Qlortif U ICam i>rl|flnl ffiibraty Cornell University Library KF 8840.F75 1920 V.1 A treatise on federal practice, civil an 3 1924 020 174 847 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020174847 A TREATISE ON FEDERAL PRACTICE CIVIL AND CRIMINAL INGLUDING Practice in Bankruptcy, Admiralty, Patent Cases, Foreclosure of Railway Mortgages, Suits Upon Claims AgAinsT the United States, Proceedings Before the Interstate Commerce CokMissION and the Federal Trade Commission, EQUITY PLEADING AND PRACTICE, RECEIVERS AND INJUNCTIONS IN THE STATE COURTS BY ROGER FOSTER OF THE NEW YOUK BAE Author of CoiiMENTAniES on the Constitution of the United States, Tbeatises on the Federal Judiciary Acts of 1875 and 1887, the Federal Income Tax of 1894, the Federal Income Tax of 1913 ' AND 1914, Liberty of Contract, Attachment, Removal of Causes, Trial bx Newspaper, &c., formerly Lec- turer ON Federal Jurisprudence at the Law School of Yale University. SIXTH EDITION revised and enlarged IN FOUR VOLUMES VOL. I qHICAGO CALLAGHAN & COMPANY 1920 PREFAGP •Wlieii this work was begun, thirty^seven years ago, its design was a treaitiseiupon Pedeiral Equity Practice alonfe. The sub- jeet>was chosein-becajlise'this was theii territoi^y nnkndwn tomost' menaiberSi of the ibar^' including the -author.^ Diiring the seven years that passedi before .the completion bf thiefirst edition in' one ATolume, hei was I convinced of thfe necessity of including chapters upon.ippacticeiafc coinmoil lawi and error and-i;AppeaL ■ The kind reception giveii; ito; the book by the bench and tar has induced' him in the .suebeeding! editions to include a 'description of the jurisdiction and' practice of the courts of ithe United States' in other, branches ofithe law and. also bf thelprabtice and jurisdic tioai of i the United iStateS' courts, of 'Porto Rico, Ha^vaii, jthei Phil- ippines) I of . the . Consular Courts, the United States Court : of China,) the. coiurtsnof the/iDistrict of Columbia, lAlaska and the Canal Zone,; and in the reiview of the decisions of theiftourts of the: Virgin 'Islahdsl I ., ':■ >■ ■ /i '•'' ' Since, therlastt edition the jufisdictioni and practice of .'thei'Su-i preme Court in reviewing the decisions' of the iState! courts have been revolt(tionized. The distinctions between * writs of error and appeals ! have! been to a large iexteaitiiabolished.'iThei time within which a case can be: brought up, for review' has been short- ened. The, rwar, legislation, the .Federal control lofrailrbads; and telegraph lines, the, questions arising upon their return to 'their owners, the I, broadened exercise i of, the power of iCiongress to regulate Interstate Commerce, the increase of ifederal. taxa- tion and, the Ptphibition , Amendment,! ihave greatly extended the field of Federal jurisdiction,; and ian increase 'dn the size of the book was ; thus compelled. ■ ■.,. , The: book has J3een entirely re-written, and to some' extent re- arranged., A laiige number, of sections ihave beeniiadded. Much; nawi matter has i (been ijinserted; especially upon theiisubjects.of ' railroad reorganizations, of accountings for profits and the as- 1 r ■'.' iii ■.!'.' IV PREFACE sessment of damages in patent, copyright, and trade-mark cases, of injunctions against strikers and upon the whole subject of injunctions. The more important cases, in which bills in equity may be filed in the Federal courts, and those in which injunc- tions are granted to prote'ict jrightsi arising under the Constitu- tion and laws of the United States, have been classified, described and explained. The great powers vested in the Federal Trade Commission upon . its creation and in the Interstate Commerce Comm,isMon. froln time to time since the Irittercame into being, especially during the year 1920, have! made it seem 'necessary to explain for the benefit of the prbf dssion the jurisdiction of those commissions and the practice before them. ■ ; The increased demand of the bar for legal' forms has caused the addition of a large number, which have 'toeeH' used in actual litigation in criminal as Well as civil cases. All this has necessi- tated the enlargement of the book into four volu:mes. ' The author has spared no pains in ^making the work complete. Notwithstanding the demands of an exacting! prof esision he' has worked upon the book every week that he was at his office for the last thirty years, and he believes that' he has examined every reported eaise that has be^n decided by a court ^of the United States. He will, however; welcome any suggestions as to errors or omissions by correcting which he can make it more useful to the bar. Although he has added references to the more im- portant of' the later cases that have appeared while the book was passing through' the press^ he has not included' all that have been reported since 'th6 two hundred and foi-ty-fifth volume of the reports' of the Supreme Court of the United States and the two hundred and fifty-fifth Volume of the Federal Reportek ' The description of the: practice' in equity as it existed before the promulgation of the new rules ' has been retained, because these cannot be adequately understood 'without the knowledge of what preceded them and also in order to make the book useful to lawyers in the States which still retain the 'distinbtion be- tween the practice at common law and; that in ^ 'equity. He be- lieves that the book now contains everything except the local rules and stattites that is needed by a practitioner in the courts of equity in the states' where the practice in eq'uity still differs from thait at common law such as Maine, Massachusetts, New Jersey, Delaware, Kentucky, Tennessee, Mississippi, and Ala- PKEPACE V bama, as well as, in all the courts of the United States and the Supreme Court of the District of Columbia; besides the treat- ment of a number of topics, such as Parties, Service of Process by Publication, Multifariousness, Motions and Orders, Injunc- tions, Receivers, Contempts, and others equally important under Code practice and the practice in all State courts. When he has completed his Commentaries upon the Consti- tution of the United States, of which one volume has been al- ready published, the author hopes that he will have furnished the bar with a complete guide to the whole field of Federal Jurisprudence. New York, August 14th, 1920. DWIGHT FOSTER, FORMERLY JUSTICE OP THE SUPREME JUDICIAL COURT OP MASSACHUSETTS, / DEDICATE THIS BOOK BEGUN AT HIS SUGGBSTION ALTHOUGH HE DID NOT LIVE TO CORRECT ITS FAULTS. TABLE OF CONTENTS VOLUME I. CHAPTER I. OEIGINAL JURISDipTION. .,,.,' Page § 1. Constitutional provisions concerning the- courts of the trnited States, . i. ./;/:':■ ...;. ......;.:; i;;_.....i 1 § 2. Enumeration of the courts of the United States. :......; 2 § ' 3. Original jurisdiction ' arid terms of the Supreinfe Court : 4 § 3a. Practice in the original jurisdiction of the Suptem^ ^ Court . ... 7 i 4. The jurisdiction and terms of the Circuit' Courts of Appeals and the judicial circuits .. .i.^ .\ ;.'!.!.'i ...■..;..;... .i. 9 § 5. Jurisdiction of the District - courts. In general.............. 13 § 5a. Jurisdiction of suits on contractors * bonds i ...... ..;. 28 §, 6. Value of the matter in dispute. In general; 34 §,,7, Value of the matter in dispute in action for dajn^ge? , , . . . i^,, .. . ; 42 i. 8. Value of the matter in dispute in ,iejectineii(:, and othier suits, toi t. [Obtain the possession of Jand. ....,.,...;..... ..p- ..,^. .,.,,,, ,,,f, , ,46 § 9. Value of the matter in dispute in action t(> rticover ppsse^sipn, of ; personal property .' .,..,,.... 47 1 10. Value of the matter in dispute in suits of fpreclosure. . . . . ^ .'. . 4,8 § 11. Value of the matter in dispute in suits to redeem. ' 49 § 12. Value of the matter in dispute in suits to quiet title, i^ ........ 49 § 13^ Value of the matter in dispute in suits' for injunctions. . ...... 50 § 14. Value of the matter in dispute upon taxpayers' bills. . ........ 55 i 15. Value of 'the matter' in dispute upon ci'editOrs' bill's. .'..... . ; . . 57 §161 Value of the matter in dispute upon stockhold'ei's' bills. :'l 1. '. 1 . 57 §17. Value of the matter in 'dispute when there are 'joint plaintiffs'.'. ' 59 § 17a. Value of the matter in dispute in suits on behalf of a class. ... 63 §18. Value of the matter in dispute When there' arc ' joint defendants 64 § 19. Consideratioil of interest' in estimating the value of the matter ■ in dispute — ..;. , .^ . .i.^ ........ ^ 68 § 20. Consideration of costs in estimating the value of the matter, in dispute ....,..,,,,,.,..,,,, i ................. i,,.,, .,t; I 69 § 21. Consideration of ,(|oujiterelaims in estimating, the value pf> the ; matter in dispute..;.;,.., ■ , ■, • • , • 70 ix X TABLE OP CONTENTS Page § 22. Effect of admissions by the defendant upon the value of the matter in dispute 71 § 23. Effect of a defense apparent in the plaintiff 's pleading upon the value of the matter in dispute 72 § 24. Suits arising under the Constitution or lavps of the United § 25. Suits arisi^ fln^l--ihi donWitution'olAhe-WiW States 84 § 26. Suits arising under treaties of the United States 97 § 27. Suits where the parties are Federal corporations. In general. . 98 § 28. National banking asso.ciatixjnfet' . .\ ,](.). J. 101 § 29. Patent and copyright cases 103 § 30. Trademark eases ( . , , .,. , . i ,\ f i .- 107 § 31. Land and mining cases .' 107 § 32. Oases arising under thfe lavps refeting to navigable waters 110 § 32a, Cases arising under the Interstate Commerce Law Ill § 33; Suitjs op judicial aiid official bonds,,. . . . „.,,■■' • • • ' US §34. Suits by and against officers of the United States 119 § 35. Suits by and against receivers of national ,baBkp.t. . ....,.'. . 120 §,36. Suits by and : against . r,^peivej?s of Federal, corporationa, .... v..'' 121 § 37. Suits by and against receivers of iFederal wsprts . j .; . . i . . . i ... '. 122 §38. Sjiits by and againat. trustees in' tbankrupteyUn'. .lu).' J. ...... .■ 123 §'39. Suits arising out of litigation, in the Federalcourts; . ;'ii . . . .. . 124 §40. Controversies between xitifeens of • different 'States; III' fgeiieTal' 125 §41. Parties to the controversy. .. .'.'.:V.'. ...■...'.:..'.'..''.'.;.:.•;'.';. .130' §J42. Formal parties to th*' coiitroverSy. .... .'i'. .■>;>.'•..:..":'.'. r; .'!■':'.'■.' 139 § 43. Unnecessary parties 't^ tTie" controversy. . '.". .V'.'.' ? . '. . : }. .' :.':'!:'. 150' §44. Triistees and 'other ■r'^presentatives. .■.".';'. 1 ! .Vl'.''.' ."..'.'.'.. .'.'."^'.'l' 152 § 4S. Controversies to which aliens are parties. 1 .'.'^T! ..'!'..'.'.'.,".';.'. |.. ^ 155 § 4'6. Dete'fniiiiation oi citizenship of natural persons.'.'. .......... . 159 §47. Corporations' .., ,. . . • . . . . V.V.'.'.' .'.,^'.'. .'. . ..'. , 169 § 48. Unincorporated' stock' companies . and associations. 377 § 49. Partnerships , . , . , 178 §50. Under grants , of different,,States. ....... ., ,.,..,........., 178 §51. Ancillary jurisdiotipn... ....,.,..,,,... .|, ,,.,,..,,.; 180 §52. Property in the custqdy of a^ojilier, cqnrt ,pf eo:prdinate ju4s-.' diction. .iJn general, ,,.,., , ;.;,, „...,., ,....<(.,./ 189; § 53. Property eo^eredj by, , insolyent assignrneiitg,., . ,..;..,. . .;,.■. 198 § 54. Property! in, the custody .of : State courts of probate, j ;,. ; .199 § 55. Property lin the ifustady- of' receivers.;-. ;. . . . . .:.!...i; . ...?. ..... ;i. 206 §56. Coirliroversies 1 between State sheriffs and' United States 'mar- ' shals ; and those arising out of attachments, garnishee process and executions. . .'.';:. . . < . . . ;...;'..'. ; ; . .'. .. . ! . .'.". ....''.:. : ' ' 211 § 57. Effect of jurisdiction of another court over same cause of action 215 §58. Effect' bf the custody, by another court, of the persdii 6f' aii accused in criminal proceedings, or otherwise ......;;. 218 . TABIiE OF C(DN.TIEfMTS i ; XI ■:n I Page §59. Effect o£i the 4u^ody of prbperty' by .tlie State court, where, ithe; • ' ' "' Federal courts exereise- jurisdiction under, the. Ooristaitiution !;-■■■ . andiilawS'iDf'the .Unitea-iStatis;. . . .i.'. .o.,. ; . .'. .■.: :Mi^r..'.-. . V'220 § 60. Property in the custody of another Federal court of Equity. . . . 223 i 60a. Conflicting jurisdictiopi ofi -ihei lil^eder^l courts in bankruptcy and equity 225 § 60b. Conflicting jurjsdjct^os of; IJed)§rp,l)i?piiirtp'iqf admiralty and equity 225 ■I 60o. Conflicting jurisdiction of Federal bounts' in: bankruptcy 'aild i' ■ i! admiralty'' ;'......;•... i.'..i . .jj. .'i^ ..... i ....:. iJjv. . «225 Jf '61. .Limitations upon jurisdictiQB' by '*esidenee.'.li.3tatutory provi- '•'■ sions j.')l...v. .V'.v;.'ui.i.,. . ii'226 ■l'61a. Besidence in suitd by theilTilited .States, .i. .'. . i".'.' . ... . . . ; : 1. li'242 § eib." Bfesidende im silits arising' under t}ie xiOnatitiutiOii ori.laws. io& the i !'■ United States i.-j ... 242 § 610.. .BesidenCe where •jurisdldtibn .depfendslipon diJIrersity bf ditiztn-' i -. ship .'.'.. i. .... 1 . .'ii.' . . 244 §61d. Besidence of- iEOlrpo*a*ioiisi . . ... .........;'. !..•; . . . .^l . i . . . . ..247 §'62. Besidence in patent eases s .v j. . .i . .; v J ..ii.. . . 249' § 62a:' 'Waivbrof ob3eotiotisia.Si to residenefe; . .~. ;.......;.. .254 i§ '63. Suits by assignees-,. .,......:....■,...,;.... J .... .';i ....(.. . 256 ^§€4. Territorial, jurisdiction of tbef. District Cotrrts of the ■'O'mte'd '-. States. In general 267 §65. Terms of the District j(|(pi5^.{of[..■,•■■•'•.•• i iw-.-'. .-iV. • ',i,?7|6 § 66a. Jurisdiction over ceded iterriitoryi. . . , .;;-. 338 § 67. Jurisdiction of District Court of Alaska 342 't<€8. Jurisdietidi'iof. the 'Suipreme .Court ofi.-'theiDiStPietiof • OalumbiB .345 ■g;69. Jurisdiction. of the Court of Appeals of the iDistinifc;! ofuColumbia '347 '§'70. Jurisdiction, of District of Porto Bico; . .i^it,. .^j:. ........ .i... .i;:ii;i,. ."349 If 70a. Jurisdiction of District Court, of the Canal ;Zon^,.. i . ..l . .-j..'!. k351 f 71. Jurisdiction, of. District Court of -Hawaii..!, n,. .•. j : . ; . ixM a.!.' . ';354 §72. Jurisdiction of the Supreme CourtJ;aitdi otilaeiriEcliajafrtsi ofj.the '>« f ipdiiiippine Islands; i'....j . .'. . ; : ..i-: .'.'... J... . j.... . .r... .-:,.i. ; 1855 '§■73. Jurisdiction of 'the 'United iStates CoUrb for China. ^ ....: (:.■»..'. 'jSes §'74. Jurisdiction of the' Consular Courts.. ,...:......:.;...>. ; 867 §^75. Jurisdiction and .practice of the Comirteir.(iei ■ Court .. j. ..... ^... ..'. t8S5 §'76. Jurisdiction . of the .Board ofl-Gfeneial. Appraisers. .;.....'. .i.;. ...-885 §77. Jurisdiction ofi the. tCourt'ofiiCustonife iS^tpealls: .ij . .w . ... jlu . ..i. .;'893 ■|-77a. Jurisdiction of the Interstate ComineJoeiOommiiaB^om. ..;,;.. . 398 § 77bl. Fipetice 'and i rules of r the i Interstate ©orhlmerfce ©ommissiom.-'. ..'466 § 77c. Evidence and depositions before 'the. Interstate . Gommerce-Com- i 11 mission. . i a .... ..i I ....... '. ..'.-. .. i ...'......)..... i-i\ . ii..i . ..ijii493 § 77d. Enforcement of orders of InterstaAei Commerce Commis8|ioh. . 502 § 77e; Jiurisdietion. of the Eailroad Boarfsof.iLaboitt Adjustment. .. .. . i508 § 77f . Jurisdiction of the Eailroad LtibOT. iBoard... 1 1 1 510 XU TABIjE OP CONTENTS S 77gi Jurisdiction of the United States Board of Mediation, and Con- ciliation ;.i....... 517 § 77h. Jurisdiction and practice of Federal Trade Qommissionv 524 CHAPTBE II. JUBISDICTION' IN EQUITY. § 78. 1 Equitable jurisdiction. In general ; . , . , i. ...... . 542 § 79. General survey of the jurisdiction of courts of equity. . ....... 544 § 79a. Who seeks equity must do equity 556 I 79b. Requirement of clean hands 556 § 80. The distinction between law and equity in the Federal courts . . 560 § 81. General rules affecting the jurisdiction in equity of the Federal courts 561 § 81a.< Equitable jurisdiction to enforce rights created, by statutes lof the United States , , ,,,,.. 565 § 82. State laws creating new rights are enforced by Federal courts at law or equity .........'..,....■...., 567 § 83. State statutes cannot impair the jurisdiction nor regulate the practice of Federal courts of equity. , 574 i 84. Sources of Federal equity practice j . 577 CHAPTEEIII. PERSONS WHO MAY BE PLAINTIFFS OB DEFENDANTS IN A SUIT IN EQUITY. §85. General rule as to persons capable of being plaintiffs..^ i580 § 86. States as pllaintiffs ' ...,..■. j. ... ;. 580 § 87. Alien enemies as plaintiffs i ■. j.....^..,.. 580 § 88. Foreign corporations ; .^ .... . 582 § 89. Married women as plaintiffs 583 § 90. Suits on behalf of infants i .'i 584 § 91. Suits on behalf of idiots, lunatics and persons of weak mind. . 587 § 92. Capacity of foreign executors and administrators to sue ' . 589 § 93. Capacity of foreign receivers to sue .1;: . .590 §94. Who may be defendants ........... 592 §95. The United States as a defendant. In general. .....;. .i. ...J. -593 §96. Liability of the United States to suits for: the recovery of money upon contract ;......... ..i... . 598 § 96a. Suits against the United States for torts and upon implied ' coBtracts when a tort is waived ..'■.. 600 § 96b. Suits against the United States for damages for use of and injury to, real property ......;. .i. . 602 § 96c. Suits against the United States for damages for use of, and injury to, personal property .....:....;...... 605 TABLE OF CONTENTS XIU ,,, ' Page § 96d...^ijits agaijist, the United States forMinoney had and received through mistake , , 606 :§96e. Suits against the Uinited States to. recover money paid under ; , duress ............ . . ..:'. 606 §, 96f. Suits against the United States to ^ recover i taxes unlawfully . collected ,...,■, ,.... i.. .-...,. 608 §. 96g. Suits against the Ciommissioner and Collectors of Internal Bev- ;i; enue tp: recover taxes paid under duress. ..... .'. •. . 610 § 96h. ,^uita against Collectors of the Ports to recover duties paid . under duress i 615 ,§96i. Suits against Director General of Railroads and Bailroads under Government control... ii.,.,i.,.:: ■. . 615 § 9 6 j. Suits a,gauist telegraph and telephone .eompauieB.when' under ; Federal control ..,.. ,,.>.;..-;..;;. 629 . § 961^. Suits against alien property custodian.^ ;...;...'<.. 630 §97. District Cpurt practice in suits against the United States ..... . 633 §98.iSu41;s against, the United States for partition k... 636 § 99. Suits by Indians for allotments of land. 637 § 99a. Suits to establisl; the rights of bona . fide purchasers ; of lands' ' erroneously patented , or certified. . ..' 638 § 100. Injunctions against officers of the United, States ^ .:. . 640 § 100a. Injunctions against collection of Federal taxes 645 § 100b. Injunctions against Interstate Commerce .Commission. ...... 648 § 100c. Injunctions against the United States Shipping Board 651 § lOOd. Injunctions against the Federal Trade Commission 651 § 101. Ejectment against officers of the United States 651 § 102. Beplevin against officers of the United States . . . 652 § 102a. Liabili;t3r' of. a foreign government to suit, .i.' .i. . .i.'^ ! 652 § 103. Liability of a State to a suit by the United States 654 § 104. Liability of a State Jo, a, ^uit by another StatQ. . ,.,.,.. ,,.,. . . 654 § 105. Liability of States to ^suits by private persons. . , „.,; . . , .). . . 657 § 105a. Actions at common law against State offijCers. . .,,, ,'.|... 660- § i05b. Suits in equity to which a State is, , an .indispensable party. defendant ••••;. ,,,,,,,...,.,..,.,.,.. ...,;.. .,.; . . j-. • • • 662 i i05c. Injunctions against State ofScprs. . .,. ......,, ,, 664 § i05d. Practice upon applications for injunctions against State, officers ......... ^ .|i :. i .,. , 668 §106. Suits against infants.,. ,., , , 673 §107. Suits against idiots, ,lunatic?, an^ persons of weak mind- ... . .675 §108. Suits against married^ women......................... — . . . . , 675 § 109. Foreign executors and administratprs; as defendants.. 676 ' CHAPTER IV. PABTIES. ' ' § 110. General ^ule as, to parties..., ;...>....• 677 Jill. Parties with no intrtest in the subjeetrmatter ,df the suit 679 XIV TABLE OF CONTENTS I Page §112. Persons who on account of their interest Heed not be made ' parties to a suit in- equity 683 § 113i Cases where the law has furnished a representative. . . ; .' 691 § 114. Class suits .' . . . 701 § 115. Suits against one or more of a class . . .' . '. . . '.' 1 . : . '.'.' .'■ • ' 705 §116. Suits by or against one or more as representative^ of a Slass : claiming' a common right. . . . . . . '.i'iK . .'.."! '. .'. .1 • ■' T. . 707 § 117. Omission of partiea^ not within the ^jurisdiction' of the' court. . . 710 §118. Formal parties who'mfly be omitted when ^ithoiit .;j ,i- ■•.•:•.,.. - 897 ) 151f . Bills to set aside clouds on title 903 ) Iglg. Taxpayers' bills , 906 I 152. The interrogatory clause ■ ■ ;■, ■• ,• 9()7 ( 153. Waivers and offers .' 907 j 154. The prayer for relief 913 i 155. The signature to a bill,. . .,. < .,. ...,. . .; . , 918 i 156. Affidavits .to bills 919 i 157. Bills of interpleader , 920 I 158. Bills in the nature of interpleader 926 S 159. Bills of certiorari ., , 927 CHAPTER VI. SUBPOENAS TO AN^WEli." i 160. Defliiition and fornji of subpoena. ........... ^ 929 i 161. Issue of the subpoena.............. /.^ ,..,... 931 i 162. When a subpoena is, necessary. .» 933 i 103. Personal seryjce. of a subpoena 933 i 164. Service upon public corporations .>... ,.....,....,., 937 i l|S4a. Service upon Federal corporations ...../ ^ ........ . 937 i 164b. Service upon domestic corporations ..\ ...................... . 938 • 164c. Service upon foreign .corporations. ../. ............ .►. ^39 ( 164d. Transaction of business within a State ^ or district. ......... 943 i lp5. Substituted service of a subpoena . , .................. 948 i 165a. Service, |in suits ;-vvliere receivers ihave^ been apjjpinted., 952 i 166. Statutory service of a subpoena......,......,^. ....... 952 (166a.. Oases in which statutory service can be made.. 954 i 16^b. Practice in stat]itory service of a subpoena. v 959 i 167. Exemptions . from service of subpoena or pther process, legal I or equitable, other than arrest...... 966 i 167a. I{etiirn,,a,iid, proof of .service of process. ••••■• ,,, 970 i 167b. Objections to the , service of process 973 Xvi TABLS OF CONTENT^ CHAPTER yn, APPEARANCE. ;; , ■'■■■ Page § 168. Definition 'Of an appearance .....,.....;....:'.. 976 §169. What constitutes an appearance. ...............'."......'.'.. 976 § 170. Effect of an appearance ......".. 982 CHAPTER VIII. TAKING BILLS PRO CONFESSO. § 171. When a bill may be taken pro confesso ' .'. 987 § 172. Practice in taking a bill pro confesso 1. 990 CHAPTER IX. ANSWERS. § 173. Answers in general. 996 § 174. Admissions and denials and discovery 997 § 175. Pleading defenses in answer.; .'. .;. ■; . .i 1003 § 176. Defenses in answer. In general 1005 § 177. The pendency of another, suit ,. .,. . , 1009 §178. Defenses in bar. ' ;. 1014 § 179. Defenses of statutes. In general. . 1015 § 180. Statute of limitations to suits for infringement of "patents. . . 1015 § 180a. Statute of limitations to applications for pa!tents.. . i'. . '.'. .... 1016 § 180b. Statutes of limitations to copyright suits. '. . .".". '.".' 1017 § 180c. Statutes of limitations to vacation of patents for lands. 1018 § 180d. Statute of limitations to suits upon official bonds. l6i9 § 180e. Statute of limitations to suits on contractors' bonds. . .' 1020 § 180f. Statute of limitations to claims 'against the United' States. . . . 1022 § 180g. Statute of limitations to Interstate Commerce t;4se'4 ..'...'..'. . 1025 § 180h. Statute of limitations against causes of actions arising while ' ' carriers' vrere .under Federal control!. .......'.. 1(526 § 180i. Statute of limitations to suits to enforce orders of 'ihe tfnited States Shipping Board '.....■...'..'.. 1027 § 180j. The Employers' Liability Act which applies' ib common car-' ' riers by railroads, interstate or foreign commerce ; 1027 § 180k. Statute of limitations to 'suits under Internal Revenue Laws. . 1027 § 1801. Statute of limitations to suits to recover usury! !'. :.". 1029 § 180m. Statute of limitations to suits for penalties or forfeitures. . . . 1030 § 180n. Statute of limitations to criminal prosecutions '1034 §1860. Limitations in the act to prevent trading with the enemy.' . . . . ib40 § 180p. Statutes of limitations in admiyalty '..'.;.:............'.. 1. . Ib44 § 181. State (Statutes of- limitations ........;.. .......;.':'.'.. 1045 i 18ia. Suspension of statute oflimitatioiis. ...;...........'..'.;'.'. . lti52 §'l82. Equitable laches '. 1. 1 . . ; . .'.li'.: .'. . icisS § 183. Pleading statutes of limitations ......,....: i I". . lb55 i 184. Defense of statute of frauds i'.". . 1057 § 185. Defenses of matter i/n pais 1058 § 185a. Equitable estoppel m pais 1058 § 185b. Defense of election of 1 renfedies.j. .!.(. , . i 1061 § 185c. Purchase for a valuable consideration 1063 § 186. Defense of matter of record or res adjudicata 1064 § 186a. Bes adjudioata by judgments of ,a^ep courts , 1065 § 186b. Mes adjudicata by judgment in matrimonial actions 1066 § 186c. Mes adjudioata by decision of Court of Probate 1 1 .!. . . . .4 1068 § 186d. Bes adjudicata in Federal courts by judgment of State courts. 1069 § 186e. Eeciproeal effect as adjudications of judgments of courts' of '' ' ■ law and of equity ':''.' 1070 §186f. Bes adjvMcata by extra-territorial ■proceedings. 1071 § 186g. Effect as res adjudicata- ot judgments im rem. . .... ..Jo.. ,. . lOli § 186h. Effect of adjudication 'of 'titentar incompetency. 4'.. '.".T. ... . 1072 § 186i. Effect of adjudication 'as tO' custody of a' child.. ....... . 1072 § 186j. Effect of adjudication in'^bankruptey proceedingsi .'. .'v J . . 1072 § 186k. Bes adjudicata by order in special proceedings. .....: .'. .■- .i . 1074 § 1861. Effect as res adjuticata by interlocutory decrees and orders. . 1075 § 186m. Bes adjudicata by di3p;issa)S|and/npn-^uits 1077 § 186n. Effect, as res adjudicata of decisions upon criminal prosecu- tions :'A I .'. '.'J .i 1080 § I860. Direct and collateral attacks upon judgment. 1080 §186p. Matters concluded by adjudication'...'.".'!;'.'..... ....'.'.. i082 § 186q. Bes adjudicata in patent and traie mark cases.' '. . . . IO88 § lS6r. Effect of splitting eause of action. \ 1 .'.;..... . 1092 § 186s. Bes adjuiMeata against privies '..-..:'. .':'. ^ :. . . 1094 § 186t. Bes adjudicata against party in different capacities 1095 § 186u. Beg adjudicata againsti b'en0fl'(fi'ai"iBs. t)f a trust 1095 § 186v. Bes adjudicata against mortgagees. 1096 ^ iS6w. ^es ddjvldidat'a'^^ agimat "cOrporEttions, ' directors and stock- holders :'..'. .y. ......'..'.: 1097 § 186x. Effect as adjudications of proceedings against public corpora- ' tions and against public officers .......';.....,...,. 1099 § isey. Bes adjudicata against persons not parties nor privies . . ..... l099 § 186z. Bes adjudicata in suits on behalf pf a class. . ...... .,. ■ • . • .,• • 1101 J,186zz. Bes adjudicata between joinij jiarties. . . . .'. , . ..... . . -.■ ■,;,.j- • 1102 5, 1,87. Practice upon the defense oi res adjudicata. . ■■■■ ■ • • • ; ;,;,■, '.i- • ^102 §188. Defenses peculiar to patent cases. •■•,•• ■• ;• • ••.,•,,• -c • ^^^ § 189. Proceedings to compel answer 1116 XVlll TABI4E op. CQI^T^NTS :,,M Page §190. Prai9|B,,,q^ answer...... ,,.„,,...., .;. .,,1J17 ^ ]|.91. Signature and seal to answer. , .,. ... . . .1119 § 13?. Oath to answer. ..,.,;.. .■ • ■'• . 1119 § 193. Motions to take answers. , off, |tlie,,file^, ,.-.. .,1121 § 194. Exceptions for insufficiency ,_.,.|.5 ,f .j. . 1121 § 195. Supplemental answers .... ,.„,. .,i|. . ,, . . .' ,.,,...,,,.,. . 11^2 §196. Disclaimers ....,,.,....,... ■. .],\J'. ..... 1123 VOLUME n. ■ : CHAPTER X. ■rtl I . (..".. ....... ..... ' CEOS8-BILL8, SET-OFFS AND GOUNTEE-CLAIMS. § 197. ; Definition and origin of crossrt)iUs.i.|.i. . . .. ...;;. .... ..1 . . .!. . .1125 §198. Counterrclaims .'..., 1130 §198a. Counter-claim^; in pateifitl and' itrade-maaik cases v. ..... . 1141 § 198K Set-offs ,j. .1. . . . ..Ii. , . V. . . . . . , . , .,., 1148 § 198c. Distinction between coBntBiTolajms.. and, defense 1143 § 199. New parties to cross-bills and counter -claims. 1145 § 200. Time of filings sBt-o.ffs,| oountewcJaims and' cross-bills- 1149 § 201. Proceedings upon oro88-(bills.«|. . :■. . 1150 CHAPTER XL REPLIES. ''■ . '.• .i.^^l.. ..... ■ ; .; § 20?. Definition and history 0^,, replies. .,1154 §.203. When a reply. ?liould,be,^led.;, , - • 1155 § 2Q4. Effect of reply. ............ .| 1158 §|205. Frame of a reply ,. . .,,..,... . 1159 ■ CHAPTER XII. AMEND:J(IEN:TS of WEITS,, PKOOi^'SS A.ND PLEADINGS, A^ LAW AND IN ilQUl'TY^ ., , §,^06. Amendments in general....-..................,...'........ 1160 § 207. Amendments of writs and process. ...'.../. 1 .':'.. .... , ] . . .... 1162 §, 208. Amendment of pleadings at common-law .."..............,.. 1163 § 209. When biUs in equity can be aihiended ...'...."..'.... 1163 § 210. Porm of amendment of ".a'bill.'i .'. .'.'.'. . ... .". . . \' . .V.'l . : 1166 § 2ipa. Effect of amendment. In general ..'.... li67 § 2lQh. Time from which amendment takes effect ; Il68 ' '■ 'i TABljE 'Of CONTEiNTS XIX />: UMT'i/. li 1 Page § 211. What amendments may be made to bills in equity and declara- .■ i / .' : tions/atrcomaioni'lawU. ^j. .-.'■.'/.I'J J.'.i.Ki . J.; .' :i .::'■'. j^. ..■■j. jl. .p.171 § 212. Amendment >by/ jJldadHfig! /ilitiftans ^•SiliWei[u«!ii't /to the filing of ., , -; the bill , . . 1176 §213. , Pf flceQ(^ifigs, upon ,an ^unejuded biU---,- ..,..,,,..,.....,..,! 1178 I 2J.4. Amendment of answers iaii,4ipleafl, ...,...,., i 1179 ^215. Praetif^', in obtaining, jlqav^, to, amend. ...,....,, ...;...; 1182 m| 215a. Amendments upon appeal or error .>j- i ^ • ■ • • i ^ • ••;• . •!• • r 1184 ^ 215b. Beview of rulings, on a,men,dpijents, ... .,.,,.........,,.;.......: 1184 - ' CHAPTEE ■XIII;'' 1 '- " ' ' '" ' '' • j u.! , .ii'.,.i I.. .J. < I.. 1,1 '.Ml.,, .„;,■ .'■( ABATEMENT, BEVIVOE AND SUPPLEMENT AT LAW AND IN EQUITY. ! .' ■ : r i i ■ i / 1 ; " ; § 216. Abatement 1187 §217. Effect of abateriifent;.. !.*.:■'. .•.>.;.'.':'.■' 1194 § 218. When a suit may be revived 1196 .1218a. Effect of irevivor. j. ..; i .t;:j :...... 1197 ,§ 219. Who may revive a suiti . . . . ... ... j ...... i ; < .'. . . ; .'. . .1198 ^§820. Manner of revivor, at common law -. ; . . . : :%../. . .i.ll99 §821. . Manner of re\!iyor in equity;, i In geneial. ..;. ..n ...'..■.;'. .'.'1202 § 222. Definition of bill of revivor ajid parties t0"the same. : ...•;'. . .11204 ■§i223. Erame of bill of revivor .-. . l'.'ji.'. . . . .j: j .' . . ..;120S § 224. Proceedings upon bills of revivor — ..... ;ii . iu . . ... ; .i. .... 1206 ,§i225. Bills in the nature : of rbiUs of revivor. ' In geiidral,! . t .■ ..... ... .1 1209 §226. . Erame of bills in the. nature of bills of, revivor and proceed- ,'.! ings upon them .-: ji.'ii .;j'..;';i. ...j. ^i.'r. ..i ..:... '1.211 § 227. Manner, of revivor. upon. appeal or error. .,. jv. . ; . , .... .'u'.!. . .^1211 § 228. Bills of revivor and supplement 1214 § 229. Supplemental bills i^, the natur? of bills of revivor 1215 § 230. What renders a suit ' defective'. '. ....'}. ! -. 1215 § 231. Supplemental bills :•:•;•, 1^18 § 232. Parties and frame ol a supplementailbill 1226 § 233. Proceedings upon supplemental bills 1228 §■234. Bills in the nature of supplemental bills. ' In general. ...'.'.. . "1231 §235. Frame of a bill inthe nature of d. Supplemental bill. :.:'.'.'. ..'^1233 § 236. Proceedings upon bills in the nature if'siipplemental bills'.'. . . 1234 II _, J , ■_ ^CH^PTEII 3ttV.\, IMPERTINENCE AND SCANDAL.' '"" = |237. Impertinence r'.'v. .-. . . : :..'."..... 1236 § 238."'Seailda!l ". . I' : . • •;'•■'■ l . i ........... ; .•.'.'. . . ^1240 § 239. Striking out scandal and inlpertinence . . . . . i'!4'. . .'....'. ..". . . 1242 XX TABLE OP CONTENTS CHAPTER XV. MO,TIONS TO MAKE PLEADINGS MOEE DEFINITE AND CERTAIN AND, BILLS OF' PAETIOULABS.' : Page I 240. Distinction between motions to make pleadings mOre definite and certain and bills of parti'etilars . .. I 1245 I 241. Motions to make plealdings more definite alid certain 1S4,? § 242. Bills of particulars 1248 § 243. Practice upon motion for bill ■ of particulars'; . . . . ; 1250 § 244. Eemedy for failure to give a bill of particulars 1251 § 245. Form of bill of particulars. ..^ ;|.-. . . ^ j .'; 1252 § 246. Amendment of bill of particulars 1253 CHAPTBE XVI. MOTIONS AND PETITIONS. t §247. Definition and classification of interlocutory applications, .i. ,. 1255 I 248. Definition and classification of motions .'. . . 1255 8 249. Motions of course ..../.. .1255 §250. Special motions without notice.. '. 1256 § 251. Notice of motion ' 1257 § 252. Argument of motions ■. 1262 §253. Petitions in general............ i . . . . . 1265 § 254. Form of petitions and practice' upon them : .'..;............. 1267 § 255.' Orders . . ... ....;,... ; . .:. . . ......:...,. 1269 § 296. Judges who may grant orders i 1277 §257. The clerk's office... 1278 dHAPTER XTli. INTEEVENTION8. § 258. Interventions. , In general .^1283 § 258a. Intervention in .class suits < ■ ■ • 1285 § 258b. Intervention by Jjondholders. ; , 1287 § 258c. Intervention by stockholders 1291 § 258d. Interventions by general creditors 1294 § 258e. Interventions of persons eiitilled to share in a fund held by the court . .. ., 1296 § 258f . Intervention by persons interested in property the title to which is in dispute , 1296 § 258g. Intervention by persons interested in, or with a lien upon property which is the subject of litigation. 1297 TABLE OF CONTENTS XXI I Page i 2581i.,:Interventioins pro interesss suoi .;. .... . .1... . ii. ..«■.!.■ ; . . . 1298 i 258i. Intervention under the pure, food and drugs act. . . .r. . . :< 1299 i 2S8j. Interventions in patent litigation. ..;.;'.;.....; ;...;... 1299 f258k. Intervention in suit under the interstate commerce law. ...... 1300 ! 2581. Interventions in' suits on contractors' bonds; :..... ...I'SOO i 258m. Laches 'barring intervention;'. 1301 i258n. Interventions by the United States, Statesy and cities. ...... 1302 ! 258o. Effect of State .statutes upon intervention. ..U'luij ; . . . . 1304 i259. Petition for, intervention j ..... . ..:. . .: . . ......'! 1305 r 259a. Notice of application , for intervention . . j i . ; 1309 ( 259b. Opposition to intervention ; 1310 i 259c. Hearing upon application for intervention. ; . .'. . j. .:.;,'. ; .'. . . 1311 (259d. Practice upon intervention...,., l ...>.,...'..'....•;';.;..!.. . 1313 i 259e. Appeals from orders upon inte'^ventionsi and their review' by writs of error :,;.,;.;.;...;>. '.!..ii.' 1314 ( 260. Bights of intervening, complainants. .;i; j .... . 1316 i 261. Eights of intervening defendants ; 1318 CIJAPTER XVIII. ;, . , : INJUNCTIONS." ,,',',! 5 262. Definition,, elas&^oation, I iand objects of injunctions, v..; .''.'..!.; 1321 J 263. Injunctions to enforce trusts and other purely equitable rights 1321 §264. Injunctions to restrain ' corporations ' firoifi' violating 1 their; -' charters a . . I'l . ...... .■■. ; 1 0. . . • 1323 ] 264a. Injunctions to protect corporate franchises. ......;'....:..'... 1326 S 265. Injunctions , to, enforce the 'specifip performance of covenants ' and 'Other, contracts affecting land. . ...;., ;'i 1. . '.<. . . 1331 \ 266. Injunctions! tO'prevent a multiplicity: of"Suitsj'; .; . . . .".'. . .'. . . 1332 5 267. Injunctions ;to prevent irr^jarable. injury: for which the remfedy at law lis inadequate. In general. . ,. ;. I ......... . 1333 \ 268. Injunctions to stay proceedings in other co,urtsj In general. . . ■1334 i 269. Injunctions to stay proceedings! in. Federal courts :. . . . 1336 \ 269a. Injunctions against patent litigation 1338 (270. Injunctions ; to stay proceedings in State courts.;;.;.. 1340 ( 270a. Injunetionsi to protect jurisdiction of .Federal courts. .;..... 1346 i 271. Injunctions against criminal proceedings. ;;'. ...'.......;.... 1349 i 271a. Injunction against the enforcement of municipal ordinances.. 1351 (271b. Injunctions against assessment and collection of taxes and ; betterments ..:....:..:< , .'.....iJ... 1352 t 272., Injunctions to restrain the (alienation of property. .;. 1. . . 1356 i 273. Injunctions to prevent iwaate; ..;....;....... ...;- 1357 i 274. Injunctions to prevent the continuance of ,a' 'UUisanoe ..... f . . 1359 XXll TABLE OP CONTENTS Page § 274a. Injunctions to enforce prohibition of use of intoxicating" ' ' liquors .;. ...:.....;;... '. L . .'.'.'-.'J . . . 1'361 §275. Injunctions to restrain trespass. .. ,i ..-. ^ : . i . /:'J. . .' 1363 §276. Injunctions against strikers. .;. .-.i.^ ...;: .i ..: 1366 §276a. Eestriction upon such injunctions by the Clayton Act. . ; . .■. . .' 1373 I § 276b. Injunctions under the Anti-trust Law against strikers .. .^ . J . 1378 §i276o. Injuncitionsi to prevent obstructions to interstatecommeroc. . / 1379 i§.276d. Injunctions under the Act of Aug. 10^ 1917, for the conserva- ■ I I tion of supply and control of distribution of necessaries. ... 1383 I 277. Injunctions to restrain the infringement of paitents. . .■ i 1385 1278. Injunctions to restrain the infringements of eopyrightsi ; .'. .,. 1399 i§ 279. Injunctions to restrain the unlawful use of trade-marks. .... ."1406 § 280. Injunctions to prevent the opening of letters .■. . i i :. .: 1409 §281. ' Injunctions to compel the performance or prevent the breach' of contracts not affecting land 1409 § 281a. Injunctions to prevent the revqeation or refusal of a permit' ' or license iUi. u.: ... .;;w^. .;;....•;..'.;'...... '1411 § 282. Injunctions to compel the delivery of personal property torti- ously withheld 1412 § 283. Injunctions authorized by statute 1413 § 283a. Injunctions to restrain enforcement 61 warrants of distress. . 1413 § 283b. Injunctions to restrain comptroller of the currency 1414 § 283c. Injunctions to enf orce"^ orders of the United States Shipping Board 1414 § 283d. Injunctions to regulate coal mining or the operation of 'coal '' ;i : mines; i: . . . 1416 § 283e. Injunctions /to protect' political rights: ; i . . '. 1416 § 284. When, injunctions. wUl. not issue i 1418 § 284a. Injunctions against slanders' and' libels. 1421 § 285. Distinction between' the judicial writ and the writ remedisU. . 31424 § 286. Distinction between mandatory ' and prohibitory injunctions . . 1424 §287. Distinction between provisional and perpetual injunctions. .. . 1426 § 288. Distinction between common and special injunctions. ...:... 1427 §289. Time .and place of applications for interlocutory injunctions.. 1428 ,§ 298. InjunctionB no* prayed' for in ithe bill. . , ■': ; 1429 §291. Special practice of the; Federal courts, in the issue of injunc- tions ; ;....; ' 1'430 §292. Notice of application for interlocutory injunction. ;.. 1433 §293. Affidavi'ts upon an application for an iujunetion ;';;'. .IM.'.. . . '1436 §294. Eules of decision upon application for interlocutory in June- ' i ' tions ' ..' .;. I ...- ..;.....'..'.. ;.ii'. .■. .; 1438 § 295. The writ of injunction. .. . !'. ^. . . . . ; . .'. :'i >. . : 1442 § 296. Dissolution and modification of interlocutory injunctions. . . . 1446 § 297. The imposition of terms upon the' 'issue, denial, dissolution, or continuance of an injunctioni and injunction bonds.... . 1452 § 298. Collection, of dnjunction bonds. ':'... 1457 TABLE OF .CONTENTS^ XXlil , I . ; i ' I : ' ^^s« i 299. Perpetual injuEctions 1463 ) 300. Appeals from injunction, orders. .... > i.;..; .;i . .;.■,;:] 1464 CHAPTER XIX. EBCBlVERS. ' § 301. Definition of receiver 1479 § 302. When receivers will be appointed. ; . U .' 1479 § 302a. Appointment of receivers of property of corporations 1483 § 302b. Extension of receiverships. . .■.'.'.'. . '. '. .' A:'. .' 1 .'.'. .J V.'.' .'. '1489 § 302c. Receivers of National Banking Association 1491 §303. Rules regulating the appointment of receivers •..*..... 1499 § 304. Ancillary receivers ^ ■ ■ • 1500 § S'OS'. Terms upon the appointment of receivers '■: i ..':.■.'. . 1508 § 305a. Preference in foreclosure suits and in the adniinistration df reeeivershipa .....-...' .'. ; .... 1509 § Sdffb. Practice upon application for such prefereirce.'. ...... 1. ;.. . 1532 §306. Property over which receivers Uiay be appointed'.'..!'.'..'"!'... 1535 § 307. Powers of receivers in general ...'.'. ..'....... 1^41 § 308, Powers of receivers of railroads ; 1547 § 309. Receivers ' . cjertificates., . ..,,.........., ^ ........... . 1552 §310f Ad,vie^ to '.rece^pfs,. .,,,. ..^;,,. ... . . .','■ !_.,. •, ;. -^jf, -^ ■,;,• -;.-; ••.; • f^61 § 310a. Ileorganizatio,u of ,c,orppra.tif>ns, whose, assets are. held w rp- -.1 ceivers ;..,... ...y — •:•,;,-■• 1563 §311. Litigation by receivers ,1569 §312. Duties of receivers r!----, r ; -i-m-,,-,- • »;; ' • ••;••:-•• ^^^^ § 313. Liability of a receiver. , , .,,..,..; . . .,,.(.,. ■ i ■ • ■; ,f.,.,;- -,■; • • •,•,!• ; ■■■^- 1584 § 314; Suits against receivers. ..^^ ,|. , ,^,, . .,.,. . . . , ..... 1590 § 315. Manner pf applying, fpr t}ie appo^tmen); pf',^,, receiver,. ^.^..^ . 1598 § 316. Who may apply for the appointraent of a r,eceiyer. , . ... , . .... 1602 §317. Manner of the; appointment pfjjhe Teeei);er.. ..^ ............ . 1602 § 317a. Disapproval of the appointment of the receiver............. 1603 §;318. Who should be appointed, receiyer,,. ,....,.,„...,....,... .. 1603 §319. The receiver's security .,,„.,.■„..,..,,,,.,.........,.. .,. 1607 §320; Proof of claims against receivers,,.,....,,.,.,,.. 1609 §321. ,Rieceiyer;'s accounts 1616 §,321a. Selection and compensation of receiver's counsel 1618 § 322i Compensation of recpivers. ............ ., ,..'........' 1620 §323; Remoival of receiveijs,, '■...,..,. 1624 § 324. Discharge of a receiver ,. , . . .,. 1626 § 325. Appeals from orders appointing receivers 1631 XXIV TABLE OP CONTENTS CHAPTER XX. THE WRIT OF NB EXEAT BEPUBLICA. ' Page § 326. Definition of the writ of ne exeat repuhUca, and when it will issue , ,.;, , ;...,. ,... 1633 § 327. Against whom the writ will issue 1634 § 328. Practice in obtaining the writ, of we exeat 1636 CHAPTER XXI. EVIDENCE AND DISCOVERY AT LAW AND IN EQUITY. § 339. Evidence. In general 1640 § 329a. Judicial notice 1640 §330. Admissions 1647 §331. ' Constructive admissions ..,., . ..., — 1649 § 332. Documentary evidence. In general 1650 § 332a. Proof of handwriting 1655 § 332i). Proof of messages by telephone 1656 § 3|32p. Proof of telegrams , . 1636 § 333. Evidence of books and papers in the Executive Departments. I In general '..'."... 1657 § 3t33^- Evidence of books and papers in the Treasury Department T. . 1659 §333b. Evidence of books and papers in the Post Office Department. . 1664 § .3.33c. Evidence of tooks and papers in the ' Department of the Ul- terior. In general ; 1666 § 333d. Evidence of books and papers in the Land Office and as to land grants and tax sales . 1667 § 333e. Evidence of matters in the Patent Office.' : . 16T3 § 333f . Copyright records : . . : 1676 § 333g. Evidence of bobkd and papers in the Pension Bureau and pre- suiriptions in pelision cases '..::.....' ; . 1677 § 333h. Evidence of proceedings before the Interstate Commerce Coiii- mission '.......'.'... 1678 § 333i. Evidence' of official correspondence. . . . ; ; 1682 § S3^j. Evidence of proceedings of Congress..:.........'....;...... 1683 I 333k. Evidence of Federal statutes'.'. .:.;........... 1683 §3331. Evidence of books and papers in consular offices and consular certificates . . .'i . . 1685 § 333m. Evidence of State and Territorial statutes and public records 1688 § 333n. Evidence of the records of the State and Territorial Courts'.'. 1689 § 333p. Evidence of the records of the Federal' courts 1691 § 333p. Presumptions in suits under the anti-trust laws.... ....... 1694 TABLE OP CONTENTS XXV ;!■;-, ■.):■!■'" I / :' 1 Page § 333q. Presumptions under the prohibition law 1695 § 333r. Presuipptions as to, citizenship, expatriajtion, . and , ,unlawful ^ entry into the United States 1696 |333s. Presumptions upon j the assessment and ofilleotf oil , of ., .duties , , upon imports ....',,...,.,.,,.,..,.,...,....,.. .. ,„„.i,'.|. . ., ;i;701 § 333t, Prepuniptions upon the as^essmpnt .andpolleotion, of : internal;. .; revenue ;,,. ... .| ,. .,. . ,,.,.j .... 1702 Ji 333u. Presumptibns upon distress sales, . .| i . ...i ..,,,> ..... 1704 § 333v. Mispellaneous statute.s as to .burden of proof ia,nd prima, faciei •■ •_ evidence .:■.■.: 1705 § ,334. Definition and use of aii affidavit. ; . . . ..,..,;.. ..... 1709 .§ 335. Manner of verifying an affidavit. . i . . .'j ■ .-.;•. . ; . . . 1709 i'§336. Title of an affidavit. . : . .... .v^i . . •. . ,; . . . ..'.v. .... . . . .... 1710 § 337. Form of an affidavit, .i. . ...... : ■. .... 1711 §338. Execution of an affidavit. .'i 1713 § 339. Competency of witnesses in civil liasefs.". ...'........:....... 1714 § 339a. Self incriinination .:..■'."..:..'..;'..........'..:.': :.... 1723 § 339b. Statutory immunity and its effect . . ^ 1729 §340. Subpoena ad testificandum 1733 §341. Subpoena duces tet?ltm.',.'. .,.i. ; .i. .1. ...U. .•; 1736 § 342. Service of a subpoena ad testificandv/m 1740 § 343. Compelling a witness toi -.testify ..! j i ^ , 1743 § 344. Testimony taken in equity which may be used in other courts 1746 §345. Bills to perpetuate testimony. ,,.,,. ,i ....,..,...., ..,,,,.,...,.. .,1746 §346. BiUs to take tpstiraony de,Jb^ne, esse. ....,., ..,,.,..,.,.,;...; 1.75,0 §347. Bills of discovery ...,..;,.,.>.........,., ,.,.i........ 1750 § 348. Discovery in equity., i ..;. ....i. ...-.i..; ,,., ., ,:. . .r. . . . .1754 § 349. Inspection in , equity,. . . ;';i. ; . . . _: j 1766 § 3S0, Inspection at common law. ..... ..:. ...j. .^■. .,.'.'.. . 1768 § 350a. Testimony taken in another' suitv .;...... ....^ . I'i . ..'.-i. . .1770 §351. Testimony taken before a' cause is at issue.;.....'.'..'!.'.'... 1771 §352. Testimony taken within the jurisdiction of the court" after a' cause is at issue 1772 § 353. Testimony taken after a cause is at issue and beyond the jur- isdiction of the court. :..,.'.:■.!.'.!.,'. .;^; 1779 §354. Depositions de bene esse under the acts of Congress 1780 § 354a. Notice of taking deposition. . ...;. i . . .! 1786 § 354b. Proceedings upon the deposition 1788 § 355. Form of deposition .jund^r acts of, Congress 1791 § 356. Commissions issued' uiidei; a dedimus potestatem 1795 § 357. Proceedings under a dedimus potestatum , 1799 § 358. Letters rogatory • • •; 1803 §'359. Testimony taken in > the manner prescribed by the State law 180.7 XXVI TABLE OP CONTENTS CHAPTER XXII. DISMISSAL OF BILLS BEFORE A HE ABIN&. ' V' ,.i .?^g« § 360. Dismiaaal of bills beforie a hearing. In general. .... . .'.' .... 1810 § 361. Dismissal of bills by the plaintiff. . . 1810 § 362. Dismissal of bills for want of prosecution or for failure to per- ' feet or revive the suit ; ; . . . 1815 §'363. Dismissal for want of jurisdiction...... ;;.... 1817 §364. Motions to dismiss because the complaint shows no cause of action j ...... . 1824 § 365. Demurrers under the former practice .'.; ... ..;.,.... 1827 § 366. Admissions by a motion to dismiss ... .<^ .......... . ■... . ..... 1827 § 366a. Effect of conclusions of law, upon motions to dismiss ; . . . 1829 § 366b. Effect upon a motion tp dismiss of facts of which . the court takes judicial notice .......,■ 1831 § 367. Classification of demurrers. .,..,. , .,„. ... . . 1332 § 368. Election and transfer to the law side of ths;cpurt, . . . . ..... ... 1^36 CHAPTER XXIII. THE HEARING. ! 369. Bringing a suit to a hearing. .. 1841 \ 370. Judges who try cases at law and in equity. 1843 f 371. Challenge of a judge for interest. ......'..;.. .j . ..;..:..... 1846 i 372. Challenge of a judge for prejudice. . .Ji. ... j ;.j :;'.!.. .'1847 i!373. . Arrangement of calendar. .'.. , . .;. . . :1851 ii374. Manner of hearing a cause '.....:.... 1852 i.375. Bules of decision upon a hearing. j . . , .1853 i,376. Objections whiqh canpot be made at "the hearing. , 1858 i 377, Action of the cqurt, upon a hearing . . ; 1859 CHAPTER XXIV. ISSUES AT LAW. i 378. Power of courts to direct issues at law. '.':'■ ■'. .... 1863 i 379. Matters concerning which an issue' is directed. ............. '1865 i 380. Time when an issue is directed ; .J .'::.. . .,'. . . 1865 i 381. Manner of trying an is.sue ........;;. i.!;-. . . . 1866 i 382. Effect of the. finding of a jury upon an issue. . . .i. .,«... .i. . . 1868 i 383. Proceedings after the trial of an issue 1870 , TABLE OP CONTENTS XXVll CHAPTER XXV. PROCEEDINGS IN A MASTER'S OT'i'ICE. .•.1 ..,. . .'..;' • ' M ^^^^ § 384. References to masters. In general ,. . X871 .J. . . .'.II ;,, -■, 1 M'l 1 1 '" .lit § 385. Who may be appointed master , . 1873 § 3'86. Bringing on a reference .............'.'...'. .', ,. 1875 § SS7. Parties entitled to attend a reference before a master 1876 § 3§8. Proceedings beforie a master; In general. '...'.'...'...'...."... 1878 § 388a. Instructions to masters 1880 §389. Proceedings upon accountings. ^ 1880 § 389a. Accountings of profits in patent cases 1885 § 389b. Rules for computation of profits, and burdens of proof upon patent accountings .' 1889 § 389c. Deductions from profits in patent cases 1897 § 389d. Interest upon profits ...;..;. 19(i0 § 389ie. Assessment of damages for infringemeiit of patfetits. ...'.'.! . 19tio §'38Sf. Appointment of liability betweent'i'nf ringed. .".' ':'.'.. 1910 i'SBSg. Accounting for profits in copyright cases. . . .V;';'. '. '. . 19ll § 389h. Assessment of damages in copyright cases. .'.'.'.';.'..'.'. .1'. .. . 1913 § 389i. Accounting of profits- and assessment of d&m^ge's in' suits to ' ' ■ restrain infringements of trade-marks;;.;...'..;."!'...;'.'..'. 1919 § 390. A state of facts and claim'. . . ; . . ; . ..!.... .'. . ; ; . . .!.'.".'. . '. . 1921 §391. Evidence before a master ; ..;..;'.;;'.'.;... 1923 §'392. Master's report '.';.;...'....:...;;;;.;'...'..;.... 19^5 §393. Exceptions to masters' reports:.."......'....'.. ..:.... Iisi26 § 394. JndiiJial' sales by masters and other offidbrs. .'.1 : : 1931 § 394a. Proceedings after a sale and before confirmation.......... 1945 §'3S,4b. Practice upon the oonfir'iiiation of 'a sale.;..'.'.'...;'.';;..'... 1946' §394c. Effect of cioflflfmatioii of a sale...'. ..;'.'.' ..l'.'. . 1949 § 394d. Setting aside sale after confirmation.':..'.'.'.;';'....;;;;;.... 1*950 §3-940. Setting aside sales because of' fi'laud in ' if eortfaiizatioli ; . . . . . 1953 § 394f . Collection of purchase money' sit a' judicial safe .h\ .■.:': .\'.'.\ . 1957 § 394'g. Claims and lienS 'against purchaser aiid property sold at ' a ' ■ judicial sale ......;........;. i ...... 1 .......;..;...'.•■ 1958 § 394h. Remedies of the purchaser upon a ' judicial' sale ...:.;. 1962 |'394i. Effect upon judicial sale of reversal of decree. . ; ... . ; ;'. . 1'9'64 §395. Compensation of masters ;..'.';.;:.'. I'964 CHAPTER XXVI,. ; DECREES. . ..: • i396. Definition and classification 6f decrees. ; .