 129 Fed. 241: O'Sliaugnessy v. Humes, 129 Fed. 953. 15 Dodgs v. Frank Waterhouse & Co., 156 Fed. 57. 16 Donovan v. Campion, 85 Fed. 71; Gross v. George W. Scott Mfg. Co., 48 Fed. 35; Hamilton v. Savan- nah, F. & W. Ry. Co., 49 Fed. 412; Mackey v. Gabel, 117 Fed. 873. But see California v. So. Pac. Co., 157 U. S. 229, 39 L. ed. 683. 17 Mallow v. Hinde, 12 Wheat. 193, 6 L. ed. 599; Shields v. Barrow, 17 How. 130, 15 L. ed. 158: Gregory v. Stetson, 133 U. S. 579, 33 L. ed. 792; Perin v. Megibben, 53 Fed. 86; Rollins Inv. Co. v. George, 4S Fed. 776; Farni v. Tesson, 1 Black, 309, 17 L. ed. 67; Judson v. Courier Co., 15 Fed. 541. McAulay v. .Moody, 185 Fed. 144. 18 Shields v. Barrow. 17 How. 130, 15 L. ed. 158; Coiron v. Millaudon, 19 How, 113. 15 L. ed. 575; Gar- § 120] INDISPENSABLE PARTIES. 445 nuisance; 9 or other tort unconnected with contract; 20 to en- join a persbn from carrying it into effect; 21 even, it has been held, in a case at circuit, when the other parties are co-trustees beyond the jurisdiction of the court. 22 Thus, a railway com- pany is an indispensable party to a suit to enjoin another rail- way company from constructing a road under a lease by it. 23 In a suit to enjoin the persuasion and assistance of contractors with plaintiff to violate their obligations, it was held that such contractors were indispensable parties. 24 The assignors and assignees of a patent are necessary parties to a bill against the Commissioner to expunge it from the records of the Patent- Office. 25 To a bill in equity by a State, to enjoin a corpora- tion from acquiring a majority of the stock of two competing railroad companies, chartered by such State, and thus obtain- ing and exercising ownership and control over their railroads ; these railway companies, are indispensable parties. 26 A city is lords v. Kelshaw, 1 Wall, 81. 17 L. ed. 612: Ribon v. Railroad Cos., 16 Wall. 446, 21 L. ed. 367: Lawrence v. Wirtz, 1 Wash. C. C. 417; Tobin v Walkinshaw, 1 McAll, 26; Bell v. Donohoe, 17 Fed. 710: Florence S. Mach. Co. v. Singer Mfg. Co., 4 Fisher's Pat. Cas. 329; s. c:. 8 Blatchf. C. C. 113: Chadbourne v. Coe, 45 Fed. 822; Empire C. & T. Co. v. Empire C. & M. Co., 150 U. S. 159, 37 L. ed. 1037; New Orleans W. Co. v. New Orleans, 164 U. S. 471. 41 L. ed. 518: s. c. in C. C. A., 51 Fed. 479; Clark v. Great North- ern Ry. Co., 81 Fed. 282; U. S. v. No. Pac. R. Co., 134 Fed. 715; Bes- wick v. Dorris, 174 Fed. 502. See, also, Sperry & Hutchinson Co. v. Pommer, 199 Fed. 309. But see French v. Shoemaker, 14 Wall. 314, 20 L. ed. 852; West v. Duncan, 42 Fed. 430; Smith v. Lee, 77 Fed. 779. 19 Miss. & Mo. R. Co. v. Ward, 2 Black, 485, 17 L. ed. 311. 20 Cole Silver Min. Co. v. Vir- ginia & Gold Hill Water Co., Fed. Cas. No. 2,989 (1 Sawy. 470). But see Anderson et al v. Bassman et al., 140 Fed. 10. 21 Northern Ind. R. Co. v. Michi- gan C. R. Co., 15 How. 233. 14 L. ed. 674; Raphael v. Trask, 194 U. s". 272, 48 L. ed. 973. But see Heriot v. Davis, 2 Woodh. & M. 229; Boon's Heir v. Chiles, 8 Pet. 532, 8 L. ed. 1034; McConnell v. Dennis, C. C. A. r 153 Fed. 547. See in Heckman v. U. S., 224 U. S. 413, 56 L. ed. S20, held that th<> United States might sue to set aside conveyances, made by Indians, of al- lotted lands within the statutory- period of restriction, without join- ing such allottees. 22 Wall v. Thomas, 41 Fed. 620. 23 Northern Ind. R. Co. v. Midi. C. R. Co., 15 How. 233, 14 L. ed. 674. 24 Sperry & Hutchinson Co. v.. Pommer, 199 Fed. 309. 25 Backus P. S. H. Co. v. Si- monds, 2 App. D. ('. 290. 26 Minnesota v. Northern Securi- ties Co., 184 U. S. 199, 46 L. ed. 499. 2S 44(5 parties. L§ 12Q an indispensable party to a suit by a company claiming a street railroad franchise, to enjoin another railroad company from oc- cupying the street. 27 To a hill to set aside a decree, the party in •i«ii 28 whose favor the decree was made is an indispensable party. This rule applies to a judgment in favor of the United States which is voidable, but not void. 29 To a bill against the administrator with the will annexed of Kosciuszko, claiming a legacy under an alleged codicil to the will, foreigners claiming the assets of the deceased as heirs at law were held necessary parties. 30 To a bill between partners for an accounting, all the surviving partners and the repre- sentatives of a deceased partner, even when alleged to be insol- vent, are, it seems, indispensable parties, 31 unless it can be shown that each of those omitted has received his full share of the assets, and that no claim is made against him. 32 All the partners must be joined as plaintiffs and defendants in a suit to recover money due the firm, 33 or, it seems, to prevent the dis- position of a fund held by the firm. 34 To a partition suit all of the tenants in common are indispensable parties. 35 A person in possession under a claim of a title or interest in property is a necessary party to a suit affecting it. 36 The mortgagor is a 27Tacoma Ry. & Power Co. v. 32 Towle v. Pierce. 12 Met. Pacific Traction Co., 155 Fed. 259. (Mass.) 329; Kilbourn v. Sunder- 28 Hoe v. Wilson, Wall. 501, 19 land. 130 U. S. 505, 32 1.. ed. 1005. I., ed. 762; Harwood v. Railroad S3jEdgell v! Felder, 84 Fed. 69. Co., 17 Wall 78, 21 L. ed. 558: John- Where the business of the firm was son v. Hunter. 127 Fed. 219. For conducted by two houses, and those a case where, upon a petition of in- who managed one house had as- tervention, a sale was set aside and signed their interest to the manag- ; , ,,,;,,, lien upon the property en- era of the other: it was held: that forced, although the vendor, a tins- that the former, who tiled a dis- tee, residing beyond the jurisdiction, elaiiner. might he made defendants: was not before the court: see An- and that their citizenship!, which thony v. Campbell, C. C. A.. 112 Fed. was the same as that of the princi- 212. P a ' defendant, did not defeat the 29 Bucklev v. I'. S., 196 Fed. 429. jurisdiction. Poole v. West Point SO Armstrong v. Fear. 8 IVt. 52, Putter & Cheese Ass'n. 30 Fed. 51.3. s L. i-d. 863. 34 Raphael v. Trask, 194 1". S. 31 Bank v. Carrollton 11. Co., 11 272. 48 L. ed. 97:!. Cfi supra. §§ 119, Wall. C24. 20 1.. ed. 82: Bartle v. 420. 425. Coleman. 3 (ranch. C. Q. 283,; Gray 35 Barney v. Baltimore. 6 Wall, v. Larrimore. 2 Abb. C. C. 542; 280, IS L. ed. 825. Brew v. Cochran, 141 Fed. 459. 36 W illiams v. Bankhead, 19 § 120] INDISPENSABLE PARTIES. 447 necessary party to a suit by the mortgagee against a third per- son to remove a cloud upon the title; 37 or to prevent an injury to the property when the decree must necessarily adjudicate unsettled rights of the mortgagor. 38 It is the safer practice to join the mortgagor as a party defendant to a bill by the mort- gagee of a patent seeking an injunction against its infringement with damages or an account of profits. 39 It has been held: that all the devisees, who are joint tenants of land, are indis- pensable parties to a suit to foreclose a mortgage upon the same, given by an executor under a power in the will. 40 It was held that in a suit to compel the execution and foreclosure of a mortgage, prior incumbrancers and others claiming an inter- est in the mortgaged property were necessary parties, when it did not appear that their joinder was impossible or would oust the jurisdiction. 41 To a bill to enforce specific performance of a contract, providing for the sale of land the title to which was in one party, and its distribution between both parties to the contract ; when tiled, after the death of each by the per- sonal representatives of the one as complainants against the heirs-at-law of the other as defendants: the executors of the defendants' ancestor are necessary if not indispensable parties defendant, and the heirs-at-law of the complainant's decedent are not. 42 All a decedent's heirs-at-law are indispensable par- ties to a bill by one of them to set aside a sale of his property under a decree; and to such a bill the party to the former suit at whose instance the sale was made is also an indispensable- party. 43 All a woman's heirs have been held necessary parties to a bill to set aside a marriage settlement. 44 To a bill by a stock- Wall. 563, 22 L. ed. 184; Young v. 41 Metropolitan Bank v. St. Louis dishing, 4 Biss. 456. But see Ringo Dispatch Co., 140 I". S. 430. 45Q, 37 v. Binns. 10 Pet. 269. 281, 9 L. ed. L. ed. 799, 804. 420. 425: Hicklin v. -Marco, C. C. Fed. 337. A., 56 Fed. 549. 42 Seymour v. Freer. 8 Wall. 202. 37 Bettes v. Dana, 2 Summer. 383; 218. 19 L. ed. 311. See Front v. Hicklin v. Marco, ('. C, A., 56 Fed. Bony. 15 Wall. 471, 21 L. ed. 58. .-,49. 43 Hoe v. Wilson, 9 Wall. 501, 88 Consol. Water Co. v. San Die- 19 L. ed. 762; Itarwood v. Railroad go, 84 Fed. 369. Co.. 17 Wall. 78. 21 L. ed. 558. But 39 Waterman v. .Mackenzie. 138 U. see Alger v. Anderson. 78 Fed. 729, ■i^ v S. 252. 261. 34 L. ed. 923. 927; quot- 44 McDonnell v. Eaton, IS Fed. ed supra, § 112. 710. 40 Detweiler v. llolderbaum, 42 448 PAKTIES. [§ 120 holder to set aside the foreclosure of a railroad mortgage, the trustees of the mortgage foreclosed, the mortgagor, the pur- chaser, and enough of such of the stockholders and bondholders as consented to the foreclosure to represent the remainder, are indispensable parties. 45 So, it has been said, are the trustees of a mortgage by the purchaser, and a corporation holding all the stock of the purchaser. 46 A corporation or its receiver, 47 must be a party to a suit to enforce a right against a third per- son, which the corporation refuses to assert, 48 or to prevent the waste of corporate assets. 49 If a receiver has been appointed he is an indispensable party to such a suit, even although the State court which appointed him refuses to authorize the suit against him. 50 AVhere a corporation had been dissolved and its receiver discharged; it was held: that neither of them was an indispen- sable party to a suit by its creditors against a former director and treasurer of the company, to enforce his promise to pay all its debts in case he should be allowed to buy its property at a judicial sale. 61 The trustees and treasurer of an Iowa township are neces- sary parties to a suit by a taxpayer to prevent payment to the holder of bonds claimed to be invalid. 52 It has been said that to a bill by the receiver of a water company to establish his right to fix the water rates, all consumers of the water must be made parties. 53 To a bill for an injunction against interference by 45Rjbon v. Railroad Cos., 16 37 L. ed. 83 5; supra, § 52: infra, Wall. 446, 21 L. ed. 367. § 312. 46\\'enoer v. Chicago & E. R. 51 Lilienthal v. Betz, 185 N. Y. Co., C. C. A., 114 Fed. 34. 153, 7 Ann. Cas. 41. 47 Porter v. Sabin, 149 U. S. 473, 52 Sully v. Drennan, 113 U. S. 37 L. ed. 815. 287, 28 L. ed. 1007. Compare Har- 48 Davenport v. Dows, 18 Wall. ter v. Kcrnoehan, 103 U. S. 562, 26 026, 21 L. ed. 938; New Jersey Cen- L. ed. 411. In a suit by citizens tral R. Co. v. Mills. 113 U. S, 249, to restrain the erection of a school- 256, 28 L ed. 049. 951 ; T?ell v. Don- house on land dedicated for a pub- ohue, 17 fed. 710; Swan L. & C. Co. lie park, it was held error to refuse v. Frank. 148 U. S. 603, 37 L. ed. to allow an amendment to the bill 577 ; Kelly v. Mississippi River Coal- making the original donors of the Lng Co., 175 Fed. 482j Snead v. Sche- land parties complainant. Rowzee ble C.C.A., 175 Fed. 570: Lawrence v. Pierce, 75 Miss. 846: s. c. 23 S. v. Southern Pac. Co., 180 Fed. 822. l\. 307; S. c. 40 L.R.A. 402, 65 Am. 49 Putnam v. Khh. 56 Fed. 416. St. Rep. 625. 60 Porter v. Sal. in, 140 U. S. 47::. 58 Ward v. Sun Diego L. & W . § 120] INDISPENSABLE PARTIES 44H riparian owners with complainant's right to divert the waters ±or irrigation, all persons who claim any right to use the waters are indispensable parties. 54 It seem, that the principal debtor or his assignee m bankruptcy or insolvency, is a necessary party o a suit against a surety. 55 [Jnless the hill is expressly filed on their behalf, all creditors of a corporation are indispensable parties to a suit by one of them to collect unpaid stock sub- scription. To a suit by a creditor to enforce a lien upon property through a trust-deed made for the benefit of a surety both the trustee and his beneficiary are indispensable parties: although the property is in the possession of neither of then. ■ but if hied ib a double aspect, either for the complainant's in- dividual benefit, or on behalf of the other creditors of the prin- cipal debtor, to. set aside a subsequent sale, relief may be had without having the surety or his trustee before the court. 57 So a debtor, or if a bankrupt or insolvent, his assignee, is a neces- sary party to a creditor's suit to enforce a lien 58 or to lew 59 upon property in which the debtor has an interest, or to collect 60 a debt due the debtor. A corporation must be joined as a de- fendant to a bill for a receiver; 61 to a bill filed bv a creditor to apply to the payment of its indebtedness money due it from its stockholders, 62 or to enforce the individual liability of its stock- Co., 79 Fed. 656, 667; s. c. in C. C. A.. 94 Fed. 849. But see Clyde v. Richmond & D. R. Co.. 57 Fed. 436. 51 Washington State Sugar ( !o. v. Sheppard, 1S6 Fed. 233. 55 Robertson v. Carson, 1!) Wall. 94, 22 L. ed. 178. See also Russell v. Clark, 7 Cranch, 69, 3 J., ed. 271. Rut see Eq. Rule 42. 56 George W. Signor Tie Co. v. Monett & S. W. Const. Co.. 198 Fed 412. 37 McRea v. Branch Bank of Ala- bama, 19 How. 376, 15 L. ed. 688. 58 Russell v. Clark. 7 Cranch. (59. " L. ed. 271 ; Robertson v. Carson, 19 Wall. 34, 22 L. ed. 178. But see Heriot v. Davis, 2 W. & \f. 229. It was held that in a suit against a bank for money deposited by com- plainant's agent, and applied by the Fed. Prac. Vol. I. — 29. bank to debts due from the agent, the latter was a proper and neces- sary party; but on a decree for com- plainant, without there appearing any right or liability for or against the agent, it is proper then to dis- miss him. Union Stock yards Nat. Bank v. Moore, C. C. A.. 79 Fed. 705. 59 Wilson v. City Bank. 3 Sum- ner. 422. 60 I". S. v. Houland. 4 Wheat 108, 4 L. ed. 526. 61 Elkhart Xat. western G. L. Co. 62 Bingham v. Blatchf. C. ('. 237 Bank v. Noith- 84 Fed. 76. Luddington, 12 First Xat. Bank v Smith. 6 Fed. 215: Dorn.it/er v. Illinois & St. L. Bridge Co.. 6 Fed. 217; Walsh v. Memphis, C. & \. W. R. Co.. 6 Fed. 7H7: Continental 450 PARTIES. [§ 120 holders^ 68 to a 1 > i 1 1 to compel a transfer upon its books of stuck which stands in the name of another than the complainant.* 4 So must he an unincorporated association to a hill to foreclose a mortgage upon a certificate of memhership which cannot be transferred without its consent. 65 To a hill for the dissolu- tion of a corporation and an accounting filed for the benefit of ;i single stockholder, not on behalf of the rest, the other stock- holders or their representatives must he made defendants. 66 The owner of stock is an indispensable party to a suit to enjoin the voting upon the same, although the owner is a corporation, with the same directors as those of the company the stock in which he owns. 67 To a hill by a legatee against the husband of a residuary legatee or devisee to obtain payment of the complain- ant's legacy from assets in the defendant's possession, the re- siduary legatee herself, or, if she be dead, her personal repre- sentative, is a necessary party, 68 at least when it does not appear that she or her personal representative is without the jurisdic- tion of the court. To a hill by alleged heirs, to set aside the probate of a will, persons who appeared in the Probate Court, Adjustment Co. v. Cook, 152 Fed. 652. 63 Elkhart Xat. Bank v. North- western E. L. Co., 84 Fed. 7G. 64 Kendig v. Dean. 97 U. S. 423. 24 L. ed. 1061 ; St. Louis & S. F. Ry. Co. v. Wilson. 1 14 I'. 8. GO. 211 L. ed. 0(5; Rogers v. Nortwick, 4.1 Fed. 513; Patterson v. Farmington St. Ry. Co.. 1 1 1 Fed. 262. See Wilson v. Oswego Township. 151 l. S. 56, 38 L. ed. 70; and cases cited: supra, § 40; infra, § 541. But it lias been said that in a suit by the holder of a certificate of stock, duly endorsed, Id compel a transfer of the same by the corporation, the owner of the legal title is not an indispensable party, although he has disputed the validity of the transfer. O'Neil v. Wolcott Mining Co.. C. C. A.. 174 Fed. -V27. 536; see Gould V. Head, 41 Fed. 240. 248: Williamson v. Krohn. 06 Fed. 6.")."). 65 Metropolitan Xat. Bank v. St.. Louis Dispaeth Co., 149 U. S. 43(1, 37 L. ed. 799. 66 Watson v. U. S. Sugar Refin- ery Co.. 68 Fed. 70!). Where a cor- poration had been required to de- posit moneys with the treasurer of the Commonwealth to indem- nify those who should sustain dam- age by the construction of a canal, and the fund was insufficient to pay all claims, it was held that a bill to have certain damages paid there- from should make parties to the .-nit al! interested in the funds. Cowell v. (ape Code Ship Canal Co., 41 N. E. B. 290. 104 Mass. 2.V>. Similar is Childs v. X. B. Carstein Co., 70 Fed. 80. But sec Bickford v. McCbmb, 88 Fed! 428. 67 Talbot J. Taylor & Co. v. Southern Pac. By. Co.. 122 Fed. 147. See Minnesota v. Northern Securi- ties Co.. 184 U. S. 199. 40 L. ed. 499. 68 Levis v. Dart. How. 1. § 1 ^ 1 ] BTUMEBOUS INTERESTS. 151 claiming adversely to the plaintiffs, that thev are the true own- ers at law; are indispensable parties. 69 In a suit to compel the execution and foreclosure of a mortgage, it was held: that P ri <>r incumbrancers and others, claiming an interest in the mortgaged property, were necessary parties, when it did not appear that their joinder was impossible or would oust the jurisdiction. In one case, where a bill was filed to stay pro- ceedings in ejectment, the court required the nominal defendant at law to be joined as a co-plaintiff with the real person inter- ested, although it did not appear what citizenship he had. 71 § 121. When numerous interests have been created for the purpose of preventing the plaintiff from obtaining equitable relief. When numerous interests had been created for the purpose of preventing a person from obtaining equitable relief, the English courts allowed the persons to whom these interests were thus conveyed to be omitted from the bill if the original owner of the property thus divided were made a de- fendant. I he rule and the reasons for it are thus stated bv ( -alvert m bus valuable work on Parties: "If a party has divided an interest amongst a number of persons for this pur- pose, the court, in order that the contrivance may be frustrated and the equitable relief may be obtained, allows the suit to pro- ceed ,n their absence. Such a division is in realty a fraud an attempt to defeat justice by converting the general rule of the court into an obstruction to the ordinary proceedings The court defeats the fraud by refusing to enforce the -general rule. Lord Hardwicke said upon this subject: "Where a mortgagee who has a plain redeemable interest makes several conveyances upon trust, in order to entangle the affair, ami to render it difficult for a mortgagor or his representatives to re- deem, there it is not necessary that the plaintiff should trace out all the persons who have an interest in such trust, to make *> Ca,,,,, v , O'Calligan. C. C. A.. § , 2] . U , (lvoi . t (1| , p artJeg ( IpI'i n ,- 6d - h B °° k KHl - h -l' i; ': rates v. .on .';« gs ' 4 Peter8, " ;m,,,ly - - Atk - 2:;: - **i ^o. ■ • '• / I. ,. e«l. MS. ,-,,;„„ Bank ()f L()uisi;m;i v g n Hyde v. Kolger, 4 McLean, 255: ford, 12 How. 327, 13 I., ed 1008; In connection with this topic, the Sew Orleans Canal & Bankin-Co v section on Separable Controversies Station!. 12 How. :;i;j. |;; L ed the Chapter on Removal of KM," Causes. i»fy (l , should ho consulted. 2(,lvcrt on Parties (2,1 ed. 61. 452 TARTIES. [§ 122 Them parties." 3 This rule might} perhaps, he extended to a case, where an attempt hud been made to defeat the jurisdiction of the Federal court by a merely colorable conveyance to a per- son of the same citizenship as the complainant. 4 § 122. When a person consents to the relief sought. A person who consents to, the relief sought, when it is so stated in the hill, need not be joined as a defendant with the other parties interested, unless his presence is indispensable for their protection. 1 Sometimes the plaintiff is required to execute a satisfactory undertaking - that the party omitted will conform to the decree. 2 Similarly, a person who disclaims all interest in subject-matter may also be omitted, unless his joinder is essen- tial to the protection of the rights of the other defendants. 3 An agreement, between two persons that one shall represent the othicr as plaintiff, when the former would otherwise have no right to the relief sought, will not be sanctioned by the court. 4 § 123. When the plaintiff waives his right against a per- son. "Where a plaintiff.'" says Lord Hardwicke, "is only concerned in interest, there he may waive his demand, and omit making the party a defendant to his bill." * In accordance with this practice, the equity rules provide that "in suits to execute the trusts of a will, it shall not be necessary to make the heir- at-law a party but the plaintiff shall be at liberty to make the heir-at-law a party when he desires to have the will established against him." 2 Such a waiver cannot, however, be made unless 3 Yates v. Hambly. 2 Atk. 237, 238. 4 See Union Bank of Louisiana v. Stafford. 12 How. 327. 13 L. ed. — : New Orleans (anal & Ranking Co. v Stafford, 12 How. 343, 13 L. ed. 1015: Leather Manufacturers' Hank v. Cooper, 120 V. S. 778. 781. 30 L. ed. 81(1. 818. 5 122. 1 Mechanics' Rank v. Se- ton. 1 Pet. 20!). 306, 7 L. ed. 152, !55; Calvert on Parties (2d ed.), Book T. ch. V.. CO. 84. 2 Cahort on Parties (2d ed), Book 1. ch. 69; Kirk v. Clarice, Prec. in Ch. 27"> : Harvey v. Corrie, 4 Buss. 35, 55; Bawtree v. Watson, 3 M. & K. 330. 340. 3 Vattier v. llinde. 7 Pet. 252, 258. 8 L. ed. 675, 077. 4 Rylands v. Latouche, 2 Bligh, 570. § 123. l Williams v. Williams. Mod. 200. See also Wilson v. Todd, i M. & C. 42. 4fi; Mechanics' Bank v. Seton, 1 Pet. 200. 306, 7 L. ed. 152. 155: Calvert on Parties (2d ed.), S3, and cases cited. 2 Rule 50. coiiic 1 from the 31st Order in Cliancerv of August, 1841. § 127] SPECIAL CASES. 453 it can be without prejudice to those against whom the bill is filed. 3 § 124." When the interest of an absent person is evident- ly very small. In England it has been held, in accordance with the maxim de minimis non curat lex, that when the interest of an absent person is evidently very small the court will dispense with his presence in the suit. 1 This view seems to be sanctioned by two decisions of the Supreme Court of the United States. 2 § 125. When the absent persons are unknown. When the absent persons are unknown and it is so stated in the bill, their omission is no defect in the suit until they are discovered, at least when parties with similar rights are parties who may de- fend in their interest. 1 § 126. When the right of administration is in dispute. The English rule was. that when there was a contest in the Ec- clesiastical Court over the right of administration upon a deced- ent's estate, the omission in a bill affecting that estate of an ad- ministrator might be excused if special circumstances were shown. 1 If, however, no proceeding in the Ecclesiastical Court were pending, one must be instituted before the bill could be filed. 2 § 127. Relaxation of rule as to parties in special cases. The rules upon the subject of parties are, however, very loose, and the questions arising under them are decided largely in the discretion of the court. 1 ''The necessity for the relaxation of 3Anon.. 2 Eq. (as. Abr. 166, pi. Atk. 51; Penny v. Watts, 2 Pliil- li; Story's Eq. PL. § 139: Poole v. lips, 140, 154; Calvert on Parties West Point Butter & Cheese Ass'n, (2d ed.), Book I. cli. V. p. 70. 30 Fed. 513. 2 Penny v. Watts. 2 Phillips, 149, § 124. 1 Calvert on Parties (2d 154: Calvert on Parties (2d ed. I . ed.), Book I, ch. V. p. 70: Daws v. Book 1, eh. V. See Peed v. Bennett. Eenn, 1 J. & W. 513; Attorney- 55 X. J. Eq. 587. 37 At!. 75: supra, General v. Goddard, 1 T. & P. 348, § 113. 350. Se also Faulkner v. Dankd, § 127. 1 Cameron v. McRbherts, 3 Hare, 199, 213. 3 Wheat. 591, 4 E. ed. 4(i7 : Klmen- 2 Union Bank v. Stafford. 12 How. dorf v. Taylor. 10 Wheat. 152. 6 L. 327, 33 E. ed. 1008; New Orleans C. ed. 289: Lewis v. Darling, Hi How. & B. Co. v. Stafford. 12 How. 343. 1, 14 E. ed. 819: Barney v. Halti- 13 E. ed. 1015. more. 6 Wall. 2S0. 18 E. ed. 825; § 125. 1 Alger v. Anderson, 7S Payne v. Hook. 7 Wall. 425, 19 L. Ped. 729, 734. ed. 200; Barney v. Eathain. 103 U. § 12G. lPlunket v. Penson, 2 S. 205, 26 E. ed. 514 : Greene v. 'Sis- 4r>4 I'AKTIE.S. [§ 128 the rule is more especially apparent in the courts of the United States, whore, oftentimes, the enforcement of the rule would oust them of their jurisdiction, and deprive parties entitled to the interposition of a court of equity of any remedy whatever." 2 A court of equity adapts its decrees to the necessities of each case; and should a suit brought by a single complainant con- cerning a matter in which others as well as himself were inter- ested terminate in a decree against the defendants, it is easy to do substantial justice to all the parties in interest, and pre- vent a multiplicity of suits, by allowing the other persons sim- ilarly situated with the plaintiff, '"either through a reference to a master, or by some other proper proceeding, to come in anl share in the benefit of the litigation." 3 The discretion as to the joinder or omission of the parties is, however, one which, when properly raised, is subject to review upon appeal. 4 An act of Congress relaxing or extending the rules as to parties in a particular case is constitutional. 5 § 128. Restatement of the rules as to parties. The rules upon the subject may be summarily though roughly stated thus : — I. All persons, not too numerous, whose joinder will not oust the jurisdiction of the court, and who have any direct interest in obtaining or resisting the relief prayed for in a bill, or grant- ed in a decree which so disposes of the controversy as to pre- vent any future litigation concerning the same, must be parties to a suit in equity. 1 II. Xo person without an interest in the contest or its set- tlement can be joined as a party, except perhaps the officer or member of a corporation, who according to some authorities may son. 2 Curtis, 171: West v. Ran- 4 Caldwell v. Tatgg&rt, 4 Pet. 190, dull. 2 Mason, 181; Parsons v. How- 7 L> ed. 82&; Robertson v. Carson, aid. 2 Woods. 1: Winter v. Ludlow, 19 Wall. !)4. 22 L. ed. 178: Hoe v. :; Pbila. i Pa.) 4 Wall. 501, lfl L. ed. 7t>2; 2. Mr. Justice Davis in Payne v. Railroad Co. v. Orr, 18 Wall. 471, Hook. 7 Wall. 42.->. 4:i2, 10 L. ed. 21 L. ed. 810. 260, 262. M'. S. v. Union Pacific R. Co., 3. Mr. Justice Davis in Payne v. 98 V. S. 568, 2q L. ed. 143. Hook. 7 Wall. 425, 4M2. 19 L. ed. § 128. 1 §§ 109, 110, .116; 260, 262- See s. c. as Hook v. Payne. 14 Wall. 2r>2. 20 L. ed. 887: infra, § 238. § 129] OBJECTION FOB WANT OF PARTIES. 455 be made a defendant to a bill praying relief against it. in order to compel from him a discovery of facts of which he acquired knowledge in his official capacity. 2 III. If the persons having a common interest in the subject of the controversy or the question to be decided therein are nu- merous, they may in certain cases be represented, as plaintiffs or defendants, by others who hold the legal title in trust for them, or l>y one or more of their number suing, or more rarely being sued, in their behalf. 3 IV. Persons having a merely formal interest, or an interest so far separable from that of the principal parties that a decree disposing of the controversy as between the latter can be made and enforced without affecting their rights, may always be omit- ted when, by reason of their residence or citizenship, not with- in the jurisdiction of the court. 4 V. All persons who have such an interest in the controversy that a decree cannot be enforced without directly affecting their rights, must be joined as parties ; except possibly when they are unknown to the complainants, or when their interest is very small, or has been created for the purpose of depriving the court of jurisdiction. 5 VI. There is no need of joining as parties any against whom the plaintiffs waive their rights, or who are willing to allow the relief prayed for in the bill, unless their presence is necessary for the protection of those who have been made defendants. 6 VII. The necessity of the joinder of parties is always in the sound discretion of the court, which adapts itself to the facts of each particular case. 7 § 129. Objection for want of parties. An objection for want of parties may be taken by motion to dismiss 1 or by an- swer. 2 or at the hearing, 3 and if the absent persons are indispen- sable parties, even for the first time upon appeal. 4 although not 2 g no. 8 §§113-115. 4§§ 42. 1 16—118. 5§§ Hi). 12(i. 123, 124. 6 §§121, 122. 7 s; 12(5. § 120. l Eq. Rules 29, 44. 2Eq. Rules 20, 44 3 Eq. Rule 44. 4 Hoe v. Wilson. !i Wall. 501, 19 L. ed. 762, It has been held that, at common law. a defendant may. un- der a plea of the general issue, raise the objection that a necessary party has not been joined. Cochran v. Brannan, inc. Fed. 219. Hut sen fron Molders' Union No. 12."i of .Mil- waukee. Wis. \. Allis-Chaltners Co., 4:56 parties. [§ 12'J if a decree has been made which cannot prejudice their inter- ests. 5 The objection should specify by name or description the omitted parties. 6 It should state the names, if known, of all the persons for whose omission the defendant claims that the bill is defective, 7 and the reasons why their presence is required in the suit. 8 It should also state that they are living, and, un- less they are in every aspect of the bill indispensable parties thereto, that they are within the jurisdiction of the court. 9 "If a defendant shall, at the hearing- of a cause, object that a suit is defective for want of parties, not having by motion or answer taken the objection and therein specified by name or description the parties to whom the objection applies, the court shall be at liberty to make a decree saving the rights of the absent parties.'" 10 •"Where the defendant shall by his answer suggest that the bill of complaint is defective for want of parties, the plaintiff may. within fourteen days after answer filed, set down the cause for argument as a motion upon that objection only; and where the plaintiff shall not so set down his cause, but shall proceed there- with to a hearing, notwithstanding an objection for want of par- tics taken by the answer, he shall not at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order to amend his bill by adding parties; but the court shall be at liberty to dismiss the bill, or to allow 7 an amendment on such terms as justice may require.'' 11 An objec- tion to the whole bill for want of parties will be overruled if. in any aspect of the bill, the parties therein named would not lie necessary. 12 Where a defendant in a suit in equity for the infringement of a patent made objection for the first time at C. C. A., 20 L.R.AJX.S.) 315, 166 » Sheffield v. Newman. 77 Fed. Fed. 45. 789. 5 See Eq. Rule 39. Keller v. Ash- 9 Goodyear v. Toby, 6 Blatchf. ford, 133 l". S.. 610, 626, 33 L. ed. 138. 667, (574. W Eq. Rule 44; copied in sul»- 6Eq. Rule 44. stance from Eq. Rule 53. of 1842. 'Attorney General v. Jackson, 11 See David v. M'Rae, 183 Fed. 812. Ves. 367, 369; Cook v. Mancius, 3 814. Johns Ch. (N. Y. i 427: Dwight 11 Eq. Rule 43 !"' copied in part from \. Central Vt. R. Co., 9 Fed. 785; Eq. Rule 52, of 1842. Campbell v. James, 2 Fed. 338, 348. 12 Homan v. Shiel, 2 Jones See Helm ?. Zarecor, 222 I. S. 32. 164. 35, 56 L. ed. 77. § 129] OBJECTION FOR WANT ()F PARTIES. 457 the argument upon final hearing, that there was a defect of par- ties, because a person holding an equitable title to the patent, was not a party; and it appeared that no such issue was made by the pleadings, and that during the taking of the testimony the defendant's counsel admitted that the title to the patent was in the complainant, it was held that the objection was made too late and it was overruled. 13 The usual practice is for the court, if it considers the objection good, to allow the cause to stand over until the plaintiff shall amend his bill by bringing in the additional parties needed. 14 By the former practice, after a plea for want of parties had been sustained and the bill amended by adding thereto the parties named in the plea, the second plea further objecting to the bill for the omission of other parties not named in the first plea could not be filed. 15 If the omitted parties on account of their citizenship cannot be brought in, the court may retain the bill, and perhaps continue an injunction in accordance with its prayer until the complain- ants have had a reasonable time to litigate the matters in con- troversy between themselves and the omitted parties in a court of competent jurisdiction; and if it should then appear by the judgment of such a court that the complainants have in equity a superior title to the omitted parties, proceed to a determina- tion of the rights between the parties to the bill. 16 If, how- ever, the complainant does not within a reasonable time amend his bill, or, if so alknved by the court, proceed against the omit- ted parties, the court may dismiss his bill ; but such dismissal must be without prejudice. 17 A lack of proper par- ties is not a jurisdictional defect. 18 It will not support an objection to the jurisdiction, that may be certified to the Su- preme Court : 19 and if, pending the decision upon an objec- tion for the omission of a party whose presence would oust 13 California El. Works v. Finck, 193, 100, 6 L. ed. 509. 601; Hunt v. 47 Fed. 533. See also Hills v. Put- WiekliflV, 2 Pet. 201, 215. 7 L. ed. nam. 152 Mass. 123. 397, 402. 14 Hunt v. Wiekliffe. 2 Pet. 2d, 18 Harrison v. Rowan. 4 Wash. ('. 215, 7 L. ed. 397. 402. C. 202. 268; Beltti v. Zarecor, 222 15 Rawlins v. Dalton, 3 Y. & Coll. I". S. 32. 35, 56 L. ed. 77. 70: Hincli- 447. man v. I'au'ison 11. 1!. Co., 17 N. J. 16 Mallow v. Hinde. 12 Wheat, Eq. 76; 86 Am. Dec. 252. 103. 198, 100, L. ed. 500. 600, 001. 19 Belm v. Zarecor, 222 V. S. 32, 17-Mallow v. Hinde, 12 Wheat. 35, 5G L. ed. 77, 79. 1:58 TARTIES. [§ 130 the District Court of jurisdiction, he dies, or his interest ceases, and the defect is therein - cured, the hill will he re- tained. 20 It was held, where a defendant had removed a ease, that he could not object to the absence of a party whose joinder would deprive the Federal court of jurisdiction. 21 § 130. Objections for joinder of improper parties. An objection that improper parties have been joined may be raised by motion to dismiss or by answer. 1 If persons are im- properly joined as plaintiffs, all the defendants may take the objection. 2 If a person is joined as a plaintiff without his eon- sent, he may on motion, or petition, upon notice to all parties, have his name stricken out, with costs to be paid by the plain- tiff who has improperly brought him into the suit. 3 Such relief has been granted upon petition after a decree for costs against the petitioners and the other persons named as complainants. 4 Where several complainants with a similarity but not a com- munity of interest had joined in a bill, and the presence of some of them deprived the Federal Court of jurisdiction, the one which had the right to sue the defendants there was allowed to amend the bill so as to make the other complainants additional defendants. 5 Where one of several complainants whose inter- est is opposed to the others, attempts to delay, harass, or impede the orderly progress of the cause, the court may order that he be made a defendant. 6 If a person having no interest in the controversy be improperly joined as defendant, he alone can raise the objection ; 7 except, perhaps, when the bill is multi- 20 Harrison v. Rowan. 4 Wash. C. C. 202. 208: Hinchman v. Pat- erson H. R. Co.. 17 X. J. Eq. 76, 86 Am. Dec. 252. 21 Fisher v. Shropshire. 147 I". S. 133, 14.3. 37 L. ed. 109. 115. § 130. 1 Eq. Rule 20. 2 Cuff v. Platell. 4 Rus& 242: King of Spain v. Machado, 4 Russ. 225; Story's Eq. PI.. § 544. 3 Calvert on Parties (2d ed.), 430; Keppell v. Bailey. 2 M. & K. 517; Titterton v. Oshorne. 1 Dick- ens, 350: Wilson v. Wilson. 1 J. & W. 450. It was held that a motion to dismiss the bill upon that ground should he denied. Southern Life Ins. Co. v. Lanier, 5 Fla. 110, 58 Am. Dec. 44S. * McGeorge v. Bigstone Gap Imp. Co., 86 Fed. 599. 5 Insurance Co. of X. A. v. Svend- sen, 74 Fed. 346. See Aylwua v. Bray. 2 Y. & .Ter. 518. note. 6 Lalance & G. Mfg. Co. v. Haber- nian Mfg. Co. 93 Fed. 197. !99 As to the change of a defendant to a plaintiff, see Guirin v. Lee; 6 Pa. Super. Ct. ii4H. 7 Whitbeek v. Edgar, 2 Barb. Ch. iX. Y.) H)6: Seymour v. Freer, 8 Wall. 202. 218; Buerk v. Imhaeuser, § 130] OBJECTION FOB MISJOINDER. 459 farious, 8 or he was joined through collusion in order to make out a ease of difference of citizenship; 9 and no notice of his objec- tion need be given to the other defendants, except in special eases, where- it is clearly for the latter's interest to detain him in the suit. 10 If a misjoinder is apparent on the face of the bill, it is more prudent to raise the objection specifically by motion or answer, stating the names of the parties improperly joined. 11 If the objection is not made until the hearing, the court may disregard it. 12 It cannot be raised for the first time upon ap- peal. When an objection that defendants have been improper- ly joined, as having no interest in the controversy, has been sus- tained, the plaintiff will always be allowed to amend by striking out their names. 14 In such a case, the dismissal does not affect the suit as against the remaining defendants. 15 Where a de- fendant is not an indispensable party, a dismissal as to him upon any ground does not necessitate a dismissal as to other defendants properly before the court. 16 If a bill is dismissed for a misjoinder of complainants and one of them appears to have a good cause for equitable relief, the dismissal must be without prejudice. 17 The subject of misjoinder is discussed in the next chapter under the head of ''Multifariousness.'" 18 8 Fed. 457: Mitzhener v. Robins (Miss.), ]9 S. R. 103. 8 Cherry v. Monro, 2 Bail). Ch. 618; infra, § 141. But see Missouri Broom Mfg. Co. et al. v. CJuymon, 115 Fed. 112. 9 Helm v. Zarecor, 222 U. S. 32. 35, 56 L. ed. 77, 79. 10 Anon., 9 Ves. 512: Hodson v. Ball. 11 Simons. 459; Calvert on Parties (2d ed.). 430. 11 Helm v. Zarecor, 222 U S. 32, 35. 50 L. ed. 77, 79. 12 Story v. Livingston. 13 Pet. 359. ID L. ed. 200: Fades v. Harris. 1 V. & C. X. R. 235: Raffety v. King, 1 Keen. 601; Mosley v. Tay- lor, cited in 1 Keen. 001 ; s. c, 2 Y. & J. 520: Calvert on I'arties (2d ed.), 156: Story's Eq. PI.. § 544. 13 Livingston v. Woodworth, 15 How. 540. 14 L. ed. 809: Hayes v. Pratt. 147 U. S. 557. 570. 37 L. e.l. 279. 284. 14 Tryon v. Westminster Improve- ment ConCrs, 6 Jurist (X. S.), 1324. 1 5 Ladew v. Tennessee Copper Co.. 179 Fed. 245. 16 Ladew v. Tennessee Copper Co., 179 Fed. 245: Irving v. joint Dist. Council. United Brotherhood of Car- penters. &c, 180 Fed. S90. "House v. Mullen. 22 Wall. 42, 22 L. ed. 838. IS /nfra, §§ 139-143. CHAPTER V. BILLS IN EQUITY. § 131. Informations. The first proceeding in a suit in equity is the preparation and filing of the first pleading. The suit is begun when the bill is filed. 1 This was either an infor- mation, a bill, or an information and bill. Formerly in Eng- land the attorney-general or solicitor-general could file an infor- mation on behalf of the crown, or of those who either as idiots and lunatics partook of its prerogative, or whose rights, as those in charities, were under its particular protection. The law officers of the royal consort had the same right. If the suit did not immediately concern the rights of the crown, a relator, who sustained and directed the litigation, who it seems might prevent the discontinuance of the suit by the Attorney-General without his consent, and who was responsible for the costs, was usually joined with the officer in whose name it was filed. The main distinction between an information and a bill was that, whereas the latter was in the form of a petition to the court, in the former the officer that filed it stated the case by way not of petition or complaint, but of information to the court of the rights which the crown claimed on behalf of itself or others, and of the invasion or detention of thos i rights for which the suit is instituted. If the relator had a personal interest in the relief sought, his personal complaint was joined to and in- corporated with the information given to the court by the officer of the crown; and the pleading was termed an infor- mation and bill.* The proceedings upon an information could only abate by the death or determination of interest of the § 131. » Farmers' L. & Tr. Co. v. PL. § 8; People v. North San Fran- Lake Street EL R. R. Co.. 177 U. ciseo Ass'n, 38 Cal. 564; Attorney- S. 51. 44 L. e defend its rights. 23 Ft has been held: that a State Attor- ney-Geneva] cannot maintain a suit to enjoin insurance com- panies from carrying out an agreement regulating their rates in restraint of trade. 24 A State chancellor refused to entertain an information filed in the name of the State Attorney-General on the relation of an alleged imbecile to set aside a conveyance; but he allowed the paper to be converted by amendment into a 1 > 1 11 tiled by the next friend of the alleged imbecile. 25 A State Mies in a court of the United States by a bill in equity in its own name. 26 "When the United States comes into a court of equity as a suitor it is subject to the defenses peculiar to that aourt.'" 27 It is subject to the rules of court. 28 including those regulating the time of tiling pleadings. 29 Such an information or bill should be tiled in the name of the United States, not in the name of one of its law officers. 30 If a bill be filed to impeach a patent or other grant by the United States and be not brought bv the Attornev-General, or some other officer authorized bv statute so to do. it should contain an allegation that the Attorney- General has ''given such order for its institution as will make him officially responsible for it. and show his control over the cause." 31 The signature of the Attorney-General subscribed to the bill is sufficient to show his authority for filing it. 32 Where the Attorney-General is disqualified, the bill may be signed by the Solietor-General and filed in his discretion. 33 R. Co.. 27 X. J. Eq. 1: s. c. 27 X. v. Williams, 113 Fed. S23. .1. Eq; 631. 27 l". S. v. White, 17 Fed. 561, 22 Attorney-General v. Central R. 565, i;.. ."id X. J. Fq. 52. 24 Atl. 064, 17 28 \\ S. v. Barber Lumber Co., L.R.A 07 -. Attorney-General v. Am. ]'69 Fed. 1S4. Tobacco Co.. 5.-. X. J. Fq. 352, 356, 29Ibid. :; Atl. «I71. !>77. 30 Benton v. Woolsey. 12 Pet. 27, 28 Attorney-General v. Butler, 123 L. ed. !>S7. Mass. .'.lie. SIMiller, J., in U. S. v. Tbrock- MMcCarter v. Fireman's Ins. Co.. raorton, 98 TJ. S. 61, 71. 25 L. ed. 93, 70 N. .1. Eq. 291, til At!. 705. 07. 25 Thompson v. Thompson. 6 32 rj s. v. Mullan, 10 Fed. 7S5; Houston i Del. i. 225. s. c. IIS V . S. 271, 30 L. ed. 170. 26 Supra, § 13. For a crossbill 33 r. S v. Am. Bell Tel. Co., 123 tiled in the name of a State r.r rr- U. S. 315, 32 L. ed. 450. hi Hunt- by private citizens, see Jack § 132] CLASSIFICATION. 4G5 § 132. Definition and classification of bills. The usual course, and the only one open to a private citizen, is the filing of a bill. The world "bill" is derived from the Latin libellus; and such a pleading is sometimes called an English bill ; because at the time when pleadings at common law were in Law Latin or Law French, it was as now written in the English language. 1 A bill is a petition addressed to the judges of a court of equity, containing a statement of the facts which in the plaintiff's opin- ion give him a right to sue, and concluding with a prayer for the relief to which he deems himself entitled. Qvis. quid, coram quo, quo jure petitur, et a quo. Recte compositus quisque libellus habct.2 Bills are divided by the books into three classes ; original bills bills not original, and bills in the nature of original bills. A fourth class, which may be termed original bills in the nature of bills not original, is recognized by the Federal courts. Original bills are those which relate to some matter not before litigated in the court of equity by the same parties standing in the same interests. Bills not original are those, which relate to some mat- ter already litigated in the court of equity by the same parties, or their representatives, and which are either an addition to or a continuance of an original bill, or both. 3 BilJs in the nature of original bills are those which serve to bring before the court the proceedings and decree in a former suit, for the purpose of either obtaining the benefit of the same or procuring the reversal of the decision made therein. 4 Original bills in the nature of bills not original are those having all the characteristics of origi- nal bills, except that the Federal courts will take jurisdiction of them without regard to the citizenship or the parties, or the other limitations of the original Federal jurisdiction. 5 Origi- nal bills are of two kinds: those which pray relief, and those § 132. 1 Story's Eq. PI., § 7. 2 Wall. 009, 17 L. ed. 886; Krippen- 2 Com. Dig., Chancery, E. 2. dorf v. Hyde, 110 U. S. 270, 28 L. 3 Quoted with approval in Anglo- ed. 345; Pacific R. Co. of Mo. v. Mo. Florida Phosphate Co. v. McKibben, Pac. Ry. Co., Ill U. S. 505, 28 L. C. C. A.. Co Fed. 529, 530, 531. ed. 498; Continental Tr. Co. v. To- «Mitford's PI., ch. ], § 2; Story's ledo, St. L. & K. C. R. Co., 82 Fed. Eq. PL, § 16. 642: supra. § 51. s Minnesota Co. v. St. Paul Co., Fed. Prac. Vol. I.— 30. 4GG BILLS 13" EQUITY. [§132 -which do not pray relief. Original bills which pray relief are said to belong to three classes : bills which pray the decree of the court concerning some right claimed by the plaintiff in opposition to some right claimed by the defendant, bills of interpleader, and bills of certiorari. Original bills not praying- relief are of two kinds: bills of perpetuate the testimony of witnesses, and bills of discovery. Bills not original are bills of revivor, supplemental bills and bills of revivor and supple- ment. Bills in the nature of original bills are bills in the nature of supplemental bills, bills in the nature of bills of revivor, cross-bills, bills of review, bills impeaching decrees upon the ground of fraud, bills to suspend the operation of decrees on special circumstances or to avoid them on the ground of matter subsequent, and bills partaking of the qualities of some one or more of these bills. 6 If the court has jurisdic- tion of an original bill, it will take jurisdiction of bills not original, and bills in the nature of original bills, growing out of the first suit, without regard to the citizenship of the par- ties thereto. 7 And in certain other cases it will take jurisdic- tion of bills otherwise original which are so intimately con- nected with matters before the Federal court that it is in the interest of convenience and justice to have them disposed of be- for the same tribunal. 3 These may be named original bills in the nature of bills- not original. They are usually called ancil- lary bills. 9 Such is a bill to obtain a judicial construction of previous decrees ; 10 a bill to obtain a determination of the rights of a claimant to a fund in the hands of a Federal marshal ; n a bill to stay proceedings at law ; 12 and a bill to set aside a decree. 13 The peculiarities in the form and the procedure upon SMitford's PL, ch. 1, § 2; Story's Eq. PL, §§ 16-24. 7 Clarke v. Mathewson, 12 Pet. 164, 9 L. ed. 1041 ; Jones v. An- drews, 10 Wall. 327, 333, 19 L. ed. 935, 937; Pacilic R. Co. of Mo. v. Mo. Pac. Ry. Co., Ill U. S. 505, 28 L. ed. 498. See § 53. 8 Minnesota Co. v. St. Paul Co., 2 Wall. 609, 17 L. ed. 886. 9 Supra, § 53. 10 Minnesota Co. v. St. Paul Co., 2 Wall. 609, 17 L. ed. 886. "Krippendorf v. Hyde, 110 U. S. 276; Freeman v. Howe, 24 How. 450, 16 L. ed. 749. 12 Logan v. Patrick, 5 Cranch, 288, 3 L. ed. 103; Dunn v. Clarke, 8 Pet. 1, 8 L. ed. 845; Jones v. An- drews, 10 Wall. 327, 333, 19 L. ed. 935, 937; Dunlap v. Stetson, 4 Ma- son. 349. 13 Pacific R. Co. of Mo. v. Mo. Pac. Ry. Co., Ill U. S. 505, 28 L. ed. 493. 133] FRAME. 4G7 original bills not praying relief, bills not original, and bills in the nature of original bills, will be discussed in the latter part of this work. In this chapter, the form of original bills praying relief and, in the chapters immediately succeeding, the proceedings upon them, will be explained, beginning with the ordinary kind, — bills which seek relief concerning some right claimed by the plaintiff in opposition to one claimed by the defendant. § 133. Frame of a bill in equity. Formerly, bills usually consisted of nine parts: the direction or address, the intro- duction, the premises or stating part, the common-confeder- acy clause, the charging part, the jurisdiction clause, the interrogating part, the prayer of relief, and the 'prayer of pro- cess. 1 Of these, however, the common confederacy clause, alleg- ing that the defendant or defendants are combining and con- federating with some persons to the plaintiff unknown, whose names when discovered he prays leave to insert as defendants, which owed its origin to an idea that otherwise the bill could not be amended so as to add new defendants, and its retention to the practice of taxing costs according to the length of the documents filed ; the charging part, alleging the defense which it anticipated would be made by the defendant, and the reply which the plaintiff intended to make therto; and the juris- diction clause, alleging that the acts of the defendant which were complained of were contrary to equity, and that the plain- tiff was without any remedy at law : were not even then con- sidered necessary by the best authorities, 2 and by the equity rules of 1842 they were expressly declared superfluous. 3 The equity rules of 1912 have obviated the necessity of the address, 4 § 133. iMitford's PL, ch. 1, § 3; Story's Eq. PI., §§ 26-48. 2 M it ford's PI., ch. ], § 3; Lang- dell's Eq. PI.. § 55; Story's Eq. PL. §§ 20, 32, 33, 34; Comstock v. Herron, 45 Led. 600. 3 Rule 21 of 1842. *Eq. Pule 25. By the Equity Rules of 1842. -20. Every bill in the introductory part thereof, shall con- tain the names, places of abode, and citizenship of all the parties, plain- tiff's and defendants, by and against whom the bill is brought. The form, in substance, shall be as follows: 'To the judges of the circuit court of the United States for the dis- trict of : A. P., of , and a citizen of the State of brings this his bill against C. D., of , and a citizen of the State of , and E. F., of — , and a citizen of the State of And there- upon your orator eomplains and says that,' etc." 468 BILLS IX EQUITY. [§ 133 the interrogating part 5 and the prayer of process. 6 "Hereafter it shall be sufficient that a bill in equity shall contain in addition to the usual caption : First, the full name, when known, of each plaintiff and de- fendant, and the citizenship and residence of each party. If any party be under any disability that fact shall be stated. 5 The old form was as follows: "To the end, therefore, that the said A. B. and the rest of the confed- erates, when discovered, may, upon their several and respective corpo- rate oaths, full, true, direct, and perfect answer -make to all and singular the matters hereinbefore stated and charged, as fully and particularly as if the same were hereinafter repeated, and they thereunto distinctly interrogated; and that not only to the best of their respective knowledge and re- membrance, but also as to the best of their several and respective in- formation, hearsay and belief; and more especially that they may an- swer and set forth whether, etc.; or they may set forth and discover whether they do not know, have heard, or are informed, and in their conscience believe that," &c. Sto- ry's Eq. PL, § 35, note 2. "41. By the equity rules of 1842 the inter- rogatories contained in the interro- gating part of the bill must be di- vided as conveniently as may be from each other, and numbered con- secutively 1, 2, 3, etc.; and the in- terrogatories which each defendant is required to answer shall be speci- fied in a note at the foot of the bill, in the form to the effect following, that is to say: 'The defendant (A. B.) is required to answer the inter- rogatories numbered respectively 1, 2 : 3, etc.'" "42. The note at the foot of the bill, specifying the in- terrogatories which each defendant is required to answer, shall be con- sidered and treated as part of the bill; and the addition of any such note to the bill, or any alteration in or addition to such note after the bill is filed shall be considered and treated as an amendment to the bill." "43. Instead of the words of the bill now in use preceding the interrogatory part thereof, and be- ginning witli the words 'to the end, therefore,' there shall hereafter be used words in the form or to the effect following: 'To the end, there- fore, that the said defendants may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their several corporate oaths, and according to the best and utmost of their several and respective knowledge, remem- brance, information, and belief, full, true, direct, and perfect answer make to each of the several inter- rogatories hereinafter numbered and set forth, as by the note hereunder written they are respectively re- quired to answer; that is to say, — " 'Whether, etc. " 'Whether, etc' " 6 Equity Rules of 1842." "23. The prayer for process of subpoena in the bill shall contain the names of all the defendants named in the in- troductory part of the bill, and if any of them are known to be infants under age, or otherwise under guardianship, shall state the fact, § 135] ixteoductiox. 469 Second, a short and plain statement of the grounds upon which the court's jurisdiction depends. Third, a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere state- ments of evidence. Fourth, if there are persons other than those named as de- fendants who appear to be proper parties, the bill should state why they are not made parties— as that they are not within the jurisdiction of the court, or cannot be made parties without ousting the jurisdiction. Fifth, a statement of and prayer for any special relief pend- ing the suit or on final hearing, which may" be stated and sought m alternative forms. If special relief pending the suit be desired the bill should be verified by the oath of the plaintiff, or someone having knowledge of the facts upon which such relief is asked." 7 § 134. Address and Caption. In England, a bill in chancery was required to be addressed to the person having the custody of the great seal, usually either the sovereign, or the Lord Chancellor, except when the Lord Chancellor himself was the complainant, when it was addressed to the sovereign "in his high court of chancery." 1 In the United States, as a great seal is not, as in England, essential to the validitv of writs in equity, before the Equity Eules of 1912, a bilfwas addressed to the judge or judges of the court where it is filed. 2 The Equity Kules of 1912 in prescribing the requirements of a bill in equity, omit therefrom the address, but require the usual caption. 3 The caption should state the name of the court, including the district and division and the names of each of the parties. § 135. Introduction and Jurisdictional Averments. The introduction formerly contained the names, descriptions, and residences of the complainants, together with the character so that the court may take order without repeating the same in the thereon as justice may require upon praver for process." the return of the process. If an in- 7 Eq. Rule 25. junction or a writ of ne exeat regno, § 134. 1 Mitford's PI., ch. 1, § 3- or any other special order pending Story's Eq. PL, § 26. the suit, is asked for in the prayer 2 Eq. Rule 20 of 1842 for relief, that shall be sufficient, 8 Eq. Rule 25 470 BILLS IN EQUITY. [§ 135 in which they sued, if in a representative capacity, and such other allegations as were necessary to found the jurisdiction of the court. 1 Sometimes the names and descriptions of the defendants were also here inserted, but it was more usual to name them in the next part of the bill. 2 The Equity Rules of 1842 regulated the subject as follows: "Every bill in the introductory part thereof shall contain the names, places of abode, and citizenship of all the parties, plaintiffs and defend- ants, by and against whom the bill is brought. The form, in substance, shall be as follows: 'To the judges of the Circuit Court of the United States for the district of ; A. B., of , and a citizen of the State of , brings this his bill against C. D., of , and a citizen of the State of , and E. E., of , and a citizen of the State of And there- upon your orator complains and says that, etc." The Equity Rules of 1912 provide: that a bill in equity shall contain "First, the full name, when known, of each plaintiff and defendant and the citizenship and residence of each party. If any party be under any disability that fact shall be stated. Second, a short and plain statement of the grounds upon which the court's jurisdiction depends. * * * Fourth, if there are persons other than those named as defendants who appear to be proper parties, ttie bill should state why they are not made parties — as that they are not within the jurisdiction of the court, or cannot be made parties without ousting the jurisdiction." * Where there are two districts in a State, the bill must show in which district a party resides. 6 An allegation of residence without an allegation of citizenship is insufficient. 6 So is an allegation that plaintiff is "of," 7 or is § 135. IMitford's PI., ch. 1, § 3; Story's Eq. PI., § 2(3. 2 Story's Eq. PI., § 26. Contra, Leavenworth v. Pepper, 32 Fed. 718. 3Eq. Rule 20 of ]S42. 4 Eq. Rule 25. 5 Harvey v. Richmond & M. Ry. Co., 64 Fed. 19. 6 Tug River C. & S. Co. v. Brigel, 67 Fed. 625; Robertson v. Cease, 97 U. S. 646, 24 L. ed. 1057: Pacific Postal Tel. Co. v. Irvine. 49 Fed. 113; Stockwell v. Boston & M. R Co., 131 Fed. 152; Atchison. T. & S. F. Ry. Co. v. Frederiekson, C. C A., 177 Fed. 206; M'Eldoyney v Card, 193 Fed. 475; Gaugler v. Chi cago, M. & P. S. Ry. Co., 197 Fed 79; International Bank & Trust Co v. Scott, C. C. A., 159 Fed. 58, hold- ing that such a defect is not cured by an admission in an answer that "plaintiff" is a resident citizen of a foreign country, the reference beinjr § 135] INTRODUCTION. 471 a bona fide resident of, 8 a certain State ; but a description of a party as a citizen of a certain county in a specified State was held to be sufficient to describe him as a citizen of the State and a resident of the countv. 9 Where a bill recited facts to show diversity of citizenship without making distinct the traver- sible averments of such diversity, it was held to be sufficient. 10 So it was held : that, in view of the Fourteenth Amendment, an allegation that a plaintiff was a citizen of the United States and a resident of a specified State therein, was sufficient to show that he was a citizen of such State. 11 Where the plain- tiffs sue as executors or administrators, it is insufficient to allege that letters of administration or letters testamentary had been taken out in a specified State 12 or "that said plain- tiffs as such executors, are citizens" of a specified State ; 13 but it was held to be sufficient to aver that the defendants, "as they are the qualified executors of the last will and testament of James Brown, deceased, were, each and all, at the time of the commencement of this suit, and still are, citizens of the State of ISTew York; and that the defendant John S. Schultze, also a qualified executor of the last will and testament of James Brown, deceased, was then, and still is, a citizen of the State of New Jersey." 14 If one of the parties is a corporation, the bill must state by or under the laws of what State it was created, and its members will then be conclusively presumed to be citizens of that State. 15 An allegation that a corporation is a citizen of , 16 or that it is "duly established by a law. to the liquidating committee of a bank, which had instituted a suit, and not to the individuals compos- ing the same, who were the real plaintiffs. 7 Yeandle v. Pennsylvania R. Co., C. C. A., 169 Fed. 938. 8 Koike v. Atchison, T. & S. F. Ry. Co., 157 Fed. 623. 9 Gruetter v. Cumberland Tele- phone & Telegraph Co., 181 Fed. 248. But see Stuart v. Easton, 156 U. S. 46, 39 L. ed. 341; Hennessy v, Richardson Drug Co., 189 U. S. 25, 47 L. ed. 697. 10 Gorham Mfg. Co. v. Weintraub. 176 Fed. 927. 11 Clausen v. American Ice Co., 144 Fed. 723. 12 Yeandle v. Pennsylvania R. Co., C. C. A. 169 Fed. 938. 13 Amory v. Amory, 95 U. S. 186, 24 L. ed. 428. l* Cooke v. Seligman, 7 Fed. 263. 15 Lafayette Ins. Co. v. French. 18 How. 404, 15 L. ed. 451; Muller v. Dows, 94 U. S. 444, 24 L. ed. 207 ; Steamship Co. v. Tugman, 106 U. S. 118, 27 L. ed. 87. 16 Thomas v. Board of Trustees 472 BILLS IN EQUITY. [§ 135 having its principal place of business" 17 in a specified State or that it "claims to be*' a corporation organized under the laws of a specified State, as a company of a specified character, 18 or that it is a "joint stock company," duly organized and exist- ing under the laws of a specified State and a citizen thereof, 19 is insufficient. The pleading should allege that it was created by or under the laws of such State, 20 or at least that it was or- ganized 21 under the laws thereof. An allegation that a party was a corporation under the laws of the State of Virginia, and a citizen of Virginia, and a resident of the Western District thereof, was held to be good. 22 It has been held : that the fact that the residence of a corporation is at a certain place cannot be inferred because the name of that place is part of the corporate name. 23 If one of the parties is an alien, the bill should aver that he is "a citizen and subject of a foreign State," specifying that State's name. 24 An allegation" that a party is "a citizen of London, England," 25 was held to be insuffi- cient to show that he was an alien; but the averment that the complainants are "all of Cognac, France, and citizens of Ohio State University, 10.5 U. S. 207, 49 L. ed. 160: Lonergan v. Illi- nois Cent. R. Co., 55 Fed. 550; Fris- bie v. Chesapeake & 0. R. Co., 57 Fed. 1 ; De Loy v. Traveler's Ins. Co., 59 Fed. 319; American S. R. Co. v. Johnson, 60 Fed. 503; Wink- ler v. Chicago & E. I. R. Co., J 08 Fed. 305; Dalton v. Milwaukee Me- chanics' Ins. Co., IIS Fed. 876; Knight v. Lutcher & Moore Lumber Co., 130 Fed. 404. Supra, § 48. infra, § 1. 17 X. Y. & X. E. R. Co. v. Hyde, C. C. A., 56 Fed. 188, 191. 18 Lownsdale v. Gray's Harbor Boom Co., 117 Fed. 983. 19 Rountree v. Adams Express Co., C. C. A., 165 Fed. 152. For what is a sufficient allegation of the citi- zenship of members of a partner- ship, see Derk P. Yonkerman Co. v. C. H. Fuller's Ad. Agency, 135 Fed. 613. 20 Lonergan v. Illinois Cent. R. Co.. 55 Fed. 550. 21 Sun Pr. & Pub. Ass'n v. Ed- wards, 194 U. S. 377, 4S L. ed. 1027: Ward v. Blake Mfg. f'oj C. C. A., 56 Fed. 437. 22 Mathieson Alkali Works v. Mathieson. C. C. A., 150 Fed. 2-11. 23 Harvey v. Richmond & M. Ry. Co., 64 Fed. 19. 24 Wilson v. City Bank, 3 Sumner, 422. 25 Stuart v. Easton, 156 U. S. 46, 39 L. ed. 341. But in Mahoning Valley Ry. Co. v. O'Hara, C. C. A.. 196 Fed. 945, held that an averment that plaintiff "is now, and at all times hereinafter mentioned was. a citizen of Ireland." was a sufficient allegation that he was an alien. § 135] INTRODUCTION. 4T3 of the Republic of France/' was held to be adequate. 28 An allegeation that the State of which a party is a citizen is un- known, is insufficient when the jurisdiction is claimed for difference of citizenship. 27 Where a bill or a common-law pleading is filed or served subsequent to the commencement of the suit, it should aver the citizenship of the parties at the time the suit was commenced as well as in the present tense. 28 It has been held, that an allegation that a corporation has a place of business within the district, when admitted in the answer, relates to the time when the suit was brought. 29 How advantage could be taken of an omission in the introduction of the resi- dence of the parties, whether by demurrer or simply by a motion for security for costs, was, under the old practice, a doubtful question. 30 It was held : that a bill was not de- murrable for the failure to state the residence of a party ; 31 and that where the jurisdiction does not depend upon a differ- ence of citizenship, such as a case arising out of the bankruptcy laws, an omission to aver the citizenship of the parties does not make the bill demurrable, but that the objection can be made by motion only ; 32 and that an allegation of the residence of the parties is not required in a pleading at common law. 33 The bill was certainly demurrable if enough did not appear upon its face to show the court's jurisdiction. 34 It has been suggested that a defect in this respect in the introductory part of a bill is not cured by an allegation in its title or caption. 35 It has been said that no one can be made a defendant under a 26 Hennessy v. Richardson Drug Co., 189 U. S. 25, 47 L. ed. 697. 27 Tug River C. & S. Co. v. Bri- gel, 67 Fed. 625. 28 Lackey v. Newton Min. Co., 56 Fed. 628. 29 Streat v. Am. Rubber Co., 115 Fed. 634. 30 Rowley v. Eccles. 1 Sim. & S. 511 ; Daniell's Ch. Pr. (2d Am. ed.) 409. 31 Vermont Mach. Co. v. Gibson, 50 Fed. 233; (a patent case) ; Har- yey v. Richmond & M. Ry. Co., 64 Fed. 19; (a case of difference of citizenship) ; Wright v. Skinner, 136 -Fed. 694; (a bankruptcy case). 32 Wright v. Skinner, 136 Fed. 694. 33 Bait. & 0. R. Co. v. Doty, C. C. A., 133 Fed. 866. 34 Bingham v. Cabot, 3 Dall. 382, 1 L. ed. 646; Jackson v. Ashton, 8 Pet. 148, 8 L. ed. 898; U. S. v. Pratt C. & C. Co., 18 Fed. 708; Lackey v. Newton Min. Co., 50 Fed. 634. 35 Jackson v. Ashton, 8 Pet. 148, 8 L. ed. 898. See Sharon v. Hill, 23 Fed. 353; Railway Co. v. Ram- sey, 22 Wall. 322, 22 L. ed. 823; Berger v. Sperry, 95 U. S. 401, 24 474 BILLS IN EQUITY. [§ 135 fictitious name ; 36 but in an English ease where the parents of an infant, who was a necessary defendant to a bill, refused to have her baptized in order to interpose difficulties in the plain- tiff's way, Sir John Leach ordered that she should be described as the youngest female child of A. B. (naming her father) and C. D. (naming her mother). 37 Where the complainant is assignee of the cause of action, it is the safer practice to allege the citizenship of his assignor. 38 An admission on the trial of "the liability of defendant in this case and everv- thing as alleged except the measure of damages," is in- sufficient to show the jurisdiction of the court. 39 Where the jurisdiction does not depend upon difference of citizenship, the bill should state, here or elsewhere, the facts showing that it arises under the Constitution or laws of the United States or is justified by some other Federal statute. 40 The bill should also state, here or elsewhere, the facts which show that the matter in dispute exceeded the jurisdictional amount, 41 a t the time when suit was brought, 42 unless the case be one of which the District Courts of the United States takes jurisdiction, irrespective of the value of the matter in dispute. 43 The alle- gation is not insufficient because it uses the word "amount," instead of "matter" in dispute. 44 Upon a bill for an injunc- tion, where the amount involved cannot be deduced from the facts alleged, a simple allegation that the right sought to be L. ed. 390: Robertson v. Cease. 97 U. S. 640, 24 li. ed. 1057: Gordon v. Third Nat. Bank, 144 U. S. 97, .36 L. ed. 360. 36 Kentucky S. Mining Co. v. Day, 2 Sawyer C. C. 468. 37 Ely v. Broughton, 2 Sim. & S. 188, 38 Parker v. Ormsby. 141 U. S. 81. 35 L. ed. 654; U. S. Nat. Bank v. McNair, 56 Fed. 323; Kolze v. Hoadley, 200 U. S. 76, 83, 50 L. ed. 377; J. J. McCaskill Co. v. Dickson, C. C. A., 159 Fed. 704. See supra, § 63. 39 Grand Trunk Western By. Co. v. Reddick, C. C. A., 160 Fed. 898. 40 Supra, §S 34-39. « IL S, v. Pratt C. & C. Co., 18 Fed. 708: Murphy v. East Portland, 42 Fed. 308: Olson v. Nor. R. Co., 43 Fed. 112; Lehigh Z. & I. Co. v. N. J. Z. & I. Co., 43 Fed. 545, 546; Strasburger v. Beecher, 44 Fed. 200: Back v. Sierra N. C. M. Co., 46 Fed. 673: Harvey v. Raleigh & G. R. Co.. 89 Fed. 115: Yellow A. M. & M. Co. v. Winchell. 95 Fed. 213; Evenson v. Spaulding. 150 Fed. 517 : Southern Land & Timber Co. v. Johnson, 156 Fed. 246; supra, § 6. 42 Strasburger v. Beecher, 44 Fed. 209. 43 Supra, § 5. 44 Blackburn v. Portland Gold- Min. Co., 175 U. S. 571, 44 L. ed. 276. § 136] NARRATIVE PART. 475 protected is of the value of more than three thousand dollars, exclusive of interest and costs, will usually be sufficient. 45 When the test of the value of the matter in dispute was stock in a corporation, it was presumed that the same was worth par, in the absence of allegations to the contrary. 46 Although this part of the bill should contain the statement that the com- plainant sues on behalf of others as well as himself, if he in- tends so to do, it has been suggested that this might not be necessary when his case is founded upon a statute "which it- self gives that force and direction to the bill." 47 § 136. The narrative part of a bill. The most important portion of a bill in equity is the narrative or stating part, other- wise called the stating part. This contains the plaintiff's cause of action. The Equity Rules of 1912 provide: that it shall consist of "a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere state- ment of evidence." * "It should set forth the plaintiff's case in a clear and distinct narrative, with the facts relied upon as the basis of the suit. For convenience, each paragraph should be numbered, so that the successive allegations may be readily referred to. 2 The objection of old common-law pleading was to bring the matter in controversy to certain distinct issues. In equity pleading no such attempt was made. The statement of the plaintiff's case in the bill differs little in language or form from any other statement of facts which might be drawn up for the information of third parties, say an application to a government board. The defendant's answer usually admits, or denies, or qualifies seriatim each statement in the bill; and occasionally, before proceeding to notice the statement in detail, the defendant gives a general history of the case from his own point of view. The issues, both of fact and of law, are thus often involved in large masses of statement, and had to be 45 Texas & P. Ry. Co. v. Kuteman, 46 Bernier v. Griscom-Spencer Co., C. C. A., 54 Fed. 547. See Hyde v. 2 61 Fed. 438. Victoria Land Co., 125 Fed. 970; 47 Irons v. Manufacturers' Nat. Louisville & N. R. Co. v. Smith, C. Bank, 17 Fed. 308. C. A., 128 Fed. 1, 5; Southern Cash § 13G. 1 Fq. Rule 25. Register Co. v. National Cash Regis- 2 An omission to do this will not ter Co., 143 Fed. 659; Spaulding v. be a defect in pleading. Evenson, 149 Fed. 913. See, also, supra, § 13. 476 BILLS IN EQUITY. [§ 136 selected, so to speak, by the judge who tried the cause, with the assistance of the arguments of counsel. It would be diffi- cult to imagine a less technical document than a bill in equity." 3 "A bill in equity is not to be read and construed as an indictment would have been read and construed a hundred years ago, but it is to be taken to mean what it fairly conveys to a dispassionate reader by a fairly exact use of English speech." 4 The bill must contain every fact essential to the plaintiff's cause of action, for no evidence will be admitted or considered to prove any fact not alleged in it. 5 It must plead every fact essential to the rights of the plaintiff, and necessarily within his knowledge, positively, not upon information and belief, 6 and with certainty. 7 Otherwise, it is defective. It was said, in a case at common law, to be an elementary rule in pleading, that when a state of facts is relied upon, it is enough to allege it simply without setting out the subordinate facts which are the means of proving it or the evidence sustaining the allegation. 8 Facts not necessarily in the complainant's knowledge he may allege "as your orator is informed and be- lieves, and therefore avers." 9 Or 'Sour orator further shows on 3 Lectures before the Law School of Boston University on Equity Pleading by Judge Dwight Foster, MS. See Hayne, Eq. 70. 4 Swift & Co. v. U. S., 106 U. S. 375, 305, 25 Sup. Ct. 27G, 40 L. ed. 518; per Holmes, J.: "After all the specific charges there is a general allegation that the defendants are conspiring with one another, the railroads and others, to monopolize the supply and distribution of fresh meats throughout the United States, etc., as has been stated above, and it seems to us that this general al- legation of intent colors and applies to all the specific charges of the l.ill." See Prindle v. Brown, C. C. A.. 155 Fed. 531. 533: Ware-Kramer Tobacco Co. v. Am. Tobacco Co., 180 Fed. 160. 5 Cordon v. Cordon. 3 Swanst. 400, 472: Miller v. Cotten. 5 Ga. 341, 346; Wilson v. Stolley, 4 Mc- Lean, 275; Crocket v. Lee, 7 Wheat. 522, 5 L. ed. 513; Jackson v. Ashton, 8 Pet. 14S. 8 L. ed. 80S: Henry v. Suttle, 42 Fed. 91: Phi! lipps v. Phillipps, 4 Q. B. D. 127. 133. 6 Lord Uxbridge v. Staveland. 1 Yes. Sen. 56: Egremont v. Cowell, 5 Beav. 620; Gaines & Co. v. Stroufe, 117 Fed. 965; Mitford's PI. 40; Story's Eq. PL, §§ 255, 256. 7 Harrison v. Dixon, 9 Pet. 483, 503, 9 L. ed. 201, 208; Worniahl v. De Lisle, 3 Beav. IS: Brooks & Hardy v. O'Hara Brothers. 8 Fed. 529: Daniell's Ch. Pr. (2d Am. ed.) 421-425: infra, § 137. 8 Williams v. Wilcox. 8 A. & E. 314, 331. per Denman. C. J. See Steuart v. Gladstone, 10 Ch. D. 644. 9 Coryell v. Klehn. 157 111. 462; s. c, 41 X. E. 64; Wyckoff v. Wag- ner T. Co., 88 Fed. 515. § 136] NARRATIVE PART. 477 information and belief." 10 An allegation "as your orator is informed and believes" was said to be bad. 11 So was an alle- gation upon belief. 12 It is the safer practice to set forth in the bill any facts which justify delay in the commencement of the suit or which would take the case out of the bar of the statute of limitations, if that might otherwise apply. 13 Under the former practice, where the complainant anticipated a defense which could only properly be met by pleading new matter, it was necessary to set up the same by way of confession and avoidance in his bill. 14 This was originally inserted in the charging part, "It usually consists of some allegation or alle- gations which set forth the matters of a defense or excuse which it is supposed the defendant intends or pretends to set up to justify his noncompliance with the plaintiff's right or claim, and then charges other matters, which disprove or avoid the supposed defense or excuse. It is sometimes also used for the purpose of obtaining a discovery of the nature of the defend- ant's case, or to put in issue some matter which it is not. for the interest of the plaintiff to admit; for which purpose the charge of the pretense of the defendant is held to be suffi- cient." 15 This was more recently, when considered to be necessary, inserted in the narrative part of the bill. 16 Illus- trations of such cases are : a prior patent ; 17 and, it seems, an 10 Elliott & Hatch Book-Type- writer Co. v. Fisher Typewriter Co., 109 Fed. 330'; Murray Co. v. Con- tinental Gin Co., 126 Fed. 533, a charge of the infringement of a pat- ent. See Boyd v. Thayer, 143 U. S. 13.5, 3G L. ed. 103. 11 Wyckoff v. Wagner Typewriter Co., 88 Fed. 515; Dupree v. Leg- gette, 140 Fed. 77G. 12 Rubber T. Co. v. Davie, 100 Fed. 85. But see Leavenworth v. Pepper. 32 Fed. 718: Kelley v. Bcettcher, C. C. A., 85 Fed. 553; Curran v. Campion, 85 Fed. 07. 13 Edison El. Light Co. v. Printa- ble Life Assur. Soc. of U. S., 55 Fet be multifarious. Multifariousness consists in the joinder of two or more distinct and unconnected grounds for equitable relief, each of which might be the foundation for a separate bill. This may occur in three ways, — by a misjoinder of plaintiffs, by a misjoinder of defendants, and by a misjoinder of grounds fur equitable relief held by and against the same parties. 2 "To lay down any rule applicable universally, or to say what constitutes multifariousness as an abstract proposition is, upon the author- ities, utterly impossible. The cases upon the subject are ex- tremely various, and the court in deciding them seems to have considered what was convenient in particular circumstances, rather than to have attempted to lay down any absolute rule." 3 "The only way of reconciling the authorities upon the subject is by adverting to the fact that, although the books speak gener- ally of demurrers for multifariousness, yet in truth such demur- rers may be divided into two distinct kinds. Frequently the ob- Brewster, 4 Paige (X. Y.) 537; §139. 1 Eq. Rule 26. Mott v. Mott, 49 N. J. Eq. 177; 2 Calvert on Parties, Book I, Ch. s. c, 22 Atl. 997. But see Jackson vii. v. Rowell, 87 Ala. 6S5, 4 L.R.A. 3 Lord (Tottenham in Campbell v. 637; supra, § 137. Maekay, 1 M. & Cr. 603, 618. 26 r. S. v. Atclimson, T. & S. F. Rv. Co. 142 Fed. 176. § 139] DOUBLE ASPECT. 491 jection raised though termed multifariousness, is in fact more properly misjoinder; that is to say, the cases or claims united in the bill are so different a character that the court will not per- mit them to be litigated in one record. It may be that the plain- tiffs and defendants are parties to the whole of the transac- tions which form the subject of the suit, and nevertheless these transactions may be so dissimilar that the court will not allow them to be joined together, but will require distinct records. But what is more familiarly understood by the term 'multi- fariousness' as applied to a bill, is where a party is able to say he is brought as a defendant upon a record, Avith a large portion of which, and of the case made by which he has no connection whatever." 4 There is, however, little practicable good to be obtained from a maintenance of this distinction except as a means of elucidating some of the expressions in the earlier au- thorities. 5 "The decisions on this subject are contradictory and unsatisfactory. The common-sense rule in such cases is that an individual shall not be called to maintain his title or shall not assert it in connection with others to which it has no analogy, and in the investigation of which the costs and com- plexity of the case will be increased." 6 It has been said that 4 Lord Cottenham in Campbell v. Mackay, 1 M. & Cr. 603, 018. Ap- proved in Shields v. Thomas, 18 How. 233, 259, 15 L. ed. 368, 370. 5 See Calvert on Parties. Book I, oh. vii. 6 McLean, J., in Turner v. Am. Baptist Missionary Union, 5 Mc- Lean, 344, 349. The following rule laid down by Mr. Gibson in his Suits in Chan- cery, section 292, was quoted with approval by Judge Jenkins in Von Auw v. Chicago T. & F. G. Co., 69 Fed. 448: "To make a bill demur- rable for multifariousness it must contain all of the following char- acteristics. First, two or more causes of action must be joined against two or more defendants; second, these causes of action must have no connection or com- mon origin, but must be separate and independent; third, the evi- dence pertinent to one or more of the causes must be wholly imper- tinent as to the other or others; fourth, one or more of the causes of action must be capable of being fully determined without bringing in other cause or causes to adjust any of the legal or equitable rights of the parties; fifth, the decree as to one or more of the separate* or independent causes must be conclu- sive against one or more of the de- fendants, and the decree proper as to the other cause or causes, must be conclusive against the other de- fendants or defendant; sixth, the relief proper against one or more of the defendants in one or more of the separate and independent causes of action must be distinct from the re- 492 BILLS IN EQUITY. [§ 140 the fact that separate decrees may be requisite in order to afford complete relief does not necessarily make the bill multifarious. 7 § 140. Multifariousness by misjoinder of plaintiffs. The Equity Rules of 1912 provide: "When there is more than one plaintiff, the causes of action joined must be joint, and if there be more than one defendant the liability must be one as- serted against all of the material defendants, or sufficient grounds must appear for uniting the causes of action in order to promote the convenient administration of justice." x It has not yet been decided whether this last clause modifies the whole sentence or only that which refers to the joinder of defendants. It consequently is uncertain whether it affects so much of the former practice as permitted a joinder of plaintiffs, who had a common interest in the relief sought. In England, a party can- not now unite in the same suit claims which ho holds in two dif- ferent capacities unless connected. 2 In Xew York, it was held, where the plaintiff prayed the same relief both individually and as executor upon the same cause of action, which appeared upon the face of his complaint to be for the benefit of the testator's es- tate, that there was no misjoinder of parties or of causes of action. 3 Xo persons can unite as complainants in a bill in equity unless they have a joint or common interest in obtaining the same relief. Thus, if one of them has no interest in the relief claimed, the bill is demurrable. 5 Those who claim the return of money paid by them severally on distinct promissory notes cannot join their claims in the same bill ; 6 nor can several cred- lief proper against the other defend- ant or defendants of the other cause of action; seventh, the satis- faction of the proper decree by any of the defendants to the extent of Iiis- alleged liability on any one or inore of the distinct causes of ac- tion must not be a satisfaction of a proper decree against the other de- dendant or defendants, or the other cause or causes of action; and eighth, the multifariousness must be apparent, and the misjoinder of dis- tinct causes of action manifest." T-Nea] v. Rat bell, 70 Md. 592; S. C 17 Atl. 566. § 140. lEq. Rule 26. 2 Order xvm. 3 Moss v. Coehn. 158 N. Y. 240. See Metropolitan Trust Co. v. Co- lumbus, S. & H. R. Co., 93 Fed. 689. 4 Story's Eq. PL, § 279; Calvert on Parties ('2d ed.), 105, 110. 5 Walker v. Powers, 104 U. S. 245, 249, 26 L. ed. 729, 731; Doggett v. Railroad Co., 99 U. S. 72, 25 L. ed. 301. Contra, Havens v. Burns, 188 Fed. 441. 6 Yeaton v. Lenox, 8 Pet. 123, S L. ed. 8SQ- 140] MISJOINDER OF PLAINTIFFS. 493 itors claiming under several obligations unite in a suit to at- tach the -debts of an absent debtor. 7 Persons who have been defrauded of stock in a corporation by the same parties who promised it to them before the organization of the corporation cannot join in a bill to compel the issue of the stock to each of them. 8 Persons who have been separately indicted for similar acts committed while acting as agents for the same principal cannot join in a bill to enjoin the further 'prosecution of the indictments. 9 Put in a bill to compel specific performance of a decree in a former suit, all the complainants in the first suit may join as plaintiffs, though the decree sought to be enforced orders the payment of specific sums severally to each of them. 10 Several fire insurance companies were allowed to unite in a bill to set aside one award against them upon an arbitration of claims by the same person under several policies ; n and to en- join the prosecution of separate actions at law, brought by the same plaintiffs against them and other insurance companies to recover upon policies on the same property, which provided for a proportional liability, where the same defense had been inter- posed to each action, 12 but not where they had issued concur- rent policies upon the same policy, the liability of each being independent of that of the rest. 13 Plaintiffs with conflicting interests cannot so join. 14 Such are, in a suit for the construc- 7 Ibid. But see Norris v. Hassler, 22 Fed. 401 ; Langdon v. Branch, 37 Fed. 449. 8 Summerlin v. Fronterizac S. M. & M. Co., 41 Fed. 249. 9 Woolstein v. Welsh, 42 Fed. 566. 10 Shields v. Thomas, 18 How. 253, 15 L. ed. 368. It has been held that this rule does not extend to a bill for specific performance of a contract to convey real estate in which the complainants hold dis- tinct rights to separate lots. Mar- selis v. Morris & L. Co., 1 N. J. Eq. 31, 39. 11 Hartford Fire Ins. Co. v. Bon- ner, 11 L.R.A. 623, 44 Fed. 151. 18 Virginia-Carolina Chem. Co. v. Home Ins. Co., C. C. A., 113 Fed. 1. 13 Rochester German Ins. Co. v. Schmidt, C. C. A., 175 Fed. 720. "Walker v. Powers, 104 U. S. 245, 26 L. ed. 729; Saumarez, v. Saumarez, 4 Mylne & Cr 331, 336: Parsons v. Lyman, 4 Blatchf. C. C. 432 ; Bell v. Cureton, 2 M. & K. 503 ; Stebbins v. St. Anne, 116 U. S. 386, 29 L. ed. 667; Brown v. Bedford City L. & I. Co. 91 Va. 31, 20 S. E. 968. A bill was held multifarious where all the complainants sought as taxpayers to enjoin a defendant town from purchasing the plant of a defendant waterworks company, and one complainant further sought, as a stockholder in that company, to enjoin the sale on the ground of inadequacy of price. Peabody v. 494 BILLS IN EQUITY. [§ i±o tion of a will, persons, each of whom is interested in having a different construction put upon it. 15 Xor can two join in a bill to set aside a fraudulent conveyance of land, of whom one claims the land as a creditor of the person who has made the conveyance, and the other as the purchaser of the land upon a sheriff's sale to satisfy a judgment held by him. 18 So, a lull was held to be multifarious which sought to enforce a trust in land and also to' give the title to one of the complainants to the same property. 17 But the interests of the complainants need not be co-extensive. Thus, a tenant for life and the re- maindermen of an estate, either legal or equitable, may join in a suit to protect the estate. 18 Beneficiaries of a trust fund may join in a suit for an accounting, although their interests are several. 19 The buyer of a secret formula and the vendor who sold the same with a guarantee, may join in a suit to enjoin the unlaAvful use of the same. 20 Although usually there must be some privity between the complainants in a bill, and a common interest in the questions involved cannot alone lay the founda- tion for the joinder of parties; 21 yet in certain cases those be- tween whom there was no privity were allowed to sue together when they sought to avert an injury which would affect them all alike. 22 Thus persons with a common interest in trademarks and labels, as owners and selling agents of the goods upon which they were affixed, might join in a suit to prevent their imitation. 23 Several tenants or parishioners might unite in a bill of peace seeking to dispose of a disputed right claimed against them by the lord of the manor 24 or the parson of the parish. 25 And the Westerly Waterworks, 20 R. I. 176, 37 Atl. 807. 15 Parsons v. Lyman. 4 Blatclif. ('. C. 432; Saumarez v. Sanmarez, 4 M. & Cr. 331, 336. 16 Walker v. Powers, 104 U. S. ■245, 26 L. ed. 729. "Leslie v. Leslie, S4 Fed. 70. 18 Story's Eq. PI.. § 270a ; Bucke- ridge v. Glasse, 1 Cr. & Phill, 126; Calvert on Parties (2d ed.). 99; Rainey v. Herbert, C. C. A., 55 Fed. 443. 19 Watson v. National Life & Tr. Co., C. C. A., 162 Fed. 7. 20 James B. Sipe & Co. v. Colum- bia Refining Co.. 171 Fed. 295. 21 Rochester German Ins. Co. V. Schmidt, C. C. A., 175 Fed. 720. 22 See § 110 supra. 23 Jewish Colonization Ass'n v. Solomon, 125 Fed. 994. 24Annon., 1 Chan. Cas. 269; Smith v. Earl Brownlow, L. R. 9 Eq. 241. 25 Pudge v. Hopkins, 2 Eq. Cas. Abr. 70. 140] MISJOINDER OF PLAINTIFFS. 49; owners of several lots of land claiming under a common source of title might unite in a bill of peace against several other claim- ants to the same lots, who also relied upon a common source of title adverse to that of the complainant. 26 Several owners of dif- ferent lots of land who have a common interest in an easement derived from the same source may unite in a suit to enjoin the obstruction of the easement. 27 Several claimants in possession of several parcels of land whose rights depend upon the same question of fact or law may unite in a bill of peace against the same defendant who claims title to all the land by reason of the same disputed facts or legal proposition. 28 The owner of several mines might join in a suit to enjoin different assayers from buying ore from laborers employed by the complainants, although there was no concert of action among the defendants in their various purchases. 29 to enjoin smelters from injuring their crops. 30 The owners of adjacent property might join in a bill in equity to enjoin a defendant from erecting a livery- stable, 31 an unauthorized street railroad 32 or other nuisance in their vicinity. But another case holds that different persons, each of whom will suffer a distinct injury from the levy of a 26 Crews v. Burcham, 1 Black, 352 ; Prentice v. Duluth S. & F. Co., C. C. A., 58 Fed. 437. It has been held that the pastor and some of the members of a religious associa- tion may unite in a suit to recover possession of the church and par- sonage, to enjoin the trustees and the remainder of the congregation from interfering with each in his ecclesiastical rights; and also to compel an accounting for collections taken up, which are payable to the elder and pastor as salary. Fuchs v. Meisel, 113 Mich. 559; s. c, 60 N. W. R. 773. But see Douglas v. Boardman, 113 Mich. 618, s. c, 71 N. W. 1100. 27 Norton v. Colusa Parrot Min. & Smelting Co., 167 Fed. 202. Springer v. Lawrence, 47 N. J. Eq. 461. s. c. 21 Atl. 41. See Union Mill & M. Co. v. Dangberg, 81 Fed. 73; Osborne v. Wisconsin Cent. R. Co., 43 Fed. 824; Cent. Pac. R. Co. v. Dyer, 1 Saw. 641; infra, § 141. Flint v. Russell, 5 Dill. 151; Par- ker v. Nightingale, 6 Allen (Mass.), 341, 80 Am. Dec. 632. Contra, Hud- son v. Madison, 12 Simons, 416. 28 Hoist v. Savannah El. Co., 131 Fed. 931 : Rafferty v. Central Tr. Co. 147 Pa. 579, 30 Am. St. Rep. 763, 23 Atl. 884. 29Goldfield Consol. Mines Co. v. Richardson, 194 Fed. 198. 30 Am. Smelting & Refining Co. v. Godfrey, C. C. A., 158 Fed. 225, 89 C. C. A. 139. 31 Cutting v.. Gilbert, 5 Blatchf. C. C. 259. See, however, Central Pac. R. Co. v. Dyer, 1 Saw. 641 ; Union Pac. R. Co. v. McShane, 3 Dill. 303; infra, § 141. 32 Allen v. Fairbanks, 45 Fed. 445. 496 BILLS IN EQUITY. [§ 141 tax, cannot unite in a bill to enjoin its levy on account of its alleged unconstitutionality. 33 Several stockholders who had been compelled to pay corporate debts were allowed to join in a bill against another stockholder to compel him to contribute his proportion, and several persons who had been induced by identical fraudulent misrepresentations to subscribe to stock in a corporation were allowed in Virginia to join in a suit to cancel their subscriptions. 34 It has been held : that several de- positors may join in a suit against directors of their common bank, for loss through improper loans of the bank funds. 35 A stockholder might sue on his own behalf and on behalf of his corporation, in the same bill, when the same facts sustained the cause of action on behalf of both, such as an attempt to make a fraudulent consolidation between his company and another on terms unduly unfavorable to his corporation. 36 But, it has * been held, that a suit by a stockholder, who is indebted to a building and loan association, to cancel his loan contract for fraud, usury and incapacity of the association to do business within the State, who also prays, on behalf of himself and all other stockholders, to have a receiver of the property of the cor- poration within the State appointed upon allegations of mis- management and misappropriation by its officers, is multi- farious ; 37 that so is a suit by a corporation for a breach of contract, coupled with claims by individuals, to compel the de- livery of stock of the same defendant. 38 It has been said that the fact that separate decrees may be requisite in order to afford complete relief does not necessarily make the bill multifarious. 39 § 141. Multifariousness by misjoinder of defendants. The Equity Rules of 1912 provide: "If there be more than 33 Rader v. Bristol Land Co. 94 Va. 706. 27 S. E. 590. 34 Foster v. Abingdon, SS Fed. 004: Solomon v. Bates. 118 N. C. 311, 54 Am. St. Rep. 725, 24 S. E. 478. 35 Boyd v. Schneider, C. C. A., 13] Fed. 223. Several stockholders may unite in a suit to enjoin the directors of a corporation from issuing new stock without L r i\itiir the complainants a n a-onable opportunity to take their proportionate share and from allow- ing any holder thereof to vote at a corporate meeting. Snelling v. Richard, 10G Fed. 035. 36 Jones v. Missouri-Edison El. Co., C. C! A., 144 Fed. 705. 37 Emmons v. National Mut. Bldg. & Loan Ass'n of Xew York, C. C. A., 135 Fed. 689. 38 Backus v. Brooks, 189 Fed. 922. 39Xeal v. Rathell, 70 Bid. 592; S. c, 17 Atl. 506. 141] MISJOINDER OF DEFENDANTS. 407 one defendant the liability must be one asserted against all of the material defendants, or sufficient grounds must appear for uniting the causes of action in order to promote the convenient administration of justice." 1 This seems to broaden the former rule, which was as follows: Xo persons could be joined as de- fendants to a bill in equity who had not a joint or common in- terest in opposing the relief prayed. 2 Different relief mighty however, be obtained against different defendants when the bill sought to prevent or annul the effect of acts in pursuance of a common scheme, or so connected with each other as to form part of the same transaction. 3 The rule was thus stated by Sir. John Leach: "In order to determine whether a suit is multifarious, or, in other words, contains distinct matters, the inquiry is not, as this defendant supposes, whether each defendant is connected with every branch of the cause, but whether the plaintiff's bill seeks relief in respect of matters which are in their nature separ- ate and distinct. If the object of the suit be single, but it hap- pens that different persons have separate interests in distinct questions which arise out of that single object, it necessarily follows that such different persons must be brought before the court, in order that the suit may conclude the whole object," 4 "The entirety of the case against one defendant constitutes the connecting link." 5 But a bill is multifarious, when the charge against one is in no way connected with those against other de- fendants. 6 A bill is not multifarious which is filed by a cred- § 141. lEq. Rule 26. 2 Calvert on Parties, Book T, eh. vii; U. S. v. Alexander, 4 Craneli, C. C. 311. 3 Calvert on Parties, Book 1. eh. vii: Manners v. Rowley, 10 Simons, 470. 4 Salvidge v. Hyde, 5 Maddock, 138, 140. 5 Calvert on Parties (2d ed).. 08, rruoting Sir John Leach in Turner v. Robinson. 1 Sim. & S. 313; and Lord Cottenliam in Attorney Gen- eral v. Corporation of Poole. 4 M. '& Cr. 17, 31: Halsey v. Goddard, 86 Fed. 25; Porter v. Robinson 2 Va. Pec. 183, 22 S. E. 843; Crick- Fed. Prac. Vol. I.— 32. ard v. Crouch's Adm'rs, 41 W. Va. 503: s. c, 23 S. E. 727; Middle- ton Sav. Bank v. Baeharach, 46 Conn. 513. But see Washington City Sav. Bank v. Thornton, 83 Va. 157: Buffalo v. Town of Poca- hontas. 85 Va. 222; Sylvester v. Boyd. 166 Mass. 445: s. c., 44 X. E. 343; Staude v. Keck. 02 Va. 544; s. c, 24 S. E. 227. 8 Wood v. Dummer. 3 Mason. 308; West v. Randall. 2 Mason. 181, 200; Lewarne v. Mexican int. T. Co.. 38 Fed- 620: Seales v. Pheiffer, 77 Ala. 278: Sumter County v. Mitchell, 85 Ala. 313; Van Bouten v. Van Wink- le. 40 X. J. Eq. 380. 498 BILLS IN EQUITY. [§ Ul itor on behalf of himself and others similarly situated: to wind up the affairs of the bank, to determine the amount due him, to ascertain the amounts due to other creditors, to distribute the assets among them, and to enforce the liability of the stockhold- ers, who are made defendants with the bank. 7 Bills were held to be multifarious when filed by receivers against several stock- holders to enforce a statutory liability to creditors, 8 or to col- lect an assessment made in another proceeding, to which the defendants were not parties. 9 But a receiver's bill to collect the amount due by subscriptions to stock was held, not to be multifarious when filed against several stockholders, who had a common defense depending upon the same questions of fact and law. 10 A bill is not multifarious as regards stockholders, who have a common defense, when filed to collect dividends paid while the corporation was insolvent. 11 Xor a bill by a receiver against a number of bank directors, to recover money lost by the bank through their alleged misconduct. 12 Xor in Xew Jer- sey a stockholder's bill to recover damages for the negligence of the officers and directors of a bank for a period of time during part of which some of the defendants were not in office. 13 Xor 7 Richmond v. Irons, 121 U. S. 27. 50. 30 L. ed. 864, 871 ; Wyman v. Wallace. 201 U. S. 230, 242, .30 L. cd. 738, 741. 8 Hale v. Allinson, 188 U. S. 56. 47 L. ed. 380. 9 Fidelity Tr. & Safe Dep. Co. v. Archer. C. C. A., 179 Fed. 32. 10 Wyman v. Bowman, C. C. A., 127 Fed. 257. HHayden v. Thompson. C. ( '. A.. 71 Fed. 61); reversing. 67 Fed. 273. 12 Allen v. Luke. 141 Fed. 694. i ? - Ackerman v. Halsey. 37 X. J. Eq. 356. Contra, under the X. Y. Code, People v. Eq. L. A. S'y., 124 App. D. (X. Y.) 714. Bills were held to l>e multifarious which were filial by a stockholder to enforce the liability to the corporation of one defendant for unpaid stock, his joint liability with five others for fraud against the creditors of the corpo- ration, and the liability of these five for the fraudulent sale of cor- porate property with which the first defendant was not connected. Holton v. Wallace, 66 Fed. 409. In Missouri, a bill by a creditor of an insolvent corporation to collect unpaid stock subscriptions and also to recover from one of the subscribers for his conduct as president both in defrauding the corporation and in injuring the individual property of complain- ant. Montserratt Coal Co. v. John- son County C. M. Co., 141 Mo. 149; s. c, 42 S. W. 822. By a stockholder who complained of other stockholders and officers for false representations which in- duced him to buy his stock, and against the corporation for a dis- solution and an accounting because of the suspension of its business 141] MISJOINDER OF DEFENDANTS. 490 a bill against two depositaries of the funds of an insolvent asso- ciation, the proceeds of embezzlements by its treasurer, all of which were of the same character and grew out of his manipula- tion of the deposits, in some of which transactions it was alleged that both of them participated and were jointly liable; when it was further charged, that the illegal matters were so interwoven that an accounting was necessary of all the different accounts of the association in both depositaries, that the defendants know- ingly participated with the treasurer in the misappropriation of the funds. 14 Xor one by the holder of a bond secured by a lien upon the property of a corporation against both the cor- poration and its stockholders, at the same time to foreclose his lien and to compel the stockholders to pay so much of the bal- ance of their subscriptions to the stock of the corporation as will suffice for the payment of the deficiency after the foreclosure sale. 15 Nor one by a mortgagee of water works to foreclose the mortgage, and to compel the city which had bought the property to pay hydrant, rents to the plaintiff in pursuance of the contract granting the franchise. 16 Xor a bill by a city bondholder for an accounting by his obligor and by the county, to whom assess- ments, upon which the complainant had a lien, had been paid and waste of the corporate funds. Watson v. U. S. Sugar Ref. Co.. C. C. A., 08 Fed. 7G9. In Massa- chusetts, by a stockholder against a corporation and its trustees pray- ing for a return of money advanced by him to the corporation through the fraud of the individual defend- ants, which also alleged misappro- priation of the corporate funds and prayed the appointment of a receiv- er, where there was no allegation that the corporation had no funds to repay the plaintiff, and the re- ceivership was not sought merely as an incident to the principal re- lief. Davis v. Peabody. 170 Mass. 307; s. c, 40 X. E. 750. Tt has been held that claims against di- rectors and stockholders to enforce different liabilities cannot be com- bined. Cambridge Waterworks v. Somerville D. & B. Co., 14 Gray (Mass.), 193; Pope v. Leonard, 115 Mass. 286; Von Auw v. Chicago T. & T. G. Co., 70 Fed. 939. But they may be united in a suit to enjoin them from taking part in the same fraudulent transaction. Jones v. Missouri-Edison El. Co., C. C. A., 144 Fed. 705. 14 Fidelity & Deposit Co. of Mary- land v. Fidelity Trust Co., 143 Fed. 152. is Marine & R. P. M. & Mfg. Co. v. Bradley, 105 U. S. 175, 20 L. ed. 1034. 16 Centerville v. Fidelity Tr. & G'y Co., C. C. A., IIS Fed'. 322. In Massachusetts a stockholder was al- lowed to file a bill against a cor- poration and an officer thereof to re- cover corporate funds misappro- priated by the officer and to apply 500 BILLS IN EQUITY. C§ ill in part. 17 But bills were held to be multifarious when filed: to foreclose a mortgage on a gas plant, covering all moneys "fur- nished and hereafter paid" by a city for gas-light, which joined the city as a co-defendant with the mortgagor, and prayed for a judgment against the city for what it owed the mortgagor for light ; 18 a bill to foreclose a mortgage by a corporation, and to recover dividends from stockholders paid out of the income of the mortgaged property, 19 a bill which joined a prayer for the recovery of bonds wrongfully retained by one defendant, with a prayer for relief against another to apply assets in payment of the same, 20 and'a bondholders 1 bill to enforce a lien upon a fund in the possession of a corporation and to charge the direct- ors individually for payments made to general creditors. 21 A bill was held multifarious which sought both to foreclose a mortgage and to restrain another defendant from asserting a claim of title adverse to both mortgagee and mortgagor, 22 at least when such adverse title accrued prior to the mortgage; 23 and even, it has been held in New York, when it subsequently arose ; 24 and a bill to foreclose two mortgages by the same mortgagor upon separate lots owned by different persons ; 25 or to foreclose a mortgage and recover damages from a third person for fraud in in- ducing the loan thereby secured. 26 But a party claiming a lien upon the property by a judgment against the mortgagor prior to the mortgage, the validity of which lien is contested by the mortgagee, may be joined as a party defendant in a fore- closure suit. 27 A bill may be filed to establish a lien, with a the samp to a dividend due the com- plainant. Dunphy v. Traveller Newspaper Ass'n, 14(i Mass. 495, 1? Hayden v. Douglas County, Wisconsin. C. C. A.. 170 Fed. 24. 18 International Tr. Co. V. Car- tersville I. G. & W. Co.. 63 Fed. 341, 346. 19 New Hamsphire Saw Bank v. Ritchey, C. C. A.. 121 Fed. 956. 20 Sawyer v. Atcliinson, T. & S. F. R. Co.. C. C. A., 129 Fed. 100. 21 Cass v. Realty Securities Co., 148 A pp. Div. (N. Y.) 96. 22 Dial v. Reynolds. 96 U. S. 340, 24 L. ed. 044. But see California S. D. & I. Co. v. Cheney El. L. T. & P. Co., 56 Fed. 23V ; Menden- hall v. Hall. 134 U. S. 559, 568, 33 L. ed. 1012, 1015. 23 Ibid. 24 Erie County Saw Bank v. Schuster, 187 X. T. 111. 25 Eastern B. L. Ass'n v. Denton, 65 Fed. 569. 26 Security S. & L. Ass'n v. Bu- chanan, 66 Fed. 799. 27 Converse v. Michigan Dairy Co., 45 Fed. 18; Copen v. Flesher, 1 Bond, 440. 141] MISJOINDER OF DEFENDANTS. 501 prayer for the enforcement of the individual liability of some of the defendants, Whose indebtedness^ the lien secures. 28 A bill against different lienholders on the same property to have their bills settled and adjusted is not multifarious. 29 A bill is multifarious which seeks to obtain a transfer of land from one defendant, and to restrain another from asserting a con- flicting claim to the same. 30 So is a bill by an executor to settle the conflicting controversies between himself, the heirs of Ids testatrix, the heirs of her husband both of whom dispute be- quests under her will, and one claiming to be a creditor of her estate. 31 A bill is not multifarious, which prays an ac- counting by one defendant under contracts made between him and the complainant, and joins another defendant, who is charged to be a secret partner with the former in these transac- tions, and who has received part of the profits of the same 3 ' or prays an accounting against a trustee and seeks to set aside a release of a claim of the estate given by him to a third per- son joined as a defendant ; 33 but a bill was held to be multi- 28 Ingersoll v. Coram, 127 Fed. 418; reversed on another point, C. C. A. 29 Rumbarger v. Yokum. 174 Fed. 55. 30 Copen v. Flesher, 1 Bond, 440. 31 Haines v. Carpenter, 1 Woods, 262. The following bills have also been held to be multifarious : A bill by a creditor of an estate to enjoin the sale, to pay debts, of firm lands purchased by him from the heirs, and to recover from the administrator and his sureties the amount of his debt. Banks v. S peers, 103 Ala. 436. A petition against the executors of the peti- tioners' deceased father and against three successive guardians of the petitioners themselves, praying an account by the defendants of their respective trusts and waiving dis- covery. Cornwell Mfg. Co. v. Swift, SO Mich. 503; s. c, 50 X. W. 1001. A bill to enforce a claim for devas- tavit against the personal repre- sentatives of some of the sureties upon an administrator's bond, and for a settlement of the estate, which also sought to enforce against the representatives of the other sureties, in their individual capacities, the personal penalty for failure to give the notice to creditors required by law. Page v. Bartlett, 101 Ala. 193. See also Cocks v. Varney. 42 X. J. Eq. 514; Henninger v. Heald. 51 X. J. Eq. 74; Bullock v. Knox. 96 Ala. 195; Dickerson v. YVinslow. 97 Ala. 491; Smith v. Smith, 102 Ala. 516: Bolles v. Bolles, 44 X. J. Eq. 3S5, 14 Atl. 593; Wells v. S. & P. Guano Co., S9 Va. 708; Torrent v. Ham- ilton, 95 Mich. 159; Ashley v. City of Little Rock, 56 Ark. 391. 32 McMullen Lumber Co. v. Stroth- er, C. C. A., 136 Fed. 295. 33 Pulver v. Leonard. 176 Fed. 586, 590. See Payne v. Hook, 7 Wall. 42.1, 433, 19 L. ed. 260. But bills were held not m/ultifaripus against an administrator de bonis 502 BILLS IN EQUITY. [§ 1« farious which joined with the executors and legatees under a will that it prayed to have set aside, another defendant who had a deed. from the testator which it prayed should he cancelled. 34 Xor a bill to set aside transactions which form a series of acts connected with the same fraudulent design. 85 For example: creditors' bills to reach property fraudulently transferred to different corporations, the stock in which is owned and con- trolled by the judgment debtor. 36 and, to reach property, different ' parts of "which have been sold to several de- fendants, 37 were held not to be multifarious; but where, in the same case, the complainant had obtained judgments against different defendants, it was held that he could not join in the same bill pravers to set aside as fraudulent several conveyances made by them of different property. 39 So where a bill filed by an assignee in bankruptcy against all the incumbrancers of his assignor's estate, some but not all of whom had liens upon the same property, to set aside their liens as fraudulent, and to have the property sold for the common benefit of the creditors ; 40 a bill filed by the beneficiary under several deeds of trust, some upon different parts of the same property, and non, the administrator of his prede- cessor and the holder of the only claim against the estate, for the purpose of completing the adminis- tration and disallowing the claim (Deans v. Wilcoxon. 25 Fla. 980) ; by heirs against executors under a will, the probate of which had been revoked, and those who had bought property of the estate from them with notice of the invalidity of the will (Gaines v. Chew. 2 How. 010. 11 L. ed. 402) ; and by a surety upon an official bond against the principal, the other sureties and purchasers with notice of property upon which the bond gave a lien. Schuessler v. Dudley. 80 Ala. 547. 60 Am. Rep. 124. 34 Miller v. Weston, C. C. A., 190 Fed. I'M. 35 Field v. Western Life Indemni- ty Co., 166 Fed. 607. 36 Fowler v. Palmer. C. C. A., 160 Fed. 1. 37 Hultberg v. Anderson. 170 Fed. 657 : U. S. v. Rea-Reed Mill & Ele- vator Co.. 171 Fed. 501. 39 Hobbs Mfg. Co. v. Gooding, 166 Fed. 933. 40 McLean v. Lafayette Bank, 3 McLean, 415. See also Jones v. Slauson, 33 Fed. 632: Potts v. Hahn. 32 Fed. 660: Pullman v. Stebbins. 51 Fed. 10. Contra. Met- calf v. (adv. S Allen (Mass.) 587. In Mississippi, a stockholder's bill was sustained which sought to set aside two separate deeds of trust executed by the corporation where one of the defendants owned a num- ber of the bonds secured by each deed. Hardie v. Bulger, 66 Miss. 577. 141] MISJOINDER OF DEFENDANTS. 503 one covering the entire property, against the trustees, the trustor, ' and the different persons claiming liens upon it, 41 to set aside a will and deed, executed through the fraud and undue influence of one defendant; although other defendants claimed through him, different interests in the property in ques- tion; 42 a bill filed by one of the next of kin against both an administrator and his sureties, to obtain the plaintiff's share of the estate; 43 a creditor's bill against the members of two dif- ferent firms, and the personal representatives of those who are dead, when some were members of both ; 44 a bill to set aside an assignment of one partner's interest in the firm and then to divide the assets. 45 A bill to enforce an equitable title, such as^ a trust, 46 or to remove a cloud upon a complainant's title, 47 might also seek partition after the primary relief has been established, provided that no defendants needed to be joined who were not proper parties to a suit for the principal relief. A bill was sustained which sought partition and also the cancellation of tax deeds upon the common property held by strangers to the partition. 48 Persons who are acting in concert as employees or directors of the same corporation in the infringement of a patent or trade-mark, 49 or who are charged with usino- a cor- poration as the means of such an infringement, 50 or, it was held, the manufacturer and sellers of the same articles, 51 may be joined with the corporation as defendants to a suit for an 41 Grant v. Phoenix Life Ins. Co., 121 U. S. 105. 30 L. ed. 905. See Pullman v. Stebbins, 51 Fed. 10; Hibernia Ins. Co. v. St. Louis & X. C. Transp. Co., 10 Fed. 596; s. c, 320 U. S. 16G, 30 L. ed. 021. « Williams v. Crabb, C. C. A., 59 L.R.A. 425, 117 Fed. 193, 202; James v. City Investing Co., 188 Fed. 513. « Payne v. Hook, 7 Wall. 425. « Nelson v. Hill, 5 How. 127, 12 L. ed. 81. See also Oliver v. Piatt, 3 How. 333, 11 L. ed. 022. But see Griffin v. Merrill. 10 Md. 304. « Hayes v. Heyer, 4 Sandford Ch. (X. Y.) 485. 46 Hopkins v. Grimshaw, 165 U. S. 342, 358, 41 L. ed. 739. 744; Briges v. S perry, 95 U. S. 401 ; Haves' Appeal, 123 Pa. St. 110; Hayes v. Heyer, 4 Sandf. Ch. (X. Y.) 517. But see Belt v. Bowie, 65 Md. 350. « Vreelahd v. Yreeland, 48 X. J. L. 50; s. c, 24 Atl. 551. But see Robinson v. Springfield Co., 21 Fla. 203. 48 riman v. Jaeger, 07 Fed. 980. 49 Popperhusen v. Falke, 4 Blatchf. C. C. 493. 5<>Xerve Food Co. v. Baumbacb. 32 Fed. 205; California F. S. Co. v. Improved F. S. Co.. 51 Fed. 296. 51 Capewell Horse Xail Co. v. Green, C. C. A., 188 Fed. 20 v 504 BILLS IN EQUITY. [§ 141 injunction and an accounting; but it has been held that a bill cannot join complainants against different violators of .the same patent 52 or copyright, 53 when their infringements were not performed in confederacy with each other. But the sound- ness of the decision last cited has been doubted by Judge Story 54 and it was distinguished by Chancellor Kent. 55 It was held that a bill against an interfering patentee was multifarious when it joined the commissioner of patents as a defendant and prayed for a reissue. 56 A bill of peace may be filed to dispose of the claims of a number of defendants, which all depend on the determination of a single question of fact or law. 57 Such bills have been maintained when filed by a rail- road company against several ticket-scalpers to enjoin their sale of tickets which by their terms could not be transferred, and the use of which could only be accomplished by a fraud. 58 52 Jewell v. City of Philadelphia, 186 Fed. 639: Edison v. Allis- Chalmers Co., 191 Fed. 837; Climax Lock & Ventilator Co. v. Ajax Hard- ware Mfg. Co., 192 Fed. 126. 53 Dilly v. Doig, 2 Yes. Jr. 486. See Thomas H. El. Co. v. Sperry El. Co., 46 Fed. 75. 54 Story's Eq. PI.. §§ 277, 278. 55 Brinkerhoff v. Brown. 6 J. Ch. (X. Y.) 139, 155. See Foxwell v. Webster, 10 Jur. (X. S.) 137. 56 Gold v. Gold, 181 Fed. 544. 57 Gaines v. Chew, 2 How. 619, 11 L. ed. 402; U. S. v. Cnrtner. 26 Fed. 296, 298; Hyman v. Wheeler. 33 Fed. 329. Such are a bill by a parson or lord of a manor to estab- lish a claim against all of his pa- li-liioners. Brown v. Yennuden, 1 Chan. Cas. 272. Or tenants. Con- yers v. Lord Abergavenny. 1 Atk. 285; a bill by the owner of a fishery. Mayor of York v. Tilkington, 1 Atk. 284; or a water-right, Union Mill S. M. Co. v. Dangberg, 81 Fed. 73: to establish his claim against a num- ber of riparian owners. Or by the owner or a fishery, to enjoin, from the use of the same, several persons who claim the right under a State statute, and who commit trespass upon the land of plaintiff, which are only incidental to their fishing. Percy Summer Club v. Astle, 145 Fed. 53 ; and to prevent injury to the stream. Woodruff v. Xorth Bloomrield G. M. Co.. 16 Fed. 25: Pacific L. S. Co. v. Handley, 98 Fed. 327: Warren v. Parkhurst. 186 X. Y. 45, 6 L.R.A.(X.S.) 1149. 78 X. E. 579. 9 Ann. Cas. 512. But see Illinois Steel Co. v. Schweder. 133 Wis. 561. 14 L.R.A.(X.S.) 239. 126 Am. St. Rep. 977. 113 X. W. 51; criticised 21 Law Review. 200. But a bill to enjoin the owners of a mill from floating logs over complain- ants' dam. and to recover damages for previous floatage, which joined as defendants former owners of the mill, was held to be multifarious. Allison v. Davidson (Tenn. Ch. .A pp.). 39 S. W. 905. See Car- michael v. Texarkana, 94 Fed. 561. 58 Bitterman v. Louisville & X. R. Co.. 207 U. S. 205. 52 L. ed. 171 : Nashville, C. & St. L. RY. Co. v. 141] MISJOINDER OF DEFENDANTS. 505 To prevent several hackmen from congregating on tlie sidewalk adjacent to its station. 59 To enjoin different abutters from in- terfering with a right of way, 60 or different riparian owners from polluting a stream. 61 To enjoin different smelters from injuring the complainant's crops. 62 The owners of several mines might join in a suit to enjoin different assayers from buying ore from laborers employed by the complainants, al- though there was no concert of action among the defendants in their various purchases. 63 Bills have been sustained when filed : To restrain the tax collectors of different counties from levvinar taxes separately assessed, but part of each of which was to be paid to the State, and the validity of all of which depended upon the construction of a single statute. 64 By a city to establish its claim to a tax against several of the class liable to the same. 65 To quiet a title against a number of claimants to land in severalty, the validity of the separate title of each of whom depends upon the construction of one special statute 66 or the validity or construction of the same document 67 or proceeding. 68 A bill is not multifarious when brought to en- McConnell, 82 Fed. 65; Illinois Cent. R. Co. v. Caffrey, 129 Fed. 770; Pennsylvania Co. v. Bay, 150 Fed. 770. 59 Donovan v. Pennsylvania Co., 199 U. S. 279, 50 L. ed. 192. 60 Louisville & N. R. Co. v. Smith, C. C. A., 128 Fed. 1. 61 Woodruff v. No. Bloomfield Gravel Co., 16 Fed. 25. 62 Am. Smelting & Refining Co. v. Godfrey, C. C. A., 158 Fed. 225, 89 C. C. A. 1.19. 63Q ldfield Consol. Mines Co. v. Richardson, 194 Fed. 198. 64 Union Pae. R. Co. v. McShane, 3 Dill. 303. But see supra. § 140. 65 London v. Perkins, 2 Brown Pari. Cas. 052. BBHeckman v. U. S., 224 U. S. 413, 56 L. ed. 820; modifying and affirming U. S. v. Allen, C. C. A., 179 Fed. 13, which reversed U. S. v. Allen, 171 Fed. 907; U. S. v. Flournoy L. S. & R. E. Co., 69 Fed. 886; Central Pacific R. Co. v. Dyer, 1 Saw. 641 ; see Oshorne v. Wiscon- sin Cent. R. Co., 43 Fed. 824; supra, § 140. 67 Gaines v. Chew, 2 How. 619. 11 L. ed. 402; Crews v. Bureham, 1 Black, 352, 17 L. ed. 91 ; Hyman v. Wheeler, 33 Fed. 329 ; U. S. v. Ciwt- ner, 26 Fed. 296: U. S. v. Rea-Read Mill & Elevator Co., 171 Fed. 501. But see Kansas City Southern Ry. Co. v. Quigley, 181 Fed. 190. 68 Ulm'an v. laeger. 67 Fed. 980. But hills were held to be multifari- ous when brought against thirty- four defendants to enforce thirty- four separate, although similar, contracts, Cheney v. Goodwin. 88 Me. 503; s. . c. 34 Atl. 420; nor against fifteen defendants to cancel separate notes severally held by them, some of which were alleged to be forgeries and the others ob- tained by fraud, the forger and de- frauder being a stranger to the suit, 506 BILLS IN EQUITY. [§ 142 join several members of a trade union or other persons from acts of violence or other trespasses in furtherance of a strike. 69 But it was held that the claimant of a large tract of land, separate parts of which were in the possession of different per- sons claiming title in various ways, could not enforce his rights against them all in a single bill. 70 Where the evidence did not justify a charge of combination made in the bill, it was dismissed for nullifariousness upon the hearing. 71 § 142. Multifariousness without misjoinder of parties. The Equity Rules of 1912 provide: "The plaintiff may join in one bill as many causes of action, cognizable in equity, as he may have against the defendant. * * * If it appear that any such causes of action cannot be conveniently disposed of together, the court may order separate trials/' * This seems to abrogate the old doctrine of equitable practice, that a bill was bad for multifariousness when two or more distinct and unconnected grounds of equitable relief were therein joined. To create this defect under the former practice, it was requisite that the grounds of relief should be different and that each ground should be sufficient as stated to sustain a separate bill. 2 A bill was considered to be multifarious when it joined two matters, where the necessary parties to the suit were the same, but their interests and attitude were decidedly at variance. 3 Scott v. McFarland, 70 Fed. 280; 45 So. S61. See Harv. Law Rev., not - to enjoin several landowners XXV. 559. from suing plaintiff because of his 6 9 Oxley Stave Co. v. Coopers' Int. alleged nuisance. Ducktown Sul- Union. 72 Fed. 695: Casey v. Cin- phur, etc., Co. v. Fain. 109 Tenn. cinnati Typ. Union. 12 L.R.A. 193, 56, 70 S. W. S13. See So. Penn. 45 Fed. 135: Arthur v. Oakes. C. Oil Co. v. Calf Creek O. & G. Co., C. A.. 25 L.R.A. 414. 4 Inter*. Com. 140 Feci. ;>n7. and to enjoin dif- Rep. 744. 9 Am. Crim. Rep. 109, ferent persons from suing a tele- 03 Fed. 310: supra, § 115 infra, eh. phone company in tort for removing XVIII. telephones from their separate ~° Buchanan Co. v. Adkins. C. C. premises. Cumberland Tel. & Tel. A., 175 Fed. 092. Co. v. Williamson. (Miss.) 57 So. 71 Coe v. Turner, 5 Conn. 86. But 559; following Tribette v. Illinois see iufnt. i 143. Cent. R. Co., 70 Miss. 182, 19 L.R.A. § 142. 1 Fq. Rule 26. 66Q, ::5 Am. St. Rep. 642, 12 So. 32: 2 Brown v. Guarantee Safe Dep. overruling Whitloek v, Yazoo >fc Mis- & Tr. Co.. 12S II. s. 403. sissippi Valley R. Co., 91 Miss. 779, 3 See Field v. Camp, 193 Fed. 160. § 142] MULTIFARIOUSNESS. 507 Bills were held not to be multifarious when filed : to dissolve a partnership and to partition the estate, real and personal ; 4 to set aside and cancel an insurance policy and enjoin the further prosecution of an action to recover premiums paid upon the same; 5 to compel the issue of a policy and at the same time collect the same ; 6 to reform a written agreement on account of a mistake and enforce its performance as reformed ; 7 by a bondholder to compel a city to apply to their payment the pro- ceeds of assessments, upon which he had a lien, an] also pray- ing to enforce a general liability by the city to pay the bonds ; 8 to foreclose a mortgage, with a prayer for the enforcement of the liability at common law of the owner of the mortgaged premises to pay rents to the mortgagor. 9 It has been said: "That when the right of a party to specific relief is so in- cumbered that he cannot assert that right against another until he has removed the incumbrance, he cannot include an attempt to get rid of the incumbrance in a suit for specific relief, which he might be entitled to have, if the incumbrance were out of the way." 10 It has been held, under the former rules, that an equitable owner of stock, whose title was contested, could not in the same suit obtain the legal title and also protection of the corporate assets. 11 But the soundness of these decisions may be doubted, and, under the new rules, the doctrine, that equity having once obtained jurisdiction will afford full relief, 2 nay be enforced. Under the former practice, where a cause of action arising under the laws of the United States was joined with one of which a Federal Court had no original juris- diction, and there was no diversity of citizenship, a demurrer *Briges v. Sperry, 95 U. S. 401, 9 Fidelity Tr. & Guaranty Co. v. 24 L. ed. 390. Fowler Water Co., 113 Fed. 500. 5 Eq. Life Assur. Soc. v. Patter- 10 Inman v. X. Y. Interurban son, 1 Fed. 126. Water Co., 131 Fed. 997. 999; 6 Herbert v. Mutual Life Ins. Co., quoted with approval. Witberbee v. 12 Fed. S07: Brugger v. State Inv. Bowles, 142 App. Div. (X. Y.) 407, Ins. Co., 5 Sawyer, 304, Fed. Cas. 417, reversed, 201 X. Y. 4:27. Xo. 2051. 11 Inman v. X. Y. Interurban 'Gillespie v. Moon. 2 J. Cb. (X. Water Co.. 131 Fed. 997, 999: Y.) 58.5. 7 Am. Dec. 559. Witberbee v. Bowles. 142 App. Div. 8 Olmsted v. City of Superior, 155 (X. Y.) 407. 417; U. S. Steel Cor- Fed. 172. poration v. Hodge, G4 X. J. Fq. S07, 508 BILLS IX EQUITY. [§ 145 for multifariousness was sustained. 12 Where the requisite diversity of citizenship was pleaded, such joinder might be made when the transactions were connected; 13 but not, in a patent case, where the infringement was committed within the district, but neither party was a citizen or resident thereof. 1 * Under the former practice, it was not multifarious to seek, in the same bill, an injunction against the infringement of several copyrights by the same publication 15 or theatrical per- formance, 16 or in different states where the general method of the infringement was the same and the acts were committed pursuant to a common purpose by the defendant. 17 It has been held, in England, that plaintiff may not sue the defend- ant for the infringement of twenty-three patents, but that he will be limited to selecting no more than three of them for joinder of acts of infringement thereof in the same suit. 18 The former rules concerning the joinder of complaints against the infringement of different patents are considered in a subse- quent section. § 143. Objections for multifariousness or misjoinder. An objection to a bill for multifariousness or a misjoinder of parties or of causes of action, when it appears upon the face of the bill, should be taken by a motion to dismiss upon that specific ground. 1 The rule formerly was that the objection should be raised by a special demurrer. 2 If not apparent upon the face of the bill, it is doubtful whether it can be raised by 809, 60 L.R.A. 742. Contra, Weber v. Wallerstein, Xo. ], 111 App. Div. (N. Y.) 603. 12 Keasby & Mattison Co. v. Philip Cary Mfg. Co.. 113 Fed. 432; C. L. King & Co. v. Inlander, 133 Fed. 416. Contra. Onondaga Indian Wigwam Co. v. Ka-Xoo-Xo Indian Mfg. Co., 182 Fed. 832. See. also, Jaros Hygienic Underwear Co. v. Fleece Hygienic Underwear Co.. 60 Fed. 622; Ball & Socket Fastener Co. v. Colin. 90 Fed. 664: Adam v. Folger, C. C. A.. 120 Fed. 260; G. Heileman Brewing Co. v. Independ- ent Brewing Co., C. C. A., 191 Fed. 489. See su/ira. §24 13 Havens v. Burns, 188 Fed. 441. HWoerheide v. H. W. Johns- Manville Co., 199 Fed. 535. 15 Amberg F. & I. Co. v. Shea, C. C. A., 82 Fed. 314; Harper v. Hol- nian. 84 Fed. 222. 16 Empire City Amusement Co. v. Wilton, 134 Fed. 132. 17 Bracken v. Rosenthal, 151 Fed. 136. 18 Saccharin Corporation v. Wild. (1903, C. A.) 1 Ch. 410. See Saccha- rin Corporation v. White, (C. A.) 88 L. T. 850. § 143. lEq. Rule 29. 2 Nelson v. Hill, 5 How. 127, 12 L. ed. 81; Hemidon v. Chicago. Rock 143] OBJECTIONS FOR MULTIFARIOUSNESS. 500 plea or answer. 3 If it is shown by the bill, it can never be taken for the first time at the hearing 4 or upon appeal; 8 but the court may, of its own motion, dismiss a bill for multi- fariousness at any time; 6 and perhaps the objection that the rights of the complaints are inconsistent can be raised at the hearing. 7 In one case the court, at the hearing, required the petitioner to elect which claim it should enforce, and then dis- missed the rest of the petition. 8 The objection cannot be taken by a defendant who is not injured by it. 9 The misjoinder of a defendant against whom the bill states no ground for relief is not a cause for a demurrer bv the other defendants. 10 Multi- fariousness as to subjects or parties does not render a decree void, so that it can be treated as a nullity in a collateral action. 11 Island & Pac. Ry. Co.. 218 U. S. 135, 155, 54 L. ed. 070. 076. 3 Benson v. Hadfiold, 4 Hare. 32; Greenwood v. Churchill, 1 M. & K. 559; Gibbs v. Clagett, 2 Gill & J. (Md.) 14; Putnam v. Hollander, 6 Fed. 8S2; Story's Eq. PL, § 747: Beames on Pleas, 157, 158. But see Coe v. Turner, 5 Conn. 86. 4 Greenwood v. Churchill, 1 M. & K. 559; Oliver v. Piatt, 3 How. 333, 412, 11 L. ed. 622, 658; Nelson v. Hill, 5 How. 127, 12 L. ed. 81; Bowman's Devisees v. Wathen, 2 McLean. 37G; U. S. v. Reading Co., 183 Fed. 427. 5 Oliver v. Piatt, 3 How. 333, 412, 11 L. ed. 622, 658; Barney v. Latham. 103 V. S. 205, 215. 26 L. ed. 514, 518; Converse v. Michigan Dairy Co., 45 Fed. 18; Herndon v. Chicago, Rock Island & Pac. Ry. Co.. 218 U. 8. 135, 54 L. ed. 070. 6 Oliver v. Piatt, 3 How. 333, 412, 11 L. ed. 622, 658; Nelson v. Hill, 5 How. 127, 132, 12 L. ed. 81, 83; Greenwood v. Churchill. 1 M. & K. 559; Ohio v. Ellis, 10 Ohio. 456; Herndon v. Chicago, Rock Island & Pac. Ry. Co.. 218 U. S. 135, 54 L. td. 070. 'Davics v. Quarterman, 4 Y. & Coll. 257. 8 State Trust Co. v. Kansas City, P. & G. R. Co., 128 Fed. 129. 9 Buerk v. Imhaeuser, 8 Fed. 457; Metropolitan Trust Co. v. Colum- bus, S. & H. R. Co.. 93 Fed. 680; Missouri Broom Mfg. Co. v. Guy- mon, C. C. A., 115 Fed. 112. Where a contractor had agreed to pay an employee a percentage of the prof- its of contracts with different mu- nicipalities, it was held that a bill by the employee, joining the munici- palities as co-defendants with the contractor, for an accounting, though said to be subject to d ism is sal for multifariousness at the in- stance of one of the municipalities, was not so at that of the contractor. Olds v. Regan (N. J. Ch.), 32 Atl. 827. See also Couse v. Columbia Power Mfg. Co. (N. J. Ch.), 33 Atl. 331. 10 Warthen v. Brantley, 5 Ga. 571 ; Whitbeck v. Edgar. 2 Barb. Ch. (N. V.) 106: Miller v. Jamison, 9 C. E. Green (X. J.), 41; Story's Eq. PL. § 544. ii Hefner v. Northwestern Life Ins. Co., 123 U. S. 747, 31 L. ed. 309. 510 BILLS IN EQUITY. [§ 1-14 It has been held that a bill is not multifarious which joins an insufficient with a good case for equitable relief, when there is no misjoinder of parties, and that the proper course of the defendant is to demur to so much of the bill as is insuffi- cient ; 12 but that a bill is multifarious which joins two incon- sistent complaints by different plaintiffs, 13 although the case shown by the principal plaintiff is not sufficient. It is within the constitutional power of Congress to pass a law allowing, in a single specified suit against a corporation chartered by it, matters and defendants to be joined in a manner that would otherwise constitute multifariousness. 14 The question in each instance where it arises calls for the exercise of the dircretion of the court, regard being had to considerations of convenience and the substantial rights of the parties. 15 Multifariousness depends so much upon the discretion of the courts of first instance that a decision overruling an objection upon that ground would not be reviewed upon appeal, 16 except under very extra- ordinary circumstances. AYhen an objection for multifarious- ness is sustained the complainant will always be allowed, if he asks leave to do so, to amend upon payment of costs. 17 In gen- eral, it may be remarked that multifariousness is an objection much more often taken than sustained. 18 § 144. General rules of equity pleading. Otherwise, the rules regulating the frame of a bill and, with the exceptions subsequently given, of other pleadings in equity are substan- tially the same as those of pleading at common law; but more liberality is used in their construction, 1 and the use of technical 12 McCabe v. Bellows, 1 Allen (Mass.) 209; Snavely v. Harkrader, 29 Gratt. (Va.) 112; Story's Eq. PL, § 283. See Brown v. Guarantee Trust Co., 128 U. S. 403, 32 L. ed. 468. 13 Walker v. Bowers, 104 U. S. 24r>. 249, 26 L. ed. 729, 731; Bracken v. Rosenthal, 151 Fed. 136. 14 U. S. v. Union Pac. R. Co., 98 V. S. 569.' 25 L. ed. 143. 15 Weir v. Bay State Gas Co., 91 Fed. 940, per Dallas, J. 16 See Gaines v. Chew, 2 How. 019. 11 L. ed. 402; Oliver v. Piatt, 3 How. 333, 11 L. ed. 622; Barney v. Latham, 103 U. S. 205, 26 L. ed. 514; Graves v. Ashburn, 215 U. S. 331. 54 L. ed. 217; Sheldon v. Keokuk N. L. Packet Co., 8 Fed. 769; Hpsrner v. Wyoming Ry. & Iron Co.. 126 Fed. S84. 17 Walker v. Powers, 104 U. S. 245, 249, 26 L. ed. 729, 731; Price v. Coleman, 21 Fed. 357. 18 Quoted with approval, United Cigarette Mach. Co. v. Wright, 132 Fed. 195. § 144. l Darnell's Ch. Pr. (2d Am. ed.), 413. Supra, § 137. § 144] general rules of equity pleading. 511 expressions is never necessary. 2 The Equity Rules of 1912 provide: "Unless otherwise prescribed by statute or these rules the technical forms of pleadings in equity are abolished." An allegation that the plaintiff is seized in fee simple is equi- valent to an allegation that he is in possession. 4 If the plaintiff claim under a derivative title, he must show the steps by which it has come into existence; 5 but this is not ordinarily necessary when the plaintiff prays protection to rights connected with 2 Darnell's Ch. Pr. (2d Am. ed.), 414. 3Eq. Rule 18. 4 Gage v. Kaufman, 133 U. S. 471, 33 L. ed. 725. A plea which simply alleged that the defendant was '"the sole owner in fee simple" of the property in question was held to be bad as a conclusion of law. Mc- Closkey v. Barr, 38 Fed. 165. It was said: that, in a suit to remove a cloud from the title of land, gen- erally, "it will be found sufficient for the plaintiff to allege his pos- session, and interest or estate in the land, as that he is the owner thereof in fee for life or for years, and that he claims the same by a regular chain of conveyances from some recognized and undisputed source of title, as, the United States, or its donee under the do- nation act of September 27.. 1850, without setting out such convey- ances or stating them in detail. But when there is reason to be- lieve, as in this case and many others, that the rightfulness of the defendant's claim depends on the validity or legal effect of some link or links in the conveyances under which the plaintiff claims title, it is very convenient, if not necessary, that the statement of the plaintiff's case should contain the facts fully and in detail at that point in the chain of his title where it conflicts with the claim of the defendant. By so doing the necessity of future amendments will be avoided, and the progress and dispatch of the case promoted." A demurrer to a bill for a lack of certainty in this respect was sustained. Goldsmith v. Gilliland. 22 Fed. 865. But see Thomas v. Xantahala Mi, & T. Co., 58 Fed. 485. On the foreclosure of a mortgage for default in payment of interest coupons, an allegation that they are due and wholly un- paid "to your orator and other hold- ers of said bonds" was held a suffi- cient allegation of ownership. Toler v. East Tennessee, V. & A. Ry. Co., C. C. A., 67 Fed. 168. 5 Lord Digby v. Meech. Bunb. 195: Humphreys v. Tate, 4 Iredell's Eq. (N. C.) 220: Marshall v. Turn- bull. 34 Fed. 827: Daniell's Ch. Pr. (2d Am. ed.) 369, 370. For a case upon the sufficiency of allegations in a hill that complainants comprise all the heirs and next of kin of de- ceased, as showing complainants' title, the bill also containing the decree of distribution, see Hubbard v. Urton, 67 Fed. 419. "It is not necessary, when all the legal and equitable owners are joined., to state (he formalities or the mode of con- veyance by which the equitable in- terests became vested in the co- complainants." Shipman, J., in Black v. Henry G. Allen Co., 9 L.R.A, 433, 42 Fed. 618, 623. 512 BII/LS IN EQUITY. [§ 1^ land, of which he is in possession. 6 Where, in a suit to restrain/ the diversion of the waters of a stream, the complainant's claimed to be prior appropriators as to a certain number of cubic inches of water, and to be entitled to additional amount? as the grantees of other appropriators ; it was held, that the bill should allege on what lands such additional amounts of water, appropriated by complainants' grantors, were used by them. 7 Where, however, there is an existing privity between the plaintiff and defendant, independently of the plaintiff's title, which gives the plaintiff a right to maintain the suit ; as, for example, if they are landlord and tenant, or mortgagor and mortgagee, then it is not necessary to state the plaintiff's title fully in the bill. 8 Where the bill alleged that complainant de- livered certain securities to defendant, as trustee and depositary, to hold and thereafter deliver and distribute to him as directed by the complainant, but did not set forth the terms and con- ditions of the deposit, so as to show that it was not a mere bail- ment ; it was held, that the bill did not aver trust sufficient to confer jurisdiction upon a court of equity. 9 If the plaintiff's title would be incomplete without the performance of some pre- liminary act, then a performance must be alleged, and a mere statement that the title is complete was insufficient. 10 In a bill 6 Miller & Lux v. Rickey, 127 Fed. 573. 7 Miller & Lux v. Rickey, 127 Fed. 573. SDaniell's Ch. Pr. (2d Am. ed.) 370, 371. 9 Young v. Mercantile Trust Co., C C. A., 145 Fed. 39; Ford v. Charles E. Blaney Amusement Co., 1 4S Fed. G42. 10 Walburn v. Ingilby, 1 M. & K. 01; Daniell's Ch. Pr. (2d Am. ed.) 369; supra, § 150. An allegation that tire complainant acquired the title by purchase from the assignee in bankruptcy of the original owner was held sufficient, although it did not state that the assignee in bank- ruptcy obtained an order from the court authorizing him to make the .sale. Amory v. Lawrence, 3 Cliff. 523. Where the plaintiff sued as a shareholder of a joint-stock com- pany, and merely alleged in his bill "that he purchased for valuable con- siderations divers shares, upon which the instalment of five per cent, had been paid, and that he ever since has been, and now is, the holder of such shares;" while in another part of the bill it was al- leged "that by the rules of the asso- ciation, as set forth in the pros- pectus, no transfer of shares would be valid in law or equity, unless the purchaser was approved by a board of directors, and signed an instru- ment binding him to observe the regulations," — it was held, on de- murrer, that such action on the part of the board and the purchaser was a condition precedent to the I 144] GEXEEAL RULES OF EQUITY PLEADING. 513 filed by an executor or an administrator, it seems to be sufficient to state that the will has been proved, or letters of administration taken out, "in the proper court," without naming it. 11 If, however, the plaintiff undertake to name the court, and it be an improper or insufficient one, the bill is demurrable. 12 An -allegation that the defendant is a trustee is insufficient with- out a statement of the facts which make him a trustee. 13 When the nature of the conveyance through which the plaintiff claims is such that by common law, independent of a statute, as, for ex- ample, the statute of frauds, no deed, writing, or other for- mality was essential to its validity, the English rule was that compliance with such formality need not be alleged. 14 In this respect equity followed the rule at common law, that such statu- tory regulations did not alter the form of pleadings. 15 If, however, it appeared upon the face of the bill that compliance had not been made with such a formality, the bill was demur- rable upon that ground. 16 But when a right has been originally -created by statute, as a right to land by devise, or in this transfer of the title to a share of stock; and that the bill was de- fective for not alleging such action. Waltmrn v. Ingilby, 1 M. & K. 61. A complainant who rests his title upon a tax deed must plead per- formance of the prerequisites to the validity of the deed. Green wall v. Duncan, 16 Fed. 35; \Y alburn v. Ingilby, 1 M. & K. 61; Atwill v. Ferrett. 2 Blatchf. C. C. 39; Chica- go Music Co. v. J. W. Butler Paper Co.. 10 Fed. 78; Trow City Di- rectory Co. v. Curtim 30 Fed. 829; Ford v. Charles F. Blaney Amuse- ment Co.. 148 Fed. 642, 645. 11 Humphreys v. Ingledon, 1 P. Wins. 752: Black v. Henry G. Al- len Co.. 42 Fed. 618, 623. The aver- ment that the complainant was duly '"appointed administrator was held insufficient; the issue of letters of administration must be alleged. Otto v. Regina M. B. Co., 87 Fed. 510. Where the state statute (Minn. P. L. 1905. § 3842) author- Fed. Prac. Vol. T.— 33. izes a foreign guardian to sue in the state provided he file an au- thenticated copy of letters in the probate court in the county where the ward's property is situated, it was held that a bill by such a guardian was not demurrable for failure to allege the filing of such a copy. Pulver v. Leonard. 176 Fed. 586. 12 Tourton v. Flower. 3 P. Wms. 369; Black v. Henry G. Allen Co.. 9 L.R.A. 433. 42 Fed. 618. 624; Daniell's Ch. Pr. (2d ed.) 264. 13 Evan v. Avon, 29 Beav. 144. 14 Daniell's Ch. Pr. (2d Am. ed.) 416; Harrison v. Hogg. 2 Yes. Jr. 327. 15 Daniell's Ch. Pr. (2d Am. ed.) 416; Stephen on Pleading. 313. 16 Randall v. Howard, 2 Black. 585, 589, 17 L. ed. 269, 271; Dan- iell's Ch. Pr. (2d Am. ed.) 417; Redding v. Wilkes, 3 Brown, C. C. 401. 514 BILLS IN" EQUITY. [§ 144 country a patent or copyrights, according to the former practice, a compliance with the statutory requirements had to be alleged by one claiming under it. 17 It has been held that an estoppel in pais must be pleaded by the party who seeks to avail himself of the same. 18 Where complainant for fraud or a mistake in fact attacks a patent, issued by the Land Department, he must plead and prove the evidence before the department, show the particular mistake that was made, the wav in which it occurred, and the fraud, if any, which induced the issue of the patent. 19 "The rule in equity is that it is not sufficient to charge a fraud simply, but you must charge also some injury as the result of the fraud." 20 Where a bill shows apparent laches, it should set forth the impediments to an earlier suit, the cause of the com- plainant's previous ignorance, if any, of his rights, and when he first knew of them. 21 In construing a bill in equity, every doubt is against the pleader; 22 but contracts by corporations are presumed to be within their charters until the contrary is shown. 23 When the bill contains general and specific allegations as to the same matter, the general allegations will be referred to those which are specific 24 Exhibits attached to the bill, and therein referred HDaniell's Ch. Pr. (2d Am. ed.) 419: Sullivan v. Redfield. 1 Paine, 441 : Atwfll v. Ferrett, 2 Blatcli. C. C. 39: Walburn v. Ingilby, 1 M. & K. 01 : Atwill v. Ferrett, 2 Blatchf. C. C. 39; Chicago Music Co. v. J. W. Butler Paper Co., 19 Fed. 758; Trow City Directory Co. v. Curtin, 36 Fed. 829; Ford v. Charles E. Blaney Amusement Co., 148 Fed. 642, 645. This rule of equity prac- tice is enforced under the English Rules of 18S3. Seear v. Lawson, 1(5 Ch. D. 621; Read v. Brown. 22 Q. B. D. 128; Davis v. James, 26 Ch. D. 778. 18 Maybury v. Louisville & J. F. Co.. 60 Fed. 645. 19 Le March«>l v. Tppnrarden. 133 Fed. 826: U. S. v. Pratt C. & C. Co., 18 Fed. 708: Murphy v. East Portland, 42 Fed. 308; Lehigh Z. & I. Co. v. X. J. Z. & I. Co.. 43 Fed. 545, 546; Olson v. Nor. R. Co.. 43 Fed. 112. But see Robinson v. Sub- urban Brick Co., C. C. A.. 127 Fed. 804. 20 Linn v. Green. 17 Fed. 407. 21 Badger v. Badger, 2 Wall. 87, 17 L. ed. 836; Richards v. Mackall. 124 U. S. 183, 31 L. ed. 396; Candy v. Marble, 122 U. S. 432. 30 L. ed. 1223; Wollensak v. Reiher, 115 U. S. 96, 29 L. ed. 350. 22 Phelps v. McDonald. 99 U. S. 298. 305, 25 L. ed. 473. 475. 23 Express Co. v. Railroad Co., 99 U. S. 191, 199, 25 L. ed. 319, 320. 24 Ellis v. Colman. 25 Beav. 662; Lumiey v. Wabash Ry. Co., 71 Fed. 21 ; Story's Eq. PL, § 37a. § 145] stockholders' bills. 515 to, are considered as a part of the same. 25 "As to exhibits, they are a mere matter of indulgence. In good pleading, strictly, the bill should give the requisite full information of itself; but indulgence to loose practice and convenience has allowed exhibits with explicit reference to them in the bill, and they may be referred to in aid of the bill ; but they may not be omitted altogether, as here, and the pleader content himself with a naked reference by its date to some document of record in a far-away place." 26 "Good pleading requires that every- thing that is material to the case should be set forth in the pleading itself by proper averments. This may be done in general terms, and the exhibit may be referred to for greater certainty as to particular details, but the pleading ought to contain the substance of the case." 27 Where the plaintiff's title is intelligibly shown, there is no need for profert of the documents upon which it is founded. 28 § 145. Stockholders' bills. By the Equity Rules of 1912, "Every bill brought by one or more stockholders in a corporation against the corporation and other parties, founded on rights which may properly be asserted by the corporation, must be verified by oath, and must contain an allegation that the plain- tiff was a shareholder at the time of the transaction of which he complains, or that his share had devolved on him since bv operation of law, and that the suit is not a collusive one to con- fer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of the shareholders, and the causes of his failure to obtain such action, or the reasons for not mak- ing such effort." 1 This, with the exception of the last clause, is the neAV promulgation of a former equity rule, adopted during the October term, 1881. 2 The original object of the rule was t.» 25 Black v. Henry G. Allen Co., 9 Kelly, 41 Uiss. 490, 9:5 Am. Dee. L.R.A. 433, 42 Fed. (ilS, (125; infra, 2(i7. § 306 - 28 La Republique Francaise v. 26 Hammond, J., in Electrolibra- Seliultz, 57 Fed. 379; infra, § 14G. tion Co. v. Jackson, 52 Fed. 773, § 145. l Eq. Rule 27. 776; infra, § 146. 2 Old .Ea. Rule 94. 27 Chancellor Ellett in Harvey v. 516 BILLS IN EQUITY. [§ 145 prevent suits brought by stockholders, in collusion with the cor- poration, in Federal courts, which otherwise would not have had jurisdiction thereof, and to remedy abuses in this respect, which had then become a common practice. 3 It has been held by one Circuit Court to apply to a suit removed from the courts of the State, the practice of which required no such allegations. 4 That part of the rule which forbids such a suit by a party who has bought the stock in good faith and for a valuable considera- tion, since the cause of action arose, might well be attacked as unconstitutional. That such a purchasing stockholder has the right to bring such a suit has been held by the courts of New Hampshire, 5 Illinois, 6 Alabama, 7 Montana, 8 Idaho, 9 Pennsyl- vania, 10 New Jersey, 11 and Xew York. 12 The opposite position 3 Hawes v. Oakland (Hawes v. Contra Costa Water Co.) 104 U. S. 450.. 460, 461. 26 L. ed. 827. 832, where Mr. Justice Miller said that a stockholder could not tile a bill founded upon rights which might properly be asserted by his corpo- ration against the company and other parties, unless there existed. See also Huntington v. Palmer, 104 l". S. 482. 26 L. ed. 833; Greenwood v. Freight Co., 105 U. S. 13, 26 L. ed. 961; Detroit v. Dean, 106 U. S. 537, 27 L. ed. 300; Quincy v. Steel, 120 U. S. 241. 30 L. ed. 624. *Venner v. Great Northern Ry. Co., 153 Fed. 408 ; affirmed on ques- tion of jurisdiction only, 209 U. S. 24. 52 L. ed. 666. Contra. Earle v. Seattle, L. S. & E. R. Co.. 56 Fed. 909 ; s. c, Eabens v. Union Pac. Ry. ( o.. 58 Fed. 497 ; Maeder v. Buffalo Bill's Wild West Co., 132 Fed. 280. 5 Winsor v. Bailey, r,^ X. H. 218. 6 City of Chicago v. Cameron, 22 111. App. 91. affirmed &0 111. 447. » L. & P. Co. v. Lahey, 121 Ala. 131. 8 Forrester v. B. & M.. etc., Co., 21 Mont. 544. 565. 9 Just v. Idaho Canal, etc.. Co., 16 Idaho, 639, 133 Am. St. Rep. 140. 102 Pac. Rep. 381. 10 Rafferty v. Donnelly, 197 Pa. St. 423. 11 Appletbn v. Am. Malting Co., 65 N. J. Eq. 375. i2Pollitz v. Gould. 202 X. Y. 11, 38 L.R.A.lX.S.) 988, Ann. Cas. 1912D, 1098. The argument of Judge Hiscock seems unanswerable. "As nn original proposition it would seem to be clear that a right of action by or in behalf of the cor- poration for fraud to set aside a conveyance of its assets or to avoid obligations imposed upon it is part of its rights, property and assets in which a stockholder has this in- divisible interest transferable by the transfer of his certificates. I am unable to see any real or substan- tial distinction by virtue of which a stockholder transferring his cer- tificates would transfer all of his indivisible interest in bonds or real estate on hand, but would not trans- fer his interest in a right of action to recover bonds or real estate which had been fraudulently with- drawn from the possession of the corporation, and which it was enti- 145] STOCKHOLDERS BILLS. 51' tied to recover. And if the subse- quent holder by acquiring the cer- tificates does acquire such latter in- terest, it seems to follow that he may, if necessary, in behalf of the corporation, assert and prosecute an action to protect and enforce the same. "Brief reference may be made to some of the reasons advanced in opposition to this view. Counsel points out practical inconvenience which he says will result from its application, owing to the difficulties in tracing stock and distinguishing that which has not assented to the transaction from that which has or from that which perhaps has been issued since its consummation. These arguments, however, are so counterbalanced by corresponding claims from the opposite standpoint as to be of little weight. "Again, it is argued that if one buys stock subsequent to the trans- action he should be regarded as buy- ing subject to it and not be permit- ted to question it. If the prior holder should give binding consent to the transaction, this under cer- tain circumstances undoubtedly would prevent the subsequent pur- chaser from questioning it. But, in the absence of special circum- stances, I fail to see any principle of estoppel or logic which makes a subsequent purchase of stock so sub- ject to a fraudulent corporate trans- action that the purchaser may not insist upon its being set aside. There is scarcely any analogy be- tween the situation of one who buys property from an individual which the latter has subjected to a trans- action which has not been disaf- firmed and that of one who pur- chases stock in a corporation which has the continuing right before and after the purchase to disaffirm a wrong which has been perpetrated on it by its agents. There is little or no basis for the practical consid- eration that one who buys stock should be deemed to have adjusted his price to an existing transaction even though voidable. If he knows of it he may just as properly be assumed to have adjusted his price to the knowledge that the transac- tion may still be disaffirmed and avoided. "Then, lastly, an argument is made which seems to be founded on the idea that in order to bring an ac- tion of this nature the stockholder must in effect disaffirm the corpo- rate transaction and that this dis- affirmance involves a personal right of election which vests in the one holding the stock when the transac- tion is consummated and which can- not be transferred. It is said 'the right to question a fraud is not a purchasable commodity,' and is not 'capable of assignment and trans- fer,' and does not pass 'as an im- plied incident to every sale of cor- porate stock,' and this view seems to be supported by some of the many cases which have been collect- ed and reviewed by counsel with manifest industry and care. "So far as this argument means to assert that a mere naked right to question a corporate transaction could not be transferred to a stran- ger,- if such an attempt can be con- ceived of, it may be assumed to be true. But the assertion that the right to protect stock by procuring an improper corporate transaction to be vacated does not pass on a transfer o^ the stock is a very dif- ferent proposition. "The election to disaffirm a fraud- ulent corporate transaction belongs ;i8 BILLS IN EQUITY. [§ 145 is taken by the courts of Georgia, 13 Colorado, 14 New Mexico, 15 North Carolina, 16 Iowa, 17 Nebraska, 18 Analogous rules regu- late a suit by a stockholder to set aside a contract by the cor- poration as beyond the powers conferred in its charter. 19 It seems that the rule does not apply where the suit arises under the Constitution of the United States, 20 nor to a suit by It does not apply to suits brought by the stock- a mortgagee. 21 to and is exercised in the right and name of the corporation and not of the stockholder. The stockholder demands that the right shall be exercised and the cause of action be prosecuted by the corporation or does it himself for the corporation. It is conceded that the one holding the stock when the fraud is con- summated has this right. When he transfers his certificates the trans- action still stands a continuing wrong impairing the surplus of the company and affecting the stock. If the transferee has the right to have it avoided it will protect and increase the value of his stock. If he has not acquired this right it is the only one held by his predecessor in or through the corporation which has been thought of which has not been transferred by the transfer of the stock. It will be an anomalous exception if the prior holder retains the right to maintain or have main- tained this action while he passes all of his other rights by the trans- fer of his stock. The only justifica- tion pleaded for this is the idea sug- gested of a personal and non-trans- ferable right of election to disaffirm vested in the original holder. But this theory is entirely unsubstan- tial. Such prior holder does not acquire this right to object to the transaction and bring an action to set it aside as a power conferred upon him by reason of any personal qualities, but because of his char- acter as a stockholder, and when he loses this character and transfers it to another with his stock there is no reason why the latter should not exercise the right as a proper and necessary incident to and for the benefit of his stock ownership." 13 Alexander v. Searcy, 81 Ga. 536, 12 Am. St. Rep. 337. i*Boldenweck v. Bull is, 40 Colo. 253. 15 Rankin v. S. W. B. & I. Co., 12 N. Mex. 54. 16 Moore v. Silver Valley Co., 104 K. C. 534. 17 Clark v. Am. Coal Co., 86 la. 436, 17 L.R.A. 557. 18 Home Fire Ins. Co. v. Barber, 67 Neb. 644, 60 L.R.A. 927, 108 Am. St. Rep. 716. 19 Dimpfell v. Ohio & Miss. R. Co., 110 U. S. 209, 28 L. ed. 121; Taze- well v. Farmers' Loan & T. Co., 12 Fed. 752; Greenwood v. Freight Co., 105 U. S. 13, 26 L. ed. 961., 20 Ball v. Rutland R. Co., 93 Fed. 513. See Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819; Pollock v. Farm- ers' L. & Tr. Co., 157 U. S. 429, 39 L. ed. 759. Contra, Corbus v. Alas- ka Treadwell Gold Min. Co., 187 U. S. 455, 47 L. ed. 256. 21 Consolidated Water Co. v. City of San Diego, 89 Fed. 272; Dawson v. Columbia Trust Co., 197 U. S. 178, 181, 49 L. ed. 713. But see Newby v. Oregon C. R. Co., 1 Saw- yer, 63; Dickinson v. Consol. Trac- tion Co., 114 Fed. 232, 245. 145] STOCKHOLDERS BILLS. 519 holders of a corporation after its dissolution ; 22 nor where the corporation has made a general assignment for the benefit of its creditors and the assignee in insolvency has refused to sue, 23 nor to a suit to rescind a contract, made by the stockholders in- dividually, for the transfer of the corporate property; 24 nor to a bill for the appointment of a receiver because of insol- vency; 25 nor, it has been held, to a suit by a stockholder alleg- ing that his corporation had ceased actively to conduct its business and to elect officers and directors, praying the appoint- ment 'of a receiver and a winding up of its affairs; but the 'rule applies where, although the charter of the corporation has expired, the company still exists for the purpose of winding up its affairs. 27 Not, it has been said, to a bill where the complain- ant proceeds against the formal action of the stockholders of the corporation. 28 Nor, it has been held, to a case where the complainants' cause of action existed independently of and prior to the accrual of their rights as stockholders ; for example, un- der a contract by the promoters of the corporation. 29 Nor to a suit to restrain corporate actions to which the president of the corporation is made a party solely for purposes of discovery. 30 '.Nor to a bill by a depositor on behalf of himself and the other depositors to hold the directors of a bank responsible for losses caused by their misconduct. 31 It has been held that the rule does not apply to a bill to enforce a right of action which the cor- poration could not enforce in its entirety, such as a suit which prayed the dissolution of the corporation as well as the rescis- sion of a contract made by it. 32 Where bondholders, by judicial proceedings, compelled an exchange of stock for their bonds sub- 22 Lafayette Co. v. Neely, 21 Fed. 738. See Boyd v. Hankinson, C. C. A.. 92 Fed. 49. 23Streight v. Junk. C. C. A., 59 Fed. 321. 24 old Colony Trust Co. v. Du- buque L. & Tr. Co.. 89 Fed. 794. 25 Re Cleland, 218 U. S. 120, 54 L. ed'. 962. 26 Briggs v. Traders' Ins. Co., 145 Fed. 254. 27 Taylor v. Holmes, 127 U. S. 489, 32 L. ed. 179; s. c, 14 Fed. 498. 28 Binney v. Cumberland Ely C. Co., 183 Fed. 050. 29 Rogers v. Penobscot Mining Co.. 154 Fed. (10(1. 30 Ix>o v. Union Pac. Ry. Co.. 17 Fed. 273. 31 Foster v. Bank of Abingdon. SS Fed. 604. 32i: ;m -u^ v. Gates, C. C. A.. S9 Fed. 783, 793. See Towle v. Am. B. L. & I. Co.. en Fed. 131: Excel- sior P. P. Co. v. Browne, C. C. A., 74 Fed. 321. But see Becker v. Hoke, C. C. A., SO Fed. 973. 520 BILLS IN EQUITY. [§ 145 sequent to the transaction of which complaint was made, it was held that they could not maintain a stockholders' suit to set the same aside. 33 It has been held that a stockholder can- not sue to enjoin a corporation from paying internal revenue taxes. 34 The bill must specifically aver that the suit is not a collusive one to confer on a court of the United States jurisdic- tion of a case of which it otherwise would not have cognizance. 35 It is insufficient to allege "that this suit is brought in good faith, and for the collection of, and to compel the collection of, what your orator believes to be a meritorious claim." 36 Col- lusion is not established by the facts that the corporation would be benefited by the success of the complainant ; 37 that its offi- cers expressed a desire for the success of the suit ; 38 that the refusal of the corporation to institute the suit was based ex- pressly upon the ground, that that would excite public preju- dice against the company ; 39 that one or more other stockholders who are citizens of the same State as the principal defendant, but who are less than a majority, contribute to the expense of the suit ; 40 that the stockholder's counsel is subsequently re- tained in a prior suit by the corporation brought by it for the same purpose, which is still pending upon an appeal taken by the company ; 41 that the corporation, subsequent to the com- mencement of the suit, assisted the stockholder in the same, when there is no proof of any agreement between them prior to the 33 Citizens' Saw & Tr. Co. v. Illi- nois Cent. R. Co., 173 Fed. 556. 34 Strauss v. Abrast Realty Co., 200 Fed. 327 ; citing Corbus v. Alas- ka Treadwell Gold Mining Co., 187 U. S. 455, 23 Sup. Ct. 157, 47 L. ed. 2")ti: distinguishing Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, 15 Sup. Ct. (173, 39 L. ed. 759; Zonne v. Minneapolis Syndi- cate, 220 U. S. 187, 31 Sup. Ct. 361, 55 L. ed. 428. 35Q u in C y v. Steel, 120 U. S. 241, 246, 30 L. ed. 624, 626; Smith v. Chase & Baker Piano Mfg. Co., 197 Fed. 400. 36Quincy v. Steel. 120 U. S. 241. 240. 247, 30 L. ed. 024. 026. 37 Chicago v. Mills, 204 U. S. 321, 51 L. ed. 504; affirming Mills v. Chicago, 143 Fed. 430. 