•; . .;;;.... ; . . ; : . ; , 1968 i'39'7. Final and interlocutory decrees; . . : .'. . 1. ; .;......;...; 1968 i'398. Decrees in personam. 1971 XXVlll TABLE. OP CONTENTS I Page § 399. Decrees in rem 1973 § 400. Absolute and conditional decrees 1974 § 401. Decrees nisi 1977 § 402. Decrees in the nature of decrees ,nisi., 1981 § 403. Time of entry of decree. . ,........,...., 1982 §404. Frame of decree 1982 § 405. Motions at the foot of a decree 1989 § 400. Eurolhnent of decree 1990 CHAPTER XXVII. COSTS. i 407. Costs in general 1992 (408. Costs at common law .,•■•■ • • 1992 i 408a. Costs in criminal proceedings. 1997 i409. Costs in equity , 1998 i 410. Costs in patent, copyright a,nd tradema;rk eases 2003 i 411. Costs, in admiralty ,. 2006 i 412. Costs upon error and appea}. .......,,.....,..>.. .,. 2010 i;413. Petitions for leave to sue in fprma pauperis i 2013 i:414. Classification of costs. ....... i . .; ,; 2018 i 415. Costs as between party and party , , . . 2018 i 416. Attorney 's fees. In general t . 2018 i 416a. Attorneys ' fees under, AntirTrust , and Intersta,te iGommej^ee ; laws ,.....,.,. ,..,.■,, ,.,. 2020 i 410b. Attorneys ' fees under copyright law 2021 i,41Qc. Attorneys' fees for collecting war irisk insurance... i 2D22 U16d. Attorneys' docket fees 2023 I 416e. Attorneys' fees, upon depositions. .: . 3026 (•417. Fees of clerk of Supreme Court 2028 I 417a. Fees of clerk? of Circuit Courts of Appeals 2031 i 417b. Fees of clerk of Court of Customs Appeals. . . 2034 i 417c. Fees of clerks . of District Courts ,,..,. l . 2034 (418. Marshal's fees ...... ,.,. 2041 f ,418a. Fees of United States commissioners .,..., ,.^,,, . . 2049 i 418b. Fees of masters, referees, commissioners, examiners, notaries, auditors and consuls 2052 i 418c. Stenographers ' fees ■ . . ; .........; 2053 1 419. Witness fees 2055 I 419a. Disbursements for copies of ' papers 2060 i 419b. Bills for printing and lithographing 2061 !.419e. Premiums paid surety companies. .....(. 2063 i 420. Miscellaneous disbursements 2064 1,421. Costs out of the fund , 2066 TABisk OF coiJTEiirTS xxix ^^^^ i422. Costs as between! solicitor and client 2071 i422a. Attorneys' liens ....'. 2074 1423. Taxation of costs :. ................. I ! :' 2076 i 424. Appeal from taxation of costs: ..........' :':'.'.'.".'. .'.'. '. . . .'..'. . 20?8 [1425. Security for costs ':;'.....'.;..';...... 2079 , QHAPTER ,X,XYIII.i ; . ENFOECBMENT OF DECREES AND OEDERS, INCLUDING EXECU- TIONS, AND WRI'TS OE POSSteSslON ANi (36i^TEMPTS. § 426. Enforcement of decrees and orders. In general 2084 § 427. Executions , 2084 §428. Contempts . j. ,....,..,.....,.,. ,.„..,.,.,..., 2096 § 428a. Contempt by i)ubUcati6n. . '. : .'. . .''. . I ! .' ; ; .' . .'.'. . .' '. . 2105 § 428b. Perjury as a contempt 2111 §428c. Contempts in disobedience to orders by persons not parties.. 2114 § 428d. Notice of a decree before puaiifehmleht for its violation 2116 §429. Courts in whieli contempt proceedings should be instituted.. 2117 § 429a. Time when contempt proceftdings should ' be instituieid ..... . 211 S § 430. Distinction between criminal and civircontempts 2119 § 430a. Practice in criminal] eontemp|;i proe^^iji^g^ 2123 § 430b. Contempt proceedings under the Clayton Act to punish acts which constitute criminal ' off enses . .-.'..'.'.. .K\''.' 2137 § 430o. Contempt proceedings under Prohibition Law. 2140 § 431. Civil contempt proceedings 2141 § 432. Writ of attachment against f he person . . ! 2148 §433. Execution. of writ of a(t)taphijient|. >..,,,,. .;.] 2149 §434. Review of commitments for contempt. In general 2152 §435. Review by habeas corpus of commitment for contelnpt 2152 § 436. Review by writ of. error of /coijimiitirieat if or contempt 2154 § 437. Review by appeal of commitment for contempt 2157 § 438. Review by revi'soty petitions of coninlitments for contempt in bankruptcy proceedings '■ 2158 §439. Sequestration ,. y ...,.....:...,<.,. j j., 2159 § 440. Writ of assistance and' writ of possession 2160 § 441. Action by the court itself. <;..'.', i.Ui .,.;.! ,. 2161 § 442. Bills to carry decrees into execution 2163 /// .• ^i i ;;,■!! i CHAPTER XXIX. CORRECTION OF DECREES OTHERWISE THAN BY APPE.A.L. § 443. Correction of decrees.'. In'.geneHV.'.L.l.'. ■• 2166 §444. Amendment of decree without a rehearing...... 2167 §445. Petition for a rehearing '.'..'.'.::'.'. 2171 XXX TABLJ}, OE .CQNTENTS, Page §446. Supplemental bills in the, nature of bills of review. .,..i,,. i . 2177 §447. Bills of review ..,.., ...t.,,'. . ,2179 § 447a. Bills of review for errors of law - . , - ..r; . 2179' §^44;8. Provisions peculiar to bills of. review , for fliat^ers of fact ; , u-,,(. newly discovered ,.., »•-. . .2184 § 449. Provisions common to all bills of review 2188 § 450. Bills in the nature of bills of review 2194 §451. Bills to impeach decrees 'on' accbiint of iraild, accident or mis- , .take ,,.,. , ...,., , . .^.., ■^,y,;yfr ■ I- -^-T ,,..,-.,.,,.,.,. .,.,.; .,. . . . v,r ,■:■ ^W5i § 452. Bills to suspend, or^ avoid, the .opej'^tiop, pf,,dep?ees or judgiu^nts 2198 VOLUMES III AND IV. -■■■■■■ CHAPTER. XXX. PEACTICE, AT, COMMON, LA W!,J^N 91X11-^, ApTT^ONS., CH](IPTER XXXi. '■ PEACTICE IN. CBIMINAL CASES. . CHAPTE5R XXXIL , REMOVAL' OF' CAtJSES. CHAPTER XXXIII. a'dMIEALTY and , SEIztJBES.' CHAPTER XXXIV. BANKEUPTGY. CHAPTER XXXV. /IX •■. WAY \l P » COURT OF CLAIMS. CHAPTER XXXVI. WRITS OP EEEOE AND APPEALS.. llABLte OF CONTENTS XXXi APPfi'lSlDIX. FORMS IN CIVIL CASES-AT OOMljipJSf LAW AND IN EQUITY. ■'■•'- lliji.'riU FORMS IN CRIMINAL PROCEbtJRE. III. MARSHALS' AND CLERKS' FOEMS, 6l(."jqqA i'l .'iij.j' r')-tiO I..",..:-; ■ .liiil ADMIRALTY FORMS.''-* '" '"-' fiiun.' 'I I.I ' I .U'l'l eli;>qc V. EQUITY iRtLES. VI. ADMIRALTY RULES. VII. SUPREME COURT RULES. VIII. RULES OF THE CIRCUIT COURTS OF APPEALS. ADMIRALTY RULES OF THE SECOND AND NINTH CIRCUIT. IX. RULES OF COURT OP CLAIMS. X. BANKRUPTCY LAW. XI. GENERAL ORDERS IN BANKRUPTCY. XXXll TABLE OF CONTENTS yj(^|XIIujf[,, FORMS IN BANKEUPTCY. xiii. TABLE OF CASES. ' •'"^' Citations : U. S. Constitution U. S. Bevised, Statutes Statutes at Large Judicial Code Equity Bules Supreme Court Eules ^ Admiralty Eules Admiralty Eules, ' Second Circuit Court of Appeals Eules of Circuit Court of Appeals Eules of Court of Claims ^ j ,. Eules of Appeals from Court of Claims General Order in Bankruptcy. :A'.: . INDEX. i(.,.i , FEDERAL PRACTICE VOLUME I. CHAPTER 1. ORIGINAL JURISDICTION. § 1. Constitutional provisions concerning the courts of the United States. See. 1. The Constitution of the United States prdains: "Article III, Section 1. The Judicial Power of the United States, shall be vested in one supreme court, and in such i^iferiqr . 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 Compensation, which shall not be diminished during their Continuance in Office. Sec- tion 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 Ambassadors, other pub- lic Ministers and Consuls; — to all Cases of admiralty and mari- time Jurisdiction ; — to Cbhtroversies 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 Citi- zens of diiferent 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 Sub- jects. In all Cases affecting Ambassadors, other public Ministers and Consuls; and those in which a State shall be Party, the su- preme 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 Ted. Prae. Vol. I— 1 1 2 ORIGINAL JURISDICTION [§ 2 of all Crimes, except in Cases of Impeaehment, shall be by Jury ; and such Trial shall be held in 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 Lp,w,haye directed! j Sectiofi ,3. , Treasqn against the United Stdtes; ihall dohsisi only iiT ieVyi:^| 'War^gairfst them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be conyiJjtfidjcif/'Trjeafebri unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Po^^'€r to declare the Punish- ment of Treason, but no Attainder of Treason shall work Cor- ruption of Blood, or Forfeiture except during the Life of the Person attainted." . The jurisdiction of itheioourts of the /United 'States is' ire'toiteted by the Eleventh Amendment, which ' brdains : '-'The Judicial power of the iUnited States sh^D'not be construed to extend'to' any suit in law or equity,' commenced or pl?6^eeuted against One of the Uniteid States' bj^'Citizeiis of another State, or by' Citizens or Subjects of any Foreign Stat6." ' . ( . . The Sixth Amendment ordains: "In all criminal pros'eeia- tiohs, the accused shall enjoy the right to 'a sp&edy and' public trial, by ati impartialjury of the State and district wherein the eriihe shall have been committed, which district snail have" been previously ascertained by, law, and to be informed of the' nature, and cause of the accusation j to be confrpnted with ,the I'vvi^esses agaihst him ; ,to have cpmpulsqr^ process for obtaining "Vjl/itnesses; in his favor, and to have the Assistence, of, Counsel for, Ipfs dft- fenee. " The Seventh, Ainendment;,, "In .suits at common layi^, where the value in cpntr,oye:^sy shall, exc^^^ twenty dolljars, ,tJie right o^ trial , by jury,.sha|llt l)e , preserved, and no f^fiti tried by a jury. shall be otlierwise re-examined in any C(3urt of the United Staites,,,tban according to ..the. rules of the commom law^i' ' The Eighth Amendment!:! ."Excessive bail ishallf not. he reciuired, nor excessive .finesi imposed, nor cruel and lunusual punishments in- flicted.". " ' ■!.. ■ ! . . .. ■!.. • .... §2. Enumeration of the courts of the United States.' The Courts of the United States are; the Supreme Court, the' CiTCuit Courts of Appeals, the Court of' Customs' Appeals, the District § 2 ] COURTS ' OFi THE . UNITED 'STATES 3 Oourts, ' and the CdUrt of Claims.^ The statutes of theiUxiited States' have also' created I certain I courts which are usually con- sidered not to be courts of the United States,^ These;are„.tjhe KstricD'GowTfrtif '-Alaska;?: theiDistriafe Court pf (theitf^ilieid States for PortoiRico,* th'e District Court.,of the Canal .Zchj?,^ the Dis- trict Court of Hawaiij^theiSupreme Court, of , the Philippines,?' the United States Court for China,* the Consular Courts,® tjie Supreme i Court of the District of Columbia ^° and tbe Court of'Appealsiof 'the' District. lof Columbia.!^ The Board, of Gen,- eral Appraisers ^^ andthc' United States Commissiopers ^^ have also certain judicial powersv • civil .and . criminal which are here- inafteT- i^onsidered! i Courts ; martial ajidi military ; commissions arendt'herein'discussed: ' ■ -i - ; Certain civil ioficers and commissions or boards, for exajnple thei'Interstate' Commerce ComHiissibn ; i*-the Federal Trade Com- mission; ^* the Railroad Board of Labor. Adjustmepti": the Rail- road Labor Board; ^'', the United States, Board of , IVTediatiqn and Conciliation;^* the Secretary of War^; whp. may apt: with the assistance of the War Department Claims Board,M the Com^- missioner of'' Internal. Revenue,^" the. Secretar,y. of the, In- §2. J 1 The Circuit Courts, of the i Infra, ^70. TJiiited' States ha've been abolishelfl '" SZn/ra, § TDa.'- and their powerSit»ansferred to the; ' > ' 6< Jn/ra, § 71. District' i, Courts; by ; the! J;u.,dieial| ! i i 1 J'nf'ra, i 72. , . ; qpde,, .eiij^eted, Maicly 3, 1911, §§ 2,89, « Infra, § 73. ■ , 291, 36 St. at L. 1087. ' Ex parte "\ 9 Infra, ^74!'' U. S., 226 TJ. S. 420. ' ''""' io Infra, % 68. ' 2 American Insurance Co. v. Can- H 7«-/my § 69. .. ' , tEry.l :Peters, 511> 7 L. ed. i,^2; 12 In/ra, § 77h. ,,, Benner v. Porter, 9 How. 235, 13 L. . ninfra, §§.67, it83a, 486, 488, ed.ill9f Clinton V. ,Englebrecht„13 489, 4p0, 493. . Wall; 434, 20 L. ed. 659; .McAllister ^li Infra, §§V7a-77d: , y. -U.-S., 141 U. Si 174, 35; L. ed. is See § 77h m/ra, and! also, quasi 693; Eomeu v. Todd, 206 U: S- 358, judicial jppwers for the taking, of 368, 51 L. ed. 1,093, 1097 (United testimony and otherwise, some of StatgS .Court for ^^orto'Eico). B.ut which are hereinafter explained, it has been held .that .the Supreme ' is Infra, § 77e. ■ ' ' ' "■ '' Court of .the.Diptriet ,o,f Cotombia "' iTInfta,^ lit. '''"■ '" ''''''" is a court of the United !St9,tes ;with- 18 Infra, § 77g. in: the meaning' of U. S. E. S. 19 Act of March 2, 1919, 41 St. L. i 714. James v. V. S., 202 U. S.|401, ZO Infra, § 96gi Poster on theln- 50,iL. .ed,.1079.i . i/s come Tax, .§i§ 89-91. , ..,§i;»/rft§67. 4 ORIGINAL JURISDICTION [§ 3 terior,*^ Commissioner of the General Land Office,*'' the Commis- sioner of Patents ^ have certain quasi judicial powers some oi which are discussed hereafter. § 3. Original Jurisdiction and Terms of the Supreme Conrt. The jurisdiction of the Supreme Court of the United States is original and appellate. Its appellate jurisdiction is hereinafter considered.^ The Supreme Court has original jurisdiction both at law and equity in all eases affecting ambassadors, other public ministers and consuls, and those in which a State is a party,* except where a citizen of the same State is a party, when it has no jurisdic- tion.' The jurisdiction of the Supreme Court over controversies to which a State is a party is exclusive, except as regards con- troversies between a State and its citizens, or between a State and citizens of other States.* The Supreme Court has exclu- sively all such jurisdiction of suits against ambassadors or other public ministers, or their domestics or domestic servants, 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.* . , A State can sue the United States with the consent, of the de- fendant to establish or to protect a right of property owned by the State,^ but not one in which the State has no interest although a part of its citizens are inteirested therein.'' A State caiinot sue the United States without the latter 's consent.* A State cannot sue to enforce or protect a right which is purely 21 Infra, § 131. 4 Jud. Code, § 233, 36 St. at L. 22 IT. S. E. a, §§446-712, 2446, 1087. 2372, as amended; 35 St. at L. 645; S Ibid. 36 St. at L. 1087; Bors 38 St. at L. 742; Cpmp. St., §§ 690- "■ Preston, 111 U. S. 252, 28 L. ed. 712, 4780, 4858, 5078c. ^l^! U. S. v. Eavara, 2 Dall. 297, 23 U. S. E. S., §§i4893, 4904, ^ ^- ed- 388; Gittings v. Crawford, 4915; 33 St. at L. 726, 727; 34 Taney, 1; St. Luke's Hospital v. St. at L. 1252; Comp. St. §§9437, Barclay, 3 Blatehf. 259; Graham v. 9449-9460, 9491-9494; infra, §§146- S'"«^^n, 4 Blatohf. 50. j^g 6 Minnesota v. Hitchcock, 185 U. .' , „ p. , . S. 373, 46 L. ed. 9.54. §3. ISee Chapter xxxvi on 7 Kansas v. U. S., 204 IT. S. 331, Writs of Error and Appeals. " 51 L ed 510 ' ' 2 Constitution, art. III. 8 Mississippi v. Johnson, 4 Wall. 3 California v. Southern Pae. C, 475, 478, 18 L. ed. 437; Louisiana 157 U. S. 229, 39 L. ed. 683. v. McAdoo, 234 U. S. 627; New "§ 3] " SUPREME COURT 5 political.' 'AJ Sfat6' canfiot'obtain an order or judgment compel- ling a; governoi' 'of tihother State to return a fugitive from labor (ii- justice." "" -'•'■'A' State may file a! bill agairfst another State to settle and estab- lish a dispui!ed bbuiidary.i' lU such a suit the United States has an interest iri the controversy, atid the attorney-general on Ms"applica'tidii' miay intervene, appear ou behalf of the United States, adduce pi-oofs and be heard in argument witlioiit mak- in,^'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 admissibiis of either of the States; and in such a suit the judg- ment cannot be either for ot- against the United States. ^^ A State may ^ue anothei" State for an irijunetion against the diver- sioii of the waters of a stream flowing through both which un- reasohably interferes with their use for irrigation,^* and iat least' when the stream is' not naviga,bl.e, the United States can- iiijt' intervene.** A State may sue another State *^ and a public *•■ or private *'' Corpoi^ation of the latter to enjoin a public nuisance affecting a large number of the complainant's citizens; such as the ipollution of water*' or the discharge of noxious gases over its territory.*' Otherwise, it seems that a State cannot jJVIexico V. Lane, 243 TJ. S. 52j,.Wra ed. 303^ Alabama v. Georgia, 23 lips. ,'' ' " ' . jj^^- g-pg^ 16 i,. ed. 55iS; Missouri sUlia^issippi' V. Johnson, 4 Walli v. Kentucky, 11 Wall. 395; 20 L. '475;'18 L.ed.i 437; Georgia V. Stan- ed. 116. ^ ' 'ton, 6 Wall. 50, 18 I/, ed. 721;;:; 18 iPloiida, v. Geoigia, 17 .How. .§>283e, imfrci..^ , , n; ■'",>!■,■■ . ■ , '^'^^> ^ ^- ^^- W- ,] 10 Kentucky v. Dennison, 24 How. IS Kansas v. Colorado, 206 U. S. 66, 16 L. ed. 717. i> - .. . 46, 51 L. ed. 956. 11 New Jersey v. New York, 3 14 Kansas v. .Colorado, 206 XJ. S. Pet-. 461, 7'L. ed. 741;'s. c, 5'Pet. 46, 51 L. ed. 956. 284, 8 L. edJ 127; s. c, 6 Pet. '323, 16 Missouri v. Illinois, 180 U.. S. 8'L. ed. 414; MassaehUsetta v. Ehode 208; s. ci, 200 TJ. S. 496. Island, 13 Pet. 755, 9 L. ed. 1272; 16 Missouri v. Illinois, 180 U. S. Rhode Island v. Massachusetts, 13 208, 45 L. ed. 497; s. c, 200 XJ. S. Pet. 23,'10 L. ed. 41; Ehode Island '496; 50 L. ed. 572. V. Massachusetts, ' 15 Pet. 233j ' 10 17 Georgia v. Tennessee Copper L. ed.:721; s. c., 4 How. 591, 11 L. Co., 206 TJ. S. 230, 51 L. ed; 1038. ed. 1116; Missouri v. Iowa, 7 How. 18 Missouri v. Illinois, 180 XJ. S. 660, 12 L. ed. 861; 'Florida v. 208, 45 L. ed. 497; s. c, 200 U. S. Georgia, 17 How: 478, 15 'L. ed. 496, 50 L. ed. 572. 181; Virginia v. West Virginia, 19 Georgia v. Tennessee Copper 11- Wall. 39, 20' L. ed. 67; Mis- Co., 206 V. S. 230, L. ed. 1038. souri V. Iowa, 10 How. 1, 13 L. 6 ORIGINAL JUKISDICTION [§ 3 m^jritaiin , a suit to redress t;he, wrongs qf, apart ofc its own ei,ti- zens,^" for example, tq enjoin a railway cpmpaiiy;, from charging unreasonable rates within its jurisdiction;*^ nor, to enjoin the goyernpr and hgalth , offiqei; , , pf ; another, , .Statje. j f r,0|m enf oi^cing ^nreasona|Dle quarantine regulationsj whicji, interfere with com- merce ;bet\yepn,J;hese,iStates,'''' nor to enjoin an qfficer of the , United ^tajt^s i f rom fa,iling to eplleet tlie proper c^uties. upon imports ,-v^hich,,c,ofl:jpei;e yf^itj:f.,t]f.^ product 9f,ST^ch^t£|,tp.*' , ,, Ar State cannot file a, bill in the Supreme Copir|;, of the United States, to enforce;; a penal statute, such as ^, bill to prevent a railway .company from, violating such .State's prohibition law ; ** jnor' to enipTap. a judgment, for penalties .rendered in its courts against a foreign corppra,tion,*f A Sl;at^ caiinpt ^ue anpther Stiate to coUe.ct bonds, a^d c,ouppns, of ,the, defenjdant which .have been ,3,ssigneditoJ;he,,pi.aintifi' by, its own citizens inj order th^t it may collect i them and. pay thp proceeds to the assignors.*® But a State may sue a'nother, State .t,o cpll,ect bonds that have been given .to tjf ^ , plaintiff al?splute|ly,*'i' , A State may ; sue for an injunction againS|t, the, collection by citizens of other States of ce;r±ain bonds of the United. States which are thjei property of iSuph StatCj, and for the.deliyery .toitpf sueh bonds, and for a declaration that the contract under which the defendants claim a tifle to such ]bond is void.** A State may maintain a bill against citizens of other States tO: enforce its title to a railroad-*' The Supreme Court has no jurisdiction of a suit by a State against a citizen of the District of Columbia;'" nor ttf a suit by a State against one of its own citizens,'^ or to which one of 20 Louisiana v. Texas, 176 XJ. S. 26 Wisconsin v. Pelican Ins. Co., 1, 44 L. ed.'347; Oklahoma v.^Atchi- 127 U. S; 265, 32 L. ed. 239. ., son, T. & S. P. Ey. Co., 220 IT. S. aSNew Hampshire v. Louisiana, 277, 55 L. ed. 465; Oklahoma, v. 108 U. S. 76, 27 L. ed. 656. Gulf, C. & S. ¥. Ey. Co., 220 U. S. «T8outh Dakota 'v. North Oaro- 290) 55 L. ed. 469. ' lina, 192 XJ. S. 286, 48 L. ed. 448; 21 Oklahoma y; Atchison, T. & S. infra, §104. >■ F. Ey. Co., 220 XJ. S.i277, 55 L. .ed. -. 28 Texas v. White, i7 Wall. 700, 465.' .i ' 741.'743, 19iL. ed. 227, 242, 243. 22Lonisiahav. Texas, 176 XT. S. 1, i 29 Florida v. Anderson, 91 XJ. S. 44 L. ed. 347. : ' (. ' 66(?i, 23 L. ed. 290. 2S Louisiana T. McAdoo; 234 XJ. S. **Jfe Massachusetts, 197 XJ. S. 627. .u 1.. , ;482, ,49 L.,ed» 845., i .24 Oklahoma *. Gulf, C. &■ S. F. 31 Pennsylvania v. Quicksilver Co., Ey. Co., 220. U. S. 290, 55 L. ed. 469. 10 Wall. 553, 19 L. ed. 998; Min- §'3a] PRACTICE IN SUPREME COURT 7 its citizens is an indispensable partjj.^^ , , The tjnitect States may sue a State in, the Supreme Court.** The fact that a State is a stocMiolder in a corporation by. or^ ^ against which a sui|; is brought does notmake the State a party to such suit.** ^^ ^ , ,, ,,. ^ i,,;,i i The Suprem,e Court holds one .Ijprm aunualjly, at Washjjngtpn, beginning on the first Monday ii:^, October, and such adjourned or, special terois as it finds, necessary for the,dispjatel;.i,of, |)u^i7 nessi*', Incase oJE a .contagious orepidemifi.^jseasei, a term may be held at anpt^er place.*^ , §3%. Practice in the original jiirisdictipn .9I the Supreme Court. The ' Supreme Court of (the United -States considers , the former practice of the courts of ..Chancery and of King's Bench, ini England, as affording outlines for its practice in the exer- cise of its Original jurisdiction.^ It has made a few rulfes regulat-' ing the same.* In suits to which a State' is a party the practice in equity is followed ;* but the ordinary rules of prooediire ap- plicable to cases between individuals are not always' applied' and great' liberality is extended to the State affected.*': • ■. •-, It is the regular practice to obtain from the- court, upon a mo-; tion, leave tofile the bilL The motion is usually heard ei> parte,^ and where the State is a party, leave is ordinarily granted as of course;® but under special circumstances, the court -ivill require nesota v. Northern Securities Co., 86 U. S. E.^S., ^4799; 39,si|at, 184 U.S. 199, 46 L.ed. 499; "Wash- L. Comp Slj.',' §^1207! ' ington V. Northern Securities Co., § 3a. 1 Supreme Court Euje 3. 185 U. S. 254, 46 L. ed. 897. _ , 2 Supreme Court Eulea 3, 5." ,^^ 32 Minnesota v. Northern Sefluri- 3 Georgia v. BraUsford, 2 Dall. ties Co., 184 TJ. 8. 199, 46 L. ed ■499;, 402, 1 . L, ed. 433 ; , Kentucky v. Den- Washington v. Northern Securities nison, 24 How. 66, 16 L. ed. ,71^. Coi, 185 U."S. 254, ^46] 4,eaV§97; 4 VirjginiE|,y] .Wesjt .yir^'inia, 23,4 California V. Southern Pa,c. Co., 1^7 IT, S^ 117. , , ,, , , ,,, U. S. 229; NewMlexico v.! Lane, 243 S Georgia, v., Gj-,ant,| 6, W^Jl, 2„41, , U. S. 52. ' , , , 18 L. ed. 848; V,ashJng|bop,v. NpTth- 88 U. S. v., Texas, 143 U. S-, 621, em Securitips Co., 185, U. S. 254, 4.6 36 L. ed. 285. L. ed. 897 34 Bank of IJ. S. v. iPlanters ' Bank 6 Mississippi v. Johnson, 4 WalL of.Oa.,.9 Wheat. ,904, 6 L. ed. 244. i 475, 478, 18 L. ed. 437;, Washington,! 86Jufl.iCode, § 230, .36i iSt. at L. v. Northern Securities Co.,i 185' U. 1087.' ■ ' ,,!..;,'. S. 254, 255, .4aiL.l ed. i897j .iKans&ls 8 ORIGINAL JURISDICTION l^,'^^; notice to be served upon the proposed defendant; '' and leave to file a bill has feeen denied.* 1\fritten authority irom tlje gov- ernor of a State is sufficient to authorize a suit on behalf of the State.® All process of the court is in the name of the .Presideiit of the United States.^" In a suit by a State against another State the service of a subpoena sixty dkys before the return diay is sufficient.^^ Service should be made on both the goyei-iior and. the attorney-general.^* In one ease a subpoena served ujpori the governor by leaving a copy at his house and there showing l.he original to the secretary of state was held sufficient.^' " The filing of a pleMing by the att6rney-gen6ral of a State who iias been admitted to practice in the Supreme Court of the UriitM^' States is an appearance on behalf of such State.^* ' The rules concerning the time for pleading, in suits between individuals do not apply to suits between the different States.^* The State- of Massachusetts was allowed to answer an amended bill ofl the State of Rhode Island one year after such amended bill was; -filed.^^ 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}'' A State is given full opportunity to comply with the V. U. S., 204 IT. S, 331, 337, 51 L. , qd. 440; Qrayson iv, yirginia, a,PalL ed. 510, 511. 320, 1 L. ed. 619; New Jersey v. T Louisiana v. Texas, 176 V, S. New 'York, 3 Pet. 461, 7 L. ed. 741; 1, 44 L. ed. 347; Minnesota v. s. c, 5 Pet. 284, 8 ti ed. 127; Ken-' Northern Securities Co., 184 V. 8. tucky v. Dennison, 24 How. 66, 16 199, 46 L. cd. 499; Washington v. L. ed. 717! ,| "' Northern Securities Co., 185 V. S. 12 Supreme Court Eule 5. 2.54, 46 L. ed. 897. 13 Huger y. South Carolina, P. 8 Mississippi V. Johnson, 4 Wall. Ball. 339, 1 i: ed!62t. 475, 18 L. cd. 437; Georgia v. Grant, 14 New Jersey v. New York', 6 Pot. 6 Wall. 241, 18 L. ed. 848; Minne- 323, 8 L.'ed.'4l4.' ' sota V. Northern Securities Co., 184 IB Rhode I^'and v. liiassachusetts', TJ. S. 199, 46 L. ed. 499; Iowa v. 13 Pet.' 23, 10 L. ed'. 41; Virginia v; ' Slimmer, 248 IT. S. 115. West Virginia, 234 U. S. 117. 9 Texas v. White, 7 Wall. 700, 16 Rhode Island v. Massachusetts, 719, 1-9 L. ed. 227, 235. 13 Pet. 23, 10 L. ed. 41. 10 Supreme Court Rule 5; New 17 Massachusetts v. Rhode Island, Jersey v. New York, 6 Pet. 323, 8 12 Pet. 755,' 9 L. ed. 1272; 'Oswald L. ed. 414. V. New York, ,2 Dall. 415, 1 L. ea. 11 Supreme Court Rule 5; Chis- 438; Chisholm v. Georgia, 2 Dall. ftolm V. Georgia, 2 Dall. 419, 1. L. 419, 1 L. ed. 440. § 4] CIRCUIT COURTS OF APPEALS 9 decision of Ihe coiirt.^' A motion for execution tvill not be granted until after tHe session of tie legislature succeeding the decision." In a suit to .settle a disputed boundary, the most ap- ,;Propriate mode of proceeding is ^by bill and cross-bill.^" In suits against a Stg,te the practice is very liberal, and the utmost liberality is exercised by the ^ourtiin the correction of slips of practice or errors.^^ The allegation that a defendant corporation is a, "body politic in th^ la]^ of apd doin^ business in the. State 0;f California" is .insufficient to ^ establish that the defendant is a California i corpo- ration, and is ipsu£9ei,ent to show ,that the defendant is not a Pennsylvania corporation.*^ . , .The appellate jurisdiction of the Supreme Court is explained .in the final chapter; of this work. Incidental to su6h appellate jurisdiction, |l^e Supreme Court has power in certain limited cases to i^up writs pf prohibition,*' mandamus,** Jidbeas eorpus,^^ ceriiorari,^ Sicirf fackfs,^'' apd other writs.*' , § 4. The juxisdiption and tenn^ of the circuit courts of ap- pals and the judicial circuits. There are nine Circuit Court,s of Appeals, one in eaph circuit.^ Their jurisdiction is exclusively appellate, , and 'will be explained in the concluding chapter of this work. It includes the power to, review,, to set aside, and to €;nforce., the 9rdera of the ^Pede^al Trade pominission.^* In- ,cidental to such appellate junsdictipn, they have the power to issu^ all , wrijts ..not specifically . p^rovided for by statute, which 18 Virginia v. West Virginia, 241 v. West Virginia, 222 TJ. S. 17^ 56 .IJ, g. 531.i .,,.| '!•..,../. r-. •■ L. ed,.71. , ,.; 19 Ibid. .J , If 22 Pennsylvania V. Quicksilver Co., 20 Missouri' v^Iowa,' f"HO|W; 660, ip Wall, 553, 19 L. ed. 998. 12 L. ed. 861.'"' '"''<'' " 23Jud. Code, §234, 36 St. at L. 21 Iowa v.'ilUiiiois, 151 XI. S: 238, 1087. See i%fra, §456. 38 L. ed. 145; Rhode Island v. Zl Infra, §457. Mas?aeJiusetts, 13, Pet. 23, 10 L.i-ed. 2BU. S. E. S., §751. See infra, 41; Virginia v. West Virginia, 234 §461. ,U. S. 117. ,1 ;;;,., '■' 26 Ibid. See iJi/ra, §§ 460, 689. . It hais been said„.tliat,. even in a 27Jud. Code, §262, 36 St. at L. case which should be disposed! cvf 108-7. See infra, §469. : . without undue delay,; "a State can- 28 Ibid. See infra, §§455, 459. not -be expected to move with the §'4. Uud. Code, §116, 36 St. celerity of a private • business, mian; at L. 1087. it is enough if it proceeds, . ill- the la 38 St. at L. 719, § 5, Comp. language of the English Chancery, St., § 8836e, in/'a, § 77h. with all deliberate speed. ' ' Virginia 10 ORIGINAL JURISDICTION [§ 4 a^re necessary for the exercise of their r^pective jurisdiction and agreeable to the usages and principles of law.'' ' The territorial jurisdiction of the Circuit Courtis of Appeals IS as Ipllows : ■ TJh'eFijrst Circuii includes the district of Rhode Islandj' Massachusetts, New Hampshire, Maine, arid Porto Rico.' 'The Second dirciiit includes the districts pf Vermont, 'Connecti- cut and New York. The Third Circuit includes the districts of Pennsylyania, New Jersey, and Delaware. The Cii-cuit Court of Appeals thCTe in proper cases reviews the decisions of the courts o'i the Virgin Isliands.'* The Fourth Circuit includes the' districts of Maryland, Virginia, West Virginia, North 'Carolina and South ' Caroliiia. The Fifth Circuit incltides the districts of Georgia, Florida, Alabama, Mississippi, Louisi- ana, and Texas'.' Final decisions' of the District Court of the Canal Zone are reviewed in proper ciases by the Circuit Court of Appeals for i;he'Fifj;h Cii-cu'it* ,The Sixth Circuit, incltides the' districts of Oiio, Michigan, Kentucky, and Tennessee. The, Seventh Circuit includes the districts of Indiana, , Illinois, and Wisconsin. The Eightli Circuit includes the, , districts of Colorado, Arkansas, tow'a, Kansas, Minnesota, Missouri, . Ne- braska, New Mexico, North Dakota, Oklahoma, South Dakota, TJtih, and Wyoming. The Niiith Circuit include^ the districts of' Arizonia, Calif orriiaj Hawiaii,* Idaho, Montana, Nevada, Ore- gon, arid Washington.® Final decisions o;E the District Court for Alaska '' and the United States Court foi* China,* are reviewed in proper cases 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, Ma^achusetts, on the, first Tuesday of October a^; 10 A. M. Stated sessions thereof are held at the same hour on the first Tuesday lof. every month. The 8 Ibid. §262. See irifra, §455. 4 37 St. at L. 565, §9; Comp. St. 3 Ibid. §116 as Am'd. 36 St. at '§ 10045. i L. 1131; 38 St. at L. 803; Cbmp. St.- 5 Jud. Code, §§ 116, 133. Wilder's §1107; 39 St. at L. 966; Oonip: St. S. S. Co. v. Low, C. C. A., 112 Fed. 3803r. Wilder's S. S. Co. v. Low, C. 161. C. A., 112 Fed. 161. - ^ 6lbid. §116. ' 3a 39 St. at L. 1132. The local Vibid. §135. tribunals on those islands retairi the 8 Act of June' 30/ 1906, 34 St. at jurisdiction which i they had before L. 814. the cession. Ibid. ' , ■ § 4] CIRCDITi eOUKTS OF APPEALS 11' I clerk'sofSce .ig'in- the City of' Boston; The term of the Circuit Court of Appealsi for the /Secbmd Circuit is held in the City of New York on the third Tuesday of Octoher. Theiclerk's ofiice isi in thie City of New York. Thfe terms of the Circuit Court of Appeals for the Third Gireuit' arei held in the City , of Phila- delphia on thei first 'Tuesday of M^roh and the first Tuesday df Octoberi 'The clerk's.' office is in Philadelphia! The terms of the Circuit Courts of Appeals fOrlthe Fourth Circuit are held i in the City of Richmond, Virgindai, on the first' Tuesday of Feb- ruary,' the first Tuesday of May and the first Tuesday of No- vember. .Special Sessions of the court are held > at -Richmond, Virginia, - on ' the second Tuesday ' of every month ■ of : the > year,' except' in. those months'in which regular terms dreheldj and at! Asheville,' ! North Carolina, at' such, time as may be-' fixed by the judges thereof.^ iiThe 'clerk's office is in Richmond;. The terms of the Circuit Court of Appeals- for the Fifth Circuit ar^ held : at Atlanta, Georgia, on the first Monday in October ; at Mpiltgomeryi Alabama, on the third Monday in October;. at Fort Wdrth, TexaSj on ithe ifirst Monday in November; at iNew. Orleans,. Louisiana, on the I third Monday in November. The clerk's .office is in New. Orleans. : AH appealsi,, writs, of erroi; and other; appellate pror ceiedin,gs, ,tak,e!n pr,prosee,ut^d.,from thie; (Distripfti, Courts, in,, tK^i S,ta,te of Geoi:gia, are h^ard, and,. disposed pf at the, .term of, ,tbe Cii;c,uit jCouj^t, P^.-'^PP^^ls.Ml'iji?^ Atlanta, md ,all such, taken or prosecujted |rom,t^,pistrict Cour|;s| of Texas, h^l^ at,Beau,r mont in the Eastern District of. Texas, are heard, at the term of the Court of Appeals held at New Orleans,; with the excep- tion in both districts of appeals from orders of iiijunctions and other cases, which, undpr the statutes, and rules or in the opinion of the court, are entitled to be brought to a speedy liearing. The term of the Circuit Court of Appeals for tbe Sixth Circuit is held in the City of Cincinnati, Ohio, on the Tuesday after ."the first Monday of Octbbe'r, and adjouKhed sessions on the Tuesday after the first Monday of each 6ther month i!h' the yeaii', eitcefpt' August and September. At the July sessions, no cases are heard' except upon special order of the court. The clerk's office is at Cinpinnati.. The term, of the Circuit Court of Appeals for tlie Seventh Cirejjiit is held at, Chicago, Illinois, on|t}ie fir§t T.ues-,- 9 C. 246, 39 St. at L. 385, Comp. . . i . i St. § 1118a. 12 ORIGINAL JUKISDICTION [§ 4 day in October and continues until the first Tuesday of Octdber 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. Theteijms of the Circuit Court of Appeals for the Eighth Girctiit 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 officers at the City of St. Louis. Cases from Minnesota, 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 iparties for their hearing at the May term in St. Paulare filed on or- be- fore the 1st day of April, and those only, are heard at the suc- ceeding May term of the court in St. Paul. Cases ifrom> Colorado, Wyoming, Utah and New Mexico in which transcripts are filed on or before the 1st day of July, and cases from the rertiainder of the Circuit in which transcripts and stipulations of 'the parties^ for their hearing at the September term in Denver; are 'filed on of before the 1st day of July, and those only, are heard at the Suc- ceeding September term in Denver. Cases from Minnesota, North Dakota, South Dakota, Nebraska,' Iowa, Kansas, Missouri, Arkansa.s, Oklahoma and the Indian Territory in which tran- scripts are filed on or before the 1st day of Octoljer, and cases from Colorado, Wyoming, Utah and New 'Meiico in wnieh transcripts and stipulations of the parties for their hearing at the December term in St. Louis are filed on or before the 1st day of October, and those only are heard at the succeeding Tier cember term, in St. Louis. The term of the Circuit .Cour.Vpf Appeals for the, Ninth Circuit is held, at San Francisco, Ca^for- nia, on the first Monday of October. Th^ clerk's office is at San Francisco, California.^" , , . , lOJiid. Code, §126, 36 St. at L. i^al .RiUes of C. C. A., l.Sq Fed. xxy. 1087; TJ. S. E. 8.', § 604; 25 St. at Amended IJuies of C' C."A., 150 Fed. L. 676; 26 St. at L. 830; 139 V. S. xxxvii, and Fed. E.',' passim, re- 707; 26 St. at L. 217; 33 St. at L. printed in Appendix. 39, 249, 548 ; 31 St. at L. 414. Orig- ■ . • §5] DISTRICT. COURTS 13 It seems that the term of a Circuit Court of Appeals may be ejctended.^^ § 5. Jurisdiction of the District Courts in general. The unit of Federal territorial jurisdiction is in the judicial district. There is at least one district in each State of the Union. Some of the States are divided into several districts. And some dis- tricts arfe' divided into two or more divisions.^ The jurisdiction of, the District Courts is thus defined by statute : ' ' The district courts ^hall have original jurisdiction as follows : First. Of all suits of a civil nature, at common law or in equity, brought by the United States,^ or by any officer thereof author- iiied'by law to sue,*' or between citizens of the same State claiming 11 Guaranty Tr. Co. v. Metropolir tan Ey. Co., C. p. A., 17,7,JPea. 925. . §5., IJud,' Code, §§ 69, 115, in- fra, '^64.' '''■'■ 2 Such is a silit 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, SIO, 31 St. at L. 864, and April 26, 1906, Ch. 1876, § 18, 34 St. at li. 144j to cancel patents or deeds to town lots obtained by fraud for lees than the statutory price, or other- wise, ' ' for the collection of any money or recovery of any land claimed by any of said tribes." U. S. V. Eea-Bead Mill & Elevator ' Co., I7i 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 clippute, exceeds the jurisdictional amount, Pierson v. Phillips, 36 Fed. 837; and that such a suit upon a bond given by a contractor for the 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 II. S. 349, 51 L, ed, 516. See .im/ro, § 5a. , . 8 This includes actions by the re- ceiver of a national bank appointed by the comptroller, Johnson v. Ean- 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 Eevised Statuteis, falls 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, G. C. A., 92 Fed. 417, 34 C. C. A. 423. For cases brought by receivers ap- pointed by the Federal courts, see infra, §34. It has been said that this does not include an action by an independent contractor with the United States to protect an unlawful interference with work for the Gov- ernment. Pickering Land & Timber Co. V. Wisby, 242 Fed. 993: Contra, Wagner EIooj Mfg. Co. v. District 14 ORIGIN Ali ' JURISDICTION [§5 lauds under grants from different States; * or, where the. inat- ter in controversy exceeds, exclusive of interest and"costS(,i tbe sum or value of three thousand; dollars,*k.and'i (a) arises; un- der the Constitution or lawsMofJ the United States,® or treaties made, or which shall be made, under their , authority,'' or;(b) is between citizens of different- States,' or^ (c), .is^between, cit- .izens of a State and foreignlStates,! citizens,, or s]i|)jects.® No district court shall have cognizance of i any suit , (:except i^ppn foreign bills of exchange) to recover upon any promissory note or other chose in action inif avoir of any assignee, or ,of any sub^ sequent holder if such instrument be payable tp bpar^r ,aind,,bp not made by any corporation, unless such suit tnight .have ibieen prosecuted in such court to recover upon said note or other chose in action if no assignment had been made: "■" Pi-ovided, how- ever, That the foregoing provision as to the sum or value of the matter in controversy shall not be construed to apply to any of the cases mentioned an the succeeding paragraphs of this sec- tion."" .,- . "„, , ,. Lodge No. 9,: I. A. of M. 252 Fed. 597. The United States may. sue to collect a bond given by an employee of the Post Office Department . for. the I faithful pursuance of his sery- icesj In case of a ' d,ef alcation , by him, it may collect the full amount thereof for the benefit of the persons owning .property stolen by him. XJ. S. V. U.iS. Fidelity & Guaranty iGo., C. C. A., 242 Fed. 16. It has been held that such an action may ,be brought : at common law and that then the defendant' can not compel the interpleader, of the persons interT ested in the result. ; Ibid. See infra, §§,157, 158., . . , ; ! i Infra, § 50. : 5 This increases ,the, jurisdictional amount, which formerly was $2,000j exclusive of interest and costs, 24 St. at il). 552. : For the construction of the clause, see in/ra, §§ 6-23. It has ibeen held, ' that where the cause pf action arose prior to Ja,nuary 1st, 1,912, the amount necessary for the jurisdiction , ja not enlarged, ,,al- tl^ough .the . actipn- ,is subs^qijently commenced, Taylor v. Midland Val- ley E. ,Co., 197 Fed. 323;;,coD.struing Jud,:,Code, §299. , ,, ' , ', 6 Zra^ro, §§24^39. ,, "i Infra, §26. , ,,^',,, S Infra, §§40-49, Slnfm, §45, ' "' ' ' ','"'' It has been said the since the Ju- dicial Code omits the provision ob- tained in earlier 'acts that the juris- diction of the Federal Court shall in these respects be concurrent with the courts of the several states, the former, vchere the jurisdiction is founded upon difference of citizen- ship, may take cognizance of oases not within the jurisdiction of the State Court in the same district. Welch V. Union Casualty ;Go.,' 238 Fed. 968. , i,, ..lOInfrtti §63. §5] I^I^TRICT. CO|UETS, ^ Id ,^i, ''No courtj, of, .the Ignited State^j shall, J^ayeiju^i^dictiari of any action or ,fiuit, by or a^ain^t any railrpad company upon ,the ground that said railroad company was incorporated under an Act of Congress."!* , "N,o case arising under an Act entitled 'An act relating tp the lia!bility of common carriers by railroad to their employees in CCTtain cafees* approved !April tweiity-second, one thousand nine liuhdi-ed arid eight, or any amendment thereto ^^ and brought in any State court of competent jurisdiction shall be removed to any coui^t of the ^nited ^jtates. ' ' !* , ,, , ,i , , ,. , i 'i' Second,, i Of all crimes and offenses cognizable under the au- thority of the U-nitfed'Statesi" : ! "Third.' Of all' civir causes of admiralty and maritime juris- diction^ saving to suitors I'll aj.1 eases the right of a eoirimon-law remedy where, the, common, law is (competent tP give it, and to elaimja;nts thei rights; andi remedies under the workmen's compen- sation law of any State;' 'of all seizures on 'land or waters riOt within admiralty and maritime jurisdiction ; of all prizes brought into, the United Stfites,; and;of all proceeding^ fcjr, the eoi),demna. tion of property taken as prize.!® ••■■.„■ "Fourth. Of all suits arising under any law relating to the slave trade. ' , ,, "Fifth., , Of all cases arising undey, any law providing fpr internal revenue, or f rom* revenue from imports or tonnage, except those cases arising under any law providing revenue froih imports, jurisdiction of which has been conferred upoii the covfrt of Cu^,toins Appeals. ., ,, ,, , . ,;• t ,,, "Sixth. Of all cases: arising under the postal laws." lilt has been' said that this' feliuse l4Jud. God6; § 28, 36 St. at L. does not. enlarge the jntiSdietion of 1094,- Com'p. St. '§ 1010. the Bisfriot Courts beyond that -pxer 18 iJi/ra, Chap. xxxi. . viouslyi' presei!ved''"by': the 'Circuit 16 36 St. at L. 1091; 40St. at L. Court's', but was added to the former 395, Comp. St. §991. See infra, istatnte to remove 'ally- uncertainty. Chap.' xxxiii. _: '' ••■»<■. Salander v. City of Tacoma,' 208 17 A suit by a 'postmaster to erijoih Fed. 427. '.''."'! "';'■' >. ■.■■^.'^' a Post 'Office 'inspector' f rota' dfeliver- 1238 St.i at' L. 804, Comp. St. ing to' a third person property in § 1233a. '' ' i; • "' possession of the plaintiff Arises un- 13 35 St. at L. 65, Comp. St. der the'Postail Law and may be re- §§ 8657, 8665. moved to the Federal Court irrespee- 16 ORIGINAL JURISDICTION [§5 "Seventh. Of all suits at law or in equity arising under the patent," the copyright " and the trade mark laws.^" ' ' Eighth. Of all suits and proceedings arising und.er any law regulating commerce. "21 "No suit brought in any State court of competent jurisdiction against a railroad company, or other corporation, or person, en- gaged in and carrying on the business of a common carrier, to tive of the amount in controversy. Porter v. Coble, C. C. A. 246 Fed. 244. li Infra, §§ 29, 146, 147, 188, 277. tr. S. E. S., §4919: "Damages for the infringement of any pat- ent may be recovered by action on the case, in the name of the party interested, either as patentee, as- signee, or grantee. And whenever in any such action a verdict is ren- dered for the plaintiff, the court may enter judgment thiereon for any sum above the amount found by the ver- dict as the actual damages sustained, according to the circumstances of the case, not exceeding three times the amount of such verdict, together with the costs. " U. S. B. S., § 4921 : For a ease where an injunction and accounting were denied, when suit brought by buyer against 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 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, it was held, to arise under the patent laws and that the Federal court might take jurisdiction of the same regardless of the amount involved. N. J. Patent Co. v. Martin, 172 Fed. 760. U. S. E. 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, may have relief against the interfering patentee, and all parties interested under him, by suit in , I ' ' ] '■ ill.'",' 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 *^ • , •' ill . 1 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. 19 Infra, §§29, 150, 278. ZO Infra, §| 30, 148, 149, 279. n Infra, §§ 32a, 151. §5] DISTRICT COURTS 1*7 -recover damages for delay, loss of, or injury to property received fori transpOrtaltion by such common carrier under sectioin tWeHty of the Act to regulate commerce, approved February fourth, eighteen hundred and eighty-seven, as amended June twenty- ninth, nineteen hundred and eight, February twenty-fifth, nine- teen hundred and hiiie, and June eighteenth, nineteen hundred and' ten, shall be removed to any court of the United States where the matter in Boiitroversy does not exceed, exclusive of interest and costs, the sum or value of $3,000." ^^ It has been held that a District Court has original jurisdiction of an action to recover ■f i-eight where thfe plaintiff depends Upon the Carmack Ametid- iilent *' to the Interstate Cdmmerce Act; although -the amoUiit involved is 16ss' than $3;000.2* - i . .;,; , '*Ninth. Of all suits and proceedings for the enforcement of i^Sfaalties ahd forfeitures incurred under ahy law of the United States.^ Tenth. Of all suits by 'the assignee of any debenture for drawback of duties, issued under any law f cir' the collection of duties, against the person to whom such debehture was origi- nally granted, or against any indorser thereof, to recover the amount of such debenture!' Eleventh. Of all suits brought by aiiy person to recover damages for any injuty to his person br pi'bperty on accouiit of aiiy act done by hilft, under toy law of th'e^ United States, for the protection or collection of ' aiiy "of the revenues thereof, oi^ to enforce the right of citizehs of the United Siates tb' vote ih the sevei'al' States. Twelfth. Of all suits aiithor- ifeed' by law to be brought by any person for the recovery of dairi- a^es 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 Statuses. Thirteenth, , Qf all suits authorized by law to he brought against any person who, having knowledge that any of the Wrongs' men- 22 38 St. at L. §78; Comp. St. Fed. 430; Cf. Adams v. Chicago 1010. See infrai § 537. ■ Western E. Co., 210 Fed. 262. "88 34 St. at L. =584, 59S. 25 See IT. S. v. Mexican Nat. Ey. 24 N. Y. Cent. :E, "Co.' V. Mutual CoJ,'40 Fed. 769. Orange Distributors, C. C. A., 251 Fed. Prac. Vol. 1—2 18 ORIGINAL. .JURISDICTION [§ 5 tipned, in section, nineteen, hundred and eighty, Reyisedi Statutes, are abput to be done, an,d,, having power ,to prevent. op ^idini pre- venting the same, neglect^ or refjises.so to do, to recovec .damages for, any sufih wrongful, act li'ourteenth. Of all suits. at law or in equity, aijithorLzed: by, law to; be brought hy any .persojitO: redress the I deprivation, under color of. any law, statute, ordinance, regu- lation, custom or usage of any .State,, of any, right, privilege!,,. or immunity, secured- byi .the Constitution of thesiUnited;. States,. or pf any right secured by any; Jaw- of , the; XJnifced, (States providing for, equal rights p^ qitigens of 1;h^ United States,, .pr^ of, lall per- sons, w/ithin the juriisdiction of.the :IIni;tefi[Sta1^es.^^. jFifteenth. Of ,5ill, sijits ,tp , ,r,epipyer, .pos^essipn, of ajiy office:, except that of elector of President or Vice President, Representative in iprDeler gate, to Congress, pr fli|em.b,er. pf a State, legislature, (authpjrized by Ia>p tp be, brought,, ,;whprpin, it appears ,t)}at, .the .sole question toiie^iingi, the title to such ,ppce, arises out pf th,e,:deniar oft.the rig^it tp vote, tp , any citizpn , P|ff e)i;ing , to ; vpte,, on aeepujftt , pf : race, cplpj;', qr,pre;^io,us, .condition flfseryitudei,:, Prop,if^^^ That,, such juriS|diqtion shall, ^xtfind, only so fa,r astp .detejcmjne, the rights ofi tlije, parties , ]t,p sueh,pffice,by,reason of the, denial, of the ;i"ighjt guai;anteed by |;he .Qpnstitution pf the limited; States, and secur;ed b,y any law, , to ,enfor,ce tlie right pf citi2iens of the,, United St.ates to ,vo1;e iniaUthe. States. Sixteenth. , Of all cases commeneed by the United ^;tates, or by idireptipn .o| any .pfficer , thereof, against any .national ;banking. asspciatipn) and, cases for winding up, jthe affairs, of, any, such bank;, and of all suits brought, by anyibanking assofsiat^ipn estajjlished, in the district /fprnWliich,, the, GOur,t is,helji> iindeir|the prpyis,ipns pf title 'Natipnal, Banks, '..Revised, Statutes, 86 It has, been held: that an ae- ,andei; v. City of Tacoma, 2Q8 Fed,, tion to recover money, exS,eted iin- 4S7. ' And on the other hand, that a der a muiiieipal 6rdiiiSihce Tvhich it District Ofaiirt ' irrespective bf'the i? contended jdeniies to pladntiff ' the ■ I' amount in . ieonttroveray has .jurisdie- equal protection of the law is not tion of a suit by an alien to enjoin one authorized., by "law" within the enforcement of all State Laws the meaning: of this clause amd cannot which interfere with his employ- be (brought unleiss the value of the ment. Raich v. Truax, 219 Fed. 873, matter in dispute exclusive of inter- aff'd 239 U. ,S. 33. * est before costs exceeds $3,000. Sal- §5] 'BISTBICT, COURTS 'li" 19 toienjoiri tMe'Oomptroller'of DheiCiirreney, or atay receiver acting' underhis'direietion, asprovidea by sdid! title. And all national' ibanfciil^' assodiations established" undeu' the laws of the lUniiye'd- Statfes shallvifor- the purposes' of all othepaetioiis 'by br against' them, realjpiei^sonall,! or 'mixed 'and' all suits in equity, be deemed citizens of : the i Stated in which' they ai*e respectiviely 'loeaited.*' Seven tee'iith; Of all' suits ibt'Omght by atay 'alien for; ai teTt 'only in violation' of "thd l^B oifl nations or>'of 'a'-tisiiAyi Of 'ffie- United' States. ' ' lEiighteenthj ■ ' Of 'all' suits ■ against consuls and vice- con- suls.** : 'Nineteenth.' Of ail matters and proceedings in toanki' rUptdy.i''';** •" ' ' ■''■ '.'•:. \-l !'./. , !, ■''•.■'' , ii'ldll.hi'' inll, ,'l,; /,' ■The Bankruptcy Act ' providesi; I'fSuits by -the ■ 'trustee' shall only be brought or prosecuted in'th©'eo'ui*ts'wh!^re the'bankirupt,' whose "estate'is'heingadministe'pediby. such trustee, might have' brought 'Or prosecuted them if ppoceedingfein bankruptey'had'iot been instituted, tinless ' by -consent = of the' proposed- defendant,' except suitS"for1?hel' recovery, of property 'undet ^e(3tion" 'sixty;' subdivisi'oni'b, "section sixty-^seven, ''sufedi-vi^ion' e; ''and' section seventy, subdivision' e. "^'' Twentieth. Concurrent "with the Cfttirt of Claims, of all claims not exceediiig ten thottskiid dol- lars- founded lipttii' the 'Constitution' 'of the United' Stidte^'6'r atiy lav^ of Con^fe^s,'br''diion any regulation of ' an' Executive Depart- ment, or'tilpori any coiitta!ct, expr'ess or implied, with the Goyern- niierit of the United States, bir for damages, liqWaiied or unliqui- ,.,■;,; ■•.;•■ !•' '_'i'i I ' ''■ ' ■ I. ,' ^.' ! II il i , .'