38 Ibid. 39 Chicago v. Mills, 204 U. S. 321, 51 L. ed. 504; affirming Mills v. Chicago, 143 Fed. 430; New Albany Waterworks v. Louisville Banking Co., 122 Fed. 776, 58 C. C. A. 576; Consumers' Gas Trust Co. v. Quin- l.y, C. C. A., 137 Fed. 882. 40 Chicago v. Mills, 204 U. S. 321, 51 L. ed. 504; affirming Mills v. Chicago, 143 Fed. 430. 41 Ibid. 145] STOCKHOLDERS BILLS. 521 filing of his bill. 42 Xor even when the plaintiff testified that he understood the suit was brought to center, upon a court of the United States, jurisdiction, in a case of which it would not otherwise have cognizance, the difference of citizen- ship between him and the defendants being undisputed. 43 "It must also set forth with particularity the efforts of the plain- tiff to secure such action as he desires on the part of the man- aging directors or trustees, and, if necessary, of the sharehold- ers, and the causes of his failure to obtain such action, or the reasons for not making such effort." 44 A previous demand upon the board of directors is unnecessary in a case of emer- gency, when irreparable injury would be caused by delay; for example, in a suit to redeem, when the time for redemption expired within a few days ; 45 or where the bill shows danger of the removal of the assets from the jurisdiction pending such an application. 46 A previous demand is not required in a case where it clearly appears, that the corporation would certainly refuse to bring the suit, and the demand would be a vain and useless act. 47 For example, a bill by a minority stockholder to set aside a transaction committed by the approval of the major- ity in their individual interests, 48 or when the directors of the corporation, at the time the suit was brought, were the same 42 Ibid. For other cases where refusals to sue were held not to be collusive, see Bowdoin College v. Merritt. (35 Fed. 213; Fowl v. Am. B. L. & I. Co., 60 Fed. 131. 43 Ibid. Perkins v. Pac. Ry. Co., 155 Fed. 445. 44 Eq. Pule 27. See also Hawes v. Oakland. 104 U. S. 450, 26 L. ed. 827; Huntington v. Palmer, 104 U. S. 482. 26 L. ed. 833; Dodge v. Woolsey, 18 How. 331, 15 L. ed. 401; Greenwood v. Freight Co., 105 U. S. 13, 16, 26 L. ed. 961; Detroit v. Dean, 106 U. S. 537, 542, 27 L. ed. 300, 302; County of Tazewell v. Farmers' L. & T. Co., 12 Fed. 752; Dimpfell v. Ohio & Miss. R. Co., 110 U. S. 209, 28 L. ed. 121 ; Quincy v. Steel. 120 U. S. 241. 30 L. ed. 624: §§ 12, 87, 207; Whitney v. Fairbanks. 54 Fed. 985; Strang v. Edson, 198 Fed. 813. 45 Young v. Alhambra Mine Co., 71 Fed. 810. 46 Tevis v. Hammersmith, 31 Ind. App. 281. 66 N. E. 79. 47 County of Tazewell v. Farmers' L. & T. Co.. 12 Fed. / o CO. Ranger v. Champion C. P. Co., 52 Fed. 611 : Rogers v. Nashville, C. & St. L. Ry. Co., C. C. A., 91 Fed. 200; De Neuf- ville v. X. Y. & X. Ry. Co.. C. C. A.. 81 Fed. 10. Put see Squair v. Look- out Mountain Co.. 42 Fed. 729; Farmers' L. & T. Co. v. Toledo, A. A. & X. M. Ry. Co.. 67 Fed. 40: Church v. Citizens' S. R. Co., 78 Fed. 526. 48 Doctor v. Harrington. 106 U. S. 570. 40 L. ed, 606: Rogers v. Nashville, C. & St. L. Ry. Co.. C. 522 BILLS IN EQUITY. [§ 145 as those who had committed the wrongs, which the suit is brought to redress, 49 or a bill to enforce a cause of action against a defendant which owns or holds the voting power of a sufficient amount of stock of the plaintiff's corporation to con- trol a stockholders' meeting. 50 Xor is there necessity for such ;i demand in a suit where the bill states facts showing that the managing directors are in league with the president, who chose them, and who is using the corporation to defraud the complain- ant; 51 nor where it is shown that a majority of the stock of the corporation is controlled by_ another company, which the bill seeks to enjoin from voting thereupon, so as to elect its own directors and eliminate competition, to the irreparable in- jury of the complainant. 52 It is insufficient, however, to allege complicity of the president and directors in the fraud, of which complaint is made, when the bill does not show that an applica- tion to the stockholders for action would be unavailing. 53 Where the matter has been considered at a stockholders' meeting, a pro- test then made bv the dissenting stockholders is sufficient to enable them to maintain a bill ; 54 but the bill must show that a majority of the stockholders voted in favor of the proposition. 55 AYhere the bill showed that the largest block of stock, although less than a majority, was held or controlled by the wrongdoers, and that all the stock not owned or controlled by the complain- ants was scattered among small holders; it w T as held to be suffi- C. A., 91 Fed. 290; De Xeufville v. N. Y. & N, Ry. Co., C. C. A., 81 Fed. 10; Sager v. Culver, 147 N. Y. 241. 240; Earle v. Seattle, L. S. & E. Ry. Co., 56 Fed. 909: Eldred v. Am. P. C. Co., 99 Fed. 168 3 Berwind v. Canadian Pac. Ry. Co., 98 Fed. 158. 49 Howard v. National Telephone Co.. 182 Fed. 215. See, also. Conti- nental Securities Co. v. Interbor- ough R. T. Co., 165 Fed. 945: O'Connor v. Virginia Passenger & Power Co., 184 N. Y. 46, 52. 50 Delaware & Hudson Co. v. Al- bany & Susquehanna R. R. Co.. 213 I. S. 435. 53 L. ed. 862; Field v. \\ estern Life Indemnity Co., 166 Fed. 007. 51 Monmouth Tnv. Co. v. Means, C. C. A., 151 Fed. 159. 52 Bigelow v. Calumet & Hecla Min. Co., 155 Fed. 869. 53 Macon. D. & S. R. Co. v. Shai- ler. C. C. A., 141 Fed. 585: Smith v. Chase & Baker Piano Mfg. Co., 197 Fed. 466, where the bill showed that the complainant was requested to attend a directors' meeting, but had not done so, nor made any at- tempt to settle the dispute; Binney v. Cumberland Ely Copper Co., 183 Fed. 650. 54 Binney v. Cumberland Ely Cop- per Co.. 1S3 Fed. 650. 55 Ibid. 145] STOCKHOLDERS BILLS. 523 58 cient. 00 By the courts of the State of Xew York, no applica- tion to the stockholders is required. 57 The facts showing the control of the corporation, in such a case, must be specifically pleaded. 58 An averment that the holders of a majority of the stock have granted a voting power to the directors, who are im- plicated in the transaction attacked, is sufficient. 59 But it was held in Xew York that averments that the defendants, against whom the complaint is made, caused the election of a board of directors, "subservient to the domination and dictation of said defendants," and that "the company, by its board of directors, acted fraudulently and collusively and under the dom- ination of" one of such defendants ; were insufficient to show that the plaintiff was relieved from making air application to the board prior to the commencement of his suit; 60 and that a previous demand upon a corporation to dis- regard a lease did not authorize a suit to annul the same. 61 The bill should show the time and manner of the demand and that the board of directors had not changed. 62 Where a bill showed that the corporation had refused to sue upon the advice of coun- sel that the proceeding could not be successfully maintained, it was dismissed. 63 General averments of fraud or misconduct are insufficient. 64 Tangible facts to sustain such averments must be pleaded. 65 It has been said that as much certainty is re- quired in a bill by a stockholder to enforce a corporate right as in a bill by a corporation for the same purpose. 66 It has been said that the allegations required by the rule are jurisdictional 56 Delaware & Hudson Co. v. Al- bany & Susquehanna R. R. Co., 213 U. S. 435, 452, 53 L. ed. S62, 868. 57 Continental Securities Co. v. Belmont, 200 X. Y. 7, affirming 150 App. Div. 298. 58 O'Connor v. Virginia Passenger &: Power Co., 184 X. Y. 46. 52. 59 Doctor v. Harrington, 196 U. S. 579. 49 L. ed. 606. 60 O'Connor v. Virginia Passenger & Power Co., 184 X. Y. 46. 52. See Brewer v. Boston Theatre, 104 Mass. 378. 61 Flynn v. Brooklyn C. R. Co., 158 X. Y. 493. 509. 62Swope v. Vfllard, 61 Fed. 417. 63 Hendriekson v. Bradley, C. C. A., 85 Fed. 508. 6*Sehel] v. Alston Mfg. Co.. 149 Fed. 439: Smith v. Chase & Baker Piano Mfg. Co., 197 Fed. 400: Con- tinental & 0. Tr. & S. Bank v. Allis- Chalmers Co., 200 Fed. 000, 611. See supra, § 137. 65 Ibid. 66 Whitney v. Fairbanks, 54 Fed. 9S5. 524 BILLS IN EQUITY. [§ 145 and cannot be supplied by amendment ; 67 but the question as to the sufficiency of a bill, under this rule, cannot he certified directly from the District Court to the Supreme Court of the I nited States. 68 An allegation that complainant is the bona fide and lawful owner "of record" of a specified number of shares of the stock of the corporation, is a sufficient averment that the complainant is a stockholder. 69 It has been held: that such a bill must contain an allegation that the complainant and his predecessors in title, since the transaction which he seeks to set aside, haye not acquiesced in the same ; 70 that a tender or offer need not be made or alleged, which might be necessary in case of a suit brought by the corporation; 71 that a stockholder cannot, in the same suit, seek, on his own behalf, to cancel stock which he holds, and also, on behalf of all the stockholders, to set aside corporate transactions, 73 but that he can pray in the same bill for a cancellation of an illegal issue of stock to others, an injunction restraining the transferee from voting upon the same and a receiver of the corporation. 73 It was held, under the for- mer rules, that an equitable owner of stock, whose title was con- tested, could not maintain such a suit. 74 But the soundness of these decisions may be doubted. Under the new rules, the doctrine that equity having once obtained jurisdiction will afford relief, may be enforced ; and there can be little doubt that the holder of a certificate of stock, endorsed in blank, may bring 67 Dickinson v. Consol. Traction Co., 114 Fed. 232. 242. 68 Venner v. Great Northern Rail- way Co., 209 U. S. 24, 52 L. ed. 666. 69 Continental Securities Co. v. Interborough R. T. Co., 165 Fed. 945, 063. 70 Venner v. Atchison, T. & S. F. Ry. Co., 28 Fed. 5S1. 591; Trimble v. American Sugar Refining Co., 61 N. J. Eq. 340. See Church v. Citi- zens' St. R. Co.. 78 Fed. 526. Con- tra, Brazil] v. Isham. 12 X. Y. 9. 17: Pollitz v. Gould. 202 X. Y. 11, 38 L.R.A.lX.S.) 988. Ann. Cas. 1912D. 1098; Coatsworth v. Lehigh Valley Ry. Co.. 115 App. Div. (X. Y.) 7; Continental Securities Co, v. Belmont, 75 Misc. (X. Y.) 234, 250. 71 Edwards v. Mercantile Tr. Co., 124 Fed. 381, 391; Citizens' Sav. & Tr. Co. v. Illinois Cent. R. Co., C. C. A.. 182 Fed. 607. 72 Church v. Citizens' St. R. Co., 78 Fed. 526. 73 Howard v. National Telephone Co.. 182 Fed. 215. 74 Inman v. Xew York Interurban Water Co., 131 Fed. 997, 999; Witherbee v. Bowles, 142 App. Div. (X. Y.) 407, 417; U. S. Steel Cor- poration v. Hodge, 64 N. J. Eq. 807, 809. 60 L.R-.A. 742. Contra. Weber v. Wallerstein, No. 1, 111 App. Div. (N. Y.) 693. 146] PATEXT CASES. 525 such a suit before the stock has been transferred to him upon the books of the corporation, although out of abundant caution it might be prudent to join as a party the person in whose name the stock is registered. 75 It has been said : that where a small minority of the stockholders have been injured by a sale, it will not always be rescinded; but that the court may direct a valua- tion of the complainants' stock and the payment to them of the same under such a penalty as will give them ample secur- ity 76 § 146. Bills to enjoin the infringement of patents. A bill to restrain the infringement of a patent must allege : that the complainant or the person through whom he claims was the inventor or discoverer of the thing or process patented ; l that it has not been previously patented, nor described in any printed publication ; 2 that it was not in public use nor on sale for more than two years before the application. 3 It must show that the patent was duly issued ; 4 that the plaintiff has and had, at the time when the bill was filed, 5 a title to the patent, or such 75 See §§ 113, 120. supra, 76 Bhmey v. Cumberland Ely Cop- per Co., 18.3 Fed. 650, 653. § 146. l Sullivan v. Redfield, 1 Paine, 441 ; Am. Grapliaphone Co. v. Xat. Phonograph Co., 127 Fed. 340. For a precedent of a bill for the infringement by the original patentee, see McCoy v. Nelson, 121 U. S. 484, 30 L. ed. 1017. See §29, supra; § 277. infra. 2 Hutton v. Star S. S. Co., 00 Fed. 747: Diamond Match Co. v. Ohio W. Co., 80 Fed. 117; Goebel v. Am. Ry. Supply Co.. 55 Fed. 825; Rub- ber T. W. Co. v. Davie, 100 Fed. 85; Am. Graphophone Co. v. Xat. Phonograph Co., 127 Fed. 349. 3 Blessing v. John Traeger S. C. Works, 34 Fed. 753; Krick v. Jan- sen. 52 Fed. 823; Am. Graphophone Co. v. Xat. Phonograph Co.. 127 Fed. 349; Hayes-Young T. P. Co. v. St. Louis Transit Co., 130 Fed. 900. An allegation that it had not been so used or sold with the consent of the inventor is insufficient. Ibid. The bill need not allege that the invention was not abandoned before the application for the patent. Warren F. Co. v. Warner Bros. Co., 92 Fed. 990. 4 It has been held: that an alle- gation that a patent was duly is- sued, upon application to the "prop- er department of the government." is insufficient. Vant Woud Rubber Co. v. Sternau, 145 Fed. 197. 5 Krick v. Jansen, 52 Fed. S23. But see Arrott v. Standard Mfg. Co., 113 Fed. 1014. Where a bill by the assignee of a patent seeks damages and profits for past in- fringement, it must state the date of the assignment, and that the right of recovery for past damages and profits was included therein. Vant Woud Rubber Co. v. Sternau, 145 Fed. 197. 526 BILLS IN EQUITY. [§ 146 it 1 1 interest in the same as gives him the right to the protec- tion from the court; 6 and that the defendant has infringed, and still infringes, the patent; 7 or threatens to infringe the >;mie. 8 When the hill alleges: that a patent was issned, it is 6 Kriok v. Jansen, 52 Fed. 823: Am. (Jraphophone Co. v. Nat. Pho- nograph Co.. 127 Fed. 340. It has lieen hold insufficient to aver sim- ply the issue to complainant of the patent and iliat the letters-patent are in his possession. Lettelier v. Mann. 70 Fed. 81. But see Arrott v. Standard Mfg. Co.. 113 Fed. 1014. When a hill alleged "that the pat- entee was the original, first and sole inventor of a certain new and use- ful improvement in the construction of cable railways, fully described in the specification of the said letters- patent, which bad not been patented to himself or to others, with his knowledge or consent, in any coun- try, and had not. to his or the orator's knowledge, been in public use or on sale in the United States for more than two years prior to his invention and discovery thereof, and application for letters-patent of the United States therefor'' it was held sufficient. American Cable Ry. Co. v. City of X. Y.. 42 Fed. 00. It has been held to be a sufficient allegation of title for the plaintiff to allege that he "was the true, original and first inventor of a certain new and useful improved application of steam power to the captain of vessels, not known or used before." that a description or specification of the aforesaid im- provement was given in his sched- ule to the aforesaid letters-patent annexed; accompanied by certain drawings referred to in said last mentioned schedule, and forming parts of said letters-patent, — the said letters-patent and the said specification thereto annexed (which, your orators will produce. which, or an exemplified copy of which, as your honors may direct) were duly recorded in the patent office." McMillin v. St. Louis & Mississippi Valley Transp. Co., 18 Fed. 200. Where the patentee and licensee joined as complainants, and there was a demurrer for misjoinder it was held, that the complainants must produce the license upon the argument of the demurrer, since it was not set out in the bill. Dyer v. Cryder. 153 Fed. 767. 7 Western El. Instrument Co. v. Valee Bros. El. Co.. 145 Fed. 534. 8 Bowers v. Bucyrus Co., 132 Fed. 39. It has been held that a simple averment that the defend- ant has infringed the patents above described is sufficient. Am. Bell Tel. Co. v. Sou. Tel. Co.. 34 Fed. 803. See also McMillin v. St. Louis & M. V. Tr. Co.. 18 Fed. 200: McCoy v. Nelson, 121 U. S. 4S4. 30 L. ed. 1017: Cleveland F. & B. Co. v. U. S. Boiling S. Co., 41 Fed. 476; Peters v. Chicago Biscuit Co., 142 Fed. 770. See Thomson-Houston EL Co. v. Electrose Mfg. Co., 155 Fed. 543. But see Am. S. L. B. Co. v. Empire S. X. Co.. 50 Fed. 020. It is enough to aver: "that the defend- ant is now constructing, using, and selling steam-power capstans for vessels in some parts thereof substantially the same in con- struction and operation as in the said letters-patent mentioned." McMillin v. St. bonis & Missis- 146] PATENT CASES. 52^ unnecessary to allege that an application was made. The filing of the application in due form commensurate with the grant is presumed from the issue of the patent. 9 When, to meet a sippi Valley Transportation Co., 18 Fed. 260, 261. See McCoy v. Nelson, 121 U. S. 484, 30 L. ed. 1017. A bill for an injunction and an accounting was held to be good on demurrer, although it did not al- lege that the complainant was en- gaged in using the invention patent- ed, or that it was a source of profit to him, when it alleged that the de- fendant had made profits by the use of the invention. Wirt v. Hicks, 46 Fed. 71. A bill which alleged the issue of a patent for a "process" of making furniture nails, which it set forth, alleged that the defendant, "in infringement of the aforesaid letters-patent," did wrongfully "make, use, and vend to others to be used, furniture nails embracing the improvement set forth and ■claimed in the aforesaid letters- patent," was held demurrable as not containing sufficient averment of infringement. Am. S. L. B. Co. v. Fmpire S. N. Co., 50 Fed. 929. Tl has been held that in a suit against two or more for the in- fringement of a patent, a general allegation of infringement is suffi- cient without a specific allegation that they are joint infringers. In- durated F. I. Co. v. Grace, 52 Fed. 124, 127; Diamond Match Co. v. Ohio Match Co., 80 Fed. 117. Con- tra, Shickle v. Foundry Co., 22 Fed. 105; Fitchel v. Barthel, 173 Fed. 489. A bill to enjoin the infringe- ment of a patent by the use of a machine need not r l ate what articles the defendant has made by the use of the machine. Fischer v. Hayes, € Fed. 76, 78. An allegation that the defendant "since the date of said patent" had infringed was held upon demurrer not to signify "ever since." but "after or subsequently to" that date. Brush El. Co. v. Ball El. Light Co., 43 Fed. 899. Where the bill alleged infringement subse- quent to the date s of the patent and more than six years before the filing of the bill, it was held not to be defective because it failed to al- lege such infringement had con- tinued. Fichtel v. Barthel, 173 Fed. 489, 491. A bill which alleged that a complainant had obtained a cer- tain patent, that the defendant had obtained patents of a later date which interfered with complainant's rights, and that defendant is mak- ing and selling machines under his patents, and has in other ways dis- turbed complainant in the use and enjoyment of the rights granted by his patent, was held to charge interference sufficiently. Stone- metz P. M. Co. v. Brown F. M. Co., 46 Fed. 72. It has been held: that where a bill charges the infringe- ment of a patent generally, it may be construed as charging the in- fringement of all the claims and that the complainant cannot be re- quired to amend by specifying the claims, with respect to which the infringement is claimed, and the parts of defendant's machine or structure, which are claimed to infringe. Morton Tr. Co. v. Am. Car & Foundry Co., C. C. A., 129 Fed. 916. 9 Bowers v. Bucvrus Co., 132 Fed. 39. 528 BILLS IN EQUITY. [§ 146: defense of prior public use. the plaintiff relied upon a former application which had been abandoned, it was said that the date and facts concerning the same should have been pleaded in the hill. 10 The hill need not se1 forth: that the invention was. not patented in a foreign country more than seven months be- fore the filing of the application in the United States. 11 The hill must also contain a substantial description of the patent or else set out the patent itself, or have the same annexed as. an exhibit. 12 Profert of the patent will, however, suffice. 13 and will supply any deticiencies concerning its contents or signature which therein appear. 14 In such a case, only its title need be set forth. 15 It is insufficient to allege: "as by the said letters patent and specifications, all in due form of law, ready in court to be produced, will fully appear;'' 16 hut it is the safer practice also to state the number of the patent, and the volume and" page of its record in the patent office ; 17 together with its title. An allegation of the date, without profert, is insufficient. 18 It has been held : that the mention, in a bill, of prior patents to the same patentee, does not amount to a profert of such patents, so as to brino- them before the court for consideration on a 10 Corrington v. Westinghouse Air Brake Co., C. C. A.. 178 Fed. 711. 11 American Cereal Co. v. Ori- ental Food Co., 145 Fed. 649. 12 Stirrat v. Excelsior Mfg. Co. 44 Fed. 142. 13 Wilder v. McCormack, 2 Blatchf. 31: McMilliii v. St. Louis & Miss. Valley Transportation Co., 18 Fed. 260; Dickerson v. Green. Fed. 247; Bogart v. Hinds. Bee Candy Fichtel v. '•The de- bill should 53 Fed. 4S4: Hildreth v. Mfg. Co., 162 Fed. 40; Barthel. 173 Fed. 489. murrer says that the make 'profert' of the letters patent, and the plaintiff replies the 'profert' i- unknown to equity pleadings. Technically this may be so. but the equivalent of 'profert' is known: and whenever the law pleadings must make 'profert. ' the equity pleadings must allege and prove with fullness enough to give all the benefit the 'profert.' would give, and under a rule the production of the document would be compelled." Hammond, J., in Electrolibration Co. v. Jackson. 52 Fed. 773. 776. See supra, note 6: infra. £ 366. 14 Fichtel v. Barthel. 173 Fed. 489. iSMcMillin v. St. Louis * Miss. Valley Transportation Co.. 18 Fed. 260. See Dickerson v. Greene. 53 Fed. 247. 16 Wilder v. Mc( "ormick. 2 Blatchf. 31 : Dickerson v. Green. 53 Fed. 247: Bogart v. Hinds. 25 Fed. 4S4. See infra, § 366. 17 Electrolibration Co. v. Jackson, 52 Fed. 773. 776. See Welsbach L Co. v. Bex I. L. Co.. S7 Fed. 477. 18 Ibid. § 146] PATENT CASES. 529 demurrer. 19 In case of a profert, the document thus offered may be retained in the custody of the pleader until the hear- ing. 20 The Revised Statutes provide : "Whenever, through inad- vertence, accident, or mistake, and without any willful de- fault or intent to defraud or mislead the public, a patentee has, in his specification, claimed to be the original and first in- ventor or discoverer of any material or substantial part of the thing patented, of which he was not the original and first in- ventor or discoverer, every such patentee, his executors, ad- ministrators, and assigns, whether of the whole or any sectional interest in the patent, may maintain a suit at law or in equity,. for the infringement of any part thereof, which was bona fide- his own, if it is a material and substantial part of the thing patented, and definitely distinguishable from the parts claimed without right, notwithstanding the specifications may embrace more than that of which the patentee was the first inventor or discoverer. But in every such case in which a judgment or decree shall be rendered for the plaintiff no costs shall be re- covered unless the proper disclaimer has been entered at the Patent-Office before the commencement of the suit. But no- patentee shall be entitled to the benefits of this section if he has unreasonably neglected or delayed to enter a disclaimer.'' 21 It has been held that when one of the claims under a patent has been held to be void, a disclaimer of the same must be filed before the final decree in an infringement suit. 22 Where the complainants sued as joint owners of a patent and as such prayed for an accounting, adding thereto the prayer for gen- eral relief, it was held that profits due to a single one of them, as exclusive licensee for a certain territory, could not be recov- ered in the absence of an averment concerning his license in the bill. 23 But the better practice is not to require a disclaimer until the entry of the final decree after any accounting that 19 Bowers v. Bucyrus Co., 132 Fed. 22 Suddard v. Am. Motor Co., 163 39. Fed. 852. 80 Germain v. Wilgus, C. C. A., 8* National Metal Weather Strip 67 Fed. 597. Co. v. Bredin, C. C. A., 186 Fed. 21 l'. S. R. S.. § 4922, 5 Fed. St. 490. Aim. 598. Pierce's Fed. Code ( 1'tlO), p. 1652; § 8789. Fed. Prac. Vol. I.— 34. 530 BILLS IN EQUITY. [§ 146 may be ordered lias been terminated, in order that the com- plainant may have the right to have so much <>f the adjudica- tion as is againsl him reviewed upon appeal. 24 Where dalaages for an infringement are prayed, the hill must show that notice to the public was given by the plain- tiff, by affixing the word "patented;' together with the day and year the patent was granted, npon each patented article made 'or sold by him, which is covered by the patent in suit, or when, from the character of the article, this conld not be done, by affixing to it, or to the enclosing package, a label containing the same notice; or else that the defendant was duly notified of the infringement and continued after the notice to make, use or vent the article so patented. 25 Such notice is not essen- tial where the city seeks an injunction without any demand for profits or damages ; 26 and without such marking or any al- legations concerning the same, an accounting may he decreed because of infringements committed after the filing of the bill. 27 The history of the invention, and a description of patents issued to the complainant before that sued upon, were held to be proper averments. 28 So were the grant of foreign patents for the same invention and acquiescence therein in this and other countries. 29 It was also held proper to describe previous litigation over the same or similar patents. 30 The bill need 24 Page Mach. Co. v. Dow. Jones & Co., C. C. A... 168 Fed. 703. 25 u. S. R. S.; § 4900. Sprague v. Bramhall-Deane Co.. 133 Fed. 738; Streat v. Finch. Young & Mc- Con?ille, 154 Fed. 378: G. Heileman Brewing Co. v. Independent Brewing Co.. C. C. A., 191 Fed. 40 1. Where the bill admitted that the complain- ant had made and sold the patented articles, without alleging compliance with the statutory requirement con- cerning marking the same: but al- leged that dtefendant continued to infringe after due notice, and omit- ted to give the date bf such notice; it was held: that an admission by the defendant of notice did not re- lieve complainant from the harden of proving the dale: and that where that question was not adjudicated by an interlocutory decree finding infringement and directing an ac- counting, the date must be proved before the Master to afford any basis for an accounting. Lorain Steel Co. v. N. Y. Switch & Crossing Co., 153 Fed. 205 26 Morton Tr. Co. v. Am. Car & Foundry Co.. 1161 Fed. 540. 27 Maimen v. Union Special Mach. Co., C. C. A., 105 Fed. 440. 28 Steam G. & L. Co. v. McRob- erts, 26 Fed. 765. 29 Peters v. Chicago Biscuit Co., 142 Fed. 779. 30 Steam G. & L. Co. v. MeRob- erte, 20 Fed. 7.65; Am. Bell Tel. Co. v. So. Tel. Co.. 34 Fed. 803. § H6] V A TEXT CASES. 531 not allege that the invention had not been abandoned before the grant of the patent. 31 It. was held at Circuit that in a bill founded upon a reissued patent it is not necessary to aver specifically the ground upon which the original patent wa- sur- rendered; 82 hut if such a hill shows a delay of more than two years in the application for the reissue; 33 or in the patent of- fice, 34 it must allege sufficient excuse for the delay. Where the hill shows such a relation between the defendants and the pate entees as to estop the former from denying the validity of the patent, a specific allegation of such estoppel is not necessary. 35 The objection, that a hill for infringement does not show upon which of the claims of the patent the complainant relies, is not a ground for dismissing the hill, but should he raised hv a mo- tion to require the complainant to specify such claims. 36 When But see Western El. Co. v. Wil- liams-Abbott El. Co., 83 Fed. 842. 31 Fichtel v. Barthel, 173 Fed. 489. 32 Spaeth v. Barney. 22 Fed. 828. Upon a demurrer for both uncer- tainty and want of equity to a bill founded upon a reissued patent, when the only allegations concern- ing the reissue were "that said Charles T. Day having, for good and lawful cause and with the consent and approbation of your orator, surrendered said letters- pfatent to the Commissioner of Patents, and having made due ap- plication therefor, and having in all things complied with the acts of Congress in such case made and provided, did, on the eighteenth of February, 187!). obtain new letters- patent, being reissued letter— pat- ent, for the same invention for the residue of said term, and which were marked "reissue. Xo. 8. .V.HI.' and were isslied in due form of law to your orator, as assignee, under the seal of the patent cSfice of the United States, signed by the Secretary of the Interior and countersigned by the Commis- sioner of Patents, and hearing date the day and year aforesaid, as by the last mentioned reissued let- ters-patent, ready here in court to be produced, will appear:" it was held that the bill was not objection- able. The court then said: "It is not necessary to aver, specifically', the ground on which the original patent was surrendered. The reis- sue of letters-patent by the Commis- sioner is prima facie evidence that such reissue is founded on sufficient cause, and is in accordance with law. It is also presumed that the Com- missioner acted within his statu- tory authority until the contrary is proved." Ibid! 33 Wollensak v. Reiher. LIS LT. S. 90. 29 L. ed. 350. 34(, a ndy v. Marble. 122 I". S. 432. 30 L. ed. 1223. 35 Climax Lock & Ventilator Co. v. Ajax Hardware Mfg\ Co., 102 Fed. 126. 86 Maicobi Wireless Tel. Co. v. Xew England NevJ Co., 191 Fed. 194. r.32 BILLS IX EQUITY. [§ 1±6 there is no other ground for equitable relief, the court of equity has no jurisdiction of a suit upon a contract for royalties, 37 nor for an accounting by an infringement of a patent. 33 Con- sequently, after the expiration of a patent, when an injunction can no longer be granted against further infringements, a bill for an accounting by an infringer will not be sustained. 39 But where infringing articles, made when the patent was in force, are in the defendant's possession, equity may take jurisdiction, since the right to an injunction there exists. 40 A bill praying an injunction and an accounting, filed only a few days before the expiration of a patent, may, in the discretion of the court, be sustained by a decree for an accounting only, although the patent has expired before the hearing, provided that it was possible to obtain equitable relief during the life of the pat- ent. 41 It has been so held of bills filed four months and live days, 42 between two and three months, 43 "a few weeks," 44 forty-eight days, 45 fifteen days, 46 before the patent's expiration; or even one day before, when the bill alleged that complainant 87Safford v. Enaign Mfg. Co., G. C. A., 120 Fed. 480; Allen v. Con- sol. Fruit Jar Co., 145 Fed. 948, where the cancellation of patents was also prayed. 38 Root v. Railway Co., 105 U. S. 189, 26 L. ed. 975; Brooks v. Miller, 28 Fed. 015, 017. 39 Ibid. 40 New Jersey Patent Co. v. Mar- tin, 172 Fed. 700; Root v. Railway Co., 105 U. S. 189, 20 L. ed. 075; Clark v. Wuoster, 119 U. S. 322, 325, 30 L. ed. 392. 393; X. Y. Belt- ing & Packing Co. v. Magowan, 27 Fed. Ill; American D. R. B. Co. v. Rutland Marble Co.. 2 Fed. 350; American D. R. B. Co. v. Sheldon. 1 Fed. 870: Crossley v. Derby Gas Light Co., 4 L. J. Cb. (X. S.) 25. But see Westinghouse v. Carpenter, 43 Fed. 894. and infra, § 277. 41 Beedle v. Bennett. 122 U. S. 71, 30 L. ed. 1074: (lark v. YVoost- er. 1 111 U. S. 322, 324. 30 L. ed. 392; Busch v. Jones, 184 U. S. 598, 46 L. ed. 707; Westinghouse Air Brake Co. v. Carpenter, 32 Fed. 4S4, per Brewer, J.; Kittle v. De Graaf. 30 Fed. 689, per Coxe, J.; Adams v. Bridgewater Iron Co., 26 Fed. 324; Brooks v. Miller. 28 Fed. 615, 617; Russell v. Kern, C. C. A., 69 Fed. 94. 42Chinnock v. Patterson, P. & S. Tel. Co.. C. C. A., Third Circuit, 112 Fed. 531. 43 Ross v. Fort Wayne, C. C. A.. Seventh Circuit, 63 Fed. 466; Car- negie Steel Co. v. Colorado Fuel & Iron Co., C. C. A., 165 Fed. 195. 44 Huntington Dry Pulverizer Co. v. Virginia. Carolina Chem- ical Co., 130 Fed. 558 ( D. X. J.). 45 Am. Sulphite Pulp Co. v. Crown-Columbia Pulp & Paper Co., 169 Fed. 140. 46 Clark v. YVooster, 119 U. S. 322, 30 L. ed. 392 § 1-46] patent cases. 533 had not used its patent and had sustained no actual damage by the infringement; although it did not appear that any motion for a preliminary injunction was made. 47 On the other hand, bills were dismissed when no applications for preliminary in- junctions were made and the suits were begun within' two months, 48 twenty-nine days, 49 twenty-two ofays, 50 fourteen days, 51 thirteen days, 52 eleven days, 53 ten days, 54 and five days, 55 respectively, before the expiration of the patent. The fad that, under the practice of the court requiring a certain notice, no injunction could possibly have been obtained before the expiration of the patent, may justify the dismissal of the bill: 56 Allegations that complainant derives his benefit from the patent through a limited granting of licenses does not de- prive equity of jurisdiction by showing that he has an adequate remedy at law, when it appears that there is no established license fee for all users, 57 and even, it has been held, when there is no allegation upon the subject in the bill. 58 The discon- tinuance of the infringement shortly before the commencement of the suit does not deprive the complaint of his remedy for an injunction and accounting of the profits previously made. 59 All persons who have acted jointly in the infringement of a patent may be made defendants in the same suit. 60 It has 47 Tompkins v. International Pa- 55 Burdell v. Comstock, 15 Fed. per Co., C. C. A., 183 Fed. 773. 395. « Racine Seeder Co. v. Joliet 56 Clark v. Wooster. 119 U. S. Wire Cheek Rower Co., 27 Fed. 367. 322, 324, 30 L. ed. 392; American 49Keyes v. Eureka Con. Min. Co., Cable Ry. Co. v. Citizens' Ry. Co.. 158 U. S. 150, 153. 39 L. ed. 929, 44 Fed. 484; Keyes v. Eureka Con. 930; affirming 45 Fed.' 199. Min. Co., 45 Fed. 199; American 50 McDonald v. Miller, 84 Fed. Cable Ry. Co. v. Chicago City Ry. 344 - Co., 41 Fed. 522; Russell v. Kern. C. 51 Am. Cable Ry. Co. v. Chicago C. A., 64 Fed. 581 ; s. c. 69 Fed. City Ry. Co., 41 Fed. 522. 94; McDonald v. .Miller. 84 Fed. 52 Miller v. Scliwarner. 130 Fed. 344. •~ ),n - 57 Am. Sulphite Pulp Co. v. 53 Diamond Stone Sawing Mach- Crown-Columbia Pulp & Paper Co.. ine Co. v. Seus. 159 Fed. 497; Beid- 169 Fed. 140. Archer Co. v. North Amer. Chemi- 58 Peters v. Chicago Biscuit Ce- cal & Eng. Co. et al., 147 Fed. 746. 142 Fed. 779. 54 Overweight Counterbalance Ele- 59 Saxlehner v. Eisner. 140 Fed. vator Co. v. Standard Elevator & 938. Mfg. Co.. 96 Fed. 231. 60 Climax Lock & Ventilator Co. 534 BILLS l.\ EQUITY. [§ l-±<3 been held that an improper joinder of applicants for a patent is a purely technical defense which should fiat be favored after the patent has been assigned, 61 but it was held that, in the same bill, complainant could not join a prayer for relief against in- terference with a request that the commissioner grant a reissue of a patent; 62 nor a prayer for an injunction against infringe- ment with one for specific performance of an agreement by a licensee. 63 A bill to enjoin the infringement of several distinct patents under the former practice was held multifarious ; 64 but if all the patents are infringed in the use of or manufacture of a single machine, process, manufacture, or compensation of mat- ter and it is so alleged, the bill is good; 65 even if one has ex- pired; 66 and although one is for a process and the other for a product. 67 It has been said that the complainant "should aver that said inventions are capable of conjoint as well as separate use, and are so used by the defendant," 68 but, be- fore the new Equity Rules, a general allegation of their in- frinffement collectively was usuallv held to be sufficient. 69 An v. Ajax Hardware Mfg. Co., 102 Fed. 12fi, corporations who had acted jointly with the patentees, who had assigned their patents to them. BlSieber & Trussel Mfg. Co. v. Chicago Finder & File Co., 177 Fed. 430. 62(!old v. Cold. 181 Fed. 544. 63 Indiana Mfg. Co. v. Nichols & Shepard Co.. 190 Fed. 579. 64 Quoted with approval in Pvob- inson v. Chicago Rys. Co.. C. C. A.. 174 Fed. 40. 42: Haves v. Dayton. 5 Fed. 702: Shickle v. South St. Louis F. Co., 22 Fed. 105: Thomas IT. El. Co. v. Sperry. $6 Fed. 75: Louden M. Co! v. Montgomery W. 6 Co.. 96 Fed. 232. But see Eq. Rule 28, si(prd-, § 1'39. 65 Report* d with approval in Robinson vi Chicago Kys. Co.. C. C. A. 174 Fed. 40. 42: Xoursc v. Al- len, 4 Blatehf. C. C. 370: Perry v. Corning. 7 Blatehf. C. C. 195; Case v. Redfield. 4 McLean, 52(5; Camewell F. A. Tel. Co. v. Chilli- cothe, 7 Fed. 351: Nellis v. Mc- Lanahan. 6 Fisher's Pat. Cas. 280; Diamond Match Co. v. Ohio M. Co., 80 Fed. 117: Edison Phon. Co. v. Victor Talking Macli. Co.. 120 Fed. .305: American Craphophone Co. v. Leeds & Catlin Co.. 131 Fed. 2S1. See U. S. v. Am. Bell Tel. Co., 128 U. S. 315, 32 L. ed. 450. 66 Hunting Dry Pulverizer Co. v. Virginia-Carolina Chemical Co., 130 Fed. 558. 67 Am. Graphaplione Co. v. Leeds & Catlin Co.. 131 Fed. 281. 68Camowell F. A. Tel. Co. v. Chillirothe. 7 Fed. 351: Neilfc v. McLanahan, 6 Fisher's Pat. Cas. 280: Robinson v. Chicago Rys. Co., C. C. A.. 174 Fed. 40. 42. 69 T.utr'n v. Sharp. 200 Fed. 151. § 146] PAT K.N ;T CASES. :,:;; amendment adding such an averment will be allowed. 70 A charge of infringement, and a prayer for an injunction and accounting accordingly, may be joined with a charge of inter- ference and a prayer for relief against the same. 71 A bill seeking an injunction with damages against the infringement of a patent, and an injunction with damages against the pub- lication of libelous circulars affecting plaintiffs patent has been held multifarious. 72 A bill seeking an injunction against the infringement of a patent and the infringement of a trade- mark was held not multifarious when the allegations as to both related to the same subject-matter ; 73 but, it was held, that a complaint could not join a cause of action for the infringement of a patent with another for unfair competition in trade, al- though both related to the same subject-matter, 74 although this might be done when the unfair competition was incidental to the infringement. For example, an imitation of the form 75 and design, 76 and of pictures of the device in catalogues, 77 but not, it has been held, when the defendant is sued in a different district from that of his residence and neither party resides 70 Union L. & S. Co. v. Philadel- phia R. Co.. OS Fed. 914; Electric Goods Mfg. Co. v. Benjamin El- ectric Mfgi Co., 100 Fed. 832. 71 teach v. Chandler. 18 Fed. -202: Holiday v. Pickhardt. 29 Fed. 853; Swift v. Jenks, 29 Fed. 642; American Roll Paper Co. v. Knopp, 44 Fed. 609.. 612; Stoheme'tz P. M. Co. v. Brown F. M. Co.. 46 Fed. 72. 72 Fougeres v. Murbarger, 44 Fed. 292. See International T. C. Co. v. Carmichael. 44 Fed. 349. 73 Jaros H. U. Co. v. Fleece H. U. Co.. 6(1 Fed. 022: Adam v. Folger, 120 Fed. 260: G lobe- Wernicke Co. v. Fred Macey Co., C. C. A.. 119 Fed. 090. 703. 50 C. G. A. 304; T. B. Woods Sons Co. v. Valley Iron Works. 166 Fed. 770. Contra. Cush- man v. Atlantis Fountain Pen Co., 104 Fed. 94: Mecky v. Grabowski. 177 Fed. 591. Sec supra, $$ 24. 142. 74 Ball & S. F. Co. v. Cohen, 90 Fed. 064; C. L. King & Co. v. Inlander, 133 Fed. 416; Cushman v. Atlantis Fountain Pen Co., 164 Fed. 94: Mecky v. Grahowski. 177 Fed. 591 ; National Casket Co. v. X. V. & Brooklyn Casket Co., 18.", Fed. 533. See supra, §§ 24. 142. See. however, Keashy & Mattison Co. v. Phillip Cary Mfg. Co., 113 Fed. 432; C. L. King & Co. v. Inlander. 133 Fed. 410. 75 T. B. Woods Sons Co. v. Valley Iron oWrks. 166 Fed. 770; Lovell- McConnell Mfg. Co. v. Automobile Supply Mfg. Co., 193 Fed. 058. 76Lovell-McConnell Mfg. Co. v. Automobile Supply Mfg. Co.. 193 Fed. 658. 77 Climax Lock & Ventilator Co. v. Ajax Hardware Mfg. Co., 192 Fed. 126. 536 BILLS IN EQUITY. [§ 147 in the same. 78 Under the former practice it was held as fol- lows : A bill to set aside a contract for a partnership in royal- ties, which also prayed an account of matters collected under a verbal understanding before the date of the contract, is not multifarious; 79 nor a bill for an infringement, which also pleads a contract, in which it is alleged that defendants have agreed not to contest the validity of the patent. 80 A supple- mental bill against a new defendant, to whom the original defendant had transferred its property, pending the suit, which prayed an injunction against the use of plaintiff's patents, and that it be obliged to pay the damages caused by its predeces- sor's infringement ; was multifarious. 81 Where a bill set out a contract relating to certain patents, and asked specific per- formance thereof against several parties, but also contained expressions looking to relief, as in a suit for infringement, it could not be sustained as a bill with a double aspect, because the determination of who are proper parties must be made from different standpoints in the two kinds of bills. 82 Persons who are acting in concert as employees of the same corporation in the infringement of a patent may be joined as defendants to the same bill. 83 An averment that two parties, one of whom is an officer of the other, have infringed a patent, is a sufficient allegation that their infringement was joint. 84 § 147. Bills to compel the issue of patents and bills to obtain relief against interfering patents. Whenever a pat- ent on application is refused, either by the Commissioner of Patents or by the Supreme Court of the District of Columbia upon appeal from the Commissioner, the applicant may have remedy by bill in equity; and the court having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention, as specified in his claim, or any part thereof,, as the facts in the case may appear. 78 Woerheide v. H. W. Johns-Man- Crosman. C. C. A., 61 Fed. 888; ville Co.. TOO Fed. 535. s. c, 57 Fed. 1021. 79 Patton v. Glaiitz, 56 Fed. 367. 83 Poppenhusen v. Falke, 4 80 Dunham v. Rent. 72 Fed. 60. Blatchf. 493. 81 Western Telephone Mfg. Co. v. 84 Thomson-Houston El. Co. v. Am. El. Tel. Co.. 137 Fed. 603. Electrose Mfg. Co., 155 Fed. 543. 82 American Box Mach. Co. v. I 147] PATENT CASES. 537 And such adjudication, if it be in favor of the right of the ap- plicant, shall authorize the Commissioner to issue such patent on the applicant filing in the patent-office a copy of the adjudi- cation, and otherwise complying' with the requirements of law. In all cases, where there is no opposing party, a copy of ihc bill shall be served on the Commissioner; and all the expenses of the proceeding shall be paid by the applicant, whether the final decision is in his favor or not."' 1 "Whenever there are interfering patents, any person interested in any one of them, or in the working of the invention claimed under either of them, may have relief against the interfering patentee, and all parties interested under him, by suit in equity against the owners of the interfering patent ; and the court, on notice to adverse par- ties, and other due proceedings had according to the course of equity, may adjudge and declare either of the patents void in whole or in part, or inoperative, or invalid in any particular part of the United States, according to the interest of the parties in the patent or the invention patented. But no such judgment or adjudication shall affect the right of any person except the parties to the suit and those deriving title under them subsequent to the rendition of such judgment." 2 The act creating the Court of Appeals for the District of Columbia, with power to entertain appeals from the decisions of the Com- missioner of Patents in the cases mentioned in these two sec- tions of the Revised Statutes, did not repeal them. 3 Such a bill should not be brought until the determination of an appeal to the District Court of Appeals, 4 and it is the safer practice not to file the same until after the Commissioner has obeyed the mandate of that Appellate Court. 5 But where adverse de- cisions in interference proceedings have been made against an applicant for a patent by the examiners, the patent office eom- § 147. U". S. R. S.. § 4015, 5 2TJ. S. R. S.. § 4918, 5 Fed. St. Fed. St. Ann. 507, Pierce's Fed. Ann. 526, Pierce's Fed. Code, § S7S3. Code, § S7S0; Ruristetler v. Atkin- 3 McKnight v. Metal Volatiliza- son, 23 Oft". Gaz. 1025; Greeley v. tion Co., 128 Fed. 51; Dover v. Commissioner. 6 Fisher, 675; s. c, Greenwood, 143 Fed. 136. 1 Holmes. 284: Ex parte Arkell, 15 4 Smith v. Muller, 75 Fed. 612; Blatchf. 437: Butterworth v. Hill, McKnight v. Volatilization Co., 122 114 l". S. 128. 29 L. ed. 119; Hill Fed. 51. v. Wooster, 132 I". S. 693. 33 L. 5 Bernardin v. Xorthall. 77 Fed. ed. 502. See § 39 supra, § 279 infra. 849. 5S8 BII.T.S IX EQUITY.. [§ 147 missioner and the Court of Appeals of the District of Columbia on appeal, he may maintain a bill in equity in a District Court of the United States without waiting for the formal action of the Patent Office [refusing his application. 6 Where there is no opposing partv. a copy ©if the bill should be served on the com- missioner, and it is the better practice to name him and per- haps also the Secretary of the Interior, as parties defendant. 7 The Commissioner of Patents is not a necessary party when there is a party to oppose the bill to compel the issue of a pat- ent. 8 or in an interference case. 9 but when the patent has been issued and assigned, the assignee is a necessary party. 10 When there is an opposing party, costs are usually awarded to the one who preyails. 11 The fact that the two parties to the inter- ference proceeding have united the interests, and neither of them has opposed the bill, does not deprive the District Court of jurisdiction, nor. at last when that matter is disclosed to it, does it render its decree subject to collateral attack. 12 Such a bill presents a case of original equitable jurisdiction; not an appeal. 13 The statutes do not authorize an injunction against the issue of a patent by the Commissioner to some one other than the plaintiff. 14 Ppon an application to compel the i<< Co.. 144 Fed. 115, 8 Graham v. Teter, 25 Fed. 555. 14 Illingworth v. Atha, 42 Fed. 9 Butler v. SI, aw. 21 Fed. 321. 141. 14-1. lOGraham v. Teter. 2.1 Fed. 555. is Da\ i> v. Garrett, 152 Fed. 723, See Illingworth v. Atha, 42 Fed. 725. '41. 145. l6Riehards v. Meissner. 163 Fed. 11 Butler v. Shaw, 21 Fed. 321. 057. 12 Schmertz Wire Glass Co. v. § 148] TIJADE-MAIJK CASES. 539 out any exceptions or limitations; and when the decision pf the patent office is based upon questions of law rather than upon any distinct finding f priority, Circuit Court will make an independent examination of the testimony and rawh its own conclusions. 17 It has been said: that such decision must be given weight in the nature of a departmental decision and, to overcome it, the evidence must be of such character, and sufficient at least to require a clear conviction that it wae erroneous. 18 Such a suit is a plenary suit in equity, to whirl all the rules of practice and evidence in such suits apply ami a party cannot be deprived of the right to cross-examine his opponent's witnesses by the introduction of the proofs taken in the patent office, unless they are otherwise admissible as second- ary evidence. 19 It has been held that a bill to compel the issue of a patent which has been refused, must be filed within one year after the refusal. 20 § 148. Bills to restrain infringements of trade-marks. Ihe Trade-Mark Law of March 2, 1907, provides: "That the Circuit and Territorial Courts of the United States and the Su- preme Court of the District of Columbia shall have original jurisdiction, and the Circuit Courts of Appeal of the United States and the Court of Appeals of the District of Columbia shall have appellate jurisdiction of all suits at law or in equhv respecting trade-marks registered in accordance with the pr,', visions of this Act, arising under the present Act, without re- gard to the amount in controversy." J "That the several courts vested with jurisdiction of cases arising under the present Act shall have power to grant injunctions, according to the course and principles of equity, to prevent the violation of any right of the owner of a trade-mark registered under this Act, 600 I'Wheaton v. Kendall. 85 Fed. 20 VYestinghouse El. & Mfg. Co. 6- V Ohio Brass Co., ISO Fed. ols- 18 Greenwood v. Dover, C. C. A., citing U, S. R. S.. § 4S04. as amend- 194 Fed. 91. But it has been said ed 20 St. at L. 092. § 4, 5 Fed. St. that it should he followed, unless Ann. 488, Comp. St! 3384 Fierce the contrary is established by evi- Fed. Code. § 8700. denee which carries thorough con- § 14 8. 134 St. at L. 1251 § 17 T.etion. Richards v. Meissner, 103 Pierce's Fed. Code, § 8823 Fed. 0.V7. 19 Dover v. Greenwood, 177 Fed. 940. 540 BILLS IX EQUITY. [§ 148 on such terms as the court may deem reasonable; and upon a decree being rendered in any such case for wrongful use of a trade-mark the complainant shall be entitled to recover, in addition to the profits to be accounted for by the defendant, the damages the complainant has sustained thereby, and the court shall assess the same or cause the same to lie assessed under its direction; The court shall have the same power tn increase such damages, in its discretion, as is oiven bv sec- tion sixteen of this Act for increasing- damages found by ver- dict in actions of lav; and in assessing profits the plaintiff snail be required to prove defendant's sales only: defendant must prove all elements of cost which are claimed.'" 2 "That in any ease involving the right to a trade-mark registered in accordance with the provisions of this Act, in which the ver- dict has been found for the plaintiff, or an injunction issued. the court may order that all labels, -igns. prints, packages, wrappers, or receptacles in the possession of the defendant, bearing the trade-mark of the plaintiff or complainant, or any reproduction, counterfeit, copy, or colorable imitation thereof, shall be delivered up and destroyed. Any injunction that may be granted upon hearing, after notice to the defendant, to pre- vent the violation of any right of the owner of a trade-mark registered in accordance with the provisions of this Act. lvv any circuit court of the United States, or by a judge thereof, may be served on the parties against whom such injunction may lie granted anywhere in the United States where they may be found, and shall be operative, and may be enforced by pro- ceedings to punish for contempt, or otherwise, by the court by which such injunction was granted, or by any other circuit court, or judge thereof, in the United States, or by the supreme court of the District of Columbia, or a judge thereof. The- said courts, or judges thereof, shall have jurisdiction to en- force said injunction, as herein provided, as fully as if the in- junction had been granted by the circuit court in which it i- sought to be enforced. The clerk of the court or judge grant- ing the injunction shall, when required to do so by the court before which application to enforce said injunction is made, transfer without delay to said court a certitied copy of all the papers on which the said injunction was granted that are 2 Ibid.. § 19. Pierce's Fed. Code, § 8825. § 148] TRADE-MAKK CASES. 541 on file in his office/" 3 "That no action or suit shall be main tained under the provisions of this Act in any case when the trade-mark is used in unlawful business, or upon any article injurious in itself, or which mark has been used with the design of deceiving the public in the purchase of merchandise, or has been abandoned, or upon anv certificate of registration fraudulently obtained." 4 ''That nothing in this Act shall prevent, lessen, impeach, or avoid anv remedy at law or in equity which anv party aggrieved by any wrongful use of any trade-mark might have had if the provisions of this Act had not been passed." 5 "That in anv case involving- the right to a trade-mark registered in accordance with the provisions of this Act, in which the verdict has been found for the plaintiff, or an injunction issued, the court may order that all labels, signs, prints, packages', wrappers, or receptacles in the pos- session of the defendant, bearing the trade-mark of the plain- tiff or complainant, or any reproduction, counterfeit, copy, or colorable imitation thereof, shall be delivered up and destroyed. Any injunction that may be granted upon hearing, after notice to the defendant, to prevent the violation of any right of the owner of a trade-mark registered in accordance with the provisions of this Act, by any" District "Court of the United States, or by a judge, thereof, may be served on the parties against whom snch injunction may be granted anywhere in the United States where they may be found, and shall be operative, and may be enforced by proceedings to punish for contempt, or otherwise, by the court by which such injunction was granted, or by any other" District "Court, or judge thereof, in the United States, or by the Supreme Court of the District of Columbia, or a judge thereof. The said courts, or judges thereof, shall have jurisdiction to enforce said injunction, as herein provided, as fullv as if the injunction had been granted bv the District Court in which it is sought to be enforced. The clerk of the court or judge granting the injunction shall, when required to do so by the court before which application to enforce said in- junction is made, transfer without delay to said court a eerti- 3 Ibid.. § 20. Pierce's Fed. Code, § 5 n,j,l.. § 23, Pierce Fed. (ode,. 882G. § SS-2'i. 4 Hud.. § 21, Pierce Fed. Code. § 8827. 542 BILLS IN EQUITY. [§ UP iifil copj of nil the papers <»n which the said injunction was granted thai are on tile in his office.'' 6 The hill must show that the trade-mark was n$ed in commerce with foreign nations among the several States or with the Indian tribes. 7 The ques- tion whether, in the same bill, relief can he prayed against trade-mark am! unfair competition, both parties be^ng citizens of the same State, is still sub judicie: It has been held that where the trade-mark is invalid, 8 the court cannot then consider the question of unfair competition, nor when it is invalid, hut not infringed. 9 It has been held that where the trade-mark is v;ilid and has been infringed, and the acts of unfair trade are nor separate and distinct from the acts of infringement, that then an injunction against them may be joined with the decree forbidding the infringement of the trade-mark; 10 but that the rule is otherwise when they are separate and distinct acts. 11 § 149. Bills to obtain relief against interfering trade- marks. "That whenever there are interfering registered trade-marks, any person interested in any one of them may have relief against the interfering registrant, and all per- sons interested under him, by suit in equity against the said registrant; and the court, on notice to adverse parties and other Co. v. Illinois 665, 21 Sup. 6:14 St. at L. 1251, § 20, Pierce Fed. Code, § 8820. 1 Bernstein v. Danuitz. 190 Fed. G0'4. See Trade-Mark Cases. 100 ! . S. S2. 25 Lt ed. 550£ an d supra, ?S :;'» C. C. A. 304 (a patent casei; T. B. Woods Sons Co. V. Valley Iron Works. 160 Fed. 770 (a patent case) : Po-s v. H. S. Geer Co.. 188 Fed. 7:11. 734. See Saxleli- ner v. Eisner & Mendelson in.. 170 U. S. 10. 37. 41. 21 Sup. Ct. 7. 45 L. ed. 60; s. c. C. C. A.. 147 Fed. 380; 77 C. C. A. 417. Contra, Ciish- man v. Atlantis Fountain Pen Co.. 164 Fed. ( .»4 (a patent case) ; Mecky v. Orabowski. 177 Fed. 59] (a pat- ent case). n Boss v. H. S. Geer Co.. 188 Fed! 731. 734: C. L. King & Co. v. Inlander. 133 Fed. 416; < u-dmian v. Atlantis Fountain Pen Co.. 164 Fed. 94; Mecky v. Garabowski, 177 Fed, 593L; National Casket Co. v. N. Y. & Brooklyn Casket Co., 185 Fed. ."33: the four last cases were patent cases. 150] COPYRIGHT CASES. 5 J/} due proceedings had according to the com-*; of equity, may ad- judge and declare either of the registrations void in whole or ib part according to the interest &£ the parties in the trade- mark, aud may order the certificate of registration to be de- livered up to the Commissioner of Patents for cancellation;" x The pleading and practice under hills of this sort is substan- tially similar to that of hills to ohtain relief against interfer- ing patents. 2 "In all actions arising under the laws respecting copyright the defendant may plead the genera] issue, and give the special matter in evidence.- 3 "in all actions arising under the laws respecting copyrights, the defendant mav plead the general issue, and give the special matter in evidence." 4 The suit must he hroughr within a year after final action there- upon m the Patent Office or the determination of anv appeal froin its dee,s,on, unless it is shown that the delav is unavoid- able, Tt was held to he insufficient to aver that complainants brought suit within the year against the partv who succeeded in the Patent Office, and several months thereafter, after learn- ing for the first time that the defendant had assigned the pat- ent, dismissed such suit, ami brought the present one againsl the assignee; there being no allegation that the assignment was not recorded, nor that the complainant had no means of as- certaining that it had been made. 6 § 150. Bills to restrain infringement of copyrights. The Copyright Act of March 4. 1909. provides: -That if anv person shall infringe the copyright in anv work protected under the copyright laws of the United State, such- person sin,]] he habfe: (a) To an injunction restraining such in- fringement; (b) To pay to ,he copyright proprietor sud, dam- ages" as the copyright proprietor may have suffered due ,„ the infringement, as well as all the profits which the infringer shall have.uade from Sltch infringement; and in proving ; prolts the plain ifi shall he rehired to prove sales onlv and' the de- fendant shall be required to prove every element',,: cost which * 14» 1A,, of Marol, 2. 10„7, 4 r. S. R. S.. S 4 n,m. 2 ,,,, & 3 l'. S. R. s.. § 4969, 2 Fed! St. Ann. 271. Pierce Fed. Code, § 8SG2. r ' h] " '^Viiss Co., I8G Fed. .318. 6 II. id. 544 BIIXS IN EQUITY. [§ 150 he claims, or in lien of actual damages and profits such dam- ages as to the court shall appear to be just, and in assessing such damages the court may, in its discretion, allow the amounts as hereinafter stated.- hut in the case of a newspaper repro- duction of a copyrighted photograph such* damages shall not exceed the sum of two hundred dollars nor be less than the sum of fifty dollars, and such damages shall in no other case exceed the sum of five thousand dollars nor be less than the sum of two hundred and fifty dollars, and shall not be regarded as a penalty: First. In the case of a painting, statute, or sculp- ture, ten dollars for every infringing copy made or sold by or found in the possession of the infringer or his agents or em- ployees; Second. In the case of any work enumerated in sec- tion five of this Act. except a painting, statute, or sculpture, one dollar for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees; Third. In the case of a lecture, sermon, or address, fifty dol- lars for every infringing delivery; Fourth. In the case of a dramatic or dramatico-musical or a choral or orchestral com- position, one hundred dollars for the first and fifty dollars for every subsequent infringing performance; in the case of other musical compositions, ten dollars for every infringing per- formance; (c) To deliver up on oath, to be impounded during the pendency of the action, upon such terms and conditions as the court may prescribe, all articles alleged to infringe a copy- right ; (d) To deliver up on oath for destruction all the in- fringing copies or devices, as well as all plates, molds, matrices, or other means for making such infringing copies as the court may order; (e) Whenever the owner of a musical copyright has used or permitted the use of the copyrighted work upon the parts of musical instruments serving to reproduce me- chanically the musical work, then in case of infringement of such copyright by the unauthorized manufacture, use, or sale of interchangeable parts, such as disks, rolls, bands, or cylinders for use in mechanical music-producing machines adapted to reproduce the copyrighted music, no criminal action shall be brought, but in a civil action an injunction may be granted upon such terms as the court may impose, and the plaintiff shall be entitled to recover in lieu of profits and damages a royalty as provided in section one, subsection (e), of this Act: Provided also, That whenever any person, in the absence of a license § 150] copyright cases. 545 agreement, intends to use a copyrighted musical composition upon the parts of instruments serving to reproduce mechanical- ly the musical work, reiving upon the compulsory license pro- vision of this Act, he shall serve notice of such intention, by registered mail, upon the copyright proprietor at his last ad- dress disclosed by the records of the copyright office sending to the copyright office a duplicate of such notice; and in case of his failure so to do the court may, in its discretion, in addition to sums hereinabove mentioned, award the complainant a fur- ther sum, not to exceed three times the amount provided by section one, subsection (e), by way of damages, and not as a penalty, and also a temporary injunction until the full award is paid. Rules and regulations for practice and procedure un- der this section shall be prescribed by the Supreme Court of the United States. 1 ' 1 "That the proceedings for an injunc- tion, damages, and profits, and those for the seizure of infring- ing copies, plates, molds, matrices, and so forth, aforemen- tioned, may be united in one action." 2 "That civil actions, suits, or proceedings arising under this Act may be instituted in the district of which the defendant or his agent is an in- habitant, or in which he may be found.'' 3 "That any such court or judge thereof shall have power, upon bill in equity filed by any party aggrieved, to grant injunctions to prevent and restrain the violation of any right secured by said laws, ac- •cording to the course and principles of courts of equity, on such terms as said court or judge may deem reasonable. Any in- junction that may bo granted restraining and enjoining the doing of anything forbidden by this Act may be served on the parties against whom such injunction may be granted any- where in the United States, and shall be operative throughout the United States and be enforceable by proceedings in con- tempt or otherwise by any other court or judge possessing ju- risdiction of the defendants." 4 "That the clerk of the court. ■or judge granting the injunction, shall, when required so to do by the court hearing the application to enforce said injunction, transmit without delay to said court a certified copy of all the 8 150. 136 St. at L. 1075. § 25, 3 n,i,i.. § 35; Pierce Fed. Code Pierce Fed. Code Supp., § 1587. Supp., § 1589. 2 [bid.. § 27. 4'Ibid., § 36. Fed. Prac. Vol. T— 35. 54. The Marshal shall thereupon seize said articles or any smaller or larger part thereof he may them or 11 Ford v. Cirajcles F. Blaney Am- 12 Ford v. Charles F. Blaney Am- usement Co.. 14S Fed. 042. usement Co., 14K I-Vd. 042, 045. 5-18 BILLS EN EQUITY. [§ 150 thereafter find, using such force as may lie reasonably neces- sary in the premises, and serve on the defendant a copy of the affidavit, writ and bond by delivering the same to him person- ally, if he can be found within the district, or if he cannot be found, to his agent, if any, or to the person from whose pos- session the articles are taken, or if the owner, agent, or such person cannot be found within the district, by leaving said copy at the usual place of abode of such owner or agent, with a person of suitable age and discretion, or at the place where said articles are found, and shall make immediate return of such seizure, or attempted seizure, to the Court. He shall also attach to said articles a tag or label stating the fact of such seizure and warning all persons from in any manner interfering there- with. 0. A Marshal who has seized alleged infringing arti- cles, shall retain them in his possession, keeping them in a se- cure place, subject to the order of the Court. 7. Within three days after the articles are seized, and a copy of the affidavit^, writ and bond are served as hereinbefore provided, the defend- ant shall serve upon the clerk a notice that he excepts to the amount of the penalty of the bond, or to the sureties of the plaintiff or complainant, or both, otherwise he shall be deemed to have waived all objection to the amount of the penalty of the bond and the sufficiency of the sureties thereon. If the Court sustain the exceptions it may order a new bond to be executed by the plaintiff or complainant, or in default thereof within a time to be named by the Court, the property to be returned to the defendant. 8. Within ten days after service of such no- tice, the attorney of the plaintiff or complainant shall serve upon the defendant or his attorney a notice of the justification of the sureties, and said sureties shall justify before the Court or a Judge thereof at the time therein stated. 9. The defendant, if he docs not except to the amount of the penalty of the bond or the sufficiency of the sureties of the plaintiff or complainant, may make application to the Court for the return to him of tin- articles seized, upon filing an affidavit stating all material facts and circumstances tending to show that the articles seized are not infringing copies, records, plates, molds, matrices, or means for making the copies alleged to infringe the copyright. 10. Thereupon the Court in its discretion, after such hearing as it may direct, may order such return upon the filing by the § 151] INTERSTATE COMMERCE CASES. 549 defendant ot a bond executed by at least two sureties, binding them in a specified sum to be fixed in the discretion of the Court, and conditioned for the delivery of said specified articles to abide the order of the Court. The plaintiff or complainant may require such sureties to justify within ten days of the filing of such bond. 11. Upon the granting of such application and the justification of the sureties on the bond, the Marshal shall immediately deliver the articles seized to the defendant. 12. Any service required to be performed by any Marshal may be performed by any deputy of such Marshal. 13. For services in cases arising under this section, the Marshal shall be en- titled to the same fees as are allowed for similar services in other cases.'' 13 § 151. Bills in equity under the Interstate Commerce Law. The appropriate courts of the United States have ju- risdiction to entertain bills in equity to enforce, otherwise than by adjudication and collection of forfeiture or penalty, or by infliction of criminal punishment, any order of the Interstate Commerce Commission other than for the payment of money. 1 Such suits may be brought by the United States, 2 and also by private individuals, for whose benefit the orders were made, 3 such as an order awarding reparation to shipper for an un- lawful charge. 4 The act. creating the Commerce Court did not deprive the District Courts of the United States 6f jurisdic- tion of a suit to compel an interstate carrier to receive and transport property tendered for shipment, 5 nor of an action by a shipper to recover freight charges declared by the commis- sion to be excessive 6 and to recover damages under the statute because of secret discriminations given by a carrier to the plaintiff's competitor. 7 Xo court of the Unified States has ju- 13 214 U. S. 533. 53 L. ed. 1073. 5 Louisville & Xashville R. R. Co. See § 20. supra; § 278. infra. v. F. \Y. Cook Brewing Co.. 223 U. § 151. 125 St. at L. 850; 32 St. S. 70. 56 L. ed. 355: affirming C. C. at L. 847: U. S. v. Michigan Cent. A., 172 Fed. 117. R. Co., 122 Fed. 544; Jud. Code, § 6 Chicago. B. & Q. R. Co. v. Fein- 207, 36 St. at L. 1087. tuch. C. C. A.. 101 Fed. 482. 2 l\ S. v. Michigan Cent. R. Co., 7 Langdon v. Pennsylvania R. Cc. r 122 Fed. 544. 104 Fed. 486; A. J. Phillips Co. v. 3 Chicago, B. & Q. R. Co. v. Fein- Grand Trunk Western Ry. Co., C. C. tuch. C. C. A.. 101 Fed. 482. A., 105 Fed. 12. 4 Ibid. 550 BILLS IN EQUITY. [§ 151 risdiction of a suit to enjoin an unreasonable charge for trans- portation until the Interstate Commerce Commission has passed upon the question ; 8 hut where, pending- a suit to enjoin an unreasonable increase in freight rates, the complainants ap- plied to the Interstate Commerce Commission, which decided in their favor, the court finally rendered a decree upon its find- ings and conclusions. 9 The appropriate court of the United States has jurisdiction of a suit to enjoin, set aside, annul, or sustain, in whole or in part, any order of the Interstate Com- merce Commission. 11 Such orders will be set aside when they deprive the complainants of their property without due process of law, or take their property without just compensation, or are beyond the powers of the commission, or the commission's power was exercised with gross unreasonableness. 11 For ex- ample, when it was made without any evidence to support it ; 12 or upon evidence of which the carrier was not apprised and was given no opportunity to meet, 13 but it may be that this rule does not apply to expert testimony. 14 Thus may be reviewed an order which awards reparation to a complainant. 15 The Com- merce Court has no jurisdiction to entertain a complaint be- cause of the refusal of the Interstate Commerce Commission to act, 16 such as a claim by a shipper to recover excessive freight charges which have been presented to the commission and re- jected ; 17 nor of a claim presented to the commission upon which 8 Southern Ry. Co. v. Tift, 206 U. S. 428. 51 L. ed. 1124. Cf. Macon C.roeery Co. v. Atlantic C. L. R. Co., 103 Fed. 730, 738; aff'd in 215 U. S. 501, 54 L. ed. 300-. But see Jew- ett Bros. & Jewett v. Chicago, M. & St. P. Ry. Co., 150 Fed. 160; Colum- bus Iron & Steel Co. v. Kanawha & M. Ry. Co. 171 Fed. 713; Hous- ton Coal & Coke Co. v. Norfolk & W. Ry. Co.. 171 Fed. 723. 9 Southern Ry. Co. v. Tift. 206 1". S. 4-2S. 51 L. ed. 1124. lOJud. Code. § 207, 36 St. at L. 1087. n F. IT. Peavey & Co. v. Union Pac. R. Co., 176 Fed. 409. But see Philadelphia & R. Ry. Co. v. Inter- state Commerce Commission, 174 Fed. 687. 12 Interstate Commerce Com. v. Louisville & Nashville Railroad Co., 227 U. S. 88. 13 Atlantic Coast Line R. Co. v. Interstate Commerce Commission, Comra. Ct. 194 Fed. 449. 14 Ibid. 15 Arkansas Fertilizer Co. v. U. S., f'miim. St. 193 Fed. 007; Southern Ry. Co. v. U. S., Coram. Ct. 193 Fed. 664. 16 Procter & Gamble Co. v. U. S., 225 U. S. 282, 56 L. ed. 1091; re- versing Comm. Ct. 188 Fed. 221. n Ibid. § 151] INTERSTATE COMMERCE CASES. 551 it has not passed, 18 nor to review the denial by the commis- sion of a petition by a carrier for leave to refund an excessive freight charge. 19 Where the commission has refused to act, the remedy, if airy, is by mandamus. 20 Any part to an order of the Interstate Commerce Commission may sue to have the same set aside without joining other persons named in the order and similarly affected by the same. 21 A bill to set aside an order of the Interstate Commerce Commission or other board fixing the amount of charges for the transportation of freight or pas- sengers, upon the ground that they not afford reasonable com- pensation, must allege facts in support of such conclusions ; such as the amount of revenue derived from the traffic affected and so far as possible the cost of the service, or other facts from which the court can determine for itself whether the rates fixed, would produce a reasonable profit. 22 It seems, that it is insuffi- cient to allege that the known loss resulting from the rate will be a specified amount without stating the facts from which such result is reached. 23 AVhere the ground of objection to such ac- tion by a State board is that it will affect interstate commerce, it is insufficient to allege that the railroad's principal business, between the points affected consists of interstate commerce and that the road will be compelled to lower its interstate rates without showing what part of the predicted loss will be on the traffic affected as distinguished from the general body of traffic ; and the bill should disclose facts showing with reasonable defin- iteness not only the present total value and gross revenue of the road affected, but also the gross revenue from each class of business, interstate and local, freight, passenger or other, and the proportionate property values devoted thereto, together with the gross operating expenses, and a proportionate applica- tion thereof to such different classes of traffic, so that the net 18 U. S. ex rel. Stony Fork Coal Interstate Commerce Commission, Co. v. Louisville & X. E. Co., Comm. Comm. Ct. 104 Fed. 44!). Ct. 195 Fed. 88. 22 Atlantic Coast Line 1L Co. v. 19 Arkansas Fertilizer Co. v. U. Interstate Commerce Commission. S., Comm. Ct., 193 Fed. 6fi7. Comm. Ct 194 Fed. 449. 20 Interstate Commerce Commis- 23 Southern Pac. Co. v. Railroad sion v. U. S. ex rel. Humboldt S. S. Commission of California, 19:5 Fed. Co., 224 U. S. 474, 56 L. ed. 849. 099; Northern Fac. Ry. Co. v. Lee.. 21 Atlantic Coast Line R. Co. v. 199 Fed. 621. £52 BILLS IN EQUITY. [§ 152 revenue from each source may be thereby ascertained. 24 It has been hold to be insufficient to set forth the proceedings of the commission finding that the rates charged were unreasonable or discriminatory or otherwise in violation of the statute; 25 and an allegation that "said commission agreeable to the pro- visions of law in that regard duly" caused a copy of its order to be delivered to the defendant, is not a sufficient allegation of the service of the same. 26 § 152. The Interrogatory Clause. Under the old prac- tice, discovery could not be obtained unless prayed in the bill. 1 The Equity Rules of November 1, 1912, omit any provision for these and provide that interrigatories may be filed by the plaintiff after the filing of the bill and not later than twenty- one days after the joinder of issue, and by the defendant at. anv time after filing his answer and not later than twentv-one days after the joinder of issue, or thereafter by leave of the court or judge. 2 The practice upon this subject is discussed in the subsequent chapter on "Evidence and Discovery." 3 § 153. Waivers and Offers. It has been customary to in- sert in the prayer for relief, any waiver or offer which the plaintiff wishes to make, 1 although there is no reason why such should not be set forth in the narrative part of the bill. Under the former rules, "If the complainant in his bill shall waive an answer in the oath, or shall only require an answer un- der oath with regard to certain specified interrogatories, the answer of the defendant, though under oath, except such part thereof as shall be directly responsive to such interrogatories, shall not be evidence in his favor, unless the cause be set down for hearing on bill and answer only; but may nevertheless be used as an affidavit, with the same effect as heretofore, on a motion to grant or dissolve an injunction, or on any other in- cidental motion in the cause. But this shall not prevent a de- fendant from becoming a witness in his own behalf under sec- 24 Southern Pac. Co. v. Railroad § 152. l Eq. Rule 43, of March, Commission of California, 193 Fed. 1S42. 690. 2Eq. Rule 58. 25 Bear Bros. Mercantile Co. v. 3 § 348, infra. Denver & R. G. R. Co., 200 Fed. 614. § 153. l Daniell's Ch. Pr., (2nd 26 Ibid. Am. ed.) 433. § 153] WAIVERS AXD OFFERS. 553 tion three of the Act of Congress of July 2, 1864." 2 It rarely happened that advantage of this rule was not Taken by a waiver inserted here, or more frequently in the prayer of process, in order to avoid the application of the doctrine, that otherwise an allegation responsive to the hill in a sworn an- swer was presumed to he true, unless rebutted by the testimony of two witnesses, or one witness and strong corroborating circumstances. 3 The rule was a restate- ment of the former practice in chancery. 4 It has not been copied in those promulgated in 1912, nor do the rules of 1912 prescribe the effect of an answer under oath. T ntil the matter has been adjudicated, a prudent practitioner should follow the former practice and insert, in this part of the bill, a waiver of an answer under oath, unless he wishes to examine the defend- ant upon interrogatories, 5 the effect upon which of such a waiver is still unsettled. In accordance with the maxim that he who seeks equity must do equity, a court of equity often refuses relief to one seeking its aid, unless upon condition that he shall do what it con- siders equitable to the defendant, or sometimes even to a third person. 6 In some cases it enforces this by the entry of a con- ditional decree without reference to the pleadings. 7 This seems to be the proper practice when the defendant, by his own con- duct, has so complicated matters between himself and a party seeking rescission that complete restoration is impossible. 6 In a case where the plaintiff had failed to make the tender, which was a prerequisite to his cause of ac- 2Eq. Rule 4], of 1842. 3 Vigel v. Hopp. 104 U. S. 441, 26 L. ed. 765: Coonrod v. Kelly. ('. C. A.. 110 Fed. 841: infra. § 331. 4Bartlett v. Gale. 4 Paige (X. Y.) 503; Coopers Eq. PI.. 325. 326; Story's Eq. PL. § 874. 5 See infra, § 348. 6Fosdick v. Scliall. 09 V. S. 235 25 L. ed. 330. 7\Yalden v. Bodley, 14 Pet. 156, 164, 165. 10 L. ed. 308. 401. 402: Farmers' L. & Tr. Co. v. Denver. L. & G. R. Co.. C. C. A.. 126 Fed. 46; Johnston v. Forsyth Mercantile- Co.. 127 Fed. 845; Andrews v. Conol- ly. 145 Fed. 43: Kley v. Flealy. 127 X. Y. 555: s. c. 140 X. Y. 346, 354; Hay v. Hay. 13 Hun. (X. Y. ) 315: Halpin v. .Mutual Brewing Co;, 20 App. Div. (X. Y.) 583. 590; 1'ritz v. Jones. 1 17 App. Div. i X. Y. | 643; Joslyn v. Empire State Degree of Honor. 145 App. Div. (X. Y. ) 14. 17. infra, S§ 107. 400. a Hecksches \. Edenborn, 203 X. Y. 210. 228 554 BILLS IN EQUITY. [§ 153 tion, his prayer of relief was granted ; but lie was obliged to pay costs to the defendants, although they had resisted the suit. 9 It was held that a court of equity had no power to impose terms upon a defendant as a condi- tion of the dismissal of a bill. 10 But the more usual practice is to insist that the plaintiff shall offer in his bill, which otherwise will be demurrable, to perform, or, in some cases, allege the per- t'urmance of, the equitable act required of him Thus, a bill to cancel securities claimed to be usurious, or other- wise rendered void by a statute, must, in the absence of a State statute to the contrary, 11 contain an offer by the plaintiff to pay the defendant with lawful interest the money he has re- ceived therefor. 12 So a bill to redeem mortgaged, 13 or pledged, 14 property, must contain an offer to pay what is due thereon, though the particular sum need not be specified. A bill to set aside a judicial sale as void must be accompanied by a tender or offer of the purchase-money with interest, provided it was applied for the benefit of the estate; that money has been first repaid, and this the court may require to be done before the bill is filed. 15 It seems that a bill to set aside a foreclosure of a railway mortgage should contain an offer of payment of the amount admitted to be due under the mortgage, and of the costs of the foreclosure suit, or at least show some reason w r hv such an offer should not be required. 16 A bill to set aside a tax sale ordinarily must contain an offer to repay the purchaser at least all legal taxes on the property paid by him, both those for which the property was sold and those subsequently levied 9 Hosmer v. Wyoming Ry. & Iron Co., C. C. A., 129 Fed. 8813. 10 Columbus v. Mercantile Trust & Deposit Co.. 218 U. S. 045. 54 L. ed. 1193. The terms there held to have been improperly imposed were a requirement that a city purchase part of the complainant's water- works and the city had filed a cross- bill for defensive relief. H Mo.. K. & T. Tr. Co. v. Krum- seig. 172 U. S. 351. 43 L. ed. 474. 12 Mason v. Gardiner. 4 Brown, C. ('. 436; Tupper v. Powell, 1 J. Cli. (X. V.) 439: Matthews v. War- ner, 6 Fed. 461, 465; s. c, 112 U. S. 600, 28 L. ed. 851. 13 Story's Eq. PI., § 187a; Hard- ing v. Pinpjey, 10 Jurist (N. S.), 872; Perry v. Carr, 41 N. H. 371; Robinson v. Iron Ry. Co.. 135 U. S. 522, 34 L. ed. 276; Gordon v. Smith, C. C. A., 62 Fed. 503. WUehling v. Lyon, 134 Fed. 703. 15 Davis v. Gaines. 104 U. S. 38(1, 26 L. ed. 757. Rut see Rush v. First Nat. Bank, C. C. A., 71 Fed. 102. 16 Carey v. Houston & T. C. Ry. Co.. 45 Fed. 438, 443. § 153] WAIVERS AXD OFFERS. :>:,:, 1: thereupon and paid by him, with interest upon each sum. A bill to restrain the collection of State taxes must aver pay- nient of what is conceded to he due, or what can be seen to be due on the face of the bill, or can be shown by affidavits, whether conceded or not, before the preliminary injunction should be granted. 18 If it is claimed that the whole tax is void as im- properly assessed, the complainant must tender the amount he would owe if the proper assessment had been made; 19 or, if it is impracticable to determine that sum, he should offer secur- ity for its payment ; 20 unless there is no right to assess the prop- erty at all, either because it is exempt from taxation, or because there is no law providing for the same. 21 In a case where the whole assessment was attacked for improper discrimination against the complainant in favor of the owners of similar prop- erty, the court required, as a condition precedent to the issue of an injunction, the payment of a tax, assessed at the same rate as that levied upon other property, and on corporations of the same class, within the State. 22 The rule does not apply to a special enactment, which is fundamentally void and entirely illegal. 23 If the proper officer refuses to receive a part 17 Gage v. Pumpelly, 115 U. S. 454, 29 L. ed. 449. But see Mendenhall v. Hall, 134 U. S. 559. 569, 33 L. <<1. 1012. 1015. 18 State Railroad Tax Cases, 92 F. S. 575, 017. 33 L. ed. 669, 674; Albuquerque v. Perea, 147 U. S. 87, 37 L. ed. 91. But see Chicago, B. & Q. R. Co. v. Republic County. C. C. A., 67 Fed. 411; Chicago, B. & Q. R. Co. v. B. of C. of Norton County, C. C. A., 67 Fed. 458; Chi- cago, M. & St. P. R. Co. v. Harts- horn, 30 Fed. 541 : Taeoma Ry. & Power Co. v. Pierce County. 193 Fed. 90. The same rule applies to a bill to enjoin the collection of a li- cense, increased by a recent statute, where there is no allegation that the statute imposing the original li- cense was invalid. Morewrf Co.pp.er Co. v. Freer. 127 Fed 199. ' 19 State Railroad Tax Cases. 92 U. S. 575. 617, 23 L. ed. 669, 674; National Bank v. Kimbal. 103 Y. S. 732, 26 L. ed. 469; People's Nat. Bank v. Marye, 191 U. S. 272. 2S1. 48 L. ed. 180, 185; Raymond v. Chi- cago Traction Co., 207 U. S* 20. 38, 52 L. ed. 78. 88; Chicago Union Traction Co. v. State Board of Equalization. 114 Fed. 557. 20 Fargo v. Hart. 193 V. S. 490, 503. 48 L. ed. 761. 767. But see Ritterlmsch v. Atchison. T. & S. F. Ry. Co.. C. ('. A.. 19$ Fed. 40. 21 People's Nat. Rank v. Marye. 191 U. S. 272, 281, 48 L. ed. 180, 185: Fargo v. Hart. 193 I'. S. 490. 503. 48 L. ed. 761. 767. « 22 Raymond v. Chicago Traction Co., 207 U. S. 20, 3S, 52 L. ed. 78, 8S; Chicago I .',on Traction Co. v. State Board of Equalization. 114 Fed. 557. 5(17. 23 Norwood v. Baker, 172 U. S. 269. 293, 43 L. ed. 443. 452 ► 56 BILLS EN EQUITY. [§ 153 of the tax, it must be tendered without the condition an- nexed of a receipt in full. 24 Ordinarily, where it is impractic- able for the plaintiff to ascertain the amount actually due, and the defendant denies his right to any relief, a tender in the bill without a previous payment' is sufficient; 25 and in such a case an offer to pay the money into court whenever so ordered is equivalent to a payment into court in the first instance. 26 Upon a bill to enjoin the enforcement of a statute reducing railroad fares, the injunction order was conditioned upon the execution of a bond by the corporation, to pay into the registry of the court from time to time as ordered, such sums of money as should be equal to the difference between the rate enjoined and the original rate, and to give to each purchaser of a ticket a cou- pon for the payment of that proportion of the difference, to which he was entitled in case the bill should finally be dis- missed. 27 Upon a bill to enjoin a statutory reduction of the price of gas, it was required that the gas company pay into court the difference between the old and the new charges, the same to be there retained until the final determination of the A bill to compel the specific performance of a contract case. by a defendant should, it seems, contain an offer by the plain- tiff to perform his part thereof. 29 And formerly it was, 30 but no longer is, 31 required that a bill for an account should contain an offer on the part of the plaintiff to pay the balance, if any, found due against him. Upon a stockholder's bill, no tender is required ; 32 although a payment by the corporation might be made a condition of the granting of the injunction. A bill filed by the United States to vacate a patent for public lands as 24 State Railroad Tax Cases. 92 U. S. 575. G17, 23 L. ed. 669, 674; National Bank v. Kimbal, 103 U. S. 732, 26 L. ed. 469. 25 Gordon v. Smith. C. C. A., 62 Fed. 503 ; Butchers' & Drovers' S. Y. Co. v. Louisville & X. R. Co., C. C. A.. 67 Fed. 35. 26 Cheney v. Bilby, C. C. A.. 74 Fed. 52. 27 Hunter v. Wood, 209 U. S. 205, 52 L. ed. 747. 28 Consolidated Gas. Co. v. Mayer, 146 Fed. 150; s. C Consolidated Gas Co. v. New York, 157 Fed. 849. 29Stapylton v. Scott, 13 Ves. 425; Fife v. Clayton. 13 Yes. 546. 30 Oodbolt v. Watts, 2 Anst. 543. 31 Columbian Government v. Rothschild, 1 Simons. 94, 103; Wells v. Strange, 5 Ga. 22. 32 Edwards v. Mercantile Trust Co., 124 Fed. 381, 391. Citizens' Saw & Tr. Co. v. Illinois Cent. R. Co., C. C. A., 182 Fed. 607. § 154] PRAYER FOR RELIEF. .).) i obtained bv fraud, need not contain an offer to return the mon- ey paid therefor by the fraudulent patentee. 33 It has been held : that a bill by a trustee in bankruptcy, to set aside a fraudulent or a preferential sale, need not allege a tender of the purchase money. 34 Nor need a bill to obtain relief against an infringe- ment of a copyright contain a waiver of the complainant's statutory right to a forfeiture of the piratical plates. 35 It is, however, a rule in equity, that no person will be compelled to discover that which may expose him to a penalty or forfeiture. 36 A discovery of such matters can only be compelled when the complainant is the only person who can enforce the penalty or forfeiture, and he is willing to waive it, 37 as, for example, in a case of infringement of copy- right. 38 An omission of a waiver, tender, or offer, whenever •considered necessary, is a ground for demurrer ; 39 but leave to amend is in such cases usually given. 40 And in many, but not all cases, 41 when no actual tender is required, a general offer to do whatever equity reguires in the premises seems to be suf- ficient. 42 § 154. The prayer for relief. The Equity Rules of 1912 require that each bill shall contain "A statement of and pravcr for any special relief pending the suit or on final hearing. 33 U. S. v. Minor, 114 U. S. 233, 29 L. ed. 110; U. S. v. Trinidad Coal & Coke Co.. 137 U. S. 100, 34 L. ed. 640; U. S. v. Laam. 149 Fed. 581. See also Moffat v. U. S., 112 U. S. 24. 28 L. ed. 623; U. S. v. White, 17 Fed. 561, 565; U. S. v. Pratt C. & C. Co.. 18 Fed. 708. The same rule applies for a suit hy the United States to cancel a conveyance made by an Indian in violation of a stat- ute. Heckman v. U. S., 224 U. S. 413, 56 L. ed. 820. But in a proper case a decree conditioned upon the return of the consolidation might be made. Ibid. 34 Johnston v. Forsyth Mercan- tile Co., 127 Fed. 845. 35 Farmer v. Calvert Lithog. Co., 1 Flippin. 228. But see Snow v. Mast, 63 Fed. 623. 36 Stewart v. Drasha, 4 McLean, 563; Atwill v. Ferrett. 2 Blatchf. 39; U. S. v. White, 17 Fed. 561, 565; Snow v. Mast, 63 Fed. 623. 37 Lord Uxbridge v. Staveland. 1 Ves. Sen. 7>\\\ Atwill v. Ferrett. 2 Blatchf. 39. 38 Atwill v. Ferrett. 2 Blatchf. 39; Farmer v. Calver LithOg. Co., 1 Flippin. 228, 233: infra, % 348. 39 U. S. v. Pratt C. & C. Co., 18 Fed. 708. 40 Chicago. B. & Z. R. Co. v. Re- public County, C. C. A.. 67 Fed. 413; Chicago. B. & Q. R. Co. v. B. of C. Norton County, C. C. A., 67 Fed. 458. « State Railroad Tax Cases, 92 U. S. 575. 617. 23 L. ed. 663, 674. 42 Cordon v. Smith. C. C. A., 67 Fed. 503. 558 BILLS IN EQUITY. I § 154 which may be stated and sought in alternative forms.'' 1 There La no express prbvfsHon in these rules for a pi-aver for general relict'. It will, however, be the better practice to insert the same and to comply with the requirements of the former prac- tice upon the subject. The prayer for general relief. Mr. Rob- bins, "an eminent counsel, " used to say, was "the best prayer after the Lord's Prayer. 2 It is usually in one of the two following forms: "And that your orator shall have such other or further, or other and further, relief in the premises as to this court shall seem meet:" or "that your orator may be further and otherwise relieved in the premises according to equity and good conscience." Under the prayer for general relief the court will usually grant any relief 3 other than an interlocutory order, which is consistent with, and a ground for which is included in, the allegations of the lull, 4 and not inconsistent with the prayer for special relief or with the ease made by the bill. 5 Less relief than that prayed may be § 154. 1 Eq. Rule 25. Am. Gra- phophone Co. v. Nat. Phonograph Co.. 127 Fed. 349: Bloomfield v. Fyre. 8 Beav. 250. 259. 2Mansaton v. Molesworth. 1 Eden; 2(5, note b; Dormer v. Fortescue, 3 Atk. 124: Storey's Eq. PL, § 41. n. 1. 3'1'aylo.' v. Merchant's Fire Ins. Co., 9* How. 390. 13 L. ed. 187: Stewart v. Chesapeake & Ohio Can- al Co.. 1 Fed. 361 : County of Ho- Idle v. Kimball, 102 U. S. 091. 20 L. ed. 238; Chicago, St. L. & X. O. l;. ( Id. v. .Macomb. 2 Fed. IS: Adams v. Kehlor Milling Co.. 3@ Fed. 212. See Butterfield v. Miller. C. C. A., 195 Fed. 200. 4En.ulisli v. Foxall. 2 Pet. 595. 7 L. ed. 531 : Curvy v. Lloyd. 22 I Yd. 258. 205: Mackall v. Ca-ilear. 137 L. S. 550. 504. 34 L. ed. 770. 778. 5 lliern v. Mill. 13 Yes. 118: Bo- den v. Soden, there ritcd: Crimes \. French. 2 Atk. 141 : Curry v. Lloyd, 22 Fed. 258. 205: Hagpart v. Wilczinski. C. C. A., 143 Fed. 22. See Kerr v. Southwick. C. C. A.. 120 Fed. 772. Tn a suit upon a bill praying an injunction against the erection and operation of coke ovens on a certain street, and for general relief, the Appellate Court modified the decree by striking out so much thereof as granted an in- junction against the operation of coke ovens so near the plaintiff's premises as to injure them by the exhalations therefrom, on the ground that this was not agree- able to the case made by the bill. Rainey v. Herbert. ('. C. A.. 7)7) Fed. 443. Under a bill to enjoin a post- master from refusing to transmit a magazine at second-cla>s rates, it was held that the court would not enjoin him from limiting the num- ber of copies to a -mailer number than the hill alleged that complain- ant was entitled to send. when,. pending the suit, a new permit was granted with such a limitation. Lewis Pub. Co. v. VYvinan. 108 Fed. 151] PRAYER FOR RELIEF. 559 756. Under a bill for specific per- formance, the equity side of the court has no power to grant a judg- ment for a quantum meruit. M'Kin- liev v. Big Horn Basin Development Co., C. C. A., 167 Fed. 770. Under a liill which prayed an injunction against the pollution of a spring and general relief, a Vermont court granted a decree confirming the com- plainant's title to the spring and •enjoining interference with the same, (..It a in v. Cole, 67 Vt. 22G. In a suit to enforce a lien for the price of stock deposited in escrow, the court may enter a decree for speci- fic performance of the contract, al- though no lien exists. David v. M'Rae, 183 Fed. 812. Under a com- plaint for the rescission of a sale of land to a minor and for general relief, a Texas court decreed the foreclosure of a lien for the pur- chase-money. Morris v. Holland, 10 Tex. Civ. App. 474; s. c, 31 S. W. R. 690. Upon a bill to compel an agent to account for illicit profits, received by him from contractors with his employers, and to follow tire same into securities of other property held for him by other de- fendants; it was held that, under the prayer, for general relief, a de- cree could be entered as for money had and received for the complaint's use for any difference between' the cost of the specific property re- covered and the profits thus corrupt- ly obtained. U. S. v. Carter, 217 U. S. 2S6. 291, 54 L. ed. 769. In Michi- gan a bill which alleged that the de- fendant had levied as sheriff was held to support an injunction against him in his official capacity although the prayer for relief did not describe him as sheriff. Wight v. Roethlisberger, 11 G Mich. 241; s. c. 74 X. Y. 474. Where the bill prayed merely a perpetual and not an interlocutory injunction against the construction of a street railway, and the facts proved upon the final hearing showed that an in- junction then would not be justified, the Supreme Court held that the bill was properly dismissed, although it contained a prayer for general relict and averments supported by the evi- dence which showed that the com- plainant might be entitled to dam- ages in the suit; since the aver: nients were not introduced for that purpose and the complainant at the hearing disclaimed any desire for such relief. Osborne v. Missouri Pac. Ry. Co.. 147 U. S. 248, 260, 37 L. ed. 155, 161. Where a stockholders' bill prayed that a foreclosure sale be set aside for fraud and that the de- fendants restore to the mortgagor the mortgaged property and the pro- ceeds thereof, it was held that the court could not enter a judgment directing the majority of the stock- holders -to account to the plaintiff and other members of the minority for the profits they had gained through the foreclosure and a reor- ganization therewith connected. MacArdell v. Olcott, 189 N. Y. 368. Where a bill by a mortgagee, who had sought the property at a fore- closure sale, prayed that the right of redemption of a defendant, who was not a party to the foreclosure suit, might be cut off because he was in privity with one of the de- fendants to the same and bound by the decree: it was held, that the court might order a general fore- closure and a resale of the property under the prayer for general re- lief. London & San Francisco Bank v. Dexter Horton & Co.. C. C. A.. 126 Fed. 593. See Interstate Com- merce Commission v. Southern Pac. 560 BILLS IN EQUITY. [§ 154 granted. 6 Where, however, a consolidated corporation filed a bill in equity to enjoin the enforcement of an ordinance reduc- ing all its charges for the supply of gas, not praying in the alternative relief as regards the gas furnished by one of its con- stituents ; it was held, that relief could not be granted so far as such constituent alone was concerned. 7 Where a bill prayed for a reformation of a policy; it was held, that a decree could not be granted reforming the policy in a different manner, not justified by the case made by the bill. 8 Where the bill which charged fraud prayed, that a location be declared void, and also general relief, a decree was allowed declaring that the defend- ants hold the mine, as trustees ex mtiUficio, for the complainant's benefit. 9 It seems that if there be no objection to the specific relief prayed for, the plaintiff cannot at the hearing abandon that and obtain a decree for different relief. 10 It has been held in England, that, in some cases of fraud, where no other relief can be given against a party deeply involved in the fraud charged by the bill, the payment of the costs of the suit by him ought to form the subject or a specific prayer, and that otherwise his demurrer to the bill will be sustained. 11 In a case where the bill contained allegations showing threatened injury to rights of property, not however mentioned as an in- dependent ground of relief, while it was mainly occupied with complaints of a threatened invasion of rights of a political na- ture, as the specific prayers for relief were confined to the pro- tection of the political rights, although the bill contained a prayer for general relief, the court refused to consider the alle- gations concerning the threatened injury to property. 12 A bill Co., 132 Fed. 829; holding, that the v. Chicago. 194 U. S. 1, 16, 48 L. court could enforce an order by the ed. 851. 856. plaintiff, upon different reasons 8 Baldwin v. Liverpool & L. G. than those assigned by the Commis- Ins. Co., C. C. A.. 124 Fed. 206. sion for its conclusion, when the bill 9 Lockhart v. Leeds, 195 U. S. alleged generally that the rule of 427. 49 L. ed. 263. the company, set aside by the Com- 10 Allen v. Coffman. 1 Bibb iKy.), mission, was in violation of the 469: Pillow v. Pillow. 5 Verg. Interstate Commerce Act. But see (Tenn.) 4^0. authorities cited supra, §§ 136. 137. u b' Texier v. The Margravine 6 Bay State Gas Co. v. Rogers, of Anspach. 15 Yes. 159: 164: Dan- 147 Fed. 557. 574: A. B. Dick Co ioll's Ch. Pr. (2d Am. ed.) 441. v. Fuller. 198 Fed. 404. 12 Georgia v. Stanton. 6 Wall. 50, 7 People's Gas Light & Coke Co. 18 L. ed. 721. § 155] SIGNATURE. 561 may pray relief in the alternative, when it is said to have a double aspect." If a different state of facts, under which the complaint is entitled to relief, appears upon the hearing, the court may allow the case to stand over, and give the plaintiff leave to amend his bill in conformity with them, and then ob- tain relief. 14 And if the complainant be an infant or the repre- sentative of a charity, it would formerly grant relief without regard to the allegations in the bill. 15 "Where no account, payment, conveyance, or other direct relief is sought against a party to p suit, not being an infant, the party, upon service of the subpoena upon him, need not appear and answer the bill, unless the plaintiff specially requires him to do so by the- prayer; but he may appear and answer at his option ; and if he- does not appear and answer he shall be bound by all the proceed- ings in the cause. If the plaintiff shall require him to appear and answer he shall be entitled to the costs of all the proceed- ings against him, unless the court shall otherwise direct." 16, § 155. The signature to a bill. "Every bill or other pleading shall be signed individually by one or more solicitors of record, and such signature shall be considered as a certificate by each solicitor that he has read the pleading so signed by him; that upon the instructions laid before him regarding the case there is good ground for the same; that no scandalous matter is inserted in the pleading; and that, it is not inter- posed for delay." 1 Formerly, the requirement was that the bill should have the signature of counsel. 2 This practice- is Shields v. Barrow, 17 How. 130, 144, 15 L. ed. 158. 102; Kilgour v. New Orleans Gas-Light Co., 2 Woods. 144. 148; Gaines v. Chew, 2 How. 619. 643. 11 L. ed. 402, 411. See supra, § 138. 14 Beaumont v. Boultbee, 5 Ves. 485; Palk v. Lord Clinton, 12 Ves. 63; Daniell's Ch. Pr. (2d Am. ed.), 439, 440. 15 Stapilton v. Stapilton, 1 Atk. 2; Attorney-General v. Jeanes, 1 Atk. 355: Story's Eq. PL, § 40, note. 16 Eq. Rule 40. Fed. Prac. Vol. I.— 36. § 155. lEq. Pule 24. In Eng- land, it has heen held : that the signature of the solicitor should be in manuscript and not lithographed (Regina v. Cowper. 24 Q. B. D. 533); but. in an earlier case, that his clerk might sign on his In-half (France v. Dutton, 2 Q. P. 208); and that when the counsel had sign- ed a draft, that was sufficient, and his name might he printed at the end of the pleading. "The Annual Practice 101 3." p. 317. 2 Eq. Pule 24, of 1842. ?>G2 BILLS IN jEQUITY. [§ 1^6 L -an. it is said, in the time of Sir Thomas Mure. 3 Before tliat time it was the practice for a master in chancery to examine the bill and determine whether it was hotter to dismiss it origi- nally or retain it by subpoena. 4 A signature upon the back of the bill has been held to be sufficient. 5 Under the former practice, the remedy for a defect in this respect was by a motion to take the bill off the file, 6 or by demurrer. 7 The remedy would now probably be a motion to dismiss. 8 The court could, of its own motion, order the bill taken off the file. 9 If the defendant should answer without taking the objection, such a defect' would probably be waived. 10 Leave to amend by adding the signature was always granted. 11 If the complainant sues in person, the signature of the solicitor might also be dis- pensed with. 12 In such a case, the plaintiff himself should sign the bill. § 156. Affidavits to bills. The Equity Patles of Xovember 4, 1912; contain but two provisions requiring an oath to a bill. A stockholders' bill must be verified by oath. 1 In every case, •'If special relief pending the suit be desired the bill should be verified by the oath of the plaintiff, or someone having knowl- edge of the facts upon which such relief is^asked." 2 Under the former practice, in such a case it was not necessary that the affidavit should be filed with the bill, nor before the notice of a motion for the interlocutory relief, and its omission did not make the bill demurrable. 3 It is doubtful whether, when an affidavit is required, one is sufficient which merely alleges that the bill is true to the best of the affiant's knowledge, infor- mation and belief. 4 3 1 Hargrave's Law Tracts. 302: DanielJ's Oh. Eh (2d Am. ed). 357. 4 1 Hargrave's Law Tracts. 302: Daniell's Ch. Pr. (2d Am,. ed.) 357. 5 Dwight v. Humphreys, 3 Mc- Lean, 104. 6 Dillon v. Francis. 1 Dickens, 68. TKirkley v. Burton. 5 Madd. 378: Dwight v. Humphreys, 3 McLean, 104. 8 See Eq. Rule 2!). 9 French v. Dear, 5 Yes. 547. 10 See t . S. R. S., § !>:>4. 11 Kirklev v. Burton, 5 Madd. 37S; Dwight v. Humphreys. 3 Mc- Lean, 104. 12 See l\ S. R. S.. § 747 ; 1 Hoff- man's Ch. Pr. 07. § 156. 1 Eq. Rule 27. 2 Eq. Rule 2.3. 3 Hughes v. Northern Pac. Ry. Co., 122 Ala. 400. 25 So. 169, 910. Henry E. Allen Co., L.R.A. 433, 42 Fed. 618, 622; Cobb v. Clough, 83 Fed. 604. 4 Burgess v. Martin. Ill Ala. 636, 20 S. 506; Pollard v. So. Fertilizer Co., 122 Ala. 409, 25 So. 169, 910. § 157] BILLS OF INTERPLEADER. 563 The former practice further required that an affidavit be annexed to the bill in the following' cases: A bill to obtain the benefit of an instrument upon which an action at law would lie, were it not either lost or out of the possession of the complain- ant and believed to be in that of the defendant, had to be sup- ported by an affidavit of those facts which are necessary to give the court jurisdiction. 5 A bill to perpetuate the testimony of witnesses, or to take testimony, de bene esse, had to be supported by an affidavit stating the reasons which render such a pro- ceeding necessary. 6 A l)ill of interpleader, and perhaps also a bill in the nature of an interpleader; had to ho supported by an affidavit by the plaintiff that he does not collude with either of the defendants; 7 or if the plaintiff were a corporation by one of its officers, that, to the best of his knowledge and belief, the plaintiff does not so collude. 8 § 157. Bills of interpleader. A bill of interpleader is a petition filed by a disinterested person holding a fund or thing to which two or more who are defendants set up conflicting claims, between whom he cannot decide without incurring the risk, if he delivers the property to one, of being finally obliged to pay the other damages for having done so. 1 It can only be filed by one who claims no interest in the property in question, and who seeks no other relief than leave to deposit it in the care of the court, and be relieved from all danger of further vexation concernin: 18 Mitford's Eq. PL. eh. 1 ; Story's Williams v. Walker. 2 Rich. Eq. (S. Eq. PI.. §§ 201-207. C.) 201. 19 Metcalf v. Hervey. 1 Yes. Sen. 23 Meux v. Hell, (i Simons. 175. 24S. 24 Williams v. Walker. 2 Rich. 20Rio„ ld v. Augland, 11 Simons, Eq. (S. C.) 291. ;,.;(; BILLS IN EQUITY. [§ 157 and from continuing any action already begun touching the matter in dispute. 25 The injunction is usually granted to take effect upon payment of the fund into court. 26 Under special circumstances, however, a stay order might be granted until the complainant had an opportunity to do so. 27 Upon an argu- ment to dissolve this injunction before hearing, it seems that the defendants cannot contradict the affidavit that there is no collusion, 28 but a reference may be directed when such a charge is made, and at the hearing collusion may be shown. 29 In England, a bill of interpleader can be successfully maintained though all the defendants are beyond the jurisdiction of the court. 30 Interpleader suits are usually heard on bill and an- swers ; although there is no reason why testimony should not be taken. If at the hearing the cause is ripe for a decision, the court will then decide the controversy between the defendants. 31 If not, it will enter a decree dismissing the plaintiff with his cnsts, enjoining the defendants in accordance with the prayer of the bill, and directing them to interplead. 32 An order direct- ing one of the defendants to plead under oath within ten days, and to file a bond with a surety for the payment, if he lost the case, of the costs and expenses to the other defendant, was held to be erroneous. 33 If the claims on both sides are purely legal, an action or an issue at law will usually be directed. If one of them is of an equitable nature, and sometimes when both are legal, a reference to a master is usually ordered. 34 At the 25 Sieveking v. Behrens, 2 Myl. & Cr. 581. 26 Sieveking v. Behrens, 2 Myl. & Cr. 581 . 27 Sieveking v. Behrens, 2 Myl. & Cr. 5S1-. U. S. R. S., § 718. 28 Stevenson v. Anderson, 2 Yes. & B. 407: Manby v. Robinson. L. R. 4 Ch. App. 347; Fahie v. Lind- say, 8 Oreg. 474. 29 Manby v. Robinson. L. R. 4 Ch. Ap. ."547; Langston v. Boylston. 2 Yes. Jr. 101: Dnngey v. Angovo. 2 \ es. Jr. .104. aeo Martinius v. Helmuth, 0. Coo- per. 248; Stevenson v. Andersonj 2 Ves. & B. 412. Contra, Herndon v. Ridgeway. 17 How. 424, 15 L. ed. 100; and see § 96. 3iDaniell's Ch. Pr. (2d Am. ed.) 1765; Angell v. Hadden. 16 Yes. 202; City Bank v. Bangs. 2 Paige (X. Y.). 570. 32Daniell's Ch. Pr. (2d Am. ed.) 1765; Angell v. Hadden, 16 Yes. 202 : City Bank v. Bangs. 2 Paige (X. Y.). 570. 33r,nek v. Mason. C. C. A.. 135 Fed. 304. 34 Daniell's Ch. Pr. 1765: Story's Fq. Jur.. § 822: Angell v. Hadden, 16 Yes. 202: City Bank v. Bangs, 2 Paige (X. Y.), 570. 158] BILLS OL INTERPLEADER. 56' hearing, each defendant may read the other's answer against him. 35 If one of them has allowed the bill to be taken as con- fessed against him, this is considered as an admission that the bill was properly filed, and that he made an improper claim against the fund; 36 and the defendant, who has answered him, may obtain suitable relief, including a decree against the defaulter for his costs and the costs paid the plaintiff. 37 If, after answer, one of them defaults at the hearing, the court will enter a decree after hearing the other. 38 The plaintiff, if successful, is entitled to his costs, 39 including a counsel fee, 40 out of the fund, if there be one. Otherwise, from the de- fendant whose claim is finally held bad. 41 These costs, as well as the costs of the successful defendant, must eventually be paid by him wdiose claim is finally dismissed. 42 It has been said that when the bill is dismissed, there can be no further proceed- ings in the cause as between the defendants ; not even by con- sent ; inasmuch as the court has thereby lost jurisdiction. 43 After a decree in the plaintiff's favor, the cause is terminated as to him; and in case of his subsequent death the cause will proceed without a revivor. 44 § 158. Bills in the nature of interpleader. Where the plaintiff claims for himself some interest in the fund or matter in question, or does not admit the whole of a defendant's claim, 35 Bowyer v. Pritchard, 11 Price, •03; Daniell's Ch. Pr. 1765. See Perm Mut. L. I. Co. v. Union Tr. Co.. 83 Fed. 891. 36 Badeau v. Rogers, 2 Paige (N. V.), 200; Fairbrother v. Prattent, 1 Daniel, 64. But see Standley v. Roberts, 59 Fed. 836. 37 McXamara v. Provident Saw Life Assur. Soc, 114 Fed. 910. 38 Hodges v. Smith, 1 Cox Eq. 357. 39Dunlop v. Hubbard, 19 Ves. 205; Dowson v. Hardcastle, 2 Cox Eq. 279; McXamara v. Provident Sav. Life Assur. Soc., 114 Fed. 910. 40 Where the face value of a life insurance policy was $50,000, the sum of $1,000 was allowed as a counsel fee. Mutual Life Ins. Co. v. Lane. 151 Fed. 276. Wbere the amount was $10,000 or less, $150 was allowed. McXamara v. Provi- dent Sav. Life Assur. Soc, C. C. A.. 114 Fed. 910, 912. See Mutual Life Ins. Co. v. Farmers' & Mecbanics' Xat. Bank, 173 Fed. 390, 402; § 422, infra. 41 Aldridge v. Mesner. 6 Ves. 418; Mason v. Hamilton. 5 Simons, 19; Daniell's Ch. Pr. 1707. 42 Mason v. Hamilton, 5 Simon-. 19; Cowtan v. Williams, 9 Ves. 107; Daniell's Ch. Pr. (2d Am. ed.) 1701). 1767. 43 Jennings v. Xugent, 1 Molloy. 134. 44 Anon., 1 Vern. 351 ; Jennings v. Xugent, 1 Molloy, 134; Daniell's Ch. Pr. 1765. :>i;s BILLS IN EQUITY, [§ 159 or the defendants claim different amounts, although a bill of interpleader may not, a bill in the nature of an interpleader may be sustained. 1 It has been held that such a suit may be maintained by a mortgagee, to compel the mortgagor and a municipal corporation to submit to the court a dispute between them concerning the right to forfeit a franchise. 2 A bill by a trustee praying leave to resign a trust and to return the subject- matter thereof to a new trustee, in accordance with the terms of the trust agreement, is not a bill in the nature of an inter- pleader. 3 A pleading, filed as a bill of interpleader, may be sustained as a bill in the nature of an interpleader. 4 The frame of such a bill and the proceedings thereunder should conform, mutatis mutandis, to those of a strict bill of inter- pleader. 5 After payment of what he admits to be due, a decree may be entered discharging the plaintiff as to that, and directing the suit, or if an action at law has previously been begun, the latter, to proceed till his disputed rights are determined. 6 § 159. Bills of certiorari. A bill of certiorari was a bill tiled in a superior court of equity for the purpose of removing thither a suit in equity pending in an inferior court, on account of some alleged incompetency in the latter or some defect in its proceedings. 1 Such a bill first stated the proceedings in the inferior court ; then the cause of its incompetency, as, for example, that the subject of the action or the parties were not within its jurisdiction, or that, for some other cause, equal justice could not be done there ; and finally prayed a writ of certiorari, to certify and remove the record and the cause to § 158. IDorn v. Fox, 61 N. Y. •2(14: Mohawk & Hudson R. R. Co. v. (lute, 4 Paige (X. Y.), 885; Provident Sav. Life Assur. Soc. v. Loeb, 11.") Fed. 357? Knickerbocker Tr. Co. v. City of Kalamazoo, 182 Fed. 865; Hayward & Clark v. Mc- Donald. C. C. A.. 192 Fed. 890. See Robinson v. Brast, C. C. A., 149 Fed. 149: Story's Eq. PI.. § 2976; Dan- iell's Cli. Pr. (2d Am. ed.). 1768. Contra, Xew England Mutual Life Ins. Co. v. Odell, 50 Hun (57 N. Y. 3. C. R.) 279. 2 Knickerbocker Tr. Co. v. City of Kalamazoo. 182 Fed. 865. 3 Moore Printing Typewriter Co. v. National Savings & Tr. Co.. 218 U. S. 422, 54 L. ed. 1093. 4 McXamara v. Provident Sav. Life Assur. Soc. 114 Fed. 910. 5 McXamara v. Provident Sav. Life Assur. Soc, 114 Fed. 910. 6 City Bank v. Bangs. 2 Paige ( X. Y. ) . 570. See Groves v. Senteel, 15:5 U. S. 465, 38 L. ed. 785: s. c, 66 Fed. 179. § 159. lMitford's PI. ch. 1: Sto- ry's Eq. PL. § 298. § 158] BILLS OF CERTIORARI. 5fi0 the superior court. 2 It did not pray that the defendant should answer, or oven that he should appear to the hill, and, conse- quently prayed for no writ of subpoena, although a subpoena had to be sued out and served. 3 It was considered as an original bill, and filed as such in the superior court. Thereupon, the plaintiff was required to execute a bond in the penalty of £100, with one surety conditioned to prove the suggestions of the bill in fourteen days. A subpoena was next sued out and served; and a writ of certiorari issued directed to the judge of the inferior court, requiring him to certify or send to the court issuing the writ the tenor of the bill or plaint below, with the process or proceedings thereon. The writ having been served and returned, together with the required statement and papers, an order directing them to be filed was then obtained. Testi- mony to prove or disprove the suggestions of the bill was im- mediately taken, and the cause referred to a master to report whether they were proven or no. This was required to be done within fourteen days, unless the court specially enlarged the time. If the allegations were proved and showed a sufficient reason for retaining the suit, an order to retain the bill was granted ; and the defendant below was obliged to answer, and the cause removed proceeded in the same manner as if it had "been originally instituted in the superior court. 4 In no reported case has such a bill been filed in a court of the United States, although petitions for writs of certiorari in proceedings at common law are not uncommon. 5 2 Story's Eq. PI., § 298. 4 Hinde's Pr. 28-32 and 581, 582. 3 Story's Eq. PI., § 298 ; Mitford's 5 See infra, § 460. PI., ch. L CHAPTER VI. STJBPCENA TO ANSWER. § 160. Definition and form of subpoena. The first process in a court in equity is the subpoena ad respondendum which is a writ requiring the defendant to answer the bill under penalty therein expressed. A similar writ, called quihus- dam ccrtis cq/usisi in the form of a subpoena without any penalty, is also found in some of the early English chancery cases. 1 The process of subpoena constitutes the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the exigency of the bill. 2 These writs, like all writs and processes issuing from the courts of the United States, must be under the seal of the court from which they issue, and signed by the clerk thereof. Those issu- ing from the Supreme Court must bear teste of the Chief Justice of the United States, or, when that office is vacant, of the Asso- ciate Justice next in precedence. Those issuing from a Dis- trict Court must bear teste of the Judge, or, when that office is vacant, of the clerk thereof. 3 When issued from the Supreme Court the writ must be in the name of the President of the United States. 4 In the Supreme Court, the return day of the writ must be at least sixty days from the service thereof; 5 In the District Courts, the return day is twenty days from its issue. 6 In the District Courts, whenever a bill is filed, and not before, the clerk shall issue the process of subpoena thereon, as of course, upon the application of the plaintiff, which shall contain the names of the parties and be returnable into the clerk's office twenty days from the issuing thereof. At the § 160. 1 Mr. Justice Holmes, in 2 Equity Rule 7. an article on Early English Equity, 3 rj. S. R. S.. § 911. 1 Law Quart. Rev. 102. note 2.. cit- «U. S. S. C. Rule 5. inu Palerave, King's Council. 131, 6 U. S. S. C. Rule 5. i.'!2. note x; Scaldewell v. Stormes- 6 Equity Rule 12. worth, 1 Cal. Ch. 5. 570 § 160] DEFINITION AND FORM OF SUBPCENA. 571 bottom of the subpoena shall be placed a memorandum, that the defendant is required to file his answer or other defense in the clerk's office on or before the twentieth day after service, excludino- the day thereof; otherwise the bill may be taken pro confesso. Where there are more than one defendant, a writ of subpoena may, at the election of the plaintiff, be sued out separately for each defendant, or a joint subpoena against all the defendants. 7 If a defendant is sued in a representative capacity, or in both an individual and a representative ca- pacity, he should be so described in the subpoena ; which should in this respect follow the prayer of process in the bill. 8 A subpoena addressed to John Moore, guardian of John Stiles, is sufficient to give jurisdiction over him individ- ually although it might not be to give jurisdiction over him as guardian. 9 If a subpoena is not properly addressed, its service may be set aside upon motion, as made without authority. 10 Such a defect will, however, be waived, if the defendant enter his general appearance in his representative capacity. 11 Where an unincorporated partnership was described in the subpoena land bill as a corporation, and no appearance was made, it was held that the order thereupon was void, although the writ was served upon one of the partners, who failed to notify the plaintiff of his mistake. 18 There, before suit, the attorney for the co-partnership had inadvertently written to the complainant a letter which implied that the company had a board of direct- ors, 'and the partnership did business under the name of the Newport Pressed Brick Company. The penalty named in the 7 Eq. Rule 12. This is copied in part from Eq: Rule 12 of 1842. Tt makes the return day twenty days, instead of '"the next rule day or the next rule day but one, at the elec- tion of the plaintiff', occurring after twenty days from the time of the issue thereof." Tt omits the phrase, added to the former rule Dec. 17, 1000 (180 V. S. 641). '•which shall contain the Christian names as well as the surnames of the parties." Tt adds the words, "and not before," in order to make clear the practice under the former rule. See Arm- strong Cork Co. v. Merchants' Re- frigerating Co., 171 Fed. 778. 8 Carter v. Ingraham, 43 Ala. 7S; Walton v. Herbert, 3 Green Ch. (X. J.) 73: Brasher v. Van Cortlandt. 2 J. Chi (X. Y.) 247; see Cornell v. Green. 88 Fed. 821. 9 Cornell v. Green. 88 Fed. 821; s. c. in C. C. A., 95 Fed. 334. 10 Walton v. Herbert. 3 Green Ch. (X. J.) 73; Brasher v. Van Cort- landt. 2 J. Ch. (X. Y.) 242. 247. 11 Ibid.: Buerk v. Tmhaeuscr, 8 Fed. 457. 12 Baxter v. Jones. 185 Fed. 000. 5f2 BILLS 1ST; EQUITY. [§ 16,0 writ is now usually two hundred and fifty dollars; in earlier times it might be the or limb; 13 but it is never enforced, since the taking of the bill as confessed affords a far more substantial remedy. The subpcena should be addressed to the defendant against whom it is issued. 14 The usual form of a subpoena in a District Court of the United States is substantially as follows : — The Pre'sident of the United States of America, To John Aber: Greeting, — You are hereby commanded to appear before the Judges of the District Court of the United States of America for the Southern District of Xew York, in the Second Circuit, to answer a bill of complaint exhibited against you in the said Court in a suit in Equity, by William Terhuxe and to further do and receive what the said Court shall have considered in this behalf; and this you are not to omit under the penalty on yon Johx Aber of two hundred and fifty dollars ($250). Witness, Honorable George C. Holt, Judge of the District Court of the United States for the Southern District of Xew York, at the City of Xew York, on the first day of February, in the year one thousand nine hundred and thirteen and of the Independence of the United States of America the one hundred and thirty-seventh. . Alexander Gilchrist, Jr., Cleric. Robert Jones, Sol'r. The Defendant John Aber is required to file his answer or other defense in the above cause in the Clerk's office of this Court, on or before the twentieth day after service hereof ex- eluding the day of said service ; otherwise the bill aforesaid may be taken pro confesso. Alexander Gilchrist, Jr., Clerk. 13 Mr. Justice Holmes, in an ar- 14 Daniell's Cli. Pr. (2d Am. ed.^ tide on Early English Equity, 1 495. Law Quar. Rev.. 162, note 2. citing 1 Proceedings Privy Council (21 R. 2. 1307). § 161] ISSUE OF SUBPCKNA. 573 § 161. Issue of the subpoena. JS^o process of subpoena can issue from the clerk's office in any suit in equity until the bill is filed in the office. 1 Whenever a hill is filed the clerk must issue the process of subpoena thereon, as of course, upon the application of the plaintiff. 2 The signature of counsel is a suffi- cient warrant for his so doing. A praecipe or written order for the subpoena, signed by the attorney is usually first given him. In the early times, the bill was first examined by one of the masters in chancery, whose duty it was to determine whether to dismiss the bill by original or to retain it by subpuma. 3 The present practice, it is said, originated when Sir Thomas More was Keeper. 4 In the Supreme Court of the United States a motion for leave to file a bill must first be made. This is usually heard ex parte; 5 but when leave was asked to file a bill against the President of the United States, under the peculiar circumstances of that case it was thought proper that argu- ment should be heard against the motion for leave. 6 Under special circumstances the court will recpiire notice to be served upon the proposed defendant, and leave to file a bill has been denied. 7 Whenever any subpoena is returned not executed as to any defendant, the plaintiff is entitled to another subpoena, toties quoiies, against him, if he required it, until due service is made. 8 It has been held that the clerk may issue to an attorney a summons duly sealed and signed without specifying* the title of the cause, the names of the parties, or the return day ; and that the attorney may fill in the blanks when he wishes to serve the paper. 9 § 161. 1 Equity Rule 12. For the rule where a district is divided into two or more divisions, see U. S. v. Eddy. 28 Fed. 226. 2 Equity Rule 12. 3 Treatise on Masters of the Chauneerie, 1 Harg. Law Tracts, 302; Daniell's Ch. Pr. (2d Am. ed.) 357. 4 Ibid. 5 Georgia V. Grant, 6 Wall. 241, 18 L. ed. 848. 6 Mississippi v. Johnson, 4 Wall. 475. 18 L. ed. 437; Georgia v. Grant, 6 Wall.- 241, 242, 18 L. ed. 848; Louisiana v. Texas. 176 I T . S. 1, 44 L. ed. 347; Minnesota v. Northern Securities Co.. 184 U. S. 109, 46 L. ed. 499 ; Washington v. Northern Se- curities Co., 185 U. S. 254. 46 L. ed- 897. 7 Mississippi v. Johnson. 4 Wall. 475. 18 L. ed. 437; Georgia v. Grant. 6 Wall. 24 1. IS L. ed. 848: Minneso- ta v. Northern Securities Co., 184 l. S. 199. 46 L. ed. 499; supra, §, 33. 8 Equity Rule 14. 9Jewett v. Garrett, 47 Fed. 625.. 5-74 SUBPCENA TO ANSWER. [§ 1$ § 162. When a subpoena is necessary. Xo defendant can be brought before the court against his will without the service of a subpoena upon him. 1 A general appearance will, however, waive such an omission. 2 After a bill has been amended with no further change than the bringing in of new parties defendant, they alone need be served with a new sub- poena. 3 If, however, it were otherwise substantially amended, according to the English practice a subpoena to answer the amendments had to be served upon all the defendants. 4 A subpeena to appear and answer a bill of revivor if required, should be substantially in the form of a subpoena to an original bill, except that it requires the proper representatives of the party against whom it issues to appear at the next rule-day, which shall occur after fourteen days from the time of the service of the process, and there show cause, if any they have, why the cause should not be revived. § 163. Personal service of a subpeena. Except in cer- tain exceptional cases the service of the subpoena must be per- sonal. 1 and made within the district. 2 It must be made by the marshal of the district or his deputy, or by some other person specially appointed by the court for that purpose, and not other- wise. 3 "When the marshal or his deputy is a party in any ca'use, the writs and pravepts therein shall be directed to such disinterested person as the court or any justice or judge thereof may appoint, and the person so appointed may execute and § 1(12. 1 Equity Rule 7. 2 Buerk v. Imhaeuser, 8 Fed. 457. 3 Longworth v. Taylor, 1 McLean, 514; Angerstein v. Clarke, 1 Ves. Jr. 2.10; SkeOington v. , 4 Ves. Jr. 66. *Co ; 6ke v. Davies. T. & R. 309: Pramston v. Carter. 2 Simon*. 458. Sec Kendall v. Beckett, 1 Russ. 152. 5 Equity Rule 56. § 103. 1 Equity Rule 13. 2 Toland v. Sprague. 12 Pet. 300, T;28. 9 L. ed. 1093, 1104: Picquet v. Swan. 5 Mason. 35: Bourke v. Ami- son. 32 Fed. 710: Winter v. Koon, Schwarz & Co., 132 Fed. 251 : supra. § 01. 3 Equity Rule 15; Deacon v. Sewing M. Co.. 14 Rep. 43. A copy of an order, that non-resident de- fendants appear and plead before a day specied therein, may be served by any one, under an order for substituted service, although the usual practice is to serve it by a deputy marshal of the district where the defendants are found. Forsyth v. Pierson, 9 Fed. 801. It was held that the marshal might give an at- torney an appointment of a special deputy with the name in blank with oral permission to the attorney to fill in the same. Jewett v. Garrett, 47 Fed. 625. 163] PERSONAL SERVICE. 575 return them." 4 If the marshal or his deputy make the service, his unverified return is sufficient. 5 He mav be contradicted, 6 although there is a remedy by an action against the officer for a false return. 7 It has been specifically held : that the mar- shal's return, that the corporation served was transacting busi- ness within the district, could be contradicted ; 8 and that so could be his return, that the person on whom the service was made was authorized to represent the defendant for that purpose, 9 and that it w T as not conclusive as against strangers to the writ. 10 It is insufficient in the case of service upon a corporation, unless it shows that the defendant was transact- ing business within the district, or that appears elsewhere in the record. 11 It is capable of subsequent amendment; 12 and when the return shows that the service was insufficient, a mo- tion may be made to set the same aside. 13 Where there has been personal service upon the defendant by a special deputy tho fact that the return was in the name of such deputy instead of in the name of the marshal was held an irregularity which did not avoid the judgment when attacked in a collateral pro- ceeding. 14 It has been held that the return to a State court by a sheriff cannot be amended after a removal. 15 The return should state where the service was made, if the defendant reside 4U. S. R. S., § 922. 5 Von Roy v. Blackmail, 3 Woods, 98, 101; Phoenix Ins. Co. v. Wulf, 1 Fed. 775; Equity Rule 16. Where the defendant was named in the bill as Jacob Kraig, a return that the subpoena had been served on Jacob King was held insufficient. Mc- Claskey v. Barr, 45 Fed. 151. 6 Mechanical Appliance Co. v. Castleman, 215 U. S. 437, 54 L. ed. 272. See MeClaskey v. Barr, 45 Fed. 151; Park Bros. & Co. v. Oil City Boiler Works. 204 Pa. St. 453. 54 Atl. 334. Contra, Dicta in Von Roy v. Blackman, 3 Woods, 98. 100; Joseph v. New Albany 8. F. & R. M. Co., 53 Fed. 180; U. S. Bank v. City of Kendall. 17!i Fed. 914; U. S. v. McHie, 194 Fed. 894. 7 Von Roy v. Blackman, 3 Woods, 98, 100. 8 Peper Automobile Co. v. Am. Motor Car Sales Co., 180 Fed. 245. 9 Higham v. Towa State Travelers'" Ass'n, 183 Fed. 845. 10 U. S. v. McHie, 194 Fed. 894. n Earle v. Chesapeake & O. Ry. Co., 127 Fed. 235; Jackson v. Del. R. A. Co., 131 Fed. 134; Green v. Chicago. B. & Q. Ry. Co.. 147 Fed. 707; Allen v. Yellowstone Park Transp. Co.. 154 Fed. 504. 12 Phoenix Ins. Co. v. Wulf, 1 Fed. 775. 13 Scott v. Stockholders' Oil Co., 122 Fed. 835. 14 Mill v. Cordon. 45 Red. 270. 15|'al!iiKin v. B. & O. R. Co., 45 Fed. 156. .» t SUBPCENA TO A.NSWEE. [§ 163 19 without the district, 18 and probably in any event. Tf another than the marshal ot his deputy serve the subpcena. proof must be made by the affidavit of the process-server. 17 "The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by some other person specially ap- pointed by the court or judge for that purpose, and not other- wise. In the latter case, the person serving- the process shall make affidavit thereof/' 18 When a husband ami wife are par- ties a copy should be served upon each, although the former prac tiee was complied with by service upon the husband alone." When a defendant was sued both individually and in a repre- sentative capacity, it was held that only one copy of the sub- poena need be left with him. 20 Such service at the door of the defendant's dwelling, 21 and at his place of business when he lives in rooms above the same, 22 has been held to be sufficient. In an English ease, where infant defendants were secreted, service upon their mother was allowed, and held sufficient Where a guardian ad litem has been appointed it will be pre- sumed, in the absence of evidence to the contrary, that his wards were duly served. 24 Chief Baron Gilbert, in his "Forum Rom- anum," says of the subpoena: ''The service is good in the night or on Sunday, if it be before the time of the return ; for this being only process of notice, ami not to arrest the parties, it can create no disturbance, though it be served in the night or on Sundav.'' 25 It has, however, since been held in England 23 16 Allen v. Blunt, 1 Blatchf. 480, 487: Thayer v. Wales. 5 Fisher's l'at. Cas. 448. 17 Equity Rule 13. 18 Eq. Rule 15, copied in substance from Eq. Rule 15 of 1842. See Phoenix Ins. Co. v. Wulf, 1 Fed. 775: Hyslop v. Hoppock. 5 Ben. 447. 190'Hara v. MacConnell. 93 U. S. 150, 23 L. ed. 840; Robinson v. Cathcart, 2 ('ranch C. ('. 590. 80 Cornell v. Green. 88 Fed. 821; s. C. in C. C. A., 95 Fed. 334. 21 l'luenix Tns. Co. v. Wulf. 1 Fed. 775. For cases where the proof of service was held insullicient, see Blythe v. Hinckley. 84 Fed. 228; Swift v. Meyers. 37 Fed. 37. 22Lovin v. Hicks. 110 Minn. 179, 133 N. W. 575. 23 Smith v. Marshall, 2 Atk. 70, "Mr. William Allen Butler, in a learned opinion when referee, held that, where a guardian ad litem was appointed, service of a subpoena up- on his infant ward was not indis- pensable to the jurisdiction. Sloane v. Martin, 77 Hun, 249. See supra, § 106. 24 Sloane v. Martin. 77 Hun (N. Y.), 249. See supra. § 106. 25 Gilbert's Forum Romanum (Tyler's ed.), 42. ;§ 163] PERSONA! SERVICE. 577 that a service on Sunday may be set aside. 26 A decision of Circuit holds that, in an extraordinary case, a warrant of ar- rest in admiralty can be issued on Sundav. Personal service •of the subpoena cannot, in the absence of any special statutory provision, be made beyond the territorial jurisdiction of the court; 28 except that in a case of a local nature, at law or in ■equity, where the land or other subject-matter of a fixed nature, such as a railroad, is in both districts of the same State or is .situated entirely in either district of a State which is divided into two or more districts, a defendant resident therein may be served by the marshal of any district in that State where he re- sides. 29 It has been held that a suit brought solely for the purpose ■of appointing a receiver of a railroad, with an injunction against its creditors, 30 a suit to determine the rightful owners of a fund in court, 31 and a suit by the United States to determine the right of an Indian tribe to a fisherv, 32 are such cases of a local nature. In a suit not of a local nature, a duplicate writ may be issued against a defendant residing in a different district of the State directed to the marshal of such district. "The clerk issuing the duplicate writ shall indorse thereon that it is a true copy of a writ sued out of the court of the proper district ; and such original and duplicate writs, when executed and re- turned into the office from which they issue, shall constitute and be proceeded on as one suit; and upon any judgment or de- cree rendered therein, execution may be issued, directed to the marshal of any district in the same State." 33 Where defendants reside in different division's of a district, all mesne and final process may be served and executed in any or all of the divisions of the district. 34 In other cases where a State is divided into 2«Mackreth v. Nicholson, 19 Ves. 30 East Tenn., V. & 6. R. Co. v. 367. Atlanta & T. V. R. Co.. 49 Fed. 508. 27 Pearson v. Tlie Alsalfa, 44 Fed. 31 Winter v. Ludlow. 3 Phila. 464, 358 (U. S. D. C 1).. S. C.i 32 u. s. v. Winans, 73 Fed. 72. HToland v. Sprague, 12 Pet. 300, 83j u d. Code, § 52, 36 St. at L. 328, 9 L. ed. 1093, 1104; Picquet v. 1087. Swan, 5 Mason. 35; I'.wurke v. Ami- 34 .Jud. Code, § 53, 36 St. at L. son, 32 Fed. 710; Lutterworth v. 1087. Hill. 114 Y. S. 128, 29 L. ed. 119. 29 Jud. Code, §§ 54. 5o, 50, 36 St. at L. 1087. Fed. Prac. Vol. I.— 37. .) i 8 SUBPlENA TO ANSWER. [§ 163 Two or more districts the defendant cannot be served ont of the district. 35 When a petition is filed by a district attorney of the United States praying an injunction against a combination in restraint of commerce among; the several States or with foreign nations, the subpoena may be served by leave of the court in any dis- trict by the marshal thereof. 36 In suits for the infringement of patents, service may be made in the district where the suit is brought upon any agent of the defendant engaged in conduct- ing the defendant's business there, provided that the defend- ant has a regular place of business in the district and has com- mitted acts of infringement there. 37 At common law, where the State statutes permit the practice. 38 and in equity by leave of the court, 39 a receiver of a foreign railroad company may be served by leaving the writ with one of his station agents. It has been held that an attorney cannot accept service of a sub- poena ad respondendum before the entry by him of a formal appearance ; 40 but an acceptance and appearance by him with- out any authority may be ratified by estoppel. 41 A subpoena will not he set aside because addressed to a non-resident over whom the court could exercise jurisdiction with his consent, but not otherwise, although the service upon him might be set aside. 42 A motion to set aside the service, 43 or a motion to quasi) the return, 44 accompanied by a special appearance for that purpose, 45 is the proper method of testing the sufficiency of the service ; unless the defendant prefers to disregard it and subse- quently to raise the objection upon an appeal from the de- 35 Galveston. H. & S. A. Ry. Co. v. Gonzales, 151 U. S. 496, 38 L. ed. 24S. But see Winter v. Ludlow, 3 Phila. 4<>4. 36 2G St. at L.. §§ 5. 210. 37.Tud. Code. S 38. 36 St. at L. ilis- supni. 22 38 Eddy v. Lafayette, 103 U. S. 456, 41 L. ed. 22."). 39 Central Tr. Co. v. St. L. A. & T. Ry. Co... 40 Fed. 426. 40 r. S. v. Cooper, 196 Fed. 584, 41 Cowden v. Wild Goose Mining & Trading Co., C. C. A., 1!>!) Fed. 561. 42 Mason v. X. Y. Steam Power Co.. 87 Fed. 241. 43 Ibid.;. Bourke v. Amison, 32 Fed. 710; Peper Automobile Co. v. Am. Motor Car Sales Co., 180 Fed. 245. 44 Am. Cereal Co. v. Eli P. C. Co., 70 Fed. 276; Peper Automobile Co. v. Am. Motor Car Sales Co.. 180 Fed. 245; Higliam v. Iowa State Travelers' Ass'n, 183 Fed. 845. 48 Infra, §§ 169, 170. § lb'4] SEKVIGE OK COKI'OIIATIOXS. 579 cree, 46 or to resist the execution of the decree as void. 47 Before the Equity Rules of 1912, it was held that the objection could not be joined with an answer to the merits. 48 A motion to set aside the service, made six weeks after the service, was held not to be barred by laches. 49 Where such a motion had been 'made and denied in the State court, and no appeal taken from the decision, it was held that it could not be renewed in the Federal court after a removal, 50 although the motion may be made for the first time in the Federal court after a removal. 51 A defendant has no right to a trial by jury upon the issues raised upon his motion. 52 In one case such a motion was grant- ed without prejudice to the right of the complainant to apply for leave to amend his complaint by stating the facts relating to the presence of property within the district and his claim against the same, which brought the case within the statute. 53 . § 164. Service upon corporations. If the United States are sought to be made parties defendant, the subpoena should be served upon the Attorney-General or the District Attorney of the district where the suit is brought. 1 "When process at common law or in equity shall issue against a State, the same shall be served on the Governor, or chief executive magistrate, and Attorney-General of such State." 2 When a suit is brought against a domestic corporation, that is, one chartered within the State which contains the district where the suit is brought, the subpoena should be served upon one of its officers; or where that is impossible, by leaving a copy at its principal place of business ; or where it has no place of business nor officers within the State, by service upon its managing agents, or where 46 0'Hara v. McConnell, 93 U. S. 51 Gokloy v. Morning News, 156 150, 23 L. ed. 840; Butterworth v. U. S. 518." Hill. 114 V. S. 128, 29 L. ed. 119. 52 p epe r Automobile Co. v. Am. 47 .Meyer v. Kuhn. C. C. A., 65 Mortor Car Sales Co.. 180 Fed. 24:). Fed. 70.1. 53 Jackson v. Hooper, 171 Fed. 48 Peper Automobile Co. v. Am. .")i»7, 598. Motor Car Sales Co.. ISO Fed. 24.1. § 104. l Hoffiiiiin's Cli. Pr, 10S: See (liadcloid Chemical Co. v. Chi- Daniell's Ch. Pr. (2d Am. ed.) .517. oa.uo Wood Finishing Co.. 180 Fed. note 4. 770. 2 Supreme Court Rule 5; Grayson 49 Phelps v. Connecticut Co.. 188 v. Virginia. 3 Dall, 320, 1 L. ed. Fed. 765: lil'.i: supra, § 3. 50 Hoyt v. Ogden Portland Cement Co.. 185 Fed. 889. 580 SUBPOENA TO ANSWER. [§ 164 there is no agent there, perhaps upon one of its stockholders,* Where the State practice prescribed a specific method of serv- ive. that must he followed in actions at common law. 4 and will usually be followed in a suit in equity. 5 If not obnoxious to the Constitution^ it is binding in a collateral proceeding; 6 but when the proceeding is attacked by a motion to set aside the service upon a foreign corporation, the Federal court determines the objection for itself and is not necessarily controlled by the State law. 7 It has been held: that a corporation created by an act of Congress can, in the absence of a special statute of the United States", be served with process from a Federal court only in the district where its principal office is situated and its corporate business is transacted, and not in another district where it has stipulated, in accordance with the State statute, to accept service of process ; 8 and in Pennsylvania, that, in the absence of an express provision in its charter a corporation created by an act of Congress can be sued by service upon its president in any State. 9 An irregularity in service upon the agent of a corporation may be validated by his admission of service. 10 When the jurisdiction rests solely upon the existence of a Federal question in a case which is not brought for the in- fringement of a patent, nor against a surety company, nor nn- 3 Daniell's Ch. Pr. (1st Am. ed.) attachment and publication or by 564. "If a bill be filed against a serving process upon the State aud- corporation the process must be itor. served upon some one of the mem- 5 Eby v. Northern Pac. R. Co.. 13- bers." Citing Hinde's Ch. Pr. 87. Phila. 144. But see infra. § 455. which uses the same words. But 6 Swarts v. Christie Grain & Stock see St. Clair v. Cox, 106 U. S. 353, Co.. 166 Fed. 338. 359, 27 L. ed. 223, 226: Rand v. 7 West v. Cincinnati. X. 0. & T. Proprietors, etc.. Co.. 3 Day (Conn), P. Ry. Co.. 170 Fed. 349. and cases 441; O'Brien v. Stair's F. & T. C. cited infra. Co., 10 Cal. 343. 8 A. L. Wolff & Co. v. Choctaw. 4 Amy v. Watertown. 130 U. S. O. & G. R. Co.. 133 Fed. 601. Of. 301, 9 Sup. Ct. 530, 32 L. ed. 946; Caledonian Coal Co. v. Baker. 19G Lemon v. Imperial Window Glass U. S. 432, 49 L. ed. 540. Co., 199 Fed. 927, holding that, in 9 Thornburgh v. Savage Mining West Virginia, a corporation which Co., 1 Pac. Law Mag. 267. had failed to fix its place of resi- 10 Cnion Pac. Ry. Co. v. Xovak. dence in the State, by appointing an C. C. A.. 61 Fed. 573. Xot, how- attorney resident in one of its ever, one by a statutory agent. Far- counties, might be served either by mer v. Xat. Life Ass'n. 50 Fed. 829. § 104] M.KVICE ON COKPOE-VriO.XS. 581 der the statute against combinations in restraint of commerce, a District Court of the United States has no jurisdiction over a foreign corporation u which is not an alien. But when the defendant is an alien corporation, 12 or when jurisdiction is- claimed on account of a difference of citizenship, a foreign cor- poration may be served with process in the State of the com- plainant's residence, provided it be "found" within the dis- trict. 13 What constitutes such a finding is a matter hard to define with accuracy. If a State statute forbids a foreign cor- poration to transact business within its borders except upon condition that the corporation stipulate to allow legal process. to be served upon it, and the company execute such a stipula- tion, not in express terms restricted to the process of a State court; it will be considered to apply to the Federal courts, and a subpoena from a Federal court may be served upon the foreign corporation in the same manner as a similar process of a State tribunal. 14 Such condition and stipulation may be implied as well as expressed. 15 If a State permits a foreign cor- poration to do business within her limits, and at the same time provides that, in suits against it for business there done, process shall be served upon its agents, the provision is deemed to be a condition of the permission ; and corporations that subsequent- ly do business in the State are deemed to assent to such con- ditions as fully as though they had specially authorized their agents to receive service of the process. 16 Such condition must u McCormick II. M. Co. v. Wakh- ers, 134 U. S. 41, 33 L. ed. 833; In re Keasby & Mattison Co.. 1GO U. S. 221, 40 L. ed. 402; supra, § 61. 12 In re Hohorst, 150 0. S. 653, 37 L. ed. 1211 ; Barrow S. S. Co. v. Kane. 170 U. S. 100. 42 L. ed. !Mi4. 13 McCormick 11. M. Co. v. Walth- ers, 134 U. S. 41 , 33 L. ed. 833; supra, §61. 14 Ex parte Schollenberger, 96 U. S. 369, 24 L. ed. 853; Pennsylvania Lumbermen's Mutual Fire Ins. Co. v. Meyer. 107 I". S. 407. 40 L. ed. 810; Gale v. So, Building & L. Ass'n. 117 Fed. 732: Buckingham & Hecht v. North German Fire Ins. Co. of New York, 149 Fed. 622; Castagnino- v. Mutual Reserve Fund Life Ass'n, C. C. A., 157 Fed. 29. Overruling several cases to the contrary pre- viously decided in the Circuit Courts. 15 St. Clair v. Cox. 106 l". S. 350,. 356, 27 L. ed. 222. 225. 16 Mr. Justice Field in St. Clair v. Cnx. 106 L". S. 350. 350. 27 L. ed. 222. 225: Railroad Co. v. Harris, 12 Wall. (15. SI. 20 U ed. 354. 358; Old Wayne Life Ass'n v. McDon- ough. 204 U. S. S. 21. 51 L. ed. 345, 350; llaydcn y. Androscoggin Mills, 1 I'.d. 93; Estes v. Belford, 22 Fed. 275. 582 SUBPCEXA TO ANSWER. [§ 104: not; however, encroach upon that principle of natural justice which requires notice of a suit to a party before he can be bound by it. It must be reasonable, and the service provided for should be only upon such agents as may be properly deemed representatives of the foreign corporation. It has been said, "that in the absence of a voluntary appearance, three condi- tions must concur or co-exist in order to give the Federal courts jurisdiction in personam over a corporation created without territorial limits of the State in which the court is held, viz : (1) It must appear as a matter of fact that the corporation is carrying on its business in such foreign State or district; (2) that such business is transacted or managed by some agent or officer appointed by and representing the corporation in such State; and (3) the existence of some local law making such corporation, or foreign corporations generally, amenable to suit there, as a condition, express or implied, of doing business in the State. 17 It seems that by the common law a court has jurisdiction over a foreign corporation to enforce a cause of action arising in the jurisdiction. 18 Service upon an agent who stood in no representative character to the company, whose duties were limited to those of a subordinate employee or to a particular transaction, or whose agency had ceased when the matter in dispute arose, would, probably, be held insufficient; 19 but where, while transacting business there, it had appointed an agent, for the purpose of the service of process, and his au- thority had not been revoked, the corporation was held to be subject to the jurisdiction. 20 A State statute providing that a public officer shall be the attorney in fact for every foreign corporation doing business in the State and every non-resident domestic corporation, with authority to accept service of process on its behalf, is constitutional, so far as actions upon, contracts made within the State are concerned, 21 but not, it has been 17 U. 8. v. Am. B. Tel. Co.. 29 359. 3(i0. 27 L. ed. 222. 220 ; Mexican Fed. 17. 35, per Jackson. J. See C. Ry. Co. v. Pinkney, 14!) U. S. 194, Maxwell v. Atehinson, T. ft S. F. R: 37 L. ed. (399; Maxwell v. Atchi- Co., 34 Fed. 286, 2S9 : Buffalo Glass son. T. & S. F. R. Co., 34 Fed. 286; Co. v. Manufacturer's (Mass Co., 142 Carron Iron Co. v. McClaren. 5 II. L'. Fed. 373. ' C. 416. 18 Xewhy v. Yon Opper. etc.. Co., 20 Jim v . Empire State-Idaho Min- L. R. 7 Q. B. 293. inp- ft Developing Co.. 156 Fed. 797. 19 St. Clair v. Cox, 106 I". S. 350. 21 Saint Mary's Franco-American 164] SERVICE OX OOBPOKATIOKS. 583 held, as regards suits upon contracts executed in another State with citizens of the State where the suit is brought, although the defendant has transacted some business in the latter State. 22 It has been held that the Superintendent of the Insurance De- partment of the State of Xew York cannot be served by mail ; and that he has no power to waive a defect in the service of process upon him so as to bind a foreign insurance company. 23 In order thus to subject itself to the service of process the for- eign corporation must actually transact business in the district where the suit is brought. 24 The maintenance of an office or Petroleum Co. v. West Virginia. 203 U. S. 183, 51 L. ed. 144, 7 Ann. (as. 1018. 22 Old Wayne Life Ass'n v. Mc- Donough. 204 U. S. 8, 51 L. ed. 345: Simon v. Southern Ry. Co., C. C. A., 195 Fed. 50. 23 Farmer v. National Life Ass'n, 50 Fed. 829. 24 Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 28 L. ed. 1137: Hay- den v. Androscoggin Mills. 1 Fed. 93; Zambrino " Galveston, H. & S. A. Ry. Co.. 38 Fed. 449; Riddle v. X. Y., L. E. & W. R. Co.. 39 Fed. 290; Maxwell v. Atchison. T. & S. F. R. Co., 37 Fed. 28G ; Filli v. D., L. & W. R. Co., 37 Fed. 65: Den- ton v. International Co. of Mexico, 36 Fed. 1; Block v. Atchison, T. & S. F. R. Co., 21 Fed. 529; Johnson v. Computing Scale Co.. 139 Fed. 339; Phelps v. Connecticut Co., 188 Fed. 7(15: Cliinn v. Foster-Millmrn Co., 195 Fed. 158; Cody Motors Co. v. Warren Motor Car Co., 196 Fed. 254. That otherwise, the statute would lie unconstitutional, was held in Moredock v. Kirhy. 118 Fed. 180; Cella Commission Co. v. Bohlinger, C. C. A., 8 L.R.A.(X.S.) .->37, 147 Fed. 419. See Brooks v. Dun. 51- Fed. 138. It has been held that the following acts do no& amount to a transaction of business within the State, which will subject a foreign corporation to the jurisdiction of the courts, State or Federal, there held: A single act of business, such as the making of a contract there for the sale of an article to be manufactured elsewhere and there delivered, when there was no pur- pose to do any other business or to have a place of business within the district. Cooper Mfg. Co. v. Fergu- son. 113 U. S. 727. 735, 28 L. ed. 1137, 1139; Good Hope Co. v. Rail- way B. F. Co.. 22 Fed. 635; Maxwell v. Atchison. T. & S. F. R. Co.. 34 Fed. 286; Frawlev v. Pennsylvania Cas. Co.. 124 Fed. 259. Cf. Doe v. Springfield B. Co.. C. C. A.. 104 Fed. 684; Eiricli v. Donnelly C. Co., C. C. A., 105 Fed. 1. The. residence of three directors of the corporation and its assistant secretary, who. at various times, received and gave in- formation indirectly affecting the business of the corporation else- where. Earle v. Chesapeake & O. Ry. Co.. 127 Fed. 235. The residence of the officers or directors served. and a by-law providing that the di- rectors may meet within the dis- trict once a month, where there is no proof <>f a compliance with such a by-law. Con'ley v. Mathieson Alkali Works. 190 D. S. 406. 40S r 411. 47 L. ed. 1113. 1114. 1115. 584 SUBPCENA To ANSWER. [§ 1G The maintenance U. S. 530, 51 L. ed. 91 0; Denver & Rio Grande R. Co. v. Roller Co., C. C. A., 49 L.R.A. 77, 100 Fed. 738; Weller v. Pennsylvania R. Co., 113 Fed. 502 ; Earle v. Chesapeake & O. Ry. Co.. 127 Fed. 235; Buffalo Glass Co. v. Manufacturers' Glass Co.. 142 Fed. 273; McGuire v. Great Northern Ry. Co.. 155 Fed. 230; West v. Cincinnati, N. O. & T. P. Ry. Co., 170 Fed. 349; Hefner v. Am. Tube & Stamping Co.. 163 Fed. S66; William Grace Co. v. Henry Martin Brick Mach. Mfg. Co.. C. C. A., 174 Fed. 131; Fawkes v. Am. Motor Car Sales Co., 176 Fed. 1010; Cody Motors Co. v. Warren Motor Car Co., 196 Fed. 254; although samples are shown there, Cody Mo- tors Co. v. Warren Motor Car Co., 196 Fed. 254, and repairs there made. Fawkes v. Am. Motor Car Sales Co., 176 Fed. 1010. The col- lection of news paid for by the item. Evansville Courier Co. v. United Press, 74 Fed. 918. Advertisements Boardman v. S. S. McClure Co., 123 Fed. 614. The negotiations of loans upon a mortgage, and a successful application to have the bonds there- by secured listed on the stock ex- change. Clews v. Woodstock Iron Co., 44 Fed. 31. The lease by a foreign to a domestic corporation of personal property, and the payment by the latter to the former of a part of the profits derived from the use of such property within the jurisdic- tion of the court. U. S. v. Am. B. Tel. Co., 29 Fed. 17. The acceptance of a lease by a railroad within a State, where the terms of the lease did not appear. Green v. Chicago. B. & Q. Ry. Co.. 147 Fed. 767. 164] SERVICE OX CORPORATIONS. 585 storeroom, where goods are kept for sale, 25 or where contracts are closed, 26 or railroad tickets sold, 27 or the maintenance of an office there by its president, where he performs his presidential duties, is sufficient to authorize service upon him within a foreign State. 28 An insurance company is engaged in business in a State when it is accustomed to send its agents there to adjust fire losses. 29 An insurance company does not cease to do business in a State when it receives premiums upon pol- icies previously issued there; although such premiums are sent by the insured to an agent in another State, and the company issues no new policies in the former State. 30 Where the husi- 25 Toledo Computing Scale Co. v. Computing Scale Co., C. C. A., 142 Fed. 919; Cliadeloid Chemical Co. v. Chicago Wood Finishing Co., 180 Fed. 770. But see Hefner v. Am. Tube & Stamping Co.. 163 Fed. 866. 26Sleicher v. Pullman Co., 170 Fed. 365; Michigan Aluminum Foundry Co. v. Aluminum Castings Co.. 190 Fed. 879. Where the cor- poration acted as a broker of grain and stock it was held to transact business in a State where it main- tained an office, at which orders, written or oral, were received by persons called its correspondents, the correspondents participating in neither the loss nor the profits of the transaction. Board of Trade v. Hammond Elevator Co., 198 U. S. 424, 49 L. ed. 1111. 27 Chesapeake & 0. Ry. Co. v. Sto- janowski, C. C. A., 191 Fed. 720. But not the sale by another corpora- tion, in connection with its own tickets, of coupons', good over the defendant's railway, accounting each month to the defendant for its pro- portion of the proceeds. Earle v. Chesapeake & O. Ry. Co., 127 Fed. 235. 28 Revans v. So. Mo. & A. R. Co., 114 Fed. 982. 29 Pennsylvania Lumbermen's Mutual Fire Ins. Co. v. Meyer. 197 U. S. 407. 49 L. ed. 810. But see Louden Machinery Co. v. Malleable Iron Co.. 127 Fed. 1008. It has been held that service upon an agent of a foreign corporation, who lias been sent into the State to negotiate with the pkuntiff for a settlement of the controversy, is sufficient: al- though the company has never done any other business within the juris- diction. Brush Creek Coal & Min. Co. v. Morgan-Gardner El. Co.. 136 Fed. 505 (W. D. Mo.). See Con- necticut Mutual Life Ins. Co. v. Spratley. 172 U. S. 002, 43 L. ed. 569; where, however, the company was transacting business within the State. Contra. Louden Machinery Co. v. Am. Malleable Iron Co.. 127 Fed. 1008 (S. D. la.) ; Brush Creek Coal & Mining Co. v. Morgan-Gard- ner Electric Co.. 136 Fed. 505 (W. D. Mo.); Buffalo Sandstone Brick Co. v. American Sandstone Brick Machinery Co.. 141 Fed. 211 ( W. D. X. Y.); Wilkins v. Queen City Savings Bank & Trust Co., 154 Fed.. 173 (S. I). X. Y.i. lloyt v. Ogden Portland Cement Co.. 185 Fed. B86 (X. D. X. Y.). Where service upon the President was held to be suffi- cient. 30 Connecticut Mut. Life Ins. Co- 5S6 SUBPCEXA TO AKSWER. [§ 104 ness within the State has ceased, and there is no official ap- pointment of an agent for the service of process outstanding unrevoked, service upon a former agent is insufficient. 31 Serv- ice upon the president, 32 secretary, 33 or other principal officers 34 of a foreign corporation within the State, is not sufficient to confer jurisdiction upon the court, unless the corporation is found there or waives the objection. A surety company may be served in any district where it is found in a suit upon a bond Or undertaking given in such district under the statutes of the United States. 35 Service upon a surety company is made upon its agent in the district appointed by it for that purpose or in his absence, or, in case there is no such appointment, by service upon the clerk of the court where the suit is brought. 36 Service of process in the manner prescribed by the State practice may subject a foreign corporation to the jurisdiction of the Federal court, in a case over which the State statutes deprive her courts of jurisdiction because the cause of action arose without the State. 37 By stipulation in*the suit, the corporation may be estopped from objecting that a person upon whom service was made was not authorized to represent it. 38 A marshal's return, which recited the delivery of a true copy on the managing agent of a foreign corporation found in the county, that he was the only agent of the corporation therein, that it was a non-resident. v. Spratley, 172 U. S. 602, 43 L. ed. 569. 31 Cooper v. Brazelton, C. C. A., 135 Fed. 470. 32 Carpenter v. YYestinghouse Air- Brake Co.. 32 Fed. 434; Hoyt v. Ogden Portland Cement Co., 185 Fed. 889. The New York courts still follow the statute (Code of Civil Procedure, § 432) authorizing serv- ice upon a foreign corporation by delivering a copy of the summons to the president, secretary or treasurer within the State, whether the de- fendant transacts business there or not. Pope v. Terre Haute Car & Mfg. Co., 87 X. Y. 137; Sadler v. Boston 1 & Bolivia Rubber Co., 140 App. Div. (X. Y.) 3C7, aff'd. 202 X". Y. 547; Mallory v. Yirginia Hot Springs Co., Xew York Supreme Court (Kings County, Sp. Tm.) X". Y. L. J. February 13, 1913. 33 Phelps v. Connecticut Co., 188 Fed. 7G5. 34 Carpenter v. YVestinghouse Air- Brake Co., 32 Fed. 434. 35 28 St. at L., p. 279, supra, §§ 5, 61. 36 Ibid. 37 Carstairs v. Mechanic's & Trad- ers' Ins. Co. of X. Y., 13 Fed. 823. 38 Cowden v. Wild Goose Min- ing & Trading Co., C. C. A., 199 Fed. 561. § 105 | SUBSTITUTED SERVICE. 5>7 ,and that none of its principal officers resided in the State, and that all of its officers, except its managing agent, were absent from the State; was held to be prima facie evidence of legal service; 39 but a return of service tipon a general agent was not. 40 A return that a foreign corporation was found within the State, may be contradicted. 41 It has been held that upon a motion to set aside service upon a foreign corporation because the writ was not served upon the proper person, the defendant need not show upon whom the service should be made or that it has no agent in the district. 42 A plea in abatement, which denied that the person served "is" an agent or officer of the corporation, was held to be insufficient; since it did not negative the fact that he was such an agent on the date of service. 43 Under the former practice, it was held that a plea to the juris- diction did not raise the question that the stenographer in the employ of defendant transacting business within the State was not the proper person upon whom service should be made. 44 A corporation is not entitled to a trial by jury of the questions whether it was transacting business within the State and whether the person upon whom service was made was its au- thorized representative. 45 § 165. Substituted service of a subpoena. Independently of an express statutory authority, there is no power in a court of equity to order actual personal service to be effected upon a defendant beyond its territorial jurisdiction; 1 but, in a few cases, such courts have for more than a centurv assumed the power of ordering service to be made within their jurisdiction upon some person for the absent defendant, and have treated such service as valid. 2 In suits to stay proceedings at law in the 39 C'hinn v. Foster-Milburn Co., 44 Cliadeloid Chemical Co. v. Cbi- 195 Fed. 158. cago Wood Finishing Co., 180 bed. 40 Swarts v. Christie Grain & 770. Stock Co., 100 Fed. 388: 45 Peper Automobile Co. v. Am. 41 I'eper Automobile Co. v. Am. Motor Car Sales Co.. 1SH Fed. 245. Motor Car Sales Co., 180 Fed. 245; § 105. 