. ; il ■ ,, 'I • ■ ■ . '. ■*.',, - 1 ' ZT Sfe'e in/ro, '§ S8. , " ' ' Dec. 180'; Sartbri v. Hamilton, 13 28/rhe Supremfe 'Coilrti- o£"thel ''N. J. L. 107; Obm; 'vV "Kdsloff J '5' United Statesi has taiginaliijurisflic- ;i Serg. & E. (Pa.) S45.; iKiddeilin yj tipn ,\n casp^ I affeetingi,;cpfli3uls;,| , Jjl^jer,, 2 ]^ileS(,(Pa.) ;24;2| Pjurandi CoiistitutiQn,.Art,,lilj. '^.^^^ E. S., ^ , , , v. Ha,lbacli, 1 Miles (jPa.) 46j State §' (^87 ;'«tt2)ra, J k'TJhis. jurisdiction^'' v. De' la Poret, 2'Nott & !m.'(S.|C.;)| is exclusive of ttfe coiirts bf'tiie seV-' 217;' 'WilcOx vJ'Luco, lis'Cal' ' 639', eral states. Jud.Gode, § '256;' 36^81. "'62' Am. St 'Eep. 305, sd'PaCd; 7i58. at I li. 1087); qiioted imfra.'" Such, exi il But seei'Jud.. Codej'i 256.' ' "' e^usiye, jurisdiction is constitutional. ' *? See, infra, . Qhapter . .xx?iv on Davis v., Pao^rd,7,^:^^ter^ 276. L.,, Bankruptcy. , ^ I, J _|, , ,,,;.., ■ed.;'Vaia'rino V. Thompson, 7 N. Y.' 30 Act of July 1, 1898, ,30- St. at 576. The State courts formerly L. 544, § 23b as amended by Act of had jurisdiction of actions against February 5, 1903, 32 St. at L. 797, consuls in civil cases; Hall v. arid Act of Jiine"S5, 1910, 36 St. ''at Young, 3 Pick. (Mass.) 80, 15 Am. L. 838. Steie'iJi/ro; §§'e09,'610. ' 20 originaij jurisdiction [ § 5 dated, in eases not sounding in tort, in respect- to w^liich claims tjie 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 sof all set-offs, counterclaims, claims ior .dam- ages, whether liquidated or unliquidated, or other demands what- soever on the part of the Government of the United States against any claimant against the Government in said convt :, Provided; however, . That nothing in this paragraph shall be construed, as giving to either the district courts or the- Court of Claims juris- diction ,to hear. and determine claims growing out of the late Civil War, and commonly known as 'war claims' or to hear and deter- mine other claims which; had been rejected or reported on ad- versely prior to the third day of March, eighteen hundred and eightj'Tseven, by any court, department, or commission authorized to hear and. determine the same, or to hear and determine claims for pensionsi; or as giving to the district courts jurisdiction of cases .bi^ought to recover fees, salary, or compensation for official services of , officers, (jf the United States or brought for such .pur- pose |3y per sons, claijoaing as such officers or as assignees or legal representatives th,ereof; but no suit pending on the twenty-sev-i en|;h day , of June, eighteen,, hundred, and: ninety-eight, shall abate or b^e affeetpd by, tMS; provision ; And provided furtke); That no suit againgt the Government of the United, States shall be aliow;ed under this, paragraph unless the same ;shall Ijiaye 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 twen- ty-one years, first accrued during minority, and of idiots, luna- tics, ilisane 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 these enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively. All suits brbught and tried under the pro- visions of this paragraph shall be tried by the court without a jury."?! , ' 81 See infva, H 96, 97, and Chap- ter XXXV on Court of Claims. § 5] PISTBIGIi'. |(?,OpRTS , • ^1- ',.,Jw itke, event of disagreement as to a claim under the contract oil insurance between the "bureau of war risk insurance'' and any benpflciary ox'beneficiaries thereunder, an action on the claiin may be brought against the United , States in the district court of the United, States in and for the district in which such bene- ficiaries or any one of them resides.^'' " Twenty-flrst; Of proceedings in equity, by writ of injunc- tionj ito restrain violations of ■ the provisions of laws of the United States to prevent the unlawful inclosure ' of public lands ; and shall be sufficient to give the court jurisdiction if service of orig- inal process be had ih any civil proceeding on 'any agent or em- ployee having eharjge or control of the inclosure." This au- thorities fhe' reeo'^ery of the remedial, but not exemplary dam- a^fes'in'a'stiit iii. equity praying an injunction.^* Tlie (joveBp- riieiit eaii recover the reasonable value of the use of the lands wrongfully enclosed although they would not have been leased if there had been no enclosure.** " 'fvi^enty-second. Of all suits and proceedings arising under, any law regulating tlie , immigration of, aliens, or under the con- tract labor, la^s,** ;"Twenty-th,ir<^-,; Of aU, suits and proceedings arising under uny laifv to, protect trade and commerce against restraints and rrponopqlies.** , / , , , , , , > •: j ' Twenty-f flurth. Of all actions, suits, or proceedings involvi- ing(the rightiof any person, in whole or in part of Indiah blood or, descent, to any allotment of land under any law or treaty. And the iijudginent or idecree of anys such court in favor of' any claimant to an allotment of land shall have the same "effect, ■ S., 231; TJ. S. 9. i Unverified certificates of, ipersonsi who are not ,public officers as to the foreign residence are iu- sufficient to overcome the presump- tion created, by the statute. Luiria y. U. S., 231 .U. 8. 9. The failure to file with the peti- tion, the certificate from the Depart- ment of Commerce and' 'Labor, does not deprive a State. iCourt of juris- diction. ,iiTI,! S, v.;,¥an ,Nes8J C. .C. A., !280;Fed. 950: A certificate of citizenship! issued upon the.day when the petition was filed is not void ;and cannot be attacked collaterally. The remedy is by an objection taken' in the,: proceedings for naturalization; TJi.. S. y. Salomon, 0. C. A., 231 Fed; 919. It has been held, that when the witnesses whose names have, • been "posted fail' to asppear, the names of the other. witnesses thereof , in their place, must be posted for ninety i'etys. Be Giaquinto, 230 Fied. 1004; Contra -Be Neugebauer, 172,Fed. 943i A witness? ::who has resided • for the requisite five years within the State, but not within ■ the judicial district cannot establish by deposition any 24 ORIGINAL JURISDICTION ['§5 erroneously patented under railroad or Wagon land " grants tb establish their rights to slich land.*^ ' "The district courts and the United States cominissioilfers shall have power to carry into effect, according tb the true intent and meaning thereof, the award or arbitration or decree of kny consul, vice consul, or commercial agent of any foreign nation; made or rendei-ed by "Virtue of authority conferrted on Tiim as such consul, vicb 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 whpg?, in- terests are committed to his charge, application for the,.exere,ise part of such residence. TJ. S^ v. Kolodner, C. C. A., 204 Fed. 240. A hearing in the Judge's Chambers adjourning court is not held in open court 'and does not comply' with the ■statute. XJ. S. v. Ginsberg, 243 XJ. S. 472. It was held that the declara- tion' of an intention to become a citizen of the United States is not a part of a judicial proceeding and that a defect in the Same cannot be subsequently cured by an amend- ment wmtoc pro tunc. Me Stack, 200 Fed. 330. Where the petitioner had filed his declaration under a false name he was required to 'file a new declaration. Me Boorvis, 205 Ted. 401. Where subsequent to the nat- uralization an alien changed his name, iinder an order of the State Court, it was held that the Federal Court where he had been naturalized had no jurisdietiom to amend the proceedings ' so as to substitute the new name, for- that under which he was naturalized. Jfe Perkins, 204 Fed. 351. See infra, § 206. It is presumed that the findings of the Court which issued the cer- tificate are correct, but this presump- tion is not conclusive and any errors of law may be reviewed. U. S. v. Nopoulos, 225 Fed. 656. The afSdavit which is the founda- tion of the proceedings to set aside the certificate may be made on in- formation and belief. U. S; v. Leles, 227 Fed. 189. An affidavit was held to' be Silffi- cient when it stated upon informa- tion and ' belief that the holder of the certificate was not qualified' to be naturalized in that lie was not a person of gciod moral character, for five years preceding his application that he procured naturalization iii violation of law and upon the' tes- timony of witnesses who were not under oath. U. S. v. Lelesy 227 Fed. 189. The proceeding for cancella- tion, is not a suit at common law and the defendant is not entitled to a trial by jury. Luria v. U. S., 231 XT. S. 9. '^J; See U. S. V. Ojala; C. C. A.i.'182 Fed. 51. It has been held: that a suit to cancel a certificate of Tiat- uralization is a special ' 'proceedin'g and that the pleadings and' procedure may be moulded in any way which seems best calculated to meet' th^ needs of justice, but th'at proof must be of the kind and force re- quired to set aside' a judgment, IT. S. V. Mansour, 170 FedJ 676. See §151b. .-;,.. 41 Act of March 2, 1896, 29 St.'at L„ Ch. 39. p. 42 ; Oregon & C. R. Xio. V. U. S., C. C. A., 144 Fed. 832. § 5] DISTRICT COURTS 25 V qf, 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 ideeree, and to enforce obedience thereto by imprisonment jn the jail or .other place of confinement in the district, in •yvhich the United States may lawfully imprison any person arrested under the authoi^ity of the United States, until such awaird,, (arbitration, or decree is complied with, or the par- tig?/ 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 asppointing such, consul, vice consul, or, commercial agent: Pro- vided,, haivever, Thjat the expenses of the said imprisonment and maintenance of the , prisoners, and the cost of the proceedings, shall be borne by such foreign goviernment, or by its consul, vice, cQjnsul, , I51J commejrc,iia,], agent requiring sifch imprisonment;, -The marsljalSjpltheXJnitedi Sta;tes s^^U serve ,a|ll sjich process, and dp^ all oth^jr acts necessary and proper to carry into effect the ■prepi,ises, under the authoi"ity of ^thp said courts, and commis- sioners,. ''|**. „^, ,.,,. , ,,,^. ,,,.• ,,, ; , ,. , , . I, , The District , Courts havp also jurisdiptipn, by removal .from thp .pt^te courts, 0^ all cases in. which tjhey have original juris- djiptiqiji, and of which the State, courts, have concurrent; jurisdic- tion,*' wiljh the exceptions of those arising under the Employers ' Lj^)?ility ^(it, c^f April 22nd, 190.8; apd of suits to recover dam- ages, for delay, ,lpss ,of or injury to,: property recei,ved for trans- PQ,r,tationj, where |the matt.er in, controversy, exclusive of interest aoid costs doeis jjot, ex(^ee,d, the value pf $3,000.** Suits of thesj two latter classes when brought in a State court cannot be re- m( 343. , ■ i .» 56Jiid. Code, § 25, 36 St. at L. 81 Act of Feb. 28, 1920, § 310. 1087. See imfra, Chapter xxxvi on 62 40 St. at L. 339, §15. Writs of Errors and Appeals..' 63 26 St. at L. 209, Comp. St. *7 Jud. Code, § 26. ,§5] . DISTRICT, COURTIS, ; 27 /vyithin the limits, of any IndiaUiJ-sespry^tioniii the Sitate.pf,, South .•Dakot^,," " , ' . , ,, ,,,,,;,:': .,,,, i , , ,.,, .,•. :,■,•■■ .:. -- ,'',The jurisdiction xe^t^dfin ,t^ ooiirtS:,Q^(the.lJH,it!ed Rotates in the cases and proceejdiiigs he^ei]jL,after jmenljioned, shfiUi be, ex- clusive of the courts ,o^ tjhe,s,ey^ral Sitates.*®,,; ,, ;,,m;,, , f! First. ,Qf all crimes a,nd. Q;ffep^es cognizable under thie author- ity of the , United, States, ,,i, I .;i ; : ■ i,^,CC0Ufi. Of all ,sui,t« , for, penalties and forf eitures , incurred under , the. laws of , the, United States, .,..;, ,;,,. (.-, 1 .Third,, ,0f all civilic^uses, of a,dm.iralty and maritime jurisdic- tion, saving to suitors in alL crises the right of a common-law r,emedy, wherp, the.eommpnlaw ig pompptentto ,give,itSi,and-to , iclaimants the , rights, , and. . reinedies . under the , wprkmen f^, , com- ;pensj^tion law of anyiState.®" ,,, , ' : ',,/, ,„i ;.; ,,, Fourth,, Of all,, spi?;ures under the laws of the United States, onlajad or, on waters i not within admiralty and maritime juris- diction ; of all prizes .brought into the United States j and of all proceedings for the condemnation of property i taken, as prize. ,., 'Fifth., Of all eases arising ,under the patentrright, or copy- ■ right.laws of the United States.®^ ,i,. . i i. . .i,. - : Sixth. 1 Of all matters: and proceedings ini bankruptcy. 1 1 ■ , ; i. Seventh. 1 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 iproeeedings algainst ambassadors, or other public ministers, oi* their domestics;' or domestic servant, or against consuls or vice-consuls.®*' ' ' The jurisdiction 'bf 'the District Courts is restricted in' most instances by the residence of' the 'parties or of ' thdr assignors. These restrictions are 'hereinafter 'cttnfeid'6red'.*^' ■'* ' The District Courts are courts of limited jurisdiction.®* Par- SSIbid. §27. ■■ eiSee iJi/ra, §§29,il46,. 147, 150, 59 A, State , Court has:no junsdic- , 188,, 277, ,278: ,,. . , . ;.;.,,. , , tion of a, criminal prosecution for an ,62 Jiid. Codp, § 256, 36, St. at- L. assault by one Indian upon another 1087. which is committed ilia State Ee'ser- ' " 63 See' Mi/ra,' §'§-61-163.' !"~ ' '' ' vationi- People v. Daly; 212 N. Y. 64. «e Hollina, C. C.'A.; 229. Fed. 183., :.; ,,, -i,,. - I. ,r.. i :i 3,49., ,, , . -. . . 60 40 St. at L. 395, Comp. St. § 1233, infra, § 560. 28 ORIGINAL JURISDICTION [§'5a ties cannot, by consent, give them jurisdiction of any matter iibt conferred upon them by the Constitution and Acts of 'Coilgre'^s.*^ § 5a. Jurisdiction of suits on contractors' boiidfe. Suits'upon contractors' bonds. 'The Act of August 13, 1894, "Whicli ' hais been amended February 24, 1905, provides : " ' '''That hereafter any person or persons entering into a formal contract with the United States for the constructioii of 'aiiy pub- lic building, or the prosecution and completion of any'pilblic vv^ork, or for repairs upon any public building or' public ' wbrl, shall be required, before commencing such work; to execute' the usual penal bond, with good and sufficient sureties, with the ad- ditional obligation that sUch contract&r or contractors' shall promptly make payments to all persons supplying him or tHem with> labor and materials in the prosecution of the wbi-k provided for in such contract; and any person, company, or corporation who has furnished labor or materials used in the constru'c- tion or repair of any public building or public work; and pay- ment for which has not been made, shall have the right to inter- vene and be made a party to any action instituted by the United States on the bond of the contractor, and to have their rights and claims adjudicated in such action and judgment rendered there- on, subject, however, to the priority of the claim and judgment of the United States. "If the full amount of the liability of the surety on said bond is insufficient to pay the full amount, of said claims' and demands, then, after paying the full amount due the^ United States, the remainder shall be distributed pro rata among said interveners. "If no suit should be brought by the United. States within six months .from, the completion and final settlement of said con- tract, then the person or persons supplying the contractor \yith labor and materials shall, upon application therefor, and.: >f ur- nighing affidavit to the Department under the direction of which said work has been prosecuted that labor or materials for 'the prosecution of such work has been supplied by him or them, and payment for which has not been made, be furnished with a cer- tified copy of said contract and bond, upon which he or they shall have a right of action, and shall be, and are hereby, authorized to bring suit in the name of the United States in the circuit 65 Ibid. § 5a] SUITS oi^ contractors' bonds 29 court' of the United States in the district in which said contract Nvas to' be performed and executed, irrespective of the ataount in controversy ib such suit,' and not elsewhere, for his or 'their dse and'hfeneflti stgainst said contractor and his sureties,' and to prose- cute the same to final judgment and execution' : ' ' '''•'Provided, That Where suit is instituted by any of such cred- itoi-s on the boad of the contractor it shall not be dototmenced uwtil after the complete performahce of said 'contract and fiilai.1 settlement thereof, arid shall be commenced within one je&r kfter the performance and final settlement of said contract, and not later : ''■"'Arid provided further, That where suit is so instituted'by a creditor or by creditors, only one action shall be brought, arid any creditor may file his claim in such action and be made party thereto within one year from the completion of the work under said contract and not later. If the recovery on the bond should be inadequate to pay the amounts foiiud due to all of said eired- itbi^s, judgment shall be given to each creditor pro rata 6fthte ataount of 'the recovery. The surety on said bond ihay pay into court,' for 'distribution among said claimants and creditors, the fuirambunt of the sureties' liability, to wit, the penalty* named in the bond, less any amount which said surety may have had to pay to the United States by reason of the execution of said bond, arid upon so doing the surety will be relieved from further liaMity: ' '' "Provided further. That in all suits instituted under the pro- visioris of this Act such personal notice of the perid^c'y of such suits, informing them of their right to intervene as the coiirt may order^ Shall be given to all known creditors, and in addi- tion theretti notice of publication in some newspaper of general circulation published in the State or town where the contract is being performed, for at least three successive weeks, the last publication to be at least three months before the time limited therefore." ^ ' The suit may be brouglit in the District Court irrespective of the amount involved.^ When the United States brings the §-5k 128 St. at L. 278, as 2 U. S. Fidelity and' Giiarahty Co. amended 33 St. at L. 8!ll, Comp. St. v. tJ. S. for the beneflt of Kenyon, 6923; 33 St. at L. 728, 729; ' ch. 204 XJ. S. 349, 51 L. ed. 5l6; ; 592 §§17, 19. :,.■.. 30 OEIGINAIi JURISDICTION i [>§ 5a suit it,se.ems that it should be hrQught iu; the- district, ,pf th^ ijesi- ,dence. of the defendant against whom. judgment is desired*' When. the suitiis by. a cpeditoj- in the name of the United States, it.shpuld he brought in, the district in which the CQptraot was to be performed.* The Distriot, .Qourt, there held; may, issue proeess to.be served in, other districts upon the non-resident .dsefendants.* If ithe.liabjjity.of ;the sureties is contested, the suit should be brought at.commoft law.® .If the surety, does , not contest but pays itito Cjourtthe fullam,aunt of ;th& liabilities, for distribution, the pijpceeding heoomes ouefor the distrib)ition,.in, court \yhich is of equitable cognizance.'' ,No laboreXiOr material man can bring, suit, until the six months iprescribe,d in thci statute haye expired-* The six months. begins tp|.run,,npt from, ;the time: of the. final payment; buit from, the day when the- lamount which, the, government, was finally , bound to,pa.y ,or en,titled to ,receiYe,was! fixed administratively by. the proper authority.' ..Where, the worl? of the contractor! was in charge.. of the , Secretary of , the. Treasury and.Jinderthe general supervisio]i,pf ithe Supervising Architect, it was. held that the date of settlement was that when the Secretary .of the, Treasury ap- proycid the, recommendation by the Supervising Architect upon the, subject and ordered payment aficprdingly.^" ' ,,,,,;,;; i. I, ,T.he guarantee by thei cpjitr^ctor to keep, the: woixk^'artd in^- .terials in repair. for a year after completion apd acceptance,," the retainer by the United States at five per cent, of the contract price for a year after , s,uch acceptance,^^ the , retainer by the Upited States, a,papt of the contr.act price, to , cover. the cost of completing part, of the work, ,the .halarice, , tp i be, paid i after .ihe completion,i^' anid the refusal of tlj.e eontractoi; to agree, to, the ; set,tleitient w^f by the department ;,^*ido ijpt postpone the run- 3,TJ. .S. v., MoGe'e, 171 Fed. 209; Cement v. McCdrd, 233 TJ. ^.157. see' infra, § 61a. , , . ■ , . ^ Illinois Surety Co. v. TJ. S. to the i28 St.'ait L. 278;'as amended, 33 use of PeeleJ, 240 TJ. S. 214, 222. ' St. at L. 811, Comp. St. § 6923. lOIbid. 5 B3,ker .Contract Co, v. , United H TJ, S., y. fll. Surety Co., 1,95 .i'ed. States, for, use pf Penno,ck, C. C, A., i3/}6. 204 Fed. 390. '" ' 12 IbiA. ' ' . 6 Illinois, Suj^ety Co. v. .U. S. to the , iSEobinson v. TJ. S., CrC. A., 251 use ofiPeelei;, 240 TJ. S, 214, 223. Fed, 461, 4(54. . 7 Ibid., 24.0 U.. 8^214, 225. \ MJbid. , 8 TJ. S. Ex rel. Texas Portland § 5a.] SUITS, ON CONTKACTOBS' BONDS 31 ning of the six montlisj When the original suit was prematurely begun, ) an intervention i is not effectual as an original .auiti^* When the original suit is duly' brought, an almendment whiefc dtoes not.' plead . a ndw, eause lof action imay bC' allowedi^* i ' When the original bill was prematurely brought an amended pleading filed ' ttiore than one year after the final settlement must be treated as an, original suit brought^ too late. ' . ' , , ,^Ji?n .the ,sui,t„ is brought by the,, Rnited, States ior its o-ym benefit, the government is not required to serve or file notice to elaimants:*'' ■ ■ > , ,• ., The right of intervention given 'by the statute must be' exer- cised in accordlance with usual practice and limitatiglns applicable to interyention^ in the. .Federal Courts.^' 'The ixiteryefttion must be made i within a year after the final settlement.^' An interven- tion by an alleged assignee who failed to prove the assignment cannot be heldan intervention by the 'person through whom he claimed.*" But where one malces.a claim in his own name oil, bjehalf of gajpt}?,?*!", it;se.ejms that the names, .of the real, party .in interest may be substituted:*V, Any application for intervention is made too late When delayed until after the suit has been dis^ missed as to ^eohtr^aiitor for improper seryice, and as to the surety tried and' ^ubinitted.*^ ,^ The provision for notice to, other creditors by: the creditor, who began suit is i directory and its omission, does not deprive the court of jurisdiction nor relieve' surety or contractor from liability.*^ It is pi'tiper practice to obtain from the cbilrt an .15X1. S. Ex reli Texas Portlana Co.; 235' 'U. S.'"327, 'p'er' MoKenna Qement'Co.iv. McCord,i233 17. S. 159. J. "If is urged that it' is a eon- .mi]. Surety Co. v. XT^ 8.. in the. sequence of our construction ' that use of ,!^,eele;:, ,240 U. S.. SW. , r i. an action may be feoihmfelieed on the 17X7. S.. v.,Mu!Gee„.171|Fed, 209... last day of the year a;nd that 'ill 18 See i»/ra, §§ 258-261. ,, . ,, . opportunity for' intervention may' 19 111. Sure,ty Co. V. TJ. S.tjo.the; be precluded, for, counsel ' say, use of I*eeler, 240 IT. S. 214.,. 'intervention "eanilbt be conducted 20 111 Surety Co. v. XJ. .,S. to the in a 'day" "and it would ^eem ' as if use of I*eeler, 24^0 XJ. sl 214. 226. thfeact intended 'to afford .creditors 'Zl'A'id, McDonald V.' Nebraska, ait interval of thtee ntcJnths within ICfr'i'ed.' 17l, 1'78; 33 St. at IJ. which to sBcUfe an iilte!rvelltidll. ' 7^8, 729;'C. H. S&2','§'§17, 19. E\?en ' if ' this be' the cOn^equenfce;' ' 22 XT. S. v; Me'Gfeej'l71 Fed. 207.' some of the 'pirovisions bf the attt, 23 XT. S. for the! use of Alex. as' we have iritimated; must give' Bryant Ool v. N.'^. SteamflttJng wsty. ' We can eniljri select those 30', OBIGINAL JURISDICTION E§.5a orider stating that all laborers and material men who have not been paid may, if they are entitled to intervene in the suit, have their rights adjudicated under the provision of the Act of Con- gress and to serve copies of the order by mail to all known credi' wJiieh, we consider the fittest to pre- vail to accomplish the purposes of the statute; and at the very start eoiiies the Suggestion that even if it be granted that the diligent creditor is under obligation to give npti^ to, a waiting or tardy, or,, it may be, unwilling one, how is tlie surety of the contractor concerned with the discharge of the obligation? At the most its concern is only to be protected ag^iijst claims , delayed beyond the limit of time provided by the act. We may" refer again to Vermont Marble Company v. Natioiiail Surety Company." 213 Fed. 429. "The court in that casBj in careful dis- tinction between the purposes of the provisos, said that the first and second confer a substantive right of action or intervention limited only by a time for assertion'y that is, one year ,from the completion of the w,ork; and that that time was 'obviously for the benefit of the sureties on the bond;' while the last proviso (the third) was 'just as oibvj|Ously for the benefit of the cTpditp;rs alone. ' It was pointed ,out that indeed it was to the interest of the sureties not, to bring in the other creditors, and yet they contended that the provision for the notice to the. creditors was mandatory and jurisdictional and not simply directory. The same contention is made in this case. In other words, it, is in effect contended that a pro- vipipn which is to the interest . of the, Surety Company not. to have observed the statute gave il; a right to have observed. Such a contra- diction of interests and rights we cannot assume the statute! intended to create nor that it was iritended to give to the Surety Company, a right to have done that which it is its interest not to have i per- formed. The provision for notice therefore . is not of the essence of jurisdiction over the case, nor a con- dition of the liability ;of the Surety Company. We need not go f arthejci in this case. ' ' In the cited case it was held that the. third proviso was directory only, and the conclusion has rea- son' to sustain ' it. There can be no sacrifice of, rights in it, neither.' of surety companies por of^ creditors, Every creditor has the same rights and may institute the action pro- vided for in the first proviso. ■ If he does not choose to do so it is his own affair; and he may guard against surprise or deception; He knows the time limit of suit and of intervention. He knows that the suit must be brought in the District Court of the United States ih: the district "where the contract was per- formed. It would seem as if the law owed him no further care, if he chooses he may institute proceed- ings if another' has not done 90. If another Has, , he knows in what court and within what time and he may intervene. He has, therefore, the means of suit or the, means of intervention. An attentive waiting is all that is necessary for eitlier, and indeed is his ultimate safe-i § 5a] SUITS ON contractors' bonds 33 itors without any further notice.** The newspapers in ' which publication' is made need not be selected byi the court.*' Where an order direbting publication had named' a year prior to its dateijiit'was held,' thali this mainifest error was too trivial for discussion and' should be disregardedi*^ ' 'it has been held, that the filing of the affidavits and obtaiioing of a certified copy of the bond is toot a condition precedent to the right to sue.^''' ■ ■ <- '''■- '' '■ ih'ii.i! -,,1 !' "' . ; ' [The 'United States are not necessary parties tO' a suit brought in their name upon such. a bond.*' '^ ' ' ■ ' , The complainant should set forth the-bondi in fulL or allege that it was conditioned as required.*® When the suit'is described as brought for the use of One'icrdditori there 'is'no neM' of an averment that there are no other persons with unpaid claims ag'Mnst the dfefendants under bond.'" The statement of a claim byi an intervenor need not show a failure of the government to sue.*^ It has been said that the' court will not permit its discon- timiance until it appears that' no intervenor is ready to prose- cute the suit.** The' objection ithat the notice to other creditors has noti been published, may be , raised J by a special appeai?ance and motion to set aside the service as Well as by an answer.'* It has been hpld that the six months statute of limitations is a con- dition to the cause of action gra.n;ted, by, the, statute an(i| .con- sequently need not; bet pleaded by, tbfi defendant,'* Each suc- cessful claimant, may be, allowed to tax a docket fee,'* but a surety \vhp paysinto e^urt the amount of, the penalty and , is discharged guard, as interveiiWbn must (Jepeid ' 28 U. 8. T. 'Am. Surety Co., 127 on a suit previously instituted." Fed. 490. , 24U. 8. ex rel. ProetOT Mfg. SOU. S. v. Perth AmJjoyShip Go. T. 111. Surety Go., G. C. A., 228 Building & Eng. Co., 137 Fed. 689. Fed. 304. 31 Fidelity & Deposit Co. v. XJ. 26 Ibid. S., 229 Fed. 287. 26 Ibid. S2Merehants', Nat. Bank v.tr. S., 27 U. 8. V. Mass. Bonding & Ins. C. C. A., 21^ Fed. 200, 206. ., Co., 198 Fed. 923; Title Guarantee 33 Merchants' Nat, Bank v. U. & Trust Go. V. Crane Co., 219 V. 8. 8., C. G. A., 214 Fed. 200. 24, 34. For other cases where the ' 34 Stitzer v. U. 8., C. C. A., 182 United States may sue upon a bond Fed. 513, 516. See infra, 1 180e. for the benefit of parties interested SB Title Guaranty & Trust Co. v. in the security, see mfrm, § 112. Crane, 219 U. 8. 24, '31 Sup. Ct., ' 28 Title Guarantee & Trust Co. v. 140, 55 L. ed. 72. ' Crane Co., 219 U. S. 24, 34. ■ Fed. Prac. Vol. 1—3 M ORIGINAL JURISraCTIONii . - '[§6 from further I liability cannot be given ain allowance for counsel fees out of the, fund. when it is insufficient to pay the creditors of the principal.^^ Thcifund is distributed pro rata amongthose whose claims, are. aLlQ wed, including the United .States.*''' It has been held that the government has no right to priority.** The Act extends to a .sub-contriactor of a sub-contractor.*' Con- tracts for the iConstruction lof a ship are included with; the stat- ute.*" The liability of the sureties is not sifn'ciiJMm.*^ i M\Creditprs fori cartage and;- towage of ■ materials to the spot where the work was performed I for patterns , and > for making scaffQlds are entitled., to theibeaiefit of the bond.*^ A person, not a laborer .or. material man, injured by the negligence of a con- t^-aetor has no Eemedy upon.thebond, although' he has a cause of action against the opatractor.** It has been held ; that the United States: may recover, upon a bond given by < a clerk in the Post Qf&QM, the loss caused by his speculations. to .the i owners of the stolen monej^ as. well as the: loss to the Government; and that the Grovfij-nmentiholds the amount. recovered in excess of its own loss in. trust for the benefit of. those thus injiired.** §6. Value! of the matter in dispute. In gfeneral. The value of the matter in dispute in suits brought in the District Courts of "the United States or 'remioved thereto, when the jurisdiction depends upon difference of citizenship, or because the case arises iinder the Constitution 'or laws of the United States or treaties made Hinder their authority, must 'ordiriarily exceed, ' ' tex'clusive of interest aM costs, the' silm or value of three thou- sand dollars. " ^ .■ The excepitions are stated in tbe preceding sec- 38U.' 8. V. Hcaton, C. C. A., 128 Crane Co., 219 XJ. S. 24, 31 Sup. Perl. 414. ■ " Ct. 140, .55 L. ed. 72. - 37 Am. Siirpty Co. v. 'Lawrence- *1 U. S. Ex rel. Hill v. Am. Sure- yillo Cement Co., 96 'Fcd.'Ssy IT. S. ty Co., 200 U. S. 197, 26 Snp.' Ct. V. Am. Surety Co., 12'6 P^d. 811. '^^^' ^^ ^- ed. ,437. .; . ' 38 Ibid. ■ XJ. S. V. Heaton, C. G. *^ 'T^*'" Guaranty & Trust Coi: v. ,• ,„„ 4,.si. .4.''- ' ' . ' Crane Co., 219 itr. S. 24, ,34. A., 128 Ped., 414. , ' ' 39 U. S. ,ex . rel. Hill v., ^ra. 43ITJ. S., for the use of Carnegie Institute ' of .Technology V. C. A. Surety Co,, 200 U. S.,A?7; 26 S>ip. Riffle, co., ,247.Ped. 374: Ct. 168;,. 50 L, ed, 437; Mankin v. ^^ g ^ jj._ g_ piaeiity & Guar- U,. S,, 215 U. S. 533;; 30, Sup. a. anty Co., C. C. A., 247 Ped. 16. 174, 54 L. ed. 31.5. ■; ... §6; Uud. Code, §24, 36 St. at 40 Title Guaranty & Tr. Co. v. L. 1087. §'6] VALUE OF MATTER. IN DISPUTE 38 tion.2 This enlarges tke' former juidsdictidn from two thousand to .three thousand dollars.' The statute does not apply to cases pending when 'it "was passed.* "SSShether it applies to causes of action that arose- prior to February first, 1912, is a disputed •question.* ' •'< i: .-..i ••■. ...ni ':|.,.. > :' :,.' > • '•■..■;(». The matter in dispute must be of such a nature as to be capable of being reduced to a pecuniary standard of value.* Such is not the right to personal liberty.' Consequently, an application for thewrit of habeas eorpics aanii&the removed ;'^;and the writ Of haieas o&rpus cannot issue' originally from la Bistrict Court of the United States, toi determine the right to; the icustoidy of a child, or in any other case, when it is not authorized iby statute.'' Nor the right to a .divorce.^ Iti has been sajdt?! that in a suit for a divorce, where the plaintiff prays-; aliiaony.chargdng^, that! the d^endant is . the, owner of valuably , iieal, ; estate i and pj^QP^rjtyi .in- terests, land a,lso, receives .a yearly .ineowe of no,t,less,,tha)i ,$10,- OOQ ; it does, not appear:tji,^t li^^e.vEiliie -,of,;t;h^.m^t]tey^in dispute exceeds the sum of $2,000, ,since it is uncei;tajLn wJjS-Jt ^mptiij:ti,C)|. g,,lim,(^ny, the court may allow, and ,^l|e ,^imony is only an i]i,cident tothe right to .a.diyorce.' , The s§me, rule h^s been, applied,^ by a State eonrt, upon an application to remove a, suit to set aside a 2 Sapfo; § 5. ' ,'>iji; petitioner againsfc a .forBi^ 'goteTH- ,.3Jud. Code, ,§,299,, r?,6 SJ^.. af.^ L. , .ni.piit.^, TJ-.S. .ex.,relr,i0:olzeiido.r4| v. 1087. . - ^ . ■ikay, X94-IJ.,S. 373, 48 L. ed. 102S 4 It has been held that it does not (appellate jurisdiction). apply to caus'es' of action that arofee ' ' " 6''KUrtz"-('! Mdffitt, 'll5 XT; S. 487, prior to February. 1, 1912. Taylor 29 L. ed. 458. VL Midland Valley B.' Co., 197 Fed. . vaiiEford v. Williams, '131 Ffed. 327. Contra Sloahe v. Kramer Btos. 100. See In re Eurrus,'J 136 I TJ. S. & Co., 230 Fed. 727. ' ~ 586, 593, '597,. 34 L; ed.'SOO, 503, 5 Ktfrtz' V. Moffit?t, 115 U. S.' 487, 514; Perrine v. Slaa,.164.ir.-'SJ 452,' 29 L. ed. 458. See also Snow v. XT. 454, 41 L. ed. 510, 511;;i.B!r:j)ai-ie S., 118 U. S. 346, 354, 30 L. ed..;207. Evert, 1 Bond, 197; In le Barry;;42 209; In re Burrus, 136 TJ. SiS86, Fed. 113; alSo rte^jWrtied .136 TJ.'S. 593, 597, 34 L. ed. 500, 503, 5W; 597; 34 L. ed: -514. , ' ■■ Perrine v. Slack, 164 W. S. 452, 454; 8 Johnson v. Johnson, 13 Fed. 198. 41 L. ed. 510, 511; 'Wihitneyiv. Dick, The court might, however, take ju- 202 U. 8. 152, 50 L. ed. 963; 'Ex risdictidfltofla suit to enfold, a* de- parts Evert, 1 Bond, 197; In' re oreei ' awarding alimony. Bapber 'v. Barry, 42 Fed. 113; Clifford v: Wil- Barber,''21 How;i582,'ie L. ed.;226i liams, 131 Fed. 100. Such is not 9 Bowman v. Bowiman, 30 Ffed. the right to compel the Secretary 849. i ' ' ' • of' State' to assert a i felaira" by the ' ' ■. ■ i i. 36 ORIGINAL JURISDICTION [§ 6 decree of divorce.^" 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/^ but that th'C value of the right to appeal from the probate of a will is at least equal to the share of the appellant in ease the decedent had died intestate.^^ i , The value of the,ma;tter in dispute is not the amount of any contingent loss or damage which one of the parties may sustain by a decision against him ; but the amount in dispute between the parties to the pending suit.^' Thus, the reason that, on ac- count of its probative force, the judgmtent may operate as an estoppel in a subsequent j)roceeding ^ i* or affect his rights against a stranger to the suit; ^* does not increase the value of the matter in dispiite; 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 payment of all the taxes assessed against him, coiipohs for iiiore than the juris- dictional amount ; it was held : that the matter in dispute was the right to tender all those coupons; and that the case might be removed.^® Prospective damages, which can be recovered in the action, or which the bill is filed to prevent, should be consid- ered in the estimate,^'' when they are alleged with sufficient cer- tainty.^' Where relief is prayed in the alternative, it seems that that which involves the larger amoupt is the test of the juris- diction.^' In a suit for an accounting the jurisdictional amount lOCaswell V. Gas#ell, 120' 111. 377, diction.) Mayor, ete.y of Balitmore 11 N. E. 342. V. Postal Tel. Gable Co., 62 Fed. 11 Whitney v.: Am., Shipbuilding 500. Co.; 197 Peld. 777. l« Smith v.' Adams, 130 U. S. 167, 12Erwin v. Walsh, 27 Fed. 579. 32 L. ed. 895 (appellate jurisdie- 13 Boss V. Pl-entiss, 3^ How. 771, tion).; 1 , » 772, 11 L. ed. 824; Elgin v; Mar- 16 Green v. Brooks, 28 Fed. i 215. shall, 106 U. S. 579, 27 L. ed. 249; "Draper v. -Skerrfett, 116 Fed. Bruce v. M. & K. E. Co., 117 U. S. 206; Southern Cash Eegister Co. v. 514. Montgomery, 143 Fed. 700 ; infra, 14 Elgin V. Marshall, 106 U. S. §13.. 579, 27 L. ed. 249; Bruce v. M. & 18 Oregon R. & Nav. Go. v. Shell, K. K.,Go., 117 IT. S. 514, 29 L. ed. 125 Fed. 979. 990; New England Mtg. Go. v. Gay, 19 Shappirio v. Goldberg, 192 TJ. 145 U. S. 1,23, 36 L. ed. 646. (All S. 232, 48 L. ed. 419 (appellate ju- these were cases of appellate juris- risdiction) ; Hay ward v. Nordberg §.6]: VALUJi, OP MATTER IN PISPUTE 37 i^,tti|eiyalvje„9f, title. ,f]and of which :an account is sought ; ^^ , but w^ejj-g, no,, perspns not, joined ,a^ parities are interested, such as cr,^(^jtorsi;w]3,9t,are,, not parties to,tMe suit, tjie > ajnount in con- tjjftyersy .(io,^?, not, exceed the aggregate ,pf, the .amounts claimed by .the f^ffer,ent parties, irom, each, other. ^^ In a bill fordis- cqyery, tb^ apipi^nt , inyolyed, in .tlp.ie , svijit, cQncerning .which dis- covery ,is .tp ibe.Tjsed is^ the tfisj; of .i^lfie jurj^dictipip,.,^^ , j ..^jiei;^ thp iftoniplaint; or, (ie,clar,ati on j contains several counts, qf,. causes, of action., in , dfiterminipg tjlie valu^ i of . the, matter in dispute ,ttipjr>.aggrega.tej,a!tnpuflt is ito be considered,*^ unless it appears, J:pi^t.6aph is ^0|Unded. upon,, |;he same stat,e of,facts,,^* or that, ,t]ie.p;];ai#tiffi ,is' 4Pt, in , |act, t^S. pwjaej. of, .aUi the iclaims upon which he su$Sj[** ;or that:they,areiimproperly,ui)iit§d;.^® but where after removal a Ideiuuur rer .tOi one of ! two ' causes , of action ; was, sus- taifaed! and ithe. Remainder' was. for i less ithail the jurisdictional amoumt, th^i ease was remandted.^'' ! ■■[ ' ■ .- Thiis,!' where' the : complaint, in form, stated two causes^ of ac- tion; 'eacHfOT the' fMut'C' to deliver a telegram, and each alleging •.iGo'.l 85' Ted. 4, 29 0. 0. A, 438; . .e)^,.v.,,TJ,.i ^,/Mfg.. Cq.,..13^-, "zOEogei-s v",Lawton, 1^2 Fed. 20.3. ''aiMiiil' v^'i^arifAtt Br'ds: Vo.,' 2l8 Fed. 713''('pl^¥tfn(i*yhip aecouiitiKg) ') ' i JohniW. i Hobdi &i<7o.':V. Bqard of Sq^opl Pjixeptor?,,,210,F,ed, 384i:. ,,,,,, 28 Mutual Ifife Ins. Co. v. Painter, 'S(3Jii'ds6ii''v. Macon County Fed. Oas.!Np.;7,568. (2 Dill. qi3).;' Stan- ley V. Albany . County Sup 'rs, 13 Fed. 483 ; Hammond v. deaveland, 23 "Fed.' 1 ; ' 'Bernheim V. Birnb'auihJ 30 Fed. 885; i- Armstrong v. ' Eltle^ i sohn, 36 Fed. 209; Chase v. Shel- don' BoJler-Millsi Do.,, ■ 56 , Fed. ' 625 ; Bowden v. Burnham, 59 Fed. 752, S C. G. A., 248, 19 IT. S. App. 448; Weaker, ..,v.f .;N"orwa^ Tack; Co., :80, Fed. ,700;. Bergman ,.v. Inman,; Paulsen &; , Co., |91 Fed. . 293 j .' Davis v: .Mills,. ?9 iFe)d.i'3:9;, Southern Cash Eegister.'iC'o,, v, Montgomery, 143 Fed. 1 700. 1 . The State practice in this, .respe.ot is not^ followed. ■ , Yates ,v. Whyel Coke Co., 221 Fe^^ ' 603. 'Heffiier v.' 'Grwynne-'TreadWell Cot- t6n Co., C. C- A.; led' Fed. '635; ' Spokane Valley. Land &. 'WAteir Co. ,v. Kootenai County, ,I,daho, 199 Fed. 481. ,Kaus V. Am. Surety Co., 199 Fed. 972, where the jurisdiction was ' bustained beck^se of the 'joinder of two I i causes ' of action i. against i the , same surety, upon .bonds giYen . by separater, saloon-keepers, under the Iowa Civil Dainage Act. ' 24Pooser V. Weste'fn Union Tel. i Co., 137 Fed. 1001; Balitmore & O. E. Co. V. Eyan, 31 Ind. (App.) 597, 68 N. ^. .923. . , zswoodside v. Beckham, 216 TJ. S...U7, 54 L, ed, 408. ; 26Bucyrus Co. ,v. McArthur, 219 Fed. 266; Sl.oane v. '^ira.mei Bros. & Co., 230 Fed. 727. ,, ,,,, , 27 Jones , V. "Western JJni.oji , Tele- graph Co.,.233 Fed. 301. ' . . . , 38 ORIGINAL JURISDICTION [§'6 damages in the sum of $1,900 ; the only difference being that in one it was alleged that the telegram was addressed to a woman, and in the other that it was addressed to her husband, it appear- ing that the telegram was the same, and that the plaintiff's coun- sel could not determine from the manuscript as to which of the two was the person to whom the telegram was addressed; it was held, that the cause could not be removed.^* Where the declara- tion contained three counts aggregating in excess of the jurisdic- tional amount ; the first upon a contract for services' at an agreed price, less than this; the second upon a quantum meruit for the same services, alleging their value at a sum in excess thereof; the third for goods sold, money lent "and a like sum of money due on a contract," such as that specified in the first, "and a like sum for commissions" in effecting the sales therein specified ; it was held, that the court had jurisdiction.** Under the former statute where the declaration contained a special count, on a fire insurance policy for $2,250, alleging a total loss, and concluding, to plaintiff's damage for $2,000, "for the recov- ery of which, with just costs, plaintiff brings," and common counts in assumpsit for $2,000, each concluding as in the first ; it was held, that the action could be removed.*" Where a complaint in each of three counts claimed for personal injuries "the sura of $1,900 damages," and in two other counts "the further sum of $1,900;" it was h»ld, that the case could be removed, al- though the court felt morally certain that it was intended to claim damages for but one cause of action.'^ It has been held: that, where it clearly appears that the different causes of action al- leged, consists merely of the common counts, the value of the matter in dispute should be determined by the amounts named in the bill of particulars.*'' It makes no difference if the claims have been assigned and no' one of them is equal to the jurisdictional amount.'* « 28 Pooser v. Western Union Tel. 32 Healy v. Prevost, Fed. Cas. No. Co., 137 Fed. 1001. 6,297. 29 Hayward v. Nordberg Mfg. Co., 33 Hammond v. deaveland, 23 C. C. A., 85 Fed. 4. Fed. 1; Bernheim v. BirnlDaum, 30 30 Piatt V. Phoenix Assur. Co., 37 Fed. 885, 887; Chase v. Sheldon Fed. 730. Roller-Mills Co., 56 Fed: 625; Bow- 31 Thompson v. Southern Ey. Co. den v. Burnham, 59 Fed. 752, 8 C. 116 Fed. 890. C. A. 248, 19 U. S. App. 448 ; Berg- I 6] VALUE OF MATTER IN DISPUTE 39 ijWheve the value gf^ the amount in dispute cannot h^ reck- oned from the other allegations in the bill, the statement there- in that it , exceeds $3,000 exclusive of; interest and costs will ordinarily J)q^ufficient.,^* "Upon a billfor an injunction, where tjijie amount iinvolved cannot be deduced from, the facts alleged, a simple a,llegatipn, that :thg right sought to be protected is of the value of more th^ji $3,000, exclusive of interest and costs, will usually be held to be sufficient. " '* The pleadings or the petition lor removal must show that the value of the inatter in dispute exceeded the jurisdictional amount,'® at the time the suit was brought.^''' Where the'com- plpnt was silent, the allegation in the ans^,er was held to be conclusive.'* An allegation, that the "amount in dispute" ex- ceeds the jurisdictional amount^ is not insufficient because it uses the word "amount" instead of "matter" in digpute.'^ It has been held: that the court may, where the bill or' declaration is defective in that respect, retain jurisdiction and permit an amendment, which shows the 'jurisdictional value of the matter in dispute.*" Where the plaintiff exaggerates the amount in dispute, the court may, on exception properly taken, try the question of juris- diction sepairately, without a jury; and if the damages appear to have been purposely and fraudulently magnified. Jit may dismiss the case; but its decision is reviewable by the Supreme Coui"t.*^ man v. Ijiman, Pojilsen & Do., 91 46 Fed. 673; HarVey v. Baleigh & Fed. 293; Davis y, Mills, 99 Fed. G. k Co., 89 Fed. 115; Tellow A. 39; Brigjiam-Hopkins. Co. v. Gross, M. & M. Co. v. Winehell, 95 Fed. 107, Fed. 769. But see "W^aite y. 213. ^ '' , ' Santa, G?uz, 184 TJ., S. 302, 46 L. 37 Stra^lDurger v, Beeoher, 4^. Fed. ed. 552,' ' ' ' 209. ' ' ' ', SlMaurel v. Smith, 220 Fed. 195 , 38W. U. Tel. Co. v. White, 102 36 Texas & P. By. Co. v. Kute- Fed. 705. , - man, G. C. A, 54 Fed. 547. See ' 39 Blackburn 'v, Portland Gold Hyde v. yietoria. Land Co,, 125 Min. Co., 175 TJ. S. 571, 44 L. ed. F^d. 970; Louisville & N. E. Co. 276. ' ' ' '' v.'Smith, C. C, A., 128 Fed. 1, 5; 40Davis v! Kansas City, fe. & M. Southern Cash Register Co. v.' Na- B. Co., 32 Fed. 863; Johnston v. tional Cash Eegister Co., 143 'Fed. Trippe, 33 Fed. 530; Whalen v. 659,- Spauldirig v. Erenson, 149 Gordon, C. C. A., 95 Fed. 305. See Fed. 913. Citizens' Bank y. Canndn, 164 IT. S. ' 86 Strasburger v. Beeoher, 44 Fed. 319, 41 L. ed. 451. , 209; Back v. Sierra N. C. M. Co., « Globe Befining Co. v. Landa 40 ORIGINAL JURISDICTION ' [§6 The mere 'fact that the plaintiff reeovers'less'than 'tihe jurisdic- tional amount does not justify a dismissal or a remand.*^' A Texas case suggests that a distinction shbuld be drawn betWeeii cases where the full amount claimed in'^'the coin'plaint'is not' re- covered because of the plaintiff "s failure to pi-oVd 'his' 'allegatioins of' fact and those where he fails because his claim is unfoiiWded in law. It was held that wher6a demurrer was sustained tij'one of several claims for damages joined in one complaint and the aggregate amount thereof was thus reduced below the' jurisdic- tional amount, the case must be' dismissed ;** but it^has been said that the reasonable view would indicate that, when such claim was inserted in the original petition in goqjd faith, the amount involved, was in controversy, anc^ the court having tsten jurisdicl;ion should ren,der j,udgment foi; the, remainder , of the Qlaims.f* Where the, plaintiff sued.in gopf^if^jl^ for a principal sum, , in excess of the jurisdictional am,oii]jit;jj.ajad||^hedef^njiant proved a set-qff, ,th? ^xact amount of whichpla^^|;^,djfj. not, feno Cotton Oil Co., 190 XT. S. 540, 47 L., ed. 1171. See Chicago Cheese Co. v. Fogg, 53 ted. 72; Siinonv. !House, ' ' 46 Fed; 317; Holden v.' Utah & M. Maeh..Co., 82 Fed. 209; Horst v. MerMey, 59 Fed, 502; Maxw,en v." A. T. & 8. F. B. Co., 34 Fed. 286; ' Bedford Quarries Co. v. Welch, 100 Fe4. 513; Bank of Arapahoe V. David Bradley Co., C. C. ' A., 7^2 Fed. 867; LeRoy v. Hartwicft, 229 Fed. 857; MuUin Lumber Co. v. 'Williamson & Brown Land & Lum- ber Co., C. C. A., 246 Fed. 232. In Hayne v. 'Wooiley, 180 Ted. 573, which was an action for dam- ages by trespass in allowing cattle to run at large upon the plaintiff's land during the fall and winter sea- son, the court held th^t the damages could not amount to more than $200 or $300, saying: "The damage in this respect, if any, would be very slight. It is a matter of common knowledge that, in many instances, land is improved, rather than ,9am- aged, by permitting cattle to run iipbn'it."" 'S'fee inffH; §7.' ■•'' ■\ 43 Peeler v. Lathrop, 48 Fed.) 780, 1 C., C. A. ,93,, ,2 ,U., ^,. App.,4fi; Washington County y. Willianls, 111 Wd! sioi,''49 C.'C. A.'62l. " ' Put-in-Bay Waterworks &c. Co. v'. Ryan,' 181 u!' S.' '409,' 45 L.ed. 927; ije Caeland, 218 TJ. S. 120, 54 L. ed. 962; Brent v.^ Chas. hI Lilly Co., 20'2 Fed.' "fe;- Armstrong 'V. Walters,' 223 Fed.' 451; Garrett v. Mallard, C. C. A., 238 Fed. 335; Central Commereial 0(j. v. "Jones- Dusenbury 'Co.,''C: 'C. ''A.' 251 Fed. 13. ,''''■'' 43 Western tjnion 'Tel. Co. v. Ar- nold'' (Texas, ,1'90'3J, 77 s! "W. '249; afSrmed, 79 S. W. 8. 44 Columbia Law Ifeview, March, 1904; citing Martin v. Goode,. Ill N. C. 228, 32 Am'.' St. E«p. 799; Bank of, Arapahoe y. David Bradley & Co., C, C. A„, 72 Fe(3. 867, I 6] VALUE. OE, .MATTER , IN . DISPUTE 41 when.heiitiqgaiii the. suit; itiiw^asjheld, that the, Rouift. might, retain, jurisdiction.^^ i ,.,;: ..,.,,,■, ., ,.,,,; iu\,n . !• Although, the ,ipilaintiff!s, pleadiing .shows,, that more than the jurisdictional ( 'amiount lis^due hini,lheimay waive the e?;cessand ■ sue foT.aless- suhi thus preveniting a removal.*^ An amendment reducing the plaintiff's claim' i below !$3,00Q will not divest the jurisdiction of the court over what remains; nor' will the volun- tat-y^disiinissa,! of th'g^pft&iatiffi'sibill'' divest the jurisdiction of the court' over 'ai 'crossMll' previously filed, i to recover less.*'' An aiaeridrtientmkking' such: reduction made inthe State Court after n6t4te of an appiieation; but on the- filing of the petition, for the ' removal,^ vi^hen ' authorized by the State practice, was held fo 'reduce the valtie'of *the matter -in dispute' below the jurisdic- tidnaO: ' amount.*® .!•,■'''.' : ■■' n.^"- ' .iis ' It 'has' been! 'held,; that' the burden of' proof, -that ;the. matter in dispiuteiis 'Ibh than the i jurisdictional amount, 'when the plain- tiff's "pleading alleges 'that fact, rests upon the defendant.*^ It has been held that statements by the plaintiff's assignor made before Ithe assignment Ate noi admissible' against him to show a fraudjilent,. attempt to prevent a removal.^' Under the former practice, iti was saidjtthatisuch an; objection should be set up by a'ple'a in abiateiheht arid is waived^by an answer to the merits.^^ Silt it has'been held:tliat the obje'6tion niay b'e raised by a gen- 45 Pickhami v. ^Whgeler - B. Mfg. *7 Kirby v. Am. Soda & F.oun- Co,, ,C., ,C.|^./77,>ea. .663|.,s. c, tarn Co., 194.tr. S, 141, 48 L.', ed. 69^,Fedv,4i9^;^,i?^i5fell b'. &;S.,'.t, 911. ' i ,', , , . , i ■; Co. ,v. .■jyil'liamstoijL^-p. &'F. Co.,' 80, 48 Anderson v.. ^ Westerii^ ITnion Fed. 68, . See,jalso Schunif v.,Mqline Tjb1.Co.,_ 2i8>ed.' 78;!'.Cejitral Com; M.j;& ^. ,Co., |i4^ U. S, 500, 37, L. mepial .Oo!,'y,.jpn'es-jbiisenbury Co., e,^„25f';'p:un]^el" v./]^rown, C.,0.,.A., q.'.C. A., 251 'Fed. p. ' '' 99 Fed. ' 593 ; Jonfi?,,v.|^MoOprjniok , | 49 Eutohjers ' & , ' Drdvers ' , feljock- H, M. i^p^ C, C,, A.,.^2Feij'._2'9'5;' Yp,rds Co. >. Louisville, & N. R. H'^Tj[;ai;d ,v.,,,lj(o;rberg M-f g, , Co.', C. Co!, C. ''O. ^A., 67 Fed., 35; 'iSut- qr,^.,' 85'.Fedp4; TJng Lung'chjing ter? v..Carjiey, 127 Fed. 62,2. But V, Holmps, ,9,8 Fed. 323; ,Tennent- see ,Gc.reene, y. .Taeoma, 53 Fed. 562. %rib^ns.S)ip,^ tip. v, Roper, 94, Fed. , 50 C/. in/j-o, § 22'. ' \ 739;,'_'Sci^;tjt'',v. Donal,^, 165,.li!'s. -58, 51 Butchers,', &"l),. Stock Y. Co. y. 41., L. ',ed, '63?; .'A^on. | ScJir|Oe<^p; , y, Louisville & N. i8,f ,Co.; C, C. A., Britt&n,';93,ped. 9; im/ra, §§7,j^3.| 67 Ffd.' 3,5. ^ee PinciT. New York, 46Hariey v„,Jiremen's Fund, Ins, io3 Fedi 337; §§1^5, 2^3. But see Co., 245jred.,471.' ' ' , ,„, , ,j Greene, y., Taeoma, 53 Fed. 562. 42 ORIGINAL JURISDICTION [§7 eral, or a specific, denial ; *^ and, if it appears on the trial, by the testimony of the plaintiff and his witnesses, that the amount as alleged in the complaint exceeded his reasonable expectation of ■ recovery ; the aa)tion should be dismissed.^* It has been held that the statutes and rulings of the courts of the State are not conclusive upon the question whether a suit involves the jurisdic- tional amount.^* § 7. Value of the matter in dispute in action for damag'es. Where the suit is brought upon a contract in which the law liquidates the damages for a default, the amount of the dam- ages as liquidated by the law, not the amount named in the plain- tiff 's pleading, is the value of the matter in dispute; ^ but where the alleged cause of action is one in which the law does not liquidate the damages, the amount for which the plaintiff de- mands judgment is alone to be considered ; * unless it clearly appears that the amount named is merely colorable and beyond a reasonable expectation of recovery.' Where there is room for BZ Greene v, Taeoma, 53 Fed. 562. eSHolden v. Utah & ,M. Machin- ery Co., 82 Ted. 209. 51 Heffner v. Gwynne-Treadwell Cotton Co., C. C. A., 160 Fed. 635. § 7. 1 Wilson V. Daniel, 3 Dal- las 401, 407, 1 L. ed. 655, 657; Bar- ry V. Edmonds, 116 TJ. S. 550, 560, 29 L. ed. 729, 732, Vance v. W. A. Vandercook Co., 170 U. S. 468, 42 L. ed. 1111; North Am. T. & T. Co. V. Morrison, 178 TJ. S. 262, 44 L. ed. 1061; Battle v. Atkinson, 191 TJ. S. 559, 48 L. ed. 3qe, 24 S. Ct. 845, affirming 115 Fed. 384; Cabot V. McMaster, 61 Fed. 129; Central Commercial Co. v. Jones-Dusenbury Co., C. C. A., 251 Fed. 13. See Eemsen v. C. F. Blanke Tea & Coffee Co., 189 Fed. 418. Where the contract provided fo* liquidated damages it was held that the juris- dictional amount was limited to that sum. Phillips v. Troutman, 197 Fed. 325. 2 Wilson V. Daniel, 3 Dall. 401, 41, 1 L. ed. 655, 657; Smith v. Greenhow, 109 U. S. 669, 27 L. ed. 1080; Barry v. Edmonds, 116 U. S. 550, 560, 29 L. ed. 729, 732; Gor- man T. Havird, 141 U. S. 206, 35 L. ed. 717; Judson v. Macon Coun- ty, Fed. Cas. No. 7,568 (2 Dill. 213) ; Stanley V. Albany County Sup'rs 15 Fed. 483; Eisele v. Od- die, 128 Fed. 941; Southern Cash Eegi. Co. V. National Cash Reg. Co., l43 Fed. 659; s. c, 14^ Fed. 700; 0. J. Lewis Mercantile Co. V. Klepner, C. C. A., 176 Fed. 343; Federal Wall Paper Co. v. Kamp- ner, 244 Fed. 240. 3 Lee V. Watson, 1 Wall. 337; 17 L. ed. 557; Bowman v. Chicago & N. W. Ry. Co., 115 TJ. S. 611, 616, 29 L. ed. 502, 504; Smith v. Greenhow, 109 TJ. S. 669, 27 L. ed. 1080; Mayor, etc., of Balitmore v. Postal Tel. C. Co., 62 Fed. 500; Bank of Arapahoe v. David Brad- ley & Co;, 72 Fed. 867; Shields v. MoCandlish, 73 Fed. 318; Hampton § 7] VALUE OP MATTER IN DISPUTH 43 different theories as to the measure of damages, the plaintiff may not he required to limit himself to one of them ;, but if he does so limit, himself the theory selected is the criterion of the value of the matter in dispute* It has been said that where the com- plaint contains the requisite allegation, the jurisdiction is jaot defeated beca,use other matters therein stated have a tendency to sho-jy that such allegation is not well founded, unless they are such as to create a legal certainty of that conclusion.* Should the latter fact appear, for the first time, upon the tria,l, it seems that. the court would then be justified in dismissing the case at the. end of the plaintiff ^s evidence.® In an action for debt upon a bond, or a contract for ihe pay- ment of money,'' the principal and interest alone ar» in dispute; and no more can be recovered, except costs, although the plaintiff lays, his damages at a much larger amount. The value of the inatter in dispute cannot, therefore, exceed the principal, with interest and costs,* even though the defendants pleading admits that it is .in excess of the jurisdictional amount.* In an action for railroad extortion, under a statute provid- ing that the injured party might recover the amount of dam- ages sustained by the overcharge or discrimination, where the declaration specified the overcharges claimed, alleged that the amount of the recovery on that count should be , a sum less ; than, 'the I jurisdictional amount, and further averred that the plaintiff had been damaged in a sum in excess of the jurisdictional amount by reason of the railway company's refusal to pay the damages first alleged; it was held, that the Federal court could not have jurisdiction.^" In a suit for damages for a breach of a contract to transport, a, passenger, it was held,, that Stave Co. y! Gardner, C. C. A., 154 Utah S. & M. M. Co., 82 Fed. 209. Fed. 805; Fuerat Bros. & Co. v. For what is sufficient evidence of Polasky, C. C. A., 240 Fed. 447 (an good faith, see Peeler v'. Lathr'op, action for breach of warranty). 84 Fed. 780; infra, §363. ■ ' 4 Armstrong v. "Walters, 219 Fed. 7 Wilson v. Danjel, 3 Dallas 401, 320. . , 407, 1 L. ed. 655, 657. 6 Henry & Sons & Co. v. Colorado 8 Wilson v. Daniel, 3 Dallas 40jl., Farm & Live Stock Co., C C. A., 407, 1 L. ed. 655, 657. 164 Fed. 986. 9 Royal Ins. Go. of Liverpool, Eng. . 6 Maxwell v. A. T. & S. F. By. v. Stoddard, C. C. A., 201 Fed. 915. Co., 34 Fed. 286, 290; Cabot v. Me- lOBarataria Canning Co. v. Louis- Master, 61 Fed. 129; Holden v. ville & N. E. Co., 143 Fed. 113. 44 - ORIGINAL ' JUEISDICTIOlSr ['§ 7 damages claimed for loss of business and employmeiit, Which; it was alleged that the'plaintiff could have obtained if the cbtitradt had been performed, were too remote and must be excluded from consideration in the ' estimate of th'e jurisdictioiial amount.*^ Upon a complaint alleging that plaiiitiff employed' defendant tb locate him on a half section Of gov eriiment land, which 'he entered under the homestead and timber acts; for which service he paid defendant $200, and seiekiug' to recover damages for false' 'an d fraudulent representations as to the "quantity and quality 'bf timber on such land; it Was held,- that it did hot state a ciause of action for the recovery of damages, beyond 'the amount paid defendant, if there could be any recovery, and that the atttion was not within the jurisdiction of a Federal ' court, atlthough the damages were laid in a sum exceeding' the jutisdietion'al amount.^* An action was brought by a city in a 'State 'court, to recover a tax of $2 for each of 509 telegraph poles' main- tained in the streets ;' but the declaration concluded: ^'And plaintiff claims $10,000." It was held, that the' actual amouM in dispute was but the amount of the tax,' $1,018; and that 'the Federal Court could not take' jurisdiction by remoVal.^^' ■ 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' thei same; it was held, that a Federal' icburt; in that State, did' hot have jurisdiction of such an action, when the 'Complaint alleged that the amount due was the rent for nine months' at $25 per'month,^* although" damages were also claimed iii a sum exceeding the jul^i"- dictional amount, without showing that plaintiff was entitled to anything but actual damages.^* A cause is not removable, when the prayer for relief asks for ' ' $3„000 an^ ail other proper relief;" if, under the pleadings, no other relief can, be granted.^^ 11 North American Transporta- 14 Sand. & H. Digest, 670, § 34'58. tion & Trading Co. v. Morrison, 178 IB Battle V. Atkinaori', 113 ''Fed. U. S. 262, 44 L. ed. 1061. 384; aff'd 191 XJ. S. 559,1 48 L.'ed. 12 Wines V. Cobb Real Estate Co., 302. " ' ■■' 128 Fed. 198. 18 Baltimore & 0. K. Co. v."Wor- 13 Baltimore v. Postal Tel. Cable man, 12 Ind. (App.), 494; '40 N. E. Co., 62 Fed. 500. 751. § 7] VALUE OF MATTER IN. DISPUTE 45 Where the State practice allows no greater damage than that prayed, the value of the matter in dispute will he ' considered to be no more than the amount stated in the plaintiff's prayer for relief, although the body of the complaint contains allegations showing greater damages.^'' In a suit' for the conversion of property, upon which ! plaintiff liclaimedi 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- agesi claimed were the amount i of i a. previous judgment establish- ing the liens against the original debtor for a sum, including interest and. other expenses, exceeding such cl.aims to .which ju;dg- meiit the defendants, ), who iad subsequently acquired the prop- erty, were not parties." iiln an action ifor the denial of the right to vote;^* or for false imprisonment ; ^^ or for assault and battery; or in any other case in which exemplary damages inay properly be awarded, the law prescribes nio limitation to the amount that can be re- covered, and the amount claimied by the plaintiff is the sole criterion to which. resort can be had dn settling th-e • question of jurisdiction.^^ ' ■..<■ .; . ...n. i' '. -i In an action against attorneys for, negligence in failing to defend an laction ;; it was heldfthat in the ahsence.bf allegations showing I that a, successful defense might ' have i been interposed, the recovery could not be more than nominal and the jurisdic- tional amount was consequently not, involved.^^ In an alction for damages because of the circulation of a mutilated map with plaintiff's name, where the complaint did not- show special dam- age, it was held that no in ore than nominal damages could be re- covered and, that the jurisdictional amount was not involved.** In an action for damages resulting from the death of plaintiff's 17 Simmons' y. Mutual Reserve 21 Wilson v. Daniel, 3' Dallas 401, Fund Life I Ass 'n, 114. Fed., 785; 407, 1 L. ed. 655, 657; Barryv. Ed- Swann v. Mutual Eeserve Fund munds, 116 U. S. 550, 560, W L. ed. Life Ass'n, 116 Fed. 232; Barber 729, 732. V. Boston & M. E. Co., 145, Fed. 52. . 22 Maryland Casualty Co. v. Price, 18 Bergman v. Inman, Poulsen & C. C. A., 231 Fed. 397, affirming Co., 91 Fed. 293. 224 Fed. 271. 19 Wiley V. Sinkler, 179 U, S. 58, 2S0hman,v. City of New Yotk, 21 S. Ct. 17, 45 L. ed. 84. 168 Fed. 953. 20Hynes -v. Briggs, 41 Fed. 468. 46 OEIGINiMj. JURISDICTION Ls » husband, and father, the sum named and prayed for was '''^--— thpusamd dollars; "it was held, that it did not-appear that the case involved the .jurisdictional! amount.^* ■- Wkerethe plaintiff brought his 'action in the Circuit Court of the- United States, claiming that it sounded in i tort, in which exemplary damages might be allowed and that consequently, the matter in dispute exceeded the jurisdictional amount, which otherwise would Inot have been the case; it was held, that he was estopped from contending; after the defendant's death, that' it wasinot in tort, but in contract;' and that, therefore, it might be revived.*' . - i§;8. Value offiofi 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 ii dispute is that of the interesf^in the land, to recover which the suit is brought; al- thftugh the defendant claims a less interest,^ or only an ease- raejat:^ in the same ;i togefther' with any special damages that are alleged, and can be recovered in the suit.* It has been held : that where; a bill to recover an interest in lands alleged; "that com- plainants 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 calculatiouj and was insufficient to show the jurisdiction.* Under the former statute wheredn' an action involving the title to land, the. plaintiff claimed the right thereto without making a p.ayment ofi.$2;200, demanded by one^of the defendants, it was held, that theactiomwas one involving more than '$2,000 and, was removable.* Whereino 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 24 Yarde v. Baltimore & 0. R. 2 Greene v. Taeoma, 53 Fed. 562 ; Ooi, 57i,:Sled. 913. . . Butters v. Carney, 127 Ted. 622. .29 Iron, .©ate Bank v. Brady, 184 See. ViekSburg, S. & P. E. Co. v. U, S. 665, 46 L,,ed. 739.': ' . . Smith, 1,?5 U. S. 195, 34 L. ed. 95. §8. IWay V. Clay, 140 Fed. 332. a&ee Way v. Clay,' 140 Fed. 352.' See. iVickshurg;, S. & .B. -Ri Go. V. 4Dupree v.i' Leggette, 140 Fed. S,ip,itli,435 U. S. 195;:3.4 L. ed. 95; 776,. !-■ ■> ' , ,. -. Diipree v.' lieggette, 140'; Fed. 7-76. SJ'JVitherg v. Johns Hopkitis 'Pl^ce C'i?«'i "Id a'Suit to enjoiu'the unlawful use 'of market quotations posted in the plaintiff's exchang'e ; the value of ^ the exclu- sive iright to i the i same i is ' the' test.*^ In a suit to enjoin the cancellation of a ebnti-act, it was held, that 'the matter in dis- pute was the right to maintain the contract; which was tO be m'eiasured by the' p^ofit^, ilot by the"gro§^ receipts, from the de- fendant thereunder, ritfr by 'tlie cost tO the plaintiff of ptepara- tidri'to perfoi-ni its pkrt 6f tlie same.** But in another case, it was hel'd: tH'dt 'the value of' the matter in' dispute ,was tiie 16'Iianriing'''v.''bsbol-n'S,"'79' Fed. 834; Hennessy v. Hieftiiianii, 89 657.' 'I : ,i' - :.. !■; Fed. 669; Dfapter v. Skerrett,iai6 , , 17, Bitterman : V. Lpuisyille < & i JST., i , Fed.iaoe. ,; . .i;,i;j ■: B. Co., 207 U. S. 205, 52 L. ed. 171; 18 Draper v. Skerrett, 116 Fed. affirpiing I^ouis;yme &,N. ,Bii,Coi: V. gp6.,, i - / , > . J^itterflianj, Gt Q,; |A.,,j ],44| Fed, 34/; 20 Winchestei; Repeatingi Arins.Co. Del., I^, ifc/,W.. B,, Pp„-v.|,Pra,nk, lip v.i;Blitler, 128 Fed. 976. : . . : ' Fed, 689. 1 In a,suit,£or. specific per- 21 Board of Trade' v;: CeUa Com- fc^rmanee ;pf ,,^ ,cpii,tr,^ct to carry missiijn Co., C. C. A., .145 Fed.' 28, the complainantEi! free jiuring thgir where an allegation that complain- lives, the .valvie ,of the ^TJg'it .tpithe antrealizies $30,000 a year Iromthe same iwais. held to, be ,1;hat,,,of the right it sued to, protect was.held.to miattesr iif disp^tje, , Mot,t,ley v., ,Lqii:- be . .sufficienfci , > i . isville & ]^f.,B. Co.; 150 Feci, ,■^06., , 22 Riverside & A. By.. Co., v. Biy^ ISgymonds v. Greene, 28 Foil. erside, 118 Ted. 736,:, 737, ,738, 743. 5,4 ORIGINAL JURISDICTION [§13 amount, which the; plaintiff had contracted to pay in cash upon an, exchange of property^*^ i In a suit' to restrain the iml awful use by a railroad of a right, of way over plaintiff's land, the damage to the whole , tract as well as the value of the land taken for the right of way is to be considered ; ** but in a suit to enjoin the use, as a railroad, 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 company.^* Where a suit was brought by a city against a telegraph company, to recover $1,772 for street rentals for the maintenance of defendant's poles and wires, and the bill prayed for the payment of the rentals or forfeiture of defend- ant's right in the streets, and that its occupation thereof should oease.; it was held: that the matter in controversy was not neees' sarily limited to the amount of the money sought to be recovered ; aiid 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 controversy was sufficient to confer Federal jurisdiction.^* In a suit to enjoin the destruction of property^ the, value of that threa,tened with destruction not of that already destroyed is the jurisdictional test.^'' > In an action to abate a nuisance,, it has, been held •• that the valjUe. oi! the article sought to be abated, or of the aetjs, sough^ to be enjoined, is the test of the jurisd,ictipn,^ It has been saiid: that the amount involved, for jurisdictional purposes, in a suit to enjoin the maintenance of a nuisance, cannot be measured solely by the, damage suffered by complainapt ; nor by the actual, outlay of money, which defendant would be required to make if the relief should be granted; but the value of the right, of' which he is 23Kirby v. Am. Soda Fountain 28 Mississippi & Mo; R. B. Co. r. Co., 194 U. S. 141, 48 L. ed. 911. \Vard, 2 Black, 485, 17 L. ed. 311 24 Denver & R. G. R. Oo. v. Mills, (a railroad bridge) ; Whitman v. 0. C. A., 222 Fed. 481. Hubbell, 30 Fed. 81 (an awning, aSGleaon v. Northern Pac. B. Co., where the valiie of the right to use 44. Fed. 1. theawnihg was held' ^0 be the test); 26 -Memphis v. Postal Tel. Cable BUiney v. Herbert, C. C. A., 55 Fed. Co., 0. C. A., 145 Fed. 602. 443 (coke ovens) ; Am. Smelting & 27Tri-City Central Trades Ooun- Refining Go; v. Godfrey, C. C. &., eil k. American Steel Foundries," C. 158 Fed. '225, 14 Ann.- Cas. 8. C. A., 238 Fed. 728. §14] VALUE GP MATTER IN DISPUTE 55 sOugllt to' be deprived, is to be taken into consideration.*^ Wliere' there was ho allegation of tbe value of the structures sought to be abated, which were obstructions to navigation ; alid the dam- ag'es alleged to haVe been 'stiffened because of the same, prior tp the beginning of the suit, were less' than the jurisdictional sum; it was held, that the jurisdiction did not appear.*" In 'a suit by a telephone company to restrain the erection of poles and wires so as to injure complainant's line it was held that the criterion was the value of the i^ght of complainant to be free f rom ' Wrongful' interference by defendant with 'the ' ojieratioll of its line and the conduct of its business; not the expeiise to defendant of 'the removal Of the latter 's interfering poles and wlres.®^ ' In a suit to enjoin the defendants 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 arid operated' by them, and the amoillit' of their annual business, ex- ceeded such amount.''' In' a suit to 'enjoin the Director General from the removal of machine shops, proof that such removal would cause a saving of $'400:00 a month was held to establish that the value of the mat- te;r in, dispute exce^eded $3,000 exclusive of , interest artjj.pqsts.*' , In, a I suit in the nature of an interpleader,, the pecuniary test of the jurisdiction is the amount claimed by the defendant, whom the complainant Seeks to enjoin, not the amount which cfom- plaint admits to be due and sfeeks to deposit in court.'* §.,1,4. Value of the matter in. dispute upon taxpayers' bills. In a suiitiitp enjoin .the coUeetion of a tax, the, amount of , the tax, not the value of thie property which the defendant threatens to' seize,*' nOr of that, the title to which is clouded,^ is the test of 29 Amelia Milling Oo. v. Tennes- 34Hayward & CSark v. McDonald, see Coal, Iron & E. Co., 123 Fed. C. C. A., 192 Fed. 890. But; se6 811. infra, §§ 157, 158. "' ' SOKenyon 4. Knipe^ 46 Fed. 309. §14. 1 Washington & G. E.' Co. SlGlenwood Ld^Kt and' Water Co;' v. District of Columbia, 146' U. S. V. Mutual Light;' Heat ancl Power 227; 232, 36 L. ed. 95l, 953; King Co. ' ' ' V. Wilson, Fed. Cft's. No. 7,810 (.1; SZAinerican Fisheries Co. v. Len- Dill. 555) ; Linehan Eailway Trans- nen, ll'8''iPea. 869. ' fej- Co. v. Pendergrass, 70 Fed. 1, 16 SSNueces Valley 'ToW-Site' Co. C. C. A. 585, 36 U.' S. App. 48; V. MeAdoo, 257 Fed. 143. Eachus v. Havtwell, 112 Fed. 564; 56 OBIGINAL JURISDICTION i [ § 14 jurisdiction., .But, it, has been held:, that, where .an .inj.unqtipn is sought against , the collection ,pf an annuai; taxior,licfiji;ise fee!, in;ipqsed upon a Iranchise or uppnithe iright to/ .exercise .ft certfl,in occupation, resistance to, the payment of which; .would resiU-Jt-i?!,. the destruction of .the plaintiff's, business; the value, of the right, to exemptiony including the, thre^tenpd d^ma,ge tO!|thi^i.b,usiness> not the (amount of the ta?E or, license fee ■vyhi^h. has, accrued, is toi be considered.' Upoo a bill to enjoin, an income tax upon a sal-, ary annexed to, an' office, claimed to be,.exejnpt;i,the specific teiK sought itp, be enforced, npt the right, to ,e?;emptioii|,i iwas ,,]j,eld..to, be. the test.* Jt h^ap been. held, upon a bill tp. enjoin, the cpllectiom. of a, land, tax, , filed , by a , cpppppaf ion ; (claiming , a,n exenjptipn,; , that the amount of the tax claimed to be already due .was tbe^sol^, test,, since it could not be assumed. that, the asse^swenit ,fp,r sujbse- quj^t, yearp ixould be; fop a, Ijjke , am,oi;nt ^ The .casgs i ponfiifit! i^.- to whether, in a suit to enjoin, a municipality. frpm,is^,uimgib9;Pidv, or otherwise incurring indebtedjaess, the p€cum,ary test|,pf ,l',,|,, jurisdiction is the amount of the tax, tp which, .tfee^caunplaiinant, would be, thereby subjected,, or, the ; whole, debt, |l;hei c^^s-tiiOn, pf wjiich epmpla4.i3Lant ' seeks tp prevent.*, In a suit, to enjoin, a, mu,-, nicipality .f rom , issu,iBg , bpnds, to an, [amount ,Gh,arged tofjbe'iip; Field T.' Barber A'spliait 'fav.' Co., 399, 'k's' G. C. 'A! '333; ' Berrym'dn v!' 117 Fed. 925; Turnfer v.' Jaiiksbn ' Board of 'Trustees of ' "WMtmah ' dol- Lumber Co., C. C. A., 159 Fed: 926; ■ leg©,)- 222 IF. ,S.:M381i?: [Postal .'iBeW- Eisley v. City of Utica, 168 Fed. ,gya.ph-Gable,lGp. y,, Cj,t5f,|o^,, Mobile, 737; Evergladesi ,I>;. League v.JiTapo- 179 Fed.,,955,;i JfiTyel TeajPo.; y. .Lef> leon B. Broward b. Dist., 253 Fed, Summit, Mo.' IsH Fed^ 532.!, '". / ' 246.^^' -'■■rr.:,y,1 m,r,n .tMCT^rh '" i'^t;id!l ^/'i-agS, iMd;^^^; 2 Dou^la^' Company y." Stone, 19l' ' 5 ■Citikeils " 'Baiilt ' of LouisiknSi v.' U.!S.i557, 24 iS.! Ot: 843, !48 t. ed. ! ■Canlion, 164 U. S. . 3ili9i;,41 IL: ed. 801; s.,,c.,..a^rming 110, , Fed.; 8.12',,. 45,1. ,jGpnti;^„[ Bp^r^ qf . T^Tft^tees , of Eachus V. Hartwell, 112 Fed. 564; Whitman College v. Berryman, 156 Purnell V. Page, 128 Fed. 496; Tur Fed., ,112. ,, ,,,i;,|. ,;,,,. f- ner v. .;Jackson Lumber Co., CO.. ,6In the , foHowing,,,,qases,, , tlje A. i59 Fed. 923. ", . amount of the plaintiff's tax was 3 American I'ertilizing . Coi ; v. held to be .the.tejsts El Paso Wa- Board of Agrieultuie, 43 Fed. ,609, ter.Co, v,. El Pa,?,o,,,15^, .IT. S. .157, 11 L,E.A. 179; Westerji Union Tel. 159,,, 3^ L- ,ed, 395, .'397; Coliijip/ v. Co. v., City Council, ; 5,6] Fed. 419; Jacksonville, 158 tJ. S. 456, 460,;, Humes v. City of. Ppr.t, Smitji, Ark.., A^ams v. P,ougJa.? County, Fg^y Gas. 93 Fed. ,857; Southern Exp. ,Cp.. No. 52; MeOahon, 33,5, 1, Kann62!7;,, V. City of Ensley, 115 Fed 756; Murphy, v. East Poi;tland„ 42 . Fed. Hutchinson Vw Beckham, 118 Ped., 308. , i - , , .. '§16] VALUE' OF M-OTTERi IN DISPUTE 57 ■fexefess of the eonstdtutional limit of its indebtedness; the value of the . power' of itHe'city' to issufo such' bonds, oaof the>tax to wbioh the ■ eoaaiplamaht would be thereby subject, wds held i to be the value' ofiithe matterdn dispute.'' Itihks been held: 'that upon a taxpayeft's' bill; itoienijoin) the execution of a contract for aipublic IWock; ithdivalueof'ithe contract, dnd' not' the amount of the tax eomplainian't might be' irequired to > pay in < ccdi^equfeneey ' was the ■ahiduntiin/dislfJulte.'^. '"■ .'■'■■ ■ .- ■•• . .'■ i'lii-'rii)', ■::!i '!.. ' §il5.MVa>lue of thematter in 'dispute upon (Creditors' bills. It hm been"hield:-'it)hat,' 'Upon la eredito]»'s'bill, the vaWe of the ■eompilBiimanti's claim, 'not- lihe value of the property sought' to 'be reached',*^ inor the' value of 1 the claim, payiaifehti of which he seeks to!'enjoinj?.is that of'thchiaitter in .disputej ' when the creditor suesiinthife'owhirighfr alone; but that when the creditor sues on Ibehaif ofi thimselfl land' the^iathei* creditors, for the lad'hiinistrati'on of atrhstifiund/,' or to eoUfeet moHey'or other property applicable '4W the' paym'ent'idf ittsldebtis,*'thei:amouUt of^siitehfund or pr 58 OKIGINAIi JURISDICTION [§ 16 ofi action belonging to coriporations ; ^ orto enjoin actions, which are idtra vires ;^ or to protect the assets of the compaiiy from waste,' or for the appointment of a receiver of > the corporate assets,* or for the distribution of the same,* the value of the matter in dispute is, that of the corporate right sought to be enforced, or of the amount of loss which. the corporation would suffer from the threatened unlawful action, or the value of the assets of the corporation, as the case may be; not the value of the plaintiff's stock. In a suit to compel the issue to complainant of a certificate of corporate stock, and the cancellation of one is- sued to another; it was held,; that the. value of tTie^ matter in dispute was at least the par value of; the stock,' where there! were circumstances tending; to show that the defendants had valued it at a higher sum.® But in a suit tocompel a transfer, of stock and payment of, the. depreciation in its market value on the day of the demand, for transfer and the highest market value between such day and judgment, it appearing that the reason for; the refusal was tot protect the corporation from liability for an in- heritapee tax; it was held ,that the, amount of si^ch. tax was the pecuniary, test of the jurisdiction.'' There can beiuo pecunia.ry valuation of the matter in dispute in a suit by a stockholder to, compel the corporation to allpw him ito inspect, its books and records.* § 16. 1 Hill V. Glasgow B. Co., 3 Carpenter v. KnoUwood Ceme- 41 Fed. 610. See § 145, infra. Con- tery, 198 Ted. 297; ira, Massa v. Cutting/ 30 Fed. 1; 4 Towle , v. Am. ' Bldg., L. & Inv. Harvey v. Baleigh & G. R. Co., 89 Soe,, 60 Fed. '131'; Eobinson v. W. Fed. 115. Va. Loan Co., 90;Fed/770; Taylor 2 MoKee v. Chautauqua Assem- v. Deoatur M. & It. Co., 112 Fed. bly, 124 Fed. 808; Larabeei v. Dol- 449; Jacobs v. Mexican Sugar Co., ley, 175 Fed. 365 ; Howard v. Nat. 130 Fed. 589 ; Se Cleland, 218 U. S: Telephone Co., 182 Fed. 215, where 120, 54 L. ed. 962. ' a preferred stockholder sued to com- 6 Kent v. Honsinger,. 167 Fed. pel the rescission of a transfer of a 619. majority: of the common stock, al- 6 Ryan v. Seaboard . & B; B. Co., leging that his stock was of the par 89 Fed. 397, 404. ' value of $3,100 and that this and 7 Jessup v. Chicago, & N. W. By. the other preferred stock was threat- Co., 188 Fed. 931. , . ened with destruction in value by 8 Whitney v. Am. Shipbuilding the illegal control of the assets ob- Co., 197 Fed. 777. tained by the transfei:ee of the com- mon stock. § 17] VALUE OP MATTER IN DISPUTE 59' §17. Value of the matter in dispute when there are joint plaintiffs. "Where a number of plaiutifEs, claiming under the same title, and having a joint or a common and undivided inter- est in the' relief sought, unite in a' suit, the adVerSe party having no interest in ' the apportionment or' distribution of the amount recovered among them; the value of their united interests is that of the mattet in dispute ; at least when they are all ' indis- p'ensahle parties.^ It- was so held, of a suit by Several of the next of kin for an accounting by an administrator.^ Where life tenants and remaindermen join as plaintiffs in a bill seeking an injunction against threatened injury to the corpils of the eistate'; the amount of their- joint interest is the test of jurisdiction.' Where a number of shippers united in a, suit to enjoin a railway coihpany from enforcing a proposed schedule of charges for transportation,' jurisdiction was maintained, although the interest of no single one of them was equal to the' jurisdictional amOuUt.* In proceedings for & mdnd(Mms to compel the collection of '&, single tax, levied for the joint benefit of all the relators, 'in which they had a common and undivided interest of different amounts; it was held, that the value of the matter in dispute, upon a writ of error, was measured by the whole amount df' the tax, and not b^ the separate' parts of the same which each of the relators would 'receive after its ieoUeotion.^ In a suit by the owners of separate lots, who derived title from a common grantor, to quiet their title as against a defendant who claimed; to. ;own all the- lajid; it was held; that the amount in controversy was the value! of' the whole tract of land owned by the complainants, §17. ISo held when the holders 3 Herbert v.'Rainey, 54 Fed. 248; of several note's sued jointly to en- aff 'd, C C. A., 55 Fed. 443. force a Vendor's lien, in which they 4 Northern Pac. Ry.' Co. v; Pacific were all entitled to share. Troy Coast Lumber Mfrs. 'Ass'n.,, C. C. Bank v. Whitehead & Co., 222 U. S. A., 165 Fed. 1, 11. There theiJ-ighb 39, 56 L. ed. 81. Where several of of the Railway company, to, maintaia the next of 'kin sued to recover as- the schedule seems to have been the setsy converted by the husband of an test. See, also. Market Co. v. Hoffi- adiniaistratrix; held, that their man, 101 U., S.n2,^, 118,25 L, pd. joint interest was the test of the 782. jurisdiction. Shields v. Thomas,' 17 6 Crawford v. Haller, 111 TJ. S. How. 3, 15 L. ed. 93. 796, 28 L.' ed. 602; 'liavies v.' Cor- 8 Prince v. Towns, 33 Fed. 161; bin, 112 tJ. S. 36, 28 L. ed. '627'.'" Thornton v. Tison, 95 Ala. 589, 10 ' ' . i South, 639. ■ : 60 ORIGINAL JURISDICTION . < [§17 and not .the value of ; the lots lOiWnedr severally- by eachi? , iWhere ^all the insur-ers of property damagediby.iire, ,uniteddn a submission; to arbitration,.. and afterwards,, joined in a bill toiset aside, the award, it was held : the controversy was single, and the amount in controversy, was the, amount, of the award J. Where several creditors joined in a suit for the appointipaent of a receiver of the assets of a cQrporatipn ; it was held, that there was; jurisdic- tipn, when their.; joint claimsi, exceeded the jurisdictional: sum, exclusive ofinterest and,qosts ; although each of, their individual, claims was less.* In a; suit by the . holders. of ilipnds., to enjoin strikers from interfering ; with, the operation of .tiliieir, obligor because, the acts threatened would i decrease the yalue^of ,,their! security; it was held , that , the aniount . in cqiitroyer^y was., the value of the, bondsi held by all the . plaintiffs.' , A, finding that rtbe, plaintiffs .below, were hoow.fide fholdersof .hondsiandi entitled :tOi sue in,, the Circuit; .Court, was heid to^ imply. , that thicy .were jpjnt owners. and was s,u0icientito, support the jurigdiiction.M , . ,,,, ,,: ,Where two ormjOre plaintiffs; having several interests, unite'for the convenience of , litigation in a single, suit, it can only bei sus- tained ias . to , those.- whose claiips, (a^eeed.! .the, jurisdictional ampunt;^^. Thus several persons;who have by isipiiilax frauds Ijeein'. induced to buy stock, cannot give the court jurisdiction byj adding, the amounts which they sepairately claim when' they unite in^ the same suit for a rescission of their, purchases.^* Where a number of claimants! to separate i tracts of land ;under' the :same Aoit of Congress unite in a suit 'to establish thfeir claims, the i value Pf their lands cannot be added together for the purpose! of estimat- ing the value of the matter in dispu|;c.^* , A credit9rs,' bill can- BLovett V. Prentice; 44 Fed. 459. head &.Oo., 222 TJ. S. 3,9, -56 L. ed. 7 Hartford' Fire Ins. Co. v. Bon- 81- : !, ,, ner Mercantile Co;, 56 Fed. 378,. 5 "Separate elaims, by '.different C. C. A. 524; 15 U. S. App. 134; persons, for work, labor. and .serv- reversing S. e., 44 Fed. isi, 11 U. ^°^^' oannot.be ]oined».;in.,ord6r^ by Tl a' fiSS' ' 'I their aggregate amount,, to confer 8 Jones V. Mutual Fidelity Co., jurisdiction, though a ,joinder. i,be authorized by State statute,, Holt l^^I-edr^oe. ^ , ,., ^.,Be.geyin, 60Fed. 1. : . , 9 Carter v. Fortney, 170 Fe^. 4^^. iZEobinson v. Wenmer, 253 Fedi 10 Green Oountyj Kentucky , y. 790i i ] : ., Thomas' Executor, 211 V. S. 598, 13 Bateman v. , Southern ..Oregon 53 L. ed. 343; Troy Bank v. White- Co., C. C. A., 217 Fed. 933... >. §17] VALUE' OF MATTER IN DISPUTE 61 not be maintained by several complainants, holding independent demands against the debtor for less than the jurisdictional amount, although the aggregate of all the demands exceeds the same; when they do not sue on behalf of others, not parties.^* The same ruling was made when several purchasers of different parcels of the same tract of land sued to impress the land with a/lieii for their payments on the purchase price and prayed for the: appointment of a receiver and for the administration of the assets of the vendee which was a corporation.^^ A similar ruling was made when two heirs, each claiming a separate undivided share of the estate of their father, sued to set aside his will for mistake ajid for a decree establishing their respective rights.^® In a suit by heirs for an accounting by the, defendant of property of the intestate, which hie had received, and for a distribution of the 'same, since any heir might have maintained the suit for his respective, share without joining the others, it was held, that there was no jurisdiction, because the interest of none of the plaintiffs exceeded $2;000.^''' It was siihilarly held, when de- termining the jurisdiction upon appeal in a suit by a legatee, to compel other legatees to pay over to the executor assets which they had received.^* A bill by several land owners to enjoin the collection or assessment of assessments or taxes against their respective property, cannot.be maintained, except as to those whose, tax or assessment would exceed the jurisdictional amount, although each relies upon the same ground of objection.^^ The same ruling was made when several tax-payers joined in a suit to recover back taxes that they had paid.^" , 'It was so held, also, as to the jurisdiction upon appeal.*^ , , It was held that when several employees: ,of a railroad company 14 Putney y. Whitmire, 66 Fed. ing decree, 96 Fed. 865; Rogers v. 385. See Gibson V. Shufeldt, 122 Hennepin County, 239 IT. S. 621. TJ. S. 27, ^0 L. ed. 1083. 20Eisley v. ' City of Utica, 179 15 Howard v. Linnhaven Orchard Fed. 875; King v. Wilson, Fed. Co., 288 Fed. 523. Cas. No. 7,810 (1 DUl, 555) ; Schu- 16 Pinel V. Pirifel, 240 TJ. S. 594. lenberg-Boeekeler Lumber Go. v. 17Rioh V. Bray, 37 Fed. 273, 2 Town of Hayward, 20 Fed. 422. L.R.A.225. ' ZlOgden City v. Armstrong, 168 18 Miller v. Clark, 138 V. S. 223, U. S. 224, 42 L. ed. 444, 18 S. Ct. 225, 34 L. ed. 966. 98; affirming judgment 12 Utah, iSWheless v. City of St. Louis, 476, 43 P. 119. 180 V. S. 379, 45 L. ed. 583; affirm- 62 ORIGINAL JUEISDICTION [§ 17 sued to enjoin a State officer from enforcing a statutory peualty against their employer, in case it failed to 'discharge all of the same claims to which the complainants belonged ; that the vame of their respective interests could not be aggregated when esti- mating the value of the matter in dispute.*^ It has been said that a suit by several land owners, who are injured by a com- mon nuisance, can only be maintained as to those who show that th» injur'y, past and prospective, of each exceeds the jurisdictional amount.^^ In a suit by several owners of water rights in a stream, joining as complainants for convenience only, to enjoin the obstruction or the diversion of water there- from, by defendants, it was h^ld, that the matter in dispute with each complainant must exceed the jurisdictional amount in order to give a Federal court jurisdiction.** A suit under a Solorado staitute, imposing a certain individual responsibility upon shajreholders in baiiks, it was held, could not be maintained, except by those creditors whose individual claims exceeded the jurisdictional amount.?^ The amount^' of separate tontine life insurance policies cannot be added together in estimating the value of the matter in dispute in a suit where the holders unite, not suing on behalf of the rest of those interested in the fund, bnt praying far an accounting of the tontine fund and the ap- pointment of a receiver.*® Where it appeared, from a bill brought by a number of insurance companies to set aside an award' as to the amount of a loss, that the amount of insurance given by each of the plaintiffs exceeded the jurisdictional sum, and thj^re was nothing to show that the loss was to be appor- tioned pro rata to the amount of each policy ; it was held, that the court could not presume that such was the case and that there was jurisdiction, although the total insurance exceeded the loss fixed by the award ; since the insured might select certain of the policies and sue upon them for their full value.*'' 22 Simpson v. Geary, C. C. A., 26 Eberhard v. Northwestern Mut. 204 Fed. 507. Life Ins. Co., 241 Fed. 353. ' 23Hagge V. Kansas City S. Ry. 27 Hartford Five Ins. Co.: v. Bon- Co., 104 Fed. 391, 393. ner Mercantile Co., 44 Fed. 151, 11 24 Eaton V. Hoge, C. C. A., 141 L.E.A. 623; Empire City Fire Ins. Fed. 64. Co. v. American Cent. Ins. Co., C. C. 25 Auer V. Lombard, 72 Fed. 209, Aj, 218 Fed. 214. 19 C. C. A. 72, 33 U. S. App. 438. §'17a] VALUE, OF MATTER INj DISPUTE ;63 The consolidation after answer of two actions upon different contracts, brought by the same plaintiff against the. same defend- ant, which aggregate more than the jurisdictional amount, but neither of which is f eparately equal thereto ; does not render the ^consolidated cause reniovable as a single action, although the de- fense to each is- th,e game.^* § 17a. The value of the matter in dispiate in suits on beihalf of a class. Where a suit is brought by ©ne or more, for them- selves, and all others of a class jointly interested, for the relief of the whole class; the aggregate interest of the whole class consti- tutes the matter in dispute.^ Where a bill by several, taxpayers, in behalf of all, attacked the validity of certain county bonds issued to aid in constructing a railway, prayed an injunction restraining the sheriff from collecting a tax levied for the pay- ment iof • interest, and the county judge from making any .further levies, and also a decree that thie, bonds were invalid, i and ithat all the holders, ibe brought in by, publication and perpetually enjoined from collecting principal or interest; it was held:, that the main controversy was as to the validity of the bond*;, and therefore was hot separable, when determining the jurisdictional amount, into controversies affecting the amount ; due from, the separate taxpayers.® , ' The bill or petition must show the pecuniary interest of' the parties! on Whose behalf the suit is brought.' Such a suit, where the class is siniilarly situated, but not jointly interested, can only be maintained by a plaintiff v^^iose individual interest exceeds the jurisdictional amount.* 'Thus it 28 E. A". Holmes & Go. v. TJ. S. hills, §14, snpra; creditors' Mils, Kre Ins. Co., 142 Ferl. 863. § 15, mpra; stockholders' bills, § 16, § 17a. 1 Hill V. Glasgow E. Co., supra; and eases therein , cited., , 41 i'ed. 610 ; Towle v. Am. Bldg., L. 2 Brown v. Trousdale', 138 • U. S. & Inv.' So*., 60 Fed. 131; Putnam -^^ 389, ll'Sup. Ct. 308, 34 t. ed. 987. Timothy, D. G. &, C. Co., 79' Fed'. 3 Adams v. Douglas County, 454; Johnston v. Pittsburgh, 106 Fed. Gas. No.,, 52; McCahon, 235, (1 Fed. 753; Taylor v. Decatur, M. & Kans. 627; Sioux Falls Nat. Bank L. Co., 112 Fed. 449;>"Ottumwa v. v. Swenson, 48'F6d.r621. . City Water-Supply Co., C. C. A., 4 El Paso Water Go. v. El Paso, 119 Fed. 315, 59 L.R.A. 604; Jones 152 XT. S. 157, 159; Colvin v. Jaek- V. Mutual Fidelity Co., 123 Fed. sonville, 158 U. S. 456,i 460;- Adams 506; McKee v. Chautauqua Assem- v. Douglas County, Fed. Gas. No. bly, 124 Fed. 808. See taxpayers ' 52 ; McCahon, 235, 1 Kan. 627 ; Title 64 ORIGINAL JURISDICTION [§ 18 has been held that a landowner cannot sue on behalf of himself and all others similarly interested to enjoin a street railway com- pany from crossing certain streets, where it is not shown that the injury to his property, if the injunction is not granted, would exceed $3,000.* Upon a bill by a bank, on behalf of itself and its stockholders, to enjoin taxes assessed against the bank and them, which did not aver that the plaintiff had in his hands, or under its control, any dividends belonging to the stockholders that could be applied to pay the taxes ; it was held, that the claim was in separate and distinct rights, and that the jurisdic- tional amount must be ' determined by the amount of the tax against the complainant.*' §18, Value of the matter in dispute when there are joint defendants. Where two or more defendants are joined by the same plaintiff in one suit, the pecuniary test of jurisdiction is ordinarily the joint or several character of their liability. If their liability is joint, the value of the matters in controversy be- tween the plaintiff and them all is that of the matter in dispute.^ Where a nunlber of claims are so tied together, by combination or conspiracy, as to make the relief single in regard to the samej the aggregate amount thereof is the pecuniary test of juris- diction.2 When several actions at law pending in a State court between the same parties, each for less than the jurisdictional amount but aggregating in excess thereof, all depend upon the same state of facts, and by stipulation judgment is entered in all in accordance with the result of the tria,l of one ; a single ^uit in equity may be maintained to restrain the enforcement of all the judgments, on the ground of fraud in obtaining them, and such a suit may be removed.* Where separate actions at law by in- sured against insurers on policies, to which the same defense w'as interposed, and under which the liability, if any, was pro- portional, were removed to the Federal court, with the excep- Giiaranty Go. v. Allen, 240 TJ. S. Li\^e-Stoek Co. v. Hanley, 98 Fed. 136; Nolen v. Eeichman, 225 Tecl. 327. 812. ZMcDaniel v. Traylor, 212 U. S. 8 Orleans-Kenner Electric Ey. Co, 428, 53 L. ed. 584. V. Dunbar, C. C. A., 218 Fed. 344. 3 Marshall v. Holmes, 141 TJ. S. 6 Sioux Falls Nat. Bank v. Swen- 589, 12 Sup. Ct. 62, 35 L. ed. 870; son, 48 Fed. 621. reversing Calhoun v. MoKnight, 39 §18. 1 Western Union Tel. Co. La. Ann. 325, 1 South. 612. V. Norman, 77 Fed. 13; Pacific § 18] VALtJE OP MATTER IN DISPUTE 65 tion of one in which the amount involved- was insufficient ; it was; held, that prosecution of this action, as well as of the others, might be enjoined by a 'bill in equity in the Federal court to have the liabilities of insurers there determined and adjusted.* A suit by heirs, to set aside judgments, none of which exceeded $2,000, rendered by a probate court against their ancestor's es- tate, throiigh a fraudulent combination, was heldT to be within the jurisdiction of the Circuit Court of the United States when the real estate, upon which the judgments were liens, exceeded in value the jurisdictional amount.^ ■ _ If the liability is several, ordinarily, the' suit can only be sus- tained as ^gainst those whose respective controversies with the plaintiff involve matters, exceeding, as regards each, the jurisdic- tional amount.^ Upon a creditors' bill, toi enjoin the enforcement of several attachments ^against the debtor's property; it was held, that there was no jurisdiction, when the amount of none of the attachments exceeded the jurisdictional amountJ Jurisdiction cannot be; conferred on a court, to enjoin the collection of 1 taxes assessed in several parishes by joining in one bill against the different collectors the whole amount of such taxes ; the sep- arate assessments not being sufficient to give jurisdiction.^ In a suit by a railroad company against officers of several counties, 4 Virginia-Carolina Chemical Co., '§2442 (Eev. St. 1894, §2597), pro- V. Home Ins. Co., C. C. A., 113 Fed. vided that "the heirs, deraees and 1. ; distributees of a decedent shall be 5 McDaniel v., Traylor, 196 U. S. liable, to, the extent of the property 415, 49 L. ed. ^ 533, reversing 123 received by them from such deee- Fed. 338. dent's estate, to any creditor whose ' 6 Where Eev. St. Wis. 1898, S. claim' reniaing unpaid;" held, that 26090, authorized the' joinder of ' the Jiability of; t-wo or more heirs, several causes of action , against , devisees, or distributees of a dece- several insurance companies liable dent i is, several, and not .joint, and, for a single loss under several pol- though another statute provides icies; held, that since, notwith- tha^ tljey, may be, jointly sued, the standing such joinder, the liability of each was separate, and not joint the Federal cpurt, had ,no jiirisdio tion of such an action where the al Federal poiirt ha^ no jurisdiction of a, suit against them unless the lia- .bility of eagh exceeds such amount. Buaey, v. Smith, 67 Fed. 13. leged liability of each insurance 7 Chamberlaip , v. Browning, 177 company did not exceed the juris- U. S. 605 (appellate jurisdiction), dictional amount. Wisconsin Cei(t^ 8 Citizens', Bank, of Louisiana, v. Ey. Co., V. Phoenix, Ins. Co., 123 Fe,d. Cannoii, ,164 ,U. S. 3^19, 41 L. ed. 451. 989. .Where Bey. St. Ind.,. 1881, Fed. Prac. Vol. 1—5 66 ORIGINAL JURISDICTION [§ 18 to avoid assessments and taxes levied on its lands, ttie amount involved cannot be brought within the jurisdiction of the Dis- trict Court by taking the aggregate of the sums involved as to each defendant; but the jurisdiction as to each must be deter- mined by the amount in controversy between him and the rail- road company.* But where a board imposed a uniform acreage tax upon the fends of the complainant in different counties it was held that the collector in each county could be joined in the suit although in one of the counties the tax was less than the jurisdic- tional amount.!" To give a District Court jurisdiction of a suit to quiet title to a tract of land, in which a number of persons are joined as defendants, between whom no privity of title exists, and each of whom claims title to a separate part of the tract ; the value of the property in controversy between each defendant a the complainant must exceed the jurisdictional amount. ^^ In a suit in a District Court against a number of defendants, to quiet litle to a tract of land alleged to be of sufficient value to sus- tain, the jurisdiction of the court ; it must appear from the bill, that all the defendants have a privity of interest, derived from a common source of title, or that the separate claim of each de- fendant is of the jurisdictional amount; since, where the de- fendants claim separately, the suit is separable, and the requi- site amount must be involved in each separate controversy.'^ It was held : that two of several tenants in common, who were cit- izens of another State and had been joined in condemnation proceedings with their co-tenants and the mortgagees of the interest of one of the others who were citizens of the same State as plaintiff, were not entitled to a removal of the proceedings to , the Federal Court, when the aggregate of their claims exceeded the jurisdictional sum, but the amount of their separate claims was less than that amount.^* 9 Walter v. Northeastern E. Co., 11 Stemmler v. McNeill, 102 Fed. 147 U. S. 370, 37 L. ed. 206; Keels 660. V. Central E. Co., 147 V. S. 374, 37 12 Stemmler v. McNeill, 102 Fed. L. ed. 208; Northern Pac. E, Co. v. 660; distinguishing Bates v. Car- Walker, 148 XT. S. 391, 37 L. ed. rentier, 98 Fed. 452; Cooper v. 494; Fishbaek v. W. TJ. Tel. Co., 161 Preston, 105 Fed. 403. U. S. 96, 40. L. ed. 630. 13 Trotier v. St. Louis, E. & R. 10 Evei'glades Drainage League v. Ey. Co., 54 N. E. 487,' 180 111. 471 ; Napoleon B. Broward Drainage Texas & P. Ey. Co. v. Dishman & Dist., 256 Fed. 246. Tribble (Texas), 85 S. W. 319. ' § 18] VALUE OP MATTER IN DISPUTE 67 But in some eases, iij the nature of bills of peace, when defend- ants had committed or threatened separate infringements of the same right of the plaintiff; it was held, that the value of such right was the test.^* In a suit to quiet the title to several tracts of land, held by different defendants under separate patents, which plaintiff claimed as assignee of several contracts by the same county oflSoer; each providing that on payment of the pur- chase price, therein specified, a patent should issue for the land, therein described ; the bill alleging that the purchase money had been duly tendered to the county officers, who were made parties to the bill, and not accepted by them, and praying that the paten- tees be decreed to hold the land in trust for the plaintiff ; it was lield : that, for the purpose of determining the jurisdiction of the Supreme Court upon appeal, the suit was to be considered as in effect for specific performance of the county's contracts, and the matter in dispute was the aggregate amount tendered to the county officers, although each several interest of the patentees was insufficient had its owner been the sole respondent. ^^ It was HeM : that a bill for an injunction against taxes, brought by a rail- road company against a revenue agent who represented all the parties interested, sufficientlj^ stated the jurisdictional amount, when it alleged that the taxes assessed amounted to a much larger ■sum, which was specified ; and that a question not arising on the face of the bill as to how the taxes, when collected, should be disposed of, and in what proportions and amounts they should be parcelled out to interested municipalities, was im- material.'^ In a suit by a railroad company against !a number of landowners, to enjoin threatened interference with its use of its right of way through their lands ; it was held, that the value of the right sought to be protected, and not the - value of the land constituting the right of way across the lands of defendants, constituted the jurisdictional test.'' It was held : that a bi^l, to en join , defendants from diverting the waters of a stream, in violation of complainant 's prior right thereto, which 14 Louisville & N. R. Co. v. Bit- 180 TJ. S. 28, 21 Sup. Ct. 251, 45 L. terman, C. C. A., 144 Fed. 34. ed. 410. Similar is Western Union 1,5 Corbin v. County ' of Black Tel. Co. v. Norman, 77 Fed. 13. Hawk; 105 U. S. 659, 664, 26 L. ed. 17 Louisville & N. E. Co. v. Smith, 1136. C. C.A., 128 Fed. 1, 63 C, C. A, 1. 16 Illinois Cent. E. Co. v, Adams, 68 ORIGIN aij jurisdiction [§ 19 was alleged to be of the value of $2,000, and also to recover damages in the sum of $2,500, sustained by complainant by rea- son of the joint action of defendants in diverting such waters, showed the amount' in controversy to be sufficient.^* In suits by railway carriers, to' restrain -different scalpers from buying aiid selling' tickets, which were not transferable; it was held, that the value of the matter in dispute was that of the right to the injunction; and the jurisdiction was sustained, although none of the defendants had dealt in, or threatened to deal in, tickets df the jurisdictional amount;^* It was held that where the plaintiff failed to prove combination between the defend- ants; such a bill was properly dismissed.^" Wliere a bill had been dismissed, which had been filed iby a creditor preferred under an assignment, praying for a declaration that the assignment, with its preferences, was valid and that different attaching creditors, each of' whose claim was less than the jurisdictional amount, be enjoined from enforcing attachments levied by them separately; it was held, that the amount of the complanant's preferred claim, which exceeded that sum, was the test of the jurisdiction of the appellate court.