1 This passage was quoted supra, § 163. and approved by Maxev. .1.. in Batt 42 Wall v. Chesapeake, & O. Ry. v. Proctor, 45 Fed. 515. 5 Hi. Co., C. C. A., 95 Fed. 398, Ward, 2|[ a lcs v. Sutton. 1 Dickens 26; J., dissenting. s. c, sub nam. Ilallett v. Sutton, 43 Scott v. Stockholders' Oil Co., 12 Simons. 145. note; Carter v. De 129 Fed. 015. Prune. 1 Dickens. 39: Hyde v. For- 588 SUBPCEXA TO ANSWER. [§ 165 same court, the service of a subpoena upon the attorney of the plaintiff at law may be allowed, and it will then bind the lat- ter if he be beyond the territorial jurisdiction of the court. 3 It has been held that this cannot be done after the judgment at law has been enforced, since the attorney's authority to represent his client is then terminated. 4 Xor where an injunction is also asked against a non-resident, who is not a party to the suit a stay of which is prayed ; 5 unless he is in privity with one of the original defendants, in which case it was held, that serv- ice might be made upon him in another district. 6 A similar practice 1 would in all probability be allowed in serving process under bills not original; namely, bills of revivor, supplemental bills, and bills of revivor and supplement, which are nothing more than continuations of the suits upon which they operate. 7 So. it has been held: That, under a bill to reform an insurance policy pending an action at law upon the policy, a subpoena may be thus served upon the attorney for the party to the action at law. 8 That under a bill to enjoin the prosecution of a suit to compel the transfer of stock, a subpoena may be served upon the attorney for the plaintiff in the former suit. 9 And that under a bill to collect out of equitable assets a decree of the same court of equity for costs, such service of a notice without a subpoena is sufficient. 10 The Federal courts have refused to ex- tend this class of eases so as to include a bill of interpleader, two ster, 1 Dickens. 102; Lady Carring- ton v. Cant il Ion, Bunb. U'7: Hob- Louse v. Courtney, 12 Simons. 140, and cases tbere cited: Daniell's Cli. Pr. (2d Am. ed.) 502-508. 3 Dunn v. Clarke. 8 Pet. 1. 8 L, ed. 84.")-. Hitner v. Suckley. 2 Wash 465; Eckert v. Bauert, 4 Wash. 370; Ward v. Seabry, 4 Wash. 426; Read v. Consequa, 4 Wash. 174; Bartlett v Sultan of Turkey, 10 Fed. 346. Sec also Logan v. Patrick, 5 (rancli, 288. 3 L. ed. 103; Dunlap v. Stetson, 4 Mason. 340. 4 Kanims v. Stark. 1 Sawyer. 547. 5 Manning v. Berdan, 132 Fed. 382. 6 O'Connor v. O'Connor, 146 Fed. 994. 7 Norton v. Hepworth, 1 H. & T. 158; Dunn v. Clarke, 8 Pet. 1, 8 L. ed. 845, p. 449a. But see Henderson v. Meggs, 2 Brown Ch. C. 127; An- derson v. Lewis, 3 Brown Ch. C. 429; Gardiner v. Mason, 4 Brown Ch. C. 478. This passage was quot- ed with approval by Morrow. J., in ShainwaW v. Davids, • 60 Fed. 701. 703. 8 Abraham v. North German Fire Ins. Co.. 3 L.Pv.A. 188. 37 Fed. 731. 9Kelley v. T. L. Smith Co., C. C. A., 196 Fed. 466. lOMaitland v. Gibson. 79 Fed. 136. 105] SUBSTITUTED SERVICE. 589 of the defendants to which were engaged in an action between themselves in the same court concerning the same matter, 11 al- though in England such a mode of service might have been al- lowed. 12 Nor, it seems, can a subpoena thus be served under a bill to set aside a sale made under a decree of the same court to which persons are joined as defendants who were not parties to the former suit. 13 Substituted service of a subpoena to appear and answer to a cross-bill has been allowed, 14 but not when the •cross-bill sought to introduce new and distinct matters into the original suit. 15 The safer practice when a defendant to a cross- bill cannot be served personally seems to be to procure an order staying his proceedings in the original cause until he answers the cross-bill. 16 Substituted service of process or notice upon a petition of intervention is allowed in the same cases in which it would be allowed upon a cross-bill. 17 Substituted service has also been allowed in England upon the agent of a defendant be- yond the jurisdiction, who had authority to represent the lat- ter with respect to the property which was the subject of the suit. 18 When substituted service is wished, an order must be obtained that service upon the attorney employed in the former 11 Herndon v. Ridgway, 17 How. 424. 15 L. ed. 100. See § 88. MMartinius v. Helmutfi, G. Coo- per. 248; Stevenson v. Anderson, 2 Yes. & B. 407. See § 88. 13 Pacific R. Co. of Mo. v. Mo. Pae. Ry. Co., 3 Fed. 772; s. c, on appeal. Ill U. S. 50.1, 522, 28 L. •ed. 498, 504. 14 Johnson R. R. S. Co. v. Union S. & S. Co.. 4.T Fed. 331, § 201; Kingsbury v. Buckner. 134 U. S. 650, 676, 33 L. ed. 1047. 1057; Low- enstein v. Glidewell. 5 Dill. 325; Sawyer v. Gill, 3 Woodb. & M. 97; Segee v. Thomas, 3 Blatchf. 11 ; Ilit- ner v. Suckley, 2 Wash. 465; Ander- son v. Lewis. 3 Brown Ch. C. 429 ; Gardiner v. Mason, 4 Brown. Ch. C. 478; Waterton v. Croft, 5 Simons, 502; infra, § 201. 15 Rubber Co. v. Goodyear, 9 Wall. 307; Heath v. Frie Rv. Co.. 9 Blatchf. 316; Low enstein v. Glide- well. 5 Dillon 325 ; Ledbetter v. Man- dell, 141 App. Div. (N. Y.) 556, aff'd 205 X. Y. 537. But see Kings- bury v. Buckner, 134 U. S. 650, 676, 33 L. ed. 1047, 1057. See infra, § 201. 16 Sawyer v. Gill. 3 W. & M. 97; Segee v. Thomas. 3 Blatchf. 11 ; Hit- ner v. Suckley. 2 Wash. 465; Ander- son v. Lewis, 3 Brown Ch. C. 429; Gardiner v. Mason, 4 Brown Ch. C. 478; Watertown v. Croft, 5 Simons, 502. " Fidelity T. & S. D. Co. v. Mo- bile St. Ry. Co.. 53 Fed. §50; in- fra, § 259. 18 Hobhouse v. Courtney, 12 Sim. 140; Fidelity T. & S. D. Co. v. Mo- bile St. Ry. Co., 53 Fed. 850; Gas- quet v. Fidelity T. & S. Y. Co., C. C. A., 57 Fed. 80; Gregory v. Pike. 79 Fed. 520. ;>*)0 srillMKXA TO ANSWER. [§ 166 suit or action shall be (loomed good service. 19 If service be made upon the attorney without such an order having- beeii obtained, it may be set aside, 20 and all subsequent proceedings will be void. 21 The motion for such an order ordinarily may be ex parte.** It must be supported by an affidavit, made by the plaintiff or by some person having personal knowledge of the facts therein stated, setting forth the reasons why such service is necessary and verifying the allegations of the bill. 23 Written admissions of the defendant may, however, be sufficient to support the motion without such affidavit. 24 A previous re- quest of the attorney and his refusal to accept service of the subpoena are not a necessary preliminary to such a motion. 25 Where the bill is demurrable for want of equity, the motion for substituted service may be denied. 26 Where the order has been improvidently made, it may be set aside on motion at the same term. 27 § 166. Statutory service of a subpoena. The statutes of the United States, which in this respect are analogous to those of England, 1 provide: "That when in any suit, commenced in any district court of the United States, to enforce any legal or equitable lien upon or claim to, or to remove any incum- brance or lien or cloud upon the title to real or personal prop- erty within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer, or demur by a dav certain to be designated, which order shall be served on such absent defendant or defendants, if praetica- 19 Pacific Ry. Co. of Mo. v. Mo. 3 Brown's C. C. 12: Stephen v. Cini, 1'ac. Ry. Co., 3 Fed. 772: s. c, 1 4 Ves. 359; Kenworthy v. Accunor, McCary, 047; Daniell's Ch. Pr. (2d 3 Madd. 5.10. Am. edj 502. 24 Royal Fxch. Ins. Co. v. Ward, 20 Il.id. 1 Fowler Fx. Pr. 225. aKirepory v. Pike. 7!> Fed. 520. 25 French v. Roe, 13 Ves. 593. 22 Daniell's Cli. Pr. (2d Am. ed.) 2« Muhlenburg County v. Citizens' 502. But see Crew v. Martin. 1 Nat. Bank, t',5 \-\-d. 537. Fowler Fx. Pr. 225. 2? Fidelity T. & S. D. Co. v. Mo- 23 Pacific Ry. Co. of Mo. v. Mo. bile St. Ry. Co.. 5:! Fed. S50. Pac Ry. to:, :; l-Yd. 772: s. c. 1 § 166. *2 Win. IV. eh. 33: 4 & McGrary, 047: Dclancy v. WalHs. 5 Win. IV. ch. 82. 166] STATUTORY SERVICE. 591 ble, wherever found, and also upon the person or persons in possession or charge of said property, if any there be; or where such personal service upon such absent defendant or defend- ants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks. In case such absent defendant shall not appear, plead, answer, or demur within the time so limited, or within some further time to be allowed by the court, in its dis- < retion, and upon proof of the service or publication of said order, and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and prceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district ; but said adjudication shall, as regards said absent defendant or defendants with- out appearance, affect only the property which shall have been the subject of the suit and under the jurisdic- tion of the court therein, within such district; and when a part of the said real or personal property against which such proceedings shall be taken shall be within another district, but within the same State said suit may be brought in either dis- trict in said State: Provided, however. That any defendant or defendants not actually personally notified as above provided may, at any time within one year after final judgment in any suit mentioned in this seetion, enter his appearance in said suit in said Circuit Court, and thereupon the said court shall make an order setting aside the judgment therein and permit- ting said defendant or defendants to plead therein on payment by him or them of such costs as the courts shall deem just; and according to law.'' 2 It seems that this statute applies to the 2.Tud. Code, § 37, 36 St. at L. 10S7. A similar method of service is authorized in bankruptcy, in case personal service cannot be made. 30 St. at L., § IS, pp. 544, 551 ; infra, % 07. All statutes which authorize proceedings against absent defend- ants and unknown heirs upon serv- ice by publication must he strictly followed. Hunt v. Wickliffe, 2 Pet. 201 : Boswell v. Otis, 9 How. 330, 13 L. ed. 164. In Fanning v. Krapfl, 61 Iowa, 417, 420, the court said: "A published notice is not necessar- ily sufficient if it is such that the defendant, upon actually seeing it, would probably conclude that it was intended for him. The ollice of the notice is in part to give the pendency of the action noto- riety. It should be such that others than the defendant, seeing it and 592 SUBPOENA TO ANSWER. [§ 166: knowing the defendant, or knowing of him, would not probably be mis- led by it as to the person for whom it was intended." . In Karr v. Karr. 19 N. J. Eq. 427, the court said: "Two substan- tial parts of the notice are that it shall not be entitled in the cause and shall be directed to the defend- ant. The notice published is en- titled in the cause and is not di- rected to the defendant, although he was named in the title." In Pana v. Bowler. 107 U. S. 529, 27 L. ed. 424. it was held that the publica- tion by an Illinois court of a notice to the "unknown holders and owners of bonds issued by the town of Pana" was insufficient to acquire jurisdiction over non-resident bond- holders. In Meyer v. Kuhn. 65 Fed. 705. C. C. A., per Fuller. C. J., it was held that publication of a sum- mons against •"Sarah E. Meyers, and the unknown heirs of Henry Meyers, deceased," was insufficient to acquire jurisdiction over Elizabeth Meyer, who was the executrix and devisee of Henry Meyer, deceased, and was so described in the bill. That a judgment against George W. Leslie was not affected by a partition suit in which the judgment creditor was named in service by publication as George H. Leslie. In Hardester v. Sharretts. 84 Md. 140. 34 Atl. 1122, that where a bill was filed "against the unknown heirs of the children of Benjamin Hardester, deceased." a publication summoning the chil- dren of Abraham Hardester was in- sufficient, although they were the 1 < rsons referred to in the bill and came within that description, Abra- ham being the son of Benjamin. In Purdy v. Henslee, 97 Til. 389. that a publication addressed to "the un- known heirs and legal representa- tives of Thomas Osborn, deceased/' was insufficient to bring the heirs at law of Susanna Osburn before the court, although her heirs at law- were the same as those of Thomas. In Ferriss v. Louis, 2 Tenn. Ch. 291, that a publication against the un- known heirs of Doolin did not bring before the court Doolin's devisees in remainder. In Corrigan v. Schmidt. 126 Mo. 304. 28 S. W. S74: that service by publication against "Owen Corrigan" and "Elisha Cor- rigan" did not bind John Owen Cor- rigan and Elizabeth Alicia Corrigan. In Colton v. Rupert. 60 Mich. 318,. 27 X. W. .520. that a publication against "Grant B. Hunt"' did not bind Garrett B. Hunt. In Entrekin v. Chambers. 11 Kan. 308. that serv- ice by publication against "Robert Brimford" did not bind Robert Bin- ford. In Chamberlain v. Blodgett, 96 Mo. 482. 10 S. W. 44. that a publication against "M. B. Miller" did not bind M. B. Milieu, although the tract books of the county gave the name of the landowner as Mil- lei*. In Marx v. Hanthorn. 148 U. S. 172. 37 L. ed. 410, that notice of the sale for taxes of the property of "Ida J. Hawthorn" gave no jurisdic- tion over the property of Ida J. Hanthorn. In Gonzalia v. Barels- maii. 143 111. 634. 32 N. E. 532. that an affidavit referring to "Fred Mey- ers'' could not be construed as ap- plicable to Fred Meyer. But see Smurr v. State. 88 Ind. 504. In Detroit v. Detroit City Ry. Co.. 54 Fed. 1. that where the advertise- ment named the defendant as "The Washington Trust Co.." a Michigan court did not acquire jurisdiction over "The Washington Trust Co. of the City of New York." But in Steinmann v. Strimple, 29 Mo. App. 47S. it was held that an order intended for Benjamin F. S. was sufficient when directed to § 106] STATUTORY SERVICE. ;93 District Court for Porto Rico in a case where the same has gen- eral jurisdiction. 3 The statute applies, although there is but oue defendant. 4 It is no defense to such a suit that neither of the defendants thus served, nor the plaintiff, is a resident of the district. 5 Nor, it has been held, that the property in question has been at- tached by a State sheriff. 6 Process can thus be served in an action of ejectment ; 7 in a suit to foreclose a railway, 8 or other mortgage, 9 but not so as to justify a decree for the deficiency Frank S., that being the name by which Benjamin was usually known. In Lane v. Innes, 43 Minn. ]37, 45 N. W. 4, that a change of the name of "Berlah M. Plimpton" to "Beulah M. Plimpton" was not fatal. That a partition sale was valid when the parties had been designated, by pub- lication, under thirteen fictitious names, as "being fictitious, and be- ing intended to designate the wife, if any, of the said Lawrence Kelly, and if he be dead, his widow, heirs at law, devisees, and their legal rep- resentatives, and their wives, wid- ows, or husbands, if any, and the heirs at law, devisees, and legal rep- resentatives of any who may be dead." Snyder v. Parezo, 151 App. Div. (N. Y.) 110. In Emery v. Kipp, 154 Cal. 83. 19 L.R.A.(N.S.) 983, 129 Am. St. Rep. 141, 16 Ann. Cas. 792, 97 Pac. 17, that a judg- ment quieting the title to land deeded to a woman under the name of Louisa Munro was not void be- cause, when sued, she was married and was known as Madeline Louisa Munro Emery, the record of her marriage designating her as Made- line L. Munro. D'Autremont v. An- derson Iron Co., 104 Minn. 165, 17 L.R.A.(KS.) 236, 124 Am. St. Rep. 615, 15 Ann. Cas. 114. In Green v. Myers (Mo. App.), 72 S. W. 128, Fed. Prac. Vol. I.— 38. that Seibert and Sibert are idem sonans, and the variance between them immaterial. In Gottlieb v. Alton Grain Co., 87 App. Div. (N. Y. ) 380, a judgment against W. B. Gottlieb was enforced by an action in another State against William B. Gottlieb. In White v. McClellan, 62 Md. 347. that the omission of a mid die initial of a party's name did not invalidate the notice; and in Fan- ning v. Krapfl, 61 Iowa, 417; s. c, 68 Iowa, 544, 14 N. W. 727, 16 N. W. 293, 26 N. W. 133, and Buchanan v. Roy's Lessee, 2 Ohio St. 257, that the publication was sufficient where the names were incorrectly spelled but they were accompanied by an- other description which made the identification clear. 3 Perez v. Fernandez, 220 U. S. 224, 55 L. ed. 443. 4 Ames v. Holderbaum, 42 Fed. 341; Wheelwright v. St. L., N. O. & O. C. Tr. Co., 50 Fed. 709; su- pra, § 61. 5 Ibid. 6 Wheelwright v. St. L., N. O. & O. C. & Tr. Co., 50 Fed. 709; supra. § 50. 7 Spencer - v. Kansas City S. F. Co., 56 Fed. 741. 8 Farmers' L. & Tr. Co. v. Hous- ton & T. C. Ry. Co., 44 Fed. 115. 9 Du Pont v. Abel, 81 Fed. 534. .V.I I SUBPCEXA TO ANSWER. L§ 166 against a mortgagor, who does not appear; 10 in a suit to foreclose an attorney's lien upon personalty 11 a stockholders' lien upon the books and funds of a foreign corporation, after its dissolution, in the State of its domicile. 12 In a partition suit 13 and a suit to quiet title ; 14 for example, a suit by the United States to cancel land patents, 15 or by a private individual to cancel a deed, 16 or by stockholders to set aside a judgment in the district against a foreign corporation obtained by non-resi- dents, 17 or to cancel stock 18 and bonds, 19 or by claimants to shares of stock in a domestic corporation to set aside an unlawful trans- fer of their shares and enforce their right to new certificates, 20 al- though the stock certificates and bonds sought to be cancelled 10 ibid. Ulngersoll *. Coram, 211 U. S. 335, 53 L. ed. 208; reversing on an- other point C. C. A., 148 Fed. 169; modifying and affirming 136 Fed. 089. 12 Kent v. Honsinger, 167 Fed. 619. 13 German Saw & Loan Soc. v. Tull. C. C. A., 136 Fed. 1. 14 U. S. v. Southern Pae. Ry. Co., 63 Fed. 481; U. S. v. American Lum- ber Co., 80 Fed. 309; Evans v. Charles Scribner's Sons, 58 Fed. 303; Duff v. First Nat. Bank. 13 Fed. 65; Dick v. Foraker, 155 U. S. 404, 39 L. ed. 201; Citizens' Sav. & Trust Co. v. Illinois Cent. R. Co., 205 U. S. 46, 51 L. ed. 703; Miller v. Ahrens, 150 Fed. 044; Evans v. Charles Scribner's Sons, 58 Fed. 303. See Canton Roll & Machine Co. v. Rolling Mill Co. of America, 155 Fed. 321; Gage v. Riverside Trust Co., 156 Fed. 1002; Schultz v. Diehl, 217 U. S. 594, 54 L. ed. 896; Jellenik v. Huron Copper Min- ing Co., 177 U. S. 1, 44 L. ed. 647; State Nat. Bank v. Syndicate Co., 178 Fed. 359; Howard v. Nat. Tele- phone Co., 182 Fed. 215; Sohege v. singer Mfg. Co.. Ch. N. J.. Nov. 1907. As to the validity of statutes authorizing similar methods of serv- ice in the State courts, see Hart v. Sanson, 1 10 U. S. 151, 28 L. ed. 101 ; Arndt v. Griggs, 134 U. S. 316, 33 L. ed. 918; Roller v. Holly, 176 U. S. 398, 44 L. ed. 520. 15 U. S. v. Southern Pac. Ry. Co., 63 Fed. 481; U. S. v. American Lumber Co., 80 Fed. 309. 16 Dick v. Foraker, 155 U. S. 404, 39 L. ed. 201 ; Citizens' Sav. & Trust Co. v. Illinois Cent. R. Co., 205 U. S. 46, 5*1 L. ed. 703; Miller v. Ahrens, 150 Fed. 644; Evans v. Charles Scribner's Sons, 58 Fed. 303. See Canton Roll & Machine Co. v. Rolling Mill Co. of America, 155 Fed. 321; Gage v. Riverside Trust Co., 156 Fed. 1002. 17 Schultz v. Diehl, 217 U. S. 594, 54 L. ed. 896. 18 Howard v. Nat. Telephone Co., 182 Fed. 215. 19 State Nat. Bank v. Syndicate Co., 178 Fed. 359. 20 Jellenik v. Huron Copper Min- ing Co., 177 U. S. 1, 44 L. ed. 647; Sohege v. Singer Mfg. Co., Ch. N. J., Nov. 1907. See Merritt v. Am. Steel Barge Co., 79 Fed. 228; Ryan v. Seaboard R. Co., 83 Fed. 889. Contra. Kilgour v. N. O. G. L. Co., •J Woods, 144. 166] STATUTORY SERVICE. i95 were held by non-residents outside of the jurisdiction ; hut not "where the corporation is domiciled without the district even it has been held, if it appears therein, when the stock is held by a non-resident defendant ; 21 nor, it has been held, in a suit by a subscriber to a syndicate, to enforce his right to stock, in which the managers had invested the syndicate funds. 22 An absent judgment debtor may thus be served in a suit by the creditor to appropriate his assets ; 23 but the statute does not authorize a sim- ple contract creditor to maintain a creditor's bill, to set aside a fraudulent conveyance of property. 24 Process may thus be served in a suit by a receiver to adjust equities between himself and non-resident defendants, when a resident defendant has ob- tained for his own benefit, as well as theirs, a judgment within the jurisdiction, which he is seeking to enforce against the fund in the receiver's hands. 25 In a suit by the creditors of a corpo- ration to set aside a conveyance of its land and a mortgage of its personalty, and also to obtain a dissolution of the corpo- ration and a receiver. 26 In a suit by a bondholder, to restrain the trustee of his mortgage from paying to the mortgagor, in fraud of his rights, the proceeds of the sale of land, which, by the terms of the mortgage, should be used as a sinking fund for the redemption of the bonds. 27 And so in a suit to compel specific performance of a contract to sell real estate in a State •whose laws make a decree, where the defendant does not ap- pear, as effectual as a conveyance by him ; 28 but where there was no such statute it was held that process could not thus be served. 29 ]STor, it has been held, where the relief sought re- quires the performance, by the non-resident defendant, of a personal act, such as the acceptance of a building and payment 21 McKane v. Burke, 132 Fed. f>S8. 22 Jones v. Gould, C. C. A., 149 Fed. 153; affirming 141 Fed. G98. 23 Brigham v. Luddington, 12 Blatchf. 237. Compare Picquet v. Swan, 5 Mason, 35; s. c, 5 Mason, 501. 24 Canton Roll & Machine Co. v. Boiling Mill Co.. 155 Fed. 321. 25 Brown v. Pegram, 143 Fed. 701. 26Mcllen v. Moline Iron Works, 331 U. S. 352, 33 L. ed. 178;. Single v. Scott Paper Mfg. Co., 55 Fed. 553, 557. 27 Pollitz v. Farmers' Loan & Trust Co.. 39 Fed. 707. 28 Morrison v. Marker, 93 Fed. 692. 29 Municipal Inv. Co. v. Gardiner, (12 Fed. 954; Nelson v. Husted, 182 Fed. 921. See Spurr v. Scoville, 3 Gushing (Mass.) 578. But see Sohege v. Singer Mfg. Co., Ch. N. J., Nov. 1907. .v.m; SUBPCENA TO ANSWER. [§ 166 for the same, which cannot, like the execution of a deed, be performed on his behalf by a master. 30 It has been suggested that a lien on partnership assets may be thus enforced. 31 The phrase, "claim to * * * property," is used in the statute in contrast to liens or encumbrances upon the property, and relates onlv to claims in the nature of an assertion of owner- ship or proprietory interest, or other direct right or claim to the property itself. 32 The statute does not apply to all suits 30 York County Sav. Bank v. Ab- bot, 139 Fed. 988. See § 64, supra, § 441, infra. 31 Jackson v. Hooper, 171 Fed. 597. 32 Ladew v. Tennessee Copper Co., 17!) Fed. 245, 251, per Sanford, J.: '"There appears to be no direct ad- judication upon the question wheth- er a claim of this character may be properly considered a claim to prop- erty within the meaning of the stat- ute. The statement in Shainwald v. Lewis (D. C.) 5 Fed. 310, 317, that by the words 'legal or equita- ble lien or claim against real or personal property' Congress 'in- tended to reach every case in which there should be any sort of charge upon a specific piece of property, capable of being enforced by a court of equity' which is cited in ] Rose's Code, Fed. Pro. § 856, note C, as authority for a similar statement, was purely obiter; the only point involved in the case being that Rev. St. § 738, in which these words orig- inally occurred, did not apply to a suit in which the plaintiff sought to subject the general property of the defendant to the payment of its debts, but only to suits to enforce some pre-existing lien or claim upon a specific piece of property. Neither is the question controlled by the definition of the word 'claim' given by Mr. Justice Story in Prigg v. Pennsylvania, 16 Pet. 536, 615, 10 L. ed. 1060, as 'a demand of some matter as of right, made by one per- son upon another, to do or forbear to do some act or thing as a matter of duty,' this definition being given in a case involving the construction of a statute providing that slaves should be delivered up 'on claim of the party' to whom their service was due; the meaning of the word 'claim' as used in a statute of this character in reference to the 'claim of one person upon another to do a certain thing, being manifestly dif- ferent from its meaning as used in the act of 1875 in reference to the claim of one person 'to' the prop- erty of another. Evidently its meaning as used in the act of 1875 in the phrase a 'claim to property' is much more nearly ex- pressed by the next definition cited by Mr. Justice Story in this same opinion, as given by Lord Dyer in Stowel v. Zouch, 1 Plowd. 359, that: 'A claim is a challenge by a man of the propriety or ownership of a thing, which he has not in posses- sion, but which is wrongfully de- tained from him.' On the whole, I am of the opinion that as it appears from the concluding por- tion of this section that it relates entirely to suits of which prop- erty is the 'subject,' and as the words 'claim to property' are evidently used in contrast to liens or encumbrances upon prop- § 166] STATUTORY SERVICE. 597 of a local nature, 33 nor to a suit in equity to enjoin a nuisance. 34 ISTor to a suit to set aside a transfer of insurance policies, issued by a foreign insurance company and not within the dis- trict although secured by bonds within the district, 35 nor to a suit to collect an insurance policy, issued by a domestic cor- poration, when a necessary party, is a non-resident. 36 Xor to a suit by heirs against testamentary trustees, to recover a balance in the hands of the defendants. 37 JSTor to a suit upon a bond, given to release an attachment by a State court. 38 Nor to a suit to establish and enforce a right of membership in the Associated Press, in a district where the latter corporation is not domiciled ; although the right is to be exercised in such district. 39 Nor to a suit to cancel a promissory note. 40 It has been held that a subpoena cannot thus be served when the main object of the bill is for an accounting by an absent and non-resident defendant, although there is also a prayer for the appointment of a receiver of property within the district; 41 but it seems that service can thus be made in a suit to estab- lish a trust in real estate although the bill also prays an account- ing. 42 Process cannot thus be served in a suit to remove a cloud upon the title to a patent-right although the official letters- patent evidencing the patent-right are within the jurisdiction. 43 The property affected must be actually, and not merely con- structively, within the district. 44 The court within the dis- erty and are the only words in the 37 Fayerweather v. Ritch, S9 Fed. section under which a claim to the 385. direct ownership of property may be 38 Filer & Stowell Co. v. Rainey, included, these words relate only to 220 Fed. 718. claims made to the property in the 39 Lawrence v. Times Printing nature of an assertion of ownership Co., 90 Fed. 24. or proprietary interest, or other di- 40 Manning v. Berdan, 132 Fed. rect right or claim to the property 382. itself," affirmed Ladew v. Tennes- « Ellis v. Reynolds, 35 Fed. 394. see Copper Co., 218 U. S. 357, 54 But see Porter Land & Water Co. L. ed. 1069. v. Baskin, 43 Fed. 323. 33 Ladew v. Tennessee Copper Co., 42 Porter Land & Water Co. v. 218 U. S. 357, 54 L. ed. 1069; af- Baskin, 43 Fed. 323. firming 179 Fed. 245. 43 Xon-Magnetic Watch Co. v. As- 34 Ibid. sociation H. S. of Geneva, 44 Fed. 6. 35 Evans v. Charles Scribner's 44 Chase v. Wetzlar, 225 U. S. 79, Sons, 58 Fed. 303. " 56 L. ed. 990. 36 Stockbridge v. Phoenix Mut. Life Ins. Co., 193 Fed. 558. 598 SUBPfEXA TO ANSWER. [§ 166 trict where a will was probated cannot, thus acquire jurisdic- tion of a suit against an absent executor, who has removed the funds from the State; 45 but after the jurisdiction of the Fed- eral court has attached, it seems that it cannot be defeated by an order of the State court directing such a removal. 46 The exist- ence of property within the district should be stated positively and not by inference. 47 It has been held at Circuit: that an order in pursuance of this statute may be obtained immediately on filing the bill, upon proof by affidavit that the defendant does not dwell with- in the district, and cannot be served or found therein ; 48 that there is need in such case of a previous attempt to serve a sub- poena within the district; 49 that the day named for his appear- ance need not be one of the rule-days of the court ; 50 that person- al service of the order must be made in all cases where the resi- dence of the absent defendant is known or can be ascertained, or service upon him can be made within a reasonable time and by the exercise of reasonable diligence ; that its service by publication can only be authorized upon proof by affidavit of the facts showing that personal service without the. jurisdiction is impracticable ; 51 that the order itself must be served ; and 45 Ibid. 46Ingersoll v. Coram, 211 U. S. 335, 359, 53 L. ed. 208, 225 ; revers- ing on another point C. C. A., 148 Fed. 160: modifying and affirming 136 Fed. 689. 47 Jackson v. Hooper, 17] Fed. 597. 598. 48 Forsyth v. Pierson. 9 Fed. 801; U. S. v. American Lumber Co., 80 Fed. 309. But see Bronson v. Keo- kuk. 2 Dill. 498. 49 Ibid. 50 Forsyth v. Pierson, 9 Fed. 801. 51 Bronson v. Keokuk. 2 Dill. 498; Batt v. Proctor. 45 Fed. 515. Cf. Marx v. Egner, 180 U. S. 314. 45 L. ed. 547 ; Hicks v. Crawford Coal k Iron Co., 190 Fed. 334. In Jacob v. Roberts, 223 U. S. 26], 264, 265, 56 L. ed. 429, 431, the following affidavit in proceedings in the State ty-five years, that he think? tl>p de- court which were attacked collater- ally, when it had been supported by a sheriff's return that the defendant was not found within the district, was held to be sufficient: "That the cause of action is fully set forth in his verified complaint on file here- in : that said defendants, or either or any of them, after due diligence, cannot be found within this State, and this affiant, in support thereof, states the following facts and cir- cumstances: That affiant, for the purpose of finding said defendants and ascertain their place of resi- dence, has made due and diligent inquiry of the old residents of t he City of San Diego, the former neigh- bors of said defendants, and is in- formed by D. Choate. who has lived in the Citv of San Dietro over twen- § 166] STATUTORY SERVICE. 59!) that the requirements of the statute are not met by service of a subpoena by the marshal of the other district, in accordance with an order so directing, made by the court where the suit fendants are not within the State of California, and he does not know of their residence and has not heard anything of them, or either of them or of their residence or post-office address, for more than twenty years, and this affiant is informed by George W. Hazzard, who has lived in San Diego for over twenty-five years, that he has no knowledge as to the whereabouts of the said de- fendants, or either of them. Plain- tiff also made inquiry of Ed. Dough- erty, who is an old resident of San Diego, and said Ed. Dougherty in- formed plaintiff that he did not know the address or residence or where the defendants, or either of them, could be found, and did not believe that they were in the State." 'The affidavit also stated that inquiry was made of certain county, and city officers and that they all — 'stated to affiant that they did not know the residence of the defendants, or either of them, their post-office address or where they could be found ; and none of the above-named parties had heard of the post-office address or residence of the defendants, or either of them, since they have resided in the said city of San Diego. The affiant has made other diligent inquiry to find said defendants, or either or any of them, and has not been able to find them or any of them within — . The affiant has no knowledge of the residence or post-office address of the defendants or either of them or where the defendants, or either of them, could be found. This af- fiant, therefore, says that personal service of said summons cannot be made on the defendants — -Thomas E. Jacob, Thomas Hobson, Edward Hobson, Jacob Hobson and Frank Hobson, or either or any of them.' ' The court said (267) : "We have set cut the affidavit. It shows inquiry of the 'whereabouts of plaintiffs in error of their former neighbors and other residents of San Diego. One of them replied that he had not heard of them, of their residence or post-office address, for over twen- ty-five years. Another also had not heard from them and did not be- lieve they were in the State. In- quiry was also made of nineteen county officers and three state of- ficers, sheriffs, county clerks ; tax collectors, county and state; asses- sors, county and state, and of the postmasters of the State. Neigh- bors, residents and officers who, in the intercourse and business of life- would almost necessarily come in contact with plaintiffs in error or hear from them, had no knowledge of them. It may, however, be said, and indeed is said, that other parts of the State were not searched, and that this was necessary, as the process of the court could run to every county in the State. The re- quirement is extreme and we are cited to no cases in which it is decided to be necessary. The affi- davit shows besides that defendant in error made diligent inquiry to find plaintiffs in error and had no knowledge of their residence or post- office address or of either of them or where they or either of them could be found. We think plaintiffs in error were afforded due process." 600 SUBPC3XA TO ANSWER. [§ 166 is pending. 52 The affidavit should state the known places of residence of the absent defendants, and show that diligence has been used to ascertain the places of residence which are un- known. 53 The fact that it would be very expensive to make personal service upon the absent defendant whose residence was known was held no ground for allowing service by publi- cation. 54 If the absent defendant reside in another district of the United States, the safer practice is to obtain an order directing the marshal of that district to serve him. 55 A mis- nomer of a defendant, thus served, who does not appear, will invalidate the whole proceedings. 56 A defect in personal serv- ice, or the fact that personal service was obtained by fraud, will not prejudice proceedings regularly taken under this stat- ute. 57 This statute does not change the law as to the difference of citizenship essential to jurisdiction. 58 It has been doubted whether it can be applied to a suit removed from a State court. 59 Compliance with State statutes providing for service upon non- residents, by publication 60 or by attachment, 61 will not give a Federal court jurisdiction either in law or equity. An order of a Federal court for such service is, when attacked collater- ally, at least prima facie evidence of the existence of the juris- dictional facts. 62 Upon a motion to vacate the order for sub- stituted service, the sufficiency of the bill may be considered and the order vacated, where the bill shows no cause for relief in equity; although the subject matter is within the statute. 63 It has been held : that the order for service may be set aside 52 Jennings v. Johnson, C. C. A., 58 Tug River Coal & Salt Co. v. 148 Fed. 337; Kent v. Honsinger, Brigel, 67 Fed. 625. 167 Fed. 619. 59 Adams v. Heckscher, 80 Fed. 53 Batt v. Procter, 45 Fed. 515. 742, 744. An affidavit sworn to four months 60 Bracken v. Union Pac. Ry. Co., previously was held to be insuffi- C. C. A., 75 Fed. 347; s. c, 56 Fed. cient. Spreen v. Delsignore, 94 447. Fed. 71. 61 u. S. v. Brooke, 184 Fed. 341. 54 Batt v. Procter, 45 Fed. 515. 62 Woods v. Woodson, C. C. A., 55Bronson v. Keokuk, 2 Dill. 498; 100 Fed. 515. Forsyth v. Pierson, 9 Fed. 801. 63 Canton Roll & Machine Co. v. 66 Meyer v. Kuhn, 65 Fed. 705. Rolling Mill Co., 155 Fed. 321; 57 Fitzgerald & M. C. Co. v. Fitz- Gage v. Riverside Trust Co., 156 gerald, 137 U. S. 98, 34 L. ed. 608. Fed. 1002. 167] EXEMPTIONS FROM SERVICE. 601 Gi as to part of the bill and left in "force as to the remainder. The right of the defendant to appear and defend within a year is absolute. 65 It is not lost because he had knowledge of the proceedings. 66 The court cannot impose any other con- dition than that prescribed by the statute, namely, the payment of costs. 67 An order requiring the application to show a meri- torious defense to the bill is erroneous. 68 Where the defend- ants, who have been served by publication, appear and defend upon the merits, the suit is converted from a proceeding in rem to a suit in personam. 69 The Act of June 29, 1906, which authorizes proceedings to cancel certificates of citizenship, provides: "If the holder of such certificate be absent from the United States or from the district in which he last had his residence, such notice shall be given by publication in the manner provided for service of summons by publication or upon absentees by the laws of the State or the place where such suit is brought." 70 . In the eastern district of Louisiana, it was held to be suffi- cient to serve the notice upon an attorney-at-law, appointed curator ad hoc to represent an absentee, without publication. 71 § 167. Exemptions from service of subpoena or other process, legal or equitable, other than arrest. Chief Jus- tice Marshall, in the course of the trial of Aaron Burr, ordered that a subpoena duces tecum should issue against President Jefferson. Jefferson, however, refused to obey the subpoena., while expressing his perfect willingness to furnish the paper desired, if requested in what he considered a proper way. The dispute went no farther. 1 Subsequently, a motion was made for leave to file a bill in the Supreme Court, praying for an injunction against President Johnson to restrain him from executing the reconstruction laws. The Attorney-General then took the position that the President was not amenable to process; but that point was not then and has not since been 64 Evans v. Charles Scribner's Fed. 99. See Ingersoll v. Coram, Sons, 58 Fed. 303. ]36 Fed. 689, 692, 693; affirmed 231 65 Perez v. Fernandez, 220 U. S. U. S. 335, 53 L. ed. 208, which re- 224, 55 L. ed. 443. versed C. C. A., 148 Fed. 169. 66 Ihl 'J- ™ Ch. 3592, § 15, 34 St. at L. 596, 67 T'>id. 601, Comp. St. Supp. 1909, p. 485. 68 f')id. 71 u. S. v. Ellis, 185 Fed. 546. 69Beamer v. Werner, C. C. A., 159 § 107. l Burr's Trial. 602 SUBIHEXA TO ANSWER. [§ ^ 7 decided. 2 On the trial of Guiteau for the murder of President Garfield, a written statement signed by President Arthur was admitted in evidence by consent without his personal attend- ance. 3 Xo other officer or person has been claimed to be above the law. The Federal Constitution provides that Senators and Eepresentatives ' "shall in all cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in aoinp- to and returning from the same."' 4 This has been con- strued at Circuit to exempt them from service of process, un- accompanied by arrest of the person, when on their way to attend a session of Congress ; 5 and it has been further held that such exemption is not lost by a slight deviation from the most direct road to the capital. 6 In a State court the privilege has been extended to members of a Constitutional Convention. 7 In certain cases individuals are temporarily exempt from the service of process. A person temporarily and voluntarily with- 2 Mississippi v. Johnson, 4 Wall. 475, 18 L. ed, 437. See Jefferson's Works, vol. v. p. 102. SGuiteau's Trial. 741. 896. In Coler v. Brooklyn Eagle. New York Supreme Court (Kings County I . the plaintiff requested President Roose- velt to give his testimony. The fol- lowing answer was received: "Hon. Bird S. Coler: The President of the United States does not testify in court nor does he give evidence by deposition. Wm. Loeb. Jr., Secre- tary." Plaintiff then applied for an order to show cause why a commis- sion should not issue. His applica- tion was denied by Thomas. J., as follows : "The order to show cause is denied for the following reasons: First, the papers do not show that the evidence sought relates to the plaintiff. This is technical. Second, the Executive of a sovereign nation may. with the highest right and dignity, decide whether he will lay aside his official duties to become a witness in the court of another ju- risdiction and if the evidence per- tain to his duties as a Governor of a State some eight years earlier his refusal to testify would be doubly justified. In the present instance, through his secretary, he has made a statement tantamount to such re- fusal and the issuance of a commis- sion would be a useless if not inde- corous act. inasmuch as he is the Commander-in-Chief of the army and navy of the United States, and in effect paramount executive au- thority in the District of Columbia, and his refusal could not and should not be gainsaid. The law and its history may be found in the appeal of Hartranft 85 Penn. 433. 27 Amer- ican Reporter 607. See also Rice vs. Austin 19 miscellaneous 103." (X. Y. Sun. February 10. 1909.) 4 Const., art. I. § 0. 5 Miner v. Markham. 28 Fed. 387. 6 Miner v. Markham, 28 Fed. 387. 'Bolton v. Martin, 1 Dallas, 296, 1 L. ed. 144. 167] EXEMPTIONS FKOM SERVICE. 603 in the district for the purpose of attending, in a State 8 or Federal 9 court, either as witness, 10 party/ 1 attorney, or coun- sel, 12 a trial or other proceeding, 13 civil or criminal, 14 includ- ing the argument of a demurrer, 15 or attendance before a referee in bankruptcy, 16 is, while there, exempt from tho service of process eundo, morando, et redeundo. Service upon a foreign corporation by delivering the process to its secretary while attending court as a witness in the corporation's liti- 8 Juneau Bank v. McSpedan, 5 Biss. 64; Matthews v. Tufts, 87 X. Y. 568. 9 Parker v. Hotchkiss, 1 Wall. Jr. 269; U. S. v. Bridgman, 8 Am. L. Rec. 541; Brooks v. Farwell, 2 lie- Crary, 220; s. c, 4 Fed. 167; Bridges v. Sheldon, 7 Fed. 17 ; Mat- thews v. Puffer, 10 Fed. 606 ; Larned v. Griffin, 12 Fed. 590. 10 Person v. Grier, 66 N. Y. 124, 23 Am. P.ep. 35, and cases there cited; Kauffman v. Kennedy, 25 Fed. 785. A non-resident volunta- rily came to another jurisdiction to plead to an indictment against him, under which he might have been compulsorily removed, and on the same day was served with a sub- poena requiring him to testify be- fore a Grand Jury on a specified date. He then appeared and testi- fied and was directed, without serv- ice of further process, to reappear eight days later. He then again at- tended and was not asked to testify further, but was privately interro- gated by an Assistant District At- torney, and while leaving the Fed- eral Building was served with a summons in a civil action brought in the State court. After removal of the case, the Federal court set aside the summons. Dwelle v. Al- len. 193 Fed. 546. The Appellate Division of the New York court held subsequently to the contrary. Dwelle v. Allen, 151 App. Div. (X. Y.) 717. "Parker v. Hotchkiss, 1 Wall. Jr. 269; Juneau Bank v. McSpedan, 5 Biss. 64; Matthews v. Tufts, 87 N. Y. 568; Brooks v. Farwell, 2 McCrary, 220; s. c, 4 Fed. 167; Bridges v. Sheldon, 7 Fed. 17 ; Mat- thews v. Puffer, 10 Fed. 600; Larned v. Griffin, 12 Fed. 590. A service of process, made upon a party at- tending especially the trial of a case in another State, was set aside by a Federal court, although the suit was begun in a court of the State whose courts held such service good. Holt v. Wharton, C. C. A., 73 Fed. 392. But see Skinner & Mounce Co. v. Waite, 155 Fed. 828. 12 Matthews v. Tufts, 87 X. Y. 568. 13 U. S. v. Bridgman, 8 Am. Law Record, 541 ; Xewton v. Askew, 6 Hare, 319; Matthews v. Tufts, 87 X. Y. 568; Parker v. Marco, 13(1 X. Y. 585, 20 L.R.A. 45, 32 Am. St. Pep. 770. But see Jaster v. Currie, 198 U. S. 144, 49 L. ed. 988. 14 U. S. v. Bridgman, 8 Am. L. Rec. 541. But see Jenkins v. Smith, 57 How. Pr. (X. Y.) 171. 15 Kims* v. Lant, 68 Fed. 436. 16 Morrow v. U. H. Dudley & Co., 144 Fed. 441; Peet v. Fowler, 170 Fed. 618; U. S. v. Zavelo, 177 Fed. 536. 604 SUBP(EXA TO ANSWER. [§ 16 >r » gation is invalid. 17 A similar exemption would probably be applied to any person while temporarily within the district in the discharge of a public duty. 18 The privilege of a witness does not exempt him from liability to service in a suit arising out of his acts upon that same visit to the jurisdiction. 19 Xor where the witness remains within the jurisdiction more time than is reasonably necessary for his attendance upon the case. 20 A Federal court will not punish as a contempt the arrest or service of process by a State court upon a foreign witness in attendance before it; 21 though it might perhaps upon habeas corpus discharge the witness from such arrest, 22 or punish the party who molested the witness by a stay of proceedings in a case pending between him and the witness in the Federal court. 23 In a recent case, a party to a suit in a Circuit Court of the United States was granted a protective writ to prevent, during his attendance upon the trial, his arrest as a lunatic under a previous order of a court of the State, when subse- quently thereto his sanity had been adjudicated by a court of another State, where he then lived. 24 If a person be fraudu- lently enticed within the district and then served with process by those who thus induced him to come, the service may be set aside. 25 In one case, when a man was induced by a forged telegram to enter the jurisdiction of the court, the party who served him there was held to be presumptively connected with the fraud. 26 The service of a notice that a deposition will be 17 American Woodenware Co. v. Stem, 63 Fed. 676. 18 Lyell v. Goodwin, 4 McLean, 29; Nichols v. Horton, 14 Fed. 327; 4 McCrary, 560. 19 Iron Dyke Copper Min. Co. v. Iron Dyke R. Co., 132 Fed. 208. 20 Finch v. Gallagher, 25 Abb. X. C. (N. Y.) 404; 12 X. Y. Supp. 487; Marks v. La Societe, 19 X. Y. Supp. 470; Woodruff v. Austin, 37 X. Y. Supp. 22. But see* Pope v. Negus, 3 X. Y. Supp. 796. 21 Ex parte Schulenburg, 25 Fed. 211. 22 Ex parte Hurst, 1 Wash. C. C. 186. See Ex parte Schulenburg, 25 Fed. 211, 212. 23 Bridges v. Sheldon, 7 Fed. 17, 42; Ex parte Schulenburg, 25 Fed. 211, 212. 24Chanler v. Sherman, C. C. A., 22 L.R.A.(X.S.) 992, 162 Fed. 19. 25 Union Sugar Refinery v. Ma- thiesson, 2 Cliff. 304: Steiger v. Boon, 4 Fed. 17; Blair v. Turtle, 5 Fed. 394; s. c, 23 Alb. L. J. 435; Baker v. Wales, 15 Abb. Pr. X. S. (X. Y.) 331; Fitzgerald & M. C. Co. v. Fitzgerald, 137 U. S. 98, 105, 34 L. ed. 608, 611. 26 Steiger v. Bonn, 4 Fed. 17. 1G7] EXEMPTIONS FROM SERVICE. G05 taken in another city, when snch deposition is subsequently taken in pursuance thereof, cannot be considered a fraudulent device to entice the party within the jurisdiction. 27 It lias been held that a party to a suit in a State court is not on his journey there exempt from service of process in another State. 28 The privilege must be claimed promptly, or otherwise will be waived. 89 It was waived by a delay of nearly four mouths and a half, during; which plaintiff had entered judgment by de- fault; 30 but a delay of three weeks was held not to operate as 32 a waiver. A voluntary appearance waives the objection; but, it has been held, that the objection may be raised by a plea in abatement; 33 even when united with a defense upon the merits. 34 It has been held : that the execution of a bail bond is not a waiver. 35 A judgment is not void so that it can be attacked collaterally, where process was served upon a party while attending a trial. 36 27 Jaster v. Currie, 198 U. S. 144, 49 L. ed. 988. 28Holyoke & S. H. F. I. Co. v. Ambden, 21 L.R.A. 319, 55 Fed. 593. 29 Matthews v. Puffer, 10 Fed. 606, 20 Blatchf. 233; Watson Town Nat. Bank v. Messenger, 6 Pa. Co. Ct. 609. 30 Sebring v. Streyker, 10 Misc. (X. Y.) 289, 30 N. Y. Supp. 1053. 31 Morrow v. U. H. Dudley & Co., 144 Fed. 441. 32 Anonymous, 9 X. J. L. J. 166. But see Lamed v. Griffin, 12 Fed. 590; Stewart v. Howard, 15 Bar- bour (N. Y.) 26; infra, § 170. 33Larned v. Griffin, 12 Feck 590. 3*Larned v. Griffin, 12 Fed. 590; Christian v. Williams, 35 Mo. App. 297; O'Loughlin v. Bird, 128 Mass. 600. 35Larned v. Griffin, 12 Fed. 590; Washburn v. Phelps, 24 Yt. 506; U. S. v. Edme, 9 S. & E. (Pa.) 147. 36 Jaster v. Currie, 198 U. S. 144, 49 L. ed. 988; Walker v. Collins, 59 Fed. 70. A number of authorities are collected in an article by Mr. Alexander H. Bobbins, 65 Cent. L. J. 105. CHAPTER VII. APPEARANCE. § 168. Definition of an appearance. An appearance is the process by which a defendant submits himself to the juris- diction of the court. An appearance is either general or special. By a general appearance a defendant appears for all purposes in the suit. By a special appearance he appears solely for the purpose of objecting to the jurisdiction on account of a defect, omission, or irregularity in the service of the subpoena upon him, or perhaps for some other jurisdictional defect. 1 An ap- pearance gratis is an appearance by a defendant who has not been served with process. 2 Under the former practice, a formal appearance was required. 3 The Equity Rules of 1912 make no provision for an appearance other than such as is implied by the law from the filing of an answer. § 169. What constitutes an appearance. The formal method of entering an appearance is to deliver to the clerk a praecipe, that is, a written direction, ordering him to enter the appearance of the defendant who subscribes it. 1 A defend- ant may appear in person 2 or by his attorney. Xo attorney- at-law can appear in a court of the United States unless author- ized by a power of attorney, if he is not a member of the bar of such court. 3 The rules as to admission to the bar of the District and Circuit Courts vary with the different courts. It § 108. i National F. Co. v. Mo- SU. S. R. S., § 747. • line Malleable I. Works, 18 Fed. 3 Ex parte N. K. Fair bank Co., 863; Elliott v. Lawliead, 4.*? Ohio 194 Fed. 978; Matter of Joseph :St. 171; Dorr v. Gibboney, 3 Hughes, Wood, S. D. N. Y., explained infra. 382 ; U. S. v. Am. B. T. Co., 29 Fed. sections on "Habeas Corpus." It 17. lias been hrld that the court may ad- 2 Daniell's Ch. Pr. (2d Am. ed.) mit an attorney to practice nunc pro 590-595. tunc so as to validate a writ in the 3 Eq. Rule 17 of 1841. Federal court which he had pre- § 169. 1 Daniell's Ch. Pr. (2d viously obtained. Jewett v. Gar- Am. ed.) 590. 591. rett, 47 Fed. 625. 600 169] WHAT IS AX APPEARANCE. 607 is the usual practice to recognize in each District and Circuit Court a member of the bar of the Supreme Court of the United States as a member of the bar of such inferior court without requiring any formal order or motion for his admission. 4 The Circuit Court of the United States for the Southern District of Xew York 5 and the district of Xew Jersey have, in one or more cases refused to recognize members of the bar of the Supreme Court of the United States who had not been admitted to practice there. The taking of any proceeding, 6 other than a special appearance and a motion or plea founded thereupon, is equivalent to a general appearance and a submission of the pdefendant's person to the jurisdiction of the court. 7 Such are : the obtaining of an order extending the time "to plead, answer, or take such action as he may be advised," 8 unless the application is for an order extending the time to appear, for the purpose of pleading to the jurisdiction, or otherwise; 9 a petition of intervention, even where the petitioner disclaims any intention to be made a party ; 10 a special appearance, ac- 4 See Goodyear D. V. Co. v. Os- good, 13 Off. Gaz. 325. 5 See Matter of Joseph Wood, in- fra, §§ 466,. 467. 6 Jones v. Andrews, 10 Wall. 327, 19 L. ed. 935; Tliornburgh v. Savage M. Co., 1 Pac. Law Mag. 267: Liv- ingston v. Gibbons. 4 J. Ch. (X. Y. ) !>4. 99. It has been held in Xew York: that service of a notice of a motion to set aside an attachment, \Yood v. Furtick, 17 Misc. (N. Y.) 561, and to make a complaint more definite and certain, Valentine v. Myers. 36 Hun I X. Y.) 201, and the obtaining of stipulations extending the time to answer by an attorney, who signs one of them as attorney for the defendant, Paine Lumber Co. v. Galbraith. 38 App. Div. (X. Y.) 68: Bell v. Good. 22 Civ. Proc. Rep. (N. V.i 356, 46 X. V. St. Pep. 572; Renedict v. Arnoux, 38 N. V. Supp. 882, do not operate as a genera] appearance. 7 Xew Jersey v. Xew York, 6 Pet. 323: Van Antwerp v. Hulburd, 7 Blatehf. 426, 440; Livingston v. Gibbons, 4 J. Ch. (X. Y.), 94; Blackburn v. Selma, M. & M. P. Co., 2 Flippin, 525; Fitzgerald & M. Const. Co. v. Fitzgerald, 137 U. S. 98. 34 L. ed. 608;' infra, § 170. 8 Hupfdd v. Automaton Piano Co., 66 Fed. 788; Kneeland v. Austin, 2 Law Bull. (X. Y.) 56; Krause v. Averill, 66 How. Pr.. (X. Y.) 97: Briggs v. Stroud, 58 Fed. 717: Midland Contracting Co. v. Toledo Foundry & Machine Co., C. C. A.. 154 Fed. 797. Tn Mur- phy v. Herring-Hall-Marvin Safe Co., 184 Fed. 495. 498. it was so held when the defendants pro- , cured the order ex parte at cham- bers and did not serve the same, nor file it. until long after the re- moval of the case, when they pro- cured a certified copy of the record. 9 Waters v. Central Trust Co. (2d Ct.), ('. C. A.. 126 Fed. 469. lOBowdoin College v. Merritt, 5*> 60S APPEAKANCE. [§ 109 companied by an answer to the mirits, 11 at least when such answer does not formally object to the jurisdiction; 12 it has been held, a special appearance accompanied by a motion to set aside an order reviewing a judgment upon the ground of an irregularity in the proceedings; 13 obtaining a stay of pro- ceedings pending a motion to vacate judgment; 14 the filing of a pleading before the court has passed upon the question of jurisdiction, 15 even when filed pending the decision of a motion to set aside the service of process, 16 at least when such pleading does not specifically take that objection, 17 and a motion to set aside the service because of want of jurisdiction over both the person and the subject-matter. 18 Where the deefndant, appear- ing specially for that purpose, moved to quash a return of serv- ice of a summons and prayed judgment whether it should be compelled to plead on the ground that it was a non-resident corporation, it was held that the appearance was not therebv made general. 19 It was so held of a motion to quash service upon a party in another district on the ground that "it appears from the face of the bill of complaint that the relief sought is of such nature that he cannot lawfully be called upon to defend Fed. 6; Jack v. D. M. & Ft. D. R. Co., 49 Iowa, 027; Frank v. Wed- derin, C. C. A., 68 Fed. 818. H Caskey v. Chenoweth, C. C. A., 62 Fed. 712. See Texas & Pac. Ry. Co. v. Saunders, 151 U. S. 105, 38 L. ed. 90 ; Hankinson v. Page, 31 Fed. 184. 12 Wood v. Wilbert, 226 U. S. 384, 57 L. ed. — . 13 Crawford v. Foster, 84 Fed. 939. 14 Crane v. Penny, 2 Fed. 187. 15 Texas & Pac. Ry. Co. v. Cox, 145 U. S. 593, 36 L. ed. 829. 16 Barnes v. W. U. Tel. Co., 120 Fed. 550. Cf. Wetzel & T. Ry. Co. v. Tennis Bros. Co., C. C. A., 145 Fed. 458. 17 See Eq. Rule 79 ; Wood v. Wil- bert, 226 U. S. 384, 57 L. ed. — . 18 Mahr v. Union Pac. R. Co., 140 Fed. 921. 19 X. K. Fairbanks & Co. v. Cin- cinnati, N. O. & T. P. Ry. Co., C. C. A., 54 Fed. 420; Am. Cereal Co. v. Eli Petti John C. Co., 70 Fed. 276. It is said in the Encyclopedia of Pleading and Practice, article II, section 626, that ''where a party ap- pears in court and objects to the jurisdiction of the court over his person, he must state specifically the grounds of objection; by not so stating them his appearance will be construed a general one, although he moves to dismiss on that ground." Citing Bell Bros. v. White Lake Lumber Co., 21 Neb. 525; Aultman v. Steinman, 8 Neb. 109; Bucklin v. Strickler, 32 Neb. 602; Layne v. Ohio River R. Co., 35 W. Va. 438. 169] WHAT IS AN APPEARANCE. 609 against the same in this district." 20 A removal of a cause from a State to a Federal court is not a general appearance whether or not the petitioner states that he appears specially for the purpose of the removal only, 21 nor, it has been held, is a demand for service of a copy of the complaint, made by a defendant in person or by an attorney, 22 nor a motion to quash an attachment against a non-resident. 23 The later authorities hold that when an objection to the jurisdiction over the person of the defendant is filed with a formal appearance, the latter will be considered to be" special and not general, 23 and that a party may file a special appearance with an objection to the jurisdiction over his person joined with other objections, such as a want of equity, 24 or want of jurisdiction over the subject- matter of the suit, 25 without submitting to the jurisdiction of the court. 26 The defense by its attorneys at its expense of a suit against another in pursuance of a contract with him is not an appearance by a foreign corporation ; nor will it support an application by the plaintiff to make it a party. 27 It has been -held: that after the question of jurisdiction has been prop- erly raised, and the court has reserved its decision thereupon, a subsequent defensive proceeding, such as an appeal from an injunction order, 28 or the cross-examination of a witness, whose deposition is taken by the plaintiff, and stipulating that copies of letters and telegrams may be used by either party in lieu of the originals, 29 is no waiver of the objection. It has been 20 Jones v. Gould, C. C. A., 149 Fed. 1.53. 21 Goldey v. Morning News, 156 U. S. 518, 39 L. ed. 517; Wabash W. R. Co. v. Brow, 104 U. S. 271, 41 L. ed. 431 ; National Accident Society v Spiro, 164 U. S. 281, 41 L. ed. 435. 22 Murphy v. Herring-Hall-Marvin Safe Co., 184 Fed. 495; Hoyt v. Og- den Portland Cement Co., (N. D. N. Y.) 185 Fed. 889. 23 Davis v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 217 U. S. 157, 54 L. ed. 708. 24 Wood v. Wilbert, 226 U. S. 384, 3S6, 57 L. ed. — . Fed. Frac. Vol. I.— 39. 25 Southern Pac. Co. v. Arlington Heights Fruit Co., C. C. A. 191 Fed. 101. But see Peale v. Marian Coal Co., 172 Fed. 639. 26Kelley v. T. L. Smith Co., C. C. A. 196 Fed. 466. 27 Nelson v. Husted, 182 Fed. 921. But see Texas & Pac. Ry. Co. v. Saunders, 151 U. S. 105, 38 L. ed. 90; Hankinson v. Page, 31 Fed. 184; Caskey v. Chenoweth, 62 Fed. 712. 28Bidwell v. Toledo Canal St. Ry. Co., 72 Fed. 10. 29 Central Grain & Stock Ex- change v. Board of Trade, C. C. A., 125 Fed. 463. 610 APPEAKANCE. [§ 169 held : that a general appearance does not authorize an amend- ment of the complaint, so as to allege a different cause of ac- tion, upon which the defendant could not, without its consent, have been sued within the district. 30 A State statute providing that a special appearance for the sole purpose of questioning the jurisdiction is equivalent to a general appearance is consti- tutional ; 31 and has been followed in collateral proceedings, in which a State judgment was offered in evidence, 32 but it does not bind the Federal courts at law or in equity even in a case originally instituted in a State court and brought into a court of the United States by removal. 33 A special appearance, it would seem, is regularly made by special leave of the court obtained by an ex parte motion, 34 and it is the safer practice to accompany it with an undertak- ing by the defendant to abide by the further orders of the court. 35 Rule 22 of the Circuit Court of the Kinth circuit pro- vides that any party appearing specially shall state in the paper which he serves and files that the appearance is special, "and that if the purpose for which such special appearance is made shall not be sanctioned or sustained by the court he will appear generally in the cause," and that if such statements be not made "the appearance shall be deemed and treated as a general ap- pearance." This has been upheld. 36 By styling a paper a special appearance the draftsman does not prevent the appear- ance from becoming general. 37 30 Stonega Coal & Coke Co. v. Louisville & N. R. Co., 139 Fed. 271. 31 Western Wheeled Scraper Co., v. Gahagan, 152 Fed. 648. 32 York v. Texas, 137 U. S. 15, 34 L. ed. 604: Chinn v. Foster-Mil- 1'iirn Co., 105 Fed. 158. 33 Southern Pacific Co. v. Den- ton, 146 U. S. 202. 36 L. ed. 943; Mexican Central Ry. Co. v. Pinck- ney, 149 U. S. 194, 37 L. ed. 699; Galveston, H. & S. A. Ry. Co. v. Gonzales, 151 U. S. 496. 38 L. ed. 248; ail of which arose under the Texan statute. Louden Machinery Co. v. Am. Mercantile Iron Co.. 127 Fed. 100S, under the Iowa statute. 34 Thayer v. Wales. 5 Fisher's Pat. Cas. 448; Romaine v. Union Ins. Co., 28 Fed. 625. But see Dorr v. Gibboney, 3 Hughes, 382; Nation- al F. Co. v. Moline M. I. Works, 18 Fed. 863; York County Sav. Bank v. Abbot, 139 Fed. 988. 35 Romaine v. Union Ins. Co., 28 Fed. 625. 36 Mahr v. Union Pac. R. Co., 140 Fed. 921. 37 Crawford v. Foster, C. C. A., 84 Fed. 939; Caskey v. Chenoweth, C. C. A., 62 Fed. 712; Chicago Title & Trust Co. v. Newman, C. C. A., 1S7 Fed. 573. § 1T0] ITS EFFECT. 611 An appearance gratis can only be made by a defendant named in the introduction or prayer for process in the bill, unless by consent of all the parties to the suit. 38 § 1 70. Effect of an appearance. A general appearance waives all objections to the form or manner of service of the subpoena, 1 including the objections that the defendant was not found and did not reside within the district 2 and that neither party resides within the district even where the case was origi- nally brought in the District Court of the United States, and the jurisdiction depends upon diversity of citizenship. 3 Where the want of a residence essential to the jurisdiction appears upon the face of the plaintiff's pleading, the objection may be 38 Attorney-General v. Pearson, 7 Simons, 290, 302; Kentucky S. Min. Co. v. Day, 2 Saw. 468, 473. See Anderson v. Watt, ]38 U. S. 694, 34 L. ed. 1078; Beck & Pith Co. v. Wacker & B. B. & M. Co., C. C. A., 76 Fed. 10; Roberts v. Brooks, 71 Fed. 914. § 1 70. 1 Segee v. Thomas, 3 Blatchf 11; Goodyear v. Chaffee, 3 Blatch. 268; Hale v. Continental L. Ins. Co., 12 Fed. 359; Provident Sav. L. Assur. Soc. v. Ford, 114 U. S. 635, 639, 29 L. ed. 261, 263; Rob- inson v. Xat. S. Co., 12 Fed. 361; s. c, 20 Blatchf. 513; Buerk v. Im- haeuser, 8 Fed. 457. 2 Texas & Pac. Ry. Co. v. Cox, 145 U. S. 593, 603, 36 L. ed. 829, 832; St. Louis & S. F. Ry. Co. v. McBride, 141 U. S. 127, 132, 35 L. ed. 659. 661; Sayles v. Northwestern Ins. Co., 2 Curt. 212; Shields v. Thomas, 18 How. 253, 259, 15 L. ed. 368, 370; Toland v. Sprague, 12 Pet. 300, 331, 9 L. ed. 1093, 1105; Provident Sav. L. Assur. Soc. v. Ford, 114 U. S. 635, 639, 29 L. ed. 261, 263; Central Tr. Co. v. Mc- George, 151 U. S. 129, 38 L. ed. 98; Int. Constr. & I. Co. v. Gibnev, 160 U. S. 217, 40 L. ed. 401; Texas & Pac. Ry. Co. v. Saunders, 151 U. S. 105, 38 L. ed. 90. But see Noyes v. Canada, 30 Fed. 665; Reinstadler v. Reeves, 33 Fed. 308. Held, that a general appearance waived the ob- jection that the defendants were not residents of the district. Lowry v. Tile M. & G. Ass'n, 98 Fed. 817; Fosha v. W. U. Tel. Co., 114 Fed. 701 ; A. L. Wolff & Co. v. Choctaw, O. & G. R. Co., 133 Fed. 601 ; Mahr v. Union Pac. R. Co., 140 Fed. 921. Of. Mexican Central Ry. Co. v. Rob- inson, C. C. A., 128 Fed. 1020. The above statement in the text was quoted with approval in McKane v. Burke, 132 Fed. 688. 3 Matter of Moore, 209 U. S. 490, 52 L. ed. 904; Western L. & Sav. Co. v. Butte & B. Consol. Min. Co., 210 U. S. 368, 52 L. ed. 1101; Horn v. Pere Marquette R. Co., 151 Fed. 626; Midland Contracting Co. v. Toledo Foundry & Machine Co., C. C. A., 154 Fed. 797; U. S. Gypsum Co. v. Sliwienska, C. C. A., 183 Fed. 688; Title Guaranty & Surety Co. v. U. S., C. C. A., 187 Fed. 98. See Southern Pac. Co. v. Denton, 146 U. S. 205, 36 L. ed. 945: supra, § 61. 612 APPEARANCE. [§ 170 raised by a motion to dismiss. 4 It is not waived by answer after a motion upon this ground has been overruled. 5 Where the complaint misstates the residence, the objection can be raised by answer. 6 It has been held that a general appearance waives the objection that an action by the trustee in bankruptcy was not brought in the proper district, 6 * and that a general appearance by a foreign receiver waives any question of the jurisdiction of the court to adjudicate concerning the internal affairs of a foreign corporation. 7 A general appearance does not waive an objection to the jurisdiction of the court upon the ground of a lack of the requisite difference of citizenship ; 8 nor admit the validity of a writ of foreign attachment previous- ly issued, 9 nor, it has been held, authorize an amendment of the plaintiff's pleading so as to set forth a new cause of action, upon which the defendant could not originally have been sued in the jurisdiction. 10 It has been held : That if a party joins with a special appearance and motion to set aside service of process a motion to dismiss the suit on another ground, he thereby waives his objection to the irregularity of service, and his proceeding is equivalent to a general appearance. 11 After a special appear- ance for the purpose of objecting to the jurisdiction has been made, and the objection overruled, the right to insist upon this objection on an appeal is not lost by a subsequent appearance and defense to the suit upon the merits. 12 The court has power 4 Southern Pac. Co. v. Denton, 146 10 Western Wheeled Scraper Co. U. S. 202, 36 L. ed. 943; Tiee v. v. Gahagan, 152 Fed. 648. Hurley, 145 Fed. 391. But see con- " Fitzgerald & M. C. Co. v. Fitz- tra dies. & 0. Coal Agency Co. v. gerald, 137 U. S. 98, 34 L. ed. 60S; Fire Creek C. & C. Co., 119 Fed. 942. Jones v. Andrews, 10 Wall. 327, 19 5 Leonard v. Merchants' Coal Co., L. ed. 935; St. Louis & S. F. Ry. C. C. A., 162 Fed. 885. Co. v. McBride, 141 U. S. 127, 132, 6 Leonard v. Merchant's Coal Co., 35 L. ed. 659, 661 ; Edgell v. Felder, C. C. A., 162 Fed. 885. C. C. A., 84 Fed. 69. But see U. S. OaMcEldowney v. Card, 193 Fed. v. Am. Bell. Tel. Co., 29 Fed. 17; 475. McGillin v. Claflin, 52 Fed. 657. 7 Chicago Title & Trust Co. v. But see Kelley v. T. L. Smith Co., Newman, C. C. A., 187 Fed. 573. C. C. A., 196 Fed. 466; see § 169 8 Romaine v. Union Ins. Co., 28 supra. Fed. 625; U.S. R. S. 1 Supp., 12 Harkness v. Hyde, 98 U. S. 476, pp. 137, 175; 18 St. at L. 470; Act 25 L. ed. 237, Mexican C. Ry. Co. of March 3, 1875, § 5. v. Pinckney, 149 U. S. 194, 37 L. 9 Sackett v. Rumbaugh, 45 Fed. ed. 699. See § 169, suvra. 23. 170] ITS EFFECT. 613 to allow a general appearance to be changed by amendment to a special appearance, 13 or to be withdrawn. 14 This has been permitted when the original complaint has misstated the plain- tiff's residence and that subsequently appears to be such as to defeat the jurisdiction ; 15 and where a general appearance was made, after the service of a summons, but before a pleading was filed or served, and the defendant did not then know that the sole ground of jurisdiction was a diversity of citizenship ; 16 but not ordinarily where, before appearing, a defendant had no- tice of the facts upon which he relies or reasonable opportunity to ascertain them and his employment in the case was not limited by his client. 17 Permission to withdraw a general appearance, if conditioned that it is granted without prejudice to the plain- tiff, does not deprive the latter of rights founded upon a rule that a general appearance is a waiver of a defect in the service of process. 18 Otherwise it does. 19 13 U. S. v. Yates, 6 How. 605, 12 L. ed. 575; Hohorst v. Hamburg Am. P. Co., 38 Fed. 273. 14 Rhode Island v. Massachusetts, 13 Pet. 23, 10 L. ed. 41; First Nat. Bank v. Cunningham, 48 Fed. 510; Chicago Title & Trust Co. v. New- man, C. C. A., 187 Fed. 573, 577. 15 Hagstoz v. Mutual Life Ins. Co. of New York, 179 Fed. 569. See Leonard v. Merchants' Coal Co., C. C. A., 162 Fed. 885. 16 Crown Cotton Mills v. Turner (S. D. N. Y.), 82 Fed. 337. 17 Lamborn v. Louisiana Sugar Co., Mack, J., N. Y. L. J. Dec. 2, 1912. 18 Graham v. Spencer, 14 Fed. 603. 19 Graham v. Spencer, 14 Fed. 603, 607; First Nat. Bank of Denver v. Cunningham, 48 Fed. 510, 517. CHAPTER VIII. TAKING BILLS PRO CONFESSO. § 171. When a bill may be taken pro confesso. "It shall be the dutv of the defendant, unless the time shall be enlarged, for cause shown, by a judge of the court, to file his answer or other defense to the bill in the clerk's office within the time named in the subpoena as required by rule 12. In. de- fault thereof the plaintiff may, at his election, take an order as of course that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte." x "If the answer in- § 171. lEq. Rule 16. By the early practice of the civil law fail- ure to appear on the day to which the cause was adjourned, was deemed to be a confession of the ac- tion; but later this rule was changed, so that the plaintiff, not- withstanding the defendant's con- tumacy only obtained judgment in accordance with the truth of the case as established by an ex-partc examination. Keller Proced. Rom. § 69. The original Chancery prac- tice was in accordance with the later Roman law. Hawkins v. Crook, 2 Peere Williams, 556. But at least as early as the Seventeenth Century, bills were taken pro confesso for con- tumacy. Ibid. This, however, was not done until after an attachment to compel an answer, an attachment with proclamations, a commission of rebellion, and sequestration. For- um Romanum, 36; Boudinot v. Sym- h:ps. Wallace, C. C. 139, Fed. Cas. No. 1,095. In Thomson v. Wor- cester, 114 U. S. 104, 119, 29 L. ed. 105, 110. See the report of Master Hoffman to Chancellor Sanford in Williams v. Corwin, Hopkins, Ch. 471. The English Chancery practice prevailed in the courts of the United States as late as 1801. Boudinot v. Symmes, Wallace, C. C. 139, Fed. Cas. No. 1,695. A decree taking a bill in equity pro confesso presents striking analogies to a judgment by nil dicit, and to judgment for plain- tiff on demurrer to the defendant's plea. Davis v. Davis, 2 Atk. 21; Hawkins v. Crook, 2 Peere Wil- liams, 556, quoted in 2 Eq. Cas. Ab. R., 179. Eq. Rule 12 of 1842 provided: "The defendant is to enter his ap- pearance in the suit in the clerk's office on or before the day at which the writ is returnable; otherwise, the bill may be taken pro confesso." According to Eq. Rule 18 of 1842, the defendant was allowed until the rule day next succeeding that of entering his appearance before he was required to file his plea, de- murrer, or answer to the bill. "In default thereof, the plaintiff may, 614 171] WHEN MAY BE TAKEN PKO CONFESSO. 615 elude a set-off or counter-claim, the party against whom it is asserted shall reply within ten days after the filing of the an- swer, unless a longer time be allowed by the court or judge. If the counter-claim is one which affects the rights of other de- fendants they .or their solicitors shall be served with a copy of the same within ten days from the filing thereof, and ten days shall be accorded to such defendants for filing a reply. In de- fault of a reply, a decree pro confesso on the counter-claim may be entered as in default of an answer to the bill." 2 "In every case where an amendment to the bill shall be made after answer filed, the defendant shall put in a new or supplemental answer within ten days after that on which the amendment or amended bill is filed, unless the time is enlarged or it is otherwise ordered by a judge of the court; and upon a default, the like pro- ceedings may be had as upon an omission to put in an answer." 3 Under the former practice, where the bill when the subpoena was served did not show jurisdiction against a defendant, a subsequent amendment stating facts sufficient to at his election, enter an order (as of course) in the order-hook, that the bill be taken pro confesso; and thereupon the cause shall be proceed- ed in ex parte, and the matter of the bill may be decreed by the court at any time after the expira- tion of thirty days from and after the entry of said order, if the same can be done without an answer, and is proper to be decreed; or the plain- tiff, if he requires any discovery or answer to enable him to obtain a proper decree, shall be entitled to process of attachment against the defendant to compel an answer, and the defendant shall not, when ar- rested upon such process, be dis- charged therefrom, unless upon fil- ing his answer, or otherwise com- plying with such order as the court or a judge thereof may direct, as to pleading to or fully answering the bill, within a period to be fixed by the court or judge, and undertaking to speed the cause." 2Eq. Rule 31. 3Eq. Rule 32. Under the Equity Rules of 1842, in a proper case part of the bill might be taken as con- fessed. Suydam v. Beals, 4 McLean 12; Hale v. Continental Life Ins. Co., 20 Fed. 344. Thus, where the defendant had repeatedly failed to answer an interrogatory, the parts of the bill which the same affected were ordered taken as confessed. Hale v. Continental Life Ins. Co., 20 Fed. 344. Eq. Rule 64 of 1842 provided: that where exceptions to an answer for insufficiency had been sustained, the defendant might, if he chose, enter an order taking as confessed the parts of the bill to which the exceptions related. It seems that, in the absence of a rule upon the subject, the complainant in such a case might, at his election, have either the whole bill or the parts insufficiently answered, taken as confessed. 616 TAKING BILLS PRO CONFESSO. [§ 171 show jurisdiction against it would not warrant the entry of an order taking the bill as confessed without a second service of the subpoena, or an appearance by such defendant. 4 The same practice seems to have been observed when the bill was amended so as to state a new case or to bring in new parties. 5 As to the rule when trivial amendments are added to the bill, the practice in the United States was unsettled. 6 Where an amended bill filed without leave after a default in defendant's appearance was withdrawn without the payment of costs or furnishing a copy to him, it was held that the right to have the original bill taken as confessed had not been waived. 7 In a proper case, part of the bill might be taken as confessed. 8 Thus, where the defendant had repeatedly failed to answer an interrogatory, the parts of the bill which the same affected were ordered taken as confessed. 9 So where exceptions to an an- swer for insufficiency had been sustained, the complainant might, if he chose enter an order taking as confessed the parts of the bill to which the exceptions relate. 10 It seems, that, in the absence of a rule upon the subject, the complainant in such a case might, at his election, have either the whole bill or the parts insufficiently answered taken as confessed. 11 It was for- merly uncertain whether, when the defendant after answering the original bill fails to file a further answer to material amend- ments thereof, the complainant was to have the whole bill taken 4Cuebas v. Cuebas, 223 U. S. 376; 1 Sheffield Furnace Co. v. Withe- Non-Magnetic Watch Co. v. Asso. H. row, 149 U. S. 574, 576, 37 L. ed. of Geneva, 45 Fed. 210. But see 353^ 855. Brown v. Lake Sup. Iron Co., 134 U. a Suydam v. Beals, 4 McLean, 12; S. 530, 33 L. ed. 1021; Nelson v. Ha]e v Cont> L Ing- Co-) 2 Fed. Eaton, 66 Fed. 376. 344 5 Nelson v. Eaton. 66 Fed. 376; 9 ' Ha]e y Cont _ L Ing Co> 20 Bank of Utica v. Finch, 1 Barb. Fed. 344. 10 Eq. Rule 64 of 1842; infra, § 194. Ch. (N. Y. ) 75; Weightman v. Powell, 2 De G. & S. 570; Beecher v. Ireland, 46 Kan. 97. 6 The English rule was that a new " Abergavenny v. Abergavenny, 2 subpeena must be served. Weight- E 1- Ca - Abr - 17S ' Weaver v. Liv- man v. Powell, 2 De G. & S. 570. ingston, Hopk. Ch. (N. Y.) 595; See also Blythe v. Hinckley, 84 Fed. Turner v. Turner, 1 Dickens, 316; 228; Harris v. Deitrich, 29 Mich. Smith v. St. Louis Mut. L. Ins. 366. Contra, Bond v. Howell, 11 Co., 2 Tenn. Ch. 605. But see Ba- Paige (N. Y.), 233. con v. Griffith, 2 Dickens, 473; 172] PRACTICE. Gl7 as confessed, or only the part unanswered. Tt is doubtful whether a bill can be taken as confessed against an infant or other person under a disability. 13 Certainly, it cannot before a guardian ad litem has been appointed. 14 Should the guardian refuse to answer, the safer course for the complainant would be to obtain a reference to a master and prove the allegations of the bill before him. 15 § 172. Practice in taking a bill pro confesso. When a defendant fails to appear or to plead in due time, "the plain- tiff may, at his election, enter an order (as of course) in the orderbook, that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex 'parte." 1 The order is entered by the clerk without the intervention of a judge. 2 Doubts have been expressed as to the propriety of entering such an order pending a motion upon a special appearance to quash a subpoena, or in the case of a cross-bill pending a motion to dismiss the original bill as against the cross-complainants. 3 If a bill is fatally defective and shows that the court has no jurisdiction, it is improper to enter an order or decree taking the same pro confesso} By the former practice, there was no need of serving the order taking the bill pro confesso} "When the bill is taken pro confesso the court may proceed to a decree at any time after the expiration of thirty days from and after the entry of the order to take the bill pro confesso; and such decree shall be deemed absolute, unless the court shall, at the Dennison v. Bassford, 2 Paige (N. Y.), 370. 12 Suydam v. Beals, 4 McLean, 12, 15. The latter practice seems to be favored in Trust & Fire Ins. Co. v. Jenkins, 8 Paige (N. Y.), 589, 593, 594; Hawkins v. Crook, 2 P. Wins. 559; Davis v. Davis, 2 Atk. 23. 13 Compare the positive language of Equity Rule 16 of 1842. with Mills v. Dennis, 3 J. Ch. (N. Y.) 367; O'Hara v. Mac Connell, 93 U. S. 151, 23 L. ed. S42 ; Massie v. Don- aldson, 8 Ohio, 377; Chaffin v. Kim- ball, 23 111. 36, 38. 14 O'Hara v. MacConnell, 93 U. S. 151, 23 L. ed. 842. "Mills v. Dennis, 3 J. Ch. (X. Y.) 367. § 172. lEq. Rule 16 copied from Eq. Rule 18 of 1842. See Read v. Consequa, 4 Wash. 174; O'Hara v. MacConnell, 93 U. S. 150, 152, 23 L. ed. 840, 842. 2Eq. Rule 5. 3 Blythe v. Hinckley, 84 Fed. 228. 4 Cuebas v. Cuebas, 223 U. S. 370, 50 L. ed. 476. 5Eq. Rule 17; Bank of U. S. v. White, 8 Peters 262, 8 L. ed. 938. See Oakley v. O'Neill, 2 N. J. Eq. 287. 618 TAKING BILLS PRO CONFESSO. [§ 172 same term, set aside the same, or enlarge the time for filing the answer, upon cause shown, upon motion and affidavit. No such motion shall be granted unless upon payment of the costs of the plaintiff in the suit up to that time, or such part thereof as the court shall deem reasonable, and unless the defendant shall undertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct, for the purpose of speeding the cause." 6 The appli- cation in the Federal courts should be made by motion 7 sup- ported by an affidavit showing the excuse for his default, and also, unless a verified answer accompanies the application, wfrich is the better practice, showing the nature of the defense. 8 Great liberality should be shown to non-residents served by publication. An error of the clerk of the court, 10 or a default, which resulted from an oversight of the defendant's counsel ; n or was caused by his attorney's lack of knowledge of the proper mode of procedure in equity; 12 or a justifiable reliance upon the defense of a suit by a person in privity with the default, 13 is a reason for allowing the defendant to appear and defend. Where due service was made, a default will not be opened unless a defense on the merits is shown. 14 It has been said: that the same rule applies when there is color of claim that due service was made. 15 If the defense seems to the court to be unconscientious, the application may be denied. 16 In the 6 Eq. Rule 17, copied in substance from Eq. Rule 19 of 1842. See May- nard v. Pomfret, 3 Atk. 468; Heyn v. Heyn, Jacob, 49. 7 French v. Stewart, 22 Wall. 238, 22 L. ed. 854. 8Schofield v. Horse S. C. Co., 65 Fed. 433; Massachusetts B. L. Assn v. Lohmiller, 74 Fed. 23: Wells v. Cruger, 5 Paige (N. Y.). 364; Winship v. Jewett, 3 Barb. Ch. (N.Y.) 173j Goodhue v. Church- man. 1 Barb. Ch. (N. Y.) 596; Keil v. West, 21 Fla. 508; Emery v. Downing. 3 3 N. J. Eq. 59; U. S. v. Whitmire, ('. C. A, 188 Fed. 422. But see Metcalf v. Landers, 3 Baxt. (Tenn.) 35. 9 American F. L. M. Co. v. Thom- as, C. C. A., 73 Fed. 782. 10 Blythe v. Hinckley, 84 Fed. 228. 11 Benjamin Schwarz & Sons v. Kennedy, 356 Fed. 316. But see City of Kansas City, Kan. v. Union Pac. R. Co., C. C. A., 192 Fed. 316. 12 McFarland v. State Savings Bank, 129 Fed. 244. 13 D. & W. Fuse Co. v. Trumbull El. Mfg. Co., 183 Fed. 784. 14 Massachusetts Ben. Life Ass'n v. Lohmiller, C. C. A., 74 Fed. 23. See White v. Crow, 110 U. S. 183, 28 L. ed. 113. 15 Massachusetts Ben. Life Ass'n v. Lohmiller, C. C. A., 74 Fed. 23. 16 Parker v. Grant, 1 J. Ch. (N. § 172] PRACTICE. 619 State courts, applications to open defaults have been denied where the defendants wished to plead a discharge in bank- ruptcy, 17 and in one case where the complainant's principal witness had died between the default and the motion. 18 Where defendants wished to plead usury, relief has been conditioned upon payment of the principal, 19 and upon a waiver of defense to the claim for the principal and legal interest. 20 An assignee of the subject-matter of the suit, by an assignment made after the default, has no more right to come in and defend than was possessed by the original defendant; 21 but special favor is shown to assignees for the benefit of creditors. 22 It has been held that after the term, a decree taking a bill as confessed cannot be set aside on motion, 23 unless the motion was made or noticed at the term when the decree was entered, 24 even where there is a rule of the State court permitting such a practice. 25 Thus, the entry of a final decree by default upon notice to the defendants, without the entry of a formal order or interlocutory decree taking the bill as confessed, was held to be an irregular- ity for which the decree would not be set aside upon motion at a subsequent term. 26 But a decree taking a bill as confessed was set aside upon motion at a later term when it had been entered after appearance and before the time to plead had expired. 27 And in a proper case such a decree can be set aside by an original bill. 28 A decree -pro confesso is not as of course according to the prayer of the bill, nor such as the complainant Y.) 434; Quincy v. Foot, 1 Barb. Ch. (N. Y.) 496; Freeman v. War- ren, 3 Barb. Ch. (N. Y.) 635; Bax- ter v. Lansing, 7 Paige (N. Y.), 350; National Fire Ins. Co. v. Sackett, 11 Paige (N. Y.), 660. 17 Freeman v. Warren, 3 Barb. Ch. (N. Y.) 635. "Wooster v. Woodhull, 1 J. Ch. (N. Y.) 529. 19 Bard v. Fort, 3 Barb. Ch. (N. Y.) 632. 20 Quincy v. Foot, 1 Barb. Ch. (N. Y.) 496; Watt v. Watt, 2 Barb. Ch. (N. Y.) 371; National Fire Ins. Co. v. Sackett, 11 Paige (N. Y.) 660. 21 Watt v. Watt, 2 Barb. Ch. (X. Y.) 371. 22Blanchard v. Cooke, 144 Mass. 207. 23 Allen v. Wilson, 21 Fed. 881; Linder v. Lewis, 1 Fed. 378; Stuart v. St. Paul, 63 Fed. 644; Electric Vehicle Co. v. De Dietrich Import Co., 159 Fed. 492. 24 Stuart v. St. Paul, 63 Fed. (»(i4. 25 Austin v. Riley, 55 Fed. 833. 26 Linder v. Lewis, 1 Fed. 378. See Stuart v. St. Paul, 63 Fed. 688. 27 Fellows v. Hall, 4 McLean. 281. 28 Thomson v. Wooster, 114 U. S. 104, 112, 29 L. ed. 105, 107; infra. §§ 450-452. 020 TAKING BILLS PRO CONFESSO. [§ 172 chooses to take ; but it is made by the court according to what is proper to be decreed upon the assumption that the statements in the bill are true. 29 It has been held that there is an excep- tion to this rule in the case of a bill to compel the issue of a patent, since the public are interested in the result, and that then the court may require a copy of the proceedings and testi- mony in the patent-office and call for any other competent evi- dence that the complainant may have to offer. 30 "The matter of the bill ought at least to be opened and explained to the court whenever the decree is applied for, so that the court may see that the decree is a proper one." 31 "The bill, when con- fessed by the default of the defendant, is taken to be true in all matters alleged with sufficient certainty; but in respect to matters not alleged with due certainty, or subjects which, from their nature and the course of the court, require an examination of details, the obligation to furnish proofs rests on the com- plainant." 32 In the State courts a decree pro confesso is usually not taken against an infant without proof of the facts. 33 The Federal practice in this respect is not settled. When the bill relates to an unsettled account, a reference to a master is always necessary. 34 The equity rules provide that, after an order taking the bill pro confesso for a default in pleading, "thereupon the same shall be proceeded in ex parte." Zb Whether this deprives the defendant of the right to notice of subsequent proceedings and to appear before the master is doubtful. 36 It has been held that he has no right to a notice 29 Bradley, J., in Thomson v. Wooster, 114 U. S. 104, 113, 29 L. ed. 105, 108; Andrews v. Cole, 20 Fed. 410; Rose v. Woodruff, 4 J. Ch. (X. Y.) 547, 548. 30 Davis v. Garrett, 152 Fed. 723, 725. 31 Bradley, J., in Thomson v. Wooster, 114 U. S. 104, 113, 114, 29 L. ed. 105, 108. 32 Master Hoffman in Williams v. Convin, Hopkins Ch. 471; quoted by Bradley, J,, in Thomson v. Wooster, 114 U. S. 104, 110, 111, 29 L. ed. 105, 107. See Ohio Central R. Co. v. Central Tr. Co., 133 U. S. 83, 91, 33 L. ed. 561, 563. 33Chaffin v. Kimball, 23 111. 36, 38; Ingersoll v. Ingersoll, 42 Mass. 155; Massie v. Donaldson, 8 Ohio, 377, 381. Cf. O'Hara v. MaeCon- nell, 93 U. S. 151, 23 L. ed. 842. 34 Pendleton v. Evans, 4 Wash. 104, 112. 35 Equity Rule 17. This phrase is not used in the Rules of 1822. 7 Wheat, vii, 5 L. ed. 376. 36 Bradley, J., in Thomson v. Wooster, 114 U. S. 104, 119, 120, 29 L. ed. 105, 110. 172] PRACTICE. 621 and hearing on the settlement of the final decree. 37 By the English practice, the defendant, after a decree pro confesso and a reference for an account, was entitled to have notice of the proceedings and to a hearing before the master. 38 The same rule prevails in the Second, 39 in the Third, 40 and in the jSTinth, 41 Circuits. It has been held otherwise in the Eighth Circuit. 42 Where a bill for the infringement of a patent alleges infringe- ment of "the invention" of the plaintiffs, and is taken as con- fessed, it seems that it cannot be claimed in subsequent pro- ceedings in the same suit that the patent is void upon its face. 43 When more than one defendant is charged with a joint lia- bility, after the bill has been taken as confessed against one, no final decree can be made against him, unless and until a decree is entered against those who appear and defend the suit ; 44 and if the bill is finally dismissed upon the merits as to them, it will be dismissed as to the defaulter also. 45 But the rule seems to be otherwise where his liability is distinct and several. 46 Where a decree pro confesso had been entered, ad- judicating that one of the defendants had no right to the fund mentioned in the bill, it was held to be error for a final decree, after a hearing on issues raised by other defendants, to give to the defaulter an interest in the fund. 47 It seems that a decree taking a bill as confessed is of no effect unless followed 37 Provident Life & Trust Co. of Philadelphia v. Camden & T. Ry. Co., C. C. A., 177 Fed. 854 (Third Circuit) . 38 Bennett v. Hoefner, 17 Blatchf. 341. 39 Davis v. Garrett, 152 Fed. 723. 40 Southern Pac. Co. v. Temple, 59 Fed. 17. 41 Austin v. Riley, 55 Fed. 833. 42 Heyn v. Heyn, Jacob, 49. So in the New York Chancery, 1 Hoffman Ch. Pr. 520; 1 Barb. Oh. Pr. 479. In New Jersey the rule was discretionary. Brundage v. Goodfellow, 4 Halst. Ch. 513; Thomson v. Wooster, 114 U. S. 104, 119, 120, 29 L. ed. 105, 110. 43 Dobson v. Hartford Carpet Co., 114 U. S. 439, 446, 447, 29 L. ed. • 177, 179; Reedy v. Western El. Co., C. C. A., 83 Fed. 709. 44Frow v. De La Vega, 15 Wall. 552, 21 L. ed. GO. 45 Terry v. Fontaine's Adm'r, 83 Va. 451 ; Petty v. Hannum, 2 Humph. (Tenn.) 102, 36 Am. Dec. 303; Butler v. Kenzie, 90 Tenn. 31 ; s. c, 15 S. W. 1068; Clason v. Mor- ris, 10 Johns. (N. Y.) 524; Kooper v. Dyer, 59 Vt. 477, 59 Am. Rep. 742. 46 Andrews v. Lee, 1 Dev. & B. Fq. (N. C. 318; Simpson v. Moore, 5 Lea (Tenn.) 376. 47 Third Nat. Bank v. Atlantic City, C. C. A., 130 Fed. 751. 622 TAKING BILLS PRO CONFESSO. [§ 172 by, or included in, a final decree. 48 An appeal can be taken from the decree, after a bill had been taken as confessed. Upon such an appeal the decree may be reversed for a defect in the service of the subpoena; 49 for failure to appoint a guardian ad litem, when required; 50 it seems for a want of indispensable parties, 51 and for a failure to set aside the decree upon a proper application. 52 The only question for the consideration of the court is whether the allegations in the bill are sufficient to sup- port the decree. 53 It seems that the objection that the com- plainant had an adequate remedy at law rests in the discretion of the court of first instance, and that it cannot be waived in the appellate court by a defendant who is in default. 54 Where the deefndant had not moved until nine months after the ap- pointment of a receiver, and meanwhile the bill had been taken as confessed, it was held to be too late to take this objection. 55 « Frow v. De La Vega, 15 Wall. 53 Masterson v. Howard, 18 Wall. 552, 51 L. ed. 60; Butterworth v. 99, 21 L. ed. 764; Ohio C. R. Co. v. Hill, 114 U. S. 128, 29 L. ed. 119. Central Tr. Co., 133 U. S. 83, 33 L. *>0'Hara v. MacConnell, 93 U. ed. 561. S. 150, 23 L. ed. 840; Butterworth 54 Brown v. Lake Superior Iron v. Hill, 114 U. S. 128, 29 L. ed. 119. Co., 134 U. S. 530, 33 L. ed. 1021; 50 O'Hara v. MacConnell, 93 U. Western Elec. Co. v. Reedy, 66 Fed. S. 150, 23 L. ed. 840. 163. 51 Ibid. 55 Brown v. Lake Superior Iron 52 American F. L. M. Co. v. Thorn- Co., 134 U. S. 530, 33 L. ed. 1021. as, C. C. A., 71 Fed. 782; Nelson v. Eaton, C. C. A., 06 Fed. 376. CHAPTER IX. ANSWERS. § 173. Answers in general. "It shall be the duty of the de- fendant, unless the time shall be enlarged, for cause shown, by a judge of the court, to file his answer or other defense to the bill in the clerk's office within the time named in the subpoena as required by rule 12. In default thereof the plaintiff may, at his election, take an order as of course that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte." 1 "Demurrers and pleas are abolished. Every de- fense in point of law arising upon the face of the bill, whether for misjoinder, nonjoinder, or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer or plea, shall be made by motion to dis- miss or in the answer ; and every such point of law going to the whole or a material part of the cause or causes of action stated in the bill may be called up and disposed of before final hear- ing at the discretion of the court. Every defense heretofore presentable by plea in bar or abatement shall be made in the answer and may be separately heard and disposed of before the trial of the principal case in the discretion of the court. If the defendant move to dismiss the bill or any part thereof, the motion may be set down for hearing by either party upon five days' notice, and, if it be denied, answer shall be filed within five days thereafter or a decree pro^ confesso entered." 2 "The defendant in his answer shall in short and simple terms set out his defense to each claim asserted bv the bill, omitting any mere statement of evidence and avoiding any general denial of the averments of the bill, but specifically admitting or denying or explaining the facts upon which the plaintiff relies, unless the defendant is without knowledge, in which case he shall so state, such statement operating as a denial. Averments other § 173. lEq. Rule 16. 2 Eq. Rule 29. 623 . 624 ANSWERS. [§ 174 than of value or amount of damage, if not denied, shall be deemed confessed, except as against an infant, lunatic, or other person non compos and not under guardianship, but the answer may be amended, by leave of the court or judge, upon reasonable notice, so as to put any averment in issue, when justice re- quires it. The answer may state as many defenses, in the alter- native, regardless of consistency, as the defendant deems es- sential to his defense. The answer must state, in short and sim- ple form any counter-claim arising out of the transaction which is the subject-matter of the suit, and may, without cross-bill, set out any set-off or counter-claim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counter-claim, so set up, shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit both on the original and cross-claims." 3 "If the counter-claim is one which affects the rights of other defendants they or their solicitors shall be served with a copy of the same within ten days from the filing thereof." 4 An answer in equity serves two purposes : the setting up of the defenses to the suit and discovery. It may now pray relief against the complainant 5 and against a co-defendant. 6 Former- ly this could not ordinarily be done without the filing of a cross-bill. 7 § 174. Admissions and denials and discovery. The Equity Rules now provide that the answer must specifically admit, deny, or explain the facts upon which the plaintiff re- lies, unless the defendant is without knowledge, in which case he shall so state, such statement operating as a denial. 1 The rules are silent as to whether an answer under oath to the bill is required, although they make a provision for answers under oath to interrogatories filecl after issue is joined. 2 They are also silent as to whether the complainant may waive an answer under oath and as to the effect of an answer under oath as evidence. The Equity Rules of 1842, which seem in this re- SEq. Rule 30. 44G, 6 L. ed. 516; Veach v. Rice, 131 4Eq. Rule 31. U. S. 293, 33 L. ed. 163. Infra, 5Eq. Rule 30. § 197. 6Eq. Rule 31. § 174. lEq. Rule 30. 7 Carnochan v. Christie, H Wheat. 2 Eq. Rule 58. 174] TRAVERSE BY ANSWER. 625 spect to follow the former practice in chancery, 3 provided : "If the complainant, in his bill, shall waive an answer under oath, or shall only require an answer under oath with regard to cer- tain specified interrogatories, the answer of the defendant, though not under oath, shall not be evidence in his favor, unless the cause be set down for hearing on bill and answer only ; but may nevertheless be used as an affidavit with the same effect as heretofore upon a motion to grant or dissolve an injunction, or on any other incidental motion in the cause ; but this shall not prevent a defendant from becoming a witness in his own behalf under section 3 of the act of Congress of July 2, 1804." 4 Con- sequently, under those rules, an answer under oath was usually waived by the complainant. 5 It was held that, where an an- swer under oath was waived, a discovery could not be required, 6 and that defendant then could not be required to answer inter- 3 See Daniell's Ch. Pr., First Am. Ed., 846; Curling v. Townshend, 19 Vesey 628, 629; Billingslea v. Gil- bert, 1 Bland (Md.) 567; Contee v. Dawson, 2 Bland (Md.) 264; Ful- ton Bank v. Beach, 2 Paige, (X. Y.) 307; Story's Eq. PL, §§ 874, 875a. *Eq. Rule 41 of 1842 as amended December, 1871. The statute cited is now U. S. R. S., § 858. See Wood- ruff v. Dubuque & S. C. R. Co., 30 Fed. 91. 6 See Slessinger v. Buckingham, 17 Fed. 454, 456. 6Tillinghast v. Chace, 121 Fed. 435; McFarland v. State Sav. Bank, 132 Fed. 399; Victor G Bloede Co. of Baltimore City v. Carter, 148 Fed. 127; Gorham Mfg. Co. v. Wein- traub, 1.80 Fed. 639. See also Har- rington v. Harrington, 15 R. I. 341, 5 Atl. 502; McCulla v. Beadleston, 17 R. I. 20, 26, 20 Atl. 11; Stark- weather v. Williams, 21 R. I. 55, 41 Atl. 1003; Ward v. Peck, 114 Mass. 121; Badger v. McXamara, 123 Mass. 117, 120; McCormick v. Cham- Fed. Prac. Vol. I.— 40. berlain, 11 Paige (X. Y.) 543; U. S. v. McLaughlin (C. C.) 24 Fed. 823; Sheppard v. Akers, 1 Tenn. Ch. 326; Goodwin v. Bishop, 145 111. 421, 34 X. E. 47 ; Field v. Hastings & Brad- ley Co., 65 Fed. 279; Story's Eq. Pldg. § 875: Daniell's Ch. Pr. (3d. Am. ed.) 799. But see Johnston v. Forsyth Merc. Co., 127 Fed. 845, 848; John Church Co. v. Zimmer- man. 131 Fed. 652. Contra. Bates on Equity Federal Procedure, Vol. I, § 355 ; criticised by Brewer, J., in Tillinghast v. Chace, 121 Fed. 435, 436. Citing Kittredge v. Claremont Bank, 1 Woodb. & M. 244, Fed. Cas. Xo. 7,859: Whittemore v. Patten, 81 Fed. 527; Xat'l Hollow Brake Beam Co. v. Interchangeable Brake Beam Co., 83 Fed. 26; Uhlmann v. Arnhold & Schaeffer Brewing Co., 41 Fed. 309; Gamewell Fire- Alarm Tel. Co. v. Mayor. (C. C). 31 Fed. 312: Colgate v. Compagnie Francaise, 23 Fed. 82; Reed v. Cumberland Mut. Ins. Co., 36 X. J. Eq. 393: Manley v. Mickle, 55 X. J. Eq. 567, 37 Atl. 738. 62G ANSWERS. [§ 1H rogatories attached to the bill. 7 Where no such waiver was made, the former rule then still prevailed ; and the sworn state- ment by the defendant, in direct response to an allegation in the bill, was deemed to be true, unless contradicted by two wit- nesses or a single witness and corroborating circumstances. 8 Irresponsive allegations were not evidence, 9 nor was the court bound by the construction placed in the answer upon facts that were therein pleaded. 10 Such an answer was not evidence of new facts, set up by way of evidence of the allegations of the bill. 11 Xeither were allegations upon information and belief, 12 nor allegations sworn to positively, concerning facts of which it was evident the respondent could have no personal knowledge. 13 The admissions of the defendant are binding upon him; and unless he can obtain leave to amend his answers by withdrawing them, he cannot disprove them at the hearing. 14 The defendant must answer every allegation in the bill which is material to the plaintiff's case, and an answer admitting which would not expose him to a penalty, forfeiture or criminal prosecution, or expose a privileged communication. 15 Under the chancery practice, the complainant was obliged to answer specifically and categorically, distinguishing between matters within his per- sonal knowledge and those within his information and belief. 16 7 Independent Baking Powder Co. v. Boorman, 130 Fed. 726; Victor G. Bloede Co. v. Carter. 148 Fed. 127. But where lie undertook to answer, it was held, that he must answer fully. Ibid. 8 Clark's Ex'rs v. Van Reimsdyk. 9 Cranch, 153, 160, 3 L. ed. 9; Security Tr. Co. v. Black River Nat. Bank. 187 U. S. 211, 237, 47 L. ed. 147, 158. l5McIntire v. Pryor, 173 U. S. 38, 43 L. ed. 606; Saxlehner v. Eisner & M. Co.. 179 U. S. 19, 45 L. ed. 60: Newberry v. Wilkinson, C. C. A., 199 Fed. 673; Citizens' Saw & Tr. Co. v. Illinois Cent. R. Co., C. C. A., 182 Fed. 607. 16 Cheatham v. Evans, C. C. A., 160 Fed. 802: Armstrong Cork Co. v. Merchants' Refrigerating Co., C. C. A., 184 Fed. 199. 17 Davis v. Smokeless Fuel Co., C. C. A., 196 Fed. 753. 18 Gibson v. Chouteau. 13 Wall. 92, 20 L. ed. 534; U. S. v. Thomp- son. 98 U. S. 486, 25 L. ed. 194. See infra, § — . 19 U. S. v. Thompson, 98 U. S. 486, 490. 2.5 L. ed. 194. 195. 20 Stanley v. Schwalby. 147 U. S. 508, 517. 37 L. ed. 259, 263. 21 Stanley v. Schwalby. 147 U. S. 508. 517, 37 L. ed. 259, 263. 22 Stanley v. Schwalby. 147 U. S. 508, 518. 37 L. ed, 259, 263. (U3 ANSWERS. [§ 18: tation cannot aid a creditor of a State when suing one of its debtors. 88 An individual seeking to enforce by subrogation the rights of a State may be estopped by laches of the State which would not have affected the State itself. 24 Municipal corporations and counties may be estopped by laches. 25 Laches or the statute of limitations may be pleaded to a bill to remove a cloud on title filed by one out of possession. 26 The filing of a bill in equity stops the running of the statute of limi- tations, although' the subpoenas are not issued until subsequent * * 27 to its expiration. § 182. Equitable laches. Moreover, the lapse of time for a shorter period than the statute of limitations, and in cases to which that statute does not apply, will often be held such laches as to bar the complainant l but very rarely, unless other circumstances than the mere lapse of time make it inequitable to permit the complainant to sue. 2 The United States are not bound by laches, 3 unless equities have arisen through the lapse of time ; 4 or where a suit is brought in the name of the United States to enforce the rights of a private person. 5 It is not laches for a complainant to delay asserting his rights until the determination in another suit, brought by himself or another in a similar position, of a doubtful question of law materially affecting their validity, 6 nor is delav because of the inability 23 Cressy v. Meyer, 138 U. S. 525, 34 L. eel. 1018. 24 Ibid. 25 Boone County v. Burlington M. R. R. Co., 139 U. S. 684, 35 L. ed. 319. 26 Sage v. Winona & St. P. R. Co., 58 Fed. -207. 27 Armstrong Cork Co. v. Mer- chants' Refrigerating Co., C. C. A., 184 Fed. 109. § 182. l Brown v. County of Btiena Vista, 95 U. S. 157, 161, 24 L. ed. 422, 423. 2 Stuart v. Holland. 179 Fed. 969; Central R. Co. of New Jersey v. Jersey City, 199 Fed. 237; New- berry v. Wilkinson, C. C. A.. 199 Fed. 673. 8U. S. v. Beebe, 127 U. S. 338, 32 L. ed. 121; U. S. v. Insley, 130 U. S. 263. 32 L. ed. 968; U. S. v. Dalles M. L. Co., 140 U. S. 599, 55 L. ed. 560: U. S. v. Fitts, 197 Fed. 1007, an action to collect the legacy tax. 4 U. S. v. Stinson, 197 U. S. 200, 49 L. ed. 724. 5U. S. v. Chicago, M. & St. P. Ry. Co., C. C. A., 116 Fed. 969. Cf. U. S. v. Beebe, 127 U. S. 338, 32 L. ed. 121. 6 Buxton v. James. 5 De Gex & Sm. 80, 84: Rumford Chem. Works v. Vice, 14 Blatchf. 179, 180; Green v. Barney, 19 Fed. 420; Hurd v. James Goold Co., 197 Fed. 756: Cen- tral R. Co. of New Jersey v. Jersey City, 199 Fed. 237; Jackson Co. v. Gardiner Inv. Co., C. C. A., 200 Fed. § 183] STATUTES OF LIMITATIONS. 649 of the owner to bear the expense of the litigation, 7 nor, in Porto Rico, a delay warranted by the previous jurisprudence and caused by lack of knowledge of the principles of chancery. 8 § 183. Pleading statute of limitation. It is the safer practice for the defendant to plead the statute of limitations in every case where he relies upon it ; 1 although, when laches appear upon the face of the bill, it might perhaps be dismissed upon motion before answer ; 2 and under the former practice, the defense of laches, although not pleaded, might be raised at the hearing. 3 AVhere the bill shows that a reissued patent was void because of delay in the patent office, that defense need not be pleaded. 4 In certain cases, it has been held that Federal statutes of limitations need not be pleaded. 5 Laches may be pleaded. 6 Laches in prosecuting a suit after it is brought may also be taken into consideration. 7 That the delay has been pre- judicial to the defendant need not be affirmatively shown, but may be presumed, and it was so presumed when a bill was filed eighteen months after the complainant admitted to have dis- 113; People v. Cooper, 22 Hun (29 X. Y. S. C. R.), 515, 517. See Illi- nois G. T. Ry. Co. v. Wade, 140 U. 8. 05, 35 L. ed. 342. ? Davis v. A. H. Reid Creamery & Dairy Supply Co., 187 Fed. 157. 8 Noble v. Gallardo y Seary, 223 U. S. 65, 56 L. ed. 353. § 183. iFichtel v. Barthel, 173 Fed. 489, a patent case; Robinson v. Mutual Reserve Life Ins. Co., 175 Fed. 629; Robinson v. Mutual Re- serve Life Ins. Co., 175 Fed. 629. The limitation upon the time to bring actions to claim filiation in the Civil Code of Porto Rico of 1889, art. 137, and of § 199 of the Porto Rico Act of March 1, 1902, must be pleaded. Burnet v. Des- mornes Y Alvarez, 226 U. S. 145. 57 L. ed. — . A defendant in a foreclosure suit, who claimed an in- terest in the property, but who was not alleged to he in possession nor to owe the amount of the debt, was not allowed by a demurrer to avail himself of the statute of limitations. Blair v. Silver Peak Mines, 84 Fed. 737. 2Godden v. Kimmell, 99 U. S. 201, 25 L. ed. 431; National Bank v. Carpenter, 101 U. S. 567, 25 L. ed. 815; Wisner v. Barnet, 4 Wash. 631 ; Robinson v. Mutual Reserve Life Ins. Co., 175 Fed. 629. 3 Nat. Cash Register Co. v. Union Comp. Mach. Co.. 143 Fed. 342. MVollensak v. Reiher, 115 U. S. 96, 101, 29 L. ed. 350, 351; Lock- hart v. Leeds, 195 U. S. 427, 49 L. ed. 263: Thurmond v. CheS. & O. Ry. Co., C. C. A.. 140 Fed. 697. 5 Supra. § 180. 6 Edison El. Light Co. v. Equita- ble Life Assur. Soc. of U. S., 55 Fed. 478: Sullivan v. P. & K. R. Co., 94 U. S. 806, 811, 24 L. ed. 324; Doe v. Hyde. 114 U. S. 247, 29 L. ed. 142; Phillippi v. Rhillippe, ! 15 U. S. 151. -29 L. ed. 336. 7 See Underfeed Stoker Co. v. Am. Stoker Co., 169 Fed. 891, infra, § 294. 650 ANSWERS. 184: covered the existence of a decree of divorce which he claimed to be fraudulent and the defendant had married since the decree. 8 "When a suit is brought after the statutory time, the burden is on the complainant to show in his bill and by his proof that it would be inequitable to apply the statute to his case. 9 The defense of the statute of limitations is in substantially the same form as a similar plea in an action at law. hut no special form is essential. 10 The same strictness of pleading the statute is not required at equity as at law; and it was held to be a sufficient averment of the statute of limitations, as well as of laches, when the answer alleged that if there had heen any claim against the defendant's intestate in his lifetime, by reason of the transactions alleged in the bill, which was denied, said claim was barred by the lapse of time and the neglect of plaintiff to have a settlement of the same in the lifetime of the decedent; and that the defendant, therefore, believes that any such claim is barred, as plaintiff allowed the claim to sleep only after the death of deceased. 11 When the answer pleaded a limitation of six years, whereas the three years' statute applied ; it was held to be sufficient. 12 If the bill charge fraud or other matters, which, if true, would prevent the statute from depriving the complainant of relief, the plea must deny them. 13 § 184. Defense of statute of frauds. The State stat- ute of frauds will be followed by the Federal courts. 1 Under 8 McNeil v. McNeil, C. C. A., 170 v. P. & K. R. Co., 94 U. S. 806, 811, Fed. 289. In Newberry v. Wilkin- 24 L. ed. 324, 326; Doe v. Hyde. 114 son, C. C. A., 199 Fed. 673. a bill U. S. 247, 29 L. ed. 242; Phillippi was dismissed for laches when filed v. Phillippe, 115 U. S. 151, 29 L. against the sureties of a guardian ed. 336. between three and four years after 10 Harpending v. Reformed Prot. the complainant became of age, and Ch., 16 Pet. 455, 10 L. ed. 1029; he bad had notice sufficiently to put West Portland H. Ass'n v. Lowns- him upon inquiry two years before dale, 17 Fed. 205; Story's Eq. PI., his infancy terminated, but made § 752. no search of the records until three H Huntington Nat. Bank v. Hun- months before the suit was brought. tington Distilling Co., 152 Fed. 240. 9Godden v. Kinvmel, 99 U. S. 201, 12 Ramsden v. Gately, 142 Fed. 25 L. ed. 431; National Bank v. 912. Carpenter, 101 U. S. 567, 25 L. ed. 13 Stearns v. Page, 1 Story, 204. 815; Wilson v. Plutus Min. Co., C. § 184. 1 Randall v. Howard, 2 C. A., 174 Fed. 317; Wisner v. Bar- Black, 585, 5S9, 17 L. ed. 269, 2.71. net, 4 Wash. 631. But see Sullivan § 185] DEFENSES IN PAIS. 651 the old practice, if the bill showed that the complainams ease is repugnant to the statute of frauds, it was demurrable, 2 This, however, is rarely the case, and the statute was usually referred to by plea or answer. 3 The rule is thus stated by Lord Chan- cellor Cranworth: "It was argued that the statute of frauds was not open to the defendant, by reason of his not having insisted upon the statute as a defense; but this is a mistake. Where a defendant admits the agreement, if he intends to rely on the fact of its not being in writing and signed, and so being invalid by reason of the statute, he must say so ; other- wise he is taken to mean that the admitted agreement was a written agreement good under the statute, or else that on some other ground it is binding on him ; but where he denies or does not admit the agreement the burden of proof is altogether upon the plaintiff, who must then prove a valid agreement capable of being enforced.' 1 ' 4 The facts which show that the statute applies must be stated specifically. 5 Otherwise the defense is bad. 6 § 185. Defenses of matter in pais. Defenses founded upon matter in pais state some other reason, why the plaintiff should not have relief, 1 for example, a release or an account stated, or a purchase without notice for a valuable consideration. A plea of purchase without notice for a valuable consideration should deny notice positively, and should state the amount of the consideration. 2 It is insufficient to plead that the de- fendant paid a "good and valuable consideration, to-wit. a certain sum of money." 3 Xotice to an individual is notice to a corporation subsequently formed by him, in which he retained the control. 4 It seems that a purchaser without notice pending a suit is confined to asserting his rights in the pending cause. 5 2 Randall v. Howard, 2 Black. 6 Ibid. 585, 589, 17 L. ed. 269. 271. But § 185. 1 Story's Eq. PI.. §§ 795- see Chapman v. School Dist., 1 815. Deady, ]08. 8 Wood v. Mann. 1 SuMii. 506. 3 For an illustration of the plea, 3 Seeombe v. Campbell, 18 Blatchf. see Jackson v. Oglandor, 2 H. & M. 108. 465. 4 Rickey Land & Cattle Co. v. .Mil- 4Ridg\vay v. Wharton. 3 De G., lor, 218 U. S. 258, 203. 54 L. ed. M. & G. 677. 689. But see Heys 1032. 1038. See Linn & Lane Tim- v. Astley, 9 Law Times (X. S.). 356. her Co. v. U. S , C. C. A.. 196 Fed. 5 Bailey v. Wright, 2 Bond. IK1-, 593. McCloskev v. Barr, 38 Fed. 165. 169. 5 Rickey Land & Cattle Co. v. Mil 652 ANSWERS. [§ 186 § 186. Defenses of matter of record or res adjudicata. A plea founded upon matter of record sets up the judgment o: decree of a court of record upon the same matter and between the same parties, or those in privity with them, in a cause of which it had jurisdiction. 1 Pleas of matter of record are in some of the books distinguished from pleas of matter as of record. This distinction was due to the fact that, in England, the Court of Chancery in its equitable jurisdiction, the Court of Admiralty and ecclesiastical courts were deemed courts not of record, although their decrees had the same effect as the judgments of the courts of record. 2 AVhere there is neither valid service of process, nor voluntary appearance, a judgment in personam is not an estoppel ; 3 but a State statute providiug that a special appearance for the sole purpose of questioning the jurisdiction is equivalent to a general appearance, will make a judgment thereupon binding when attacked collaterally; 4 and, so it has been held, will a rule of law, established by the courts of a State, that an appeal from an order denying a motion to set aside the service of a summons is equivalent to a general appearance. 5 It has even been held that in the case of a foreign corporation, where the validity of the service has been contested and decided against the defendant, such decision is binding collaterally. 6 The judgment of the same court, 7 or ler, 218 U. S. 258, 263, 54 L. ed. belonged, as against a creditor of 1032, 1038; citing Whiteside v. the alleged partner who sought to Haselton, 110 U. S. 296, 301, 28 L. recover the property from the dis- ed. 152, 154. See Atlas Ry. Supply tributees, since the Probate Court Co. v. Lake & River Ry. Co., 134 had no jurisdiction to bring in the Fed. 503; Rarstow v. Recket, 110 proper parties and adjudicate that Fed. S26. See infra, § 477. question. Rartleson v. Feidler, 149 § 186. lUlpian, liber 42, tit. 20 Fed. 299. et leg. 1 : "Res judicata dicitur, 8 Simon v. Southern Ry. Co., C. quae finem controversariarum pro- C. A., 195 Fed. 56; supra, § 164. nunciatione judicis accipit: //uod vel 4 York v. Texas, 137 U. S. 15, 34 condrmnatione, vel absolutione con- L. ed. 604. tingit." 5 Chinn v. Foster-Milburn Co., 195 2 Story's Eq. PL, § 778. A decree Fed. 158. 162. of distribution amongst the heirs of 6 Chinn v. Foster-Milburn Co., 195 a decedent, made by a Probate Court Fed. 158, 163. Rut see Harkness v. of Alaska, was held not to be a con- Hyde, 98 U. S. 476, 25 L. ed. 237; elusive adjudication that a partner- supra. § 164. ship did not exist between decedent 'Johnson Co. v. Wharton. 152 U. and ar.other. to whom the property S. 252. 38 L. ed. 429. § 186] HEX AD JUDICATA. 653 of another court of the United States, 8 or of a court of one of the United States, 9 with jurisdiction of the subject-matter and of the parties, in which the defendant was duly served or voluntarily appeared, is, with the exceptions hereinafter noted, and in the absence of fraud, conclusive between the parties and their privies as to all matter pleaded and which might have been tried in the case. The same rule applies to the judgment of a court of an Indian nation in the Indian Territory 10 and to the judgment of an alien court in a country, such as Ensr- land and Canada, the laws of which give like effect to a judg- ment of a court in the United States. 11 A domestic or foreign judgment in rem adjudicating the title to land or to a ship or to other movable property within the custody of the court, is in the absence of extraordinary circumstances, 12 conclusive, and will not be re-examined. 13 An adjudication in bankruptcy against persons who were charged as partners is, for the pur- pose of the administration of the property, good against all the world; but it is not res adjudicata, as to the existence of the partnership, against parties who were not heard, although they appeared therein. 14 An adjudication of residence upon an application for probate is not binding upon the courts of another State in a proceeding to collect an inheritance tax. 15 A foreign judgment determining the status of persons subject to the jurisdiction, such as a decree confirming a marriage or granting a divorce, is followed unless contrary to the policy of the law of this country. 16 A foreign judgment under which 8 Kessler v. Eldred, 206 U. S. 285, 625; Hilton v. Guyot, 159 U. S. 113, 51 L. ed. 1065. 9 Clay v. Deskins, C. C. A., 63 Fed. 330 ; Hennessy v. Tacoma Smelting & Refining Co., C. C. A., 129 Fed. 240. WStandley v. Roberts, 59 Fed. S36. 11 Ritchie v. McMullen, 159 U. S. 235, 40 L. ed. 133; Giae v. Wester- velt, 116 Fed. 1017. 12 See Windsor v. McVeigh, 93 U. S. 274, 23 L. ed. 914. 13 Williams v. Armroyd, 7 Cranch, 423, 432. 3 L. ed. 392, 395; Hudson v. Guestier, 4 Cranch, 293, 2 L. ed. 167, 40 L. ed. 95, 109. HManson v. Williams, 213 U. S. 453. 53 L. ed. S69. 15 Tilt v. Kelsey, 207 U. S. 43, 52 L. ed. 95. l6Cheely v. Clayton, 110 U. S. 701, 28 L. ed. 298; Hilton v. Guyot, 159 U. S. 113, 167, 40 L. ed. 95, 109. It has been held that the decree of a foreign court concerning the awarding the custody of a child is not conclusive, but is a fact or cir- cumstance bearing upon the discre- tion to be exercised, without dic- tating or controlling it. People ex 654 ANSWERS. [§ ISO a person has been compelled to pay money is said to be so far conclusive that the justice of the payment cannot be impeached in another countrv, and that the defendant cannot be com- pelled to pay it again. 17 So, it has been held, are foreign judg- ments discharging obligations between citizens or residents of the foreign country and therein contracted. 18 But it was held by a majority of the Supreme Court: that, otherwise, the judg- ment in personam of a court in a foreign country where a similar judgment of a court of this countrv would be consid- ered as only prima facie evidence of the facts therein adjudi- cated, when one of the parties is an American citizen and the other a citizen of that foreign country; is only prima facie rel. Allen v. Allen. 105 N. Y. 628; Morrell v. Morrell, S3 Conn. 470. 77 Atl. 1 : Woodworth v. Spring. 4 Al- len (Mass.) 321; Hanrahan v. Sears, 72 X. H. 71; in all of which the decree was followed: Ex parte Stew- art. 137 N. Y. 202, in which the decree was not followed. A decree of divorce, obtained upon service by publication, must be respected when it was made by a court of the State of the matrimonial domicile. Atber- ton v. Atherton, 181 U. S. 155, 45 L. ed. 704; Thompson v. Thompson, 22G U. S. 551, 57 L. ed. — . The State in which the parties were mar- ried and where they resided after their marriage and the party who brings the suit still resided when the suit was brought is the matri- monial domicile. Ibid. Notice, by personal service or by publication, must be given to the defendant. Thompson v. Thompson. 226 U. S. 551, 57 L. ed. — . The judgment is valid although the order for service by publication was granted by an affidavit that the defendant was a non-resident, made upon informa- tion and belief, when she was in fact a resident of the State: pro- vided that the law of the State permits orders to he granted upon affidavits so made. Thompson v. Thompson. 226 U. S. 551, 57 L. ed. — . Irregularities in such affidavit, in the manner of stating material facts, do not invalidate the judg- ment, provided that the facts are actually stated therein, although the judgment might be voidable because of those defects by a suit brought for that purpose. Ibid. Otherwise, when no personal service within the jurisdiction is made upon the de- fendant and such defendant is a nonresident, the decree of divorce is invalid unless the defendant ap- pears. Haddock v. Haddock, 201 l\ S. 562, 50 L. ed. 867, 5 Ann. Cas. 1. 17 Hilton v. Guyot. 159 U. S. 113, 168, 40 L. ed. 95, 110. per Gray. J., citing Gold v. Canham, 2 Swanst. 325; s. c. 1 Cases in Ch. 316: Tarle- ton v. Tarleton. 4 M. & S. 20; Konitzky v. Meyer. 49 X. Y. 571. 18 Burrows v. Jamereaux or Jami- neau. Mosely. 1: S. C, 2 Stra. 733; s. c, 2 Eq. Cas. Alir. 525. pi. 7; S. C, 12 Yin. Ahr. 87, pi. 9; S. C, Sel. Cas. in Ch. 69; s. c, 1 Dick. -15: May v. Breed, 7 dish. (Mass.) 1'5, 54 Am. Dec. 700; Hilton v. Guyot, 159 C. S. "113, 168, 40 L. ed. 95, 110. § 186] EES AD JUDICATA. 65i evidence and not conclusive. 19 A judgment at common law is a bar to a bill in equity, based upon the facts there pleaded or offered in evidence; unless a claim or defense is pleaded in equity, or which the former court could not have taken cogni- zance. 20 A decree or judgment of a State court between the same parties in a suit duly commenced before that in a Federal court is res adjudicata in the latter, 21 although the question was one of general commercial law and jurisprudence and the case was decided upon a demurrer; 22 but not, it has been held, an order, judgment or decree of a State court in a suit insti- tuted subsequent to the beginning of that in a court of the United States. 23 Where a suit was first instituted the decree therein is conclusive although not entered until after the pen- dency of that in which it is pleaded or offered in evidence. 24 The judgment of a State court has no greater weight as res adjudicata, than would be given to the same by a State tribunal. 25 A nonsuit, although involuntary, 26 or even when taken after the highest court of the State has decided that the plaintiff has no cause of action, is not conclusive in a subse- ts Hilton v. Guyot, 159 U. S. 113, 40 L. ed. 95; Kilham v. Wilson, C. C. A., 112 Fed. 5G5; Eastern Bldg. & L. Ass'n v. Welling, 116 Fed. 100. But see Cruz v. O'Boyle, 197 Fed. 824. 20 Commercial Union Assur. Co., L"d, v. N. J. Rubber Co., 64 N. J. Eq. 338, 51 Atl. 451. A judgment for nominal damages, in an action at law for a breach of contract, was beld to be not a bar to a suit for specific performance. Slaughter v. La Compagnie Francaise, 113 Fed. 21. 21 Clay v. Deskins, C. C. A., 63 Fed. 330; Hennessy v. Tacoma Smelting & Refining Co., C. C. A., 129 Fed. 240; Susquehanna Coal Co. v. Mayor, etc., of South Amburg, 184 Fed. 941 ; Chinn v. Foster-Mil- burn Co., 195 Fed. 158; Converse v Stewart, C. C. A., 197 Fed. 152. 22 Fuller v. Hamilton County, 53 Fed. 411. 23 Blydenstein v. N.'Y. S. & Tr. Co., 59 Fed. 12; Sharon v. Terry, 1 L.R.A. 572, 36 Fed. 337, supra, §§ 9, 10. But see Insurance Co. v. Harris, 97 U. S. 331, 24 L. ed. 959. 24 David Bradley Mfg. Co. v. Eagle Mfg. Co., C. C. A., 57 Fed. 980; s. c, 58 Fed. 721. 25 Union & Planters' Bank v. Memphis, 1S9 U. S. 71, 47 L. ed. 712; Covington v. First Nat. Bank, 198 U. S. 100, 49 L. ed. 963; Glencoe Granite Co. v. City Tr., S. D. & S. Co.,. C. C. A., 118 Fed. 386; John Th Park & Sons Co. v. Bruen, 139 Fed. 698: Harrison v. Remington Paper Co.. C. C. A., 3 L.R.A. (N.S.) 954, 140 Fed. 385, 5 Ann. Cas. 314. 26 Homer v. Brown, 16 How. 354, 14 L. ed. 970: Woodward v. David- son. 150 Fed. 840. 656 ANSWERS. [§ 186 quent action upon the same facts, 27 and the iulings in such a case, even if made by the appellate tribunal are not binding in a second suit, brought in another jurisdiction. 28 A decree of a court of equity will not be a bar if it resulted in the dis- missal of a bill without prejudice; 29 or for want of prose- cution- 80 or for multifariousness, 31 or for a slip in practice. 32 such as a dismissal upon a verified answer when an oath by the respondent had not been waived ; 33 or because the court had no power to grant the relief, 34 or by consent before a hearing, 85 even, it has been held, when it provides that each party shall pay his own costs; 36 or by the former English practice, if it had not been signed and enrolled, although it could then be in- sisted on by answer as a good defense. 37 Xor does a judgment against the plaintiff upon his default have that effect. 38 But a decree upon a bill taken as confessed concludes the defendant in another suit, 39 and the failure of a party to offer evidence 27 Gardner v. Michigan Cent. R. Co., 150 U. S. 349, 37 L. ed. 1107. But see Williford v. Kansas City, M. & B. R. Co., 154 Fed. 514. 28 Gardner v. Michigan Cent. R. Co., 150 U. S. 340, 37 L. ed. 1107; Gilbert v. Am. Surety Co., C. C. A., 122 Fed. 499; Harrison v. Reming- ton Paper Co., C. C. A., 3 L.U.A. (N.S.) 954, 140 Fed. 385, 5 Ann. Cas. 314; Illinois Cent. R. R. Co. v. Benz, 108 Term. 070, 58 L.R.A. 690, 91 Am. St. Rep. 763. 29 Durant v. Essex Co., 7 Wall. 107, 19 L. ed. 154; House v. Mullen, 22 Wall. 42, 46, 22 L. ed. 838. 839; Northern Pac. Ry. Co. v. St. Paul. M. & M. Ry. Co., 47 Fed. 536: infra, § 377. 30 American D. R. B. Co. v. Shel- don, 17 Blatchf. 208; s. c, 4 Bann. & A. 551; Keller v. Stolzenbach, 20 Fed. 47: Conn v. Penn, 5 Wheat. 424, 427, 5 L. ed. 125; Badger v. Badger. 1 Cliff. 241 ; Welsbach Light Co. v. Colin, 181 Fed. 122. 31 Young v. U. S., 176 Fed. 612. 32 Durant v. Essex Co., 7 Wall. 107. 109, 19 L. ed. 154, 156; House v. Mullen, 22 Wall. 42, 46. 22 L. ed. 838, 839; Walden v. Bodley. 14 Pet. 158. 10 L. ed. 399; Gist v. Davis, 2 Hill Ch. (S. C.) 335; Grubb v. Clayton, 2 Hayw. (X. C.) 378; Hughes v. U. S.. 4 Wall. 232, 18 L. ed. 303. See. however. Starr v. Stark, 1 Saw. 270: Anon.. 3 Atk. 809; Story's Eq. PL, § 790. 33Speckart v. Schmidt. 190 Fed. 499. 34 Murray v. City of Pocotello, 226 U. S. 318, 57 L. ed. — . 35 Marshall v. Otto, 59 Fed. 249. 36 Pvincon Water & Power Co. v. Anaheim Union Water Co., 115 Fed. 543. 3V Anon., 3 Atk. 809; Story's Eq. PI.. § 790. 38 Gabrielson v. Waydell, 67 Fed. 342. 39 Last Chance Min. Co. v. Tyler Min. Co., 157 U. S. 683. 39 L. ed. 859; Reedy v. Western El. Co., C. C. A., 83 Fed. 709; Thompson v. Wooster. 114 U, S. 104. 111. 112, 29 L. ed. 105, 107, 108; Ogilvie v. § 186] RES AD JUDICATA. G57 upon an issue does not make the adjudication less conclusive against him. 40 The fact a writ of error was dismissed by the appellate court without a decision there upon the merits does not make the decision below the less conclusive. 41 And where a bill was dismissed for want of equity as well as for technical objections to the same, the decree was res adjudicata to a subse- quent suit in another court where such objections were not recognized. 42 Where a decree of dismissal does not disclose the ground, the presumption is that the dismissal was upon the merits; but this is not conclusive; and when the decree is pleaded in bar of a subsequent suit, the plaintiff may plead facts showing that it was not. 43 A judgment dismissing an action upon plaintiff's refusal to amend is a judgment upon the merits. 44 A decree sustaining a demurrer to a lull is a bar to a subsequent bill between the same parties involving the same subject-matter unless the bill is dismissed without prejudice ; 45 and a final decree overruling a demurrer operates as an estoppel upon the defendant. 46 In the absence of statutory authority, Heme, 13 Ves. 563. Where, in an action on contract, defendant plead- ed a counterclaim, to which plaintiff replied by plea in abatement, al- leging another suit pending between the same parties in the federal court on the counterclaim, which plea was clearly invalid, and on the trial de- fendant failed to appear, whereupon evidence was introduced by plaintiff to rebut the merits of the counter- claim, but no evidence was given to sustain the plea in abatement; held, that a judgment dismissing the counterclaim would not be presumed to have been based on the plea of abatement, but was on the merits, and therefore was res adjudicata. Groton Bridge & Mfg. Co. v. Clark Pressed Brick Co., C. C. A., 120 Fed. 552. 40 Confectioners' Mach. & Mfg. Co. v. Racine Eng. & Mach. Co., 103 Fed. 014; Delaware, L. & W. R. Co. v. Troxeli. C. C. A„ 200 Fed. 44. Fed. Prac. Vol. I.— 42. « Johnson v. Herold, 1G1 Fed. 593. 42 Venner v. Chicago City Ry. Co., 195 Fed. 788. Where the court had no power to grant relief, the judgment was not res adjudicata because, in its opinion, it expressed its views against the complainant upon the merits. 43 Stratton v. Essex County Park Commission, 164 Fed. 901. 44 Lindsley v. Union Silver Star Min. Co., C. C. A., 115 Fed. 46. 45 Northern Pac. Ry. Co. v. Slaght. 205 U. S. 122. 51 L. ed. 738; Mcs-dnger v. New Eng. M. L. T. Co., 59 Fed. 416'; Bradford Belting Co. v. Kisinger-Tson Co., C. C. A.. 113 Fed. 811. Of. Lindsley v. Union Silver Star Min. Co., C. C. A., 115 Fed. 46: Ohio River R. Co. v. Fish- er, C. C. A., 115 Fed. 929: Spcrry & Hutchinson Co. v. City of Taeonia, 199 Fed. 853. 46 Fuller v. Hamilton Co., 53 Fed. 411. 65S ANSWLUS. [§ 186 a decree of a State court of equity is void which declares to be in- valid a conveyance of land beyond its jurisdiction, but does not direct a reconveyance ; and such a decree does not bind a court within the jurisdiction of which such land is situated. 47 So, it has been held, is a decree foreclosing a mortgage upon and selling property beyond the territorial jurisdiction, unless it compels the mortgagor or the trustee of the mortgage to execute a conveyance to the purchaser. 48 Xo judgment or decree rendered after a proceeding not in rem, in which the defendant therein was not served with process within the jurisdiction; 4 ' or in which the unsuccessful party was denied a hearing; 50 or some such other gross injustice was perpetrated as. to render the so-called judicial proceeding not due process of law, — is of any effect. Judgments or decrees obtained by fraud are not conclusive when properly impeached, 51 but it has been held that they cannot be attacked collaterally. 52 A judgment of a court of the United States cannot be attacked collaterally be- cause the record does not show the necessary difference of citizenship of the parties or that a Federal question was in- volved. 53 In general, a decree which is interlocutory, such as 47 Carpenter v. Strange, 141 U. S. 87, 35 L. ed. 640. But see Eg. Rule 8. 48 Lynde v. Columbus, 6. & K. Ry. Co.. 57 Fed. 993; Farmers' L. & Tr. Co. v. Postal Tel. Co., 55 Conn. 334, 3 Am. St. Rep. 53, s. c, 11 Atl. 184; Mercantile Tr. Co. v. Kanawha & O. Ry. Co., 39 Fed. 337. But see Muller v. Dows, 94 U. S. 444. 24 L. ed. 207; supra, § 61, in- fra, § 399. 49 Pennoyer v. Xeff, 95 U. S. 714, 24 L. ed. 565; Life Ins. Co. v. Bangs, 103 U. S. 780, 26 L. ed. 608; St. Clair v. Cox, 106 U. S. 350, 27 L. ed. 222; Klenk v. Byrne, 143 Fed. 1008. See Clark v. Roller, 199 U. S. 541. 50 L. ed. 300. Where the defendant had appeared specially to challenge the jurisdiction, and the jurisdiction had been sustained; it was held, that the decision could not be collaterally disputed. Phelps v. Mutual Reserve Fund Life Ass'n., C. C. A., 61 L.R.A. 717, 112 Fed. 453. As to decrees in rem, see The James G. Swan, 106 Fed. 94. 50Bischoff v. Wethered, 9 Wall. 812, 19 L. ed. 829; Windsor v. Mc- Veigh, 93 U. S. 274, 23 L. ed. 914; Bradstreet v. Neptune Ins. Co., 3 Sum. 601. See Hilton v. Guyot, 159 L\ S. 113, 204, 205, 40 L. ed. 95, 122, 123. 51 Pac. R. Co. of Mo. v. Mo. Pac. Ry. Co., Ill IK S. 505. 28 L. ed. 498. 52 Peninsular Iron Co. v. Eels, 68 Fed. 24, 35. 36; Christmas v. Russell. 5 Wall. 290. 305, 18 L. ed. 475, 479; Mawell v. Stewart, 22 Wall. 77, 22 L. ed. 564. 53 Kempe's Lessee v. Kennedy. 5 Cranch, 173, 185, 3 L. ed. 70. 73; Skillern's Ex'rs v. May's Ex'rs, 6 Cranch 267, 3 L. ed. 220; Cameron 186] EES AD JUDICATA. 659 a decree for an injunction and an accounting because of the infringement of a patent, 54 is not a bar, for, until the final decree in the cause, it is subject to revision by the court which entered it. 55 When no formal judgment has been entered upon a verdict or findings, there is no adjudication. 56 In certain cases orders which finally determine the rights of parties, such as an order of interpleader, are conclusive in subsequent litigation. 57 It has been held : that a judgment appointing a receiver, with power to sue in any court of any State or of the United States, estops a party duly served with process therein from subsequently disputing the right of such receiver to sue in any of such other courts ; 5S that an order fixing an attorney's fees, upon a motion for his substitution, is not an adjudication which will support an action at law, brought in another Federal v. McRobcrts, 3 Wheat. 591, 4 L. ed. 467 ; Des Moines Xav. Co. v. Iowa H. Co., 123 U. S. 552, 557, 559, 31 L. ed. 202, 204, 205; Dowell v. Ap- plegate, 152 U. S. 327, 337-341, 38 L. ed. 463, 467, 467, 468. Pullman's P. C. Co. v. Washburn, 66 Fed. 790. (■'f. Empire State-Idaho Min. & De- veloping Co. v. Han ley, 205 U. S. 225, 51 L. ed. 779. 54 Australian Knitting Co. v. Gormly, 138 Fed. 92; Whittemore Bros. & Co. v. World Polish Mfg. Co., 159 Fed. 480. 55 David Bradley Mfg. Co. v. Eagle Mfg. Co., 58 Fed. 721 ; in- fra, § 318; Reinecke Coal Min. Co. v. Wood, 112 Fed. 477; Dady v. GeoVgia & A. Ry.. 112 Fed. 838; vtifrd, § 443. In Mitchell v. Por- ter, C. C. A.. 194 Fed. 49, held that an order before trial denying a motion to discharge the defendant from custody under civil process was not res judicata upon a motion to strike from 1 he judgment upon an amended complaint a provision directing his arrest. 56 Oklahoma City v. McMaster, 196 U. S. 529, 49 L. ed. 587. It has been held: that the following entries in the docket, although in- definite, sufficiently indicated that the action proceeded to final judg- ment : After the title of the case and notations of adjournments: "Trial commenced January 18, 1887, and concluded January 27, ■ 1887, and decided in favor of the defend- ant. Costs assessed against plain- tiff, $1,389.15. Rents and money, $1,340. Total amount, $2,729.15. Appeal to the Supreme Court grant- ed." In the Supreme Court: "Court met pursuant to adjournment. The bench all present. The evi- dence in the case was then con- cluded, and, after some arguments by counsel on both sides, the case was submitted to the court for their decision. The court, after some deliberation, decided that the will is good, and hereby con- firms tine decision of the lower court." Holford v. James, 136 Fed. 553. 57 Insurance Co. v. Harris, 97 U. S. 331. 24 L. ed. 959. 58 Burr v. Smith, 113 Fed. 858; supra, §§ 35, 93. i;t;o ANSWERS. [§ 186 district; 59 that a decree for alimony and costs will not support an action in another State in respect to future payments, for which it provides, but as to which it remains subject to modifi- cation at any time, in the discretion of the court that rendered it; 60 that a decree was not final, which confirmed and adopted a commissioners' report in partition, recommending a conveyance of part of the land, a sale of the rest, and a distribution of the proceeds, as thereafter ordered upon the confirmation of the sale. 61 Where several suits ancillary to each other were brought in different districts, it was said that the validity of a decree in one district could not be questioned by the same parties in the ancillary suit in another district. 62 A judgment of acquittal upon an indictment is a bar to a suit by the United States to recover a penalty for the same offense, 63 but not to a civil suit to recover damages; 64 or an injunction upon a charge of the same facts. 65 A decree of deportation, rendered by a United States Commissioner, was held to be an adjudication in rem, binding in a criminal prosecution against a stranger to the proceeding. 66 Where the parties and the property in dis- pute are the same arid the plaintiff claims the same right as in the former suit, the prior adjudication is conclusive both as to all questions which were actually decided and as to -all which might have been considered. 67 But where there is a different 59 Du Bois v. Seymour, C. C. A., 152 Fed. GOO; reversing 145 Fed. 1003. 60 Israel v. Israel, C. C. A., 9 L.R.A.lX.S.) 1168, 8 Ann. Cas. 097, 148 Fed. 576; Valiquet v. Valiquet, 177 Fed. 994. 61 Clark v. Roller, 199 U. S. 541, 50 L. ed. 300. 62 Compton v. Jesups, 68 Fed. 263, 282, per Taft, J. But see s. c, 167 U. S. 1, 42 L. ed. 55. 63 Coffey v. U. S., 116 U. S. 442, 29 L. ed. 686. Cf. U. S. v. Oregon C. Co., 103 Fed. 549. 64 Stone v. U. S., 167 U. S. 178, 42 L. ed. 127. As to the rule con- cerning judgments of the courts of the Philippines, see Chantangeo v. Ahaboa, 218 U. S. 476, 54 L. ed. 1116. 65 U. S. v. Donaldson-Schultz Co., C. C. A., 148 Fed. 581; revers- ing, 142 Fed. 300. 66 U. S. v. Hills, 124 Fed. 831. 67M'Aleer v. Lewis, 75 Fed. 734; Xesbitt v. Riverside Ind. Dist.. 144 U. S. 610, 36 L. ed. 562; Dowell v. Applegate, 152 U. S. 327, 38 L. ed. 463; Cromwell v. County of Sac, 94 U. S. 351, 24 L. ed. 195; Jaros H. U. W. Co. v. Fleece H. U. W. Co., 65 Fed. 424; Bissell v. Spring Valley Tp., 124 U. S. 225, 31 L. ed. 411; U. S. Tr. Co. v. New Mexico, 183 U. S. 535, 540, 46 L. ed. 315, 319; Werlein v. New Orleans, 177 U. S. 390, 44 L. ed. 817; Virginia- 186] EES AD JUDICATA. 661 Carolina Chemical Co. v. Kirvfen, 215 U. S. 252, 54 L. ed. 179; Re Coffin, 146 Fed. 181; Wood v. Browning, C. C. A., 176 Fed. 273. It has been held : that, where, in a suit upon coupons, they and the bonds from which they were cut were adjudged to be invalid, the ad- judication bound the plaintiff in a subsequent suit upon coupons from the same bonds which fell due later. Bissell v. Spring Valley Tp., 124 U. S. 225, 31 L. ed. 411; Fitch v. Stanton Tp., C. C. A., 190 Fed. 310; Hickman v. Town of Fletcher, C. C. A., 195 Fed. 907. That in a similar action a judgment that the bondholder had not paid the same in good faith, was binding in a suit upon coupons subsequent- ly maturing Fitch v. Stanton Tp., C. C. A., 190 Fed. 310. That a de- cision, that a tax for one year was void because the property taxed was exempt, was conclusive as to the ex- emption of the property when taxed for another year. New Orleans v. Citizens' Bank, 167 U. S. 371, 42 L. ed. 202 ; Gunter v. Atlantic Coast Line, 200 U. S. 273, 291, 50 L. ed. 477, 486; Goodenow v. Litchfield, 59 Iowa, 226. But see Keokuk & W. R. Co. v. Missouri, 152 U. S. 301, 315, 38 L. ed. 450, 456; Daven- port v. Chicago, R. & P. R. Co., 38 Iowa, 633; Memphis City Bank v. Tennessee, 161 U. S. 186, 40 L. ed. 664. Cf. Baldwin v. Maryland, 179 U. S. 220, 45 L. ed. 160. It was held otherwise, where it was the settled rule of the State courts that such an adjudication was not an estoppel between the parties, as to taxes for any other year. Coving- ton v. First Nat. Bank, 198 U. S. 100, 49 L. ed. 963. That where a controversy has arisen between the lessor and the lessee of certain cars, as to the right of ownership and possession thereof upon the termi- nation of a sublease, and a suit to which the lessor, lessee and sub- lessee were parties has been brought to determine their rights, in which it was adjudged that the lessor owned and had the right of posses- sion of the cars, and compensation for storage of them after the end of his lease was awarded to the sub- lessee; the decree was res adjudi- cata as to the lessee's right to re- cover damages from the sublessee for the detention of the cars after the end of the sublease. O'Hara v. Mobile & O. R. Co., 75 Fed. 130. But see Chicago, R. I. & P. Ry. Co. v. St. Joseph Depot Co., 92 Fed. 22. That where, on the reversal of a foreclosure decree after a sale thereunder, the court below, in its action upon tne mandate, although it reversed the decree in part, con- firmed the sale; the failure of the mortgagor to appeal from such con- firmation rendered it res adjudicaia so that another suit to set it aside could not be maintained. Grape Creek C. Co. v. Farmers' L. & Tr. Co., C. C. A., 80 Fed. 200. That a judgment dismissing a bill to en- force an alleged mechanics' lien, up- on the ground that there was no lien, was a bar to a subsequent suit by the alleged lienor, to redeem property sold in a foreclosure sale. Nat. Foundry & Pipe Works v. O'Conta City Water-Supply, C. C. A., 113 Fed. 793. That where, upon a decree establishing the right to a trademark, it was stipulated that neither the defendant, nor its cus- tomers, should be held liable for past infringements, the complain- ant could not subsequently bring a suit for contributory infringe- ment against one who had pre- viously furnished the former de- fendant cartoons containing the in- 662 ANSWERS. [§ 186 matter in dispute, the former judgment is only conclusive of the matters which were actually decided. 68 "In general, a fringing trademark. Hillside Chem- ical Co. v. Munson & Co., 146 Fed. 198. That a decree in a suit for an infringement of a patent does not prevent a subsequent suit for infringement of the same patent by the same defendant through a new device, although the cause in action therein set forth might have been pleaded by a supplemental bill. T. B. Wood's Sons Co. v. Valley Iron Works, 198 Fed. 869. That the judgment of a Circuit Court of the United States, in an action for the recovery of excessive duties, brought by importers against a collector, was res ad judicata against the im- porters in subsequent proceedings before the Board of General Ap- praisers. U. S. v. J. G. Johnson & Co., 145 Fed. 1018; East Tennes- see Tel. Co. v. Board of Council- men, 190 Fed. 346. As to internal revenue cases, see Johnson v. Her- old, 161 Fed. 563. Questions de- cided upon the issue of a manda- mus to compel the payment of judg- ments were held to be res adjudi- cate upon an application to en- force a later judgment so far as concerned the balances of the form- er judgments therein included, but not as to the other claims on the same. Police Jury of Jefferson County v. U. S. ex rel. Fisk, 60 Fed. 240. For a case where a prior de- cree was held to conclusively estab- lish the sufficiency of maps filed by a railway company, see So. Pac. R. Co. v. V. S., 168 U. S. 1, 42 L. ed. 355. For a case where a decree de- claring stock to be invalid was said to substantially establish the in- validity of the claim to pay which the stock was issued, see Townsend v. St. L. & S. C. & Min. Co., 159 U. S. 21, 40 L. ed. 61. Where a di- rector was one of the defendants to a stockholder's suit, in which the complainant succeeded, and the de- cree directed that the costs and ex- penses of litigation be paid out of the fund that was there recovered; it was held that such decree was conclusive against her right to re- cover in a subsequent suit against such director the proportion thereof which represented her stockholding interest. Singer-Bigger v. Young, C. C. A., 166 Fed. 852. A deficiency judgment taken by a trustee in a foreclosure suit does not prevent the bondholders from suing at law up- on their bonds. Mackay v. Ran- dolph Macon Coal Co., C. C. A., ITS Fed. 881. 68 Last Chance Min. Co. v. Tyler Min. Co., 157 U. S. 683, 39 L. ed. 859; Cromwell v. County of Sac. 94 U. S. 351, 24 L. ed. 195; So. Pac. R. R. Co. v. U. S., 183 U. S. 519, 533, 46 L. ed. 307, 314. It has been held: that a decree of a court of equity dismissing a bill to remove a cloud on title is not so far res ad judicata as to prevent the plain- tiff from succeeding in a subse- quent action of ejectment against the same defendant, although the court of equity in its opinion stated that the title of plaintiff was bad. Phelps v. Harris, 101 U. S. 370, 25 L. ed. 855. But see State v. Buller, 47 Fed. 415. That a judgment in favor of defendants for costs in a replevin suit, where one of the defenses was that plain- tiff owned only on undivided inter- est in the property, was no bar to a subsequent action by plaintiff 186] RES ADJ I'DICATA. 668 judgment is a bar to a second attempt to reach the same result by different medium conchidendi." 69 A decree for a perpetual injunction is not conclusive upon the right to commit the act enjoined under subsequent legislation. 70 The fact that against one of these defendants for the conversion of the same property. Benjamin Schwarz & Sons v. Kenne- dy, 142 Fed. 1027. That a judgment adjudicating that certain parties had no property rights in a rail- road switch on the land of another, but that they were entitled to car service thereupon during the con- tinuance of a contract between the land owner and the railroad, was res adjudicata in a subsequent suit between the parties, or their privies, on the question of their property rights in the switch; but did not affect the question as to whether the right to use the switch had been lost by the abro- gation of the contract between the land owner and the railroad company. Bedford-Bowling Green Stone Co. v. Oman, 134 Fed. 441. That a decree denying the prayer of a petition of intervention, which sought to establish and enforce a landlord's lien for the rent of term- inal facilities, did not preclude the intervenor from filing a second pe- tition asking for the payment of rent, which accrued within six months prior to the receivorship, out of the earnings of the road while in the hands of the receivers. Manhattan Trust Co. v. Sioux City & N. R. Co., 102 Fed. 710. That an order made by a referee on a motion directing a trustee to return to the purchaser of certain casks of whisky sold by the trustee a part of the purchase money on account of a shortage in the quantity, where the amount involved was small, the shortage very large and no defense was made, does not constitute an adjudication of the terms of the contract of sale which will bind the trustee when a much larger claim is filed involving other packages. In re Drumgoole, 140 Fed. 208. That a judgment in favor of a de- fendants in a suit brough against him and others, as partners, is not a bar to a subsequent action on the same contract against him individ- ually, when no statute authorized the affording of such relief in the former action. Millie Iron Min. Co. v. McKinney, C. C. A., 172 Fed. 42. That in the courts of the United States a judgment for the dam- ages caused by a nuisance such as the excessive use of a street by a railroad company does not bar a subsequent action for a contin- uance of the same nuisance. Bal- timore & P. K. Co. v. Fifth Baptist Church, 137 U. S. 568, 34 L. ed. 784. But where a street has been permanently occupied by a raMroad company without compensation to the owners, all the damage thereby caused must be recovered in a sin- gle action. Shepherd v. Baltimore & O. R. Co., 130 U. S. 426, 32 L. ed. 970. 69 TJ. S. v. Dalcour, 203 U. S. 408, 433, 51 L. ed. 248. 251. See U. S. v. California & Oregon Land Co., 192 U. S. 355, 48 L. ed. 476. 70 Vicksburg v. Vicksburg Water- works Co., 206 U. S. 496, 51 L. ed. 1155. As- to the effect of a decree which prescribes the language of a certain statement when enjoining 6G4 ANSWERS. [§ 186 the first judgment or decree in the matter in dispute was too small to permit its review by an appellate court does not pre- vent it from being a bar to a subsequent suit which can be brought up by appeal or error. 71 If, upon the face of the record, anything is left to conjecture as to what was necessarily in- volved and decided, there is no estoppel in it when pleaded, and nothing conclusive in it when offered as evidence ; 72 but, where, on the face of the record, it appeared that the judgment might have proceeded upon one of several grounds, evidence was ad- mitted to show aliunde upon which of these grounds it did proceed, so as to make it effectual as an estoppel. 73 In deter- mining what was decided, the pleadings may be examined. 74 It seems also that the opinion may be considered. 75 The opinion of the court upon a question not within the issues is not binding in subsequent litigation. 76 Questions concluded by a decree in equity, which has been appealed, are determined by the opinion of the appellate court; and the parties are not concluded as to questions left open by such opinion, al- though they were passed upon by the court below. 77 A judgment or decree is binding upon both parties and those in privity with them. Privies are all who have acquired the property in dispute after the judgment or decree, 78 or pend- ing the suit, 79 provided, in the latter case at least, that com- the violation of a trademark, see G. & C. Merriam Co. v. Saalfield, C. C. A.. 190 Fed. 927. 71 Johnson Co. v. Wharton, 1 52 U. S. 252, 38 L. ed. 429. As to the effect of an appeal, see Eastern B. & L. Ass'n v. Welling, 103 Fed. 352. 72 Russell v. Place, 94 U. S. 606, 610, 24 L. ed. 214, 215; McCarty v. Lehigh Valley R. Co., 100 U. S. 110, 120. 40 L. ed. 358, 362. 73 Benjamin Schwarz & Sons v. Kennedy, 142 Fed. 1027. 74 National Foundry & Fipe Works v. Oconto Water-Supply Co., 183 U. S. 216, 46 L. ed. 157; U. S. ex rel. Coffman v. Norfolk & W. Ry. Co., 114 Fed. 6S2, 686. 75 National Foundry c>6 AXSWEKS. [§ 186 when the mortgage was made, 84 but not by judgments in subse- quent suits to which he was not a party. 85 The holders of mort- gage bonds, previously issued, are not bound by a judgment against the mortgagor concerning the liability of its property to taxation. 86 But a decree against the trustee of a mortgage does not affect the same person when claiming as trustee of an- other mortgage without proof that the bondholders are the same. 87 A judgment against a trust company, sued individu- ally, is no estoppel against a suit by it as trustee. 88 A State is not bound by a judgment against one of its officers for the possession of lands, which he claims to hold in its behalf. 89 A homesteader is not bound by a decree against the United States in a suit brought by the Government to cancel a land patent to a railway company. 90 A judgment against a munic- ipal officer binds his successor ii> office, the municipality, and the other officers, so far as their official obligations are con- cerned, 91 and also the citizens and taxpayers. 92 The same effect is given to an order for a mandamus, 93 or for a writ of prohibition. 94 The denial of a writ of prohibition is not an ad- judication that the court sought to be prohibited has jurisdic- tion of the proceeding which it was sought to stop. 94a A muni- 84 Keokuk & Western E. Co. v. Missouri, 152 U. S. 301, 314, 38 L. ed. 450, 450. 85 Dull v. Blackman. 100 U. S. 243. 42 L. ed. 733; Keokuk & West- ern R. Co. v. Missouri, 152 U. S. 301. 314. 38 L. ed. 450, 456; Camp- hell v. Hall, 16 N. Y. 575; Southern B & Tr. Co. v. Folsom. C. C. A., 75 Fed. 920: Columhia Ave. Sav. Fund, Safe Deposit, Title & Trust Co. v. Dawson. 130 Fed. 152. 86 Wicomico County Com'rs v. Bancroft, C. C. A., 135 Fed. 077: Laighton v. City of Carthage, Mil, 175 Fed. 145. 87Compton v. Jesup, C. C. A., 68 Fed. 47. Cf. Carey v. Roosevelt, ('. ('. A.. 102 Fed. 569. 88 Bancroft v. Wicomico County Com'rs. 121 Fed. 874. 89Tindal v. Wesley. 167 U. S. 204, 42 L. ed. 137. See supra, § 105. 90 Brandon v. Ard, 211 U. S. 11, 53 L. ed. 68. 91 Nfew Orleans v. Citizens' Bank, 167 U. S. 371, 389. 42 L. ed. 202, 208; Scotland County v. Hill, 112 U. S. 183, 28 L. ed. 692. Harshman v. Knox Co., 122 17. S. 306. 30 L. ed. 1152: State v. Rainey. 74 Mo. 229: Harmon v. Auditor. 123 111. 122. 5 Am. St. Rep. 502. 92 Mcintosh v. Pittsburg. 112 Fed. 705. 707. 93 Police Jury v. U. S., 60 Fed. 249 : Ransom v. Pierre, C. C. A., 101 Fed. 665: McEvoy v. New York, 56 App. Div. 222. 94 Bank of Ky. v. Stone, C. C. A., S8 Fed. 383. 395. 398. 94a Consolidated Rubber Tire Co. v. Ferguson. C. C. A., 183 Fed. 756. See § 456, infra. § 186] EES AD JUDICATA. 607 cipal corporation is not necessarily bound by a decree in a suit against another municipality, to which officers of the State were parties. 95 An injunction in a taxpayer's suit, which retains a municipal corporation from paying bonds, does not estop a bondholder, who is not a party to the suit. 96 A corpo- ration is not estopped by a decree in a suit to which one of its stockholders was a party. 97 It might be held otherwise, however, when the corporation was formed by the same persons, who defended the former suit, for the purpose of escaping from the effect of the adjudication. 98 The officers of a corporation are estopped by a decree against their com- pany, when they assisted it in the acts therein enjoined, and exclusively managed and controlled the same. 99 It has been held : that stockholders who are not parties to statutory proceedings for the dissolution of a corporation are so far bound by a decree therein making assessments upon the stock, that they cannot dispute the insolvency of the company and the necessity of the assessment ; 10 ° but that they may defend upon the ground that their shares were fully paid, or as to any other question peculiarly affecting their individual lia- bility. 101 The same rule applies to former stockholders, who are also, it has been said, concluded by a judgment finding that there were claims unpaid existing at the time of their trans- fer. 102 Where the stockholders were parties to such a suit or proceeding and were duly served, they are bound by all ques- tions therein determined, 103 and a judgment upon the merits in their favor is a bar to subsequent proceedings in another jurisdiction for the same relief. 104 Stockholders are not bound 95 Bank of Kentucky v. Kentucky, 207 U. S. 258, 52 L. ed. 197. 96 Clagett v. Duluth Tp., C. C. A., 143 Fed. 824. 97 Am. Coat Pad Co. v. Phoenix Pad Co., C. C. A., 113 Fed. G29, 632. Xor by a decree against a president and director of the same in his individual capacity. Brinek- erhorY v. Holland Tr. Co., 159 Fed. 191. 98 See McCabe & Steam Constr. Co. v. Wilson, 209 U. S. 275. 52 L. ed. 78S. 99 Saxlehner v. Fisner, 140 Fed. 938. 100 Hawkins v. Glenn, 131 U. S. 319, 33 L. ed. 184; s. c, 135 U. S. 533, 34 L. ed. 262; Hamilton v. Levison, 198 Fed. 444; Southworth v. Morgan, 205 N. Y. 293. 101 Rood v. Wliorton, 07 Fed. 434. 102 Hamilton v. Selig, 195 Fed. 153. 103 Irvine v. Blackburn, 198 Fed. 360. 104 Converse v. Stewart, 192 Fed. 941. (J 08 ANSWERS. [§ 1S6 by a judgment against their corporation in a suit which was brought after the proceedings to liquidate its assets had be- lt has been held that a judgment establishing the gun 105 exemption of a bank from taxation of its property and from liability to pay a tax upon its stockholders, is not an estoppel against the enforcement of a tax directly against the latter. 106 Where a corporation was sued for the torts of its servants, it was held that a judgment in favor of the servants was a bar to an action against it. 107 A person who succeeded to the de- fendant's rights, previous to the institution of the suit, is not bound by, and cannot claim, the benefit of, the decree therein. 108 In certain cases, persons not parties nor their privies have been held to be bound by 109 and to have the benefit of decrees as estoppels when they defended the suit openly to the knowledge of the adverse party and for the protection of their own inter- ests no provided, at least, that they exercised some control over the management of the defense. 111 The secret payment of the expenses of the defense, 112 or the public filing of a brief upon an appeal, 113 in the first suit, is insufficient; but a party who 105 Sclirader v. Manufacturers' Nat. Bank, 133 U. S. 67, 33 L. ed. 564. Cf. Ward v. Joslin, C. C. A., 105 Fed. 224. 106 New Orleans v. Citizens' Bank, 167 U. S. 371, 380, 402, 42 L. ed. 202. 205, 212. See Union & Plant- ers' Bk. v. Memphis, 189 U. S. 71, 47 L. ed. 712. 107 Williford v. Kansas City, M. & B. R. Co., 154 Fed. 514. 108 Calculagraph Co. v. Automatic Time Stamp Co., 154 Fed. 166. 109 Plumb v. Crane, 123 U. S. 560, 31 L. ed. 268 ; Bank of Ky. v. Stone, 88 Fed. 383. 396; Lane v. Welds, C. C. A.. 99 Fed. 286; Penfield v. C. & A. Potts & Co., C. C. A., 126 Fed. 475; Sacks v. Kupferle, 127 Fed. 569. no Cramer v. Singer Mfg. Co., 93 Fed. 630; Greenwich Ins. Co. v. X. & M. Friedman Co., C. C. A., 142 Fed. 944; Confectioners' Mach. & Mfg. Co. v. Racine Eng. & Mach. Co., 163 Fed. 914. HI Rumford Chemical Works v. Hygienic Chemical Co., 215 U. S. 156, 54 L. fid. 137; Confectioners' Mach. & Mfg. Co. v. Racine Eng. & Mach. Co., 163 Fed. 914. H2 Cramer v. Singer Mfg. Co., 93 Fed. 636; Litchfield v. Goodnow, 123 U. S. 549, 31 L. ed. 199; Hanks Dental Ass'n v. International Tooth Crown Co., C. C. A., 122 Fed. 74; Westinghouse Electric & Mfg. Co. v. Jefferson Electric Light, Heat & Power Co., 135 Fed. 365; Jefferson Electric Light, Heat & Power Co. v. Westinghouse Electric & Mfg. Co., C. C. A.. 139 Fed. 385; Rumford Chemical Works v. Hygienic Chemi- cal Co., 14S Fed. 862, affd 215 U. S. 156. 54 L. ed. 137. nsstryker v. Goodnow, 123 TJ. S. 527, 31 L. ed. 194. § 187] RES AD JUDICATA. G69 intervenes upon an appeal will be estopped by the decree. 114 A decree in a suit brought by one on behalf of those of a class who come in and contribute to the expense of the suit does not bind the rest unless they come in and contribute. 115 It has been said that the rule is otherwise in a tax-payer's suit. 116 Where joint defendants appeared and answered separately by different attorneys and separate judgments were rendered as to each, it was held that, in the absence of cross pleadings, a judgment against or in favor of either created no estoppel be- tween them in a subsequent action for contribution. 117 § 187. Form of defense of res judicata. In pleading a judgment or decree, it is not necessary to set it forth, nor the proceedings upon w T hich it was founded, at length, 1 but so much of the decree and pleadings should be averred as will show that the same point was in issue, 2 together with the commencement and service of process in the former suit, its general character and object, the relief therein prayed, and sufficient averments of the facts to show that there is an identity of subject-matter. 3 In case of such a plea,- under the former practice, the court might require that the decree be pleaded at length, or, if the plea set up matter of record in the same court, that the record be shown before the plaintiff is required to take action upon the plea. 4 Where a decree in a former suit is introduced in evidence on stipulation without the objection that it has not been properly pleaded, it will be given full effect as a bar. 5 A prior decree can usually be put in evidence without hav- 114 Martin v. Peoples' Bank, 115 U7 City of Owensboro v. Westing- Fed. 226. house. Church, Kerr & Co., C. C. A., us Wabash R. R. Co. v. Adelbert 165 Fed. 3S5. College, 208 U. S. 38, 58, 52 L. ed. § 187. 1 Mcintosh v. Pittsburg, 379, 388; Compton v. Jesup, C. C. 112 Fed. 705. A.. 6S Fed. 263, 285, (both these 2Ri car do v. Garcias. 12 CI. & cases relate to the same bondhold- F. 368; Story's Eq. PL, § 783; ers' suit); Hart v. Globe Ins. Co., Mound City Co. v. Castleman, J7I 113 Fed. 309 (a creditors' suit) ; Fed. 520. Jackson Co. v. Gardiner Inv. Co., C. 3 Mound City Co. v. Castleman. C. A., 200 Fed. 113, 117. (a bill filed 171 Fed. 520. by stockholders, which was not ex- 4 Emma S. M. Co. v. Emma S. pressly tiled on behalf of the M. Co. of X. Y., 1 Fed. 39. others.) See supra, §§ 114-116. 5 Tbid. 116 Gamble v. City of San Diego, 79 Fed. 487. 070 ANSWERS. [§ 187 ing been pleaded where the pleading of the party sets up the facts which were adjudicated by the decree; and the decree is then conclusive evidence of such facts. 6 It has been held that where a defendant does not raise the objection in the court of first instance, he waives the defense that two separate actions cannot be brought upon a single demand. 7 It has been said that by pleading a defense against a former decree a party waives his right to claim an estoppel under the same. 8 But offering evidence of such facts while the former decree was merely interlocutory does not waive the right to claim that it is a bar after it has ripened into a final decree. 9 The fact that a decree was interlocutory when the suit was brought does not prevent it from becoming a bar as soon as a final decree to the same effect has been entered. 10 Where an interlocutory decree did not become final until after an interlocutory decree had been entered in a subsequent suit; it was held: that, if presented before the final decree in the latter, it was conclusive upon the merits of that suit. 11 A person is not chargeable with laches in presenting a prior adjudication as a bar, where it was set up, in a petition filed before the final decree, and within a month after the dismissal by the Supreme Court of the United States of a petition for a writ of certiorari to review the same. 12 Where the adjudication, upon which the defendant relies, is made subsequent to the defendant's answer, he should regularly plead the same by a supplemental answer; 13 but it may be considered when raised by an amended answer, 14 or in a petition. 15 A decree based, in whole or in part, upon a plea of res adjudicata, will be reversed upon appeal ; where, subse- 6 David Bradley Mfg. Co. v. Eagle Mfg. Co., 58 Fed. 721 ; South- on. Pac. R. Co. v. U. S., 168 U. S. 1, 57. 42 L. ed. 355. 379. i Southern Pac. Ry. Co. v. U. S., C. ('. A., 18G Fed. 737. 