^^ § 19. Consideration of interest in estimating' the value of the matter in dispute. The interest excluded from the computa- tion includes interest accrued on the demand, before the suit was brought, and which is collected only as an incident of the princi- pal ; ^ but not interest, which is the subject of a separate contract as a coupon, and which might be the subject of a separate suit.' The face value of coupons due before the suit, may be added to the principal named in the bond when the jurisdictional amount is determined ; * except, it has been held in a single case, where 18 Morris v. ,Bean„ , 123 , Fed. 618. . 21 Estes v. Gunter, 121 U. S. 183, A similar ruling was made in Pa- 30 L, ed. 884. cific Live Stock Co. v. Hanley, 98 § 19- ^ Moore v. Edgefield, 32 Fed 327. Pod. 493 ; Simmons v. Mutual Re- 19 Nashville, C. & St. L.' Ey. Co. *""^''' ^""'^ ^^*« ^^^''^' ^^^ ^^'^■ V. McConnell, 82 Fed. 65; Louis- ^^^' ^^^'"', ^- ^"*"^^ ^«^«'''' ' .- ' , . pund Life Ass'n, 129 Fed. 1003. ville & N. R. Co. v. Bitterman, C. C. A., 144 Fed. 34; s. c, 207 V. S. 2 Edwards: v. Bates County, 16.i U. S. 269, 16 Sup. Ct. 967, 41 L. 20.5, 52 L. ed. 171. g^_ ;^gg. overruling Howard, ,'v 80 McDaniel v. Traylor, 212 II. S. Bates County, 43 Fed. 276. 488, 53 L. ed. 584. 3 Edwards v. : Bates- County, 163 § 20] VALUE OF MATTER IN DISPUTE 69 the day of payment, named in thie bond, had not yet arrived, but by its terms it became due on the non-payment of a coupon for interest; it being said by the court, that "the coupons cannot be considered as interest, for th6 purpose of ^maturing the debt, and as separate distinct obligations for the purpose of giving this 'court jurisdiction."* Interest, which has accrued upon bonds and coupons after their maturity, cannot be considered.^ Where the relief sought did not include interest as such, together with a principar to' which it was incidental ; but a calculation of interest was used as an instrumentality in determining the amount ot damages caused by ' a breach of warranty,® or by fraudulent misrepresentations as lio the valiie of stock' and for the cori ver- sion of a written dbligation ; * and where interest was elaiined as damages, although not provided for in the contract ; ' it was held : that such interest was a part of the jurisdictional ataount. Whert the bill ■ claimed payment of a sum as the amount of a debt for an advance by a building and loan association ; ij, was held, that the court could not arbitrarily assume that this was usurious interest clioaked with such name.^" In a suit to fore- close a mortgage, insurance premiums paid by the mortgagee, when claimed in the bill, are considered to be a part of the jurisdictional amount. ^^ §20. Consideration of costs in estimating the value of the ma,tter in dispute. Notarial fees for the presentment and pro- test of a note in suit, altliough paid before the action, was brought, were considered to be costs, not damages, and excluded U. S. 269, 16 Suj). Ct. 967, 41 L. Spradlin, 0. 0. A., 170 Fed. 3-22; ed. 15,5. ' • ' ' ' Central Commercial Co. v. Jones- 4 Home and Foreign Inv, & BuSenbury Co., C. C. A., i237 F6d. Agency Co. v. Bay, 69 Fed. 657. 13. Contra, Voorhees v. Aetna Life 5 Greene County v. Kortrecht, Ins. Co., 250 Fed. 484;' A. H. Mar- C. C. A., 81^ Fed, 241. shall Go., Inc. v. Buiek Motor Co., 6 Brown v. Webster, 156 U; S. 251 Fed. 685. 328; 39 L. ed. 440. See > Central ' 10 Bldg. & L. Ass'n V; Price, 169 Cwnmereial Co. v.- Jones-Dusenbufy U. S. 45, 42 L. ed. 655, 18 S. Ct. Co., C. C. A., 251 Fed. 13. ' ' 251; Turner v. Southern H. Bldg. & , 7Chosbrough v. Woodworth, C. C. L. Ass'n, .C. C. A., 101 Fed. 308; A., 251 Fed. 881. Building & Loan Ass'n of Dakota 8 Intermela v. Perkins, C. C. A., v, Cunningham (Texas), 47 S, W. 205 Fed. 603, 714; 9 Continental ' Casualty. Co. - v. H Coolidge v. Ray, 75 Fed. 39. ' 70 OBIGINAI, JURISDIGTIOK [S 21 from the computation of the jurisdictiDna,l,amount.i It; has been held : that where a statute authorizes the inclusion o| an attor- ney 's fee in the judgment, the same is part of the. :costs, a,ndi,is not' included in the jurisdicjtional amount ; ^ but the , case ; is otherwise where the- fee is awarded by stipulation anci nqt by statute.' Where a suit was brought to enjoin a public officer, from issuing certain certificates; without the payment, of -COgts and penalties which had accrued before the purchase, such, costs were included in computing the jurisdictional amount.* §21. Consideration of counterclaims in estimating the value of the matter in dispute. — Whether the amount of a counter- claim, pleaded by the defendant, should be added to that of the plaintiff's claim, to determine the jurisdictional amount, has been the subject of conflicting adjudications.^ It has been held ;thst the question is so doubtful that a motion to remand the cause in such a, case should be, granted.^ Where the suit wag' one § 20. 1 Baker v. Howell, 44 Fed. 113. Contra, Dallyn v. Brady, 205 Fed. 430. 2 Peters v. Queen Ins. Qo, of America, 182 Fed. 113. 3 Rogers v. Riley, 85 Fed. 471; Springstead v. Crawfordaville State -Bank, 231 U. S. 541;IieEoy v. Har.twick, 229 Fed. 857. ,Spe Lee Line Steamers v. Eobinson, 0.0. A., 232 Fed. 417, 418. 4 Glen Ins. Oo. v. Eomero, County Treasurer, 0. 0. A., 254 Fed. 233. § 21. 1 Held, that it should be : in Stinson v. Dousman, ' 20; How. (U. S.) 461, 464, 467, 15 L. ed. 966, 968, 969 (appellate jurisdiction in equity); Lovell v. Oragin, 136 U. S. 130, 34 L. ed. 372 (appellate juris- diction in equity) ; Kirby v. Am. Soda Fountain Oo., 194 TJ. S. 141, 48 L. ed. 911, 24 Sup. Ot. 619 (ju- risdiction of Cirouit Court where cross-bill was filed) ; Glarkson v. Maiison, 4 Fed. 257 (18 Blatehf. 443) ; Carson & E. L. Co. v. Holtz- claw, 39 Fed. 578; Woloott v. Wat- son, 46 Fed. 529; Wolcott ' v. Sprague,' '55 Fed. 545;* Lee v. Con- tinental Ins. Co., 74 Fed. 424; Price & Har't V. T. J. Ellis & -Co., 129 Fed. 483; -American; ^S^eet, &, T;in Plate Co. V. Winzeler, 227 Fed, 321 ; Central Commercial Ool v. ' Jones- Dusenbury Co., 251 Fed. 13; Olark- son v.: Hanson (N. Y.), 60 How. Pr.. 45;, reversing ,59 -How. P.r. 480. S^e, Champion v. Grand Eapids, etc., Ey.' Co., 145 Mich." 676, 108 N. W.' 1078. Contra, Falls W. Mfg; Co. V. Broderick, 6 Fed. 654; La Mon- tague V. T. W. Harvey Lumber Co., 44 Fed. 645; Bennett v. Devine, '45 Fed. 705; Industrial & Mining Guaranty Co. v. Electrical Supply Co., 58 Fed. 732, 7 0. 0. A. 471, 16 U.-S. App. 196 (cross-bill); Mc- Kown V. Kansas' & T.Coal Co., 105 Fed. '657. Cf. "West v. Aurora City, 6 -Wall. 139, 18 L. ed. 819; Mc- GiAity V. White, 3 Dillon, 350; s. c, Fed. Cas. No. 8,802; Sturgeon Eiver Boom Oo. v. W. H. Sawyer Lumber Co., 89 Fed. 113. 2 Crane Co. v. Guatiiea Centralo (S. B.:N. Y.) 132 Fed. 713. §22] VALUE OP MATTER IN DISPUTE 71 appealed from a justice to the State Circuit Court,. and defendant filed there a plea of set-off, claiming $3,000 against plaintiff, but under the statute of Tennessee he could recover no more than $500' in such court; 'it was held, that the latter sum was the matter in dispute, and the Federal court could have no juris- diction by removal under the act of 1875.3 "VVhere the counter- claim 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 jurisdictional amount.* It has been said' that a defendant who pleads a counter-claim in a court of the United States is estopped from denying jurisdic- tion because of thc» insufficiency of the amount in dispute.^ An adjudication sustaining a set-off, counterclaim, or partial defense, so as to reduce the recovery below the jurisdictional amoi^nt, something still being allowed the plaintiff, is no reason for a dis- missal or remand ; provided that it does not appear that the origi- nal claim was exaggerated in bad faith. ^ The filing of a cross- bill, by one defendant against another, does not deprive him of the right of removal.' It has been held : that the pleading in a State court,, by the original defendant, of a counterclaim, or de- mand 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 ease.* § 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 dis- 3 New ! York I. & P. Co. V; Mil- ington County v. Williams, 111 Fed. burn Gin & Machine Co., 35 Fed. 801, 49 C. C. A. 621. 225. Cf. Beniiett v. Forrest, 69 7 Jackson & S. Co. v. Pearson, 60 Fed. 421. . Fed. 113, 123. Contra Bennett v. 4 Lee v. Continental' I. & S. Co., Devine, 45 Fed. 705 (counter- 74 Fed. 424. claim). ' 5 O. J. Lewis Mercantile CO. v. 8 Waco Hardware Co. v. Michi- Klepner, C. 0. A., 176 Fed. 343. gan Stove Co., G. C. A., 91 Fed. 6Lozano v. Wehiher, 22 Fed. 289; McKown v. Kansas & T. Coal 755; Peeler v. Lathrop, 48 Fed; Co., 105 Fed. 657; Smithcrs v. 7»0, 1 C. G. A. 93, 2 TJ. S. App. 40; Smith (Texas), 80 S. W. 646; re- Wheeler Bliss Mfg.: Co. V. Pickham, hearing granted 81 S. W. 283. 69 Fed. 419; Stillwell-Bierce & Comira, Price & Hart v. T. J. Ellis Smith-Vaile Co. v. Williamston Oil & Co., 129 Fed. 482. • & Fertilizer Co,; 80 Fed. 68 ; Wash- 72 ORIGINAL JURISDICTION [| 23 pute less than the jurisdictional amount, will not divest the Federal court of jurisdiction of a suit begun there by the plain- tiff ; 1 but where the pla.intiff sued to recover the possession 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 juris- dictional amount ; the court intimated without deciding th£tt the jurisdiction might be thereby defeated.* Whether such an ad- mission or disclaimer will defeat the right of remoyal has not yet been authoritatively decided.* Where the defendant, before a removal was attempted, admitted the plaintiff's claim, but dis- puted 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 jurisdic- tional amount, although the property attached was more than such sum.* § 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 ; ^ unless it is apparent that such part of the §22. IBe Metropolitan Eailway S. 10, 23 L. ed. 524; Upton v. Me- H«ceivership, 208 U. S. 90, 52 L. ed. Laughlin, 105 U. S. 640, 26 L. ed. 403, in whieh the author was eoun- 1197, and distinguishing Bowman v. sel; Fuller v. ' Metropolitan Life Chicago & N. W. Ey. Co., 115 U. S. Ins; Co., 37 Fed. 163; Stillwell- 611, 6 Sup. Ot. 192, 29 L. ed. 502; Bieroe & Smith-Taile Co. v. Wil- Johnston v. Straus, 26 Fed. 57; liamston Oil & Fertilizer Co., 80 Hardin v. Cass County, 42 Fed. 652 Fed. 68. (statute of limitations); Industrial 2 Jones V. Eowley, 73 Fed. 286. & Min. G 'y- Co. v. Electrical Supply 3 A decision of a State court seems Co., C. C. A., 58 Fed. 732 ; Bank of to hold that it will defeat the right Arapahoe- Vj David Bradley & Co., of removal. Thompson v. Ken- C. C. A., 72 Fed. 867; Interstate drick's Lessee, 6 Tenn. (5 Hayw.) Building & Loan Ass'n v. Edgefield 113. But see supra, § 6. See Hotel Co., 109 Fed. 692 ; Waterfield Cooper V. Preston, 105 Fed. 403. v. Rice, 111 Fed. 625, 49 C. C. A. 4 Keith V. Levi, 2 Fed. 743 (1 Me- 504 (statute of limitations) ; Wash- Crary, 343). ington County v. Williams, C. C. A., § 23. ISchunk v. Moline, Mil- 111 Fed. 801, 811; Board of Com 'rs burn & Stoddart Co., 147 XJ. S. 500, of Kearny County, Kan. v. Vandriss, 13 Sup. Ct. Eep. 416, 37 L. ed. 255, C. C. A., 115 Fed. 866 (statute of following Gaines v. Fuentes, 92 TJ. limitations) ; Armstrong v. Walters, 24] SUITS UNDER CONSTITUTION OE LAWS 73 claim was not made in good faith, but was inanifestly fictitious ; ^ 6r else that the court has no jurisdiction thereof.* § 24. Suits arising under the Constitution or laws of the United States, In general. A suit arises under the Constitu- tion or law of the United States whenever its Correct decision depends on the construction of either.^ 219 Fed. 320.J MuUin Lumber Co. V. Williamson & Brown Land & Lumber Co.j C. C. A., 246 Ted. 232. 8 EdT^ards v. Bates County, 55 Fed. 436; reversed on another point, 163 U. 8. 269, 273; Chicago Cheese Co. V. Fogg, ,53 Fed. 72. , 3 Coulter y. Fargo, 127 Fed, 912, 62 C. C. A? 144. ■ § &. 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, 650 ; Starin v. New York, 115 U. S. 248, 257, 29 L. ed. 388, 390 ; South- ern Pac. E. Co. V. California, 118 U. S. 109, 112, 30 L. ed; 103, 104; Wiley V. Sinkler, 179 IT. S. 58, 45 L. ed. 84; SwafCord v; Templeton, 185 TJ. S. 487, 46 L. ed. 1005;' New Or- leans V. Seixas (Louisiana), 35 La. Ann. 36; MeKee v. Brooks (Texas), 64 Tex. 255. Complainant brought suit in a State court to subject a judgment, obtained by the defend- ant a|ainst the United States in the Court of Claims, to tlie payment of a judgment he had against defend- ant, and fon an injunction to re- strain defendant from collecting, transferring, or o'therwise disposing of said claim against the govern- ment, and for the appointment of a receiver to collect and hold the fund. The suit was removed to the Tjnited States court, and, upon mo- tion to remand, held that it involved the construction of fe. 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 at- testing witnesses," &c., and the mo- tion was therefore denied. : WiUard V. Mueller,, 23 Fed. 209. A proceed- ing to 'exclude a bridge company from the use of a franchise to oper- ate railroad tracks in a public street does not raise a Federal question, although such tracks lead to its bridge, built under Acts Jtily 14, 1862, and Feb. 17, 1865, authorizing the construction 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 approach. Kentucky v. Louisville Bridge Co., 42 Fed. 241. In an action against a railroad company to enforce a schedule of rates adopted by the railroad commission, the State court refused to remove the cause to the Federal court on the ground that under Act of Congress of July 25, 1866, its road in the State was made subject 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- struction of the road, which in all other matters was to be gpvefned by the law of the' State. State v. Southern, Pac. Co.; 23 Or. 424, 31 Pac. 960. No removable question 74 ORIGINAL JURISDICTION, [§24 It has been said: that a suit cannot be removed, from a State court to a Federal court, simply because, in its progress, a con- struction of the Constitution or of a law of the United States may be necessary, unless it, in part at least, arises put of a controversy in regard to the operation and effect of some proyisioi;! in ^uch Constitution or law upon the facts involved-^ 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 Federa.1 courts jurisdiction thereof; but the decision must depend on such construction.** 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 removal.^ A case removed to a Federal court, on the ground that the suit arose under the Con- stitution or laws of the United States, will be remanded where arises from the fact that plaintiff acquired title from the United States to the funds loaned defendant, and to recover which suit is brought. Houston & T. C. E. Co. v. State (Texas), 41 S. W. 157. The State of South Carolina filed a bill in one of its own courts, alleging that de- fend£^nt 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 de- fendant, and crushed competition; that the Central Company had no ]50wer to purchase stock in defend- ant corporation, and that the latter was disabled to fulfill the purposes for which it was chartered. It prayed that such holdings by the Central Company be declared ultra vires, and that defendant's charter be forfeited. The petition for re- moval alleged that the Central Com- pany was an instrument of inter- state commerce, and that for the purposes of such commerce, and un- der , 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 controversy thus developed involved the construction,- of the Constitution and laws of the XJnited, States and so presented a Federal question. South Carolina v. Port Royal & A. R. Co., 56 Fed. 33,3. 2 Gold Washing & Water Co. v. Keyes, 96 U. S. 199, 24 L. ed. 656; .38 St. at-L. 583,__Comp. St. § 4i25b Bankers Trust Co. v. Tex. & Pac. Ry., 241 IT. S. 295; Wise v. Nixon, 78 Fed. 203. 2a Wise v. Nixon, 78 Fed. 20?. 3 Austin V. Gagan, 39 Fed. 626, 5 L.R.A. 476. §'^-i| SUITS UWdER constitution OB LAWS 75 I he record fails to show : that there yvill arise some contested point of law depending upon the Constitution or laws of the United States, what the question is and how it will arise.* 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.^ A suit to determine the validity of the action of State author- ities with reference to a tax imposeji by the United States in- volves a Pfederal' question.^ It has been held: that a cause in- volving the question whether an express company or its customer must furnish the stamp required by the war revenAe act of 1898, to be affixed to a receipt,; given by the company is one arising under a law oi the United States; '' but that a suit between two companies to determine which of them is liable for the income tax upon dividends does not, although the collector is joined as a de- fendant, when no controversy is raised effecting the rights of the United States.* It has been held that Federal questions are raised in suits brought by a State attorney general, to test the validity of a consolidation of railroad companies, which affect their'rights under acts of Congress.* It has been said that where the plaintiff pleads a breach of the rules and regulations made by a Department qf the United States^ the case does not arise under a law of the United States, unless: a recovery of damages for a disrtegard of such regulations is expressly authorized by statute.^" Suits against directors of national banks for damages sustained by individuals in consequence of violation of' the National Bank- ing Laws,^^ Suits for malicious prosecution or false imprison- ment upon a charge of the violation of a law of the TTnited States,^*! or where the illegality depends upon a right granted iiMoPadden v. EobihsM, 22 Fed. ware & Hudson Co., C. C. A., 257 10, 10 Sawyer, 398. Fed. 555. 5 Fitzgerald v. Missouri Pac. E. 9 Ames v. Kansas, 111 U. S. 449, Oo.,'45 Fed. 812. ' 28 L. ed. 482.' 6 Dinsmore v. Southern Exp. Co., 10 Beck v. Johnson, 169 Fed. 154, 92 Fed. 1 714. 163. 7 Crawford v. Hubbell, 89 Fed. 1. " Chesbrough v. Woodworth, 244 See,' however; > Attoi-ney General v. TT. S. 72. Seemfra § 28. Ariieridan Express Co. (Michigan), 12 Ma-ka-ta-wah-qua-twa v. Eobok, 77 N. W. 317.' " ■ . ' i'- ' . Ill Fed. 12.- 8 Eensselaer & S. E. Co. v. Dela- 76 ORIGINAL JURISDICTION [§24 by a statute of the United States ; " an action for damages for preventing plaintiff from voting at a Congressional election ; ^* but not under ordinary circumstances a controversy as to the right to the custody of an Indian child : ^^ arise under the laws of the United States. The Federal question in the ease must be substantial, and not merely colorable.^® "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." ^"^ The 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.^^ j^ ^^g gaj,j . tj^^^ the deci- sions of the Supreme Court, in cases from the Circuit Courts, and those on writs of error to State courts were equally instruc- tive in determining when there is a Federal question, such as to support the jurisdiction of the Circuit Court, originally or upon removal.'* Where the complaint shows upon its face, that the 13 Peters v. Malin, 111 Fed. 244. 14 Knight V. Shelton, 134 Fed. 423. 15 In re Oelestine, 114 Fed. 551*. 16 St^rin v. New York, 115 U. S. 248, 257, 29 L. ed. 388, 390; South- ern Pac. E. 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 & 6. I. R. Co. V. Steele, 167 U. S. 659, 42 L. ed. 315; McCain v. Dea Moines, 174 V. S. 168, 43 L. ed. 936; W. U. Tel. Co. V. Ann Arbor R. Co., 178 XJ. S. 239, 44 L. ed. 1052; Swaf- ford V. Templeton, 185 V. S. 487, 494, 46 L.-ed. 1005, 1008; Oummings V. Chicago, 188 V. S. 410, 47 L. ed. 525; Bankers' Mut. Casualty Co. v. Minneapolis, St. P. & S. S. M. Ry. Co., 192 U. S. 371, 48 L. ed. 484; Underground R. E. Co. v. New York, 193 U. S. 416, 48 L. ed. 733; Barney V. New York, 193 IT. S. 430, 48 L. ed. 737; Newburyport Water Co. v. Newburyport, 193 U. S. 561, 48 L. ed. 795; Sloan v. U. S., 193 IT. S. 614, 48 L. ed. 814; Farrell v. O'Brien, 199 U. S. 89, 50 L. ed. 870; Cf. Penn. Mut. L. I. Co. v. Austin, 168 XJ. S. 685, 695, 42 L. ed. 626, 630; and infra. The oases where relief against tlie infringe- ment of rights claimed under a pat- ent, copyright, or registeried trade mark have been denied are .ex- plained in subsequent sections; in- fra, §§146, 148, 150. As to the rule in patent trade mark a,nd copy- right cases, see infra, §§ 146, 148, 150, 363. 60 TuUar & Tullar v. Illinois Cent. E. Co., 213 Fed. 280. 51 Hamblin v. Chicago, B. & Q. E. Co., 43 Fed. 401. '' 62 Lowry v. Chicago, B. & Q. E. Co., 46 Fed. 83. 84, ORIGINAL JURISDICTION [§ 25 tion whether it arises under the laws of the United States; and that if the case made by the complaint arises under an act of Congress, the right of removal by the defendant is not lost by insufficient denials in the answer,^^ qj. ^y ^he interposition of a good defense.^* 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 inatter concerning which the plaintiff claims title under the laws of the United States, and denying that it has made any claim to the same.^^ 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 adjud/icata as against the State does not oust the Federal jurisdiction on the theory that it makes the case turn on a question not Federal.^® Where the requisite difference of citizenship did not exist, it was held that the Federal Court could not take jurisdiction of a counterclaim not affecting matters set forth in the bill which might have been the subject of an independent suit and the de- termination of which did not involve the decision of a federal question.*'' §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 ; ^ or where the B3 Miller v. Tol)in, 18 Fed. 609, 9 56 Bank of Kentucky v. Stone,, 88 Sawyer, 401, Fed. 383. 84 Guarantee Co. of North Dakota 57 Cleveland Engineering Go. v. V. Hanway, 1Q4 Fed. 369, 44 0. G. Gallon, D. M. Truck Co., 243 Fed. A. '312; Benedict, v. City of New 405, York, C. C. A., 247 Fed. 758. § 25". 1 An action to recover dam- 56 Kobinson v. Anderson, 121 TJ. ages for preventing plaintiff from S. 522, 524, 30 L. ed. 1021; Excel- exercising the right to vote for a sior Wooden Pipe Co. v. Pacific member of Co^igress is one arising Bridge Co., 185 U. S. 282, 287, 46 under the Constitution of the United L. ed. 910, 913 ; Boston & M. Gonsol. States. Wiley v. Sinkler, 179 U. 8. C. & S. Min. Co. V. Montana Ore P. 58, 45 L. ed. 84.; Knight v. Shelton, Co., 188 U. S. 632, 47 L. ed. 626; 134 Fed. 423; T. B. Harms &'Fran' Crystal , Springs Land & Water Co. cis,- Day & Hunter v. Stern, C. C. V. Los Angeles, 82 Fed. 114. A., 229 Fed. 42 ; Swindell v. Youngs- §■25] SUITS ARISING UNDER CONSTITUTION 85 cause of action depends upon the unconstitutionality of an act of Congress; * or the repugnancy of a State statute to the Fed- eral Constitution ; * the repugijancy to the Federal Constitution of a municipal ordinance,*,or of; a,respluti,on pf a city council which has the effect, of an ordinance of a ^l^ate municipality,^ when either was passed ip aecordgjiQe with the. legal forms ® and undei; color of statutory authority, even though the same is not au- thorised by the statutes of the State,®* or, it has been held, where its validity depends upon a statute, which the defendant con- tends, in good faith to be in violp-tion of the Constitution, and there is ground for a reasonable doubt as to the soundness of the contention; ' or where complaint 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.* ' The pleadings need not state what particular clause of the Constitution is in question.^ It has been said : that it is not essential to the jurisdic- town Sheet & Tube Co., C. C. A., 230 Fed: 438. ' 2 Patton V. Brady, 184 U. S. 608, 46 L. ed. 713. 8 Covington & L. Turnpike Eoad Co. V. Sandford, 164 U. S. 578, 41 L. ed. 560; Green v, Oemler, 151 Fed. 936; Rail & River Coal Co. v. Yaple, 214 Fed. 273; N. W. Hal- sey & Co. V. Merrick, 228 Fed; '805 ; Nolen V. Eiechman, 225 Fed. 8l2. 4 Walla Walla City v. Walla Walla Water Co., 172 U. S. 1, 43 L. ed. 341; Cuyahoga River Power Co. v. City of Akron, 240 TJ. S. 462. 5 Des Moines City Ry. Co. v. Bes Moines, 151 Fed. 854. 6 Mayor, etc., of Savannah ' v. Hoist, C; C. A., l32 F6d. 901; re- versing 131 Fed. 931; Louisville v. Cumberland Tel. & T. Co., 0. C. A., 155 Fed. 725, 12 Ann. Cas. 500; Seattle El. Co. v. Seattle, E. & S. Ry. Co., C. C. A., 185 Fed, 365; City & County of San Francisco v. United Railroads of San ! Francisco, C. C. A., 190 Fed. 507;/ 6a Portland Ry., Light : & Powel! Co. V. pity of Portland, 210 Fed, 66'7; Ashland 'Electric Power. & Light Co. V. City of Ashland, 217 Fed. 158. 7 Railroad C6. 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 TJ. S. 109, 30 L. ed. 103;; Kansas V. Walruff, 26 Fed. 178; Kessinger- v. ■ Hinkhonse, 27 Fed. ; 883;, Mahin v. Pfeiffer, '-27 Fed. 892; Minnesota v. Duluth & I. R. R. Co., 87 Fed. 497. Contra, Kentucky v. Chicago I. & L. Ry. Co., 123 Fed. 457. To the same efEeet are : Lemen v. Wagner (Iowa) , 68 Iowa 660, 27 N. W. 814 ;l Judge v. Arlen (loiwa)-, 71 Iowa 186, 32 N; W. 326;' Dickinson v. Herb Brewing Co. (Iowa), 73 Iowa 705, 36 N. W. 651;, Shear v. Bolinger' (Iowa), 74 Iowa 757, 37 N. W. 164. 8 Minnesota v. Duluth & I. R. E. Co., 87 Fed. '497. 9 Crystall Springs Land' & Water Co. V. Los Angeles^ 76 Fed.' 148. ORIGINAL JURISDICTION 25 tion 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 plaintiif in good faith claim the existence of such contract and its inipairment.^" Where a bill is filed to enjoin the enforcemeM of a municipal ordinance,^' or resolution of a city council, which has the effect of an ordinance,^* or to prevent the passage of one,** which will violate an existing contract with the complainant; the case arises under the Constitution of the United States ; provided that the ordinance is otherwise within the powers of the municipality. A breach by the State officers of a contract is not equivalent to the taking of property without due process of law and will not give the Federal court jurisdiction of a suit to enjoin the same.** A' municipal ordinance, not passed Jn accordance with legis- "ative authority-, is not an impairment by the State of the obli- gation of a contract and a suit to enjoin its enfortementj when it is in other respects due process of law, does not arise unjder lOPacifio Electric Co. v. Los An- geles,, 11,8 Fed. 746. But see Risley V. City of TJtiea, 179, Fed. 875; Columbus Ey. Power & Light Co. v. City of Columbus, Ohio, 249 U. S. 399; Mutual Film Co. v. Industrial Commission of Ohio, 215 Fed. 138. 11 Walla Walla City , v. Walla Walla Water Co., 172 U. S. 1, 43 L. cd. ,341; affirming 60 Fed. 957; Mercantile Tr. & D. Co. v. Colum- bus, 203 XJ. 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 0. C. A. 631 ; Iron Mountain E. Co. of Mem- phis, v. Memphis, 0. C. A., 96 Fed. 113; Kimball v. City of Cedar Eapids, 99 Fed. 130; Mercantile Trust & Deposit Co. of Baltimore v. Collins Park & B. E. Co., 99 Fed. 812; Anoka. Water Works, Electric Light & Power Co. v. City of Anoka, 109 Fed. 580; American Water Work.s & Guarantee Co. v. Home Wa- ter Co., 115 Fed. 171; Eiverside & A Ey. Co. V. Eiverside, 118 Fed. 736 ; Dcs Moines City Ey. Co. v. Des Moines, 151 Fed. 854. But see Biten- ville Water-Supply Co. v. Mobile, 173 tl. S. 109, 44 L. od. 92; afSrm- ing 95 Fed. 539. 12 Dcs Moines City Ey. Co. v. Des Moines, 151 Fed. 854. 13 Vicksburg Waterworks Co. v. Vioksburg, 185 XT. S. 65, 46 L. ed. 808 ; s. Ci, as Vicksburg v. Vicks- burg Waterworks Co.j 202 U. S; 453, 50 L. ed;.1102; Farmers' Loan & Tr. Co. V. Meridian, 139 Fed. 673. But see imfra, § 271a. 14 Manila Investment Co. v. Tram- mel!, 239 V. S. 31 ; City of Monroe V. Detroit, M. & T. S. L. Ey. Co., 257 Fed. 782. , |25] SUITS ARISING UNDER CONSTITUTION 87 the Cpnstitution of the United States.^^ Where the eoiJlplaiiit averred that the enforcement of .the ordinance would deprive the CQmplainant of its property without due process of law and tha State constitution contained a prohibition of such depriva- tion j it was held that the remedy must be first sought in the State courts.^® It has been said : that under the settled doctrine that the courts cq,n only deal with the question 'of the constitntio; ality of a legislative act after it has been passed, and are with- out jurisdiction to interfere with proposed or pending legislation, either State or municipal, the action of a city council in adopting the repflrt of a committee finding that the franchise of a street riailwaj'' company will expire at a certain time, contrary 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 i constitutional question as to ]the impairment of the contract rights of the company.^'' Where, in addition to these facts, at 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 speci- fied time, it was held, that the receivers had a cause of action arising under the, Constitution of the United States.^* The mere refusal of a municipal corporation to perform a contract, even though that refusal , is expressed in an ordinance containing a , direction th,at, the of,her party to the contract; perform some act which the con tra,ct .does not require but imposing no penalty 15 Mayor, etc., of Savannah v. 372. See, also, Hamilton of the mortgagor.®' 68 Arkansas v. Kansas & T. Cpal L. , ed. 636; affirming order Wig- Co.,' 183 TJ. S. 185, 46 L. ek 144; 'gins' Ferry Co. v.' Chicago & A. R. reversing 96 Fed. 353. " ' Co., ll' Fed. 381, 3 McCrary, 609; 64 Postal Tel. Cable Co; v. Nolan, Merritt v. Am, Steel .Barge Co., C. 240 Fed. 754. , " C. A., 75 Fed. 813. 66 Supreme Council of Eoyal At; ,68Gibba v. Crandall, 120 TJ. S. canum v. Hobart, C. C. A., 244 ?ed^ 105, 80 L. ed. 590. 385. 69 City and County of Denver v. 66 Orr V. Allen, 0. C. A., 245 Fed. New York Tr. Co., C. C. A., 187 486. Fed. 890; City of Denver v. Mer- 67 Chicago & A. R. Co. v. Wig- cantile Tr. Co., C. C. A., 201 Fed, gins' Ferry Co., 108 U. S. 18, 27 790; when it was held that the § 26] SUITS ARISING UNDER TREATIES 97 •Where :the matter , in dispute exceeds, the jurisdictional amount and the requisite diversity of citizenship exists, the district court may, enjoin an infringement of a State Constitution in a proper case.™ §26. Suits arising' imder itreaties of tihe United States. A suit arises under a treaty of the United States when its deci- sion depends upon a construction or the determination of the validity -of the same,^ 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 exemption, arose under the laws and treaties of the United States.^ " , ' A suit to protect rigtts claimed. under a treaty does not arise under the treaty when the validity of the latter is not disputed and its construction is not involved.^ It was held: that where both parties claimed under Mexican grants, confirmed and patented in accordance . with a provision of , a treaty, the plaintiff claiming certain water rights thereunder, which the dpfendant , disputed ; the suit did, not arise under a treaty, of the United States.* Where a complaint in ejectment against private individuals alleged that, plaintiff was ousted in violation of the ;provisions of the, treaty with Prance, of Qctoher 21, 18.08, for the protection of the inhabitants of the ceded territory in the enjoyment of their property, it was held : that it did not show a case arising under a treaty of the United States, there being no assertion of any- right, title, privilege or immunity, derived • ft-Om such treaty as against the defendants, and no charge that they took possession by direction of th^ Government of- the United States.* A suit was maintained in a District Court of the United States by the consul of Austria and Hungary, to moiljgagor was not an indispensable SBorgmeyer v. Idler, 159 TJ. S. party and might be omitted when 408, 40 L. ed. 199; Muse v. Arling- his joinder would oust the jurisdic- ton Hotel Co., 168 TJ. S. 430, 42 L. tion. ,See Central Tr. Co. v. Wheel- ed. 531. See Gill v. Oliver, 11 How. ing & L. E. E. Co., 211 .Fed. 515; (V. S.) 529, 545, 1^ L. ed. 799,.8.06. infra, §§117-120.^ 4 Crystal Springs Land &, Water lOSee infra, §§"40,-44. Co. v. Los Angeles, 177 IT. ,8. 169, 1 26, 1 Muse, V. (Arlington Hotel 44 L. edi 720; affirming 8? Fed. 114. Co., 168 U. S. 43,0,42 L. e^., 531. 5 Filhiol v. Maurice, 185 U., S. See imfra, §688. ' ' 108, 46 L^.ed. 827, 2 Peters v. Malin, 111 Fed. 244. , Fed. Prac. Vol. 1—7 98 ORIGINAL JURISDICTION [§ 27 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 States, to belieTe that the association was conducted under the customs of their own country, and that their Emperor was identified with the same and a patron thereof.^ § 27. Suits where the paj'ties are Federal corporations. In general. When either party is a corporation chartered by Congress, the case is one arising under the Constitiltion and laws of the United States; and except in the case of national banks,^ the former rule was that a District Court of the United States might take jurisdiction of the same, either originally,* or by removal.^ The statutes now provide: "No court of the United States shall have jurisdiction of any action or suit by or against any railroad company upon the ground that said railroad company was incorporated under an Act of Congress. ' ' * Some of the following decisions may still be of use to the prac- titioner. The court will take judicial notice that a party to the action is incorporated by an act of Congress, although the plead- ings are silent Upon the subject.* It was not the domicile of a corporation created by an act of Congress which conferred juris- diction on the Federal courts of suits to which it was a party, but 6 Von Thodorovich v. Franz Jo- of Dunn, 212 TJ. S. 374, 53 L. ed. seph Beneficial Ass'n, 154 Ted. 911. 558; Cruikshank v. Fourth Nat. § 27. 1 See infra, § 28. Bank, 16 Fed. 888, 21 Blatchf . 322 ; 2 O'sborn v. TJ. S. Bank, 9 Wheat. Allen v. Texas & P. E. Co., 25 Fed. 738, 823, 6 L. ed. 204, 224; Male 513; Supreme Lodge of Knights of V. Atchison, etc., Ry., 240 TJ. S. Pythias of the World v. Hill, 76 97; Northern Pae. E. Co. v. Amato, Fed. 468, 22 C. G. A. 280; Union 144 U. S. 465, 36 L. ed. 506 ; TJ. S. Pac. B. Co. v. McComb, 58 How^ Freehold Land & Emigration Co. v. Prae. 478; Texas & P. Ey. Co. v. Gallegos, 89 Fed. 769, 32 C. C. A. Watson, 43 S. W. 1060. 470. ,4 38 St. at L. 583, Comp. St. 3 Pacific E. E. Eemoval Cases ; Bankers Trust Co. v. Tex. & Pae. TTnion Pac. E. Co. v. Myers, 115 TJ. Ey., 241 TJ. S 295. S. 1, 29 L. ed. 319; reversing Myers 6 Matter of Dunn, 212 TJ. S. 374, V. Union Pac. Ey. Co., 16 Fed. 292, 53 L. ed. 558; Knights of Pythias 3 McCrary, 578; Knights of Pythias ?. England, 94 Fed. 369, 36 C. C. A. V. Kalinski, 163 U. S. 289, 41 L. ed. 298. 163, 16 Sup. Ct. Eep. 1047; Matter 27] FEDERAL COBPOEATIONS 99 the fact that it was so created. It was held, that by the, con- solidation of a Federal with a State corporation, the former did not losq any of its rights or franchises as such, and was not estopped from removing i suits brought against it in the State courts to those of the United States, notwithstanding that the laws of the State in question provided : "If any railroad com- pany, organized under the laws of this State, shall consolidate by sale or otherwise with any railroad company organized under the laws of any other State or of the Unjibed i States, the same shall not thereby become a foreign corporation, but the courts of this State shall retain jurisdiction in all matters which may arise as if said consolidation had not taken place."® When a party is a corporation, which derives its charter from a Terri- torial statute, that fact does not make the case arise under the laws of the United States,'' although it was organized in. pur- 6 Allen V. Texas & P. E. Co., 25 Fed. 513. 7 Adams Express Co. V. Denver & S. G. E. Co., 16 Fed. 712 ; Maxwell V. Federal Gold & Copper Co., C. C. A., ,155 Fed. 110., An act, of Con- gress provides: that the Oregon Short Line Eailway Company, a corporation of the Territory of Wyoming, "is hereby made, a rail- way corporation in the Territories of Utah, Idaho and Wyoming," un- der the same limitations, and with the same rights that it previously had under its articles of incorpora- tion in 'Wyoming, and with all the rights and privileges within these Territories secured to railway com- panies by a previous act of Con- gress granting to railroads . the right of way through public lands. An- other act of Congress provides: that the ,Utah & Northern Eailway Com- pany, a corporation organized under the laws of Utah, ' ' is hereby made a railway corporation in the Terri- tories of. Utah, Idaho and Mon- tana, " -under the same limitations, and with the same rigits that it then had under' its articles of ili- corporation. It was held on a pe- tition of the Oregon Short Line & Utah Northern Eailrpad Company, a corporation formed, by a consijli- dation of ,these;two, companies :,;that the statute gave no powers or rights to be exercised, outside of the Terri- tories named therein,; and therefore did not give such corporations - a Federal character; and that, peti- tioner and ijts several constituent companies were Territorial organi- zations, ,and not entitled - to , a re- moval to tjie i^ederal court of an action brought against ip in the Supreme Court, as a , suit arising under, the laws of the United States. Oregon Short Line & U. N. E. Co. v. Skottow,e, 162 U. S. 490, 40, L. ed., 1048; affirming Skottowe v. Ore- gon Short Line & , U. N. Ey. Co., 22 Or. 430, 30 Pac. 222, 16 L.E.A. 593; approving Conlou v.. OEegon Short Line & U. N. Ey. Co., 21 Or. 462, 28 Pac. 501. In an elaborate opinion, 32 ,Wash. ,,Law Eep. 758, 761, Fred Dennet, Esq., of D. , G. bar argued: that organizatiojis i in- 100 ORIGINAL JURISDICTION [§27 suanee of the corporation laws of Arkansas under an act of Con- gress,* which directed that they should be enforced in that Terri- tory with the same effect as if enacted in haec verba.^ An action by a shipbuilding company against the Emergency Fleet Cor- poration organized under the laws of the United States founded upon an alleged breach of a contract for ship building could be removed to a Federal- court. ^'' A corporation manufacturing munitions for the United States out of supplies furnished by the National Government was permitted to sue in the Federal courts to enjoin labor unions from interfering with its prosecu- tion of work for the Government.^^ When the Federal corporation was actually interested in the controversy,^^ the joinder of another defendant, even if he was the receiver of the other, did not prevent the removal.^* It was held : that pl-Oceedings for the condemnation of a right of way could not be removed into a Federal court by a Federal corpora- tion joined as a defendant, when it did not appear that such eorpoi-ated under the Code of the District of Columbia (Aet of March 3, 1901, amended January 31 and .June 30, 1902) have the right to remove suits brought against them. See Lyons v. Bank of Discount, 154 Fed. 391. 8 31 St. at L. 794. See Kansas P. E. Co. V. Atchison, T. & S. P. E. Co., 112 TJ. S. 414, 415, 28 L. ed. 794, 795, 5 Sup. Ct. 208. 9Shulthis V. McDougal, 225 TJ. S. 561, 56 L. ed. 1205; Boyd v.. Great Western Coal & Coke Co., 189 Fed. 115. Contra, Canary Oil Cd. v. Standard Asphalt & Eubber Co., 182 Fed. 663. See Daly v. National Life Ins. Co., 64 Ind. 1 ; Knights of Pythias v. Kalinski, 163 TJ. S. 289, 41 L. ed. 163; 16 Sup. Ct. 1047. See, also, Harv. Law Eeview, XXV., pp. 291, 292, 295. 10 Union Timber Product Co. v. U. S. Shipping Board Emergency Fleet Corporation, 252 Fed. 320. 11 Wagner Elcc. Mfg. Co, v. Dis- trict Lodge NO. 9, I. A. of M., 252 Fed. 597. IZ Washington & I. E. Co. v. Coeur D'Alene E. & Nav. Co., 160 V. S. 77, 40 L. ed. 346; afRrming 60 Fed. 981, 9 C. C. A. 303, 15 U. S. App. 359. 13 Washington & T. E. Co. v. Coeur D'Alene E. & Nav. Co., 160 V. S. 77; affirming 60 Fed. 981, 9 C. 0. A. 303, 15 U. S. App. 359; Matter of Dunn, 212 U. S. 374, 53 L. ed. 558 ; Lund v. Chicago, E. I. & P. Ey. Co., 78 Fed. 385; Martin v. St. Louis Southwestern Ey. Co. of Texas, 134 Fed. 134; Texas & P. Ey. Co. v. Bloom, 85 Tex. 279, 20 S. W. 133. See Fisk v. Union Pac. E. Co., Fed. Gas. No. 4,827 (6 Blatehf. 362); s. c, Fed. Cas. No. 4,828 (8 Blatehf. 243). Contra, Scott v. Choctaw, 0. & G. E. Co., 112 Fed. 180; Hazard V. Durant, 9 E. I. 602; Texas & P. Ey. Co. V. Huber (Texas), 75 S. W. 547. See also, supt-a, % 24, notes •16-50, and infra, S 35, §■28 J NATIONMJ BANKS corporation was concerned in the litigation, for in such ease "ttlQ^ record did not show that the ease was one arising under the Constitution and laws of the United States.^* ' : §28. National banldiig associations. The Judicial Code pro- vides concerning suits to which national banks are parties: that the District Courts of the United States shall have jurisdiction "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 alEairs'Of any such-bank; and of alii suits it has been held, a suit for an injunc- to; Walter A. Wood H. Co. t. Minneapolis E. H. Co., 610Ped. 256; Elgin W.' P. & P. Co. V. Nichols, C. C. A., 65 Fe&. 215; Dunham V. Bent, 72 Fed. 60; Young E. L. N. Co. V. Young L. N. Co., 72 Fed. 62 ; Atherton Mach. Co. v. Atwood- Morrisoli Co., C. C. A., 102 Fed. 949; reversing 99 Fed. 113, 4.3 C. C, A. 72; Victor, Talking, Mach. Go. *;.,iThe Fair, C. C. A., 123, Fed. 42,4; Wooster, V. Crane & Co., C. C. A., 147' Fed. 515. But see 'Kartell v. Tilghman, 99 TJ. S. 547, explained in White V. Eankin, 144 XJ. S. 628, 636- 638; Harper Bros. v. Klaw, 232 Fed. 609, (a suit to enjoin licensees of a playwright from producing' a pho- toplay with the same plot) ; Silver V. Holt, 84 Fed. 809; McMuUen v. Bowers, 102 Fed. 494, 42 C. C. A. 470; Holt V. Silver, 169 Mass. 435, 48 N. B. 837. 2 Excelsior Wooden Pipe ' Co. v. Pacific Bridge Co., 185 U. S. 282, 46. L. ed. 910; Harrington v.' Atlan- tic & Pacific Tel. Co., 143 Fed. 329 ; Heaton-Peninsular Button-Fastener Co. v. Eureka Spfecialty Co., C. C. A., 77 Fed. 288, 294, 25 C. C. A. 267, 35 L.R.A. '728; Bupp & Witt- genfeld Co. v. Elliott, C. C. A., 131 Fed. 730, 65 C. G. A. 544; Indiana Mfg. Co.' v: Nichols & Shepai-d Go., 190 Fed. 579. But see Oortelyoti v. Johnson ,& Co., 207 XJ. S. 196,., 28 Sup. Ct. 105, 52 L. e^. 167; Bobbs- Merrill; Co. v. gtraus, 210 XI, S. ;389, 345, 28 Sup. Ct. 722, 52 ii. ed, 1086; Grown Cork & Seal Co. v] 'Brooklyn Bottle Stopper Co., C. C. A;, Second Ct., 175 Fed. 1019, 99 C. G. A. 664; Am. Graphophone Co. ^v. . Vl.ttor ,Ta,lking Mach. .Co., ,C. ,C. , A., ' 188 Fedi. ' 428; ' s! ,c'., ISS'Fed." 431. ' ' " 3 Excelsior .Wooien Pipe Co. v. Pacific Bridge' Co., 185 XJ. S. 282, 287, 46 L. ed. 910, 913. See Herzog V. Heyman, 151, N. ,Y., 587, 56 Am. St. Rep. 646, 45 N. E. 1127; New Marshall Engine Co.; v. MarshalP En- gine Co., 223 XJ. S. 473, 56 Jj. ed. 513 ; Briggs: v. XJIilited Shoe Co., 239 U. S. 48; American Well Works Co. V. Layne and Bowler Co., 241 XJ. S. 257; American Graphophone Co. V. Boston Store of Chicago, 225 Fed. 785; Hiner v. C. G. Aldrich Co., 255 Fed. 785; Chadeloid Cliemie-al ^Co. V. Johnson, C. C. A., 203 Fed. 99.'J. 4Moyes v. Stirling ,Coi, 71 Fed. '43; Excelsior Wood & Pipe Co. v. Pao. Bridge Co., 185 TJ. S., 282 Fed. 910. 5 Charfoin v. Komovt Mfgi Co., 236 Pc;=l. ion. :i §29] PATENT AND COPYRIGHT GASES 105 lion against the use and disclosure of a trade secret brought uifter the defendant has applied for a patent, embodying the secret process.*' ■.-. [,■_ -'The statute vesting exclusive jurisdiction in the iFederal courts of "cases" arising under the patent i laws,'' does not deprivei tlie State courts of power to determine questions arising under th© patent laws; f or ; there is a clear > distinc- tion between a ease, and a question, arising under those laws. The' former arises when ■. the plaintiff, in his opening pleading, sets up a right under the patent laws as a ground of recoverj^, and then the State courts have no jurisdiction. The latter may appear in the plea, answer, or testimony, and the State courts are authorized to decide them.* It has been said: that a dispute as to the assignability of a license to use a patent arises under the laws of 'the United States.? But suits to determine the title 1o a; patent which are not' founded upon Section 4915 of the Revised Statutes of the United. States, do not arise under the lawsjDf the United States.^" All suits which are^ founded upon Section 4915 of the Revised Statutes arise under i the laws of 'the United States.^^ Suits to compel,^* or to set aside,^* the as- signinent of a patent or 'feopyright,i* to enforce by a judgment for' royalties,^* 6r' othet'^ise,^^* or to set' aside' a contract 6 Aronson v. Orlov-, Mass.,' July giiie Co. v. Marshall Engine Co.;,; 223 ;I9J.7, 116 N. E. ,951;. infra § 148. U. S. ,473, 56 L. ed.,513 ,,. Contra, Moyes v. Stirling Co., 71 13 Harrington y. iVtlant jc ,^ Pa- Ped. 43, a suit for an injunction eifie Tel. Co., C. C. A., 185Fed. 493. lagainst similar false statements. 14Hoyt v. Bates, 81 Fed. 641. ' 7Jud. Code, § 2S^, 36 St. at L. 16 Albright v;. Teass, 106 U.S. 1087. ,,. I- ,'"■' ■ 613, 27 .ti. ed. 295; Dale Tile Mfg. 8 Pratt V. Paris Gaslight & Coke c^. v. Hyatt, 125 V: S. 46, '31 L. Co., 168 U. S. 255, ,42 L. ed. 458; g^_ ggg. j^-^jj^ y. Scharnwe'ber,' 125 Herzogv. Heyman,. 151,N: Y. 587, ,y_ g_ 54,' 31 L. ed. 687 ; 'Briggs ' v. ■ 56 Am. St-Bep. 646, 45 Ni. E. 1127. y^^^^.^^ ghoe Maeh. Co., '239 V.-'S. 9 Walter A. Wood Co. v. Mmne- ^^ ■(^i.^re' the bill also sought ihe apolis E; H. Co., 61 ^ed. 256^ annulment of patents for fraud, a i 10 Montgomery ,P. S C.^Co. v. ^^^.^^ ^^^^ ^^^^^ ^^ ^^ ^^^^^ Street S. C. L.ne, 43 Fed 329. _ ^^.^ ^^. ^^^^^,^^ . . ^11 Bernards v Nor^hall, 77 Fed. ^^^^^ ^ ^ ^ i^an^worth Co., 250 '1.^'Z!^.. Bryant, 81 -■ - m.^^^^^t^^^ -Fed 521' Merrill v. Miller,, 28 Mont. Rhodes v. Ashurst, 176 111. 351, 52 334 72 P. 423; 'New Marshall : En- N- ,E,- ,118;., aflirming.71 111. App. 106 ORIGIN All JURISDICTION [§ 29 ior the use of a pateht or copyright, such as a license,^® although an injunction against the manufacture of articles covered by the patent is prayed incidentally ; ^'' do not arise under the laws of the United States, unless the validity of the patents and copyrights are disputed. On a bill in the State court by the equitable assignee of a patent right, under an agreement executed many months before the patent was applied for, against the subsequent assignee of the patent after it was issued, to compel an assignment to complainant, defend- ant obtained a removal on a petition averring that it was an assignee for a valuable consideration and without notice, and invoking for his protection U. S. B. S. § 4898; the complainant's agreement not having been recorded. It was held, on motion to remand, that Section 4898 was designed for the protection of bona fide purchasers, and that the question of the , eonstriic- tion, application, and enforcement of this statute in their favor, i!S against a prior equitable assignee, was a Federal question ; and the motion was denied. i* An action on a judgment obtained iii a patent suit for dam- ages and profits, does not arise under the laws of the United States,^® although the defendants are the ; directors of an in- solvent corporation, who were not parties to the original suit.^' The cases where jurisdiction will be maintained to grant other relief when the prayer for an injunction against the infringe- ment of a patent or copyright is denied, are described in sub- sequent sections.^^ 242. But see St. Paul v. Starling, Mullen v. Bowers, C. C. A., 102 Fed. 127 U; S. 376, 32 L. ed. 251. 494; Kurtz v. Straus, 106 Fed. 414, Ifia Marsh v. Nichols S. S. Co., 45 C. C. A. 366; Cely v. Griffin, 113 140 U. S. 344, 35 L. ed. 413. See Fed 981. Pratt V. Paris Gaslight & Coke Co., 17 New Marshall Engine Co. v. 168 TJ. S. 255, 42 L. ed. 458; see Marshall Engine Co., 223 U. S. 473,^ Indiana Mfg. Co. v. Nichols & Co., 56 L. ed. 513 ; Lefkowitz v. Foster 190 Fed. 579; Beavers v. Spinks Hose Supporter Co., 161 Fed. 367. (Mississippi), 26 So., 930. 18 American Solid Leather Button 16 Wilson y. Sandford, 10 , How. Co. v. Empire State Nail Co., 47 99, _13, L. ed. 344; Kartell v. Tilgh- Fed. 741. man, 99 U. S. 547, 25 L. ed. 357; 19 H. C. Cook Co. v. Beeoher, 217 Wade V. Lawder, 165 U. S. 624, 41 XT. S. 497, 54 L. ed. 855; affirming L. ed. 851; Standard D. Mfg. Co. 172 Fed. 166. V. Nat. Tooth Co., 95 Fed. 291; 20 Ibid Kurtz V. Strawss, 100 Fed. 800; Mc- Zl Infra, §§ 146, 150. §■31] TRADEMARK, LAND AND MINING CASES 107 §30. Trademark cases. A suit to enjoin the imitation of a trademark does not arise under the laws of the United States, unless the bill shows that the trademark is duly, registered, and that it is used on goods intended to be i transported to a foreign country or to be Used in lawful trade with an Indian' tribe,^ or is used in trade among the several States.^ Where the bill shows this, no difference of citizenship is essential to: the juris- diction.' "Where the requisite : difference of- citizenship exists, the District Court may take jurisdiction, either originally or upon iremovalj of a bill to enjoiii the infringement of any trade- mark, ■ whether registered or not.* A suit to restrain unf ail- competition trade, where the complainant seeks no protection for a registered trademark, does not present a Federal question.* The cases whei-e, when relief for the infringement of ai trade- mark is denied, jurisdiction will be retained to enjoin unfair competition in' trade are described in a subsequent section;* . § 31. Land and mining cases. Where the plaintiff's plead- ing shows that the, decision of the pase, depends upon tHe cpn- struetion of the land' or mining laws, the suit arises,; under the laws of the United States; and if 'the rtiatter in dispute exceeds the jurisdictional ambiint,a'l)istriet Court of thfe Uilited States may take jurisdiction of; the ,sam.'e,; either, originally,^ or, upon ■ J 30. 1 Trademark Cases, 100 TJ. E. Eouse Soap Co.,' 90 Fed. 5, 32 S. 82, 25 L. led. 550; Eyder v. Holt, C. G, A. 496; di3raissiiigog,ppeal 87 128 IT. S. 525, 32 L.ed. 529; Hut- Fed. 589; Iljinois Watch Co. v. El- chinson, Pierce & Co. v. Loewy,:217 gia Nat. W. Co., C. G. A., 94 Fed. VyS.ASl, 54 L. ed. 838; Bernstein 667; s.. C, .179 U. S. 665,, 677, 45- V. Danwitz, 190 Fed. 604; Allen B. L. ed. 365, 382; A. Leseben & Sons Wrisley Co. v. George E. Bouse S. Eope Co. v. .Broderick &iBascom Co., C. C. A., 90 Fed. 5, dismissing Eope Co., 134 Fed. 571, 67 C. C. A. appeal 87 Fed. 589; Warner v. 418. i , t Searle & Hereth Co., 191 TJ. S. 195, 6 infra, ,§ 148. 48 L. ed. 145. See §§ 148, 149, 279, § 31. 1 Florida Cent. & - P. E. infra. Co. v. Bell, 176 U.S. 321, 44 L. ed. 2 Bernstein v. Danwitz, 190 Fed. 486; Northern Pao. Ey. Go.,v. So- 604, ' derberg, 188 U., S.- 526, 47 L. ed. SEossmann v. Gamier, C. C. A., 575; affirming 104 Fed. 425, 43 Q. 211 Fed. 401. ■ G. A. 620;; Cheesman • v. Shreve,' 37 4 Edison v. Thomas A. Edison, Jr., Fed. 36; ■ J;on;es, v. Plorida^ C. & P. Chemical Co.,. 