8 Mack v. Levy, 60 Fed. 751. 9 David Bradley Mfg. Co. v. Ea- gle Mfg. Co., 57 Fed. 980; Bredin v. National Metal Weatherstrip Co., 147 Fed. 741; David Bradley Mfg. Co. v. Eagle Mfg. Co.. C. C. A.. 57 Fed. 980. 10 David Bradley Mfg. Co. v. Ea- gle Mfg. Co., 57 Fed. 980; Bredin v. National Metal Weatherstrip Co., 147 Fed. 741. ll Penfield v. C. & A. Potts & Co., C. C. A., 126 Fed. 475. l2Penlield v. C. & A. Potts & Co.. C. C. A., 126 Fed. 475. 13 Warren Featherhone Co. v. De Camp, 154 Fed. 198; infra, § 195. 14 See infra, §§ 212-214. 15 Penfield v. ('. & A. Potts & Co., C. C. A., 126 Fed. 475. 188] PATENT CASES. G71 quent to its entry, the judgment held to constitute an estoppel has been reversed; and the appellate court in the second suit will take judicial notice of such reversal; 16 even when it was by a State court ; 17 but where the judgment, as first rendered, was in accordance with the law of the State, as declared by its highest court, and the reversal overruled former decisions, a Federal court refused, upon a bill to review, to set aside its decree, founded upon res ad judicata™ although it is no ground for reversal that, in subsequent litigation, the State court has overruled the doctrine which was the foundation of the decision that is pleaded. 19 It has been held: that a judgment of the Supreme Court of a State is no bar to a subsequent suit in a Circuit Court of the United States, where it has been taken by writ of error to the Suprenie Court of the United States and is there pending undetermined. § 188. Defenses peculiar to patent cases. The Kevised Statutes provide: "In any action for infringement the defend- ant may plead the general issue, and having given notice in writing to the plaintiff or his attorney, thirty days before, may prove on trial any one or more of the following matters: First, that for the purpose of deceiving the public the descrip- tion and specification filed by the patentee in the Patent Office was made to contain less than the whole truth relative to his invention or discovery, or more than is necessary to produce the desired effect; or, second, that he had surreptitiously or unjustly obtained the patent for that which was in fact in- vented by another, who was using reasonable diligence in adapt- ing and perfecting the same; or, third, that it had been patented or described in some printed publication prior to his supposed invention or discovery thereof ; or, fourth, that he was not the originator and first inventor or discoverer of any ma- terial and substantial part of the thing patented; or, fifth, that it had been in public use" or on sale in this country for 16 Ransom v. St. Pierre, C. C. A., "Board of Councilmen v. De- 1(11 Fed. 665; Empire State-Idaho posit Bank, C. C. A.. 124 Fed. 18. Mining & Developing Co. v. Bunker 19 Virginia-Carolina Chemical Co. Hill & S. Mining & Concentrating v. Kirven, 215 V. S. 252, 54 L. ed. Co., C. C. A.. 121 Fed. 073; Hen- 179. nessy v. Tacoma Smelting & Relin- 20 Eastern B'g & Loan Ass'n v. ing Co.. C. C. A., 129 Fed. 40. Welling, 103 Fed. 352. n Ibid. H72 AisrswEBS. [§ 133 more than two rears before his application for a patent, or had been abandoned to the public. And in notices as to proof of previous invention, knowledge or use of the thing patented, the defendant shall state the names of patentees and the dates of their patents, and when granted,, and the names and resi- dences of the persons alleged to have invented, or to have had the prior knowledge of the thing patented, and where and by whom it had been used; and if any one or more of the special matters alleged shall be found for the defendant, judgment shall be rendered for him with costs. And the like defenses may be pleaded in any suit in equity for relief against an alleged infringement ; and proofs of the same may be given upon like notice in the answer of the defendant, and with the like effect." 1 A denial in the answer in a suit for infringement of a patent that the patentee was the first inventor of the im- provement described in the patent named in the bill, specify- ing it by number, is sufficient to raise the issue of invention, al- though the title of the patent as stated in the answer may be technically inaccurate. 2 Where a bill alleged past and present infringement, and that, defendant then had on hand a large number of infringing machines which it was offering for sale, it was held : that an answer which admitted that defend- ant had previously sold a machine which had been adjudged an infringement, but alleged that it had ceased selling the same "long prior" to the beginning of the suit and returned the parts on hand to the manufacturer, and since •"that time" had sold no machines of that character, was indefinite and evasive and not responsive, and must be treated as admitting the aver- ment that defendant had infringing machines on hand which it was offerino- for sale. 3 When defendants avoided answerino* specific interrogatories concerning a charged infringement, but merely denied the use of any machinery "in violation and in- fringement of any rights of the plaintiff, or that they are using, or have made, or sold, or used any machines not protected or covered by the proviso in the act of Congress ;" it was said that they thereby presumptively admitted the infringement § ]S8. 1U. S. R. S., § 4920. Cf. 2 Robinson v. American Car & Anderson v. Miller, 129 U. S. 70, Foundry Co., C. C. A., 135 Fed. 693. 32 L. ed. 635. 3 Deere & Webber Co. v. Dowage- iac Mfg. Co., C. C. A., 153 Fed. 177. 188] PATENT CASES. 673 charged. 4 The notice need not be under oath, and a consent to an order that the answer be considered as amended by the in- sertion of such defense and notice is a waiver of any further oath. 5 Under this statute it has been held that no evidence can be admitted in support of any of these defenses unless it has been properly pleaded and the requisite notice has been given to the complainant ; 6 and the complainant's patent is then prima facie evidence of the priority of his invention; 7 but that the respondent, after pleading these defenses or some of them, with the names of such of the persons therein referred to as he knows, may also plead a general allegation "that the same had been previously invented and known and used by many other persons whose names are unknown to the respond- ent, which, when known, the respondent prays leave to insert and set forth in the answer." 8 Upon the subsequent discov- ery of any such persons, testimony concerning them may be taken, and leave obtained from the court to insert their names in the answer by amendment nunc pro tunc. An order to this effect may be obtained before or after the testimony has been taken. 9 An averment that a patent "was obtained upon false and fraudulent representations by the plaintiff, or some of them, made to the Commissioner of Patents, and is wholly void at law," is too uncertain to be sufficient to constitute a defense. 10 In pleading prior patents, it is sufficient to give their number 4Agawam Co. v. Jordan. 7 Wall. 583, 609, 19 L. ed. 177, 184. An admission in an answer that the defendant had made locks of the kind described in the patent sued upon, "is satisfied by assuming that the smallest number of locks were made consistent with the use of that word in the plural, and with the use by the defendants of any part of the patent which is valid." See Miller, J., in Jones v. More- head. ] Wall. 155, 165, 17 L. ed. C62, 004. But compare Troy I. & N. Factory v. Corning, Blatchf. 328, 330. 337. 5 Campbell v. Mayor of X. Y., 45 Ted. 243. 6 Teese v. Huntington, 23 How. Fed. Prac. Vol. I.— 43. 2, 10 L. ed. 479; Agawam Co. v. Jordan, 7 Wall. 583, 19 L. ed. 177; Blanchard v. Putnam, 8 Wall. 420, 19 L. ed. 433; Bates v. Coe, 98 U. S. 31, 25 L. ed. 68: Pitts v. Ed- monds, 2 Fisher, 52, 54; Salaman- der Co. v. Haven, 3 Dill. 131; Jen- nings v. Pierce, 15 Blatchf. 42; Williams v. Boston & A. R. Co., 17 Blatchf. 21; Decker v. Grote. 10 Blatchf. 331 ; Morton v. Llewellyn, C. C. A.. 104 Fed. 693. 7 Fay v. Mason, 120 Fed. 500. 8 Roemer v. Simon, 95 U. S. 214, 220, 24 L. ed. 384, 386; Brown v. Hall, 6 Blatchf. 405. 9 Ibid. 10 Clark v. Scott, 5 Fisher, 245. 674 ANSWERS. [§ 188 and date and the name of the patentee. 11 In pleading prior publications, they must be clearly identified or a copy thereof must be filed. 12 In pleading prior use, the time and place there- of must be set forth with such directness and certainty as will enable complainant to go upon the ground and determine what acts there done may be relied on. 13 The omission of the place of the use makes the notice fatally defective. 14 But a notice is not defective for failure to state the particular place within a specified city at which the defendant proposes to prove the previous use. 15 Evidence stated in a notice to be proposed for one purpose cannot be used for another. 16 The defenses that complainant was not the the original inventor and that the thing patented had been in public use or on sale for more than two years before his application, or had been abandoned, are distinct from each other, and if the defendant relies upon both he must give notice accordingly. 17 It seems that when a pre- vious patent has not been referred to in an answer, such patent may still be proved, as evidence of a prior use of the invention, which has been properly pleaded, 18 to show the state of the art at the date of the complainant's alleged invention, 19 and to aid in the proper construction of the patent in suit. 20 The state of the art can always be pleaded without notice. 21 It has been held that a witness may be asked whether the defendant's machine is similar to a model of the plaintiff's patented ma- chine, although no notice of such testimony has been given. 22 The defense of want of patentability need not be pleaded in the answer. 23 It is unsettled whether the defense of insufficient 11 Corrugated Metal Co. v. Patti- son, 197 Fed. 577. 12 Ibid. 13 Tbid. 14 Scbenck v. Diamond Match Co., C. C. A., 77 Fed. 208; s. c, 71 Fed. 521,. 15 Wise v. Allis. 9 Wall. 737, 19 L. ed. 784. 16 Pennoek v. Dialogue, 4 Wash. 538: s. c. 2 Pet. 1, 7 L. ed. 327. 17 Meyers v. Busby, 32 Fed. 670. 18 Atlantic Works v. Brady, 107 U. S. 192, 27 L. ed. 438. But see Parks v. Booth, 102 I". S. 90. 105, 26 L. ed. 54, 57 ; Kennedy v. Solar Eef. Co., 69 Fed. -715. 19 Am. S. Co. v. Hogg, 1 Holmes, 133; s. c, 6 Fisher, 67: Stevenson v. Magowan, 31 Fed. 824: Morton v. Llewellyn, C. C. A.. 164 Fed. 693. 20 Morton v. Llewellyn, C. C. A., 164 Fed. 693. 21 Vance v. Campbell, 1 Black, 427. 17 L. ed. 168; Brown v. Piper, 9] U. S. 37. 23 L. ed. 200. 22 Evans v. Hettick. 7 Wheat. 453, 469. 5 L. ed. 496, 500. 23 May v. Juneau County, 137 U. S. 408, 34 L. ed. 729; Stevenson § 188] PATENT CASKS. 075 description can be set up without alleging an intent to deceive the public. 24 The statute requires notice of the names and residences of the inventors and of those who have the prior knowledge of the thing- patented, not the names of the wit- nesses. 25 Notice of the time when the person named possessed a knowledge or use of the invention is not required. 26 The notice is not a pleading and should be served upon the plain- tiff. 27 It is the better practice to file the notice with the plead- v. Magowan, 31 Fed. 824; Wills v. Scranton Cold Storage & Warehouse Co., C. C. A., 155 Fed. 181. It has been said concerning the defense of want of novelty: "Where the thing patented is an entirety, consisting of a separate device or of a single combination of old elements incapa- ble of division or separate use, the respondent cannot make good the defense in question by proving that a part of the entire invention is found in one prior patent, printed publication, or machine, and an- other part in another, and so on indefinitely, and from the whole or any given number expect the court to determine the issue of novelty adversely to the complainant." . . . "Defenses of the kind, if the tiling patented is an entirety, in- capable of division or separate use, must be addressed to the invention, and not to a part of it, or to one or more claims of the patent, of less than the entire invention. More than one patent may be in- cluded in one suit, and more than one invention may be secured in the same patent; in which cases the several defenses may be made to each patent in the suit, and to each invention, to which the charge of infringement relates." Mr. Justice Clifford, in Parks v. Booth, 102 U. S. 96, 104, 26 L. ed. 54. 57; citing Bates v. Coe, 98 U. S. 31, 25 L. ed. 68. It has been said that a defense charging that the original patentee "fraudulently and surreptitiously obtained the patent for that which he well knew was invented by an- other, unaccompanied by the fur- ther allegation that the alleged first inventor was at the time using rea- sonable diligence in adapting and perfecting the invention, is not suf- ficient to defeat the patent, and constitutes no defense to the charge of infringement." Clifford. J., in Agawam Co. v. Jordan, 7 Wall. 583, 597, 19 L. ed. 177, 180. 24 Loom Co. v. Higgins, 105 U. S. 580, 5S8, 589, 26 L. ed. 1177, 1180, 1181; Grant v. Raymond, 6 Pet. 218, 8 L. ed. 376; Whittemore v. Cutter, 1 Gall. 429; Lowell v. Lewis, 1 Mason, 182; Gray v. James, Pet. C. C. 394. 25 Woodbury P. Mach. Co. v. Keith, 101 U. S. 479, 25 L. ed. 939; Roemer v. Simon, 95 U. S. 214, 24 L. ed. 384. 26 Phillips v. Page, 24 How. 164, 16 L. ed. 639. 27 Cottier v. Stimson, 20 Fed. 906. See. also, 10 Saw. 212; Henry v. U. S.. 22 Ct. CI. 75. The defend- ant may also plead his defense spe- cially if he so desires. Cottier v. Stimson, 20 Fed. 906. 907: Evans v. Eaton, 3 Wheat. 454: Grant v. Ray- mond, 6 Pet. 218; Phillips v. Comb- stock, 4 McLean. 525 ; Day v. X. E. C. S. Co., 3 Blatchf. 179. Tn such a case it seems that no notice may be 676 ANSWERS. [§ 188 ings after it has been served. 28 The pendency of a previous suit for the infringement of certain claims of a patent, specified by number in the bill, is not a bar to a second suit in the same court, between the same parties, for an infringement of different claims of the same patent, also specified in the latter bill, where the two sets of claims cover' distinct and separate devices in the same machine. 29 When, after a bill has been filed to re- strain the infringement of a patent and to obtain an account of profits, the defendant continues his infringements, the pen- dencv of the first is no objection to a second bill seeking an in- junction, and an account founded upon the subsequent infringe- ments. 30 And notwithstanding a decree for an injunction in the former suit, a decree for an injunction and account was granted in that for the subsequent infringements, the second injunction being useless except to support the equitable juris- diction. 31 The pendency of a suit for the infringement of a patent in one district is no bar to a suit against the same de- fendant for the infringement of the same patent in another district ; but, in the latter suit, the court will only consider and adjudicate upon alleged infringements within its district if the defendant resides or has made a general appearance in the former. 32 It has been held that defenses impugning the valid- ity of complainant's patent 33 and the defense of non-infringe- ment, 34 are not waived by a further defense of license. It was held at common law that the defendant might plead the gen- eral issue, and also a special plea that the combination covered given. Cottier v. Stimson, 20 Fed. 906, 907; Evans v. Eaton, 3 Wheat. 454: Grant v. Raymond. 6 Pet. 218; Phillips v. Combstoek. 4 McLean, 525; Day v. X. E. C. S. Co.. 3 Blatchf. 179. A plea stricken out by the court is not a sufficient legal notice. Silsby v. Foote, 1 Blatchf. 44.1; s. c, 14 How. 18. No demur- rer lies to a notice. Henry v. U. S., 22 Ct. CI. 75. A defect in the notice may be remedied by a second notice without leave of the court. Teese v. Huntingdon, 23 How. 2. 10. 28 Teese v. Huntington, 23 How. 2, 10, 16 L. ed. 479, 482. 29 Bates Mach. Co. v. Wm. A. Force &. Co., 139 Fed. 74(1. 30 Wheeler v. McCormick, 8 Blatchf. 2G7 ; Roemer v. Newman, 19 Fed. 98; Higby v. Columbia R Co., 18 Fed. 601. Contra, Gold & Stock Tel. Co. v. Pearce, 19 Fed 419*. 31 Horton v. X. Y. C. & H. R. R Co.. 0.3 Fed. 897. 32 Warren Bros. Co. v. City of Montgomery. 172 Fed. 414. 33 Nat. Mfg. Co. v. Meyers, 7 Fed. 355. 34 Niagara Fire Extinguisher Co. v. Hibbard, C. C. A., 179 Fed. 844. 40 § 188] PATENT CASES. 677 by the patent was not an invention, and a further plea that the invention was not patentable. 35 Ownership or part-owner- ship by defendant of the patent which is the foundation of the bill, 36 a license, 37 and estoppel, 38 are affirmative defenses which must be pleaded. But where the defendant has pleaded a patent of prior date to that alleged in the bill and the com- plainant undertakes to carry the date of his invention further back without having so alleged in his pleading, the defendant may, it has been held, meet such proof by the defense of laches or abandonment without pleading the same. 39 It has been held : that the Federal statute of limitations, six years, to the recov erv of profits or damages for the infringement of a patent need not be pleaded in the answer, nor need it be negatived in the bill, 41 but it is a defense as to which the defendant bears the burden of proof ; 42 that the plaintiff has the burden of proof as to infringement, even when the defendant pleads a license as well as non-infringement ; 43 that where the answer admit? that defendant, during the time alleged in the bill, had made and used articles conforming to the claims of the patent, no further proof on the issue of infringement is required from complainant, 44 and that the defendant has the burden of prov- 35Brickill v. Hartford. 57 Fed. « Ibid. The fact that the owner 216. It has been said that "the of a patent permitted a suit for respondent cannot set up as a de- its infringement to be dismissed fense that if complainant's patent without a trial on the merits is not be so construed aas to cover the such laches .as to bar a second suit machine made and sold by him, against the same defendant. Wels- then the machine embraced in said bach Light Co. v. Cohn, ]S1 Fed. patent was known and used prior 322. to the invention thereof by the pat- 43 Niagara Fire Extinguisher Co. eritee." Graham v. Mason, 4 Cliff. v. Hibbard, C. C. A., 179 Fed. 844. 88. 44 Fox v. Knickerbocker F.ngrav- 36Puetz v. Bransford, 31 Fed. ing Co.. C. C. A., 165 Fed. 442. In 45S. a suit for infringement against the 37 Watson v. Smith, 7 Fed. 350; Hygienic Chemical Company of New Puetz v. Bransford, 31 Fed. 458. York, where it was shown that de- 38 Pennsylvania Co. v. Cole, 132 fendant was a selling company only. Fed. 668; supra, § 183. while the Hygienic Chemical Com- 39 Curtain Supply Co. v. Nat. pany of New Jersey was a manu- Lock Washer Co.. 174 Fed. 45. factoring company only, the testi- 40 29 St. at L. 694: supra, § 180. mony of a witness that he pur- 41 Peters v. Hanger, C. C. A., 134 chased an article shown to he an Fed. 586. infringement from the "' Hygienic 678 answebs. [§ 188 ing the defenses of anticipation and prior nse beyond a rea- sonable doubt. 45 A judgment in an action for royalties is an estoppel against the same defendant in a suit for royalties accruing subsequently, when he pleads a defense different from that set up in the first suit. 46 A decree for a perpetual injunc- tion and for damages and profits in a patent case is an estoppel against a second suit for damages and profits on account of in- fringements committed during the period covered by the first suit of which no evidence was given nor recovery prayed. 47 But it does not prevent a second perpetual injunction against the. same acts to support a decree for an accounting of profits caused by infringements subsequent to the first suit. 48 A decree in a suit to enjoin, the infringement of a patent which declared that the same was valid, binds upon this question the same defendant in a second suit to enjoin similar infringements, although the only issue raised by the pleadings in the former suit related to the title. 49 But where apparently there was no such finding in the first decree, and the only question then lit- igated had been the defendants' claim of a license, it was not estopped from contesting the validity of the patent in a second suit. 50 A decree enjoining the infringement of a patent, upon a bill alleging that the defendant claimed the right to make the articles infringed under the authority of another patent, which, however, was not pleaded in the defendant's answer, did not estop parties in privity with the defendants from setting up the latter patent as a defense to a subsequent suit upon the same patent of the plaintiffs, where the former decree did not expressly adjudicate the validity of the plain- tiffs' patent. 51 Where the owner of a patent had sued a manu- Chemical Company" in New York 48 Ibid. is sufficient, prima facie, to estab- 49 Empire S. N. Co. v. American lish infringement by the defendant. S. L. B. Co., C. C. A., 74 Fed. 864. Rumford Chemical Works v. Hy- 50 Lublin v. Stewart H. & M. Co., gienic Chemical Co., C. C. A., 159 75 Fed. 294. Fed. 43G. 51 Leonard v. Simplex El. Heat- 45 Beckwith v. Malleable Iron ing Co., 145 Fed. 946. See a note Range Co., 174 Fed. 1001. to Westinghouse El. & Mfg. Co. v. 46 Johnson Co. v. Wharton, 152 Stanley Instrument Co., 68 C. C. A. I". S. 252, 38 L. ed. 429. 541. 47Horton v. X. Y. C. & H. R. R. Co., 63 Fed. 897. § 188] PATENT CASES. 679 facturer for infringement, in which suit the Cirenit Conrt of Appeals of one circuit had adjudicated in favor of the defend- ant ; and he subsequently, in a suit in another circuit against the seller of. a similar article, not made by the former defend- ant, obtained an adjudication in his favor by the Circuit Court of Appeals ; it was held : that the defendant in the first suit might enjoin him from bringing similar suits in any part of the United States against any of that defendant's customers ; al- though that defendant had assumed the defense of the second suit. 52 But such an injunction will not lie against an exclusive licensee in another circuit when he acquired his rights before the first decision was rendered. 53 A decree for a permanent injunction in one circuit, which excepted therefrom a prohibi- tion against the defendant selling infringing articles made in another, where the patent had been held to be invalid, was held to be not an adjudication of the defendant's right to sell such articles in the latter circuit, but merely a reservation of the question until it should arise in a proper case. 54 A gen- eral verdict of a jury in an action at common law awarding damages for the infringement of a patent establishes the valid- ity thereof as between the parties, but does not disclose the con- struction placed upon it by the jury, nor what claims in the suit were held to be valid. 55 It does not, consequently, afford a basis upon which a court of equity in a subsequent suit between the same parties can, without further evidence, determine the question of infringement by a different device. 56 Since the owner of a patent cannot split up his cause of action, a judg- ment for damages in an action at law, although conclusive in his favor on the questions of validity and infringement, is a bar to the right to an accounting in a subsequent suit in equity against the same defendant for other sales made prior to the commencement of the action at law. 57 A person who has as- sumed and conducted the defense of a patent case is bound by the decree, although not a party to the same. 58 A corporation 52Ressler v. Eldred, 206 U. S. sit Development Co., 197 Fed. 563. 285, 51 L. ed. 1065. See § 186, 56 ibid. supra, § 269, infra. 57 Panoulais V. Xat. Equipment MHurd v. James Goold Co., 197 Co., 198 Fed. 493. Fed. 756. 58 Rumford Chemical ^Vorks v. 541-Iurd v. Seim, 189 Fed. 591. Hygienic Chemical Co., C. C. A., 55 Cheatham El. S. D. Co. v. Tran- 159 Fed. 436; Confectioners' Mach. 680 ANSWERS. [§ 188 which, pending the suit, acquires the subject-matter of the patent in suit, is estopped by the decree therein; 59 and where his assignee was successful, the decree is an estoppel in his favor against the opposite party or his privies. 60 * Purchasers of articles subsequent to a decree in a patent suit are not privies to the decree, nor protected by the same. 61 A decree dismissing a bill in equity upon the merits for an infringement of a pat- ent is a bar to a subsequent action at law 62 or suit in equity for an infringement of the same patent by the same device, 63 notwithstanding the fact that the complainant, by notice, re- stricted his proofs and contention to certain specified claims, which are not in issue in the subsequent suit. 64 A decree sus- taining the validity of a patent awarding a permanent in- junction against infringement and directing an accounting, is interlocutory-, and is not final, and is not conclusive of the validity of the patent in a subsequent suit between the parties, 65 although it has been affirmed by the Circuit Court of Appeals. 66 A plea to a bill for an injunction to restrain the infringement of a reissued patent, which set up that the claim had been unlawfully expanded so as to embrace subsequent improve- ments covered by later patents, was held good. 67 A plea to a bill filed under section 4918 of the Kevised Statutes against the owner of a patent interfering with that of the complainant, which set up that-the invention described in the complainant's patent was described in a previous English patent published in the United States, and filed in the Patent Office here before & Mfg. Co. v. Racine Eng. & Macli. Co., 163 Fed. 914; Bryant El. Co. v. Marshall, 169 Fed. 426, aff'd. C. C. A., 185 Fed. 499. See supra, § 186. 59 Confectioners' Mach. & Mfg. Co. v. Racine Eng. & Mach. Co., 163 Fed. 914. 60 Confectioners' Mach. & Mfg. Co. v. Racine Eng. & Mach. Co., 163 Fed. 914. eiHurd v. Seim, 189 Fed. 591. 62 Robinson v. Am. Car & Foun- dry Co., C. C. A., 159 Fed. 131. 63 Marshall v. Bryant El. Co., C. C. A., 185 Fed. 499; affirming Bry- ant El. Co. v. Marshall, 169 Fed. 426. 64 Marshall v. Bryant El. Co., C. C. A., 185 Fed. 499; affirming Bry- ant El. Co. v. Marshall, 169 Fed. 426. 65 Australian Knitting Co. v. Gormly, 138 Fed. 92; Whittemore Bros. & Co. v. World Polish Mfg. Co., 159 Fed. 480. 66 Australian Knitting Co. v. Gormly, 138 Fed. 92. 67Hubbell v. De Land, 14 Fed. 471. § 190] FRAME OF ANSWER. C>1 the issue of the complainant's patent, was held bad and over- ruled.* 8 , § 189. Proceedings to compel answer. By the Equity Rules of 1012, if the defendant fails to file his answer or other defense to the bill in the clerk's office within the time named in the subpoena, "the plaintiff may, at his election, take an order as of course that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte." 1 "Averments other than of value or amount of damage, if not denied, shall be deemed confessed, except as against an infant, lunatic or other person non compos and not under guardianship." 2 They con- tain no other provision for proceedings to compel an answer. By the rules of 1S42: "The plaintiff, if he requires any dis- covery or answer to enable him to obtain a proper decree, shall be entitled to process of attachment against the defendant to compel an answer, and the defendant shall not, when arrested upon such process, be discharged therefrom, unless upon filing his answer, or otherwise complying with such order as the court or a judge thereof may direct, as to pleading to or fully answer- ing the bill, within a period to be fixed by the court or judge, and undertaking to speed the cause." 3 The ancient practice upon the subject was substantially the same. If the defendant did not file an answer within due time, he was in contempt and an attachment was issued against him. 4 If the sheriff was unable to attach the defendant and returned accordingly non est inventus, a commission of rebellion would issue. 5 If that proved insufficient, it was followed by a writ of sequestration. 6 § 190. Frame of answer. An answer should be entitled in the cause, so as to agree with the names of the parties as they appear in the bill at the time the answer is filed. 1 It seems that the defendant may not correct or alter the names of the parties as they appear in the bill, and that if there is a mistake 68 Pentlarge v. Pentlarge, 19 Fed. 5 Boudinot v. Symmes, Wall. C. 817; s. c, 22 Fed. 412. But see C. 139; Smith's Ch. Pr.. (2d ed., Foster v. Lindsay. 3 Dill. 126, 131. 1837), 183, 18G. § 189. lEq. Rule ]6. 6 Smith's Ch. Pr., (Second ed. 2 Kq. Pule 30. 1837) 183-188; Daniell's Ch. Pr., 3 E<|. Rule 18 of 1842. ( First Am. ed.) f)43; Davis v. Ham- * Matter of Yanderbilt. 4 J. Ch. mond, 5 Sim. 9. (N. Y.) 58. See Daniell's Ch. Pr., § 190. 1 Daniell's Ch. Pr. (5th (First Am. ed.) 538. Am. ed.) 731. 682 ANSWERS. [§ 190 he must correct it in the part following the title of the cause ; thus, "The answer of the defendants, the mayor, aldermen, and commonalty in the bill called the mayor, aldermen, and cit- izens of the city of INTew York." 2 The answer should begin substantially thus: "The answer of John Aber, one of the above-named defendants, to the bill of complaint of the above- named plaintiff;" if the bill has been amended after answer, "to the amended bill of complaint." 3 If two or more defend- ants join in the same answer, it usually begins, "The joint and several answer;" 4 unless they are husband and wife, when it is "The joint answer;" 5 but an answer is not defective if put in by several as a joint answer merely. 6 When discovery is required, all of the defendants who join in an answer must swear to the same. 7 When the same solicitor is employed for two or more defendants, and separate answers are filed, or other proceedings had by two or more defendants separately, costs are not allowed for such separate answers or other pro- ceedings, unless a master, upon reference to him, certifies that such separate answers and other proceedings were necessary or proper, and ought not to have been joined together. 8 A female defendant who has married since the filing of the bill, usually begins : "The answer of John Aber and Anna, his wife, lately in the bill called Anna Brown, spinster," or widow, as the case may be. 9 A title, "the several answer of John Peck, Esq., one of the defendants to the bill of complaint of Anna Baines, alias Green, assuming to herself the name of Anna Peck, as pretended wife of John Peck, Esq., deceased, and of Anna Maria Green, assuming to herself the name of Anna Maria Peck, as daughter of the said John Peck, Esq., deceased," was held scandalous. 10 An answer by a person defending by guardian or next friend should state that fact: "James Fifield by Edward Jennings, 2 Atty. Gen. v. Worcester Corp. 6 Davis v. Davidson, 4 McLean, 1 C. P. Cooper, 18; DanielPs Ch. 136. Pr. (5th Am. ed.) 731. 7 Bailey W. M. Co. v. Young, 12 3Daniell's Ch. Pr. (5th Am. ed.) Rlatchf. 190. 731; Rigby v. Rigby, 9 Beav. 3H, SRule 62. 313. 9 DanielPs Ch. Pr. (5th Am. ed.) 4 Davis v. Davidson, 4 McLean, 731. 136. 10 Peck v. Peck, Moseley, 45. SDaniell's Ch. Pr. ( 3th Am. ed.) 731. 191] SIGNATURE AND SEAL. 683 his next friend/' u Xext followed formerly a clause reserving to the defendant any and all advantages that might lie taken by exception to the bill. 12 This was always useless 13 and is forbid- den by the Equity Rules of 1912. 14 Then conies the substantive part of the answer, setting up the matters of affirmative defense and giving the discovery required. 15 Next should be inserted any counter-claim or set-off upon which the defendant relies. 16 It is the safer practice to specifically describe the matter thus pleaded as a counter-claim or set-off, as the case may be. 1 ' The answer usually closes with a general traverse inserted out of abundant caution, denvino- the unlawful combination charged in the bill, and all other matters therein contained. 18 In the answers of infants and other persons under a disability, the reservation and general traverse have always been deemed properly granted. 19 The answer in such cases generally is that the infant knows nothing of the matter, and therefore neither admits nor denies the charges, but leaves the plaintiff to prove them as he shall be advised, and throws himself on the protec- tion of the court. 20 But if such a defendant has any substantive defense, he should plead the same. 21 § 191. Signature and seal to answer. The answer must be signed individually by one or more solicitors of record. 1 If the former practice is followed, an answer must be signed by the defendant, making it; even, it seems, when an answer under oath has been waived, 2 unless he answer by guardian, when the 11 Darnell's Ch. Pr. (5th Am. ed.) 731. 12 Mitford's PL, ch. 2, § 2, part 3; Story's Eq. PL, § 870. •13 Story's Eq. PL, § 870; Rules 39, 44. 13a Eq. Pule 30. "Mitford's PL. cli. 2, § 2, part 3. 14a See Eq. Rule 30. "b Bates v. Rosekrans, 37 X. Y. 409; Ward v. Conegys, 2 How. Pr. N, S. (N. Y.) 428: Burke v. Thorne, 44 ftirb. (X. Y.I 303; Burral v. De Groot, 5 Duer (X. Y.) 379; Equita- ble Life Ass'n. v. Cuyler, 75 X. Y. 511, aflirming 12 Hun, 247. But see Acer v. Hotchkiss, 97 X. Y. 395. • 15 Mitford's PI., ch; 2, § 2, part 3, Story's Eq. PI., § 870. 16 Story's Eq. PL, § 871. 17 Chancellor Kent in Mills v. Dennis. 3 J. Ch. (X. Y.) 367, 368. 18 Holden v. Hearn, 1 Beav. 445, 455; Lane v. Hardwicke, 9 Lea v. 148, 149. § 191. lEq. Rule 24. 2 Story's Eq. PL, § 875; Davis v. Davidson, 4 McLean. 130; Bayley v. De Walkiers, 10 Yes. 441 ; Fulton Bank v. Beach, 2 Paige (X. Y.i, 307; Denison v. Bassford, 7 Pais*! (X. ¥.), 370. (is4 ANSWERS. [§ 192 latter should sign it, 3 or unless an order has been obtained dis- pensing with such signature on account of the defendant's ab- sence, or for some other reason. 4 A person answering in a dual capacity need sign but once. 5 An answer by a corporation must be under its corporate seal. 6 In such a case it is advisable to have the seal attested by one of the corporate officers. 7 When an answer is made without oath, the signature of the defend- ant should also be attested. 8 This is usually done by his solic- itor. 9 § 192. Oath to answer. Under the former practice, un- less an answer, under oath, was waived in the bill, a defendant, if a natural person, was obliged to swear ; 1 or "if conscientiously scrupulous of taking an oath, in lieu thereof make solemn af- firmation to the truth of the facts stated by him." 2 jSTo oath was necessary to an answer by a corporation. 3 The present rules are silent upon the question as to whether an answer must be verified. 4 They provide : "Every pleading which is required 3 Anon., 2 J. & W. 553; Daniell's Ch. Pr. (5th Am. ed.) 733. 4 Story's Eq. PL, § 875; v. Lake, 6 Ves. 171; v. Gwillim, 6 Ves. 285. 5 Anon., 2 J. & W. 553. 6 Haight v. Proprietors Morris Aqueduct, 4 Wash. 601. 605; Mon- arch Vacuum Cleaner Co. v. Cacuum Cleaner Co. 194 Fed. 172. 7 Daniell's Ch. Pr. (5th Am. ed.) 735, note 2. 8 Daniell's Ch. Pr. (5th Am. ed.) 738. 9 Daniell's Ch. Pr. (5th Am. ed.) 738. § 192. 1 Fulton Bank v. Beach, 2 Paige (N. Y.) 307; Daniell's Ch. Pr., (5th Am. ed.) 735. 2Eq. Rule 91 of 1842, which so far as it applies to cases in which an oath is required, re-enacted in Eq. Pviile 78 of 1912. See U. S. R. S., § 5013. 3 Union Bank of Georgetown v. Geary, 5 Pet. 99, 110, 8 L. ed. 60. 64; Wallace v. Wallace, Halst. (N. J.) Dig. 173; Smith v. St. Louis M. Ins. Co., 2 Tenn. Ch. 599; Burpee v. First Nat. Bank, 5 Biss. 405; Coca Cola Co. v. Gay-Ola Co., C. C. A., 200 Fed. 720, 726. But see Kittredge v. Claremont Bank, 3 Story, 590; s. c, 1 W. & M. 245. 4 Although the English Judicature Act and orders and rules are silent upon the subject, the English courts do not require an oath to be annexed to the defense in equity, which is the pleading corresponding to our answer. The writer is indebted for this information through the cour- tesy of Francis A. Stringer, Esq.," of the Central Office, Royal Courts of Justice, one of the editors of "Annu- al Practice." There, however, in certain cases, upon plaintiff's affi- davit that in his belief there is no defense to the action, the defendant is not allowed to defend without permission of the court. Order XIV. For verification by a corporation when required, see § 174, supra. § 193] MOTIONS UPON. 685 to be sworn to by statute, or these rules, may be verified before any justice or judge of any court of the United States, or of any State or Territory, or of the District of Columbia, or any clerk of any court of the United States, or of any Territory, or of the District of Columbia, or any notary public." 5 An answer can be verified without the United States before com- missioners appointed for that purpose; 6 or probably before any secretary of legation or consular officer at the post, port, place, or within the limits of his legation, consulate, or com- mercial agency. 7 The following form of oath or affirmation is given by Daniell in his valuable work on Chancery Practice: "You swear, or solemnly affirm, that what is contained in this your answer (or plea and answer), as far as concerns your own act and deed, is true to your own knowledge, and that what re- lates to the act and deed of any other person or persons, you be- lieve to be true." 8 When sworn to in a foreign country, it seems that it must be "administered in the most solemn form observed by the laws and usages" of that country. 9 Every al- teration and interlineation in the answer should be authenticat- ed by the initials of the officer who administers "the oath. ,, When the verification of an answer is in the form of an affi- davit, the name of the defendant making it must be subscribed at the foot of the affidavit. When in the form of a certificate of the officer administering the oath, the defendant's name should be subscribed at the foot of the answer. 10 § 193. Motions to take answers off the file. When an an- swer is any respect irregular, 1 or is filed by a person not named as a defendant in the bill, 2 or is filed too late, it may upon the plaintiff's motion be taken off the file. 3 This may also be done when the paper purporting to be an answer is so evasive that 5Eq. Rule 36. Paige (N. Y.) 173, 176; Pincers v. 6 Read v. Consequa, 4 Wasji. 335. Robertson, 9 C. E. Green (24 N. J. 7U. S. R. S., § 1750. But see Eq.) 348. Read v. Consequa, 4 Wash. 335. § 103. l Bailey W. M. Co. v. 8 2 Daniell's Ch. Pr., ch. 15, § 2, Young, 12 Blatehf. 199. p. 270 ; Story's Eq. PI., § 872, note 2 Putnam v. New Albany, 4 Biss. 4- 365, 367. 9 Read v. Consequa, 4 Wash. 335. 3 Allen v. Mayor and Board of 10 Daniell's Ch. Pr., (5th Am. Ed., 18 Blatehf. 239. ed.) 743; Hathaway v. Scott, 11 <;><; ANSWERS. [§ 194 it is in fact no answer. 4 If it is taken off the file for an error in form, the court may allow the same paper to be corrected, and then filed anew. 5 By setting the cause down for a hearing npon bill and answer, 6 or by filing a reply or taking any other step in the cause without raising the objection, such a defect would be waived. 7 A failure to enter an order taking a bill as con- fessed, does not authorize the filing of an answer after the pre- scribed time. 8 § 194. Exceptions for insufficiency. "Exceptions for in- sufficiency of an answer are abolished." * The sufficiency of an affirmative defense may be tested by a motion to strike out the same. 2 In case of insufficiency in admissions or denials, the matters not properly denied are deemed confessed, except as against a person non compos and not under guardianship. 3 By the former practice, exceptions to the insufficiency of the dis- covery could be filed within a limited time, 4 except in the case of an answer by an infant or other person under a disability. 5 Where such an exception was sustained and a further answer put in, which the plaintiff deemed still insufficient, by the former English practice he had three weeks wherein to refer the same to a master upon the old exceptions ; otherwise the further answer was deemed sufficient. 6 If the further answer was found insufficient, the defendant was required to put in a third answer; and if that too was found insufficient, he was committed to the Fleet, and examined upon interrogatories. 7 When an order was obtained after answer, allowing the plain- 4 Tomkin v. Lethbridge, 9 Ves. 178; Smith v. Searle, -14 Ves. 415. 5 Bailey W. M. Co. v. Young, 12 Blatchf. 199. 6 Besson & Co. v. Goodman, et al., 147 Fed. S87. 7 Fulton Bank v. Beach, 2 Paige (N. Y.), 307; Glassington v. Thwaites, 2 Buss. 458, 461. 8 Allen v. Mayor, 7 Fed. 483. § 194. lEq. Rule 33. 2Eq. Rule 33: infra, § 237. 3Eq. Rule 30. 4 Read v. Consequa. 4 Wash. 33.i. Uhlmann v. Arnholt & S. B. Co., 41 Fed. 309; Colgate v. Compagnie Francaise. 23 Fed. 82. But see United States v. McLaughlin, 24 Fed. 823; MeCormick v. Chamber- lin. 11 Paige (N. Y.), 543; Shep- pard v. Akers, 1 Tenn. Ch. 326. 5 Copeland v. Wheeler, 4 Brown, Ch. C. 250; Lucas v. Lucas. 13 Yes. 274; Micklethwaite v. Atkinson, 1 Coll. 173; Daniell's Ch. Pr. (5,tfa Am. ed.) 109. 6 Smith's Ch. Pr. (2d ed. 1830), 285. t Smith's Ch. Pr. (2d ed. 1S36). 2S5, 280. 196] DISCLAIMERS. 687 tiff to amend his bill, and requiring the defendant to answer the amendments and the exceptions to the answer to the original hill together ; upon such answer the plaintiff could only file new exceptions for a failure to fully answer the amendments. 8 The insufficiency of a defense in an answer could not be thus determined. 9 § 195. Supplemental answers. A supplemental answer was formerly filed to bring to the attention of the court some fact which was not inserted in the original answer through mistake or ignorance, 1 or which had occurred subsequently to the filing of the same. 2 They could only be filed bv leave of the court, which might impose terms upon the applicant. 3 The Equity Rules now provide: "Upon application of either party party the court or judge, may, upon reasonable notice and such terms as are just, permit him to file and serve a supplemental pleading, alleging material facts occurring after his former pleading, or of which he was ignorant when it was made, including the judgment or decree of a competent court rendered after the commencement of the suit determining the matters in controversy or a part thereof." 4 This provides merely for supplemental answers of the second class. Such supplemental answers have been little considered in the books. Their func- tions might also be performed by cross-bills. It was too late after answer and decree to object to the regularity of a pro- ceeding in which facts were set up by petition when cross- bill or supplemental answer would have been the proper prac- tice. 5 § 196. Disclaimers. A disclaimer by the defendant is a pleading by which he renounces all claim to property which the plaintiff seeks in his bill to obtain. 1 It is said that it is dis- 8 Partridge v. Haycraft, 11 Ves. 570, 581; Smith's Ch. Pr. (2d ed. 1836), 286. 9 Manhattan Tr. Co. v. Chicago El. Traction Co., 188 Fed. 1006. § 195. l Smith v. Babcock. 3 Sumner, 583; Williams v. Gibbes, 20 How. 535, 15 L. ed. 1013; Caster y. Wood, 1 Baldw. 289; Suydam v. Truesdale, 6 McLean, 459. 2Kelsey v. Hobby, 16 Pet. 269, 277, 10 L. ed. 961, 963; Talmadge v. Pell, 9 Paige (N. Y.), 410, 413. 3 Smith v. Babcock, 3 Sumner, 583; Caster v. Wood, 1 Baldw. 289. 4 Eq-. Rule 34. Mvelsey v. Hobby. 16 Pet. 269, 277, 10 L. ed. 961. 963; Coburn v. Cedar V. L. & C. Co., 138 U. S. 196, 222. 34 L. ed. 876, 886. § 196. ! Mounsey v. Burnham. 1 Hare, 15. 688 ANSWERS. [§ 196 tinct in its substance from an answer, although sometimes con- founded with one. 2 By the former practice, it must in most cases be accompanied by an answer, for where a defendant had been made a party by mistake, having had an interest with which he has parted, the plaintiff might require an answer sufficient to ascertain what the facts were, and t<> whom he had transferred his interest. 3 Moreover, a defendant, although he may disclaim an interest, cannot disclaim a liability. 4 The only cases in which a disclaimer without an answer w r as deemed to be sufficient seemed to have been those where the bill simply alleged that the defendant claims an interest in the property in question without specifying the claim. 5 Under very special circumstances, a disclaimer may be withdrawn, and an answer filed setting up a claim. 6 Where a disclaimer is made, and it appears that the defendant was made a party without apparent reason, the bill will be dismissed with costs. Otherwise, a decree may be entered without costs against the defendant and all claiming under him since the filing of the bill. 8 If a dis- claimer and answer by the same defendant are inconsistent, the matter will be taken most strongly against the defendant upon the disclaimer. 9 The following is a form of a mere dis- claimer: "The disclaimer of Richard Flagg, the defendant, to the bill of complaint of Robert Aber, complainant. This de- fendant, saving and reserving to himself [here follows the usual general reservation in an answer], saith, that lie doth not know- that he, this defendant, to his knowledge and belief, ever had, nor did he claim or pretend to have, nor doth he now claim, any right, title, or interest of, in, or to the estates 2 Story's Eq. PI., § 838. 3 Story's Eq. PI., § 838. See Ells- worth v. Curtis. 10 Paige (N. Y.), 105; Carrington v. Lentz, 40 Fed. 18. 4 Glassington v. Thwaites, 2 Russ. 458: Graham v. Coape, 9 Sim. 93, 102; s. c, 3 Myl. & Cr. 638. An averment that the defendant, prior to the beginning of the suit, had ceased selling an alleged infringing machine, and that it had no inten- tion of using or selling any ma- chines embodying the features of the patent, was held not to be such a disclaimer as would deprive the complainant of the right to an in- junction. Deere & Webber Co. v. Dowagiac Mfg. Co., C. C. A., 153 Fed. 177. 5 Story's Eq. PL. § 838. See Gra- ham v. Coape, 9 Sim. 93, 102; S. c, 3 Myl. & Cr. 038. See Eq. 6 Story's Eq. PL, § 842. Jule 30. 7 Story's Eq. PL. § 842. 8 Story's Eq. PL. § 842. 9 Mitford's PL, ch. 2, § 2, part 2. § 196] DISCLAIMERS. 689 and premises, situate [describing them],- in the said complain- ant's bill set forth, or any part thereof; and this defendant doth disclaim all right, . title, and interest to the said estate and premises in [naming their situation], in the said complainant's bill mentioned, and every part thereof." A disclaimer con- cludes in the same way as an answer. 10 10 Story's Eq. PI., § 844, note 6; Fed. Prac. Vol. I.— 44. CHAPTER X. CROSS-BILLS, SET-OFFS AND COUNTER-CLAIMS. § 197. Definition and origin of cross-bills. A cross-bill* is a bill filed by a defendant in a suit in equity against one or more of the other parties, in order to obtain either discovery of facts in aid of his defense, or complete relief to all parties as to the matters charged in the original bill. 1 It was auxiliary to the original suit and dependent thereon. 2 - It was borrowed through the canon from the reconventio of the civil law, 3 and from it is derived the counter-claim of code-pleading. 4 It was originally used chiefly for the .purposes of set-off and dis- covery, which modern statutory enactments make it possible to obtain in a simpler way ; but, except in a few cases, without one no relief could be obtained by a defendant against the complain- ant in the same suit, 5 beyond what resulted necessarily from the denial of the prayer of the original bill. 6 The ordinary cases in which a defendant could obtain relief without a cross-bill were : suits for an account, 7 for the specific performance of contracts, 8 § 197. ! Nelson, J., in Ayres v. Carver, 17 How. 591, 595, 15 L. ed. 179, 180; Springfield M. Co. v. Bar- nard, C. C. A., 81 Fed. 261. 2TJ. S. v. Reese, 166 Fed. 347; Lovell v. Latham & Co., 186 Fed. 002. 3 Story's Eq. PL, § 402 ; Langdell's Eq. Pl.,"§§ 152, 154. 4 See Brande v. Gilchrist, 18 Fed. 465. 5 Carnochan v. Christie, 11 Wheat. 440. 6 L. ed. 516; Ford v. Douglas. a How. 143. 12 L. ed. 89 ; Chapin v. Walker. 6 Fed. 794; Brande v. Gil- christ, 18 Fed. 465; Denver & R. G. Ry. Co. v. Denver, S. P. & P. R. Co., 17 Fed. 867; Lewis v. Glass, 92 Tenn. 147; s. c, 20 S. W. 571: In ternational Tooth Crown Co. v. Car- michael, 44 Fed. 350; Stanwood v. Des Moines Sav. Bank, C. C. A., 178 Fed. 670; Asbestos Shingle, S. & S. Co. v. H. W. Johns-Manville Co., 189 Fed. 611, 613; Taylor v. Herndon, C. C. A., 194 Fed. 946; Mitchell v. International Tailoring Co., 169 Fed. 145. 6 Langdell's Eq. PI., § 123. See Hilton v. Barrow, 1 Vesey Jr. 284. 7 Clarke v. Tipping, 4 Beav. 588; Toulmin v. Reid, 14 Beav. 499; Jer- vis v. Berridge, L. R. S Ch. 357; Campbell v. Campbell, 4 Halst. Eq. (N. J.) 740; Little v. Merrill, 62 Me. 328. 8 Fife v. Clayton, 13 Ves. 546; Stapylton v. Scott, 13 Ves. 425; GOO § 197] DEFINITION. 691 to compel the issue of patents in interference cases, 9 contribu- tion between co-defendants, 10 and a few instances for incidental and collateral questions between defendants, 11 or when it was impossible to give the plaintiff the relief to which he was en- titled when first deciding a question between them. 12 No cross- bill was necessary for such relief as might be allowed a de- feudant by means of a conditional decree imposing terms upon the complainant in accordance with the maxim that "he who seeks equity must do equity." 13 The subject-matter of the cross-bill must be germane to that of the original bill 14 Bradford v. Union Bank of Tenn., 13 How. 57, 14 L. ed. 49 ; Northern R. Co. v. 0. & L. C. R. Co., 18 Fed. 815. But see s. c, 20 Fed. 347. See Newton v. Gage, 155 Fed. 598 ; Det- tering v. Nordstrom (C. C. A.), 148 Fed. 81. 9 Lockwood v. Cleveland, 6 Fed. 721; Foster v. Lindsay, 3 Dill. 127; Electrical Accum. Co. v. Brush El. Co., 44 Fed. 602; but may be filed if the defendant so chooses. Ameri- can C. B. Co. v. Ligowski C. P. Co., 31 Fed. 466; Electrical Accum. Co. v. Brush El. Co., 44 Fed. 602, 607. Contra, Lockwood v. Cleveland, 6 Fed. 721, 727. 10 La louche v. Lord Dunsany, 1 Sch. & Lef. 137, 166, 167; s. c, as Chamley v. Lord Dunsany, 2 Sch. & Lef. 690, 718; Langdell's Eq. PL, § 125. 11 Federal M. & S. Co. v. Bunker Hill & Sullivan M. & C. Co., 187 Fed. 474; Hood v. Clapham, 19 Beav. 90. See Elliott v. Pell, 1 Paige (N. Y.), 263. 12 Langdell's Eq. PI., § 125. 13 Farmers' L. & Tr. Co. v. Den- ver, L & G. R. Co. (C. C. A.). 126 Fed. 46; supra, § 153: infra. § 400. 14 Bowker v. U. S., 186 U. S. 135, 46 L. ed. 1090; Great Northern Ry. Co. v. Western Union Tel. Co., C. C. A., 174 Fed. 321; Lovell v. Lath- am & Co., 186 Fed. 602 ; U. S. Light 6 Heating Co. v. J. B. M. El. Co., C. C. A., 194 Fed. 866 ; Ledbetter v. Mandell, 141 App. Div. (N. Y.) 556, 558, affirmed 205 N. Y. 537; Great Northern Ry. Co. v. Western Union Tel. Co., 174 Fed. 321; Miller v. Uhl- man, 178 Fed. 233; Langdell's Eq. PI., § 124; Daniell's Ch. Pr. (5th Am. ed.) 1550; Field v. Schieffelin, 7 J. Ch. (N. Y.) 250, 11 Am. Dec. 441. Where the plaintiff's right de- pended upon an instrument or con- veyance which is not void, but mere- ly voidable on account of fraud, or otherwise, the defendant could in most cases only set up the facts showing its invalidity by a cross- bill. Ford v. Douglas, 5 How. 143, 12 L. ed. 89; Langdell's Eq. PI., § 131; Jacobs v. Richard, 18 Beav. 300 ; Beddoes v. Pugh, 26 Beav. 407. 416. 417; Holderness v. Rankin, 2 De Gex, F. & J. 258; Eddleston v. Collins, 3 De Gex, M. & G. 1, 16; Cliapin v. Walker, 2 McCrary, 175 ; Manley v. Mickle, 55 N. J. Eq. 563 j s. c, 37 Atl. 738. But see Dayton v. Melick; 27 N. J. Eq. (12 C. E. Green), 362; Pitts v. Pbwledge, 56 Ala. 147: Kennedy v. Green. 3 My. & K. 699. 718; Eyry v. Hughes; 2 Ch. D. 148; Osborne v. Barge. 36 Fed. 805; Green v. Turner, 80 Fed. 692 CROSS-BILLS, SET-OFFS AND COUNTER-CLAIMS. [§ 197 41. So where the defendant claimed that a contract upon which the plaintiff relied did not express the true agreement between the parties, he was required, except when the bill prayed specific performance, to file a cross-bill for the reformation of the contract. Commonwealth T. T. & Tr. Co. v. Cummings, 83 Fed. 767; Green v. Stone, 54 N. J.'Eq. 387, 55 Am. St. Rep. 577, s. c, 34 Atl. 1099. In a suit to set aside a contract, the defendant could not have the contract enforced unless he filed a cross-bill, Meissner v. Buck, 28 Fed. 161 ; Carnochan v. Christie, 11 Wheat. 446, 447, 6 L. ed. 516; when in a proper case he could also obtain a decree declar- ing the contract to be void. La Dow v. E. Bement & Sons, 66 Fed. 198; Duggar v. Dempsey, 43 Pac. 357; s. c, 13 Wash. 396; Bernhard v. Bruner, 65 111. App. 641; North British L. & N. Ins. Co. v. Lathrop, C. C. A., 70 Fed. 429. Where a bill was filed by one tenant in common of a mortgage against the two others, who had bought in separate parcels the mort- gaged property, the complainant seeking to recover from them his share of the purchase-money; it was held that a cross-bill could not be filed by one defendant against the other to recover a balance due him "resulting from the price severally paid and to be paid by them, as compared with the respective amounts" of their interests in the mortgage. Weaver v. Alter, 3 Woods, 152. Where a receiver of a bank filed a bill to set aside a trans- fer of shares of its stock by one de- fendant to another, and to hold the transferor liable to the creditors of the bank ; it was held that the trans- feree could not file a cross-bill to set aside the transaction as between transferor liable to the creditors of him by the others. Stuart v. Hay- den, C. C. A., 72 Fed. 402. In a suit by a depositor against a bank to recover the amount of checks paid on forged indorsements, it was held that defendant could not file a cross-bill against a second bank seeking to recover over in case it was held liable to plaintiff. Pollard v. Wellford, 99 Tenn. 113, 42 S. W. 23. Where a bill was filed against the stockholders of an insolvent corpo- ration to collect out of their unpaid subscriptions the amount of a judg- ment against it, a cross-bill filed by one who had paid a larger propor- tion of his subscription than the rest, praying for an accounting, and that the others be compelled to pay the judgment, was held bad upon demurrer. Putnam v. New Albany, 4 Biss. 365, 373. Where a bill was filed by a remainderman under a will, claiming that certain provi- sions of the will establishing estates prior to his own were invalid, and praying that the trustees appointed by the will convey the property de- vised either to him, or to the heirs- at-law, or to the State; a bill filed by the heirs-at-law, not impugning the estate of the equitable tenant for life, but praying that the es- tates in remainder, some of which were to persons yet unborn, should be declared invalid, was held im- proper as a cross-bill. Cross v. De Valle, 1 Wall. 5, 17 L. ed. 515. See Neal v. Foster, 34 Fed. 496, 498; Osborne v. Barge, 30 Fed. 805. Where, on a bill by several per- sons to restrain the infringement of a patent and for an account, the defenses being invalidity of the pat- ent and a license, the court sustains § 197] CROSS-BILLS. 693 the patent and decrees damages; a bill was not sustained as a cross- bill which set up a judgment in an- other suit against one of the com- plainants, and prayed that they all set forth and discover what share of the damages is claimed by each, so that the defendant who filed the cross-bill might set off his judgment against the share claimed by his judgment creditor. Rubber Co. v. Goodyear, 9 Wall. 807. In a suit by an administrator to recover assets it was held that a cross-bill was demurrable which sought an accounting of the admin- istration of the estate of the intes- tate's father; although that would have resulted in increasing the es- tate held by the plaintiff and all the necessary parties were before the court. Harrison v. Perea, 168 U. S. 311, 42 L. ed. 478; s. c. as Perea v. Harrison, 7 N. H. 666, 41 Pac. 529. Where to a bill for the cancellation of certain certificates of stock because unlawfully issued, the defendants alleged by a cross-bill that defendant corporation had de- cided to cease the manufacture of goods for a time, and that complain- ants had directed the concern to continue operations, and asked to have complainants restrained from further interference; it was held that the cross-bill should be stricken out as foreign to the subject-matter of the original bill. Allen v. Fury, 53 N. J. Eq. 35, 30 Ail. 551. On a suit to restrain the enforcement of a judgment, and to establish as a set-off a legal claim, a cross-bill seeking a settleemnt of a partner- ship alleged to have formerly ex- isted between the parties was stricken out as foreign to the sub- ject-matter of the original bill. O'Neill v. Perryman, 102 Ala. 522, 14 South. 898. Where the plain- tiff, claiming the exclusive right under a contract to use the name of defendant in the sale of patent medicines, filed a bill against the latter to enjoin a violation thereof, and the latter filed an alleged cross- bill to enjoin complainant from making use of the name not au- thorized by the contract it was held that this latter bill was not a true cross-bill, but an original bill. Chattanooga Medicine Co. v. Thed- ford, 58 Fed. 347. See also Colton v. Scott, 97 Ala. 447. Where a bill was filed to restrain a sale under an execution, the defendant was allowed to file a cross-bill praying a decree, declaring that he had a lien upon the property on which he had levied, ap- pointing a receiver, and directing the sale of such property. Chica- go, M. & St. P. Ry. Co. v. Third Nat. Bank, 134 U. S. 276, 33 L. ed. 900. See Remer v. McKay, 38 Fed. 164. Where the mortgagee filed a bill to collect rents from a lessee and a sublessee of the mortgaged railroad, and for a declaration that the lease was binding upon the sub- lessee, a cross-bill by the lessee against the mortgagor, who was a defendant to the original, seeking a cancellation of the lease, was held properly filed. Jesup v. Illinois Cent-. R. Co., 43 Fed. 483.- It has been held that a cross-bill might be filed in a suit to foreclose a me- chanic's lien, for the cancellation of the record of the lien with damages for a breach of the mechanic's con- tract (Springfield M. Co. v. Bar- nard S. Mfg. Co., 81 Fed. 261) ; in a suit to foreclose a vendor's hen, for the foreclosure of a subsequent vendor's lien after the cross-eom- plainant had secured the payment of the amount due the original 694 CROSS-BILLS, SET-OFFS AND COUNTER-CLAIMS". [§ 198 § 198. Counter-claims. In the New York Code of Pro- cedure, David Dudley Field substituted a counter-claim for a cross-bill. His reform was adopted in the English Judicature Act. 1 The new Equity Rules have followed these precedents and provide : that the answer "may, without cross-bill, set out any set-off or counter-claim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counter-claim, so set up, shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit both on the original and cross- plaintiff (Cox v. Price, 2 Va. Dec. 170, 22 S. E. 512) ; in a suit for the cancellation of' a lease for the re- turn of property delivered thereun- der (Pullman's P. C. Co. v. Central Tr. Co., 171 U. S. 138, 43 L. ed. 108) ; in a suit by a street railway company to enjoin a city from for- feiting a franchise, by a mortgagee for the appointment of a receiver to borrow the funds needed for payment to prevent the forfeiture. Union Street Ry. Co. v. City of Saginaw, 115 Mich. 300, 73 N. W. 243. Where an insurance company had procured an injunction against a suit upon a policy which contained a limita- tion clause, the court sustained a cross-bill for a recovery of the amount of the policy on the ground that a State court of common law might hold that the injunction did not extend the period for bringing suit. North B. & M. Ins. Co. v. Lathrop, C. C. A., 63 Fed. 508. In a suit to foreclose a mortgage, giv- en to secure a note for the price of property sold; it was held, that an answer setting up fraud in the in- ducement of the sale as a defense to the note, and a cross-bill for a re- .-.ei^ion of the contract, because of the same fraud, were not incon- sistent. Richardson v. Lowe, C. C. A., 149 Fed. G25. It has been held that a discharge in bankruptcy pending a suit (Banque Franco- Egyptienne v. Brown, 24 Fed. 106, 107), the right to equitable set-off (Meek v. McCormick (Tenn. Ch.), 42 S. W. 458. See Carlwright v. Clark, 4 Mete. (Mass.) 104; Derby v. Gage, 38 111. 27), and the right of sureties to subrogation (Stokes v. Little, 65 111. App. 255), and an agreement to settle the litigation, made pending the suit (Snyder v. De Forest Wireless Telegraph Co., 154 Fed. 142), can only be pleaded by a defendant in a cross-bill. In such eases, the cross-bill is in the nature of a supplemental bill. In- fra, § 231. A decree dismissing,, a bill to enjoin an action of ejectment cannot determine the title to the land in the absence of a cross-bill. Wood v. Collins, 60 Fed. 130. But it has been held that a defendant who is not in possession of land, when a bill is filed against him to remove a cloud to the title to the same, may, if he can show a better title than that of the complainant, obtain possession of the land by cross-bill. Greenwalt v. Duncan, 16 Fed. 35. § 19S. 136 Vic. c 66, § 24, Or- der XXI. § 198] COUNTER-CLAIMS. 69; claims." 2 If the counter-claim is one which affects the rights of other defendants they or their solicitors shall be served with a copy of the same within ten days from the filing thereof.'' 3 These rules impose no penalty for a failure to state a counter- 2Eq. Rule, 30. 3Eq. Rule 31. Under the former practice in a case where the origi- nal bill prayed a confirmation of a title under a deed absolute in form, a cross-bill by one of the defend- ants, claiming that the deed be de- clared a trust deed for her sole ben- efit, was held to be germane to the subject-matter of the suit, and suf- ficient to support a decree binding the other defendants as well as the plaintiff. Kingsbury v. Ruckner, 134 U. S. 650, 677, 33 L. ed. 1047, 1057. See Griffin v. Griffin, 112 Mich. 87, 70 N. W. 423; Feige v. Rabcock, 111 Mich. 538, 70 N. W. 7. A defendant to a foreclosure suit may file a cross-bill, to enforce an agreement by a codefendant to con- vey him part of the mortgaged premises. Peacock, Hunt & . West Co. v. Thaggard, 128 Fed. i005. Upon a bill to set aside deeds, the grantors and grantees of which were defendants, the court allowed a cross-bill by the grantees against their codefendant, the grantor, for the recovery of the purchase money paid by them for the land, and for the cancellation of notes given for deferred payments, in case the deeds should be set aside. Craig v. Door, C. C. A., 145 Fed. 307. In suits to establish and protect water rights against separate appropriators of water from the same stream, cross- bills, were allowed between the sev- eral defendants to protect their re- spective rights against each other. Ames Realty Co. v. Rig Indian Min. Co.. 146 Fed. 166; Miller & Lux v. Rickev Land & Cattle Co., 146 Fed. 574. Rut it was held that cross- bills by the defendants against the complainant, asserting their rights and seeking for affirmative relief, were demurrable. Miller & Lux v. Rickey Land & Cattle Co., 146 Fed. 574; Van Vibbler v. Hilton, 84 Cal. 585, 24 Pac. 308. In a suit to fore- close a mortgage, it was held that a defendant holding another mort- gage on the same and other proper- ty might, by cross-biri, obtain af- firmative relief against other de- fendants, judgment creditors of the mortgagor, and thus establish the validity of his mortgage. First Nat. Rank v. Salem Capital Flour Mills Co., 31 Fed. 580. Rut a cross- bill was not allowed upon a credit- or's bill, when the defendant sought thus to have adjusted the indebted- ness between themselves. Vanner- son v. Leverett, 31 Fed. 376. Where the mortgagee filed a bill to collect rents from a lessee and a sublessee of the mortgaged railroad, and for a declaration that the lease was binding upon the sublessee, a cross- bill by the lessee against the mort- gagor, who was a defendant to the original, seeking a cancellation of the lease, was held properly filed. Jesup v. Illinois Cent. R. Co., 43 Fed. 483. It was said that where an original bill sought to enforce an equitable title against several de- fendants, it was improper for a de- fendant to file a cross-bill seeking the enforcement of a title para- mount against his codefendants. Ayres v. Carver, 17 How. 594, 15 L. ed. 179. GOG CROSS-BILLS, SET-OFFS AND COUNTER-CLAIMS. [§ 198 claim arising out of the transaction which is the subject-matter of the suit, but by implication they forbid their assertion in an independent suit, and a judgment against the defendant would undoubtedly be a bar to any subsequent attempt to assert them. 4 In determining when a counter-claim arises out of the trans- action which is the subject-matter of the suit, cases under the former practice in equity and those under the code practice may be considered. Where pending a suit by an insurance com- pany to cancel a policy for misrepresentation the insured died and by supplemental bill the beneficiary was restrained from suing at law upon the policy, it was held that he could only assert his claim by a cross-bill. 5 It has been held under the Xew York Code of Civil Procedure that the following causes of action arise out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim or were connected with the subject of the action : In an action brought to recover the purchase price of stock, a claim that the con- tract of sale was procured by fraudulent representations, with a prayer that it should be rescinded. 6 In an action by an heir to set aside so much of a will as created a trust, a counter-claim by the defendant trustee for the rents of the land collected by the plaintiff since the testator's death. 7 In a foreclosure suit, a counter-claim for usury and to set aside an equity by the mortgage on the title to the premises. 8 In an action to enforce the statutory lien created on an award in condemnation pro- ceedings, a counter-claim for a breach of a contract for the sale of the premises condemned, which was made during the con- demnation proceedings. 9 In an action to enjoin a foreclosure action, a counter-claim for rent due from the eqYiitable owner of the mortgage. 10 It has been held, in England, that in an action by the vendor for specific performance, the defendant may, by a counter-claim, pray for the review of a previous decision as 4 Odger's Pleading. 4th ed., pp. 228-230, supra, § 186. 5 Royal Union Mut. Life Ins. Co. v. Wynn, 177 Fed. 289. 6 Delano v. Rice, 23 App. Div. (N. Y.) 327. 7 O'Brien v. Garniss, 25 Hun (X. Y.) 446. 8 Myers v. Wheeler, 24 App. Div. (X. Y.) 327. 48 X. Y. Supp. 611; Queen City Bank v. Brown, 75 Hun, (X. Y.) 250, 58 St. Rep. 286. 28 X. Y. Supp. 1016. 9 Cottle v. X. Y., W. S. & B. Ry. Co., 27 App. Div. (X. Y.) 604. 50 X. Y. Supp. 1008. 10 Austin v. Rapelye, 45 St. Rep. 480. § 198] COUNTER-CLAIMS. 697 to the title. 11 The following cases, amongst others, under the New York Code have held that counter-claims could not be pleaded. In an action brought to restrain a party from inter- ference with the plaintiff's trade, a counter-claim for damages arising out of the breach of a contract between some of the plaintiffs and the assignor of the defendant. 12 In an action to set aside an assignment and to procure a reassignment of bonds and mortgages, a counter-claim that the agent, acting un- der a power of attorney from the plaintiff, together with two others, acting under a previous power of attorney, had subse- quently assigned to the defendant three other bonds and mort- gages which plaintiff refused to deliver. 13 In an action to re- cover money collected under color of a contract, by fraud, a counter-claim for a balance due for work under the contract. 14 In an action to recover a debt for which a lien had been filed, a counter-claim for the expense of removing the lien and of preparation of the defense of an action anticipates to foreclose the same. 15 The rules furthermore permit any set-off or coun- ter-claim which might be the subject of an independent suit in equity against the plaintiff. 16 This abrogates the former doctrine, that a cross-bill must be germane to the subject-matter of the original bill. 17 The distinction between a set-off and a counter-claim may be one of importance, since in case of bank- ruptcy or insolvency of the complainant the defendant might be allowed the full amount of his set-offs and be obliged to share proportionately with the other creditors in the dividend upon his counter-claims. 18 "A set-off is a statutory defense to an "Scott v. Alvarez, (1895), 1 Ch. 596. 12 Sugden v. Magnolia Metal Co., 58 App. Div. (N. Y.) 236. 13 Bradhurst v. Townsend, 11 Hun (N. Y.) 104. 14 People v. Dennison, 84 N. Y. 272, affirming 81 N. C. (N. Y.) 129, affirming 59 How. Pr. (N. Y.) 157. is Biershenk v. Stokes, 18 N. Y. Supp. 854, reversing 43 St. Rep. (N. Y.) 788. 16 Eq. Rule .".0. 17 Jt has been held that a cross- bill may be filed in a suit to foreclose a mechanic's lien, for the cancellation of the record of the lien, with damages for a breach of the mechanic's contract (Springfield M. Co. v. Barnard S. Mfg. Co., 81 Fed. 261) ; in a suit to foreclose a ven- dor's lien, for the foreclosure of a subsequent vendor's lien after the cross-complainant has secured the payment of the amount due the original plaintiff (Cox v. Price, 2 Va. Dec. 170, 22 S. E. 512). See supra, note 3 and § 197, note 14. iSOdgers Principles of Pleading, 4th ed., p. 228. 698 CROSS-BILLS, SET-OFFS AND COUNTER-CLAIMS. [§ 198 action; a counterclaim is a cross-action." 19 In England, it lias been said that "set-off is the creature of statute ; to be allowed a set-off you must show a statutory right." 20 There a set-off remains precisely what it used to be under the statutes of George II. 21 It must there be a cross-claim for a liquidated amount and it can be pleaded only to a liquidated claim. 22 There may also be some importance in the distinction between a defense and a counter-claim, since a reply is required to the latter, but not without special order to the former. 23 The former cases holding when a cross-bill should be filed and when not may consequently be useful in this respect. If the facts which a defendant wishes to set up destroy the plaintiff's apparent cause of action, they constitute a defense and should be so pleaded ; but if they only furnish a reason why the court should make a bill depriving the plaintiff of his cause of action, they must be set forth as a counter-claim. 24 It was formerly held that a discharge in bank- ruptcy pending a suit, 25 and the right of sureties to subro- gation, 26 and an agreement to settle the litigation made pending the suit, 27 could only be pleaded by a defendant in a cross-bill. In such cases, the cross-bill was in the nature of a supple- mental bill. 28 In England, a counterclaim must always seek relief against the plaintiff, either alone or along with some third person ; 29 but to a joint claim by two plaintiffs, a counter-claim against them jointly, or a separate counter-claim against each of them has 19 Lord Esher, M. R., in Sykes v. Sacerdoti, 15 Q. B. D. 423. 20 Liskeard, etc., Ry. Co. v. Lis- keard & Caradon Ry. Co., 18 Times Rep. 1; Ann. Pr. 1913, p. 360. 212 Geo. II, Chi 22; 8 Geo. II, Ch. 24. 22Rees v. Watts, 11 Ex. 410; Ann. Pr. 1013, p. 360. 23 Eq. Rule 31. 24 See Langdell's Eq. PL, § 155. Therefore, when a bill is iiled by a mortgagor against a mortgagee for redemption, if the defendant can only show that the plaintiff is not entitled to redeem, he might ob- tain the benefit of a foreclosure without filing a cross-bill for the purpose; for the dismissal of a bill to redeem upon its merits is itself a foreclosure. Langdell's Eq. PL, § 123. See Hilton v. Barrow, 1 Ves. Jr. 284. 25 Banque Franco-Egyptienne v. Brown, 24 Fed. 106. 107. 26 Stokes v. Little, 65 111. App. 255. 27 Snyder v. De Forest Wireless Telegraph Co., 154 Fed. 142. 28 infra. §§ 231, 234. 29 Furness v. Booth, 4 Ch. D. 586; Harris v. Gamble, 6 Ch. D. 748; Ann. Pr. 1913, p. 363. 199] NEW PARTIES. 699 been allowed ; 30 or the defendant may counter-claim against one plaintiff and deny all liability to the other, and then recover a judgment against one of them. 31 It has been held in England that the plaintiff may plead a counter-claim against a counter- claim interposed by the defendant; 32 provided, at least, that he does not pray for an affirmative judgment upon the same. 33 It has been held that matter described in the answer as an "an- swer by way of counter-claim," may be treated as a counter- claim ; 34 but that where the matter was described as a defense and nothing was shown to indicate that the pleader intended to set up a counterclaim as such, he was precluded from insisting that he set one up. 35 Where the matter was not described as a counter-claim, but the prayer asked that the paper be made a cross-petition against the plaintiff, who replied to the same, it was treated as a counter-claim. 36 § 199. New parties to cross-bills and counter-claims. It was said by a judge of great authority that new parties could not be introduced into a case by a cross-bill. 1 It was held, that this could not be done when the result would be to arraign parties of the same citizenship upon different sides of a contro- versy, that arose before the suit was brought and over which a Federal court could not have original jurisdiction. 2 A junior mortgagee was not allowed to file a cross-bill in a foreclosure suit, so as to procure the foreclosure of his own mortgage, when, on account of his citizenship, the court would have had no juris- 30 M., S. & L. Ry. Co. v. Brooks, 2 Ex. D. 243. 31 Hall v. Fairweather, 18 Times Rep. 58; Ann. Pr. 1913, p. 363. 32Toke v. Andrews, 8 Q. B. D. 428. 33Renton Gibbs & Co., L'd. v. Neville & Co., (1900), 2 Q. B. 181. 34 Johnson v. Sherwood, 34 Ind. App. 490, 73 N. E. 180. 35 Lafond v. Lassere, 26 Misc. (N. Y.) 77, 50 X. Y. Supp. 459; State v. Ceughran, 19 South Dak. 271, 103 N. W. 31. Contra, Mills v. Rosen- baum. 103 Ind. 152, 2 N. E. 313. But see Mason v. Mason, 46 Misc. (N. Y.) 361, 94 N. Y. Supp. 868, 34 Civ. Pro. R. 193. 36 Hutchings v. Dean, 11 Ky. Law Rep. 310. § 199. iMr. Justice Curtis in Shields v. Barrow, 17 How. 130, 145, 15 L. ed. 158, 162. See Ran- dolph v. Robinson, 2 N. J. L. 171 : Patton v. Marshall, C. C. A., 26 L.R.A.(N.S.) 127, 173 Fed. 350. 2 Shields v. Barrow, 17 How. 130, 15 L. ed. 158; Patton v. Marshall, C. C. A., 26 L.R.A.(N.S.) 127, 173 Fed. 350. Similar is Wright v. Frank, 61 Miss. 32. ■oo CROSS-BILLS, SET-OFFS AND COUNTER-CLAIMS. [§ 199 diction of an original bill for that purpose. 3 It has been said: that a cross-bill cannot be filed to set aside a compromise of the original suit, under which deeds have been made to a person not an original party thereto. 4 In a suit in equity by the purchaser of coal rights in lands for a specific enforcement of the contract, the terms of which were in dispute between the parties, the defendant cannot by cross- bill bring in as parties defendant the agents who made the con- tract, on his behalf and with his approval, to have their right to commissions determined, a controversy which has no rele- vancy to the principal suit, and in which complaint has no in- terest. 5 It has been said that when the interests of the defend- ant require the presence of new parties, he should take the ob- jection of non-joinder and compel the plaintiff to amend. 6 It was said later that such an objection could be raised only by the new parties thus sought to be brought in. 7 The rule seems now to be well established that, although new parties cannot be introduced by a cross-bill which seeks discovery only or which is purely defensive, they may when it seeks affirmative relief against the complainants and their presence is necessary to the determination of the controversy as thus enlarged. 8 A citizen of the District of Columbia, who had bought an interest in the property affected pending the litigation, was allowed to file a cross-bill to protect his interest in the property. 9 Upon a bill in equity filed by the lessors of an oil lease against the lessee, for a discovery, an accounting of royalties, and specific performance 3 Newton v. Gage, 155 Fed. 598. But see Lilienthal v. MeCormiek, C. C. A., 117 Fed. 89, 96. 4Bunel v. O'Day, 125 Fed. 303, 319. 5 Pattern v. Marshall. C. C. A., 26 L.R.A.(N.S.) 127, 173 Fed. 350. 6 Patton v. Marshall. C. C. A., 20 L.E.A.(N.S.) 127. 173 Fed. 350. ? Brandon Mfg. Co. v. Prime, 14 Blatchf. 371. Contra. Gregory v. Pike. C. C. A., 67 Fed. 837. holding that the complainant mar object to a cross-bill filed by a stranger claim- ing an interest in the subject of the litigation. See Thurston v. Big Stone Gap Imp. Co., 86 Fed. 4S4. 8 Brandon Mfg. Co. v. Prime, 14 Blatchf. 371 : Kanawha Lodge v. Swann, 37 W. Va. 170; s. c, 16 S. E. 462: Allen v. Tritch. 5 Colo. 222, 228; Hurd v. Case, 32 111. 45, 83 Am. Dec. 249; Jones v. Smith. 14 111. 229; Blodgett v. Hobart, IS Vt. 414: Hildebrand v. Beasley, 41 S. (Tenn.) 121, 123; Sharp v. Pike's Adm'r, 5 B. Mon. (Ky. ) 155; Cos- ter's Ex'rs v. Bank of Ga., 24 Ala. 39. 9 Ulman v. Iaeger's Adm'r, 155 Fed. 1011. § 199] NEW PARTIES. 701 of the contract to deliver oil as royalty, the defendant was allowed to file a cross-bill, bringing in as defendants other claim- ants of ownership to parts of the land, and praying that their rights be determined bv the court. 10 In a suit to restrain the infringement of a patent, a cross-bijl was sustained; which brought in as defendant to it a new party, the assignor of the patent to the original complainant; claimed that that assignor had previously assigned the equitable title thereto to the orator of the cross-bill, and that the legal assignee had bought with notice thereof; and prayed a conveyance of the patent and an injunction against further annoyance. 11 Parties brought in as defendants to a cross-bill may, in turn, exhibit cross-bills when the same are necessary or proper to terminate the litigation. 12 A. stranger to a suit cannot file a cross-bill without permission from the court. 13 A cross-bill filed by a stranger without such permission may be stricken from the file. 14 Permission will not be granted if his claim is not germane to that set forth in the original bill. 15 Thus, when a trustee in bankruptcy sued to set aside a preferential transfer and to recover the proceeds of the same, a party claiming the lien upon the fund was not permitted to intervene and to enforce the same by cross-bill. 16 It has been said that under the practice of the Federal courts one claiming an interest in the subject of litigation cannot properly be made a party defendant against the objection of complainant, and hence a cross-bill filed by a person thus com- ing into the cause should be dismissed. 17 In a suit to foreclose a chattel mortgage, a party claiming a prior chattel mortgage,, made by one of the original defendants upon part of the prop- erty, may be allowed to intervene and file a cross-bill to estab- 10 Robinson v. Brast, C. C. A., 149 l* Bronson v. La Crosse & M. R. Fed. 149. Co., 2 Wall. 283, 294, 303. 17 L. ed. 11 Brandon Mfg. Co. v. Prime, 14 725, 729; Putnam v. New Albany, Blatclif. 371. 4 Biss. 365, 3G7. 12 Blair v. Illinois S. Co., 42 X. 15 Lovell v. Latbam & Co., 186 E. 895; s. c, 159 111. 350. 31 L.R.A. Fed. 6 4 Wis - 343 5 Rule 33 ; Matthews 83 X. Y. Supp. 756. v - balance & G. Mfg. Co., 2 Fed. 30 Sterling v. Mut. Life Ins. Co., 232 ' But see M 5 rers v - Dorr > 13 6 State Rep. (X. Y.) 96. Blatclif. 22; Theberath v. Rubber 31 Cavanagh v. Oceanic S. S. Co., * C ' H - T ' Co ~" 5 Bann ' & A " 6M - 30 State Rep. (X. Y.) 532, 9 X. Y. 4 Humes v. Scruggs, 94 U. S. 22, ^ -.qo 24 L. ed. 51. It was held that the wr» i ' vTTT a n -lo-io general replication put in issue the 32 Order XIII. Ann. Cas. 1913, ,.„.-> * , , , validity of a deed set up in the answer although not questioned by 33 Met. L. I. Co. v. Meeker, 85 X. „ . •„ y, ? „ , • , ^ the bill. Boyd v. Hawkins, 2 Dev. Y ' 614 ' (X. C.) Eq. 195. But see McClane's § 204. l Story's Eq. PL, § 877; Adm'x v. Shepherd's Ex'x, 21 X. J. Hughes v. Blake, 6 Wheat. 453. 5 Eq. 76; Cowart v. Perrine, 21 X. L. ed. 303. J. Eq. 101. § 205] FKAME OF KEPLY. 713 but the plaintiff has not afterwards amended his bill with re- spect to such name, the correction should be shown in the title of the reply. In the body of the reply, however, the correct name only should be inserted. When any defendant has died since the bill was filed, the words "since deceased" should fol- low his name in the title, but his name should be omitted in the body of the replication. If the plaintiff joins issue with all the defendants their names need not be repeated in the body ; it is sufficient in such case to designate them as "all the defendants ;" but if he does not join issue with all, the names of tin defend- ants must be set out in the body. 1 A reply should be signed in- dividually by one or more of the solicitors for the complainant. 2 Unless the complainant appears in person in the case, it would probably be sufficient for the defendant to sign the same individ- ually. 3 It is the safer practice to have his individual signature acknowledged. It has been held, in England, that a reply must not set up new claims. 4 § 205. i Darnell's Ch. Pr. (4th 3 TJ. S. R. S., § 747. Am. ed.) 830, 831. 4 Williamson v. L. & W. Ry. Co., 2 Eq. Rule 24. 12 Ch. D. 787. CHAPTER XL AMENDMENTS OF WE.ITS, PROCESS AND PLEADINGS, AT LAW AND IN EQUITY. § 206. Amendments. In general. "In reference to amendments of equity pleadings the courts have found it im- practicable to lay down a rule that would govern all cases. Their allowance must, .at every stage of the cause, rest in the discretion of the court ; and that discretion must depend largely on the special circumstances of each case. It may be said, generally, that in passing upon applications to amend, the ends of justice should never be sacrificed to technical rules of prac- tice. Undoubtedly great caution should be exercised where the application comes after the litigation has continued for some time, or when the granting of it would cause serious inconvenience or expense to the opposite side." 1 The Revised Statutes provide : "No summons, writ, declaration, return process, judgment, or other proceedings in civil causes, in any court of the United States, shall be abated, arrested, quashed, or reversed for any defect or want of form ; but such court shall proceed and give judgment according as the right of the cause and matter in law shall appear to it, without regarding any such defect, or want of form, except those which, in cases of demurrer, the party demurring specially sets down, together with his demurrer as the cause thereof; and such court shall amend every such defect and want of form other than those which the party demurring so expresses ; and may at any time permit either of the parties to amend any defect in the process or pleading, upon such conditions as it shall, in its discretion, and by its rules, prescribe." 2 § 206. 1 Harlan, J., in Hardin v. v. Turner, 12 How. 30, 46, 13 L. Boyd, 113 U. S. 756, 761, 28 L. ed. ed. 883, 887; Roach v. Hulings, 16 1141, 1142. See Nellis v. Pennock Pet. 319, 10 L. ed. 979; Tilton v. Mfg. Co., 38 Fed. 379. Cofield, 93 U. S. 163, 167, 23 L. ed. 2 V. S. R. S., § 954. See Park3 858, 859 ; Jacob v. U. S., Brock. 520, 714 § 207] WRITS AND PROCESS. 715 States, 3 charities 4 infants, 5 idiots, and lunatics, are allowed to amend in cases where courts might hesitate to grant the privi- lege to others. Amendments are rarely allowed to the plaintiffs in penal actions and actions to enforce forfeitures. 6 § 207. Amendments of writs and process. A writ may be amended by adding thereto : a date j 1 or, in a removal case, where the State statute so permits, a seal ; 2 or, if it is under seal, by adding the proper teste 3 or signature 4 to the same; or the return day, when served after the original return clay had passed ; 5 or by directing it to a defendant in his official instead of his individual capacity ; 6 or when endorsed by an attorney not admitted to practice in the Federal court, but qualified for such admission, by substituting another attor- ney, 7 or by admitting the original attorney to practice as of a date prior to the issue of the writ ; 8 but that when issued in the Federal court without a seal or signature, the defect can- not be cured by amendment. 9 Petitions and bonds on removal are process within the statute and may be amended in a proper case. 10 It has been held that an omission in the papers upon which an attachment has been granted may be supplied by amendment in a case where the State practice does not permit such a cure. 11 525; Eosenbach v. Dreyfuss, 1 Fed. 391 ; U. S. v. Batchelder, 9 Int. Eev. Eec. 98; Warren v. Moody, 9 Fed. 673; Thomas v. U. S., 15 Ct. CI. 242; Eussell v. U. S., 15 Ct. CI. 168; Gulf, C. & S. F. By. Co. v. James, 48 Fed. 148, 150; Am. Alkali Co. v. Campbell, 113 Fed. 398: Great Northern Ey. Co. v. Herron, C. C. A., 136 Fed." 49; U. S. E. S., §§ 636, 948, 914, 5595, 5596. 3 Ehode Island v. Massachusetts, 13 Pet. 23, 10 L. ed. 41. * President of St. Mary M. Col- lege v. Sibthorp, 1 Euss. 154. 5Serle v. St. Floy, 2 P. Wins. 3S6; Pritchard v. Quinchant, Amb. 147; Story's Eq. PL. §§ 59, 892. «U. S. v. Batchelder, 9 Int. Eev. Eec. 98, Fed. Cas. No. 14.451. § 207. 1 Gilbert v. South Caro- lina I. & W. I. Exposition Co., 113 Fed. 523. . 2 Wolf v. Cook, 40 Fed. 432. 3 U. S. v. Turner. 50 Fed. 734. 4 Bryan v. Ker, 222 U. S. 107, 56 L. ed. 114. SSpeare v. Stone, C. C. A., 193 Fed. 375. v. Herold, 184 Fed. Garrett, 47 Fed. 625. Merritt, 4 Fed. 614; 6 Hastings 759. 1 Jeweti v. 8 Ibid. 9 Dwight v Feaslee v. Haberstro, 15 Blatchf. 472. Contra, Chamberlain v. Men- sing, 47 Fed. 435. 10 Kinney v. Columbia Saw & L. Ass'n, 191 U. S. 78, 48 L. ed. 103. See infra, §§ 546, 547. H Bowden v. Burnliam, 59 Fed. 716 AMENDMENTS. [§ 20! § 208. Amendment of pleadings at common law. It has been held that the time and manner of the amendment of pleadings at common law is determined by the practice of the State where the court is held ; * but, in matters of form, they may be amended in cases where the State statute gives no such permission. 2 The court has power upon the trial to in- crease the amount of damages demanded in the complaint. 3 Where the State practice is silent, amendments at common law will usually be allowed in cases in which they would be allowed in equity, and they have the same effect. § 209. When bills in equity can be amended. The equity rules regulate the amendments of bills as follows : "The plaintiff may, as of course, amend his bill before the defend- ant has responded thereto, but if such amendment be filed after any copy has issued from the clerk's office, the plaintiff at his own cost shall furnish to the solicitor of record of each oppos- ing party a copy of the bill as amended, unless otherwise ordered by the court or judge. 1 After pleading filed by any defendant, plaintiff may amend only by consent of the de- fendant or leave of the court or judge." "The answer may be amended, by leave of the court or judge, upon reasonable notice, so as to put any averment in issue, when justice re- quires it." 2 "The court may at any time, in furtherance of justice, upon such terms as may be just, permit any process, proceeding, pleading or record to be amended, or material supplemental matter to be set forth in an amended or supple- mental pleading. The court, at every stage of the proceeding, must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." 3 Under 752, 754; Erstein v. Rothschild, 22 Fed. 61, 64; Booth v. Denike, 65 Fed. 43 ; infra, Section on Attach- ment. § 208. 1 Rosenbach v. Dreyfuss, 1 Fed. 391. See U. S. R. S., § 914. Contra as to amendments upon the trial, Manitowoc Malting Co. v. Fuechtwanger, 169 Fed. 983. See U. S. R. S., § 954; Erstein v. Rothschild. 22 Fed. 61. 2U. S. R. S., § 954; Manitowoc Malting Co. v. Fuechtwanger, 169 Fed. 983. 3 Manitowoc Malting Co. v. Fuechtwanger, 169 Fed. 983. § 209. lEq. Rule 28. See Gub- bins v. Laughtenschlager, 75 Fed. 6f5; Beavers v. C. A. Richardson & Co., 118 Fed. 320; National Bank v. Carpenter, 101 U. S. 567, 568, 25 L. ed. 815, 816. 2 Eq. Rule 30. 3Eq. Rule 19. 209] WHEN PROPER. 717 the former practice, where objections to the jurisdiction had been sustained without any general appearance, or any plead- ing by the defendant, the bill might always be amended. 4 For the purposes of the rule as to amendments, an answer which has been held or admitted to be insufficient, was, con- sidered as no answer. 5 In !STew York, it was held that, after an insufficient answer, the complainant could not amend by leaving out the defendant's name, thus discontinuing the suit without costs. 6 An amendment of a bill without payment of costs or service of a copy on the defendant might be with- drawn and did not then extend the defendant's time to plead. 7 Under the old chancery practice, it was not usual to give leave to amend when a general demurrer was sustained, but in the discretion of the court that might be done. 8 Under the rules of 1842, if upon a hearing any demurrer or plea was allowed, the court might, in its discretion, upon motion of the plain- tiff, allow him to amend his bill upon such terms as it deemed reasonable. 9 If the defect in the bill was clearly one that went to the whole equity of the plaintiff's case, leave to amend would not be granted. 10 Leave to amend might also be refused when the case of the defendant was a hard one and he was free from wrongdoing while the plaintiff had had an oppor- tunity to plead the new matter when his bill was first drawn. 11 When a demurrer had been sustained, an amendment which did not cure the defect w r ould not be allowed. 12 After a case has been set down for a hearing upon the facts, and especially after such a hearing, an amendment which substantially changes the case made by the bill will rarely be granted, 13 but the 4 Insurance Co. of N. A. v. Svend- sen, 74 Fed. 346. 5Daniell's Ch. Pr. (2d Am. ed.) 473. See Chase v. Dunham, 1 Paige (N. Y.), 572. 6 Chase v. Dunham, 1 Paige (N. Y.), 5.72. 7 Sheffield F. Co. v. Witherow, 149 U. S. 574, 57G, 37 L. ed. 853, 855. «Wellesley v. Wellesley, 4 Myl. & Cr. 554, 558. 9Fq. Rule 35, of 1842. lOLangdell's Eq. PI., § 96: Tyler v. Bell, 2 Myl. & Cr. 89; Lowe v. Farlie, 2 Madd.' 101; Walker v. Powers, 104 U. S. 245, 26 L. ed. 729 ; McKemy v. Supreme Lodge A. 0. U. W., C. C. A., 180 Fed. 961. 11 Dowell v. Applegate, 8 Fed. 698; s. c, 7 Saw. 232. 12 McKemy v. Supreme Lodge A. O. U. W., C. C. A., 180 Fed. 961, 965. 13 The Tremolo Patent, 23 Wall. 518, 527, 23 L. ed. 97, 98; Gubbins v. Laughtenschlager, 75 Fed. 615; Bass, R. & G. v. Feigenspau, 82 Fed. 260; Old Dominion Copper Mining '18 AMENDMENTS. [§ 210 courts usually grant applications for leave to amend so as to correct clerical errors 14 and to -make the pleading's conform to evidence that has heen taken without objection, 15 and they often permit the necessary jurisdiction averments then to be added. 16 An amendment may be allowed by the court at any time; even after a final decree 17 or a judgment at law aud after a decision upon an appeal. 18 In the latter case ordinarily leave from the appellate court to apply for the amendment must be obtained; but where a decree upon the pleading has been reversed and the cause remanded for further proceedings, the complainant may be allowed by the court of first instance to amend his bill without express leave of the court of review. 19 The power of the court of first instance to allow an amend- ment pending an appeal, 20 or writ of error, 21 is extremely doubtful. § 210. Form and effect of amendment of a bill. "Wherever leave to amend the bill is granted, it is more proper to file an amended bill than to interline the original bill, par- &. Smelting Co. v. Lewisohn. 176 Fed. 745; Atchison, T. & S. F. Ry. Co. v. Gilliland, C. C. A., 193 Fed. 608; Healey Ice Machine Co. v. Green, 184 Fed. 515. 14 Mellwood Distilling Co. y. Har- per, 1G7 Fed. 389, an error in the name of the complainant. 15 Old Dominion Copper Mining & Smelting Co. v. Lewisohn, 176 Fed. 745; Pa. Steel Co. v. N. Y. City Ry. Co., 190 Fed. 602; Con- fectioners' Mach. & Mfg. Co. v. Eacine Eng. & Mach. Co., 163 Fed. 914; Lusk v. Bush, C. C. A., 199 Fed. 369; Flint & P. M. R. Co. v. McPherson, C. C. A., 105 Fed. 210, 44 C. C. A., 449; Freund v. S. H. Greene & Sons Corporation, 139 Fed. 703. 16 Baglin v. Title Guaranty & Surety Co., 166 Fed. 356: MeEldow- ney v. Card, 393 Fed. 475; Atchi- son, T. & S. F. Ry. Co. v. Gilliland, C. C. A., 193 Fed. 608: Crosby v. Cuba R. Co., 158 Fed. 144. 17 The Tremolo Patent, 23 Wall. 518, 23 L. ed. 97; McEldowney v. Card, 193 Fed. 475; Maddox v. Thorn, 60 Fed. 217. See Brock v. Fuller Lumber Co., C. C. A., 153 Fed. 272; Fitchburg R. Co. v. Nich- ols, C. C. A., 85 Fed. 869. 18 Post v. Beacon, V. P. & El. Co., C. C. A., 89 Fed. 1, 6: Fitch- burg R. Co. v. Nichols, C. C. A., 85 Fed. 869 ; Newcomb v. Burbank, C. C. A., 181 Fed. 334. 19 Rio Grande Dam & Irrigation Co. v. U. S., 215 U. S. 266, 268, 54 L. ed. 190, 192, where the mandate authorized the court below "to grant leave to both sides to adduce further evidence;" Am. Bell Tel. Co. v. U. S., 68 Fed. 542, 570. 20 R C Sanford Fork & Tool Co., 160 U. S. 247, 40 L. ed. 414: Ber- liner Gramophone Co. v. Seaman, C. C. A.. 113 Fed. 750. 21 St. Louis & S. F. R. Co. v. Loughmiller, 193 Fed. 689, 693. § 210] FORM A1N"D effect. 719 ticularly if some of the defendants had before answered that bill." 1 "The rule is that the amended bill should state no more of the original bill than may be necessary to introduce, and to make intelligible, the new matter, which should alone consti- tute the chief subject of the bill. The reasons for this rule are obvious. ISTot only is the incorporating of the old bill into the amended bill unnecessary, but it increases the costs, and exposes the defendants, particularly those who have answered the original bill, to the trouble of searching out and separating the old from the new matter, at the peril of having their answer excepted to if any mistake should happen, and all the matter of the amended bill should not be answered." 2 Accord- ingly, an amended bill which was obnoxious to this rule was held impertinent. 3 It is the better practice for the solicitor to sign the amendment. 4 An amendment speaks as of the date of the original bill ; 5 and an amendment alleging the reg- uisite difference of citizenship in the present tense will be presumed to refer to the date of the original bill and will sustain the jurisdiction. 6 Where the original bill stated that the infringements charged were since a specified date, it was held that the general allegations in an amendment as to in- fringement at divers times since the issue of the patents did not authorize proof thereof prior to the time alleged in the original pleading. 7 Where an amended bill recited the sub- § 210. iPeirce v. West's Ex'rs, 3 Wash. 354, 355. 2 Ibid. In Alabama, where the amendment, was inconsistent with the allegations in the original bill, which it did not correct or with- draw, the bill as amended was dis- missed upon demurrer. Friedman v. Fennell, 94 Ala. 570, 10 S. R. 649. For a case where a paper de- scribed as an "amended petition" was treated as an amendment to the petition and as setting forth not a substitute to the original cause of action, but an additional or alterna- tive claim, see Melton v. Pensacola Bank & Trust Co., C. C. A., 190 Fed. 126, 130. 3 Peirce v. West's Ex'rs, 3 Wash. 354, 355. 4Daniell's Ch. Pr. (5th Am. ed.) 313. 5 Armstrong Cork Co. v. Mer- chants' Refrigerating Co., C. C. A., 184 Fed. 199. 8 Birdsall v. Perego, 5 Blatchf. 251; Baltimore & O. R. Co. v. Mc- Laughlin, C. C. A., 73 Fed. 519; Campbell v. Johnson, C. C. A., 167 Fed. 102. Contra, Sanbo v. Union Pac. Coal Co., 146 Fed. 80. 7 Geneva Mfg. Co. v. Nat. Furni- ture Co., 188 Fed. 662; Empire C. & Tr. Co. v. Empire C. & M. Co., 150 U. S. 159, 37 L. ed. 1037. 720 AMENDMENTS. [§ 210 stance of the original and made the same a part thereof, it was held that a corporation made a party to the original was a party to the amended bill. The amendment of a hill was usually considered as an admission of the sufficiency of the answer as regards discovery ; 8 but an amendment which merely brings in a new defendant did not have this effect ; 9 and the court might, to prevent delay, entertain a motion to amend a bill in equity at the time that exceptions to the answer are filed, and then require the defendant to answer the amendments and the exceptions together. 10 A suggestion by a defendant, that an amendment, as to which evidence had been offered, should be allowed nunc pro tunc, does not estop him from, filing an answer pleading the statute of limitations to the same. 11 An amendment of a bill, at least before answer, will not, it seems, dissolve an injunction previously granted. 12 It is, however, the usual and the safer practice to have a clause- inserted in the order stating that the amendment may be made without prejudice to the injunction. 13 Unless otherwise pro- vided in the order, it seems that an amendment of a bill will discharge all contempt proceedings previously instituted. 14 But it was held that an amendment of a bill may be allowed upon the hearing of an application for a preliminary injunc- tion, whereupon it takes effect at once, and the hearing may proceed without an adjournment until after the issue of the new subpoena which the amendment necessitates. 15 The action of the court in submitting a case to a jury on a certain theory inconsistent with the plaintiff's pleading when no exception on that ground was made, may be treated as an amendment to 8 Smith's Ch. Pr. (2d Eng. ed.) 13 Read v. Consequa, 4 Wash. 307. 174; DanielFs Ch. Pr. (5th Am. 9 Taylor v. Wrench, 3 Ves. 715. ed.) 424, 425. lORittredge v. Claremont Bank, i* Smith's Ch. Pr. (2d Eng. ed.) 3 Story, 590. 305; Gray v. Campbell, 1 R. & M. 11 U. S. v. Dalcour, 203 U. S. 408, 323 ; Symonds v. Duchess of Cum- 51 L. ed. 248. berland, 2 Cox, 411. 12 Read v. Consequa, 4 Wash. 174, 15 American S. W. Co. v. Wire 180; Smith's Ch. Pr. (2d Eng. ed.), D. & D. W. Unions, 90 Fed. 598. 300; Paniell's Ch. Pr. '5th Am. ed.) 424, 425s 211] OF PLAINTIFF S PLEADING. 721 his pleading, although no formal amendment is entered on the record. 16 § 211. What amendments may be made to bills in equi- ty and declarations at common law. By the former prac- tice an amendment in a bill in equity was required and usually allowed whenever the plaintiff wished to avoid and not merely deny a defense in the answer which had not been anticipated in the original bill. 1 An amendment should rarely if ever be permitted where it would materially change the very substance of the case made by the bill, and to which the parties have directed their proofs/' 2 It is unsettled whether a bill foi- ls Schiffer v. Anderson, C. C. A., 146 Fed. 457, 459; Erie R. Co. v. Kennedy, C. C. A., 191 Fed. 332. § 211. 1 Wilson v. Stolley, 4 Mc- Lean, 275; Lant v. Manley, C. C. A., 75 Fed. 627, 634; Piatt v. Vat- tier, 9 Peters, 405, 9 L. ed. 173. See supra, §§ 136, 195. This rule did not require that the amendment set forth evidence, such as a judg- ment or decree, to establish any fact put in issue by the pleading, Southern Pac. R. Co. v. U. S., 168 U. S. 1, 42 L. ed. 355. 2 Harlan. J., in Hardin v. Boyd, 113 U. S. 756, 761, 28 L. ed. 1141, 1142. Thus, where a bill for the enforcement of a judgment lien upon certain property was filed against certain specified defendants. an amendment was refused after a hearing, when it was sought to seek discovery and relief against all pur- chasers of both the property re- ferred to in the original bill and other property of the judgment debtor. Snced v. McCoull, 12 How. 407. 422, 13 L. ed. 1043, 1049. A bill to restrain the infringement of a patent cannot be amended so as to allege that the title to the patent is in a different person from the one who in the original hill is al- Goodyear v. Fed. Prac. Vol. J.— 46. leged to hold it. Bourn. 3 Blatchf. 266. See Rylands v. La Touche, 2 Bligh, 586. But see Owatonna Mfg. Co. v. F. B. Fargo & Co., 94 Fed. 519; infra, § 231. Such a bill may, however, be amended so as to set up a reis- sue of the original patent, which occurred before the original bill was filed, but was not mentioned herein. The Tremolo Patent, 23 Wall. 518, 23 L. ed. 97; Reay v. Raynor, 19 Fed. 308; Reay v. Berlin & J. E. Co., 30 Fed. 448. But see Jones v. Barker, 11 Fed. 597. And so as to include claims for damages and profits due previous owners of the patent, who have assigned them to the complainant. X. Y. Crape S. Co. v. Buffalo Grape S. Co., 20 Fed. 505. The allegation that certain machines alleged to be used in vio- lation of a patent were infringe- ments when made may also lie added by amendment. Reay v. Ray- nor, 19 Fed. 30S. It was held that a bill for a new trial of an action for the price of stock alleged to have been sold the defendant could not be changed by amendment so as to charge that the defendant held the stock in trust for the complain ant. Oglesby v. Attrill. 14 Fed. 214. A hill tiled by several cred- itors Di'aving the sale of their d«bt- 722 AMENDMENT. [§ 211 or,'s land in one State, and tlie sat- isfaction of their claims out of the proceeds of such sale, cannot be changed by amendment so as to pray relief to one against another of the plaintiffs, in respect to the receipt by the latter of the proceed* of the sale of other land of the same debtor situated in another State and sold under a decree in another suit in another court. Smith v. Woolfolk. 115 U. S. 143, 148. 29 L. ed. 357, 359. A bill by the Land Company of New Mexico to enforce an executory contract by the defendant Smoot for the sale of an interest in land of which the defendant Elk ins had the legal title, and which it was alleged that Smoot was about to assign to the defendant Butler with Elkins's con- nivance, was held not amendable "by omitting all the parties but Elkins, and proceeding against him upon the theory that complainant had acquired Smoot's interest by an absolute and unconditional trans- fer." Land Co. v. Elkins, 120 Fed. 545. It was held that a creditor's bill, filed to obtain the appointment of a receiver of the property of a city, and the application by him of its assets to the satisfaction of its debts, could not be amended so as to seek relief against a receiver and back-tax collector, appointed by a subsequent statute of the State to collect the city's assets. Meriwether v. Garrett, 102 U. S. 472. 502. 26 L. ed. 197, 200. But see Richmond >! Irons, 121 U. S. 27. 30 L. ed. S64. A bill to set aside a sheriff's sale may be amended so as to add a tender of the purchase price and a prayer for a redemption of prop- erty. Graffam v. Burgess, 117 U. S. ISO. 29 L. ed. 839. A bill to set aside a contract for the sale of land as obtained by fraud may be amend- ed by the addition of an alternative prayer for the specific performance of the contract. Hardin v. Boyd, 113 U. S. 756, 28 L. ed. 1141, dis- tinguishing Shields v. Barrow, 17 How. 130, 15 L. ed. 158. A bill to enjoin a railroad company from transporting coal owned by a cor- poration, in which it is a stock- holder, may be "amended so as to set forth that the latter corporation is not a bona fide mining company, but merely an adjunct or instru- mentality of the defendant, which is in effect the legal owner of the coal which it transports, and that by the use of its power as a stock- holder the railroad company has practically obliterated all distinc- tion between the two corporations. U. S. v. Lehigh Valley R. R. Co., 220 U. S. 257, 55 L. ed. 458. A bill to remove a cloud upon the title to land may be amended so as to seek the enforcement of trusts relating to the same property. Partee v. Thomas, 11 Fed. 709. See also Xeale v. Xeales, 9 Wall. 1, 19 L. ed. 590; Battle v. Mutual Life Ins. Co.. 10 Blatchf. 417; Burgess v. Graffam, 10 Fed. 216. But see Sav- age v. Worsham, 104 Fed. 80. It has been said that where the bill originally sets out one agreement which it seeks to enforce, and the answer admits the execution of an- other agreement of a similar char- acter, but with provisions different from those alleged in the bill, the plaintiff may amend abandoning the agreement first pleaded by him, and obtain the enforcement of that ad- mitted by the defendant; but that he cannot, while still praying the enforcement of the agreement as set out by him. amend so as to seek, in case he fail in proving that, an 211] of plaintiff's; pleading. 723 discovery can be amended so as also to pray relief. It was held that a bill filed against persons in their individual capacity cannot be amended so as to sue them as officers of a corpo- ration, 4 hut that when two corporations of the same name were organized in different States, a mistake in the designation of the place of incorporation of the complainant 5 or defendant 6 might be corrected by amendment, and that so may be a mis- take in the name of a corporation defendant which has ap- peared and defended. 7 A cross-bill has been amended so as to radically change the ground of the relief sought, when the proofs which make the amendment necessary have been fur- nished by the complainant in support of the latter's original bill. 8 When the suit was begun in a Federal court, that court may allow an amendment setting forth the facts essential to the Federal jurisdiction, 9 such as the requisite difference of citizenship, 10 or the sufficient value of the matter in dispute. 11 The practice in removed cases is considered in a subsequent section. 18 Allegations in a remittitur tiled after judgment can- not be considered as amendments to a pleading. 13 Great enforcement of the one admitted in the answer. Lindsay v. Lynch, 2 Scli. & Lef. 1, 9. 3 See Horsburg v. Baker, 1 Pet. 232; 7 L. ed. 125; Butterworth v. Bailey, 15 Ves. 358; Hildyard v. Gressy, 3 Atk. 303; Crow v. Tyrell, 2 Madd. 31)7; Jackson v. Strong. 1 McClei. 245: Lonsada v. Templer, 2 Russ. 505: Daniell's Ch. Pr. (2d Am. ed.) 203-465. 4 Tyler v. Calloway, 13 Fed. 477. But see Womersley v. Merritt, L. R. 4 Eqj 095; Richmond v. Irons, 121 U. S. 27, 30 L. ed. 864: Pcndery v. Carleton. 87 Fed. 41. 5 Confectioners' Mach. & Mfg. Co. v. Racine Eng. & Mach. Co. 163 Fed. 914. 6 Bainum v. Am. Bridge Co. of N. Y., 141 Fed. 179, where one company was designated in its corporate name as "of New York" and the other as "of New Jersey"; Ilernan v. Am. Bridge Co., C. C. A., 167 Fed. 930; Clemmens v. Washington Park Steamboat Co., 171 Fed. 168. I Clemmens v. Washington Park Steamboat Co., 171 Fed. 168. 8 Chicago M. & St. P. Ry. Co. v. Third Xat. Bank. 134 U. S. 276, 289, 33 L. ed. 900, 904. 9 Continental Ins. Co. v. Rlroads, 119 U. S. 237, 30 L. ed. 380, Ilalstcd v. Buster, 119 U. S. 341, 30 L. ed. 402; Denny v. Pi 1011 i. 141 U. S. 121, 124. 35 L. ed. 657. 058; Watson v. Bonfils, C. C. A., 116 Fed. 157; Mad- dox v. Thorn. 60 Fed. 217. See Brock v. Fuller Lumber Co., C. C. A., 153 Fed. 272. Contra, Dickin- son v. Consol. Tr. Co., 114 Fed. I'M. 10 Ibid. II Thompson v. Automatic «Fire Protection Co.. 151 Fed. 945. 12 Infra, Chapter XXXII. 13 Denny v. I'ironi, 141 U. S. 121, 35 L. ed. 657. ■724 AMENDMENT. [§ 211 liberality is allowed as to amendments which strike out parties, 14 or bring in new parties/ 5 except as to bills for discovery, to which in England no new parties could be added, 16 but an indispensable party whose citizenship would defeat the jurisdiction cannot be brought in by amendment, 17 and after a removal, an amendment to substitute a defendant for the pur- pose of defeating the jurisdiction has been denied. 18 A bill filed by a married woman can almost always be amended by the addition of the name of a next friend when necessary. 19 A bill filed on behalf of one's self and others may be amended by striking out the invitation to others to join, provided none of them have come in ; 20 and a bill in one's own name may be amended by the addition of words sufficient to make it a bill in behalf of a class. 21 Amendments have been allowed so as to change a bill or declaration filed by the plaintiff individually into one filed by him as executor, 22 or administrator, 23 or a bill filed by him as administrator into one filed by him in his individual capacity, 24 and a bill filed against an executor into one charging him as administrator of the same person, 20 al- though the statute of limitations had expired. 26 It has been said that when the complaint contains any allegation of a HConolly v. Taylor, 2 Pet. 556, 7 L. ed. 518; Dwight v. Humphreys, 3 McLean, 104. 15 Fisher v. Rutherford, Baldwin, 188; Patterson v. Stapler, 7 Fed. 210. 16 Marquis Cholmondeley v. Lord Clinton, 2 Meri. 71. . 17 Delaware, L. & W. Pv. Co. v. Mayer, etc., of Jersey City, 168 Fed. 128. 18 Taylor v. Weir, 162 Fed. 585, h here there were circumstances from which an estoppel might arise. "Douglas v. Butler, 6 Fed. 228. 20 Yates v. Arden, 5 Cranch C. C. 526: Anthony v. Campbell, C. C. A.. 112 Fed. 212. 21 Richmond v. Irons, 121 U. S. 27. 30 L. ed. S64 ; Good v. Blewitt, 13 Yes. 397, 401; Atty. Gen. v. Xew- combe. 14 Ves. 1, 6; Resse R. S. Min. Co. v. Atwell, L. R. 7 Eq. 347. 22 Leahy v. Haworth, C. C. A., 4 L.R.A.(X.S.) 657, 141 Fed. 850. 23 Missouri, K. & T. Ry. Co. v. Wulf, C. C. A., 192 Fed. 919; Rear- don v. Balaklala Consol. Copper Co., 193 Fed. 189. An amendment was allowed upon the trial to permit an administratrix to amend by aver- ring that her appointment was by a local court of a different county from that first alleged in her decla- ration. Chicago Great Western R. Co. v. McCormick, C. C. A., 200 Fed. 375. 24 St. Louis & S. F. R. Co. v. Herr, C. C. A., 193 Fed. 950. 25 Randolph v. Barrett, 16 Pet. 138, 10 L. ed. 914. 26 Reardon v. Balaklala Consol. Copper Co., 193 Fed. 189. 211] OF PLAINTIFF S PLEADING. 725 ground of recovery, although merely inferential, the court has discretionary power to permit the defect to be cured by amend- ment. 27 In an English case, a bill in behalf of a charity was changed by amendment into an information. 28 Before the new equity rules, it was held that in a removed case, a complaint containing a statement of grounds for equitable relief might be amended, so as to turn it into a bill in equity; although the issues have been tried on the common law side of the court. 29 Xow, if at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, it shall be forthwith transferred to the law side and be there proceeded with, with only such alteration in the pleadings as shall be essential. 30 An amendment to a petition which sets up no new cause of action and makes no new de- mand, but simply varies or expands the allegations in support of the cause of action, previously pleaded, relates back to the beginning of the action ; and, when the suit was begun within the statutory period of limitation, it is not barred by the ex- piration of that time previous to the amendment; 31 but an amendment, which introduces a new or different cause of ac- tion and makes a new or different demand, is the equivalent of a fresh suit upon a new cause of action, and the statute continues to run until the amendment is made. 32 The former rule applies although the two causes of action arise out of the same transaction, when, by the practice of the State, a plain- tiff is only required, in his pleading, to state the facts which constitute his cause of action, 33 when the original declaration referred to a State law and the amendment to the Federal Em- ployers' Liability Act, the allegations of fact, except as to the 27 Great Northern Ry. Co. v. Her- ron, C. C. A., 136 Fed. 49. 28 President of St. Mary M. Col- lege v. Sibthorp, 1 Russ. 154. 29 Goodyear Shoe Machinery Co. v. Dancel, C. C. A., 119 Fed. 692; Dancel v. Goodyear Shoe Machinery Co., C. C. A., 144 Fed. 679, in which the author Mas counsel. The point does not appear in the report, but the permission was contained in the mandate, and objections to the same argued twice in the Circuit Court of Appeals, and again upon the peti- tion for a certiorari which was de- nied by the Supreme Court; 202 U. S. 619. 50 L. ed. 1174. 30 Eq. Rul. 22. 31 Patillo v. Allen-West Commis- sion Co. 131 Fed. 680. 32 U. S. v. Dalcour, 203 U. S. 408, 423, 51 L. ed. 248, 251. 33 Patillo v. Allen-West C. Co. 131 Fed. 680. 726 AMENDMENT. [§ 212 capacity in which the plaintiff sued, being in Loth pleadings the same, 34 and when the complaint stated facts, from which the law raised the legal presumption of a promise to pay the balance of an account stated and demanded judgment for that amount, it and this amendment, added an averment of a promise to pay the balance. 35 But it has been held : that a new- cause of action is presented by changing the ground of recovery from a right at common law to one under a Kansas statute, 6 or from a right under a treaty to a right under a statute, which did away with the defense that the negligence of which complaint was made was that of a fellow-servant ; 37 and that if the statutory period expired before such an amendment, the claim was barred. 38 § 212. Amendment by pleading matters subsequent to the filing of the bill. The general rule is that nothing which has occurred since the filing of a bill can be added to it by amendment. 1 Such matters, when admissible, should ordi- narily be introduced by a supplemental bill. 2 It was held in- competent to amend a bill, stating that certain notes and mort- gages were executed under a threat bv the defendant that he would kill the complainant if they were not executed and paid at their maturity, by adding the allegation, "that in pur- suance of such threat the defendant did, subsequently to the commencement of this suit, take the life of the original com- plainant." 3 Such a murder does not add to the complainant's cause of action, although it might be put in evidence as tend- ing to prove the original duress. 4 A bill may perhaps be amended before answer, demurrer, or plea, by alleging new matter that has occurred since it was first filed. 5 And it has 34 u. S. 35Patillo v. Allen- West C. Co., 131 Fed. 680. 36 Union Pac. Ry. Co. v. Wyler, 158 U. S. 285, 39 L. ed. 983; U. S. v. Dalcour, 203 U. S. 408, 51 L. ed. 248. 37 Union Pae. Ry. Co. v. Wyler, 158 U. S. 285, 298, 39 L. ed. 983, 991 ; IT. S. v. Dalcour. 203 U. S. 408, 423. 51 L. ed. 248, 251. 38 Ibid. § 212. 1 Wray v. Hutchinson, 2 Myl. & K. 235: Mason v. Hartford, P. & F. R. Co., 10 Fed. 334; Copen v. Fleslier, 1 Bond. 440: Lvster v. Stickney, 12 Fed. 609: Mellor v. Smither, C. C. A.. 114 Fed. 116. 2 See § 231, infra. SLyster v. Stickney, 12 Fed. 609. 610. 4Lyster v. Stickney. 12 Fed. 609. 5 Story's Eq. PI.. § 885; Candler v. Pettit, 1 Paige (N. Y.), 168; Ogden v. Gibbons, Haist. N. J. Dig. 172. § 212] MATTER SUBSEQUENT. 727 been held that where a plaintiff has, at the time of filing his original bill, an inchoate right, to perfect which a formal act alone is necessary, and such formal act is not performed till afterwards ; as where an executor files a bill before probate, and subsequently proves the testament, 6 or the next of kin brings a suit to protect the personal estate of an intestate, subse- quently procures her appointment as administratrix, 7 or a foreign administrator files a bill before obtaining ancillary letters of administration, and such letters are subsequently issued to him ; 8 the introduction of the fact by amendment will be permitted. 9 It has been said that amendments might be allowed to set forth damages that accrued since the filing of the bill. 10 It has been also held in England that the "defend- ant, when he puts in his answer, must state the facts as they then are ; and if circumstances are then introduced in the answer which occurred subsequent to the filing of the bill the plaintiff must be allowed to make amendments to the bill, so as to show that such new circumstances mentioned in the answer are not of the color he represents them, and so as to obtain a complete answer as to such circumstances." u Except possibly in a few cases of the assignment of patents, 12 where the plaintiff has no cause of action at the time the suit is SBelloat v. Morst, 2 Hayw. (N. C.) 157; Daniell's Ch. Pr. (2d Am. ed.) 460. 7 Humphreys v. Humphreys, 3 P. Wms. 348; Bradford v. Felder, 2 M'Cord (S. C), Ch. 170. See Person v. Fidelity & Casualty Co., C. C. A., 92 Fed. 965; reversing s. c, 84 Fed. 759: Mo., Kansas & Tex. By. Co. v. Wulf, 226 U. S. 570, 57 L. ed. — . 8 Swatzel v. Arnold, Woolw. 338 ; Black v. Henry G. Allen Co., 9 L.R.A. 433. 42 Fed. 618, 624; Hodges v. Kimball. C. C. A., 91 Fed. 845; Leahy v. Haworth, C. C. A., 141 Fed. 850: holding that the ancil- lary letters related back to the date of the filing of the bill, not only for the purpose of qualifying complainant to sue, but also so as to defeat the statute of limi- tations. Dodge v. Town of North Hudson, 188 Fed. 489, an action un- der the State statute for negligence, which caused the death of the intes- tate. Contra, Mason v. Hartford, P. & F. R. Co., 10 Fed. 334. 9 Daniell's Ch. Pr. (2d Am. ed.) 460, 461; Swatzel v. Arnold, Woolw. 383; Black v. Henry G. Allen Co. 9 L.R.A. 433, 42 Fed. 618, 624; Humphreys v. Humphreys, 3 P. Wms. 348. 10 Mitchell v. Big Six Develop- ment Co., 186 Fed. 552. 11 Sir Thomas Plumer, V. C. in Knight v. Matthews, 1 Madd. 566. 12 See infra, § 231. 728 AMENDMENT. [§ 213 brought, he cannot continue the suit by pleading the subse- quent accrual of a cause of action to him. 13 Thus, a defective creditor's bill cannot be amended by setting up a judgment obtained after it was filed. 14 Where, prior to the filing of a bill for the infringement of a patent, the defendant had com- mitted no infringement, and had threatened none ; it was held : that a subsequent change in the structure, which con- stituted an infringement, would not warrant the granting of a preliminary injunction in the same suit. 15 § 213. Proceedings upon an amended bill. When the amendment merely brings in new parties defendant, they alone need be served with a new subpoena. 1 If, however, a bill is substantially amended by the addition of new charges, according to the English practice a subpoena to answer the amendments had to be sued out and served upon all the defendants. 2 Where, before answer, the bill is amended in a material point, the time to answer is extended to the same time as if the amended were an original bill. 3 If, however, a defendant has answered the original bill, he cannot, without obtaining leave to with- draw his first answer, answer to any more than the new matter, unless the amendments virtually make a new case. 4 Where the amendments seek to introduce new matter which is properly the subject of a supplemental bill, the defendant must raise that objection by answer, 5 or motion to dismiss. 6 Otherwise, the objection will be waived. 7 The equity rules provide that, "In any case where an amendment shall be made after answer 13 Putney v. Whitmire, 66 Fed. 385; Westinghouse Air-Brake Co. v. Cliristensen Engineering Co.. 121 Fed. 55S; Am. Bonding & Tr. Co. v. Gibson County, C. C. A., 145 Fed. 87]. 14 Putney v. Whitmire, 66 Fed. 385. 15 Westinghouse Air-Brake Co. v. Christensen Engineering Co., 321 Fed. 558. § 213. ILongworth v. Taylor, 1 McLean, 514; Angerstein v. Clarke, 1 Ves. Jr. 250: Skeflington v. , 4 Ves. 66. 2 Cooke v. Davies, T. & R. 309; Bramston v. Carter, 2 Sim. 45S. See Kendall v. Beckett, 1 Buss. 152. 3 Nelson v. Eaton, 66 Fed. 376. * Keene v. Wheatley, 9 Am. Law Reg. 33, 60: Atkinson v. Hanway, 1 Cox Eq. 360; Ellice v. Goodson, 3 "M. & C. 653; Ritchie v. Aylwin 15 Ves. 79; North Chicago St. R. Co. v. Chicago Union Traction Co., 150 Fed. 612. See Ellice v. Good- son. 3 M. & C. 653. 5 Wray v. Hutchinson, 2 M. & K. 235. 6 Brown v. Higden, 1 Atk. 291. 1 Archbishop of York v. Staple- ton, 2 Atk. 136. § 214] OF ANSWERS AND PLEAS. 729 filed, the defendant shall put in a new answer or supple- mental answer within ten days after that on which the amend- ment or amended bill is filed, unless the time is enlarged or otherwise ordered by a judge of the court; and upon his de- fault, the like proceedings may be had as in cases of an omis- sion to put in an answer." 8 An answer to an amended bill is impertinent if it contains any matter which was pleaded in the answer to the bill before amendment. 9 It seems to have been the English rule that an answer to an amended bill might set up an entirely new defense inconsistent with that in his former answer. 10 The court may after amendment refuse leave to file an answer which does not plead a defense to the new matter. 11 § 214. Amendment of answers and pleas. The Equity Eules provide concerning the amendment of answers: 'The answer may be amended, by leave of the court or judge, upon reasonable notice, so as to put any averment in issue, when justice requires it." 1 It will be observed that this does not specifically provide for the insertion of a new affirmative de- fense by amendment, as was permitted by the former prac- tice. 2 The principles upon which the courts proceed in allow- ing such amendments is thus stated by Judge Story: "In mere matters of form, or mistakes of dates, or verbal in- accuracies, courts of equity are very indulgent in allowing amendments. But when application is made to amend an answer in material facts, or to change essentially the grounds taken in the original answer, courts of equity are exceedingly slow and reluctant in acceding to it. To support such appli- cations, they require very cogent circumstances, and such as to repel the notion of any attempt of the party to evade the justice of the cause, or to set up new and ingeniously contrived defenses or subterfuges. When the object is to let in new facts and defenses wholly dependent upon parol evidence, the re- 8 Equity Rule 32; copied in sub- n Chicago, M. & St. P. Ry. Co. stance from Eq. Bill. 46 of 1842. v. Third Xat. Bank, 134 U. S. 270, 9 Gier v. Gregg, 4 McLean, 202. 289, 33 L. ed. 900, 905. lODaniell's Ch. Pr. (2d Am. ed.) § 214. 1 Eq. Rule 30. 4G8; citing Bolton v. Bolton, MS. 2 See Smith v. Babcock, 3 Sumner, See also Trust & F. Ins. Co. V. Jen- 583. kins, 8 Paige (X. Y.) 589. 730 AMENDMENT. [§ 214 luctance of the court is greatly increased, since it has a natural tendency to encourage carelessness and indifference in making answers, and leaves much room for the introduction of testi- mony manufactured for the occasion. But when the new facts sought to be introduced are written papers or documents, which have been omitted by accident or mistake, there the same reason does not apply in its full force, for such papers and documents cannot be made to speak a different language from that which originally belonged to them. The whole matter rests in the sound discretion of the court." 3 "It seems to me that before any court of equity should allow such amended . answers, it should be perfectly satisfied that the reasons assigned for the application are cogent and satisfac- tory; that the mistakes to be corrected, or the facts to be added, are made highly probable, if not certain; that they are material to the merits of the case in controversy; that the party has not been guilty of gross negligence; and that the mistakes have been ascertained, and the new r facts have come to the knowledge of the party, since the original answer was put and sworn to. "Where the party relies upon new acts which have come to his knowledge since the answer was put in, or where it is manifest that he has been taken by surprise, or where the mistake or omission is manifestly a mere inadvert- ence and oversight, there is generally less reason to object to the amendment than there is where the whole bearing of the facts and evidence must have been well known before the answer w T as put in." 4 Permission may be granted upon terms ; for example, that the testimony on the issues raised by the former pleading be allowed to stand and that subsequent pro- ceedings be taken upon short notice. 5 An amendment of an answer, 6 or a cross-bill, changing the. character of the defense will rarely be allowed after the court has rendered or caused to be rendered an opinion adverse to the position originally 3 Smith v. Babcock, 3 Sumn. 583, 6 Calloway v. Dobson. 1 Brock. 586. 119 : ; Gubbins v. Laughtenschlager, 4 Smith v. Babcock.. 3 Sumn. 583, 75 Fed. 615; Claflin v. Bennett, 51 586; X. Y. Filter Co. v. O. H. Jewett Fed. 693, 701. See Walden v. Bod- F. Co.. 62 Fed. 5S2. lev, 14 Pet. 156. 10 L. ed. 398; 5 Farmers' Loan & Tr. Co. v. Cen- Hamilton v. Nevada G. & S. M. Co., tral Park, N. & E. P.. R. Co., 175 33 Fed. 562, 568. Fed. 528. § 215] PRACTICE. 731 taken by the defendant. 7 The defendant will- rarely be allowed to withdraw an admission which he has made. 8 Leave to amend will be denied when the complainant proves conclusively by affidavit that the new matter sought to be introduced is false. 9 Ordinarily, leave to amend an answer will be denied when the defendant knew of the facts which he wishes to introduce, at the time his original answer was drawn ; 10 or might have then discovered them bv the exercise of reasonable diligence. 11 An omission due to a mistake of law cannot ordinarily be cured by amendment. 12 The court may refuse to allow an amend- ment which would introduce an unconscientious defense, such as the statute of limitations, 13 the statute of frauds, 14 or that a contract made by a complainant corporation was not authorized by its charter. 15 When the proposed amendment is trivial the answer may be remove dfrom the file, altered, resworn to, and refiled ; 16 but if it is of any length, it is customary to file a supplemental answer setting it forth. 17 Pleas at common law, verified before the wrong officer, may be corrected by amendment and the proper verification added on the trial, 18 and amendments to pleadings will be allowed at common law in all cases authorized by the State statute. 19 § 215. Practice in obtaining leave to amend. It has been held that the practice upon an application to amend at common law follows that in the State where the action is pend- 7 Ferguson Contracting Co. v. Manhattan Tr. Co., C. C. A., 118 Fed. 791. SRuggles v. Eddy, 11 Blatchf. 524. 9 Hicks v. Otto, 17 Fed. 539. 10 India R. C. Co. v. Phelps, 8 Blatchf. 85; Webster L. Co. v. Hig- gins, 13 Blatchf. 349; Cross v. Mor- gan, 6 Fed. 241 ; Suydam v. Trues- dale, 6 McLean, 459. But see Stand- ard El. I. Co. v. Ramsey, 130 Fed. 151. 11 India R. C. Co. v. Phelps, 8 Blatchf. 85; Webster L. Co. v. Hig- gins, 13 Blatchf. 349. 12 Webster L.* Co. v. Higgins, 13 Blatchf. 349; Cross v. Morgan, G Fed. 241. 13 Cock v. Evans. 9 Yerg (Tenn.) 287. 14 Cook v. Bee, 2 Tenn. Ch. 344. 15 Third Av. Saw Bank v. Dim- ock. 9 C. E. Green (24 N. J. Eq.) 26. 16 Bailey W. Mach. Co. v. Young, 12 Blatchf. 199. 17 Bolder v. Bank of England, 10 Yes. 284, 285; Daniell's Ch. Pr. (5th Am. ed.) 779, 780. is Bank of Edgfield v. Farmers' C. M. Co., 18 L.R.A. 201, 52 Fed. 98. 19 Leman v. Baltimore & O. R. Co., 128 Fed. 191. AMENDMENT. •[§ 215 ing. In equity the application for leave to amend must be in writing, stating the new matter which the applicant desires to introduce by amendment, and must be supported by an affidavit, staging the reason why this matter was not included in the original pleading. 1 It is the better practice for the complainants to present specific amendments to paragraphs of the original bill 2 and not to present a substituted bill, 3 except under extraordinary circumstances. In one case, detailed proof by affidavit was required concerning matters that it was de- sired to add by amendment in a general allegation. 4 When a party is entitled to amend as of course, no affidavit is re- quired. 5 Where the former pleading was verified, oath must be made to the truth of the proposed amendment. 6 Where the proposed amendment consists of matters disclosed by documen- tary evidence, the documents themselves must be produced if possible. 7 Notice of the application for an amendment must always be given when leave of the court is required. 8 An amendment inserting the name of a new party plaintiff should not, ordinarily, be allowed without notice to him. 9 The court may impose costs or other terms as a condition precedent to amendment; for example, a disclosure of the names of the witnesses whom the party expects to call to prove the new matter, 10 or a direction that testimony taken under the former issue shall be allowed to stand and that short notice be taken of subsequent proceedings. 11 The time within which the amend- § 215. 1U. S. R. S., § 914; Rosenbach v. Dreyfuss, 1 Fed. 391; Leman v. Baltimore & 0. R. Co., 128 Fed. 191. But see Erstein v. Rothschild. 22 Fed. 61. Contra, dicta in Manitowoc Malting Co. v. Fuechtwanger. 169 Fed. 983: Snead v. M'Goull, .12 How. 407.. 422. 13 L. ed. 1043, 1049: Mer. Nat. Bank v. ( arpenter, 3 0] U, S. 5i;7. 25 L. ed. 815; Wells v. Wood, 10 Yes. 401; Nabob of the Carnatic v. East In- dia Co.. 1 Yes. Jr. 374. 385; Rod- gers v. Rodgers, 1 Paige (X. Y.), 424; Daniell's Cli. Pi\ (5th Am. ed.) 781. 2 Old Dominion Copper Mining & Smelting Co. v. Lewisohn, 176 Fed. 745. 3 Ibid. 4 Postal Tel. Cable Co. v. Liver- more & Knight Co., 194 Fed. ISO. 5 Chase Electric Const. Co. v. Co- lumbia Const, Co., 136 Fed. 699. 6 Rodgers v. Rodgers, 1 Paige (N. Y.), 424. 7 Churton v. Frewen, L. R. 1 Eq. 238: Daniell's Ch. Pr. (5th Am. ed.) 781. 8 Rkrgs v. Brown, 172 Fed. 63S. 9 Frank v. Union Cent. L. I. Co., 130 Fed. 224. 10 Caster v. Wood. 1 Baldw. 289. 11 Farmers' Loan & Tr. Co. v. Cen- § 215] PRACTICE. 733 ment must be filed may be limited. 12 It has been said that when leave is asked to file a substituted bill of coin phi int. the court can only permit or reject it as a whole and should not be expected to refuse the same and permit it to be filed when drawn in a different form. 13 When leave to amend by adding the essential jurisdictional averments was granted after verdict for plaintiff, no trial was permitted of any other issue except, that which the defendant raised upon the same. 14 and the verdict upon the other issues was allowed to stand. 15 In one case, the parties were directed to take depositions concerning the jurisdictional allegations in support of the application, for an amendment. 16 The order allowing the amendment should state the new matter to be inserted. 17 If the amended pleading states new matter not allowed by the order, it may be stricken from the file. 18 An objection that an amended bill contains matter which should have been pleaded in a supplemental bill is waived if not set up by demurrer, plea or answer. 19 It was held, that an order dismissing a bill, when a plea is sustained, is a bar to a subsequent application for leave to amend. 20 The court upon appeal will disregard an amended pleading filed without leave, 21 unless the other party has treated it a sinvalid. when he cannot raise the objection for the first time upon appeal. 22 AYhen both parties have conducted the case as if the pleadings contained certain allegations therein omitted, an amendment inserting such allegations may be allowed at almost any stage of the cause. 23 Where the record on appeal shows that tral Park, X. & E. R. R. Co., 175 Fed. 528. 12 Klein v. Title Guaranty & Sure- ty Co.. 100 Fed. 305, ten days. ISOld Dominion Copper Mining & Smelting Co. v. Lewisohn, 170 Fed. 745. 14 Crosby v. Cuba R. Co.. 158 Fed. 144, 153; Grand Trunk Western R. Co. v. Reddick. C. C. A., 100 Fed. 898. 15 Ibid. 16 Crosby v. Cuba R. Co., 158 Fed. 144. 153. lTDaniell's Ch. Pr. (5th Am. ed.) 410. 18 Strange v. Collins, 2 V. & B. 163, 167. 19 Seattle & S. & E. Ry. Co. v. Union Tr. Co., 79 Fed. 179. 20 Raphael v. Trask. IIS Fed. 678. 21 Terry v. McLure, 103 U. S. 442, 20 L. ed. 403. 22 Clements v. .Moore, Wall. 299, 18 L. ed. 7S0. 28 Tremolo Patent, 23 Wall. :.ls. 23 L. I'd. 97; Confectioners' Mach. & Mfg. Cc v. Racine Eng. & Mach. Co., 103 Fed. !I14: Old Dominion Copper Mining & Smelting Co. v. Lewisohn, 170 Fed. 745: Pa. Steel Co. v. \. V. City Ry. Co.. 190 Fed- 734 AMENDMENT. [§ 215 an amended bill which omitted one of the original parties was filed bj leave of the court, it will be presumed that leave to dismiss as to snch party was granted when there is nothing in the record to show the contrary. 24 An appellate court may, 25 but rarely 26 will, reverse a decree for an error in refusing- permission to make an amendment; never unless the proposed amendment appears upon the record, 27 but a refusal to allow an amendment, after final decree, will rarely, if ever, be re- viewed by an appellate court. 28 It has been said that a decree will not be reversed for an error in allowing amendments, 29 A Federal court of review will not allow a pleading to be amended upon writ of error or appeal thereto, 30 except by con- sent. 31 An appellate court may, however, especially where the question of jurisdiction was not raised below, when re- versing a judgment direct that the plaintiff be permitted to amend. 32 In one case it has been held, that upon such a reversal the issues may be narrowed to the question of the jurisdiction of the court. 33 But another held: that a Circuit Court of Appeals had no power, upon the motion of the appel- lant, to dismiss an appeal and remand the case to the court below, with directions to permit the amendment of a pleading to insert facts inadvertently omitted, when the omission was 002; McEldowney v. Card, 193 Fed. 475. 24Hicklin v. Marco, C. C. A., 56 Fed. 549. 25Ridie v. Whitehill, 135 U. S. 021. 627. 640. 34 L. ed. 282, 285. 289; Lant v. Manley, 75 Fed. 634: 1 . S. v. Lehigh Valley R. E. Co., 220 Ij S. 257. o^ L. ed. 458. 26 Mer. Nat. Bank v. Carpenter, 101 V. S. 507. 568, 25 L. ed. 815, Sir,: Hudson v. Randolph, C. C. A., ■66 Fed. 216; McKem'y v. Supreme Lodge A. O. U. W., C. C. A., 180 Fed. 961 ; Brookfield v. Novelty Glass Mfg. Co., C. C. A., 170 Fed. 1)60. 27 National Bank v. Carpenter, 101 U. S. 567, 568, 25 L. ed. 815, 816. 28 Brown v. Schleier, 194 U. S. 18, 4S L. ed. 857. 29 Chapman v. Barney, 129 U. S. 077. 681, 32 L. ed. 800, 801. 30 Pacific R. Co. of Mo. v. Ketch- urn. 95 U. S. 1, 24 L. ed. 347: Yeandle v. Pa. R. Co., C. C. A., 169 Fed. 938. But see Williams v. Molther, C. C. A.. 198 Fed. 460. 31 Kennedy v. Georgia State Bank, 8 How. 586, 12 L. ed. 1209. 32 Puget Sound Nav. Co. v. Lav- endar, C. C. A., 156 Fed. 361. 33 Grand Trunk Western Ry. Co. v. Reddick, C. C. A., 160 Fed. 898, which is contrary to the usual prac- tice. § 215] PKACTICE. 735 not known to the appellant until after the appeal was taken. 34 It was held that a Circuit Court had power to allow an amendment when hearing an appeal from a District Court. 35 A defendant cannot require the complainant to amend his bill. 36 34 Strand v. Griffith, C. C. A., 135 36 North Chicago St. R. Co. v. Fed. 739. Chicago Union Traction Co., 150 35 Warren v. Moody, 9 Fed. 673. Fed. 612. CHAPTER XIII. ABATEMENT, REVIVOR AND SUPPLEMENT AT LAW AND IN EQUITY. § 216. Abatement. If any event happens after the filing of a bill in equity which makes it necessary to bring- in a new party, either plaintiff or defendant, in order to obtain a com- plete or satisfactory determination of the controversy, the suit will either abate or become defective. 1 The abatement or defect must be remedied by the filing of a bill of revivor, a bill in the nature of a bill of revivor, a supplemental bill, a bill in the nature of a supplemental bill, or a bill of re- vivor and supplement, 2 or perhaps by motion upon affidavit without such a pleading. 3 An abatement takes place by the death of one of the parties, or, where a married woman is under a disability, by the marriage of a female plaintiff. 4 An action entirely abates by the death of any of the plain- tiff: 5 unless his interest therein wholly ceases by his death, 6 " or survives -to another party to the suit, 7 or he has been previ- ously discharged by a decree in an interpleader 8 suit, or a suit in the nature of an interpleader; when it does not. Formerly a suit abated by the marriage of a female plaintiff; 9 but it may be doubted whether this rule would be followed where a married woman has the same power over her property as if she were single. 10 By the marriage of a female defendant, a suit never abated, though her husband had to be named in § 210. iMitford's PI., ch. 1, § 3. 2 Mitford's PI., ch. 1, § 3. See infra, § 220, for proceedings at com- mon law. 3Kf|. Rule 45. But see*Eq. Rule ::.-): infra, § 221. 4 Mitford's PI., ch. 1. § 3. 5 Mitford's PI., ch. 1, § 3; Story's F.q. PI., § 354. 6Daniell's Ch. Pr. (2d Am. ed.) 1008; .Mitford's PI., ch. 1, § 3. 7 Fa 11 owes v. Williamson, 11 Ves. 309; Boddy v. Kent, 1 Mer. 3f>4; Fisher v. Rutherford, Baldw. 188; Daniell's Ch. Pr. (2d Am. ed.) 1699. 8 Anon., 1 Vern. 351; Jennings v. Nugent, 1 Molloy, 134; Daniell's Ch. Pr. (2d Am. ed.) 1765. 9 Mitford's PI., ch. 1, § 3; Story's Eq. PL, § 354. lOLorillard v. Standard Oil Co., 2 Fed. 902. 736 § 216] ABATEMENT. 737 all subsequent proceedings. 11 When the husband of a female plaintiff died, by the former practice she could at her option continue the suit without filing anv bill of revivor ; but if she did not, it was considered abated and she was not liable for the costs. 12 Before the hearing of a suit, 13 it abates upon the death of a defendant who has appeared so far as proceedings against him or his interest are concerned, and if he were an in- dispensable party to a decree all proceedings must be suspended till his representatives have been brought in. 14 If, however, his interest wholly ceases by his death, or wholly survives to one of the other parties, no revivor will be necessary. 15 A suit abates by the death of a member of a firm during a suit against it. 16 It has been held that the death of a defendant before ap- pearance does not abate the suit; for, according to the former practice, till his appearance, or a decree taken against him pro confesso, there was no cause against him ; but a bill to be filed against his representative, which was an original bill as far as respected the defendant, but a supplemental bill with respect to the suit. 17 The Revised Statutes further provide that if there are two or more plaintiffs or defendants in a suit, where the cause of action survives to the surviving plaintiff or against the surviving defendant, and one or more of them dies, the suit and action do not thereby abate ; but such death must be suggested in the record, and the action thereupon proceed at the suit of the sur- viving plaintiff against the surviving defendant. 18 This applies to a suit for the infringement of a trade-mark, since that is a 11 Mitfovd's PI., ch. 1, § 3: Story's Eq. PI., § 354. A suit does not abate by the marriage of a male de- fendant, although it affects real es- tate. Clark v. Hall, 7 Paige (X. Y.)j 382. The coming of age of an infant party does not abate the suit or render it defective unless his in- terest is thereby charged. Camp- bell v. Bowne, 5 Paige (X. Y.), 34. u.Mitford'a PL, ch. 1, § 3. I* Child's v. Ferguson, C. C. A., 1ST Fed. 705. 14 Story's Eq: PI., § 369; Wright v Phipps, 58 Fed. 552. Fed. Pracx Vol. I.— 47. iSMitford's PI., ch. 1, § 3; Dan- iell's Ch. Pr. (2d Am. ed.) 1698, 1099; Story's Eq. PL, § 357. 16 Wilson v. Seligman (U. S. C. C. S. D. X. Y. 1880), 10 Rep. 651. But see II. S. R. S., § 956, cited infra. "Shadwell, V. C, in Crowfoot v. Mander, 9 Sim. 39(1. See U. S. v. Fields, 4 Blatchf. 326. 18 U. S. P. S., § 956. This statute is substantially a copy of the act of 8 & 9 W. III., en. I, § 7. See Allen v. Fairbanks, 40 Fed. 188. 738 ABATEMENT AND KEVIVOE. [§ 216 tort for which the defendants are jointly and severally liable. 19 It has been held that, where one of several obligees of a nego- tiable bond dies pending an action to collect the same, the ac- tion may be continued in the name of the survivors, who, if they recover, are entitled to the whole sum due under the obligation, and upon its receipt will hold that part of the re- covery, to which the decedent would have been entitled had he lived, in trust for the representatives of the latter; that the presence in the action of the personal representatives of such deceased co-obligee after his death is erroneous, but a harmless error; that no formal order of revivor is necessary in such a case, but that a suggestion of the death of one of the plaintiffs, made upon the record by either the plaintiffs or defendants, is sufficient; and that the Circuit Court of Appeals, when re- versing a judgment in favor of a surviving plaintiff and the representatives of the other, may direct that, upon the making of the proper suggestion and the striking out of the names of the personal representatives, a new judgment be entered in favor of the remaining plaintiffs, as they then appear of record, for the amount of the principal with interest. 20 This statute applies to writs of error 21 a nd appeals. 22 These statutes do not apply to real actions. 23 Real actions cannot be revived, 24 unless the State statute so provides. 25 Independently of statute a suit to enjoin an official act abates when the defendant ceases to be a public officer, and cannot ordinarily be revived against his successor. 26 "!No suit, action, or other proceeding lawfully commenced by or against the head of any Department or Bureau or other officer of the United States in his official capacity, or in relation to the discharge of his official duties, shall abate by reason of his death, or the expiration of his term of office, or 19 Northwestern Consol. Milling 530, 5 L. ed. 515; Green v. Watkins, Co. v. William Callam & Son, 177 6 Wheat. 260, 5 L. ed. 25G. Fed. 786. 24 Macker v. Thomas, 7 Wheat. 20 Thomas v. Green County, C. C. 530, 29 L. ed. 391 ; Green v. Wat- A.. 159 Fed. 339. kins, 6 Wheat. 260, 5 L. ed. 256. ZlMcKinney v. Carroll, 12 Pet. 25 McArthur v. Williamson, 45 66, 9 L. ed. 1002; Classe v. Rippon, Fed. 154. 1 B. & Aid 586. 26 Warner V. S. Co. v. Smith, 165 22 Moses v. Wooster, 115 U. S. U. S. 2S, 41 L. ed. 621; State of 285. 29 L. ed. 391. Florida v. Croom, 226 U. S. 309, 23 Macker v. Thomas, 7 Wheat. 57 L. ed. — . § 21GJ ABATEMENT. i •) ^9 his retirement, or resignation, or removal from office, but, in such event, the court, ' on motion or supplemental petition filed, at any time within twelve months thereafter, showing a necessity for the survival thereof to obtain a settlement of the questions involved, may allow the same to be maintained by or against his successor in office, and the court may make such or- der as shall be equitable for the payment of costs." 27 If the cause of action be one created by a Federal statute, its survival or abatement is not affected by State statutes or decisions. 28 The State statute, which requires a claim to be presented to an administrator before revivor does not apply to an action upon a bond given to the United States. 29 A qui tarn action to recover a penalty under a statute of the United States abates by the death of the defendant, although the statutes of the State where the case is pending authorize the revivor of actions to recover penalties. 30 but an action to recover dam- ages for a violation of the Interstate Commerce law 31 may be revived by the plaintiff's executors 32 and does not abate by a judicial sale of the plaintiff's property. 33 An action to enforce a forfeiture abates unless the acts complained of were divisible and the wrongdoer's estate has derived a benefit therefrom. 34 It has been held that a judgment of conviction which imposes a fine, abates upon the defendant's death and is not enforceable against his personal representatives. 35 An action for the in- fringement of a patent survives to the representatives of the patentee, 36 and against the representatives of the infringer. 37 It has been held that the death of a sole defendant to a suit for 27 Act of February 8th, 1899, 30 St. at L. 822. 28 Schreiber v. Sharpless, 110 U. S. 76, 28 L. ed. 65 ; Patton v. Brady, 184 U. S. 608, 612. 46 L. ed. 713, 710; Iron Gate Bank v. Brady, 184 U. S. 665, 40 L. ed. 739; May v. Logan County, 30 Fed. 250. 29 Pond v. U. S., C. C. A., Ill Fed. 989, 49 C. C. A. 582. 30 Schreiber v. Sharpless, 110 U. S. 76, 28 L. ed. 65. 31 Act of Feb. 4. 1887, c. 104, § 9, 24 Stat. 382 (U. S. Comp. St. 1901, p. 3159). 32 Langdon v. Pennsylvania R. Co., 194 Fed. 480. 33 Pennsylvania R. Co. v. Interna- tional Coal Mining Co., C. C. A., 173 Fed. 1. 34 U. S. v. De Goer, 38 Fed. 80; U. S. v. Riley, 104 Fed. 275. 35 U. S. v. Pomeroy. 152 Fed. 279. 36 May v. Logan County, 30 Fed. 250; Illinois Cent. R. Co. v. Turrill, 110 U. S. 301, 28 L. ed. 154. 37 Ibid.; Head v. Porter, 70 Fed. 498: Hohorst v. Howard, 37 Fed. 97: Moses v. Wooster, 115 U. S. 285, 29 L. ed. 391. 740 ABATEMENT AND REVIVOR. [§ 216 an injunction against the infringement of a patent and for an accounting, when it occurs before a' decree for an account, abates and terminates so much of the suit as seeks an injunc- tion, so that it cannot be revived against his executor, unless it be shown that the latter continues the infringement; 38 but that the suit may be continued against the personal representative for an accounting of profits and for damages. 39 After an inter- locutory decree for an accounting, such a suit may be revived against the personal representatives of the deceased defend- ant 40 The survivability of a cause of action, if it be one arising un- der the statute or, it seems, the common law of the State where the case is pending, depends upon the law of that State ; 41 ex- cept, perhaps, when it is originally brought in the Federal court and arises under some rule of general law, recognized in the courts of the Union. 42 If the action is transitory in its nature, the survival of the right to sue depends upon the law of the State where the suit is brought; not upon that where the cause of action arose. 43 A State statute which allows an executor or administrator to revive an action for personal in- juries will be followed, as the law of the forum, by the Fed- eral courts there held, although there was no such statute where the accident occurred. 44 A State statute was followed which permitted an administrator duly appointed and qualified to be substituted as plaintiff in a suit brought by a person claiming to be the personal representative of the same decedent who had never qualified as such. 45 Unless there be some clause in its 38 Draper v. Hudson. 1 Holmes, 208; Walker on Patents, § 700. 39 Kirk v. Du Bois, 28 Fed. 460; Hohorst v. Howard, 37 Fed. 97; I ake Superior I. Co. v. Brown, B. & Co., 44 Fed. 539; Head v. Porter, 70 Fed. 498; Atterburv v. Gill, 3 3 Off. Gaz. 27G; Smith v. Baker, 1 Ban. & A. 117; i Childs v. Ferguson, C. C . A., 1S1 Fed. 795. 40 Atterburv v. Gill, 13 Off. Gaz. 276. 41 Warren v. Furstenheim, 35 Fed. 691; Witters v. Foster, 26 Fed. 737; Henshaw v. Miller, 17 How. 212, 15 L. ed. 222; Hatfield v. Bushnell, 1 Blatchf. 393; Trigg v. Conway. Hempst. 711; Martin v. Wabash R. Co., C. C. A., 142 Fed. 650. « Baltimore k O. R. R. Co. v. Joy, 173 U. S. 226, 229, 43 L. ed. 077, 678. 43 Martin v. Wabash R. Co., C. C. A., ]42 Fed. 650. Contra, Strat- ton's Independence, L'd v. Dines, 126 Fed. 968. 44 Baltimore & O. R. Co. v. Joy, 173 U. S. 226, 43 L. ed. 677. 45 Person v. Fidelity & Cas. Co., C. C. A., 92 Fed. 965. § 21G] ABATEMENT. 741 charter to the contrary, a suit by or against a corporation or- dinarily abates by the dissolution of the corporation; 46 but it has been held that the entrance into liquidation and the clos- ing of a business of a national banking association does not abate a suit brought in its name. 47 A State statute which pro- vided that a suit against a corporation shall not abate upon the dissolution of the defendant was held not to apply to a foreign corporation ; and a judgment of the State court in such a case was held by the Federal court to be void. 48 It seems that any step in the cause taken by the surviving party after the death of one or more of his opponents, is a waiver of his right to object that the case has not been revived. Thus, after a decree has been reversed upon appeal, and the cause sent back with a special mandate directing the further proceedings to be taken, or affirmed upon appeal and sent back with a mandate directing its enforcement, it is too late to claim for the first time that the suit has abated by the death of the complainant before he en- try of the decree from which the appeal was taken. 49 An order denying a motion to dismiss an action upon the ground that it had abated by the death of the plaintiff is reviewable on a writ of error to the final judgment, 50 The plaintiff cannot describe his action as in tort in order to obtain jurisdiction for the Fed- eral court, and then describe it as in contract in order to pre- vent its abatement. 51 46 National Bank v. Colby, 21 701. The appointment of a receiver Wall. 609, 22 L. ed. 687; Greeley does not abate a suit against a na- v. Smith, 3 Story, 658; Mumma v. tional bank. Chemical Nat. Bank v. Potomac Co., 8 Pet. 281, 22 I/, ed. Hartford Deposit Co., 161 U. S. 1, 687. But see Lake Sup. I. Co. v. 40 L. ed. 595. Brown, B. & Co., 44 Fed. 539. As to 48 Marion Phosphate Co. v. Perry, municipal corporations, Hemingway C. C. A., 33 L.R.A. 252, 74 Fed. 425. v. Stansell, 106 U. S. 399, 27 L. ed. 49 Ex parte Sory, 12 Pet. 339, 342, 245; Grantland v. Memphis, 12 Fed'. 9 L. ed. 1108. 1110; Lake Sup. I. 287; as to the effect of a consolida- Co. \\ Brown. B. & Co., 44 Fed. 539 ; tion of two corporations, Edison El. McNeil v. McNeil, C. C. A., 170 Fed. L. Co. v. Westinghouse, 34 Fed. 232; 289, (the argument of an appeal by as to the effect of a State statute the administrator). upon foreign corporations, Marion 50 Henderson v. Henshall, C. C. Phosphate Co. v. Perry, C. C. A., 33 A., 54 Fed. 320. L.R.A. 252. 74 Fed. 425. 51 iron Gate Hank v. Brady, 184 47 National Bank v. Insurance U. S. 665, 46 L. ed. 739. Co., 104 U. S. 54, 72, 26 L. ed. 693, 742 ABATEMENT AND REVIVOR. [§ 21' § 217. Effect of abatement. "An abatement, in the sense of the common law, is an entire overthrow or destruction of the suit, so that it is quashed and ended. But in the sense of courts of equity, an abatement signifies only a present suspension of all proceedings in the suit, from the want of proper parties capable of proceeding therein. At the common law, a suit- when abated, is absolutely dead. But in equity, a suit, when abated, is (if such an expression be allowable) merely in a state of suspended animation, and it may be revived." 1 Upon the total abatement of a suit the cause is completely suspended while the abatement continues ; and, in general, all orders made pending such abatement will be considered nugatory and may be discharged. 2 Applications may, however, be made by parties affected thereby, to discharge process of contempt issued or executed pending the statement. 3 Applications have, more- over, been granted during an abatement for the payment of money out of court, when the right thereto had been previously established; 4 for the preservation of the property in dispute; 5 for the punishment of a party for breach of an injunction ; 6 and to set aside irregular proceedings pending the abatement. 7 So, too, a decree previously made could be enrolled ; 8 and it has been held in England that depositions might be taken under a commission previously issued. 9 Orders previously made con- tinue in force until discharged. 10 But the time given a party within which to do a certain act is always suspended by an abatement. 11 Where a preliminary injunction has been pre- viously granted, the court may issue an order requiring that § 237. 1 Story's Eq. PI., § 354. See also Hoxie v. Carr, 1 Siimn. 173, 178: Melius v. Thompson, 1 Clin". 125, 129. 2Daniell's Ch. Pr. (2d Am. ed.) 1714: Griswold v. Hill, 1 Paine, 483. 3BanielPs Ch. Pr. (2d Am., ed.) 1715. 4 Finch v. Lord ^Yinchelsea, 1 Eq. Cas. Abr. 2; Rovmdell v. Currer, 6 Ves. 250; Daniell's Ch. Pr. (2d Am. ed.) 1715. See YVharam v. Brough- ton, 1 Ves. Sr. 185. 5 Washington Ins. Co. v. Slee, 2 Paige (N. Y.), 365, 368. Leonard, 10 (2d Am. ed.) 6Hawley v. Bennett, 4 Paige (N. Y.), 163. 7 Quackenbush v. Paige (N. Y.), 131. 8 Daniell's Ch. Pr. 1715. 9 Thompson v. Took, 1 Dick. 115: Peters v. Robinson, 1 Dick. 116; Sinclair 'v. James, 1 Dick. 277. 10 Daniell's Ch. Pr. (2d Am. ed.) 1716; Lee v. Lee, 1 Hare, 622; Haw- ley v. Bennett, 4 Paige (N. Y.), 163. 11 Gregson v. Oswald, 1 Cox, Eq. 343. 217] EFFECT OF ABATEMENT. '43 the representatives of a deceased plaintiff revive within a certain time, usually a fortnight after notice, or that the injunction be dissolved. 12 No such order will be granted after a decree for a perpetual injunction; for that "would be in effect decreeing a perpetual suit." 13 The power of the court to make an order that the representatives of a deceased plaintiff revive within a certain limited time after notice to them, or that the bill be dismissed, is doubtful. 14 Where the abatement is partial, as where it is caused by the death of a defendant, it prevents those proceedings only by which his interest may be affected. 15 Thus, if there be a decree against trustees and the beneficiary of their trust for a conveyance, and the beneficiary die, the trustees may still be obliged to convey ; 16 and, after the death of one defendant, process of contempt may be issued and execu- ted against the others. 17 After its abatement by the death of the owner of the equity of redemption, a foreclosure suit can- not be remanded before its revivor. 18 It has also been held that the death of a defendant after hearing but before a decree does not necessarily prevent judgment. 19 which should then be en- tered as of the date of the hearing, nunc pro tunc, and that, -if practicable, a decree made before a defendant's death, for ex- ample, a decree for a sale, may be enforced without revivor. 20 But where the defendant died after his demurrer had been sustained and the time of the complainant to amend had ex- pired, it was held that the court could not without revivor 12 Jones v. Massey, Brown v. War- ner, Turner v. Cole, all quoted in Chowick v. Dimes, 3 Beav. 290, 292, 293; Chester v. Life Ass'n of Amer- ica, 4 Fed. 487. 13 Askew v. Townsend, 2 Dick. 471. 14 Compare dictum of Judge Story in Iloxie v. Carr, 1 Sumn. 173, 178, and the case of Chowick v. Dimes, 3 Beav. 290, where Lord Langdale. M. R., granted such an order, with that of Lee v. Lee, 1 Hare, 017, where Vice-Chancellor Wigram held t hat the court had no power to make one. 15Daniell's Ch. Pr. (2d Am. ed.) 1716; Finch v. Lord Winchelsea, 1 Eq. Cas. Abr. 2. is Finch v. Lord Winchelsea, 1 Eq. Cas. Abr. 2; Daniell's Ch. Pr. (2d Am. ed.) 1710. "Daniell's Ch. Pr. (2d Am. ed.) 1716. 18 Wright v. Phipps, 58 Fed. 552. 19 Davies v. Davies, 9 Ves. 461 ; Daniell's Ch. Pr. (2d Am. ed.) 1717. 20 Whiting v. Bank of U. S., 13 Pet. 6, 10 L. ed. 33. 744 ABATEMENT AND EEVIVOR. [§ 218 rentier judgment of dismissal nunc pro tunc as of the clay fol- lowing the expiration of the time allowed for amendment. 21 § 218. When a suit may be revived and effect of re- vivor. A suit which has abated may generally be revived when anything further remains to be done therein. 1 But the old prac- tice did not permit a suit to be revived merely for costs which were untaxed, and had not been previously directed to be paid out of a particular estate or fund, nor decreed against an execu- tor out of assets. 2 Nor can a bill of revivor be brought upon a bill filed merely for discovery, after the discovery required thereby has been obtained. 3 The time within which an action to enforce a cause of action at common law not founded upon a statute of the United States may be revived, depends upon the State practice 4 or the State Statute of Limitations; 5 which, however, do not affect the United States. 6 The State Statute of Limitations has been held to be a bar to an application to revive an action by a receiver of a national banking association to collect an assessment from a stockholder. 7 In equity the running of the statute of limitations, State or Federal as the case may be, after the time when a person became entitled to re- vive is in most cases, except after a decree for an account, 8 a de- fense and bar to a bill of revivor. 9 A suit cannot be revived 21 McNeil v. McNeil, C C. A., 170 Ted. 289. § 218. 1 Gilbert's Forum Roma- num, 181 ; Johnson v. Peck, 2 Ves. Sen. 465; Fitzpatrick v. Domingo, 14 Fed. 216; Daniell's Ch. Pr. (2d Am. ed.) 1G94. See Warner V. S. Co. v. Smith, 165 U. S. 28, 41 L. ed. 621, and supra, § 216. 2 Daniell's Ch. Pr. (2d Am. ed.) 1694-1697; Story's Eq. PI., § 371 Blower v. Morrets, 3 Atk. 772 Kemp v. Mackrell, 3 Atk. 812 Travis v. Waters, 1 J. Ch. (X. Y.) 85. 3Horsburg v. Baker, 1 Pet. 232, 7 L. ed. 125. 4 Goodyear Dental. Vulcanite Co. v. White, 46 Fed. 278. 5 Browne v. Chavez. 181 U. S. 68, 45 L. ed. 752; Butler v. Poole, 44 Fed. 586; Barker v. Ladd, 3 Sawyer, 44; Price v. Yates, 19 Alb. L. J. 295; Goodyear Dental Co. v. White, 46 Fed. 278; Spaeth v. Sells, 177 Fed. 797, holding that under Ohio R. S. §§ 5150, 5157, the final order of revivor must be made within one year and that the obtaining of the conditional order within that time is insufficient. 6 U. S. v. Houston, 48 Fed. 207. 7 Butler v. Poole, 44 Fed. 586. 8 Hollingshead's Case, 1 P. Wms. 742; Daniell's Ch. Pr. (2d Am. ed.) 1711. 9 Daniell's Ch. Pr. (2d Am. ed.) 1710; Coit v. Campbell, 82 N. Y. 509; Perry v. Jenkins, 1 Myl. & Cr. 122; Mason v. Hartford, P. & F. By. Co., 19 Fed. 53, 56; Story's Eq. PL, § 831. A bill of revivor was 219] AVIK) MAY REVIVE SUIT. 745 seven years after its dismissal for a defect of parties caused by a failure to revive. 10 Where the abatement is by the death or marriage of a plaintiff, an order to revive the suit places it and all proceedings in it in precisely "the same plight, state, and condition that the same were in at the time when the abatement took place." n The new plaintiff may then take the same pro- ceedings that the original plaintiff might have done. 12 Thus, the new plaintiff may prosecute process of contempt against the defendant, taking it up where it stood at the abatement; and if a process has been previously issued it will be revived with the revivor of the suit. 13 But where the abatement is caused by the death of a defendant, "the process, being personal, can- not be revived." 14 In general, however, an order to revive against the representatives of a deceased defendant, will place the suit as fully in the same position with regard to such repre- sentatives as can be done with reference to the change of the individuals before the court. 15 After revivor testimony pre- viously taken can be used. 16 § 219. Who may revive a suit. It is generally necessary, in order to entitle one to revive, that there should be a privity in representation between him and the party whose death caused the abatement. Therefore, upon the death of one suing in a representative capacity the defect can usually be remedied only by a supplemental bill, and not by a bill of revivor. 1 It was held, however, that upon the death of an administrator, the administrator de bonis non might file a bill of revivor, "though there is no actual privity between him and the original stricken from the file when filed twelve years after the delivery of an opinion dismissing the original bill, although no decree upon the opinion was ever entered. Hubbell v. Lankenan. 63 Fed. 881. Contra, Miller v. Wattier, 165 Fed. 359. See, also, Schmertz Wire-Glass Co. v. Pittsburgh Plate-Glass Co., 16S Fed. 73, a suit to compel the issue of a patent when the adverse party acquiesced in the bill. WHouth v. Owens, 30 Fed. 910. ll Gregson v. Oswald, 1 Cox Eq. 344. l2Vattier v. Hinde, 7 Pet. 252, 206; Philips v. Derbie, 1 Dick. 98: Hyde v. Forster, 1 Dick. 132: Dan- iell's Ch. Pr. (2d Am. ed.) 1778. 13 Hyde v. Forster, 1 Dick. 132; Daniell's Ch. Pr. (2d Am. ed.) 1778. 14 Daniell's Cli. Pr. (2d Am. ed.) 1778. i5Danieirs Cli. Pr. (2d Am. ed.) 1778. i6Vattier v. Hinde, 7 Pet. 252, 200. 8 L. ed. 675, 680. 8 219. 1 Daniell's Ch. Pr. Am. ed.) § 340. 1097; Story's Eq. (2d PL, 746 ABATEMENT AND REVIVOR. [§ 219 plaintiff." 2 But Judge Story suggests that a bill in the nature of a bill of revivor would be more appropriate. 3 It is said by Lord Bedesdale that in the case of a bill by creditors on behalf of themselves and other creditors, any creditor may revive ; 4 but according to Daniell, in practice the form of a bill in such a case is that of a supplemental bill in the nature of a bill of revivor, and not of a mere bill of revivor. 5 Before a decree, a suit can only be revived by one or all of the surviving plain- tiffs, or the representatives of one that has died. 6 If any of these refuse to join, he must be made a defendant to the bill filed to revive the suit. 7 If the suit concerned solely the real estate of a deceased plaintiff, his heirs alone are entitled to represent him therein ; 8 if solely his personal estate, his executor or adminis- trator ; 9 if both, separate bills of revivor may be filed by his heirs and personal representatives, and the neglect of one to revive will not prejudice the other. 10 In the case of a suit by a corporation sole, the death of the plaintiff, if he were entitled to the subject-matter for his own benefit, caused an abatement; and the suit could be revived by his personal representative. 11 If, however, he were only entitled to the subject-matter in his corporate capacity, the suit became defective, and could only be continued by his successor by means of an original bill hi the nature of a supplemental bill. 12 Where a corporation had, by purchase at a foreclosure sale, succeeded to the rights of one that was defunct, it was held that it could not by a bill of re- »Daniell's Oh. Pr. (2d Am ed.) 1697; Mitford's PI., ch. 1,*§ 3; Hug- gins v. York Bldg. Co., 2 Eq. Cas. Abr. 3; Owen v. Curzon, 2 Vein. 237; Newcombe v. Murray, 77 Fed. 492. 3 Story's Eq. PL, § 382, note 4. 4 Mitford's PL, ch. 1, § 3. 5 Darnell's Ch. Pr. (2d Am. ed.) 1703. 6 Darnell's Ch. Pr. (2d Am. ed.) 1700; Chester v. Life Ass'n of America, 4 Fed. 487. 7Daniell's Ch. Pr. (2d Am. ed.) 1700-, Fallowes v. Williamson, 11 Yes. 309. 8 Mitford's Eq. PL, ch. 1, § 3; Ferrers v. Cherry, 1 Eq. Cas. Abr. 3, 4: Melius v. Thompson, 1 Cliff. 125. 9 Mitford's PL, ch. 1. § 3; Melius v. Thompson, 1 Cliff. 125; Ferrers v. Cherry, 1 Eq. Cas. Abr. 3, 4. 10 Mitford's PL, ch. 1, § 3; Story's Eq. PL, § 367 ; Melius v. Thompson, 1 Cliff. 125; Ferrers v. Cherry, 1 Eq. Cas. Abr. 3, 4. U Darnell's Ch. Pr. (2d Am. ed.) 28, 1701; 1 Kyd on Corporations, 77. "Daniell's Ch. Pr. (2d Am. ed.) 28, 1701 ; 2 Bac. Abr., Corporation, E. 2. § 220] REVIVOR AT COMMON LAW. 747 vivor take the benefit of a suit by the stockholders of the de- funct corporation, to which the mortgagee had not been a party. ia After a decree, a suit may be revived by any defend- ant, or by the representative of any deceased defendant, who has acquired any right thereunder, as well as by any plaintiff. 14 § 220. Manner of revivor at common law. "When either of the parties, whether plaintiff, or petitioner, or defendant, in any suit in any court of the United States, dies before final judgment, the executor or administrator of such deceased party may, in case the cause of action survives by law, prosecute or defend any such suit to final judgment. The defendant shall answer accordingly; and the court shall hear and determine the cause and render judgment for or against the executor or admin- istrator, as the case may require. And if such executor or ad- ministrator, having been duly served with a scire facias from the office of the clerk of the court where the suit is depending twenty days beforehand, neglects or refuses to become party to the suit, the court may render judgment against the estate of the deceased party, in the same manner as if the executor or administrator had voluntarily made himself a party. The executor or administrator who becomes a party as aforesaid, shall, upon motion to the court, be entitled to a continuance of the suit until the next term of said court." 1 It has been held that this statute is confined to personal actions and not to real actions, 2 nor to proceedings in bankruptcy, 3 which may be revived in a more summary manner than that provided bv rho statute or by the Equity Rules. 4 The writ to collect a judgment of the Federal court when issued against the representative- of one of the original parties, or against the indorser of a writ, is a continuance of the original action, 5 and an ancillary pro- ceeding which can be maintained irrespective of the citizenship 13 Keokuk & *V. R. Co. v. Scotland 3 Slmte v. Patterson, C. C. A., 147 County, 152 U. S. 318. 38 L. ed. 457. Fed. 509, 512. 14 Williams v. Cooke, ]0 Yes. 406; 4 Shute v. Patterson, C. C. A., 147 Devaynes v. Morris, 1 Myl. & Cr. Fed. 50!). 512. Citing General Order 213, 225. i„ Bankruptcy, 37. § 220. 1U. S. R. S.. § 95.,, See B-McKnight v. Craig's Adm'rs, 6 Allen v. Fairhaiiks. 40 Fed. 188. Crancli, 183. 187, 3 L. ed. 193, I'M; 2Maeker's Heirs v. Thomas, 7 Davis v. Davis. C. C. A., 174 Fed, Wheaton, 530, 5 L. ed. 515. 78(3. *1A 74S ABATEMENT AND REVIVOR. [§ 220 of the parties or the amount in controversy. 6 As a general rule the practice of the State where the proceedings is taken will be followed in the issue of and proceedings upon writs of scire facias, 7 hut, it has been held, that a Federal court is not bound to follow the methods prescribed by the State statutes for serv- ing a writ of scire facias to revive a judgment against a non- resident defendant; and that it may revive its own judgment by such a writ and prescribe a reasonable method for the service thereof without the district, where the judgment debtor has departed from the same. 8 Whether an action upon the judgment thus revived will, in such a case, be entertained in a court in another State or district, where the debtor resided at the time of the revivor, is, under the authorities, a doubtful question. 9 It has been held : that in a scire facias to review a judgment in an ejectment, the statement that the term recovered is yet unexpired is sufficient ; and that there is no need of stating in the writ the term as laid in the declaration, nor the facts which show its continuance ; 10 that to a scire facias to revive a judg- ment in ejectment it is not necessary to make the executor or administrator of the deceased defendants parties, but that the judgment must be revived against the heirs of the defendant in ejectment and the terretenants ; u and that after a convey- ance by the lessor of the plaintiff in ejectment to a third per- son of land for which judgment has been obtained, a scire facias or writ of habere facias must issue in the name of the original plaintiff in the original judgment. 12 To a scire facias to re- 6 Pullman's Palace Car Co. v. Washburn. 06 Fed. 790. supra. § 21. 7 MeKnight v. Craig's Adm'rs, G Cranch, 183, 187, 3 L. ed. 193, 194; Walden v. Craig, 14 Pet. 147. 151, 10 L. ed. 393, 395; Kenosha & R. P. Co. v. Sperry, 3 Biss. 309. 8 Collins County Nat. Bank v. Hughes, C. C. A., 155 Fed. 3S9. 9 Collins County Nat. Bank v. Hughes. C. C. A., 155 Fed. 389.. 393, 394. Citing Owens v. Henry. 1G1 U. S. 642, 40 L. ed. 837: Bickerdike v. Allen. 157 111. 95. 41 X. E. 740, 29 L.R.A. 782; Weaver v. Boggs. 38 Maryland. 255. Where the non- residenee of the defendant in the State where the judgment was re- vived does not appear in the record, a declaration thereupon in a Fed- eral court in another State is not demurrable. Davis v. Davis, C. C. A., 174 Fed. 786. 1° Lessee of Walden v. Craig's Heirs. 14 Pet. 147, 151, 10 L. ed. 393, 395. 11 Lessee of Walden v. Craig's Heirs. 14 Pet. 147. 10 L. ed. 393. 12 Penn v. Klyne, Pet. C. C 446. Under the practice in Missouri, a § 220] KKVIVOR AT COMMON LAW. 749 vive a judgment in ejectment, for the term and damages, the defendant cannot plead a conveyance by the lessor of the plain- tiff, made subsequent to the judgment. 13 Upon a writ of scire farias to revive an action or a judgment against the personal representative of a deceased defendant, such personal repre- sentative can only plead what the decedent could have pleaded. 14 unless there be some matter which there was no opportunity to plead in the original action. 15 Upon a scire facias to revive a final or interlocutory judgment, the defendant cannot avail himself of matters of defense which occurred previous to the original judgment; 16 nor plead a general denial. 17 A payment which might have been pleaded to the original scire facias to revive a judgment cannot be given in evidence on a second scire facias. 18 If an heir sells after judgment against the executor upon the plea of plene administmvit found for him, and before scire facias against the heir, the purchaser may, in the name of the heir, plead to the writ assets in the hands of the executor. 19 The writ of scire facias was issued to revive and obtain execution against the taxing district of Shelby county, which was the successor of the city of Memphis, on a judgment recovered against the city of Memphis before the repeal of its charter. 20 In that ease, the order upon the return of the scire facias awarded execution for the amount of the original judg- ment, and simple interest, "which is, however, to be calculated in the marshal's office on the execution as in all cases." 21 writ of scire facias to revive a judg- ment which has been assigned is not demurrable because issued in the name of the assignor; but it is suffi- cient if the writ shows that it was issued on behalf of, and to the use of, the assignee, and permission may be given to amend the writ by strik- ing out the name of the assignor. Wonderly v. Lafayette County, 74 Fed. 702. 13Penn v. Klyne. Pet. C. C. 446. 1* McKnight v. Craig's Adm'rs. 6 Cranch, 183, 187, 3 L. ed. 193. 194; Morsel] v. Hall, 13 How. 212. 14 L. ed. 117; Allen v. Fairbanks, 40 Fed. 188. 15 Hatch v. Fustis, 1 Gall. 1G0. 16 U. S. v. Thompson, Clip. 014; Morsell v. Hall, 13 How. 212, 14 L. ed. 117; McKnight v. Craig's Adm'rs, 6 Cranch, 183. 3 L. ed. 193: Pennock v. Gilleland, 1 Pittsb. 37. 17 Wonderly v. Lafayette Count}-, 77 Fed. 665. 18 Hatch v. Eustis, 1 Gall. 160; Wilson v. Hurst. Pet. C. C. 441; Wilson v. Watson, Pet. C. C. 269. 19 Hamilton v. 291. 20 Grantland V. Jones, 2 Hayw. Memphis, 12 Fed. 287. 21 Ibid. 750 ABATEMENT -VXD REVIVOR. [§ 221 § 221. Manner of revivor in equity in general. When a suit became abated after a decree signed and enrolled, it was anciently the practice to revive 1 the decree by a subpoena in the nature of a scire facias, upon the return of which the party to whom it was directed might show cause against the reviving of the decree, bv insisting; that he was not bound by the decree, or that for some other reason it ought not to be enforced against him, or that the person suing the subpoena was not entitled to the benefit of the decree. If the opinion of the court was in his favor he was dismissed with costs. If it was against him. or if he did not oppose the reviving of the decree, interrogatories were exhibited for' his examination touching any matter neces- sary to the proceedings. If he opposed the reviving of the de- cree on the ground of facts which were disputed, he was also to be examined upon interrogatories, to which he might answer or plead; and issue being joined, and witnesses examined, the matter was finally heard and determined bv the court. But if there had been any proceeding subsequent to the decree, this process was ineffectual, as it revived the decree only, and the subsequent proceedings could not be revived but by bill, and the enrollment of decrees being disused, it became the practice to revive in all cases indiscriminately by bill.? The regular methods of reviving a suit in equity in the Federal courts have been by a bill of revivor, a bill in the nature of a bill of revivor, a bill of revivor and supplement, a supplemental lull in the nature of a bill of revivor and a bill in the nature of a bill of revivor. 2 The Equity Rules of 1912 provide: "In the event of the death of either party the court may, in a proper case, upon motion, order the suit to be revived by the substitution of the proper parties. If the successors or representatives of the deceased party fail to make such application within a reason- able time, then any other party may, on motion, apply for such relief, and the court, upon any such motion may make the neces- sary orders for notice to the parties to be substituted and for the filing of such pleadings or amendments as may be neces- sary." 3 If this rule stood alone, it would authorize the revivor of a suit by motion without a new lull. A previous rule, how- %-l-l\. IMitford's Ch. Pr., ch. 1, Powell. J., in Dillard's Ad'mr v. £ 3. Central Va. iron Co., 125 Fed. 159. 2 Quoted with approval by Mc- 3 Eq. Rule 45. § 222] BILL OF REVIVOR. 751 ever, expressly recognizes the continuance of bills of revivor. 4 By the former practice, a revivor might be made by motion upon consent ; 5 and it was suggested that where one of the sur- viving parties had sued out a scire facias, the personal repre- sentative of the decedent might obtain a revivor upon motion. 6 When a board of public officers was abolished by statute and a new board substituted for it, it was held, without determining whether or not a revivor was necessary, that the members of the new board could properly be made parties to the suit by means of a bill of revivor, 7 although a supplemental bill, 8 or bill in the nature of a supplemental bill, 9 would have seemed more appropriate. § 222. Definition of bill of revivor and parties to the same. A bill of revivor is a continuance of the original bill, when, by death, some party to it has become incapable of pro- secuting or defending a suit, or a female plaintiff has by mar- riage incapacitated herself from suing alone. 1 "Whenever a suit abates by death, and the interest of the person whose death has caused the abatement is transmitted to that representative which the law gives or ascertains, as an heir-at-law, executor, or administrator ; so that the title cannot be disputed, at least in the Court of Chancery, but the person in whom the title is vested is alone to be ascertained ; the suit may be continued by bill of revivor merelv. If a suit abates bv marriage of a female plaintiff, and no act is done to affect the rights of the party but the marriage, no title can be disputed ; the person of the husband is the sole fact to be ascertained ; and therefore the suit may be continued in this case likewise by bill of revivor merely." 2 The persons who may be plaintiffs in a bill of revivor have been specified in a preceding section. 3 If the abatement be caused by the death or marriage of a plaintiff, all previous defendants to the suit must be made parties to the bill of revivor ; unless it 4Eq. Rule 35; quoted infra. 8 Infra, § 231. 5 Grisvvold v. Hill, 1 Paine, 483. 9 Infra, § 234. 6 Dillard's Adm'r v. Central Vir- § 222. iMitford's PI., ch. 1, § 3: ginia Iron Co., 125 Fed. 157. Fitzpatrick v. Domingo, 14 Fed. 21(5. 7 Hemingway v. Stansell, 10G U. 2 Mitford's PI., ch. 1, § 3. S. 390. 402, 27 L. ed. 245, 24G. See 3 § 219. also The Sapphire. 11 Wall. 104. 20 L. ed. 127; Allen v. Mayor, 18 Blatchf. 239: s. c, 7 Fed. 483. 752 ABATEMENT AND REVIVOR. [.§ 223 be filed after a decree, when all whose rights or duties have been fixed and ascertained thereby must be joined. 4 If any of the previous plaintiffs refuse to join in the continuance of the suit. they also must be made defendants to the bill of revivor. 5 If the abatement be caused by the death of a defendant, only his heirs or personal representatives, or both, according as the suit affected his interest in real or personal property, should be made defendants to the bill of revivor; 6 unless the bill be filed after a decree, when all parties interested thereunder should be joined. 7 There is no need of any difference of citizenship among the different parties to such a bill, provided that the court had jurisdiction of the original suit. 8 A suit cannot be re- vived against foreign executors unless ancillary letters are taken out in the State where the suit is pending. 9 A bill of revivor cannot be filed against the representatives of a defendant not served with process under the original bill. 10 They can only be brought in by a bill in the nature of an original bill. 11 § 223. Frame of bill of revivor. A bill of revivor must state the filing of the original bill, and the several proceedings thereon, and the abatement. 1 But the rules provide: "It shall not be necessary in any bill of revivor or supplemental bill to set forth any of the statements in the original suit, unless the special circumstances of the case may require it." "It must show a title to revive, and charge that the cause might to be re- vived, and stand in the same condition with respect to the par- ties in the bill of revivor as it was in with respect to the parties to the original bill at the time the abatement happened; and it must pray that the suit be revived accordingly. *' 3 Where a decree has been made reviving a former decree, a second bill for the same purpose properly seeks to revive the first decree of 4 Danicll's Ch. Pr. (2d Am. ed.) 9 Lawrence v. Southern Pac. Co., 3703, 1704, 177 Fed. 547. 5 Finch v. Lord Winchelsea, 1 Eq. i» U. S. v. Fields, -4 Blatchf. 326. Cas. Abr. 2; Daniell's Ch. Pr. (2d ".fee § 216. Am. ed.) 1700. § 223. 1 Mitford's PL. ch. 1, § 3. SBettcs v. Dana, 2 Sumn. 383; 2 Eq. Rule 35; copied from Eq. Daniell's Ch. Pr. (2d Am. ed.) 1704. Pule 58. of 1842. 7 Daniell's Ch. Pr. 1704. 3 Mitford's PI., ch. 1, § 3. 8 (lark v. Mathewaon, 12 Pet 164. L. ed. 1041; s. C, 2 Sumn. 262. § 224] PROCEEDINGS OX BILES OF REVIVOR. 753 revivor, and so, ipso facto, the original decree. 4 If a bill of revivor seeks simply to revive the suit, it prays only for a sub- pcena to revive and answer. 5 This usually is only required in two classes of cases. Where the bill is filed against an executor or administrator, and requires an admission of assets, the prayer usually is, not only that the suit may be revived, but also that, in case the defendant shall not admit assets to answer the purposes of the suit, an account of the estate of the deceased party may be taken ; "and so far the bill is in the nature of an original bill." 6 "If a defendant to an original bill dies before putting in an answer, or after an amendment of the bill to which no answer has been given, the bill of revivor, though requiring in itself no answer, must pray that the person against whom it seeks to revive the suit may answer the original lull, or so much of it as the exceptions taken to the answer of the former de- fendant extend to, or the amendment remainino- unanswered." 7 A bill of revivor should be signed by the solicitor, 8 and in gen- eral comply so far as is practicable with the requirements for original bills. 9 § 224. Proceedings upon bills of revivor. The Equity Rules provide that : "In the event of the death of either party the court may. in a proper case, upon motion, order the suit to be revived by the substitution of the proper parties. If the suc- cessors or representatives of the deceased party fail to make such application within a reasonable time, then any other party may, on motion, apply for such relief, and the court, upon any such motion may make the necessary orders for notice to the parties to be substituted and for the filing of such pleadings or amendments as mav be necessarv." * This chances the for- mer practice, which required the issue of a subpoena and pro- ceedings in the nature of an original suit. 2 The Revisecl Stat- utes provide "when either of the parties, whether plaintiff, pe- 4 Shainwald v. Lewis. 09 Fed. 487. § 224. 1 Va\. Rule 4.1. See Oliver SMit/ford's PI., eh. 1. § 3; Dan- v. Decatur, 4 Cranch, C. C. 592. jell's (h. Pr. (2d Am. ed. ) 1707. 2 Mason v. Hartford. P. & F. Ry. BMitford's PL, eh. 1. § 3. Co., 19 Fed. 53; Sharon v. Terry, 7Mitford's PI. eh. 1, § 3. 30 Fed. 337; Foster's Fed. Pr., BEq. Rule 24. (fourth ed.) § 181. flbariiell's Ch. Pr. (2d Am. ed.) 1707. Fed. Prac. Vol. I.— 48. 754 ABATEMENT AND REVIVOR. [§ 224 titioner, or defendant, dies before final judgment, the executor or administrator may, if the suit survives:, prosecute or defend to final judgment. The defendant shall answer, and the causes will be heard and determined, ami judgment rendered for or against the executor or administrator. If the executor or ad- ministrator neglects or refuses to become a party Twenty days after being served with a scire facias, the court may neverthe- less render judgment against the deceased party. The executor or administrator on becoming a party is entitled to a contin- uance until the next term." 3 The form of the subpoena upon a bill of revivor is the same as that upon an original bill, except that it states the nature of the bill to which the defendant is required to appear, and the time allowed him by the rules in which to do so. 4 The subpoena, if required is also sued out and served in the same manner as one upon an original bill ; but substituted service of the subpoena upon the attorney of the de- fendant to the original bill may be allowed when the original defendant is beyond the reach of process. 6 It has been held that a suit cannot be revived against the foreign executor or admin- istrator of a deceased defendant who has not taken out letters within the jurisdiction of the court, and has no assets there. 7 If the defendant refuses to appear, process of contempt may be issued against him. 8 A defendant who wishes to oppose the revivor should plead to the bill, move to dismiss the same or per- haps show cause by affidavit to the contrary. 9 It might per- haps not be expedient to take in the answer any objection to the revivor. For the English rule was that an objection thus taken would not prevent the order to revive, and the point could then only be determined by bringing the cause regularly to a hear- ing 10 A hill of revivor is defective if it does not show a sufficient See Griswold (2d Am. ed.) (2d Am. ed.) 3 1'. S. R. S.. § 955. v. Hill, 1 Paine. 483. *Daniell's Ch. Pr. 1707. 5Daniell's Ch. Pr. 1707. 6 Dunn v. Clarke, 8 Pet. 1, 2, 8 L. ed. 845; Norton v. Hepworth, 1 Hall & Tvv. 158. See § 96. 7 Melius v. Thompson, 1 Cliff. 125. SDaniell's Ch. Pr. 1707. aDaniell's Ch. Pr. 1700. 1710; Rule 58. 10 Daniell's Ch. Pr. 1709, 1711; Harris v. Pollard, 3 P. Wins. 348; Lewis v. Bridgman, 2 Sim. 40.1; Codrington v. Houlditch, 5 Sim. 286. (2d Am. ed.) (2d Am. ed.) (2d Am. ed.) § 224] PEOCEEDIXGS OX BILLS OF KKVIVOR. 755 ground for reviving the suit or any part of it, either by or against the person by or against whom it is tiled; u for want of parties apparent upon its face, though not for the omission of such as had not appeared before, or were not before the court at the time of the abatement; 12 and for any serious detect in form. Upon demurrer to a bill of revivor, the sufficiency of the original bill could not be considered. 18 However, the original bill failed to state facts giving the Federal courts ju- risdiction, that objection might he raised by a demurrer to the bill of revivor. 14 If a bill of revivor were brought without sufficient cause to revive, and this were not apparent upon its face, or if the plaintiff was not entitled to revive the suit at all, though a title is stated in the hill so that it was not demur- rable, the defendant might set up his objections to it by plea. 15 No plea can be put in against a bill of revivor which has been pleaded to the original bill and overruled, although if a plea has been put in and the suit abated before argument, it may sub- sequently be pleaded anew to the original bill. 16 When an an- swer to a bill of revivor is required, it must be confined to such matters as are called for by the bill, or as would be materi;d to the defense with reference to the order made upon it. 17 Allegations which might have been pleaded before abatement to the original hill will be considered as impertinent, 18 and dis- regarded. 19 It will not, however, be impertinent, if it state- matters of defense which have occurred since the answer to the original bill was tiled, though these do not affect the title of the plaintiff to revive. 20 Such an answer is impertinent when 11 Harris v. Pollard, 3 P. Wins. 1710: Lewis v. Bridgman, 2 Sim. 348: University College v. Foxcroft, 4. 2 Or. P. 244: Daniell's Ch. Pr. (2d w Daniell's Ch. Pr. (2d Am. edv) Am. ed.) 17011, 1710; Story's Kq. 1711. PL. SS (117. 829. "Daniell's Ch. Pr. '2,1 Am. ed.) 12 Metcalfe v. Metcalfe. 1 Keen, 1711: Story's Eq. l'L. § 868a. 74; Crowfoot v. Marnier. 9 Sim. 18 Xannev v. Tut tey. 1 1 Price, 117. 3!)(i: Daniell's Ch. Pr. (2d Am. ed.) » Gunnel! v. Bird, IQ Wall. 304. 17:10, ."(IS. 1!) L. ed. !M3. 915; Fretz v. 13 Mason v. Hartford. P. & V. Ry. Stover. 22 Wall. 198, 2(14. 22 L. ed. Co., 19 Fed. .13, 55; Sharon v. Terry. 769, 770. 30 Fed. 337. 20 Langliey v. Overton, 10 Sim. 14 Sharon v. Terry. 30 Fed. 337. 345. "Daniell's Ch. Pr. (2d Am. ed.) 75() ABATEJIEXT AXD REVIVOR. [§ 225 it describes and complains of irregularities in the suit before the abatement. 21 Such an answer should be signed, bv the solicitor. 22 One replication put in issue both the allegations in that and those in the original answer. 23 In all other respects, the form and the proceedings upon demurrers, pleas, and an- swers to bills of revivor conformed as nearly as possible to those of and upon similar pleadings to original bills. 24 A bill of revivor need not be sot down for a hearing, unless it prays other relief than a mere ^revivor. 25 Where a bill of revivor sought merely an admission of assets and a revivor, and the defendant admits assets, the cause might proceed upon the order of revivor merely. 26 If, however, any issue were joined upon the answer to it, a hearing was necessary. 27 The sole questions before the court when a bill of revivor is filed are the com- petency of the parties by and against whom it is filed, and the frame of the bill. 28 A cause is not revived until an order of revivor has been entered. 29 § 225. Bills in the nature of bills of revivor in general. A bill in the nature of a bill of revivor is a bill filed "to obtain the benefit of a suit after abatement in certain eases which do not admit of a continuance of the original bill/ 5 x The ancient practice is thus described. "If the death of a party whose in- terest is not determined by his death is attended with such a Transmission of his interests that the title to it, as well as the person entitled, may be litigated in the court of chancery," as in the case of a devise 2 or conveyance 3 of real estate, ''the suit is not permitted to be continued by a bill of revivor. An original bill upon which the title may be litigated must be- 21\Vagstaff v. Bryan. 1 R. & M. 27 Daniell's Ch. Pr. (2d Am. ed.) 28. 1713: Mitford's PI., eh. 1, § 3. 22Daniell's Ch. Pr. (2d Am. ed.) 28 Bettes v. Dana. 2 Sumn. 383. 1712. 29 Atterbury v. Gill, 13 Off. Gaz. 23('atton v. Earl of Carlisle, 5 276. -Madd. 427; Daniell's Ch. Pr. (2d § 225. 1 Mitford PI., ch. 1. § 3. Am. ed.) 1712. See Slack v. Walcott. 3 Mason. 508, 24 Daniell's Ch. Pr. (2d Am. ed.) 512; Sharon v. Terry. 3(5 Fed. 337, 1711. 1712. 353. 25Pruen v. Lunrt, 5 Russ. 3: Dan- 2 Slack v. Walcott, 3 Mason, 508. icll's Ch. Pr. (2d Am. ed.) 1713. 3 Sharon v. Terry, 36 Fed. 337. 26 Mitford's PL, ch. 1, § 3; Dan- iell's Ch. Pr. (2d Am. ed.) 1713. § 225] BILLS IN NATURE OF BILLS OF REVIVOR. 757 filed, and this bill will so far have the effect of a bill of revivor that if the title of the representative substituted by the act of the deceased party is established, the same benefit may be had of the proceedings upon the former bill as if the suit had been continued bv a bill of revivor.'" 4 "The bill is said to be oris- inal merely for want of that privity between the party to the former and the party to the latter bill, though claiming the same interest, which would have permittted the continuance of the suit by bill of revivor. Therefore, when the validity of the alleged transmission of interest is established, the party to the new bill shall be equally bound by, or have advantage of the proceedings in the original bill, as if there had been such a privity between him and the party to the original bill claim- ing the same interest ; and the suit is considered as pending from the time of the filing of the original bill, so as to save the statute of limitations, to have the advantage of compelling the defendant to answer before an answer can be compelled to a cross-bill, and every other advantage which would have at- tended the institution of the suit by original bill, if it could have been continued by bill of revivor merely." 5 So the pleadings filed and any testimony taken in the original eause can be used in the same manner in the second cause after a bill in the nature of a bill of revivor has been filed. 6 Such a bill can only be filed for the purpose of bringing in a person who claims in privity with the party whose death caused the abate- ment. 7 Thus, if a bill is filed by a devisee under a will, and afterwards a subsequent will is proved, the devisee under the second will can in no way avail himself of the proceedings in the suit ; for there is no privity between him and the original plaintiff. If, however, a bill has been filed by the devisor hi in- self for some matter concerning the estate devised, the second devisee may file a supplemental bill in the nature of a bill of revivor, even if the first devisee have already filed such a bill ; for he derives his title so to do solely from the devisor independ- 4Mitford's PI., ch. 1, § 3. See §§ 371-387; Daniell's Ch. Pr. (2d Slack v. Walcott, 3 Mason, 508. Am. ed.) 1719. SMitford's PL, ch. 1, § 3. 1 Daniell's Ch. Pr. 1720; Story's 6 Slack v. Walcott, 3 Mason, 508; Eq. PL, § 385; Rylands v. Latouche. Vattier v. Hiiule, 7 Pet. 252. 206, 2 Bligh, 385; Tonkin v. Lethbtidge, 8 L. ed. 675. 680; Story's Eq. PL, G. Cooper. 43. -■". 758 ABATEMENT AND REVIVOR. [§ 226 ently of the first devisee. 8 The principal difference between the effect of an original bill in the nature of a bill of revivor and an original bill in the nature of a supplemental bill is that under the former the defendant is absolutely bound by the proceedings in the original suit, whereas under the latter he can avail him- self of any defense which has arisen since the original bill was filed, or which he has a right to urge against the new complain- ant, although it did not exist against the original plaintiff. 9 When the court had jurisdiction of the original suit, a want of difference of citizenship between the parties to the bill in the nature of a bill of revivor will not be a defect in it. 10 § 226. Frame of bills in the nature of bills of revivor and proceedings upon them. A bill in the nature of a bill of re- vivor "must state the original bill, the proceedings upon it, the abatement, and the manner in which the interest of the party dead has been transmitted; and it must charge the validity of the transmission, and state the rights which have accrued by it." * It usually prays that the original suit may be revived^ and the party tiling it have the benefit of the former proceed- ings therein. 2 Probablv a subpoena issued in accordance with its prayer may be served upon the attorney of an absent de- fendant, who has already appeared, in the same manner as a subpoena upon a bill filed to stay proceedings at law. 3 Other- wise the form and the proceedings upon bills in the nature of bills of revivor w T ere formerly the same as those upon bills of revivor; 4 and the difference between the two v 7 as practically one of mere nomenclature. 5 § 227. Manner of revivor upon appeal or error. The Supreme Court Rules provide : "ll Whenever, pending a writ of error or appeal in this court, either party shall die. the proper representatives in the personalty or realty of the deceased party. 8 Oldham v. Eboral, Cooper. Select Cas. 27. » Fulton v. Greacen, 44 X. J. Eq. 443. 10 Clarke v. Mathewson. 12 Pet. 164, 9 L. ed. 1041 ; s. c, 2 Sumn. 262: Minnesota Co. v. St. Paul Co., 2 Wall. 609, 17 L. ed. 886. § 226. iMitford's Eq. PL. ch. 1, § 3. 2Daniell's Ch. Pr. 1721; Story's Eq. PL, § 386. 3 Norton v. Hepworth, 1 Hall & T\v. 158; Dunn v. Clarke, 8 Pet. 1, 2, 8 L. ed. 845. See § 96. 4Daniell's Ch. Pr. 1720, 1721; Rule 56. 5 Grew v. Breen. 12 Met. (Mass.) 369. 46 Am. Dec. 687. § 227] REVIVOR UPON APPEAL OR ERROR. 759 according to the nature of the case, may voluntarily come in and be admitted parties to the suit, and thereupon the case shall be heard and determined as in other cases ; and if such repre- sentatives shall not voluntarily become parties, then the other party may suggest the death on the record, and thereupon, on motion, obtain an order that unless such representatives shall become parties within the first ten days of the ensuing term, the party moving for such order, if defendant in error, shall be entitled to have the writ of error or appeal dismissed; and if the party so moving shall be plaintiff in error, he shall be entitled to open the record, and on hearing have the judgment or decree reversed, if it be erroneous : Provided, however, that a copy of every such order shall be printed in some newspaper of general circulation within the State, Territory, or District from which the case is brought, for three successive weeks, at least sixty days before the beginning of the term of the Supreme Court then next ensuing. 2. When the death of a party is suggested, and the representatives of the deceased do not appear by the tenth day of the second term next succeeding the sug- gestion, and no measures are taken by the opposite party within that time to compel their appearance, the case shall abate. 3. AVhen either party to a suit in a" District "Court of the United States shall desire to prosecute a writ of error or appeal to the Supreme Court of the United States, from any final judgment or decree, rendered in the' 1 District "Court, and at the time of suing out such writ of error or appeal the other party to the suit shall be dead and have no proper representative within the jurisdiction of the court which rendered such final judgment or decree, so that the suit cannot be revived in that court, but shall have a proper representative in some State or Territory of the United States, the party desiring such writ of error or appeal may procure the same, and may have proceedings on such judg- ment or decree superseded or stayed in the same manner as is now allowed by law in other cases, and shall thereupon proceed with such writ of error or appeal as in other cases. And within thirty days after the commencement of the term to which such writ of error or appeal is returnable, the plaintiff in error or appellant shall make a suggestion to the court, supported by affidavit, that the said party was dead when the writ of error or appeal was taken or sued out, and had no proper representative 760 ABATEMENT AND BEVIVOR. [§ 227 within the jurisdiction of the court which rendered said judg- ment or decree, so that the suit could not be revived in that court, and that said party had a proper representative in some State or Territory of the United States, and stating therein the name and character of such representative, and the State or Territory in which such representative resides ; and, upon such suggestion, he may, on motion, obtain an order that, unless such representative shall make himself a party within the first ten days of the ensuing term of the court, the plaintiff in error or appellant shall be entitled to open the record, and, on hearing, have the judgment or decree reversed, if the same be erroneous: Provided, however, that a proper citation reciting the substance of such order shall be served upon such representative, either personally or by being left at his residence, at least sixty days before the beginning of the term of the Supreme Court then next ensuing: And, provided, also, that in every such case if the representative of the deceased party does not appear by the tenth day of the term next succeeding such suggestion, and the measures above provided to compel the appearance of such representative have not been taken within the time as above required, by the opposite party, the case shall abate : And, pro- vided, also, that the said representative may at any time be- fore or after said suggestion come in and be made a party to the suit, and thereupon the case shall proceed, and be heard and determined as in other cases. ,, 1 The Circuit Courts of Appeals have a similar rule. 2 Where one of several joint de- fendants to a decree for damages and an injunction against the infringement, of a patent dies after an appeal, the suit may be revived in the appellate court at the suit of the survivors, upon notice to the personal representatives of the decedent un- der the Supreme Court Rule without bringing them in as par- ties. 3 If in such a case the personal representatives of the de- ceased appellant voluntarily come in and ask to be made parties, they may be admitted. 4 Where the presence of the personal representatives of a deceased appellant will be required for the due prosecution of an appeal by his survivors, the appellate §227. l Supreme Court Rule 15. 4 Thorpe v. Mathington, 1 Phill. 2C. C. A. Rule 19. Ch. 200: .Moses v. Wooster, 115 U. 3 Moses v. Wooster. 115 U. S. 2S5J S. 2S5, 288, 29 L. ed. 391, 392. 287, 29 L. ed. 391, 392. § 228] BILLS OF REVIVOR AND SUPPLEMENT. 761 court may order that the appeal be dismissed unless properly revived within a limited time. 5 Where a defendant dies after judgment, an execution issued before the judgmenl is revived is of no effect and all proceedings thereunder are void ; unless. perhaps, when the writ was tested before the deatli occurred; 6 but the death of a judgment debtor does not affect the validity of a sheriff's deed subsequently executed, but previously or- dered. 7 Where a judgment for a personal injury had been er- roneously set aside, the appellate court ordered judgment in favor of the original plaintiff nunc pro tunc as of a date before his death. 8 Where a writ of error to review a judgment of con- viction was dismissed upon the defendant's death and the cause remanded for such further proceedings as "according to right and justice and the laws of the United States ought to be had," on the filing of the mandate the court of first instance had the power to entertain a motion in abatement. 9 § 228. Bills of revivor and supplement. A bill of reviv- or and supplement is a bill which revives a suit after an abate- ment, and at the same time supplies a defect which has arisen in it since its institution. 1 Thus, where by the death of a de- fendant new rights accrue to the plaintiffs, a bill of revivor and supplement is necessary to state those facts. 2 And where after the conveyance by the complainant of the debt, he die, a bill of revivor and settlement is required. 8 It has been held in Eng- land that by such a bill a defect apparent upon the face of the original bill cannot be cured. 4 A bill of revivor and supple- 5 Blake v. Bogle, Macq. Pr. of IT. of L., 244, note; Moses v. W poster, 115 U. S. 285, 288, 29 L. ed. 391, 392. 6 Ransom v. Williams, 2 Wall. 313, 17 L. ed. 803. 7Insley v. U. S., 150 U. S. 512, 37 L. ed. 1163. 8 Coughlan v. District of Colum- bia, 106 U. S. 7, 27 L. ed. 74. But see Martin's Adm'r v. Baltimore & O. R. Co., 151 U. S. 673, 38 L. ed. 311. 9 U. S. v. Dunne, C. C. A., 173 Fed. 254, 19 Ann. Cas. 1145. § 228. i Mitford's PI., eh. 1, § 2; Story's Eq. PI., §§ 387, 027: Dan- ielle's Ch. Pr. (2d Am. ed.) 1722, 1723. 2\Vestcott v. Cady. 5 J. Ch. (N. Y.) 334, 342, 9 Am. Dec. 306. 3 Miller v. Wattier, 165 Fed. 359. See Metal S. Co. v. Crandall. 18 Off". Gaz. 1531, wnere the court held that it was improper to revive the suit by a hill of revivor and said that he must file a "supplemental bill," evidently intending thereby a bill of revivor and supplement. * Bampton v. Birchall, 5 Beav. 330; s. c. on appeal, 1 Phi). 568. 7l',2 ABATEMENT AXD REVIVOR. [§ "229 ment is merely a compound of a bill of revivor and a supple- mental bill, and in its separate parts must be framed and pro- ceed in the same manner. 5 It seems that it may be good as to the revivor, and bad as to the supplemental matter. 6 All par- ties to the original bill should be made parties to a bill of re- vivor and supplement, although a revivor is sought against but one defendant. 7 A bill may be sustained upon demurrer where its allegations are sufficient to support equitable relief, whether properly or not styled a bill of revivor and supple- ment. 8 § 229. Supplemental bills in the nature of bills of re- vivor. A supplemental bill in the nature of a bill of revivor is a bill tiled to cure an abatement when the person by or against whom the suit is to be continued, although claiming under the individual whose death caused the abatement, is not the repre- sentative whom the law allows to be recognized, but is one whose title could not have been litigated in the English Court of Chan- cery, but might have been disputed before another tribunal. 1 It has also been held that where during the pendency of a suit a trustee died, and the court appointed a successor to him. the new trustee could only be brought in by supplemental bill in the nature of a bill of revivor. 2 Upon the death of a trustee or assignee in bankruptcy or insolvency his successor is brought in by a bill of this character. 3 Where one of the complainants died leaving a will, which was proved in a foreign country, a motion .»f his executor and testamentary trustee to revive the suit upon a bill in the nature of a bill of revivor was denied with leave to him and the decedent's devisees to file a supplemental bill. Such a bill, however, although designated as being in the na- 5Mitford's PI., ch. 1. § 3: Story's But see Campbell v. City of New Eq. PL. S§ 387. 627: Daniell's Ch. York. 35 Fed. 14. Pr. 1722, 1723; Pendleton v. Fay, 3 § 229. 1 Daniell's Ch. Pr. (2d Paige (X. Y.) 204. Am. ed.) 1721. 6 Randolph v. Dickerson. 5 Paige 2 Greenleaf v. Queen. 1 Pet. 138, (X. Y.). .117. But see Bampton v. 148. 7 L. ed. 8.">, 80. Birchall, 5 Beav. 330: s. c. on ap- 3 Daniell's Ch. Pr. (2d Am. ed.) peal, 1 Phil. 568. 1721. 7'Lake v. Austwick. 4 Jur. 314. * Currell v. Villars, 72 Fed. 330. SShainwald v. Lewis. 69 Fed. 4S7. § 230] defects en suit. 763 ture of a bill of revivor, is neither more nor less than a supple- mental bill. 5 § 230. What renders a suit defective. If, after the in- stitution of a suit in equity, a person who is a necessary party thereto comes into being, or any other event occurs, which, without abating the suit, occasions such an alteration in the interest of any of the original parties, or gives any person not a party such an interest therein, as makes it necessary that the change of interest shall be brought to the attention of the court, and the person not already a party brought before it, the suit is said to become defective. 1 The circumstances caus- ing the change of interest must then be alleged, and the new party brought in by a supplemental bill, or a bill in the nature of a supplemental bill. 2 An assignment during the pendency of a suit, whether made voluntarily, 3 or, such as the election of a trustee in bankruptcy, by operation of law, 4 of the whole or a part of a defendant's interest therein, does not make the suit defective, nor affect the rights of the other parties, since the assignee takes the same rights and is subject to the same obliga- tions as his assignor, and is equally bound or benefited by the decree. The assignee need not, therefore, be made a party,* unless the assignment disables the assignor from performing the decree of the court, when he should be brought before it ; 6 but he may at any time be brought in at his own request 7 or at the request of the complainant. 8 It has been held : that in a SDaniell's Ch. Pr. (2d Am. ed.) 5 Eyster v. Gaff. 91 U. S. 521, 23 1721. L- ed. 403; Ex parte Railroad Co., § 230. 1 Jones v. Jones, 3 Atk. 95 U. 9. 221. 24 L. ed. 355. 217; Mitford's PL, ch. 1, § 3: Dan- «Daniell'a Ch. Pr. (2d Am. ed.) iell's Ch. Pr. (2d Am. ed.) 1003. 1664. 2 Jones v. Jones, 3 Atk. 217: Mit- 7 Foster v. Deacon, Mad. & Geld, ford's PL, ch. 1, § 3; Daniell'a Ch. 58; Eyster v. Gaff, 91 U. S. 521. 23 Pr. (2d Am. ed.) 1663. L. ed. 403; Ex parte Railroad Co., 3 Ex parte Railroad Co., 95 U. S. 95 U. S. 221. 22G, 24 L. ed. 355. 221, 24 L. ed. 355; Hazelton T. P>. 357: infra, § 234. Co. v. Citizens' Street Ry. Co., 72 8 Victor Talking Machine Co. v. Fed. 325; Interlocking Steel Sheet- Hawthorne & Shehle MIg. Co., 17:'. injj Co. v. Frieetedt Interlocking Fed. <>17. Cited with approval by Channel Par Co.. 1S2 Fed. 39S. Lannin-r. J., in Pittsburgh, S. & N. CHewett v. Norton; 1 Woods, 68; R. Co. v. Fiske, C. C. A., 178 Fed. Eyster v. Gaff, 91 V. S. 521. 23 L. 66. 67. ed. 403. '64 ABATEMENT AND KEVIVOR. [§ 230 suit for an injunction, an assignment by a sole plaintiff, of his whole interest in the suit, compels a suspension of the proceed- ings until his successor is brought in. 9 Where, in a suit for the infringement of a patent, after an interlocutory decree for an injunction and an account, the complainant assigned its en- tire right to the patent, and took back from the assignees a li- cense, which was not exclusive ; it was held, that it could not recover any profits or damages on account of the infringement, which occurred after the execution of the assignment, nor proceed against the defendant for a violation of the injunc- tion. 10 It has been held: that a reassignment to the original complainant does not restore the suit to its original condition, before the assignment by him was made ; and that the suit can- not be continued without a bill in the nature of a supplemental bill. 11 The expiration of a patent does not render a suit for its. infringement defective or abate the same. 12 It has been said that a person entitled to the benefit of a decree by his subse- quent acquisition of an interest in the subject-matter in contro- versy is not entitled to invoke the aid of the court or take fur- ther action until he has made himself a party by a supplemental bill or other appropriate pleading, and has thus brought in the representatives or successors in interest of the original parties,. plaintiff or defendant. 13 In a case in admiralty, it was held that a suit brought in the name of Napoleon III., on account of an injury to property, — a French ship held by him in his sovereign capacity, — did not abate by his deposition and the succession of the French Eepublic to the French Empire, and that the name of the plaintiff could at any time be changed by 9 Hoxie v. Carr, 1 Sumner. 173; Fed. Cas. Xo. 6,802; Ross v. Ft. Wayne. 63 Fed. 4(H). 470. 31 C. C. A. 288: Ecaubert v. Appleton. C. C. A., 67 Fed. 917. 023: Goss Print- ing Tress Co. v. Scott. 134 Fed. 880: Automatic Switch Co. v. Cutler- Hammer Mfg. Co.. C. C. A., 147 Fed. 250; (ieorge W. Jackson. Inc. v. Friestedt Interlocking Channel Bar Co.. 150 Fed. 406. 10 Goss Printing Press Co. v. Scott, 134 Fed. S80. 11 Automatic Switch Co. v. Cutler- Hammer Mfg. Co., C. C. A., 147 Fed. 250. 12 George \V. Jackson. Inc. v. Friestedt Interlocking Channel Bar Co.. 159 Fed. 406: Interlocking Steel Sheeting Co. v. Friestedt In- terlocking Channel Bar Co., 182 Fed. 308. Schmeiser Mfg. Co. v. Lilly. 180 Fed. 631. 13 Secor v. Singlefdn, 41 Fed. 725, 726: infra. § 234. § 231] SUPPLEMENTAL BILLS. 765 order. 14 Where, after a receiver appointed by a State court had brought suit against a citizen of another State, his appoint- ment was annulled, and he subsequently died ; it was held, that the suit could not be continued by a citizen of the defendant's State, appointed to the same receivership after such death. 15 § 231. Supplemental bills/ The Equity Rules provide: "Upon application of either party the court or judge, may, upon reasonable notice and such terms as are just, permit him to file and serve a supplemental pleading, alleging material facts oc- curring after his former pleading, or of which he was ignorant when it was made, including the judgment or decree of a com- petent court rendered after the commencement of the suit determining the matters in controversy or a part thereof." 1 A supplemental bill is merely an addition to the original bill. 2 At first supplemental bills were filed, not only for the purposes mentioned in the last sec- tion, but also to supply such defects as might have been cured by amendment after the time to perfect a bill by amendment had expired. 3 Xow, however, that amendments may be allowed at any stage of a suit, 4 they are no longer needed for that purpose; and as the fact that the matter pleaded in a supplemental bill may be inserted in the original bill by amendment, was also good ground of demurrer, 5 the propriety of their use for this purpose is doubtful ; 6 but they are still occasionally so used. 7 14 The Sapphire, 11 Wall. 164, 20 I .. ed. 127. See Allen v. The Mayor, 7 Fed. 483; s. a, 18 Blatchf. 239; Hemingway v. Stansell, 100 U. S. 399, 402. 27 L. ed. 24o. 246. ' is Hubert v. New Orleans, C. C. A.. 130 Fed. 21. § 231. lEq. Rule 34. 2 Quoted with approval by Hazel, J., in Banks Law Pub. Co. v. Law- yers' Co-Operative Pub. Co., 139 Fed. 703. See Mitford's PI., eh. 1. § 2. 3 Mitford's PI., ch. 1. § 3: Dan- ielle Ch. Pr. (2d Am. ed. ) 1653- 1663: Story's Eq. PL. § 334; Jen- kins v. Eldredge. 3 Story. 299; Mos- grove v. Kountze, 14 Fed. 315. 4 Rule 29. 5 Mitford's PI., ch. 2. § 2. part 1 ; Daniell's Ch. Pr. (2d Am. ed.) 1681. 6 Tubman v. Wason Mfg. Co., 44 Fed. 429; Electrical A. Co. v. Brush El. Co.. 44 Fed. 602. See, however, Davies v. Williams, 1 Sim. 5; Neva- da Nickel Syndicate v. National Nickel Co.. 86 Fed. 486: Mellor v. Smither. ('. C. A., 114 Vvd. 116. 120. 7 Banks' Law Pub. Co. v. Law- yers' Co-Operative Bub. Co.. 139 Fed. 701 ; Murray v. Orr & Locket Hardware Co.. C. C. A.. 153 Fed. 369: Napier v. Westerhoff, 153 Fed. 98f>: St. Louis & S. F. R. Co. v. Iladlcy. 1 .la Fed. 220; Scott v. La- ze]!. 170 Fed. 1023. 7i;.i ABATEMENT AXD REVIVOR. [§ 231 They must be germane to the purpose of the original bill, and leave to file them may be denied when they might have been duly pleaded by an amended bill and there is no excuse for the delay. 9 Subsequent infringements of a patent, 10 even by a different device from that charged in the bill, 11 or of copyrights in the same series of books, 12 have thus been pleaded. Tn a suit to restrain the infringement of a patent, "where the patent expires and is extended pending the litigation, and the infringe- ment by the respondent is continued in respect to the extended patent, a supplemental bill is a proper pleading to prolong the suit, as in that state of the case the complainant may well claim, if he is the original and first inventor of the improvement, to recover of the respondent the gains and profits made by the in- fringement, both before and subsequent to the extension; but the rule is otherwise where the original patent is surrendered. as the effect of the surrender is to extinguish the patent, and hence it can no more be the foundation for the assertion of a right than can a legislative act which has been repealed without any saving clause of pending actions. Consequently, the in- fringement of the reissued patent becomes a new cause of action for whirh, in the absence of any agreement or implied acquies- cence of the respondent, no remedy can be had except by the commencement of a new suit." 13 Where, however, the defendant made no objection to the complainant's fil- ing a supplemental bill setting forth an infringement 8 Mitchell v. Big Six Development ■Co., 18(5 Fed. 552. 9 Healey Ice Machine Co. v. Green, 184 Fed. 515; Mitchell v. Big Six "Development Co., 186 Fed. 552. 10 .Murray v. Orr & Lockett Hard- ware Co., C. C. A., 135 Fed. 369. x\fter the complainant had finished taking testimony, he was allowed to file a supplemental bill setting up infringements which had occurred after the filing of the original bill. Turrell v. Spaeth. Off. Gaz. 1163. 11 Hqugnton v. YYhitin Machine Works, 101 Fed. 581. It has been held that the complainant is not bound to bring such new method of infringement into the original suit and that a judgment therein is no bar to a subsequent suit by him for the infringement by means of the subsequent device. T. B. Wood's Sons Co. v. Valley Iron Works, 198 Fed. 869. See supra, § 186. 12 Banks' Law Pub. Co. v. Law- yers' Co-Operative Pub. Co., 139 Fed. 701. 13 Clifford. ,L. in Reedy v. Scott, 23 Wall. 352. 364. 365. 23 L. ed. 109, 110, 111. See also Fry v. Quinlan, 13 Blatchf. 205; Jones v. Barker, 11 Fed. 597. But compare Wood- worth v. Stone, 3 Story, 749: Reay v. Raynor, 19 Fed. 308. § 231] SUPPLEMENTAL BILLS. 767 of a reissued patent, but filed to it a plea similar to that which he had previously filed to the orig- inal bill, it was held that he had waived his right to object upon appeal that the suit was improperly continued, and that an original bill should have been filed. 14 After the institution of suits to enjoin the enforcement of State statutes fixing freight rates, supplemental bills to enjoin the enforcement of subse- quent statutes fixing passenger rates 15 and to enjoin proceedings in the State court to obtain an adjudication there of the ques- tion previously pending in the Federal court, 16 have been per- mitted. A forfeiture of the defendant's franchise pending a suit for an injunction may be pleaded by supplemental bill. 17 In a patent case, brought by an exclusive assignee, he was al- lowed to show by a supplemental bill that pending the suit the patent had been assigned to him. 18 When an event happens subsequently to the tiling of an original bill which gives a new interest in the matter in dispute to any person, whether or not already a party, without depriving of their interest all of the original plaintiffs suing in their own right, the defect arising from this event may be supplied by a supplemental bill. 19 14 Reedy v. Scott, 23 Wall. 352, 23 L. ed. 109. 15 St. Louis & S. F. R. Co. v. Had- ley, 155 Fed. 220. So, when the statute in force at the beginning of the suit, which authorized public of- ficers to sue, to enforce the same, was repealed and a new law enacted subject, to the same objections, which provided that private persons might sue because of its violation. Central of Georgia Ry. Co. v. Rail- road Com. of Ala. 16 Missouri Pac. Ry. Co. v. Jones, 3 70 Fed. 124. 17 Rio Grande Dam & Irrigation Co. v. U. S., 215 U. S. 266, 269, 54 L. ed. 190. 192. 18 ( (watonna Mfg. Co. v. F. B. Fargo & Co., 94 Fed. 519: Banks Law Pub. Co. v. Lawyers' Co-Opera- tive Pub. Co., 139 Fed. 701, a copy- right case. 19 Quoted with approval by Hazel, J., in Banks' Law Pub. Co. v. Law- yers' Co-Operative Pub. Co.. 139 Fed. 701. See Hobson v. McArthur, 16 Pet. ISO: Daniell's Ch. Pr. 1663- 1675: Story's Eq. PL, §§ 336-343; Mitford's PL. cli. 1. § 3. It lias been held that supplemental lulls may be tiled to plead the removal, subsequent to the original hill, of liens which were obstacles to part of the plaintiff's claim (Sheffield & B. I. A; Ry. Co. v. Newman. C. C. A., 77 Fed. 7S7 ) . and to plead an elec- tion to declare the principal of a mortgage due. made subsequent to the original bill to foreclose for a default in interest (Seattle. L. S. & G. Ry. Co. v. Union Tr. Co.. 79 Led. 179): or to plead subsequent defaults in interest. X. Y. Security & Tr. Co. v. Lincoln Stone Ry. Co. 70S ABATEMENT AND REVIVOR. [§ 231 Where a board of directors seek to dismiss a suit by a cor- poration, minority stockholders may be allowed to come in by supplemental bill, and to continue the suit in their own right, and at their own expense, upon compliance with Equity Rule 27. 20 Where, pending a foreclosure suit, a majority of the bondholders, in accordance with the trust deed, removed the trustee, who had brought the suit, and appointed another in his place; the latter was permitted to file a supplemental bill to procure his substitution as complainant, when there appeared to be no fraud in his appointment. 81 A remainderman may also, in this same manner, be made a party to a suit brought by or against a tenant in tail upon the determination of the hit- ter's estate, and the acquisition by the former of the present interest to the property in litigation. 22 A supplemental bill which brings in a new party may be original as to him, but supplemental as to the rest. 23 If, pending a suit, a tenant in tail of an estate thereby affected by it is born; 24 or if, pending a suit against a husband and wife concerning the latter's es- tate, the man dies, and the wife thus acquires a new interest; 25 or if one of two or more plaintiffs suing in their own right is entirely deprived of his interest, by any other event than an assignment of it; 26 or if the interest of a sole plaintiff suing in a representative capacity entirely determines by death or otherwise, and some other person becomes entitled to the same property under the same title, 27 — the defect in the suit thereby occasioned must be cured by a supplemental bill. So, if pend- ing a suit a party becomes a lunatic, or if pending a suit by or against a lunatic and his committee a new committee is appointed, the committee should be brought in by a supple- mental bill. 28 A supplemental bill may be filed after a decree in aid of the same ; as, it has been held, 74 Fed. 07. Sen also s. c, 77 Fed. 24 Mitford's PI., ch. I, § 3. 525. 25 Daniell's Ch. Pr. (2d Am. ed.) 20 Eagle Iron Co. v. Colyar, 156 1603. Fed. 054. See supra, § 145. 26 Mitford's PI., eh. 1, § 3; Dan- 21 March v. Romare, C. C. A., 110 Jell's Ch. Pr. (2d Am. ed.) 1064. ltd. 355. 27 Mitford's PL. ch. 1, § 3; Dan- 22 Lloyd v. Johnes, 9 Ves. 37; fell's Ch. Pr. (2d Am. ed.), 1665; Daniell's Ch. Pr. (2d Am. ed.), Marriott v. Tarpley, 9 Sim. 279. 1668-1672. 28 Mitford's PL, ch. 1, § 3; Dan- 23 Mitford's PL, ch. 1, § 3. fell's Ch. Pr. (2d Am. ed.) 1664. § 231] SUPPLEMENTAL BILLS. T6D bv a purchaser at a foreclosure sale to enjoin an at- tack upon his title by proceedings in a Stale court after suit by privies to the original suit, such as stockholders or cred- itors, 29 and to enjoin the taking possession of property to which the complainant is entitled under the decree, 80 or to enforce a decree by consent. 31 Before the act of February 8th, L899, 8 it was held: that the successor in office of a cabinet officer could not be substituted for him in a suit for an injunction, and for a decree directing the issue of a patent; 33 but, that a supple- mental bill might be filed to enjoin a State Attorney-General from continuing, in the State court, a suit, the prosecution of which, by his predecessor, had been enjoined. 34 After an in- terlocutory decree for an injunction and an accounting in a patent suit, and the conclusion of the accounting thereunder ; the court refused to permit the complainant, by a supplemental bill, to bring in the officers and directors of the defendant, in order to charge them with individual liability upon the final decree. 35 But where such officers were originally made parties, proof that since the commencement of the suit the corporation has become insolvent and has transferred its property, may be received without the tiling of a supplemental bill. 36 Pending a suit to restrain a house-owner from interfering with com- plainant's wires by moving his building along a street, leave was refused to file a supplemental bill against other house- movers moving other houses on the same road over the same street under separate permits. 37 Assignees of defendants en- joined from using a trade-mark, who use the mark, but do not base their claim to use it on any rights supposed to be derived from the original defendants, cannot be brought into the orig- 29 Central Tr. Co. v. Western N. 33 Warner Valley Stone Co. v. C. R. Co., 80 Fed. 24. Rut see Smith. 165 V. S. 28, 41 L. ed: 821. Keokuk & W. R. Co. v. Scotland 34 Prout v. Starr. 188 U. S. 537. County, 152 U. S. 318, 38 L. ed. 457. 544. 47 L. ed. 5S4. 587. 30 Root v. Woolworth, 150 U. S. 35 H. ('. C,„,k Co. v. Little Kiver 401, 37 L. ed. 1123. Mfg. Co.. 156 Fed. 07t>. 31 Chapman v. Yellow Poplar 36 Saxlehner v. Eisner, 140 Fed. Lumber Co., C. C. A., 143 Fed. 201. 038. 32 30 St. at L. 822. Quoted supra, WEdison El. Light & Power Co. § 174_ v. Blomquist, 185 fed. 015. Fed. Prac. Vol. I.— 49. 770 ABATEMENT AND REVIVOR. [§ 231 inal suit by supplemental bill. 38 A bill by a surviving partner to settle the partnership affairs is a separate and distinct pro- ceeding from a suit subsequently brought by the same party to «ubject real estate of the deceased partner to the -payment of debts held by his heirs, and the statute of limitations cannot be avoided by styling the second bill a supplemental bill. 39 According to Lord Redesdale, upon the death of one suing in behalf of himself and others in the same position With him, if his representative do not choose to file a bill of revivor, any one of the class on behalf of whom he sued may revive ; 40 but it seems that a more proper course would be for the one wishing to continue the suit to do so by means of a supple- mental bill, which he can only obtain leave to file upon notice to the representatives of the deceased plaintiff, as well as to the defendants. 41 Where, however, a suit brought by one in a representative capacity becomes defective by his death, and another acquires the right t<- continue it under a different title, — as upon the death of an executor or administrator succeeded by an administrator de bonis non. according to Lord Redesdale and Daniell, the latter may continue by a bill of according to Judge Storv, only by a bill in the revivor 42 nature of revivor ; 43 in no case by a supplemental bill. It has been held that in a case where the defendant is entitled to affirmative relief in his answer without a cross-bill, as a suit under Section 4918 of the Revised Statutes, the complain- ant may plead in a supplemental bill any matter in defense to such a claim for affirmative relief, that he might have pleaded by supplemental answer to a cross-bill, had one been filed. A supplemental bill must not be inconsistent with the original bill. Thus, where the original bill stated that the defendants claimed to be a corporation, but were not incorporated, it was 38 Dadirrian v. Gullian. 80 Fed. 986. 39 White v. Miller, 158 U. S. 128, 39 L. ed. 021. MMitford'a PL, eh. 1. § 3. 41 Houlditch v. Marquis Donne- gall, 1 S. & S. 491: Dixon v. YVvatt, 4 Madd. 392; DanieiPs Ch. Pr. 1 2d Am. ed.i 1671, 1072; Story's Eq. PL. § 2 Eq. PI.. § 382. n. 1. « Electrical A. Co. v. Brush El. Co., 44 Fed. 602, 607; supra, §§ 1? J 171. 1 232] SUPrLK M E KTAt, BILLS. 771 held improper to file a supplemental bill claiming relief upon the o-round that the defendants were a corporation. 45 Wher ■ the original bill against a corporation prayed an injunction and, as incidental relief, a receiver, and the defendant waa dissolved by proceedings in a State court, after the issue of an inquisition, but before the appointment of a receiver, a supplemental bill seeking to continue the injunction against the liquidators was held improper. 46 A defective original can- not be cured by new matter subsequently arising, set forth in a supplemental bill, such as the entry of judgment in favor of the plaintiff subsequent to his filing a creditor's bill. 47 The only exceptions to this rule are the probate of a will, or obtain- ing letters of administration by a partv who has sued as executor or administrator, and a few other cases of the per- fection of an inchoate right. 48 § 232. Parties and frame of a supplemental bill. As a 2-eneral rule, all parties to the original suit must be made such to a supplemental bill filed to supply a defect m it, unless such a bill be filed to bring in a mere formal defend- ant, or to allege matter which cannot possibly affect a decree against more than one defendant, when the others need not be made parties to it. 2 An objection for want of parties must, however, be made by motion to dismiss, answer, or when the motion for leave to file the bill is argued. It may be too late to make it at the hearing. 3 If the court had jurisdiction of the original bill it will take jurisdiction of the supplemental bill, no matter what may be the citizenship of the new parties; 4 provided at least that they have a right to sue and be sued in a Federal court. 5 A "supplemental bill must state the original 45 Maynard v. Green, 30 Fed. 643. 46 Lang v. Louisiana Canning Co., 56 Fed. 675. OTPutney v. Wlutmore, 66 Fed. 385; Xeubert v. Massman, 37 Fla. 91, T.l So. 62.~>: Heffron v. Knicker- bocker, 57 HI. App, 33!): X. Y. Se- curity & Tr. Co. v. Lincoln Street. Ry. Co., 74 Fed. 67. But see s. C. 77 Fed. 525. 48 Supra, § 164. § 232. iDaniell's Ch. Pr. (2d Am. ed.) 1678; Jones v. Jones, 3 Atk. 217; Dyson v. Morris. 1 Hare, 413: Jones v. Bpwells, 2 Hare. 342. SlJreenwood v. Atkinson. ."> Sim. 419; Dyson v. Morris, 1 Hare 413; Wilkinson v. Fowkesj '.» Hare 193; Story's Eq. PL, § 343. 3 Jones v. Jones. 3 Atk. 217. 4 Minnesota Co. v. St. Paul Co., 2 Wall. 609, 17 L. ed. SS6. See § 21. 5 See Adams Express Co. \. Den- ver & R. G. R. Co., 16 Fed. 712; 772 ABATEMENT AND REVIVOR. [§ 232 bill, and the proceedings thereon, and if the supplemental hill is occasioned by an event subsequent to the original hill r it must state that event, and the consequent alteration with respect to the parties." 6 The Equity Rules provide that "It shall not be necessary in any bill of revivor or supplemental hill to set forth any of the statements in the original suit, unless the special circumstances of the case may require it.'* 7 This, however, although copied in substance from an English Chan- cery order, 8 is merely a reafhrmanee of the pre-existing prac- tice. 9 If the bill brings in no new party, there is never any need of its containing any of the statements in the original pleadings. 10 When, however, it brings in a new party, as it is in fact original as to him, it must state enough of the former proceedings to show an equity against him. 11 These need not be averred positively ; but it will be sufficient to state that such matters were alleged in the former bill or answer, 12 and only so much of the original pleadings need be set forth as suffice to show an equity against the new party. 13 The prayer of a supplemental bill is adapted to the object for which it is exhibited. It formerly always concluded with a prayer for process in the usual form. 14 "Whether this is now necessary when no new defendants are brought in may be doubted,. 15 It should be signed by the solicitor, 16 and in other respects, conform to the form of an original bill. 17 Where no objec- tion to the form of proceedings is made, relief which regu- larly should only be granted upon a supplemental bill, may be allowed upon a petition. 18 A supplemental bill may Be filed Omaha H. R. Co. v. Cable T. Co., 33 Fed. 689. 6Mitford's PL, eh. 1, § 3. ' Ei). Rule 35; copied from Eq. Rule 58 of 1842. 8 See Order 47 in Chancery, of August, 1S41. 9Daniell's Ch. Pr. (2d Am. ed.) 1675-1678. 10 Daniell's Ch. Rr. (2d Am. ed.) it;:."). n Raldwin v. Mackown, 3 Atk. SIT: Daniell's Ch. Pr. (2d Am. ed.) 1675s 1076. 12 Lloyd v. Jones, 9 Yes. 37 : Dan- iell's Ch. Pr. (2d Am. ed.) 1676. 13 Vigers v. Lord Audley. 9 Sim. 72: Attorney-C4eneral v. Foster. 2 Hare, 81; Daniell's Ch. Pr. (2d Am. ed.) 1076, 1677. Pr. 1680. Bill, 95 U. S. 10, 14 Daniell's Ch. 15 See Shaw v. 24 L. ed. 333. 16 Eq. Rule 24. 17 Daniell's Ch. 1680. 18 Coburn v. Ohio Valley Land & Cattle Co., 138 U. S. 196, 223. 34 L. ed. 876, 887. Pr. (2d Am. ed.) 233] PROCEEDINGS ON SUPPLEMENTAL BILES. 773 at any time during the progress of a suit, as well after as before a decree. 19 and even during the pendency of an appeal. 20 It seems, however, that if matters which make it necessary or advisable were known to the party filing it before the entry of the decree, afterwards it will be too late ; 21 though such an objection must be taken before the hearing upon the supple- mental bill. 22 § 233. Proceedings upon supplemental bills. The Equity Rules provide : "Upon application of either party the court or judge, may, upon reasonable notice and such terms as. are just, permit him to file and serve a supplemental pleading, alleging material facts occurring after his former pleading, or of which he was ignorant when it was made, including the judgment or decree of a competent court rendered after the commencement of the suit determining the matters in contro- versy or a part thereof." 1 The petition for leave to file such a bill need not state the averments which are intended to be inserted therein ; but must state sufficient to advise the opposite parties and the court of the ground upon which the relief is sought. 2 It. was held that upon the return of the order to show cause an objection which was a proper ground for a demurrer could not be raised. 3 The objection that a supplemental bill was filed without leave was not a ground of demurrer, but only for a motion to dismiss which rested in the discretion of the court. 4 A motion would not lie to take a supplemental bill off the file for irregularity upon the ground that it does not state supplemental matter. 5 The proper course in such a case 19 Root v. Woodworth, 150 U. S. § 401, 37 L. ed. 1123; Central Tr. Co. v. Western N. C. R. Co.. 89 Fed. 24; Daniell's Ch. Pr. (2d Am. ed.) 1659, 1660; Story's Eq. PL, §§ 333, 338a; 2 Barbour's Ch. Pr. 167; O'Hara v. Shepherd, 3 Md. Ch. Dec. 306; Jenkins v. Eldredge. 3 Story, 209; Woodward v. Woodward, 1 Dick. 33; Dormer v. Fortesque, 3 Atk. 124; Secor v. Singleton, 41 Fed. 725. 20 Woodward V. Woodward, 1 Dick. 33. 21 Pendleton v. Fay. 3 Paige (N- Y.), 204; Story's Eq. PI., § 338a. 22 Fulton Bank v. N. Y. & S. C. Co., 4 Paige (N. Y.). 127. § 233. 1 Equity Rule 34. 2 Parkhurst v. Kinsman. 2 Blatchf. C. C. 72. 3 Oregon & Trans. Co. v. N. Pac. Ry. Co., 32 Fed. 428. 4 Henry v. Travelers' Ins. Co., 45 Fed. 299, 303. 5 Bovver v. Bright. 13 Price. 316; Daniell's Ch. Pr. (.2d Am. ed.) L682. i I ABATEMENT AND REVIVOR. [§ 233 was to demur, or to object to the order allowing it to be filed. 6 Such motion might, however, be granted if a bill filed should be different from that which the order allowed. A supplemental bill filed without leave may by a subsequent order be allowed to remain on file. 7 No subpoena need be issued upon such a bill unless new defendants are to be brought in : and then they only need be served with process. 8 Such a subpiena is in the same form as one issued upon the filing of an original bill, except that it specifies the nature of the bill upon which it is issued. 9 A demurrer to a supplemental bill was in general subject to the same rules except as to time of films: the same, and would lie for the same reasons as if the bill were original ; 10 but there were some grounds of demurrer peculiar to bills of this class. Thus, a demurrer would lie if it appeared upon the face of the bill that it pleaded matters which occurred before the institution of the suit, and which it was not too late to insert by amendment into the original bill. 11 A supplemental bill was demurrable where it showed on its face that the plaintiff knew the facts therein alleged before his time to amend had expired. 12 A supplemental bill was demur- ^ble if when filed after a decree for an account it pleaded matter which it showed that the plaintiff knew before the de- cree ; 13 when filed to introduce a claim founded upon a title entirely distinct from that in the original bill ; as, when a man first sued claiming as heir-at-law, and afterwards sought by supplemental bill to plead a purchase of the interest of the true heir-at-law ; 14 and when brought against a person who neither had nor claimed any interest in the subject-matter of the orisinal suit. 15 6 Ibid. 7 Mackintosh v. Flint & P. M. R. Co.. 34 Fed. 582. 8 Shaw v. Bill. 05 U. S. 10, 14, -24 L. ed. 333. 334. 9Daniell's Ch, Pr. (2d Am. ed.) 168D. lODaniell's Ch. Pr. (2d Am. ed.) 1681; Secor v. Singleton, 41 Fed. 725. UMitford's PI., ch. 2, § 2. part 1; Story's Eq. PI., § 614: Stafford t. Howlett. 1 Paige i X. V. 1 . 200. 12 Henry v. Travelers' Ins. Co., 45 Fed. 299. 302. 13 Henry v. Travelers' Ins. Co., 45 Fed. 299, 30.3. 14 Tonkin v. Lethhridge, G. Coo- per, 43: Daniell's Ch. Pr. (2d Am. ed.) 1681. is Baldwin v. Mackown, 3 Atk. 817: MitfrtM's PI., ch. 2, § 2, part 1; Daniell's Ch. Pr. (2d Am. ed.) 1681. § 233] PROCEEDINGS OX SUPPLEMENTAL BILES. 77."> Any objections to a supplemental bill which do not appear upon its face may be taken by answer, which, in general, is subject to the same rules as answers t<> original bills. 16 If a defendant has not answered the original bill, his successor may be called upon in the supplemental bill to do so. 17 WheD that is done, the usual course is to include the answer to the original and that to the supplemental bill in the same plead- ing/ 8 although it is not absolutely irregular to separate them. 19 A defense cannot be pleaded to a supplemental bill which has previously been pleaded to the original bill and overruled. 20 If the plaintiff wished to join issue upon averments in the answer, he might file a replication to it. 21 If the new matter in the supplemental bill is not admitted, it must be proved, or the bill will be dismissed with costs. 22 For this purpose evidence may be taken and a hearing had as upon an original bill. 23 Discovery might be obtained by a supplemental bill. 24 If there has been no previous hearing and decree, both bills may be brought to a hearing together, and a single decree will suffice for both. 25 If the supplemental bill is heard alone, the evi- dence taken in the original suit may be read in support of or in opposition to it. 26 The effect of a supplemental bill when sustained is to put the suit in the same condition as if the supplemental matter had been alleged and the new party, if any, brought in at its institution. 27 A bill improperly styled a supplemental bill was dismissed upon a demurrer, which specified that objection, although it might have been sustained as a bill in the nature of a supplemental bill. 28 Where, pend- 16 Daniell's Cli. Pr. (2d Am. ed.) 23 Lloyd v. Jones. Ves. 27: 1682. Daniell'a Ch. Pr. (2d Am. ed.) I'Vigers v. Lord Audley, 9 Sim. 3683. 408. 24 Mitford'i? TL. ch. 1, § 3; Dan- isvigers v. Lord Audley. 9 Sim. iell'a Ch. Pr. (2d Am. ed. I 1684, 408. 1685. ' isSayle v. Graham, 5 Sim. 8. 25 Darnell's Ch. Pr. (.2d Am. ed.) 20Pentlarge v. Pentlarge, 22 Fed. 1684; Turrell v. Spaeth. 9 Off. Gaz. 412; Scott v. La/.cll. 177 Fed. 008. 1063. 21 Daniell's Ch. Pr. (2d Am. ed.) 26DanieH's Ch. Pr. (2d Am. ed.) 1683; Perkins v. Hendryx, 31 Fed. 1660. 1667. 522. 27|i,i,i. 22 Daniell's Ch. Pr. (2d Am. ed,) 28 Campbell v. New York, 35 Fed. 1683; Pedrick v. White, 1 Met. 14. But see Roes v. City of Ft (Mass.) 70. Wayne, 58 Fed. 404, 106. < I 6 ABATEMENT AND REVIVOR. [§ 234 ing an appeal, a supplemental bill was filed; it was held, that a mandate ordering the dismissal of the original bill did not affect the supplemental pleading. 29 The refusal of permission to tile a supplemental bill will rarely be a ground of refusal upon an appeal, when the complainant has the right to tile an original bill for the same relief. 30 After a reversal, where the mandate gives directions "to grant leave to both sides to adduce further evidence," the court of first instance has power to permit the filing of a supplemental bill. 31 § 234. Bills in the nature of supplemental bills in gen- eral. A bill in the nature of a supplemental bill is a bill filed to obtain the benefit of a suit, either after an abatement which Savings & Tr. Co. v. Bear Valley Irr. Co., 112 Fed. 693, 702, 704. 6 In l'. S. v. Kettenbach. 175 Fed. 463, beld that such a motion to strike out part of an amended bill could not be made. In Ware- Kramer Tobacco Co. v. Am. Tobacco Co., 178 Fed. 117, 123. held that such a motion could not be made to test the sufficiency' of the com- plaint. 7 Walker v. Jack, C. C. A., 88 Fed. 576. 31 C. C. A. 462: Greene v. Aurora Rys. Co.. 158 Fed. 909. 8 Crouch v. Kerr, 38 Fed. 549 ; Grether v. Wright, C. C. A., 75 Fed. 742. 23 C. C. A. 498, 43 U. S. App. 770; Besson & Co. v. Goodman, 147 Fed. 887; Blanton v. Chalmers, 158 Fed. 907; Louisville & X. R. Co. v. Wright, 190 Fed. 252 9 Adams v. Bridgewater Iron Co., 6 Fed. 179; Bower-Barff R. I. Co. v. Wells R. I. Co.. 43 Fed. 391. But sec Ford v. Douglas, 5 How. 143, 165. 12 L. ed. 89. 99; Harrison v. Perea, 168 U. S. 311, 42 L. ed. 478; s. c, below, 7 Xew Mexico, 666. 10 Eq. Rule 29. " Eq. Rule 33. § 239] STRIKING OUT SCANDAL AND IMPERTINENCE. 787 answer are abolished.'" 12 "If found insufficient but amendable the court may allow an amendment upon terms, or strike out the matter/' 13 Under the former practice, matter that otherwise might have been considered to be impertinent or scandalous was not stricken out when intermingled with essential allegations so that their omission would render a sentence without meaning. 14 Neither scandal, nor impertinence, however gross, is a ground for dis- missing the whole bill, it being- a maxim of pleading that utile per inutile non vitiatur. 1 * ruder the former practice, it was held that an exception for impertinence must be allowed in the whole or not at all. 16 12Ibjd. 401. See. also. Pacific R. of Mo. v. 13 Ibid. Mo. Pac. Ry. Co.. Ill l". S. 5(1.-). .lie, 14 Ware-Kramer Tobacco Co. v. 522. 28 L. ed. 498. 502. 50-1. Am. Tobacco Co., 178 Fed. 117, 123. 16 Cbapman v. School District, 15 Darnell's Ch. Pr. (2d Am. ed.) Deady, 108, 117. CHAPTER XV. MOTIONS TO MAKE PLEADINGS MORE DEFINITE AND CERTAIN AND BILLS OF PARTICULARS. § 240. Distinction between motions to make pleadings more definite and certain and bills of particulars. The Equity Rules provide: "A further and better statement of the nature of the claim or defense, or further and better par- ticulars of any matter stated in any pleading', may in any case be ordered, upon such terms, as to costs and otherwise, as may be just." l The distinction between these two kinds of relief is not clear. In Wisconsin it has been held that there is no such dis- tinction. 2 In Xew York, an order will be made directing a pleading to be made more definite and certain only when its precise meaning or application is not clear. 3 Matters of time, place and circumstances, unless they constitute material parts of a cause of action or a defense, can only be obtained by a bill of particulars. It has been held that items of an account can only be obtained by a bill of particulars. 4 § 241. Motions to make pleadings more definite and certain. A demurrer for lack of certainty to the whole bill or to a part thereof took the place now occupied by a motion to make the 1 > i 1 1 more definite and certain. 1 Such demurrers were § 240. 1 Eq. Rule 20. 2 Conover v. Knight, 84 Wise. (13(1. 042. 54 X. E. 1002. 3 Tilton v. Beecher, 50 X. Y. 170, 17 Am. Rep. 337; Dumar v. Wither- bee. 88 X. Y. App. Div. 181, 84 X. Y. Suppl. CO!). See Cook v. Matte- son, 33 X. Y. St. Rep. 497; Jack- man v. Lord, 56 Hun (X. Y.) 192; Rouget v. Haight, 57 Hun (X. Y.) 119; Madden v. Underwriting Pub. Co., 10 Misc. (X. Y.) 27; Harring- 7 ton v. Stillman. 120 App. Div. (X. Y.) G59, 105 X. Y. Supp. 75. 4 Clegg v. Am. Xewspaper Union, 7 Abb. X. C. (X. Y.) 59; St. John v. Beers, 24 How. Pr. (X. Y.) 377. Contra, MacAdam v. Scudder, 127 Mo. 345, 30 S. W. 168; Meyer v. Chambers, 68 Mo. 626; Gfeller v. Graefemann-, 64 Mo. App. 162. § 241. 1 Chicago, M. & St. P. R. Co. v. Pullman P. C. Co., 50 Fed. 24; Green v. Terwilliger, 56 Fed. 88 241] TO MAKE PLEADINGS MORE DEFINITE. 789 especially favored as regards allegations of fraud. 2 Such mo- tions have been granted in the case of alternative averments ; 3 or a failure to show the nature or source of a title pleaded ; 4 or whether a contract was oral or in writing; 5 or in what a fail- ure of consideration consisted; 6 or in what character the de- fendant was sued ; 7 and as to allegations of time or place, which were material parts of the cause of action or defense as to which the motion was made. 8 Such motions have also been granted when denials were indefinite, 9 and when knowl- edge or information was denied concerning matters presumptive- 384; Thomas v. Nantahala. M. & T. Co., C. C. A., 58 Fed. 485. In an action for damages because of the infringement of a patent, the court ordered the plaintiff to make his complaint at common law more defi- nite and certain so as to show which of several patents, one of which had expired, the defendant's articles infringed. Fischer v. Auto- mobile Supply Mfg. Co., 199 Fed. 191. 2 Rorback v. Dorsheimer. 25 N. J. Eq. 516, 518; Mason v. Daly. 117 Mass. 403; James v. City Investing Co., 188 Fed. 513; § 137, supra. See Patton v. Whitney. 5 N. Y. St. Rep. 845; Clafiin v. Smith, 13 Abb. N. C. (X. Y.) 205, 4 Civ. Pro. R. (X. Y.) 240, 66 How. Pr. (N, Y.) 168. Contra, Williams v. Folsom, 26 Abb. X. C. (X. Y.) 374. 37 N. Y. St. Rep. 635. 3 Hasberg v. Moses, 81 X. Y. App. Div. 199, 80 X. Y. Supp. 867; Cor- bin v. George, 2 Abb. Pr. (X. Y.) 465. 4 Livingston v. Ruff, 65 S. C. 284, 43 S. E. 678; Waldo v. Milroy, 19 Wash. 156, 52 Pac. 1012. 5 Xew York First Presb. Church v. Kennedy, 72 X. Y. App. Div. 82, 76 X. Y. Supp. 284. 6 Griffith v. Wright, 21 Wash. 494, 58 Pac. 582. 7 Seasongood v. Fleming, 74 Hun (X. Y.) 639, 26 X. Y. Supp. 831. 8 Pierce v. Baird, 48 Ind. 378: Melvin v. St. Louis, etc., R. Co., 89 Mo. 106, 1 S. W. 286; People v. Ryder. 12 X. Y. 433; Mutual L. Ins. Co. v. Raymond. 118 X. Y. App. Div. 828, 103 X. Y. Supp. 839; Pigone v. Lauria. 115 X. Y. App. Div. 286, 100 X. Y. Supp. 976; Cerro De Pasco Tunnel, etc., Co. v. Haggin, 106 X. Y. App. Div. 401 (action for libel); Warner v. James, 94 N. Y'. App. Div. 257. 87 X. Y. Supp. 976; Dumar v. Wither- bee, 88 X. Y. App. Div. 181. 84 X. Y. Supp. 669; Bennett v. Lawrence. 71 X. Y. App. Div. 413, 75 X. Y. Supp. 902; Dexter v. Fulton, 86 Hun (X. Y.) 433, 33 X. Y. Supp. 901 ; Barlow v. Pease, 5 Hun ( X. Y.) 564] McGehee v. Cooke, 55 Misc. (X. Y.) 40. 105 X. Y. Supp. 60: Rosenthal v. Rosenthal, 10 X. Y. Supp. 455; Lynch v. Walsh, 11 X. Y. Civ. Proc. 446; 31 Cyc. 650. 9 Snyder v. Free, 114 Mo. 360, 21 S. W. 847; Pfaudler Process Fer- mentation Co. v. McPherson, 3 N. Y. Supp. 609; Burley v. German Am. Bank, 5 X. Y. Civ. Proc. 172: O'Brien v. Seattle Ice Co.. 43 Wash. 217, 86 Pac. 399: Borsuk v. Plan- ner, 93 X. Y. App. Div. 306, 87 X 790 MOTIONS TO CURE UXCER TAJ XTY. [§ 241 ly within the knowledge of the pleader. 10 Under the practice of the different States it has been held : that a motion to make :i pleading more definite and certain will not be granted when the indefinite allegations are immaterial, 11 or surplusage; 12 nor whore the uncertainty has been removed by allegations in a sub- sequent part of the pleading ; 13 nor where the details demanded pertain to the case or defense of the moving party. 14 A few cases hold: that the motion will not be granted where it ap- pears that the matter demanded is not within the reach of the pleader, 15 although, in one case, it was held that the objec- tionable allegations, if not sufficiently definite, should be strick- en out; 16 or where it appears that the moving party has suffi- cient information upon the subject, 17 or as much information as the pleader. 18 Y. Supp. 851 ; Morgan v. Sammons, 66 S. C. 388, 44 S. E. 966. 10 Winchester v. Browne. 11 N. Y. Supp. 614, 25 Abb. N. Cas. 148; Hardman v. Cincinnati, etc., R. Co., Ohio Dec. (Reprint) 544, 14 Cine. L. Bui. 346. U Smith v. Trafton, 3 Robertson (X. Y.) 709; Maretzek v. Cauldwell. 2 Robertson (X. Y. i 715. 12 Choctaw, etc., R. Co. v. Rolfe, 76 Ark. 220. 88 S. Wi 870; Knox v. Trafalet. 94 Ind. 346: Indiana Stone Co. v. Stewart, 7 Ind. App. 563, 34 X. E. 1019; Sehoonover v. Hinckley, 46 Iowa. 207: David- son v. Seligman. 51 X. Y. Super. Ct. 47: Pearce v. Weidemeyer. 52 Misc. (X. Y.) 456, 102 X. Y. Supp. 505; Cook v. Matteson, 11 X. Y. Supp. 572: Parstiall v. Tillou. 13 How. Pr. I X. Y.) 7: Shoemaker v. Dayton, etc., R. Co., 10 Ohio Dec. (Reprint) 252, 19 Cine. L. Bui. 322; Mc'Car- ville v. Boyle. 89 Wis. 651. 02 X. VY. 517; Spensley v. Janesville Cot- ton Mfg. Co.. 02 Wis. 549,. 22 X. W. 574: 31 Cyc. 047. 13 Barron v. Pittsburg Plate Glass Co., 10 Ohio S. & C. PL Dec. 114, 7 Ohio X. P. 528. 14Yanderveer v. Moran. 79 Xeb. 431. 112 X. W. 581; Anonymous, 4 Ohio Dec. (Reprint) 234. 1 Clev. L. Rep. 148. 15 Corns v. Clouser. 137 Ind. 201, 36 X. E. 848: Louisville, etc.. R. Co. v. Balchj 105 Ind. 93, 4 X. E. 288; Wheelock v. Barney, 27 Ind. 462 ; Baltimore, etc., R. Co. v. Coun- tryman, 16 Ind. App. 139, 44 X. E. 205; Atchison, etc.. R. Co. v. Davis, 70 Kan. 578. 79 Pac. 130: Orth v. St. Paul. etc.. R. Co., 43 Minn. 208, 45 X. W. 151 : Kellogg v. Baker. 15 CO Abb. Pr. (X. Y.) 286. 16 Pugh v. Winona, etc.. R. Co., 29 Minn. 390. 13 X. W. 189. 17 St. Louis, etc., R. Co. v. French, 56 Kan. 584. 44 Pac. 12; West v. O'Neill, 14 Misc. (X. Y.) 235. 35 X. Y. Supp. 714: People v. Xew York City Cent. Under-Ground R. Co.. 15 X. Y. Supp. 225. 18 Dr. Blair Medical Co. v. U. S. Fidelity, etc.. Co.. I Iowa 1902) 89 X. W. 20; Booco v. Mansfield, 66 Ohio St. 121. 04 X. E. 115: Herk- lotz v. Chase. 32 Fed. 433: Union 242] BILLS OF PARTICULARS* 791 § 242. Bills of particulars. 15 ills pf particulars were former- ly unknown to equity practice, 1 although they were frequently ordered in actions at common law. Where domination and un- due influence was alleged, the plaintiff has been required to set forth the nature of her claim of domination and the par- ticulars of the undue influence which she claimed existed, whether the same was exercised by threats, actual fraud or con- cealment, and to specify the nature of the threats, fraud con- cealment, or other instrumentality. 2 Where, in a suit to set aside a release as fraudulent, the answer set forth that the release was in consideration of a large sum of money advanced by the defendant to the plaintiff, a bill of particulars was or- dered as to the amount of such advances. 3 A hill of particulars is usually ordered when a fiduciary relation exists. 4 A hill of particulars will not be ordered concerning immaterial allega- tions, 5 nor concerning allegations as to which the burden qi proof is on the applicant. 6 In England, it has been held that the knowledge by the party is no bar to his motion for a bill of particulars. 7 The rule in Hew York seems to be otherwise,. 8 Gold Min. Co. v. Crawford. 29 Colo. 511, 69 Pac. 000: Barron v. Pitts- burg Plate Glass Co.. 10 Ohio S. & C. PI. Dec. 114. 7 Ohio N. P. 528 -. Steelman v. Quaker City F. Ins. Co., 10 Pa. Co. Ct. 362; 31 Cye. 646. § 242. i See Cornell v. Boatwick, 3 Paige t X. Y.) 160. 2 Davis v. Davis, (Lehman. •).. X. Y. Sup. Ct.) X. Y. L. J. .March 2, 1012. In an action for conspiracy, the plaintiff was required to give a hill of particulars stating the re- spects in which the defendant's acts w.mc unlawful and the manner of their combination or agreement to injure plaintiff, but not of the dam- ages suffered by the plaintiff when there was no claim of special dam- ages. Patterson v. Corn Exch nge of Buffalo. 107 Fed. 686. 3 Wefter v. Moouev. X Y. St. Rep. 651. 4 Zierenberg v. Labouchere. ( 1893 ) 2 Q. B. 183. 5 Cave v. Torre, 54 L. T. 515: Gibbons v. Norman, 2 Times Rep. 676. 6 James v. Radnor County Coun- cil, 6 Times Rep. 40: Roberts v. Owen. 6 Times Rep. 172. 7Harbord v. Monk. 88 I.. I. 411. But sec Kcogh v. Incorporated Den- tal Hospital of Ireland. ( 1910) 2 Irish R. 166. 8 Powers v. Hughes. 39 X. Y. Supr. 4S2: Blackie v. Xeilson. •'. Bosw. I X. Y.) 681; Young v. De- Mott. 1 Barb. I X. Y. > 30; EToening- haus v. Cbaleyer, 22 X. Y. St. Bep. 528: Fink v. .letter, 38 Hun (X. Y.i 16:?: Wigand v. Dejonge. is Hun (X. Y.i 405: Passavant v. Si.kle. 14 Civ. Fro. R. (X. Y.i 57: Train v. Friedman, 4 Civ. Pro. R. iX. Y.) 109; Stevena v. Webb, 12 ■92 MOTIONS FOR BILLS OF PARTICULARS. [§ 243 § 243. Practice upon motion for bill of particulars. It is the better practice to precede a motion for a bill of particulars by a demand for such a bill. 1 The New York rule is that the application must be accompanied by an affidavit showing that the moving party has no knowledge or information respecting the matters as to which the particulars are demanded and has no means of obtaining information in regard thereto. 2 The affidavit must be made by the party and not by his attorney, 3 unless it appears that the attorney is the only person who has knowledge of all the facts therein alleged, and that it is im- possible to obtain the party's affidavit. 4 The affidavit must further show that the allegations, as to which particulars are asked, are denied by the party applying for the order. 5 Daly (X. Y.) 88, 4 Civ. Pro. R. (X. Y.) 04: Butler v. Mann, 9 Abb. X. C. (X. Y.) 49: Belasco v. Klaw, 96 App. Div. (X. Y.) 268. § 243. 1 See 31 Cyc. 583. 2Coolidge v. Stoddard, 120 X. Y. App. Div. 641. 105 X. Y. Supp. 544; Constable v. Hardenbergh, 76 Hun (N. Y.) 434, 27 X. Y. Supp. 1022: Webster v. Fitchburg R. Co., 32 Misc. (X. Y.) 442, 66 X. Y. Supp. 220; Dorgan v. Sebeer, 31 Misc. (X. Y.) 801, 62 X. Y. Supp. 1030 (affirmed in 31 Misc. (X. Y.) 829, 64 X. Y. Supp. 383) ; Bowman Cycle Co. v. Dyer, 23 Misc. (X. Y.) 620, 52 X. Y. Supp. 159; Yilliers v. Third Ave. R. Co.. 22 Misc. (X. Y.) 17, 48 X. Y. Supp. 614; Wales Mfg. Co. v. Lazzaro. 19 Misc. (X. Y.) 477. 43 X. Y. Suppl. 1110 {reversing IS Misc. (X. Y.i 352. 41 X. Y. Supp. 1134) : Garfield Xat. Bank v. Peck. 1 Misc. (X. Y.) 126. 20 X. V. Supp. 650; Gfridley v. Gridley. 7 X. Y. Civ. Proc. 215; Orvis v. Dana, 1 Abb. X. Cas. (X. Y.) 268. 3 Toomey v. Whitney, 81 X. Y. App. Div. 441. 80 X. Y. Supp. 820: Mungall v. Bursley, 51 X. Y. App. Div. 380, 64 X. Y. Supp. 674: Stev- ens v. Smith, 38 X. Y. App. Div. 119, 56 X. Y. Supp. 540; Mayer v. Mayer, 29 X. Y. App. Div. 393, 51 X. Y. Supp. 1079; Yan Olinda v. Hall, 82 Hun (X. Y.) 357, 31 X. Y. Supp. 495; Gallerstein v. Man- hattan R. Co.. 27 Misc. (X. Y.) 506, 58 X. Y. Supp. 374 (reversing 26 Misc. (X. Y.) 852, 57 X. Y. Supp. 394: Mori v. Pearsall, 14 Misc. (X. Y.i 251. 35 X. Y. Supp. 829; Groff v. Hagan. 13 Misc. (X. Y.) 322, 34 X. Y. Supp. 462; Hoeinghaus v. Chaleyer, 4 X. Y. Supp. 814; Dueber Watch Case Mfg. Co. v. Keystone Watch Case Co., 21 X. Y. Supp. 342. 50 X. Y. St. 417, 23 X. Y. Civ. Proc. 44. But see Sanders v. Soutter. 54 Hun (X. Y.) 310. 7 X. Y. Supp. 549. Statutes providing for the verification of pleadings by attorney or agent do not apply to affidavits in support of applications of this character. Colin v. Baldwin, 74" Hun I X. Y.) 346, 26 X. Y. Supp. 457. 4 Mungall v. Bursley, 51 App. Div. (X. Y.) 380, 64 X. Y. Supp. 074. See 31 Cyc. 586. 5 Talmadge v. Sanitary Security Co., 2 X. Y. App. Div. 43, 37 X. Y. § 245] FORM OF BILL OF PAKTICULARS. 7.93 § 244. Remedy for failure to give a bill of particulars. In Xew York, the remedy for a failure to give a bill of particulars, which has been ordered, is a motion to preclude the party from giving- evidence concerning the matter, the particu- lars of which were directed, 1 or by a motion to strike out the pleading. 2 Where an insufficient bill is given, the remedy is a motion for a further bill. 3 Evidence upon the point omitted will not be excluded until such further bill had been ordered and the order disobeyed. 4 It is the safer practice there to re- turn the defective bill served when demanding a compliance with the original order. 5 It is the better practice to procure a specific order precluding the party from giving evidence, after his failure to comply with the second order for a bill, or to insert in the order for the further bill a provision precluding evidence upon any points not therein specified. 8 § 245. Form of bill of particulars. A lull of particulars will be held to be sufficient if it fairly, in substance, gives the opposite party the information to which he is entitled, 1 as re- Supp. 177 ; Webster v. Fitchburg R. Co., 32 Misc. (X. Y.) 442, 66 N. Y. Supp. 220. § 244. 1 Gross v. Clark, 87 X. Y. -272, 276; Foster v. Curtis, 121 App. Div. (X. Y.) 689; Prym v. Peck & Mack Co.. 136 App. Div. (X. Y.) 566; Loscber v. Hager, 124 App. Div. (X. Y.) 568. 2 Symonds v. Craw, 5 Cowen (X. Y.).279; Whitmore v. Jennys, 1 Barbour (X. Y.) 53; Purdy v. War- den, 18 Wendell (X. Y.) 671; Gross v. Clark, 87 X. Y. 272. 276. 3 Beirne v. Sanderson, 83 App. i 62, 82 X. Y. Supp. v. Kensico Cemetery, (X. Y.) 100, 80 X. Mueller v. Tentb St., etc.. Ferry Co.. 38 App. Div. (X. Y r .) 622, 56 X. Y. Supp. 310; Dueber Watch Case Mfg. Co. v. American, etc.. Watch Co., 22 X. Y. Supp. 69, 29 Abb. X. Cas. 412; Mathushek Piano Co. v. Pearce, 21 X. Y. Supp. Div. (X. Y. 493 ; Romer 79 App. Div. Y. Supp. 38; 920; Virtue v. Beacham. 17 X. Y. Supp. 450 {affirmed in 18 X. Y. Supp. 949) ; Gas-Works Constr. Co. v. Standard Gas-Light Co., 1 X. Y. Supp. 265 ; Bates v. Wotkyns, 2 How. Pr. (X. Y.) IS; Barnes v. Henshaw, 21 Wend. (X. Y.) 426; Purdey v. Warden, 18 Wend. (X. Y.l 651; James v. Goodrich, 1 Wend. (X. Y.) 289. 4 Cerra de Pasco Tunnel, etc., Co. v. Haggin, 114 X. Y. App. Div. 116. 99 X. Y. Supp. 683; Pveader v. Bag- gin, 114 X. Y. App. Div. 115, 99 X. Y. Supp. 684; Reader v. Haggin. 114 X. Y. App. Div. 112. 99 N. Y. Supp. 681. 5 Ward v. Littlejohn. 2 Silv. Sup. (X. Y.) 589, 6 X. Y. Supp. 170. 17 X. Y. Civ. Proc. 178. 6 Locker v. Am. Tobacco Co.. 200 Fed. 97:!. § 245. l Boykin v. Persons. !).") Ala. 626. 11 So. 67; Ames v. Hell. 5 Cal. App. 1, 89 Pac. 619: Vila v ■94 MOTIONS FOR BILLS OF FATCTICT'LARS. [§ 246 quired hv the terms 01 the order directing the service of the same.* Tt should he as definite as the means of information at the command of the party serving the same will allow. 3 In England, a party may he allowed to give the best particulars he can, with leave to supplement the same within a reasonable and specified time before the trial. 4 A party suing or being sued in a representative capacity is only ordered to give the best particulars he can. 5 Tt was held that a paper improperly tiled as an amended pleading might be treated as an amplifica- tion of a bill of particulars previously filed. 6 It has been said that, ordinarily, a bill of particulars need not be verified, unless an affidavit is required by statute. 7 § 246. Amendment of bill of particulars. In England an application to amend, or add to, a bill of particulars, if made a reasonable time before the trial will usually be allowed. 1 but Weston. 33 Conn. 42; Columbia County v. Branch. 31 Fla. 62. 12 So. 650: Leib v. Butterick. 68 Ind. 199;. Pierce v. Wilson. 48 Ind. 298; More- head v. Anderson. 100 S. W. 340, 30 Ky. L. Bep. 1137: Scott v. Leary. 34 Md. 389; Snell v. Gregory. 37 Mich. 500; Voorhees v. Barr. 59 N. J. L. 123, 35 Atl. 651 ; Matthews v. Hubbard. 47 N. V. 428; Kindberg v. Chapman. 115 N. Y. App. Biv. 153. 100 X. Y. Supp. 6S5; Baker v. Sutton, 86 Hun (X. Y.) 588. 33 X. Y. Supp. 1072; Moss v. Crim- mins. 30 Misc. (X. Y.J 300. 63 X. Y. Supp. 416; Bedmond v. Buckley. 20 X. Y. Supp. 969'j Donohue v. Pomeroy. 19 X. Y. Supp. 569: Duffy v. Byer. 17 X. Y. Supp. 843: Stan- Icy v. Millard. 4 Hill (X. Y.I 50: Smith v. Hicks. 5 Wend. (X. Y. ) 48: MacBonald v. Xew York. etc.. B. Co.. 25 B. I. 40. 54 Atl. 795: Columbia Ace. Assoc, v. Bockey, 93 Yn. 678. 25 S. F. 1009: Burnbam v. Milwaukee. 69 Wis. 379. 34 X. W. 389: Chesapeake, etc.. Canal Co. v. Knapp. 9 Pet. 541. 9 L. ed. 222: Church v. Spiegelberg, 33 Fed. 158: Whitaker v. Pope. 29 Fed. Cas. Xo. 17,528. 2 Woods 463: Perkins v. Irvine. 23 Xova Scotia. 250. 2Quinn v. Fitzgerald. 87 X. Y. App. Div. 539. 84 X. Y. Supp. 728:. Mueller v. Tenth St.. etc.. Ferry Co.. 38 X. Y. App. Div. 622, 56 X. Y. Supp. 310; People v. Cox. 23 Hun (X. Y.) 269: Mason v. Bing, 10 Bosw. (X. Y.) 598. 3 Baremore v. Taylor, 53 X. Y. Super. Ct. 119: Mason v. Bing. 10 Bosw. (X. Y.) 59S: Humphry v. Cottleyou. 4 Cow. (X. Y.) 54: Sul- livan v. Waterman. 21 B. I. 72. 41 Atl. 1006; Long v. Kinard. Harp. (S. C.) 47: 31 Cyc. 5SS. 4 14 days' time. Marshall v. In- teroceanic. etc., Co.. 1 Times Bep. 394: Harbord v. Monk. 38 L. T. 411. 5 Higgins v. Weekes. 5 Times Rep. 238. 6 Ontario Powder Works v. Pow- ell. 132 Mich. 451. 93 X. W. 1075. 1 31 Cyc. 589. citing Jones v. Bar- nett. 35 Md. 258. § 246. 1 Clarafede v. Commercial Cnion Ass'n. (C. A. I 32 \V. R. 262. § 216] AMENDMENT OF BIT,!. OF PARTICULARS. '95 not if it is sought thereby to introduce a new cause of action, such as fraud ; 2 nor to increase a claim after payment of the full original claim into court. 3 At the trial, leave to amend a bill of particulars has usually been refused, 4 although a change of date has then been allowed on terms. 5 The rule in the different States of this Union is similar, 6 except that amendments of a bill of particulars at the trial are often granted when the op- posite side will not be prejudiced by surprise. 7 2 Cocksedge v. Metropolitan Coal Consumers' Ass'n., 65 L. T. 432. 3 Sanders v. Hamilton, (1907) 96 L. T. 679. 4 Moss v. Mailings, 33 Ch. D. 603. 5 McCarthy v. Fitzgerald, (1909, Ca.) 2 Irish R. 445. 6 31 (ye. 589, 590. 7 31 Cye. 589; citing Brownell Imp. Co. v. Critchiield. 96 111. App. 84 (affirmed in 197 111. 61, 64 N. E. 332) ; Farmers', etc., Bank v. Glen Elder Bank, 40 Kan. 376, 26 Pac. 680; Marion County School Dist. No. 73 v. Dudley, 28 Kan. 160; Gardner v. Gardner, 2 Gray, (Mass.) 434; Felter v. Manville, 23 Kan. 191. Compare Tate v. Hamil- ton. 81 Mich. 221, 45 N. W. 822. Fielder v. Collier, 13 Ga. 496; Reed v. Cooper, 30 Kan. 574, 1 Pac. 822 ; Towle v. Blake, 38 Me. 528; Lester v. Thompson, 91 Mich. 245, 51 X. W. 893: Mead v. Glidden, 79 Mich. 209, 44 N. W. 596; Collins v. Beecher, 45 Mich. 436, 8 X. W. 97 ; Haviland v. Fidelity Ins., etc., Co., 3 Pa. Co. Ct. 222; Lewis v. Jewett, 51 Vt. 378; Hopkins v. Stefan, 77 Wis. 45, 45 X. W. 676. But see Goforth v. Stingley, 79 Miss. 398, 30 So. Rep. 690. CHAPTER XVI. MOTIONS AND PETITIONS. § 247. Definition and classification of interlocutory ap- plications. An interlocutory application is a request, not in- corporated in a bill, made to the court for its interference in a matter arising in a cause either before or after a decree. An interlocutory application is made by motion or petition. § 248. Definition and classification of motions. A mo- tion has been defined as "an application either by a party or his counsel, not founded upon any written statement addressed to the court." 1 But the rules of the Supreme Court of the United States provide that "all motions hereafter made to the court shall be reduced to writing, and shall contain a brief statement of the facts and objects of the motion. 2 And most motions are supported by affidavits. Motions are either of course or special. Special motions are either ex parte or upon notice." § 249. Motions of course. Motions of course are those which, by some rule or practice of the court, are invariably granted without notice, and to which no opposition is allowed. 1 In Federal equity practice, the term is usually confined to such motions as are granted as of course by the clerk without the intervention of a judge of the court. 2 The equity rules provide that "all motions and applications in the clerk's office for the issuing of mesne process and final process to enforce and exe- cute decrees; for taking bills pro confesso; and for other pro- §248. 1 Daniell's Ch. Pr. (2d the minutes. Herrlich v. McDonald. Am. ed.) 1787. See the language 80 Cal. 472. 22 Pae. 299. of Folger J., in Shaft v. Phoenix 2 Supreme Court Rule 6. Mut. L. Ins. Co. 07 N. Y. 544. 547, § 240. 1 U. S. v. Parrott, 1 Mc- 23 Am. Rep. 138. It has been said, All. 447, 454; Merchants' Bank v. however, that a careful practitioner Crysler. C. C. A., 07 Fed. 388, 390; should prepare and file his motion s. c, 14 C. C. A. 440. in writing, stating the grounds "Robinson v. Satterlee, 3 Saw. thereof, or have the same entered in 134, 141. TOO § 250] EX PABTE MOTIONS. 797 ceedings in the clerk's office which do not require any allowance or order of the court, or of any judge thereof, shall he deemed motions and applications grantahle of course by the clerk of the court. But the same may be suspended, or altered, or rescinded by any judge of the court, upon special cause shown." The order dismissing a bill for an omission to duly file a replication is an order as of course. 4 It has been held that an order for- the issue of a commission is not, § 250. Special motions without notice. A special motion is a motion which can only be granted by a judge of the court under special circumstances or in his discretion. Such motions are either upon notice or without notice. Orders granted upon motions without notice are said to be ex parte; and the same term is applied to the motions upon which they are granted. An ex parte special motion must be supported by an affidavit, 2 Ex parte special motions are not common. 3 They are usually granted to prevent some irreparable injury to the moving party which would otherwise occur within the time limited for notice, when the same is required; and the court should always lend a willing ear to an application to discharge or set aside an ex parte order. 4 Ex parte orders may be ob- tained at any time and in any place within the jurisdiction of the judge, whether in court or elsewhere. 5 As a general rule,, where a partv has appeared he is entitled to receive notice of every application for an order, except applications for an extension of time and those of a like nature and motions: which are granted as of course. No preliminary injunction 3 Equity Rule 5. 4 Robinson v. Satterlee, 3 Saw. 134, 141. SU. S. v. Parrott, 1 McAll. 447. § 250. 1U. S. v. Parrott, 1 Mc- All. 447, 454; Merchants' Bank v. Crysler. C. C. A., 67 Fed. 388, 390; S. C, 14 C. C. A. 449. 2Daniell's Ch. Pr. (2d Am. ed.) ■ 1789. 3 McLean v. Lafayette Bank, 3 McLean, 503; U. S. v. Parrott. 1 McAll. 447; Marshall v. Mellersh, 5 Beav. 490; Gray v. C. I. & N. R. Co., 1 YVoolw. 63. 4Daniell's Ch. Pr. (2d Am. ed.) 1789, 1790; Isnard v. Cazeaux, 1 Paige (N. Y.), 39; Hart v. Small, 4 Paige (N. Y.), 551. SDaniell's Ch. Pr. (2d Am. ed. 1789; Equity Rule 3; Horn v. Pere Marquette R. Co., 151 Fed. 626; infra, $ 255. 6 Isnard v. Cazeaux. 1 Paige (N. Y.) 38; Merchants' Bank v. Crys- ler, C. C. A.. ; Webb v. Dill. 18 Abb. Pr. (X. Y.) 264. 20 Barb. Ch. Pr. 570; Bodwell v. Willcox, 2 Caines (X. Y.), 104; Anon., 1 J. R. ( X. Y.) 143 21 Barb. Ch. Pr. 570; In re Elec- tric Tel. Co. of Ireland, 10 W. R. 4. 22 Hill v. Rimell, 8 Sim. 632; Jacklin v. Wilkins. 6 Beav. 607. 23 Brown v. Robertson, 2 Phil. 173; Alexander v. Esten, 1 Caines (X. Y.), 152; Jackson v. Stiles, 1 Cowen (N. Y.), 134. 24Danieil's Ch. Pr. (2d Am. ed.) 1793; Clement v. Griffith, C. P. Coop. 470; Brown v. Rickotts, 2 J. Ch. (X. Y.) 425. ■§ 2$2[ NOTICE OF MOTION. 801 ■clearly the terms of the order which will be asked for, and •everything which the party would have should be expressed, as the court will riot extend the order beyond the notice. 25 For this reason, it is prudent to add a notice of a motion for general relief; that is, "fox such other or further order or relief as to the court shall seem just;" under which, other relief germane to that, a motion for which has been specifically noticed, may be granted. 26 A number of objects not inconsistent with each other, and even inconsistent objects, if prayed for in the alternative, may be included in the same notice and motion. 27 The court will discourage when directing as to costs the making of separate motions for objects which might have been conveniently ob- tained by a single application. 28 It is irregular to grant affirm- ative relief to a party opposing a motion, when he has served no notice of his application for the same. 29 After notice of a 25 Barb. Cli. Far. 370; Mann v. King, 18 Yes. 297. 26 Barb. Ch. Pr. 570. People v. Turner, 1 Cal. 152; Landis v. Olds. ■9 Minn. 90; Ferguson v. Jones, 12 Wendell (X. Y.) 241: Rogers v. Toole, 11 Paige I X. Y.) 212; Bis- sell v. New York Cent. & H. R. R. Co., 67 Barbour (X. Y.) 385; Boy- len v. McAv'oy, 29 How. Pr. (X. Y.) 278; Yan Slyke v. Hyatt, 4(i X. Y. 259; Randall v. Randall, 139 App. Div. (X. Y.) 074: People v. Brook- lyn Bank. 140 App. Div. (X. Y.) 750, 752. But see Scbneider v. Meyer, 56 Mo. 475 ; Xortbrop v. Van Dusen. 5 How. Pr. (X. Y.) 134; 3 Code Rep. (X. Y.) 140; Bel- linger v. Martindale. 8 How. Pr. (X. Y.) 113; De Walt v. Kinard, 19 S. C. 2S6. It lias been held that on the hearing of a motion for the production of papers under a sub- poena duces te coupled with a prayer for general relief, if the other party appears by counsel, an order may be granted committing Fed. Prac. Vol. I.— 51. him. or, if a corporation, commit- ting its officers, for contempt for disobedience to the subpoena, Edi- son El. L. Co. v. U. S. El. L. Co.. 44 Fed. 294. 300; that a motion for the appointment of a receiver cannot be made at the hearing of a motion for an injunction against an inter- ference with a railroad claimed to be in the possession of the moving party. St. L.. K. C. & C. Ky. Co. v. Dewees, 23 Fed. 691. that a motion to suppress depositions brings up the regularity of an ex parte order directing them to be taken, as well as the competency of the witness ex- amined, if the party moving to sup- press has never done anything to waive the objection, Bradley. J., in Eslava v. Mazange, 1 Wooa:?. 623. 1127. 87Daniell's Ch. Pr. (2d Am. ed.) 1792, 1793. 28 Hawke v. Kemp, 3 Beav. ^88. 29Carcie v. Sheldon, 3 Barbour (N. Y.) 232. 802 MOTIONS AND PETITIONS. [§ 251 motion has been served, it cannot be withdrawn without the consent of the court. 30 A motion may be made by any party to a cause except one who is in contempt. 31 It has been said : that a party in con- tempt cannot move for any other purpose than to discharge the contempt proceedings, 32 or to expunge scandal from the record ; 33 and in such cases he should apply by petition. 34 The rule in the Federal courts, however, is that he is only debarred from applications which are not of strict right, but are mat- ters of favor in the discretion of the court, 35 such. as -an appli- cation to open a default. 36 and that his answer cannot be stricken out of the record nor can he be denied a hearing. 37 No one should join in a notice for a motion in which he is not directly interested. 38 The joinder of one disinterested party with others who had an interest was held in England a suffi- cient reason for refusing the whole motion. 39 A motion in the course of proceedings under an information cannot be made on behalf of the relators, but only on behalf of the attorney- general or district attorney. 40 Where it is clearly for the in- terest of a person under a disability to make a motion, and he has no next friend, or his next friend refuses to do so, a next friend for the purposes of the application may move on his be- half. 41 After a motion has been denied, it cannot, without leave of the court, be renewed upon the same papers, nor upon additional proof of facts that existed at the time the original 30 People v. Hart, N. Y. L. J. June 5th. 1905. 31 Darnell's Ch. Pr. (2d Am. ed.) 1787; Nicholson v. Squire, 16 Ves. 259, 200. 32 Darnell's Ch. Pr. (2d Am. ed.) 554—558, 1 7S7 Anon., 5 Ves. 656. 33 Everett v. Prythergch. 12 Sim. 363. 34 Lord Eldbn v. Nicholson v. Squire, 16 Yes. 259, 260. 35 Hovey v. Elliott, 167 U. S. 409, 42 L. ed. 215. 36 El ling wood v. Stevenson, 4 Sandf. Ch. (X. Y.) 366. 37 Hovey v. Elliott. 167 U. S. 409, 42 L. ed. 215; Sibley v. Sibley, 76 App. Div. (N. Y.) 132, 136. Contra, Walker v. Walker, 82 N. Y. 260; Pickett v. Ferguson, 45 Ark. 177, 191. See Bennett v. Bennett, 208 U. S. 505, 52 L. ed. 590. 38Daniell's Ch. Pr. (2d Am. ed.) 1793; Folland v. Lamotte. 10 Sim. 480. 39 Folland v. Lamotte. 10 Sim. 486. 40 Atty. Gen. v. Wright, 3 Beav. 447. « Cox v. Wright, 9 Jur. (N, S.) 981: Guy v. Guy, 2 Beav. 460; Furtado v. Furtado, 6 Jur. 227; supra, §§ 32, 33. § 252] ARGUMENT OF MOTIONS. 80:1 motion was made ; 42 but where the new motion is made on facts that have occurred since the former motion was made, no leave to renew is necessary, and the motion may be made as a matter of right. 43 Leave to renew will not be granted when the time to appeal has expired. 44 § 252. Argument of motions. The manner of bringing motions to a hearing is regulated by local rule or usage differ- ently in the different circuits. Either no method is observed, and motions are made by counsel as they catch the judge's eye, or a calendar is made and called upon which motions are placed by the clerk in the order in which they were first brought to his attention. In the Supreme Court of the United States the Attorney-General and the Solicitor-General take precedence. 1 N. Y.) 226; A. Marchmedt, 39 Security Ware- Exchange Nat. 42 Mitchell v. Allen. 12 Wendell (X. Y.) 290; Sheehan v. Carvalho, 12 App. Div. (X. Y.) 430; Haskell v. Moran, 117 App. Div. (X. Y.) 251, 252; De Lacy v. Kelly, 147 App. Div. (N. Y.) 37. 43 Le Lacy v. Kelly, 147 App. Div. (X. Y.) 37. 44 Stierle v. Union Railroad Co., 11 Misc. (X. Y.) 124; Matter of Silliman, 38 Misc. Klipstein & Co. v Misc. (X. Y.) 794 house Co. v. Am, Bank, per Hendrick, J., X. Y. L. J. May 7, 1910. § 252 1 Lord Campbell has thus described the former English prac- tice, which was abolished by Lord Mansfield, whose rules for the hear- ing of motions at common law were followed by the Court of Chancery: "Day by day during the term, each counsel when called upon had been accustomed to make as many mo- tions successively and continuously as he pleased. The consequence was, that by the time the Attorney and Solicitor-General, and two or three other Dons, had exhausted their mo- tions, the hour had arrived for the adjournment; and as the counsel of highest rank was again called to at the sitting of the court next morn- ing, juniors had no opportunity of making any motions with which they might be intrusted till the last day of the term, when it was usual, as a fruitless compliment to them. to begin with the back row, — after the time had passed by when their motions could be made with any benefit to their clients. The conse- quence was, that young men of promise were unduly depressed, and more briefs were brought to the leaders than there was time for them to read, even had they been toiling all night at their chambers instead of sitting up in the House of Commons, — absorbed in party struggles. Thus the interests of the suitors were in danger of being neg- lected, and the judges did not re- ceive the fair assistance from the bar in coming to a right conclusion which they were entitled to expect. To remedy these evils, a rule was 804 MOTIONS AND PETITIONS. [§ 252- "Each district court shall establish regular times and places, not less than once each month, when motions requiring notice and hearing may be made and disposed of; but the judge may at any time and place, and on such notice, if any, as he may consider reasonable, make and direct all interlocutory orders, rulings and proceedings for the advancement, conduct and hear- ing of causes. If the public interest permits, the senior cir- cuit judge of the circuit may dispense with the motion day during not to exceed two months in the year in any district." 2 When, at the hearing of a motion, the opposite party is not represented, proof of service must be shown by affidavit, or admission, and the hearing then proceed ex parte? When the moving party does not then appear, his motion will be dis- missed. When both sides are represented, the moving party has the right of opening and replying. 4 The English rule was that, "in injunction cases, where upon an order to dissolve an injunction nisi the plaintiff shows cause upon the merits con- fessed in the answer; then no reply is allowed, the motion for the order nisi being considered as the application, to which the plaintiff answers by showing cause upon the merits ; after this, the defendant's counsel is allowed to argue against the cause shown by the plaintiff, and this is considered as the reply." 5 As a general rule, no person can be heard in support of a motion unless he has been one of the parties who gave notice of it. 6 But when the object of a motion is to reverse the con- clusion of a master, it seems that all persons interested in the master's report are entitled to be heard in its support. 7 Proof of facts, which are not established by documents, is then regularly given by affidavits; 8 but, in the Circuit Court of made that the counsel should only 399. See also DanielFs Ch. Pr. (2d.. make one motion apiece in rotation; Am. ed. ) \<$t. and that if by chance the court rose 2 Ef l- RuIe 6 - before the whole bar had been gone » Darnell's Ch. Pr. (2d Am. ed.) through, the motion should begin next morning with him whose turn 1799. 4 Ibid. 5 Ibid. it was to move at the adjournment. 6 Stubbs v. Sargon, 3 Beav. 408; The business was thus both more Daniell's Ch. Pr. (2d Am. ed.) 1793. equally distributed and much bet- 7 Johnston v. Todd, 5 Beav. 394; ter done." Campbell's Lives of the Daniell's Ch. Pr. (2d Am. ecU I793_ Chief Justices, ch. xxxiv, pp. 39S, 8 Infra, §§ 334-338. § 252] ARGUMENT OF MOTION. 805 the United States for the Eastern District of Pennsylvania, a valid rule provides: that "on all motions or rules to show cause, on the hearing of which, facts are to be investigated, the testi- mony of witnesses shall be taken by deposition in writing * * * and no witness shall be examined at the bar unless by special previous order of the court ;" 9 and a witness there may be subpoenaed to give testimony by deposition for use on such a hearing in an action at law. At the hearing, if the English practice which prevails to some extent in the Eirst Circuit should be followed, any affi- davit might be read by either party that had been hied in the clerk's office before the hearing. If an affidavit were filed too late for the other side to take a copy of it, or to obtain an affi- davit controverting facts stated therein, that was a ground for moving to postpone the hearing. No affidavit filed previous to the entry of the motion could be used by the moving party, unless he had in his notice of motion stated specifically that he intended to use it. By permission of the court, subsequent affidavits may be served, provided that the opposite party is given a reasonable opportunity to answer the same. 11 A sepa- rate notice to that effect, if served a reasonable time before the hearing of the motion, might, however, be sufficient. 12 This subject is, however, by local rule or custom regulated differently in the different circuits. A verified answer has the effect of an affidavit. 13 In Xew York, no affidavit in chief can be read in support of a motion unless a copy of the same has been served on the ad- verse party. 14 Affidavits upon information and belief, where the grounds of the belief are set forth, may be read in support of a motion, 15 and other proof which would be incompetent upon a trial may be used. 16 9 Rule 7, § 4. Despeaux v. Penn- 14 Xorthrup v. Village of Sidney, sylvania R. Co.. 147 Fed. 926. 97 App. Div. (X. Y.) 271. ' 10 Despeaux v. Pennsylvania R. "City <>f Detroit v. Detroit City Co., 147 Fed. 926. l\v. Co.. 54 Fed. 1. URunino v. Mariano, 65 App. M Casey v. Cincinnati Typographi- Div. (N. Y.) 314. 317. cal Union No. 3. 12 L.R.A. 193, 4.", lZDaniell's Ch. Pr. (2d Am. ed.) Fed. 135. 147: Coeur d'Alfene Am. 1797 1798 Mining Co. v. Mining Union of War- is Dadv "v. Georgia & A. Ry. Co., den, 19 L.R.A. 382, 51 Fed. 260; 112 Fed. 838 844. Mercantile Trust Co. v. Texas & P. S06 MOTIONS AXD PETITIONS. [§ 253 § 253. Petitions in general. A petition is a request in writing directed to the judge or judges of the court, and show- ing some matter or cause whereupon the petition prays some direction or order. 1 It mav be made bv one who is, or bv one who is not. a party to a cause pending in the court. Lord Erskine said formerly: "I do not find that there are anv precise or positive boundaries betwen motions and petitions, as they are to be applied to carry into effect decrees and orders, so as to exclude all discretion in the court to grant or refuse them, according to circumstances ; but, generally speaking, motions which have for their object the giving effect to decrees or orders, should be confined to cases where the order which is to be made upon the motion arises out of recent proceed- ings upon which there is no doubt ; for as the adverse party knows nothing but by •the notice, containing only the name of the cause and what is prayed of the court, the proceedings ought to be recent arid notorious, so as that the adverse party may be supposed to be perfectly cognizant of all the steps and proceedings in the cause, as much as if, at a greater expense, thev were recited in the petition." 2 But petitions are now rarely filed by a party to a cause, since any relief which he desires can usually be obtained equally well by a motion sup- ported by an affidavit containing the allegations which would be necessary in a petition. A party who by his contempt has forfeited the right to make a motion should apply by petition. It has been hold, in Xew Jersey, that where a motion is founded upon prior proceedings in the cause, the proper prac- tice is to present the matter by a written petition, so that the grounds of the application can be made a matter of record. 3 Petitions are usually filed by some person not a party in order to obtain the benefit of proceedings in a cause pending in the court, or else to obtain an order in relation to some matter which is not the subject of any litigation in it. Peti- Ry. Co., 51 Fed. 529, 542; Buck v. Hermance, 1 Blatch. 322; Mathews v. Ironclad Mfg. Co.. 19 Fed. 321; infra. §§ 232. 269. 386. § 253. l 2 Barb. Ch. Pr. 579. 2 Lord Shiphrooke v. Lord Hin- di inbrook, 13 Yes. 387. 393. See, however. Nicholson v. Squire, 16 Ves. 259, 260. 3Holcomb v. Coryell, 12 N. J. Eq. 289. § 253] PETITIONS. so 7 tions which are made in a cause are termed came petitions. 4 The most common instances of cause petitions are petitions for the appointment of a next friend, petitions of intervention, petitions for payment out of a fund in the hands of an officer of the court, and petitions for leave to sue a receiver. But in most, of. these cases, the application can also be made by motion, unless a long statement of facts is needed to show the right of the applicant to relief. 5 It has been held that the right to intervention, for which no provision has been made by a previous order or decree, can only be made by a petition. 6 The most common instances of petitions which are not cause petitions are petitions for the appointment, removal, or resig- nation of a trustee, and petitions for the appointment of the guardian of an infant, and the maintenance of the infant out of his property. In Xew York, applications affecting trust funds may be instituted by petition. 7 After a decree which purports to finally dispose of the suit, one plaintiff cannot obtain relief against another by means of a petition setting up matters which could not have been intro- duced by an amended or supplemental bill; at least without notice to the party against whom he seeks relief. 8 Ordinarily, a petition cannot be presented in a cause before the bill has ben tiled. 9 A petition for leave to sue in forma pauperis is an exception to this rule; 10 and in an extraordinary case a stay order might perhaps be granted upon a petition before the filing of a bill. 11 The objection, that a party who has proceeded by a petition should have filed a cross-bill, a supplemental bill. or a supplemental answer, is too late when not taken till after an answer to the petition and a decree thereupon. 12 A paper 4DanielI's Ch. Pr. (2d Am. ed.) 9 Daniell's Ch. Prl I 2d Am. cd. ) 1801. 1801. 5 Jones v. Roberts. 32 Sim. ]89; ™ Infra, § 41:5. Barker v. Todd. 15 Fed. 2(i5. H Mayor of London v. Bolt. 5-Ves. 6 Grand Trunk Ry. Co. v. Central 120 Darnell's Ch. Pr. (2d Am. ed.) Yt. R. Co.. 93 Fed. 501. See infra, 1801. §§258.259. 12 Kelsey v. HobbV, 16 Pet. 269, 'Matter of Foster. 15 Hun (X. 277. 10' L. ed. 901. 90:5 : Col.urn v. Y.) 387: Matter of Ungricb, 201 N. Cedar Y. C. & L. Co.. 138 C. S. 196, Y. 415, 222. :54 L. ed. 876, 886. 8 Smith v. Woolfolk, 115 C. S. 143, 29 L. ed. 357. SOS MOTIONS AND PETITIONS. [§ 254 improperly styled a petition may, if it contains the necessary allegations, be sustained as a dependent original bill, 13 and a paper improperly described as a cross-bill or other bill not •original, may be sustained as a petition. 14 § 254. Form of petitions and practice upon them. A petition should be properly entitled in the cause in which it is presented. 1 When not a cause petition, a petition is entitled "In the matter of the application of," &c. The petitioner, if not a party to a cause in which the petition is filed, should state his name, residence, and description. 2 Where a petition is founded upon a former decree it is sufficient to state that ■decree without setting out the papers upon which that decree was rendered. 3 Where its title recites the name of a pending suit or proceeding, the petition need not state, in its body, the pendency of the same ; 4 although the better practice is to make such a statement. A petition should contain no scandal or impertinence ; which, as in any other proceeding, may be ex- punged. It is the usual practice to verify a petition by the oath of the petitioner. An affidavit by the petitioner, that the alle- gations in the petition "are true as he verily believes," was held to be sufficient; and, in the absence of a traverse, they were presumed to be true upon an appeal. 6 A petition need not be signed by counsel unless it seeks a rehearing on appeal. 7 Petitions are usually signed by the party making them, either personally or by his solicitor. 8 ''Petitions are either for orders of course, or for special orders. Petitions for orders of course are forthwith granted, without any attendance being ordered ; if they are for special 13 Central Tr. Co. of N. Y, v. 6 Louisville Trust Co. v. Louis- Marietta & N. G. R. Co., 63 Fed. ville, New Albany & C. Ey. Co., 492. 174 U. S. 674, 687-689, 43 L. ed. 14 Heath v. Erie Ry. Co., 9 Blatchf. 1130, 1135, 1136, s. c. as Farmers' 316; supra, § 2.33; infra, § 259. Loan & Trust Co. v. Louisville, New § 254. 1 Darnell's Ch. Pr. (2d Albany & C. Ry. Co., 103 Fed. 110, Am. ed.) 1802. 2 Glazbrook v. Gillatt, 9 Beav. 492. 3 Davis v. Davis, 65 Fed. 380. 4 In re Goldberg, 117 Fed. 692. SDaniell'a Ch. Pr. (2d Am. ed.) 1S03; Eq. Pule 21, § 239, supra. 115. 7 1)aniell's Ch. Pr. (2d Am. ed.) 1 S03. • 8 Daniell's Ch. Pr. 2d \m. ed.) 1S03. § 254] PETITIONS. SOS matters a day is appointed for hearing them. Most things which may be moved for of course, may also be obtained as of course, upon petition." 9 All petitions which arc for matters not granted as of course must be served upon all parties in- terested in the matter prayed for in them. Service is made sub- stantially in the same way and at the same time before the hearing as that of notices of motions. 10 If actual, and not constructive, service is required, it seems that it must be made by delivering a copy of the petition, and at the same time showing the original to the person served, 11 unless the court otherwise directs. By the Chancery practice objections to the form of a petition could regularly be taken only by demurrer. 12 It has been said: that in the case of a petition for interven- tion, the right of the petitioner to intervene should be contested by plea, demurrer or motion, and is waived by an answer upon the merits. 13 By answering a respondent loses his right to de- mur, 14 and, it has been held, waives the objections that the petitioner had a complete and adequate remedy at law, 15 that he should have proceeded by bill instead of by petition ; 16 and, if a receiver, that he has not obtained leave to sue. 17 Adverse parties may file answers denying the facts stated in a petition, or setting up other facts in avoidance. Such answers should be verified by affidavit. 18 If the parties are at issue as to the facts, according to the more formal practice testimony may be. taken as in the regular course of a suit ; 19 but the more usual course is for the parties on either side to support their claim by affidavits, in the same manner as when supporting or op- posing a motion. 20 Proceedings upon the hearing of petitions- are similar to those upon the hearing of motions. 21 It has been said by Daniell that a petition cannot be amended by adding 9 Daniell's Ch. Pr. (2d Am. ed.) 15 Newman v. Moody, 19 Fed. 858. 1802. 16 Newman v. Moodv. 1!) Fed. io See Rules 5 and (i Daniell's 858 ; Horn v. Tere Marquette R. Co., Ch. Pr. (2d Am. ed.) 1804. 151 Fed. 626*, 6291 *H Daniell's Ch. Pr. (2d Am. ed.) n Newman v. Moody, lit Fed. 858. 3804. iSMitford's & Tyler's PI. 44S. 12 U. S. R. S., § 054; Newman 19 Mitford's & Tyler's PI. 448. V. Moody, 19 Fed. 858. 20 Daniell's Ch. Pr. (5th Am. ed.) 13 Horn v. Pere Marquette R. Co., 1608. 151 Fed. 626, 629. 21 Daniell's Ch. Pr. (2d Am. ed.>. 14 Newman v. Moody, 19 Fed. 858. 1805. 810 MOTIONS AND PETITIONS. [§ 255 to it a statement of facts which have occurred since it was filed; 22 but an English judge has held otherwise. 23 § 255. Orders. An order is a direction of the court or a judge thereof in writing. 1 A telegram may be an order, but a message by telephone is not. 2 The absence of a formal order of a court need not necessarily prevail over its essential action; and a court of review may treat the case as if an order, evi- dently intended, had been made. 3 Orders are described as either judge's orders or court orders. The distinction may be of importance, since, formerly at least, a judge's order upon an application for habeas corpus was not appealable. The rules of the District Court for the Southern District of Xew York provide: "In any action or proceeding any order, whether known in practice as a court order or judge's order, may be made and entered by any judge." 5 It has been said : that a court cannot make an order nunc pro tunc, as of a preceding term; although the judge has, at such preceding term, expressed his willingness to make the same. 6 When con- tained in a decree, an order is termed a decretal order. An order is regularly entitled in the cause in which it is entered, and it is irregular to entitle the same order in several cases. 7 Such orders, when not objected to, are valid, 8 and where the parties to the two suits were the same, and orders entitled m both were thus made concerning a receivership under an order in one ; it was held, that the objection that there had been no order formally extending the receivership to the other suit, could not subsequently avoid an order therein for the sale of property by such receiver. 9 22Daniell's Ch. Pr. (5th Am. ed.) 1610. 23Malins, V. C, In re West- brook's Trusts. L. R. 11 Eq. 252. § 255. ISee U. S. R. S., § 719; Klein v. Southern Pac. Co., 140 Fed. 213. 2 See Schofield v. Horse S. C. Co., 65 Fed. 433. 435; State v. Holmes, 56 la. 588, 41 Am. Rep. 121. 3 Gila Bend Reservoir & Irr. Co. v. Gila Water Co., 202 U. S. 270, 50 L. ed. 1023. 4 Carper v. Fitzgerald, 121 U. S. 87, 30 L. ed. 882. See § 467, infra. 5 U. S. D. C. S. D. X. Y., Rule 25. 6 Klein v. Southern Pac. Co., 140 Fed. 213. 7 August v. Fourth Nat. Bank, 9 N. Y. Supp. 270. 8 Gila Bend Reservoir & Irr. Co. v. Gila Water Co. 202 U. S. 270, 273, 50 L. ed. 1023. 9 Gila Bend Reservoir & Irr. Co. v. Gila Water Co., 202 U. S. 270, 50 L. ed. 1023. § 255] ORDERS. 811 It has been held: that restraining- orders may be made in a suit, before the bill in equity is tiled; 10 that a receiver eaiinol lie appointed upon petition, before the bill is tiled; 11 that a re- ceiver may be appointed by a judge at chambers upon the presentation of a bill and answer which have not been filed, in an order containing a direction that it shall Take effect upon the filing thereof; that thereupon the appointment relates back to the date of the judge's signature, so as to cut off all inter- venings rights ; 12 and that when an order is filed before the date recited in the same, it takes effect from its filing, and not from the latter date. 13 Orders may be made at any place within the territorial juris- diction of the court. 14 ''The District Courts, as courts of admiralty and as courts of equity, shall be deemed always open for the purpose of filing any pleading, of issuing and returning mesne and final process, and of making and directing all inter- locutory motions, orders, rules, and other proceedings prepara- tory to the hearing, upon their merits, of all causes pend- ing therein. Any district judge may, upon reasonable notice to the parties, make, direct, and award, at chambers Or in the clerk's office, and in vacation as well as in term, all such process, commissions, orders, rules, and other proceedings, when- ever the same are not grantable of course, according 'to the rules and practice of the court." 16 Whatever a judge may law- fully do in chambers, he may do at any other place within the 10 St. Louis & S. F. R. Co. v. Had- ley, 155 Fed. 220. 11 In re Brant, 96 Fed. 257; and cases cited infra, § 315. 12 Horn v. Pere Marquette R. Co., 151 Fed. (520, (333. Vontro, Wilcox v. Nat. Shoe & Leather Co., 67 App. Div. (N. Y.) 466. 13 In re MeCall. C. C. A., 145 Fed. 898. *14Jn re Tampa S. R. Co.. 168 U. S. 583, 588, 42 L. ed. 58!). 590; Goodyear Dental Vulcanite Co. v. Folsom, 3 Fed. 509, ft lias been held, that when a District Judge lias, under the order of the Cir- cuit Judge, tried a case in an- other district than his own, lie may hear in his own district a mo- tion for a new trial when the coun- sel I0 i* all parties waive his return to the district of the trial for the purpose of hearing and deciding the motion. Cheesman v. Hart. 42 Fed. !)8. 105. 15 .hid. (ode. § 0. 36 Stat, at L. 10S7. It has been saijid: that any order in a suit in equity which tends to prepare the cause for a hearing, or to preserve the subject- matter until a hearing, may he made at chambers. Horn v. Pere Marquette R. Co., 151 Fed. 626. 636. An prder for the release of a vessel which has been libelled, may 812 MOTIONS AND PETITIONS. [§ 255 district. 16 It has been held that the clerk may make entries of adjournments by a rubber stamp, 17 and that they may be recorded on days subsequent to their entry at any time during the term. 18 It has been held: that an order in a suit in equity, pending in another district of the same circuit, may be made by a Circuit Judge in any part of the circuit. 19 Where no objection was taken below, it was held: that an appeal from an order, upon an application for the writ of habeas corpus, might be argued before the Circuit Justice at chambers in any district of the circuit. 20 If the former practice is followed in a District Court, when all judges authorized to sit therein are absent from the circuit, an order may be made by a Justice of the Supreme Court sitting anywhere within the United States. 21 The Judicial Code provides that "no justice of the Supreme Court shall hear or allow any application for an injunction or restraining order in any cause pending in the circuit to which he is allotted, elsewhere than within such circuit, or at such place outside of the same as the parties may stipulate in writing, except when it cannot be heard by the district judge of the district." 22 It is customary to recite in an order or judgment, upon whose motion the same was granted; but it has been said that this is not necessary, nor appropriate, al- though the order or judernent should show who moved for the relief and what he asked. 23 Where an order or judgment grants less. 24 or other relief 25 than that for which the mover asks, be made at chambers. U. S. v. The Little Charles. 1 Brock. 380: Fed. Cas. No. 35,013. 16 Murphy v. Herring-Hall-Marv- in Safe Co., 184 Fed. 495. 17 Harlan v. MeGourin. 218 U. S. 442, 44H. 54 L. ed. 1101, 1105. 31 Sup. Ct. Rep. 44, 21 Ann. Cas. 849. 18 U. S. v. Louisville & X. R. Co., 177 Fed. 7S0. 785. 19 Horn v. Pere Marquette R. Co., 151 Fed. 626, 635, Cf. Hollon v. Parker, 131 U. S. 221, 225, 33 L. ed. 123. 124. 20 Roberts v. Reilly, 116 U. S. 80, 93, 29 L. ed. 544. 548. 21 U. S. v. Louisville & P. C. Co., 4 Dill. 601; Searles v. Jacksonville, P. & M. R. Co., 2 Woods. 621 ; U. S. R. S., § 719, 8 Ry. & Corp. L. J. 200. Tims, in United States v. Louisville, &c, Canal Co.. 4 Dill. 601, Fed. Cas. Xo. 15.633, Mr. Justice Miller grant- ed an injunction upon a bill pending in the Sixth Circuit, at chambers in New Jersey; although he was not the Justice allotted to that circuit. 22Jud. Code, § 264, 36 Si. at L. 1087. 23 Davis v. Fogarty, 134 App. Div. (X. Y.) 500. 24 Ibid. 25 Raymond v. Tiffany, 115 App. Div. (X. Y.) 350. where terms were § 255] ORDERS. 813 a recital that it was made upon his motion is erroneous, and if inserted should be striken out upon a resettlement. The recital in an order that it was granted "upon all the papers and proceedings' ' was said to be too indefinite. 26 Where improper recitals are embodied in an order, it has been held by a State court: that the objection cannot be made by an appeal from the order, but only by a motion for a resettlement and an appeal from the order denying such motion. 27 It is possible that in the Federal courts, there might be a remedy by an application to the Circuit Court of Appeals for a mandamus. 28 It is usual, though not indispensable, in the Federal courts, before the entry of an order or decree upon the decision of the court after argument, to serve upon the attorney for the opposite party a copy of the paper proposed to be entered, with a notice that it will be presented for settlement at a specified time and place. 29 If the attorneys live in the same town as the judge, one day's notice of settlement is usually sufficient. It is the better practice for the solicitor who obtains an order upon an interlocutory application, to serve a copy .of the same upon the solicitor of the opposite party. When the order is made without notice to a party, in his absence, it is the duty of the clerk to mail him a copy of the same. 30 Usually attorneys of record are chargeable with notice of all proceedings taking place in open court. 31 If the other party takes a step in the action after an ex parte order has been obtained but before its service, "that step in itself regular, the order which had been obtained and not served cannot afterwards be acted upon, if it will inter- fere with the step so taken." 32 Where a decree directs the performance of a specific act, it should prescribe the time with- in which the act shall be done, and the defendant will be bound imposed upon the moving party 29 Nevada Nickel Syndicate v. without his consent; Rector, &c„ of Nat. Nickel Co., 103 Fed. 391, 394. St. Stephen's Church v. Rector, &c, 30 Eq. Rule 4. of the Church of the Transfigura- 31 Rio Grande Dam & Irrigation tien, 134 App. Div. (N. Y.) 452. Co. v. U. S., 215 U. S. 2t>ti, 54 L. ed. 26 Faxon v. Mason, 87 Hun (N. 190. See infra, Chapter on Ap- Y.), 139. peals. 27 Matter of Radam Microhe Kill- 32 Nevada N. S. v. National N. er Co., 114 App. Div. (N. Y.) 199. Co., 103 Fed. 391, 394. 28 Infra, § 467. 814 MOTIONS AND PETITIONS. [§ 255 without further service to take notice thereof. 33 Ordinarily, if it is intended to enforce the order by contempt proceedings, it should be served personally upon the party to be affected by it, 34 unless possibly, in an extraordinary case, an order should be granted allowing substituted service. 35 Interlocutory orders made upon motion may be altered or vacated at anv time before the final decree and orders made ex parte upon petition may also be dis- charged upon motion for irregularity. 37 According to- the English practice, orders made after a hearing upon a petition could not be altered or discharged without the filing of a petition for a rehearing, or upon appeal. 38 A court has, during the term at which it is entered, the power to review and modify or set aside any order or decree, interlocutory or final. 39 It has been held to be improper to file a bill of review or sup- plemental bill in the nature of the same in order to set aside an interlocutory order or decree. 40 It has been held that an order in an action at common law staying plaintiff's proceedings till he pays costs of a former action is res ad judicata upon a sub- sequent motion, and is in so far a final order that it cannot be modified or set aside at a subsequent term. 41 It has been held that, even in a criminal case, the court, at a term after final judgment, may enter an order correcting a clerical error, nunc pro tunc as of the preceding term. 42 An order granted after a 33 Eq. Rule 8. See infra. § 428. 34 Daniell's Ch. Pr. (2d Am. ed.) 178!): Church v. Marsh. 2 Hare, 652. 35 Re Cary, 3 Fed. 022. 36 Hunter v. . 6 Sim. 429; Lorton v. Seaman. 9 Paige ( X. Y. ) , 609; People v. Brower. 4 Paige ( N. Y. ), 405; Stafford v. Brown. 4 Paige (X. Y.). 360. 87Daniell's Ch. Pr. (2d Am. ed.) 1616. 1S07: Eslava v. Mazange, 1 Woods. 623. 627: Nelson v. Barker, 3 McLean, 379. 38 Tn re Marrow. Craig & Ph. 142: Daniell's Ch. Pr. (2d Am. ed.) 1807. 39 Bishop v. Willis, 2 Yes. Sen. 113: In re Marrow. Craig & Ph. 142; Daniell's Ch. Pr. (2d Am. ed. 1808. But see In re Dovenby Hos- pital, 1 Myl. & Cr. 279; West v. Smith. 3 Beav. 306. 40 Doss v. Tyack. 14 How. 297, 313. 14 L. ed. 428. 435: Bassett v. U. S.. 9 Wall. 38, 41. 19 L. ed. 548, 549; Henderson v. Carbdndale C. & ('. Co., 140 V. S. 25, 4d. 35 L. ed. 332. 338. See infra. § 443. 41 Buckles v. Chicago. M. & St. P. Ry. Co., 53 Fed. 566. 42 c. & A. Potts Co. v. Creager, 71 Fed. 74. In re Wright. 134 U. S. 136. 33 L. ed. 865. Regularly the date of an order should be the day when it was pronounced, not the § 255] ORDERS. 815 hearing before one judge of a court will not, unless under ex- traordinary circumstances, be modified or vacated by another except upon appeal. 48 Unless limited by their terms, or by a rule, or by statute, 44 orders within the jurisdiction of the judge •or court that grants them remain in force until discharged by a subsequent order; 45 or until the final decree, when, unless re- newed by its terms, all orders expire. 46 Before the Evarts Act, no appeal lay before the final decree from an interlocutory order which was not final in its- nature. 47 It has been said by Chief Justice Taney, that "In this respect the practice of the United States chancery courts differs from the English practice. For appeals to the House of Lords may be taken from an inter- locutory order of the chancellor, which decides a right of prop- erty in dispute; and therefore there is no irreparable injury to the party by ordering his deed to be cancelled, or the property he holds to be delivered up, because he may immediately appeal, and the execution of the order is suspended until the decision of the appellate court. But the case is otherwise in the courts of the United States, where the right to appeal is by law- limited to final decrees. And if by an interlocutory order or ■decree he is required to deliver up property which he claims, or to pay money which he denies to be due, and the order is immediately carried into execution by the Circuit Court, his right of appeal is of very little value to him, and he may be ruined before he is permitted to avail himself of the right. It is exceedingly important, therefore, that the Circuit Courts of the United States, in framing their interlocutory orders, and in carrying them into execution, should keep in view the dif- ference between the right of appeal, as practiced in the English chancery jurisdiction, and as restricted by the act of Congress •day of its entry. Ex parte Hookey. former overruled Re Steele. 156 Fed. 4 De G.. F. & .1. 4.5(1; Ex parte 853; Ex parte Steele. 1112 Fed. 694. Wliitton, 13 Ch, D. 881. 44 See Eq. Rule 73 quoted infra 43 ("ole S. M. Co. v. Virginia & § 292. ■G. H. W. Co.. 1 Saw. 685, 889; « Eslava v. Mazange. 1 Woods, Oglesby v. Attrill. 14 Fed. 214; 623, 627. Xewcomb v. Burhank. 159 Fed. 5(i!); **Gardner v. Gardner, 87 X. Y. Ex parte Steele. 162 Fed. 694; Re 714; Daniell's Ch. Pr. (2d ^jn. o.d.) Funis. 183 Fed. 859. But see Birch 191)2. v. Steele, C. C. A.. 165 Fed. 577; Re 47 See infra, chapters on Writs of Steele, 101 Fed. 886; of which the Errors and Appeals. 81G MOTIONS AND PETITIONS. [§ 256! and abstain from changing unnecessarily the possession of property, or compelling the payment of money by an inter- locutory order." 48 An appeal lies to the Circuit Court of Appeals from an interlocutory order or decree granting or ... • . "49 continuing an injunction or appointing a receiver. § 256. Judges who may grant orders. An order may he made by any judge authorized to sit in the court in which the cause is pending. In the Supreme Court it is the custom for each Justice to refer to the full bench every application of importance which is made to him. 1 Orders in a case pending in a District Court may be made by any judge of that district ; * or by any district judge, in the same circuit, who has been designated by a circuit judge of the circuit; or, in the absence of all the circuit judges, by the Circuit Justice of the same; 3 or, in case of the absence and disability of all the circuit judges and the Circuit Justice, by the Chief Justice of the United States; 4 or by any circuit judge of the circuit, desig- nated by the senior circuit judge or Circuit Justice thereof or the Chief Justice of the United States ; 5 or by any member of the Commerce Court, assigned by the Chief Justice of the United States for service therein. 6 In case of the absence from the district or disability of the district judge, any circuit judge of the circuit may grant an injunction or restraining order in any case pending in the District Court. 7 It is ordinarily the duty of a judge to follow a ruling made in the same cause ; 8 or when rules of property or practice are 48 Forgay v. Conrad, 6 How 201, 205, 12 L. ed. 404, 406. 49 Act of June 16, 1900, 31 St. at L. 660: infra, § 300. § 236. 1 Spies v. Illinois, 123 U. S. 131. 31 L. ed. 80. 2 See Jud. Code. § 1. 36 St. at L. 1087; Birch v. Steele, C. C. A., 165 Fed. 577. 3 Jud. Code, § 14, 36 St. at L. 1087. Cf. Ibid., §§ 13. 16. 17. 18. 19. 20. All of these are quoted in § 370, infra. An order made by the Dis- trict Judge of another district in the same State who was not sitting nor designated to sit in the district where the suit was pending, the of- fice of District Judge of the latter district not being vacant, was held null and void. Am. L. & T. Co. v. East & West R. Co.. 40 Fed. 182. 4 Jud. Code. § 15, 36 St. at L. 1087: quoted infra. § 370. 5 Jud. Code, § 18. 36 St. at L. 1087 : quoted infra, § 370. 6 Jud. Code, § 205, 36 St. at L. 1087; quoted infra, § 370. 7 Jud. Code, § 264, 36 St. at L_ 1087. 8 Plattner Implement Co. v. In- ternational Harvester Co., C. C. A- 133 Fed. 376, 379. 257] clerk's office. 817 involved, in another cause, by a judge of co-ordinate juris- diction; 9 but when he has so done, he may be reversed, if the court of review construes the ruling to be erroneous. 10 If there is no ruling by the Circuit Court of Appeals for the same circuit, a Circuit or District Judge will ordinarily follow a decision of a Circuit Court of Appeals in another circuit. 11 Greater respect is paid to a ruling by a Circuit Justice than to one by a Circuit or District Judge; 12 and a ruling by a Cir- cuit Judge has more weight than one by a District Judge. 13 Where there were two district judges in the same district, each with equal and concurrent authority, and one, during the absence of the other from the district, had appointed a referee in bankruptcy; it was held that the latter might, without the former's concurrence, remove the referee from office. 14 It has been held that a judge of another district, assigned gener- ally to hold court, may make orders in cases tried by a resident judge; 15 but that he should not make such orders when in his own district and the district judge of the other district is present therein. 16 § 257. The clerk's office. All court orders should be filed in the clerk's office. Restraining orders, signed by a judge, must also be forthwith filed there. 1 Orders to show cause are not usually filed there until their return. Orders extending time are not usually filed, unless some motion is founded upon the same. The Judicial Code provides: A clerk shall be appointed for each district court by the judge thereof, 9 Plattner Implement Co. v. In- ternational Harvester Co., C. C. A., 133 Fed. 370. 378. 10 Plattner Implement Co. v. In- ternational Harvester Co., C. C. A., 133 Fed. 376, 379. n In re Baird. 1.14 Fed. 215. 12 Preston v. Walsh. 10 Fed. 315. But see U. S. v. Huggett, 40 Fed. 636. 644. * 13 Cf. F. Regensberg & Sons v. Am. Exch. Cigar Co.. 130 Fed. 540. Infra, § 375. But see U. S. v. Hug- gett. 40 Fed. 636. 644. 14 Birch v. Steele. C. C. A., 165 Fed. Prac. Vol. I. — 52. Fed. 577: Re Steele, 161 Fed. 886; of which the former overruled Re Steele, 156 Fed. 853, Ex parte Steele, 162 Fed. 694. is hall v. MeKinnon. C. C. A., 193 Fed. 572. 16 (Jay v. Hudson River El. Pow- er Co., 190 Fed. 812. 17 U. S. v. Alexander. 46 Vvd. 728; Norton v. Shelby Co.. 118 U. S. 425 r 30 L. ed. 178. But see Manning v. Weeks. 139 U. S. 504. 35 L. ed. 264; Ball v. U. S.. 140 f. S. 118, 35 L. ed. 377. § 257- lEq. Rule 73. 818 MOTIONS AND PETITIONS. [.§ 257 except in cases otherwise provided for by cept as otherwise specially provided 'by law of the district court for each district approval of the district number of deputy clerks by such judge, who may maintain offices at such 1 ?' 2 law. the "Ex- clerk may, with the judge thereof, appoint such as may be deemed necessary be designated to reside and places of holding court as ♦he judge may determine. Such deputies may be removed at the pleasure of the clerk appointing them, with the concur- rence of the district judge. In case of the death of the clerk, his deputy or deputies shall, unless removed, continue in office and perform the duties of the clerk, in his name, until a clerk is appointed and qualified ; and for the default or misfeasance iu office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk and his estate and the sure- ties on his official bond shall be liable; and his executor or administrator shall have such remedy for any such default or misfeasances committed after his death as the clerk would be entitled to if the same had occurred in his lifetime." 3 ; 'The district court for each district may appoint a crier for the court; and the marshal may appoint such number of persons, not exceeding five, as the judge may determine, to wait upon the grand and other juries, and for other necessary purposes." 4 "The records of a district court shall be kept at the place where the court is held. When it is held at more than one place in any district and the place of keeping the records is not specially provided by law, they shall be kept at either of the places of holding the court which may be designated by the district judge." 5 The equity rules direct: "The clerk shall keep a book known as 'Equity Docket,' in which he shall enter each suit, with a file number corresponding to the folio in the book. All papers and orders filed with the clerk in the suit, all process issued and returns made thereon, and all appear- ances shall be noted briefly and chronologically in this book on the folio assigned to the suit and shall be marked with its file number. The clerk shall also keep a book entitled 'Order Book,' in which shall be entered at length, in the order of their making, all orders made or passed by him as of course and 2Jud. Code, § 33, 30 St. at L. 4 Ibid. § 5. 1087. 5 Ibid. S 6. 3 Ibid. § 4. § 257] clerk's office. 819 also all orders marie or passed by the judge in chambers. He shall also keep an 'Equity Journal,' in which shall be entered all orders, decrees and proceedings of the court in equity causes in term time. Separate and suitable indices of the Equity Docket, Order Book and Equity Journal shall be kept by the clerk under the direction of the court.''' 6 "Neither the noting of an order in the Equity Docket nor its entry in the Order Book shall of itself be deemed notice to the parties or their solicitors and when an order is made without prior notice to, and in the absence of, a party, the clerk, unless otherwise directed by the court or judge, shall forthwith send a copy thereof, by mail, to such party or his solicitor and a note of such mailing shall be made in the Equity Docket, which shall be taken as sufficient proof of due notice of the order." 7 "All motions and applica- tions in the clerk's office for the issuing of mesne process or final process to enforce and execute decrees ; for taking bills pro confesso; and for other proceedings in the clerk's office which do not require any allowance or order of the court or of a judge, shall be deemed motions and applications gran table of course by the clerk; but the same may be suspended, or altered, or rescinded by the judge upon special cause shown.'' 8 The Revised Statutes provide: "All moneys paid into any court of the United States or received by the officers thereof in any case pending or adjudicated in such court shall be forth- with deposited with the Treasurer or Assistant Treasurer or a designated depository of the United States in the name and to the credit of such court, provided that nothing herein shall be construed to prevent the delivery of any such money upon security according to agreement of parties under the direction of the court." 9 "No money deposited as aforesaid shall be withdrawn except by order of the judge or judges of said courts, respectively, in term time or in vacation to be signed by such judge or judges and to be entered and certified of record by the clerk, and every such order shall state the cause in or on account of which it is drawn, and it shall be the duty of the judge or judges of said courts, respectively, to cause any moneys deposited as aforesaid which have remained in the registry of the court unclaimed for ten years or longer to be deposited in 6Eq. Rule 3. »U. S. R. S., § 095, Comp. St. ?Eq. Rule 4. 1901. d. 7JJ 8Eq. Rule 5. 820 MOTIONS AND PETITIONS. [§ 257 a designated depository of the United States to the credit of the United States." 10 The clerk is entitled to demand the payment of his fees in advance; 11 but when tendered a fee for service demanded of him. he cannot refuse to perform the same until fees due him for other services have been paid. 12 It is customary in the Second Circuit to recpiire a deposit, as security for costs, to be paid by each party before any paper is filed by him. 13 All books in the offices of the clerks of the Dis- trict Courts containing the docket or minutes of the judgments, or decrees thereof, must during office hours be open to the in- spection of any person desiring to examine the same, without any fees or charges therefor. 14 A title insurance company has the right to make such inspection, provided it does not in- terfere with the rights of other searchers. 15 The sureties upon a clerk's bond are liable, by a suit in the name of the United States, for the use of a private suitor, who has been damaged by his misconduct in refusing to file papers in a case. 16 Such sureties are similarly liable to the owner of a fund deposited with the clerk, which the latter has misappropriated. 17 But where the clerk had refused to enter judgment by default in a case where garnishee process had been issued, it was held that his sureties were not liable for damages in the absence of proof that there were funds of the defendant in the hands of the garnishee subject to garnishment. 18 The complaint is filed when it is lodged in the hands of the clerk and his fees are paid, although he fails to put the file marks upon the same. 19 10 U. S. R. S., § 996, as amended by Act of February 19. 1897. ch. 265, § 3, 29 St. at L. 578, Comp. St. 1901, p. 711. See Re Moneys in Registry of District Court, 179 Fed. 470; in- fra, chapter on "Admiralty". 11 Aiken v. Smith, C. C. A., 57 Fed. 423, 425: lloysradt v. Dela- ware, L. & W. R. R.. 182 Fed. 880. 12 Jennings v. Johnson, C. C. A., 148 Fed. 337. 13 Tn equity, on filing bill of com- plaint $25, on filing appearance by defendant $15; at law, on filing summons $15, on filing appearance by defendant $10; appraisers' ap- peals, on tiling petition $5. 14 U. S. R. S., § 828 ; Re McLean, 9 Cent. L. J. 425; s. c, 2 Flip. 512. 15 Bell v. Commonwealth Title Ins. Co.. 189 U. S. 131, 47 L. ed. 741. 16 U. S., to Use of Kinney v. Bell, C. C. A., 135 Fed. 336. 17 Howard v. U. S., 184 U. S. 676, 46 L. ed. 754. 18 U. S. v. U. S. Fidelity & Guar- anty Co.. C. C. A., 186 Fed. 477. 19 Emmons v. Vubelite Plaster Co., 193 Fed. 181. CHAPTER XVII. INTERVENTIONS. § 258. Petitions of intervention. A petition of interven- tion is filed in a pending cause by a person who is not a party to it; and prays permission to intervene and become a party, either plaintiff or defendant. A person not named as a party to the pleadings cannot ordinarily intervene without permission of the court. 1 Xew parties can always intervene by consent of the original parties. 2 By the Equity Rules of 1912, ''Anyone claim- ing an interest in the litigation may at any time be permitted to assert his riffht by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding." 3 To what extent this changes the pre- existing practice has not yet been decided. The general rule was that the court had no power to allow a stranger to ;i cause "to be heard therein either by petition or motion, except in certain cases arising from necessity, as where the pleadings contain scandal against a stranger, or where a stranger purchases the subject of litigation pending the suit, and the like." 4 Persons belonging to a class represented in the suit are regarded as quasi-parties ; and for that reason they are often allowed to intervene. 5 In a suit brought by a mem- § 238. 1 Bronson v. La Crosse & sonville. P. & M. R. Co.. 2 Woods, M. R. Co., 2 Wall. 283, 17 L. ed. G28, 629. See also Searles v. Jack- 725; Forbes v. Memphis El. P. & sonville. P. & M. R. Co.. 2 Woods, Pac. Ry. Co.. 2 Woods, 323 ; Putnam 021, 625; Shields v. Barrow. 17 v. Xew Albany, 4 Bissell, 30.5, 367; How. 130, 145, 15 L. ed. 158. 162: Gregory v. Pike. 07 Fed. 837; U. S. Bronson v. Railroad Co.. 2 Black. Gypsum Co. v. Hoxie. 172 Fed. 504. 524. 17 L. ed. 347: Coleman v. Mar- 2 Galveston R. Co. v. Cowdrey, 11 tin. 6 Blatchf. 119; Drake v. Good- Wall. 459, 464. 20 L. ed. 190; ridge. 6 Blatchf. 151: Pago v. F*reneh v. Gapen, 105 U. S. 509, 525, Holmes B. A. Tel. Co.. 18 Blatchf. 26 L. ed. 951. 956. 118. 3Eq. Rule 37. 5 Fidelity Tr. & S. D. V. Co. v. 4 Bradley. J., in Anderson v. Jack- Mobile S. Ry. Co., 53 Fed. 850. 821 822 INTERVENTIONS. [§ 258 ber of a class on behalf of himself and others similarly in- terested, another member of the class who desires the success of the complaint 6 can always intervene. 7 even after a decree for a sale, provided there has been no distribution of the assets, 8 upon payment of his share of the costs, expenses, and reason- able counsel fees which have been previously paid or incurred. 9 Ordinarily an intervenor in a suit brought on behalf of a class will be joined as plaintiff. If he is a citizen of the same state as one of the defendants, that will not in most, if in any, cases deprive the court of jurisdiction. 10 If there should be any danger that it would, he may be joined as a defendant. 11 If he intends to act in hostility to the original complainant, the court may. in its discretion, add him to the defendants. 12 After an agreement for a settlement of the entire litigation had been made between the original complainant who sued on be- half of himself and the rest of a class, and one of the defendants, a motion to intervene by a member of the class, for whose benefit the suit was brought, was denied ; although no motion to dismiss the bill, nor for a discontinuance, had been made or noticed. 13 6 Forbes v. Memphis, El. P. & P. R. Co.. 2 Woods, 323. The right was denied where the petitioner acquired his claim pending the suit. Terry v. Bank of Cape Fear, 20 Fed. 777. Cf. Davis v. Sullivan. 33 X. J. Fq. 569. 7 Ogilvie v. Knox Ins. Co., 2 Black, 539, 17 L. ed. 349: s. c, 22 How, 380. 16 L. ed. 349: Myers v. Fenn. 5 Wall. 205, IS L. ed. G04 ; Ex parte Jordan. 94 U. S. 248, 24 I., ed. 123; First Nat. Ins. Co. v. Salisbury, 130 .Mass. 303: Hallett v. Hallett. 2 Paige (X. Y.), 432; Leigh v. Thomas, 2 Yes. Sen. 312; Story's Eq> PI. § 99. See Tift v. Southern By. Co.. 159 Fed. 555. It lias been said that where the bill is not expressly tiled in behalf of all the stockholders, but they are all in- terested in the relief, other stock- holders have no absolute right of intervention: but the court may. in its discretion, permit them to inter- vene. .Jackson Co. v. Gardiner Inv. Co., 200 Fed. 113. 117. 8 George v. St. Louis C. & W. Ry. Co.. 44 Fed. 117. 9 Central B. Co. v. Pettus. 113 U. S. 116, 28 L. ed. 915: Trustees v. Greenough, 105 U. S. 527, 26 L. ed. 1157. 10 Stewart v. Dunham. 115 U. S. 61. 29 L. ed. 329. But see Mangels v. Donau Br. Co.. 53 Fed. 513. 11 Brown v. Pac. M. S. S. Co.. 5 Blatchf. 525, 535. 12 Galveston R. Co. v. Cowdrey, 11 Wall. 459. 