128 Fed. 1013. «. Co., 41 Fed. 70; Pierce v. MoUi- 6 Burt V. Smith; ;C. C. A., 71 Fed. ken, 78 Fed. ,196; Evans v. Durango 161; Allen B. Wrisley Co. v. George Land & Coal Co., 80 Fed. 433,. 25 108 . ORIGINAL JURISDICTION [§31 removal.^ It seems : that this is always the ease where' the com- plaint shows that the validity of a land or mining! patent is- in dispute.^ ; An action of ejectment,* or of trespass,* or: a bill to quiet title,® where the plaintiiE rests his title upon a land or mining patent of the United States, the validity of • which de- fendant does not dispute ;. does not so arise, unless it involves the construction of the statute under which the patent was issued.'' Nor does; a suit to set aside a land patent solely on aceotint of fraud;* nor a suit by a homestead; entryman to secure his protection, while making the improvementsi required by the acts of Congress, from interference by partis who claim the land under the Town Site Act, but whose claims have been rejected by the Secretary of the Interior;' nor a suit; by any entryman to protect his improvements and claim from waste C. C. A. 531; GUUs v. Downey, C., C. A., 85 Ted. 483; Florida 0. & P^ E. Co. V. Bell, C. C. A.', 87 Fed! 369 ; Linkswiler v. Schneider, 95 Fed. 203 ; Nevada Sierra Oil Co. v. Mil- ler, 97 Fed, 681; Wallula Pac. By. Co, V, Portland & 8. Ey. Co., 154 Fed. 902. 2 Mitchell V. Smiale, 140' TJ. S. 406, 35 L. ed. 442; Spokane Falls & No. Ey. Co: V. Ziegler, 167 U. S: 65, 4& L. ed. 79; Miller v. Wattier, 24 Fed. 49; Dunton v. Muth, 45 Fed. 390; Walker v. Eichard's, 55 Fed. •129; Southern Pac. E. Co. v. Town send, 62 Fed. 161; McCune v. Bs sig, C. C. A.,' 122 Fed. 588; affirm iiig 118 Fed. 273. 3 Mitchell V. Smale, 140 U. S. 406, 35 L. ed. 442; Florida Gent. & P. E. E. Co. V. Bell, 176 TJ. S. 321, 44 L. ed. 486; Pierce v. MoUiken, 78 Fed. 196; MfeCune v. Essig, C. C. A., 122 Fed. 588; affirming 118 Fed. 273. 4 Benin v. Gulf Company, 198 V. S. 115, 49 L. ed. 970; Los Angeles Farining & Milling Co. v. HofE, 48 Fed. ' 340 ; Washington v. Island Lime Co., 117 Fed. 777. , 5 In re. .Helena &, L. Smelting & . ,geductJo,i>, fCp., 48 Fred. . 609 ; ,,Aj:go- naut Mini Co. V. Kennedy Minitig & Milling Co., 84 Fed. 1; Peabody Gold-Min; Co. v.. Gold Hill Miu; Co., 97 Fed. 657. ,; , ,6 Hoadley v. City and County of Sail Francisco, ' 94 ' 'tJ. S. 4, ' '24' ' ll. ed: 34: '^ '■' 7 Hopkins v. Walker, 244 TJ, S. 486;'Lanoastfer V. Kathleen Oil Co., 241 TJ. 8.' 551;. State Improvement- Development Co. V. Leininger, 226 Fed. 884.. i ■ , ,, 8 Holland v. Hyde, 41 Fed. 897. Contra, where the bill also alleged that < the patent' had been issued without a compliance with the stat- ute as to notice or proofs, and with- out authority at law. Cates v.; Pro- ducers' & Consumers' Oil Co., 96 Fed. 7. ■ 9 BlaBkburn v. Portland G. M. Co., 175 U. S. 571, 44 L. ed. 276; Sho- shone M. Go. V. Butter, 177. TJ; S. 505, 44 L. ed. 864; Butler v: Shafer, 67 Fed. 161 ; King v. Lawson, 84 Fed. 209. But see Jones v. Florida, C. & P. B. Co., 41 Fed. 70. ' • §31:]; LAND AND MINING CASES 109 and trespass by a defendant, who claims no right under a statute of the United States.^" Nor a suit in support, of an adverse claim to land or mining patent ; under U. S.;K. S., § 2326; unless its decision turns upon a disputed construction of the Federal Constitution, a treaty, or a Federal statutev^ Where prior decisions ha.ve so determined the rights of the parties that they are removed; from controversy, it cannot be said that the construc- tion of the statute is disputed.^* The questions of fact: as to what is a "vein," "lode," or "ledge," and as to what is the top or apex of a vein or lode within the meaning of Sections 2320, 2322 and 2325 of the Revised Statutes of the United States;^' and as to what are the boundaries mentioned in a mining patent or land grant; ^* or the boundaries of a State as prescribed by the act of Congress admitting it to the Union, when the construction of the statute is not in question ; ^^ or, it has been held, as to the priority of the location; i* do not in- volve Federal questions. Questions as to what are the rights recognized by the local laws, rules, regulations, customs and decisions, which the statutes of the United States direct shall be enforced, do not, it has been held, arise under the Canstitu- 10 Blackburn v. Portland G. M Co., 175 U. S. 571, 44 L. ed. 276 Slipshone M. Co. v, Butter, 177 V. S., 505, 44 L. ed. 864; Lajned v, Jeukins, 109 J'ed, 100, 48 C. 0. A, 252. These cases pverrifled a num- ber of previous decisions of the Cir cuit Courts to the contrary. 11 McGilvra v. Ross, 215 V. S. 70, 54 L. ed. 95. See Columbia Valley E. Co. Y. Portland & S. Ey. Co., C. C. A., 162 Fed. 603, -wheie the con- gtructioji.pf a statute was involved. 12 Colorado Central Consol. Min. Co. y. Turck, 150 U. S. 138, 37 L. ,ed. 1030; Blackburn v. Portland Gold; Min; Co., 175 XJ, S. 571, 585, 44 L. ed. 276, 282; Blue Bird Min. Co. V. Largey, 49 Ted. 289; Mon- tana Ore-Purphasing ,Co. v. Boston &,M. C. C. & S. Min. Co., C. C. A., 85 Fed. 867. 15 Colorado Central Consol. Min. Co. V. Turck, 150 TJ. S. 138, 37 L. ed. 1030; Blackburn v. Portland Gold Min. Co., 175 U. S. 571, 585, 44 L. ed. 276, 282; Blue Bird Min. Co. V. Largey,, 49 Fed. ,289. 14 Robinson v. Anderson, 121 TJ. S. 522; Los Angeles .Fapning & Milling- Qo. v. Hoff, 48 Fed. 340 ; Joy V. St. Louis, 122 Fed. 524. "Contra, Qreen v. Valley, 101 Fed. . 882. ,, 16 Joy y, St. Louis, 201 U. S; 332, 50 L. ed. 776. But see Moore v. McCtuir^, 205 U. S. 214, 51 L. ed. 776. 16 Wise y. Nixon, 7,6 Fed. 3; Dewey Min. Co. v. Miller, 96 Fed. 1; Peabody ,<3old Min. Co. v. Gold Hill Min. Co., 97 Fed. 657.. Contra, Nevada Sierra Oil Co. v. Miller, 97 Fed. 681. I 110 ORIGIN aIj jurisdiction [§ 31 tion and laws of the United ■-States.^'' An allegation in a decla- ration of ejectment, that the plaintiff was ousted in violation of a specified treaty and of the Fifth Amendment to the Federal Constitution, is insufficient to support the jurisdiction.^* Where the complaint charged a continuing trespass, demanding a lump sum as damages, the plaintiff claiming under a series of titles to the same land, the adjudication of one of which alone in- volved a Federal question, it was held, that the whole case might be removed.^® "Where the complaint showed that the controversy arose under the land laws of the United States, a Federal court of equity has entertained and determined all incidental questions between the respective parties arising out of their conflicting claims and granted an injunction "and appoint a receiver.^" §32. Cases arising' under the laws relating- to navig'able waters. It has been held : that cases arise under the Constitu- tion and laws of the United States, where the plaintiff by his complaint asserts a right under the Federal Constitution and certain acts of Congress, to maintain a dock on a navigable stream ; ^ where a suit is brought to enjoin an obstruction upon a navigable stream, such as a bridge,* or a log boom,^ and the plaintiff claims that the same is forbidden by an act of Con- gress,* or by a Federal official acting under lawful authority,* 17 Trafton v. Nougues, Fed. Caa. § 32. 1 Cummings v. Chicago, 188 No. 14,134 (4 Sawyer, 178); Tellu- U. S. 410, 47 L. ed. 525; Calumet ride Power-Transmission Co. v. Rio Grain & Elevator Co. v. Chicago, Grande W. Ey. Co., 175 XJ. S. 639, 188 U. S. 431, 47 L. ed. 532; Ken- 44 L. ed. 305; dismissing ' appeal 51 yon v. Squire, 1 Wash. St. 9, 24 Pac. 146, 16 Utah, 125. Pac. 28. ISPilhiol V. Maurice, 185 TJ. S. 2 New Orleans M. & T. E. Co. y. 108, 46 L. ed. 827. Mississippi, 102 TJ. S. 135, 26 L. ed. 19 Evans v. Durango Land & Coal 96 ; E. A. Chatfield Co. v. New Co., 80 Fed. 433, 25 C. C. A. 531. Haven, 110 Fed. 788. 20 Nevada Sierra Oil Co. v. Mil- 3 U. S. v. Bellingham Bay Boom ler, 97 Fed. 681; State Improve- Co., 176 U. S. 211, 44 L. ed. 437; ment-beVelopment Co. v. Leininger, reversing 81 Fed. 658, 26 C. C. A. 226 Fed. 884. Where the bill prayed 547. an injunction to restrain an officer 4 U. S. v. Bellingham Bay Boom of the United States from recording Co., 176 U. S. 211, 44 L. ed. 437 ; the cancellation of land selections reversing 81 Fed. 658, 26 C. C. A. and a decree directing a State offi- 547; where the statute permitted cer to issue to the plaintifE plain- such a suit, when the obstruction tiff's patents for such lands. was not afBrmatively authorized by § 32a] CASES UNDER INTERSTATE COMMERCE LAW 111 or where the court takes judicial notice of an act of Congress under which the defendant contends that the obstruction is authorized ; ^ where the plaintiff claims the right to accretions along a river front under letters patent of the United States, issued in pursuance of an act of Congress and the construction of the act under which the patent was issued is in question ; "^ but that the defendants cannot obtain a writ of error to review a judgment of a State court granting an injunction against their interference with the plaintiff's possession of lands claimed in the complaint under an act of Congress, when the defense is that they have acquired by priority of possession rights to the use of the water which have vested and accrued, are recog- nized and acknowledged by the local customs, laws and decisions as provided in § 2339 of the Revised Statutes of the United States.* § 32a. Cases arising under the Interstate Commerce Law. The Interstate Commerce Law provides : ' ' Any person or per- sons claiming to be damaged by any common carrier subject to the provisions of this act niay either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the, damages for which such common, carrier may be liable under the provisions of this act,. in any District or Circuit Court of the United States of competent jurisdiction ; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt. ' ' ^ The essential character of commerce, not the bill at the place where title passes, determines whether it is interstate or intra- state.^ It has been held : that a bill by one railroad company against law,- whether State or Federal, and 8 Telluride Power- Transmission the only question for consideration Co. v. Eio Grande W. By. Co., 175 was whether the obstruction was U. S. 639, 44 L. ed. 305; dismissing authorize^ by a State statute. appeal 51 Pac. 146, 16 Utah 125; S B. A. Chatfield Co. v. New Ha- In re Helena & L. Smelting & Ee- ven, 110 Fed. 788. duction Co., 48 Fed. -609. BNew Orleans, M. & T. E. Co.. v. § 32a. 124 St. at L, 382, Gomp. Mississippi, 102 V. S. 135, 26 L. St. §8573., g£^ 96. 2 Pennsylvania E. ,E. Co. v. Clark 7 King V. St. Louis, 98 Fed. 641. Bros.. Coal Min. Co., 238 U. S. 456. 112 ORIGINAL JURISDICTION [§ 32a another and its employee, to enforce the interstate commerce act, by enjoining the defendants from refusing to receive plain- tiff's cars,' and one to enjoin a common carrier from enforcing an unreasonable rate for transportation,* in violation of the same statute; arose under' the Constitution and laws of the United States. It has been held: that an application for a mandamus, to compel a railroad engaged in interstate com- merce 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 commerce.* 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 car- riage be interstate.^ Suits to enjoin combinations,'' and to cancel agreements,' which are in restraint of commerce between States, or to prevent by trespass interference with the per- f brmanee of a contract with the National Government ^ arise under the laws of the United States. The value of the matter in controversy is immaterial to the ju- risdiction ; ^^ except in the case of a removal where the statutes provide that : "No suit brought in any State court of eompetejit jurisdiction against a railroad company, or other corporation, or person, engaged in and carrying on the business of a common car- rier, to recover damages for delay, loss of, or injury to propertx- received for transportation by such common carrier under sec- tions of the Act to regulate commerce, approved February fourth, eighteen hundred and eighty-seven, as amended June 3 Ex parte Lennon, 166 U. S. 548, Co., 92 Fed. 868, 35 C. 0. A. 62 ; 41 L. ed. 1110. affirming 62 Fed. 24. 4 Macon Grocery Co. v. Atlantic 1 Mannington v. Hocking Valley Codst Line E. E. Co., 215 17. S. 501, By. Co., 183 Fed. 133. 54 L. ed. 300, affirming Atlantic 8 Chalmers Chemical Co. v. Chad- Coast Line E. Co. v. Macon Grocery oloid Chemical Co., 175 Fed. 995. Co., 0. C. A., 166 Fed. 206; Tift v. 9 Wagner Elec. Mfg. Co. v. Dis- Southern Ey. Co., 123 Fed. 789; trict Lodge No. 9, I. A. of M., 252 Kalispell Lumber Co. v. Great Fed. 597. Contra, Pickering Land Northern Ey. Co., 157 Fed. 845; & Timber Co. v. Wisby, 242 Fed. Sunderland Bros. v. Chicago, E. I. 993. & P. Ey. Co., 158 Fed. 877. 10 Jud. Code, § 24, 30 St. at L. 5 Illinois V. Eock Island & P. E. 416, 36 St. at L. 1094, Comp. St. Co., 71 Fed. 753. 991. 6 Murray v. Chicago & N. W. Ey. § 32a] CASES UNDER INTERSTATE COMMEKCE LAW 113 twenty-ninth, nineteen hundred and eight, : February twenty- fifth, nineteen hundred and nine, and June eighteenth, nine- teen hundred and ten, shall be removed, to any court, of the United States where the matter in eon troversy does not exceed, exclusiye of interest and costs, the sum or value of $3,000.."" An action in a State court, to recover for personal injuries alleged to have been received by reason of the failure of de- fendant railroad company properly ;to equip its cars with safety appliances, is not removable merely t^ec^u^e pf an allegation in the complaint that defendant is engaged in interstate commerce, where it does not appear that there is any controversy as to' the construction or effect of the Federal law relating to rail- roads 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 ques- tions.^*^ The District Courts have jurisdiction of suits to set aside or restrain the enforcement of an order of the Interstate Commerce Commission. ^^ The cases in which such a review is proper are explained in a subsequent section.^* A District Court has jurisdiction of a suit to enjoin a rail- road company from refusing to transport goods although the controversy has not been submitted to the commission; when no question concerning the .cha,rges for transporta,tion is in- volved in the suit; ^* but not when the refusal has. been confined to a single carload.i^* The District Courts have jurisdiction of action^ to collect damages awarded by orders of reparation' made bj^ the Inter- state Commerce Commission.^^ Such an action may be brought 11,36 St. at L. 1094, Comp. St. 15 Louisville & Nashville R.,E. Co. 991; E. H. Emery Co. v. Ame.,Ee- v. F. W. Cook Brewing Co., 223 -U. frig. Tr. Co., 246 XT. S. 634; South- S. 7,0-; Royal .Brewing Co. v. Mis- ern.Pac. Co. v. Stewart, 245 U. S. souri K. & T. Ey. Co., 217 Fed. 146. 359; Adams v. Chicago Cxreat West- 15» Northern, , Pac. Ey., Co.., v. .Van era E. Co., 210 Fed. 362. Dusen Harrington Cp., ,C. 0. A., 12 Myrtle V. Nevada C. & D. Ey. 245 Fed.., 454. Co. 137 Fed. 193. 16 Lehigh Valley E. Co. v. Meek- 13 Louisville & N. E. Co.. v. United er, C. C. A., 211 Fed. 785. States, 218 Fed. .914; Chestnut "If. a , carrier dqes not cpmply Bidge Ey. Co. v. United States, .248 with an order «or the payment of Fed. ,792; Atchison, T. & S. F. Ey. money within th©. tiine„lirai,t in such Co. v. Spiller, C. C. A., 246 Fed. 1. order, the complainant, or any per- il Infra § 151. son for whose benefit such order was Fed. Prac. Vol. 1—8 114 ORIGINAL JURISDICTION [§32a in a State or Federal Court.^''' It has been held: that where any evidence is offered except the order and the finding of the eommission which supports the same, there is a prima facie case in favor of the plaintiff's right to recover; ^^ and that where the evidence before the Commission is offered upon the made, may file in the circuit court of the United States for the dis- trict in which he resides or in which is located the principal operating of- fice of the carrier, or through which the road of the carrier runs, or in any state court of general jurisdic- tion having Jurisdiction of the par- ties, a petition setting forth briefly the causes for which he claims dam- ages, and the order of the commis- sion in the premises. Such suit in the circuit court of the United States shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the com- mission shall be prima' facie evi- dence "of the facts therein stated, and except that the petitioner shall not be liable for costs in the circuit court nor for costs at any subsequent state of the proceedings unless they accrue upon his appeal. If the pe- titioner shall finally prevail he shall be allowed a reasonable attorney's fee, to be taxed and collected as a part of the costs of the suit. All complaints for the recovery of dam- ages shall be filed with the commis- sion within two years from the time the cause of action accrues, and not after, and the petition for the en- forcement of an order for the pay- ment of money shall be filed in the circuit court or state court within one year from the date of the or- der, and not after. ' "In such suits all parties in whoso favor the Commission may have made an aAvard for damages by a single order may be joined as plain- tiffs, and all of the carriers parties to such order awarding such dam- ages may be joined as defendants, and such suit may be maintained by such joint plaintiffs and against such joint defendants in any dis- trict where any one of such joint plaintiffs could maintain such a suit against any one of such joint de- fendants; and service of process against any one of such defendants as may not be found in the district where the suit is brought may be made in any. district where such de- fendant carrier has its principal operating office. In case of such" joint suit the recovery, if any, may be by judgment in favor of any one of such plaintiffs, against the de- fendant found to be liable to such plaintiff." 24 St. at L. 384, as amended 25 St. at L. 859, 34 St. at L. 590, 36 St. at L. 554, Comp. St. § 8584. It has been held that the finding by the Commission that a given rate was unreasonable establishes the vio- lation of the act but that its evi- dential value as to the liability for damages is for the determination of the court and jury who are not bound to give it even prima facie force. Lehigh Valley B. Co. v. Meeker, C. C. A., 211 Fed. 785. Ee- versed, 136 U. S. 434, 439. Cf. infra, § 333h. 17 Pennsylvania R. B. Co. v. Clark Bros. Coal Min. Co., 238 U. S. 456. 18 St. Louis S. W. By. Co. v. S. Samuels & Co., C. C. A., -211 Fed. 32a] CASES UNDER INTERSTATE COMMERCE LAW 115 trial the court can inquire whether this is sufficient to justify the order and if not, should direct judgment for the defendant.^® Either party may offer additional evidence.*" The plaintiff who ,has paid the unreasonable charges may recover although he has collected them from his vendors.*^ The Commission and the jury may in a proper ease include inte!i;est in the damages awarded.** When the txansaetion of which complaint is made took place in interstate commerce, the State Courts ** and the Federal Courts, originally irrespective of the value of the matter in dis- pute ** and upon removal when the matter in dispute exceeds the jurisdictional amount in ordinary cases, have jurisdiction of actions against railway companies ** or other carriers for loss 588; dark Bros. Coal Min. Co. v. Pennsjlvaiiia E. Co., 238 Fed. 642. 19 Michigan Cent. E. Co. v. Elliott, C. C. A., 256 Fed. 78; Pennsylvania E. E. Co. V. W. ¥. Jaeobi & Co., 242 U. S. 89, where all the evidence beiore the commission was not be- fore the court. 20 Missouri Pac. Ey. Co. v. C. B. Ferguson Sawmill Co., C. C. A.j 235 Fed. 474. 2X Southern Pae. Co.^ v. Oarnell Taenzer Lumber Co., 245 U. S. 531. Where it appeared that the ship- per had paid no part of the freight no recovery was allowed to his as- signee, the consignee, there being no proof that the latter had made the payment. Michigan Central E. Co. V. Elliott, 0. C. A., 256 Fed. 18. Where other carriers not parties to the proceeding before the commis- sion had participated to a small ex- tent in. the transportation of the shipments on account of the pay- ment for which the a/ward was made was held, not to invalidate the order. Missouri Pac. Ey. Co. v. C. E. Fer- guson Sawmill Co., C. C. A., 235 Fed. 474. Where after the time for payment fixed by the first order had elapsed there was an amendment which did not affect the award and left the date unchanged; it was held , that that did not effect the plaintiffs right to recover. Missouri Pae. Ey. Co. v. C. E. Ferguson Sawmill Co., C. C. A., 235 Fed. 474. 22 Minds v. Pennsylvania E. Co., 237 Fed. 267; Mo. Pae. Ey. Co. v. C. E. Ferguson Sawmill Co., C. C. A., 235 Fed. 474. 23 N. Y. C. & H. E. E. E. Co. v. Beham, 242 U. S. 148, sustaining an action brought in a State Court; Pennsylvania E. E. Co. v. Puritan Coal Min. Co., 237 U. S. 121; Penn- sylvania E. Co. V. Sonmaii Shaft Coal Co., 242 U. S. 120. - 24 Adams Express Co. , v. Cronin- Rer, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. ed. 314, 44 L. E. A. N. S. 257; St. Louis In. & So. Ry. Co. v. Star- bird, 243 V. S. 592, 37 Sup. Ct. 462, 61 L. ed. 917; N. Y. Cent. E. Co. V. Mutual Orange Distributors, C. C. A., 251 Fed. 230. 2B 36 St. at L. 1094, quoted supra. Hartford Fire Ins. Co. v. Kansas City, M. & 0. By. Co. of Texas, 251 Fed. 332. 116 ORIGIN aIj jurisdiction [§ 32a or damage to passengers' baggage ^^ or goods shipped over their linefs;^'' to recover damages for the failure of a common carrier to furnish ears for freight within a reasonable time ; ^* although there has been nc order by the Interstate Commerce Commis- sion in the premises. But not where the sole complaint or the failure of the carrier to supply cars 'fitted with inside doors or bulkheads or timber for the construction of such fittings.^^ The District Courts have jurisdiction of actions by carriers to recover fi-eight charges lipoil intei'state shipments,^® including charges for disinfecting cattle cars although the dfef eiidant ad- mits that the shipment was ma.de in interstate Commerce and the pl'opriety of the charges depends on the sole ground that the carrier is estopped from the eollefljtion ; ^' but not it has been held of an action to collect the balance due for freight from the consignor which it. has failed through error to collect the full amount from the consignee. ^^ Where he has made no complaint to the Interstate Commerce Commission, a shipper m!ay sue in a district court to recover un- just and unreasonable charges for freight which he has been 26 N. Y. C. & H. B. R. K. Co. v. Pennsylvania B. Co. v. Sonman Beham, 242 tJ. ,8. 148, sustaining an Shaft, Coal Co., 242 U., S. 120. , action brought in a State Court; Whore the distribution of the oars Pennsylvania R. E. Co. v. Puritan was in accordance with the carriers' Coal Min. Co., 237 U.'S. 121; Ponn- rules, it wasfheld. that there could sylvania B. Co.. v. .Sonman Shaft be no recovery until the , coramissipn Coal Co., 242 TJ. S. 120. had determined whether the rules in S? Adams Express Co. v. Cronin- this respect were reasonable. . Mer- ger, 226 TJ. S. 491, 33 Sup. Ct. 148, risdale Coal Co. v. Pennsylvania E-. 57 L. ed. 314, 44 L. B. A. N. S. 257; B. Co., -230 TJ. S. 304. St. Louis In. & So. By. Co. v. Star- 29 Loomis v. Lehigh Valley E. E. bird, 243 TJ. S. 592, 37 Sup; Ct. 462, C6., 240 TJ. S. 43. 61 L. ed'. 917; N.'Y. Cent. B. Co. v. 30 Atchison, T. & S. P. B. Co. v, Mutual Orange Distributors, C. C. Kinkade, 203 Fed. 165; Wells Pargo A., 251 Fed. 230; McGoon v. North- & Co. v. Caneo, 241 Ped. 727; Mo- ern Pac. By. Co., 204 Ped. 998;^ liile & 0. E; Co. v. Wash. & C. By. Smith V. Atchison, T. .'& S, P. Ry. Co., 242 Ped. 531 (a . suit by cue Co., 210 Ped. 988. As to the lia- carrier against another), bility of initial carriers see 34 St. 81 Louisville & N. R. R. do. v. at L. 595, Comp. St. § 8p04a. Rice, 247 TJ. S. 201. 28 Pennsylvania B. R. Co. v. Puri- 82 Yazoo & M. V. R. Co. v. Ze- tan Coal Min. Co., 237 U. S. 121; murray, C. C. A., 238 Ped. 789. §:32a] cases under intebstate commerce law 117 obliged, to pay; ** at least when the^ cbntrovfersy involves only a (Construction of the tariff Schedule and its application to the ship- ments dn question; ^* or the c6nstruetion of a fedferal statute such as that forbidding secret discriminations ;** or when the Com- mission has deeidied the rates to be unreasonable in a proceeding instituted by another! shipper similarly'situated; *®'but not to re- cover damages in addition tO' those awarded by the Interstate Commerce Commission for the same grievance.*'' ' " The Interstate Gothmei'ce Coilimigsibn has the' fuiictibn' of passing upon' the validity' of a contract between a i'ailroad com- pany and a wharf company for' the transfer of goods ftom cars to vessels.*' Consequently the Federal Courts, before a deci- sion 'by the Commission tipon! the subject, will not take juris- diction of a friendly suit'by thfe latter aigainst the former com- pany e within the jurisdiction of the Federal Courts ,,^f,.the^ya,l],ie of the m^atter in dispute exceeds: the jurisdictional, amount. But it was held: that a suit by the receiver of a railroad company if oi' an 'injunc- tion against the' execution of a conspiracy to iii jure'- his com- pany by a diversion of traffic was not removable.**^ A suit by the, owner, of a telegraph Jine to. enjoin its destx'uction is not SSNatiojialOoal Co. v. Chicago & & N. W. By. Co., CO. A., 2U Fod. N. W.iBy. -Co., C. 0. A., 211 Fed' 65. 65. ■ I ■ - ) 34Gimbel Bros. V.-' Barrett, 215 ■ 37 Lomisville ;& Nash-viUe B. B. Go. Fed. 1004; National Elevator Co. v. ^- Ohic'Valley Tie 00,242:11, 8. Chicago, M. & St. P. By. Co., C. C. 288. i . „.„ ^ -, ^on 38 Southern Cotton Oil Co. v.Cen- A., 246 Fed. 588. ^ t j, n ■ t> r^ onA t? /t ■ ' , ,■. ,,,,'. tral of; Georgia By. Co., 204 Fed. 35Langdon y. Pennsylvania B. a^q., ,; Cp., 194|Fed.'486;; a:' J. Philjips 39 Ibid. ^ M :.> Co. Y.., Grand Trunk Western . By. 10 Mannington v. Ho'oking Valley Co., C. C. A., 195, Fed. 12; Call- Ry. Co., 183 Fed. 133. / ' fpynia .Adjustmei^t Cio. v. South.ern 41 Chalmers Chemical Co: v. Ohade- Pac. Co., 226 Fed. 349. , -loid Ghemieal Co., 175 Fed. 995. 36 National Pole Co. v. Chicago, 42 Smith v. Barnett, 242 Fed. 83. 118 ORIGINAL JURISDICTION [§32a within the jurisdiction of the Federal Court, because the de- fendant 's acts would interfere with; interstate, commerce.** A suit by a city to restrain the violation by a railway company of a contract fixing rates for transportation does not arise under the laws of the United States: although the bill alleges in its charging part that the defendant relies upon an invalid order of the Interstate Commerce Commission authorizing an increase of the rates.** <■ , , § 33. Suits on judicial and official bonds. Actions upon bonds required by the orders of the Federal courts, such as supersedeas bonds,^ injunction bonds,^ or bonds in support of attachments by the Federal courts,' receivers' bonds,* and suits upon the bonds of deputy collectors,* United States marshals^® cashiers of national banks,'' clerks of .Federal courts,* and other Federal officers,* arise under the laws of the United States. ■ 43 Postal Tel. Cable Co. v. Nolan, 240 Fed. 754; su^a, § 25. 4* City of Monroe v. Detroit, M. & T. S. L. Ey., 257 Fed. 782 ; supra, §§24 and 25; Interborough E. E. V. Boston & M. E. E., C. C. A., 239 Fed. 97. Headnote: "A suit by a railroad company, which leased its line, to: compel the lessee company to issue passes pur- suant to the lease agreement, js^ not one over which the federal courts have jurisdiction under Act Aug. 13, 1888, e. 866, 25 Stat. 433, as a suit arising under the Constitution and laws of the United States, because the lessee's probable defense, based on the inhibition against the issu- ance of passes found in the acts to regulate commerce (Act June 29, 19X)6, c. 3591, 34 Stat. 584, and Act June 18, 1910, o. 309, 36 Stat. 539), was anticipated and attacked on the ground that such defense was un- availing under the Constitution." § 33. 1 American Surety Co. v. Shulz, 237 U. S. 159, affirming 222 Fed. 280; Crane v. Buckley, 105 Fed. 401. S Lamb v. Ewing, C. C. A., 54 Fed. 269; teslie 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. 190, 18 S. E. 202. , 5 Crawford v. Johnson, Fed. Cas. No. 3,369 (Deady, 457); Orner v. Saunders, Fed. Cas. No. 10,584 (3 ■ Dill. 284). 6Feibelman v, , Packard,, 109 U. S. 421, 27 L. ei. 984; Bachrack v. Norton, 132 U. S. 337, 33 L. ed. 377; Lawrence v. Norton, 13 Fed. 1, 4 Woods, 383 ; McKee v. Brooks, 64 Tex. 255. Contra, Phillips v. Edel- stein, (Texas), 2 Willson, Civ. Cas Ct. App. §.449; where the suit was brought for the wrongful seizure ol property, under, a writ > of .attach- ment. 7 Walker v. Windsor Nat. 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. 9U. S. V. Belknap, 73 FeiJ. 19; an Indian agent. §34] GOVERNMENT OFFICERS 119 Suits by material men upon the bonds of contractors with the Federal government arise under the Constitution and laws of the United States.^" 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 United States, of which a District Court has original jurisdiction with- out diversity of citizenship.^^ A District Court of the United -States has jurisdiction of a suit brought by a trustee in bank- ruptcy, to enforce the bond of his predecessor.^^ §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 may be brought in the District courts^ or if previously brought in the State courts may be removed thereto.^ It was held : that an action by a United States marshal against his deputy, to recover according to contract a part of fees collected, is not removable.* Suits against ^officers of the United States for acts done by- virtue, or under color, of their office, arise under ^ihe laws of the United States and may be removed.* Thus, a suit against a marshal of the United States for an abuse of- 10 IT. S.ridelity & Guaranty Co, 426; Hildebrand v. Douglass, 91 V. U. 8., 204 U. 8. 349, 51 L. ed. N. C. 430. ■516; H. 8. V. Churchyard, 132 Fed. 4 Cleveland, C. G. & I. E. Co. v. 82;,IJ> S. ex rel. ffiant Powder Qo, McClung, 119 U. 8. 454, 30 L, ed; V. Axnian, 152 Fed. 816. Contra, 465; affirming 15 Fed. 905; Bock v. IT. 8. V. Henderlong, 102 Fed. 2, Perkins, 139 JJ'. 8. 628, 35 L. ed. U.. S. V. Sheridan, 119 Fesd., 236; 314; 8onnentheil v. Christian Moer- U. S. V. O'Brien, 120 Fed. 446, 448; lein. Brewing Co., 172 U. S. 401, 43 TJ. 8. V. Barrett, 135 F,ed. 189 ; Bur L. ed. 492; Auten v. U. 8. Nat. rell V. U. 8., C. C. A., 147 Fed. 44, Bank, 174 U. 8. 125,. 141, 43 L. ed. 46.,-; '. . 920, 926; y,an Zaiidt v. Maxwell, 11 Howard v. U.,8.j 184 U. S. 676, Fed. Cas. No. 16, 884 (2 Blatehf. 46 L(. ed..754; affirming 102 Fed. 421); Warner v. Fowler, Fed. Cas. 77, ,42 0. C. A. 169. No. 17,182 (4 Blatehf. 311); Ellis 12 U. 8. ex rel. Sohauffler v. Union v, Norton, 16 Fed. 4, 4 Woods, 399 ; Surety &. Guaranty Co.,, 118 Fed. Front , 8t. Cable Ey. Co. v. Drake, 482. 65 Fed, 539; Drake v. Paulhamus, §34. -lU. 8. E. E.'Adm. V. Burch, G. C. A., 66 Fed. 895; Wood v. 254 Fed. 140. _ , Drake, 70 Fed. 881; Galatin v. 2 Johnson v. Eankin ( Texas) j 95 Sherman, 77 Fed. 337; Bighmy v. S. W^ 665., ; ;, Poucher, 83 Fed.^ 855, Woods v. 3 Setzer V. Douglass, 91 N. C. Boot, C. C. A., 123 Fed. 402. 120 ORIGINAL JURISDICTION i[| 34 Federal process against the defendant to the writ,* 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,^ arises under the laws of the United States, and is remov- able; at least when the plaintiff's initial pleading shows that the defendant 's acts, of which complaint is made, were done in his official capacity.''' Where this did not appear in the plaintiff's pleading, it was held,: that the action was not removable.* 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.' It was held: that ah action by a deputy marshal against his principal, for fees due him, is not remov- able.^' The fact that a private individual is made a co-defendant with the marshal in the suit does not divest the court of jurisdic- tion. ^^ It was held, that an action against private individuals, for wrongfully causing a United States marshal to levy execu- tion on plaintiff's chattels, is a case arising under the laws of the United States and may be removedi^^ Suits against re- ceivers 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, prises under the laws of. the United States.^^ §35. Suits by aiid against receivers of national banks. A suit by the receiver of a national bank, appointed by the Comp- troller of the Currency, at least when brought in the course of 5 Front St. Cable Ey. Co. v. 8 Rothschild v. Matthews, 22 Fed. Drake, 65 Fed. 539'; Wood v. Drake, 6. 70 Fed. 881. ' 9 Buck v. Colbath, 3 "Wall. 334, 18 6 Bock V. Perkins, 139 U. s! 628, L. ed. 257; Kelse^r v. Dallon, Fed. 35' L. ed. 314; affirming' ^8 Fed. Cas. No. 7,678; MeKee v. Coffin,' 66 123; Sonnentheil v. Christian Moei-- Tex. 304, 1 S. W. 276. ' lein Brewing Co., 172 '"0. S. 401, 43 10 XJpham v; Scoville, 40 Ark. 170. L. ed. 492 ; Ellis v. Norton, 16 Fed. H Sonnentheil v. Christian Moer- 4, 4 Woods 399; Drake v.' Paul- lein Brewing Co., 172 TJ. 8. 401, 43 hamus, C. C. A., 66 F^d. 895. L. ed. 492 ; But see Wardens, etc., 7 Walker v. Coleman; 55 Kan. 381, of St. Luke 's Church v. Sowles, 51 40 Pae. 640, 49 Am. St. Eep. 254. Fed. 609 ; Frank v. Leopold & Feron Contra, Ellis v. Norton,' 16 Fed. '4, Co., 169 Fed. 922. 4 Woods 399; Wood v. Drake, 70 12 Hurst v. Cobb, 61 Fed. 1. Fed. 881; Howard' v. Stewart, 34 13 Barron v. McKinnoii',''l79''Fed. Neb. 765, 52 N. W. '714. 759. '' '■ ' § 36] FEDERAL RECEIVERS 121 winding up the affairs 'of' the baiik, arises undfer the laws of the United States, and' mky be removed by the defendant -when it involves the jurisdictional amount.^ A suit against a receiver of a national bank, similarly 'appointed, ■under similar circum- stances, arises under the laws of the United 'States and may be removed ; ^ but not unless the matter in dispute exceeds ' the statutory limit,** nor, it has been said, whto the 'receiver is not a necessary, although he is a proper, party to the action;* A suit against a national bank and its receiver to enforce the bank's eovenaiit to indemnify its lessor from any loss of rent in case ,of re-^entry is within the jurisdiction of the Federal 'Cciurt.^ The ree'eiver of a natioiidr bank cannot intervene and remove a suit instituted against the bank before his appointment, unless tlie barik might have removed the ease.® A bill against such i receiver of a national bank and ah '"executor tb recover a legacy, where some of tlie decedent's a;ssets were "deposited in the bank, Was dismissed as not Arising undeir the laWs of the United States.' §36. Suits by and against receivers of Federal cdrpdrationis. Where either party to a suit is a receiver of a corporation created by an' sici of Congress, the fetiit'.' arise^ under the lawS'^of the §35. i Johnson v-'feankinCTexiis);' fey V. Hayden, 74 Fed. dl'i'^' Ma'- 95 S. W. 665. See Armstrong v. Donald v. State of Nebraska, 101 Ettlesohn, :36 Fed. 2.09,; Armstrong Fed. 171, 41 C. 0. A. 278. Contra, V. Trautman, 36 Fed. 275;: MeCon- Bird v. Cockrem, Fed. Gas. No. ville V. Gilmour, 1 L.R:A.. 498,- 36 1,429 (2 Woods 32) ; Tehan, v, First Fed. 277; Stephens v. Bemays, 44 Nat.. Bank, 39 F-ed. 577. ! ' , . i Fed. 642; Yardley, v. .Diekson, .47 / S.Follett. v.. TiUinghast; 82 Fed. Fed. 835; Figheir V. Yoder, SS.iFed. 241.' ■ V I . , . .., ■.: 565^;. Short V. Hepburn, 75 Fed. 113, i, .4 Speckert y.iiGerman; Nat. Bank, .2!1 G. G. A. 252;. Thompson. ;V.i Ger- 98 Fed. 151, 38 C. C. A. 682. man Ins. Go., 76 Fed. 892; McGart- 5 Providence Bldg. 'Co. v. Atlantic ney v.iEarle, C. C. A., 115 Fed. 462. Nat. Bank, 228 Fed. |814.r .; .' 2 Hot Springs Independent School ' 6 Wichita Nat. JBank' v. Smith, 72 Dist. No. 10 of .Pall River .Oounty Fed. 568, 19 C. G. A. 42,f 36' U. S. V. First Nat._ Bank, 61 Fed. 417; App. 530; writ of error dismissed. Auburn Sav. Bank v. Hayes, 61iFed. Smith v. Wichita, tN:at...'Bajik, 42 L. 911; Gilbert v.,McNulta, 96; Fed. ed--ll214; Speekert v. Gerroaii Nat. 83.!, See Merrill v. Nat. Bank 'of Bank, G. G. A., 98; Fed. 151; i!o- Ja'Cksonville, )17'3 -U; iS. 131, 43 L. versing. 85 Fed. IS. •: ,, cd. 640; Auten v. V. S. Nat. Bank, .. 7. Wardens, etc., St. Luke's Church 174 U. S. 125; iA3 L. edi. 920; Wit- v. Socles, 51 Fed. 609. 'But, sec ters v. Sowles, 42,- Fed., 701; Bart- supra §.34./ ., . .- , 122 OEIGINAL JURISDICTION [§ 36 United States.^ It has been held : that the same rule applies 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.* § 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 appointment in the corporation which he represents, does not ordinarily arise under the la,ws of the United States; and consequently, it can- noi be removed where the requisite difference of citizenship does not exist.^ Such a suit may, however, be begun in a District Court of the United States originally, because it is ancillary to that in which the receiver was appointed.^ Where, howeverj the validity of the order or decree of a Federal 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,^ or defendant.* ' An action by an employee of such a receiver for injuries in the course of his employment may be brought against the lat- ter in a District court of the United States ; * but when brought § 36. 1 Texas & Pae. Ey. Co. v. 806; Vallery v. Denver & B. G. R. Cox, 145 U. S. 593, 36 L. ed. 829. Co., 0. C. A., 236 Fed. 176; Glen- 2 Lyons v. Bank of Discount, 154 wood Irr. Go. v. Valleryy G. G. A., Fed. 391. See .■!4 St. at L. 458. 248 Fed. 483. So .:when he is an ^?>7. 1 Pope V. Louisville, N. A. ancillary i ' receiver. Brookfield v. & G. Ey. Co., 173 U. S. 573, 43 L. Hecker, 118 Fed; 942. ed. 814; Pepper v. Eogers, 128 Fed. 3 Pope v. Louisville, N. A. & G. 987. Ey. Co., 173 U.I S. 573, 581, 43 L. 2 White V. Ewing, 159 TJ. S. 36, ed. 814, 818. 40 L. ed. 67; Pope v. Louisville, N. 4 Board of Com'rs v. Peirce, 90 A. & G. Ey. Co., 173 TJ. S. 573, 43 L. Fed. 764; for an injunction; Shin- ed. 814; Borvman v. Harris, 95 Fed. ney v. NoiHh Am. Savings, L. & 917; Connor v. Alligator L. Co., 98 Bldg. Co., 97 Fed. 9; to detei'mine Fed. 155; Alexander v. So. Home the right to assets claimed by a re- Bldg. & L. Ass'n, 120 Fed. 963; eeiver; State v. Frost, 113 Wis. 623, Hampton Eoads By. & El. Co. v. 89 N; W. 915; for an injunction. Newport News & O. P. Ey. & El. B Betts v. Bisher, C. G, A. 213 Fed. Co., 131 Fed. 534; Gunby v. Arm- 581;- Cobb v. Sertic, C. C. A., 218 strong, C. C. A., 133 Fed. 417; Kirk- Fed. 320; St. Bernard v. Shane, C. land V. Knox, G. C. A., 230 Fed. C. A., 220 Fed. 853. §■38] LITIGATION WITH BANKRUPTS' TRUSTEES 123 in a State court, it cannot be removed.® Such suits cannot be removed when brought in a State court: to recover damages for malicious conduct in carrying on the business of the receiver- ship.'' Fori the cancellation of notes and bonds which the plain- tiff had executed to the receivers under duress and fraud and for an injunction' against the negotiation of thS same, praying in the alternative, a recovery of damages and the impression of a trust upoh^the proiperty in the receivers' hands.* Or for a vacation of the franchise of the corporation' over whose property the receiver was appointed.® It has been held': that the court will take' judicial notice of the fact that a defendant is a receiver ; although there is no allegation to that effb'ct' ill the plaintiff's pleading ;i" and that the joinder of other defendant;^ with a receiver will not deprive* hiiri of a Wght of reiioval to '■Which lie would have been entitled liad he been sued alone.^^ §38. Suits by and against trustees in baiikruptcy. The bankruptcj^ law provides: that the District Courts of the United States "shall have jurisdiction of all controversies at law and in equity, as distinguished from proceedings in baiikruptcy, be- tween 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 between the bankrupts and such adverse claimants. ' ' ^ The con- struction of this is subsequently discussed.* It has been held: that in a suit between the, trustees of a bankrupt and an- other, when the requisite difference of, citizenship exists be- 6 Jud. Code, § 28, 36 St", at L. E. Co., 178 Fed. 156. See also, 1094, 'Comp. St. §1010 see infra. Dale v. .Smith, 182 Fed. 360; Van- §537, 538; Gableman v. Peoria P. derbilt v. Kerr, 188 Fed. 537. Di & E. By. Co., 179 U. S.' 335, 45 L. 10 Pitkin v. Cowen, 91 Fed. 599. e&.tWt Cobb; V. Sei-tic, G; O. A., H Landers v. Felton, 73 Fed. 311. 218 Fed. 320. Contra. Shearing v. Trumbull, 75 iTHonie Telephone Co. v. Powe^rs, Fed. 33; Marrs v. Felton, 102 Fed. 176 Fed. 986. 775; Eupp v. Wheeling & L. B. E. 8 WrightsviUe Hardware Co. v. Co., 121 Fed. 825, 58 C. C. A. 161. Hardware &'Woodenware Mfg. Co., §38. 1 30 St. at L. §23, p. 552. 180 Fed. 586. ' -^ 2 /w/ra § 610. 9 People V. Bleecker igt. & F. F, 124 : ;0EIQINAJ4 JOBISDICTION . ~ .1 [§39 moved by the defe;ndan1;, whetlier 'the suit is brought by,? or against, the trustee;* t - ■ , . : : ' §39. Suits arising out of litigation in the Federal courts. It has been held: that the following eases, arising ;out of litiga- tion in the Federal courts 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 plaintiff's pleading shows that he contests ;the validity ^of a. writ, order, judgment, or decree of a Federal court ;^^ a. suit for mali- cious prosecution, or false imprisonmentj upon a charge of,; a violation: of a law of, the United States; ^ 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.^ , It has been held: that the purchaser ,at a If.ederal fprpelosupe sale, which had assumed as part ,of the price all liabilities incurred by the receivers, was not entitled to remove a suit to enforce such liability,*,. It has beeri sai^: th^t,tbej,cp.nstr,yi.etion of orders and decrees of a Federal court, according to their true meaning, does not involve a Federal question.^ It has been held: that. the fol- lowing cases do not arise under the laws of the United States; a suit upon a judgment recovered in a court of the United States : ^ a suit in which either party claims title under a sale 3 Oorbitt V. President!, ete., of Houser v. Clayton, Fed. Cas. N'o. Farmers' Bank of Delaware," 113' 6,739 (3 Woods, 2Y3) ; Johnson- v. Fed. 417. ' ■■. New Orleans Nat. Banking. Ass'n 4 Bush , \ . • Elliott, , 202 U. S., 477., (Lo.uisiana) , 33 La.; Ann. . 479. 50 L. ed. 1114. 2 Ma-ka-ta-wah-qua-twa v. Rebok, §39.' 1 Connor v. Scott, Fed. Ill 'Fed. 12. Cas. No. 3,119, 4. Dillon, 242, 'to' 3 Cooke v. Avery, 147 XJ. S.. 375, enforce a vendor's lien, where it 37 L. ed. 209; Sowles v. Witters, 46 appeared that ' the - . defendant Fed. 497. : ' '■ claimed 'the land through -the deed 4 Reed v. "Northern Pae. Ry Co., of an assignee, in bankruptcy, the 86 Fed. 817. But see WaToash validity of which plaintiff : '-dis- Railroad Co. V. Adelbert CoUegei puted, First Nat. Bank v. Society 208 TJ. S; 38, 53, 52 L. edi 379, 385; for Savings, 80 Fed. 581; 25 C. C. and infra, §51. A. 466, for an injunction against 6 United States v. Douglas; 113 a tax levy ordered .'by the manda- N. C. 190, 18 S. E. 202;. ' '' ■ mus of a Federal court. South Da- 6 Provident Savings -Society v. kota Cent. Ry. Go. v. Continental Ford, 114 U. S. 635, 29 L. ed. 261; & Commercial Trust! & Saving.s Metcalf v. Watertown,' 128 U. S, Bank, C. C. A,, 255 Fed. 941. See 586, 32 L, ed. 543, -■> §40] CITIZENS OF DIFFERENT STATES 125 made under the order; judgmen't,. or decree of aiFed^ral eourtj when 'the validity 'and constriiiction of that order^i judgment or decree is not in question; '' a bill. by a: discharged bankrupt, to enjoin a i levy 'under a judgment previous to his discharge, upon land which the court has i set apart to him as exempt under the State homestead laws ; * an action by an attorney for- damages caused by his disbarment by a State court, because/of langiuage spoken in a court of the United States.^ It has been further held:, that a case does; not arise under the Jaws of the limited States simply ibeeause a Federal court ihas^ decided in another suit the questions of law which, were involved; "»and that an ■issue, whether full force and effect had beeui given to the judg- ment of a State court, does, not involve the construction of the Constitution of ithei United States.^^: ■ It was held: that la, suit arises under the laws- of the United States, when brought r against a private person for wrongfully causing a marshal to levy a Fed- eral execution uponithe plaintiff's property, which the' defend- ant-claimed to belong to the judgment debton^^ The District Courts of the 'United States have also ancillary, jurisdiction over many cases connected with, litigation , previously brought there. This subject is considered later. ^^ ; , , , § 40. Controversies between citizens of different States. In general. X. controversy between citi?pns of differen,t States is one in which every party upon one, side is a citizen of a different State from every party upon the other.^; The citizenship ofifor- marparties, with no real 'interest in the' controversy, does not affect the jurisdiction.^ Tii certain cases,' the joinder of improp# 7 Carson v. Dunham, ]21. .U.. S. 12 Hurst v. C(>bJ),.61 Fed. 1,,;,. ,- 4'21j 30 L. ed;'992; Gay' v. Lyons, 13 Infra^ §01. ,_, , , ;, , Fed. Gas. No. 5,281,: 3;-Wooda,. 56. ,.§40. 1 Blake v. McKim, -103 U. 8 King V. Neill, 26 Fed. 721. S, 336, 26 L, ed., 563; Hastings v. 9Green v. Rogers, 56 Fed. 220; Hoog,^234 Fed. 103.' ' , , Green ' V. -Elbert, 63 Fed. 308. 2 Eemoval ^Cases, "lOO U. S. ' 45'^,, 10 Leather Manufacturers ''. Nat. 25 't. ed. 593; Barney v,, Latliam., Bank. v.. Cooper, 130 U. S. 778,' 30 lOS tT.'S. 205, 2'6'L.'ed.'5i4; Hartei- L. ed. 816r affirming order Cooper v. Kernoehan, 103 U. S. 562,' 26 li. v.. I .. Leather ;Ma'nufacturei's'' Nat. ed. 411; Maryland v. Bald'win, 112 Bank, 29 Fed. 161; Ber-ger v. Doug- V. S. 490, L. ed. 822;' 'Wormley les County .Ooih'rs, 5 Fed; 23, 2 v. Wornilfey, 8 Wheat. 421, 5 L. ed. McCrary, 483. • 651'; Ta,ylor v. Holmes, 14 Fed. 499; 11 Merritt v.' Am: Steel Barge Co., New ' Chester Water Co. ' v. Holly C, C, A., 75 Fed. 813, '■ Mfg. Co., C.-C. A.,' 53 Fed.. 19, 26; 126 ORIGINAL JURISDICTION [§ 40 parties, plaintiff, or defendant, will not prevent a removal.^ In determining between whom the controversy exists, the court is not bound by the title of the ease or the form of the proceedings ; but should examine the record, ascertain the matter 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.* A controversy exists whenever 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 plaintiflf to institute the suit.* 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,^ or a citizen of a Territory ; '' 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 ; ' 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.' It has been said that a person who changes his permanent residence to a foreign country, although he still remains a citi- infra, §118; see Chapter XXXII infra, §43. But see Eeavis t. on Removal of Causes. But see Reayis, 98 Fed. 145. Blackburn v. Portland G. M. Co., 5 Be Metropolitan Railway Re- 175 XJ. S. 571, 44 L. ed. 276; Pitts- ceiYership, 208 TJ. S. 90, 52 L. ed. burg, C. & St. L. Ry. Co. v. B. & 0. 403, in which the author was counsel. R. Co., C. C. A., 61 Fed. 705. In- 6 Hepburn v. EUzey, 2 Cranch, fra, § 42. 445, 2 L. ed. 332 ; Westcott v. Fair- 3 See infra, §§ 539, 540. fiel 1 Hughes, 118; Cameron v. 468, 25 L. ed. 593, 597; Pacific R. lodges, 127 V. S. 322, 32 L., ed Co. V. Ketchum, 101 TJ. S. 289, 25 ^^^' ^°°^ ^- Jamieson, 166 TJ. S L. ed. 932; Barney v. Latham, 103 ^^^' *^ ^- '"^- l***^' U. S. 205, 26 L. ed. 514; Carson v. '^^ n^'^'^"' ^^ ^'"*"'' " Hyatt, 118 TJ. S. 279, 286, 30 L. ed. ^^^^^^ ^]'J ,^- f ' f = ^^■"■'^■°" 1R7 ifiQ Tji VI 1 Q ,1 TO, "■ Hodges, 127 TJ. S. 322, 32 L. ed. 167, 169; BlaoMoek v. Small, 127 loo q j on ^^ . TT « Qfl %o T .1 ^n * .5 132; Snead v. Sellers, C. C. A., 66 U. S. 96, 32 L. ed. 70; Anderson v. j,^^ gy^. McClelland v. McKane, Bowers, 40 Fed. 708 ; Brown v. Miir- j^g^ Yei. 164 ray Nelson & Co., 43 Fed. 614; Man- 8 Watson v. Bonfils, C. C. A., 116 gels V. Donau Br. Co., 53 Fed. 513; Fed. 157. Cilley V. Patten, 62 Fed. 498; Board 9 Ulman v. laeger's Adm 'r, 155 of Trustees, v. Blair, 70 F^d. 414; Fed. 1011. §40] CITIZENS OF DIFFERENT STATES 127 I zen 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 ; i" but a better statement of the rule seems 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,^^ even, it was held, in case of a change of citizenship made before an amended bill was filed.^* The subsequent consolidation of a foreign with a domestic corpora- tion will not defeat the jurisdiction.^* "When at the time a bill is filed the court has no jurisdiction, jurisdiction cannot sub- sequently be conferred by an 'amendment striking out a party plaintiff who was properly and necessarily made such at the commencement of the suit ; ^* but in one case the court retained jurisdiction by allowing an amendment which made one of the original plaintiffs a defendant. ^^ When an indispensable party is omitted at the beginning -of the suit, his citizenship if sub- sequently joined as defendant may defeat the jurisdiction.^^ The same ruling was made, when after an additional defendant was joined, , the plaintiff amended his pleadings so as to set forth a cause of action to which such new defendant was an indispensable party. ^''' When they are not indispensable parties, jurisdiction may be retained lipon a discontinuance or dismissal as regards defendants who are citizens of the same State as 10 Hammerstein v. Lyne, 200 Fed. 13 Louisville, N. A. & C. Ey. Co. 165, 172. See infra, § 46. v. Loi,iisville Trust Co., 174 U. S. 11 Morgan 's Heirs v. Morgan, 2 552, 43 L. ed. 1081, C. C. A.,- 7$ Wheat. ,290, 4 L. ed. 242; Mollan v. Fed. 433, 22 C. C. A. 378; Chicago, Torrance, 9 Wheat. 537, 6 L. ed. I. & N. P. R. Co. v, Minnesota & N. 154;' Clarke v. Mathewson, 12 Pet. W. E. Co., 29 Fed. 337. 164, "9 L. ed. 1041; Anderson v. 14 Anderson v. Watt, 138 U. S. Watt, 138 U. S. 694, 34 L. ed. 1078; 694, 34 L. ed. 1078. But see Hicklin Tug Eiver Coal & Salt Co. v. Brigel, v. Marco, C. C. A., 56 Fed. 549 ; C.C. A., 86 Fed. 818; Haraeovic v. Whittle v. Artis, 55 Fed. 919. Standard Oil Co., 105 Fed. 785 ; IS Conolly v. Taylor, 2 Peters, Collins V. Ashland, 112 Fed. 175. 556, 7 L. ed. 518. ' But see Weaver v. Kelly, 92 Fed. 16 Patterson v. Delaware & Hud- 417; Mangels! v. Donau B. Co., 53 son Co., C. C. A., 251 Fed. 255. Fed. 513. ITBevost v. Twin State Gas & 12 Tug Eiver C. & S. Co. v. Bri- Elec. Co., C. C. A., 250 Fed. 349. gel, 86 Fed. 818. 