478: Forbes v. Mem- phis, El. P. & P. R. Co., 2 Woods, 323. 13 Snyder v. DeForest Wireless Telegraph Co., U. S. C. C. E. D. Mo. 1907. But see Snyder v. De- Forest Wireless Telegraph Co. (D. § 253] PETITIONS OF INTERVENTION. 823 In suits brought by or against a trustee, or otherwise affect- ing trust property, the beneficiaries of the trust, such as hold- ers of bonds secured by a railroad mortgage, may be allowed to intervene for the purpose of protecting their interests; 14 but ordinarily the right to intervene has been denied them in the absence of fraud, neglect, inability, collusion or bad faith by the trustee, 15 even when the application was made for the purpose of taking an appeal, after the trustee had refused to appeal. 16 The better rule is that bondholders should always be allowed to intervene when their trustee refuses to make an active contest against the validity of a prior lien or of other bonds secured by the same mortgage. The facts showing mis- conduct or collusion by the trustee must be specifically pleaded. A general allegation of fraud, collusion, and co-operation with one of two parties of bondholders, is insufficient. 17 Where a trustee represents bondholders under different mort- gages with conflicting interests; or where, if a corporation, one of its officers or directors or controlling stockholders or counsel is a member of a reorganization committee which intends to buy the mortgaged property or is interested in a huge claim against it. the trustee is under such disability to exercise un- biased judgment that an intervention should always be allow- ed. 18 It has been held: that the fact that certain of direc- M.), 154 Fed. 142, 145. See § 361, infra. 14 Williams v. Morgan, 111 U. S. 684, 28 L. ed. 559; Drew v. Harmon, 5 Price. .319; Saviors v. Saviors. 3 Heisk. (Tenn.) 525; Birdsong v. Birdsong. 2 Head (Tenn.). 289; Carter v. New Orleans, 19 Fed. 659; Farmers' L. & Tr. Co. v. Mo. I. & X. Ry. Co.. 21 Fed. 264; Farmers' L. & Tr. Co. v. Xo. Pac. K. Co., 66 Fed. 169: Central Tr. Co. v. Wash- ington County. 124 Fed. 813. 15 Richards v. Chesapeake & 0. R. Co*., 1 Hughes. 28. 36; Skiddy v. Atlantic, M. & 0. R. Co., 3 Hughes, 320, 350-352. per Bond, J., Hughes, J., dissenting; Farmers' L. & Tr. Co. v. Kansas City. W. & X. W. R. Co., 53 Fed. 182; Clyde v. Richmond & D. R. Co.. oo Fed. 445; Bowling Green Tr. Co. v. Va. Passenger & Power Co., 132 Fed. 921. See supra, §171. Trust Co. of America v. Nor- folk & S. Ry. Co., 174 Fed. 269. See Eq. Rule 37. 16 Fink v. Bay Shore Terminal Co., C. C. A., 144 Fed. 837. 17 Bowling Creen Tr. Co. v. Vir- ginia Passenger & Power Co.. 161 Fed. 753, 756; Continental & C. Tr. & S. Bank v. Allis-Chalniers Co.. BOO Fed. 600. See Howard v. Shinn. C. 2:i. as amended by Act of Feb- ruary 24, 1905, ch. 778, 33 St. at L. 811, Comp. St. Supp. 1909, p. 948. 72 TJ. S. v. United Surety Co., 192 Fed. 992. 73 TJ. S. v. Massachusetts Bonding & Ins. Co., 198 Fed. 923, 928. 74 U. S. v. McGee, 171 Fed. 209. 75 Central Tr. Co. v. Washington County, 124 Fed. 813, 814, 815. See also Gregory v. Pike, 67 Fed. 837; supra, § 199. § 258] PETITIONS OF INTERVENTION. 831 holders, 76 and that where there was no dispute as to the valid- ity of all of the bonds as against the corporation, the bolder of a part thereof should not be allowed to intervene before the sale for the purpose of litigating a claim of priority over other bondholders; that being said to be a question, which could be litigated before the master upon the application for the distribution of the proceeds of the sale. 77 Laches may be a reason for denying a stockholder's, bondholder's, or creditor's or other's 78 petition of intervention when equities on the part of the complainant or other parties interested have arisen during the delav. 79 A delay of about three vears ami a half in presenting a claim for payment in a foreclosure suit was held not to be laches, where the intervenor had in the meantime obtained a judgment against the defendant. 80 Where general creditors of a corporation had made no objection to the ac- quisition of the possession of property by receivers appointed in a foreclosure suit, until after the property had been sold under a decree and the sale confirmed; it was held, that they were estopped by their laches from maintaining petitions of intervention to compel the payment of their demands from the proceeds of the sale, upon the ground that part of the property was not subject to the lien of the mortgage. 81 When the court acquired jurisdiction of the original bill, the fact that an intervenor has the same citizenship as a party on the opposite side of the controversy, 82 or that his claim is less 76 Bowling Green Tr. Co. v. Va. Passenger & Power Co., 132 Fed. 921. 77 Mercantile Tr. Co. v. U. S. Shipbuilding Co., 130 Fed. 725. See Trust Co. of America v. Norfolk & S. Ry. Co., 174 Fed. 2G9. 78 Thomson-Houston El. Co. v. Western El, Co., C, C. A., 158 Fed. 813; Leary v. U. S., C. C. A., 184 Fed. 433. 79 Continental Tr. Co. v. Toledo. St. L. & K. C. R. Co., 82 Fed. 1)42: Boston S. D. & Tr. Co. v. Am. Rapid Tel. Co.. 67 Fed. 165; Stat€ Trust Co. v. Kansas City, P. & G. R. Co., 120 Fed. 398: U. S. Trust Co. v. Chicago Terminal T. R. Co., C. C. A., 188 Fed. 292: Trust Co. of America v. Norfolk & S. Ry. Co., 174 Fed. 209. 80 New York G. vV 1. Co.. v. Ta- coma R. & .M. Co.. C. C. A., 83 Fed. 365. Cf. supra* § 258. note 2::. 81 State Tr. Co. v. Kansas City. 1>. & C a. Co.. 120 Fed. 398. 82 Kripendorf v. Hyde, 110 l". S. 270. 283, 2S4. 2S I., ed, 115. 148; Tark v. N. V.. I.. E. & W. 11. Co., 70 Fed. oil: Monmouth 1 nv. < 'o. v. Means. C. C. A.. 151 Fed. 159; su- pra, s 10. 832 INTERVENTIONS. [§ 258 than the jurisdictional anion r, 83 will not affect his intervention, nor defeat the jurisdiction, after he has been admitted to the suit. A State statute authorizing or forbidding interventions in suits of equity will not be followed by a Federal court. 84 83Stanwood v. Wishard, 134 Fed. 950 ; supra, § G. 84 Mercantile Tr. Co. v. Atlantic & P. 11. Co.. 63 Fed. 513, 517. In an instructive essay, Mr. Ed- ward C. Eliot, of St. Louis, classi- fies cases of intervention as follows (31 Am. Law Rev. 377, 381, 382, 383. 385. 387, 390, 391. 392) : "The intervention of strangers to the original cause which will he entertained and adjudicated by the Federal courts may have as the basis of their institution one of the following matters of interest: "1. They may be based upon a right or title to the subject-matter paramount in quality to the claims of the original parties to the suit and extending to the whole matter of rightful ownership. Into this class of intervention will fall al- most all those proceedings which are permitted by the Federal courts as incidental to suits at law; and they are closely analogous to the ordinary interpleas permitted by statute and in the State courts. . "2. In the second class of inter- ventions may be placed those which are based upon some statutory or contractual lien which the interven- or has by law, independent of the peculiar jurisdiction of the Federal eourt, and which he seeks to impose upon the property in the charge of the court and to enforce in the Fed- eral court because of his inability to pursue the same right or remedy in the State courts. Into this class of interventions fall the enforce- ment of statutory or mechanics' liens, charges or liens which may be the result of private contract be- tween the parties, and also judg- ment liens of later or earlier date obtained in the State courts, and which by State statute are made pre- cedent in right to the complainant's cause of action. "3. The third class of interven- tions consists of those which are based, not upon rights or titles in the subject-matter existing in full force by law, irrespective of the action of the Federal tribunal, but such as rest upon equities which are purely the creation of the Federal courts and which in the judgment of such courts justify the preference of the intervenors, owing to such equities, over the rights of the par- ties to the suit. It is believed that the interventions which are now re- ferred to are peculiar to railroad foreclosures. ... "4. The fourth class includes those interventions which rest upon legal rights or equitable liens upon the subject-matter in the hands of the court, but which are deferred in law or equity to the rights of the complainant. They may be superior to the rights of other parties to the suit. Manifestly these interven- tions, though they may be adjudi- cated, have no effect to postpone or interfere with the original purpose of the suit. They apply simply to any possible surplus which may b6 in the hands of the officers of the § 259] PRACTICE ON INTERVENTIONS. s:\:\ § 259. Practice upon interventions. A petition of inter- vention may be filed at anv stage of the cause, even after a final •court after the objects of the origin- al suit have been effected. They are then classified among themselves. but are made liens or charges only upon the remnant of the property which may be in the hands of the ■court. "5. In the fifth class are inter- ventions based upon contractual ob- ligations which may be made or incurred by the receiver or other officers of the court in charge of the property during the litigation. "6. The last class of interven- tions includes those based upon the torts of the receiver in the manage- ment of property in the control of the court. . . . "Owing to the lack of understand- ing of the real nature of interven- ing petitions and the fundamental ground upon which the court acts, attempts are often made to extend the jurisdiction of the Federal court upon petitions of this character to matters or for results which the court ought not to consider or to effect. In a railroad foreclosure suit, a deficiency decree against the defendant corporation for the amount of indebtedness not satisfied out of the proceeds of sale is proper, because such is the original cause of action of the complainant. But effort is sometimes made by indi- vidual bondholders through inter- ventions, to enforce some statutory or common-law liability upon the stockholders of the defendant cor- poration. While there may lie no direct adjudication t<> that effect re- ported, it is evident that this would be an extension of the jurisdiction •of the Federal court beyond reason." Fed. Prac. Vol. I.— 53. But see Continental & C. Tr. & S. Bank v. Allis-Chalmers Co.. 200 Fed. 600, 610. "There may be. of course, causes in which the entire assets of a corporation arc taken in charge by the court, as upon credit- or's bill, where the individual lia- bility of the stockholders of the corporation may be an asset in the hands of the receiver or other officer of the court. In that event, at the suggestion or motion of a creditor, no doubt the object of the principal cause would justify the enforcement of the liability. But it will be seen that this is really the purpose and object of the principal suit. The matter does not arise collaterally. And the personal liability is one of the property interests seized. So in other • cases, attempts have been made through interventions to try titles or rights which have been de- rived through the receiver or by op- eration of the decrees or judgment of the court. These, also, are not properly subjects of interventions, although the courts have indeed held that a bill or motion may be entertained as ancillary to a decree of judgment, for the interpretation of that judgment or decree at the instance of a person who claims ti- tle under it. This is another case of the extreme limlt'of the principle. Interventions are also attempted and sometimes entertained to force upon the receiver a duty to make some equitable contract in favor of a public interest. Where such an intervention is to lie considered, it ought to rest upon the propriety of the court'- advising the receiver. and the proceeding should l»e con- sidered as in the nature of a peti- 834 INTERVENTIONS. 250 decree, provided, at least, that it is tiled at the same term. 1 An intervention has been allowed after an order taking the decree as confessed by the original defendant. 2 and after the decree had been signed but not entered. 3 It has been said : that it will only be granted after final decree, in order to preserve some right which cannot otherwise be protected, or to avoid some complication which is likely to arise. 4 Where the original com- plaintiff had no interest in the relief prayed in a petition of intervention, it was held to be demurrable because of his join- der as a co-petitioner with the person interested. 5 A petition for leave to intervene should describe the proceedings in the cause in which it is filed, so that the court can see the nature and condition of the suit. 6 It may also contain a statement of the petitioner's view of the case, and pray in addition to inter- vention the final relief which he desires. While a petition of intervention need not be as formal as a bill of complaint, and should be distinguished for brevity, it should ex- hibit all the material facts which are relied upon for the specific relief asked, embodying, either by recital or by reference, so much of the record of the original suit in which the petition is filed as is essential to show a right to the particular relief demanded by the petitioner. 7 Where the petition of interven- tion contained general averments showing the petitioner's inter- est in the litigation and closed with a statement that he referred to all of the allegations in the original complaint, in so far as tion by him for advice. There has been, however, an instance where the intervening petition of a stranger to a suit was entertained to force the receiver to make a contract for the electric lighting, public and private, of a city, which was depend- ent upon the operation of the prop- erty in the hands of the receiver for that purpose. And. in that case, the judge of the United States court said that he would consider the ap- plication out of public necessity and because he would not permit his re- ceiver to leave the city in darkness for want of a proper contract," Hodgen v. Met. El. Ry. Co., U. S. C. C, W. D. Mo., per Phillips. D. J., May, 1894. § 250. IXew York G. & I. Co. v. Tacoma Ry. & M. Co.. C. C. A., 83 Fed. 3G5; supra, § 413. 2 Farmers' L. & Tr. Co. v. Toledo, A. A. & X. Ry. Co., 07 Fed. 4fl, 53. 3 Guarantee Tr. & S. D. Co. v. Duluth & W. R. Co., 70 Fed. 803. 4 U. S. v. Northern Securities Co., 12S Fed. SOS. 5 Central Tr. Co. v. Wabash, St. L. & P. Ry. Co., 46 Fed. 156. 6 Ransom v. Davis' Adir.'rs, 18 How, 205, 15 L. ed. 38S. 7 French v. Gapen. 105 F. S. 509, 519, 520, 26 L. ed. 951, 954, 955. 259] PRACTICE OX INTERVENTIONS. S:',5 they were not inconsistent with the foregoing- statement and claim, and made the same part of his petition ; it was held to be not defective for want of specific allegations of the matter thus incorporated by reference. 8 It must conform to the general rules of pleading and must meet the same tests that are applied to ordinary pleadings to determine whether a cause of action or a defense is stated. 9 It will be construed in connection with the original proceedings in the suit. 10 Where, subsequently to the tiling of the petition of intervention, proceedings have been had under the original bill which would fortify the right of the intervening petitioner, either to the particular relief de- manded or to some other relief, the matter should be incor- porated into the petition of intervention by amendment. 11 A petition seeking the payment by a receiver of a claim must specifically allege that he has sufficient funds which are prop- erly applicable to the claim. 1 . 2 A petition to intervene and de- fend a suit should be accompanied by the answer proposed, 13 or, at least, should show the nature of the defense. 14 It is the usual practice to verify a petition of intervention by the oath of the petitioner. An affidavit by the petitioner, that the alle- gations in the petition "are true as he verily believes," was held to be sufficient ; and. in the absence of a traverse, they were presumed to be true upon an appeal. 15 A petition of interven- tion may be amended by leave of the court. 16 All the parties to the suit are presumed to be parties to the petition of inter- 8 U. S. v. Massachusetts Bonding & Ins. Co., 198 Fed. 923, 927. 9 Continental & C. Tr. & S. Bank v. Allis-Chalmers Co.. 200 Fed. tiOO, 607. 10 Receiver of Cent. R. & B'g. Co. v. Macon, D. & S. R. Co., 115 Fed. 920. 927. 11 Jenkins, J., in Empire Dis. Co. v. McXulta. C. C. A., 77 Fed. 700, 703. 12 Ibid. For allegations in an in- tervening petition, by the bolder of a judgment for death by neg- ligence on the ground that the road was operated by a company acting as the agent of the bondholders, which were held to be too vague and indefinite to sustain a preference, see Veatch v. Am. L. & Tr. Co.. C. ('. A.. 79 Fed. 471. l3Toler v. East Tcnn.. V. & G. Ry. Co., 67 Fed. 168. 14 Grand Trunk Ry. Co. v. Cen- tral N't. R. Co.. 91 Fed. 569. 15 Louisville Trust Co. v. Louis- ville. New Albany <.v C. Ry. Co.. 174 I . S. (i74. 687-689, 43 L. ed. 1130, 1135. 1136; s. c. as Farmers' Loan & Trust Co. v. Louisville. New Al- bany & C Ry. Co., 103 Fed. 110, 115. WWillcox v. Jones, C. C. A., 177 Fed. 870, 870. 836 INTERVENTIONS. [§ 259 vcntion, and, under the former practice were presumed to take notice of the same when it was filed, although it was safer to serve them. 17 Xotice of an application for intervention may, by leave of the court, be served on the attorneys for the other parties to the suit, who are beyond the jurisdiction of the court, unless the petition sets up new facts not set out in the bill nor Germane to the case therebv made, which are made the basis of a prayer for independent affirmative relief, when it has been held that such substituted service cannot be permitted. 18 Xew parties brought in by the intervenors should be served with a subpoena or some other notice in the same manner as if the peti- tion were an original bill. 19 It has been held, that, even where the parties are beyond the territorial jurisdiction, they may be served by mailing to them a copy of an order directing that they demur, plead, or answer, to the petition. 20 The proceed- ings in the suit may be stayed pending the hearing upon a peti- tion of intervention, although such relief is extraordinary. 21 If any of the original parties wishes to contest the petition- er's right to intervene, he must do so specifically at the hearing upon the petition. 22 Under the former practice, he might file a demurrer, plea, or answer to the petition. 23 Under the Equity Kules of 1912, the objection should be raised by a motion to dis- miss. 24 or by a specific defense set up in the answer. 25 Under the former practice it was held to have been waived Avhere the complainant consented to the issue of process on a petition of intervention and demurred thereto, without objecting to the 17 Central Tr. Co. v. Madden, C. C. A.. 70 Fed. 451: McLeod v. City of New Albany, (it) Fed. 378; Lom- bard Tnv. Co. v. Seaboard Mfg. Co., 74 Fed. 325. See supra, § 257. 18 Fidelity Tr. & S. V. Co. v. Mo- bile St. Ry. Co.. ^>o Fed. 850. See supra, $ 165. 19 Hook v. Mercantile Tr. Co.. 95 Fed. 41. 47. 20 Bacfoe v. Hunt, Thompson, d. ('. ('.. X. D. Ohio. \V. Div Dec. 4, 11101. (Appeal dismissed Bache v. Hunt. 193 U. S. 523, 524, 48 L. ed. 774. 775). 21 Pennsylvania Co. v. Jackson- ville. T. & K. Ry. Co.. 55 Fed. 131. 22 French v. Gapen, 105 U. S. 509 r 525, 26 L. ed. 951. 950; Meyers v. Fenn. 5 Wall. 205. 18 L. ed. 604. 23 Central Tr. Co. v. Wabash. St.. L. & P. Ry. Co.. 46 Fed. 156. 24 See Eq. Rule 29 ; Horn v. Pere- Marquette R. Co., 151 Fed. 626; McClellan v. Blackman. 188 Fed. 934. 25 Eq. Rule 29. See Central Tr. Co. of X. Y. v. Wabash, St. L. & P. Ry. Co.. 46 Fed. 156. § 259] practice on interventions. 837 right of intervention 26 and by an answer to the merits of the inventor's claim. 27 But the usual practice is to present the ob- jections informally by affidavit or otherwise upon the hearing. 28 It was held that the objection, that the intervenor's claim was barred by his failure to present the same within the time limited by a previous order in the cause, should be raised by plea and not by demurrer. 29 It has been said : that a receiver may be required to plead to the petition. 30 A failure to answer allegations in the petition, or to deny the same by affidavit, is considered to be an admission of the truth of the same. 31 The filing of a replication to a petition of intervention and the pro- ceeding to a hearing were held to be a waiver of objections to the sufficiency of the petition and to the absence of an order granting leave to intervene. 32 At the hearing upon a petition of intervention it is customary for the court to determine the right of the petitioner to intervene ; and then, if it decides in his favor in that respect, to refer the case to a master to report upon his right to the other relief which he seeks. But the court may decide the whole case without a reference. 33 If he shows a prima facie case, his application will ordinarily be granted ; al- though the questions concerning his rights in the premises are doubtful. 34 It is the rule in the Eighth Circuit, that where the petition sets up a cause of action maintainable at common law the issue shall be tried by a jury. 35 It has been said that a denial of a petition for leave to intervene in an action at law is res ad judicata against a bill in equity to enjoin the proceed- ings and to permit an intervention ; 36 but that a denial of leave to intervene in a suit in equity is not res adjudicata against an 26 Illinois Steel Co. v. Ramsey, C. New Albany & C. R. Co.. 174 U. S. C. A., 176 Fed. 853. 074, 4:5 L. ed. 1130. 27 Horn v. Pere Marquette R. Co., M Perry v. Godbe, S2 Fed. 141. 151 Fed. 020. SSCentral Tr. Co. v. Madden. 70 28 Interventions in tlie Fedoral Fed. 450. Courts, by Edward C. Eliot. 31 Am. 34 Brinekerhoff v. Holland Trust Law Rev. 377. Co., 140 Fed. 203. 29 Central Tr. Co. v. Wabash, St. 35 Rouse v. Ilornsby, C. C. A., 67 L. & P. Ry. Co.. 46 Fed. 156. Fed. 219. So held in Atkyn v. 30 Mercantile Trust Co. v. Pitts- Wabasli Ry. Co.. 41 Fed. 193, X. D. burg & W. Ry. Co.. C. C. A., 115 Ohio. Fed. 475. 3«McDonald v. Seli-man, 81 Fed. 31 Louisville Tr. Co. v. Louisville 753. 838 INTERVENTIONS. [§ 259 original hill for the same relief. 37 Leave to intervene when granted should be given by order ; 38 but, by proceeding without objection, an omission to enter such an order will be waived. 39 Tn one case, intervening petitions filed without leave were strick- en from the files. 40 Leave has been granted to withdraw an in- tervention, with the pleading of the intervener and the testimony in proceedings in relation to his contention. 41 The filing of a petition of intervention is a voluntary general appearance in the suit, and the petitioner is thereby estopped from claiming that the court has no jurisdiction over him for any purpose or cause which, by proper amendment of the pleadings, can be brought into it. 42 After intervention the new parties are treated to all intents and purposes as if they had been original parties to the suit. 43 They are entitled to the same notice and hearing of subsequent proceedings that must be afforded to an original party. 44 It has been held that bondholders, who inter- vene in a creditors' suit, may enforce a guarantee of their bonds, although the trustee of their mortgage is not made a party. 45 The Equity Rules expressly provide: "The inter- vention shall be in subordination to, and in recognition of, the propriety of the main proceeding." 46 Previously it was held, 37 Credits Commutation Co. v. U. S., 177 U. S. 311, 44 L. ed. 782. See Manhattan Tr. Co. v. Sioux City & N. R. Co.. 102 Fed. 710. 38 For the form of an order see Ex parte Jordan, 94 U. S. 248, 249, 24 L. ed. 123. 39 Myers v. Fenn. 5 Wall. 205, 18 L. ed. 604; French v. Gapen, 105 U. S. 509. 525, 26 L. ed. 951, 956; Ferry v. Godbe, 82 Fed. 141. 40 Continental Trust Co. v. Tole- do. St. Louis & K. C. By. Co.. 82 Fed. 642. 061 ; s. c, 86 Fed. 929, 951. Tn the same case, as Toledo, St. Louis & K. C. Ry. Co. v. Con- tinental Trust Co., C. C. A., 95 Fed. 497. 536. it was said, speaking of an answer and cross-bill filed by a stranger to the suit without per- mission: "He should have sought admission as an independent defend- ant. This he did not do; unless the unauthorized filing of his pleading be regarded as an application for leave to intervene. If so, it was denied him." 41 Vicksburg v. Vicksburg Water- works Co., 202 V. S. 453, 461, 50 L. ed. 1102, 1108. 42 Bowdoin College v. Merritt, 59 Fed. 6; Jack v. D. M. & Ft. D. R. Co., 49 Ta. 627; supra, §§ 169, 170. But see Laughlin v. Leigh, 107 111. App. 476. 43 French v. Gapen, 105 U. S. 509, 525, 26 L. ed. 951, 956. 44 Gay v. Hudson River El. Power Co., C. C. A., 169 Fed. 1020. 45 Pennsylvania Steel Co. v. N. Y. City Ry. Co., C. C. A., 198 Fed. 721, 753. 46 Eq. Rule 37. See Knickerbock- § 259] PRACTICE ON INTERVENTIONS. 830 that, where no collusion was charged, the jurisdiction of the court in equity and its power to appoint a receiver could not be attacked by an intervener after a receiver's appointment. 47 But the court will not decide an independent controversy be- tween an intervenor and an original defendant of which it would have no jurisdiction upon an original bill, unless it re- lates to property in the court's possession. 48 It has been held that an intervening stockholder acquires no greater right in the property than he had before the suit. 49 The stockholder, al- though the holder of preferred stock, who has intervened in a creditor's suit against a corporation, after insolvency has been charged and admitted and a receiver appointed, cannot oppose a dismissal of the bill and a restoration of the property to the company which consents to the same. 50 Where an intervening- petition was filed in a foreclosure suit, asserting a lien superior to that of the mortgage, and the intervenor was found to have no lien; it was held not error to dismiss the petition without awarding him a money judgment. 51 Where the original suit appeared to have been brought by collusion, jurisdiction was re- er Tr. Co. v. Tarrytown. W. P. & M. Ry. Co., 139 App. Div. 305. 47 Cincinnati Equipment Co. v. Degnan, C. C. A., ]84 Fed. 834, where the objection was not raised in the petition of intervention, nor until after property had been sur- rendered to the intervenor under a stipulation. "Where an order per- mitting a lessee to redeem from a foreclosure decree and to be subro- gated to the rights of the mort- gagor complaint was made by the consent of a stockholders' commit- tee, which appeared by counsel, and recited that it was without preju- dice to the right of the mortgagoi or its stockholders to contest the validity of the lease and should not determine such validity, but that no subsequent decree between the par- ties should affect or impair the sub- rogation or the right of the lessee to collect the amount of the decree "in the same manner and with the same rights as the original bond- holders would have had;," it was held that, under the provisions of the order, the stockholders could not in- tervene and attack the decree as well as the lease, because the latter was fraudulent, but that they were limited to a proceeding in some proper forum to hold the lessee lia- ble in damages. U. S. Trust Co. v. Chicago Terminal T. R. Co., C. C. A.. 188 Fed. 292. 48 United El. S. Co. v. Louisville El. L. Co., 68 Fed. 673; Clyde v. Richmond & D. R. Co., 65 Fed. 336. See Olds Wagon Works v. Benedict. C. C. A.. 67 Fed. 1. 49ShafTcr v. Mc( 'ulloch. C. C. A., 192 Fed. 801. BO Shaffer v. McCulloch. C. C. A., 192 Fed. KOI. 51 F. S. Tr. Co. v. Western Con- tract Co., C, C. A.. 81 Fed. 454. 840 INTERVENTIONS. [§ 259 tained over intervening petitioners who asserted claims to property held by a receiver therein appointed. 52 Where, at the time of the intervention, the suit is pending in a State court, the interveners may in a proper case remove it. 53 Unless it expressly reserves their rights, 54 they have the right to appeal from the final decree, and can then object to all interlocutory proceedings taken after their intervention. 55 The final order or decree upon a petition of intervention after the intervention has been granted may be reviewed apart from the appeal from the final decree in the whole cause where it is distinct from the same ; 56 but where the case is one in which the Circuit Court of Appeals has final jurisdiction of an appeal from the decree in the original cause, its decree upon an appeal from the final decree or order upon the intervenor's claim is likewise final, even though a Federal question is involved therein. 57 It has been held that, where the issues have been decided by a jury trial, the review should be by writ of error, 58 but that the denial of a motion to intervene, to oppose an application for the set- off of judgment, is a final order and should be reviewed by an appeal. 59 Where a denial of the right to intervene is a practical denial of all relief to the petitioner, who has no other means of redress, an appeal will lie from an order denying an interven- tion. 60 For example : where a suit is brought by a member of a 52 El. Supply Co. v. Port Bay W. L. & Ry. Co., 84 Fed. 740. 53 Mack v. Chicago & G. S. Ry. Co., 23 Fed. 35G; Jackson & Sharp Co. v. Pearson, 60 Fed. 113. 123; infra, § 384. But see Iowa Home- stead Co. v. Des Moines Xav. & R. Co.. 8 Fed. 9*. 54 Reid v. Judges of Circuit Court of United States for Eastern Dis- trict of Virginia. C. C. A., 175 Fed. 774. 5.5 Ex parte Jordan. 94 U. S. 248, 252, 24 L. ed. 123, 125; Williams v. Morgan. Ill U. S. 684, 28 L. ed. 559. 56 Central Tr. Co. v. Grant Loco- motive Works. I:!.') Q. S. 207. 34 L. ed. 07 : Pennsylvania R. Co. v. Wa- bash, St. L. & P. Rv. Co., 155 U. S. 335, 39 L. ed. 176; Rouse v. Horns- by, 67 Fed. 219; Hanrick v. Patrick. 119 U. S. 156, 30 L. ed. 396. 57 Rouse v. Letcher, 156 U. S. 47, 39 L. ed. 341; Gregory v. Van Ee, 160 U. S. 643, 40 L. ed. 566; Rguse v. Hornsby, 161 U. S. 588, 40 L. ed. 817. 58 Rouse v. Hornsby, C. C. A., 67 Fed. 219. Otherwise it was held where the trial was in another court before the intervention. Shook v. Dozier, C. C. A., 168 Fed. 867. 59 Cathay Trust v. Brooks. C. C. A., 193 Fed. 973. 60 Credits Commutation Co. v. U. S., 91 Fed. 570. 573; s. c, 177 U. S. 311, 44 L. ed. 782; Illinois Steel Co. v. Ramsey, C. C. A.. 176 Fed. 853; U. S. Trust Co. of X. Y. v. Chicago § 259] PRACTICE ON INTERVENTIONS. 841 class, on behalf of the others as well as of himself, any member of that class has the right to appeal £rom an order denying his application for an intervention. 61 So, where there is a fund in court in the course of administration which will be distributed to others unless the intervener's claim is forthwith determined. 62 But otherwise an order denying leave to inter- vene is ordinarily not appealable. 63 Where the right of inter- vention has been allowed by the court, an order striking the petition from the files is the subject of an appeal. 64 It has been held that the proper practice is for the District Court to grant an appeal in every case, leaving the question of the appealabil- ity of the order for the decision of the court of review. 65 It may perhaps be reviewed in an extraordinary case, by an ap- plication to the court of review for a mandamus. 66 A decree in a foreclosure suit, upon the intervention of a receiver for the mortgagor, was held to be binding on all parties to the suit in which he was appointed, including interveners in the same. 67 A paper styled a cross-bill, 68 or which purports to be an original bill, 69 if otherwise correct in form, may be sus- tained as a petition of intervention. A paper improperly styled a petition of intervention may, if it contains the necessary alle- Terminal Transfer R. Co., C. C. A., 188 Fed. 292; Cathay Trust v. Brooks, C. C. A., 193 Fed. 973. 61 rilinois Steel Co. v. Ramsey, C. C. A.. 176 Fed. 853, 803. 62 Credits Commutation Co. v. U. S., C. C. A., 91 Fed. 570, 573, aff'd. 177 U. S, 311, 44 L. ed. 782. 63 Ex parte Cutting. 94 U. S. 14, 24 L. ed. 49; Jones & Laughlin's L'd v. Sands, 79 Fed. 913: Credits Commutation Co. v. U. S., 91 Fed. 570, 573; S. C, 177 U. S. 311. 44 L. ed. 782; Toledo, St. L. & K. C. R. Co. v. Continental Tr. Co., 95 Fed. 497* 53G. Ex parte In the Mat- ter of Leaf Tobacco Board of Trade of the City of Xew York, Petitioner, 222 U. S. 578, 56 L. ed. 3:23. 64 Illinois Steel Co. v. Ramsey, C. C. A., 176 Fed. 653. But see Louis- ville Tr. Co. v. Louisville, X. A. & C. Ry. Co., 174 U. S. 674. 43 L. ed. 1130; Hamlin v. Toledo, St. L. & K. C. Ry. Co.. 36 L.R.A. 826, 78 Fed. 664. See Land Title & Trust Co. v. Tatnall, C. C. A., 132 Fed. 305; and State v. Applebee. C. C. A., 127 Fed. 1. 65 1'. S. v. Phillips, C. C. A.. 107 Fed. 824. 66 Re Metropolitan Railway Re- ceivership. 208 U. S. 90. 52 I-. ed. 403; Fink v. Bay Shore Terminal Co.. C. C. A.. 144 Fed. S37. 67 Atlantic Trusi Co. v. Dana, C. C. A.. 128 Fed. -2(19. 68 French v. Gapen, 105 l". S. 509, 519, 26 L. ed. 9.")1. 954; Gregory v. Pike, 67 Fed. 837 ; Minot v. Mastin, 95 Fed. 7:'.4. 6% Supra, § 172. 842 IXTEK VEX TIOX S. [§ 200 gations, be sustained as a cross-bill. 70 Where relief was granted upon a petition for intervention, which regularly should have been sought by an original bill, since all the parties interested had been brought before the court and had had a hearing, the decree was affirmed. 71 § 260. Rights of intervening complainants. Under ordi- nary circumstances, a person who intervenes as plaintiff will not be allowed to be represented by a different solicitor from the one who represents the original complainant at the time of the former's intervention. 1 The person who brought the suit remains dominiis litis. The court may, however, direct that the intervener be notified in the event of any proposal to dis- pose of the cause, otherwise, than in the usual way at. final hearing of pleadings and proof, in which case an application to allow him to continue the litigation bv his own attorney will be considered. 2 In case of laches bv the attornevs for the original complainant, an intervening plaintiff may be allowed to con- tinue the case by his own attorney. 3 Permission to do this may be conditioned upon his giving security to pay whatever the court may hud to be due the latter as his ratable proportionate share of the expense of the litigation. 4 When the intervening plaintiff moved to bring in a new defendant, to which the orig- inal plaintiff objected, a Xew York court granted the motion, upon condition that the moving party give a bond to indemnify the plaintiff against any costs that such defendant might re- cover. 5 An intervening complainant cannot contest the general ob- ject of the suit. 6 It has been held that, where a creditor delavs his intervention until after a decision in favor of the plaintiff, 70 Central Tr. Co. of N. Y. v. Marietta & X. Ry. Co., 63 Fed. 492. 71 Central of Georgia Ry. Co. v. Paul. 93 Fed. 878. § 200. IBowker v. Haight & Freese Co., 140 Fed. 794; Manning v. .Mercantile Tr. Co., 37 Misc. N. Y. 215. 75 X. Y. Supp. 168. 2 Bowker v. Haight & Freese Co., 140 Fed. 794. 3 Manning v. Mercantile Trust Co.. 37 Misc. (X. Y.) 215, 75 X. Y. Supp. 168; Edwards v. Bay State Gas Co., 120 Fed. 585. 4 Manning v. Mercantile Trust Co., 37 Misc. (X. Y.) 215, 75 X. Y. Supp. 108. 5 Weed v. First Xational Bank, 117 App. Div. (X. Y.) 340. But see Edwards v. Bay State Gas Co.. 120 Fed. 585. 6 Forbes v. Memphis, El. P. & Pac. By. Co., 2 Woods, 323. 324. § 261] KIGI1TS OF IXTEi;VENI.\(J DEFENDANTS. 843 the payment of his claim may be postponed until after those who have conducted the litigation have received full satisfae* tion. 7 § 261. Rights of intervening defendants. In the absence of fraud or collusion. 1 a intervening defendant can ordinarily set up no defense of which the original defendant could b.61 have availed itself. 2 This is so in the case of intervening stockhold- ers, 8 and creditors. 4 An intervener, whether a stockholder or creditor, cannot raise the objections: that the court has no juris- diction; 5 that the defendant corporation, which is a mortgagor, has no legal existence; 6 or, in the case of a creditor's hill, that the complainant has not obtained judgment and execution re- turned unsatisfied; 7 when these have been waived by the orig- inal defendant; nor any other defense which such defendant is estopped from interposing. 8 But a lienor, who intervenes in a foreclosure suit can contest the validity of bonds secured by the mortgage. 9 7 Smith v. Kraft. 11 Biss. 340; Jones v. Davenport, 45 N. J. Eq. 77, S7. Cf. McDermott v. Strong, 4 J. Ch. (N. Y.) 687; Edmiston v. Lyde, 1 Paige (X. Y.), 639, 10 Am. Dec. 454. But see Wilder v. Keeler, 3 Paige (N. Y.), 164. 23 Am. Dec. 781; Strike's Case, 1 Bland (.Md.). 57. § 261. 1 Louisville Trust Co. v. Louisville, New Albany & C. Ry. Co., 174 U. S. 674. 43 Li. ed. 1130; Farmers' Loan & Trust Co. v. To- ledo & S. H. R. Co., 43 Fed. 223. 225; Bartlett v. Gates, US Fetf. 66. 2 Central Trust Co. v. McGeorge, 151 U. S. 129, 38 L. ed. 98; Re Metropolitan Railway Receivership, 208 U. S. 90, 52 L. ed. 403; Powell v. Leicester Mills. 92 Fed. 115. 3 Central Trust Co. v. McGeorge, 151 U. S. 129. 38 L. ed. 98: Dicker- man v. Northern Trust Co.. 176 I . S. 181, 18S. 44 L. ed. 423. 429: I'.ig Creek. G. C. & I. Co. v. Am. L. & Tr. Co., 127 Fed. 625, 633: Forties v. Memphis. El Paso & Pac. Ry. Co., 2 Woods. 323: Fed. Cas. No. 4.926; Land Title & Tr. Co. v. Asphalt Co., 114 Fed. 484. 4 Central Tr. Co. v. McGeorge, 151 l". S. 129, 38 L. ed. 98: Re .Metro- politan Railway Receivership. 208 U. S. 90. 52 L. ed. 403: Horn v. Pere Marquette R. Co., 151 Fed. 625. 5 Central Tr. Co. v. McGeorge, 151 U. S. 129. 38 L. ed. 98; Horn v. Pere Marquette R. Co.. 151 Fed. 626, 633. 6 Continental Tr. Co. v. Toledo, St. L. & K. C. R. Co.. 82 Fed. 642. 7 Re Metropolitan Railway Re- ceivership. -JUS I". S. 90, 52 L. ed. 403; Horn v. Pere Marquette R. Co., 151 Fed. 626, 633; Grand Trunk Ry. Co. v. Central Vt. Ryl Co., 85 Fed. 87. 8 Farmers' L. & Tr. Co. v. Chicago & X. P. R. Co.. 68 Fed. 412: Consul. Rubber Tire Co. v. FinleJ Rubber Tire Co., 119 Fed. 7115. Hut see llnllins v. Krierlicld C. & I. Co.; 150 C. S. 371, 379, 37 L. ed. 1113. 9 Fanner--' Loan & Tr. Co. v. To 844 INTERVENTIONS. [§ 261 Where the mortgagor and the mortgage bondholders have ar- ranged for a sale to a purchaser who agreed to give the stock- holders an interest in the property without extending that privilege to unsecured creditors, the creditors who have no judgments may be allowed to intervene and set the foreclosure sale aside. 10 It has been said : that in a creditor's bill, the inter- vening creditors are not concluded by collateral averments which concede the validity of certain bonds and mortgages affecting the property ; and that they may attack the validity of the same. 11 A stockholder, who has intervened as such in a stock- holders' suit and received a dividend, cannot subsequently re- pudiate his subscription as obtained by fraud and claim, as a creditor, a priority over other stockholders. 12 Under a general creditor's bill, any creditor who intervenes may attack the claim of any other creditor, 13 except, perhaps, that of the complainant. 14 If the complainant prays ;i ] (reference, an intervenor may attack his claim. 15 "When a creditor's suit has been consolidated with a subsequent fore- closure suit, he can attack the mortgage or the right of any bondholder to share in the proceeds of the sale.. 16 A manufacturer, who intervened to defend a patent case brought against one of his customers, was held to be bound by ledo & S. H. R. Co.. 43 Fed. 223, 225; Severens, J.: "In my opinion, the court would assert its dignity with a needlessly high hand if it rejected an application to come in and prevent the same from being the agent of wrong by persons act- ing collusively upon purely artificial reasons." (The final decree was re- versed upon another point S. C, C. G. A., 51 Fed. 338). 10 Louisville T. Co. v. Louisville. N. & C. Ry. Co., 174 U. S. 674. 43 L. ed. 1130. U Continental Trust Co. v. Tole- do. St. L. & K. C. R. Co., 82 Fed. 042. 647. 12 Seminole Securities Co. v. Southern Life Ins. Co.. 182 Fed. 85, 97. 13 Continental Tr. Co. v. Toledo, St. L. & K. C. R. Co., 82 Fed. 642. 647 ; Shewen v. Vanderhorst, 1 Russ. & M. 347; Owens v. Dickerson, Craig & P. 48, 56; YVoodgate v. Field, 2 Hare, 211, 213; Graves v. Wright, 2 Dru. & War. 77, 79. 14 Continental Tr. Co. v. Toledo, St. L. k K. C. R. Co., 82 Fed. 642, 647; Fuller v. Redman, 26 Beav. 614; Briggs v. Wilson, 5 De Gex, M. & G. 12. l^Ogilvie v. Knox Ins. Co., 2 Black. 539, 17 L. ed. 340; Carter v. New Orleans, 19 Fed. 659; Campau v. Detroit Driving Club, 130 Mich. 147. 16 Continental Tr. Co. v. Toledo, St. L. & K. C. Ry. Co., 82 Fed. 642, C47. § 261] EIGHTS OF INTERVENING DEFENDANTS. 845 an estoppel which affected the original defendant. 17 When an intervenor wishes to avail himself of a defense peculiar to him or to assert his individual right before a receiver has been ap- pointed or property is in the custody of the court, the safer practice for him is to file a cross-bill. 18 17 Consolidated Rubber Tire Co. v. " See Bartlett v. Gates, 118 Fed. Finley Rubber Tire Co., 119 Fed. 66. Supra, § 171. 705. * CHAPTER XVIII. INJUNCTIONS. § 262. Definition, classification, and objects of injunc- tions. An injunction is a writ issued from a court of equity com- manding a person to do an act or acts other than the payment to the complainant of a sum of money, or not to do an act or acts specified therein. According to the different aspects from which they are considered, injunctions are classified as judicial writs, and writs remedial; as mandatory and prohibitory: as provi- sional and perpetual; or as common and special. Before de- scribing the different characteristics of each of these classes, it may be well to refer briefly to the different occasions for the issue of the writ. Injunctions may be obtained to enforce a trust or other purely equitable right, to compel obedience to a covenant or other contract affecting land, to compel the obed- ience of corporations to their charters, to prevent a multiplicity of suits, generally to prevent an irreparable injury for which damages at law would be no adequate remedy, and also in cases in which they are expressly authorized by statute. § 263. Injunctions to enforce trusts and other purely equitable rights. As trusts and other purely equitable rights are not recognize*] in courts of law, equity will always inter- fere to protect them by injunction when they are threatened with infringement. 1 On this account an injunction may lie ob- tained to prevent the revelation or use of a secret of manu- facture by a workman who has learned it under an express or implied promise of secrecy, on one to whom such a person has § 26.3. 1 Scott v. Becher, 4 Price, L. ed. 783: Cowles v. Whitman. 10 34(i : hi re Chertsy Market, 6 Trice. Conn. 121. 25 Am. Doc. GO: Bisp- 263; Sloo v. Law, 3 Blatchf. 459: ham's Eq., S '-'>: Kerr on Injunc- Draper v. Davis, 104 U. S. 347. 20 tions, 172. 173. 846 2(U] INJUNCTIONS AGAINST ACTS ULTRA VIBES. 847 disclosed it; 2 and to restrain the publication of lectures, 8 manu- scripts 4 or works of art 5 heard or obtained under an express or implied agreement not to publish or reproduce them. Whether or not the publication of private letters which have no value as literary productions can be restrained at the prayer of their writer, upon the ground that this would be a breach of an im- plied trust, is, under the authorities, an open question. 6 § 264. Injunctions to restrain corporations from violat- ing their charters. The charters of corporations are consid- ered "in the light of contracts made by the legislature on behalf of every person interested in anything to be done under them." 1 On account of the irreparable injury that would otherwise en- sue, and in the case of corporation to whom the State's right of eminent domain is delegated, because they are trustees, 2 the disobedience of a corporation to its charter may be restrained by injunction, at the suit either of the Attorney-General 3 of the State to which it owes its existence, or of any individual who suffers special injury thereby. 4 This rule applies whether the act complained of has been forbidden expressly, or merely by implication as not included within the powers expressly given to the corporation and those which are necessary for their proper 2 Yovatt v. Winyard, 1 Jac. & Walk. 394; Morison v. Moat, 9 Hare, 241; Peabody v. Norfolk, 98 Mass. 452. 9G Am. Doc. 664'. But .see Newbery v. James, 2 Meriv. 446. 3 Abernethy v. Hutchinson, 3 L. J. Ch. 209. 4 Stapleton v. Foreign V. Ass'n, 12 W. R. 976; Scheile v. Brakell, 11 W. R. 796. See, however, Southy v. Sherwood, 2 Meriv. 435. 5 Prince Albert v. Strange, 1 Macn. & G. 25, 42. 6 Woolsey v. Judd, 4 Duer ( N. Y.), 379, and Eyre v. Higbee, 35 Bart). (X*. V.), 502, hold that they can, and Judge Story concurs in this view. Folsom v. Marsh, 2 Story, 100, 109, 110; Story's Eq. Jur., §§ 946-948. But the opposite view is maintained in Gee v. Prit- chard, 2 Swanst. 402; Wetmore v. ScovelL 3 Edw. Ch. (X. Y.) 515; Hoyt v. Mackenzie, 3 Barb. Ch. (X. Y.) 320; Brandreth v. Lance. 8 Paige (X. Y.), 24. 28, 34 Am. Dec. 368. § 264. l Blakemore v. Glamor- ganshire Canal Xav., 1 Myl. & \\. 154, 162. 2 M'Coy V. Chicago. I.. St. L. & C. R. Co., 13 Fed. 3. 3 Atty. Gen. v. Groat X. Ry. Co.. 1 Dr. & Sin. 154; Atty. Gen. V. 35 Wis. 425. But v. I'tica Ins. Co., 2 V.) 371. North Staffordshire Ry. Co.. 3 Sm. & QiS. 283; Colman v. Eastern Counties Ry. Co., 10 Beav. 1. Railroad Cos.. see Atty. Gen. .Johns. Ch. (X. 4 Bostock v. 848 INJUNCTIONS. [§ 264 exercise. 5 "It is," said Lord Elatherley, "a principle of public policy that where Parliament has authorized a company to- raise a large capital for a specified purpose, the privilege con- fers no right upon the company to employ their capital in competition with the general public upon speculations of a dif- ferent character." 6 Injunctions to restrain corporations, pub- lic 7 and private, 8 from wasting their funds, belong to this class. "It is because these companies, being armed with the power of raising large sums of money, if they were allowed to apply their funds to purposes other than those for which they were constituted, might acquire such a preponderating in- fluence and command over some particular branch of trade or commerce, as would enable them to drive the ordinary private trader from the field, and create in their own favor a practical monopoly, whereby the interests of the public would be most seriously injured.'' 9 When the corporation violates its charter by refusing to perform an act thereby expressly or impliedly commanded, it has been held that the Attorney-General can- not compel its obedience by a mandatory injunction, but should in such a case apply for a mandamus. 10 A private individual suing to enjoin a corporation from violating its charter must show some special damage caused to himself by the breach. 11 A shareholder in a company is considered to incur special dam- age by its diverting its funds to other purposes than its charter authorizes, and can obtain an injunction to restrain it from so doing, 12 even, it has been held, if he bought shares in the com- pany for the very object of preventing it; 13 provided that he sues in good faith, and does not act as the mere puppet of a 5 Atty. Gen. v. Great X. Ry. Co., 1 Dr. & Sm. ]54. 6 Cited in Kerr on Injunctions, p. 473. 7 Crampton v. Zabriskie. 101 U, S. 601. 609. 25 L. ed. 1071. supra. § 79; High on Injunctions, 1 4th ed.) §§ 1236-1307. 8 Smith v. Chase & Baker Piano Mf-. Co.. 197 Fed. 466: supra, S I4">: High on Injunctions, (4th ed.) § 1184: 9 Atty. Gen. v. Great X. Ry. Co., 1 Dr. & Sm. 154. 159, 160. 10 Atty. Gen. v. B. & O. J. Ry. Co.. 15 Jur. 1024: People v. Albany & Yt. R. Co., 24 X. Y. 261. 82 Am. Dec. 295. H Chamberlaine v. Chester & B. Ry. Co.. 1 Kxch. 869. 877; Railroad Co. v. Ellcrnmn. 105 V . S. 1(ili. 173, 174. 20 L. ed. 1015. 1017. 1018. !2Colnian v. Eastern Counties Ry. Co., 10 Beav. 1. Supra, § 145: High on Injunctions. (4th ed.) §§ 1224-1229. 13 Colman v. Eastern Counties Ry. Co., 10 Beav. 1: Atty. Gen. v. § 2G4] INJUNCTIONS AGAIXST ACTS ULTKA VIRES. S49 rival corporation; 14 and that the suit is not brought "against the corporation and other parties; founded oil rights which may properly lie asserted by the corporation/" 15 The holder of a lien to secure an indebtedness of a corporation is also, it -.ems. en- titled to an injunction in a similar case. 16 An unsecured creditor cannot bring such a suit. 17 except under very extraor- dinary circumstances. 18 One whose land has been taken from him for the use of a corporation by the exercise of the State's right of eminent domain can obtain an injunction to restrain the use of the land for any other purpose than is allowed by the company's charter,* 9 provided at least that he can show that he is thereby injured. 20 It is, however, no proper ground for complaint by an individual that a corporation by exercising powers not conferred upon it by its charter enters into com- petition with him, and thereby diminishes the profits of his trade or calling. ?1 An English judge has said: "Where a stat- ute prohibits the doing of a particular act affecting the public, no person has a right of action against another merely because he has done the prohibited act. It is incumbent on the party complaining to allege and prove, that the doing of the act pro- hibited has caused him some special damage, some peculiar in- jury, beyond that which he may be Supposed to sustain in com- mon with the rest of the Queen's subjects, by an infringement Great N. Ry. Co., 1 Dr. & Sin. 154; Bloxam v. Met. Ey. Co., L. R. 3 ( li. 337. 14 Forrest a-. Manchester, S. & L. Ry. Co., 4 De G., F. & J. 120: Filder v. London. B. & S. C. Ry. Co., 1 IT. & M. 489; Robson v. Dodds. L. R. 8 Eq. 301 ; Rogers v. Oxford. W. & W. R.y. Co., 2 De G. & J. 662. 15 Eq. Rule 27 ; Hawes v. Oakland, 104 V. S. 450, 20 L. ed. 827. See supra, $$ 70. 145, 156. 16 Bagsli'aw v. Eastern U. Ry. Co., 2 Macn. & C. 380; Herrick v. Orand T. Ey. Co., 7 Up. Can. L. J. 240. And it has been held that such a bondholder need not show that the corporation is not in collusion with Iiim. Mercantile T. Co. V. Texas & R. Ey. Co.. 51 Fed. 520, 530. Fed. Prac. Vol. I.— 54. 17 Syers v. Brighton B. Co., 1 1 L. T. (X. S.) 560; Mills v. Northern Ey. of Buenos Ayres Co., 23 L. T. (X. S.) 710. 18 Evans v. Coventry, 5 De C... M. & G. 011. 19 Bostock v. North S. Ey. Co., 3 Sm. & Giff. 283. 20 £ast & W. India Docks & B. J. Ry. Co. v. Dawes. 11 Hare. 363; Lee v. Milner, 2 Y. & C. 011 ; Ware v. Regents Canal Co.. 3 De-G. & J. 212. 21 Railroad Co. v. Ellennan. 105 I". S. 100. 173. 174. 20 L. ed. 1015, 1017. 1018. Hut see Brady v. South Shore Traction Co., 197 Fed. 609. s;,o INJUNCTIONS. [I 265 of the law. But where the act prohibited is obviously prohib- ited for the protection of a particular party, there it is not neces- sary to allege special damage." 22 § 265. Injunctions to enforce the specific performance of covenants and other contracts affecting land. As no two pieces of land are exactly alike, equity considers that in no case can damages in money be adequate compensation for the breach of a covenant or other contract affecting land. 1 Ac- cordingly, the specific performance of contracts for the pur- chase or sale of land and of covenants affecting the same, will be specifically enforced with the aid of an injunction, when- ever they are mutual, 2 certain, 3 not unconscionable, 4 and their enforcement would be practicable. 5 The rule concerning the en- forcement of covenants affecting land has been thus stated : "If the construction of the instrument be clear and the breach clear, then it is not a question of damage, but the mere circumstance of the breach of covenant affords sufficient ground for the court to interfere by injunction." 6 This is, however, subject to the exception that if it would be against public policy to enforce the covenant, — for* example, if a change of circumstances has rendered it improper to use land in accordance with the terms of a covenant regulating its use, — or if, on account of such a change, the object of the parties to the covenant would not be accomplished by its enforcement, equity will not interfere. 7 22 Pollock, C. B. in Cliamberlaine v. Chester & B. Ry. Co.. 1 Ex- chequer, 869, 877. See Blakemore v. C.lamorganshire Canal Nav., 1 Mylne & Keen, 154, 162. § 265. 1 Adderley v. Dixon, 1 Sim. & Stu. 607; Bispham's Eq., § 375. 2 Dorsey v. Packwood, 12 How. 126, 13 L. ed. 921; Bispham's Eq., § 377. 3 Colson v. Thompson, 2 Wheat. 336. 4 L. ed. 253; Bispham's Eq., § 377. *Surget v. Byers, Hempst. 715; Piouiultree v. McLain, Hempst. 245; Miss. & Mo. R. Co. v. Cromwell. 91 V. S. 643. 23 L. ed. 367; Bispham's Eq., § 376. See Randoph's Ex'r v. Quidnick Co., 135 U. S. 457, 34 L. ed. 200. 5 Ross v. Union Pac. R. Co., 1 Woolw. 26 ; Fallon v. Railroad Co., 1 Dill. 121; Texas & Pac. Ry. Co. v. Marshall, 136 U. S. 393, 34 L. ed. 385; Bispham's Eq., § 377. 6 V. C. Wood in Tipping v. Eck- ersley, 2 K. & J. 264. See also Lord Manners v. Johnson. L. R. 1 Ch. D. 673; Lloyd v. London. C. & D. Ry. Co., 2 De G., J. & S. 568; T. of Columbia College v. Lynch, 70 N. Y. 404. See High on Injunctions, (,4th ed.) § 330. 7 Duke of Bedford v. British Mu- seum, 2 M. & K. 552; Troy & B. 266] TO PREVENT MULTIPLICITY OF SUITS. 851 § 266. Injunctions to prevent a multiplicity of suits. Injunctions are granted in order to prevent a multiplicity of suits under bills of peace. Bills of peace arc bills to restrain a number of persons from endeavoring to enforce in different suits the same or similar claims; * or to prevent a single person from reiterating in several successive suits the same iinsuccess ful claim; 2 or to prevent a person from levying a tax. the pay- ment of which will subject the plaintiff to the hazard of a num- ber of suits from other parties; 3 bills of interpleader 4 and in the nature of interpleader; 5 bills to enjoin a continuing tres- pass, 6 nuisance, 7 infringement of patents, 8 copyrights 9 and trade-marks; 10 and bills to quiet possession. 11 Injunctions to restrain a continuing trespass, nuisance and the infringement of patents, copyrights and trade-marks, are more often said to be granted to prevent irreparable injury, and will, therefore, be considered under that head. An injunction to quiet the pos- session before the hearing formerly issued to restrain the party to whom it was directed from taking forcible possession of lands pending litigation concerning them. It was issued at the request of either a plaintiff or a defendant to a suit, if the ap- R. Co. v. Boston, H. T. & W. Ry. Co., 86 N. Y. 107; Columbia College v. Thacher, 87 X. Y. 311, 41 Am. Rep. 365 ; Leake's Digest of the Law of Contracts, 1152. But see Lloyd v. London, Cli. & D. Ry. Co., 11 Jur. IN. S.J 380. S 266. i Sheffield Water Works v. Yeomans. L. R. 2 CI). App. 8. See Scottish Union, etc. Ins. Co. v. J. H. Hohlmann & Co., 73 Fed. 00; supra, §§ 140, 141. But see Kansas City Southern Ry. Co. v. Quigley. 181Fed. 190. 2 Karl of Bath v. Sherwin, 4 Brown Parliamentary Cases, 373. But see United Cigarette Mach. Co v. Winston Cigarette Mach. Co., C C. A.. ]94 Fed. 947. 3 Cummings v. National Bank. Kil U. S. 153. 157. 25 L. ed. 0113. 904; Pelton v. National Bank, 101 U. S. 143, 148, 25 L. ed. 901, 902; Hills v. Exchange Bank, 105 U. S. 319. 2G L. ed. 1052; supra, § 79. 4 Louisiana State Lottery Co. v. Clark, 10 Fed. 30; s. C, 4 Woods, 169: McLaughlin v. Swann, 18 How. 217. 15 L. ed. 357: City Bank v. Skelton, 2 Blatehf. 14: supra. $ 157. 5Dorn v. Fox. til N. V. 264; supra. § 158. 6 Northern Pac. R. Co. v. Burling- ton & Missouri R. Co.. 2 McCrary, 203: infra, § 275. 7 Woodruff v. North BToomfield <;. M. Co.. 18 Fed. 753. Sec infra. §274. M.S. II. S.. § 4921: supra, § 277. 9 U. S. R. S.,§ 497H: supra, § 1 Hi: infra, § 278. io sl,a\v Stocking Co. v. .Mack. 12 Fed. 7117 : supra. ■* 279. 11 Hughes v. Mordcn College. 1 Yes. Sen. 1SS. See supra, § 82. 852 injunctions. [§ 267 plicant had Lad peaceable possession of the premises for the three years preceding the filing of the bill, and his interest therein had not been determined by forfeiture, surrender, or other lawful means. He was required to swear to these facts in his bill, and according to the practice before Lord Bacon's time to give a bond to the amount of £10 as a security that the information so given was true. 12 Such injunctions were former- ly very common ; but have now fallen into disuse. The last reported instance was in Lord Hardwicke's time. 13 § 267. Injunctions to prevent irreparable injury for which the remedy at law is inadequate; in general. The most ordinary ground upon which an injunction issues, and the one, indeed, which includes all but the first of those previously mentioned, is that, otherwise, the plaintiff would suffer an irreparable injury, for which damages at law would be no adequate remedy. It would be impossible specifically to mention here all the different instances in which an injunction issues for this reason ; but the following is an enumeration of those of more frequent occurrence which have not been pre- viously described. An injunction will issue on account of the inadequacy of the remedy at common law; to stay proceedings in' other courts, either of law, equity, or admiralty ; * to restrain the indorsement or negotiation of notes and bills of exchange, the sale of land, the sailing of a ship, the transfer of stock, or the alienation of a specific chattel ; 2 to restrain the commis- sion of every species of waste or act in the nature of waste ; 3 to suppress the continuance of a public or private nuisance; 4 to prevent a threatened destructive trespass; 5 to prevent the infringement of patents ; 6 to prevent the violation of copyright, whether by printed publications, or theatrical representation, or otherwise ; 7 to prevent the unauthorized use of trade-marks, 8 and the opening of private letters ; 9 to compel the performance or prevent the breach of contracts other than those for the pay- is Eden on Injunctions, ch. xvi, 4 § 271. p. 240. 5 § 272. 13 Hughes v. Morden College, 1 6 § 273. Ves-. Sen. 188. 7§ 274. § 207. 1§ 268. 8§ 275. 2§ 209. 9 § 276. 3 8 270. § 268] AGAINST SUITS. 853 ment of monev onlv: 10 under very extraordinary circumstances, to compel the delivery of personal property wrongfully with- held. 11 to enjoin the revocation of a license permitting a for- eign corporation to do business within the State. 12 An in- junction has been granted to restrain the sale by scalpers of return railroad tickets, which by their terms were not trans- ferable, when the use of such tickets could only be made by fraud ; 13 and to prevent the creation of a cloud on a title. 14 § 268. Injunctions to stay proceedings in other courts. In general. Injunctions to stay proceedings in other courts are of much less frequent occurrence now that discovery and the inspection of documents can be obtained at common law without the aid of equity than they were formerly; but they are still often issued, especially in bankruptcy. 1 Such injunc- tions must not be confounded with writs of prohibition, which are addressed to the judges of a court, whereas injunctions are directed to the parties to the proceedings which it is desired r>> restrain. 2 Ordinarily, when two courts have a concurrent juris- diction over the same thing, whichever court was first possessed of the cause has a right to proceed with the same, and proceed- ings in it will not be prohibited or restrained by another. 3 An injunction against an application for an injunction should not be granted; since the equities of the complainant can be amply protected in the suit sought to be enjoined. 4 It was at first held that a court had no power to restrain a defendant from su- ina - in a foreign court ; 5 but it is now established that it can do 10 § 278. " § 279. 12 Ludwig v. Western Union Tel. Co., 216 U. S. 146, 152. 13 Bitterman v. Louisville & Nash- ville R. R. Co.. 207 U. S. 20.i. 52 L. ed. 171 ; Nashville, C. & St. L. Ry. Co. v. McCnnnell. 82 Fed. 05; sii)>ra, §§ 70, 141. 14 Wilson v. Lanbert, 168 U. S. 611. 42 L. ed. 509. § 268. 1 .McLean v. Lafayette Bank, 3 McLean, 185; In re Schwartz, 14 Fed. 787. 2 See Fden on Injunctions, ch. ii ; Peck v. Jenness, 7 How. 624, 12 L. ed. 846; Dillon v. K. C. S. R. Ry. Co., 43 Fed. 109, 111. 3 Nicholas v. Nicholas, Free, in Ch. 546; Daniell's Ch. Pr. (2d \m. ed.) 1845; supra, §§ 52, 60. But see Erie Ry. Co. v. Ramsey, 45 N. Y. 637. * Robertson v. Montgomery Base- ball Ass'n, 141 Ala. 348, 109 Am. St. Rep. 30, 37 So. 388, 3 Ann. Cas. 965. 5 Love v. Baker, 1 Ch. Cas. i>7. decided by Lord Clarendon; but the reporter added, "scd Quaere, for all the bar was of another opinion." 854 INJUNCTIONS. [§ 269 so, 6 although such a power is exercised with great caution. Where the parties to a suit, and the greater part of the property which is the subject of the litigation, are within the jurisdiction of a court, where a suit affecting the same was first instituted and complete relief can there be afforded ; an injunction against the institution of a suit for the same object, in a foreign juris- diction, may be granted. 7 The Constitution does not forbid a State court from enjoining in a proper case a person within its jurisdiction from prosecuting a suit in a court of another State. 8 An injunction order providing "that all suits and proceedings mi the part of" certain persons "against the said bankrupt, to collect the debt set forth, be, and the same are hereby stayed, to await the determination of the court in bankruptcy on the ques- tion of the discharge therein," was held violated by those who after discontinuing a suit then pending, subsequently instituted another to recover the same claim, with new allegations charg- ing fraud. 9 § 269. Injunctions to stay proceedings in Federal courts. It w T as at first doubted whether a Circuit Court of the United States had the power to enjoin the prosecution of a suit in a Federal court in another Circuit; x although the power to enjoin the prosecution of a suit in another district of the same Circuit was early exercised. 2 It is now settled, however, that a District Court of the United States can, in a proper case, enjoin the prosecution of a suit in any other court of the United States. 3 A manufacturer, who has obtained a decree in his favor, which has been affirmed by the Circuit Court of Appeals in one Cir- 6 Bunbury v. Bunbury, 1 Beav. 318; Portarlington v. Soulby. 3 Myl. & K. 104; Debon v. Foster, 4 Allen (Mass.) 545; Engel v. Scheuermann 40 Ga. 206, 2 Am. Bep. 573; Massie v. Watts, 6 Crancb, 148, 3 L. ed. 181; Cole v. Cunning- bam, 133 U. S. 107, 33 L. ed. 538. 7 United Cigarette Mach. Co. v. Wright, 156 Fed. 244. 8 Vail v. Knapp, 49 Barb. (X. V.i 299; Story's Eq. Jur. §§ 899, '. : Cole v. Cunningham, 133 U. S. 107, 33 L. ed. 538. 9 In the matter of Schwartz, 14 Fed. 787. For the construction of an order forbidding the use of a certain defense, see Wakelee v. Davis, 50 Fed. 522. § 209. iKelley v. Vpsilanti, D. S. Mfg. Co., 44 Fed. 19, 20, per Brown, J. 2 Monumental Say. Ass'n v. Fen- tress, 125 Fed. 812. 3 Kessler v. Eldred, 206 U. S. 285, 51 L. ed. 1065. § 269] AGAINST PKOCEEDINGS IN U. S. COUETS. 855 cuit, can enjoin the complainant, who is defeated, from bringing similar suits based on the same patent against the customers of the former in any Circuit of the United States, 4 or in a foreign country ; 5 even in a Circuit where the Circuit Court of Ap- peals has held under similar facts in favor of the patentee ; 6 a suit previously brought- may be thus enjoined. 7 The same relief may be obtained by a manufacturer, who, although not a party of record to the suit resulting in the adjudication, had filed there a stipulation that it was defending the case. 8 Ordi- narily, suits which have been previously instituted to enjoin the infringement of a patent, will not be enjoined ; the defend- ant being allowed to assert, in such a suit, any equitable defense that he may have ; 9 but when there is a multiplicity of suits, involving the same defenses, the courts in which any of such cases are pending may stay proceedings therein, until the suit between the patentee and the principal infringer is decided. 10 Where some of the defendants set up different defenses, it was held that the court "could not restrain in part and permit in part the prosecution of the cases. It would have no right to issue an injunction which should [sic] have the effect to split up the cases, enjoining their prosecution as to some branches of the controversy and permitting it as to the others," u A bill to enjoin defendant from prosecuting an action at law for an in- fringement cannot be sustained when the only grounds alleged are that complainant will be put to great expense for attorney's fees and other costs, and that he is informed that defendant will be unable to pay the same. 12 The subsequent, commencement 4 Ibid. 5 Goodyear Tire & Rubber Co. v. Rubber Tire Wheel Co., 164 Fed. 869. 6 Kessler v. Eldred, 206 U. S. 285, 51 L. ed. 1065. 7 Kessler v. Eldred, 206 U. S. 285, 286, 51 L. ed. 1065, 1066. 8 Marshall v. Bryant Electric Co., C. C. A., 185 Fed. 499. BKelley v. Ypsilariti D. S. Mfg. Co., 44 Fed. 19; Am. School Furni- ture Co. v. J. M. Sauder Co., 106 Fed. 731 ; Commercial Acetylene Co. v. Avery Portable Lighting Co., 152 Fed. 642; Kryptok Co. v. Stead Lens Co., 190 Fed. 767; Gamewell Fire Alarm Telegraph Co. v. Star Electric Co., 199 Fed. 188. 10 Rumford Chem. Works v. Hec- ker, 5 Off. Gaz. 644; Allis v. Stow- ell, 16 Fed. 783; Nat. Cash Reg. Co. v. Boston Cash I. & R. Co., 41 Fed. 51 ; Commercial Acetylene Co. v. Avery Portable Lighting Co., 152 Fed. 642. n Germain v. Wilgus, C. C. A., 67 Fed. 597. 12 Dyer. J., in Allis v. Stowell, 16 Fed. 783, 790. s.-.G INJUNCTIONS. [§ 270 of suits upon the same patent, against the customers of the orig- inal defendant, may he enjoined pending the suit against the manufacturer in a proper case. 13 It has been held: that in a suit by the Uuited States to vacate a patent for an invention, a preliminary inj miction will not be granted to restrain the prose- cution by the defendant of suits for the infringement of the patent. 14 An injunction in a Federal court in another Circuit, forbidding the collection of a judgment, was followed and held to bind the parties ; but not to prevent the collection by the at- torneys of one of them of so much thereof as they had a lien upon. 15 It has been said: that a Federal court of equity cannot enter a decree directing the entry of a satisfaction of a judg- ment at law in the same court ; since a court on its common-law side has the power to direct such entry. 16 A District Court of the United States cannot enjoin a party to a judgment at com- mon law therein, from suing out a writ of error from the Cir- cuit Court of Appeals to review the same. 17 A State court has no power to stay, by injunction, a proceeding in a court of the United States. 18 § 270. Injunctions to stay proceedings in State courts. The Judicial Code re-enacting a section of the Re- vised Statutes 1 provides that "The writ of injunc- tion shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to procedings in bankruptcy." 2 ''This prohibi- 13 Birdsell v. Hagerstown Agr. Imp. Mfg. Co., 1 Hughes, 64, Fed. (as. No. 1,437; Ide v. Ball Engine Co., 31 Fed. 901; Commercial Ace- tylene Co. v. Avery Portable Light- ing Co., 152 Fed. 642: Lovell-M'Con- nell Mfg. Co. v. Automobile S. Mfg. Co., 193 Fed. 658, 659, 663. " U. S. v. Colgate, 21 Fed. 318. 15 W, A. Chapman & Co. v. Mont- gomery W. P. Co., 127 Fed. 839. iSMacrum v. U. S.. C. C. A., 154 Fed. 653. See Holt v. Dorsey, Fed. Pas. No. 6,647; Medford v. Dorsey, Fed. Cas. Nos. 9,3S9, 9,390. 17 Macrum v. U. S., C. C. A., 154 Fed. 653. 18 McKim v. Voorhies, 7 Cranch, 270. 3 L. ed. 342; Duncan v. Darst, 1 How. 301-306, 11 L. ed. 139, 141; City Bank of N. Y. v. Skelton, 2 Blatcbf. 14: Beardslee v. Ingraliam, 183 N. Y. 411, 3 L.R.A.(N.S.) ]073. § 270. 1 U. S. R. S., § 720. 2Jud. Code. § 265. 36 St. at L. 10S7. See Slaughter House Cases, 10 Wall. 273, 19 L. ed. 915: Haines v. Carpenter. 91 U. S. 254. 23 L. ed. 345: Dial v. Reynolds. 96 U. S. 340, 24 L. ed. 644; Rensselaer & S. § 270] AGAINST PROCEEDINGS EN STATE COURTS. 857 tion of the statute extends to all cases over which the State court first obtains jurisdiction, and applies not only to injunctions aimed at the State court itself, but also to injunctions aimed at parties before the court, its officers or litigants therein." Accordingly a Federal court has refused to enjoin: a railway company from taking possession of land upon the termination of condemnation proceedings in a State court, to which the applicant for the injunction was a party; 4 the plaintiff in a foreclosure suit from selling property under a decree of the State court therein, although the Federal complainant is not a party to such suit, and claims a lien upon such property, which is in the hands of a receiver appointed by such court ; 5 and a town from selling property to pay an assessment the collection of which has ben ordered by a State court direct- ing the laying out of a highway, 6 a State receiver from issuing receiver's certificates ; 7 parties to a suit in a State court from carrying out an agreement sanctioned by it, 8 and an adminis- trator from distributing the estate in his hands. 9 But an in- junction has been granted forbidding an ancillary administrator from receiving any portion of the estate under any order of distribution, by either the local probate court or the court of original probate jurisdiction; although the court refused to enjoin him from removing any part of the estate beyond its jurisdiction. 10 It has been held: that the statute forbids an injunction to stay proceedings, in a suit where the State court has no jurisdiction; at least where no Federal right has been R. Co. v. Bennington & R. R. Co., 18 Fed. 617: M., K. & T. Ry. Co. v. Scott, 13 Fed. 793; s. c, 4 Woods, 386; Hamilton v. Walsh, 23 Fed; 420; Tifft v. Iron Clad Mfg. Co., 10 Blatchf. 48; Yick Wo v. Crowley, 26 Fed. 207; Scruggs & Echols v. Am. Cent. Ins. Co. of St. Louis, C. C. A. 176 Fed. 224; Quinton v. Equitable Iriv. Co., C. C. A., 196 Fed. 314*; Maxwell v. McDaniels, C. C. A.. 184 Fed. 311. 3 Toulniin, D. J., in Whitney v. Wilder, C. C. A., 54 Fed. 554, 555; Chicago Trust & Sav. Bank v. Bentz, C. C. A., 59 Fed. 645. 647. 4 Dillon v. Kansas City S. B. Ry. Co., 43 Fed. 109. 5 Security Trust Co. v. Union Trust Co., 134 Fed. 301. 6Fen\vick Hall Co. v. Old Say- brook, 66 Fed. 389. 7 Reinacb v. Atlantic & C. W. R. Co., 58 Fed. 33. 8 Ibid. 9 Whitney v. Wilder, C. C. A., 54 Fed. 554. 10 Ingersoll v. Coram, 132 Fed. 168; aff'd, Coram v. Ingersoll, C. C. A., 133 Fed. 126. 858 INJUNCTIONS. P 270 invaded. 11 "Where a bill prays an injunction or stay of proceed- ings in a State court, and also other relief which would be use- less without such an injunction, the whole bill will be dismissed on demurrer. 12 A county commissioners' court in Texas, when declaring the result of an election, 13 and a public service commis- sion, 14 were said not to be within the statute. So were held to be officers seizing intoxicating liquors under search and seizure warrants. 15 But where an appeal to a State court had been taken from the decision of a board, and the proceeding re- manded after affirmance with directions to extend the time for the performance of the order, it was held that the proceedings in the State court were not terminated and that no Federal injunction could be granted. 16 The statute forbids an in- junction against the taking of depositions. 17 The statute does not forbid an injunction against the commencement of a criminal, 18 or a civil suit, not already brought. 19 The statute does not forbid a Federal injunction, obtained by a person not a party to a suit in the State court, which enjoins the complain- ant in the latter from committing acts, which, in the State court, he has enjoined a defendant to the Federal suit from prevent- ing. 20 Nor. it has been held, a suit to enjoin a person from setting up a claim to the right to use a railroad switch, which the court has held that he was entitled 'to use, where, since the decision, the corporation has sold the switch to the plaintiff to the injunction suit. 21 It has been held that a Federal court "Senior v. Pierce, 31 Fed. 625, 031; Phelps v. Mut. Pveserve Fund Life Ass'n, C. C. A., 61 L.R.A. 717, 112 Fed. 453. Contra, Southern Ry. Co. v. Simon, 153 Fed. 234. See Mo-pan v. Sturges, 154 U. S. 256, 38 L. ed. 981. 12 Molony v. Massachusetts Loan Ass'n, 53 Fed. 209. 13 August Busch & Co. v. Webb, 122 Fed. 655. 14 Central Vermont Ry. Co. v. Redmond, 189 Fed. 683. 15 Danciger v. Stone, 188 Fed. 510. 16 Central Vermont Ry. Co. v. Redmond, 189 Fed. 6S3. IV Am. Shipbuilding Co. v. Whit- ney, 190 Fed. 109. 18 Infra, § 271; Minneapolis Gen- eral E. Co. v. City of Minneapolis, 194 Fed. 215; Jewel Tea Co. v. Lee's- Summit. Mo., 198 Fed. 532. 19 Texas & Pac. Ry. Co. v. Kute- men, C. C. A., 54 Fed. 547: Laigh- ton v. City of Carthage, Mo., 175 Fed. 145; Western Union Tel. Co. v. Cooper, 182 Fed. 710; Kansas City Gas Co. v. Kansas City, 198- Fed. 500. 20 New York Cotton Exch. v. Hunt. ]44 Fed. 511. 21 Oman v. Bedford-Bowling Green Stone Co., C. C. A., 134 Fed. 64. § 270] AGAINST PKOCEEDINGS IN STATE COURTS. S59 can prevent by injunction the levy by a State sheriff under State process against a State judgment-debtor upon the prop- erty of a stranger to the suit and process; 22 but not the sale by the sheriff of the property of sureties on a sale bond under the execution of a State court; 23 nor ; it seems can it enjoin the sale by the sheriff of property in his possession ami the custodv of the State court 24 although levied upon by the sheriff, but the not in receiver, was enjoined at the suit of sale the the It m of land, hands of a owner, who was not a party to the judgment. 25 has been held that a Federal court may enjoin: the entry upon land, under a title acquired by condemnation proceedings in the State court, when the application for the injunction is made by a person claiming an interest in the land, who was not made a party to those proceedings; 26 the use of a judg- ment of a State court when the validity of the judgment is not thereby impaired; 27 the issue of execution upon a judgment of a State court, entered against a party who was not served with process ; 28 may enjoin a defendant from selling, encum- bering, or in any way disposing of, lands brought at a sheriff's sale ; 29 and from making a wrongful or an inequitable use of an execution on a judgment of a State court; 30 that a Federal court has power to issue an injunction to stay proceedings in a State court which interfere with the enforcement of one of its own judgments, and to stay proceedings which have been instituted or continued after the beginning or removal of the suit in the Federal jurisdiction. 31 "It is now so thoroughly 22 Cropper v. Coburn, 2 Curt. 465. 23 American Ass'n Ld. v. Hurst, 59 Fed. 1. 24 Daly v. Sheriff, 1 Woods, 175, Fed. Cas. No. 3,553 ; Southern Bank & Tr. Co. v. Folsom, C. C. A., 75 Fed. 920; Watson v. Bondurant, 2 Woods, 1GG; Ferry v. Sharpe, 8 Fed. 23; supra, § 52. 25Jiriian v. Central Trust Co ; , C. C. A., 115 Fed. 950. 26 Colorado Eastern R. Co. v. Chi- cago B. & Q. R. Co., C. C. A., 141 Fed. 89S; Sehnltz v. Highland Gpld Mines Co., 158 Fed. 337. 27 Linton v. Mosgrove, ]4 Fed. 543, criticised in Am. Ass'n Ld. v. Hurst, 59 Fed. 1, 4, but sup- ported by Provident L. & Tr. Co. v. Mills, 91 Fed. 435; Lehman v. Graham, C. C. A., 135 Fed. 39, see supra. § 51. 28 Southern Ry. Co. v. Simon. 158 Fed. 234. 29 Massie v. Buck, C. C. A., 128 Fed. 27. See supra, § 51. 30 Linton v. Safe Deposit & Title Guaranty Co., 147 Fed. 824. 31 French v. Hay. 22 Wall. 250, 22 L. ed. 857; Dietzsch v. Huide- 860 IX J UNCTIONS. [§ 270 settled that this provision of law does not apply to proceedings incidental to jurisdiction properly acquired by a Federal court for other purposes than that of enjoining proceedings in a State court, that the proposition needs no discussion." 32 Such an injunction should rarely be issued. 33 It has been held that where property is in the possession of a receiver of a Fed- -ral court, it may enjoin a suit in the State court which at- tempts to establish an easement thereupon, 34 but not an action in personam against the receiver ; 35 that where property has been sold under a decree directing that the purchaser pay all claims against the receiver, the court will enjoin a suit against the purchaser 36 in the State court, but that this rule does not apply where property in the possession of a receiver is returned to the original owners on the same conditions ; 37 that under the act of Congress limiting the liability of the owners of ships, a District Court of the United States may issue a stay-order restraining proceedings previously begun in State courts; 38 koper, 103 U. S. 494, 26 L. ed. 497; Madisbrivilie Traction Co. v. St. Bernard Min. Co., 396 U. S. 239, 49 L. ed. 462; s. c, 130 Fed. 794; Fisk v. Union Pac. R. Co., 10 Blatchf. 518; Sharon v. Terry, 1 L.R.A. 572, 36 Fed. 337; Jesup v. Wabash. St. L. & P. Ry. Co., 44 Fed. 663, 664, 667; Abeel v. Cul- berson, 56 Fed. 329: Baltimore & 0. R. Co. v. Ford. 85 Fed. 170; Bowdoin College v. Merritt, 59 Fed. 86; Central Trust Co. v. St. Louis, A. & T. Ry. Co., 59 Fed. 385; Cen- tral Tr. Co. v. Western X. C. R. Co., 89 Fed. 24: Garner v. Second Nat. Bank, 67 Fed. 833; Fanning v. Osborne, 79 Fed. 657; Stewart v. Wisconsin Cent. Ry. Co., 117 Fed. 7S2: Massie v. Buck, C. C. A., 128 Fed. 27; Miller & Lux v. Rickey. 146 Fed. 574; Gray v. Hudson River El. Power Co.. 382 Fed. 270: Nelson v. Camp. C. C. A.. 191 Fed. 712: supra, § 52: infra, §§ 2S4, 313. But an injunction was refused where, although a petition for re- moval with a bond had been filed in the State court, no action had been taken upon them and no copy of the record had been filed in the Federal court. Coeur A'Alene Ry. & Nav. Co. v. Spalding, C. C. A., 93 Fed. 280. See Missouri. K. & T. Ry. Co. v. Scott, 13 Fed. 793. 32 Gregory v. Pike, 67 Fed. 835, 836, per Putnam, J. 33 Frishman v. Insurance Co., 41 Fed. 449; Sinclair v. Pierce, 50 Fed. 851. 34 Holmes v. Dowie, C. C. A., 177 Fed. 182. 35 Smith v. Jones Lumber & Mer- cantile Co., 200 Fed. 647. 36 Jesup v. Wahashj St. L. & P. Ry. Co., 44 Fed. 603. 664. 667; Cen- tral Tr. Co. v. St. Louis, A. & T. Ry. Co., 59 Fed. 3S5. See § 394, infra. 37 Texas & Pac. Ry. Co. v. John- son. 151 V. S. 81, 38 L. ed. 81. 38 in re Long Island, X. S. P. «fe 271] AGAINST CRIMINAL PBOCEEDIJCTGS. 80 1 that when a creditor of a corporation has begun proceedings in a Federal court to enforce his claim against the corporation, the defendant corporation may be enjoined "from taking pro- ceedings for its own dissolution, or for the appointment of a receiver of its effects, or for the distribution thereof among its stockholders and any other persons, and from making any distribution or transfer of any of its effects." 39 Where suits were pending in the State and Federal courts by the same plain- tiff against several insurers, whose liability was proportionate to the amount the insurance of each bore to the whole loss, and the same defenses had been interposed on behalf of all, -it was held: a Federal court could not grant an injunction to restrain the actions in the State courts, as well as those in the Federal courts, upon a bill seeking an adjustment of their lia- bility in a single suit. 40 It has been held that a judge of a Cir- cuit or District Court has no power to enjoin the enforcement of a judgment in a State court after an appeal to the Supreme Court of the United States and a supersedeas;* 1 and that can only be done if at all, by a Justice of the Supreme Court, 42 The proper remedy is a contempt proceeding. 43 § 271. Injunctions against criminal proceedings. As a general rule, a court of equity cannot grant an in- junction to forbid the prosecution in any court, State or Federal, of criminal proceedings, whether then pending. 1 or subsequently begun; 2 nor against a removal from F. T. Co.. 5 Fed. 599. See Provi- dence & X. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 378, GOO, 27 L. ed. 1038, 104(i. 33 Fisk v. Railroad Co., 10 Blatchf. 518. But see Kessler v. Continental C. & I. Co., 42 Fed. 258. 40 Rochester German Ins. Co. v. Schmidt, C. ('. A., 175 Fed. 720: reversing 3 26 Fed. 998. 41 Murray v. Overstoltz, 8 Fed. ]]0. . * 42 Ibid. 43 Re McKenzie, 180 U. S. 536, 45 L. ed. 057; infra, § 428. § 271. 1 Lord Montague v. Dud- man, 2 Yes. Sr. ■">'";•. In re Sawyer, 124 U. S. 200, 31 L. ed. 402; Hark- rader v. Wadley, 172 U. S. 148, 169, 43 L. ed. 399, 406; Fitts v. McGhee, 172 U. S. 516, 517, 43 L. ed. 535. 536; Davis v. American Society tor the Prevention of Cruelty to Ani- mals. 75 X. Y. 362: City of Bairi- bridge v. Reynolds (Georgia), 36 S. E. 935. 2 llarkra.ler v. Wadleyj 172 V. S. lis. 169, 4:; I., ed. 399. 406; Fitts v. kcGhee, 172 l\ S. 516, 517. 43 ].. cd. 5:;.">. 536; Davis v. American Society for the Prevention of Cruel- ty to Animals, 75 X. V. 362; City of Bainbridge v. I!< \ nolds, 11 Georgia, 758, 36 s. E. 935. 862 INJUNCTIONS. [§ 271 office, State 3 or Federal. 4 The present rule of the Fed- eral courts upon the subject is, that, when a criminal indict- ment or criminal proceeding is brought to enforce an alleged unconstitutional statute, which is the subject matter of inquiry in a suit already pending in a Federal court; the latter court, having first obtained jurisdiction over the subject-matter, has the right, even in a criminal case, to hold and maintain such jurisdiction, to the exclusion of all other courts, until its duty is fully performed; and that it may enjoin the State Attorney General, or other prosecuting officer, from instituting a criminal proceeding in such a case, especially when the injunction is necessary to prevent irreparable injury to the complainant's business or property ; but that it cannot enjoin any investigation or action by a grand jury, nor restrain a State court from act- ing in any case brought before it, either of a civil or criminal nature. 5 The same rule applies to criminal proceedings insti- tuted under an invalid municipal ordinance. 6 It has been held : that where no irreparable injury is shown, an injunction may Issue against proceedings to impose a fine for the non-payment of a tax, in order to prevent a multiplicity of suits. 7 "A court of equity has no general power to enjoin or stay criminal proceedings unless they are instituted by a party to a suit already pending before it, and to try the same right that is in issue there, or to prohibit the invasion of the rights of prop- 3Tn re Sawyer, 124 U. S. 200, 3] L. ed. 402; People ex rel. Corscad- den v. Howe, 177 N. Y. 499. 4 White v. Berry. 171 U. S. 3GG, 43 L. ed. 199; White v. Butler, 171 U. S. 379, 43 L. ed. 204. 5 McNeill v. Southern By. Co., 202 XL S. 543, 50 L. ed. 1142; Missis- sippi Railroad Commission v. Illi- nois Cent. R. B. Co., 203 U. S. 335, 51 L. ed. 209; Ex parte Young, 209 U. S. 123, 161-163, 52 L. ed. 714, 729. 730; Hunter v. Wood, 209 U. s. 205, 52 L. ed. 747. See also Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819; Dobbins v. Los Angeles, 195 U. S. 223, 49 L. ed. 169; Pabst Brewing Co. v. Crenshaw, 120 Fed. 144. See § 105, supra. s Dobbins v. Los Angeles. 195 U. S. 223. 241, 49 L. ed. 169, 177; Hutchinson v. Beckham, C. C. A., 118 Fed. 399; Palatka Water Works v. Palatka, 127 Fed. 161; Glucose Refining Co. v. Chicago, 138 Fed. 209. See §§ 25, 105, supra. In- junctions were granted when the enforcement of the ordinance tended to destroy plaintiff's business. Jew- el Tea Co. v. Lee's Summit, Mo., 198 Fed. 532. Contra. Christian Moerlein Brewing Co. v. Hill, 166 Fed. 140; Moss & Co. v. McCarthy, 191 Fed. 202, a bucket-shop case. 7 Chicago v. Collins, 175 111. 445, 49 L.R.A. 40S, 67 Am. St. Rep. 224. But see supra, §§ 11, 12. § 272] AGAINST TRANSFER OF TROPERTY. 863 erty by the enforcement of an unconstitutional law." 8 "This court," said Lord Hardwicke, speaking of the Court of Chan- cery, "has no jurisdiction to stay proceedings on a mandamus; nor to an indictment; nor to an information; nor to a writ of prohibition, that I know of." 9 But it has been held that a Federal court may enjoin a State officer from an act, although an application is then pending for a mandamus to compel him to perform it, and it was said that the injunction would be a defense to the mandamus proceeding. 10 § 272. Injunctions to restrain the alienation of property. Injunctions may be obtained to prevent the alienation of prop- erty "where it would work irremediable or gross injustice." * An injunction will, therefore, issue to prevent the transfer of notes, bills of exchange, and other documents, whether nego- tiable or not, whose possession gives their holder a presumptive title to the rights which they evidence, 2 when obtained from the plaintiff by the defendant through duress, fraud, or other in- iquity ; or when forged ; 3 or when, though the holder may have properly obtained them, he threatens or is about to use them in an inequitable manner. 4 To restrain a receiver of a national bank, pending a determination of a preferential claim to a fund, from transmitting the same to the treasurer of the United States ; whence it could not be recovered by compulsory process. 5 An injunction may be granted to prevent a party from making vexatious alienations of land pending a suit concerning the title to the same. 6 For it was said that, otherwise, the plaintiff might be put to the expense of making each vendee or grantor a party to the proceedings; and, at all events, his title, if he prevails in the suit, may be embarrassed bv the new outstanding; claims of 8 Brown, J., in Davis & Farnum kins, 2 J. & W. 390: Schermerhorn Mfg. Co. v. Los Angeles, 189 U. S. v. L'Espenasse, 2 Dall. 360, 1 L. ed. 207, 217, 47 L. ed. 778, 780. 415. 9 Lord Monta«ue v. Dudham, 2 3 Esdaile v. LaXauze, 1 Y. & C. Vesey Sr. 396, 398. 394 10 Bank of Kentucky v. Stone, 88 4 Anon.. 6 Madd. 10. Fed. 383, 398. 5 American Can Co. v. Williams, § 272. l Story's Eq. Jur., § 953. C. C. A.. 149 Fed. 200. 20sborn v. I'. S. Bank. 9 Wheat. 6 Daly v. Kelly. 4 Dow. 417; 738. 845, 6 L. ed. 2t v. East Coast Cedar Co., C. C. A., 113 Fed. 742. § 274. 1 Fishmongers' Co. v. East India Co., 1 Dick. 103 •. Atty. Gen. v. Xichol, 16 Ves. 338, 343. 2Daniell's Ch. Pr. (2d Am. ed.) 1857. 866 injunctions. [§274 nuisance is of very ancient date. 3 It was applicable in England, both to nuisances strictly so called and to purprestures. "By purprestwe is meant, in its present acceptation, an encroach- ment upon the Crown, either upon part of the demesne lands, or upon the high roads, rivers, ports, or streets ; and the differ- ence betwen purprestures and nuisances consists in this, that where the jus privatum of the Crown is invaded it is a purpres- ture, but where the jus publicum is violated it is a nuisance. In cases of purpresture the remedy is either by information for an intrusion at the common law, or by information in equity at the suit of the attorney-general. The consequence of a judg- ment at common law being the abatement of the erection or grievance complained of, whether it is or is not a nuisance, whilst upon an information in equity, where the trespass does not produce any public injury, the court may direct an inquiry whether it is most beneficial to the Crown to abate the purpres- ture, or to suffer the erection to remain and be assessed as a part of the legal revenue." 4 Cases of public nuisance may be enjoined at the suit of the attorney-general, who in England sues by information. 5 It has been held that the United States may sue to enjoin acts in pursuance of an unlawful conspiracy forcibly to obstruct interstate commerce and the transport of the mails; 6 and to enjoin a nuisance which threatens injury to works in aid of commerce constructed under the authority of the national government. 7 A public nuisance may be restrained at the suit of any who have suffered by it special damage dis- tinct from that which it causes to the public at large ; but not otherwise. 8 A bill, for example, may be filed by a State to en- join the erection of a bridge across a navigable stream which 3 Ibid. 7 U. S. v. Miss. & R. R. Boom Co., 4Daniell's Ch. Pr. (2d Am. ed.) 3 Fed. 548; s. c, 1 McCrary, 601. 1857, citing Atty. Gen. v. Richards, 8 Baines v. Baker, Amb. 158; 2 Anst. 603: Atty. Gen. v. Johnson, Miss. & Mo. R. Co. v. Ward, 2 2 J. WiL 87. See also U. S. v. Black. 4S5. 17 L. ed. 311; George- Gear, 3 How. 120, 11 L. ed. 523. town v. Alexandria Canal Co., 12 5Daniell's Ch. Pr. (2d Am. ed.) Pet. 91, 9 L. ed. 1012; Irwin v. 1S58. Dixion, 9 How. 10, 13 L. ed. 25; 6 In re Debs. 158 U. S. 581, 39 L. Spooner v. McConnell, 1 McLean, ed. 1101; In re Lennon, 166 U. S. 337: Works v. Junction R. Co., 5 548, 41 L. ed. 1110. McLean, 425. § 274] TO PREVENT NUISANCE. > ' •■ T will injure her commerce; 9 but not by a city for a similar reason, 10 unless its property, for example, a wharf, is thereby injured. 11 A private nuisance is an act, or series of acts, un- accompanied by an act of trespass, which causes a substantial injury to a person's property, health, or comfort. Tt will always be restrained when it would otherwise cause an irre- parable injury or a multiplicity of suits. 12 It includes the blocking of the entrance to a railroad station by hackmen, 13 or of a railroad siding by wagons. 14 "It used to be thought, that if a man knew there was a nuisance, and went and lived near it, he could not recover, because, it was said, it is he that goes to the nuisance, and not the nuisance to him. This, however, is not the law now.' 15 Formerly, an injunction was rarely issued to restrain a nuisance until the plaintiff's right of action had been established at law ; "but now a suit at law is no longer a necessary preliminary, and the right to an injunction, in a proper case, in England and most of the States, is just as fixed and certain as the right to any other provisional remedy." 16 Formerly, it was a fundamental objection to an order for an injunction to restrain a nuisance to land when the legal title was disputed, that the order contained no provision for putting the question in a course of legal investigation. 17 9 Pennsylvania v. W. & B. B. Co., 13 How. 518, 14 L. ed. 249. 10 Georgetown v. Alexandria Ca- nal Co., 12 Pet. 91, 9 L. ed. 1012. USt. Louis v. Knapp Co., 104 U. S. 658, 26 L. ed. 883. A rail- road company cannot have an in- junction against the keeping of a saloon where its workmen buy li- quors. Northern Pac. R. Co. v. Whalen, 149 U. S. 157, 37 L. ed. 686. I2 0sburne v. Barter & Goddins, anno. 26 Eliz., Choyce Cas. in Ch. (ed. of* 1870), p. 176; Parker v. YVinnipbeogee Lake C. & W. Co., 2 Black, 545, 17 L. ed. 333; Woodruff v. North Bloom field G. M. Co., 18 Fed. 753; St. Helen's S. Co. v. Tip- ping, 11 H. L. C. 642. 13 Donovan v. Pennsylvania Co., 199 U. S. 279, 50 L. ed. 192. 14 Robinson v. Baltimore & O. R. Co., C. C. A., 129 Fed. 753. 15 Byles, J., in Hole v. Barlow. 4 C. B. (N. S.) 334. See St. Helen's S. Co. v. Tipping, 11 H. L. C. 642 : . Campbell v. Seaman, 63 N. Y. 568, 20 Am. Rep. 567. 16 Judge Earl in Campbell v. Sea- man, 63 N. Y. 568, 582. See, how- ever, Irwin v. Dixion, 9 How. 10, 13 L. ed. 25; Murtagh v. Philadel- phia, 1 Weekly Notes of Cases, 37. But see McBride v. Board of Com'rs of Pierce County, 44 Fed. 17. 17 Harman v. Jones, Cr. & Ph. 299; Sanxter v. Foster, Cr. & Ph. 302. SOS INJUNCTIONS. [J 275 § 275. Injunctions to restrain trespass. Injunctions to restrain trespass are of comparatively recent origin. The first that is to be found in the books was granted by Lord Thur- low. 1 They are only granted when the trespass is destructive or continuous. The rule upon the subject has been thus stated by Vice-Chancellor Kindersley: "Where, therefore, the plain- tiff is in possession and the person doing the acts complained of is an utter stranger, not claiming under color of right, the tendency of the court is not to grant an injunction, \mless there are special circumstances, but to leave the plaintiff to his remedy at law; though, where the acts tend to the destruction of the estate, the court will grant it. 2 But where the party in possession seeks to restrain one who claims by adverse title, then the tendency will be to grant the injunction, at least where the acts done either did or might tend to the destruction of the estate." 3 The destruction of credit by an illegal seizure of one's stock in trade, 4 and the injury to a farm done by the illegal taking of all the stock and tools upon it, have been held instances of such irreparable injury. 5 An attempt by a rail- road company to build its road upon private property without payment of compensation, may be thus prevented. 6 It is not § 275. 1 Flamang's Case, cited by Lord Eldon in Hanson v. Gar- diner, 7 Ves. 305. For injunctions against the collection of an illegal tax. see supra, § 79. 2 See Jerome v. Ross, 7 J. Ch. (X. Y.) 315; Troy & B. E. Co. v. Boston, H. T. & W. Ry. Co., 80 X. Y. 107: Van Xorden v. Morton, Oil U. S. 378, 25 L. ed. 453; Erhart v. Boaro, 113 U. S. 537, 28 L.. ed. 1110; St. Louis M. & M. Co. v. Mon- tana M. Co., 58 Fed. 129. 3 Lowndes v. Bettle, 33 L. J. Ch, 4GL An injunction may be granted against the cutting and removal of growing trees regardless of the solv- ency of the defendant. Bettes v. Brower. 184 Fed. 342. Where an electric railway company was de- stroying, by its return current, the pipes of a water company by elec- trolysis; it was held that the court had no power to enjoin the use by the former of any particular system of circuit or negative return, al- though it might be shown that the system in use necessarily resulted in the injury of which complaint was made, but that all which the court could do was to restrain the continuance of the injury, leaving the motions to be adopted to pre- vent the same entirely to the discre- tion of the defendant. Teoria Wa; terworks Co. v. Peoria Ry. Co., 181 Fed. 990. See High on Injunctions, (4th ed.) §§ G97-722b. 4 Watson v. Sutherland,. 5 Wall. 74, 18 L, ed. 580; fropper v. Co- burn. 2 Curt. 40.5: North v. Peters, 138 !". S. 271, 34 L. ed. 936. 5 Breeden v. Lee, 2 Hughes, 484. 6X. P. R. Co. v. Burlington & M. § 275] AGAIN ST TRESPASS. t>.;u certain, whether the fact that a person who threatens to commit a wrong is insolvent and unable to pay any damages which could be recovered at law, is in itself a sufficient ground for the interference of equity by injunction ; but the weight of authority seems to hold that it is. 7 It was held, where there was a dispute as to the possession and as to right to the pos- session of a railroad track, that the court would not interfere by injunction to assist in "a scramble for possession." 8 A number of cases decided in the courts of different States hold that an injunction cannot be obtained to restrain an illegal arrest; since it is said that the writ of habeas corpus followed by an action for damages always affords an adequate remedy for any injury resulting therefrom; 9 but if the result of the arrests would be an irreparable injury to the business of the complainant, an injunction might perhaps be issued. 10 In one case the court directed: that an injunction to restrain trespass R. Co., 2 McCrary, 203 : s. a, 4 Fed. 298. See also Mo. K. & T. Ry. Co. v. T. & St. L. Ry. Co., 10 Fed. 497. But see D. M. Osborne Co. v. Mo. Pac. R. Co., 347 U. S. 248, 37 L. ed. 155; Burlington G. L. Co. v. Burlington. C. R. & N. Co., 165 U. S. 370, 41 L. ed. 749. ' Connolly v. Belt, 5 Craneh C. C. 405; M'Elroy v. Kansas City, 21 Fed. 257, 262; Coeur d'Alene Cons. & Mining Co. v. Miners' Union of Wardner, 19 L.R.A. 382, 51 Fed. 260; Agar v. Regent's Canal Co., c*ited in 1 Swanst. 250: Mnsselman v. Marquis, 1 Bush (Ky.) 463, 89 Am. Dec. 637: Hicks v. Compton, 18 Cal. 200; Britton v. Hill. ]2 C. E. Green (N. J.), 389; Lloyd v. Heath, Busb. Eq. (N. C.) 39: Cause v. Per- kins, 3 Jones' Eq. ( X. C.) 177, 69 Am. Dec. 728; dies. & O. R. Co. v. Patton, 5 W. Va. 234: Bisham's Eq., § 436;. Caro v. Met. El. Ry. Co.. 46 N. Y. Super. Ct. 138. Contra, Heil- man v. Union Canal Co., 37 Pa. St. 100; Thompson v. Williams, 1 Jones' Eq. (N. C.) 176; Nessle v. Reese, 19 Abb. Pr. (X. Y.) 240; High on Injunctions. § 18. 8 St. Louis, K. C. & C. Ry. Co. v. Dewees, 23 Fed. 691. See Latham v. Northern Pac. R. Co., 45 Fed. 721. 9 Cohen v. Com'rs of Goldsboro, 77 N. C. 2; Burnett v. Craig. 30 Ala. 135. 68 Am. Dec. 115; Butch v. Cavanaugh, 12 Abb. Pr. (X. S.) (X. Y.) 410: Davis v. Am. Soc. for P. of C. to A., 6 Daly (X. Y.), SI ; s. c, on appeal, .75 X. Y. 362. See also Yick Wo v. Crowley, 26 Fed. 207: Electric X. & M. T. Co.. 7a Fed. 698: Bums v. McAdoo, 113 App. Div. 165; Eden Musee Am. Co. v. Bingham, 325 App. Div. 780. 10 Dobbins v. Los Angeles. 195 U. S. 223. 4!) L. ed. 169; Ex parte Young. 209 U. S. 123. 52 L. ed. 714; Hunter v. Wood. 209 U. S. 205, 52 L. ed. 747: Louisiana S. L. Co. v. Kit/.patrick. 3 Woods, 222; Dins- more v. New York B. of P., 12 Abb. X. Cas. (X. V.) 4:;ti: Manhattan I. W. Co. v. l-reiuli. 12 Abb. N. Cas. (N. Y.) 446; supra, § 79. 870 INJUNCTIONS. [§ 276 be dissolved, unless an action of ejectment to try a claim of title by a defendant in possession is begun within ten days, and unless issues raised by defendants are framed for trial by jury within twenty days. 11 § 276. Injunctions against strikers. Injunctions have been granted forbidding strikers from trespass 1 * and acts of violence* against their employer's property; and from acts of violence, 3 or express or implied threats of violence, 4 against persons employed to take their places ; and even forbidding the gathering or marching in procession upon the highway near the employer's premises. 5 The weight of authority denies the right to grant injunctions against picketing, by stationing watchers outside to request travelers on the highway not to buy of the employer or not to enter his service. 6 A few extraordinary " N. J. & N. C. Land & Lumber Co. v. Gardner-Lacy Lumber Co., 113 Fed. 395. § 276. 1 Illinois Cent. R. Co. v. International Ass'n. of Machinists, 190 Fed. 910. 2 Consol. S. & W. Co. v. Murray, 80 Fed. 811 ; Gulf Bag Co. v. Sutt- ner, 124 Fed. 467. 3 Consol. S. & W. Co. v. Murray, 80 Fed. 811; Hamilton-Brown Shoe Co. v. Saxey, 131 Mo. 212, 52 Am. St. Rep. 622; s. C, 32 S. W. 1106; Am. S. & W. Co. v. Wire Drawers' & D. M. Unions. 90 Fed. 608; Springfield S. Co. v. Riley, L. R. 6 Eq. 551 ; Southern Ry. Co. v. Ma- chinists' Local Union, 111 Fed. 49; Reinecke Coal Min. Co. v. Wood, 112 Fed. 477: Atchison. T. & S. F. Ry. Co. v. Gee, 140 Fed. 153: Master Horseshoers' Protective Ass'n v. Quinlivan. 83 App. Div. (X. Y.), 45!). But see Richter v. Journey- men T. Union. 24 Ohio L. Bull. 189. 4 Ibid.; Goldfield Consol. Mines Co. v. Goldfield Miners' Union No. 220, 159 Fed. 500; Aluminum Cast- ings Co. v. Local No. 84 of Inter- national Molders' Union of North America, 197 Fed. 221. See High on "Injunctions," § 1415d. 5Mackall v. Ratchford, 82 Fed. 41: Consol. S. & W. Co. v. Murray, SO Fed. 811; Am. S. & W. Co. v. Wire Drawers' & D. M. Unions, 90 Fed. 608; Sherry v. Perkins, 147 Mass. 212, 9 Am. St. Rep. 689; Bruce Bros. v. Evans, 5 Pa. Co. Ct. R. 163; Goldfield Consol. Mines Co. v. Goldfield Miners' Union No. 220, 159 Fed. 500; Aluminum Castings Co. v. Local No. 84 of International Molders' Union of North America, 197 Fed. 221. 6 Pope Motor Car Co. v. Keegan, 150 Fed. 148; Allis-Chalmers Cd. v. Iron Moulder's Union No. 125, C. C. A., 166 Fed. 45, modifying 150 Fed. 155: Atkins v. W. & A. Fletch- er Co., 65 N. J. Eq. 658, 55 Atl. 1074; W. & A. Fletcher Co. v. In- ternational Association of Machin- ists, N. J. Eq. 55 Atl. 1077 ; cf. Charnock v. Court, [1899] 2 Ch. 35; Trollupe v. London B. T. Fed'n, 72 Law Times, 342; Lyons v. Wilkins. [1899] 1 Ch. 255. Contra, Vegelahn v. Gunther, 167 Mass. 92, 35 L.R.A. 722, 57 Am. St. Rep. 443; s. c, 44 § 276] AGAINST STItlKEKS. 871 decisions have gone so far as to enjoin striking 7 and boycott- ing. 8 It has been held that a court should not enjoin laborers from striking nor from advising other laborers to join in a N. E. 1077, with a strong dissent by Field, C. J., and Holmes, J.; Am. S. & W. Co. v. Wire Drawers' & D. M. Unions, 90 Fed. 608; Southern Ry. Co. v. Machinists' Local Union, 111 Fed. 49; Union Pac. R. Co. v. Ruef, 120 Fed. 102, 129; Knudson v. Benn, 123 Fed. 636; Goldberg, Bowen & Co. v. Stablemans' Union, 8 L.R.A.(N.S.) 460, 117 Am. St. Rep. 145, 86 Pac. 806. See Allen v. Flood, [1898] Appeal Cases, 1. High on "Injunctions," § 1415c. ''In- terference by Combinations of Labor with Employer's Business" by Geoff- rey Konta of the New York bar in Columbia Law Rev., X., p. 652. 7 Farmers' L. & Tr. Co. v. N. Pac. R. Co., 25 L.R.A. 414, note, 4 Inters, Com. Rep. 774, note 60 Fed. 803, per Jenkins, J., reversed in Arthur v. Oakes, C. C. A., 03 Fed. 310. In Delaware L. & W. P. Co. v. Switch- ers' Union, 51 Fed. 260; Wabash R. Co. v. Hannahan, 121 Fed. 563, pre- liminary injunctions to this effect were dissolved. But see § 283, in- fra, Cf. In re Lennoon, 166 U. S. 548, 41 L. ed. 1110; U. S. v. Cassidy, 67 Fed. 698; U. S. v. Weber, 114 Fed. 950, where the strikers were employees of a receiv- er; Pickett v. Walsh 1 , 6 L.RA. (N.S.) 1067, 116 Am. St. Rep. 272, 78 N. E. 753, 7 Ann. Cas. 638; In- fra, § 311. That an injunction should not issue against a strike was held in Aluminum Castings Co. v. Local No. 84, I. M. U., 197 Fed. 221. 8 Casey v. Cincinnati Typ. Union. 45 Fed. 135; Thomas v. Cincinnati, N. O. & T. Ry. Co., 62 Fed. 803; Oxley Stave Co. v. Coopers' I. Union, C. C. A., 72 Fed. 695; s. c, Hopkins v. Oxley Stave Co., 83 Fed. 912, Caldwell, J., dissenting; Barr v. Es- sex Trades Council. 53 N. J. Eq. 101; s. c, 30 Atl. 881; Beck v. Ry. Teamsters' Pr. Union, 118 Mich. 497 ; S. c, 43 L.R.A. 406, with note ; Carroll v. Ches. & O. Coal Agency Co., C. C. A., 124 Fed. 305; S. c, as Ches. & O. Coal Agency Co. v. Fire Creek C. & C. Co., 119 Fed. 942: Loewe v. California State Federa- tion of Labor, 139 Fed. 71 ; Huttig Sash & Door Co. v. Fuelle, 143 Fed. 363; Seattle Brewing & Malting Co. v. Hansen, 144 Fed. 1011; Jensen v. Cooks' & Waiters' Union of Seattle (Wash. 1905), 81 Pac. 1069. Cf. Hagan v. Blindell, C. C. A., 56 Fed. 696; Arthur v. Oakes. C. C. A., 03 Fed. 310: Elder v. Whitesides, 72 Fed. 724; Davis v. Zimmerman, 91 Hun (N. Y.), 489; Sinsheimer v. United G. W. of Am., 77 Hun (X. Y.), 215; U 4 S. v. Cassidy, 67 Fed. 698; Graham v. St. Charles St. R. Co., 47 La. Ann. 215: Quinn v. Lea- thern [1901], Appeal Cases. 495; Am. Law Review, Nov. 1899. See Loewe v. Law] or, 208 U. S. 274. 52 L. ed. 488. Contra. Cray v. Building Trades Council, 91 Minn. 171. 03 L.i;.A. 753, 103 Am. St. Rep. 477. !)7 X. W. 633. 1 Ann. Cas. 172: Nat. Protective Ass'n v. dimming, 53 App. Div. (N. Y.) 227: Marx & ITaas Jeans Clothing Co. v. Watson (Mo), 56 L.R.A. 951. Cf. Reynolds v. Everett. 144 X. Y. 1S9: Allen v. Flood, [1898] Appeal Cases, 1; Mo gul S. S. Co. v. McGregor, 23 < v >. B. D. 598; s. c. [1892] Appeal Cases, 25: Maver v. Journeymen S. C. S72 INJUNCTIONS. [§ 276 strike ; 9 but that it may enjoin them from combining to quit work in order to cripple their employer's property and embarrass his business ; 10 and from refusing to handle or operate cars while remaining in the employ of a railroad company. 11 There has been said to be more justification for an injunction against a sympathetic strike or secondary boycott, than against strikers directly injured by the acts which they seek to prevent. 18 An injunction against intimidation by strikers was granted, at the suit of a contractor with the party against whom the strike was instituted, when the citizenship of the latter would not have sustained the jurisdiction ; 13 but one was denied in a suit by the trustee of an unmatured mortgage upon the employer's property, when the mortgagor was not joined and had not refused to sue. 14 The importance of this class of in- junctions is very great. For the acts forbidden are in most cases offenses punished by the criminal law, those charged with which would, in the absence of an injunction, have the right to a trial by jury; and the object of an injunction is to deprive them of that right. 15 This co-called "government by injunc- A 8 s'n, 47 X. J. Eq. 519; Bohn Mfg. Co. v. Hollis, 54 Minn. 223; s. c, 55 X. W. 1119; Sweeny v. Torrence, 11 Pa. Co. Ct. R. 497; Francis v. Flinn, 118 U. S. 385, 30 L. ed. 165; Worth- ington v. Waring, 157 Mass. 421; Pr. & Pub. Co. v. Howell, 26 Ore. 527; s. c, 28 L.R.A. 464; De Pear v. Cook's Union, 27 Chi. Leg. X. 387; Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 55 L. ed. 797. See High on "Injunctions," § 1415e. 9 Arthur v. Oakes, C. C. A., 25 L.R.A. 414, 4 Inters. Com. Rep. 744, 63 Fed. 310; Del. & W. R. Co. v. Switchman's Union, 158 Fed. 541, Contra, A. R. Barnes & Co. v. Berry, 156 Fed. 72. 10 Arthur v. Oakes, C. C. A., 25 L.R.A. 414, 4 Inters. Com. Rep. 744, 63 Fed. 310, 324, 329, a decision on this point of very doubtful author- ity: Hitchman Coal & Coke Co. v. Mitchell, 202 Fed. 512. Cf. Allen v. Flood [1898], Appeal Cases, 1; su- pra, § 275. 11 So. Cal. Ry. Co. v. Rutherford, 62 Fed. 796; In re Lennon, 16G U. S. 548, 555, 41 L. ed. 1110, 1113. 12 See Geoffrey Konta in Columbia Law Rev., X. p. 652, approving Sili la n ; v. Ladies' Waist Makers' Union, 124 X. Y. Supp. 289 ; Irving v. Joint Dist. Council of Xew York and Vicinity of United Brotherhood of Carpen- ters, 180 Fed. 896; Tunstall v. Stearns Coal Co., C. C. A., 192 Fed. 808. 13 Carroll v. Ches. & O. Coal Agen- cy Co., C. C. A., 124 Fed. 305; s. c. as Ches. & O. Coal Agency Co. v. Fire Creek C. & C. Co., 119 Fed. 942. 14 Illinois Trust & Sav. Bank v. Minton, 120 Fed. 187. 15 In re Debs, 158 U. S. 564, 581, 582, 39 L. ed. 1092, 1101, 1102; U. S. v. Debs, 64 Fed. 724; Reynolds v. Davis, 198 Mass. 294, 17 L.R.A. § 277] IX TATEXT CASES. >:;; tion" has been sharply •criticized. The jurisdiction of courts of equity to entertain a suit for such an injunction has been sustained by the Supreme Court of the United States; 16 but the propriety of those which have been issued has not yet been decided by that tribunal. 17 § 277. Injunctions to restrain the infringement of pat- ents. Injunctions to restrain the infringement of patents and copyrights are of ancient use in equity. They are founded upon both the irreparable injury that would otherwise be caused to the complainant, and the desire of the court to prevent a multi- plicity of suits. 1 This inherent power of the courts is confirmed in the United States by statute. The provision of the Revised Statutes authorizing injunctions to restrain the infringement of patents is as follows: "The several courts vested with jurisdic- tion of cases arising under the patent laws shall have power to grant injunctions according to the course and principles of courts of equity, to prevent the violation of any right secured by a patent, upon such terms as the court may deem reasonable ; and upon a decree being rendered in any such case for an in- fringement, the complainant shall be entitled to recover, in addi- tion to the profits to be accounted for by the defendant, the dam- ages the complainant has sustained thereby; and the court shall assess the same or cause the same to be assessed under its direc- tion. And the court shall have the same power to increase such damages, in its discretion, as is given to increase damages found by verdicts in actions in the nature of actions of trespass upon the case." 2 It seems to have been formerly the opinion that courts of equity would not interfere to protect a patent right by injunction, until the right has been established at law; but (N.S.) 162, 84 N. E. 457. See U. S. v. Cassidy, 67 Fed. 698, 783, for a refusal of a jury to convict in a similar case, upon much stronger evidence than that offered against Debs. * 16 In re Debs., 15S U. S. .564. 581, 39 L. ed. ]092, 1101 : In re Lennon, 166 U. S. 54S, 41 L. ed. 1110. 17 But see In re Debs, 158 U. S. 564, 581; 592. 597, 39 L. ed. 1092. 1101, 1105. 1107. § 277. 1 Eden on Injunctions, chs. xii and xiii; Daniell's Ch. Pr. (5th Am. ed.) 1642-1648; Hogg v. Kirby, 8 Ves. 215: \\ ilkins v. .\ik- in. 17 Ves. 422. See High on In- junctions §£ 934-952. 2 1'. S. K. S.. § 4921. See supm. §§ 146, 175 and 29 St. at L. 695; cited supra, § 61. 874 INJUNCTIONS. [§ 277 since Lord Eldon's time their jurisdiction thus to interfere, when the title of a complainant is established by the preponder- ance of evidence, has been undisputed. 3 Before a preliminary injunction will be granted against the alleged infringement of a patent, it should be shown: that the plaintiff's right to the ex- clusive use of the invention is clear, 4 and usually that it has been established by a prior adjudication 5 or by public acquies- cence ; 6 and that there is no room for reasonable doubt as to the infringement. 7 Before the creation of the Circuit Courts of Appeal, the rule was that if previous adjudications in the same or other Circuit Courts had established the validity of the plain- tiff's patent, a preliminary injunction would be granted him almost as of course in a subsequent suit, to prevent the infringe- ment of the same by a person not a party to the former proceed- ing 8 unless the latter could produce new evidence that was con- 3 Universities of Oxford and Cam- bridge v. Richardson, 6 Ves. 689; Hill v. Thompson, 3 Meriv. 622; Pierpont v. Fowle, 2 W. & M. 23; Motte v. Bennett, 2 Fisher, 642; Kerr on Injunctions, 272. 4 Welsbach Lt. Co. v. Cosmopol- itan Inc. G. L. Co., 100 Fed. 648; Bradley & H. Mfg. Co. v. Charles Parker Co., 17 Fed. 240; Consol. S. V. Co. v. Crosby S. G. & L. Co., 7 Fed. 768; Illingworth v. Spalding, 9 Fed. 154. For a case where the complainant's rights were held so clear as to warrant a preliminary injunction without a prior adjudica- tion or public acquiescence, see Wil- son v. Consol. S. S. Co., C. C. A., 88 Fed. 286. 5 Duff Mfg. Co. v. Kalamazoo Ry. Sig. Co., 100 Fed. 357; Richmond Milk Co v. DeClyne, 90 Fed. 661. 6 Palmer P. T. Co. v. Newton R. Works, 73 Fed. 218; Duff Mfg. Co. v. Kalamazoo Ry. Sig. Co., 100 Fed. 357; Silver & Co. v. J. P. Eustis Mfg. Co., 130 Fed. 348. Eight months of public acquiescence were held to be enough. Wilson v. Jeffer- son, 78 Fed. 366. Cf. Johnston R. Co. v. Avery Mach. Co., 28 Fed. 193; Stahl v. Williams, 52 Fed. 645. Five years of public acquiescence were held sufficient. McDowell v. Kurtz, C. C. A., 77 Fed. 206. So of six years. White v. Hunter, 47 Fed. 819; Nat. Typ. Co. v. N. Y. Typ. Co., 46 Fed. 144. 7 Whippany Mfg. Co. v. United I. F. Co., C. C. A., 87 Fed. 215; Duff v. Kalamazoo Ry. Sig. Co., 100 Fed. 357; Richmond Mica Co. v. De Clyne, 90 Fed. 661 ; Standard Paint Co. v. Reynolds, 43 Fed. 304; John- son R. R. S. Co. v. Union S. & S. Co., C. C. A., 55 Fed. 487 ; Hatch S. Ry. Co. v. El. Storage Ry. Co., C. C. A., 100 Fed. 975; Jefferson Electric Light, Heat & Power Co. v. Westing- house Electric & Mfg. Co., C. C. A., 134 Fed. 392. Cf. Sawyer Sp. Co. v. Turner, 55 Fed. 979. 8 Orr v. Littlefield, 1 W. & M. 13; Thayer v. Wales, 9 Blatchf. 170; s. c, 5 Fisher, 130; Kirby Bung Mfg. Co. v. White, 1 Fed. 604; but see Many v. Sizer, 1 Fish. Pat. Cas. 31. 277] IN PATENT CASES. 875 elusive, 9 or show that such judgments were obtained fcjy consent, collusion or fraud, 10 or without any substantial contest. 11 This is still the rule in the same circuit, 12 and has been applied when the previous adjudication was a judgment at law rendered upon a verdict, as well as when an interlocutory decree in equity. 18 It has special force when the Supreme Court of the United States, 14 or the Circuit Court of Appeals for that circuit, 15 has established the validity of the patent. It is usually followed when the decision was by the Circuit Court of Appeals, 16 9 Page v. Holmes B. A. Tel. Co., 2 Fed. 300; s. c, 18 Blatchf. 118; Bragg v. Mayor etc. of N. Y., 141 Fed. 118. But see Motion Picture Patents Co. v. Laemmle, 178 Fed. 104. 10 Am. Nie. P. Co. v. Elizabeth, 4 Fish. 1S9; Page v. H. B. A. Tel. Co., 2 Fed. 330; American M. Puri- fier Co. v. Vail, 15 Blatchf. 315: but see Orr v. Littlefield, 1 W. & M. 13. Where, after proofs had been taken, the defendant made default, the court merely examined the case suftieiently to dispose of the actual controversy and refused to pass up- on the questions arising in detail so as to enable the decision to be used in case of a subsequent in- fringement. Victor Talking Mach. Co. v. Leed & Catlin Co., 180 Fed. 778. 11 N. Y. Button Works v. Crescent Button Co., 185 Fed. 820. 12 Elite Pottery Co. v. Dececo Co., C. C. A., 150 Fed. 581; Cohen v. Stephenson & Co., C. C. A., 142 Fed. 467; A. B. Dick Co. v. Pomeroy Du- plicator Co., 117 Fed. 154; Walker Patent Pivoted Bin Co. v. Miller & England, 132 Fed. 823; Warren Bros Co. v. City of Montgomery, 172 Fed. 414: Tnterurban By. & T. Co. v. Westinghouse E. & Mfg. Co., C. C. A., 186 Fed. 166; Schmeiser Mfg. Co. v. Lilly, 189 Fed. 631; Mine & Smelter Supply Co. v. Braeckel Concentrator Co., 197 Fed. 897. WPanoulias v. Hawley, 178 Fed. 101. 14 Am. Bell Tel. Co. v. McKees- port Tel. Co.. 57 Fed. 661 ; Westing- house Air-Brake Co. v. Christensen Eng. Co., 113 Fed. 594; Cutler-Ham- mer Mfg. Co. v. Hammer, 124 Fed. 222. 15 Armat Moving Picture Co. v. Edison Manufacturing Co., 121 Fed. 559; Motion Picture Patents Co. v. Laemmle, 178 Fed. 104: Victor Talking Mach. Co. v. Sonora Phono- graph Co., 188 Fed. 330; Walker Patent Pivoted Bin Co. v. Bernard Gloekler Co., 188 Fed. 435. 16 Leeds & Catlin Co. v. Victor Talking Mach. Co., 213 U. S. 301, 312, 29 Sup. Ct. Bcp. 495. 53 L. ed. 805; Cohen v. Stephenson & Co., C. C. A.. 142 Fed. 4(17: Thomson-Hous- ton Electric Co. v. Holland, 143 Fed. 903: Gaiculagraph Co. v. Automat- ic Time Stamp Co.. 149 Fed. 436; Badische \Anilin & Soda Fabrik v. A. Klipstein & Co., 125 Fed. 543: Consolidated Rtfbbef Tire Co. v. Diamond Bubber Co. of Now York. C. C. A.. 157 Fc.l. 677: Timolat v. Phila. Pneumatic Tool Co., 123 Fed. 899; Westinghouse Electric & Mfg. ST<) INJUNCTIONS. [§ 277 or by a District Court, 17 of another circuit. When a pre- liminary injunction has been granted upon the faith of such an adjudication, the appellate court should ordinarily affirm the same upon an interlocutory appeal, without passing upon the validity of the patent or the merits ; 18 but it has been said that the doctrine depends upon comity/ 9 and is not a rule of law, but one of practice, convenience and expedience. 20 When a judge is clear in his conviction that a previous decision, made in another circuit against another defendant, has been wrong- fully decided, he is not bound to follow it. 21 A final decree, at least, will not be reversed by the Supreme Court merely because Co. v. Condit Electrical Mfg. Co., 159 Fed. 144; Gormley & Jeffrey Tire Co. v. U. S. Agency, C. C. A., 177 Fed. 691; Underwood Type- writer Co. v. Fox Typewriter Co., 181 Fed. 530; Interurban Ry. & Terminal Co. v. Westinghouse Elec- tric & Mfg. Co., C. C. A., 186 Fed. 106, 170, 108 C. C. A., 298; Calcula- graph Co. v. Automatic Time Stamp Co., C. C. A., 187 Fed. 276; Parsons Non-Skid Co. v. E. J. Willis Co., 190 Fed. 333; Acme Acetylene Appli- ance Co. v. Commercial Acetylene Co., C. C. A. 192 Fed. 321. 17 Leeds & Catlin Co. v. Victor Talking Mach. Co., 213 U. S. 301, 312, 29 Sup. Ct. 495, 53 L. ed. 805; Interurban Ry. & Terminal Co. v. Westingbouse Electric & Mfg. Co., C. C. A., 186 Fed. 166, 170, 108 C. C. A. 298; Scbmeiser Mfg. Co. v. Lilly, 189 Fed. 631 ; Acme Acetylene Applicance Co. v. Commercial Acety- lene Co., C. C. A., 192 Fed. 321; Fireball Gas Tank & Illuminating Co. v. Commercial Acetylene Co., C. C. A., 198 Fed. 650. See West- inghouse Electric & Mfg. Co. v. Sut- ter, 194 Fed. 888 ; Hammond Buckle Co. v. Weld, C. C. A.. 72 Fed. 171 ; Westingbouse El. & Mfg. Co. v. Roy- al Weaving Co., 115 Fed. 733; West- ern El. Co. v. Keystone Tel. Co., 15 Fed. 809 ; Brunswick-Balke-Colender Co. v. Koehler & Hinricbs, 115 Fed. 648; U. S. Gramapbone Co. v. Sea- man, C. C. A., 113 Fed. 745; Brill v. Peckbam Mfg. Co., 129 Fed. 139 "Leeds & Catlin Co. v. Victor Talking Mach. Co., 213 U. S. 301, 312, 29 Sup. Ct. 495, 53 L. ed. 805; Interurban Ry. & Terminal Co. v. Westinghouse Electric & Mfg. Co., C. C. A., 186 Fed. 166, 170, 108 C. C. A. 298. 19 See, however, Mine & Smelter Supply Co. v. Braeckel Concentrat- or Co., 197 Fed. 897. 20 Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 485, 488, 489, 44 L. ed. 856, 858. 21Welsbach Lt. Co. v. Cosmopoli- tan Inc. El. Co., 100 Fed. 648; Horn & Br. Mfg. Co. v. Pelzer, 91 Fed. 665; Nat. Cash Reg. Co. v. Amer. C. R. Co., C. C. A., 53 Fed. 367; Wanamaker v. Enterprise Mfg. Co., C. C. A., 53 Fed. 791; Cimiotti U. Co. v. Am. Fur. Ref. Co., 120 Fed. 672; Diamond Match Co. v. Union Match Co., 129 Fed. 602; Westing- house El. & Mfg. Co. v. Condit El. Mfg. Co., 159 Fed. 144; Underwood Typewriter Co. v. Fox Typewriter Co., 181 Fed. 530. See also Hatch S. B. Co. v. El. St. Ry. Co., C. C. A., 100 Fed. 975; Consol. El. S. C. v. 277] IN PATENT CASES. 87 insufficient weight was given below to the doctrine of comity. 22 When the only disputed question was the priority of invention, similar weight has been given to the decisions of the Supreme Court of the District of Columbia or Court of Appeals of that District upon appeals from the decisions of the Patent Office in interference proceedings, 23 and to the decisions of the Commis- sioner of Patents in such proceedings ; 24 but not in contro- versies concerning the patentability or novelty of the patent, or other disputed points. 25 Decisions of the Canadian courts are also entitled to great consideration upon such a motion. 26 The rule has been applied to adjudications, that a given state of facts does or does not constitute an infringement, as well as to those upon the construction and validity of a patent. 27 It does not include a case where an entirely new defense is pleaded, al- though then that defense alone will be considered upon the decision of a motion. 28 Where there has been no adjudication, a preliminary injunction will never be granted if there is a fair Accumulator Co., C. C. A., 55 Fed. 485 ; Am. Paper P. & B. Co. v. Nat. F. B. & P. Co., C. C. A., 51 Fed. 259; N. Y. Filter Mfg. Co. v. Niag- ara Falls W. W. Co., C. C. A., 80 Fed. 924; Adams v. Tannage P. Co., C. C. A., 81 Fed. 178; Flectric Mfg. Co. v. Edison El. L. Co., C. C. A., (il Fed. 834; Overman Wheel Co. v. Curtis, 53 Fed. 247; N. Y. Filter Mfg. Co. v. Jackson, 112 Fed. 678. Infra, § 377. 22 Mast. Foos & Co. v. Stover Mfg. Co., 177 U. S. 485, 488, 489, 44 L. ed. 856, 858. See Campbell Print- ing-Press & Mfg. Co. v. Duplex Printing-Press Co., C. C. A., 101 Fed. 282, 41 C. C. A. 351; Interur- ban Ry. & Terminal Co. v. Westing- house Electric & Mfg. Co., C. C. A., 186 Fed- 166, 170, 108 C. C. A. 298. 23 Scott v. Laas, C. C. A., 150 Fed. 764; White Dental Mfg. Co. v. Johnson, 56 Fed. R. 262. 24 Smith v. Halkyard, 16 Fed. 414; Celluloid Mfg. Co. v. Chrow- lithian C. & C. Co., 24 Fed. 275; Turner Brass Works v. Appliance Mfg. Co., 164 Fed. 195; Weston El. Instrument Co. v. Am. Instrument Co., 169 Fed. 659; Perfection Cooler Co. v. Rose Mfg. Co., 175 Fed. 120. Contra, Wilson v. Consolidated Store-Service Co., C. C. A., 88 Fed. 286, 288. See Fenton Met. Mfg. Co. v. Chase, 73 Fed. 831. 25 Dickerson v. De La Vergne Re- frigerating Mach. Co., 35 Fed. 143, 146; Turner Brass Works v. Appli- ance Mfg. Co., 164 Fed. 195; Perfec- tion Cooler Co. v. Rose Mfg. Co., 175 Fed. 120. 26 Carter & Co. v. Wollschlaeger, 53 Fed. 573. 27Byerley v. Ellis Co., 190 Fed. 772. 28 General El. Co. v. Condit El. Mfg. Co., 191 Fed. 511; Gantewell Fire Alarm Tel. Co. v. Ilackensack Improvement Commission, 199 Fed. 182; Bragg v. Mayor, etc. of N. Y., 141 Fed. 118. 878 INJUNCTIONS. [§ m doubt as to invention, anticipation, obstruction or infringe- ment. 29 Where there is no prior patent or publication submitted, nor any room for doubt as to the infringement, it has been held that the presumption arising from the grant of the patent is suffi- cient to warrant the issue of an injunction. 30 This has been described as "the Second Circuit Rule,'' but a recent case states that it rests upon "a slender foundation." 31 It was there said, that the phrase "fair doubt" refers to something more than the effect produced on the judicial mind by the direct evidence submitted on the motion, but includes "a belief that other reach- able testimony exists which, by reasonable effort, the party may adduce." 32 If, upon a motion for a preliminary injunc- tion, the parties are willing to rest their case for a final hearing' upon the papers then presented, without oral testimony, the court is more inclined to decide the question upon the merits. 33 Because of the weight which the decision has as a precedent, proof that the defendant will not be seriously injured by the in- junction, does not justify its issue, 34 although when there is evi- dence that the complainant cannot suffer serious loss it may af- 29 Xewhall v. McCabe Hanger Mfg. Co., C. C. A., 125 Fed. 919 ; GO C. C. A. 629; Vacuum Cleaner Co. v. Waldorf-Astoria Hotel Co., 198 Fed. 865. See Hildreth v. Norton. C. C. A., 159 Fed. 42S; Motion Picture Patents Co. v. N. Y. Motion Picture Co., 174 Fed. 51: Meyers v. Skinner, 179 Fed. 8G0: Crown Cork & Seal Co. v. Brooklyn Bottle Stopper Co., 190 Fed. 323; Lovell-MeConnell Mfg. Co. v. Automobile S. Mfg. Co., 193 Fed. 658: Gamewell Fire Alarm Tel. Co. v. Star El. Co., 199 Fed. 185. 30 Pelzer v. City of Bingbamton, C. C. A., 95 Fed. 823, 37 C. C. A. 288, which bas been said to be tbe only case in wbich a motion for a preliminary injunction, lost in tbe court below, prevailed in tbe Circuit Court of Appeals ; Seidenberg v. Davidson, 112 Fed. 431, 432. La- combe, J.; Vacuum Cleaner Go. v. Waldorf-Astoria Hotel Co., 19S Fed. 865, 866. See, also, Fuller v. Gil- more, 121 Fed. 129. 31 Vacuum Cleaner Co. v. Wal- dorf-Astoria Hotel Co., 198 Fed. 865, 866, per Hough, J.: "Tbe function of tbe appellate court bas more fre- quently been directed to discovering doubt, and tbus delaying decision, tban to adjudicating matters far more fully and elaborately present- ed to the lower court than it was the practice in equity to do when so vital a litigation as that over the Morse electric telegraph reached the Supreme Court. The record of that case, compared with modern records, is an instructive example of deteri- oration in procedure." 32 Ibid. 33 Crown Cork & Steel Co. v. Brooklyn Bottle Stopper Co., 190 Fed. 323. 34 See Victor Talking Mach. Co. v. Leed & Catlin Co.. 180 Fed. 778. § 277] IN PATENT CASES. 87!) ford a reason for denying the writ. 35 Laches by the plainti/f before the suit, 36 and after the suit has begun, 37 is a reason for denying the motion. A delay pending litigation with other infringers is not laches. 38 If serious public inconvenience would result from a preliminary injunction, the application may be denied. 39 Where some of the claims in the patent were sus- tained and found to hare been infringed and others held to be invalid, the complainant has been required to disclaim the latter before the injunction issues. 40 But the better practice is not to require a disclaimer until the entry of the final decree after any accounting that may be ordered has been terminated, in order that the complainant may have the right to have so much of the adjudication as is against him reviewed upon ap- peal. 41 The combination of the complainant with other pat- entees, so as to create a monopoly, 42 the absolute refusal of the owner of .the patent to use the same, which had deprived the public of the benefit of the invention, 43 and the fact that the principal use of the invention was in connection with gambling, when it might be used for other purposes ; 44 were held to be no 35 Meyers v. Skinner, 179 Fed. 860. 36TJnited Nickel Co. v. New H. S. Iff. Co., 17 Fed. 528; Waite v. Chichester Chair Co., 45 Fed. 258; Keyes v. Pueblo Sm. & Ref. Co., 31 Fed. 560;Byerley v. Standard As- phalt & Rubber Co., 189 Fed. 759. In one case a delay of two months was held such laches as to defeat the application. Ney Mfg. Co. v. Su- perior Drill Co. (C. C. Ohio), 50 Fed. 152. But see Brush El. Co. v. El. Imp. Co., 45 Fed. 241 : Nat. Heeling Mach. Co. v. Abbott, 77 Fed. 462; Collingnon v. Hayes, 8 Fed. 912; N. Y. G. S. Co. v. Buffalo G. S. Co., 18 Fed. 638. 37 Vacuum Cleaner Co. v. Wal- dorf-Astoria Hotel Co., 198 Fed. 865, 867, where, with proper diligence, the case would have been ready for final submission. 38 Timolat v. Franklin Boiler Works, C. C. A., 122 Fed. 69; (a delay of three years). 39 S. W. Brush EL & P. Co. v. La. EL L. Co., 45 Fed. 893; Bliss v. Brooklyn, 4 Fisher's Pat. Cas. 596; Am. Ordinance Co. v. Driggs-See- bury Co., 87 Fed. 947 ; Hoe v. Boston Adv. Corp., 14 Fed. 914; Robinson on Patents, § 1200. But see Pelzer v. Binghamton, C. C. A., 95 Fed. 823; N. Y. Filter Mfg. Co. v. Niag- ara Falls W. Co., C. C. A., 77 Fed. 900; Westinghouse A. B. Co. v. Great N. Ry. Co., SO Fed. 132 40 F. D. Cummer & Son Co. v. At- las Dryer Co., C. C. A., 193 Fed. 993. 41 Page Mach. Co. v. Dow, Jones & Co., C. C. A., 168 Fed. 703. 42 Lanyon Zinc Co. v. Brown, C. C. A., 115 Fed. 150; Edison El. L. Co. v. Sawyer-Man El. Co., C. C. A., 53 Fed. 592. 43 General El. Co. v. Wise, 119 Fed. 922; Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405, 52 L. ed. 1122. 44 Fuller v. Berger, C- C. A., 65 SMJ INJUNCTIONS. [S B7J reasons for denying an injunction. Where the defendant is pecuniarily responsible, 45 especially wliere the complainants have established a regular license fee, 46 or where the defendant offers a bond or undertaking with a sufficient surety that he will pay whatever may be awarded against him for damages or profits, the injunction will usually be denied, unless there has been a previous adjudication sustaining the plaintiff's pat- ent. 47 Sometimes even where there had been such an adjudica- tion. 48 It has been said : that the existence and use of an un- patented anticipating device prior to the invention covered by the patent, may be established by oral testimony only when sufficient to prove the facts beyond a reasonable doubt ; 49 and that evidence that defendant had an infringing device in his possession, without proof that it made, used, or sold the same, does not make out a case of infringement. 50 After a defendant has once infringed a patent owned by the plaintiff,' it seems that the court will usually enjoin him from doing so in the L.R.A. 381, 120 Fed. 274. But see infra, § 284. 45 N. Y. Grape Sugar Co. v. American Grape Sugar Co., 10 Fed. 835; Westinghouse A. B. Co. v. Burton S. C. Co., 70 Fed. 619; Xilsson v. Jefferson, 78 Fed. 360; Huntington D. P. Co. v. Alpha P. C. Co., 91 Fed. 534; Karfiol v. Both- ner, 151 Fed. 777; Byerley v. Stand- ard Asphalt & Rubber Co., 189 Fed. 759; Gamewell Fire Alarm Tel. Co. v. Star El. Co., 199 Fed. 185. Con- tra, General El. Co. v. Wise, 119 Fed. 922. In some cases, the defend- ant is then required to keep an ac- count. See infra, § 297. 46 Overweight C. El. Co. v. Cahill & H. El. Co., 86 Fed. 33S; Over- weight C. El. Co. v. Improved 0. of R. M. H. Ass'n, C. C. A., 94 Fed. 1.")."); Nat. Heeling Mach. Co. v. Ab- bott, 77 Fed. 462. See Nat. Cash Reg. Co. v. Navy C. R. Co., 99 Fed. 565: Eastern P. B. Co. v. Nixon, 35 Fed. 752; McMillan v. Conrad, 16 Fed. 128; Eagle Mfg. Co. v. Cham- berlain Plow Co., 36 Fed. 905; Hoe v. Knap, 27 Fed. 204: Geo. A. Mac- beth Co. v. Lippincott Glass Co.. 54 Fed. 167: Washburn & M Mfg. Co. v. H. B. Scott & Co.. 22 Fed. 710; Edison El. Lt. Co. v. Columbia Inc. L. Co., 56 Fed. 496: X. Y. Belting & P. Co. v. Magowan, 23 Fed. 596: Greenwood v. Bracher. 1 Fed. 856. Contra. Warren Bros. Co. v. City of Montgomery, 172 Fed. 414. 47 McWilliams Mfg. Co. v. Blun- dell, 11 Fed. 419: Campbell Pr. Press Co. v. Prieth, 77 Fed. 976; Carter & Co. v. Wollschlaeger, 53 Fed. 573. 48 Westinghouse A. B. Co. v. Bur- ton S. Car Co., C. C. A., 77 Fed. 301 : Norton v. Eagle Auto Can. Co., 61 Fed. 293. 49 De Laval Separator Co. v. Iowa Dairy Separator Co., C. C. A., 194 Fed. 423. 50 Sheffield Car Co. v. Buda Foun- drv & Mfg. Co., 177 Fed. 713. 277] IN PATENT CASKS. 881 future, even though he swears that, he has no intention of doing so again, unless he further proves that he has paid all damages occasioned by his infringement, and has desisted from it ; 51 but not where it clearly appears that the infringement ceased before the suit was brought and was made without knowledge of the complainant's rights, 52 especially when the complainant knew of the cessation before the suit was brought. 53 An injunction may be dissolved where the plaintiff has sent a false or mislead- ing description of the same to the trade. 54 An ex parte appli- cation for an injunction to restrain the infringement of a pat- ent should, it seems, be supported by an affidavit, or an allega- tion in a bill verified by affidavit of the plaintiff, stating that he believes that the person to whom the patent was issued was the original inventor thereof, or that the invention was new, or had not been introduced into public use in the United States for more than two years prior to the application upon which the patent was issued. 55 It has been held that after the expiration of a patent an injunction may issue to prevent the use of a ma- chine made while the patent was in force; and it has been said that an injunction previously issued will, until dissolved by order, remain in force so far as still to forbid such a use. 56 lint a bill praying for such an injunction must allege either that the defendant is using machines manufactured during the term of the patent and in violation of it, or that the plaintiff has cause to fear such a use. 57 An injunction against the manu- facture or sale of articles in violation of a patent right is vio- lated by their sale or manufacture within the United States, 51 Jenkins v. Greeriwald, 1 Bond, t-2(i-. s. v.. 2 Fisher, 37; Sickels v. Mitchell. 3 Blatchf. 548,; Poppen- liusen v. N. Y. G. P. C. Co., 4 Blatchf: 184; Celluloid Mfgi Co. v. Arlington Mfgi Co., 34 Fed. 324; Morton Tr. Co. v. Standard Steel Car Co., C. C. A.. 177 Fed. 931. 52(ieiferal El. Co. v. Pittsburg- Buffalo Co.. 144 Fed. 43d. See Home Ins. Co. v. Nobles. i>3 Fed. 042. 53 Kennieott Water Softener Co. v. Bain. ('. ( '. A.. 185 Fed; 520. Fed. Prac. Vol. I.— 56. 54 Meyers v. Skinner. 186 Fed. 347. See infra. £§ 284. 296: 55 Hill v. Thompson. 3 Merit. 622? Sturz v. De La Rue. 5 Russ. 322. 329; Sullivan v. Redfield, I I'aine. 441 : l\ S. R. S.. §§ 4SSC. 4887. 56 Am. D. R. 15. Co. v. Rutland M. Co., 2 Fed. 355, Bui see Am. Gable R\ . Co. v. Chicago City Ry. Co.. 4 1 Fed. 522; WestinghoUse v. Carpenter. C. C. A.. 43 Fed. 894. See ,ntra. §j§ 287. 2!)6. 57 Am. 1). R. B. Co. v. Rutland M. Co., 2 Fed. 3.').-). 882 injunctions. [§ 278 but beyond the jurisdiction of the court. 58 After an injunction against the infringement of a patent, the defendant or his trustee in bankruptcy may be enjoined from selling the in- fringing apparatus pending his appeal from the decree. 59 Tf has been held, that, after an interlocutory decree granting an injunction, the complainants cannot sue in another district for the sole purpose of obtaining an adjudication that other parties therein located have been the real parties in interest in the prior suit and are bound by the injunction. 60 § 278. Injunctions to restrain the infringements of copyrights. The Act of March 4, 1909, provides: ''That if any person shall infringe the copyright in any work protected under the copyright laws of the United States such person shall be liable: (a) To an injunction restraining such infringe- ment. " 1 "That any such court or judge thereof shall have power, upon bill in equity filed by any party aggrieved, to grant injunctions to prevent and restrain the violation of any right secured by said lavs, according to the course and prin- ciples of courts of equity, on such terms as said court or judge may deem reasonable. Any injunction that may be granted re- straining and enjoining the doing of anything forbidden by this Act may be served on the parties against whom such injunc- tion may be granted anywhere in the United States, and shall be operative throughout the United States and be enforceable by proceedings in contempt or otherwise by any other court or judge possessing jurisdiction of the defendants." 2 This statute is, however, merely declaratory of the previous rule in equity which, it is said by Lord Eldon, was "founded upon this; that the law does not give a complete remedy to those whose literary property is invaded; for if publication after publication is to be made a distinct cause of action, the remedy would soon become worse than the dis- ease. This court, therefore, interposes by injunction- 58 Macaulay v. White S. M. Co.. 9 60 Kehoe v. Bradford & Lasher, Fed. 098. 175 Fed.. 800. 59 United Wireless Tel. Co. v. Nat. § 278. l 35 St. at L. 1075. § 25, El. Signaling Co., C. C. A., 198 Fed. Pierce Fed. Code (Supp.), § 1587. 335*. 2 [hid., § 3 6< pi erC e Fed. Code (Supp.), § 1589. § 278] IX COPYRIGHT CASES. SS3 but not in cases where an action cannot be maintained;" 8 The rules regulating' the issue of injunctions to prevent the in- fringement of copyrights are in general similar to those regulat- ing the issue of injunctions restraining the infringement of patents; but decisions which relate to patent case- are not ab- solutely controlling in cases arising under the copyright law. 4 The plaintiff must show a clear title to his copyright, and an infringement or threatened infringement by the defendant. 5 It has been held that an injunction is void when obtained and served before two copies of the work, of which a copyright is sought, have been deposited in the copyright office or mailed addressed to the register. 6 A preliminary injunction will not. be granted where the validity of the copyright and the infringe- ment are denied and not clearly established. 7 The injunction will be denied if the defendant shows that the plaintiff has consented to his infringement, or has been guilty of unreason- able delay after he learned that it had occurred or was threat- ened. 8 How long a time must have elapsed to bar the plaintiff's right to an injunction has not been definitely settled. It has been held in England, however, that an injunction may be ob- tained after the copyright has been infringed to the plaintiff's knowledge during four years. 9 Moreover, delay will not pre- judice him, if solely caused bv his waiting until the result of litigation, whether prosecuted by himself or others, to settle a doubtful question of law involving the validity of his title. 10 As has been said, an injunction will not be granted unless the plaintiff shows a plain title to the copyright which he claims; 3 Lawrence v. Smith. Jacob. 471, 472. 4 Bobbs-Merrill Co. v. Straus, 210 f. S. 330, 345. 52 L. ed, 1080, HUM ; Park & Sons v. Hartman, 12 L.R.A. (X.S.) 135, 153 Fed. 24. Contra, Sctribner v. Strain. 130 Fed. 389. 5 Chase v. Sanborn. 6 Off. Gaz. 032; Parkinson v. Laselle. 3 Saw. 330; Lawrence v. Dana. 4 Clin". 1; Yuengling v. Senile, 12 Fed. 07 ; Drone on Copyright, eh. xi. pp. 496+543. 6N. Y. Times Co. v. Star Co., 1 0.5 Fed. 110. 7 Xixon v. Doran, 1G8 Fed. 575. 8 Rundell v. Murray, Jacob, 311; Saunders v. Smith. 3 MyL & Cr. 711: (happell v. Slieard, 1 ,lur. iX. S.) 996.; Tiasley v. Lacy. 1 llcin. A M. 747; Keene v. Clarke, 5 Robertson (X. Y.), 38. CO. 67: .Miller v. M'Elroy, 1 Am. Law Reg. 198. 9 Hogg v. Scott. L. R. IS Eq. 444. 454: Drone on Copyright, 504. 512. 10 Buxton v. .James. 5 De G. & Sm. 80; Rumford them. Works v. Vice, 14 Idatchf. 17!». 884 INJUNCTIONS. [§ 273 hut "the copyright is prima facie evidence that he is the author, and the burden of proof is upon the defendant to show the con- tra rv," n of that, for some other reason, there is a defect in the title claimed. 12 And the court will protect an equitahle title against infringement unless the defendant possesses su- perior equities to those of the complainant. 13 The complainant is not obliged to prove damage from the breach of copyright. 14 Ordinarily, the injunction forbids the publication of only so much of the defendant's work as infringes lipon the copyright of the plaintiff. 15 Where the defendant's publication inter- mingles matter infringing the complainant's copyright with other matter which does not, the entire publication may be en- joined, with permission to the defendant to apply for a modifi- cation of the injunction after he has eliminated the objection- able matter; 16 but where the piratical matter is insignificant in amount and value when compared with the rest of the de- fendant's publication, an injunction should be refused and the plaintiff's right limited to a trial by jury of the damages ac- tually sustained. 17 If there is any doubt concerning the in- fringvment, and its ascertainment will necessitate the examina- tion of a great deal of matter, the court, in this country, usual- ly directs a reference to a master to hear testimony and state the facts, together with his opinion for its consideration, before granting an injunction. 18 Such a reference is usually ordered before the final hearing, but may be at the decree. 19 In Eng- land, however, laborious examinations have frequently been made by the judges themselves, unassisted, except by counsel. 20 11 Taney, C. J.; in Reed v. Carusi, Taney, 72, 74. 12 Drone on Copyright, 409; Story's Eq. Jur., § 936. note G. 13 Little v. Gould, 2 Blatchf. 165. 14 Reed v. Holliday, 3 9 Fed. 325, 327. 15 Webb v. Powers. 2 \Y. & St. 497 ; Story v. Holcombe, 4 McLean, 306; Farmer v. Elstner. 33 Fed. 494. 16 Park & Pollard Co. v. Keller- strass. 181 Fed. 431. 1' Dun v. Lumbermen's Credit Ass'n., 209 U. S. 20, 52 L. ed. 663. 18 Folsom v. Marsh. 2 Story, 100; Webb v. Powers, 2 W. & M. 497; Story v. Derby, 4 McLean, 160; Greene v. Bishop, 1 Cliff. 186; Law- rence v. Dana. 4 CHff. 1 ; West Pub. Co. v. Lawyers' Co-operative Pub. Co., 25 L.R.A. 441; 64 Fed. 360; s. c. C. C. A.. 35 L.R.A. 409, 79 Fed. 756; Drone on Copyright, 513. But see Smith v. Johnson. 4 Blatchf. 252. 1 9 Lawrence v. Dana, 4 Cliff. 1 ; Drone on Copyright. 513. 20 Lewis v. Fullarton, 2 Beav. 6; Murray v. Bogue. 1 Drew, 353; Jarrold v. Houlston. 3 Kav & J. 278] IX COPYRIGHT CASES. 885 Instead of a reference, an issue at law may be directed. 21 The plaintiff need not specify in either his bill or his affidavit the parts of the defendant's publication which he thinks have been taken from his work. A general allegation of infringement ac- companied bv a verfiication bv affidavit of the two works is suffi- cient. 22 The practice has been that, "when the injunction has been moved for, the two works have been brought into court, and the counsel have pointed out to the court the passages which they rely upon as showing the piracy." 23 Clearer proof and a stronger case than would be sufficient to entitle a plaintiff to an injunction after the hearing is often required before he can ob- tain an interlocutory injunction. 24 Where there is doubt about the infringement, an injunction may be withheld upon the tiling of a bond by the defendant. 25 The difficulty of accurately deter- mining the damages resulting from an unauthorized publica- tion of his work will often have weight in leading the court to grant a preliminary injunction, when otherwise it might re- fuse one. 26 But, on the other hand, the court will often refuse an injunction before the hearing, when it is plain that the de- fendant would suffer more injury from being obliged to dis- continue the publication than can result to the plaintiff from his continuing. 27 It has been held in England that if a work be libelous, immoral, or blasphemous, which last named term would include one "which impugned the doctrines of the im- materiality and immortality of the soul," 28 there can be no copyright therein, and a piratical edition thereof will not be enjoined. 29 These decisions, however, one of which stigmatized 708; Pike v. Nicholas, L. R. 5 Ch. 251; Drone on Copyright, 513. 21Jollie v. Jaques, 1 Blatchf. 618. 22 Farmer v. Calvert L. Co.. 1 Flip. 228, 235; Sweet v. Maugham, 11 Sim. 51; Drone on Copyright, 513. 23 Sweet v. Maugham, 11 Sim. 51, 53. 24 Johnson v. Wyatt, 2 De G., J. & S. 18; Drone on Copyright, 517, 518. 25 Louis De Jonge & Go. v. Breu- ker & Kessler Co., 147 Fed. 763. See supra, § 277. 26Matthewson v. Stoekdale. 12 Ves. 270; Wilson v. Luke. ] Vict. Law R. 127; Prince Albert v. Strange. 1 Mac. & G. 25. 46; Little v. Gould, 2 Blatchf. 165; Drone on Copyright, 516-519. 27 Spottiswoode v. Clarke, 2 Phil. 154; Cox v. Land & YV. J. Co., L. R. 9 Eq. 324~; Lodge v. Stoddart, 9 Rep. 137. But see Emerson v. Dav- ies, 3 Story, 768. 28 Lawrence v. Smith, Jacob. 471. 29 YValcot v. Walker, 7 Ves. 1 ; Stoekdale v. Onwhyn, 5 Barn. & Cr. 173; Murray v. Benbow, 6 Petersd. .s.sC INJUNCTIONS. [§ 279 as unworthy of protection Byron's "Cain," 30 have been severely criticised, 31 and it is not likely that they would be fully sus- tained if the question should be raised in the United States ; al- though in a case in the Federal courts Judge Deady assigned as one among several reasons for refusing to enjoin an un- authorized representation of "The Black Crook," that it "only attracts attention as it panders to a prurient curiosity or an obscene imagination by very questionable exhibitions and at- titudes of the female person." 32 It has been held : that the fact that a complainant is a member of an illegal combination, formed to restrain interstate commerce, is no defense to a suit for the infringement of a copyright. 33 Injunctions to enjoin the performance of dramatic or musical compositions may be served and enforced by contempt proceedings, anywhere in the United States ; and the defendant may move to dissolve the same in any Circuit in which he is engaged in such performance ; 34 and suits for such injunctions may be instituted in any district where the defendant or his agent may be found. 35 § 279. Injunctions to restrain the unlawful use of trade- marks. Injunctions to restrain the use of trade-marks by others than their owners are granted by courts of equity, it has been said, partly to prevent the fraud upon the public which would otherwise be perpetrated, and partly on account of the difficulty of estimating the injury which would be caused the owner of a trade-mark from its improper use. 1 The former ground of the interference of the court has, however, been expressly repud- iated by a great judge, Lord Westbury, who said, when Lord Abr. 559 ; Lawrence v. Smith, Jacob, 471; Soutbey v. Sherwood, 2 Meriv. 435. But see Burnett v. Chetwood, 2 Meriv. 441. 30 Murray v. Benbow, 6 Petersd. Abr. 559. 31 Campbell's Lives of the Lord Chancellors, ch. ccxiii; Drone on Copyright, 181-196. 32 Martinetti v. Maguire, 1 Deady, 216, 223. 33Scribner v. Straus, 130 Fed. 389. 34 35 St, at L. 1075. § 25, Pierce's Fed. Code Supp. § 1587. 35 Ibid. § 35, Pierce Supp. § 1589. § 279. 1 Perry v. Truefit, 6 Beav. 66, 73: Croft v. Day. 7 Beav. 84: Leather C. Co. v. American L. C. Co., 10 Jur. (N. S.) 81; Walton v. Crowley, 3 Blatchf. 440; Shaw Stocking Co. v. Mack. 12 Fed. 707. See High on Injunctions, (4th ed. ) §§ 1063-1084. It was held that Vassar College had no such property right in its name and seal as to prevent the use of the same in advert i somen ts of candy. Vassar College v. Loose- Wiles Biscuit Co., 197 Fed. 982. § 279]. IN TRADEMARK CASES. 887 Chancellor, in delivering the judgment in a leading case: "Im- position upon the public becomes the test of the property in the trade-mark having been invaded and injured, but not tlu- ground on which the court rests its jurisdiction." 2 "Trade- marks are of two kinds. They may consist of pictures or sym- bols or a peculiar form and fashion of label, or simply of a word or words, which, in whatever form printed or represented, con- tinue to be the distinguishing mark of the manufacturer who has appropriated it or them, and the name by which his pro- ducts are known and dealt in." 3 "Where the trade-mark con- sists of a picture or symbol, or in any peculiarity in its appear- ance of the label, the imitation must be such as to amount to a false representation, liable to deceive the public, and enable the imitator to pass off his goods as those of the person whose trade-mark is imitated. And when there is such an absence of resemblance that ordinary attention would enable customers to discriminate between the trade-marks of different parties, the court will not intterfere." 4 "But where the trade-mark con- sists of a word, it may be used by the manufacturer who has appropriated it, in any style of print, or in any form of label, and its use by another is unlawful. The statute" of Xew York "requires only that the imitation should be either the same to the eye, or in sound to the ear, as the genuine trade-mark, and this accords with the authorities." 5 "To make an exclusive right to use a name or symbol as a trade-mark, such use must be new ; if ever before used as applicable to a like article, it can- not be exclusively appropriated. If the article is known to commerce in general, by- the term claimed, as a trade-mark, the claim is ill-founded. If the term employed indicates the na- ture, kind, or quality of the article, instead of showing its origin, an exclusive right to its use is not maintainable," 6 In accordance with the maxim that he who seeks equity must come with clean hands, it is well established that, if the trade- mark for which protection is sought contains representations 2 Leather C. Co. v. American L. hams, 82 N. Y. 519, 523, 37 Am. C. Co., 10 Jur (N. S.) 81. But see Rep. 589. the language of Coxe, J., in Shaw 4 Ibid. Stocking Co. v. Mack, 12 Fed. 707, B It>id. 710. 6 Van Beil v. Prescott (The Rye 3 Judge Rapallo in Hier v. Abra- & Rock Case), 82 X. Y. 630. 888 injunctions. ._['§ 279 calculated to deceive the public, an injunction will be denied the plaintiff. 7 An act of Congress allowing- suits to enjoin the use of trade-marks to be brought in a Federal court against a citizen of the same State as the complainant, was held uncon- stitutional. 8 The Act of March 2, 1907, gives the Federal courts jurisdiction of such a suit when the plaintiff has regis- tered his trade-mark for use in commerce with foreign nations, or among the several States, or with Indian tribes ; provided he is domiciled within the territory of the United States, or resides in, or is located in, any foreign country which affords similar privileges to the citizens of the United States; and provided, at least, that the defendant has followed the trade- mark in the course of commerce among the several States, or with a foreign nation, or with the Indian tribes. 9 The con- stitutionality of this act is an open question. 10 This statute does not give the Federal courts jurisdiction of a suit between citizens of the same State to enjoin unfair competition in trade, where the complainant has no valid and exclusive trade- mark. 11 A delay of eighteen months before an application for a preliminary injunction against unfair competition was held sufficient laches to defeat the motion. 12 A disuse of complain- ant's trade-mark before suit will not defeat the complain- ant's right to an injunction, when the defendant continued to use the trade-mark sometime after notice to desist, and in the suit contest the complainant's exclusive right to the same. 13 The writ may contain, in addition to an injunction against the infringement of a trade-mark, a prohibition of the use of any mark "so similar to complainant's as to be likely to deceive purchasers." 14 'Leather C. Co. v. American L. io Elgin Nat. Watch Co. v. Illi- C. Co., 11 H. L. C. 523: s. c. in a nois Tr. C. Co., 179 U. S. 665, 45 L. lower court, 10 Jur. (X. S.) 81; ed. 365. Fowle v. Spear. 7 Penn. L. J. 176; n Ibid. Heath v. Wright, 3 Wall. Jr. 141; 12 C. 0. Burns Co. v. W. F. Burns Ginter v. Kinney Tobacco Co., 12 Co.. 118 Fed. 944. IV, 1. 782. See supra, § 79. 13 Thomas G. Plant Co. v. May 8 Trade-Mark Cases. 100 U. S. 82, Mercantile Co., 153 Fed. 229. 25 L. ed. 550. 14 Capewell Horse Nail Co. v. »34 St. at L. 168. §§ 1, 16, 17; Green, C. C. A., 188 Fed. 20. Pierce Fed. Code, §§ 8804, 8822, 8823; supra, § 87. 281] TO PREVENT BREACHES OF CONTRACT. 889 § 280. Injunctions to prevent the opening of letters. Injunctions may be granted to restrain the opening of business letters. 1 § 281. Injunctions to compel the performance or pre- vent the breach of contracts not affecting land. The per- formance of a contract not affecting lands will be enforced in equity by means of an injunction when, and only when, a judg- ment for damages would be no adequate remedy for its breach ; * and it does not require a purely personal act which it would be impossible for the court to enforce, 2 or continue acts for an in- determinate term, which will require the constant supervision by the court subsequent to the decree. 3 The inadequacy of the remedy at law which will entitle one to specific performance of a contract may, it has been held, be proved by the fact that the damages in money cannot be ascertained, 4 In some cases an injunction may be obtained to restrain a defendant from vio- lating a negative promise contained in a contract, although the court has no power specifically to enforce the affirmative prom- ises contained therein. 5 Thus, when opera singers of extra- ordinary talent had contracted to sing, 6 or dancers of extraordi- nary character had contracted to dance, 7 at the plaintiff's theatre and nowhere else, or a ball player had contracted to give his § 280. lSchelle v. Brackell, 11 W. R. 796; David Kennedy Corp. v. Kennedy, 165 X. Y. 353, 359. § 281. 1 Buxton v. Lister, 3 Atk. 383; Robinson v. Cathcart, 2 Cranch C. C. 590; Tayloe v. Mer- chants' Fire Ins. Co., 9 How. 390, 13 L. ed. 187; Very v. Levy, 13 How. 345. 14 L. ed. 173. 2 Clarke v. Price, 2 Wilson Ch. Cas. 157; Mair v. Himalaya T. Co., L. R. 1 Eq. 411. 3 Sewerage and Water Board v. Howard. C. C. A., 175 Fed. 555. 4 Adderley v. Dixon. 1 Sim. & Stu. 007; Sullivan v. Tuck, 1 Md. Cli. 59; Finley v. Aiken, 1 Grant's Cases (Pa.) 83; Bispham's Eq., § 369; 5 Montgomery Light & Power Co. v. Montgomery Traction Co.. 191 Fed. 657, where a street railway company was enjoined from refus- ing to perform a contract binding it- self to take from the plaintiff, at an agreed price, all the electric power which it required for a term of years. 6 Lumley v. Wagner, 1 De G.. M. & G. 604; McCaull v. Braham, 16 Fed. 37. It is not a prerequisite to the injunction that the defendants are the stars of complainant's enter- tainment or that the entertainment would be stopped because of their withdrawal. Comstock v. Lopoko- wa, 190 Fed. 599. See High on In- junctions. (4th ed.) §§ 1163-1 164c. 7 Comstock v. Lopokowa. 190 Fed. 599. See High on Injunctions, (4th ed.) §§ 11 63-1 164c. 890 INJUNCTIONS. [§ 281 exclusive services to a baseball club; 8 injunctions have been granted to restrain them from performing in rival establish- ments, although they could not be compelled to sing, dance, or play for the plaintiffs. An injunction, however, will not issue to prevent a similar breach of his contract of employment by a person whose abilities are not so extraordinary that his place cannot be filled, 9 nor when the contract is not mutual ; 10 nor when the complaint shows that the damages for the breach of contract might easily be liquidated. 11 The rule has been thus stated by Judge Lowell : "I think the fair result of the later cases may be thus expressed : If the case is one in which the negative remedy of injunction will do substantial justice be- tween the parties, by obliging the defendant either to carry out his contract or lose all benefit of the breach, and the remedy at law is inadequate, and there is no reason of policy against it, the court will interfere to restrain conduct which is contrary to the contract, although it may be unable to enforce a specific performance of it.'' 12 But where the affirmative promise can- not be specifically enforced, the court will not import into it a negative covenant, neither expressly nor by a fair implication contained therein. 13 So an employee may be enjoined from carrying away documents containing trade secrets, 14 or from 8 Philadelphia Ball Club v. Lajoie, 202 Pa. 210, 58 L.R.A. 227, 90 Am. St. Rep. 027. 51 Atl. 973. 9 Ibid.: Metropolitan Ex. Co. v. Ewing, 42 Fed. 3 98; Burney v. Ryle, 91 S. E. 701, 17 S. E. 980 (an insurance agent): John- ston v. Hunt. 66 Hun, (X. Y.), 504: Strowbridge L. Co. v. Crane, 35 X. Y. State Rep. 473 (a designer of Lithographs;) ; Cort v. Lassard, 18 Or. 221. 6 L.R.A. 653 (an acrobat). §§ 143. 191. sui>ra. 10 Lerner v. Tetrazz.ini. 71 Misc. (X. Y. ) 182; High on Injunctions, (4th ed.) § 1109a. 11 Sewerage and Water Board v. Howard. C. C. A.. 175 Fed. 555. 12 Singer Co. v. Union Co., 1 Holmes, 253, 258. See also God- dard v. Wilde, 17 Fed. 845; W. U. Tel. Co. v. Union Pac. Ry. Co., 3 Fed. 423: W. U. Tel. Co. v. St. Joseph & W. Ry. Co., 3 Fed. 430; Met. El. Supply Co. v. Ginder (]901). L. R. 2 Ch. 799; Harrison v. Glucose Sugar Ref. Co.. C. C. A. r 58 L.R.A. 915. 116' Fed. 304: Dela- ware L. & \V. R. Co. v. Switchmen's Union. 158 Fed. 541. 13 Clarke v. Price. 2 Wilson Ch. C. 157: Pickering v. Bishop of Ely. 2 Y. & C. Ch. C. 249: Johnson v. S. & B. Ry. Co., 3 De G., M. & G. 914: Bispham's Eq„ § 464; Kerr on Injunctions. 524. 14 Union Switch & Signal Co. v. Sperry, 169 Fed. 926. § 283] AUTHORIZED BY STATUTE. 891 disclosing to others the trade secrets of his master. 15 Where ir- reparable injury would be otherwise caused, an injunction may be granted to prevent a stranger from inducing a party to a contract to violate the same. 16 § 282. Injunctions to compel the delivery of personal property tortiously withheld. Under very extraordinary circumstances, equity will interfere to compel by injunction the delivery or return of letters, documents, or other articles of such a unique character that it would be impossible to replace them, when they are tortiously withheld from their rightful owners. 1 § 283. Injunctions authorized by statute. The statutes of the United States also authorize an injunction in the follow- ing cases, amongst others, besides those arising from infringe- ments of patents and copyrights : "Any person who considers himself aggrieved by any warrant of distress issued under the provisions of the statutes authorizing one to be issued by the Solicitor of the Treasury against an officer in default for not accounting for and paying over public money received by him, "may prefer a bill of complaint to any district judge of the United States, setting forth therein the nature and extent of the injury of which he complains; and thereupon the judge may grant an injunction to stay proceedings on such warrant altogether, or for so much thereof as the nature of the case requires. But no in junction shall issue till the party applying for it gives bond with sufficient security, in a sum to be pre- scribed by the judge, for the. performance of such judgment as may be awarded against him ; nor shall the issuing of such in- junction in any manner impair the lien produced by the issuing of the warrant. And the same proceedings shall be had in such injunction as in other cases, except that no answer shall be nec- 15 Ibid.; High on Injunctions, § 282. l Pusey v. Pusey, 1 Vern. <4th ed.) §§ 19. 084, 1108. 273; Duke of Somerset v. Cookson. l6Beekman v. Marstefs; 1:95 Mass. 3 P. Wins. 389; Clarke v. White, 12 205. 11 L.R.A.(N.S.) 201, 122 Am. Pet. 178. 9 L. ed. 104G: Prince Al- St. Rep. 232, 80 N. E. 817, 11 Ann. hert v. Strange, 1 Macn. $ C 2."). 42: Cas. 332; Am. Law Book Co. v. Ed- McGowin v. Remington, 12 Pa. St. ward Thompson Co.. Bishoff, L, X. 56. Y. Special Term. 1907. The Lloyd Sabaudo v. Cubicciotti, 159 Fed. 101. See § 276, supra. 892 INJUNCTIONS. [§ 2S3 essary on the part of the United States ; and if, upon dissolving the injunction, it appears to the satisfaction of the judge that the application for the injunction was merely for delay, the judge may add to the lawful interest assessed on all sums found due against the complainant such damages as, with such lawful interest, shall not exceed the rate of ten per centum a year. Such injunction may be granted or dissolved by the district judge either in or out of court." 1 "When the district judge refuses to grant an injunction to stay proceedings on a distress warrant, as aforesaid, or dissolves such injunction after it is granted, any person who considers himself aggrieved by the decision in the premises may lay before the circuit justice, or circuit judge of the circuit within which such district lies, a copy of the proceedings had before the district judge; and thereupon the circuit justice or circuit judge may grant an in- junction, or permit an appeal, as the case may be, if, in his opinion, the equity of the case requires it. 2 "Whenever an as- sociation against which proceedings have been instituted, on ac- count of an alleged refusal to redeem its circulating notes as aforesaid, denies having failed to do so, it may, at any time within ten days after it has been notified of the appointment of an agent, as provided in section fifty-two hundred and twenty-seven" of the Revised Statutes of the United States, "apply to the nearest District, or Territorial court of the United States to enjoin further proceed- ings in the premises; and such court, after citing the Comptrol- ler of the Currency to show cause why further proceedings should not be enjoined, and after the decision of the court or finding of a jury that such association has not refused to redeem its circulating notes, when legally presented, in the lawful money of the United States, shall make an order enjoining the Comptroller, and any receiver acting under his direction, from all further proceedings on account of such alleged refusal." 3 A district attorney of the United States acting under the direc- tion of the Attorney-General may upon a petition obtain an in- junction to restrain a contract, combination in the form of a trust or otherwise, or a conspiracy in restraint of trade or com- § 283. 1 U. S. R. S., § 303G. 8TJ. 8. E. S., § 3637. »U. S. R. S- § 5237. 284} WHEN DENIED. 893 meree, or a monopoly of any part of trade or commerce among the several States or with foreign nations. 