128 ORIGIN Ail JURISDICTION I 40 the plaintiff; after/* as well as before/* they have appeared; and even, it was held, where they were restored a fev? days later upon their petition for intervention ; ^ but the resigna- tion after suit brought of a defendant trustee,^^ and the filing of a disclaimer, by a defendant,^* who were citizens of the com- plainant 's State, were held not to save the jurisdiction. Such a discontinuance did not save the jurisdiction in an action at law against two makers of a promissory note.^* Jurisdiction is not lost because a defendant ceases to resist the plaintiff's demand;** nor by the addition of new parties, whose citizen- ship would have prevented their original joinder in the suit, and who come in by amendment,^' or by intervention,^^ even, it was held, when at the time he filed his bill plaintiff expected iSBeebe \, Louisville, N. 0. & T. E. Co,) 39 Fed. 481, 484; Mor,se V. South, '80 Fed. E. 206, 207; Clai- boriie T. Waddel, 50 Fed. 368; Hicklin v. Marco, 0. C. A., 56 Fed. 549; Horn v. Lockhart, 17 "Wall. 570, 21 L. ed. 657; Bane, v. Keefer, 66 Fed. 610; Mason v. Dullinghani, 82 Fed. 689 ; Grove v. Grove, 93 Fed. 8-65; , Sioux City T. E. & W. Co. v. Trust Co, of N. Am., C. C. A., 82 Fed. 124; Oxley Stave Co. v. Coop- ers' TJilion, 72 Fed. 695; s. C. as Hopkins v, Oxley Stave Co., C. 0. A., 83 Fed. 912; Smith v. Consumers' G. 0. Co., 86 Fed. 359; Tug. E. C. & S. Co. V. Brigel, C. C. A., 86 Fed. 818; Columbia Digger Co. v. Eector, 215 Fed. 618; see Chapter XXXII, on Eemoval of Causes. 19 A. E. Barnes & Co. et al. v. Berry et al., 156 Fed. 72. 20 Sioux City T. & W. Co. v. Trust Co. of N. Am., C. C. A., 82 -Fed. 124; s. c. 173 TJ. S. 99, 43 L. cd. 628. . 21 Euohs V. Jarvis-Conklin Mt. Tr. Co., S4 Fed. 51.3. 22Wethprby v. ^waSon, CO. 'A., f;2 Fed. ].t)3. But see Frazer Lubri- cator Co. V. Frazer, 23 Fed. 305; Wirgman v. Pprsonsj 126 Fed. 449, 451.' 23 Chase v. Lathi-ope, 254 Fed. 715. 24 Park V. N. Y., L. E. & W. K. Co., 70 Fed. 641. 25 Ober V. Gallagher, 93 U. S. 199, 206, 23 L. ed. 829, 831; Stewart v. Dunham, 115 TJ. S. 61, 64, 29 L. ed. 329, 830; Phelps v. Oakes, 117 XT. S. 236, 29 L. ed. 888; Hardenbergh v. Bay, 151 V. S. il2, 38 L. ed. 93. But see Mangels v. Donau Br. Co., 53 Fed. 513; Weaver v. Kelly, 92 Fed. 417; Fraser v. Cole, C. C. A., 214 Fed. 556. ■ 26 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- ^1. S. Co. V. La. El. Co., 68 Fed. 673; Society v. Shakers v. Watson, C. C. A., 68 Fed. 730; Park v. N. Y., L. E. & W. E. Co., 70 Fed. 641; Cole V. Philadelphia & B. By. Co.-, 140 Fed. 944; Monmouth Inv. Co. v. Means; C. C. A., 151 Fed. 159 ; infra, 5 258. Cmltra, Forest Oil Co; v. Crawford,' C. C A., 101 Fed. 849; Clauss v. Palmer Oil Co., 0. C. A., 222 Fed. 870 where the new parties intervened as plaintiffs. See also ; § 40] CITIZENS OF DIFFERENT STATES 129 that they woiuld intervene,^'' by succession through an assignment pf the pla^intiff's interest,''' or by operation o£ law; ^' nor by the filing of counterclaims or cross bills between defendants ' who :ar,e citizens, of the same State.^" It has been said that when an amendment which is not compulsory brings in new parties the de- fence of. citizenship must be determined from the bill as amended,^^ .. Where in a bill between two parties for an accounting it appears that the partnership assets alleged in, the bill are worth- less, the .Court has jurisdiction to enter decrees against the partners in favor of the intervening creditors irrespective of the citizenship of the latter.** Jurisdiction was taken of a creditor's bill to enforce, a State judgment against the interest of a surviving partner although the result might be to compel defendants who were both residents. of the same State to litigate their mutual demands.** Where the court, because of diversity of citizenship, originally had jurisdiction its right to consider a counterclaim, which might be the subject of an , independent suit and does not aifect matters alleged in the original bill de- pends upon the citizenship of the parties to the counterclaim.** 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 j-urisdic- ii on and to the appointment of a receiver before the complain- ants had obtained judgment in an action at common-law ; ** and in the case of a suit by a stockholder to procure th?i appointment Clyde V. Biehmpnd & P. E. Co., 6.5 30 Portland Wood Pipe Co. v. Ped,., 33,6. , Slick Brpx. Const. Co., 222 Fed. 528. 2* Eraser v. Cole, C. C. A., 214 SI Patt^^son v. D. .L. & Hudson Fed. 556. Co., C. C. A., 251 Fed. 255. ZSSipux City Tr. E, & W. Co, v. , 38 Laekner v. MeKechney, , C. C. Trust Co. of North Ameripaj . C. C. : A., 252, Fed. 403. A., 82 Fed. 124; s. e. 173 XT. S. 99, 33Feidler ,v. Bartleson, C. C. A., 43 L. ed. 628; Monmouth Inv. Co. 161 Fed.. 30. . V. Means, C; C. , A., 151 Fed. 159. 34 Cleveland Eng. Cp. v. Galion, Pontra, Pittsburg^i, S. & N. E ,,Co. D. M. Truck Co., 243 Fed. 405. .v.Fiske, C. C. A., 178 Fed. 66. 35jBe Metropolitan Eailway Ee- 29 Glover ,v. Shepperd, 21 Fed. ceivership, 208 TJ. S. 90, 52 L. ed. 481; Jarboe v/i?empler, 38 Fed. 213. 403. Contra,, Adams Exp., flo. v. Denver & E. G. ty Co., 16 Fed. 712. Fed. Prao. Vol. 1—9 :130 ORIGINAL JURISDICTION [§41 of a receiver because of insolvency, when his shares have been assigned to him for the purpose of the commencement of the suit.^* §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.^ In determining between whom the contro- 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 opposite sides of the same, according to the facts, no matter what their technical place as plaintiffs or defendaiits may be.* 36 JJe ClelancI, 218 TJ. S. 120, 54 L. ed. 962. § 41. 1 Strawbridge v. Ourtiss, 3 Craneh, 267, 2 L. ed. 43,5.; Corpo- ration of New Qrlean.s y. Winter, 1 Wheaton, 91, 4 L. ed! 44; Conolly V. Taylor, 2 Peters, '556; Louisville, C. & C. E. Co. V. Letson, 2 How. (U. S.), 497, 11 L. ed. 353; Ohio & M. E. Co. V. Wheeler, 1 Black. 286, 17 L, ed. 130; Susquehanna & W. V. Eailroad & Coal Co. v. Blatchford, 11 Wall. 172, 20 L. ed. 179; Avers v. City of Ghioago, 101 ; U. S. 184, 25 L. pd. 838; Blake v. MeKim, 103 TJ. S. 336, 26 L. ed. 563; ShainWald'v. Lewis, 108 IT. S. 158, 27 L. ed. 691; affirming order 5 Fed. 510, 6 Sawyer, 585; Bissell V. Horton, Fed Cas. No. 1,448; Ketehum v. Farmers' Loan & Trust Co., Fed. Cas. No. 7,736 (4 Mc- Lean, 1) ; Hubbard v. Northern E. E. Co., Fed. Gas. No. 6,818 (3 Blatchf. 84); Tuokerman v. Bige- low. Fed. Cas. No. 14,228;' Love- 'joy V. Washburne, Fed. ' Cas. No. 8,550 • (1 Bias. 416) ; Pettersbn v. Chapman, Fed Cas. No. 11,042 (13 Blatehf. 395) ;• Teal v. Walker, Fed. Cas. No. 13,812; Dormitzer v. Illi- nois & St. L. Bridge Co., 6 Fed. 217; WaLsh v. Memphis, C & N. W. E. Co., 6 Fed. 797; Karns v. Atlantic & 0. E. Co., 10 Fed. 309; Mitchell V. Tillotson, 12 Fed. 737; Ouachita & M. B. Packet Co. v. Aiken, 16 Fed. 890; Holland v. Eyan, 17 Fed. 1; Walser v. Mem- phis, C. & N. W. Ey. Co., 19 Fed. 152; Hazard v. Eobinaon, 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 Go. v. Babcoek, 76 Fed. 243; Ludlow's Heirs v. Kidd's Heirs, 3 Ohio (3 Ham.), 48; Miller v. Lynde (Con- necticut), 2 Boot, 444, 1 Am. Dee. 86; Tesson v. Gusman (Louisiana), 26 La. Ann. 248; New Orleans v. Seixas (Louisiana), 35 La. Ann. 36; Florence Sewing Maoh. Co. v. Gro- ver & Baker Sewing Mach. Co., 110 Mass. 70, 14 Am; Eep. 579; North Eiver Steamboat Company v. Hoffman (New York), 5 Johns. Ch. 30'0; Fairchild v. Durand (\New York), 8 Abb. Prac. 305; Fisk v. Chicago, E. I. & P. E. Co. (New Tork), 53 Barb. 472. Contro, Brad- ley, J, in Girardey v. Moore, Fed. Cas. No. 5,462 (3 Woods, 397). SEemoval Cases, 100 tJ. S. 457, §41] PARTIES TO THE CONTROVERSY 131 By iinaking defendants those who are necessary parties plain- tiff, jurisdiction is not conferred upon a Federal Court, where, if they had been^ made plaintiffs, the necessary diversity of citizenship would not have existed.® It has been held : that a party whose claim is adverse to the complainant is on the opposite side of the controversy to hira, although their relations are not hostile,* and that the jurisdic- tion is not defeated because the complainant seeks to compel defendants, who are citizens of the same State, to litigate a dispute between them in the Federal Court, when the plaintiff has a cause of action against them both.* The jurisdiction must appear on the face of the record.® 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 side of the controversy as the plaintiff, when the jurisdiction is determined ; '' unless there is a substantial 468, 25 L. ed. 593 ; Paeifie R. Co. v. Ketehum, 101 U. S. 289, 25 L. ed. 932; Barney v. Latham, 103 tJ. 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; Bvers v. Watson, 156 XJ. 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 vl Ellis, 9 Fed. 367; Sayer v. La Salle & P. Gaslight & Coke Co., 14 Fed. 69, 9 Biss. 372; Anderson v. Bow- ers, 40 Fed. 708; Brown v. Murray Nelson & Co., 43 Fed. 614; Man- gels V. Donau Br. Co., 53 Fed. 513 ; Pittsburg, C. & St. L. K. Co. v. Baltimore & O. Ey. Co., 61 Fed. 705, 10 C. C. A. 20, 22 U. S. App. 359; CUley V. Patten, 62 Fed. 498 ; Ober- lin College v. Blair, 70 Fed. 414; Hutton V. Joseph Bancroft & Sons' Co., 77 Fed. 481 ; Eeese v. Zinn, 103 Fed. 97; Boatmen's Bank v. Fritz- len, C. C. A., 135 Fed. 650; Mirabile Corp. V. Purvis, 143 Fed. 920; MU- ler V. Lynde, 2 Boot, '444, 1 Am. Dec. 86; Kelly v. Dolan, 218 Fed. 966. 3 Lindauer v. Cqmpania Palomas, ' etc., C. C. A., 247 Fed. 428. ' '" 4 Federal Mining & Smelting Co. V. Bunker Hill & Sullivan Mining & Concentrating Coi, 187 Fed., 474. 6 Feidler v. Bartleson, C. C. A.., 161 Fed. 30. But see First N^lt. Bank v. Bridgeport Tr. Co., 117 Fed. 969; cited infra, §42. 6 Bell V. Ohio Life Ins. Co., Fed. Cas. No. 1,261. 1 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., 120 Fed. 1008; Joseph Dry Goods Co. v. Hecht, C. C. A., 120 Fed. 760; Menefee v. Frost, 123 Fed. 633. See also Bland v. Fleeman, 29 Fed. 669; Woodrum v. Clay, 33 Fed. 897; Megibben's Adm^rs v. Periri, '49 132 OKIGINAL. JUKISDICTION [§ 41 dispute between him and the plaintiff as to the division of the proceeds, or some other question involved in the suit; im which ease it has been held, that he is on the side of the controversy: opposite to such plaintiff.' It was said : that if the jurisdiction of the court would be ousted by making complainants all inter- ested in obtaining ;the relief prayed, those who are citizens of the same State with the real defendants may refuse to join in. the suit, and may be made defendants.' In an action by. two of three trustees against a corporation residing 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 miide a defendant, was a citizen of the same State as the corporation, did not deprive the Fed- eral court of jurisdiction, on the ground that the trustee residing in the same State with defendant 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.^" In a suit by taxpayers against county officers and bondholders, to enjoin payment of the bonds, the defendant officers were, presumed to be on the same side of the controversy as the tax-; payers. ^^ Complainant, a citizen of Iowa, filed a bill charging that a judgment 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 defendants, that they might be restrained from paying the judgment pendenie lite, but there wa:s no charge that they ha;d participated 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 Fed. 183 ; approved as to this point 1" Einstein v. Georgia Southern upon reversal. Perin v. Megibben, & F. Ry. Co., 120 Fed. 10Q8. See C. C. A., 53 Fed. 86; 91. Monmouth Inv. Co. v. Means, C. 8 Everett v. Independent School C, A., 151 Fed. 159; Georgia S. Dist. of Rock Eapids, 109 Fed/ & F. Ry. Co. v. Einstein, C. G. A., 697; Wood v. Deskins, C. C. A., 218 Fed. 55. 141 Fed. 500. 11 Har.ter v. KernOchan, 103 U. S. SWisner v. Ogden, Fed. Cas. No. 562, 26 L. ed. 411; Anderson v. 17,914 (4 Wash. 631). Bowers, 40 Fed. 70S. §!41] PARTIES TO THE CONTBOVEESY 133 joinder as defendants could not affect his right to have the cause removed.^^ A State granted to a county for school purposes swamp lands i located in the county, which had been donated to the State by Congress. 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 citizen- ship. It was held: that the county was a necessary party, and, it and complainant being fellow citizens, the suit could not be removed.^* Where the validity, of a mortgage is in question, the mortgagor is presumed' to be on the same side of the con- troversy as the other parties who attack the mortgage.^* It has been held : that in an action by a mortgagee to cancel cer- tain mortgages and to foreclose a subsequent trust deed to the same property, although the cestuis que trustent have a com- mon interest with plaiintiff in showing the discharge of these mortgages, they are nevertheless his adversaries as to the other matters in controversy, and will not be rearranged as parties plaintiff, so as to 'Show diversity of citizenship.^® It has been held: that in a suit for a partition, where all the defendants were' citizens of different States^ from that of the plaintiffs' citizenship, 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 siiit^^® Where one tenant in common brought a suit against his co-tenant and others for partition of the land held in com- mon, and to quiet the title as against claims of the defendant other than his co-tenant, but did not press it as a bill for parti- tion'; it was -held that it might be sustained as a bill to quiet the title of the complainant 's ' undivided interest, notwithstand- ing there was' a want of diverse citizenship between him and 12 May V. St. John, 38 Fed. 770. 650, 658, 660, reversing 128 Fed. 13 Missouri v. Ne-w Madrid ,Coun- 608; United States Mortg. Co. v. ty, 73.3Ped. 304. . McClure, 70 Pac. 543; 42 Or. 190. 14 Removal Cases, 100 U. S. 457, 16 Springer v. Sheets, 115 N. 0. 469, 25 L. ed. 593; Wolcott v. 370, 20 S. E. 469. Sprague, 55 Fed. 545 ; Boatman 's 16 German Sav. & Loan Soe. v Bank v. Fritzlen, C. ,C. A., 135 Fed. Tull, C. C. A., 136 Fed. 1, :« 134 OEIGINAL JURISDICTION [§ 41 > one defendant, his co-tenant.^''' In a suit to set aside part of a will and for a partition of the property thereby devised a defendant who would share in the partition but who was a legatee under the will was considered as upon the side of the controversy opposite to that of plaintiffs.'* Complainants filed 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 prop- erty without consideration, which was invalid by reason of the decedent's insanity; that subsequently such defendant, who was insolvent, had conveyed such property to his co-defendant in payment of an antecedent indebtedness. The prayer of the bill was that the conveyances 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 al- legations and prayer that the interest of the defendant, who was a co-heir with complainants, would be best served by their success, so as to require 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 com- plainants.'® In a suit to set aside a marriage and for a partition of the dead husband's land where the sole defendant was his wife, a citizen of West Virginia, who had qualified as administratrix of his estate, it was held that since all the heirs were citizens of Pennsylvania there could be no jurisdiction unless they filed a disclaimer of all right to attack the validity of the mar- riage.^" In a suit by a wife's administrator to set aside a deed given by her and her husband and a second deed by such grantee to another it was held that her husband although made a defend- ant was on the same side of the controversy as the plaintiff.*' In a suit by heirs against the executor to secure a construction of the will, contending that it gave the executor the residuary estate 17 Morse v. South, 80 Fed. 206. 19 Reavis v. Reavis, 98 Fed. 145! But see German Savings & Loan 20 Hastings v. Douglass, 249 Fed. Soc. V. Tull, C. C. A., 1.36 Fed. 1. .'!78. 18 Sutton V. English, 246 TJ. S. 21 Grigsby v. Miller, 231 Fed. 521. 199. § 41] PARTIES TO THE CONTROVERSY 135 in trust for them and another heir whose administrator was joined as defendant; it was held that such administrator was on the plaintiff's side of the controversy.^^ In a garnishee proceeding after judgment, it was held, that the judgment debtor was on the same side of the controversy as the judgment ereditor.^^ In a suit by contractors ^gainst their bondsman, the person who had employed them and claim- ants against the balance due them ; it was held that the bonds- man was on the plaintiif 's side of the controversy.^* In an action on a bond secured by a mortgage, brought by citizens of one State against the citizens of another, one of the defend- ants, by her answer, prayed that the mortgage and bond be declared valid and foreclosed for her benefit and that of plain- tiffs. The bond and mortgage were not divisible. All the de- fendants, including the one praying for relief, 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.^^ An Ohio corporation 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 Pennsylvafiia corporation, alleging: that land owned by plaintiff and by K. and G. was conveyed to B., as trustee, to sell, and pay the proceeds to plain- tiff, K., and G. ; that B. conspired with M., P. and A., who, on G.'s death qualified as his personal representative, and pur- suant thereto, the value of the land having greatly increased, sold it to M. for much less, fraudulently conoealing from plaintiff the fact of the increase; that the consent of K. to the sale was obtained by 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 payments. Complainant prayed that M., B., A., P., and 22 Thomas v. Anderson, C. C. A., 24 John W. Hod & Co. v. Board 223 Fed. 41. of School Directors, 210 Fed. 384. 23 Baker v. Duwamish Mill Co., 25Blaekloek v. Small, 127 XJ. S. 149 Fed. 612. 96, 32 L. ed. 70. 136 ORIGINAL JURISDICTION [§41 K. he decreed to account for and paj' over to plaintiff K., and the heirs of G., moneys received from the Pennsylvania Com- pany, and that the latter be required to, attorii to such; bene- ficiaries. It was held : that .the real controversy was as to the fraud alleged 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 of the sam,e State as part of, the other defendants, the court was without jurisdiction.^^ In an action against the trustee of a deed of trust an,d his cfistii,i 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 adverse in interest to. the plaintiff, and, if a r^sidentr of the same State as the plaintiffs, the District Court of the United States has no jurisdiction of the action as a controversy be- tween citizens of different States, although the cestui qy^ inust is a citizen of a different State.^'' In a suit by a judgment creditor to set aside a fraudulent conveyance by his debtor it was held that the, latter 's trustee in bankruptcy was on the plaintiff's side of the controversy.^* In a suit by an attaching creditor to set aside a judgment ob- tained against the debtor by confession, it was held, that other attaching creditors, whom he had joined as defendants, were on the same side of the controversy as the plaintiff, ^^ In a suit by the trustee of a mortgage, to enforce a right of action held by the mortgagor,^" or to protect the , mortgaged property from injury,^^ the mortgagor will be considered to be 26 Trustees of Oberlin College v. v. City of Woburn, 174 Fed. 192. Blair, 70 Fed. 414. But see City of Denver v. Mercan- 87Peper v. Fordyee, 119 U. S. tile Trust Co., C. C. A., 201 Fed. 469, 30 L. ed. 435. 790,' supra, § 25, infra, § 43. 28 Casey v. Baker, 212 Fed. 247. 31 Consol. Water Co. v. Babc&ek, 29Pollok V. Louchheim, 19 Fed. 76 Fed. 243; Boston S. D; & Tr. 465. Co. V. Eacine, i 97 ;^ed. 817; Old 30 Dawson v. Columbia, Trust Co., Colony Tr. Co. v. Atlanta Ry. Co., 197 U. S. 178, 49 L. ed. 713; Wil- 100 Fed. 798. Cf. Mercantile Tr. & liaras V. City Bank & Tr. Co., C. C. D. Co. v. Collins P. & B. R. Co;, 99 A., 186 Fed. 419; Mahon v. Guar- Fed. 812. But see Knickerbocker anty Trust & Safe Deposit Co., C. Tr. Co. v. City of Kalamazoo, 182 C. A., 239 Fed. 266. See Adams Fed. 865. §41] PARTIES TO THE CONTEOVEESY 137 on the same side' of the controversy as the complainant, unless it clearly appears that he is actively oppos.ed to the relief prayed.^^ But in a suit to enjoin striking einployees of a con- tractor with' 'complainant, from intimidating the contractor, it was held, that' such contractor, althoug-h he did not oppose the relief sought could not be aligned on the same side of the con- troversy as the plaintiff so as to defeat the jurisdiction.'^ In a suit by a bondholder or other cestui que trust, to en- force a right after his trustee has refused to sue upon the same, the defendaiit trustee is considered to be upon the same side of' the controversy as the plaintiff ; '* unless the latter seeks sortie relifef antagonistic to the other beneficiaries of the trust,'^ of when the plaintiff elaim^s some substantial relief against the trustee.'® In a ■ suit by the beneficiary of a trust to remove the trustee it was held that the trustor was not on the plaintiff 's side of 'the cohtrovel'sy.''' In a suit by the creditors of 'an insolvent corporation, citizens of another State from the 'corporation, and its assignees, charg-' 32 Dawson v. Columbia Trust Co., 197 lU. S. 178, 180, 49 L. ed.,713, 715. S3Ca;rroll v. C!Heas. & O. Coal AgeaeyCo., C. C. A., 124 Ted. 305; s. c, as Oheas. & O. Goal Go. v. IPire, Creek^ C. & G. Co., 119 Fed. '942; Niles Bement-Pond Co. v. Iron Hol- ders' Unio9, Looal No. 68, 246 Fed. 851; Iron Molders' Union v. Niles- Bement-Pond Co., C.'C. A., 258 Fed. 408, reversing 246 Fed. 801. 34 Pacific E. Co. V. Ketchurii, 101 XT. S. 289, 25 L. ed. 932; Blaeklock V. Small, 127 XT. S. 96, 32 L. ed. 70 ; Barry v. Mo. K. & T. Ey. Co., 27 Fed. 1; Needtiam-v. Wilson, 47' Fed. 97; Eeinach v. Atlantic & G. W. E. Co., 58 Fed. 33; 'Shipp v. Wil- liams, C. C. A., 62 Fed. 4; Bowdoin College V. Merrit, 63 Fed. 213; Kil- dare Lumber Co. v. National Bank, C. C. A., 69 Fed. 2; First Nat. Bank V. Eadford Tr. Co., C. C. A., 80 Fed. 569, 573; Dunn v. Waggoner, 11 Tenn. (3 Terg.) 59; Swann v. Myers, 79 N. C. 101. But see Hack V. Chicago & G. S. Ey. Co., 23 Fed, 356. But see Einstein v. Georgia, So. & P. By. Co., 120 Fed. 1008 j Hanler v. New York Eailways Co., 244 U. S. 266; Sharp v. Bonham, 213 Fed. 660; Georgia Coast & P. E. Co. V. Lowenthal, G. C. A., 238 Fed. 795; Brown v. Denver Omni- bus & Cab Co., C. C. A., 254 C. A. 560. 35 Rust V. Brittle Silyer Co., C. C. A., 58 Fed. 611; Kildare Lum- ber Co. V. National Bank, C. C. A., 69 Fed. 2, First Nat. Bank v. Ead- ford Tr. Co., 80 Fed. 569, 571, 573. See Mommonth Inv. Co. v. .Means, C. C. A., 151 Fed. 159. sepitz Gerald v. Thompson, 222 V. S. 555, 56 L. ed. 3i4. 37 Hidden v. Washington-Oregon Corporation, 217 Fed. 303; General Electric Co. v. EichardSon, C. C. A., 233 Fed. 84. 138 ORIGINAL JURISDICTION - [§41 ing 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 corporation against the assignees, and that the suit was brought by the creditors for the purpose of bringing the suit in the Federal Courts. .It was held, that as the creditors had the right to sue, this ob- jection was not tenable.*^ In a stockholder 's suit, the corporation if it is not alleged to be under the control of the defendants or to resist the relief sought should be aligned as a complainant for the purpose of determining the jurisdiction.*® In a stockholder 's suit to enf orfie a right of his corporation, where it is shown that the cor- poration 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 jurisdic- tion.*" In one to prevent the majority of the stockholders from causing the corporation to act in fraud of the mi- nority, the corporation is to be aligned on the same side as the majority stockholders.*^ It has been held: that in a stock- holder's suit, where the plaintiff has failed to comply with the equity rules by showing efforts to secure action by the other 38 Bell V. Ohio Life Ins. Co., Fed. 124 Fed. 929; Mills v. City of Chi- Cas. No. 1,261. cago, 127 Fed. 731; Groel v. United 39 Iron Holders ' Union t. Niles- Electric Co. of New Jersey, 132 Bement-Pond Co., C. C. A., 258 Fed. Fed. 252; Howard v. Nat. Tele- 408, reversing 246 Fed. 851. phone Co., 182 Fed. 215; Crawford 40 Doctor V. Harrington, 196 U. v. Seattle, E. & S. Ey. Co., 198 Fed. S. 579,' 49 L. ed. 606; overruling a 920. Before the decision of Doctor number of decisions of the lower v. Harrington, 196 U. S. 579, 49 L. courts to the contrary. Hyams v. ed. 606, it was held, that where a Calumet & Hecla Mining Co., 221 stockholder's bill did not conform Fed. 529; Whitaker v. Whitaker to the requirement of the equity Iron Co., 238 Fed. 980; Cutting v. rules, by showing efforts made to Woodward et al., C. C. A., 255 Fed. secure action by the stockholders, 633. See Woolsey v. Dodge, Fed. or an excuse for such failure, the Cas. No. 18,032, 6 McLean, 142; corporation must be aligned with s. c, as Dodge v. Woolsey, 18 How. the complainants. Waller v. Coler, 331, 15 L. ed. 401; DeNeufville v. 125 Fed. 821. New York & N. E. Co., C. C. A., 41 De Neufville v. New York & 81 Fed. 10; MacGinniss v. Boston N. Ey. Co., C. C. A., 81 Fed. 10; & M. Consol. Copper & Silver Min. Hedfield v. Baltimore & O. E. Co., Co., 119 Fed. 96, 55 C. C. A. 648; 124 Fed. 929; Elkins v. Chicago, Redfield v. Baltimore & O. E. Co., 119 Fed. 957. § 42] CITIZENSHIP OP FORMAL PARTIES 139 stockholders on an excuse for such failure, the corporation is to be treated as upon the same side of the controversy as the complainant.*^ Where the controversy for the control of the cor- poration transcends the rivalry of those claiming to be mem- bers 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 members of the board.** In such a case, it has been held that trustees of the corporation, although in sympathy with the complainant, should be aligned with the defendants.** In a stockholders ' suit to recover assets of a corporation it was held that a statutory receiver who had been made a de- fendant was on the plaintiff's side of the controversy.** In an action for damages under the Kansas statute, because the plaintiff'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, whereby 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 sueh vendees a right of removal on the ground of diverse citizenship.*^ § 42. Formal parties to the controversy. The citizenship of formal parties, with no real interest in the controversy, does not affect the jurisdiction.^ 42 Waller v. Coler, 125 Fed. 821; §42. 1 Wormley v. Wormley, S Groel V. United El. Co., 132 Fed. Wheaton, 421, 5 L. ed. 651; "Wood 252. These eases were decided be- v. Davis, 18 How. 467, 15 L. ed. fore Doctor v. Harrington, 196 U. 460; Eemoval Cases, 100 TJ. S-. 457, S. 579, 49 L. ed. 606. A similar 25 L. ed. 593; Barney v. Latham, ruling has been made since this de- 103 U. S. 205,26 L. ed. 514; Harter eision. Gage v. Eiverside Trust Co., v. Kernoehan, 103 XJ. S. 562, 26 L. 156 Fed. 1002, 1007. ed; 411; Corbin v. Van Brunt, 105 43 Helm V. Zarecor, 222 U. S. 32, U. S. 576, 26 L. ed. 1176; Maryland 56 L. ed. 77. But see Stephens v. v. Baldwin, 112 TJ. S. 490, 28 L. ed. Smartt, 172 Fed. 466. ' 822; Hervey v. Illinois Midland By. 44 Kelly V. Dolan, 218 Fed. 966. Co., Fed. Cas. No. 6,434 (7 Biss. 45 Sharpe v. Bonham, 224 U. 8. 103) ; Girardey v. Moore, Fed. Cas. 241, 16 L. ed. 747. No. 5,462 (3 Woods, 397) ; Edger- 46 Woodrum v. Clay, 33 Fed. 897. ton v. Gilpin, Fed. Cas. No. 4.280 140 ORIGINAL JURISDICTION [§'42 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 reprissented.* Plain- tiff and another contracted as partners to do certain work in the construction of a railroad as subcontractors. By a con- tract between themselves, previously made and known tp' the principal contractor, it was agreed : that plaintiff should furnish the materials and do the work and. receive and disburse th6 money received therefor, accounting to his associate only fot a share of the net profits of the contract .after the completion of the work. Plaintiff' brought suit in a Federal court to en- force a mechanic's lien, filed in the name of the partnership, for the balance due under the contract, alleging 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 between him and his nomi- nal partner; and that under such agreement the citizenship of such partner did not affect the ! jurisdiction of the court, since he had no interest in the recovery and; was neither an indis- (3 Woods, 277); Taylor v. Eoeke- ipiGeorgia, 30, S. E. 766; Harper v. feller, Fed. Cas. No. 13,802; Chica- GaitHeman (Kentucky), 1 Ky. Law. go, St. L. & N. 0. E. Co. V. McComb, Rep. 419 ; Danvers Sav. Bank v. Fed. Gas. No. 2,670 (17 Blatchf. Thompson, 133 Mass. 182; Callaway 371); Foss v. First Nat. Bank, 3 v. Ore Knpb Copper Co., 74 N. C. Fed. 185, 1 MoGrary, 474; Deford v. 200; Hadleyv. Dunlap, 10 Ohio' St. Mehafey, 14. Fed. 181; Taylor v. 1; Smith v. Baltimore & O. R. Co., Holmes, 14 Fed. 498; Bates v. New 7 Ohio Dee. 542. Orleans, B. R. & V. E. Co., 16 Fed. 8 Boon v. Chiles, 8 Pet. 532, 8 L. 294; Gudger v. "Western N. C. R. ed. 1034; Banigan v. City' of Wor- Co., 21 Fed. 81 ; Sioux City & D. M. eester, 30 Fed. 392; Lawrence v. Ry Co. V. Chicago, M. & St. P. Ry. Southern Pae Co., 165 Fed. 241; Co., 27 Fed. 770; New Chester Wa- Atchison, T. & S, F. Ry Co. v. ter Go. V. Holly Mfg. Co., C. C. A., Phillips, C. C. A., 176 Fed. 663, 53 Fed. 19, 26; Carver v. Jarvis- holding' that in an action^ by a Conklin Mortgage Trust Co., 73 Fed. widow under the California statute 9; Garrard v. Silver Peak Mines, to recover damages for the death of 76 ; Fed. 1 ; Title Guarantee & Trust her husband, the other heirs of the Co. v. Studebaker, 100 Fed. 358; deceased, who are not entitled to Wirgman v. Persons, C. C. A., 126 share in the recovery, are necessary, Fed. 449 ; af&rming decree Persons but merely formal, parties.' But see V. Beling, 116 Fed. 877; Steiner v. Dunni v. Waggoner, 11 Tenn. (3 Mathewson, 77 Ga. 657; Withers v. Yerg.), 59. ' John Hopkins place Sav. Bank. •.I ■i-42J CITIZENSHIP OF FORMAL PARTIES 141 peiisable nor a necessary party.* The husband of a married woman when made a party to a suit affecting her separate -Estate jis such a formal party.* In a suit in which it appears by the record that a party sues for the, use of. another, such plain- tiff is,: a nominal party,^ It has- been held, that the following plaintiffs are formal parties, whose citizenship will not affect the jurisdiction, the status of thes person interested in, the re- (joyery being alpne ponsidered: a .State officei* who. sues tQCol- leqt a penalty for the benefit of the State;® 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;'' the State in a, suit upon the bond, of a.public officer,* or of an administrator;® or upon the bond of an (attaching creditor; ^^ the governor of a State in a suit upon a sheriff's bond,^^ or a forthcoming bond;^^ a marshal in a suit upon an attachment bond ; ^' and, it has been said, a State in any si,iit brought in its name on the relation of another;^* S Ban V. Columbia Southern By. jfor the benefit of himself and' the Co.', 117 Fed. 21, 54 C. C. A. 407; i-eversi'ng 109 Fed. 499. 4Wol-mley v. Wormley, 8 Wheat. 421", 5 L. ed.„651; First Nat. Bank V. Bridgeport Tr. Co., 117 Fed. 969. 5 Browne v.' Strode,' 5 Cranch, .303, 3 L. ed. 108 ; Dimmoek v. Doo- little, 29 Fed. 545; New Chester Water Co., v. Holly Mfg. Co.;' 53 Fed. 19, 3 C. C. A. 399, 3 TJ. S. App. 264; affirniing 48 Fed. 879. And cases cited infra. 6 Ferguson v. Boss, 3 I^.E.A. 322, !.38 Fed. 161. As to when the State may b& a. formal party see JSx 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 were late, and, if so how much; and' provided a penalty for as violation of this ' requirement, to be recovered in the name Of the State by the prosecuting attorney 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 By. Co. v. State (In- diana), 72 N.OE. 174. VU. S. V. Douglas, 113 S. C. 190, 18 S. E. 202. 8 Indiana ex rel. Stanton v. Glo- ver, 155 U. S. 513, 39 L. ed. 243. 9 Maryland V; Baldwin, 112 TJ. S. 490, 28 L. ed. 822. 10 Missouri ex rel. Eauch v. Bowles Milling Co., 80 Fed. 161. 11 McNutt T. Bland, 2 How. 9, 11 L. ed. 159. 12 Wade V. Wortsman, 29 Fed. 754; Wortsman v. Wade, 77 Ga. 651, 4 Am. St. Eep. 102. IS Huff V. Hutchinson, 14 How. 586, 14 L. ed. 553. 14 Jack V. Williams, 113 Fed. 142 ORIGINAL JURISDICTION [§42 biit not, it has been held, the United States in a suit brought for the benefit of a material man upon a contractor's bond.^* So, it has been held, are : an agent,^^ or attorney,^'' or officer," or director, 18 of a corporation, when made defendant in a suit against it seeking no relief against him even when in the eon- 823, 824. See Missouri v. Alt, 73 Fed. 302. Contra, State of Ohio v. Columbus & Xenia E. Co., 48 Fed. 626, an application for a manda- mus; Title Guaranty & Surety Co. v. State of Idaho for the use of Allen, 240 U. S. 136. 15 U. S. Fidelity & G'y Co.' v. tJ. S. for the benefit of Kenyon, 204 U. S. 349, 51 L. ed. 516; affirming XT. S. V. Churchyard, 132 Fed. 82; U, S. V. Henderlong, 102 Fed. 2; U, S. y. Sheridan, 119 Fed. 236; TJ. S. v. O'Brien, 120 Fed' 446, 448; TJ. S. V. Barrett, 135 Fed. 189; Burrell V. TJ. S., C. C. A., 147 Fed. 44, 46. In a suit by three heirs, who were citizens of Tennessee, against the executor, who was a citizen of Mis- souri, in which the administrator of a , deceased heir, who was also a citizen of Missouri, was joined as defendant to secure a construction of the will, the plaintiffs claiming either that it did not dispose of the residuary estate, or that the executor was given such estate in trust for the heirs, and the executor claiming that the residuary estate was given to him absolutely; the administrator must be classed as a plaintiff in aligning the parties for the purpose of determining jurisdiction, and therefore, one of the parties plaintiff was a citizen of the same state as the defendant, and the District Court was without jurisdiction. Though the interest of the admin- istrator was like that of the other plaintiffs, so that he was a proper party, ihis interest was severable from theirs, and he was not a neces- sary party, and therefore need not have been joined under equity rule 39 providing that where a proper, but not necessary, party could not be brought in without ousting the jurisdiction of the trial court, that court may in its discretion proceed in his absence, the decree to be with- out prejudice to his rights, which rule was merely declaratory of the prior practice. Thomas v. Ander- son. 16 Wood V. Davis, 18 Howe, 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 E. I. & P. E. Co., Fed. Cas. No. 6,204 (6 Blatchf. 105); Pond v. Sibley, 7 Fed. 129, 19 Blatchf. 189; National Bank of Lyndon v. Wells Eiver Mfg. Co., 7 Fed. 750; City of New York v. New Jersey Steamboat Transp. Co., 24 Fed. 817; Lamm V. Parrott 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. 189; Politz v. Wabash E. Co., 153 Fed. 941. § 42] CITIZENSHIP OP FORMAL PARTIES 143 tro-rcrsy they sympathize with the complainant,*" public officers against whom no relief is sought, except an injunction against their official action in aid of an act of another defendant, which the bill also seeks to enjoin.*^ Where one, acting as agent only, made insurance in his own name, and for all others concerned, although he and the underwriter 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.** But when the insured had been paid part of the loss and joined with the insurer to recover damage for negligence which caused the fire, it was held that the insurer was not a formal party and that its citizenship must he considered in determining the jurisdiction.** The directors are not nominal parties to a suit aga,inst them and their corporation, to cancel stock subscriptions and to com- pel them, individually, as well as the corporation, to refund the amounts already paid by the subscribers ; ** 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, collecting and disbursing the taxes required to pay certain bonds, when the bill also sought the declaration that the bonds be declared void and their collection enjoined," making bondholders parties defendant ; ** a register of deeds in a suit to set aside certain land contracts with a prayer for an injunction against his re- cording the same ; *'' an bfficer appointed to sell land under a decree, when made defendant in a suit to set aside that decree SOSharpe v. Bonham, 224 XT. S. cago, M. & St. P. Ey. Co., 27 Fed. 241, 56 L. ed. 747; overruling Stew- 770. art V. Mitchell, 172 Fed. 905; Steph- 22Euan v. Gardner, Fed. Gas. No. ens V. Smartt, 172 Fed. 466. See 12,100 (1 Wash. C. G. 145). Helm V. Zareeor, 222 U. 8. 32, 56 L. ** Turk v. Illinois Gent. E. Co., g^ 77 C. C. A., 218 Fed. 315. oi o 1. ij .J V •« J 24 Seddon v. Virginia, T. & C. S. 21 So held, of a sheriff and com- ° ' _ & I. Co., 36 Fed. 6, 1 L.E.A. 108. 25 Fox V. Mackay, 60 Fed. 4. 26 Aroma Tp. v. Auditor of Pub- join a corporation from prose- ^j^ Accounts, 2 Fed. 33. fiuting condemnation proceedings. Z7 Hyde v. Victoria Land Co., 125 Sioux City & D. M. Ey Go. v. Chi- Fed. 970. missioners of appraisal, who were made defendants to a suit to en- 144 okiginaij jukisdiction [§42 for fraud. 2* An assignee for the benefit of creditors, a citizen: of 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 establish a 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.^* Citizens of Ten- nessee, holding policies of life insurance in a foreign corpora- tion, filed their biU in the Chancery Court against this and other foreign corporations for collection of their claims and to sub- ject to the satisfaction thereof the property, of such company, in- ' eluding certain State bonds deposited by it with the treasurer of the State ' ' as security for risks taken by citizen^ of this State, ' ' and, for this purpose, made the treasurer, a citizen of Tennessee, a party def eiidant. It was held, that the treasurer was a material party defendant, and the court refused, on the application of the foreign corporations, to accept their petition and bond and to authorize a removal.^" s "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 is generally considered to be a formal party. ^^ Where the trust is active and the trustee has a power over the property, he is usually considered to be a necessary party to the suit, whose citizenship must be considered in determining the jurisdiction.^^ 28 Carver v. Jarvis-Oonklin Mort- Phillips, C. C. A., 176 Fed. 663. gage Trust Co., 73 Fed. 9. But see Dunn v. Waggoner, 11 Tenu. 29 Nye V. NigHiingale, 6 R. I. 439. (3 Yerg.), 59. 30 Smith V. St. Louis Mut. Life 32 So held, of a trustee of laud Ins. Co., 2 Tenn. Ch. 656. conveyed to him, to secure the pay- 31 Boon V. Chiles, 8 Pet. 532, 8 ment of a loan in a suit to cancel L. ed. 1034; Banian v. City of the conveyances or to enjoin a sale Worcester, 30 Fed. 392. See Law- thereunder. Thayer v. Life Assp- rence v. Southern Pac. Co., 165 Fed, ciation of America, 112 IT. S. 717, 241; Atchison, T. & S. F. Ey. Co. v. 28 L. ed. 864; Peper v. Pordyse, 119 §'4i2]: CITIZENSHIP GP FORMAL PARTIES 145' Where two citizens af one State, trustees for bondholders under a' mortgage of a railroad owned by a corporation of another State, foreclosed the niortgage,- bought in the road in trust for the bondholders, and leased it to a citizen 6f the State to which they themselves belonged ;' and then ; a majority of the bond- holders, citizens of the State where the original eompanj^ was, in pursuancCj of a statute there, > formed themselves into a new' corporation, to which the i statute gave ownership and control of I 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 iwas wholly between the new corporation and the lessee, aud that the trustees i were nominal parties; they, the trustees, not having been discharged from, nor in any way incapacitated from executing, their trust, and there ' having • been, ' in &bt, unpaid bondholders who. had' riot joined in 'the creation of the new corporation, and who had yet' a right to call ' on th& trustees to provide for the payment of their bonds. ^^ It' has ' been iheld': that trustees iare formal parties to a controversy concerning a, claim for the cancellation of "bonds secured by the: de,ed pf trust, although an injunction against a foreclosure i is prayed.^* In a suit to set aside a deed of trust made for, the benefit ,o,f creditors, ^t; appeared that . plaintiff; and the trustee were citizenp,,of.the.sa,mp State, but that the beneficiaries undeii the deed, othe^,,, than plaintiff, were citizens of another Stjate.; It was held, that the trustee was an indispensable party to the suit',, and that the Federal dourt, therefore, had no juris- diction.^s It was held: 'that the jurisdiction of the Circuit Court 'of the United States wasjpot defeated by the fact'that with the principal defendant were i joined, as nominal parties, tlie ex- V.! S.I 469, 30; L, ed. 435 ; Teversing sue. Allen-West Commission Go. v. ^ decree; Eordyee v. Peper, 16 'Fed. , Brashear, 176.Ped. .Xl9- ,., 516, 5 McCrary, '221 ; Teail y. Walk- SSKnapp v. Eailroad Co., '87 U. er,.,Fed, Cas. No. 13,812, Contra, S. (20 Wall.)) il7,i2 L. ed. 328. ChestiBi V. Wellford,. Fed, Cas. No. 34 Lake St. El. E.'Co. v. Ziegler, 2,662;„(.?i I'lip- .347). So held of • 99 Fed. 114, 39- C. 'C. A. '431. trustees of a mortgage in a fore- 36 Eust v. Erittlfe Silver Co., 58 closure suit brought .by the bene- Fed. 611, 7 0. C. A. 389, 19 TJ. S. ficiary, after they had refused to App. 237. Fed. Prac. Vol. I— 10 146 OElGINAIi JUEISDICTION [§ 42 ecutors of a deceased trustee, citizens of the same State as the complainant, in order that such executors might perform the ministerial act of conveying title, in case the power to do so was vested in them by the laws of the State.*® It has been held : that in a controversy as to the priority of different liens upon mort- gaged land, the mortgagor is a formal party, when the validity of neither of the liens is disputed ; *'' and that so is the lessor of a railroad when the lease is for more than ninety years and the lessee has assumed all the lessor 's obligations ; '* 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.'* Defendants sued by fictitious names are always treated as formal parties, whose presence on the record does not affect the right of removal.*" A garnishee is not considered to be a party to the suit, when determining the right of removal.*^ Where the essential par- ties on the adverse sides of a controversy were citizens of dif- ferent 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.*^ It has been held, that the following persons are not mere for- mal parties, and that their citizenship must be considered when the jurisdiction is determined: a party against whom a decree 36 Walden v. Skinner, 101 IT. S. L. ed. 910 ; Washington v. Columbus 577, 25 L. ed. 963. & C M. E. Co., 53 Fed. 673. 37 Removal Cases, 100 U. S. 457, 39 Seaboard Air Line Ey. Co. V. 469, 25 L. ed. 593. But see Thomp- North Carolina E. Co., 123 Fed. son V. Dixon, 28 Fed. 5; Tug Eiver ^^^■ Coal & Salt Co. v. Brigel, C. C. A., « Parkinson v. Barr, 105 Fed. 81; 67 Fed 625 Loop v. Winters' Estate, 115 Fed. „„ „ ' , \ . . ^ . ^ 362. Contra, Grosso v. Butte Elee- 88 Seaboard Air Line Ry. v. tricity Ey. Co., 217 Fed. 422. North Carolina E. Co., 123 Fed. 629 ; „ ^ook y. Whitney, Fed. Cas. No. Olanta Coal Min. Co. v. Beeeh g^gg (3 ^^^^^^ 7^5). Q^^^^i^^ ^ Creek R. Co., 144 Fed. ,150; Chase President, etc., of Farmers' Bank of V. Beeeh Creek R. .Co., 144 Fed. Delaware, 113 Fed. 417. 571. Contra, Bellaire v. Baltimore 42 Bacon v. Rives, 106 TJ. S. 99, & Ohio E. E. Co., 146 V. 8. 117, 36 27 L. ed. 69. § 42] CITIZENSHIP OP FORMAL PARTIES 147 is essential to the relief sought by the suit ; ^ a stakeholder in the possession of property, to recover which the suit is brought ; ** an administrator with the will annexed in a suit for a construc- tion of the will ; ** the personal representative of a deceased in an action to recover damages for his death, although the pro- ceeds are for the exclusive benefit of the members of the dead man 's' family ; ** a tenant in common with a leasehold interest and an equity for improvements, when joined with the land- lord in a suit for ejectment;*'' a corporation in a stockholder's suit, to cancel a contract which it has made ; ** a corporation In a suit by its mortgagee, to cancel a contract made by it with another, although it was alleged that its assets were in- sufS.cient to pay the mortgage ; *® a corporation in a suit to compel the transfer of stock, the certificates for which were held or claimed by another defendant.*" Where the stakeholder brought a suit of interpleader; it was held, that a difference of citizenship between the defendants justified a removal.*^ Under the Illinois 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 appeal- is Wormley V. Wprmley, 21 TJ. Cleveland v. Cleveland, C. C. & St. S. (8 Wheat), 421, 5 L. ed. 651; L. Ey Co., C. C. A., 146 Fed. 171. Carneal v. Banks, 23 TJ. S. (10 Contra, Gwynne v. Eoe, 4 Ohio (4 Wheat.), 181, 6 L. ed. 297; Ward v. Ham.), 435; Texas v. Lewis, 12 Arredondo, Fed. Cas. No. 17,148 (1 Fed. 1; brought in Texas for tres- Paine, 410) ; Post v. Buckley, 119 pass to try title to land, and the Fed. 249. i tenant disclaimed title. 44 Wilson V. Oswego Tp., 151 U. 48 East Tennessee, V. & G. B. Co. S. 56, 38 L. ed. 70; Massachusetts v. Grayson, 119 TJ. S. 240, 30 L. ed. & S. Constr. Co. v. Cane Creek Tp., 382. 155 TJ. S. 283, 39 L. ed. 152; Seoutt '49Consol. Water Co. v. Babeoek, V. Keck, 73 Fed. 900, 20 C. C. A. 76 Fed. 243. See Dawson v. Co- 103. But see Pacific R. Co. y. Ket- lumbia Trust Co., 197 TJ. S. 178, chum, 101 TJ. S. 289, 298, 25 L. ed. 49 L. ed. 713; cited supra. 932; Bacon v. Rives, 106 U. S. 99, 60 Crump v. Thurber, 115 TJ. S. 27 L. ed. 69; Reeves v. Corning, 51 56, 29 L. ed. 328; Rogers v. Van Fed. 774, 778; N. Y. Constr. Co. v. Nortwick, 45 Fed. 513; Patterson v. Simon, 53 Fed. 1; and eases cited. Farmington Street Ry. Co., Ill Fed. 45 Security Co. v. Pratt, 64 Fed. 262. 405. 51 First Nat. Bank v. Bridgeport 48 Laubscher V. Fay, 197 Fed. 879. Tr. Co., 117 Fed. 969; Feidler v. 47Beardsley v. Torrey, Fed. Cas. Bartleson, C. C. A., 161 Fed. 30, No. 1,190 (4 Wash. C. G. 286); cited ^pra, §41. 148 -ORIGINAL JUEISDICTlON [§42 ing, 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 appointed by the probate court to represent the estate; but the claim was actu- ally contested by an heir of the decedent,' who appealed frofti an order allowing the claim, the question of diversity of citizenship between the parties was to-be determined upon the citizenship bf such appellant, and not upon that of the temporary adminis'tTa- tor.** In an ejectment instituted' in a State court bf Pennsyl- vania by- a citizen of Pennsylvania, against the tenant in posses- sion, also, a citizen of that State, his lessor, a citizen of Maryland, aftePi a .judgment by default against the tenant, was, upon his petition admitted as a defendant to the suitJ The new defendaiit then removed the eause ; but the Circuit Court remanded the same for want of jurisdibtion"; since the remover was a co-defendant with the tenant in possession, a citizen of plaintiff's State:^^ Whete a stoekhOlder in a corporation sued to enjoin the use by another corporation of stocks 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.®* It was held : that a cor- poration, which had sold all its property and franchises except the mere right to exist, and which had no officers or p^ace ,of business, was only a nominal party in a suit against a stockholder to make him liable for his unpaid subscription ; notwithstanding the fact that the corporation had Still the power to teorganize and collect the stockholders' dues."® But upon a bill for the specific performance of a contract Ijetween 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 cohtract, nor that he was about to dispose of the stock; it was Iield 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.®* 52 Sehneider V. Eldredge, 125 Fed. S5 Wellman v. Howland Coal & 638. Iron Worksi 19 Fed. 51. SSBeardsley v. Torrey, Fed. Gas. 56 Lukas v. Milliken, 1,39 Fed. 816. No. 1,190 (4 "Wa]9h. G. C. 286). 54 Higgins; v. Baltimore & O. B. Co., 99 Fed. 640. ■42] CITIZENSHIP OP POKMAL PARTIES 149 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 certifi- cates of stock which it has issued.^'' In an action against a prin- cipal and a surety, the surety cannot be considered as a merely formal party.*? In a suit in support of an adverse claim to a land patent j the original applicant is not a formal party, although he ha,s assigned his claim to another person joined in the suit.®^ A defendant, who has disclaimed an interest in the contro- versy,®" or, who has made a default in appearance or pleading,*^ is BOt considered as a formal party, and his citizenship may pre- vent a removal. The fact that a defendant is pecuniarily irre- sponsible, so that a judgment against him would be of no value, does not make him a formal party.®^ . 57 County . Co»rt ; V. Baltimore & O. R. Co., 35 JPed. 161. 58 Mutual Resierve Fund Life Ass'n V. Parmer, C. C. A., 77 Ped. 929. ■ 59 Blackburn v. - Portland Gold mn. Co., 175 U. S. 571, 44 L. ed. .276. ,,,,,, , ., , . ,,,; 60 New Jersey Zmp Co. v. Trot- ter, Fed. Oas. No. 10,167; Hax v. Caspar, 31 Fed. 499; Dow v. Brad- street Co., '46 Fed. 824; Goodnow y/. Litchfield, 47 Fed. 753. See Wetherby v.. Stinson, G. 0. A., 62 Fed. 173; supra. Held contra (as 1;o original jurisdiction), Fi-azer Lu- bricator Co. V. Frazer, 23 Fed. 305; (as to right to removal) Wirgman y. Persons, C. C. A., 126 Fed. 449, 451; Willin v. Beagan, 171 Fed. 758. In the former case at least, the disclaiming defendant was not a necessary party. . Conira, Day v. Oatisi-. (Mississippi), 37 So. 559; Reed v. Hardeman Pounty, 77 Tex. 165, 13 S. W.,1024; (removal de- nied). See Cooper v. Preston, 105 Fed, 403; Dayiesv. Wells, 134 Fed. 139. , ', . ■ 61 Putnam v. Ingraham, 114 TJ. 8. 57, 29 I4. ed. 65; Brooks v. aai;k. 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 Barli-Wire Co., 32 Fed. 561. Steele v. Culver, 211 U. S. 26, 53 L. ed. 74. 