4 Compliance with the interstate commerce act may also, in certain cases, be com- pelled by an injunction. 5 § 284. When injunctions will not issue. As a general rule, it may be stated that an injunction will not issue at the prayer of one who will suffer no pecuniary injury from the act which he wishes to prevent. 1 Thus, one will not lie granted at the suit of a State to prevent the invasion of a purely political right; 2 or of adjacent property owners and church members to prevent a railroad from outraging their religious feelings by running cars upon Sunday ; ° nor at the suit of a minister of the gospel to prevent the use of his building for theatrical pur- poses, under a lease the validity of which he dispute*. 4 The Emperor of Austria and King of Hungary, however, was al- lowed an injunction to prevent Kossuth and his associates from manufacturing in England paper currency not purporting to be issued by imperial authority, intended for circulation in Hun- gary, upon the ground that his property rights were thereby injured, 5 and a bill was sustained when tiled by the consul of Austria and Hungary, to restrain a beneficial association from using the name of the Emperor of those countries as a part of its corporate name, and from the use of that Emperor's portrait as a part of its advertising literature, in order fraudulently to *26 St. at L., ch. 647, p. 209; 28 St. at L., p. 570; U. S. v. Trans- Missouri Freight Ass'n, 106 U. S. 290, 41 L. ed. 1007; U. S. v. Joint Trallic Ass'n, 171 U. S. 505, 43 L. «d. 259.; Addyston P. & S. Co. v. U. S., 175 U. S. 211, 44 L. ed. 136: U. S. v. Alger, 62 Fed. 824. It lias been held that this statute applies to a strike intended to prevent the operation of a railroad used for in- terstate commerce. Thomas v. Cin- cinnati, X. O. & T. P. Ry. Co., 62 Fed. 803, 821; U. S. v. Alger, 62 Fed. 824; U. S. v. Elliott. 62 Fed. 801; U. S. v. Workingmen's A. C. of N. O., 26 L.R.A. 15S, 54 Fed. 904; In re Lennon, 166 U. S. 548, 41 L. ed. 1110. But see U. S. v. Patter- son, 55 Fed. 605, § 276. supra. It was held that an injunction will not issue to compel obedience to 4j 3 of this Act. Central Stockyards Co. \ . Louisville & N. R. Co., 112 Fed. S23. 5 24 St. at L., 380. § 2S4. I High on Injunctions; § 20. SGeorgia v. Stanton, (i Wall. 50, 18 L. ed. 721. 3 Sparhawk v. Union P. R. Co., 54 Pa. St. 401. *Bodwell v. Crawford, 26 Kan. 292. 41) Am. Hep. 306. 5 Emperor of Austria v. Pay. 2 Giff. 628; s. c. on app7. 29 Halsey v. Brotherhood, 45 L. T. (X. S.) 640; Celluloid Mfg. Co. v. Goodyear D. V. Co., 13 Blatchf. 375; Pentlarge v. Pentlarge, 14 Repr. Fed. Prac. Vol. I.— 57. 570; X. F. Filter Co. v. Schwartz- walder, 58 Fed. 577. 30 Rubber Tire Wheel Co. v. Good- year Tire & Rubber Co., C. C. A., 183 Fed. 078. 31 Electric Renovater Mfg. Co. v. Vacuum Cleaner Co., 180 Fed. 754. 32 Lovell-McConnell Mfg. Co. v. Automobile S. Mfg. Co., 103 Fed. 658. 33 H,, 1,1, s Mfg. Co. v. Gooding. C. C. A.. 1 13 Fed. 615. it has been held that this may be done by a motion in the original case. Asbes- tos Stiingle, S. & S. Co. v. II. W. Johns-Man vilb- Co., ISO Fed. 611. 84 Meyers v. Skinner, 186 Fed. 347. 35 Hold that it can, in Ide v. Ball Engine Co., 31 Fed. 901, U. S. C. ('., S. D. Illinois, by Allen. J.; 898 INJUNCTIONS. [§ 2S5 junction may issue against the publication and circulation of posters and handbills in aid of a boycott, 36 and of threats to commit an unlawful act. 37 An injunction will not issue in the maintenance of a monopoly in- case jurious to public policy; nor in any other when its operation would be repugnant to public policy. 39 An injunction will not issue when the removing- party has a plain, adequate, and complete remedy at law. 40 The Revised Statutes of the United States provide that "no attachment, in- junction or execution shall be issued against a 'national bank' association or its property before final judgment in any suit, ac- tion, or proceeding in any State, county, or municipal court."' 41 An injunction will never be issued merely because it will do no harm. 42 § 285. Distinction between the judicial writ and the writ remedial. Injunctions were formerly either judicial writs or Emaek v. Kane, 34 Fed. 46; U. S. C. C, X. D. Illinois, by Blodgett, J. : Home Ins. Co. v. Xobles, 63 Fed. 642. Cf. Palmer v. Travers, 20 Fed. 501, U. S. C. C, S. D. X Y., by Wheeler J.; Celluloid Mfg. Co. v. Goodyear D. V. Co., 13 Blatchf. 375, U. S* C. C, S. D. X. Y., by Hunt J.; Lewin v. Welsbach Light Co., 81 Fed. 004, E. D. Pa.: A. B. Far- quhar Co. v. Xational Harrow Co., C. C. A.. Third Circuit., 49 L.R.A. 755. 102 Fed. 714. See Shoemaker v. South, etc. Co.. 135 Ind. 471, 22 L.R.A. 332. Held that it cannot, in Kidd v. Horry. 28 Fed. 773, U. S. C. C. E. D. Pa., by Bradley and McKennan. JJ.; Baltimore C. W. Co. v. Bemis. 29 Fed. 95. U. S. C. C. D. Mass.. by Colt and Carpenter, JJ. : Fougeres v. Murbarger. 44 Fed. 292. U. S. C. C, D. Indiana, by Woods, J.: International T. C. Co. v. ( armichael, 44 Fed. 350. 351. U. S. ('. C. E. D. Wis., by Jenkins. J.; Davison v. Xational Harrow Co., 103 Fed. 360, X. D. X. Y. ; Edison v. Thomas A. Edison, Jr., Chemical Co., 128 Fed. 957. See Francis v, Flinn. 118 U. S. 385. 30 L. ed. 165; Kelley v. Ypsilanti. D. S. M. Co. 10. L.R.A. 686, 44 Fed. 19. 23. 36 Casey v. Cincinnati Typ. Union Xo. 3, 12 L.R.A. 193. 45 Fed. 135; Coeur d'Alene Cons. >& Min. Co. v. Miners' Union, 19 L.R.A. 382, 51 Fed. 260; High, Injunctions, § 1415o. 37 Continental Ins. Co. v. Board of Fire Underwriters, 67 Fed. 310. S8 Pullman P. C. Co. v. Texas & Pac. Ry. Co., 11 Fed. 025: s. c, 4 Woods. 317; Foil's Appeal, 91 Pa. St. 434, 438. 30 Am. Rep. 671. But see Edison El. Lt. Co. v. Sangerman El. Co., C. C. A., 53 Fed. 592: supra. § 276. 89 Bryant v. W. U. Tel. Co., 1? Fed. S25; Blake v. Greenwood- Cem. r 14 Blatchf. 342: Denehey v. Harris- burg. 2 Pearson (Pa.). 330. 334. 40 U. S. R. S., § 723; High, In- junctions, § 28. 41 U. S. R. S., § 5242. 42 Teller v. U. S., C. C. A- 11 3: Fed. 463. § 2S6] MANDATORY INJUNCTIONS. 80 It writs remedial. A judicial writ was a direction to yield up. to ([iiiet, or to continue the possession of lands, and is said to be in the nature of a writ of execution. 1 It was issued in aid of, and only after a tinal decree in equity; and, in extraordinary circumstances, in aid of a judgment at law. 2 Under the equity rules, however, it is never necessary; and it had previously fallen into disuse in England. All other injunctions are writs remedial. § 286. Distinction between mandatory and prohibitory injunctions. Injunctions are either mandatory of prohibitory. A mandatory injunction is one that commands a defendant to perform a certain act or acts; a prohibitory injunction, one that forbids a defendant's doing a certain act or acts. Mandatory are far less common than are prohibitory injunctions. Those most frequently issued have been such as commanded a defend- ant to abate a nuisance, 1 or to deliver the possession of Ian. I. 2 Tbev also have been granted to compel the return of letters and other documents, 3 the delivery of personal property whose loss could not be compensated in damages. 4 the giving of collateral § 285. 1 Eden on Injunctions. chs. i and xvii. pp. 1, 2, 201, 202; Beamers' Orders, 8, 16. 2 Boult v. Blunt, Cary, 72; Eden on Injunctions, 202. § 28G. l Lane v. Newdigate, 10 Yes. 192; Robinson v. Lord Byron. 1 Bro. C. C 58S; Honey v. Smith, 1 K. & J. 389; Rankin v. Huskis- son. 4 Sim. 13; Bickett v. Morris. L. R. 1 II. L. Sc. 47; Cole S. M. Co. v. Virginia & G. H. W. Co., 1 Saw. 470. 2 Hepburn v. Auld, 5 Craneh, 262. 3 L. ed. 90: Hepburn v. Dunlop, 1 Wheat. 179. 4 L. ed. 03; Find-lay v. Hinde. 1 Pet. 241. 7 L. ed. 128: Pokegama S. P. L. Co. v. Klamoth R. L. & I. Co., 80 Fed. 528. 3Evitt v. Price. 1 Sim. 483; Seton on Decrees (4th ed.), 179. See also (lark.- v. White, 12 Pet. 178, 9 L. od. 1040. 4 Pusey v. Pusey, 1 Vern. 273: Duke of Somerset v. Cookson, 3 P. Wms. 389; Greatrex v. Greatrex. 1 De G. & Sm. 002; McGowin v. Rem- ington. 12 Pa. St. 50, 51 Am. Dec. 584; Dinsmore v. L. C. & L. Ry. Co., 2 Fed. 465; Dinsmore v. L.. X. A. & C. R. Co.. 3 Fed. 593: (oe v. L. & X. R. Co.. 3 Fed. 775: Orinsbv v. Union Pac. R. Co., 4 Fed. 706; Texaa Exp. Co. v. Texas & P. Ry. Co., 6 Fed. 426: Chicago & A. Ry. Co. v. X. Y.. L. E. & W. R. Co.. 34 Fed. 516; C. S. M. Co. v. V. & G. 11. W. Co.. : Saw. 085: Chicago. B. & Q. Ry. Co. v. Burlington. C. 1!. & X. Ry. Co.. 34 Fed. 4S1 ; Southern Pac. R. Co. v. City of Oakland. 58 Fed. 60; In re Lennon. 160 U. S. 548. 41 L. od. 1110: Pokegama S. P. L. Co. v. Klamuth R. L. & I. Ry. Co., 86 Fedi 52S: Fairfield Floral Co. v. Bradbury. S7 Fed. 415; Mot- ley v. Southern Ry. Co., 164 Ffed. 956, stock in. a corporation: High on 900 INJUNCTIONS. [§ 286 security in obedience to a contract, 5 the making of a policy of insurance, 6 the stopping and receiving freight by a railroad company at a particular place, 7 the performance of a contract by one railroad company to send freight over the lines of an- other railroad. 8 the receipt of freight cars and passengers from one railroad company by another, and the transportation of the same, 9 the furnishing of equal facilities by a railroad company to another railroad company, 10 or to a shipper, 11 and the rescis- sion of an order for the boycott of a railway company. 12 and to enjoin a reduction of charges for the transportation of freight and passengers, which deprived the complainant of its property without due compensation. 13 In a ease involving the constitu- tionalitv of certain Kentuekv statutes, the court refused a man- datory injunction compelling a distribution of the money raised by a tax upon white people partly among public schools for colored children, in the absence of any contract right or legislative authority for such a distribution ; but granted "a de- cree enjoining and restraining the proper parties from apply- ing to the use of the schools organized for and at which white children only are allowed to attend, one-fourth of the money heretofore, or which may be hereafter, collected under the au- thority of the act of 1871 and its amendments." 14 Mandatory injunctions are usually issued in a negative form, restraining Injunctions, (4th ed.) §§ 2, 5a, 358, 708, &c. See Mandatory Injunc- tions, by Judge Jacob Klein. 12 Harv. Law Rev. 95. 5 Robinson v. Cathcart, 2 Crancli G. C. 590. 6 Union M. Ins. Co. v. Commercial Mut. M. Ins. Co.. 2 Curt. 524. 7 Coe v. Louisville & X. R. Co., 3 Fed. 775: McCoy v. Cincinnati, I., St. L. & C. R. Co., 13 Fed. 3. 8 Chicago & A. Ry. Co. v. X. Y., L. E. &. \V. R. Co.. 31 Fed. 51 G. 9 CHicago, B. & (). Ry. Co. v. Bur- lington. C. R. & X. Ry. Co.. 34 Fed. 48] I Toledo. A. A. & X. Mi. R. Co. v. Pennsylvania Co.. 19 L.R.A. 38T, 5 Inters. Com. Rep. 522, 54 Fed 730; In re Lennon, 166 U. S. 548, 41 L. ed. 1110. 10 Ibid. 11 Butchers & D. St. Co. v. Louis- ville, S. & X. R. Co., C. C. A.. 6.7 Fed. 35; Wells, F. & Co. v. X. Pac. Ry. Co., 23 Fed. 469. 12 Chicago, B. & Q. Ry. Co. v. Burlington, C. R. & X. Ry. Co.. 34 Fed. 481 ; Toledo. A. A. & X. M. R. Co. v. Pennsylvania Co., 54 Fed. 730; In re Lennon. 166 U. S. 548, 41 L. ed. 1110. See So. Cal. Ry. Co. v. Rutherford, 62 Fed. 796. 13 Love v. Atchison, T. & S. F. Ry. Co.. C. C. A., 185 Fed. 321. 14 Barr, J., in Claj brook v. Owens- boro, 23 Fed. 634, 636. 287] PROVISIONAL AND PERPETUAL INJUNCTIONS. 901 a defendant from desisting; or refusing to do an act. 15 They are very rarely granted upon interlocutory motions. 16 § 287. Distinction between provisional and perpetual in- junctions. Provisional, also called preliminary or interlocu- tory, injunctions are such as are to continue until a certain time usually specified therein; for example, until the coming in of the defendant's answer, the hearing of the cause, the master's report, or the further order of the court. 1 Perpetual also called final, injunctions are those which, as their name denotes, per- petually restrain the defendant from the same act or acts. Pro- visional injunctions may be granted at any time during the progress of a suit. Perpetual injunctions can never be granted except at the time of the entry of the decree. 2 The setting up of outstanding terms can, it has been said, only be restrained by a perpetual injunction. 3 Mandatory injunctions also will very rarely be granted before a decree. 4 "It is a rule of practice in the Circuit Courts of the United States not to allow an injunc- 15 Southern Exp. Co. v. St. Louis, I. M. & S. Ry. Co.. 10 Fed. 210, 869; Smith v. Smith, L. R. 20 Eq. 500, 504: Cole S. M. Co. v. Virginia & G. H. W. Co.. 1 Saw. 470. 16 Denver & X. O. R. Co. v. At- chison, T. & S. F. R. Co.. 13 Fed. 546; McCauley v. Kellogg, 2 Woods, 13; Camblos v. Phil. & R. R. Co., 9 Phila. (Pa.) 411; s. c, 4 Brews. (Pa.) 563; Rogers L. Works v. Erie Ry. Co., 5 C. E. Green (20 X. J. Eq.), 379; Miles v. Johnston, 59 Fed. 38: Am. Lead Pencil Co. v. Sehpeegass, 178 Fed. 735; Winton Motor Carriage Co. v. Curtis Pub. Co., 196 Fed. 906. But see Bach- man v. Harrington, 184 X. Y. 458, infra. § 291. But see Dinsmore v. L. C. & L. Ry. Co., 2 Fed. 465; Dinsmore v. L., X. A. & C. R. Co., 3 Fed. 593 ; Coe v. L. & X. R. Co., 3 Fed. 775; Ormsby v. Union Pac. R. Co.. 4 Fed. 706; Texas Exp. Co. v. Texas & P. Ry. Co.. 6 Fed. 426; Chicago & A. Ry. Co. v. X. Y., L. E. & W. R. Co.. 34 Fed. 516; C. S. M. Co. v. V. & G. H. W. Co.. 1 Saw. 685: Chicago. B. & Q. Ry. Co. v. Burlington, C. R. & X. Ry. Co., 34 Fed. 481; Southern Pac. R. Co. v. City of Oakland. 58 Fed. 50: In re Lennon. 160 U. S. 548. 41 L. ed. 1110; Pokegama S. P. L. Co. v. Klamoth R. L. & I. Ry. Co.. 86 Fed. 528; Fairfield Floral Co. v. Brad- bury, 87 Fed. 415. See Mandatory Injunctions, by Judge Jacob Klein, 12 Harv. Law Rev. 95. § 287. 1 Daniell's Ch. Pr. (2d Am. ed.) 1810: High. Injunctions. § 3; Eden. Injunctions, ch. xv. ZDaniell's Ch. Pr. (2d Am. ed.) 1903: Adams v. Crittenden. 17 Fed. 42. SHylton v. Morgan. 6 Yes. 293: Byrne v. Byrne, 2 Sch. & Let. 537 : Barney v. Luckett, 1 Sim. & S. 419; Xortliey v. Pearce, 1 Sim. & S. 420. 4 Camblos v. Phila. & R. R. Co.. 9 Phila. (Pa.i 411 : s. c. 4 Brcwst. ( Pa. i 563; Rogers I- ML Works v. Erie Ry. Co.. 5 C. E. Green I X ■ !. . 379. But see Dinsmore v. L.. C. & 902 INJUNCTIONS. [§ 288 tion to stay an ejectment suit until it can be investigated in equity, unless a judgment be entered therein." 5 § 288. Distinction between common and special injunc- tions. Injunctions were formerly of two kinds, common and special. Common injunctions were granted, as of course, upon the defendant's default either in appearing or answering, and were only applicable to restrain proceedings at common law. 1 Special injunctions were those granted, not as a matter of course, but upon the special circumstances of the case as dis- closed by the answer of the defendant or upon affidavits. 2 Com- mon injunctions have been abolished by the Revised Statutes. 3 The learning upon the subject, which is very technical, seems now, therefore, useless, and will not be repeated here. 4 § 289. Time and place of applications for interlocutory injunctions. An injunction may be obtained, at any time, as well in vacation as in term, and whether the court be sitting or not, at any place within which the judge granting it has juris- diction and at almost any stage of the cause. 1 "But no justice of the Supreme Court shall hear or allow any application for an injunction or restraining order in any cause pending in the circuit to which he is allotted, elsewhere than within such circuit, or at such place outside of the same as the parties may stipulate in writing, except when it cannot be heard by the dis- trict judge of the district." 2 In England it has been held, that, in a very extraordinary case, an injunction may be granted upon petition before the filing pf a bill or the service of a sub- poena. 3 In a court of the United States an injunction has been issued upon the tiling of the bill and before service of the sub- L. Ry. Co., 2 Fed. 465; Coe v. L. & X. R. Co., 3 Fed. 775, and other cases cited under § 225. 5 Billings, J., in Heirs of Szy- wauski v. Zunts, 20 Fed. 361, 363, citing Turner v. Am. B. M. Union, 5 McLean. 344. § 288. IDaniell's Ch. Pr. (2d Am. ed.) 1877. s'TJaniell's Ch. Pr. (2d Am. ed.) 1833. SPerrv v. Parker, 1 W. & M. 280; Lawrence V. Bowman, 1 McAll. 419. 4 See Daniell's Ch. Pr. (2d Am. ed.) 1811-1833. § 2S9. IDaniell's Ch. Pr. (5th Am. ed.) 1663; Kerr on Injunctions, 543, 545 ; Bacon v. Jones, 4 Myl. & Cr. 433. 2Jud. Code, § 264, 36 St. at L. 1087. 3 Mayor of London v. Bolt, 5 Ves. 129. § 290] INJUNCTIONS NOT PKAYED IN BILL. 903 poena; 4 and a restraining order was granted upon the present- ment of a bill to the court before its filing, when a notice of an application for leave to file the same had previously been given to the defendants. 5 It has been held that a aon-residen1 defendant who cannot be served with process may be enjoined from infringing a patent within the district. 6 An injunction will ordinarily be refused while a demurrer or plea to the bill is pending. 7 But in cases of emergency, the court may order the sufficiency of such a pleading to be argued before the regular time for such a proceeding, together with the motion for the in- junction; 8 or even grant a restraining order without waiting for the argument. 9 Should a motion be heard while a de- murrer is on the file and undisposed of. it seems that upon the hearing of the motion the allegations in the bill will be con- sidered as admitted. An application for an injunction has been refused because the bill had been referred for scandal. 11 § 290. Injunctions not prayed for in the bill. The Eng- lish rule w T as that an injunction would not issue against a person not made a party to a bill specifically praying an in- junction against him; 1 and the injunction had to be prayed for not only in the prayer for relief, but also in the prayer for process. 2 To this, however, there were four exceptional classes of cases. If the court had by its decree taken the distribution or control of property into its own hands, it would prevent in- jury thereto either by the parties litigant or others, although no injunction had been prayed by the bill. 3 Thus, in a fore- closure suit, it would restrain waste by the mortgagor after a decree for an account; 4 and after a decree for the administra- * Schermerhorn v. L'Espenasse, 2 Maltby v. Bobo, 14 Blatehf. 53; Rre- Dall. 3G0, 1 L. ed. 41.5. mont v. Merced M. Co., 1 McAU. 5 St. Louis & S. F. R. Co. v. Had- 2 of the article claimed to be patented, and the damages which the plaintiff will suffer can be readily reckoned in money. 11 Danger of inconvenience to the public is a ground for refusing a pre- did not deny, the intention of the city to declare the forfeiture. 7 Ford v. Taylor, 140 Fed. 356; McCarthy v. Bunker Hill & S. Min. & C. Co.. et al.. 147 Fed. 981: Gold- field Consol. Mines Co. v. Goldfield Miners' Union Xo. 220, 159 Fed. 50,0; Central of Georgia Ry. Co. v. Railroad Com. of Ala.. 161 Fed. 925: Andrae v. Redfield. 12 Blatchf. 407, Fed. Cas. Xo. 367. Contra, Henry Gas Co. v. U. S„ C. C. A., 191 Fed. 132. 8 Woodside v. Tonopah &■ G. R. Co.. 1S4 Fed. 358; Mackay Tel. & Cable Co. v. City of Texarkana, Ark.. 199 Fed. 347. See Corcoran v. Xat. Tel. Co. of West Virginia, C. C. A.. 175 Fed. 761 : Jackson Co. v. Cardiner Inv. Co., C. C. A., 200 Fed. 113. 9 Minneapolis General El. Co. v. City of Minneapolis, 194 Fed. 215. 10 Los Angeles C. \Y. Co. v. Los Angeles, 88 Fed. 720; U. S. v. Jel- lico M. C. & C. Co., 43 Fed. 898. 11 Foster v. Moore, 1 Curt. 279; Morris v. Shelbourne, 8 Blatchf. 266; Gilbert & B. Mfg. Co. v. Buss- ing. 12 Blatchf. 426: Swift v. Jenks, 19 Fed. 641; Hoe v. Boston D. Adv. Co., 14 Fed. 914; V. S. Annunciator Co. v. Sanderson. 3- Blatchf. i84. But see Gibson v. Van Dresar. 1 Blatchf. 532: Tracy v. Torrey. 2 Blatchf. 275; Parkhurst v. Kins- man. 2 Blatchf. 78: McYVilliams Mfg. Co. v. Blundell. 11 Fed. 419. The rules of decision upon motions for injunctions in patent suits are explained in § 277. supra. 205] WKIT OF IXJ INC'l'ION. 913 liminarv injunction. 12 A preliminary injunction may also be refused when the plaintiff has been guilty of laches in apply ing for it; even though his delay has not been such as t<> dis- entitle him to a perpetual injunction after the hearing. 1 * If an injunction has been obtained by an interlocutory order, and it is desired to continue it provisionally after a hearing, a direction to that effect should be inserted in the interlocutory decree then entered. 14 The court may refuse to continue an injunction when the cause for which it was granted has been removed before the hearing-. 15 In such a case, the decree should usually declare that the injunction has properly been issued and award the complainants costs. 16 Upon the argument of a motion for an injunction the defendant can raise any defense to the substance of the hill that would he set up by a demurrer. 17 Upon an interlocutory application a decision of a Federal court in another circuit will usually he followed, 18 but not necessarily the decision of a State court which was made after the contro- versy between the parties to the suit in the Federal court had arisen. 19 The court may refuse to grant an injunction although all parties consent that one shall issue. 20 § 295. The writ of injunction. Immediately upon the entry of an order for an injunction, the party who obtained it. is entitled to have the writ issued from the clerk's office and served. 1 He should attend to this within a reasonable time. Where the writ was tested six weeks after the entry of the 12 Southwestern B. El. L. & P. Co. v. Louisiana El. L. Co.. 45 Fed. 893; supra. S 277. 13 Gordon v. Cheltenham Ry. Co., 5 Beav. 2-20: Mundy v. Kendall, 23 Fed. 591 : Kerr on fnj. 22. 23. A delay of several months while the railway company was testing the ef- fect of a reduct ion of rates, is not such laches. Love v. Atchison. T. 6 S. F. Ry. Co;, C. C. A., 18.") Fed. 321 ' WDaniell's Ch. Pr. (2d Am. ed.i 1902; Gardner v. Gardner, 87 X. Y. 14. 15 Lewis Pub. Co. v. Wyman, 108 Fed. 756. V Fed. Prac. Vol. L— 58. 16 Smith v. Engersoll Sergeant Roek Drill Co., 7 Misc. I \. Y.) 374. 377: Williams v. United Wire- less Teleg. Co.. 1 N. Y. Sup. Ct.; Bischoff, J., X. Y. L. J. April 24. 1912, in which the author was coun- sel. 17 Ladd v. Oxnard. 75 Fed. 703. is Dady v. Sa. 4 A. Itv.. 112 Bed. 838: 'supra, § 277. W Jackson t'o. v. Gardiner Inv. Co.. c. C. A.. 2(i(i Fed. 113. 20 Nat. Phonograph Qo. v. Schle- gel, 1 17 Fed. 624. § 295. 1 Daniell's Ch. Pr. (2d Am. ed.) 1810. 1817, 19(14. 914 INJUNCTIONS. [§ 295 order granting it and was not served till nearly a year after- wards, the court refused to punish the defendant for disobed- ience, saving that, after the lapse of so much time, the plain- tiff should have applied for leave to use the writ. 2 Like all other writs and process issuing from the courts of the United States, writs of injunction must be under the seal of the court from which they issue, and signed by the clerk thereof. Those issuing from the Supreme Court or a Circuit Court must bear teste, from the date of such issue, of the Chief Justice of the United States, or, when that office is vacant, of the associate Justice next in precedence, and those issuing from a District Court must bear teste of the judge, or, when that office is vacant, of the clerk thereof. 3 "The orders pronounced by the court in cases of special injunctions before answer, have varied at dif- ferent periods. The form most frequently adopted enjoined the party 'till further order/ In some cases the injunction has been till 'appearanre and further order;' in other till 'answer and further order.' But the form at present used, and which is established by a rule laid down by Lord Eldon, is 'till answer or further order.' This has been adopted as giving defendant the liberty to move, if necessary, to dissolve upon affidavit, before he has answered the bill." 4 The writ should contain a concise description of the particular acts or things in respect to which the defendant is enjoined ; 5 and should conform to the direc- tions of the order granting the injunction. 6 If, however, the writ is broader than the order warrants, the defendant should apply to the court for an order setting it aside or modifying it. 7 It seems that he is not justified in disobeying it and raising the objection when a motion is made for an attachment against him. 8 "The defendants ought to be informed as accuratelv as the case permits what they are forbidden to do." 9 It seems 2 McCormick v. Jerome, 3 Blatehf. 48G. 3 1'. S. R. S., §§ 911, 912. * Darnell's Ch. Pr. (2d Am. ed.) 1895; Read v. Consequa, 4 Wash. 174. See Bolton v. London School Board, 7 Ch. D. 700, 771; Gardner v. Gardner. 87 X. Y. 14; State v, Wakeley, -28 Neb. 431.. 437. 5 Whipple v. Hutchinson, 4 Blatch. 190. 6 Sickles v. Borden, 4 Blatehf. 14. 7 Ibid. 8 Ibid. 9 Swift & Co. v. U. S., 196 U. S. 375, 401, 49 L. ed. 518, 52G. § 295] WRIT OF INJUNCTION. 015 that a writ is insufficient, which designates the acts sought to be enjoined, by a reference to the bill, without describing them. 10 When a carrier has been adjudged to have violated the interstate commerce law, the court should only enjoin certain specific violations. An injunction should not be granted com- manding the carrier, in general terms, not to violate the act in the future in any particular. 11 The injunction should not include a direction, after specific inhibitions, forbidding the defendant to act by any other method or device, the purpose and effect of which is to restrain commerce as aforesaid.'' 12 The English practice was to mention in the writ a money penalty to be incurred by the defendant if he disobeyed it ; but that docs not seem to be necessary here. 13 The writ should be addressed to the persons whom it is desired to enjoin. 14 If the injunction is against waste, or forbids the continuance of a nuisance, or some other similarly inequitable act, it is usually addressed to the defendant, his servants, workmen, and agents. 15 No re- straint is laid upon the agent, servant or employee personally, but merely as the agent, servant or employee of the enjoined defendant. 16 Notwithstanding the injunction, upon ceasing to 10 Whipple v. Hutchinson, 4 Blatchf. 190; Sullivan v. Judah, 4 Paige (X. Y.), 444. 11 N. Y., X. H. & H. R. R. Co. v. Interstate Commerce Commission, 200 U. S. 361, 404, 50 L. ed. 515, 526. 12 Swift & Co. v. U. S., 196 U. S. 375, 401, 49 L. ed. 518, 526. 13 Low v. Hauel, 1 Wall. Jr. 345. HDaniell's Ch. Pr. (2d Am. ed.) 1817. 15 Kerr on Injunctions. 559; Dan- iell's Ch. Pr. (5th Am. ed.) 1673; Humphreys v. Roherts, Seton's De- crees ( 4th ed.), 173; in re Lennon, 166 U.*S. 548. 41 L. ed. 1110. In Dadirrian v. Gullian, 79 Fed. 784: "The writ is directed specifically to the defendants in the suit, and then generally, without naming them, to their servants, agents, and em- ployees. The ohject of this general- iation is to prevent the defendants from doing by others that which the court has forbidden them to do personally; from accomplishing in- directly a result prohibited by the court. The full effect of the order is that the defendant shall not do the unlawful act himself, neither shall his agent, servant, or employee do it for him. nor shall the defend- ant do it as the agent, servant or employee of another. Potter v. Mul- ler. 1 Bond. 601. Fed. (as. No. 11.333." See People ex rel. Stearns v. Marr. 181 X. Y. 463, 106 Am. St. I vc-i .. .-)(i:2. 74 X. E. 431. 3 Ann. Oas. ■2.")-. infra, § 428. 16 Dadirrian v. (Jullian. 79 Fed. 7S4: Slater v. Merritt, 75 X. Y. 268; Wellesley v. .Mornington, 17 E-eav. 181. 910 INJUNCTIONS. [§ 295 be the agent, servant or employee of the defendant, a person not named in the injunction is free to act for himself in the pro- tection of his own rights, although it involves his doing the very thing forbidden him when in the employ of his former master. 17 He may avoid obedience to a mandatory injunction, which does not name him, bv actually ceasing to be an em- ployee of the defendant. 18 He may enter the service of another master, who is a stranger to the suit, and then be as free as the latter from the obligation to obey the court's decree. 19 It has been said: that "those who are followers or companions of de- fendants, who are strikers, are and will be bound by the writ of injunction issued herein, to the same extent and as fully as if named in the writ." 20 Where an injunction restrained the defendants, "and all other persons having knowledge of this injunction order;'' it was held: that it affected only the agents or servants of the defendants, or those acting in combination or collusion with them, or in assertion of their rights or claims; and that persons not in any way connected with them were not restrained, and could not be punished for Contempt because they committed the forbidden act. 21 In a suit to restrain proceedings in another court, the injunction usually is directed against the defendants, his attorneys and agents, even though the bill prays for an injunction against the defendant alone. 22 But the 17 Mexican Ore Co. v. Mexican G. M. Co.. 47 Fed. 351 : Dadirrian v. Gullian, 79 Fed. 784. 18 Toledo, A. A. & X. M. Ry. Co. v. Pennsylvania Co.. 19 L.R.A. 395, 54 Fed. 746; Dadirrian v. Gullian, 70 Fed. 784. 19 Dadirrian v. Gullian. 79 Fed. 7S4: People v. Randall. 73 X. Y. 410: Slater v. Merritt, 75 X. Y. 268. 20 Union Pac. R. Co. v. Ruef, 120 Fed. 102, 100. In Anderson v. In- dianapolis Drop Forging Co., 34 Did. App. 100. 72 X. E. 277, it was held that pickets for a labor union, although not made defendants in an injunction suit, are amenable to the injunction restraining the union, and all persons confederated or con- spiring with it, from obstructing the business of plaintiff and its em- ployes, where they have actual no- tice of such injunction. 21 Rigas v. Livingston. 178 X. Y. 20. [n State v. Porter, 76 Kan. 411, 13 L.R.A. (X.S.) 402. 91 Pac. 1073, held: that the purchaser of land, with knowledge of an injunction en- joining his grantor and the former's agents, successors, assigns, and all persons whomsoever from maintain- ing a liquor saloon on such land could be punished for contempt of the injunction. This case was criti- cised in xxi Harv. Law Rev. 220. See infra, $ 428. 22DanieU'8 Ch. Pr. (5th Am. ed.) 1673. § 296] DISSOLUTION OF IX. JUNCTIONS. 917 latter's tenants cannot l>e thus enjoined, unless they have be- come such after the commencement of the suit or have been made parties to it. 23 In one case an injunction was granted against all persons acting in concert with the defendants named and under their direction and control.^ 4 The! writ should be in- dorsed or subscribed with the name and office address of the plaintiff's solicitor, or with the name and residence of the plaintiff if he appears in person. 25 § 296. Dissolution and modification of interlocutory in- junctions. The common injunction was dissolved as of course upon the defendant's putting in a sufficient answer to the bill. The practice in such a ease was for him to obtain an order nisi, npon the return of which the injunction was always dissolved, unless the plaintiff could show that the answer was insufficient for the purpose either of defense or of discovery. 1 A special injunction can only be dissolved by a special motion, either in open court or at a special hearing appointed elsewhere for that purpose by a judge of the court. 2 The motion may be made at any time before decree, 3 even, it seems, before the defendant has been served with process, 4 and before he has appeared. 5 When a special injunction has been granted against several defendants, any of them may move to dissolve it as against himself; but he should in that case serve the others as well as the plaintiff with a notice of his motion. 6 Tn one case after answer, a notice left at the office of the solicitor for the plaintiff during his absence from the city three days before the motion was held sufficient. 7 Tf the motion to dissolve is made before answer, it 23 Hudson v. Coppard, 21) Beav. 3 Kerr on Inj. 500; Darnell's (li. 4; Kerr on Inj. 543. Pr. (5th Am. ed.) 1.675s Met. G. 24 U. S. v. Elliott, 64 Fed. 27, 35. & S. Excli. v. Chicago B. of T., 15 25 Kerr on Inj. 550; Daniell's Ch. Fed. 847. Pr. (5th Am. ed.) 1074. 4 Shields v. McClung. 6 W. Va. § 296. i Daniell's Ch. Pr. (2d 7!>. Am. ed.) 1820-1821); Poor v. Carle- 5 Menzies v. Rodrigues. 1 Priee, ton, 3 Sumn. 70; New York v. Con- 92. necticut, 4 Dall. 1, 3, note 1, 1 L. 6 Thompson v. Geary. 5 Beav. 131 ; ed. 715, 716, per Washington. J. Kerr on Inj. 504. But sec Daniell's 2 Kerr on Inj. 501 : Daniell's Ch. Ch. Pr. (5th Am. ed. ) 1070. note 1. Pr. 1675; Wilkins v. Jordan, 3 7 Caldwell v. Walters, 4 Craneh. Wash. C. C. 226; Caldwell v. Wal- C. C. 577. ters, 4 Crancli, C. C. 577. 918 INJUNCTIONS. [§ 296 must be supported by affidavits or documentary proof contra- dicting the statements upon which the injunction was obtained, 8 unless the defendant can show that it is plain upon the face of the plaintiff's bill and affidavits that he was not entitled to the injunction, when the motion will be granted. 9 When the injunction has been irregularly issued, the defendant should move to discharge the order "ranting it. 10 If he should move to dissolve it, he might be held to have by so doing recognized its regularity. 11 It was held that after a demurrer put in by him to the bill had been overruled a defendant could only move to dissolve by leave of the court ; which was, in one case, only granted upon his affidavit that the demurrer was not interposed for delay, and his giving security to pay all damage to the plain- tiff thereby caused. 12 "Where the application for dissolution was made after answer, it was originally thought that the plaintiff could not show that any of the allegations therein contained were false ; 13 but that doctrine has been, in this country at least, exploded, 14 and it is well settled that the plaintiff not only may dispute the truth of such allegations, whether they are positive or negative, but is at liberty to file counter affidavits in reply to new matter contained in the defendant's affidavits or answer. 15 It has been held: that a preliminary injunction will not be dissolved upon an answer admitting the material equities of the bill and setting up new matter in avoidance. 16 When a stay-order has been made, and simultaneous appli- cations, by the defendant to discharge the stay-order, and by the plaintiff for an injunction, are heard together the plaintiff has SDaniell's Cr. Pr. (5th Am. ed.) 1676; Young v. Grundy, 6 Cranch, 51, 3 L. ed. 149. 9 Hudson v. Maddison, 12 Sim. 416; Kidwell v. Masterson. 3 Cranch, C. C. 52: Fenwick Hall Co. v. Town of Old Saybrook, 66 Fed. 389. lOAngier v. May, 3 W. R. 330; DanielPs Ch. Pr. (5th Am. ed.) 1676: Kerr on Inj. 564. 11 Vipan v. Mortlock, 2 Meriv. 476; Kerr on Inj. 564. 12 Woodw -orth v. Edwards, 3 W. & M. 120. iSDaniell's Ch. Pr. (5th Am. ed.) 1676, note 4. 14 Poor v. Carleton, 3 Sumn. 70; U. S. v. Parrott. 1 McAll. 271; Orr v. Littlefield, 1 \Y. & M. 13; Orr v. Merrill. 1 W. & M. 376; Clum v. Brewer, 2 Curt. 506. 15 Day v. New Eng. C. S. Co.. 3 Blatchf. 154; Daniell's Ch. Pr. (5th Am. ed.) 1676; Shoemaker v. Nat. Mech. Bank, 1 Hughes. 101. 16 Pere Marquette R. Co. v. Brad- ford, 149 Fed. 492. 296] DISSOLUTION OF INJUNCTIONS. 919 the right to open and close the argument. 17 If upon the appli- cation to dissolve an injunction the court is not satisfied that the plaintiff is entitled to retain it, it will dissolve the injunc- tion, and may then direct an issue, an action at law, or a refer-, ence before the hearing. 18 If, however, it is satisfied that the plaintiff is entitled to the writ, the court will direct the in- junction to be continued until the hearing. 19 Formerly where the court dissolved the injunction upon the ground that it appeared upon the face of the bill that the plaintiff was not entitled thereto, and that was the only relief prayed for by him, it could at the same time dismiss the bill; for the plain- tiff had still the right to bring the suit to a hearing. 20 If the question is left in doubt upon the motion to dissolve, it seems that the motion will be denied. 21 A modification of an injunc- tion may be refused in a case, where if asked before the in- junction was issued it might have been allowed but equities have since arisen. 22 The ambiguity of the order granting the injunction is sufficient ground for its dissolution or modifi- cation. 23 The defendant's delay in moving to dissolve the in- junction may deprive him of his right to have it dissolved. 24 When a special injunction has been granted after a full hearing, it will not be dissolved except on new evidence. 25 It has been held that a preliminary injunction will not be dissolved after answer upon grounds shown by affidavits, wdiich, from their not having been set up in the answer, cannot be used at the hear- 17 Fraser v. Whalley, 2 Hem. & M. 10. iSDaniell's Ch. Pr. (2d Am. ed.) 3897. 19 Packington v. Packington, 1 Dick. 101; Daniell's Ch. Pr. (5th Am. ed.) 1678. 20 Brooke v. Clarke, 1 Swanst. 550; Blow v. Taylor. 4 Hen. & Muni. (Ya.) 150. But see infra, § 300. 21 Cooper v. Mattheys, 5 Penn. L. J. 38; s. c, Law R. 413; Fisher v. Lord, 6 West L. J. 137; Woodworth v. Hall. 1 W. & M. 389; Woodworth v. Rogers, 3 W. & M. 135; Spark- man v. Higgins, 1 Blatchf. 205. But see Edison El. L. Co. v. Westing- house El. & Mfg. Co., 54 Fed. 504. 22 Sperry & Hutchinson Co. v. .Me- chanics' Clothing Co., 128 Fed. loi;,. It has been said that a modification of the order will usually he refused when its effect would be to change the position of the property affected by the suit. Ulman v. Ritter. 72 Fed. 1000. 23 Dalglish v. Jarvie, 2 Macn. & G. 231. 24 Florence S. M. Co. v. Grover & Baker S. M. Co.. 110 Mass. 1; Kerr on Inj. 565.; Antisdel v. Chicago H. C. Co.. S9 Fed. 308. 311. 25 Woodworth v. Hall, 1 W. & M. 389. 020 IXJUXCTIOXS. [§ 20(> ing of the whole case. 26 A judge will very rarely dissolve an injunction granted by one of his judicial brethren. 27 It has been said that, in case of the death of the judge who made the order, the motion to dissolve it should be made before two judges. 28 A temporary injunction may be modified or dissolved bv a District Court after it has been affirmed upon appeal. 29 It has been said that a Court of first instance has no power to modify or dissolve a perpetual injunction contained in an in- terlocutory decree which has been affirmed upon appeal. 30 It is the safer practice for the defendant to obtain a clause in the order of affirmance granting leave to the District Court to mod- ify the injunction order. 31 After an injunction has been dis- solved, if evidence subsequently taken shows that it was prop- erly issued, it may be issued anew. 32 The dissolution of an ex parte injunction on account of a suppression of material facts does not preclude the plaintiff from applying for another in- junction on the merits. 33 An injunction may also be dissolved if the plaintiff is guilty of gross and inexcusable delav in taking testimony or in bring- ing the cause to a hearing ; 34 or by inequitable conduct, such as a misrepresentation concerning the contents of the injunction made to the trade, 35 and in general if from a change of circum- stances its continuance would no longer serve any useful pur- pose. 36 The subsequent passage of an act of Congress legalizing 26 Union P. B. M. Co. v. Newell, 11 Blatchf. .349. 27 Cole S. Min. Co. v. Virginia & G. H. W. Co.. 1 Saw. 685; Preston v. Walsh, 10 Fed. 315; Reynolds v. Iron S. Min. Co.. 33 Fed. 354; Klein v. Fleetford, 35 Fed. 98. 28 Westerly Waterworks v. Town of Westerly, 77 Fed. 783. 29 Edison El. L. Co. v. U. S. El. L. Co.. C. C. A., 59 Fed. 501; An- drews v. National F. & P. Works, 61 Fed. 7S2. 790: s. c, 10 C. C. A.. (JO, 68; s. c, 24 U. S. App. 81. Gf. Standard El. Co. v. Crane El. Co., C. C. A., 76 Fed. 707, 794. 30 p.issell C. S. Co. v. Goshen S. Co., 72 Fed. 545. 3lHadden v. Dooley. C. C. A., 74 Fed. 429. 32 Tucker v. Carpenter, Ilempst. 440. 33 Fitch v. Rochfort. 18 L. J. Ch. 45S: High, Injunctions. § 1474. 34 Read v. Consequa. 4 Wash. C. C. 174; Bradley v. Reed, 12 Pitts. L. J. 65; Schermerhorn v. L'Es- penasse, 2 Ball. 360, 1 L. ed. 415; In re Matter of Schwarz, 14 Fed. 787. 35 Meyers v. Skinner. 186 Fed. 347. See supra. § 284. 36 In re Jackson, 9 Fed. 493; Re Pitts. 9 Fed. 542. § 296] DISSOLUTION OF INJUNCTIONS. 921 a structure which has been enjoined as a nuisance is a reason for the dissolution of an injunction. 37 It has been held thai an injunction staying proceedings at law against a bankrupt is dissolved ipso facto by his discharge; 38 but remains un- affected by his delay in applying for his discharge. 39 It has been held that at the expiration of a patent the court will dissolve an injunction against its infringement, and leave the complainant no remedy except his claim for damages against the subsequent sale and use of articles manufactured while the patent was alive in infringement thereof. 40 An injunction is not dissolved by an amendment of the bill 41 unless the amendment substantially changes the cause of action. 42 or abandons the prayer for the injunction. 43 But it is custom- ary to include in the order allowing an amendment a direc- tion that it be "without prejudice to the injunction." The allowance of a demurrer to the whole bill put an end to an injunction which has previously been obtained; 44 but leave was usually given to amend without prejudice to the injunction, when the demurrer was allowed on account of a defect in form, 45 such as multifariousness; 46 or for the omis- sion of an allegation that could readily be supplied even if the same were essential to the jurisdiction. 47 The allowance of a plea did not dissolve an injunction. "There may be some equity shown to continue it. An order for its dissolution must be obtained." 48 An injunction is not dissolved by an abatement or bv a defect in the suit, but the defendant must, if he wishes 37 Baird v. Shore L. Ry Co., 6 Blatchf. 401 ; Hadden v. Dooley, C. C. A., 74 Fed. 429. 38 In re Thomas. 3 X. B. R. 7. 39 In re Schwartz. 14 Fed. 787, 789. 40 YYestinghouse v. Carpenter, 43 Fed. 894, Miller and Love. J.T.; Am. C. Ry. Co. v. Chicago C. Ry. Co., 41 Fed! 522. But see Am. D. R. B. Co. v. Rutland U. Co.. 2 Fed. 356; supra, §§ 79. 277. 41 Reed v. (onsequa, 4 Wash. C. C. 174; Warburton v. L. & 1',. Ry. Co.. 2 Beav. 253. But see Sharp v. Ashton, 3 V. & B. 144. « Atty. Gen. v. Marsh. 16 Sim. 572; Kerr on In j. 566. « Westcott v. Mulvane, 58 Fed. 31)5. 44 Schneider v. Lizardi, !) Beav. 401. 408; Five & Bruhn v. Cars- tens. C. C. A., 130 Fed. 700. « Riverside & A. Ry. Co., v. Riverside. 1 IS Fed. 730, 740. 4 e Rawlinga v. Lambert, 1 J. & H. 458: Kerr on Inj. 505, 500; Le- high Z. & I. Co. v. V .1. Z. & I. Co., 43 Fed. 515. 550. *1 Lehigh Z. & I. Co. v. X. .1. Z. & 1. Co., -13 Fed. 545. 5511. 48 KiTr on Inj. 500; Phillips v. 922 INJUNCTIONS. [§ 297 to be freed from the restraint thereby imposed, move that the plaintiff or his representatives be required to revive or take such other steps as may be necessary within a limited time, and that if he fail to do so the injunction may be dissolved. 49 Generally an interlocutory injunction is dissolved by the entry of a final decree which does not continue the same. 50 § 297. The imposition of terms upon the issue, denial, dissolution, or continuance of an injunction. As the issue of a special injunction is in its discretion, the court may impose terms upon the plaintiff or defendant when granting or refusing the issue, dissolution, or continuance of the same. 1 The usual terms are the giving of a bond or undertaking with good se- curity to indemnify the other party against all loss that may result from the issue or withholding of the injunction. 2 These undertakings were invented by Vice-Chancellor Knight Bruce, and originally they were required only upon ex parte injunc- tions, being designed to protect the court as well as the de- fendant from improper ex parte applications. Later the prac- tice was extended to interlocutory injunctions granted upon notice to the defendant, first in special cases, then generally; •and now they are usually required as a matter of course in England and in most of the United States, although in some of Langhorn, Dick. 148: Ferrand v. Hamer, 4 M. & C. 143. 49 Chowick v. Dimes. 3 Beav. 200 ; Lee v. Lee, 1 Hare, 622; Chester v. Life Ass'n of Am., 4 Fed. 4S7. 50 Sweeney v. Hanley, C. C. A., 120 Fed. 97, 99; Gardner v. Gard- ner. 87 N. Y. 14. For a case where an injunction was not dissolved by the dismissal of the hill, see rndianapolis & X. W. Tr. Co. v. Consol. Tr. Co. 125 Fed. 247. § 297. 1 Russell v. Farley, 105 U. S. 433, 20 L. ed. 1000 ; N. J. & X. C. Land & Lumber Co. v. Gardner-Lacy Lumber Co.. 113 Fed. 395; Marvel Co. v. Pearl, 114 Fed. 940; Carpen- ter v. Knollwood Cemetery. 195 Fed. 96, 100; Coca-Cola Co. v. Nashville Syrup Co., 200 Fed. 153. a trade- mark case where the complainant was required to give a bond. 2 Russell v. Farley. 105 U. S. 433, 26 L. ed. 1060;Kirby Bung Mfg. Co. v. White, 1 Fed. 604; Northern Pac. R. Co. v. St. P., M. & M. R. Co.. 2 McCrary, 260; s. c, 4 Fed. 688. In a suit by a minority stockholder to enjoin a sale of the corporation's assets, where it appeared that the complainant's damage, if any. was purely pecuniary; it was held to be proper for the court to authorize the substitution of a bond by the defend- ant, instead of a preliminary in- junction. Jackson Co. v. Gardiner Inv. Co. C. C. A., 200 Fed. 113. See supra. § 145; and cases arising under "Bills to enjoin the infringe- ment of patents," supra, §§ 146, 277. § 297] INJUNCTION BONDS. 923 the circuits the Federal judges are accustomed to grant in- junctions without such a requirement. The reason for the re- quirement is that upon an interlocutory application but a shorl time is allowed for the preparation of the case, and it is im- possible for the court to obtain a complete knowledge of the facts. Moreover these applications are heard upon affidavits, so that it is impossible to say which side will ultimately prove to be right. Consequently the court reserves the right to in- demnify the defendant in case it should have been induced, upon an incomplete state of facts, to make a wrong order. 3 It is not usual to require security from the United States when a preliminary injunction is granted at their request in a suit in which they are plaintiffs. 4 It has been said that a bond should not be required unless, the court is not reasonably satis- fied of the right to the relief prayed and is satisfied that the granting of the injunction may cause irreparable injury to the defendant. 5 This doctrine has been the source of great in- justice and is not usually followed in the State courts. 6 It has been held that, where there is proof that the defendant has been guilty of bad faith in connection with the subject of the suit. no bond should be required. 7 The court, instead of requiring a bond from the complainant, may impose, as a condition of the injunction order, that he pay any damages sustained by the defendant in case it should be determined that the injunction should not have issued. In such a case, if complainant avails himself of the writ, he is bound by the condition; and, upon the dissolution of the injunction, he may be directed to pay the defendant's damages. 8 In one ease, where no such con- dition was reserved, upon the dissolution of a restraining order the court directed the complainant to pay the defendant's dam- ages, which it then assessed. 9 Where the defendant to an action at law obtained, after verdict, an injunction staying the pro- ceedings, upon his giving a bond for the payment of the amount 3 Smith v. Day. 21 Ch. D. 421. ' Pasteur C. F. Co. v. Funk, 5? See Lowenfeld v. Curtis. 72 Fed. 105. Fed. 14(>. 147. 4C.*S. v. Jellico. M. C. & C. Co., » Mica Insulator Co. v. Commer- 43 Fed. 898. cfal Mica Co.. 1">7 Fed. 02. 5 Carpenter v. Knolhvood Ceme- 9 National Phonograph Co. v terv. 105 Fed. 96. American Graphophone Co., 136 6 See Bigh on Injunctions. (4th Fed. 23J~ ed.) SS 1619-i634a. 924 INJUNCTIONS. [§ 297 of the verdict with interest should the injunction finally be dis- solved and judgment entered thereupon ; it was held, that he therein- waived any errors in the action at law previous to the grant of the injunction, and that he could not. after its dissolu- tion, prosecute a writ of error to review the judgment at law for alleged errors at the trial. 10 The court often withholds an injunction to restrain the infringement of a patent, 11 copy- right, 12 upon the filing of a bond by the defendant; and even upon his merely undertaking to keep an account of his sales during the pendency of this suit. 13 In England, injunctions have been withheld in other cases upon the defendants giving undertakings to abide by the further order of the court. 14 The court has power, when dissolving the injunction, to absolve the bondsman from liability. 15 An injunction will never be issued to restrain the collection of State taxes, unless the plaintiff first pays "what is conceded to be due, or what can be seen to be due on the face of the bill, or be shown by affidavit, whether conceded or not." 16 Interlocutory injunctions to restrain the execution of a statute or order reducing the price of gas have been accom- panied with the provision that the excess over the rate fixed by statute, 17 or order, 18 should be deposited in court to abide the event of the suit. Interlocutory injunctions against the en- forcement of statutes reducing the charges for freight or passen- gers have been accompanied by the provision that the railway company should execute a bond, conditioned to pay into the reg- istry of the court, at such times as ordered, money equal to the 10 Leigh v. Kewanee Mfg. Co.. C C. A.. ]47 Fed. G93. ll Supra, § 277. 12 S upra. § 278. 13 Furl ni: sli v. Bradford. 1 F ish. Pat. (as. 31 7; McCrary v. Perm. C. Co.. .1 Fed . 367-; -Mclnt; i - re v. W. U. Tel. Co.. 113 Fed. 1022, supra, § 277. "Atty. Gen. v. M. & L. Ry. Co., 1 (Eng.) Ry. Cas. 436; Jones v. G. W, Ry. Co.. 1 (Eng.) Ry. Cas. 684. 15 Russell v. Farley. 105 U. S. 403, 26 L. ed. 1000. Of. Allen v. Jones, 70 Fed. (198. 16 State Railroad Tax Cases, 92 F. S. 575, 617, 23 L. ed. 003. (174; National Bank v. Kimball. 103 U. S. 732. 26 L. ed. 469: Albuquerque Nat. Bank v. Perea. 147 U. S. 87. 37 ii ed. 91 ; Parmley v. Railroad Cos., 3' Dill. 25; Huntington v. Palmer. 8 Fed. 449; supra. § 153. 17 Consolidated Gas Co. v. Mayer, 146 Fed. 150. 18 Buffalo Gas Co. v. Buffalo, 156 Fed. 370; Lincoln Gas Co v. Lin- coln. 223 U. S. 349. 56 L. ed. 466; San Francisco Gas & FI. Co. v. City and County of San Francisco, lu'4 Fed. 884; Pacific Tel. & Tel. Co. v. City of Los Angeles, 192 Fed. 1009. § 298] INJUNCTION BONUS. 925 difference between the amount collected and that which would have been received had the statute been obeyed ; and that each ticket buyer should receive a coupon for the payment by the reg istry clerk of the court of the excess stated, if the act should be finally sustained. 19 § 298. Collection of injunction bonds. It lias been held at Circuit, that when the court upon the final hearing dissolves an injunction previously granted, or grants an injunction pre viously denied upon the giving of a bond or undertaking, the successful party can have his damages assessed and the bond or undertaking enforced bv the court in the same suit, without be- ing required to bring a new action at law. 1 Where the amount of the recovery is uncertain, the sureties should have notice of the application to enforce the bond. 2 A District, Court has jurisdiction of an action at law upon the bond where it exceeds $3,000, irrespective of the citizenship of the parties, because the suit arises under the laws of the Tint- ed States. 3 The validity of the injunction bond is not affected by the fact, that it was dated prior to the order, where the sureties justified and the bond was filed after the order was made. 4 The bond or undertaking inures to the benefit of the defendant who suffers injuries, irrespective of the exact time when he has knowledge of the pendency of the action or ap- pears therein. 5 The fact that the defendant is a woman, and that the undertaking is to make good to the defendant "all 19 Hunter v. Wood, 209 U. S. 205, 207, 52 L. ed. 747, 748. § 298. iLea v. Deakin, 13 Fed. 5] 4; Coosaw Mini Co. v. Farmers' Min. Co.. 51 Fed. 107: Lamb v. Ewing. C. C. A.. 54 Fed. 209; stra. §51. See also Russell v. Farley. 105 U. S. 433, 26 L. ed. 1060; Leslie v. Brown, C. C. A.. 90 Fed. 171; Deakin v. Stanton, 3 Fed. 435*; Grundy v. Young, 2 Craneli. C. C. 114: Bentley v. Joslin. ILmpst. 218; Moore v. Moore. 25 Beav. S: Sud- den v. Hull. 28 Beav. 263. Contra, Curtis. J.. In Merrylield v. Jones, 2 Curt. 300; West v. Fast Coast Cedar Co., C. C. A., 113 Fed. 742. See also Bein v. Heath. 12 How. 1(38. 13 L. ed. 939; Cimiotti Unhairing Co. v. Am. Fur Refining Co.. 158 Fed. 171 ; afTd. C. C. A. 108 Fed. 529, where the bond provided that the damage should he "•ascertained as the court shall direct." 2 Coosaw M. Co. v. Carolina M. Co.. 74 Fed. S(il) : Leslie v. Brown, ('. ('. A.. 9(1 l\-d. 171. 3 Leslie v. Brown; 90 Fed. 171. 4 Sailors' Union of the Pacific v. Hammond Ltirtiber Co.. ('. < '. A.. 15fi Fed. 45(1. 5 Hutching v. Muim. 299 I'. S. 2 Hi, L u. 926 INJUNCTIONS. [§ 298 damages by him suffered," does not debar her from recovering upon the same. 6 An undertaking given to secure a restraining order is superseded by an order or decree granting an injunc- tion, which does not provide for the continuance of the liabil- ity of the sureties ; and the parties to the same are not liable for any damages subsequently accruing, although the injunc- tion order or decree is afterwards reversed. 7 The liability on the bond is not fixed until the final decree. 8 Xo action can be maintained upon the bond until that time, 9 and until then the court has power to modify or relax the condition of the bond or to discharge the same when the equities require it. 10 Only direct and proximate damages can be recovered upon the bond or undertaking. Remote, conjectural and speculative damages, are disallowed. 11 When the injunction enjoined a house owner 6Hutcliins v. Munri, 209 U. S. 246, 52 L. ed. 770. 7 Houghton v. Meyer, 208 U. S. 14!). 52 L. ed. 432. 8 Nashville. C. & St. L. Ry. v. "Railroad Commission of Alabama, 171 Fed. 223; Southern Ry. Co. v. Railroad Commission of Alabama, 196 Fed. 558. 9 Nashville. C. & St. L. Ry. v. Railroad Commission of Alabama, 171 Fed. 223. 10 Southern Ry. Co. v. Railroad Commission of Alabama, 10G Fed. 558. • 11 Smith v. Day, 21 Ch. D. 421: Chicago C. R. Co. v. Howison. 80 111. 215: Hotcbkiss v. Piatt. 8 Hun ( N. Y.), 40; Livingston v. Exum, 1!) S. C. 223. See Swift & Co. v. Kortrecht, C. C. A.. 112 Fed. 709: Baer v. Fidelity & D. Co., 130 Fed. 94. Where the injunction forbade interference with the possession of personal property, it was held that the defendant upon the dissolution ■could recover all damages caused by bis delay in obtaining possession of the property, including any loss caused by a fall in the market price, if it had a market price and could have been sold at once on the market for a sum nearly equal to its value, but not if it had no market price and could not have been sold imme- liately for a sum "anything like its value;" and that the price which the defendant might have made by the use of the property in his busi- ness was too remote and speculative to be recovered. Lehman v. Mc- Quown. 31 Fed. 138. It has been held: that "an injunction bond in an action in the District Court of the United States for the District of Louisiana, conditioned that the obligors 'will well and truly pay the' obligee, "defendant in said injunc- tion, all such damages as be may recover against us, in case it should be decided that the said writ of in- junction was wrongfully issued,' which bond was made under an or- der of the court 'that the injunction be maintained on the complaining creditor's giving bond and security to save the parties harmless from the effects of said injunction,' is a sufficient compliance with the order of the court, and when construed 298] INJUNCTION BONDS. 927 from completing alterations, without which the house was only partly habitable, she \v;is allowed to recover on the undertaking the reasonable rental value of the house for the season. 18 When an order restrained the Postmaster General from refusing to transmit mail at second-class rates, the liability on the under taking wa& the difference in postage on the matter mailed, while the restraining order was in force. 13 li has been held by the Su- preme Court that the fees of counsel in procuring the dissolu- tion of the injunction cannot be included in the damages upon the bond. 14 This decision is, however, in conflict with the weight of authority in the United States. 15 The liability of the complainant is limited to the amount of the bond. 16 It has been held that no further damages, interest, nor eosts, can be awarded against him. 17 The court might direct the insertion of a clause in the bond providing that counsel fees should be included in the damages. It has been held : that where no se- curity is given, the defendant has no remedy to recover dam- ages caused by an injunction improperly issued, unless, per- haps, where the facts will support an action for malicious prose- cution. 18 It seems to be doubtful in England, whether the un- dertaking can be enforced upon the dissolution of the injunc- tion on the ground that the court erred as to the law. 19 An in- with reference to the rule prevailing in the Federal courts (contrary to that prevailing in the State courts of Louisiana.),, that without a bond and in the absence of malice no damages can he recovered in such case means that the obligors will pay such damages as the obligee may recover against them in a suit on t lie bond itself, whether incurred before or after the giving of the bond." Meyers v. Block, 120 U. S. 206, 30 L. ed. 642. 12 1!utchins v. Munn, 200 U. S. 246, 52 L. ed. 776. 13 Houghton v. Meyer, 208 U. S. HO, 52 L. ed. 432. HOelrichs v. Spain, 15 Wall. 211. 21 L. ed. 43. This rule lias been ap- plied to an action upon an injunc- tion bond, given in a court in the territory of Alaska. Lindeberg v. Howard, C. C. A., 140 Fed. 467. 15 See High on Injunctions. § 16Sf>. and cases cited. 16 Cimiptti Unhairjng Co. v. Am. Fur Refining Co.. C. C. A.. 168 Fed. 520: affirming 158 Fed. 171. 17 [bid. MScheck v. Kelly. 95 Fed. 041 ; City of St. Louis v. St. Louis Gas- light Co.. 82 Mo. 354. Contra, Na- tional Phonograph Co. v. Am. Graphophone Co., 136 Fed. 23 1. See supra, § 2!i7. 19 Smith v. Day. 21 Cli. D. 421. 424. 426, 12s. i29, 43 1. Bui 3ee Nbvejlo v. James, 5 De G., M. & G. 876. 928 INJUNCTIONS. [§ 299 junction bond, which is expressed to be for the benefit of the defendant, imposes no liability upon the surety for damages caused by the injunction to a person not a party 1 to the suit. 20 The surety cannot, pending an appeal from a decree for the defendant to the injunction suit, maintain a hill of n both sides are heard, the order granting an injunction or appointing a re- ceiver, after a consideration of the same, is appealable. 18 An appeal was entertained in such a case, although counsel for the defendant appeared specially to object to the jurisdiction and were heard upon the merits as amid ciir'nr} 9 It seems that in every case where counsel appears in opposition to a motion for an injunction or receiver, there is a hearing and the order is appealable. 20 It has been held that an ex /"trie order ap- pointing a receiver is appealable. 21 The fact that the order or decree which grants an injunction also gives other relief, such as an accounting, which, if granted alone, could not be reviewed until the final decree; does not prevent a review of the entire order. 22 The Circuit Court of Appeals can in every case re- verse the whole order and dismiss the bill or grant such other final relief on the merits as the case before it may Justify. Such final disposition of the case will not. however, ordinarily I'Griesa v. Mutual Life Ins. Co., C. C. A.. 165 Fed. 48. 18 Shubert v. Woodward, C. C. A., 167 Fed. 47; Root v. Mills, C. C. A., 168 Fed. 688. 19 Northern Pac. Ry. Co. v. Pacific Coast Lumber Mfrs,' Ass'n, C. C. A., 16.5 Fed. 1. 20 Shubert v. Woodward. C. C. A., 167 Fed. 47. 21 Joseph Dry Goods Co. v. Hecht, C. C. A.. 120 Fed. 760. Contra, Root v. Mills. C. C. A.. 168 Fed. 68S; where it was held that, by moving to modify such an ex \><\rt< order, the defendant acquiesced in the same, and that such application constituted a hearing, and that up- on the denial of the latter motion the time to appeal began to run. 22 Smith v. Vulcan Iron Works. 165 U. S. 518. 41 L. ed. 810; lie Tampa S. R. Co.. 168 U. S. 583, 42 L. ed. 58!); Highland Class Co. v. Schmertz Wire Class Co.. C. C. A., 178 Fed. 944: Sheffield Car Co. v. D'Arcy, C. C. A.. 194 Fed. 686. 23 Smith v. Vulcan Iron Works, 165 I". S. 518, 41 L. ed. 810: AY Tampa Suburban R. R. Co.. 168 V. S. .vs.!. 42 L. ed. 589; Metropolitan Co. v. Kaw Valley District. 223 U. S. 519. M\ L. ed. 5.33: Highland Glass Co. v. Schmertz Wire Glass (<>.. C. C. A.. ITS I'ed. 944: l.a Hogue Drainage Diet. No. 1 of Iro- quois County. 111. v. Watt-. C. Q. A.. 179 led. 690; Henry Cas Co. v. l\ S.. C. C. A.. 191 Fed. 132; Sheffield Car Co. v. D'Arcy. ('. < '. A.. 194 Fed. 6S6 : Texas Tract inn Co. v. Barron G. Collier. C. C. A, 195 Fed. 65. 9JU INJUNCTIONS. [§ 300 be made where the evidence has not been taken by deposition, unless the pleadings or the undisputed facts show that there can either be no right to relief or no defense to the bill. 24 The fact that previously to the granting of an injunction a demurrer to the equity of the bill had been overruled and an answer filed, does not prevent the consideration of that question by the appel- late court in such a case. 25 It has been held that a party who has not been enjoined cannot take such an appeal. 26 Upon an ap- peal from an order granting or continuing an injunction the Circuit Court of Appeals will ordinarily not review disputed questions of fact arising from contradicting affidavits when there has been no cross-examination, especially before issue is joined. 27 But is has been held that this rule does not apply to an appeal from an order granting an injunction restraining the enforcement of a statute regulating railroad rates. 28 Upon an appeal from an order enjoining the infringement of a pat- ent which had been adjudged valid in a previous suit, where the record contained only the affidavits used upon the motion below, it was held that the question of infringement was pre- 24 Highland Ave. & B. R. Co. v. Columbian Eq. Co., 3 68 U. S. 627, 42 L. ed. 605; Lake Nat. Bank v. Wolfeborough Saw Bank, C. C. A., 7S Fed. 517: U. S. Rubber Co. v. Am. 0. L. Co., C. C. A., 82 Fed. 248; Stearns-Roger Mfg. Co. v. Brown, C. C. A.. 114 Fed. 939. But see Fidel- ity I. T. & S. D. Co. v. Dixon. C. C. A., 78 Fed. 205. Nor in a suit to enjoin the infringement of a pat- ent which contains a large number of claims not previously adjudi- cated. Nat. El. Signaling Co. v. Telefunken Wireless Tel. Co., C. C. A.. 200 Fed. 591. Where the in- junction was granted by the Dis- trict Court because of a prior adju- dication between other parties. without considering the questions upon the merits, the appellate court will usually make the same disposi- tion of the matter upon an appeal. Fireball Gas Tank & I. Co. v. Com- mercial Acetylene Co., C. C. A., 198 Fed. 650. See § 364, infra. 25 Henry Gas Co. v. U. S., C. C. A., 191 Fed. 132. 26 Stearns-Roger Mfg. Co. v. Brown, C. C. A., 114 Fed. 939, 942. 27 Kerr v. New Orleans, C. C. A., 126 Fed. 920; Railroad Commission v. Rosenbaum, C. C. A., 130 Fed. 110; James v. Wild Goose Mining & Trading Co., 143 Fel. 868; Mc- Carthy v. Bunker Hill & Sullivan Mining and Concentrating Co., C. C. A., 164 Fed. 927; King Lumber Co. v. Benton, C. C. A., 186 Fed. 458. 28 Railroad Commission of Alaba- ma v. Central of Georgia Ry. Co.. C. C. A., 170 Fed. 225. This excep- tion was not applied to an appeal from an injunction against a mu- nicipal ordinance regulating tele- phone charges. City of Owensboro § 300] APPEALS FROM LXJ L'^CTIO.N ORDERS. 9:55 sented for review. 29 The Circuit Court of Appeal- may. 30 but rarely will review the exercise if its discretion by the Circuit Court upon the grant or continuance of an injunction or the appointment of a receiver; 31 but if there is no equity in the bill it will dissolve the injunction 32 or the receiver-hip. 33 as the case may be, even it has been held when the point is nol suggested in the assignment of errors 34 noj* raised in the court below. 35 Where the bill states a case that might justify relief, the defendant is amply protected by a bond and a dissolution of the injunction would cause irreparable injury to the com- plainant; the Circuit Court of Appeals will rarely disturb the status quo until after the final decree. 36 It has been said that the Circuit Court of Appeals should not consider questions con- cerning the scope of the injunction which were not called to the v. Cumberland Telephone & Tele- graph Co., C. C. A., 174 Fed. 739. 29 Ferry-Halloek Co. v. Herman, C. C. A., ]78 Fed. 550. 30 Charles E. Hires Co. v. Con- sumers* Co., C. C. A.. 100 Fed. 809. 31 Bartholomew v. Union Paper & Bag Co., C. C. A., 113 Fed. 289; U. S. Gramaphone Co. v. Seaman, C. C. A., 113 Fed. 745; Stearns-Roger Mfg. Co. v. Brown. C. C. A., 114 Fed. 939; Am. Fur Ref. Co. v. Cimiotti Unhairing Co., C. C. A., 118 Fed. 838; Harding v. Corn Products Refining Co.. C. C. A., 168 Fed. 658; City of Owensboro v. Cumberlanl Telephone & Telegraph Co., C. C. A.. 174 Fed. 739: Kings County Raisin & Fruit Co. v. U. S. Consol. Seeded Raisin Co., C. C. A., 182 Fed. 59; City of Shelbyville, Ky. v. Glover, C. C. A., 184 Fed. 234: Love v. Atchison. T. & S. F. Ry. Co.> C. C. A.. 185 Fed. 321; Interurban Ry. & Terminal Co. v. Westinghouse Electric & Mfg. Co., C. C. A., 180 Fed. 166; King Lum- ber Co. v. Benton, C. C. A.. 186 Fed. 458; Acme Acetylene Appliance Co. v. Commercial Acetylene Co., C. C. A., 192 Fed. 321: Texas Traction Co. v. Barron G. Collier. C. C. A., 195 Fed. 65; City of Grand Rapids v. Warren Bros. Co., C. C. A.. 196 Fed. 892. 32 Xew Albany Waterworks v. Louisville Banking Co.. C. C. A., 122 Fed. 776; Kerr v. New Orleans, C. C. A., 126 Fed. 920; Continuous Glass Press Co. v. Schmertz Wire- Glass Co.. C. C. A.. 153 Fed. 577: Bush v. Pioneer Mining Co.. C. C. A.. 154 Fed. 481); Shelbyville v. Glover, C. C. A.. 184 Fed. 234: Love v. Atchison. T. .V- S. F. Ry. Co., C. C. A.. 185 Fed. 321: Acme Ace- tylene Appliance Co. v. Commercial Acetylene Co., C. C. A.. 192 Fed. 321. 33 Northern Securities Co. v. Tlar- riman. C. C. A.. 134 IVd. :V.U ; s. C, ad'. 196 U. S. 641, 49 L. ed. 631; Cabaniss v. Reco Min. Co., C. C. A.. 116 Fed. 318. 34 Cabaniss v. Reco Min. Co.. C. C. A.. 116 Fed. 31 s. 323. BSShuberl v. Woodward, C. C. A., 167 Vv<\. 47. 86 Coram \. Ingersoll, C. C. A.. 133 Fed. 226. See City of Grand :•:;<; INJUNCTIONS. [§ 304 attention of the court below. Where the court refuses to read or hear affidavits and letters that are pertinent evidence in op- position to an application for an injunction, they must be con- sidered by the Circuit Court of Appeals. 37 Where, on the hearing of a petition for injunction against infringement, affi- davits used on a prior hearing are referred to and used, they should, under the circumstances of this case, be incorporated in the record on an appeal. 38 Such an appeal does not affect the jurisdiction of the District Court to proceed with the cause in every respect, not involved in the appeal. 39 The grant or denial of a supersedeas upon such an appeal is within the dis- cretion of the court below. 40 A supersedeas may be allowed upon the filing of a bond by the appellant, 41 but such a bond is not indispensable. 42 Where the appeal is taken in open court, there need be no summons nor severance. 43 If it is necessary to bring in parties not duly served with the citation, the defect may be corrected in the court of review. 44 Where the contro- versy between the parties had been substantially settled pend- ing an appeal, the order was affirmed without passing upon the equity of the bill. 45 Rapids v. Warren Bros. Co.. C. C. A.. 196 Fed. S92. 37 Xew Albany Waterworks v. Louisville Banking Co.. C. C. A., 122 Fed. 776. See Tunstall v. Stearns Coal Co.. C. C. A.. 192 Fed. 808; X. J. Patent Co. v. Schaefer, 178 Fed. 276: Shubert v. Woodward. €. C. A., 167 Fed. 47. 38 Staples & Hanford Co. v. Lord. C. C. A., 148 Fed. 15, 39 Cuyler et al. v. Atlantic & X. C. R. Co.. 132 Fed. 568; Foote v. Parsons Xon-Skid Co.. C. C. A.. 196 Fed. 951. 40 City of Shelbyville v. Clover, C. C. A., 184 Fed. 234. 240. 41 Cotting v. Kansas City Stock- Yards Co., 82 Fed. 850, 857. See infra, Chapter on Writs of Error and Appeals. 42 Pneumatic Scale Corporation v. Automatic Weighing Mach. Co., C. C. A., 200 Fed. 572. There the com- plainant failed to apply for a bond in the court below, and it was held that the appellate court would not require one to be filed because of matters of which such complainant had knowledge when the stay was granted. 43 Williams v. City Bank & Trust Co.. C. C. A., 186 Fed. 419. 44 Ibid. 45 Victor Talking Mach. Co. v. American Graphophone Co., C. C. C, 192 Fed. 1023. CHAPTER XIX. RECEIVKKS. § 301. Definition of receiver. A receiver is an officer ap- pointed by a court of equity to assume the custody of property pending litigation concerning the same. The effect of the ap- pointment of a receiver is to put the property in his custody as an officer of the court, for the benefit of the party ultimately proved to be entitled, but not to change the title or even the right of possession to the property. 1 In England the term is usually applied only to those appointed to receive the rents and profits of land and to get in outstanding property; and one selected to carry on or superintend a trade or business is usual ly denominated "a manager," or u a receiver and manager." But in the United States both classes of officers are called re- ceivers. The Revised Statutes authorize the Comptroller of the Currency to appoint in certain cases a receiver of a national banking association, whose powers and duties are in many re- spects analogous to those of a receiver appointed by a court of equity. 3 But, as the learning upon this subject does not concern the practice of the courts, it will not be considered here. § 302. When receivers will be appointed. A receiver may be appointed to provide for the safety of property pending litigation to determine the title to the same: to preserve prop- erty in danger of being dissipated or destroyed by those haying the legal title to its possession; to preserve the property of in- fants during their minority, when they have no guardian and their parents are dead or untir to be trusted with it ; to preserve the property of idiots and lunatics when it is impossible to ob- § 30l/l Union Bank v. Kansas »See V. S. R. S., S* 5234-5237; CBank, 136 €1 S. 223. 236-, 34 L. 19 St. at L. 63; 1st Supp, U. S. ed 341. 3461 See High on RecfeiV- R; S. 216; 24 St. a, I,., ch. 28, p. 8: ers, (4th ed.) § 1. |,,i(< ' v - Abbott, 17 Fed. 506; swpra, ZDaniell's Ch. Pr. (2d Am. ed.) g§ SI and 94; infra. § 302. 2006. 937 <»:},s RECEIVERS. [§ 302 tain a proper person as committee; and when the appointment is authorized by statute. 1 A receiver may be appointed to pro- vide for the safety of property pending litigation to determine the title to the same, whether the litigation is in a court of equity, 2 or probate, 3 or of bankruptcy, 4 in a foreign court, 5 or sometimes, though very rarely, in a court of law. 6 The most usual cases where a receiver is appointed are suits in equity to obtain equitable assets, for the foreclosure of a mortgage, and for the dissolution or winding up of the affairs of a partnership. It was the English rule that a receiver could not be appointed at the suit of a first mortgagee, since he had it in his power to take possession himself. 7 In this country, however, receivers are frequently appointed in such a case. 8 Ordinarily, a receiver of the effects of a partnership will not be appointed unless the bill prays a dissolution and shows a proper case for the same. 9 But where suits have been instituted to compel partners to act according to the provisions of instruments into which they have entered, the court will take care that the decree shall not be defeated by anything to be done in the meantime, and may ap- point a receiver to protect the property. 10 Receivers may be ap- § 302. l Kerr on Receivers (2d Am. ed.) , 3. 2 Davis v. Duke of Marlborough, 2 Swanst. 108; Curling v. Marquis Townshend, 19 Ves. 628. But see Moore v. Bank of Br. Columbia, 106 Fed. 574. 3 King v. King; 6 Ves. 172; Mat- ter of Colvin. 3 Md. Ch. Dec. 279; Robinson v. Taylor, 42 Fed. 803; Underground El. Rys. Co. v. Owsley, 169 Fed. 67] ; aff'd. C. C. A., 176 Fed. 26. where it was held that the receivership should be provisional until an application to the Surro- gate's Court for the appointment of a temporary administrator could be made and determined, and should then terminate, unless that court refused to make such appointment. 4 Sedgwick v. Place. 3 X. B. R. 35; Alabama & C. R. Co. v. Jones, 5 X. B. R. 97: Keenan v. Shannon, 9 N. B. R. 441. See 30 St, at L. 544, 546, § 2. 5 Transatlantic Co. v. Pietroni, Johns. 604. 6Talbott v. Scott, 4 K. & J., 96; Fingal v. Blake, 2 Molloy, 50; Whitney v. Buckman, 26 Cal. 447; Horton v. White, 84 X. C. 297 ; Jef- freys v. Smith, 1 J. & W. 298; Rob- inson v. Taylor, 42 Fed. 803. But see Tornanses v. Melsing, C. C. A., 106 Fed. 775. 7 Berney v. Sewell, 1 J. & W. 647. 8 See, for example, Stanton v. Alabama & C. R. Co., 2 Woods, 506 ; Allen v. D. & W. R. Co., 3 Woods, 316, 326. 9 Goodman v. Whitcomb, 1 J. & W. 589; Oliver v. Hamilton, 2 Anst. 453: Daniell's Ch. Pr. (2d Am. ed.) 1966, ]967; Kerr on Receivers (2d Am. ed.). 93. 10 Daniell's Ch. Pr. (2d Am. ed.) 1967; Const, v. Harris, T. & R. 496. § 302] APPOINTMENT OF RKf FIVERS. 939 pointed to preserve property in danger of being dissipated or destroyed by those having the local title to its possession, at the suit of beneficiaries, legatees, next of kin. <>r creditors, whore a trustee, 11 executor, 12 or administrator 13 is insolvent and has not given bonds, or is guilty of misconduct; of where two trustees or -executors disagree so that it is impossible for them to act together; 14 at the suit of the United States to cancel a land patent. 15 or at the suit of remaindermen. 16 where the holder of the particular estate or party in possession, as the case may be, is guilty of voluntary or permissive waste, or in a suit by a remainderman when he improperly refuses to renew a lease- hold. 17 In the case of trustees, the court will thus interfere whether the trust is express or implied. 18 Upon an interlocu- tory application, in a suit to enjoin the infringement of a ] tal- ent by an insolvent defendant, a Circuit Court appointed a re- ceiver of the profits made by such infringement. 19 A receiver may be appointed over the property of an infant, 20 when the latter has no guardian, or his guardian is insolvent or has been guilty of misconduct, 21 and he has no parents, or his parents are unfit to be intrusted with the case of his estate. 22 Receiver- may be appointed over the property of idiots and lunatics, when 11 Hagenbeek v. Hagenbeck Z. A. Co., 59 Fed. 14; McC'osker v. Brady. 1 Barb. Ch. (N. Y.) 329; Brodie v. Barry, 3 Meriv. 695; Janeway v. Green, 16- Abb. Pr. (N, Y.) 215, note. 12 Utterson v. Mair, 2 Yes. Jr. 95; Scott v. Becher, 4 Price, 346. But see Gladdon v. Stoneman, 1 Madd. 143, n.; Langley v. Hawk, 5 Madd. 46; Kerr on Receivers (2d Am. ed.) 20. 13 Hervey v. Fitzpatrick, Kay, 421 ; YYaue v. Ware, 42 Ga. 408. "Ball v. Tompkins. 41 Fed. 486. 15 U. S. v. Whitmire, C. C. A., 188 Fed. 422. 16 Yose v. Reed. 1 Woods, 647, 650. "Bennett v. Collev. 2 M. & K. 225; s. c, 5 Sim. 181, 192; Lord Montford v. Lord Cadogan, 17 Yea. 485. is Pritchard v. Fleetwood, 1 Meriv. 54; Daniell's Ch. Pr. (5th Am. ed.) 1724. 19 Parkhurst v. Kinsman, 2 Blatchf. 78. 80 Hicks v. Hicks. 3 Atk. 277; Union Tr. Co. v. 111. M. R. Co.. 117 U. S. 434, 29 L. ed. 963; Sage v. M. & L. R. Co., L25 L. s. 36], 31 L. ed. 694: Kerr on Receivers (2d Am. ed.), 16-18. 21 Pitcher v. Helliar, Dick. 580; High on Receiveus, S$ 725-732. 22 Butler \. Freeman, Amb. 301 ; Kitl'm v. Kill'm. cited in 1 1'. Wins. 705; Kerr on Receivers (.2,1 Am. ed.), 16-18. 940 RECEIVERS. [§ 302 no person can be found disposed to act as committee; 23 or, it seems, when the committee is infirm, or the management of the estate is very onerous, or the committee lives far from the estate. 24 The statutes of the several States authorize the ap- pointment of receivers in numerous cases, especially in provid- ing for the dissolution of corporations. In so far as State stat- utes authorize the appointment of receivers, they will usually be followed by the Federal courts, provided at least that they no not deprive a party of a trial by jury to which he would have been entitled at common law ; and the Federal courts will also observe the statutory conditions required for such appointments. but not the State practice. 25 State statutes forbidding the ap- pointment of receivers or the taking of possession by a mort- 2'affee in certain cases will not be followed by the Federal courts. 26 The statutes of the United States authorize the ap- pointment of a receiver of a national bank by the Comptroller of the Currency in certain specified cases. 27 Until the Comp- troller has acted, a court of the United States may appoint a receiver of the assets of such a corporation. 28 After the appoint- ment by the Comptroller of such a receiver, it is doubtful wheth- er a court of the United States would appoint another ; and 23 Ex parte Warren, 10 Yes. 022; Anon., 1 Atk. 578: Ex parte Rad- ctiffe, J. & W. 631).; Kerr on Re- ceivers (2d Am. ed.), 113. 114. 24 Kerr on Receivers (2d Am. ed.). 113, 114, citing Re Birch, Shelf, on Lun. 140; Re Seaman, Shelf, on Lun. 140. 25 Bates v. International Co. of Mexico. 84 Fed. 518; Flash v. Wil- kerson, 22 Fed. 6S0 ; Fechheimer v. Baum. 37 Fed. 107; Tomlinson & W. Mfg. Co. v. Shatto. 34 Fed. 380; Davis v. Gray, 16 Wall. 203, 219, 220, 21 L. ed. 447, 452, 453: supra, § 82. In Daneel v. Goodyear Shoe Machinery Co., U. S. C. C, S. D. X. V.. April 8th. 1905. in which the author was counsel, Judge La com be appointed a receiver of the prop- erty within the State of a for- eign corporation, the defendant to a suit in equity, after a decree for the payment of money by it and the return of an execution unsatisfied. The appointment was made by a petition at the foot of the decree, which complied with the provisions of the New York Code of Civil Procedure and also with the require- ments of Federal equity practice. Xo opinion was rendered. 26 American Nat. Bank v. Xorth- western M. I. Co.. 89 Fed. 610; siifira, § S3. 27 V. S. R. S.. §§ 5141. 5191. 5195, 5201, 5205. 5234. 5235: 5236; Laws of 1870. ch. 150 (19 St. at L., p. 03); 1st Supp. U. S. R. S., p. 216; fin pro. § 5. 28 Wright v. Merchants' Xat. Bank, 1 Flippin, 568; Irons v. Mfrs. Xat. Bank, 6 Biss. 30L $ 302] APPOINTMENT OF RECEIVERS. 941 after the appointment of a receiver by a court of competent ju- risdiction, it is doubtful whetlier the Comptroller of the Cur- rency could thus interfere. 29 A court of equity may appoint a receiver of the assets of a national hank at the suit of unse cured creditors, without a judgment at law, although the Comp- troller of the Currency has refused to make such an appoint- ment 30 Independently of statutory authority, a court of equity will ordinarily appoint a receiver of the property of a corporation in onlv eight classes of cases: First! v. at the suit of mort- gagees, 81 or other holders of liens upon it, 32 or those whose claims against the owner are purely equitable and cannot other- wise be enforced or protected. 33 Secondly, at the suit of judg ment creditors seeking equitable assets after executions have been returned unsatisfied, and the return shows that there is no corporate property upon which a levy can be made. 34 Thirdly, 29 Harvey v. Lord. 10 Fed. 236. 30 Ki„o v. Pomeroy, C. C. A., 121 Fed. 287. 289. 31 Milwaukee & M. R. Co. v. Soutter. 2 Wall. 510. 17 L. ed. 900; Mercantile Tr. Co. v. Missouri. K. & T. Ry. Co., 1 L.R.A. 397, 3G Fed. 221 ; Farmers' Loan & Trust Co. v. Meridian Waterworks Co., 139 Fed. 661 ; Strain v. Palmer. C. C. A., 159 Fed. G2S. But see Trust & D. Co. of Onondaga v. Spartanburg Water Works. 91 Fed. 324. For such cases where a receivership was denied, sec Farmers' Loan & Tr. Co. v. Central Park. N. & E. R. R. Co., 163 Fed. 503 ; Burroughs v. Toxaway Co., C. ('. A., 185 Fed. 435. A court of equity will often appoint a receiver of a railroad in a suit for the fore- closure of a mortgage containing a clause pledging its tolls and income, when it would not do so if no such clause were included in the mort- aa«e. Tyseri v. Wabash R. Co., 8 Biss. 247. "The rights of holders of negotiable bonds issued by a rail- road company and secured by a mortgage on its property are not to be measured by the same rules as are applied to an ordinary mort- gage on a farm or house and lot, to secure one or two notes held by one mortgagee." Allen v. I). & W. R. Co., 3 Woods, 31 G, 326. per Woods, J. 32 Park v. X. Y.. L. E. & W. R. Co.. 70 Fed. 641; Hird v. People's Gas & Eli Light Co.. 15S Fed. 903. 33 D. A. Tompkins Co. v. Catawba Mills. 82 Fed. 780. 7S3: Farmers' L. & Tr. Co. v. Winona & Str. Ry. Co.. 59 Fed. 957; Park v. X. 1. V. & S. W. R. Co.. 7U Fed. 641 ; Darnel v. Goodyear Shoe Machinery Co.. S. 1). \. Y.. supra, note 25. Haight & Freese Co. v. Weiss. C. C. A.. 156 Fed. 328; certiorari denied 2<»7 I'. S. 594. 52 L. ed. 356. 34 Covington 1). Co. v. Shepherd, 21 How. 112. 16 L. ed. 3S; Shain- wald v. Lewis, I) Fed. 166, 775: Buckeye E. Co. v. Donau Br. Co.. 47 Fed. li. See I'.rown v. Lake B. I. Co.. 134 I . S. 530, 534. 33 L. ed. 1021. 1024: Sage v. Memphis A L. 942 RECEIVERS. [§ 302 at the suit of a creditor with or without a judgment when a re- ceiver has been appointed in another jurisdiction ; 35 and in some cases, such as ancillary appointment has been made upon the application of the foreign receiver. 36 Thirdly, at the suit of persons interested in the property, whether as stockholders 37 or creditors, even, it has been held, creditors without judgments or liens, 38 where there is a breach of duty by the directors, and an actual or threatened damage 39 of a serious nature, although there is no insolvency. 40 Fourthly, where a corporation has R. R. Co., 125 U. S. 361, 31 L. ed. 094. 35 Sands v. E. S. Greeley & Co., C. C. A., 88 Fed. 130, 132, 133; Bowker v. Haight & Freese Co., S. D. N. Y., May 10, 1905, per La Combe, J., infra, % 242. 36 In the Third Circuit. Re Haight & Freese Co., May, 1005 per McPherson, J. 37 Evans v. Coventry, 5 De G., M. & G. 911; Powers v. Blue Grass B. & L. Ass'n, 86 Fed. 705. But see Edwards v. Bay State Gas Co., 91 Fed. 942; Hunt v. American Gro- cery Co., 80 Fed. 70; Becker v. Hoke, 80 Fed. 973; Texas C. C. & Mfg. Ass'n v. Storrow, 92 Fed. 5; Ranger v. Champion C. P. Co., 52 Fed. 609; Aiken v. Colorado River Irr. Co., 72 Fed. 591; Columbia Nat. Sand Dr. Co. v. Washed Bar Sand Dr. Co., 136 Fed. 710: Glover v. Manila Gold Min. & Mill Co., 19 S. D. 559, 104 X. W. 261; Wayne Pike Co. v. Hammons. 129 Ind. 308; Supreme Sitting, etc., Order v. Raker, 134 Ind. 293, 20 L.R.A. 210. But see Worth Mfg. Co. v. Bingham, C. C. A., 116 Fed. 785: Parks v. I*. S. Bankers' Corporation, 140 Fed: 160. 38 Sage v. Memphis & L. R. R. Co.. 125 l". S. 361. 31 L. ed. 694; Cum sol idated T. L. Co. v. Kansas C. V. Co... 43 Fed. 204; Doe v. North- western C. & T. Co., 64 Fed. 928; Merchants' Nat. Bank v. Chattanoo- ga C. Co., 53 Fed. 314; King v. Pomeroy, C. C. A., 121 Fed. 287; Kentucky, etc., Ass'n v. Galbreaith, 117 Ky. 66. 77 S. W. 371. Contra, Leary v. Columbia R. & S. S. Nav. Co., 82 Fed. 775; Texas C. C. & Mfg. Ass'n v. Storrow, C. C. A., 92 Fed. 5 ; Syers v. Brighton Br. Co., 11 L. T. (N. S.) 560; Mills v. Northern Ry. of B. A. Co., 23 L. T. (X. S.i 719: Slover v. Coal Creek Coal Co., 113 Tenn. 421. 82 S. \Y. 1131, 68 L.R.A. 852; McKee v. City Garbage Co.. 140 Mich. 497, 103 N. W. 906. See Pennsylvania Co. for Insurance, etc. v. Jacksonville, T. & K, W. Ry. Co., C. C. A., 55 Fed. 131. But see Nesbit v. North Georgia El. Co.. 156 Fed. 979. But see Maxwell v. McDaniels, C. C. A., 184 Fed. 311 ; Burton v. R. G. Peters Salt & Lumber Co.. 190 Fed. 262. That lienholders have a right to a receiver in such a case is held in Farmers' L. & Tr. Co. v. Winona*& Str. Ry. Co.. 59 Fed. 957. See Her- rick v. Grand Trunk Ry. Co., 7 Up- per Can. 240. 39 Quoted with approval by Well- born. J., in Aiken v. Colorado River Irr. Co.. 72 Fed. 591, 593. But see Carson v. Allegany Window Glass Co., 189 Fed. 791. 40 Columbia Nat. Sand Dr. Co. v. § 302] APPOINTMENT OF RECEIVERS. 943 been dissolved and has no officer to attend to its affairs. 41 Fifth- ly, where for a long time the corporation has ceased to trans- act business and its officers have ceased to act. 42 Sixthly, where the governing body is so divided and engaged in such mutual contentions that its members cannot act together; 48 Seventh! v, « - at the suit of unsecured creditors, where the corporation makes no defense and waives its right to require the complainants to reduce their claims to judgment, upon proof that the corpora- tion is insolvent, that unless the court interferes its business will be interrupted by the levy of judgments and executions, and that the continuance of such business is necessarv for the convenience of the public, or possibly when such interruption will greatly depreciate the value of its assets. 44 And eighthly, Washed Bar Sand Dr. Co., 136 Fed. 7t0. But see Maxwell v. McDan- iels, C. C. A., 184 Fed. 311; Carson v. Allegany Window Glass Co., 189 Fed. 791 ; Burton v. R. G. Peters Salt & Lumber Co., 190 Fed. 262; Smith v. Chase & Baker Piano Mfg. Co., 197 Fed. 466. In case of a life insurance company, the court will rarely appoint a receiver when there is no apprehension as to its solv- ency. Watson v. Xat. Life & Tr. Co.. C. C. A.. 189 Fed. 872. 41 The Late Corporation of the Church of J. C. of L. D. S. v. U. S.. 136 U. S. 1, 34 L. ed. 478; Law- rence v. Greenwich F. Ins. Co., 1 Paige ( N. Y. ), 587. See also Ham- ilton v. Accessory T. Co., 26 Barb, (X. Y.) 46; Murray v. Yauderbilt, 39 Barb. (X. Y.) 140. 42 Quoted with approval by Well- born, J., in Aiken v. Colorado River Irr. Co., 72 Fed. 591, 593; Warren v. Fake, ^49 How. Pr. (X. Y.) 430. « Featherstone v. Cooke, L. R. 16 Eq. 298; Trade Auxiliary Co. v. Yickers, L. R. 16 Eq. 303; D. A. Tompkins Co. v. Catawba Mills, 82 Fed. 780. For the appointment of a receiver because of a controversy between bondholders, see Benedict v. St. Joseph & W. R. Co., 19 Fed. 173. For an extraordinary case, where a receiver was appointed lie- cause of a dispute with one stock- holder, see Arents v. Blackwell's 1). T. Co., 107 Fed. 33S. 44 Ro Metropolitan Railway Re- ceivership, 208 U. S. 90, 52 L. ed. 403. See Hollins v. Brierfield C. & I. Co., 150 U. S. 371, 37 L. ed. 1113: Sage v. Memphis St. R. Co., 125 U. S. 361, 31 L. ed. 694; Consolidated T. Co. v. Kansas C. T. Co., 43 Fed. 204; Doe v. Xorthwestern C. & T. Co., 64 Fed. 928; Merchants' Xat. Bank v. Chattanooga C. Co.. 53 Fed. 314; Park v. X. Y., L. E. & W. R. Co., 70 Fed. 641; Enos v. X. Y. & O. R. Co., 103 Fed. 47. But see Leary v. Columbia & P. S. Xav. Co., 82 Fed. 775; Texas C. C. & Mfg. Co. v. Storrow. C. C. A., 92 Fed. 5. See High on Receivers, (4th ed. i SS JS7-312e. "Apart from statutes, moreover, the law of receiverships has gone through a curious course of development with respect to cor- porations. The rule has been uni- formly stated in the books and is still insisted upon that, in the ab- sence of statutory authority, a court of equity has no power to appoint 944 i;kckivi:i;s. [§ 302 in a few cases receivers have been appointed at the application of the corporations themselves, made before default in the payment of mortgage interest, where it was for the interest of the public that the corporate business; the operation of a rail- road, should be continued without interruption, it was hope- lesslv insolvent, and there was dancer of attempts by creditors- to gain preference by attachments or otherwise in such a manner as would have stopped the operation of the railroad. 45 ' It has been held that, in a suit against a corporation, a consent to the appointment of a receiver, signed by the president, will not be recognized where it appears from the pleadings that he is an interested party adverse to the company, and no author- a receiver even of an insolvent cor- poration. It is said that such a court lias no inherent power to wind up a corporation and that it cannot accomplish by indirection that which it cannot do directly. And it is perfectly true that the adminis- tration of the affairs of a corpora- tion by a receiver and the distribu- tion of its assets while not destroy- ing its corporate existence do leave it a mere shell. Nevertheless ex- ceptions to the rule have been evolved which are, in some aspects, as broad as the rule itself. One of these exceptions is in the case of creditors' bills. Courts of equity long ago lent their assistance to common law courts to enable par- ticular judgment creditors to reach, through receivers, property beyond the reach of execution. These suits soon broadened in scope and were treated as equitable levies in favor of all judgment creditors entitled to seize the defendant's property — a substitute for separate proceedings. In these suits no distinctions were drawn between corporations and in- dividuals and out of them the practice has grown up and become established of permitting creditors having judgments to apply to courts of equity to take possession of the assets of corporations and under- take through receivers their general administration. And now that which was formerly regarded as the essential thing — the judgment — is unnecessary unless the corporations object. Thus is illustrated anew the vainness of saying what courts of equity cannot do. The practice of making such appointments has become particularly well established in the case of quasi public corpora- tions where the interests of the public require continuous and con- tinued operation and where, gener- ally, the bankruptcy act is not available."' Pennsylvania Steel Co. v. New York City Ry. Co., C. C. A... 1!)8 Fed. 721. « Wabash, St. L. &. P. Ry. Co. v.- Central Tr. Co.. 22 Fed. 138; s. c, 22 Fed. 272; s. c. 22 Fed. 513. 515'; s. c. 23 Fed. 513. 29 Fed. 618; Brassey v. N. Y. & X. E. R. Co., 19 Fed. 003. Cf. Quincy, Mo. & Pac. Ry. Co. v. Humphreys. 14.1 l\ S. 82. 95. 36 L. ed. 032. 030. Con- tra, Atkins v. Wabash. St. L. & P. Ry. Co., 29 Fed. 161: Hush v. Mc- Rae, Chase 466. § 302] APPOINTMENT OF RECEIVERS. :»i: ity from the directors to give the consent is shown. 46 It lias been said: that "a managing receivership is never undertaken, except with the view to winding up the affairs of the business and the sale of its property; the business being taken over and continued, in order that the whole may be disposed of in the end as a going concern." 47 It has been held, that a receiver should not be appointed merely for the purpose of bringing a suit. 48 It has been held that a receiver of the assets of a build- ing and loan association may be appointed, when they are in- sufficient to carry to completion the purposes of its creation : although it has enough to pay all debts that have matured. 49 The court will appoint a receiver of the assets of a foreign cor- poration, when the latter has submitted to the jurisdiction. 50 A court will not usually appoint a receiver of a foreign cor- poration, which does not submit to the jurisdiction, in a suit, founded upon the mismanagement of its officers or directors, who reside elsewhere. 51 A court has no jurisdiction to appoint a receiver of the property of a corporation or other person and a party to the suit. 52 It is doubtful whether the receiver of a corporation can be appointed by a Federal court at a suit of a shareholder whose shares are not worth more than $2,000: 6 ' The right to apply for a receivership of a corporation may be lost by larhes. 54 Usually a receiver will not be appointed at the suit of subsequent lienors over property of which a niort- 46 Xesbit v. North Georgia El. Co., ]o(i Fed. 970. 47 Gutterson & Gould v. Lebanon Iron & Steel Co.. 151 Fed. 72. The selection of the plaintiff by an of- ficer of the corporation was held to be insufficient to establish collusion. Burton v. R. G. Peters Salt & l.um her Co.. mo Fed. 26& 48 Zuhr-r v. Micmae Gold Min.Co.. ISO Fed. 025. misappropriation of corporate assets; Street Grading DistJ No. HO of Little RoCk, Ark. v. Ptagadorn. C. C. A.. 188 Fed. -151, to collect unpaid assessments upon real estate pledged for the payment of loans used in public improve- ments. Fed. Prac. Vol. I.— 60. 49Cunby v. Armstrong, C. C. A.. 133 Fed. 417. 50 Lewis v. American Naval Stores Co.. 11!) Fed. 301; HaifeW & Freese Co. v. Weiss. C. C. A.. 156 Fed. 32S. 51 Republican M. Silver Mine's v. Hi own. ('. C. A.. 24 L.K.A. 770. 58 Fed. 044: Leafy v. Columbia R. & P. S. Xav. Co.. 82 Fed. 775. 52 I | 0l ,k v. I'.osworth. 64 Fe.l. 443. 53 Robinson v. West Va. L. Oct, 90 Fed. 770. Contra. Towle v. American li. L. & Inv. Soc. 60 Fad. 131. Supra, &§ 237. 288. 54 Romare v. Broken Arrow C. &. Mim Co.. 1 14 Fed. 104. 946 GECE1VERS. [§ 302 gagee is in possession; but an injunction may be issued to pre- vent the mortgagor from applying the rents and profits to any other purpose than the satisfaction of the mortgage. 55 It ha« been held that an assignment made by a corporation for the benefit of creditors after the filing of a bill for the appoint- ment of a receiver will not deprive the court of jurisdiction to appoint a receiver. 56 When a railroad is in the hands of re- ceivers pending a foreclosure suit, the court may extend the receivership over a portion of the road for the benefit of an intervener claiming a prior lien thereupon. 57 AY here a re- ceiver has been appointed at the suit of a judgment or other creditor, his suit may be consolidated with a subsequent fore- closure suit, and the receivership extended for the benefit of the mortgagee. 58 Where receivers of a railroad covered by a lease had been appointed in a suit, to which the lessee was a defendant and admitted its insolvency, it was held proper to extend the receivership for the benefit of the lessor upon the hitter's petition alleging that it also was insolvent. 59 Where a receiver was appointed at the suit of a creditor, with the requi- site difference of citizenship, the mortgagee has been allowed to intervene, file a cross-bill to foreclose the mortgage and take the benefit of the receivership, although the mortgagor and mortgagee were citizens of the same State. 60 Where a receiver had been appointed over the property of a corporation which controlled a railroad company through the ownership of a majority of its stock, it was held that he should surrender pos- 55 U. S. v. Marich, 44 Fed. 10. 56 Belmont Nail Co. v. Columbia I. & S. Co.. 46 Fed. 8. 57 Mercantile T.' Co. v. Mo.. K. & T. Ry. Co., 41 Fed. 8. 9. 58 Lloyd v. Chesapeake, C. & S. W. R. Co.. 65 Fed. 351. 59 Re Metropolitan Railway Re- ceivership. 208 U. Si 90. 52 L. ed. 403. The fact that there may be a conflict of interests as to the dis- tribution or application of the earn- ings of the receivership, was held not to be a reason for the appoint- ment of separate receivers to oper- ate the property of several lessors of the same system of street rail- roads, s. c, as Pennsylvania Steel Co. v. N. Y. City Ry. Co.. 100 Fed. 221 ; inf.-a, §§ 306, 308, 320. 60 Park v. X. Y.. L. E. & W. R. Co., 64 Fed. 19ft; S. c, 70 Fed. 641. In another case it was held, that since the receiver already appointed acted for all parties in interest, there was no reason for granting a subsequent motion by the trustees for the extension of the receiver- ship or the appointment of a new- receiver. Bird v. People's Gas & El. Light Co., 158 Fed. 903. § 302] APPOINTMENT OF RECEIVERS. 947 session to a receiver of the latter corporation subsequently ap- pointed by a State court. 61 The appointment of a receiver will not be set aside for collusion, because the complainant brought the suit and made the application at the request of the corporation. 62 Where the defendant corporation appeared and submitted to the jurisdiction, an intervening stockholder or creditor cannot object to the same. 63 It has been held thai where a State is divided into several districts and the statutes permit process in one to be served in another, that a receiver appointed in one district has power over all property in the State, 64 Until an ancillary appointment has been made a re- ceiver has no power over property in another State except by the comity of the court there held. 65 It has been held that the title of a receiver dates from the time of his appointment ami the filing of the same in the clerk's office, cutting off all rights or liens that accrued between then and the time when the or- der was transcribed by the clerk and the bond filed; 66 but that it does not relate back to the time when the order was signed. 67 The rules regulating applications for the appointment of re- ceivers over property in the custody of another court have been previously explained. 68 It has been held that a receiver will not be appointed to assist a trust formed to maintain a monopoly, or 61 Central R. & B. Co. v. Farmers' L. & Tr, Co.. 50 Fed. .1.57. 62 Dickerman v. Northern Tr. Co., 176 I'. S. 181. 44 L. ed. 4-2.1: Blair v. Chicago, 201 l". S. 400, 50 L. ed. S01; Re Metropolitan Railway Re- ceivership. 208 C. S. !»0. 52 L. ed. 403. 63 k> Metropolitan Receivership. 208 U. S. 00. 52 L. ed. 403: Lewis v. American Naval Stores Co.. 110 Fed. 301. Supra, §§ 258-2'60. 64 Horn v. Pere Marquette H. Co., 151 Fed. 020. 031. 65 Central Tr. Co. v. Texas & St. L. Ry. Co.. 22 Fed. 135; Atkins v. Wabash. St. L. & P. Ry. Co., 20 Fed. 101: Mercantile Tr. Co. v. Kanawha & O. Ry. Co., 30 Fed. 337; Farmers' L. & Tr. Co. v. No. l'ac R. Co.. 60 Fed. 871 : Kirker v. Owings, C. C. A.. 08 Fed. 400: Greene v. Star C. & P. Car Co.. 00 Fed. 050: Morrill v. Am. Reserve Bond. Co.. 151 Fed. 305. Supra, § 03. infra, §§ 304, 306. For cases where foreign receivers have been allowed to collect domestic s.s&ct.s without ancillary appointments, see Farley v. Tall.ee. r^ t Fed. *02 : su- pra, § 02. infra, § 3 11. 66 Horn v. Pere Marquette R. <',,. 151 Fed. 020. 627. 67 \\iho\ v. National Shoe A Leather Bank, !»2. 35 L. ed. 543. 8 [bid. 9 Virginia & A. Coal Co. v. Cen- tral R. & B. Co.. 170 U. S. 355, 370, 42 L. ed. 1068. 1073. 10 Sec cases in note 20, infra. II Queen Anne's Ferry & Equip- ment Co. v. Queen Anne's R. Co., 148 Fed. 41. 12 Southern Ry. Co. v. Carnegie Steel Co.. 176 V. S. 257, 44 L. ed. 45S. 13 Virginia & A. Coal Co. v. Cen- tral R. Co.. 170 U. S. 355. 365. 42 L. ed. 1068. 1071: Miltenberger v. Logansport. C. & S. W. R. Co., 106 U. S. 286, 311, 312. 27 L. ed. 117, 126, 127. "It is easy to see that the payment of unpaid debts for operating expenses, accrued within ninety days, due by a railroad com- pany suddenly deprived of the con- trol of its property, due to opera- tives in its employ whose cessation from work simultaneously is to be deprecated, in the interests both of the property and of the public, and the payment of limited amounts due to other and connecting lines of road for materials and repair, and for unpaid ticket and freight balances, the outcome of indispensable busi- ness relations, where a stoppage of the continuance of such business re- lations would be a probable result, in case of nonpayment, the general consequence involving largely, also, the interests and accommodations of travel and traffic, may well place such payments in the category of § 305] PREFERENCES IN FORECLOSURE SUITS. 959 railway (jQirnpany for a proportionate share of the feoet of main- taining flagmen at a crossing. 14 nor to the claims of transporta- tion companies connecting with an insolvent steamship line," although freight collected by the receiver for them after his appointment must be repaid by him. Betterments, as distin- guished from repairs, are less often allowed a preference 16 even payments to preserve the mortgaged property in a large sense, by main- taining the good will and integrity of the enterprise, and entitle them to be made a first lien." It has been suggested that since the enactment of the Interstate Commerce law. there is no longer any justification for such a preference of the claims of other railroad companies. Ces- ■saiitc ratioiie.ers.iat ipsa lex, Car- bon Fuel Co. v. Chicago C. & L. R. Co., C. C. A., 202 Fed. 172, 174. " City Trust Co. v. Sedalia Light & Traction Co.. 195 Fed. 845. 15 YVhelan v. Enterprise Transp. Co.. 175 Fed. 212. 16 Lackawanna 1. & C. Co. v. Farmers' L. & T. Co.. 170 C. S. 298, 44 L. ed. 475: Gregg v. Metro- politan Tr. Co.. 107 C. S. 183, 49 L. ed. 717: s. c, C. C. A.. 124 Fed. 721 ; Am. L. & Tr. Co. v. E. & VY. R. Co., 46 Fed. 101: Farmers - L. & Tr. Co. v. Stuttgart & A. R. Co.. 92 Fed. 240: Illinois Tr. ,v Saw l!ank v. Doud. C. C. A.. 105 Fed. 123, hut see dissenting opinion of Caldwell, J.: Xiles Tool Works v. Louisville, X. A. & C. Ry. Co.. ('. C. A.. 112 Yi'd. 5(11. 5(53: Central Trust Co. v. Colorado Ry., Light & Power Co., 200 Fed. 85: Addison v. Lewis. 75 Ya. 701. 713. 'Ilius a claim for the construction of a bridge was denied a preference. Int. Tr. Co. v. T. 1'.. Townsend P.. & Cr: Co., C. C. A.. 95 Fed. K5II. Cdtitrd, Cleveland. C & S. Ry. Co. v. Knickerbocker Tr. Co.. 8d Fed. 73: IHaii \. St. Louis. II. & K. Ry. ( o.. 23 Vnl 704. So were claims for railroad ties; Oregg v. Metropolitan Tr. Co.. 197 U. s. is:;. 49 L. ed. 717: s. c, C. C. A., 124 i'fd. 721; for ballast ears, Rodger Ballasl ( ar Co. v. Omaha, K. c. & F. R. Co.. C. C. A.. 154 Fed. 629: Fordyce v. Omaha. Kansas City & F. R. R.. 145 Fed. 544: for air bratees, which were placed upon the cars in obedience to an act of Con- gress'; State Tr. Co. v. Kansas City, P. & G. R. Co.. 129 Fed. 455: for the price of machinery used in the con- struction of car shops upon a rail- road leased to the mortgagor and not covered by the mortgage, Xiles Tool Works v. Louisville. X. A. & C. Ry. Co.. C. C. A.. 112 Fed. 561, 564. See Fordyce v. Kan-as City & F. R. R.. 145 Vrd. 544. for the pi ice of gas meters which were held /o h< not a part of the operating expenses of a <:as company. Rey- hurn v. Consumers' Gaa F. 4 L. ( o., 29 Fed. R. 561. And preferences were allowed for debts incurred b\ the purchase of an electric generator, Man. Tr. Co. v. Sioux City C. Co., 70 Fed. 658; and for a new gear icheel and pinion upon a cable rail- way. Central Tr. Co. v. (lark. ( . c. A., si Fed. 269; In Central Tr. Co. v. Texas \ St. L. Ry. Co.. 23 Fed. 704. 7u5. per Treat. J., Blair v. St. I... II. & K. R. < o.. 22 \',<>;, if made l>v a receiver when the mortgagee was not a party to the lowed a preference. There was, however, a .Missouri statute (Mo. R. S.. § 3200) which may have af- fected these decisions. Where a receiver had completed, under an order of the court, a building part- ly constructed for the mortgagor upon property not covered by the mortgage, it was held that the en- tire cost of the construction should be paid by the receiver before he made any payment to the mort- gagee 1 . Girard I. & T. Ry. Co. v. (neper, 162 l\ S. 520, 40 L. ed. 1062; Virginia Passenger & Power Co. v. Lane Bros. Co., C. C. A.. 174 Fed. 513, improvement of water power. Illinois Tr. & Saw Bank v. Doud, 52 L.R.A. 481. 105 Fed. 123, 148, 140. per Sanborn. J.: "When a careful examination and analy- sis of the facts and opinions in all ' the cases in the Supreme Court upon the subject of preferential claims in suits to foreclose mort- gagee of quasi-public corporations is made, and dicta are distin- guished from adjudications, the decisions of that court will be found to sustain these proposi- tions: A mortgagee of the proper- ty, acquired and to be acquired, and of the income of a quasi-\m\>- lic corporation, such as a railroad company, obtains a lien upon the net income of the company after the current expenses of operation incurred in the ordinary course of business are paid, and impliedly agrees that the gross income shall be first applied to the payment of these current expenses, before the net income to which he is entitled arises. A court of equity engaged in administering mortgaged rail- road property under a receivership in a foreclosure suit may prefer un- paid claims for current expenses of the ordinary operation of the rail- road, incurred within a limited time before the receivership, to a prior mortgage lien, in the distri- bution of the income or of the pro- ceeds of the mortgaged property. If such a mortgagor diverts the current income from the payment of current expenses to the payment of interest on the mortgage debt, or to the improvement of the mort- gaged property, so that current ex- penses remained unpaid when a re- ceiver is appointed, the court may, out of the income accruing during the receivership, restore to the un- paid claims for current expenses the amount so diverted. But if there has been no diversion there can be no restoration, and the amount of the restoration cannot exceed the amount of the diver- sion. The class of claim< which may be awarded a preference in payment over the prior mortgage debt in equity is limited to claims for current expenses incurred in the ordinary course of the opera- tion of the mortgaged property within a limited time before the appointment of a receiver. Tt does not include claims for money loaned, or for material or labor fur- nished to make necessary beneficial and permanent additions or im- provements to the mortgaged prop- erty. The broad language of the dicta in Fosdick v. Schall. that "nec- essary operating and managing ex- penses, proper equipment, and use- ful improvements' are to be deduct- ed from the current income before the net income out of which the mortgage debt is to be paid arises, § 305] PRKFKREXCES IN FORECLOSURE SUITS. 001 suit. 17 The later cases hold that in a case of a betterment, yvhere there lias been no diversion of income, there can be no preference, except for wages, out pf the proceeds ol the sale, unless immediate payment is necessary in order to keep the railroad in operation. 18 The rule lias been applied to an application for ;; decree of strict foreclosure instead of a sale, whereupon the decree was granted saying the rights of intervenors who held claims which in the case of a receivership would have been entitled to a preference. 1 lie rule includes claims incurred by contracts made with a cor- poration to which was leased the railroad foreclosed, for the benefit of which the work was done, or which it had permitted to manage and operate its railroad under color of a lease or by virtue of the ownership or control of a majority of its stock. It must appear, however, in all cases, that the creditor allowed the debt to be incurred in the belief that it would be paid from has been disapproved and modi tied, and the class of claims entitled to equitable preference lias been lim- ited, by the later decisions of the Supreme Court." But see dissent- ing opinion of Caldwell. J. Cf. Farmers" L. & Tr. Co. v. Am. Wa- terworks Co.. K>i >3. 17 Atlantic Tr. Co. v. Dana. C. C. A., 128 Fed. -in'.): Fordyce v. Omaha. K. C. & E. R. R. 145 Fed. 544: Merchants' L. & Tr. Co. v, Chicago Rys. Co., 158 Fed. 923. W Gregg v. Metropolitan Tr. Co.. J97 U. S. is:;. 4!) L. ed. 717: Fordyce v. Omaha. K. 0. & E. R, II., 145 Fed. 544: Cnion Trust Co. v. Southern Sawmills &. Lumber Co.. C. ('. A., 16T> Fed. 193; Virginia Passenger & Power Co. v. Lane F.ros. Co.. C. C. A.. 174 Vf'\- •"!•>'• Spencer v. Taylor Creek Ditch Co.. C. C. A., J94 Fed. e giyen a preferred li"ii upon the whole property of the lessee <>r control- ling company. Central of . & Tr. Co. v. Stuttgart & A. R. Co.. 92 Fed. 246; U. S. Tr. Co. v. Mercantile Tr. Co., C. C. A., 88 Fed. 140: Atlantic Tr. Co. v. Dana, C. C. A., 128 Fed. 209. The annual franchise tax, which accrued subsequent to the receivership, was held to be a pre- ferred lien so long as the corpora- tion remained undissolved. Conk: lin v. U. S. Shipbuilding Co.. 148 Fed. 129. Contra, Franklin Tr. Co. v. State of New Jersey. C. C. A.. 181 Fed. 769, Putnam, J., dissent- ing, where it was imposed by a for- eign State, in which it was domi- ciled but did not transact business. Atlantic Tr. Co. v. Dana, C. C. A., 128 Fed. 209. Board and rations furnished employees, Finance Co. v. Charleston, C. & C. R. Co., 49 Fed. 693: Northern Pac. R. Co. v. I.a- mont, C. C. A., 69 Fed. 23; but see Newgass v. Atlantic & D. Ry. Co., 50 Fed. 676; telegrams, Newgass v. Atlantic & D. R. Co.. 72 Fed. 712: furniture, care, heat and light of stations. Northern Pac. R. Co. v. 1. anion t. C. C. A.. 69 Fed. 23: as to electric power, see Finance Co. of Pennsylvania v. Trenton & N. 1'.. Ry. Co.. 189 Fed. 282; advertising, dueen Anne's Ferry & Equipment Co. v. Queen Anne's R. Co.. lis Fed. 41 : contra, Central Tr. Co. V- East Tenn.. V. & G. R. Co.. C. C. A.. 80 Fed. 024. Claims for prefer ences for car rent are usually dis- allowed. Thomas v. Western C-.w Co.. 149 U. S. 95. 37 L. ed. 663; U(U RECEIVERS. [§ 305 Crand Trunk K\ . Co. v. Central Vt. R. Co.. 90 Fed. 163; Pullman's Pal- ace Car Co. v. Am. L. '& Tr. Co., 84 Fed. 18: Rodger Ballast Car Co. v. Omaha. K. C. & F. R. Co.. 154 Fed. 629, WJ&ere a balance is due upon the purchase price of cars or loco- motives delivered to the railroad company under a contract of condi- tional sale, and the seller reclaims them or the receiver rejects them. a claim for the value of their use or for the injury done to them while in the possession of the rail- road is not entitled to a prefer- ence. Fosdick v. Sehall, 99 U. S. 235. 255. 25 L. ed. 339, 343; Huide- koper v. Loc. Works, 99 U. S. 258.. 25 L. ed. 344: Knecland v. Am. L. & Tr. Co.. 336 U. S. 89, 97, 34 L. ed. 379, 383. If. however, the receiver retains them with the assent of the seller, the balance of the purchase- money, or at least the reasonable value of their use by the receiver, may be a preferred claim to that of a prior mortgagee at whose suit the receiver was appointed. Knee- land v. Am. L. & Tr. Co.. 130 U. S. 89. 103. 34 L. ed. 379, 385; Fosdick v. Car Co.. 99 U. S. 25:;, 25 L. ed. 344: Fiank v. Denver & R. G. Ry. Co., 23 Fed. 123. But not the val- ue of their use by a former receiver appointed at the suit of a judg- ment creditor to which the mort- gagee was a party. Kneeland v. Am. L. & Tr. Co.. 13(5 U. S. S9, 97. 34 L. ed. 379 38:5. But see Knee- land v. Bass F. & M. Works, 140 U. S. 592, 35 L. ed. 543: Milten- berger v. Logahsport, C. & S. W. R. Co.. LQ6 C. S. 28(1, 27 L. ed. 117. And where the value of the pur- chase price is allowed a preference, it is inferior to the claims of labor- ers for services rendered immedi- ately before the appointment of the receiver and subsequently to the de- livery of the rolling stock to the company. Frank v. Denver & R. G. Ry. Co.. 23 Fed. 123. A claim for oil necessary for use in operating a railroad, furnished before a default in interest, was subordinated to the lien of the mortgagees; but a claim- ant for oil furnisbed since such de- fault was given an equitable lien superior to the mortgagees, when the claimant had accepted a prom- issory note of the railroad com- pany on account of part of both classes of indebtedness; which note he surrendered to the receiver up- on petitioning for the payment of his claim. Central Tr. Co. v. Texas & St. L. Ry. Co., 23 Fed. 703. It has been held that, in the absence of a .State statute, judgments against a railroad company for per- sonal injuries are not entitled to a preference Farmers' L. & Tr. Co. v. Northern Pac. R. Co., C. C. A., 79 Fed. 227; Farmers' L. & T. Co. v. Xestelle, C. C. A.. 79 Fed. 748; Veatch v. Am. L. & Tr. Co., C. C. A., 79 Fed. 471: Front St. C. Ry. Co. v. Drake, 84 Fed. 257 ; Farmers' L. & T. Tr. Co. v. Longworth, C. C. A.. 103 Fed. 330; Hampton v. Nor- folk & W. Ry. Co.. C. C. A.. 127 Fed. 602 ; Central Tr. Co. v. War- ren, C. C. A., 121 Fed. 323; Atlan- tic Tr. Co. v. Dana. C. C. A.. 128 Fed. 209: Atchison. T. & S. F. Ry. Co. v. Osborn. 148 Fed. 00ti: Penn- sylvania Steel Co. v. N. Y. City Ry. Co., S. D. N. Y., 105 Fed. 485. It was so held as to such claims not reduced to judgment until after the receivership. Veatch v. Am. L. & Tr. Co., C. C. A.. 79 Fed. 471 ; St. Louis Tr. Co. v. Riley. C. C. A.. 30 L.R.A. 456, 70 Fed. 32; Far- mers- L. & Tr. Co. v. Green B., \W & St. P. Ry. Co., 45 Fed. 004; Fi- §305] PREFERENCES IX FOKECLOSUEE SUITS. -.».;: delity Ins. & S. I). Co. v. Norfolk & W. Ry. Co.. 1]4 Fed. 389. See I en tral Tr. Co. v. East Tenn., V. & G. R. Co., .30 Fed. 896. Q&ktrk, Central Tr. Co. v. Texas & St. L. Ry. Co., 22 Fed. 135: Dow v. Mem- phis & L. R. Co.. 20 Fed. 2560; 266. 207. both of Caldwell. ,1. ISut sue!. claims have been allowed a prefer- ence out of income that accrued in the hands of a receiver before the institution of a foreclosure suit, al- though the judgment for the tort was subsequently obtained. Yeatch v. Am. L. & Tr. Co.. C. C. A.. 84 Fed. 274. Upon the construction of the South Carolina statute, see Southern Ry. Co. v. Bonkright. C. C. A.. 30 L.R.A. 823, 70 Fed. 442; Phinzy v. Augusta & K. R. Co.. 63 Fed. 922: Central Trust Co. v. Madden, C. C. A., 70 Fed. 451 : Cen- tral Tr. Co. v. Charlotte. C. & A. R. Co.. 65 Fed. 257; State v. Port R. & A. Ry. Co., 84 Fed. 67. Upon that of the North Carolina statute, see Finance Co. v. Charleston, C. & C. Ry. Co.. 01 Fed. 369: Fidelity I. Tr. & S. D. Co. v. Norfolk & W. R. C '.... 90 Vod. 175; s. c. 114 Fed. 389. As to the Iowa statute. Cen- tral Tr. Co. v. Central Towa Ry. Co.. 38 Fed. 889. As to the Ten- nessee statute. Central Tr. Co. v. Bast Tenn.. V. & G. Ry. Co.. 70 Fed. 764. As to the Vermont statute. Grand T. Ry. Co. v. Central Vt. R. Co., 91 Fed. 696. Claims for dam- ages hi/ firr to adjoining property caused before the appointment of the receiver have been denied a preference. In re Dexterville M. & B. Co. v. Case. 4 Fed. 873: Miles v. Case, 14 Fed. 141 : s. c. 9 Hiss. 549. Contra, Dow v. Memphis & L. R. Co., 20 Fed. 260. 266. 267. Claim- for the value of a right of vtfity, in- cluding damages to easements, even when reduced to judgment, are analo- gous to a vendor's Men. Mercantile Tr. Co. v. Plttsburgft & \Y. R. < ',,.. 29 Fed. 732; Central Tr. Co. v. Kenaen, C. C, A.. DO Fed. B93; Cen- tral Tr. Co. v. Louisville S T. Ry. Co.. 81 Fed. 772: Fordyce \. Kansas ( ii\ \ N. Connecting It. Co.. 145 Fed. 566. Of. Wright v. Kentucky & G. K. Ry. (,,.. H7 U. S. 72, 29 L. ed 821 : Central Tr. Co. v. Wabash. St. L. & I\ Ry. Co.. 32 Fed. 566. In one case a consolidated m'oH gage covered lease- of branch lines and nearly all of the capital stock of the lessor companies, with a covenant by the trustee that in case of default it would take possession of the mortgaged property and then "operate such railroads and conduct the business . . . and receive al tolls, rents, income and profits from said railroad and other prop- erty, . . . and from such rents to pay all expenses of taking pos- session of said railroads and other property and operating said rail- roads and conducting said business, and all taxes due upon any of the mortgaged property, and all amounts due for interest or princi- pal of any of the bonds or other Obligations of the railway compa- ny seemed by mortgages or pledges prior in lien to this mortgage: and after deducting such expenses and payments and retaining a reason- able compensation for the services of the trustee in connection with the making of said entry and tak- ing possession of said railroads and other property, and operating the same, and conducting the said luisi- riess, to apply the net ineome to the payment of any interest previously due or becoming due during Buch possession on bonds secured by 966 RECEIVERS. [§ 305 this mortgage." The trustee fur- ther covenanted "to cause all of the railroads and other property thus secured hy this mortgage, in- cluding all shares of capital stock and bonds held in trust under the provisions hereof, to be sold as one property at public auction," &c. The mortgagor lessee had cov- enanted to pay interest upon the bonds of the lessors of the branch lines as rent. The earnings of the branch line were insufficient to pay the rent. It was held that the first •covenant constituted a contract by teh amount of its earnings collect- sion of the railroads of the mort- gagor, either directly or through a reeciver, to pay the interest on the bonds of the branch roads, as ob- ligations of the mortgagor, before the net income was applied to the payment of interest on the bonds secured by the consolidated mort- gage; and that the holders of these bonds had an equity upon the net earnings of the entire system su- perior to that of the holders of bonds and coupons under the con- solidated mortgage. Mercantile Tr. Co. v. St. Louis & S. F. Ry. Co., 71 Fed. 601, G08. 609. s. c, as Mercan- tile Tr. Co. v. Farmer's L. & Tr. Co., C. C. A., 81 Fed. 254. But see Central Tr. Co. v. Wabash, St. L. & P. Ry. Co., 23 Fed. 863. Coupons on bonds of a lessor, due for rent when a receiver of the lessee was appointed, were denied a preference in Central Tr. Co. v. Charlotte, C. & A. R. Co., 65 Fed. 264. See St. Louis, A. & T. H. R. Co. v. Cleve- land, C. & C. I. Ry. Co., 125 U. S. 658, 31 L. ed. 832. Rent of a termi- nal property was allowed a pref- erence in Manhattan Tr. Co. v. Sioux City & N. R. Co., 102 Fed. 710. Creditors of a lessor railroad were given an equitable lien upon the amount of its earnings collect- ed by the lessee. Terre Haute & L. R. Co. v. Cox, C. C. A., 102 Fed. 825. Upon the foreclosure of a consolidated mortgage, the court ordered the receivers to pay inter- est upon bonds secured by mort- gage upon a vital portion of the system although there was some doubt whether the mortgage fore- closed was not a superior lien. Park v. N. Y., L. E. & W. R. Co., 64 Fed. 190. See also Lloyd v. dies. O. & S. W. R. Co., 65 Fed. 351. It was held otherwise, however, in the case of mortgages upon parts of the con- solidated road which could be sep- arated from the rest without a serious depreciation. Cleveland, C. & S. R. Co. v. Knickerbocker Tr. Co., 64 Fed. 623. Where the receiv- ers appointed under a consolidated mortgage had paid interest on pri- or divisional mortgages, taxes, op- erating expenses, debts for equip- ment, and for that purpose had in- curred a preferential indebtedness, it was held: that the consolidated mortgagee could not in the subse- quent foreclosure in the same suit of mortgagees on different parts of the line have that preferential debt apportioned between its own and the divisional mortgages, or re- quire an account of the receipts and disbursements of each division before the extension of the receiver- ship to the division of mortgages so as to displace in its favor the liens of some of those mortgages; but that these debts were primarily a charge upon the interest of the consolidated mortgagee. N. Y. S. & Tr. Co. v. L., E. & St. L. Con. R. Co., 102 Fed. 382. Under State statutes preferring the claim of per- sons who perform labor upon the § 305] PREFERENCES IN FORECLOSURE SUITS. 967 property, the services of a civil en- gineer who superintended the con- struction, Central Tr. Co. v. Rich- mond X. I. & Br. Co., 54 Fed. 723; and of a managing agent and a superintendent of trains, who occa- sionally ran cars, cleaned cars, re- paired tracks, and acted as "gener- al utility man," were held to he in- cluded, Gilchrist v. Helena, H. S. & S. R. Co., 58 Fed. 708; but that of a man who had charge of the office and receipts and entered in a book the time of the workmen as handed in to him was not. Ibid. In the following cases the fees of attor- neys and counsel for services im- mediately before the receivership were allowed a preference: Finance Co. v. Charleston C. & C. Co., 52 Fed. 526; Blair v. St. Louis, H. & K. Ry. Co., 23 Fed. 521 ; Louisville, E. & St. L. R. Co. v. Wilson, 138 U. S. 501, 34 L. ed. 1023. Fees for the services of attorneys and coun- sel have been disallowed a prefer- ence where rendered more than a year (Blair v. St. Louis, H. & K. Ry. Co., 23 Fed. 521) and more than two years before the receiver- ships although the services had in- creased the value of the property. Finance Co. v. Charleston C. & C. Co., 52 Fed. 526. Fees for services performed partly more than six months before the receiverships, but principally within that time, were allowed a preference when they had increased the fund. Louisville. E. & St. L. R. Co. v. Wilson, 138 U. S. 501. 34 L. ed. 1023. So it seems would he serv- ices of counsel for the corporation in preparing bills to be filed by creditors, under which were ap- pointed original and ancillary re- ceivers, and for advice therewith connected, although he did riot act as attorney of record. Linen Thread Co. v. A. Booth & Co., C. C. A. r 102 Fed. 515. When the order of appointment gives a preference to "wages of employees," counsel fees due an attorney who was not em- ployed as general counsel are not included. Louisville. K. & St. L. R Co. v. Wilson. 138 V. S. 501. 34 L. ed. 1023. But see Gurney v. At- lantic & G. W. Ry. Co.. 58 X. Y. 358. Attorneys are denied prefer- ences for -services in attempting to- set aside the appointment of a re- ceiver that had previously been made. Barker v. Southern Building & Loan Ass'n., 181 Fed. 636; for the payment, at the request of the president of the company, a few weeks before its default, under a promise of reimbursement within a few months, of judgments and other claims against it for wages and injuries to cattle. Blair v. St. Louis. H. & K. Ry. Co.. 23 Fed. 521 : and for the payment as surety upon appeal bonds of judg- ments against the railroad upon claims two or three years old. al- though the appeals were taken a few months before the appoint- ment of the receiver, and the pay- irient made after the appointment, Blair v. St. Louis, 11. & K. Ry. Co.. 23 Fed. 521: Whiteley «v. Central If. Co.. C. C. A.. 31 L.R.A. 303. 76 Fed. 74; and for services in secur- ing a preference to unsecured cred- itors, Louisville, E, & St. 1,. R. Co. v. Wilson. 138 U. S. 5(il. 34 L. ed. 1(123. Preferences haw been al- lowed to sureties upon appeal and replevin bonds given on behalf of a receiver. Union Tr. Co. v. Nforrisori, 125 U. s. 591, 31 L. ed. 825; or by a mortgagee, Jones v. Central Tr Co., C C. A.. 73 Fed. 56"8, or, it has been held, bv a mortgagor, in order :h;s RECEIVERS. [§ 305 This is called "the six months rule." 27 Other Circuits adopt a similar practice. 28 Three months is not an un- to save the property. City Tr. Co. v. Sedalia Light & Traction Co., 195 Fed. 84.5. Contra, Pennsylva- nia Steel Co. v. New York City Ry. Co., 165 Fed. 485; Central Tr. Co. of New York v. Third Ave. R. Co., C. C. A.. 180 Fed. 710. Railroad mortgages usually provide for the payment, prior to the bonds, of the fees and expenses of the trustee; but where the inaction of the trus- tee has compelled the institution of litigation by a bondholder or other person interested, the trustee's coun- sel fees may be disallowed. So -when the services were unnecessary. Bound v. S. C. R. Co., 62 Fed. 536. When on account of the inaction of the trustee or otherwise a necessary suit was instituted by a bondhold- er or other beneficiary to preserve the fund, the counsel fees of the plaintiff may lie allowel a prefer- ence. Cowdrey v. Galveston, H. & II. It. Co., 93 C. S. 352, 23 L. ed. 050: Trustees v. Greenough, 105 U. S. 527. 26 L. ed. 1157; Centra] R. & B. Co. v. Pettus, 113 U. S. 116, 28 L. ed. 915: infra. § 421. The counsel fees of the attorney for the mortgagor cannot be awarded a preference, unless the mortgage so provides. Mercantile Trust Co. v. Missouri K. & T. Ry. Co.. 41 Fed. 8. 10; Union Loan & Trust Co. v. Southern Cal M. R. Co.. 51 Fid. 106. Cf. Mason v. Pewabic Min. Co., C. C. A.. 66 Fed 301. Contra, Bound v. S. C. P. Co.. 43 Fed. 404. The fees, counsel fees and other debts of a receiver, and a master appointed in a former suit by shareholders or junior incumbran- ceSj may he allowed a preference. Pennsvlvania Co. v. J. T. & K. W. Ry. Co., 93 Fed. 60: Reinhart v. Augusta. M. & Inv. Co., 94 Fed. 901. Contra, Am. L. & Tr. Co. v. South Atl. & O. R. Co., 81 Fed. 02. A preference was denied to so much of a judgment as included costs incurred before the receiver- ship. Williams v. Groat, 73 Fed. 59. The claim of a secretary for a balance of salary due him within the prescribed time has been thus preferred. Olyphant v. St. Louis & O. S. Co.. 22 Fed. 179. But see Wells v. Southern Min. Ry. Co., 1 Fed. 270; Addison v. Lewis, 75 Ya. 701, 712, 713; Union L. & T. Co. v. Southern Cal. M. R. Co., 51 Fed. 106. Xo case as yet extends the preference to the salary of a pres- ident. Xat. Bank of Augusta v. Carolina. K. & W. R. Co., 63 Fed. 25; Title Ins. & Tr. Co. v. Home Telephone Co., 200 Fed. 263. A president forfeits any right he may possess to such a preference by pub- lishing in the annual report a state- ment that liis salary has been paid. Addison v. Lewis. 75 Ya. 701, 713. A contract for future employment is not binding on the receiver. Keeler v. Atchison, T. & S. F. R. Co.. 92 Fed. 545. 27 In re Kelly v. Receiver of G. B. & M. R. Co.. 5 Fed. 846, 851, note. Title Ins. & Tr. Co. v. Home Telephone Co.. 200 Fed. 263. 28 Atkins v. Petersburg R. Co.. 3 Hughes, 307: Blair v. St. Louis, II. & K. Ry. Co.. 22 Fed. 471, 474: Olyphant v. St. Louis O. & S. Co., 22 Ved. 179; Taylor v. Phil'a. & R. R. Co., 7 Fed. 377: Thomas v. Cin- cinnati. X. O. & T. P. Ry. Co., 91 Fed. 195: Central Tr. Co. v. Fast- en! T. & G. R. Co., C. C. A.. SO Fed. § -305] PREFERENCES l.\ FORECLOSURE SUITS. 969 common limitation of time. 29 Claims due eight, 30 and eleven 8 ? months, and even two yaw*. 32 before the receivership: in one case claims for loans to the amount of more than $3,000,000 advanced upon collateral for operating expenses of the rail- road within two years before t 1m- receivership; 88 a claim for materials furnished three year- before the appointment, for which a note was given sixteen months before the receiver- ship ; 34 and in one case, those who advanced money, after a default in interest two years before the receivership, to pay the arrears of wages due striking laborers, under a promise from the president of the mortgagor that they would he repaid out of the current earnings of the road, have been given a preference. 35 And by Judge Caldwell: "The debts due from a railroad company for ticket and freight balances, and for work. labor; materials and machinery, fixtures, and supplies of every kind and character done, performed or furnished in the con- struction, extension, repair, equipment, or operation of said road and its branches in the State of Kansas, and liabilities incurred by said company in the transportation of freight and passengers, including damage to person or property, which have accrued since the execution of the mortgage set out in the hill of complaint." about two years and three months before the receivership," 6 were allowed a preference, A creditor does 624: Gregg v. Metropolitan Tr. Co., 197 T". S. is:?. 40 L. ed. 717: Re Metropolitan Railway Receivership, 208 U. S. 90. 52 L. ed. 403. 29 Fosdiek v. Schall, 00 U. S. 23.1. 238, 25 L. ed. 330; Tlale v. Frost, 9 U. S. 389, 2.3 L. ed. 4 lit: Milten- herger v. Lpgansport Ry. Co.. 10(! t". s. -isii. 308, 27 L, ed. 117. 12.'»: Virginia & A. Coal Co. v. Central R. & B. Co.. 170 tj. S. 3.-).l. 360, 42 L. ed. Kilts. 1072. Hut sec Skiddy v. Atlantic. M. & <>. R. Co., 3 Hughes, 320. 30 Skiddy v. Atlantic, M. & (). R. Co.. 3 Hughes, 32n. Contra, Spen- cer v. Taylor Creek Ditch Co., C. C. A.. 104 Fe.l. 113.'). 31 Burnham v. Rouen. Ill 1". R. 770. 28 L. ed. 596; Southern Ry. Co. v. Carnegie Steel Co;, 170 C. 8. 2.17. 280. 44 L. ed. 458- 471. 32 Central Tr. Co. v. Wabash, St. L. & P. Ry. Co.. 30 Fe.l. 332, 334. per Brewer, T.: Fanners* 1.. & Tr. Co. v. Kansas City. W. & X. R. Co., S3 Fed. 1S2. per Caldwell. .1. See Atkins v. Petersburg R. i >>.. 3 Hughes, 307. I'.nt see Duncan v. Mobile & (». K. Co.. 2 Woods, 542,; Addison v. Lewis. 75 Va. 701, 713. 714. 33 |l, id. 34 Hale v. L. ed. 419, 35 Atkins Hughes, 307. 36 Farmers- I.. & Tr. Co. v. Kan- sas City, W. & N. R, i .... r,:; Fed. 182, 1S4. Frost, 00 U. S. 380. 25 v. Petersburg R. Co., :' 970 RECEIVERS. [§ 30; not lose his preference by taking notes of the railroad company for several months ; 37 nor by renewing the notes after the re- ceiver's appointment ; 38 nor by reducing his claim to judgment, even though the judgment is entered pending the receivership in a suit begun previously, 39 but it was held that he waived his preference- by filing under the State statute after the receiver's appointment a notice of a mechanic's lien. 40 The delivery by the mortgagor of a voucher for the "payment of the claim does not give the owner thereof a preference, although it expended the money represented by the voucher for charges that might have been preferred, 41 nor does an attachment obtained after a mortgage had been executed but before the bonds thereunder had been issued ; 42 nor recovery of a judgment after a receiver- ship. 43 In the allowance of interest upon preferred claims, it has been held that the decisions of the State court need not be followed, although they would be binding in actions at common law. 44 It seems that interest will be allowed when stipulated for in the contract; 45 but it has been held that when it is not stipulated for by contract, nor expressly authorized by statute, it cannot be allowed during the delay necessary for the settlement of the receivership. 46 An assignee of a preferred 37 Southern Ry. Co. v. Carnegie Steel Co.. 176 U. S. 257, 286, 44 L. ed. 458. 471 ; Burnham v. Bowen, 111 U. S. 776, 28 L. ed. 596; Cen- tral T. R. Co. v, Texas & St. L. Ry. Co.. 23 Fed. 703. Preferences were refused where notes were originally taken for six months, with the right of renewal for the same term, and the payment had been extended for more than rive years, Lackawan- na L. & C. Co. v. Farmers' L. & T. Co., 176 U. S. 298. 317, 44 L. ed. 475. 484; and where the notes were endorsed by a third party upon whose credit the money or supplies were advanced. Continental Tr. Co. v. Toledo. St. L. & K. C. R. Co., 93 Fed. 532. 38 Burnham v. Bowen, 111 U. S. 776. 28 L. ed. 596. 39 Central Tr. Co. v. Clark, C. C. A.. 81 Fed. 269. 40 State Trust Co. v. Kansas City, P. & G. R. Co., 129 Fed. 455. 41 First Trust & Savings Bank v. Southern Indiana Ry. Co.. 195 Fed. 330. 42 R e Sunflower State Refining Co.. 183 Fed. 834. 43 Mercantile Tr. Co. v. So. State L. & Tr. Co.. S6 Fed. 711; Williams v. Groat, 73 Fed. 59. 44 Pennsylvania Steel Co. v. New York City Ry. Co., C. C. A., 19S Fed. 721, 778. 45 Hitner v. Diamond State Steel Co., 176 Fed. 384; Tredegar Co. v. Seaboard Air Line Ry., C. C. A.. 183 Fed. 289. See Pennsylvania Steel Co. v. New York City Ry. Co., C. C. A., 198 Fed. 721. 46Tredeyar Co. v. Seaboard Air § 305] PREFERENCES TX FORE(5tOSUBE SUITS. 071 claim has all the rights of his assignor;* 7 but usually a guarantor who pays a deht has no more right to ;i preference than the original creditor. 48 A purchaser under a decree which provides for the payment of preferred claims cannot contest their right to a preference; 49 and upon their payment he is not entitled to be subrogated to the rights of the claimants. 6 *' Where payment had been made on account of advances, some of which were entitled fjo a preference ami some not. it was held that in the absence of a prior application by the parties, the mortgagee could procure their application upon the preferred claims. 51 It has been held that pending a receivership in a Federal court, where parties are entitled to a lien, and can secure it by proceedings under a State statute, they are not Line Ry., C. C. A., 183 Fed. 289. There, the receivership was prayed by the insolvent, but a cross-hill asking similar relief was tiled by a trustee. 47 Union Tr. Co. v. Walker, ]()7 U. S. 596, 27 L. ed. 490: Burnham v. Bowen, 111 U. S. 776, 28 L. ed. 596; Union Tr. Co. v. Southern Sawmills & Lumber Co., C. C. A., 166 Fed. 153. Where, before the appointment of a receiver, a bond- holder accepted a compromise which scaled clown the indebtedness; in pursuance thereof surrendered his bonds, under an agreement to re- ceive in exchange new bonds se- cured by a subsequent mortgage; and did receive enough to replace the greater part of those which he surrendered : but there were a few for which no new bonds issued, — apparently because none were en- graved for so small an amount: — it was held that his unadjusted claim for this balance remained se- cured by the old mortgage, and was superior to those under tin subse. quent mortgage given to secure the new bonds. Blair v. St. Louis. 11. & K. Rv. Co.. 23 Fed. 524. But where rails had been sold to an individual upon his own credit for the use of the railroad by its lessee, a prefer- ence against the interest of the lessor was denied. Rhulender v. Ches.. 0. & S. W. R. Co., C. C. A.. 91 Fed. 5. For a case where it was held that a party who paid a pre- ferred claim became an equitable assignee of the preference,. see Knee: land v. Luce. 141 I . S. 491, 35 L. ed. 830. For one where it was held that he did not. see U. S. Tr. t'o. v. Western c. Co.. C. C. A., SI I'.-d. 454. 48 Farmers* L. & Tr. d,. v. Stutt- gart & A. R. Co.. 92 Fed. '_>lii: Blair v. St. Louis, II. & K. Ry. Co. ('Norton^ Enterfcenbr)', 23 F«l. 523. But sec Union Tr. Co; v. Morrison. 125 TJ. S. 591. 31 L. ed. S25. 49S\vann v. Wri-litV KVr. 110 U. S. 590, 28 L. ed. 252; St. Louis S. YV. Ry: Co. v. Stark. 55 Fed'. 758; Infni. § 394: Lauglilin v. I . S. Rolling Stock Co.. 64 Fed. 25. so Morgan's L. & T. R. & S. S. Co. v. Moran. 91 Fed. 22. si Illinois T. 7 ; First Trust & Savings Bank v. Southern Indiana Ry. Co., 195 Fed. 330, where a sale had taken place. 55 Pennsylvania Steel Co. v. X. Y. City Ry. Co., 187 Fed. 287. 56 State Tr. Co. v. Kansas City, P. & G. R. Co.. 120 Fed. 398. 57 Empire State Surety Co. v. Carroll County. C. C. A., 194 Fed. 593. 58 Atlanitc Tr. Co. v. Dana, C. C. A.. 128 Fed. 209 § 305] PREFERENCES IN FORECLOSURE SUITS. 973 tion. 59 A claimant to a preference of a class for which no provision has been made by a previous order or decree cannot regularly apply upon a motion, but he should plead his claim in a petition for an intervention, 60 or perhaps in a bill. 81 It has been held that an averment, that when an action had occurred the railroad was being operated by a company acting as the agent of the bondholders, was a conclusion of law too vague and general to show with sufficient certainty that it was well founded; 62 that an averment, upon information and be- lief, that within twelve or eighteen months before the complain- ant's bill was filed there had been a diversion of a gas com- pany's earnings to the payment of interest on its mortgage bonds and for the improvement of the plant, which failed to allege the dates or amounts of such diversion or that they occurred within the time when the indebtedness to the com- plainant arose, was insufficient because of its lack of cer- tainty; 63 but that, where the pleader avers the receipt by the receiver of earnings properly applicable to his claim, he need not allege that such earnings had not been disbursed, since such fact, if it existed, was a matter of defense. 64 The attor- neys of both the receiver and the complainant should have notice of the hearing of such claim before a master. 65 An application for a preference may be denied with leave to renew until other claims to preferences have been decided and the determination of litigation which may increase the assets. 66 An entry upon the books of the mortgagor showing the claim to be good is, in the absence of suspicious circumstances, prima facie proof. 67 An order granting a preference may be set aside at any time before the final decree. 68 The consent of 59 Atlantic Tr. Co. v. Dana, C. C. 64 Veateh v. Am. L. & T. Co., C. A., 128 Fed. 209. C. A., 84 Fed. 274. 60 Grand Trunk Ry. Co. v. Cen- 65 Blair v. St. Louis, H. & K. R. tral Vt. R. Co., 91 Fed. 5G1. Co., 19 Fed. 86], 862. 61 Louisville & N. R. Co. v. Mem- 66 Pennsylvania Steel Co. v. New phis G. L. Co., C. C. A., 125 Fed. York City Ry. Co., 182 Fed. 155. S7. 67 B] a i r v . St. Louis, II. & K. R, 62 Veateh v. Am. L. & Tr. Co., Co., 19 Fed. 861, 862, Treat, J.; s. C. C. A.. 79 Fed. 471. c, 22 Fed. 471, 472, Brewer, J. 63 Louisville & X. R. Co. v. Mem- 68 Atchison T. & S. F. Ry. Co. v. phis Gas Light Co., C. C. A., 125 Osborn, C. C. A., 148 Fed. 606. Fed. 97. 974 KECEIVERS. L§ soos the receiver cannot prevent any creditor who is a party to the' record from taking an appeal from an order granting a pre- ference to another. 69 An order directing a receiver to carry ont his corporation's contracts does not necessarily give those who claim damages for a breach of those contracts a preference over lien-holders. 70 Where a receiver was appointed bemuse the taxes upon the mortgaged premises were unpaid, there being no proof then of any other danger to the security of the mortgagee and the mortgage not covering the rents ; it was held that, after payment of snch taxes and the expense of the re- ceivership, the balance of the rents collected by him must be paid to the owner of the equity of redemption although a fore- closure sale had meanwhile taken place and resulted in a de- ficiency. 71 Whether this doctrine applies to the foreclosure of any mortgage except those made by railway, telegraph, or other companies to which are delegated the right of eminent domain or which are egnaged in public service, is very doubt- ful. 72 It applies to a mortgage made by an electric light com- pany. 73 It has been extended to a receivership of a mine. 74 § 306. Property over which receivers may be appointed. A receiver may be appointed to preserve and take possession of every kind of property, whether the same be what is termed corporeal or incorporeal, which can be seized by execution at law or which constitutes equitable assets. 1 Thus receivers have 69 Empire State Surety Co. v. Carroll County, C. C. A., 194 Fed. 593. 70 Olyphane v. St. Louis 0. & S. Co., 28 Fed. 729. 71 So. Building & L. Ass'n v. Carey, C. C. A., Hi Fed. 288. 72 Wood v. Guarantee Tr. & S. D. Co., 328 U. S. 41G, 32 L. ed. 472; Ralit v. Attrill. 100 N. Y. 423, 60 Am. Rep. 456; Reyburn v. Con- sumers' Gas, F. & L. Co., 29 Fed. 5G1 ; Seventh Nat. Bank v.'e Shenan- doah Iron Co., 35 Fed. 436; Fideli- ty I. & S. D. Co. v. Shenandoah Iron Co., 42 Fed. 372; U. S. Invest- ing Corporation v. Portland Hos- pital, 40 Or. 523, 67 Fac. 194, 56 L.R.A. G27. 73 Illinois Tr. & Sav. Bank v. Ot- tumwa El. Ry. Co.. 89 Fed. 235. 74 Reinhart v. Augusta M. & I. Co., 91 Fed. 901. But see Fidelity Ins. & Safe-Deposit Co. v. Shenan- doah Iron Co., 42 Fed. 372. § 30G. l Davis v. <0ay. .16 Wall. 203, 217. 21 L. ed. 447. 452: Davis v. Duke of Marlborough. 2 Swanst. 108. 127; Blanchard v. Cawthorne,. 4 Sim. 566. See Palmer v. Yaughan,. 3 Swanst. 173; Meriwether v. Gar- rett, 102 U. S. 472, 501, 20 L. ed. 197, 200. § 306] PROPERTY SUBJECT TO RECEIVERSHIPS. :>:.-> been appointed to collect and hold the profits of a rectory, 2 of a college fellowship, 3 of a patent for an invention, 4 of the offices of a master forester in a royal forest, 5 and of a county clerk of peace; 6 of the tolls of a turnpike; 7 to manage and collect the profits of mines, 8 plantations, 9 a theatre, 10 a news- paper, 11 a hotel, 12 a ship, 13 a line of telegraph, 14 a wireless telegraph system, 141 and a railroad ; 15 to exercise the right to sell a conditional right of membership in an exchange ; 16 to exercise options to buy land ; 17 and to take possession of the estate of an intestate 'with ppw- 2 Silver v. Bishop of Norwich, 3 Swanst. 112; White v. Bishop of Peterborough, 3 Swanst. 109. 3 Feistel v. King's College, 10 Beav. 491. 4 Parkhurst v. Kinsman. 2 Blatchf. 78. See supra, § 303. 5 Blanchard v. Cawthorne, 4 Sim. 3C6. 6 Palmer v. Vaughan, 3 Swanst. 173. 7Knapp v. Williams, 4 Ves. 430, note; Dumville v. Ashbrooke, 3 Unss. 9S, note. SJeffcrys v. Smith, 1 J. & W. 298. 9 Morris v. Elme, 1 Ves. Jr. 139. 10 Const v. Harris. T. & R. 496, 528. 11 Chaplin v. Young, 6 L. T. (X. S.) 97; Kelley v. Hutton, 17 W. R. 42.5. 12Raht v. Attrill. 100 X. Y. 423, 00 Am. Rep. 450; Cater v. Wood- bury, 3 App. D. C. 00. 13 Cronenwett v. Boston & A. Tr. Co., 95 Fed. 52. In this case the receiver, who had been appointed under a creditor's bill against an insolvent corporation, was directed to distribute the insurance money after the vessel's loss in accordance with the priorities that would be recognized by a court of admiralty. 14 United L. Tel. Co. v. Boston S. D. & T. Co., 147 U. S. 431, 37 L. ed. 231. 14a Williams v. United Wireless Tel. Co., N. Y. Sup. Ct. June 20th, 1911, Cohalan, J., in which the au- thor was counsel. 15 Stevens v. Davison, 18 Gf'rat. (Va.) 819, 98 Am. Dec. 692; Davis v. Gray, 16 Wall. 203; 21 h. ed. 447; Barton v. Barbour, 104 U. S. 120. 26 L. ed. 672; infra. § 308. Before the passage of a statute al- lowing it to be done, the English court held that a receiver could not be appointed to manage a rail- road, Gardner v. London, C. & D. Ry. Co., L. R. 2 Ch. App. 201 ; but such an appointment is authorized without statutory authority in this country, and even in England a re- ceiver might always be appointed to receive the tolls of a railroad. Hopkins v. W. & B. C. Co.. L. R. 6 Eq. 437; Jones on Railroad Se- curities, § 456. A lugubrious pic- ture of the result of such appoint- ments was drawn by Miller. J., in Barton v. Barbour, 104 U. S. 120. 137, 13S. See also the language of the GoVernor of Texas quoted in Mercantile Tr. Co. v. Texas & P. Ry. Co., 51 Fed. 529. 533. 537. 16 Powell v. Waldron, 89 X. Y. 328; In re Ketchum, 1 Fed. 840: Tn re Werder, 15 Fed. 789; Hyde v. Woods, 04 U. S. 523. 24 T-. ed. 264; Piatt v. .Jones. 96 X. Y. 24. "Twin City Power Co. v. Bar- rett, C. C. A.. 120 Fed. 302. 976 RECEIVERS. [§ 306 er to apply for letters of administration. 18 After the repeal of the charter of the city of Memphis, a receiver was appointed to take possession of all its property which conld be subjected to the payment of its debts. 19 But the Supreme Court refused to direct such a receiver to levy taxes, 20 or to collect those al- ready levied. 21 Where an order appointing a receiver of a railroad company directed that "all the books, vouchers and papers touching the operation of the railroad," and "all and every part of the properties, interest, effects, moneys, receipts, earnings" of the railroad, should be delivered to the receiver, it was" held, that the order included the company's seal and all records of its past transactions and books relating to its previous history. 22 A receiver of a corporation is entitled to 18 Re Mayer, L. P. 3 P. & D. 39. 19 Meriwether v. Garrett, 102 U. S. 472, 26 L. ed. 197. 20 "l. Property held for public uses, such as public buildings, streets, squares, parks, promenades, wharves, landing-places, fire-en- gines, hose and hose-carriages, en- gine-houses, engineering instru- ments, and generally everything held for governmental purposes, cannot be subjected to the payment of the debts of the city. Its public character forbids such an appropri- ation. Upon the repeal of the char- ter of the city, such property passed under the immediate control of the State, the power once delegated to the city in that behalf having been withdrawn. 2. The private proper- ty of individuals within the limits of the territory of the city cannot be subjected to the payment of the debts of the city, except through taxation. The doctrine of some of the States, that such property can be reached directly on execution against the municipality, has not been generally accepted. 3. The power of taxation is legislative, and cannot be exercised otherwise than under the authority of the legisla- ture. 4. Taxes levied according to law before the repeal of the char- ter, other than such as were levied in obedience to the special require- ment of contracts entered into un- der the authority of law, and such as were levied under judicial direc- tion for the payment of judgments recovered against the city, cannot be collected through the instrumen- tality of a court of chancer} 7 at the instance of creditors of the city. Such taxes can only be collected under authority from the legisla- ture. If no such authority exists, the remedy is by appeal to the legislature, which alone can grant relief." Chief Justice Waite in Merriwether v. Garrett, 102 U. S. 472, 501, 2G L. ed. 197, 200. Upon the fust three propositions the court was unanimous. The fourth was decided by a majority only. See a criticism of this case by Judge Baxter, in Garrett v. Memphis, 5 Fed. S60. 21 Thompson v. Allen County, 115 U. S. 550, 558, 29 L. ed. 472, 475. 22 American Const. Co. v. Jack- sonville, T. & K. W. Ry. Co., 52 Fed 937. 30G] PROPERTY SUBJECT TO RECEIVERS HITS. 977 remittances by its officers to its general account received by a bank subsequent to his appointment and the bank can assert no lien against the same. 23 The receiver appointed in a suit to foreclose a railway mortgage has no right to collect or retain moneys earned by the railroad before his appointment, although paid subsequently to such appointment; where the mortgage contains a clause allowing the mortgagor to remain in posses sion and collect and use its revenues before default, and the receiver does not represent judgment creditors. 24 A court has power to appoint a receiver of the property of a foreign corpo- ration within the State. 25 Where obedience to its decree can be compelled by process against the person of a defendant, it seems that a court of equity may appoint a receiver of prop- erty, real or personal, situated beyond its territorial juris- diction. 26 The Judicial Code provides. 27 "Where in any suit in which a receiver shall be appointed the land or other property of a fixed character, the subject of the suit, lies within different States in the same judicial circuit, the receiver so appointed shall, upon giving bond as required by the court, immediately be vested with full jurisdiction and control over all the property, the subject of the suit, lying or being within such circuit ; subject, however, to the disapproval of such order, within thirty days thereafter, by the circuit court of appeals for such circuit, or by a circuit judge thereof, after reasonable notice to adverse parties and an opportunity to be heard upon the motion for such disapproval ; and subject, also, to the filing 23 Horn v. Pore Marquette R. Co., 151 Fed. 026. (127. 24 Hook v. Bosworth, 64 Fed. 44.1, 449. 25 D e Bemer v. Drew. 57 Barb. 43S; Murray v. Vanderbilt, 3!) Barb. 140; Barclay v. Quicksilver Min. Co., 9 Abb. Pr., X. S., 283. See, also, s. c, Fans. 25; Red- mond v. Hope, 3 Hun (N. Y.) 171; Popper v. Supreme Council. Gl App. DiV. (X. Y.) -405; Rousens v. Manu- facturing & Selling Co., 99 App. DiV. (X. Y.) 214. 26 Memphis Sav. Bank v. Hou- chens, C. C. A., 115 Fed. 90: Stew- Fed. Prac. Vol. I.— 62. art v. Laberee, C. C. A., 185 Fed. 471. The English Court of Chan- cery has appointed receivers of property in India, Logan v. Prince of Coorg, Seton on Decrees, 5th ed., 681; Keys v. Keys, 1 Beav, 425; China, Houlditcli v. Donegal, 8 Bligh X. S. 301; Italy. Hinton v. Calli, 24 L. J. Ch. 121: New South Wales, I'nderwood v. Frost, Seton on Decrees, 5th ed., 081 ; Canada, Tyler v. Tyler, Si 1 ! on on Decrees, 5th ed., 682: the West Indies. Bim- burv v. Bunbury, 1 Men v. 318. 331. 27 ,|,„1. (ode. | 36, 30 St. at I.. 10S7. 078 RECEIVERS. [§ 307 and entering in the district court for each district of the cir- cuit in which any portion of the property may lie or be, with- in ten days thereafter, of a duly certified copy of the bill and of the order of appointment. The disapproval of such appoint- ment within such thirty days, or the failure to file such certi- fied copy of the bill and order of appointment within ten days, as herein required, shall divest such receiver of jurisdiction over all such property except that portion thereof lying or being within the State in which the suit is brought. In any case coming within the provisions of this section, in which a receiver shall be appointed, process may issue and be executed within any district of the circuit in the same manner and to the same extent as if the property were wholly within the same district; but orders affect ing >uch property shall be entered of record in each district in which the property affected may lie or be." Otherwise, in the absence of a statute vesting the assets of the corporation in him, it is doubtful whether a receiver appointed by a court of the defendant's domicile has any power over assets in another State. 28 § 307. Powers of receivers in general. The powers of a receiver, in the absence of any special authority given in the order for his appointment, are very limited. He can take possession of the property which he is appointed to receiye. 1 If any of it is land under lease, he can accept attornment and payment of rent and arrears of rent from the tenants. 2 He can give notice to quit to tenants from jenr to year; 3 and in States where the remedy by distress still exists, he may distrain for rents not more than one year in arrear. 4 He may also pay out small sums of money in customary repairs of the property which he holds in trust. 5 and insure it against fire. 6 Beyond 28Keatlev v. Furey. 226 U, S. 30!). 403, 404, 57 L. ed. — : Chip- nian v. Manufacturers' Nat. Bank, l.-.i; Mass. 147. 14S. 149. § 307. iDaniell's Cli. Pr. (2d Am. ed.) 1987, 1988. 2 Codrington v. Johnstone, 1 Beav. 520; McDonnell v. White, 11 H. L. C. 570. 3 Doe v. Keed, 12 East, 57, 59. 4 Pitt v. Snovvden. 3 Atk. 750: Brandon v. Brandon, 5 Madd. 473; Davis v. Gray, 16 Wall. 203, 218, 21 L. ed. 447. 452. 5 Atty. Gen. v. Vigor, 11 Ves. 563; Daniell's Ch. Pr. (2d Am. ed.) 1990. 6 Thompson v. Phoenix Ins. Co., 136 U. S. 287, 293, 294, 34 L. ed. 408, 411. 412: Brown v. Hazlehurst, 54 Md. 26, 28 § 307] POWERS OF RECEIVERS. 970 this, he can do nothing without express authority of the court. 7 He cannot sue to recover dehts or other property belonging to the estate, 8 nor even, it seem-, defend suits or actions broughl against him, 9 nor spend any money whatever which belongs to the estate, except such very small sums as are above referred to, 10 without an order authorizing him to do so. made at or sub- sequent to his appointment. If, however, he does any of these things without leave and the ('oiui determines that the money thus expended has been beneficial to the estate, his expenditures for that purpose may be allowed him. 11 Otherwise, he must make good all Loss thereby occasioned. 12 It seems that an unauthorized contract made by him with a stranger may be ratified by an order of the court made before the stranger has given notice of his intention to abandon it. 13 A lire insurance company which has received a premium from a receiver cannot in an action on the policy dis- pute his authority to insure the property; 14 hut. it has been held that the holder of a note assigned to him by receiver- after it was due, could not recover its amount unless he proved that the court had authorized the assignment. 15 Tt seems that an order giving a receiver authority to sell carries with it au- thority to execute and deliver to the purchaser a deed; 16 hut if not, a subsequent confirmation by the court of a sale irregu- larly made validates from that time a deed previously executed by the receiver. 17 It has been said : that "a purchaser under a 7 Davis v. Gray. 10 Wall. 203, 218. 21 L. ed. 447. 452; Smith v. McCuIlough, 104 U. S. 25, 29, 26 L. ed. 637. 639. 8 Wynne v. Lord Newborbiigh, 1 Yes. Jr. 164: s. c.. Brown. Cli. ('. 88: Gfeeil v. Winter. 1 J. Ch. I X. Y.) 60. 9 Swaby v. Dickon. 5 Sim. 620. io Atty. Gen. v. Vigor, 11 Ves. 563. 11 Tempest v. Ord. 2 Meriv. 55; Blant v. Clitlierow. 6 Yes. 799 : Thompson v. Phoenix Ins. Co.. 136 U. S. 287, 2!I4. 34 L. ed. 408 412. 12 Atty. Gen. v. Vigor, 11 Ves. 563. 13 Koontz v. Northern Bank, 16 Wall. 196, 21 L. ed. 465: Smith v. McCuilough, 104 C. S. 25. 2D. 26 L. ed. 637, 639. Cp Girard D A. & Tr. Co. v. Cooper. 51 Fed. 332. 14 Thompson v. Phoenix Ins. ( o., 136 U. S. 287, 294, 295, 34 L. ed 408, 412. 15 The Clara A. MJntyre. 04 Fed. 552. 16 Koontz v. Northern Hank. 16 Wall. 196, 2(H. 21 L. ed. 465,, 468. 1 7 Koontz v. Northern Bank. 16 Wall. I! (i. 21 L. ed. 465. 980 RECEIVERS. [§ 307 deed from a receiver is not bound to examine all the pro- ceedings in the case in which the receiver is appointed. It is sufficient for him to see that there is a suit in equity, or was one, in which the court appointed a receiver of property; that such receiver was authorized by the courts to sell the property; that a sale was made under such authority, that the sale was confirmed by the court ; and that the deed accurately recites the property or interest thus sold. If the title of the property was vested in the receiver by an order o fthe court, it would in that case pass to the purchaser. lie is not bound to inquire whether any errors intervened in the action of the court, or irregularities were committed by the receiver in the sale, anv more than a purchaser under execution upon a judgment is bound to look into the errors and irregularities of a court on the trial of the case, or of the officer in enforcing its process." 18 The court may authorize a receiver to complete the comstruc- tion of a railroad, 19 or other public work, 20 under a contract with the person over whose estate he was appointed, and to con- tinue for a limited time the defendant's business. 21 He may be authorized to borrow money and to issue as security receiver's certificates for that purpose. 22 An order authorizing a receiver to make a contract is construed strictly in favor of the estate. 23 18 Mr. Justice Field in Koontz v. Northern Bank. 10 Wall. 196, 202.. 21 L. ed. 405. 468. 19 Smith v. McCullough, 104 U. S. 2.->, 29, 26 L. ed. 637. 639; La Crosse Railroad Bridge. 2 Dillon. 463. 20 Patterson v. Patterson, 1 S2 Fed. 052. The receiver of a water company may be authorized to in- crease his charges for water when they are not limited by statute or ordinance. C. H. Venner Co. v. Ur- bana Waterworks. 174 Fed. 348 When he furnished water to a city for the use of the fire department, without a contract as to the price, it was held that he should be paid a fair compensation for the service, a just proportion of the operating expenses, taxes and costs of admin- istration, and of a just and reason- able return on the cost of repro- ducing the plant and its growing value. Ibid. 21 Gay v. Hudson Paver E!. Power Co., 173 Fed. 1003. Where author- ity was given to contract to sup- ply electrical power for a term of five years. An order directing the receiver of a hotel to carry on and manage the business of the hotel as previously carried on, was held to authorize him to incur the custom- ary debts in carrying on that busi- ness. Cate v. Woodbury, 3 App. D. C. 60; s. c. Cake v. Mohun, 164 V. S. 311. 41 L. ed. 447. 22 Kennedy v. St. Paul & P. Ry. Co., 2 Dillon. 448. 23 Farmers' L. & T. R. Co. v. Xo- § 307] POWEKS OF RECEIVERS. 981 After the execution of a contract has been authorized by the court, the order will not ordinarily be revoked except in case of fraud. 24 A receiver cannot accomplish by estoppel or waiver what he has no power to do directly. 86 Without authority from the court a receiver cannot by receipt of rent or otherwise bind the parties or a subsequent purchaser to recognize a lease 26 The court may, however, either in the original order of appoint- ment or subsequently, give a receiver very extensive powers. It is usual in the order appointing a receiver to give him power to bring and defend suits or actions affecting the estate. Other and much more extensive authority, such as to borrow money needed for the proper administration of his trust, and issue as security therefor certificates giving their owner a first lien upon the estate ; 27 to contract for the construction of a bridge ; 28 to levy an assesment upon stockholders; 29 to pay a faithful ami deserving employee his wages during the time that he is kept from work by the result of an injury received while at work for the receiver, without contributory negligence, but for which the receiver is not responsible; 30 and in Ireland, to spend money in relieving and giving employment to poor tenants, for the reason that they may be enabled in the future to pay their rent more regularly. 31 have been given to receivers. The order appointing a receiver of land usually contains a clause em- gansport, C. & S. W. Ry. Co., 4 Fed. 184. 24 Wabash, St. L. & P. Ry. Co. v. Central Trust Co.. 22 Fed. 260. But see Weeks v. Weeks. 106 N. Y. 620. 25 Van Dyck v. McQuade, 85 N. Y. 616; Farmers' L. & Tr. Co. v. Chicago & A. Ry. Co., 44 Fed. 653, 659. But see Central Tr. Co. v. Ohio Central R. Co., 23 Fed. 306; Armstrong v. Armstrong, L. R. 12 Eq. 614; Koontz v. Northern Bank, 16 Wall. 196. 21 L. ed. 465; Stan- ton v. Ala. & C. R. Co., 31 Fed. 585. 26 Farmers' L. & Tr. Co. v. Chi- cago & A. Ry. Co., 44 Fed. 653, 659. 27 Wallace v. Loomis, 97 U. S. 146, 24 L. ed. 895; infra, § 309. An order authorizing a receiver to borrow money to expend in building an unfinished portion of a railroad does not authorize him to contract for municipal aid in such construc- tion. Smith v. McCullough, 104 l'. S. 25, 29. 26 L. ed. 037, 639. 28 La Crosse Railroad Bridge, 2 Dill. 465. 29 Kirkpatrick v. Am. Alkali Co., 135 Fed. 230. 30 Missouri Pac. Ry. Co. v. Texas & P. Ry. Co., 33 Fed. 701 ; a. c, Blaener, Intervener, 41 Fed. 319, limited by Thomas v. East Term., V. & G. Ry. Co.. 00 Fed. 7. But see Hoyt v. Thompson. 5 X. V. 320. 81 Jackson v. Jackson, 2 Hogan. 238. 982 HECK [VERS. [§ 308 powering him to set and let the same. 32 Even with this, it seems that without special authority he cannot let any part thereof so as to bind the estate for a longer period of time than is authorized bv the Statute of Frauds. 33 but that a lease made for a longer time would bind a tenant who had accepted it. 34 It is the safer practice for the receiver not to employ a rout collector until he has authority from the court. 35 Where the board of directors may assess the stockholders, the receiver may be empowered to do the same. 36 It is doubtful whether a re- ceiver has the right to use a patent under a license given the person over whose estate he was appointed. 37 A receiver of a dissolved corporation may sustain a lull to compel the assign- ment to him of a patent by the legal owner when the corpo- ration had the equitable title to the same. 38 The court may authorize a receiver of a corporation to make any contract within the corporate powers, provided, at least, that it does not bind the property after the receivership is terminated. 39 § 308. Powers of receivers of railroads. Very extensive powers are often granted to the receivers of railroads. 1 And in a carefully considered opinion, Mr. Justice Bradley said : "It may be laid down as a general proposition, that all outlays made by the receiver in good faith, in the ordinary course, with a view to advance and promote the business of the road, and to render it profitable and successful, are fairly within the line of discretion which is necessarily allowed to a receiver intrusted with the management and operation of a railroad in his hands. His duties, and the discretion with which he is invested, are very different from those of a passive receiver, appointed 32Daniell's Ch. Pr. (2d Am. ed.) 1989. 33 Kerr on Receivers (2d Am. ed.), 210, 211. 34 Dancer v. Hastings. 4 Bing. 2; Kerr on Receivers (21 Am. ed.), 211. 35 Peters v. John Kress Brewing Co.. X. Y., Sp. Tra., X. Y. Co. Dec. 13. 1905. 36 Maxwell v. Akin. 89 Fed. 178. 37 Compare Montrose v. Mabie, 30 Fed. 234. with Curran v. Craig, 22 Fed. 101. 38 McCulloh v. Association Hor- logerie Suisse, 45 Fed. 479. 39 South Carolina & G. R. Co. v. Carolina C E. & C. Ry. Co., C. C. A., 93 Fed. 543, 553. § 308. 1 Davis v. Gray. 16 Wall. 203. 219. 220: Cowdrey v. Railroad Co.. 1 Woods. 331. 330. See Rai! road Receivers in Federal Courts, by Judge Caldwell, 44 Am. Law Rev. 161. 308] POWERS OF RECEIVERS OF RAILROADS. Its:; merely to collect and hold moneys due <>n prior transactions, or rents accruing from houses and lands. And to such outlays in ordinary course may properly be referred, not only the keeping of the road, buildings, and rolling stock in repair, but also the providing- of such additional accommodations, stock, and instru- mentalities as the necessities of the business may require, always referring to the court or to the master appointed in that behalf, for advice and authority in any matter <>i' importance, which may require a considerable outlay of money in lump; and except in extraordinary cases, the submission by the re- ceiver of his accounts to the master at frequent intervals, whereby the latter may ascertain from time to time the char- acter of the expenditures made, and disallow whatever may nut meet with his approval, will be regarded as a sufficient refer- ence to the court for its ratification of the receiver's proceed- ings. In extraordinary cases, involving a large outlay of money, the receiver should always^apply to the court in advance and obtain his authority for the purchase or improvement pro- posed.'' 8 It has been held that the receiver is not obliged to obtain special authority from the court to make contracts for ordinary supplies or accommodations needed for the operation of the railroad; such as equipment, repairs, the use of the round- 2 Cowdrey v. Railroad Co., 1 Woods, 331, 330. This language has been thus construed in a case in a State court : "This rule, it will be observed, simply prescribes what expenditures, out of the fund in his hands as receiver, the court, will recognize as legitimate and proper when the receiver comes to account for the administration of his trust, but nothing here said gives the slightest support to the notion that the receiver may. in virtue of the power of his office, make a contract, without the au- thority of the court, Which will bind the trust, or which the court will be bound to recognize without re- gard to its necessity or propriety. A receiver may. undoubtedly, ap- propriate moneys in his hands be- longing to the trust to such pur- poses, connected with the trust, a- be may think proper, always taking the risk that the court will finally approve his action, but lie has no authority to bind the trust by con- tract without the authority of the court. Until his contracts are ap- proved or ratified by the court, tin' court is at liberty to deal with them as to it shall appear to be just, and may cither modify them or disregard them entirely. This, in my judgment, is the only safe rule which can be adopted." Van Fleet. V. C, Lehigh Coal & Na\ Co. v. Central K. of N. J., 35 X. J. Eq. 426, 4-2U. To a similar elicit. is Union Tr. Co. v. 111. Mid. Ry. Co.. 117 U. S. 434. 29 L. ed. 9G3. 984 RECEIVERS. [§ 308 houses and terminals, and the employment of an agent to solicit business and to contract to transport goods over other lines or by connecting boats; 3 and that such contracts, although subject to review by the court, will not be set aside unless the charges are unreasonable, unusual, or extravagant, The receiver is justi- fied in paying claims for the loss of freight upon proof by the affidavits of the shippers without any application to the court, where that is the usual course of business by railway and express companies. 4 A loan to a receiver whom the court has not authorized to borrow money will be denied priority. 5 A receiver cannot make a permanent traffic agreement without the authority of the court. 6 It has been held that the court has power to authorize the receiver of a railroad company under proceedings for a foreclosure, to ratify a contract previously made by the corporation giving a telegraph company certain privileges upon its road ; and that the contract thus ratified will be binding upon purchasers of the railroad at a foreclosure sale ; 7 that such a receiver may be authorized to make such expenditures as are necessary to render the operation efficient and to perfect the service, in return for which the franchises were given, 8 complete the construction of a line of railroad, and to borrow money for that purpose, 9 to purchase a lien upon part 3 No. Pac. Ry. Co. v. Am. Trading Co., 195 U. S. 439, 461, 49 L. ed. 269, 279; South Carolina v. Port Royal & A. Ry. Co., 89 Fed. 565, 572, 574. 4 Central Tr. Co. v. Colorado Mid. Ry. Co., 89 Fed. 560. 564. 5 Union Tr. Co. v. 111. Mid. Ry. Co., 117 U. S. 434, 477, 29 L. ed. 963, 978; § 309, infra. 6 Investment Co. of Phila. v. Ohio & X. W. Ry. Co., 4 Fed. 378. ?\V. U. Tel. Co. v. Atl. & Pac. Tel. Co., 7 Biss. 367. 8 Pennsylvania Steel Co. v. N. Y. City Ry. Co., 165 Fed. 455. This includes the completion of car houses, which were being rebuilt and enlarged on some of the lines held by the receiver. Pennsylvania Steel Co. v. X. Y. City Rv. Co., C. C. A., 180 Fed. 704, where it was said that the apportionment of the expense between the different mort- gagees should be determined on a final accounting. 9 Kennedy v. St. P. & P. Ry. Co., 2 Dill. 448; infra, § 309. See also Smith v. McCullough, 104 U. S. 25: Allen v. D. & \V. R. Co., 3 Woods, 316. In such a case, notice to the lienors should be given. Bibber- White Co. v. White River Yal. El. R. Co., C. C. A., 115 Fed. 786. It has been held that a railroad re- ceiver may be authorized to pledge securities which are the property of the corporation as collateral for a loan, and to incur liability for the expenses of a scheme to refund the corporate indebtedness. Clarke v. Central R. & B. Co., 54 Fed. 556. § 308] POWERS OF RECEIVERS OF RAII.KOADS. 985 of its property, to assume a lease of a connecting railway. 10 Farmers' L. & Tr. Co. v. Bur- lington & S. \V. Ry. Co., 32 Fed. 805. See also Central Tr. Co. v. Wabash, St. L. & P. Ry. Co., 34 Fed. 259; Central Tr. Co. v. Wa- bash, St. L. & P. Ry. Co.. 23 Fed. 8G3; Easton v. Houston & T. C. Ry. Co., 38 Fed. 784. The rules which should regulate a receivership of a consolidated railroad holding leased lines with separate mortgages upon the different branches, as well as a general mortgage upon the whole system, were thus stated in an opin- ion of Judge Brewer, delivered when denying an application by a receiver of such a system of railroads for leave to reject such leased roads as were unprofitable: "This Wabash road is composed of many subdivi- sions. While it is a single corpora- tion today, yet into it have passed many corporations and many sepa- rate railroad properties. In admin- istering such a consolidated prop- erty, the court must look at, not merely the interest of the mort- gagee in this general mortgage, or of the mortgagor as a single entity or corporation, but also the sepa- rate and sometimes conflicting in- terests of the various subdivisions and their respective incumbrances, and, back of all that, the duty which every railroad corporation owes to the public. And that duty is not limited to the operation of merely that particular fragment of a road which is pecuniarily profit- able in its operations, but it ex- tends to the road as an entirety, and to all its branches, — all its parts; differing in that particular from the duty which would rest upon the court if it had simply taken possession of property used for private purposes, manufactur- ing or otherwise, where the single question might well be said to be one of pecuniary profit. This Wa- bash road, as a system, was in oper- ation, a going concern, from one end to the other; as such, discharg- ing its duties as best it could to its various creditors. This court, at the instance of the corporation, and to preserve the integrity of the sys- tem, took possession of it by its receivers. It took possession of it as a going concern, and so far as is reasonable and practicable, it should continue it as a going con- cern until it surrenders it to who- ever may be the purchasers or fu- ture holders of it. With that preface, and calling these separate branches which have passed into this consolidated road, subdivisions, since some have passed in by way of lease and others by way of con- solidation, subject to separate mort- gages, we pass orders substantially as follows: The first is one which lias already been entered, and we simply emphasize it by repeating it, that subdivisional accounts must be kept separately. That was an or- der passed by Brother Treat at the very outset of this receivership, in order that the particular equities of each one of these divisions, a- between themselves, might be as- certained. 2. Where any subdivi- sion earns a surplus over expenses', the rental or Bubdivisional interest will be paid to the extent of the surplus, and only to the extent of the surplus. Any part diversion of such surplus for general operating expenses will be made good at once, and. if need lie. by the issue of receiver's certificates. ... 3. 986 RECEIVERS. [§ 308 even without notice to the mortgagee, 11 and to lease a railway for a fixed term ; although, in such a case, a provision for a cancellation of the lease at the option of the court should ordinarily he inserted. 12 Where the lease contains no such clause, the lessee is entitled to compensation for the unexpired term, if, before his lease expires, he is ousted from possession by the court. 13 Receivers for the lessee of a number of connect- ing street railroads in the same suit under leases from different lessors were authorized to use the income for the entire system for the purpose of operating and maintaining the same as a unit, notwithstanding the provisions of mortgages upon parts Where a subdivision earns no sur- plus. — simply pays operating ex- penses, — no rental or subdivisional interest will be paid. If the lessor <>r the subdivisional mortgagee de- sires possession or foreclosing he may proceed at once to assert his rights. While the court will con- tinue to operate such subdivision until some application be made, yet the right of a lessor or mortgagee whose rent or interest is unpaid to insist upon possession or foreclo- sure will be promptly recognized. That, it is true, may work a dis- ruption of the system, as evidenced by the movement just made in re- spect to this Cairo division: but the proceeding for disruption will come from the subdivisions. The court is not sloughing off branches tearing the system in two: but the disruption, if it comes, will come from those who seek separation, and have a legal right so to do. But see Pennsylvania Steel Co. v. X. Y. City Ry. Co.. C. C. A.. 180 Fed. 704. 4. Where a subdivision not only earns no surplus but fails to pay operating expenses, as in the St. Joseph & St. Louis branch, the oper- ation of the subdivision will be con- tinued, but the extent of that oper- ation will be reduced with an unsparing though a discriminating hand; that is. if a subdivision does not earn operating expenses, and the receivers are running two trains a day. then lop one of them off. If they are running one train a day, and still it does not pay, then run one train in two days. While the court will endeavor to keep that subdivision in operation, it will make the burden of it to the con- solidated corporation, and to all the other interests put into that con- solidated corporation, a minimum." Treat, J., concurring, in Central Tr. Co. v. Wabash. St. L. & P. Ry. Co., 23 Fed. 863, 865-867. In the same case, Judge Woods subsequently re- jected a claim to a preference over the mortgage for rents accrued pending a receivership, in a suit in which the mortgagee had been de- nied the extension of the receiver- ship for his benefit. Centra] Tr. Co. v. Wabash. St. L. & P. Ry. Co., 46 Fed. 26. But see Mercantile Tr. Co. v. Farmers' L. & Tr. Co.. C. C. A., SI Fed. 254: supra, § 305. Cf. infra. § 321. 11 Mercantile Tr. Co. v. Mo.. K. & T. Ry. Co.. 41 Fed. 8. 11, 12. 12 Farmers" L. & Tr. Co. v. Eaton, C. C. A.. 114 Fed. 14. 13 Ibid. 309] RECEIVER S CERTIFICATES. 987 of the property. 14 It has been held that receivers should aol be authorized to lease street railways to a new corporation, with authority to the lessee to issue bonds secured by a mortgage with priority over mortgages previously existing, in order to raise the funds for the improvement of the property, under the direction of a board of engineers representing the city, and not the original owners of the property; 15 but, in the same case the Circuit Court subsequently authorized the receivers to deliver the street railways to the reorganized corporal ion before the foreclosure sale. 16 Without authority from the court a re- ceiver of a railroad cannot lease offices for a term of four years; 17 nor it seems for any time. 18 Such authority is nol included in the grant of power to make all contracts that may be necessary in carrying on the business of the railroad, 19 nor is the lease ratified by the approval of monthly accounts show- ing payment of rent under the same. § 309. Receiver's certificates. Where it is absolutely necessary to raise money for the preservation of the property in his hands, a receiver may be empowered by the court to issue certificates which give their owners a lien upon the property prior to that held by any persons except those whose claims are paramount to the rights of the parties to the suit. 1 Such certifi- cates may have a priority over a vendor's lien upon rails. 2 Such 14 Barber A. P. Co. v. Forty-Sec- ond St.. M. & St. X. Ave. Ry. Co., C. C. A.. 180 Fed. 648. 15 Merchants' L. & Tr. Co. v. Chi- cago Rys. Co., C. C. A., 158 Fed. 923. 16 Guaranty Tr. Co. v. Chicago Union Traction Co.. 158 Fed. 101".. 17 Chicago Deposit Vault Ry. Co. v. McNulta, 153 U. S. 554, 38 L. ed. 819. 18 Branian v. Farmers' L. & Tr. Co., C. C. A.. 114 Fed. 18, 21. The same case considers the proper dis- bursements of a receiver for hotel hill,. 19 Chicago Deposit Vault Ry. Co. v. McNulta, 153 U. S. 554, 38 L. ed. Slit. 20 Ibid. § 309. 1 Mover v. Johnston, ' 53 Ala. 237: Jerome v. McCarter. '•»! U. S. 734, 24 L. ed. 1.3(1; Wallace v. Loomis, 97 U. S. 146, 24 L. ed. 895; Miltenberger v. Logaflspor't Ry. Co.. 10(1 I". S. 286, r 27 L. ed. 117: Stanton v. Ala. & C. Ry: Go., 2 Woods. 506; s. c: 31 Fed! 585; Kennedy v. St. Paul & P. R. Co.. 2 Dill. 44S; Hoover v. Montclair & G. L. R. Co.. 29 N. •!. Eq. 4: I 6e v. X. J. Mid. Ry. Co.. 27 X. .1. Eq. 37: Union Tr. Co. v. Illinois Mid. Ry. 66., 117 C S. 434. 29 1.. ed. iMi.'C For a case when' certain prop- erty was exempted from the lien, see Third St. & S. Ry. Co. v. bewis, 79 Fed. 19. 2 Royal Tr. Co. v. Wa>lil.urn P.. & I. Ry. Co.. C C. A.. 120 Fed. 11. !!SS RECEIVERS. [§ 309 certificates are usually issued only in suits for the foreclosure of railroad or telegraph mortgages, or mortgages of other public corporations, in order to raise money for repairs, or to defray operating expenses, 3 or to discharge claims having an equitable preference to that of the party at whose instance the receiver was' appointed, 4 or to restore to the rightful owners so much of the income as the receiver has improperly applied to the fore- going purposes. 5 In a few cases, receivers have been authorize 1 thus to borrow money in order to complete the construction of railroads, and save from forfeiture land grants and municipal subscriptions. 6 Certificates have been issued to pay interest upon a divisional mortgage prior to that to foreclose which the suit was brought. In cases of industrial corporations, which are not engaged in public service, such as mining companies, 8 manufacturing companies, 9 and land and irrigation com- 3 Jerome v. McCarter, 94 U. S. 7.'54. 24 L. ed. 136; Wallace v. Loomis, 07 U. S. 146, 24 L. ed. 895; Miltenberger v. Logansport Ry. Co., 106 U. S. 286, 27 L. ed. 117. But see Merchants Loan & Tr. Co. v. Chicago Rys. Co.. C. C. A.. 158 Fed. 92:5; Gay v. Hudson River El. Pow- er Co., 166 Fed. 771. 4 -Miltenberger v. Logansport Ry. Co., 106 U. S. 286, 27 L. ed. 11 7-, Taylor v. Phila. & R. R. Co., 7 Fed. 377: Skiddy v. Atlantic. M. & 0. R. Co., 3 Hughes. 320. 5 Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 23 Fed. 863; Bcrwind-White Coal Min. Co. v. Metropolitan S. S. Co., 183 Fed. 250; Am. Trust Co. v. Metropolitan S. S. Co.. C. C. A., 190 Fed. 113: approved Harv. Law Rev., XXV, 460. 6 Kennedy v. St. Paul & P. R. Co., 2 Dill. 448: Miltenberger v. Logansport Ry. Co.. 106 V. S. 286, 294, 295. 27 L. ed. 117. 120, 121. See also Smith v. McCullough, 104 U. S. 25. 29. .26 L. ed. 637. 639. But see Investment Co. v. Ohio & X. W. R. Co., 30 Fed. 48; Mer- chants' Loan & Trust Co. v. Chi- cago Rys. Co., C. C, A.. 158 Fed. 923; Bibber-White Co. v. White River Val. El. R. Co.. C. C. A., 115 Fed. 786. See Credit Co. v. Arkan- sas Central R. Co.. 15 Fed. 446. 7 Skiddy v. Atlantic. Miss. & O. R. Co.. 3 Hughes, 320. 341. See Am. Trust Co. v. Metropolitan S. S. Co., C. C. A., 190 Fed. 113. Con- tra, Knickerbocker Tr. Co. v. One- onta, Cooperstown & Richfield Springs Ry. Co.. 201 N. Y. 379. 8 Fidelity I. & S. Co. v. Shenan- doah Iron Co.. 42 Fed. 372; Farm- ers' L. & Tr. Co. v. Grape Creek Coal Co., 16 L.R.A. 603. 50 Fed. 481 ; International Tr. Co. v. Decker Bros., C. C. A.. 152 Fed. 78. 9 Fidelity I. & S. Co. v. Shenan- doah Iron Co.. 42 Fed. 372; Laugh- lin v. U. S. Rolling Stock Co., 64 Fed. 25: Newton v. Eagle & P. Mfg. Co., 76 Fed. 418; Union Tr. Co. v. Southern Sawmills & Lumber Co., C. C. A., 166 Fed. 193. See Conklin v. U. S. Shipbuilding Co., 123 Fed. 913. See High on Receivers, (4th ed.) § 312b. § 309] RECKIVKK S CERTIFICATES. 989 panics. 10 the court has no power to issue receivers' certificates to displace mortgage liens without the consent of the mortgagee, except to provide for the necessary expenditures incident to the administration of the assets, and the preservation of the property from deterioration, pending the winding up of the business and a settlement of the receivership. It has been held that such a receiver has no power, for the purpose of completing an unfinished building, to borrow money by means of certifi- cates, which have priority over a pre-existing mortgage. 11 Where the net earnings of a railroad are sufficient to defray current expenses, the court will not authorize the issue of re- ceiver's certificates merely for the sake of paying interest upon the mortgage under foreclosure. 13 It has been said to be doubt- ful whether the court has the power to authorize a receiver to issue car-trust certificates secured by a lien upon the cars which are thus bought, and payable in ten annual installments. 13 An order authorizing the issue of receiver's certificates to pay "wages and freights due and to become due" does not authorize the issue of a certificate to pay money advanced to pay wages by honoring "store orders. " 14 The power of courts of equity to issue receiver's certificates is of modern origin, 15 has been severly criticized, 16 and should be exercised with great reluct- ance. 17 Without leave from the court, a receiver has no power lOHanna v. State Tr. Co., C. C. A.. 30 L.R.A. 201. 70 Fed. 2; Farm- ers' Loan & Tr. Co. v. Burbank Power & Water Co., 190 Fed 539. n Raht v. Attrill, 106 X. Y. 423. CO Am. Rep. 4.56. See X'. S. Invest- ing Corp. v. Portland Hospital (Oregon, 1902), 67 Pac. 194. 56 L.R.A. 627. See Baltimore Build- ing & Loan Ass'n v. Alderson. ('. C. A., 90 Fed. 142, 32 C. C. A. 542. 12 Taylor v. Phila. & R. R. Co., 9 Fed. 1. 13 Ibid. "Fidelity Ins. & S. D. Co. v. Shenandoah I. Co., 42 Fed. 372. 377. 15 The first case seems to have been Meyer v. Johnson (1S75I. 53 Ala. 237; Coe v. X. 3. Mid. Rv. Co.. 27 X. J. Eq. 37: Hoover v. Moritclair & G. L. Ry. Co., 29 X. J. Eq. 4; Jerome v. McCarter. 94 U. S. 734. 24 L. ed. 136: Wallace v. Loomis. 97 U. S. 146. 24 L. ed. 895. io Barton v. Barbour, lot U. S. 126, 138. 20 L. ed. 072. 678; Credit Co. v. Arkansas Cent. R. Co.. 15 Fed. 46. Sec (lie ('unit Manage- ment of Railroads, by lion. S. 1). Thompson, 27 Am. Law Rev. 481. w Wallace v. Loomis, 97 V. S. 140. 103. 24 L. vd. S95. 90] ; Shaw v. Railroad Co'., ion l\ s. 005. 012. 25 I., ed. 757. 759: Taylor v. Phila. & R. R. Co.. 9 Fed. 1: Credit Co. of London v. Arkansas Cent. R. Co., 15 Fed. 40: street v. Md, Cent. Ry. Co.. 59 Vn\. 25. 990 RECEIVERS. [§ 309 to pledge the trust estate, nor to make a contract for a loan of money which will hind the estate, 18 or even hind the pro- posed lender. 19 An order for the issue of receiver's certificates is usually granted only upon notice to all parties in interest. 20 Those who have not received notice may move to set aside the order and to cancel the certificates, if thev act as soon as thev learn what was done. 21 The order, although ex parte, remains in force till set aside; and is not revoked by a reference to determine all claims against the receiver, and a confirmation of a report thereat making no mention of the certificates, when it appears that they were not presented or considered at the reference, and that their holder had no notice of the reference. 22 A very short delay after knowledge that such an order has been grated will estop a party from objecting to the validity of certificates issued in pursuance of it, 23 and from claiming that 18 Union Tr. Co. v. 111. Mid. Ry. Co.. 117 U. S. 434. 2!) L. ed. 963; (Vnt. Tr. Co. v. Cincinnati. J. & M. Ry. Co.. 58 Fed. 500; § 80S. supra. The court may ratify the loan after it lias been made. Elk Fork 0. & G. Co. v. Foster. C. C. A., 99 Fed. 495: Ibidl, 00 Fed. 707. 19 Smith v. McCullough, 104 U. S. 25. 20, 20 L. ed. 637, 039. 20 Bibber-White Co. v. White River Val. El. R. Co.. C. C. A.. 135 Fed. 780; Union Tr. Co. v. Southern Sawmills & Lumber Co., C. C. A., 100 Fed. 193: Illinois Steel Co. v. Ramsey. C. C. A., 176 Fed. 853. 860: Knickerbocker Tr. Co. v. One- onta. Cooperstown & Richfield Springe Ry. Co.. 201 N. Y. 379. 21 Ex parte Mitchell. 12 S. C. 8.3. But see .Miltenberger v. Logansport Ry. Co.. 100 U. S. 286, 207. 298, 27 L. ed. 117. 121, 122. 22Hervey v. 111. Mid. Ry. Co.. 28 Fed. 160. Gf. Central T. R. Co. v. Sheffield & B. C. I. & Ry. Co., 44 Fed. 526. Mercantile Tr. Co. V. Kanawha & O. Ry. Co.. 50 Fed. 874. 23 Miltenberger v. Logansport Ry. Co., 100 U. S. 2S6. 27 L. ed. 117; Union Tr. Co. v. 111. Midland Ry. Co., 117 U. S.'434. 29 L. ed. 003; Central Tr. Co. v. Marietta & X. G. R. Co.. C. C. A.. 75 Fed. 103: s. c. 75 Fed. 200: Berwind-White Coal Min. Co. v. Metropolitan S. S. Co., 183 Fed. 250. It was held that no- tice of an application for receiver's certificates given to a trustee of a mortgage who was not a party to a suit did not make them, when is- sued, prior to his mortgage, Farm- ers' L. & Tr. Co. v. Centralis & C. R. Co.. C. C. A.. 00 Fed. 636: and that a bondholders' committee em- powered to act in matters requisite or necessary for the enforcement and protection of the legal rights of the holders of mortgage bonds bad no authority to consent in their behalf to the issue of receiver's cer- tificates with a priority over the mortgage, in order to pay claims not entitled to a preference. Ibid. See Fordyce v. Omaha. Kansas City v. E. R. R., 145 Fed. 544. 556. 309] RECEIVER S CERTIFICATKS. DJJl property is not subject to the lien of such certificates. Re- ceivers certificates are assignable, but not negotiable. "Re- ceivers' certificates, being merely evidences of indebtedness, can have no higher character than the debts of which they are the representatives." 26 "The receivers' certificate is defined within the corners of the court's order, aided, in interpretation, somewhat by the petition on which issued and such other docu- mentary evidence as may be relevant." 27 A purchaser oi receiver's certificates at par from the receiver without notice of any suspicious facts is not prejudiced by the appropriation of the funds by the receiver for his own use. 28 The court has power to pay out of the fund receivers* certificates in the bands of bona fide purchasers, although the receivership is dissolved and the bill dismissed. 29 It has been said that the power to issue them is a personal one which the receiver cannot dele- gate. 30 The holders of receiver's certificates are bound by all subsequent proceedings in the suit, whether or not the same affect their lien and with or without notice. 31 Tt was held to be an abuse of discretion for the court to sell property, without 24 State Tr. Co. v. Kansas City. P. & G. R. Co.. 120 Fed. 308. 25 Union Tr. Co. of X. Y. v. Chi- cago & L. II. R. Co., 7 Fed. 513; Stanton v. Ala. & C. R. Co., 31 Fed. 585; Turner v. Peoria & S. K. Co., 95 111. 134. 35 Am. Rep. 144; Stan- tun v. Ala. & C. R. Co.. 2 Woods, 50G; s. C, 31 Fed. 585; Central Nat. Bank v. Hazard, 30 Fed. 484. 26 Fidelity Ins. & Safe Deposit Co. v. Shenandoah Iron Co., 42 Fed. 372.377; Bibber-White Cio. v. White River Valley EI. R. Co., 175 Fed. 470. 27 Re .1. 1!. & J. M. Cornell Co.. 20 1 Fed. 381, 3SS. 28 Mercantile Tr. Co. v. Kanawha & 0. I!y. Co., 50 Fed. 874. Where a receiver issued a certificate to a person named therein as payee, for negotiation and sale, and the latter never paid over any money on ac- count of it, a purchaser of the cer- tificate at much less than par, who was unable to prove that the person from whom he bought it had paid anything therefor to the person named as payee, was not allowed to receive anything from the receive] on account of the same. Union Tr. Co. v. Chicago & L. H. R. Co.. 7 Fed. 513. See Stanton v. Ala. & C. R. Co., 31 Fed. 585: 8. C, 2 Woods. 506. 29 El. Supply Co. v. Put-in-Bay W. L. cV Ry. Co.. SI Fed. 740. soiJnion Tr. Co. v. Chicago «S; L. II. R. Col, 7 Fed. 513. Bui see Ala. Inm \ Ry. Co. v. Armiston L. & It. Co.. C. C. A.. 57 Fed. 25. 31 Gordon v. Newman. 62 Fed. 686; Mercantile T. Co. v. Kanawha & o. Ky. Co., C. C. A.. 5S Fed. 6. Bui see Sheffield & B. <'. l. & Ry. Co. v. Newman. C. C. A.. 77 Fed. 7S7. 992 RECEIVERS. [§ 309 first determining' questions raised concerning the validity of receivers' certificates; 32 and that such questions should be determined, after taking testimony rather than upon a de- murrer. 33 The purchaser at a judicial sale made subject to the payment or receiver's certificates cannot contest their validity, 34 unless his right so to do is reserved. A receiver is personally responsible for a fraudulent statement in a certificate which he issues. 35 In at least one case, the court ordered the receiver to execute a mortgage to secure the receiver's certificates. 36 Imt, ordinarily,, the order for the issue of the certificates pro- vides that they shall constitute a lien upon the property su- perior to all prior incumbrances, which is sufficient. 37 It has been said that a receiver's certificate payable out of the in- come is in the nature of a call loan, and that the holder has the right to presume that the receiver will notify him when the loan is to be collected or the money paid. 38 Where the order provides that the certificates shall be a first lien on the prop- erty, the lien may be enforced by an independent suit, 39 or by a petition in the suit in which they were issued to the court which ordered their issue, 40 or to a court having territorial jurisdiction over a part of the railroad in an ancillary suit. 41 When the proceeds of the property are insufficient to pay the receiver's certificates in full, those issued to defray the expenses 32 International Tr. Co. v. Decker Bros., C. C. A., 11 L.R.A.(X.S.) 15-2, 152 Fed. 78. 33 Savings & Tr. Co. v. Bear Val- ley Ir. Co., 112 Fed. 093. 34 Central Nat. Bank v. Hazard. 30 Fed. 484; Central T. Co. v. Shef- field & B. C. & I. Ry. Co.. 44 Fed. f)2G. 35 Bank of .Montreal v. Thayer, 7 Fed. 022. 36 Jerome v. McCarter, 94 U. S. 734, 24 L. ed. 136. 37 For a good form of an order and a certificate, see Kennedy v. St. Paul & P. Pv. Co., 2 Dill. 448. In one case the order simply stated that the certificates should he pay- ahle out of the income of the prop- erty, and l 'be provided for by this court in its final order in said cause, unless paid by the receiver out of the income of said road as aforesaid." Miltenberger v. Logans- port By. Co., 106 U. S. 286, 298, 27 L. ed. 117, 122. 38 Sage J., in Mercantile T. Co. v. Kanawha & 0. Ry. Co., 50 Fed. 874, 878. 39S\vann v. Clark, 110 U. S. 602, 28 L. ed. 256. But see Re C. M. Burkhalter & Co., 179 Fed. 403. 40 Mercantile T. Co. v. Kanawha & O. Ry. Co.. 50 Fed. 874. See Am. Trust Co. v. Metropolitan S. S. Co., C, C. A., 190 Fed. 113. « Thid. I 309] RECEIVER S CERTIFICATES. 993 of the receivership will be paid before certificates given for pre- ferential debts of the mortgagor,* 8 but certificates issued for betterments were not given a priority over the claims for material and supplies furnished to the insolvent within a few- months before the receivership; 43 and the lien of certificates issued for the expenses of the receivership was postponed to that for tax liens and mechanics' liens that previously vested, although the mortgagee consented that such certificates should be prior to the mortgage. 44 Where there were two sets of re- ceivers' certificates, the first with the consent of the bondholders made a lien prior to the mortgage, the second issued without such consent and without such a provision; it was held that the second set should be paid subsequent to the mortgage. 45 Where the property was situated outside of the State and judicial dis- trict, and lienholders, who were indispensable parties, were citizens of the same State as the complainant; it was held that an order issuing receivers' certificates to complete an unfinished building was void. 46 A receiver appointed in a suit for the foreclosure of a second railroad mortgage may be authorized to issue certificates constituting a prior lien to that of the first mortgage, provided the mortgagor is in default as to that, and the first mortgagee is a party to the suit. 47 An order 42 Bank of Commerce v. Central Coal & Coke Co., C. C. A., 115 Fed. S78. This was so held even when the decree provided that the fund arising from the sale should be ap- plied, after payment of costs and •expenses, "to the payment of all interventions or other claims here- tofore or hereafter to be allowed . . . as superior to the liens of the bonds . . . or, if the fund realized he not sufficient, to pay the ;same, then to the payment of the same pro rata." 43 Pennsylvania Steel Co. v. N. Y. •City Ry. Co.. 105 Fed. 455; § 305, supra. 44 Pusey & Jones v. Pennsylvania Paper Mills, 17:? Fed. 634. 45 R e J. P,. & J. M. Cornell Co., 201 Fed. 381. 303. In that bank- Fed. Prac. Vol. L— 63. ruptcy case, the order of priority was fixed as follows: (1) All taxes due; (2) cost of administra- tion; (3) claim of the holder of the first series of certificates, which were by their terms a lien prior to the mortgage: l4l claims of bond- holders secured by the mortgage; (5) second series of certificates and claims of creditors, who had fur- nished merchandise to the receiv- ers, which were placed upon an equality; (f>) claims for damages for breach of contract; (7) claims for injuries. Re J. B. & J. M. Cor- nell Co.. 201 Fed. 381, 393. 46 Baltimore Building & Loan Ass'n v. Aldrrs.m, C. C. A.. 90 Fed. 142, 32 C. C. A. 542. 47 Miltenberger v. Logansport Ry. Co., 106 U. S. 286, 27 L. ed. 117. 994 RECEIVERS. [§ 310 authorizing the issue of receiver's certificates is appealable. 48 A Federal court has no power to enjoin a receiver appointed by a State court from issuing certificates of indebtedness.* 9 § 310. Advice to receivers. Receivers may apply to the court for instructions and advice, both generally and in particu- lar cases. 1 In every doubtful case, it is the duty of the receiver to apply for the instructions of the court. 2 "If there are parties in interest, and they have their day in court, the advice may be decisive. But if the matter is ex parte, the value of the advice depends largely upon the information and ability of the judge, and is probably binding only on the receivers, for the judge may change his mind on hearing full argument.' , 3 He may be authorized to attend the hearings before a State Public- Service Commission. 4 It has been said, that from the nature of things the court cannot determine how many trains a receiver shall run, 5 nor select his employees, 7 although it may regulate his treatment of them, 7 and his contracts with rhem. 8 and will listen to their complaints of unfair treatment by him. 9 The courts have, at the request of receivers, instructed them what rates to charge, 10 and directed them not to obey so much of a State statute as impaired the obligation of a contract, where the petition for instructions was filed a month before the act 48 Farmers' L. & T. Co. Petition- er, 129 U. S. 206, 32 L. ed. 650. 49 Reinaeh v. Atlantic & G. W. R. Co.. 58 Fed. 33. § 310. l Frank v. Denver & R. G. Ry. Co., 23 Fed. 757; Fx parte Koehler, 23 Fed. 520: Mo. Pae. Ry. Co. v. Tex. & P. Ry. Co., 31 Fed. 802. 2 Cliable v Nicaragua C. C. Co.. 5!) Fed. S46. 3 Mo. Pae. Ry. Co. v. Texas & P. Ry. Co.. 31 Fed. 862; Jones v. Moore, 198 Fed. 301. an order grant- ing leave to sue. 4/.V Metropolitan St. Ry., 166 Fed. 100G. 5 Brewer, J.. Treat, J., concur- ring, in Central Tr. Co. v. Wabash St. L. & P. Rv. Co.. 23 Fed. 863. 867. 6 Brewer, J., in Frank v. Denver & R. G. Ry. Co.. 23 Fed. 757. 704. 7 Frank v. Denver & R. G. Ry. Co.. 23 Fed. 757, 764 ; YVaterliouse v. Coiner, 19 L.R.A. 403. 55 Fed. 149. 8 Waterhouse v. Comer, 19 L.R.A. 403, 55 Fed. 149; Piatt v. Phila. & R. R. Co.. 65 Fed. 660. The court refused to permit receivers of a railroad to reduce the wages of the employees and change the terms of their employment without notice to them. Ames v. Union Pae. Ry. Co.,. 60 Fed. 674. A reduction was al- lowed in U. S. Tr. Co. v. Omaha & St. L. Ry. Co.. 63 Fed. 737. 9 Continental Tr. Co. v. Toledo. St. L. & K. C. R. Co.. 59 Fed. 514. 10 Fx parte Koehler, 23 Fed. 529. § 311] LITIGATION BY RECEIVERS. 905 went into operation. 11 and advised a receiver whether he should pay a tax, 12 and authorized them to default in the paymenl of mortgage interest under a stipulation with the trustees that foreclosure suits bo instituted and the receivership extended to them, and that the entry of the decree of foreclosure and sale should then he postponed until time had been afforded for a reorganization. 13 When a railroad was in the hands of a re- ceiver appointed in a suit to foreclose a mortgage, the court refused to entertain a petition by the mortgagee asking for instructions as to the propriety of postponing a meeting of its stockholders, and for permission to postpone the meeting. 14 § 311. Litigation by receivers. The causes of act inn which a receiver can enforce are of two kinds. — those which be- long to the estate of which he has charge before it was en- trusted to him. and those which have accrued since his appoint- ment. As has been said before, he cannot sue upon either with- out the leave of the court which appointed him. 1 A suit upon a cause of action which belonged to the estate before his appoint- ment is brought in the name of the legal owner of the estate ; 2 unless, as is not uncommon, the order authorizes the receiver to sue in his own name. 3 In the former case, the person whose name is used is indemnified out of the fund for all costs to which he is thereby made liable. 4 Receivers of corporations are usually authorized to sue and defend in the name of the corporation. 5 An order of ancillary appointment, giving the n ibid. 12 Ledoux v. La Bee. 83 Fed. 761. 13 Cay v. Hudson River El. Power Co., C. G. A.. 169 Fed. 1020. H Taylor v. Phila. & R. R. Co.. 7 Fed. 381. §311. 1 Wynne v. Lord Xewbor- ough, 1 Yes. ,l r . 104; s. c. 3 Brown. Ch. C. SS: Green v. Winter. 1 J. Oh: (X. Y.i 60. 2 Dick v. Struthers. 25 Fed. 103; Dick v. Gil-Well S. Co.. 25 Fed. 105; Daniell's Ch. Pr. (2d Am, ed.) 1977. This 1ms been held bo be the proper practice before final decree. Bay State Gas Co: v. Rogers, 147 Fed. .~>.">7. 559. 3 Davis v. Gray. 1(1 Wall. 203. 21 L. ed. 447. See Frankle v. Jackson, 30 Fed. 398; 4 Daniell's OK. Pr. (2d Am. ed.) 10!)1. 5 Frankle v. Jackson. 30 Fed. 398; Davis v. Gray, 16 Wall. 203, 21 L. ed. 447; Harland v. B 4 M. Tel. Co., 33 Fed. 199; Hale v. Har- den, 89 Fed. 283, 2S7. ('(. Wilder v. New Orleans. ( . t . A.. S? Fed. S43; Braddock Br. Co. v. Pfaudler V. M, Co., P. C. A., lnii Fed. 004. Unfair trade may he enjoined at tin' suit of a receiver authorized to carry on a business* Dixon v. 996 RECEIVERS. [§ 311 receiver all the powers described in the order appointing him,, in the court of primary jurisdiction, which had authorized him to institute actions or suits in any court for the recovery of any estate, property or judgment existing in favor of the corporation, gives him the right to sue in the name of the corpo- ration to recover unlawful profits made by a director of the same. 6 Costs recovered against a receiver in an action brought by him in his official capacity, are entitled upon the distribution of the fund to a priority over claims that existed against it before the receiver's appointment. 7 In the conduct of liti- gation, as in every other proceeding by him, a receiver is under the constant supervision of the court. 8 He is not bound by a stipulation which is not advantageous to the estate, made by himself or his counsel without the sanction of the court. 9 He cannot waive a defense on the merits. 10 He cannot allow a set- Dixon. Ch. D. 89 L. T. 272. Harv. L. Rev. xvii. 19G. 6 Bay State Gas Co. v. Rogers, 147 Fed. 557. 7 Camp v. Receivers Niagara Bank, 2 Paige (X. Y.), 283: Col- umbian Ins. Co. v. Stevens, 37 N. Y. 536; Locke v. Covert. 42 Hun (49 X. Y. S. C. R.l. 484. 8 Van Dyck v. McQuade. 85 X. Y. 616; McEvers v. Lawrence, Hoff. Ch. (X. Y.) 175. 9 Van Dyck v. McQuade, So X. Y. 616; Piatt v. Pliila. & R. R. Co.. 115 Fed. 842. Cf. Vance v. Royal C. Mfg. Co., 82 Fed. 251; Central Tr. Co. v. Worcester Cycle Mfg. Co.. 114 Fed. 659: where such a stipu- lation was enforced. A stipulation by the receiver of a corporation, to enter its appearance in a suit brought against it. does not hind him to enter his own appearance as receiver. Re Muncie Pulp Co.. 151 Fed. 732. 733. In the absence of a seasonable and well founded objec- tion, a stipulation made by receiv- ers of an insolvent corporation binds its creditors. Robinson v. Mutual Reserve Life Ins. Co., 182 Fed. 850. !0 McEvers v. Lawrence. Hoffman Ch. (X. Y.) 172: Keiley v. Dusen- bury. 10 J. & S. (X. Y. Super. Ct.) 238: s. c. 77 X. Y. 597; Van Dyck v. McQuade, 85 X. Y. 616. A re- ceiver may waive service of process and an objection to the jurisdiction founded upon residence. Whitcomb v. Hooper. C. C. A., 81 Fed. 946. It was held that a receiver who had removed an action brought against him in a State court could not afterwards object that the Fed- eral court had not acquired juris- diction; Baggs v. Martin. 179 U. S. 206. 45 L. ed. 155: but that his appearance and filing a motion to quash an attachment in the State court, without leave of the Federal court, did not affect the prior juris- diction of the Circuit Court of the United States. Memphis Saw Bank v. Houchens. C. C. A., 115 Fed. 96, 112. A receiver is bound by an ad- mission in the litigation made in good faith by the corporation be- fore his appointment. Perry v. § 311] LITIGATION BY RECEIVERS. 007 off not authorized bv law. 11 He mav be allowed to discontinue without costs an action honestly but erroneously begun by him. 12 The court will not direct its receiver to dismiss an eject- ment suit brought by him, except on clear proof that it is impossible for him to succeed. 13 The rights of a receiver are in general no greater than those of the person whose estate he holds. 14 Thus, a receiver of an insolvent corporation appointed in a creditor's suit cannot "enforce a collateral obligation given to a creditor or to a body of creditors by a third person for the payment of the debts of the insolvent," 15 for example a statu- tory liability of stockholders and creditors. 16 He may sue to collect an unpaid stock subscription, 17 and to set aside a fraudu- lent transaction, by which stock was cancelled in return for the delivery to the stockholder of the property. 18 "It is the settled doctrine that the receiver of an insolvent corporation represents not only the corporation but also creditors and stock- holders, and that in his character as trustee for the latter, he may disaffirm and maintain an action as receiver to set asi73; Trcadwell v. Monvll. 1905, per Lacombe. J. Roger Foster Chan. X. Y.. Aug. 1829 cited in for receivers cited Foster v. Towns- Hoffman's Ch, IV I. 156. See'West- liend, 68 N. Y. 203, 208; Ch. Ill, 1;lke v - Marrin, 176 Fed. 74J. s. c. § 10; Daniell's Ch. Pr., First Am. *■ Y - L - - 1 " *■* 7 " 1!,,,,: Mr "~ ed 1209, 1270; Lord Pelham v. s ' ' ' 43 White v. Ewing, 159 1. S. 36, Duchess of New Castle. 3 Swanst. . 4D L. ed. 6S ; Pope v. Louisville, A. 290, n.; Bird v. Littlehales, 3 A & ( , ,, ( . () m v g 5n 4;{ Swanst. 300, n.; Dixon v. Smith. 1 L e(} sl4 . supr(K §§ 5. 51. Swanst. 457; Anon., 6 Yes. 287; 44 Frees v. John Shields Const. Angel v. Smith. !) Yes. 336; Brooks Co., 145 Fed. 1020. v. Greathed, 1 J. & W. 1 7 S -. Ham- 45 Bailsman v. Dixon, 173 U. S. lvn v. Lee, cited in Seton on De- 113, 43 L. ed. 633. 1003 RECEIVERS. [§ 311 which sustains a claim antagonistic to the rights of both parties to the suit, or antagonistic to the rights of either party; sub- ject to the limitation that he may not question any order or decree which distributes burdens, or apportions rights, or dis- tributes the estate in his hands between the parties, or any clause in the order or decree appointing him, or any order or decree resting in discretion. 46 Permission to appeal at the expense of the estate may be refused to a receiver, when the highest creditor is interested against such an appeal, 47 and where the question involved is doubtful, the court may refuse such permission, unless creditors give security for the expenses of the appeal, 48 and may even require security for the costs of the respondent. 49 He may appeal from an order or decree which affects his personal rights, such as an order which dis- allows his fees or commissions ; but it seems that he cannot appeal from an order which rests in the discretion of the court ; for example, an order which discharges or removes him, or directs him in the administration of the estate, as, for example, to issue receiver's certificates or to make improve- ments. 50 "His right to appeal from an allowance or claim against the estate does not necessarily fail when his receiver- ship is terminated, to the extent of surrendering the property in the possession of the receiver." 51 Upon an appeal in a suit brought by him, in the absence of any Federal question, the jurisdiction is considered as dependent upon the difference of citizenship in the suit in which he was appointed ; and the judgment or decree of the Circuit Court of Appeals is final. 52 46Bosworth v. St. Louis T. R. Ass'n, 174 U. S. 182, 186, 187, 43 L. ed. 941, 942, 943. 47 Cook v. Anderson Food Co. (N. J. Chi), 55 Atl. 1042. 48 Gay v. Hudson River El. Pow- er Co., 184 Fed. 631. 49 Ibid. 50 Bosworth v. St. Louis T. R. Ass'n, 174 U. S. 182, 189, 43 L. ed. 941, 944. An order directing the re- ceiver of a railroad to construct and maintain gates and other safe- guards at the crossing of another road, in accordance with a con- tract made between two railroad companies, with covenants running with the land, is not a decree for specific performance, but merely an interlocutory order affecting the ad- ministration of the estate from which he cannot appeal. Hunt v. 111. Cent. Co.. C. C. A., 96 Fed. 644. But see Felton v. Ackerman, 61 Fed. 225. 51 Bosworth v. St. Louis T. R. Ass'n, 174 C. S. 182. 189, 43 L. ed. 941. 944. 52 Pope v. Louisville, N. A. & C. § 312] DUTIES OF RKCKIVKIJS. 1003 A receiver is presumed to represent all parties to tie suit, and he cannot object because other par-ties have no notice of an application duly served on him ; 53 although, of course, the court may listen to a suggestion of that nature by him. \<> action by the directors or stockholders of a corporation after the appointment of a receiver can release a claim which it owns, 54 or bind it by a contract. 55 § 312. Duties of receivers. A receiver holds the prop- erty of which he is given the cave in trust for all persons inter- ested therein, whether parties to the suit or not. 1 provided that they do not claim it by a title paramount to his own. 2 His duties, therefore, are substantially those of a trustee, although his powers are usually more limited; and the decisions concern- ing the duties and liabilities of trustees, executors, adminis- trators, and assignees in bankruptcy and insolvency are often of service in determining those of a receiver. 3 A receiver's first duty after his appointment is to take possession of the property entrusted him by the order, using all the powers therein given him. 4 If any of it is under lease he should notify the tenants of his appointment and demand that they attorn to him. 5 Ordinarily as soon as he has obtained posses- sion of all the estate that consists of personal property he should make an inventory thereof; 6 he should investigate all Ry. Co., 173 U. S. 573, 43 L. ed. 814. 53 McLeod v. Now Albany. C. C. A., GO Fed. 378. As to the right of a creditor to enforce a cause of ac- tion owned by a receiver, see in- fra, § 313. 54 Stewart v. Laberee, 0. C. A., 185 Fed. 471. 55 Barker v. Southern Bldg. & Loan Ass'n.. 181 Fed. 030. § 312. 1 Davis v. Cray, 10 Wall. 203, 217, 218, 21 L. ed. 447, 452; Central T. Co. v. Wabash. St. L. & P. Ry. Co.. 23 Fed. 868; Hamilton v. David C. Beggs Co.. 171 Fed. 157. 2 Davis v. Duke of Marlborough, 2 Swanst. 108, 118, 137, 138; Georgia v. Atlantic & G. R. Co.. 3 Woods, 434. 3 See, for example. Com. v. Franklin Ins. Co., 115 Mass. 2.78; People v. National T. Co., 82 X. Y. 2S3. 4 Darnell's Ch. Pr. (2d Am. ed.) 1987. 5 Daniell's Ch. Pr. (2d Am. ed.) 1987. 6 Lewin on Trusts (0th ed.. Lon- don. 1875), 1S4; England v. Downs. Beav. 209. Cf. Williamson v. Wilson. 1 Bland ( Md. i . 41S. 430. But see Guaranty Tr. Co. v. .Met. St. Ry. Co.. L68 Fed. 937. afi'd. C. ('. A.. 177 Fed. 925, quoted infra, § 394. 1004 RECEIVERS. [§ 312 pledges and mortgages of any part of the assets 7 and cause ) the property in his hands to he insured against fire. 8 All moneys that he receives he should either pay into court or deposit in a hank to the credit of himself as receiver, in a separ- ate account from that for his private deposits. 9 In remitting money from one place to another, he may do so by using the ordinary means, provided that he uses due care. 10 He will be personally liable for all loss to the estate caused by his making any other disposition of the funds collected by him. 11 It is ad- visable for a receiver to take a receipt for all sums of money exceeding twenty dollars paid out by him. By so doing, and by using such receipts as vouchers, he will have less difficulty in passing his accounts. 12 A receiver should so keep the estate in his hands that it can easily be traced, delivered up, or ac- counted for. 13 When he is carrying on a mercantile business, he must keep cost sheets, in order that whether he is making a profit or loss may readily be ascertained. 14 He should, at least as often as once a year, account and pay into court all the money which he has received, together with the profits thereof, less all necessary or authorized expenditures, and such compensation as the court allows him. 15 If he receives a con- siderable sum of money during the interval between the regular times for his accounting, it seems that he should apply to the court for directions concerning its investment ; 16 and in general. 7 Wise v. Williams, 102 Fed. ]61. 8 Thompson v. Phoenix Ins. Co., 136 V. S. 287, 203, 34 L. ed. 408, 41], per Mr. Justice Harlan. 9 Salway v. Salway, 4 Russ. 00; s. c, 2 R. & M. 215; Wren v. Kir- ton, 11 Ves. 377; Hinckley v. Rail- road Co., 100 U. S. 153, 157, 23 Li ed. 591, 593. For a case where a receiver was held responsible for money lost by the failure of a bank, see Fikener v. Bott, (Ky.) 47 S. W. 251. lOKniorht v. Lord Plimouth, 3 Atk. 480; s. c, 1 Dickens, 120. 11 Salway v. Salway. 4 Russ, 60; s. c. 2 R. & M. 215; Rowfh v. Frw- ell, 3 Ves. 565. 12 Remsen v. Remsen, 2 J. Ch. (X. Y.) 495, 501. 13 Williamson v. Wilson, 1 Bland (Md.)i, 418; Hinckley v. Railroad Co., 100 U. S. 153, 157, 25 L. ed. 591, 593; Atty. Gen. v. North Am. L. I. Co., 89 N. Y. 94. 107. 108. 1* Gutterson & Gould v. Lebanon Iron & Steel Co., 151 Fed. 72. iSDaniell's Ch. Pr. (2d Am. ed.) 1992: Shaw v. Rhodes, 2 Russ. 539. See § 319. 16 Shaw v. Rhodes, 2 Russ. 539; Hicks v. Hicks, 3 Atk. 274; Earl of Lonsdale v. Church, 3 Brown Ch. C. 41. 312] DUTIES OF RECEIVERS. 1005 he should apply for instructions whenever any unexpected event occurs of which advantage may he taken for the benefit of the state, or which necessitates active measures to preserve the state from loss. 17 He should pay no creditor of the estate without authority from the court; and even an ex parte order authorizing such payment will be no protection to him when granted upon the inaccurate representation that there were sufficient funds to make the payments without detriment to the business. 18 He cannot act inequitably, even for the benefit of the estate; 19 and if money is paid him, which in equity be- longs to another, he can be compelled to pay the same to its rightful proprietor. 20 Any protit which he may make from the estate belongs to the finally successful party, or to him to whom the surplus, after the payment of prior demands, is finally directed to be paid. 21 If he uses the property over which he has been appointed in his private business, he must pay the estate for its use; 22 and the same may be charged to be subject to a constructive trust after its transfer by him to one who is not a hona fide purchaser. 23 It is his duty to exhibit, to claim- ants against the fund, all entries in the books of the corporation. which relate to their respective claims. 24 A stockholder who, in good faith, asks for an examination of the books, in order to enable him to determine whether a proposed plan of re- organization is desirable, should be accorded such inspection under proper regulations as to time and circumstance, so as not to interfere either with the transaction of the receiver's duties or with the inspection of other stockholders. 25 "In every 17 Shaw v. Rhodes. 2 Riis* 539; Hicks v. Hicks, 3 Atk. 274; Earl •ci Lonsdale v. Church, 3 Bro\ui Cli. <\ 41. iSGibbs v. David, L. R. 20 Eq. 373. »Skud v. Tillinghast, C. C. A., 195 Eed. 1. 20 Whelan v. Enterprise Transp. ■Co., 175 Fed. 212. 21 But see Whitesides v. Lefferty, 3 Humph. (Tenn.) 3 50. 22 Battaile v. Fisher, 36 Miss. 321. When, bv the use of the as- sets, he elects himself president of another corporation, he must ac- count to the beneficiaries of his trust for all profits that he receives therefrom. Strang v. Edson, C. C. A., 19,8 Fed. 813. 23 Aminon-Stivers Min. Co. v. Great Northern Mining & Devel- opment Co.. 119 Fed. 377. 24 Bowker v. Haight & Freese Go., 140 Fed. 796. 26 Chable v. Nicaragua C. C. Co., 59 Fed. 840. 1006 KECEIVERS. [§ 312 case of doubt, it is well for a receiver to refrain from action until he may obtain the instruction of the court, whose officer he is." 26 It is not the duty of a receiver to take part in, or to promote any plan of reorganization. 27 "If rival and dis- cordant interests between the parties interested in the property produce conflicting plans, upon which they cannot agree, it is the receiver's duty to stand absolutely neutral between all. giving to no one any preference or advantage over the other, and according equal facilities to every stockholder, whether he holds a single share or 10,000." 28 It is usually considered improper for a receiver to retain as his counsel one who has previously acted in the suit for one of the parties. 29 But it is proper for a receiver appointed in a suit brought by a creditor for the satisfaction of his own debt alone, to retain the attorney of the complainant. 30 A receiver of a railroad is a common carrier. 81 He is guilty of impropriety, for which he may be removed, when he discriminates between different persons who use the railway ; 32 and he may be obliged to repay such sums of money as he has exacted from shippers of freight by un- lawful discriminations against them. 33 A receiver cannot re- sign without the permission of the court which appointed him. 34 "Whenever in any case pending in any court of the United States, there shall be a receiver or manager in possession of any 26 ibid. 27 [bid. 28 ibid. 29 Ryckman v. Parkins, 5 Paige (X. Y.), 543; Blair v. St. Louis, H. & K. R. Co.. 20 Fed. 348. In one ease the court refused to al- low the receiver to retain a rel- ative who had previously prac- ticed elsewhere, and had come in- to the Circuit apparently for the purpose of acting as counsel for the receiver. Blair v. St. Louis, N. & K. R. Co., 20 Fed. 348. 30Shainwald v. Lewis. 8 Fed. 878. See Davis v. Chattanooga U. Ry. Co.. 05 Fed. 395. 31 Beers v. Wabash, St. L. & P. Ry. Co., 34 Fed. 244. 32 Haiidy v. Cleveland & M. R- Co.. 31 Fed. 089. See Missouri Pac. Ry. Co. v. Texas & P. Ry. Co., 30 Fed. 2; Cutting v. Florida Ry. & Nav. Co., 43 Fed. 747. It has been said that a contract between a re- ceiver of a railroad company and' a shipper for the payment of a re- bate upon an intrastate shipment, is not illegal. Bibber-White Co. v. White River Val. El. R. Co., 175 Fed. 470. 33 Cutting v. Florida Ry. & Nav. Co.. 43 Fed. 747. 34Daniell's Ch. Pr. (2d Am. ed.) 2002. See In re Matter of Jones,. 4 Sandf. Ch. (X. Y.) 615. § 313] LIABILITY OF RECEIVERS. 1007 property, such receiver or manager shall manage anil operate such property according to the requirements of the valid laws of the State in which such property shall be situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof. Any receiver or manager who shall wilfully violate the provisions of this section shall be fined not more than three thousand dollars or imprisoned qo1 more than one year." 35 § 313. Liability of a receiver. The liability of a receiver is in many but not all respects analogous to those of a trustee. He is liable to all persons interested in the estate in his hands for any damage resulting to them from any breach of duty by him, whether intentionally 1 or through negligence. 2 It has ben held that he is personally responsible for funds of the trust embezzled by his clerks. 3 He is, however, free from liability to the parties to the suit on account of any act performed in obedience to an order of the court within its jurisdiction, and not obtained by fraud, until the same has been vacated upon appeal or otherwise. 4 A receiver's liability to strangers is much more limited than that of a trustee. 5 He is not liable personally upon a covenant entered into in his official capacity with the sanction of the court. 6 35Jud. Code. § 65, 36 Stat. 1087, re-enacting in substance 25 St. at L., § 2, p. 436; 24 St. at L., § 2, p. 554. But see Royal Tr. Co. v. Washburn B. & I. R. Ry. Co., 113 Fed. 531. It has been held that a receiver is subject to the Act of March 4, 1907 (34 St. at L. 1416, c. 2030. Comp. St. Supp. 1911, p. 1321), forbidding a common car- rier to permit employees of a cer- tain class to remain on duty for more than sixteen consecutive hours; but that he is ordinarily not personally liable for the fine im- posed for its violation (I'. S. v. Ramsey, C. C. A., 197 Fed. 144); and that after the appointment of a receiver of an insolvent corpora- tion, the company is not liable to the Corporation Income Tax. Penn- \1 though it may be that in sylvania Steel Co. v. N. Y. City Ry. Co., C. C. A., 198 Fed. 774. As to the liability of receivers under Fed- eral statutes, see Erb v. Morasch, 177 U. S. 584, 44 L. ed. 897; U. S. v. DeCoursey, 82 Fed. 302. §313. 1 Knight v. Lord Plim- outli. 3 Atk. 4S0. 481; Kaiser v. Kellar, 21 Iowa. 95, 97; Koontz v. Northern Bank. 16 Wall. 196. 202. 203, 21 L. ed. 465, 468; infra, § 321. 2Skerrett's Minors, 2 Hog. 192. Infra, § 321. 3 Gunii v. Ewan. 93 Fed. 80. 4 llolcombe v. Johnson, 27 Minn. 353. 5 See Taylor v. Davis. 110 U. S. 330. 335. 28 L. ed. 163, 165. 6 Livingston v. Pettigrew, 7 Lans. (N. Y.) 405; Newman v. Daven- port, 9 Baxt. (Tenn.) 538; Taylor 1008 RECEIVERS. [§ 313 the courts of Massachusetts he is personally responsible for rent when he retains possession of a leasehold, 7 in the Federal courts he is not liable in such a case, and the court may au- thorize him to abandon a leasehold after experience has shown that it is unprofitable to the estate, and then he incurs no per- sonal liability, and the estate is responsible only for the use of the property during the time that he has remained in posses- sion, 8 according to its rental value. 9 The payment under orders, of the court of the rent fixed by the lease, is not an assumption thereof. 10 lie has a reasonable time within which to elect v. Davis, 110 U. S. 330, 335, 28 L. ed. 163, 165; Central Tr. Co. v. Wabash, St. L. & P. Ry. Co., 34 Fed. 259. 7 Com. v. Franklin Ins. Co., 115 Mass. 278; People v. National Tr. Co., 82 N. Y. 283. Cf. People v. Univ. L. Ins. Co., 30 Hun (37 N. Y. S. C. R.), 142; Wells v. Hig- gins, 132 N. Y. 459. But see Stokes v. Hoffman House, 1(57 N. Y. 554, 53 L.R.A. 870; s. c, 46 N. Y. App. D. 120. 8 St. Joseph & St. L. R. Co. v. Humphreys, 145 U. S. 105, 36 L. ed. 640; Ames v. Union Pac. Ry. Co., 60 Fed. 966; U. S. Tr. Co. v. Wabash W. Ry. Co., 150 U. S. 287, 37 L. ed. 1085; Seney v. Wabash W. Ry. Co., 150 U. S. 310, 37 L. ed. 1092; Quincy, M. & P. Ry. Co. v. Humphreys, 145 U. S. 82. 36 L. ed. 632; Kneeland v. Am. L. & Tr. Co., 136 U. S. 89, 34 L. ed. 379; Pennsylvania Steel Co. v. N. Y. City RyT Co., 165 Fed. 459; s. c, 175 Fed. 812; s. c. 176 Fed. 471; s. c, 190 Fed. 609, 615; s. c, 192 Fed. 135; Coy v. Title Guarantee & Tr. Co.. 198 Fed. 275. Cf. 3 Co- lumbia Law Rev. 53. For cases where it was held that the court had adopted and assumed the lease, see Central R. & R. Co. of Ga. v. Farmers' L. & Tr. Co., 79 Fed. 158; Mercantile Tr. Co. v. Atlantic & P. R. Co., C. C. A., 88 Fed. 140: s. c, as U. S. Tr. Co. v. M. Tr. Co., C. C. A.. 80 Fed. 18; Central T. Co. v. Continental Tr. Co.. C. C. A., 86 Fed. 517; U. S. Tr. Co. v. Mercan- tile Tr. Co., 88 Fed. 140. Dayton Hydraulic Co. v. Felsentliall, C. C. A., 116 Fed. 961. The question whether the court should adopt the lease was said to be administrative rather than judicial in its nature, and not to be reviewed by an ap- pellate tribunal, unless there was a manifest abuse of discretion. Mer- cantile Tr. Co. v. Farmers' L. & Tr. Co., C. C. A., 81 Fed. 254. Certio- rari denied, 168 U. S. 710, 42 L. ed. 1213. 9 Pennsylvania Steel Co. v. N. Y. City Ry..Co., 190 Fed. 609. 615; Re Adams Cloak, Suit & Fur House, 199 Fed. 337. In Pennsylvania Steel Co. v. X. Y. City Ry. Co., 175 Fed. 812, the receivers, while in possession, were directed to pay the rent, although the same was con- sidered to be exorbitant. See High on Receivers, (4th ed.) §§ 273, 394a. In re Grignard Lithographic Co.. 155 Fed. 699. holding that the landlord could not recover for pow- er which was not used by the trus- tee in bankruptcy. 10 Pennsylvania Steel Co. v. N. 313] LIABILITY OF RECEIVERS. 1009 whether to keep the lease as an asset of the estate. 11 Where a receiver retained possession, without giving security, after an order of the court which appointed him directed that he either surrender the property or give security for the rent ; it was held that he was personally liable. 12 It has been held that the re- ceiver cannot be dispossessed for nonpayment of rent by a peti- tion in the suit of his appointment, 13 but only by an independent action of ejectment 14 unless a State statute authorizing sum- mary proceedings in landlord and tenant cases exists and is followed. 15 The same principles apply to a lease of personal property such as railroad cars; 16 and it seems to building con- tracts 17 and other executory contracts the performance of which is incomplete when the receiver is appointed. 18 Receivers of a street railroad system may be authorized, after notice to the public, to discontinue the exchange of transfers, although t In- corporation had contracted to make them. 19 A receiver is not personally liable for a loss resulting from his conduct of the business, when he was not guilty of negligence or misconduct and acted under the direction of the court without objection Y. City Ry. Co., 176 Fed. 471; s. c, 175 Fed. 812: s. c, 192 Fed. 135. where a temporary agreement as to the rent was made with the lessor. 11 Walton v. Staflord, 14 App. D. (X. Y.) 310. Ten (Pennsylvania Steel Co. v. N. Y. City Ry. Co., 190 Fed. 609, 015) and nine (St. Joseph and St. Louis R. R. Co. v. Hum- phreys, 145 C. S. 105. 36 L. ed. 640) month's have been held to be not unreasonable periods of time. It was said that it was not unreason- able to preserve the integrity of the system until its sale, by continuance in possession of the leased property. Pennsylvania Steel Co. v. X. Y. City Ry. Co., 1.76 Fed. 471. See au- thorities cited in note 8. supra. 12 Brooklyn Improvement Co. v. Lewis. 136 App. Div. (X. Y. ) 8(11. 13 Johnson v. Lehigh Valley Trac- tion Co., 130 Fed. 932. 14 Ibid. Fed. Prac. Vol. I.— 64. 15 See Prince v. Schlesinger X. Y. S. (Trial term, Nov. 28, 1905.) 16 Sunflower Oil Co. v. Wilson, 142 U. S. 313, 35 L. ed. 1025. Cf. Piatt v. Phila. & R. R. Co., C. C. A., 84 Fed. 535; Thomas v. Western Car Co.. 149 U. S. 95. 37 L. ed. 663: Farmers' L. & Tr. Co. v. Chicago, etc., Ry. Co., 42 Fed. 6: Easton v. Houston & T. C. Ry. Co., 38 Fed. 784. 17 Commonwealth Roofing Co. v. Xortli Am; Tr. Co.. C. C. A.. 135 Fed. 9S4. 18 See Manhattan Tr. Co. v. Sioux City & X. R. Co.. 81 Fed. 50: Cen- tral Tr. Co. v. Fast Tenn. Land Co., 79 Fed. 19: Missouri & K. Eriterur- b'ari Ry. Co. v. Edson, C. C. A.. 198 \u-d. 819. 19 Re Dry Dock R. R., 165 Fed 487. 1010 RECEIVERS. [§ 313 by the parties in interest. 20 A receiver is personally liable to strangers for trespass, 21 fraud, 22 or other wilful act, although performed under color of his office. So, if by mistake, though honestly, he takes possession of the property of another, he is per- sonally liable. 23 The fact that he does so under authority of an order of the court will not justify him as against a person who was not a party to the suit or proceeding in which the order was granted. 24 In all of such cases it seems that he can, inde- pendently of the statute, be sued without leave of the court which appointed him. 25 A person who, without having been lawfully appointed, assumes to act as a receiver, has all the lia- bilities of one duly appointed. 26 A receiver, even when acting as a common carrier, is not liable personally for injuries caused by the negligence of his employees, when he exercised reasonable care in their selection. 27 The only remedy of the person thus aggrieved is by an action against the receiver in his official capacity, seeking satisfaction out of the estate. 28 When, before a suit is brought against him, the receiver has been discharged and the estate sold, or returned to its owner, it has been held that he has ordinarily no remedy in a Federal court except against the employee, unless one has been preserved for him by 20 Pusey & Jones v. Pennsylvania Paper Mills, 173 Fed. 629. 21 In re Young, 7 Fed. 855; Olney v. Tanner, 10 Fed. 101; Barton v. Barbour, 104 U. S. 126, 134, 26 L. ed. 672, 676. For a case where a receiver was held not liable for malicious prosecution, see YVidmey- •er v. Felton. 95 Fed. 926. 22 Bank of Montreal v. Thayer, 7 Fed. 622. 23 Barton v. Barbour, 104 U. S. 126. 134, 26 L. ed. 672, 676; Curran v. Craig, 22 Fed. 101. 24 Curran v. Craig, 22 Fed. 101. 25 Barton v. Barbour, 104 U. S. 126. 134. 26 L. ed. 672. 676. In re Young, 7 Fed. 855; Bank of Mon- treal v. Thayer. 7 Fed. 622; Curran v. Craig, 22 Fed. 101. But see As- ton v. Heron, 2 Myl. & K. 390; Chalie v. Pickering, 1 Keen, 749. 26 Wood v. \Tood, 4 Russ. 558. 27 Kennedy v. I. C. & L. R. Co., 3 Fed. 97; Union Tr. Co. v. Chi- cago & L. H. Ry. Co., 7 Fed. 513, 516; Davis v. Duncan, 19 Fed. 477; Farmers' L. & Tr. Co. v. Central R. R. of Iowa, 2 McCrary, 181; s. c, 7 Fed. 537 ; Thompson v. No. Pac. Ry. Co., 93 Fed. 384, 389; Hanlon v. Smith, 175 Fed. 192. See, how- ever. Kain v. Smith, 80 N. Y. 458. 28 Kennedy v. 1. C. & L. R. Co., 3 Fed. 97; Farmers' L. & Tr. Co. v. Central R. R. of Iowa, 2 Mc- Crary, 181 ; s. p., 7 Fed. 537; Union Tr. Co. v. U. & L. H. Ry. Co., 7 Fed. 513, 510; Gray v. Grand Trunk W. Ry. Co.. C. C. A., 150 Fed. 736. § 314] SUITS A«AIXST RECEIVERS. 101 1 the court. 29 For the owner of the property is noi liable for fcb« negligence of the receiver's employees.*" For this reason it is customary to insert in the order for the sale in bulk oi prop- erty in the possession of a receiver thai the purchaser shall take it subject to all claims for injuries caused while it was managed by the receiver. 31 Such a provision, although noi men- tioned in the order for the sale, may be inserted as a condition in the order confirming the sale, and the purchaser, after tak- ing possession under the latter order, is estopped from disputing the validity of the condition. 32 Claims of this nature are usual- ly enforced in the suit in which the receiver was appointed. The discharge of a receiver until revoked relieves him from all liabilitv to those who had an opportunity to he heard upon the 34 motion for his discharge § 314. Suits against receivers. By the former practice, following the old chancery rule, a receiver could not be sued without the permission of the court that appointed him. 1 An act of Congress has changed the practice as follows: "Every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or trans- 29 Davis v. Duncan, 19 Fed. 477; White v. Keokuk & D. M. Ry. Co., 52 Iowa. 97. See § 394, infra. But see Gray v. Grand Trunk Ry. Co., C. C. A., 156 Fed. 730. For cases where a State court gave a remedy, see Texas & Pac. Ry. Co. v. John- son. 1.11 U. S. 8], 38 L. ed. 81; Texas Pac. Ry. Co. v. Griffin, 70 Tex. 441; Fordyce v. Wittc's (Tex- as), 20 S. W. 2GG; Baer v. AlcCul- lougli, 170 X. Y. 97. 30 Davis v. Duncan, 19 Fed. 477. 31 Fanners - L. & Tr. Co. v. Cen- tral 1!. It. Co. of Iowa, 2 McCrary, 181; s. c. 7 Fed. 537; S. c, subse- quently considered in 17 Fed. 75S. 32 Farmers' L. & Tr. Co. v. Cen- tral R. R. of Iowa. 17 Fed. 758; infra, § 394. 33 [bid. 34 Lehman v. MeQuown, 31 Fed. 138: Davis v. Duncan, 19 Fed A77 Infra, § 324. § 314. l Barton v. Barbour. 104 U. S. 126, 26 L. ed. 672; Central Tr. Co. of New York v. Wheeling & L. E. R. Co., 1S9 Fed. 82. A judgment against a receiver in an action which could not properly be instituted without permission. is not void because no such permission was obtained. Ridge v. Manker. C. C. A., 13-2 Fed. 599. Such an order is revocable and may be conditional. Central Tr. Co. v. Wabash. St. I, & F. Ry. Co., 26 Fed. 74; Buckhan- non St N. R. Co. v. Davis. C. C. A.. 135 Fed. 707. "The !ea\e to bring suit in any form reserves the right to the receiver to set up any defense he may have, which can be done by plea, answer, or demurrer." Davis v. Duncan, 19 Fed'. 177. 4S3. s ( . ( . ;ilsn .Ionian v. Wells. 3 Wood-. 527. The court might direct that service of process be made upon the resi- 1012 RECEIVERS. [§ 314 act ion of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be sub- ject to the general equity jurisdiction of the court in which such receiver or manager was appointed, so far as the same shall be necessary to the ends of justice/' 2 This dispossesses receivers appointed by a Federal court of any right which they might otherwise have to remove suits brought against them from the State to the Federal courts, where no difference of citizen- ship exists and no Federal question is involved. 3 It has been held that this statute makes the judgment in the State court in such an action conclusive as to the right of the plaintiff therein to re- cover damages, and as to the amount of the recovery ; 4 that the receiver has the right to appeal from the judgment of the State court, and that the Federal court should not, as a condi- tion of such appeal, oblige him to execute a supersedeas bond; 5 but that judgment in such a suit cannot be enforced by exeeu- dent agent of a non-resident receiv- er. Central Tr. Co. v. St. Louis. A. & T. Ry. Co., 40 Fed. 426. As to the service of process in the ab- sence of an order upon the subject, see Baltimore & 0. R. Co. v. Free- man, C. C. A., 112 Fed. 237. For a case where the order of the State court granting leave to sue a re- ceiver appointed by it, was held not to authorize a suit in a Federal court, see Harper v. Printing-Tel. - News Co., 12S Fed. 07!). Of. Wat- son v. Jones. 13 Wall. 679, 20 L. ed. 600; supra, §§ 52, 94. Other- wise when it grants leave to sue him "in any court of competent jurisdiction." James Freeman Brown Co. v. Harris, 139 Fed. 105. 2 Jud. Code, § 66, re-enacting 25 St. at L., p. 436; 24 St. at L., p. 554. See Croy v. Marshall, 21 Ohio W. L. B. 489; Atkin v. Wa- bash Ry. Co., 41 Fed. 193. 1!>4: Colonial Trust Co., et al. v. Pacific Packing & Navigation Co.. 142 Fed. 298; Nashville Rv. & Light Co. v. Bunn, C. C. A., 168 Fed. 862. This applies to receivers in bankruptcy. Re Gutinan, 114 Fed. 1009; Re Ran- ter & Cohen. 121 Fed. 984. 3 Gableman v. Peoria. D. & E. Ry. Co., 179 U. S. 335, 45 L. ed. 220. See supra. §§ 5, 37, 51. 4 Dillingham v. Hawk. C. C. A., 23 L.R.A. 517. 60 Fed. 494; St. Louis S. W. Ry. Co. v. Holbrook. C. C. A., 73 Fed. 112; Bound v. South Carolina Ry. Co., 174 Fed. 729; Meyer Rubber Co. v. George- town & W. R. Co., 174 Fed. 731; Willcox v. Jones, C. C. A.. 177 Fed. 870, holding that the judgment bears interest in accordance with the State statute; Manhattan Tr. Co. v. Chicago EL Traction Co., 188 Fed. 1006. ( 'antra. Guaranty Tr. Co. v. Chicago Union Traction Co., 175 Fed. 284. But see Mo. Pac. Ry. Co. v. Texas Pac. Ry. Co., 41 Fed. 311, 314. 5 Central Tr. Co. v. St. Louis, A. & T. Ry. Co., 41 Fed. 551, 555, 556. § 314] scrrs i-oAIHST eeceivebs. 1013 tion against the property. 6 that the time and manner of pay- ment mnst be determined by th, at that- appointed the re- XV' that the statute does not authorise the interference by 2 State court with property in the posset ot the receiver b an etln of unlawful detainer,' , suit to recover title or by an acu „„,,,uiiment " or condemnation possession to property, or garnishment, Keos . ins » nroceedings, 12 or proceedings to condemn a grade cross.n Therefusal of the receiver to agree' with the petit, r upon the StaTd manner of crossing ,1,,. not *— J^I transaction" by him within the meaning ot the statute. 6 Ibid. Dillingham v. Hawk. C. C. \ 23 L.R.A. 517, 60 Fed. 494; St. Louis S. W. Ry. Co. v. Holbrook, C C \, 75 Fed. 112; Mo. Pac. R. Co. v. Texas Pac. R. Co., 41 Fed. 311; Gableman v. Peoria, D. & E. By. Co., 179 U. S. 335, 339, 45 L. ed. 220, 222. 7 Ibid. Mever Rubber Co. v. Georgetown & W. R. Co., 174 Fed. 731. 8 Comer v. Felton, C. C. A., 61 Fed 731; Stateler v. Cal. Nat. Bank, 77 Fed. 43; J. I. C. Plow Works v. Finks, C. C. A., 81 Fed. 524, 529. For a remarkable exer- tion of Federal power, see Louis- ville Tr. Co. v. Cincinnati 1. P Ry- Co., 78 Fed. 307. 9 Comer v. Felton, C. C. A., 61 Fed. 731. 10 J. I. C. Plow Works v. Finks, 81 Fed. 529; Love v. Louisville & E. R. Co., 178 Fed. 507. So held of a suit to foreclose a lien when the receiver was a defendant. Am. L. & Tr. Co. v. Central Vt. R. Co., 84 Fed. 917. Of. Gtarid Trunk Ry. Co. v. C. Vt. R. Co., 88 Fed. 622. So a Federal court refused to enter- tain a suit to foreclose a lien, Am. L. & Tr. Co. v. Central Vt. R- Co., 84 Fed. 917; or ejectment. Waters v . Shinn, 178 Fed. 3'45; or to set aside a fraudulent conveyance of property in the hands of a State receiver Werner v. Murphy, 60 Fed. 769. Cf. supra, §§ 52, 55. For a case where the Federal court ap- pointed a trustee to protect the rights of lienors, see Risk v. Kan- sas Tr. Co., 58 Fed. 45. The same rule applies to trustees and receiv- ers in Bankruptcy. Re Russell & Birkett, C. C. A., 101 Fed. 248. They may, however, be sued in trover without leave of the court of bankruptcy. Re Kanter v. Co- hen, C. C. A., 121 Fed. 984; Re Spitzer. C. C. A., 130 Fed. 879. U Central Tr. Co. v. Fast Tenn. V. & G. Ry- Co.. 59 Fed. 523; Cen- tral Tr. Co. of New York v. Wheel- ing & L. E. R. Co., 189 Fed. 82. For the practice by the receiver in such a case, see In re Barnard, 61 Fed. 531. For the remedy by a State receiver when property is at- tached by a United States marshal, see Remington P. Co. v. Louisiana P. & Pub. Co., 56 Fed. 287. 12 Hayes v. Columbus, 1- & - M - Ry. Co., 67 Fed. 630. 13 Coster v. Parkersburg B. B Co., 131 Fed. 115; Buckhannon & N. R. Co. v. Davis, C. C. A., 135 Fed. 707. 14 Buckhannon & N. R. Co. v. Davis, C. C. A., 135 Fed. 707 1014 RECEIVERS. [§ 314 law does not authorize a mandamus against a receiver. 15 The proper remedy in all such eases is usually a petition of interven- tion pro interesse suo. 1G It has been held that the statute does not prevent an injunction against the interference by the cred- itors with the assets in the hands of a receiver of a national bank ; 1T nor authorize a stockholder of a corporation to enforce a corporate cause of action by a suit against a debtor to the corporation, when the receiver refuses to sue, 18 — in the latter case, the proper remedy is an application to the court to direct the receivers to sue ; 19 — nor authorize the joinder of the re- ceiver in his official capacaity in an action against different companies for making in concert with him discriminating rates ; 20 and that upon his accounting the receiver can set off against a claim upon the fund debts owed by the claimant to his successor in interest. A petition to the Federal court for the payment of a claim should show that the receiver holds assets properly applicable thereto. 22 The holder of a common-law claim who intervenes in the Federal court in the first instance waives his right to a trial by jury; and if the court submits to a jury the issues that arise thereupon, the verdict is merely ad- visory. 23 It has been held that the statute applies to receivers appointed before its enactment ; 24 that it applies to suits against 15 Royal Tr. Co. v. Washburn B. & I. Ry. Co., 113 Fed. 531; infra, § 42S. 16 Winchester v. Davis Pyrites Co., C. C. A., 67 Fed. 45; Minot v. Mastin, C. C. A., 95 Fed. 734; Strain v. Palmer, C. C. A., 159 Fed. C24; supra, § 25S. "Stateler v. Cal. Nat. Bank, 77 Fed. 43. As to suits in a State court for an injunction against a Federal receiver, see Royal Tr. Co. v. Washburn B. & I. R. Co., C. C. A., 139 Fed. 8G5. 18 Swope v. Villard. 61 Fed. 417. Gf. Werner v. Murphy, 60 Fed. 769. 19 Land Title & Trust Co. v. As- phalt Co., 120 Fed. 996, 999. See Werner v. Murphy. 60 Fed. 769; Swope v. Villard, 61 Fed. 417. 20 Western X. Y. & P. R. Co. v. Penn Refining Co., C. C. A., 137 Fed. 343. 21 Central R. & B'g Co. v. Farm- er's L. & Tr. Co., 113 Fed. 405. 22 Empire Distilling Co. v. Me- Nulta, C. C. A., 77 Fed. 700. But see Veatch v. Am. L. & Tr. Co., C. C. A., 84 Fed. 274. For a case where the claimant did not lose any rights by delay till after a dividend had been paid, and the State rule requiring a surrender of collateral was not followed, see London & S. F. Ry. Co. v. Willamette S. M. L. & Md; S. Co., SO Fed. 226. 23Flippi u v. Kimball, C. C. A.. 87 Fed. 258. Gf. Atkin v. Wabash Ry. Co., 41 Fed. 193. 24 Texas & Pac. Ry. Co. v. Cox, 145 U. S. 593, 36 L. ed. 829. 314] SUITS AGAINST RECEIVERS. 10 1; a receiver for liabilities incurred by his predecessor m office; that is applies to receivers appointed by the courts of the Ter- ritories over the property of corporations created by acts of Congress; 26 that non-resident receivers may be served in the same manner as the corporations over which they were appoint- ed; 87 that a judgment in a suit thus prbsedtited can only be col- lected out of the property in the hands of the receiver in his official capacity ; 28 that it does not authorize suits against a re- ceiver upon claims against the corporation, over whose prop- erty he has been appointed; 29 that after the property has been sold, free -and clear from all incumbrances except certain claims, which the decree directs shall be presented within a limited time, and after such time has expired, a receiver cannot, with- out leave of the court that appointed him, be sued for acts com- mitted in his management of the property ; 30 but that a suit pending against a receiver at the time of his discharge may be prosecuted to final judgment where the property has been sold subject to claims against him; 31 and that an order of a Fed- eral court which discharged a railroad receiver, restored the property to the defendant company and required that all claims 25 McNulta v. Lochridge, 141 U. S. 327, 35 L. ed. 796; State v. Port Royal & A. Ry. Co., 84 Fed. 67. But see Jones v. Schlapbeck, 81 Fed. 274. 26 WheelCr v. Smith, 81 Fed. 319. 27 Eddy v. Lafayette, L63 U. S. 456, 464. 41 L. ed. 225. 228. It was held that process might be served upon any local agent of the re- ceivers. Re Seaboard Air Line Ry., 166 Fed. 376. 28 Farmers' L. & Tr. Co. v. Cen- tral R. Co. of Iowa, 2 McCrary, 181 ; s. c. 7 Fed. 537 ; Barton v. Barbour. 104 U. S. 126, 26 L. ed. 672; Mo. Pac. Ry. Co. v. Texas Pac. Ry. Co., 41 Fed. 310. Re Seaboard Air Line Ry.. 166 Fed. 376; Hanlon v. Smith, 175 Fed. 192. 29 Farmers' Loan & Trust Co. v. Chicago & X. P. R. Co.. 118 Fed. 204. 30 Farmers' Loan & Trust Co. v. Chicago & X. P. R. Co., 118 Fed. 204. 31Baer v. McCullough, 176 X. Y. 97, 103 Parker, C. J.: '-Clearly the statute indicates that it was a part of the Congressional scheme that the appointment of receivers of great corporations — in the case of railroads, covering hundreds and sometimes thousands of miles, with property extending through main different counties and States — should not operate to prevent par- ties having claims against such cor- porations, or against the receivers thereof, from proceeding in the courts of the neighborhood precisely as they could have done when the corporation was managing the prop- erty. And to save the citizen un- necessary expense, and the more eurely to protect him in his rights, 1016 RECEIVERS. [§ 314 against the receiver be presented by intervention to that court before a given date, did not prevent the subsequent recovery in a State court of a judgment against the company for damages on account of personal injuries caused by the negligent operation of the railroad by the employees of the receiver before his dis- charge. 32 A Court of the United States will rarely, if it provided, in effect, that the right to bring the action should not de- pend upon the will of the court ap- pointing the receivers, and so could be brought without the consent of such court. But while Congress in- tended to permit the establishment of claims against the fund in the hands of the receivers to take place through the ordinary local judicial machinery, it could not, of course, tolerate an attempt on the part of such courts to take possession of so much of the fund or property in the hands of the receivers as would be necessary to the satisfaction of the claims. Only one court could be permitted to operate the prop- erty, marshal the assets, decree a sale and provide for the distribu- tion of the assets among those en- titled thereto, and hence it was deemed necessary to establish the boundary line beyond which State courts could not go. Such a con- struction is in harmony with the decree made by the Federal court in tli is case. True, it provided for a method by which claims against the fund could be ascertained, but it did not provide that such method was exclusive, nor do we think it could have so provided in view of the language of the statute author- izing the commencement of suits without its consent, for if it could take to itself exclusive jurisdiction to establish claims against the fund by decree made at the close of the litigation, it could also do it at the outset of the litigation, and in such case the authority conferred by statute upon other courts to take jurisdiction of actions brought against the receivers would be with- out effect, and, of course, the stat- ute cannot thus be brushed aside. "The decree of the Federal court in this case was made on broader lines — lines more convenient for the litigant and in harmony with the statute. It assured the creditor that his claim, whether established or not at the time of the sale of the property, shall be paid, and it does not attempt to take from him the right, plainly given him by the statute, to select the court most convenient to him, and it reserved to the Federal court, in the interest of all the creditors, the right to proceed at the foot of the decree to make such further order as might be necessary to carve out of the property or take from the fund such sum as should be necessary to satisfy all claims established through the proper legal machinery provided either by the State or the Federal government in the event that the purchaser of the property, the Frie Railroad Company, should fail to pay such claims." 32 Texas & Pac. Ry. Co. v. John- son. ]51 U. S. 81- 38 L. ed. SI. Where the receivers remained in possession a few days after the de- livery of the deed to the purchaser, a cause of action for negligence then arising is a liability of the § 315] MAXXER OF APPLYIXG FOR RECEIVERSHIP. 101' ever, enjoin a proceeding in admiralty in a Federal District Court against property in the hands of one of its receivers. 33 It has been held that the statute does not apply to a receiver in bankruptcy who is not carrying on the business of the bank- rupt, except in so far as the cause of action arises out of his acts in the care and preservation of the property of the es- tate. 34 A receiver appointed under a creditor's bill is not a proper party to an ancillary foreclosure suit. 35 An independent suit to recover a simple contract debt incurred by him cannot be maintained in equity. 36 The creditor must sue at law or bring a petition of intervention in the original suit. 37 A suit begun before the appointment of a receiver may subsequently be prose- cuted to judgment, and the judgment so obtained establishes, as against the receiver, the rightful amount of the demand. 38 A party who, pending such a suit, files his claim against the re- ceiver in the suit in which the receiver was appointed, does not thereby make an election of remedies and lose his right to prose- cute the suit. 39 In such a case it was held that the claimant thereby lost his right to costs in the original action. 40 It has been held that leave from a State court need not be obtained be- fore suing a receiver appointed by it for the infringement of a patent. 41 It has been held that an action will not lie against a receiver for a personal injury sustained before his appoint- ment. 42 § 315. Manner of applying for the appointment of a receiver. It has been held that a court has no jurisdiction to appoint a receiver, unless a cause is pending; 1 and that, there- receivership enforceable under such a clause of the decree. Fidelity I., Tr. & S. D. Co. v. Norfolk & W. R. Co.. 88 Fed. 815. 33 Paxson v. Cunningham, 63 Fed. .132. Cf. The St. Nicholas, 49 Fed. (571. 34 lie Kalb & Berger Mfg. Co., C. C. A., l'fiS Fed. 895. 35 Continental Tr. Co. v. Toledo, St. L. & K. C. R. Co.. 82 Fed. 042. 36 X ;l sh v. Ingalls, 79 Fed. 510. 37 Ibid. 38 Pine Lake Iron Co. v. Lafa- yette Car Works. 53 Fed. 853. 39 Tbid. See Zacher v. Fidelity Tr. & S. D. Co., C. C. A., 106 Fed. 593. 40 (bid. 41 Tlupfeld v. Automatic Piano Co.. 66 Fed. 788. Cf. -Curran v. Craig. 22 Fed. 101. 42 Finance Co. of Pa. v. Charles- ton C. & C. R. Co.. 40 Fed. 508 § 315. l In re Brant, 96 Fed. 257, Anon., 1 Atk. 578. See § 324. 1018 RECEIVERS. [§ 315 fore, Avill never he appointed upon petition 2 when no suit has been begun, except in the case of lunatics. 3 The grounds of the exception and the reasons why it does not extend to infants are not verv clear. 4 After a suit has been begun, however, a re- ceiver may be appointed at any stage of it when a necessity is shown, — before appearance, 5 between appearance and answer, 6 between answer and decree, 7 at the decree, 8 or afterwards, if the cause is still Open 9 and the complainant is not in default. 10 But. a case of pressing necessity must exist to justify the ap- pointment of a receiver before answer. 11 An objection to the bill on account of multifariousness or a misjoinder of parties will not prevent the appointment of a receiver; nor will the pendency of a motion for leave to amend the bill, 12 unless in- deed the proposed amendment would change materially the al- legations showing the necessity for a receiver. The bill should lay the foundation for the appointment by stating the facts which show its necessity and propriety, 13 and should contain a prayer for a receiver. 14 If, however, a state of facts subse- quently arise making the appointment necessary, it may proba- bly be made without an amendment of the original or the filing of a supplemental bill. 15 The application for a receiver should lie supported by evidence showing that the appointment is nec- 2 In re Brant. 90 Fed. 257 : Anon., ] Atk. 578; Ex parte Whitfield. 2 Atk. 315; Merchants' & M. Xat. Bank v. Kent Circuit Judge. 43 Mich. 2!»2. 3 Ex parte Radcliffe. 1 J. & W. (339: Anon., 1 Atk. 578; Ex parte Warren. 10 Yes. 022. *Ev parte Whitfield. 2 Atk. 315. 5 Tanlield v. Irvine. 2 Russ. 149. 6 Yann v. Barnett. 2 Brown Ch. C. 15S: Metcalfe v. Pulvertoft. 1 Y. & P.. ISO. ' Kersliaiv v. Mathews. 1 Russ. 301. 8()>l. 1 ,rne v. Harvey. 1 Y. & C. X. R. 110. 9 Cooke v. Gwyn. 3 Atk. 6S9; Atty. Gen. v. Mayor of Galway. 1 Molloy, 95; Bowman v. Bell, 14 Sim. .!92. 10 Harrington v. Union Oil Co. r 144 Fed. 235. 11 Latham v. Chaffee, 7 Fed. 525. See Union Mut. Life Ins. Co. v. Union Mills P. Co., 3 L.R.A. 90, 37 Fed. 2S7. 12 Barnard v. Darling, 1 Barb, Ch. (X. Y.) 70. 13 Tomlinson v. Ward. 2 Conn. 390; Yerplanck v. Mercantile Tns. Co.. 2 Paige (X. Y.), 438. But see Hcttenstein v. Conrad. 9 Kan. 435. i4 Eq. Rule 25. But see Osborne v. Harvey. 1 Y. & C. X. R. 116. 15 Malcolm v. Montgomery, 2 Mol- loy, 500: Hottenstein v. Conrad, 9- Kan. 435. 315] MANNER OF APPLYING FOK I!E< EI VEUSHIP. 1010 essary. If the application is made before decree, the affi- davits should be founded upon the allegations in the bill. 17 If ' statements not founded on allegations in the bill and alleging facts which existed and were known before the bill was filed, are introduced into the affidavits, it seems that the court will not consider them, 18 and even if, where the case made by the bill fails, sufficient ground for a receiver is confessed in the answer, it seems that a receiver should be denied the plain- tiff, at least until he had amended his bill. 19 Where the appli- cation is made ex parte, it is the complainant's duty to make a full, frank, and complete statement of all facts which might affect the action of th*e court. 20 After an application for a re- ceiver has been once denied, a second application supported by the same papers will rarely be granted. 21 The former rule was that, after answer, a plaintiff when moving for a receiver could only rely upon the admissions in the answer; 2 * but now a sworn answer is given upon such a motion little more effect than an ordinary affidavit, and may be contradicted by affidavits in sup- port of the bill. 23 The appointment is usually only made upon notice and is very rarely granted ex parte?* Less thon one day's notice has been held to be insufficient. 25 A receiver may, however, be appointed ex parte, if that is the only way to pre- serve the property from destruction or serious injury, or remov- ISMiddleton v. Dodswell. 13 Yes. 266; Kerr on Receivers (2d Am. ed.), 154. It was held in a State court that a bill praying for a re- ceiver, sworn to '*as being true to the best of affiant's knowledge and belief." is not .sufficiently verified. Smith-Dimmick Lumber Co. v. "league, 24 South. 4. 17 Dawson v. Yates, 1 Beav. 301, 300; Cremen v. llawkes, 2 Jones & La. T. 674; Kerr on Receivers (2d Am. ed.), 1.14. 18 Dawson v. Yates, 1 Beav. 301, 306; Kerr on Receivers (2d Am. ed.). lf>4. 19 Cremen v. llawkes, 2 Jones & La. T. 674: Kerr on Receivers (2d Am. ed.), 154. 20 Burroughs v. Toxaway Co.. 1S2 Fed. 120. 21 Fenton v. Lumberman's Bank. Clarke Ch. (X. Y.) 360. 22Daniell\ Ch. Pr. (2d Am. ed.) 1076. See Goodman v. Wnitcdmb, 1 J. & W. 5S0: Kershaw v. Ma- thews. 1 Russ. 361. 23 Allen v. Dallas k \V. R. Co., 3 Woods. 316, 332. 24 Blondheim v. Moore. 11 Md. 365 : People v. Norton. 1 Paige I X. Y.). 17: Sandford v. Sinclair. 8 Paige (X. V.). 373-. Miltehberger v. Logarisport Ryl Co., 106 V. S. 2S6. 27 L. ed. 117. 25 St. Louis. K. C. & C. Ry. Co. v. Deuces, 23 Fed. 691. 1020 RECEIVERS. [§ 315 al beyond the jurisdiction of the court. 26 It has been said that a receiver of the assets of a railroad company will rarely be ap- pointed in a suit to which no stockholders or bondholders are * actually parties. 27 Where the officer of a corporation who had been served with notice of a motion for the appointment of a. receiver fraudulently concealed that fact from his associates, and did not oppose the motion, although no collusion with the plaintiff was shown, a motion to vacate the appointment was eii^ tertained. 28 A delay of one month after knowledge of the ap- pointment of a receiver, who had expended in the improvement of the property money furnished him by others, was held such acquiescence as to estop a party from moving to vacate the or- der of appointment for irregularity because granted without notice to him. 29 Except in an extraordinary case, a receiver 26 Phelps v. Mutual Reserve, etc., Ass'n. ('. C. A., 61 L.R.A. 717. 112 Fed. 453; Worth Mfg. Co. v. Bing- ham, C. C. A., 116 Fed. 785: Re Francis, 136 Fed. 012: holding that such an appointment, without no- tice to a defendant who is not pres- ent, was not unconstitutional as a taking of his property without due process of law. In Buchanan v. Bay State Gas Co., V. S. C. C. D.. Del. Oct. 15. 1896. Judge Wales ap- pointed a receiver ex parte upon documentary evidence. In a later case Judge Kirkpatrick in U. S. C. C. D., X. J., appointed a receiver ex parte. Brady v. Bay State l^is Co.. 106 Fed. 5S4. Latimer v. Me- Xeal. C. C. A.. 142 Fed. 451 ; Mann v. Caddie C. C. A., 158 Fed. 42; Taylor v. Faston. C. C. A., 180 Fed. 363. In Weiss v. Haight & Freese Co.. May. 1!»06, Judge Lowell made such an appointment. The case was affirmed on the ground of waiver in Haight & Freese Co. v. Weiss, C. C. A.. 150 Fed. 328: certiorari denied 207 l". S. 504. 52 L. ed. 356: Gihson v. Martin. 8 Paige (X. Y.), 481: Johns v. Johns. 23 Ga. 31 : Triebert. v. Burgess, 11 Md. 452: Ginbohs v. Mainwaring. !l Sim. 77: MUtenber- ger v. Logansport Ry. Co., 106 I\. S. 286, 27 L. ed. 117: Barley v. Gittings. 15 App. D. C. 421, 437; Hendrix v. Am. Freehold, etc., Co.,. ,95 Ala. 313. See Harv. Law Rev. xv. S49: supra. § 304. 27 Overton v. Memphis & L. R. Co.. 10 Fed. 866. But see Central T. Co. v. Texas & St. L. Ry. Co. r 24 Fed. 153. The absence of the defendant from the jurisdiction or inability to find and serve him or some urgent emergency, making the interference of the court necessary to prevent loss of the property, are sufficient grounds for an appoint- ment without notice. Mann v. Gaddie, C. C. A.. 158 Fed. 42: Ver- planck v. Mercantile Ins. Co., 2 Paige (X. Y.) 43S: People v. Al- bany & Susquehanna R. R. Co., 38 How. Pr. (X. Y.) 228. 252. 28 Allen v. Dallas & W. R. Co., 3. Woods. 316. 29 Ibid. § 317] MANNER OF APPOINTMENT OF RECEIVER. 1021 will not be appointed over property in the possession of a stran- ger to the suit. 30 § 316. Who may apply for the appointment of a re- ceiver. A receiver is usually appointed upon the application of the plaintiff. Before a decree it seems that one defendant cannot move for a receiver, 1 unless he has hied a cross-bill or counterclaim praying for one. 2 After a decree, however, he may, in a proper case. Obtain a receiver of the property of a co- defendant upon petition. 3 but not usually over the property of the plaintiff without a ca?QSS-hill. 4 § 317. Manner of the appointment of a receiver. Bv the English practice, which was followed in New York before the passage of statutes altering it. when an application for the ap- pointment of a receiver was granted, the selection of the re- ceiver was referred to a master in chancery, whose action was subject to the confirmation of the court. 1 The same master usually exercised supervision over contracts made by the receiv- ers and the adjustment of his compensation. 2 In the Federal courts, however, it is the customary practice for the judge to appoint and often to supervise a receiver himself, without the aid of a master, except when the accounts are passed. 3 The order is not void because the bill is demurrable for want of equity, or because the bill is not verified. 4 The denomination 30 Series v. Jacksonville. P. & M. R. Co.. 2 Woods, 021. See also Davis v. Cray. 16 Wall. 203, 218, 21 L. ed. 447. 452. § 310. 1 Robinson v. Hadley, 11 Beav. 014: Leddel's Ex'r v. Starr, 19 X. J. Eq. (4 C. E. Green) 159. But see Sargant v. Read. L. R. 1 (li. D. Odd: Henshaw v. Wells. 9 Humph. (Tenn.) 508. 2 0rote v. Bury. 1 W. R. !»2 : Robinson v. Hadley, 11 Beav. 014: Kerr on Receivers (2d Am. ed.), 153. 154. 3 Barlow v. Cains, 8 Beav. 329; Hiles v. Moore. 15 Beav. 175: Kerr on Receivers (2d Am. ed. ) . 154. *Grote v. Bury. 1 W. R. 921; Rob- inson v. Hadley. 11 Beav. 014: Ken- on Receivers (2d Am. ed.), 153. 154. § 317. l Creuze v. Bishop of London. Dick. 087: Thomas v. Daw- kin, 1 Yes. Jr. 452; In re Eagle [ran Works. 8 Paige < X. Y.). 385i; High on Receivers. § 90; Daniell's Ch. Pr. (2d Am. ed. | 1970. 2Thornhill v. Thornhill. 14 Sim ons. 600. 8 Miltenberger v. Log&nsporl By. Co.. 100 l*. S. 286, 27 L. ed. 117; Buck v. Piedmont & A. L. Ins. Co., 4 Fed. 849; Frank v. Denver & K. C. By. Co.. 23 V<-d. 757. P.ut set Taylor v. Phila. & R. R. Co.. 7 Fed. 379; s. c. 9 Fed. 1; < 'owdrcy v. Pail road Co., 1 Woods. 331. 341. 4 Clark v. Brown. C. C. A., 119 Fed. 130. 10-2-2 RECEIVERS. [§ 318 of a person appointed, with authority to bring a suit as a special master instead of as a receiver, will not affect the validity of the order. 5 Where in two suits, to which the same corporation was a defendant, a receiver had been appointed in one, and or- ders concerning the receivership were entitled in both jointly; it was held that, although no order had been made consolidat- ing the two nor extending the receivership to the second suit, the receivership was in fact extended. 6 § 318. Who should be appointed receiver. As a general rule no one should be appointed receiver of property who has anv interest therein, 1 or is in any way connected witli the litiga- 5 Royal Tns. Co. v. Mitten 199 U. S. .353. .10 L. ed. 22G. 6 Gila Rend Reservoir & Irriga- tion Co. v. Gila Water Co.. 202 U. 8. 270. .10 L. ed. 1023. § .31 S. IWisvvell v. Starr, 48 Me. 401. The son or brother of a party to a cause should not be ap- pointed receiver over property which is the subject of the litiga- tion, Williamson v. Wilson. 1 Bland (Ma-)'i 418; Taylor v. Oldham, Jac. .527 ; but see Shainwald v. Lewis, 8 Fed. 878. Nor should the next friend of an infant, whose duty it is to protect his interest, be ap- pointed receiver over his estate, Stone v. Wishart. 2 Madd. 64; nor an active trustee over the trust es- tate. Sutton v. Jones, 15 Ves. 584; v. Jolland. 8 Ves. 72: al- though a mere dry trustee may be thus appointed. Sutton v. Jones, 15 Ves. 584; nor should a master in chancery, whose duty it is to pass receivers' accounts, be appoint- ed a receiver, 3x }xtrte Fletcher, Ves. 427. It has also been said in England, "that the receiver-general of taxes for a county cannot be appointed a receiver; for having given, as such, security to the crown, if he were to become indebt- ed to the crown and to the estate, the crown might, by its prerogative process, sweep away all his prop- erty." Daniell's Ch. Rr. (2d Am. ed.) 1973. See Atty. Gen. v. Day, 2 Madd. 240, 254. And Lord Eldon held that a peer could not be a re- ceiver, because, "in many instances, a receiver may be committed." Atty. Gen. v. Gee, 2 V. & B. 208. It was held improper to appoint as assignee in bankruptcy of a corpo- ration one who had been appointed by a State court receiver of its as- sets. In re Stuyvesant Rank, 5 Ren. 560; s. c. X. R. R. 272. Rut it was subsequently held eminently proper to appoint as a receiver of the assets of a7i insolvent corpora- tion one who by the laws of the State that chartered it was the of- ficial custodian of its assets in case of its insolvency even though that State was in another Circuit from the one in which the suit for a receiver was brought, and the offi- cer did not reside within the juris- diction of the court. In this case it was made a condition of the ap- pointment that the receiver should pay into the registry of the court the proceeds of all assets collected within its jurisdiction, but he was allowed to give sureties who were residents of the State where he § 318] WHO SHOULD BE APPOINTED RECEIVER. 1033 tion in the course of which the appointment is made 2 pi is nearly related to, 3 or is in the employ of, any of the parties thereto, 4 or who. if he should receive the appointrneritj would oc- cupy two inconsistent positions; 5 nor a person who is aol famil- iar with the management of similar property, and aide to give sufficient attention to the management of his trust. 7 The court may, however, under special eircumstances appoint as receiver a trustee, 8 a person interested in the subject of the suit. 9 el- even a party to the suit, 10 or his near relation.** This, however, should rarely be done unless by consent, or possibly when it clearly appears to be for the interest of all concerned ; 12 and in such a case by the English practice the receiver was usually obliged to act without compensation if he accepted the trust. 13 dwelt. Taylor v. Life Ass'n of Am., 3 Fed. 465. 2 Baker v. Backus. 32 J 11. 70: Garland v. Garland, 2 Yes. Jr. 137: State Tr. Co. v. Nat. Land & Mfg. Co., 72 Fed. 575; Wood v. Oregon Dev. Co.. 55 Fed. 001. 3 Williamson v. Wilson, 1 Bland (Md.). 418. 4 Baker v. Backus, 32 111. 70; Atty. Gen. v. Bank of Columbia, 1 Paige (N. Y.). 511; Buck v. Pied- mont & A. L. Ins. Co., 4 Fed. 840. 5 Stone v. Wishart. 2 Madd. 04: Ex parte Fletcher. 6 Yes. 427. 6 Lupton v. Stephenson, 11 Ir. Eq. 484. But it was held that a person was not disqualified from appointment as receiver of a rail- road because he was not a citizen of the State where the railroad was chartered and situated: nor be- cause he was not a railroad expert and was unacquainted with the mechanical details of the railroad. Farmers' L. & Tr. Co. v. Cape Pear & Y. Val. R. Co.. 62 Fed. 675. Con- tra, Wynne v. Lord Newbor,pugh, 15 Yes. 283. Nonresidents are often ap- pointed ancillary receivers. Payne v. Brewer Pottery Co., 82 Fed. 301. ' Wynne v. Lord Xewborough, 15 Ves. 283; Gibbs v. David, L. K. 20 Eq. 373. SSykes v. Hastings. 11 Ves. 363: Sutton v. Jones. 15 Yes. 5S4: Gard- ner v. Blane, 1 Hare. 381 : Pbwys v. Blagrave. 18 Jur. 463: Ames v. Birkenhead Docks. 20 Beav. 332: Potts v. Warwick & B. ( . X. Co., Kay, 143; Kerr on Receivers (2d Am. ed.). 136-139. 9 Hoffman v. Duncan, 18 Jur. 69; Powys v. Blagrave. 18 Jur. 462: Kerr on Receivers (2d Am. ed.), 136. 10 Wilson v. Greenwood, 1 Swanst. 471 : Blakeney v. Dufaur, 15 Beav. 40; Robinson v. Taylor. 42 Ya\. 803, 812. "Shainwald v. Lewis. S Fed. 878. 12 Atkins v. Wabash. St. L. & P. Ry. Co.. 20 Fed. 161 j Kerr on Re- ceivers ( 2d Am. ed.i. 136-139, is Wilson v. Greenwood, 1 Swanst- 471, 183: BJakeney v. Dufaur. 15 Beav. 40: Hoffman v. Duncan, IS Jur. 69; Powys v. Blagrave, is Jur. 403. But see Newport v. Bury, 23- Beav. 30. 102-1 RECEIVERS. [§ 318 A stockholder, 14 officer or director of a corporation should or- dinarily not be appointed receiver of the same, 15 especially when he has been connected with or assented to the transactions that lead to its insolvency; 16 but under special circumstances, when it is necessary to obtain the advantage of his knowledge of its aifairs and he cannot otherwise be employed, such an officer or director may be appointed; 17 although, in such a case, it is advisable to join a disinterested person with him as a co-receiver, 18 The fact that directors of a corporation, of which a receiver has been appointed, are also directors of the insolvent corporation, may be a sufficient cause for objecting to his ap- pointment. 19 In one case, the court held that the fact that there was a possible claim on the part of the corporation against one of several receivers was no ground for removing him, until the court or his associates had determined to prosecute the claim. 20 When a party to the cause is appointed receiver in it, he does not thereby lose his privilege of acting as party. 21 It has been held in Tennessee, that no one, not even a clerk of the court, can be made a receiver against his will. 22 Recent stat- utes provide that no clerk or deputy clerk of a Federal court shall be appointed receiver except for special reasons which must be assigned in the order of appointment ; 23 and that "no IMViswell v. Starr, 48 Me. 401: Atkins v. Wabash, St. L. & P. Ry. Co., 2!) Fed. 161; but see People v. Illinois B. & L. Ass'n, 56 111. App. 642. 15 Buck v. Piedmont & A. L. Ins. Co., 4 Fed. 849; Atkins v. Wabash, St. L. & P. Ry. Co., 29 Fed. 161. Finance Co. of Pa. v. Charleston, C. & S. C. R. Co., 45 Fed. 436; •Olmstead v. Distilling & C. F. Co., 67 Fed. 24; but see Farness L. & Tr. Co. v. Xo. Pac. R. Co.. 61 Fed. 546; Coy v. Title Guarantee & Tr. Co., 157 Fed. 794; Attorney Gen- eral v. Bank of Columbia. 1 Paige (X. V.), 511: Baker v. Backus, 32 111. 79. Cf. Re Gordon Supply & Mfg. Co., 129 Fed. 622. See High .on Receivers, 1 4th ed.) §§ 63-81a. 16 Coy v. Title Guarantee & Tr. Co., 157 Fed. 794. Instate Tr. Co. v. Nat. Land Imp. & Mfg. Co., 72 Fed. 575; Bowling Green Trust Co. v. Virginia Passen- ger & Power Co., 133 Fed. 186; Cole v. Phila. & E. Ry. Co., 140 Fed. 944; but see People v. Illinois B. & L. Ass'n, 50 111. App. 642. 18 Cole v. Phila. & E. Ry. Co., 140 Fed. 944. 19 Cole v. Phila. & E. Ry. Co., 140 Fed. 944. 20 Land Title & Trust Co. v. As- phalt Co. of America, 120 Fed. 996. 21 Scott v. Platel, 2 Phil. 229: Cbwdfey v. Railroad Co., 1 Woods, 331. 350. 22 Waters v. Carroll, (Tenn.) 102. 23 20 St. at L., 415. 9 Yerg. § 319] the receiver's security. 1025 person related to any justice or judge of any court of the United States by affinity or consanguinity, within the degree of tii-t cousin, shall hereafter he appointed by such court or judge to ■or employed by such court or judge in any office or duty in any court of which such justice or judge may be a member. 75 M A State statute prohibiting the appointment of non-residents as receivers i s n ot binding' upon a Federal court. 25 An order may provide for the appointment of a receiver in the alternative t<> other relief. 26 § 319. The receiver's security. As a general rule, the or- der for the appointment of a receiver provides that he shall give good and sufficient security for the faithful performance of his duties. 1 This, by the English practice, was usually a recogni- zance entered into by the receiver and two or more sureties. wherebv they, the cognizors, acknowledged '"themselves to be indebted to the cognizees (usually the Master of the Rolls and the senior Master of the Court) in certain sums of money to be paid on certain days therein mentioned; in default of which thev will and agree that the said sums shall be levied and recov- ered of them, their heirs, executors, and administrators, and of .all and singular their lands and hereditaments, goods and chat- tels." 2 The recognizance, however, was subject to a condition -making it void if the receiver should duly account for the rents :and profits of the estate over which he was appointed. 3 In the Federal courts no fixed rule prevails, the security required from a receiver being whatever the judge who orders his appointment thinks proper. 4 When a receiver is appointed by consent, the ■court may appoint him without requiring security, or upon his •own recognizance only. 5 The sureties, when individuals, should usually be residents of the district; but under peculiar circuin- 24 25 St. at L. 554. 235; Toinlinson v. Ward. 2 Conn. 25 City of Defiance v. McGonigale, 396. •C. C. A., 150 Fed. 089. 8 Daniell's Ch. Pr. (2d Am. ed.) MCurline v. Townshend, 19 Ves. • 1999. ■628. 4Tavlor v. Life Ass'n of Am.. 3 §319. l Daniell's Ch. Pr. (2d Fed. 4(15. Am. ed.) 1977; Mead v. Lord Or- 5 Hibbert v. Hibbert, 3 Meriv. rery, 3 Atk. 235; Toinlinson v. 081; Countess of Carlisle v. Lord Ward, 2 Conn. 39ff. Berkley, Ami.. 599; Ridout v. Fail 2 Daniell's Ch. Pr. (2d Am. ed.) of Plymouth, 1 Dickens, 08. 3977: Mead v. Lord Orrery, 3 Atk. Fed. Prac. Vol. I.— 65. 1026 KECEIVEKS. [§319 stances sureties residing elsewhere have been accepted. 6 The sureties of a receiver cannot be discharged at their own request, 7 except under special circumstances, "as where underhand prac- tice is proved, and the person secured shown to be connected with such practice." 8 "For if people voluntarily make them- selves bail or sureties for another, they know the terms, and will be held very hard to their recognizance, and not discharged at their request to have new sureties appointed, for then there would be no end of it.'" 9 If a surety should procure his dis- charge during the continuance of the receivership, the receiver must enter into a fresh recognizance. 10 In law, a surety is liable to the full amount of the penalty of the recognizance, bond, or undertaking by which he is bound. 11 In equity, however, he is only liable to the full amount, including interest as well as prin- cipal which the receiver is liable in equity to pay, 12 unless that exceeds the amount of the penalty, which fixes the extreme limit of his liability. 13 It has been held in England that a surety who has undertaken to be responsible for whatever a receiver "should receive or become liable to pay" as such receiver, is lia- ble for funds received by the receiver before the security was given. 14 Where the parties interested have been guilty of gross delay in compelling the receiver to pass his accounts, the court may excuse the surety from the payment of the whole or part of the interest. 15 According to Daniell, "When an action is brought against a receiver's surety upon the recognizance, the proper course for him to pursue appears to be to apply to the court by motion to stay the proceedings on the recognizance, offering at the same time to pay the amount due from die re- ceiver, so as the same does not exceed the amount of the recog- nizance, into court; and upon such motion, the order will be made, upon the surety's paying the cost of the application, and of the proceedings consequent upon it. When the receiver's account has not been taken, the motion should also pray a ref- 6 Taylor v. Life Ass'n of Am., 3* 10 Vaughan v. Yaughan. 1 Dick. Fed. 465. DO: Blois v. Betts. 1 Dick. 336. 1 Griffith v. Griffith, 2 Yes. Sen. " Dawson v. Raynes. 2 Russ. 466, 400: Gordon v. Calvert, 2 Sim. 253. 468. 8 Hamilton v. Brewster. 2 Mol- 12 Dawson v. Raynes. 2 Rifts. 4(',6. loy. 4(17. 13 Walker v. Wild. 1 Madd, 528. 9 Lord Hardwicke in Griffith v. 14 Smart v. Flood. 49 L. T. 467. Griffith, 2 Yes. Sen. 400. 15 Dawson v. Raynes, 2 Russ. 406. § 320] PltOOF OF CLAIMS AGAINST KECEIVEB8. lUl'7 erence to the master to see what is due from the receiver; and it seems that upon such application the court will indulge the surety by allbwing him to pay the balance bv instalments." 16 When the surety has been obliged to pay on account of the receiver, he will be entitled to a lien for his reimbursement upon whatever may subsequently be due to the receiver from the suit. 17 The sureties may he liable for the malfeasance of the receiver, although the bill under which the appointment was made has been dismissed for want of jurisdiction. 18 In the absence of a rule of court, or of a stipulation in the bond, the liability of the surety should be enforced in an independent action. 19 In the absence of special circumstances no action can be brought until there has been an accounting by the receiver. 20 Tt has been held that an order made upon notice to the receiver, directing him to pay the amount of a judgment against him in his official capacity, will not support a judgment for the same against his sureties, when there has been no accounting. 21 § 320. Proof of claims against receivers. Claims against receivers are generally presented and proved before Masters in Chancery, to whom the matter has been referred. 1 The court often limits the time within which proof must be made; 2 and in eases of preferred claims, the time within which the prefer- ence must be asserted may also be limited; 3 but, in the absence of such an order, a party filing a claim is not required to give notice of the particular class to which the same belongs or wheth- er a preference is claimed. 4 A note given by the insolvent i- prima facie valid. 5 Claims may be past due, immature or con iflDaniell's Ch. Pr. (2d Am. ed.) § 320. I' Union Tr. Co. v. Forty- 200.-). 2006; citing Walker v. Wild. Second St.. M. & St. \. Ave. Ry. 1 Madd. 528. < o.. 179 Fed; nsi. -17 Olossop v. Harrison, Cooper, 2 Pennsylvania Steel Co. v. New 61; s. e.. :; V. & B. 134. York City Ry. Co.. ('. C. A.. IflS "Baltimore B. & L. Ass'n v. Al- Fed. 721. derson, C. C. A.. !)!) Fed. 489. 3 Pennsylvania Steel Co. v. New iSKirker v. Owings; C. ('. A., 98 York City lty. Co.. ins Fed. 721. Fed. 4!)!». 4 Pennsylvania Steel (',.. v. New 20Coe v. Patterson, 122 App. Div. York City l!y. Co. 1S7 Fed. 2S7. (X. Y.) 70. Rut see Cake v. 5 R.arl.er A. R. Co. v. Forty ->.-.- Molmn. 164 U. S. 311, 41 L. ed. 447. ond St., M. & St. X. Ave. Rv. Co., 21 [bid. C. C. A., 180 Fed. t!48. 1028 RECEIVERS. [§ 320 tingent. 6 In respect to the question of provability, they may be divided into two classes: "(1) Claims of which the worth or amount can be determined by recognized methods of compu- tation at a time consistent with the expeditious settlement of the case; (2) Claims which are so uncertain that their worth can- not be so ascertained." 7 The first class of claims can be proved and share in the dividends, whether they are overdue accounts, immature notes, or claims for damages for breach of contract, coinciding with or following the receivership. It has been held that the second class of claims cannot be proved, no mat- ter how highly meritorious thev mav be. 9 Aecordinglv, it has been held under a railroad lease, that a lessor railway company may prove a claim for damages caused by a breach of cove- nant to pay franchise taxes, so far as the same had been assessed, but not as regards future taxes ; 10 that claims for rental can be proved up to the date fixed by the court for filing claims against the receivers, but not subsequently ; n that where the receivers are 6 Pennsylvania Steel Co. v. New York City Ry. Co., C. C. A., 198 Fed. 721, 739. 7 Ibid. See Pusey & Jones v. Pennsylvania Paper Mills. 173 Fed. 629. 8 Pennsylvania Steel Co. v. N. Y. City Ry. Co., C. C. A., 198 Fed. 721, 740; New York Security & Trust Co. v. Lombard Inv. Co., 73 Fed. 537; Spader v. Mural Decoration Ufg. Co.. 47 X. J. Eq. 18, 28 E. L. 378. 9 Pennsylvania Steel Co. v. New York City Ry. Co., C. C. A.. 198 Fed. 721. 740; People v. Metropoli- tan Surety Co.. 205 X. Y. 135. 98 X. F. 412. See § 645 1 , infra. 1° Pennsylvania Steel Co. v. Xew York City Ry. Co., C. C. A., 198 Fed. 721. n Ibid. In s. c. 190 Fed. 009. held that expenditures made for the i peration. maintenance and im- provement of the railroad, after the receivership was extended to the les.-or, were not chargeable to the estate of the lessee, since it derived no benefit from the same, and that its receiver was entitled in equity to recover from the receivers of the lessor, in preference to the claims of the mortgagees of the latter, so much of the former's funds as were used for such purposes. In Lock- port Felt Co. v. United Box Board & Paper Co., 182 Fed. 328, held that a claim for water rent when the water had not been used by the re- ceivers, could not be considered as- an expense of the receivership. For a case determining the apportion- ment between the lessor and the lessee, of damages collected from directors in interest, see Pennsyl- vania Steel Co. v. X. Y. City Ry. Co., C. C. A„ 198 Fed. 778: B. c.,. 201 Fed. 418. This case held, amongst other things, that the mortgagee had no right to these proceeds. Citing Farmers' Loan & Tr. Co. v. Waterbury, C. C. A., 193- Fed. 44. § 320] PROOF OF CLAIMS AGAINST BECEIVEBS. 1029 operating the road experimental lv. to determine whether or nor they will adopt the lease, the court should extend the time within which the claim may he filed until after the experimental period has terminated; 12 that a claim upon a guarantee of payment of the principal and interest of certain railroad bonds can only be proved for interest past due at the time it is filed and not for principal and future interest, since, until the termination of a foreclosure, the amount of damages is too uncertain ; 13 and that an agreement with the mortgagor to pay such bonds, cannot be proved for the same reason. 14 It was also held under the same lease, that where the lessee had assumed the contract giv- ing an express company the right to delayer parcels by express over its line for a term of twenty years, in return for a per- centage of the gross receipts, and the express company had as- signed the contract to another solvent company, in consideration of an agreement to pay it a specified yearly rental during the re- mainder of the term, that the claimant could prove that the dam- ages were not too uncertain and that the whole amount up to the end of the term could be proved against the funds in the posses- sion of the receiver. 15 Although the receiver has a reasonable time within which to accept or reject a contract, when he does so his relation relates back to the beginning of the receivership and the breach takes place as of that time. 16 AYhere a creditor holds, as collateral, mortgage bonds issued by his debtor, he is not entitled to receive from the assets not subject to the mort- gage, dividends calculated on the basis of the amount due him plus that of the amount due upon such bonds. 17 Tt has been held that a claim against the insolvent cannot be set off against a claim of the receivers for services or money received during 12 Ibid. Receivers for the lessee 13 Ibid. Tredegar Co. v. Sea- of a street railroad system compris- board Air Line Ry.. ('. C. A.. 183 ing lines owned by different corpo- Fed. 289. In Ilitner v. Diamond rations, are entitled to use the in- State Steel Co.. 17ti Fed. •'>S4. held come from the entire system for that interest should be allowed to the purpose of operating and main- the time of the adjudication of in- taining the same as a unit, not- solvency, withstanding the provisions of mort- 14 Ibid, gages on different parts of the 15 Ibid. property. Barber A. P. Co. v. 16 Ibid. 108 Fed. 721 . 744. Forty-Second St.. M. & St. N. Ave. 17 Ilitner v. Diamond State Steel Ry. Co., C. C. A.. 180 Fed. 648. Co., 170 Fed. 384. 1030 RECEIVERS. [§ 321 the receivership, 18 and that a receiver appointed in a suit by general creditors should not recognize a secret lien upon the property which is purely equitable. 19 It has been said to be the better practice for the court to fix a time before the accounts are made up for distribution and to allow all claims that are ma- tured and certain before such date. 20 Bankruptcy acts and state statutes regulating the provability of claims against insolvent or dissolved corporations are only entitled to consideration in so far as the rules they lay down appeal to the conscience of the chancellor. So, the decisions of the courts construing and ap- plying such acts and statutes are only of weight when they dis- cuss principles of general application. 21 § 321. Receiver's accounts. A receiver should account annually to the court unless accounts at shorter intervals are required of him. 1 His accounts are filed and passed in the office of the master to whom matters pertaining to the receiv- ership are referred. 2 A receiver's account should describe the situation of the estate at the time when he received it, and any changes that have since taken place. He should then state his receipts and disbursements, which should be set forth in sched- ules as specifically as possible. 3 It is the better practice for him 18 Barber A. P. Co. v. Forty-Sec- ond St.. M. & St. N. Ave. Ry, Co., 175 Fed. 154. 19 H. K. Porter Co. v. Boyd, C. C. A., 171 Fed. 305. 20 Ibid. In N. Y. Security & Trust Co. v. Lombard Inv. Co., 73 Fed. 537, it was held that all claims could be allowed which had matured before an order of distribution. In Pennsylvania Steel Co. v. N. Y. City Ry. Co., 182 Fed. 155, held that an application for the pay- ment, in full, of certain claims, as preferred, should be denied until the final determination of the status of all classes of claims which might be entitled to a preference. §321. 1 Potts v. Leighton, 15 Ves. 273; General Order, 15 • Ves. 278; Lowe v. Lowe, 1 Tenn. Ch. 515. 2Daniell's Ch. Pr. (2d Am. ed.) 1996, 1997. SDanielFs Ch. Pr. (2d Am. ed.) 1996, 1997. But see Lafayette Co. v. Neely, 21 Fed. 738. He has a lien upon the estate for the repay- ment of his individual funds ad- vanced to execute orders of the court. Union Tr. Co. v. Illinois Midland Pvy. Co., 117 U. S. 434, For a case where the receiver's expenses on a journey to Europe were allowed : N. Ala. Ry. Co. v. Hopkins, C. C. A., 87 Fed. 805. For the disallowance of New York hotel bills paid by the receiver of a Kan- sas railroad, see Braman v. Farm- ers' L. & T. Co., C. C. A., 114 Fed. 18, 21. § 321] RECEIVER S ACCOUNTS. 1031 to charge himself with the inventory and to take credit as it is disposed of; to separate expenditures not on improvement account from those for operating expenses; 4 to file vouchers for all sums of money, in excess of twenty dollars, which he has paid. 5 He should also state such indebtedness as he has in- curred ; and, in general, give as full a description of the estate in his hands, and of his actions concerning the same, as is prac- ticable. 6 Receivers will be charged with personal liability for such indebtedness incurred by them as might have been pre- vented had they kept proper accounts, 7 and with preferential payments made by them, which should have been ratably ap- plied among all the creditors. 8 When a receiver withholds from a stranger to the suit, money to which the latter is entitled, he is liable for interest upon the same from the time of its receipt until he pays it into court and asks for directions as to its dis- tribution. 9 The burden rests upon him to justify and prove his accounts, so far as they are questioned by exceptions. 10 An ex parte order authorizing a payment, which is obtained from the court under a misapprehension due to fraud or negligence by the receiver, will not protect him. 11 If a person has not been paid for services rendered to the estate, but has agreed with the receiver to be content with what the court allows him. that facl should be stated in the account together with a description of the services thus performed. 12 A receiver is entitled to credit 4 Ibid. : Ely v. Van Kannel Re- volving Door Co., 184 Fed. 459. 5 Remsen v. Remsen, 2 J. Ch. (X. Y.) 495, 501. See also Gutterson & Gould v. Lebanon Iron & Steel Co., 151 Fed. 72. BDaniell'a Ch. Pr. (2d Am. ed.) 1990, 1997; Hooper v. Winston, 24 111. 353; Hinckley v. Railroad Co., 100 U. S. 153, 25 L. ed. 591; Atty. Gen. v. X. A. L. I. Co.. 89 X. Y. 94. 107; Bourne v. Jilaybin, 3 Woods, 724, 741 ; Equity Rule 79. ' Braman v. Fanners' L. & Tr. Co., C. C. A., 114 Fed. 18. 8 Gutterson & Coulld v. Lebanon Iron & Steel Co.. 151 Fed. 72. 9 Rosenthal v. McGraw, C. C. A., 138 Fed. 721. 1( > Gutterson & Gould v. Lebanon Iron & Steel Co., 151 red. 72. Spe- cific items for counsel fees were considered in Drey v. Watson. C. C. A.. 138 Fed. 792. 796. See also in- fra, § 422. 11 Gutterson & Gould v. Lebanon Iron & Steel Co., 151 Fed. 72. 12 Adams v. Woods. 8 Call 306i Central Tr. Co. v. Wabash, St. L. & P. Ry. Co.. 23 Fed. (>75 : Bound v. S. Carolina Ry. Co.. 43 Fed; 404: Maxwell v. Wilmington Mig. Co.. 82 Fed; 214: Central Tr. Co. v. Wabash. St. L. & V. K\. Co.j 23 Fed, 675; Boston 8. D. & Tr. Co. v. Chamberlain, C. C. A.. 66 Vcd. S47. Cf. Sowles v. Nat. Union Bank. 82 Fed. 189; Am. Loan & 1032 RECEIVERS. [§ 321 for reasonable counsel fees which he has paid or incurred ; 13 but not, it has been said, for services in opposing a motion to vacate his appointment ; 14 unless when he is also trustee under the mortgage, when such counsel fees may be allowed. 15 lie cannot receive credit for counsel fees he contracted to pay for instituting suits which were unnecessary and not warranted under the circumstances. 16 Allowances for counsel fees will usually be small, until the final accounting of the receiver, when the full amount earned will be ordered paid. 17 In Xew York it has been held, that such allowances are the property of the receiver, not of his counsel ; 18 but payment directly to the attorney is often directed. The employment by the re- ceiver of his law partner, as counsel, is a transaction which is indelicate, and is not to be commended. 19 When, however, it clearly appears that the receiver is not to share in the compen- sation, his partner may be paid for legal services rendered to TV. Co. v. S. Atl. & O. R. Co.. 81 Fed. 62; Kernochan v. Ballance, 56 X. Y. Supp. 132; s. c, 26 N. Y, Misc. 43."). 13 Burroughs v. Toxaway Co., C. C. A., 185 Fed. 435. Where the counsel for a receiver lhed in one State and rendered services in two States, it was held that the compen- sation for his different services should he adjusted at the amount usually paid to lawyers in the States where each were performed. Bibber-White Co. v. White River Valley El. R. Co., 175 Fed. 470. Where the judge wrote the receivers stating that certain persons therein named were their only standing counsel and that others should be employed only after consultation with the court, it was held that that was a sufficient discharge of any that might have been previously em- ployed. Guaranty Tr. Co. of New York v. Chicago Rys. Co.. C. C. A., IS.", Bed. 411. It has been held that $500 is proper compensation to an attorney for filing the receivers' bond and for the preparation, serv- ice, and filling of a summons and complaint to compel the payment of $10,001). People. &c. v. Przestrzel- ski. (Gerard, J.. N. Y. Sup. Ct.. Sp. Tift.) X. Y. L. J. May 24. 1912. Where the attorneys for an insolv- ent bank consented to allowances to attorneys for a receiver, in order to enable the bank to resume business, it was held that the consent was given under duress and that the receiver might appeal from the or- der making the allowance. People v. Brooklyn Bank. 140 App. Diy* IN. Y.) 750. 14 Burroughs v. Toxaway Co., 182 Fed. 12!); modified S. C, C. C. A., 185 Fed. 435. 15 Burroughs v. Toxaway Co. C. C. A., 185 Fed. 435. 16 Burroughs v. Toxaway Co., 182 Fed. 120. 17 Matter of Simpson, 36 App. Div. 562. 564. 18 Ibid. 19 Stuart v. Boulware, 133 II. S. 78. 33 L. ed. 568. § 322] COMPENSATION OJEiBECEIVERS. 1033 the estate. 20 Where before his appointment a receiver had re- ceived rent paid to him in his individual capacity in advance, he was obliged to apportion the rent, and to account for so much of it as was paid for the time during which he acted as re- ceiver of the property, for the use of which the rent was paid. 21 Exceptions should not be taken after a master's report upon a receiver's accounting has been filed, the master acting in the place of the court in a judicial and not in a ministerial capa- city. 28 Should the receiver or anv other party to the account- ing feel aggrieved at a ruling of the master, he should take exception at the time, 23 and subsequently petition the court to refer the mattter back to the master for correction. 24 The court's duty upon such a petition consists in reviewing the principles and rules adopted and followed by the master in al- lowing the receiver's accounts, rather than in examining the items of the account in detail or the evidence upon which those items are severally founded; the latter duty belonging more es- pecially to the province of the master acting in his judicial ca- pacity, analogous to the province and duty of a jury on ques- tions of fact. 25 Where the receiver claimed in his accounts a balance as due him, and it was found that he was indebted to the estate, he was charged personally with the costs of the ac- counting. 26 In a proper case, the receiver, as well as any other party interested, may appeal from the final decree entered after his accounting. 27 § 322. Compensation of receivers. The compensation of a receiver is usually fixed in the first instance by the master, 1 with whose determination the court will not ordinarily interfere. 2 The compensation will rarely, if ever, be increased upon ap- 20 In re Allin, 8 Fed. 753. Co.. 94 V. S. 407. 24 L. ed. L6j6,; 21 Cowdrey v. Railroad Co., 1 Hinckley v. Railroad Co.. 100 1". S. Woods.. 331, 334. 1.">3. 25 L. ed. 5j91j limey v. Me- 22 Ibid. Donald. L09 U. S. 150. 27 1>. ed. SSS. 23 Ibid. §322. ICow.lrey v. Railroad 24 ibid. Co.. 1 Woods. 331. 341: Central 25Qunn v. Fwan. 03 Fed. 80. Trust Co. v. Wabash, St. L. & P. 26 Cake v. Molmn, 1(14 U. S. 311, Ry. Co.. 32 Fed. 1ST. 41 L. ed. 447; Petersburg S. & I. 2 Cowdrey v. Railroad Co., 1 Co. v. Dellatorre, C. C. A., 70 Fed. Woods. 331. 341; Central Trust 643. . Co. v. Wabash, St. L. & P. Kv. Co.. 27 Hinckley v. Oilman C. & S. R. 32 Fed. 187. 1(1:51 RECEIVERS. [§ 322 peal. 3 Where the court has fixed a receiver's compensation in advance, it has the power to award him an additional sum for extraordinary labors. 4 In cases of moderate amount of commis- sion of five per cent, upon the receipts and disbursements is not unusual. 5 Commissions were, however, not allowed upon se- curities which came into the hands of the receiver, but were not collected by him. 6 Where the amounts received and disbursed are large, it is customary to pay the. receiver a salary or a lump sum graduated according to the amount of his time employed, the value of the property, the difficulty of his task, and the suc- cess of his administration. 7 It has been said that the peculiar duties and responsibilities and accountability of a receiver of a railroad entitle him to a larger amount than would be demand- 3 Hinckley v. Railroad Co., 100 t~. S. 153, 25 L. ed. 591; Stuart v. Boulware. 133 U. S. 78, 33 L. ed. 568; Braman v. Farmers' L. & Tr. ('.... C. C. A., 114 Fed. 18. 4 Farmers' L. & Tr. Co. v. Cen- tral R. R. of Iowa, 8 Fed. 60. 5 Cowdrey v. Railroad Co.. 1 Woods, 331, 346; Day v. Croft, 2 Beav. 488; Girard Tr. Co. v. lie- Kinley-Lanning L. & Tr. Co., 143 Fed. 355; Calhoun v. Dragon Motor Co., 166 Fed. 080. $12,000 each was held to be ample compensation for two receivers who had been occupied six months in the administration of trust funds amounting to $2,000,000. People v. Brooklyn Bank, 140 App. Div. (X. Y.) 750. Ten per cent, upon the receipts from a business conducted by him, and five per cent. upon his receipts from other sources and his disbursements was allowed in Cake v. Mohun. 104 U, S. 311, 41 D. ed. 447. Where a receiver collected earnings of the property, to a part of which a third person was entitled under a contract with the defendant, it was held that neither he nor the insolvent estate could charge for the services ren- dered in collecting the part pay- able to the stranger. Rosenthal v. McGraw, C. C. A., 138 Fed. 721. 6 Girard Tr. Co. v. McKinley- Lanning L. & Tr. Co., 143 Fed. 355. 7 Cowdrey v. Railroad Co., 1 Woods, 331, 346; Farmers' L. & Tr. Co. v. Central R. R. of Iowa, 8 Fed. 60; Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 32 Fed. 187. See Burroughs v. Toxa- way Co., C. C. A., 185 Fed. 435. Where the majority of the creditors had given their assent to the ap- pointment of receivers of a partner- ship, upon a bill alleging insolvency and that the completion of a con- tract would be for the benefit of creditors; it was held that the affi- davit of the attorney for a single judgment creditor stating his be- lief that the firm was solvent and that the receivership was obtained for the benefit of the partners, in order to hinder and delay creditors, was insufficient to justify the vaca- tion of the receivership or to au- thorize its creditors to issue an ex- ecution against property in the hands of the receivers. Patterson v. Patterson, 184 Fed. 547. § 322] COMPENSATION OF RECEIVERS. 1035 ed by the head officer of a railroad, of the same size and busi- ness. 8 The receivers eight to couipensatioji passed to his per- sonal representatives upon his death. 9 and lias precedence of the elaims of holders of receiver's certificates. 10 Whether a re- ceiver can assign his commissions before they are earned is doubtful. 11 An agreement by a receiver that he would not en- force any claim for his commissions, "to the detriment of" the claim of an intervener, was held not to entitle the latter to be paid out of commissions allowed the receiver from funds that 8 Bradley, J., in Cowdrey v. Kail- road Co., 1 Woods, 331, 347. Ap- proved by Brewer. J., in Central Trust Co. v. Wabash. St. L. & P. Ry. Co., 32 Fed. 187, 188. See also Williams v. Morgan. J]] U. S. 684, 28' L. ed. 559. Receivers of rail- roads have been frequently allowed as much as $10,000 a year. Hinck- ley v. Railroad Co.. 100 U. S. 153, 25 Er. ed. 501 ; Cowdrey v. Railroad Co., 1 Woods, 331. 347. But see Farmers' L. & Tr. Co. v. Central R. R. of Iowa, 8 Fed. 60. In one re- ported case two receivers were each allowed $70,000 for three and a half years' work. Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 32 Fed. 187. In a few cases not reported larger fees have been allowed. In other cases annual salaries of $6,000, Boston S. D. & Tr. Co. v. Am. R. Tel. Co. 67 Fed. 165, 168; Braman v. Farmers' L. & Tr. Co. C. C. A., 114 Fed. 18; Boston S. D. & Tr. Co. v. Chamberlain, C. C. A., 66 Fed. 847, where, for winding up the estate after the railroad was sold, only $1,750 was allowed for seven months; $4,500, Easton v. II. & T. C. Ry. Co., 40 Fed. L89r; and $2,500, Central Tr. Co. v. Cincin- nati, J. & X. Ry. Co. 58 Fed. 500, 512. In street-railroad eases much less is allowed. Montgomery v. Petersbury S. & I. Co., C. C. A., 70 Fed. 746. $15,000 was held to be sufficient for twenty-nine months of service in the administration of oil properties in four different States, which sold for $271,000. when the receiver had also been allowed $15 a day for his expenses during 125 days spent in different cities; and an allowance of $24,022.84 was re- duced to that amount. In the same case, it was held that an allowance to an assignee, under an insolvent assignment, of five per cent, upon the money handled by him. was suf- ficient. Drey v. Watson. C. ('. A.. 138 Fed. 702. For a case where the Federal court refused to allow its receiver to set off the amount of compensation awarded him by a State court, for compensation for services as a receiver of the same property in another suit, against the sum he was directed to pay 1>\ a de- cree of the Federal court, see Hinck- ley v. Railroad Co.. 100 U. S. 153. 25 L. ed. 591 : In re Hinckley. 3 Fed. 556, For a case of estoppel againsl objecting to the amount of compen- sation, see Dillingham v. Morari. C. C. A., 81 V\'d. 759. 9 Cake v. Mohun. 104 V. S. 31 1. 41 L. ed. 447. 10 Petersburg S. & I. Co. v. Dele- torre. C. C. A., 70 Fed. 643. 11 Bloomlield \. Roy, C. C. A., 120 Fed. 502, 5Q3l 1036 EECEIVERS. [§ 323 would otherwise have been applied in payment of preferred claims. 12 Misconduct of the receiver, such as the unneces- sary prolongation of the receivership 13 or his failure to keep proper books of account, 14 may be a reason for denying him any compensation. "Where a receiver, with the consent of the court, authorized certain creditors to advance the necessary ex- panses to collect certain claims of the estate, under an agreement that they should have a preference for the payment of their expenses and their claims out of the proceeds ; it was held that he should receive no compensation from that fund, except from the surplus after they had been paid in full. 15 When the ac- count has been adjusted, the receiver should be ordered to pay the balance into court, and his surety is liable for his default. 16 After such an order, his liability is not measured by the funds or property of the estate, although such funds can be used to comply with the order. 17 An order allowing compensation to a receiver should be made only after notice and a hearing, at which the parties interested have an opportunity of contest- ing the same. 18 Such an order is appealable and may be re- versed for want of proper notice of the application for the same. 19 Ordinarily, motions to fix the compensation of a re- ceiver's counsel should not be heard ex parte, but notice thereof should be given to all parties in interest. 20 § 323. Removal of receivers. A receiver may be removed for misconduct in office, 1 or because his original appointment 12 Bloomfield v. Roy, C. C. A., 120 Fed. 502. 13 Newell v. International Tr. CO., ('. C. A.. 109 Fed. 497. 1 4 B ram an v. Farmers' L. & Tr. Co.. C. C. A.. 114 Fed. 18. 15 Cornell v. Nichols & Langwor- thy Mach. Co.. 189 Fed. 556; aff'd., C. C. A.. 201 Fed. 320. See MeEwen v. Harriman Land Co., C. C. A., 138 Fed. 797. 808, 71 C. C. A. 163. 16 Re Reliable Bottle Box Co., 199 Fed. 670. 17 II, id. is Ruggles v. Patton, C. C. A., 143 Fed. 312: Merchants' Bank v. Crysler, 67 Fed. 388; s. c, 14 C. C. A. 449. 19 Ibid. 20 Merchants' Bank v. Crysler, C. C. A., 67 Fed. 388, 14 C. C. A. 449. § 323. 1 Handy v. Cleveland & Marietta R. Co., 31 Fed. 689; At- kins v. Wabash, St. L. & P. Ry. Co.. 29 Fed. 161; Clarke v. Central R. R. & B. Co., 66 Fed. 16. Instances of such misconduct as will be a cause for the removal of a receiver are: unlawful discrimination in charges between different shippers upon a railroad; Handy v. Cleve- land & M. R. Co.. 31 Fed. 689: At- 323] EEMOVAL OF RECEIVERS. 1037 was obtained by collusion or fraud, 2 or was improper on ac- count of his interest in the subject of the receivership or. con- nection with the parties in interest, 3 or because subsequent de- velopments make his continuance in the office likely to be detri- mental to the estate. 4 Unreasonable delay in the administra- tion of the estate is a cause for the removal of a receiver. 5 The fact that the estate has a claim against him i- a proper cause for his removal. 6 A receiver will not be removed or discharged at his own request except for good cause shown, nor ordinarily for a reason which he knew or had ground to anticipate when he accepted the receivership. 7 Ordinarily, a receiver can only be removed by the court which appointed him, 8 upon an ap- 17 How. Pr. (N. Y.) 481; Fay v. Erie & K. P.. Pi. Bank, Harring. (Midi/) 194. See, however, Davis v. Duke of Marlborough, 2 Swanst, 108, 168; Whiteside v. Prendergast, 2 Barb. Ch. (N. Y.) 471. HDaniell's Ch. Pr. (2d Am. ed.) 1765. 12 Hook v. Bosworth, 04 Fed. 443. 18 Jones v. Smith, 40 Fed. 314. 14 Davis v. Duncan, 19 Fed. 477. Contra. Taylor v. Easton, C. C. A., 180 Fed. 363, where, upon the dis- covery of assets, a new receiver was- appointed at a term long subse- quent. ) 15 Southern Ry. Co. v. Townsend, C. C. A., 161 Fed. 310. 16 Davis v. Duncan, 19 Fed. 447; White v. Keokuk & D. M. Ry. Co. r 52 Iowa. 97: Western X. Y. & P. R. Co. v. Penh Refining Co., C. C. A., 137 Fed. 343. iTArchambeau v. Piatt. 1 73 Mass.. 249; Lilienthal v. Betz, 185 N. Y. 153, 159. 7 Ann. Cas. 41. 18 Lehman v. M'Quown, 31 FecL 138. § 324] DISCHARGE OF BECEIVEK. 1041 to his corporation, which can then sue upon the bond. 19 Where a decree discharged a receiver upon condition that he should file a release from the person to whom the property was given by the decree, it was held that his omission to file the release did hot make him liable to strangers for former injuries by his em- ployees. 20 Upon the discharge of a receiver and the return of the property to the original owner, who did not oppose the re- ceiver's appointment, the owner is liable for all contracts bv the receiver entered into by the authority of the court, and also for the damages caused by the negligence or other torts of the receiver's agents which are incidental to the ordinary manage ment of the property. 21 An order discharging a receiver and directing him to deliver the property to a person from whom he had taken it was held not to be an adjudication that the latter was entitled to the same. 22 Where the court acted within its jurisdiction, it has been held that where a receiver is discharged because his appointment was not justified, the expenses of his administration, including his compensation, should be charged against the funds in his hands ; that the party who moved for his appointment should not be obliged to pay them 2: where the proceedings were not instituted improvidently without rea- sonable cause 24 and the prosecution thereof has not been un- reasonably delaved; 25 and that he is not liable for interest 19 Am. Surety Co. v. Campbell & Zell Co., C. C. A., t38 Fed. 531. 20]) ;iv is v. Duncan, 18 Fed. 477. 21 Texas & Pae. Ry. Co. v. Huron, 104 U. S. 036, G40, 41 L. ed. 580, 582; Texas & Pae. Ry, Co. v. John- son, 151 U. S. 81, 89, 38 L. ed. 81, 84. Cf. supra, § 313. 22 Marshall v. Otto, 5!) Fed. 249, 255. 23 Elk Fork 0. & G. Co. v. Jen- nings, 90 Fed. 707: New Birming- ham I. & L. Co. v. Blevins (Tex. Civ. AppJ), 34 S. W. R. 828; Clark v. Brown. C. C. A., 11!) Fed. 130; Ephraim v. Pae. Bank, 129 Cal. 589, 592. 3ft Industrial & Mift. G. Co. v. Fl. Supply Co.. 58 Fed. 732, 734; Og- dni City v. Bear L. & W. & Imp. Fed. Prac. Vol. I.— 66. Co., 55 Fed. 385; Farmers' Nat. Bank v. Backus, 77 X. W. R. 142; Northern Ala. Ry. Co. v. Hopkins, 31 C. C. A. 94; s. c. 87 Fed. 505i Gallagher v. Gingrich. 1(15 Iowa. 237; Cutter v. Pollock, 4 X. 1). 205; Cutter v. Pollock. 7 X. D. 631, 634; Richmond v. Irons. 121 U. S. 27: Matter of Lacov, C. C. A.. 142 Fed. 900; Beach v. Macon Grocery Co., C. C. A., 125 Fed. 513; 60 0. C. A. 557. 559; Burroughs v. Toxaway Co., 182 FflL 129: S. C. ('. C. A., is;, Fed. 135.; Chicago Title & Tr. Co. v. New man. ('. ('. A.. 187 Bed. 573; Re Metals Extraction & Refin- ing Co.. C. C. A.. 19:; Fed. 372. 25 Unreasonable delay in the prosecution of the action may be ground for charging the expense of 1042 RECEIVERS. [§ 325 upon the funds in the receiver's hands. 26 If the appointment were void for want of jurisdiction, or induced by fraud, the rule might be otherwise. 27 Where the proceeds of the estate are insufficient to pay the expenses of the receivership, they cannot be charged against the party at whose application the appointment was made, unless he was guilty of some miscon- duct, 28 or he has received some special benefit from the receivership. 29 Where a receivership in a creditors' suit has been beneficial to the mortgaged property, the receiver's com- pensation may be paid therefrom before the mortgage debt. 80 Otherwise this should not be done. 31 The failure of a trustee to exercise a power of sale vested in him, and the institution of a foreclosure suit instead, is no reason for charging him with the expense of the receivership. 32 The fact that land was sold at foreclosure for enough to pay the amount of the mortgage and costs does not prevent the payment to the receivers of compen- sation out of other property covered by the mortgage. 33 § 325. Appeals from orders appointing receivers. "Where upon a hearing in equity in a district court, or by a judge thereof in vacation, an injunction shall be granted, con- tinued, refused, or dissolved by an interlocutory order or de- cree, or an application to dissolve an injunction shall be re- fused, or an interlocutory order or decree shall be made ap- pointing a receiver, an appeal may be taken from such inter- locutory order or decree granting, continuing, refusing, dis- solving, or refusing to dissolve, an injunction, or appointing a receiver, to the circuit court of appeals, notwithstanding an appeal in such case might, upon final decree under the statutes regulating the same, be taken directly to the Supreme Court: Provided, That the appeal must be taken within thirty days the receivership to the complainant, when the appointment of the receiv- er is set aside. Harrington v. Union Oil Co., 144 Fed. 235. 26 Clark v. Brown. C. C. A.. 119 Fed. 130. 27Ephraim v. Pac. Bank, 129 Cal. 589, 592. But see Palmer v. Texas, 212 U. S. 118. 28Atlantic Tr. Co. v. Chapman. 208 U. S. 300, 52 L. ed. 528. 29 Farmers' Nat. Bank v. Backus, 74 Minn. 264. 30 Provident Life & Tr. Co. v. Camden & T. By. Co., C. C. A., 177 Fed. 854. See supra. § 305. 31 Spencer v. Taylor Creek Ditch Co., C. C. A., 194 Fed. 635. 32 Atlantic Tr. Co. v. Chapman, 208 U. S. 300, 52 L. ed. 528. 33 Strain v. Palmer, C. C. A., 159 Fed. 628. § 325] APPEALS FROM ORDERS APPOINTING RECEIVERS. 1043 from the entry of such order or decree, and it shall take preced- ence in the appellate court; and the proceedings in other re- spects in the court below shall not be stayed unless otherwise ordered by that court, or the appellate court, or a judge thereof, during the pendency of such appeal: Provided, however, That the court below may, in its discretion, require as a condition of the appeal an additional bond." 1 Although the statute author- izes an appeal from an order, continuing, refusing or dissolving, or refusing an application to dissolve, an injunction, there is no such provision concerning orders appointing receiverships. The right to appeal from an order denying an application to appoint a receiver or to dissolve a receivership, or from an order continuing or dissolving a receivership, is not expressly granted. It has been held: that an ex parte order appointing a receiver is appealable; 2 and that an order nominally appoint- ing a "conditional receiver." which gave the appointee no great- er powers than those of a special master, namely, to keep and require accounts, to require bonds in such amount as he might determine and to report to the court in case of misconduct by the defendants, is not appealable. 3 The court said : "Interlocu- tory orders, which may be reviewed on appeal under and within the purview of the statute just quoted, are orders in the nature of 'executions before judgment,' and in effect either ousting parties from the possession of property of injuriously controlling the management and disposition of property."' 4 A § 325. l Jud. Code. § 129, 36 St. at L. 1087. Where before the Act authorizing appeals from orders ap- pointing receivers, an order appoint- ed a receiver and contained no oth- er injunction than the usual man- date that the defendant, its officers, agents and employees, deliver to him the property in their hands: it was held that it was not appeal- able. Bissell C. S. Co. v. Goshen S. Co.. C. C. A., 72 Fed. 545; Marden v. Campbell Printing-Press & .Mfg. Co., C. C. A.. 67 Fed. 80fl. An or- der vacating the appointment of a receiver and staying all proceedings in the suit, was held to be an in- junction order and appealable. Bak- er v. Walter Baker & Co., C. C. A.. 83 Fed. 3. 2 Joseph Dry Goods Co. v. Hecht, C. C A.. 120 Fed. 760. See Mann v. Gaddie, C. C. A., 158 Fed. 42. 47. Contra, Boot v. Mills. C. C. A.. 168 Fed. 688. It has been said: "This statute will afford defendants relief, where receivers are improperly ap- pointed, whether with or without notice." Mann v. Gaddie. C. C. A., 158 Fed. 42. 47. 8 Gulf Refining Co. v. Vincent Oil Co.. C. C. A., is:, Fed. 87. 4 <;nlf Refining Co. v. Vincent <>il 10-14 RECEIVERS. [§ 325 stipulation not to object to the continuance of a receivership is a waiver of the right to appeal from the appointment. 5 The other decisions which apply to these appeals are discussed in the previous section upon appeals from injunction orders. 6 Up- on an appeal from an order appointing an ancillary receiver, the propriety of the decree in the principal suit cannot be questioned. 7 Co., C. C. A., 185 Fed. 87, 89, per TMcGraw v. Mott, C. C. A., 170 Pardee, J. Fed. 646, where it was said that the 5 Haight & Freese Co. v. Weiss,, jurisdiction of the former court C. C. A., 156 Fed. 328. could not be questioned. 6 Supra, § 300. CHAPTER XX. THE WRIT OF Xi: EXEAT REPUBLICA. § 326. Definition of the writ of ne exeat republica, and when it will issue. The writ of ne exeat republica is a writ which issues from a Federal court of equity or bankruptcy to restrain a defendant to a suit therein from departing from the United States without the leave of the court. 1 In England it was caRed ne exeat rv,. Berkowitz, 173 Fed. 1012, Beanies on Ne Exeat, 1-21. where upon the petition of creditors, BJud. Code, § 261, 36 St. at L. accompanied by a certificate of the 1087, re-enact in-;. T\ S. E. S.', S 717. referee, the writ was issued againsl 4 Cf. U. S. R. S., § 990; Mallory a bankrupt, who was about to leave Mfg. Co. v. Fox, 20 Fed. 409: and tfhe districl and did not appear Upon infra, § 471. See also 24 Am. Law the adjourned day of his examina- Rev. 535. tion. 1045 1046 WRIT OF NE EXEAT. [§ 327 the writ must be one enforceable by a suit in a court of equity 7 or bankruptcy, 8 except where a decree for permanent alimony has been entered and no appeal therefrom is pending, in which case the English rule was that the writ might issue to compel obedience to the same. 9 The claim must be for the payment for an accounting 11 of a certain fixed sum of money or A claim for unliquidated damages is insufficient. 12 Thus, the writ cannot issue under a bill to set aside a bill of sale of a vessel, for a return of the vessel or her value, and for an ac- count of her earnings. 13 The debt must be already due. 14 A debt which is contingent, 15 or certain but future, 16 is insufficient. The motives for the defendant's departure, no matter how in- nocent they may be, — as, for example, that he is about to sail upon a ship of which he is captain, 17 will not prevent the issue of the writ. 18 § 327. Against whom the writ will issue. The writ was originally confined to subjects of the King of England. 1 It has been extended, however, so as to apply to foreigners as well as subjects of the country from the courts of which the writ issued; 2 and where the court has jurisdiction, the writ may be issues at the suit of one foreigner against another. 3 It seems that the writ may be issued against a married woman in a suit affecting her separate estate. 4 The writ will not issue 7 Pearne v. Lisle, Amb. To; Sey- mour v. Hazard, 1 J. Ch. (X. Y.) 1. 8 Re Berkowitz, 173 Fed. 1012. 9 Pearne v. Lisle, Amb. 75 ; Read v. Read, 1 Ch. Cas. J 15; Ex parte Whitmore, 1 Dick. 143; Shaftoe v. Sha'ftoe, 7 Ves. 171; Street v. Street, 1 T. & R. 322; Daniell's Ch. l'iv (2d Am. ed.) 102(5, 1927. 10 Graham v. Stueken, 4 Blatchf. r,0; Daniell's Ch. Pr. (2d Am. ed.) 1931. v. Reid, Murdoek & 177 Fed. 684. ii Godding « o., C. C. A., 12 Graham v. Stueken, 4 Blatchf. 50. 13 Ibid. 14 YY'hitehouse v. Partridge, 3 Swanst. 305, 377 ; Seymour v. Haz- ard, 1 J. Ch. (N. Y.) 1. 15 Anon., 1 Atk. 521. 16 Whitchouse v. Partridge, 3 Swanst. 365, 377 ; Seymour v. Haz- ard, 1 J. Ch. (N. Y.) 1. 17 Dick v. Swinton, 1 V. & B. 371. 18 Stewart v. Graham, 19 Ves. 313; Daniell's Ch. Pr. (2d Am. ed.) 1934, 1935. § 327. 1 Daniell's Ch. Pr. (2d Am. ed.) 1933; Beames on Ne Ex- eat, 1-20. 2 Flack v. Holm, 1 J. & W. 405: Daniell's ( h. Pr. (2d Am. ed.) 1933, 1934. 3 De Carriere v. De Calonne, 4 Ves. 577; Mitchell v. Bunch, 2 Paige (N. Y.) 606, 22 Am. Dec. 669. 4 Moore v. Hudson, Mad. & Geld. 218; Moore v. Meynell. 1 Dick. 30; Daniell's Ch. Pr. (2d Am. ed.) 191. § 327] AGAINST WHOM WIMT ISSUED. 104:7 against a defendant who is under arrest or held to bail in an action at law. 5 The Constitution provides that Senators and Representatives shall, in all cases, except treason, felony, and breach of the peace, he privileged from arrest during their at- tendance at the session .»f their respective Houses, and in go- ing to and returning from the same. 6 And the Revised Sta1 utes, that whenever any writ or process is sued out or prose cnted by any person in any court of the United States, or" of a State, or by any judge or justice, whereby the person of any public minister of any foreign prince or state, authorized arid received as snch by the President, or any domestic of domestic servant of any snch minister, is arrested or imprisoned, or his goods or chattels are distrained, seized, or attached, snch writ or process shall be deemed void. 7 Whenever any writ or process is sued out in violation of this statute, every person by whom the same is obtained or prosecuted, whether as party or as attorney or solicitor, and every officer concerned in exe- cuting it, is deemed a violator of the laws of nations and a dis- turber of the public repose, and is liable to imprisonment for not more than three years, and a tine ;it the discretion of tin- court. 8 These regulations do not apply to any ease where the person against whom the process is issued is a citizen or in- habitant of the United States in the service of a public min- ister, and the process is founded upon a debt contracted before he entered npon such service; nor to any case where the per- son against whom the process issued is a domestic servant of a public minister, unless the name of the servant has, before the issuing thereof, been registered in the Department of State. and transmitted by the Secretary of State to the marshal of the District of Columbia, who is required, upon the receipl thereof, to post the same in some public place in his office. 9 All persons may have access to the list of names so posted in the marshal's office, and may take copies without a fee. 10 5 Raynes v. Wyse, 2 Meriv. 472; I". S. v. Benner, 1 Raldw. 234; U. Darnell's Ch. Pr. (2d Am. ed.) S. v. Lafontaine, 4 Cranch, C. C. 1930, 1031. 173. 6 Const, art. I, § 0. M'. S. R. S.. § 4064. H'. S. R. S., § 4063. See Ex HI S, R. S.. § 1065. parte Cabrera. 1 Wash. C. C. 232; MU; &. I!. SI, « 4066. 1048 WEIT OF XE EXEAT. [§ 328 § 328. Practice in obtaining the writ of ne exeat. The application for a writ of ne exeat republica may be made ex parte, even after the defendant has appeared. 1 The reason for allowing this is. that notice might frustrate the object of the motion by giving the party an opportunity of removing himself nut of the jurisdiction. 2 It has been held in England that the writ 'cannot be obtained until a bill has been filed. 3 It is the safer practice to ask for needed "pending the suit." the writ in the bill, when it is writ may be granted at or contains no such prayer. 5 But it has been held that the after the decree, although the bill And by the English practice, no prayer in the bill was required. 6 The writ must be supported by an affidavit made by the complainant hiniself.'or some person acquainted with the facts. 7 The affidavit must be positive as to the tacts, not merely upon information and belief, 8 except in the case of an account, when the plaintiff may swear that, to the best of his belief, the sum named will be due to him on the balance of the account. 9 A writ was discharged when it ap- peared from the affidavit that the affiant could not have had personal knowledge of the transaction to which he swore posi- tively. 10 The affidavit must be positive as to the intention of the defendant to go abroad, or to his threats or declarations, or those of members of his family or his agents, showing such an intention on his parti" An affidavit stating information from a stranger will ordinarily be insufficient. 12 It is prudent to state in the affidavit that the debt will be endangered bv the defend- ?; :52s;. 1 Collinson v. li 7 Collinson v, IS Yes. 353; Yes. 353; Elliot v. Sinclair. Jacob. 545. 2 Elliot v. Sinclair, Jacob. 545. 3 Ex parte Brunker, 3 P. Wms. :'>12: Mattocks v. Tremain. 3 J. Ch. I X. Y. ) 75. But see Lloyd v. Cardy. Prec. in Ch. 171. 4 See Eq. Rule 25. But see the lan- guage of Lord Eldon in Collinson v. . 18 Yes. 353. 5 Lewis v. Shainwald. 7 Saw. 403. 417. 6 Collinson v. . 18 Yes. 353; Lewis v. Shainwald, 7 Saw. 403, 416, 417. Mattocks v. Tremain. 3 J. Ch. (X. Y.) 75. 8 Rico v. Gualtier. 3 Atk. 501 ; Jackson v. Petrie. 10 Yes. lb'4: Mat- tocks v. Tremain, 3 J. Ch. (X. Y.) 75. 9 Rico v. Gualtier, 3 Atk. 501; Jackson v. Petrie. 10 Yes. li>4. 10 Roddam v. Hetherington. 5 Ves. 91. 11 Oldham v. Oldham. 7 Yes. 410: Collinson v. . 18 Yes. 353: Knight v. Watts. 2 C. P. Cooper t. (N. Y.) 75, 76; Baker v. Haily. 2 91, 95. Dick. 6.32; Daniell's Ch. Pr. (5th is Daniell's Cli. Pr. (5tli Am. ed.) Am. ed.) 1708. and cases cited. But 1708. see McGehee v. Polk. 24 Ga. 406, 412. 1050 WRIT OF NE EXEAT. [§ 328 State of .New York, the thirteenth of November, one thousand nine hundred and twelve. 16 The writ should be endorsed with the amount of the sum demanded written out in words at length. 17 When it is issued against a personal representative by a person claiming a share of the residuary estate, it should be endorsed with the whole amount due from the defendant, not only to the plaintiff, but to all persons interested in the estate. 18 When the writ is endorsed for a larger sum than is due, the court will ordinarily refuse to quash it, but will require the defendant to give security only for so much as is really due. 19 The writ, upon its issue, must be delivered to the marshal. It is his duty thereupon to execute it by arresting the defendant named in it, and bringing him before the court. 20 He has no power to break open doors under the writ. 21 The defendant may ~be released upon giving suffi- cient security to satisfy the marshal. 22 After executing the writ, the marshal should make a return of what he has done. 23 The defendant may move at any time to discharge the writ, either for irregularity or upon the merits, by disproving the charges in the complainant's affidavits. 24 But it has been said by Lord Eldon, that where the plaintiff has sworn positively to the debt •and to the defendant's declarations of his intention to go abroad, the defendant's unsupported affidavit will be insufficient to con- tradict this. 25 If the writ is discharged another writ may issue upon a new 7 affidavit. 26 Upon payment. into court of enough to satisfy the plaintiff's claim, the writ will always be discharged. 27 The writ may be discharged if the defendant gives sufficient security to satisfy the court. 28 The security usually required is 16 lieames on Ne Exeat, 23, 24. 17 Beames on Ne Exeat, 93. 18 Pannell v. Tayler, T. & R. 96, 100. 19 Ibid. 20 Daniel's Ch. Pr. (2d Am. ed.) 1943. 21 Beames on Ne Exeat, 95. 22 Beames on Ne Exeat, 96 , Boehm v. Wood, T. & R. 332. 340; Daniell's Ch. Pr. (2d Am. ed.) 1943. 23Daniell's Ch. Pr. (2d Am. ed.) 1945; Impey on Sheriffs (2d ed.), 532. 24 Gernon v. Boecaline, 2 Wash. 130; Grant v. Grant, 3 Russ. 598, 602. 25 Anisinek v. Barklay, 8 Ves. 594, 597; Jones v. Alephsin, 16 Ves. 470, 471. 26 Gernon v. Boecaline, 2 Wash. 130. 27 Evans v. Evans. 1 Ves. Jr. 96. 28 Roddam v. Hetherington, 5 Ves. 91, 95; Boon v. Collingwood, 1 Dick. 115; Beames v. Ne Exeat, 98, 99. § 328] PRACTICE. 1051 conditioned that the defendant abide by the process and decree of the court; 29 but security that the defendant abide by and perform the process and decree of the court may be required. 30 The discharging order usually enjoins the defendant from bring- ing an action of false imprisonment; 31 and the prosecution of such an action may be restrained by a subsequent order. 32 If the court considers the writ improperly issued, it may direct a reference to a master to ascertain the damages sustained by the defendant, and direct the payment to him of the amount found due by the sureties upon the plaintiff's undertaking. 33 An amendment of the bill which does not materially alter the case does not discharge the writ. 34 29 Griswold v. Hazard, 141 U. S. 32 Quoted with approval by Gross- 200. 281. 35 L. ed. 678, 687. cup, J., in Gooding v. Reid, Murdock 30 For defenses to such a bond, & Co., C. C. A., 177 Fed. 684, 688; see Ibid. Darley v. Nicholson, 2 Dr. & War. 31 Quoted with approval by Gross- 86. cup, J., in Gooding v. Reid, Murdock 33 Sichel v. Raphael, 4 L. T. (N. & Co., C. C. A.. 177 Fed. 684, 688; S.) 114. Darley v. Nicholson, 2 Dr. & War. ** Grant v. Grant, 5 Russ. 189. II Ml IMI llll MIMMIII AA 000 732 577 2