62 Deere, Wells & Go. v. Chicago, U- & St. P. By. Co., 85 Fed. 876. Insurance oonipanies which have paid policies on property destroyed by fire caused by the negligence of a thii'd person and have by equitable principles or by the terms of the policies been subrogated to the right of action of the owner against such person may maintain an action thereon in their own name under the laws of Washington, which re- quire actions to be brought in the name of the real party in interest and permit the assignment of such causes of action; and where they join with the owner as plaintiffs, they are parfies in interpst, and not merely nominal parties for the pur- pose of determining the removabil- ity of the cause. Webb v. Southern Ry. Co., C. G. A., 248 Fed. 618; Palmer et al. v. Oregon-Washington R. & Nav. Co. (District Court, W. 150 ORIGINAL JURISDICTION [§ ^3 §43. Unnecessary parties to the controversy. In certain cases it has been held : that the citizenship of defendants, who are proper but not necessary nor indispensable parties to the con- troversy may be disregarded when no decree is entered against them.i Such it has been held are : different tort feasors in an action for daniages,^ or ordinarily in a suit for an injunction against them; ^ a leaseholder who has attorned to the plain- tiff in a suit to enjoin his lessor from exercising any control over the property ; * the mortgagor in a suit to determine the ownership of the bond and mortgage ; ^ the beneficiary of a trust in a suit by his-trustee for a foreclosure.* The mortgagor in a suit by the mortgagees to enjoin a public board from reduc- ing charges for public service ; '' a person for whose benefit a cor- poration was organized in a suit to enjoin such corporation from operating a ferry ; ^ defendants who have been made parties to a suit merely because they are alleged to be indebted to the princi- pal defendant ; ^ in a suit for an accounting of lauds sold by a corporation, the stockholders and incorporators of the same, who have procured the conveyance to it of the lands, in which the plaintiffs claimed an interest ; ^" the administrator of one of the heirs in a suit by the survivors for a decree that the executor holds the residuary estate in trust for all the heirs ; ^^ the debtor in a suit by a creditor to set aside a judgment against him, alleged to have been obtained by fraud ; ^^ the agent for another D. Washington, S. D., October 22, 6 Ruckman v. Euekman, 1 Fed. 1913), No. 1,367, 208 Fed. 666. '587. § 43. 1 Barney v. Latham, 103 6 Smith v. Bell, C. C. A., 217 Fed. U. S. 205, 215, 26 L. ed. 514, 518; 243. Kuekman v. Ruckman, 1 Fed. 587; TDe Pauw University v. Pub. Deford v. Mehaffy, 14 Fed. 181; Service Co., of Oregon, 247 Fed. Corbin v. Boies, 18 Fed. 3; Cella, 183; but see Mahon v. Guaranty Adler & Tilles v. Brown, 136 Fed. Tr. & S. D. Co., C. C. A., 239 Fed. 439. See infra, § 119. 266. 2 Coggey V. Bird, C. 0. A., 209 8 New York v. New Jersey Steam- Ffed. 803, aetion for conspiracy. boat Transp. Co., 24 Fed. 817. 3 Puget Sound Traction, Light & 9 Deford v. Mehaffy, 14 Fed. 181. Power Co. V. Lawrey, 202 Fed. 263; 10 Barney v. Latham, 103 U. S. Wieland State Engineers v. Pioneer 205, 215, 26 L. ed. 514, 518. Irr. Co., 238 Fed. 519, C. C. A., 11 Mahon v. Guaranty Trust & but see infra, §120. Safe Deposit Company, ,C. C. A., 4 Port of Seattle v. Oregon & V. 239 Fed. 266. R. Co., 242 Fed. 986. 12 Corbin v. Boies, 18 Fed. 3.' § 43] Cli'IZENSHIP OF UNNECESSARY PARTIES 151 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 interest in such securities ; ^* 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.^* It has been held, that the following persons 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 ; ^* a lessee in a suit to set aside his lessor's title ;^* the mortgagor who has trans- ferred the mortgaged land in a suit to foreclose the mortgage, where it is sought to charge him with a deficiency ; ^'' the mort- gagor in a suit by the mortgagees to enjoin its employees from trespass upon the property. ^^ To a bill filed by trustees on behalf of the creditors of a partnership against a corporation of which one of the partners was president, for an accounting and the ap- pointment of a receiver, upon allegations that the president so managed the affairs of the corporation and the partnership as to defraud the latter, and to divert its funds for the benefit of himself and the corporation; the president of the cor- 13 Cella, Adier & Tilles v. Brown, and the mortgagor has conveyed 136 Fed. 439. the premises to a citizen of New 14Politz V. Wabash R. Co., 153 York, the mortgagor is a neees- Fed. 941. sary party to foreclosure proceed- 15 Central E. Co. of New Jersey ings against the latter, if it is V. Mills, 113 U. S. 249, 28 L. ed. sought to charge him with any de- 949; affirming Mills v. Central B. flcieney of the appraised value of Co. of New Jersey, 20 Fed. 449. ■ the land to pay the mortgage debt, 16 Miller v. Sharp, 37 Fed. 161. and the case is not a controversy 17 Under Act Conn. 1878, provid- wholly between citizens of different ing that the foreclosure of a mort- States, and is not removable. Coney gage shall be a bar to any further v. Winchell, 116 TJ. S. 227, 29 L. ed. suit on the debt unless the per- 610 ; aJBrming order Winchell v. sons liable therefor are made par- Carll, 24 Fed. 865. ties; where the mortgagor and mort- iSMahon v. Guaranty Tr. & S. gagee are citizens of that State, D. Co., C. C. A., 239 Fed. 266. 152 ORIGINAL JURISDICTION "' [§ ^4 poration, his partner in the firm and the firm itself.^® In a suit to cancel a judgment the judgment creditor although he has transferred orders by the debtor 'for the payment of the same to him.^" A party who has acquired the right to redeem certain securities pledged by another, in a suit to forecloses the right of redemption thereof j^^ 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 ; ^^ and, it has been said, any person whose interest is so bound up with the others, ' that his legal presence as a party is an absolute necessity.** 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 nbt 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 citizen of the same State as plaintiff, the case could not be removed.^ 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 R. S. §§2325, 2326,' not merely a nominal party, and he cannot be disregarded in de- termining the question of the jurisdiction of a Federal court on the ground of diverse citizen^ip.** § 44. Trustees and other representatives. Where a party sues or is sued as a trustee,^ receiver,* executor or admipistra- 19 Cabaniss v. Eeco Min. Co., C. Zi Band v. Walker, 117 U. S. 340, C. A., 116 red. 318. 29 L. ed. 907. 20 Independent District of Eoek 2S Blackburn v, Portland G-old- Eapids V. Bank of Bock Bapids, Min. Co., 175 TJ. S. 571, 44 L. ed. 48 Fed. 2. 276. . >; ziDanvers Sav. Bank v. Tbouip- §44. 1 Chappedelaine v. Deche- son, 130 Mass. 490. naux, 4 Cranch, 306, 2 L. ed. 629 ; 22 Bailey v. New York Sav. Bank, Bonnafee v. Williams, 3 How. 574, 2 Fed. 14, 18 Blatchf. 77. 11 L. ed. 732; Susquehanna & W. V. 23 City of New Orleans v. Seixas Eailroad & Coal Co. v. Biatchford, (Louisiana), 35 La. Ann. 36. See 11 Wall. 172, 20 L. ed. 179; Dodge First Nat. Bank v. Smith, 6 Fed. v. TuUeys, 144 IT. Si 451, 36 L. 215; Watson v. Evers, 13 Fed. 194; ed. 501; Glenn v. Walker, , 27 Fed. Nulton V. Isaiacs (Virginia) > 30 577; Earp v. Coleman, 28 Fed. Grat. 726. 340; Morris v. lindauer, C. C. ;§44] TRUSTEES AND OTHEE HEPBESENTATIVES 153 tor,3 or a^g ^j^g representative of a class,* and none of the per- sons whom he represents is named in the title of the; cause,^ nor appears to have an interest hostile to such representative ; ^ his , .citizenship, not that of his beneficiaries, nor of those whom he ; irepresents, nor the location of the trust estate,' is to be con- sidered,,^ Where a State sues upon a bond for the benefit of an iiiflividual interested, for the purposes of jurisdiction, the, suit is treated as if brought by that iiidividual alone.* Where a widow A., .54 Fed. 23, 4 C. , C. A, 162, 6 U. S. .^pp. 510; Gill y, St^bbins, Fed., Cas.' ']Sroy5,431 (2 Paine, 4l7); , Adams V. White, Fed. Cas. No. 68; Goodnow V. OaMey, 68 loWa, 25, 25 N. W. 912. But see Mead v. Walker, 15 Wis. 499. It has been said that tlie rule does npt 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. K, Co., 193 Fed. 728, 734. 8Farlow v. Lea, Fed. Cas. No. 4,649, 2 Cinn. Law Bull. 329; Da- vies V. Lathrop, 12 Fed. 353 ; Bris- ienden v. Chamberlain, 53 Fed. 307; Snead v. Sellers, C. C. A., 66 Fed. 371; Pepper v. Eogers, 128 Fed. 987. 3 Childress v. Emory, 8 Wheaton, 642, 5 L. ed. 705; Bonnafee v. Wil- liams, 3 Ho-w. 574, 11 L. ed. 732; Rice V. Houston, 13 Wall. 66, 20 L. ed, 484; Blake v. Mckjm, 103 U. S. 336, 26 L. ed. 563; Continental L. Ins. Co. V. Rhoads, 119 U. S. 237, 30 L. ed, .380; MeEhnurray v. Loomis, 31 Fed. 395; Harper v. Norfolk & W. R. Co., 36 Fed. 102; Banks V. Loveridge, 60 Fed. 963; Popp V. Cincinnati, H. & D. Ry. Co., 96 Fed. 465; Cincinnati, H. & D. R. go,, V. Thiebaud, 114 Fed. 918, 52 C. C: A. 538; Bishop y. Boston & M. R. R., 117 Fed. 771; Laubsoher v. Fay, 197 Fed. 879; , Memphis St. Ry. Co. V. Bobo, 233 Fed. 708; An- heuser-Busch Brewing Ass'n v. Kle- man, C. C. A., 219 Fed. 522; Browne, Fed. Cas. No. 2,035 (1 Wash. 429) ; Dodge v. Perkins, Fed. Cas. No. 3,954 (4 Mabon, 435) ; Car- ter v, Treadwell, Fed. Cas. JCo. 2,480 (3 Story, 25) ; Sill v. Henderson, 14 Miss. (6 Smedes & 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. 1?5; Middleton's Ex'rs v. Middleton (Pennsylvania), 7 Wkly. Notes Cas. 144. 4 Omaha Hotel Co. v. Wade, 97 17. 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. 6 U. S.: V. Myers, Fed. Cas. No. 15,844 (2 Brock. 516) ; Keever v. Phila. & R.' C. & I. Co., 234 Fed. 814 ; Anheuser Busch Brewing Ass 'n V. Kleman, C. C. A., 219 Fed. 522. 6 See supra, § 41. 7 Shirk V. City of La Fayette, 52 Fed. 857. 8 Indiana ex rel. Stanton v. Glo- ver, 155 U. S. 513, 39 L. ed. 243; Maryland v. Baldwin, 112 XT. S. 490, 28 L. ed. 822. Contra, State of 154 OEIGINAL JURISDICTION [§ 44 is authorized to sue to recover damages for herself and her chil- dren because of the death of her husband, the citizenship of the widow is alone to be considered.^ The citizenship of the next friend or guardian ad litem of an infant,^" of a lunatic, ^^ or of a married woman, ^* is disregarded. But where the guardian of an infant,^^ or the curator or committee of a lunatic,^* 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. Notwith- standing a State statute providing that a non-resident could not act as administrator; it was held, that an administrator there appointed was not estopped from showing, upon an application for a removal, that he was a citizen of another State. ^* When a mortgage 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.^* In an action for the assignment of dower, brought in a St^te court by a citizen of Illinois, it appeared that of two defendants 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 author- Ohio V. Columbus & Xenia E. Co., 51; Wilooxen v. Chicago, B. & Q. 48 Fed. 626 ; an application for a R. Co., 116 Fed. 444. mandamus. See Missouri v. Alt, 73 12Ruekman v. Palisade Land Co., Fed. 302; Missouri ex rel. Ralich v. 1 Fed. 367; Meade v. Walker, 15 Bowles Milling Co., 80 Fed. 161; Wis. 499. Jack V. WUliams, 113 Fed. 823, 824. 13 Mexican Cent. R. Co. v. Eck- But see Title Guaranty & Surety man, 187 TI. S. 429, 47 L. ed. 245. Co. V. Idaho, 240 TJ. S. 136. 14 Wiggins v. Bethune, 29 ,Fed. SKever v. Phila. & R. C. & I. 51; Stout v. Eigney, 107 Fed. 545, Co., 234 Fed. 814. 46 C. C. A. 459. 10 Williams v. Ritohey, Fed. Cas. IB McDuffie v. Montgomery, 128 No. 17,734 (3 Dill. 406) ; Woolridge Fed. 105; Memphis St. Ry. Co. v. V. MoKeuna, 8 Fed. 650; Dodd v. Bobo, 233 Fed. ,708. Ghiselin, 27 Fed. 405 ; Voss v. 16 Mangels v. Donau Brewing Co., Neineber, 68 Fed. 947. Contra, In 53 Fed. 513 ; distingushing Stewart re McClean's Estate, 26 Fed. 49. v. Dunham, 115 IT. S. 61, 2^ L. ed. 11 Wiggins V. Bethune, 29 Fed. 329. § 45] CONTROVERSIES TO WHICH ALIENS ARE PARTIES 155 ized 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 plaintiff, 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.^' § 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 inequity, where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars and "is between citizens of a State and foreign States, citizens, or subjects. ' ' ^ A District Court of the United States has original jurisdiction of an action by an alien against a citizen and resident of the State where the suit is brought ; ^ but not, except perhaps in patent, copyright and trade-mark cases,' and under special statutes* of an action by an alien against a citizen of another State who does not reside within the district.^ A citizen of the United States cannot without his consent be sued by an alien in any district which he does not inhabit.^ An action by an alien against a citizen of a State who is or at the time the alleged action accrued was a civil officer of the United States, when the latter is a non-resident of the State where the suit was brought, may be removed.'' A corporation chartered by or under the laws of any of the United States cannot without its consent, be sued by an alien in any district out of the State where it is 17 Band v. Walker, 117 TJ. S. 340, burgh & L. B. E. Co., 210 Fed. 550; 29 L. ed. 907. infra, § 61. § 45. 1 § 24, 36 St. at L. 1087. 6 Ibid. 2 Von Thodorovich v. Franz Josef 7 Ibid. Code § 34. See Jaekson Beneficial Ass'n, (E. D. Pa.) 154 v. William Kenefick Co., 233 Fed. Fed. 911; Suravitz f. Pristasz, C. 130; Colosmo v. Pittsburgh & L. C. A., 201 Fed. 335. E. E. Co., 210 Fed. 550. 3 See infra,' § 62. An alien can maintain a suit' in 4 Ibid. the federal courts against a citizen 8 Galveston, H. & S. A. Ey. Co. only in the district of his residence, V. Gonzales, 151 U. S. 496, 507, 38 unless defendant waives his personal L. ed. 248, 252; Fribourg v. Pull- privilege to be sued only in such man Co. (E. D. N. C), 176 Fed. district. Lehigh Valley Coal Co. 981; McAulay v. Moody (D. Or.), v. Washko, C. C. A., 2nd Ct., 231 185 Fed. 144; Colosmo v. Pitts- Fed. 42. 156' ORIGIN Ali JURISDICTION . [§45 incorporated * even if it operates a railroad in the district where it issued.^ The fact that the alien is a resident of the district where the suit is brought does not give the court jurisdiction! of such a case.^" Where no Federal question was involved, it was held that, when the defendants are citizens of i different districts, they cannot be sued by an alien in any one of them.^^ This rule does not apply to an action to recover the penalty for the importation of contract labor under the Immigration Act of February 20, 1907.1^ Such a suit may be brought in the dis- trict where the alien was to perform the labor.^* :.An alien who has no residence within the United States may be sued by a citizen of one of the United States in the Federal court in any district where he can be served with process;^* So it has been held in suits to enjoin the infringement of patents,''^ as well as in other cases; and even when the defendant is an alien corporation, over which the State statute deprives its, court of jurisdiction ; '® provided that it transacts business within the State, but not otherwise ; ^"^ and also when the plaintiff, is a citi- zen and resident of a different State from that where- the suit is brought.^* ,A non-resident alien defendant, may remove a suit involving the jurisdictional amount, when all the parties on the opposite SAdzenoska v. Erie E. Co., 210 USe Hohorst, 150 TJ. S. 653, 37 Fed. 571; Lehigh Valley Coal Co. L. ed. 1211; Barrow S. S. Co. ,v, V. "Washko, C. C. A., 23i Fed. 42; Kane, 170 U.S. 100,, 42 L. ed. 964; Yanuszauekas v. Mallory 8. S. Co., Carp v. Queen Ins. Co., 168 Fed. C. C. a:, 232 Fed. 132; Vitkus v. 782; Vestal v. Duektown Sulphur' Clyde S. S. Co., 232 Fed. 288; & Iron Co., 210 Fed. 375; B;. G. Lueksinger v. Phila. & Beading Coal Baker & Bro. v. Pinkham et al.j 211 & Iron Co., 232 Fed. 292; Best v. Fed. 728. Contra, Meyer v. Her- Great Northern Ey. Co., 243 Fed. rera (W; D, Texas, San Antbnio 789;' Budris v.: Consolidation Coal Division), 41 Fed. 65. Co., 251 Fed. 673. IB United ■ Shoe . Maoh. Co. -v. Du- 9 Adzenoska v. Erie R. Co., 210 plesais Independent Shoe Mach. Co. Fed. 571. ' (D. Mass.), 133 Fed. 930. 10 Miller v. N. Y. Cent. & H. E. 16 Barrow S. S. Co. v. Kane, 170 B. Co. (to. Mass.), 147 Fed. 771. U. S. 100, 42 L. ed. 964. llMcAulay v. Moody (D. Or.), l? Tierney v. Helvetia Swiss Fire 185 Fed. 144. Ins. Co., 163 Fed. 82. ' 12 34 St. at L. 900, Comp. St. ' 18 Barrow S. S. Co. v. Kane, 170 §4250. U. S. 100, 42 L. ed.'964; Jarowski ISTomkins v. Paterson, 238 Fed. v. Hamburg- American Packet Co.; 879. C. C. A., 182 Fed. 320. §!45] CONTROVERSIES TO WHICH ALIENS ARE PARTIES 157 side of the controversy are citizens ' and residents of the same State of the United States and when the plaintiffs reside ill the distmct vvhere , the s,uit is^ broug'ht ; ^® and it, has been heldi when they reside; elsewhere.^" A resident alien, cannot i when no Fed-i eral question is invplved.^^ It has, been held, that when.a non- resident alien is joii^ed as a defendant with a non-resident cit- izen, o:^ a, different State from,, that of a -resident plaintiff, they may jointly remove the case if the jurisdictional; amount is inr volved ; ^^ but this cannot be done -iyhen the, plaintiff, is not a resi^ dent of the State where the suit is brought.^^ A suit by a State in its own court against an alien cannot , be removed.^* ,, The authorities are in conflict as to whether a defendant, who is a citizen and resident of a different State from that where the suit is instituted, can reinove ari action brought by an alien in the State court. The preponderance of the more recent authori- ties holds that he cannot, whether the alien is a resident,^* or iioii- 19 Copley ;,v. : .MieArtlmr, , ,35 , .Fed. 372. ^ ,,,'', ;,,',, 20 Wind Eiver Lumber Co. v. Frankfort Marine, Accident & Plate Glass Ins. Co., C. 0. A., 196 'Fed.' 340. '■ 21 Johnson v. Moliell, Fed. Cas. No. 7,399 (1 ■■Woolw.'390); Sands v.- Smith, Fed. Cas. 'No. 12,305 (1 Abb. U. S. 368, 1 Dill. 290); Cud- ahy V.' McGeoeh, 37 'Fed.' 1; Wallcer V.' O'Neill, 38 Fed. '374; Eddy v. Casas, 118 Fed., 363; Miller't". New York Cent. & H. R.'B. Co., 147 Fed. 771;' Rotiker v. Crinkley, 113 N. C. 73, 18 S. B. 56. ■ Conti-a, Best v. Great Northern. 'By. Co., 243' Fed. 789. '■' ' • 22Ballin V. Lehr, 24 Fed. 193; where 'the' report does not show whether the alien was a resident or' a nonresident; E'dberts v. Pac. & A. By. &■ NaiV. Co.,' C. C. A., 121 Fed. 785/ 58-' C. C. A. 61, affirming 104 Fed. 577; Ladew v. Teifnessee! Cop- per Co:, '179 Fed. '245. See, also. Bateau r. iBernaf d, 3 Blatehf . ' 244, Fed. Caa. No. 11,579'. Contra, Tracy V. Morel (D. Nebraska), 88 Fedi. 801; Best, y. Great Northern By Cq., 248 Fed^ VSEI (where the alien 'lived in the state where the suit was brought). '' ' 23 Carp V. Queen Ins. Co. (W. D. Mo.) 168 Fed. 782. 'Comira; Ladew V. Tennessee Copper Co. (S. D. Tenn.), 179 Fed. 245, 256. 24 O 'Conor vl Texas, 202 TJ. S. 501j' 25 Kiamenicky v. Catterall Print- ing' Co. (S. D. N. Y.), 188 Fed. 400 (in which the author was coun- sel) ; Odhner v. Northern Pac. By. Co. (S. D. New York) 188 Fed. 507 ; . Sagara V. Chicago, B. I: & P. By. Go. (D. Col.) 189 Fed. 220. These cases follow the' aiialogy of Ex -parte ^'aner, 203 V. S.- 449, 51 L. ed. '264. 'See; also, Petrocbki'no' V. Stuart, Fed. Cas. No. 11,041;' Matter of Tobin, 314 V. S. -506, 53' L. ed. 1061. 'Conitra, Uhle v. Burn- ham, (S. D. N. Y.) 42 Fed. 1 (resi^ denoe not shown); Stalker V. Pull- man's Palace 'Car Co.,. (S. D. Cal.)' 81' Fed. '989 (residence not'Shown); 158 ORIGINAL JURISDICTION [§45, resident,'*® of the State where the suit is brought. Where an alien is a party to a suit in a District Court of the United States, an objection to the jurisdiction founded upon residence may be waived.*'' Where the suit is originally brought in the Federal court, the plaintiif by suing makes such a waiver and the defendant is the only person who can object to the juris- diction on this ground.** Where the suit is originally brought in the State court, the defendant by the removal consents to the jurisdiction of the court of the United States and the plaintiff alone can make such an objection.*® A District Court of the United States, where no Federal ques- tion is involved, has no jurisdiction of an action brought by an alien to enforce a chose in action that has been assigned to him, unless his assignor could have maintained the suit upon the ground of a difference of citizenship.^" The District Courts of the United States can obtain no juris- diction, either originally or by removal, by reason of a diversity of citizenship, when the controversy is between two aliens ; '^ Smellie v. Southern Pae. Co., (N. D. Cal) 197 Fed. 641 (residence not shown) ; Keating v. Pennsyl- vania Co., 245 Fed. 155. 26 Harold v. Iron Silver Min. Co., (D. Col.) 33 Fed. 529; Mahopoulus V. Chicago, R. I. & Pac. Ry. Co., (W. D. Mo.) 167 Fed. 165; Bagenas V. Southern Pae. Co., (N. D. Cal.) 180 Fed. 887; Hall v. Great North- ern Ry. Co., (D. Montana) 197 Fed. 488. Contra, Sherwood v. Newport News & M. Val. Co., (W. D. Tepn.) 55 Fed. 1 ; Creagh v. Eq. Life Assur. Soc, (D. Wash.) 83 Fed. 849; Mor- ris V. Clark Constr. Co., (D. S. C.)' 140 Fed. 756; Iowa Lillooet Gold Min. Co. V. Bliss, (N. D. la.) 144 Fed. 446; Barlow v. Chicago & N. W. Ry. Co., (N. D. la.) 172 Fed. 513; H. J. Decker Jr. & Co. v. Southern Ry. Co., (N. D. Ala.) 189 Fed. 224; Wind River Lumljer Co. v. Frankfort Marine, Accident & Plate Glass Ins. Co., C. C. A., 196 Fed. 340. 27 Infra, § 62a. 28 H. J. Decker Jr. & Co. v. Southern Ry. Co., 189 Fed. 224. See infra, § 62a. 29 H. J. Decker Jr. & Co. v. South- ern Ry. Co., 189 Fed. 224. See in- fra, §62a. 30 Tierney v. Helvetia Swiss Fire Ins. Co., (E. D. N. Y.) 163 Fed. 82. See infra, § 63. 31 Mossman v. Higginson, 4 Dal- las, 12, 1 L. ed. 720; Montalet v. Murray, 4 Cranch,, 46, 2 L. ^d. 545 ; King V. Cornell, 106 U. S. 395, 27 L. ed. 60; Walton v. McNeil, Fed. Cas. No. 17,134; Prentiss v. Bren- nan, Fed. Cas. No. 11,385 (2 Blatchf. 162); Rateau v. Bernard, Fed. Cas. No. 11,579 (3 Blatchf. 244); Hinckley v. Byrne, Fed. Cas. No. 6,510 (1 Deady, 224); Petro- cokinq v. Stuart, Fed. Cas. No. §46] CITIZENSHIP OP NATURAL PERSONS 159 nor when a citizen of the same State as that of the opposite party is on the same side of the controversy as an alien ; ** even if the controversy is separable ; *' nor can they obtain jurisdiction when a State and an alien are parties.^* § 46. Determination of citizenship of natural persons. A citizen of the United States is a citizen of the State in which he permanently resides and has his domicile.^ A man may be a citizen of the United States without being a citizen of any State and consequently have no right to invoke the jurisdiction of the Federal Courts because of difference of citizenship.^ It has been so held when he changes his residence to a foreign country ' or when he becomes a, nomad.* The exercise of the right of suffrage by a citizen of the United States is conclusive evidence of his citizenship.* It has been held, that voting in a party primary, and member- ship in a local political committee, are not conclusive evidence of citizenship.^ The acts of town officers in registering a man as a voter and assessing a poll tax against him are evidence of 11,041; Pooley v. Luco, 72 Fed. 561; Oroseo v. Gagliardo, 22 Cal. 83; BarrowclifEe v. La Caisse Gen- erale (New York), 58 How. Prae. 131. Contra, Liverpool, B. & E. P. Nav. Go. V. Agar, 14 Fed. 615. 88 Hervey v., Illinois Midland Ey. Co., Fed. Gas. No. 6,434 (7 Biss. 103); Watson v. Evers, 13 Fed. 194; People v. Hager, 20 Cal. 167; Davis V. Cook, 9 Nev. 134. But see Bell V. Ohio Life I;qs. Co., Fed. Gas. No. 1,261. 38 King V. Cornell, 106 TJ. S. 395, 27 L. ed. 60. 84 O 'Conor v. Texas, 202 TJ. S. 501, 50 L. ed. 1120; affirming State V. O'Connor, 73 S. S. 1041, 96 Tex. 484; New Jersey v. Babcock, Fed. Cas. No. 10,103 (4 Wash. 344). §46. IShelton v. Tiffin, 6 How- ard, 163, 12 L. ed. 387; Eeynolds V. Adden, 136 U. S. 348, 34 L. ed. 360; Kemna v. Brockhaus, 5 Fed. 762; Winn v. Gilmer, 27 Fed. 817; McDonald v. Salem Capital Flour Mills Co., 31 Fed. 577, 12 Sawyer, 492; Cooper v. Galbraith, 3 Wash. 546; Lessee of Butler v. Farns- worth, 4 Wash. 101, Abb. (XT. S.) 211; Burnham v. Eangeley, 1 Wpodb. & M. 7. 8 Hammerstein v. Lyne, 200 Fed. 165, 172; Hough v. Societe Elee- trique Westinghouse de Eussie et al., 231 Fed. 341; Stein v. Fleisehmann Co., 237 Fed. 679. See supra, § 40. 8 Ibid. 4Pannill v. Eoanoke Times Co., 252 Fed. 910. 6 Eabaud v. D 'Wolf, 1 Paine, 580 ; Sanger, v. Seymour, 25 Fed. 289; State Sav. Ass'n v. Howard, '31 Fed. 433 ; McDonald v. Salem C: F. Mills Co. 31 Fed. 577; Caldwell v. Firth, C. C. A., 91 Fed. 177; Laws v. Flem- ing, 177 Fed. 450; Thompson v. Ward, 199 Fed. 861. 6 Gaddie v. Mann, 147 Fed. 955. 160 originaij jurisdiction [§46 his domicile ,but not conclusive^ "V^otiiig is not indispensable to es;tajblish citizenship.* i ■ , 'Doniieile within a - State by a citizen of the United; States is usually considered to be conclusive evidence of his citizenship , thereof .,?., It .'has been held, that residence alone, which is -not shown to be permanent, . is not conclusive of, i citizenship,^" 'but 7 Be SedgWict, 223 Fed. 655. 8 Sheltdn V. Tiffin, 6 Howard, 163, 185, 12 L. ed. ;387i, 397; Marks v.. Mark?, 75 Fed. ,321i 9 Gilbert v. David, 235 V. S. 561 ; Harding v. Standard Oil Co., C. C. A., 182 Fed.' 421; Delaware,' L. & W. E. Co. V. Petrowsky, C. C. A., 250 Fed. 584; Bjornquist v. Boston & A. E. Co., C. C. A., 250 Fed. 929. , But see Pennill, v. Eoanoke Times Co.;' i'erriek v. Same,' 252 Fed, 910. ' 10 Sheltbn' V. Tiffin,' '6 Howl ' (C. S.),. -163, 185, 12 L. ed. 387, 397; Lessee of Butler v. Farnsworth, 4 Wash. 101, 1 Abb. (IT. S.) 211; Chicago & N. ,W. E. Co. v. Ohle; 117 TJ. S. 123,; 29 L. ed. 837; Eeynolds V. Adden, 136 U. S. 348, 352, 34 L. ed. 3604 361; Kenn^ v. Brock- • haus, 5 Fed. 762; Woolriage v. McKenna, 8 Fed. 650; Sanger y. Seymour, 25 Fed., 289; McDonald V. Salem Capital: Flour-Mills Co., 31 Fed. 577, 12 Sawyer, 492; Rivers V. Bradley, 53 Fed.- 305; Chiatovioh V. Hanchett, 78 Fed. 193; Alabama G. S. E. Co. V. Carroll, C. C. A., 84 Fed. 772,' 28 C.,C.,A. 207; Caldwell V. Firth, C. C. A., 91. Fed. 177; Nichols v.: Nichols, 92 Fed. 1; Blair v.. Silver Peak Mines, 93 Fed. 332; denying rehearing 84 Fed. 737; Hanchett v. Blair, IQO Fed. 817, 41 C. C. A. 76; ,Willinghanl V. Swift & Co., 165 Fed. 223; Harding v. Standard Oil Co., 182; Fed. 421; Sherman v. Southern ,Pa<3;> Co., 192 Fed. 711; Illinois Life Ins. Co. v. Shennehon, 109 Fed, 674, where the party had no dwelling m the State of which she was held to be a citi- zen; but had stored her furniture therein,, while, she was absent ito attend to litigation , in another State, where she owned property and had lived before her marriage to her deceased husband'; Adams v. Shirk, 117 Fed., 801, 55:g.C; A. 25, .(payment of the dues of a resident member in two |Clubs, at, on^ ,ot which the party had a, room, aecom- ' panied' liy 'the maintenance of au office in the same city, the party's wife being absent from both States, insufficient to ; constitute a change) ; Corel V. Chicago, E. I. & P. Ey Co., 123: Fed. i452j (filing a, homestead claim, and the, , construction of a house on tjie „ .land , where another family lived, accompanied by sev- eral! visits, /to, the Territory, remain- ing as long as two months there at one time, is insufficient) ; ' Pond v. Vermont Valley E. Co., 12 Blatchf. 2,80, 293. In Harton v. Howley, 155 Fed. 491, a married man had ' left his wife and child in a house built by his wife, in one State, where' he usually spent Sunday, .paid taxes and voted w,hen) ha laati exercised the right , of ^suffrage; it -mas Held, that he had not' changed, citizen- ship therefrom; although for two years he had been engaged in busi- ne. , It has been said,: that a minor, cannot acquire, a separ.ajte domicile from thait of his father during the latter 's lifg, iCxpept by the emancipation of the child 3,hfi a complete surren(^er ^f the parental I control as to the choice of the domicile.^* A; minor who, has reached the a^e of , discretion ajrid l^as no parents, graij,^- paren^ or statutory g;uardian,^ may acquire a citizenship by dom- icile, in any St^tefor ^t^e .purpose, pf acquiring the righ|;^ to sue in the Federal courts.^ "When a young man leaves the parental home, and strikes out, into, the world; goes to another State; engages in business for a considerable length of timje— the , pat- ural inference would be that he intended to build himself a new hopae, and domieilp, injthe State where he had taken up his resi- dence. So, likewise, if a man of years, overtaken by misfortune -^perhaps reduced from luxury t6 'penury a:nd Want — with no family ties to bind him,' and the hprae of former years has passed from him, and from under his con,trol, in the desperation of his situation abandons the State where these misfortunes have over- taken him, and remains' awsty for a term of years — enters iiito the biisiliess of life with a residence .in a neighboring State— '34^; iilinois' Life Ins. Co. v. She- ,A, 148 ; 1 Jennes , v. Laud?s, 8p Fed. nehon, 109 Fed! 674. , !,^ ' S0,1. , ;,, , ' 'ziWilHamSoh'v.'Osenton, §32! U. . 82]^eKwgbt v. Dudley,, C C. A., §; 6i9; Town- of 'Watertown v. 14^ Fed. 2Q4. , ,, , ,■ Greaves, C. C. A., 112 Fed. 183; 83 AJ^Toolridge v. ,JMcKenna, 8 Fed. Gordon V, Yost, 140 Fed. 79; Fitth 650; where th^ , father,, after , the V. Huff, C. C. A., 218iFed. 17. Con- ,iuoth,er's ,death, had, placed; the chjjid tra, Poppenhauser v. India' Rubber in questifiii' under , the permanent ^Gomb Co.y 14 Fed, 707;'Hatei v. ,(5are,pf ,^er aunt at ]the latter'^ resi- Ferguson, 57 Fed. 959; Nichols v. d^ijee ip, another state. .r„,„ !, Nichols,, 92 Fed. , 1; Thompson v. MBjornquist v. Boston &,4:«..]?. Stalmann, 139 Fed. 93. See.CJomitis Co., Q, fi. A-, 250 Fed., 929, , ,,. . V. Earkeraon, 56 Fed. 556, 22 L. B. ', i ■ ' i i^§] CITIZENSmPj ^P^,, If ^TURAJj PERSONS 1^5 jtlie inference, \yoT;ld ri,aturally a,ris^ tha,t he. ha(J no (iesire or ixitention of longer rpmaining ,ip^ the locality of, ,a.ll .his, mis- fortunes. " ^^^ ,^. . ■, I / . . i, When, the perma,nenti :^esi4eiice^ and citizenship of, a party, at a date shortly before the beginning of the suit, is proved, the presumption is that the same continp.es until, there, is! proof of 'a phange,^^ Byidence that an .alien married in one of ,the.Unij;ed States does notgustify the. presumption that she lost her alienage when there is no proof of the citizenship of her husba.nd.^'' There is no 'preisumption that the president of. a corporation is a citizen of the Sta-te that charjt,er,e4 it.^* , An intention to return tinac- companied by, acts does not restore the former residence after it has been actually changed.*® It has been said that" a mere floating intenljioii of a return after aiccomplishiiig the object for which the change ■\yas made does not destroy the effect of .acjts which would otherwise accomplish a change of citizenship.^" ' ' A man may reside in a State for an indefinite period of time with- out becoming a citizen, but the momdiit a man taKes.up his resi- dence, in a Sta,te diiferent from tliat where he.fprmejtly wa^ domiciled or was- a citizen, with intent and purpose , of making the new place of residence his future permanent home, that moment he loses his former domicile, and becomes domiciled in the, new place; or, in .other words, he ceases ,to be. a citizen of the former, place of residence, and becomes a .citizen of the State of hisadbption."3i 25 Winn v. Gilmer, 27 Fed. 817, Kemna v. Brockhaus,, ' 5 Fed. 762, 818, '819^ I ^"'" ,'"' 763,' '764, 766, 767, per Dyer, J. • 26 Heath v. Austin, Fed. Cas. No. ' " The general nile upon the sub- 6,305 (12 Blatcljif. 32(3) ; .Coliins v. 'jeet of citizenship ,is well settled. City of, Ashland, 112 Fed. i75. It is that, 'in order to give juris- 27 Lehigh "Valley Coal Co. ,v. diction to tie courts of tlie IJnited Wa^hko^.C- p- A.^ 231 Fed. 42. ' States, the citizeiisliip of the party 28 TJtah-Nevada .Co. v. DeLarnar, must be founded on a change of C. C. A.,. 133 Fed. 113. But see domicile, and permanent resideiiee Tbomson-Houstdn El. Co. v. Eleq- in the State . to which he may have trp,se ilfg,.. do!, 155 Fpa. 543;. infra, removed from another . State. , Mere 8 61. residence is prima facie evidence of 29 pacific M. , li. I. Co. v.. Tomp- such change, although when it is kins, C. 6, A., 101 Fed. 53S., ,. explained and shown to have been sodillert v. David, 2$p'.jj'.' ,S. 561. for temporary purposes, the' prp- 31"|^inn,v. Gilmer, ^7 Fed. 817; sumption is destroyed. The 'lAfen- 166 ORIGINAIi JUEISDICTION [§46 The filing of a declaration of his intention to become a citizen 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.'" "When a iiaturalized citizen 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 iona 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 jurisdie- tion of the Federal courts, and may maintain an action in the Cisouit 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 bona fi^e 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 has 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. Eangely, 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, a/rwmo revertendi, to give color of jurisdiction in a suit in the State of actual resi- dence, it may not avail; but, where there is not actual change of resi- 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 E. Co., 12' Blatehf. 293. So, to effect a change of citizenship from one State to another, there must be an actual re- moval, and actual change of domi- cile, with a bona fide intention of abandoning the former place of resi- dence and establishing a new one, and the acts of the party must cor- respond with such purpose. * * * The question is one of mixed law and fact. * * * It is apparent that the circumstance of the plain- tiff 's return to Milwaukee in De- cember was one which if unex- plained, would tend to throw doubt upon the permanency of the alleged settlement in Minnesota. But if her return was for an object merely temporary, as she alleges, ihen her domieilary status in that State would not be aif eeted. ' ' See Adams V. Shirk, a 0. A., 117 Fed. 801.' SZBaird v. Byrne, Fed. Cas. No. 757 (3 Wall. Jr. 1) ; Maloy v. Du- den, 25 Fed. 673; Creagh v. Equit- § 46] CITIZENSHIP OF NATURAL PERSONS 167. took. an oath of allegiance to th,e sovereign of a foreign country, 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 cit- izen, and could not remove a case because of alienage.^' 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.** A citizen of Cuba is an alien, and may sue in a District 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.*® The ' fact that , a plaintiff has changed his residence and citi- zenship, for the purpose of bringing suit in the Federal court,*® or to prevent a removal to such court,*'' does not divest it of jurisdiction if the change has been actually made, unless there is intention of return.** It has been said that the burden rests upon the defendant to prove that the removal of the* plaintiff from one State to another was for the purposes of suing in the Federal Court.*^ 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 can- not,;, but must confine their testimony to facts from which his citizenship can be inferred.*" able Life Assur. Soc, 88 Fed. 1; 37 Chicago & N. W. E. Go. v. Ohle, Lanz V. Randall, 4 Dill. 425; Oroseo 117 TJ. S. 123, 29 L. ed, 827, V. Gagllardo, 22 Cal. 83. 88 Morris v. Gilmer, 129 TJ. S. 33 Fish V. Stoughton (New York), 315, 32 L. ed. 690; King v. U. S., 59 2 Johns. Cas. 707. Fed. 9; Kingman v. Holthaus, 59 84 See Comitis V. Parkerson, 56 Fed. 305; Allen v. So. Cal. Ey. Co., Fed. 556, 22, L. E. A. 148. 70 Fed. 370; Chambers v. 'Pr^nee, 35 Betaneoiirt v. Mutual Eeserve 75, Fed. 176; Ala. G. S. B. Co. v. Fund Life Ass'i^, 101 Fed. 305; Carroll, C. C. A., 84 Fed. 772; SuUi- Davis y. Dixon, 184 Fed. 509. van v. Lloyd, 213 Fed. 275; Pan- 36 Briggs V. French, 2 Sumn. ^251, nill v. Eoanoke Times Co., 252 Fed. 2'S5, 256; (jatlett v. Pacific Ins. Co., 910. See Williamson v. Osenton, 1 Paine, 594; Cooper v. Galbraith, 232 U. S. 619. 3 Wash. 0. C. 546, 533; Case v. 39 Davis v. Baltimore & O. B. Co. Clarkey 5 Mason, 70 ; Bobertson v. 256 Fed. 407. But see Sulliv3,n v. Carson, 19 Wall. 94, 106, 22 L. ed. Lloyd, 213 Fed. 275. 178, 180; Wiemer v. Louisville MEucker v. Belles, C. C. A., 80 Water Co., 130 Fed. 244. Fed. 504. 168 ■ OBIGliSTAL JtFRISDlCTION ■ [§'46 An' allegation^ that a party is "a eitiz&n of London, England/' was heldj'toibe insufficient toshow that 'he was an alien.*^"iBut tfee-averniient'that'the complainants were '''all of Gognae, Francsj aild citizens of the' Republic of France/' was held' to be' suffi- cient.** Wh6re plaintiffs sued as executors ; it Wa,s held ito be insufficient to allege "that said plaintiiSs, as such exeeuiiors, are eitizeris of the State of New York;" *^' but, 'it: was held, to be sufficient tO' allege that the defendants,' ''as they are the qualified; executors ofthelast will'and testament of James Brown, de- ceased; were^ each and a:ll, at the time 'of the commencement of this suit," and still are, citizens of the State of New York j sind that the defendant John S. Schiiltze, also a qualified executor, of the last will' and testament of James Brown, deceased, was theii, and 'Still i^, a citizen of the State of New Jersey.'':** - ' It' has bisen hfeld: that an allegation that the plaintiff was a citizfen 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.*.V 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 ibeen^ made*® without any intention'to return.*'' It' has -been held : that where; the. plaintiff, allegds that he is 'a citizen of a certaih State, and that 'fact is denied, the burden of proof "is upoil the defendant.** i ^ '41'Stuartv. Eastoii, 156 TJ. S. 46, Clarke, 5 Mason,- 70; Robert^n- v. 39 L. ed. 341. Cfl Rondot v. Tp. of Carson, 19' Wall,: 94, 106, 22 L. ed. liogers, 'C. C. A., 70- Fed. ''676; 178, 180. Jennes V. liarndes, 84' Fed. 78;' s. c'., 4T Morris v. Gifmer, 129 'TJ.' S. 3l5, 85 Fed. 801; But'ste Betaneourt v. 32 l. ed. 690; Ala.'G. S. E. Do.' v. Mntuai; E: F. ' L. Abs 'n, 101. Fed.' Carroll; C. C. A., 84 Fed. 772 ■ King- '"'^- ' . ' "-'•■'• man V. Holthaus, 59 Fed'. 30S; King 42Sennessy 'T. Eiehardson' Drug ^ ^ S.,!'^9 "^ed. ,9; 'Ch^mb'ei;s"v. Co!,- 189 TJ. S. '25,47 L.> ed. 697; ^".' ■■'j'J <'<> ,_.'' .,,'. 1 ' '„ «'Amory v. Amory, 95 U. S. 186, iT^'n ^"^^ J ^' '" "^ ■ 24-t.ed.428. ' . ' Cal. Ey. Co., 70 Fed, 370. ,^ •44 0dbke.v. Seligman,'7Fed. 263. *» Gil'per v., , Grand , Eapida, 16 45 Clausen y. American 'Ice: Co., ^^d, 708;. Foster, v, Cleyelan4, . C, 144 Fed. 723. ■ C. & St. L. ,Ey,,;Co., 56 Fe4,,434; 46Briggs v.Tren'oh, 2 Sumn. 251, Sheppard v. 6myeg,..14', How., 505,- 255, 256; Catlett v.' I*aclfic 'Ins. Co., 14 L.ed. SaS; Nat,, M'./ Ace, Ass'n, i Paine, '594; Coopfer, v. Galbtdiffli, v. Sparks, 0. Ot,A., -83 Fed. 225; 3 Wash. C. C. 546, 553; :Gase v. Adams v. Skirt,' 117 Fed.. 801, 55 i§47] CITIZENSHIP OP CORPOBATIONS i § 47;r Corporatioiis. For the purposes of the jurisdiction of a District Court of the Uiiit'ed States, either originally or upon 'removal; a 'corporation is treated as if it were a citizen and resident of 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.^ The same presump- tion exists as regards a corporation' chartered by or under the laws of a foreign country.^ A national banking association, so far as' the jurisdiction of the 'Federal courts' is concerned, stands "in the same position as a citizen of the State in' which it is located.' A corporation organized by Or iinder an Act of Con- gress when not a National Bank cannot invoke or be subjected to the Federal jurisdiction because of difference of citizenship.* Where stockholder's in a. corporation are themselves joined with or against ;it as parties to a suit, the presumption does not ex- 'd'." C. 'a.' 25; "Hill V.' "Walker, C^ C. A., i67'i'ed. 241. ' ' ' ! §47. l.Lou&.MiUe, C. & C. B. Co. V, :Ij9tspn, ,2 Hojy. 497, 11, L, e.d,^ 353; Marshall v. Baltimore & Q. E. ^ Co.', 16 How. 3l4, '14 L. e'd. 953;' MuUer v. Dows, 94 IT. S. 446, 24 L. ed. 208; 'Steamship Co. v. Tflg- man, 106 U. S. 118; St. Loiiis & St. F. By. Co. v. Jam«s, 161 tf. 8. 545, 562, 40 L. ed. feo2', 808; Soutli- ern' By. 'Co. v. Allison, 190 TJ. S. 326, 47 li. ed. 1078; Barney v. Globe Bank, i'ed. Cas. No., 1,031 (5 Blatchf. 107) ;, Terry V. Impe- rial, Fire Ins. , Co., i'eA. Cas. No. 13jS38 (3 Djll. 408) ; Purcell v. British Land & Mprtgage, Co., 42 Fed. 465; Western Union Jel., Co. V.' Didiinson, 40 Ind. 44^; Stanley V. Ohieago, E. I. & P. By. Co., 62 Mo..i508; BarrowelifEe :v. La Gaisse '6eh6rE(le . des Assurances < Agrieoles et des' Assurance Contre L'lncehdie (New York), 1 City Ct. B; 151; Shelby v. Hoffman (Ohio), 7 Ohio St. 451; Fox v. American Casiialty & Security Co. (Pennsylvania),' '12 Pa. Co. Ct. B. 207, 2 Pa. Dist. .E. , 158. See Statg corporation as party , in .Federal courts, by Judge F.. E. Baker, l3 Am. Law Beviei^, 7. 2 'Merchants ' Cotton'-Press & Stor- age Co. V. Insurance Co. of North America, 151 U. S. 368, 38 L.' ed. 195; Terry v. Imperial Fire Ins. Co., Fed: i Ca;s'. No. ■ 13,838 (3 'Dili, 408) ; Purcell V. British Land & Mortgage Co., 42 Fed. 465; Barrowcliffe V. La Caisse Generale des Assurances Agricoles et des Assurance Contre L'Incendie (New York), 1 City Ct. B. 151; Baumgarten v. Alliance Assur. Co., iP'Fed. 301'; IJriited States V. N.Y. & O. S. S. Co., 216 Fed. 61. , ' ,y 8 24 St at L. p. '554; Petri, v. Commercial Nat. Bank, .142, TJ. S. '6i4^,i35L..ed. 1144; First Nat, Bank V. Forest, 40 Fed. 705; Farmers' Nat., Bank v. McElhinney, 42 Fgd. 101; stttjM-o, §.28.; '4 Bankers Tr. Co, v. Texas & Pac. By. Co., 341 II- S. 295. 170 ORIGINAL JURISDICTION [§ 47 jtend to them in their individual capacity, although it still exists so far as the corporation is concerned.* The location of the principal or usual place of business of the corporation is immaterial ; ® even if all of its business is transacted, and all of its offices and places of business are sit- uated, outside of the State where it was chartered ; ' and al- though it was organized for the purpose of doing business in other States.* No such presumption exists in the ease of a corporation which it is proved was organized for the sole purpose of bringing a controversy, in which its members were interested, within the jurisdiction of a District Court of the United States.* But where it appeared, that the incorporation was in good faith for the purpose of taking title to land in another State in order to facilitate the sale of the land, although it was stipulated that a further reason was to afford an opportunity to invoke the juris- diction of a Federal Court in any litigation begun by or against the land owners ; ^^ for several years prior to the suit in the Fed- eral court, the original owner had discussed with counsel the ■ advisability of conveying the land in question to a corporation, in order to be able to avoid individual liability for money bor- 5 Dodge V. Woolsey, 18 How. 331, of stockholders and directors were 15 L. ed. 401; Bacon v. Eobertson, held. 18 H-GW. 480, 15 L. ed. 499; Doctor 8 Baughman v. National Water- V. Hari-ington, 196 U. S. 579, 49 L. works Co., 46 Fed. 4. ed. 606; Hanchett v. Blair, 100 Fed. 9 Lehigh Mining & Mfg. Co. v. 817, 41 C. C. A. 76; Dodd v. Louis- Kelly, 160 XJ. 8. 327, 336, 40 L. ed. ville Bridge Co., 130 Fed. 186; Utah- 444, 447; Miller & Lux v. East Side Nevada Co. v. De Lamar, 133 Fed. Canal & Irrigation Co., 211 U. S. 113, 66 C. C. A. 179. 293, 53 L. ed. 189; Southern Eealty 6 Phinizy v. Augusta & K. E. Co., Investment Co. v. Walker, 211 IT. S. 56 Fed. 273; United States v. S. P. 603, 53 L. ed. 346; Gelde,rs v. Hay- Shotter Co., 110 Fed. 1. good, 182 Fed. 109, directing the 7 Pacific E. E. V. Missouri Pac. disbarment of the attorneys unless Ey. Co., 23 Fed. 565. within sixty days they dissolved the In Gould V. Texas & Pac. Ey. Co., corporation and dismissed the suit 176 N. Y. App. Div. 818, held that brought in its name. Phoenix-Buttes such a corporation was a domestic Gold Min. Co. v. Winstead, 286 Fed. corporation in the State where the 855. See Kreder v. Cole, C. C. A., charter authorized the incorporators 149 Fed. 647 ; § 363, infra. to meet, and it maintained its execu- 10 Doane v. California Land Co., tive oflSces where annual meetings C. C. A., 243 Fed. 67. § ,47] CITIZENSHIP OP CORPORATIONS 171 rowed to use in its improvement; ^^ and where the property af- fected by the litigation was a small portion of that conveyed to the corporation ; it was held : that the fact that the sole consid- eration for the transfer was the stock of the company, which had no other assets than that received from the grantors, whose cit- izenship was not diverse from that of the defendants, did not pre- vent the maintenance of the suit by the corporation in a Federal court.** No such presumption exists in the case of a de facto corpora- tion, which never acquired a legal existence.** A State is not considered to be a citizen nor can it invoke or be subjected to the Federal jurisdiction because of diversity of citizenship.** A municipal corporation, such as a city,** a town- ship,** or a county,*'' or a public board, composed of public of- ficers, which has been created a corporation by the State laws,** is considered to be a citizen of the State within which it is situ- ated, 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 au- thority to sue and be sued and to make and to use a common seal, without any allegation that it was a corporation created by and existing under the laws thereof, was held to be insufficient to sustain the jurisdiction of the Federal court on the ground of di- verse citizenship, where the citizenship of the trustees did not appear.** Where a corporation, originally created in one State, after- lllrviae, Co. v. Bond, 74 Fed. 849. Fed. 498; Chicago, B. I. & P. Ry. 12 Slaughter v. Mallet Land & Cat- Co. v. State of Nebraska, C. C. A., tie Co., C. C. A., 141 Fed. 282. 251 Fed. 278. 13 ^astonia Cotton Mfg. Co. v. -W. 15 Ysleta v. Canada, 67 Fed. 6 ; L, Wells Co., 128 Fed. 369, 63 C. New Orleans v. Sheppard, 10 La. C. A. Ill; reversing 118 Fed. 190; Ann. 268. Cowles V. Mercer County, 7 Wall. 16 Loeb v. Trustees of Columbia 118, 19 L. ed. 86; Ysleta V. Canada, Tp., Hamilton County, Ohio, 91 67 Fed. 6; Loeb v. Trustees of Co- Fed. 37. lumbia Tp.^ Hamilton County, Ohio, IT Cowles v. Mercer County, 7 91 Fed. 37; New Orleans v. Shep- Wallace, 118, 19 L. ed. 86. pard, 10 La. Ann. 268. ISThonias v. Board of Trustees. 14 Title jJuaranty & Surety Co. v. 19.5 U. S. 207. State of Idaho, S40 tT. S. 136; De- 19 Thomas v. Board of Trustees, seret Water, Oil & Irrigation Co. v. 105 U. S. 207, 49 L. ed. 160. State of California, C. C. A., 202 Its ORIGINAL JUJJISDICTION [§47 wards becomes compulsorily a corporation of another State, in order to extend its powersj'and it is ,en,'gaged in intelrstate com- merce; it is treated for the purpose of jurisdiction, as composed of citizeii's of the State which' first gave it corporate existence;*" but it was said that unless the case arises under the Constitution and laws of the United States, the FecJeral court cannot adjudi- eate its rights or liabilities as a corporation of a Statej citizens of which are upon the other side of the controversy.^^ Otherwise, where a corporation is chartered 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 wiere the suit is brought ; ^* but the rule may be different where the cause 20 St. Louis & St." F. Ky. Co. v. James, 161 U.''S. 545, 40 L. ed. 802; Louisville; N. A. / & ■ C. Ey. Go. v. Inouisyille Trust Co., 1?4 U. S. i553,,i 43 ;L. ed. 1081; Southern Ry. iCo- v. Allison, 190 U. S. 326, 47 L. ed. 1078; 'reversing 129 N'. C. 336,. 40 S'.' E. 991'; Callahan v. Louisville & N.. R. Co., 11 Fed. 536;iMissouri! B?ic.r Ry. Co. V. Castle, \2^i: II. ,8. . 541, 56 L. ,|e,d.,875j Atlantic. Gpasti , Line E. Co. y. Dunning, C. C. A., 166 Fed. 850; 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 Ey. Co. (North 'Carolina), 36 S.'E. Rep. 701, (overriiliilg: Bebliam'v. South- ern Bell Telephone & Telegraph Company, l26 N: C. 83i; 36 S. *E. 269; Layden V. Knights of Pythias, etc., 128 N. C. 546, 39 S. E. 47; aid Mathis V. Railway Cbm^anyj 53 S. C: 24e,"257); Wilson v. Southern Ry. Co. (South Carolina), 41 S. E. 971; ■64 S. C. 162; affirmiiig ' oil i-e- hearin^ judgment, 36 S. E, '701; Mathis V. Southern Ry. Col (South Carqlina},,31 .S. E, 240; Calvert v. Sbuihern 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. edl 204.- , £1 Louisville, N. A. & Cj Ry. Co. V. Louisville Trust Co., , 17;4 XT, S. 552, 563, 577^ 43 L. ed. 1081, 1087, 1092. 82 Ohio &i M. R. Co. V. Wheeler, 1 Black, 286; 17 L. ed. 130; Rail- . .way Co. V. Whitton, 13 WalL 270, ;.20 L. ed. 571; Mujler v. Dowa,.94 U.S. 444, 24 L. ed. 207; Memphis & C. E. Co.|V. Alabama, 107 U. S, 581, 27 L. ed. 518; Patch v. Wabash Railroad Co., 207 U. S. 277, 52 L. ed; 304;. Minot V. Philadelphia, W. & B. E. Co., Fed. Cas. No. 9,645 (2 Abb. U.' S; 323); affirmed in"l8 Wall. 206, 21' L. ed. 888; St. Louis, A. & T/H. E. Co. v: Indianapolis & 'Sf. L. R. Co.; VeA. Cas. ' 'No. 12,237 (9'Bikl44); Horne v. Bos- ton & m! R. R., 18 Fed. '50; Col- glazier v. Loiiisvillfe, N. A. & C. Ry. Co., 22 Fed; 368; Union Trust Co. v. Rochester & P. R. Co., 29 Fed. 609; Page v. Fall River, W. & P. E. Co., 31 Fed. 257; Phinizy V. A.ugusta & K. E.' Co., 56 Fed. 273 ; Taylor v., Illinois Cent. If. '(jo., 89 Fed. 119- 8;tnith y. New York, New Haven & H. Railroad,, 9is Fed. 504; Walters v. Chicago, B. & Q. if. i^ CITIZENSHIP OP COEPORATIONS 1*7^' of action alrose in anqtlier State Cqg,il04 Fed. .337;, Bqstpn .&i M9,jiie S. E. y. Hurd, 108 Fed. .ll^^.^^, C. d: "A. 615, 56 L.R.A. 193; Goodwin V.' New York, N. &.' & H. Bi Col; ' ' 124'iFM."358; Gtio&vim v. Boston' & ■ Ml, . E. , B.V • 127' Fed. 986 ; Alabama i &„^. Mfg. .Co, .-y. .Eiypr^ale Gfittpn , , Mills, C. G.,A„ 127 Fed.^4j9,7; Lake,,,, sWe & M. S. Sy.'Co. VI, Eder, G. ' d'iA..'l74 Ped..'9W; St.'ll<)uiS'& S'.'' F;'E; Co;*. Cross; '171 Fed:' 480;"' Fairfield, V.' Gteat Falls Mfg.- Co., 1,75 Fed. 305; PeterboroHgjh . J?, i iB; i v.^;poston & ,M. B, B., 239|:pied,:97,;,,|, Lewis y. Maysville & B. ,8. E. Co. (Kentucky); 7^ 'S."W.' '526, '25' Ky. ' ' Law. Eep. 948; Illinois Cent. B. Co. y.' Hibbs (Kentucky Ji'j ',78 'S. W.\ ip.6, 25 Ky. Law Eep. 18^^'9; Hornp^' v!'Bosi!on & M. Eailroad,''62 NTH. 454; Allegheny County v. Cleveland & 'P. 'e. Co., 51 Pa. (i'P.'f,; 'Smitliy,' 2'Si8, 88 Am. Bee. 579; Baltimore & O. B'. Co. y, PittsBurg, Wj'&K. :R.. Co.',"l7 W.' Va. 812. This distine- tioh was noted by the court in Southern Bailway Co. v, Allison, 190 U. s; 326j 33^, 338, 47' L. ed. i078, 1083,^1084;' 'iJut Tvithout statipg whether it woiild te followed in the future." . Conirii,, Nashua & Lowell E.' E: Corp, v, Boston & L. E. E. Corp., 136 ir. S. 3f56. 34 L. ed. 363.' ', -I . ■ ' li y ■• ' ■ . ■ i In that case, two railroad corpora- tipris ^ith the same name, having their junction at the State line, were ' respectively incorporated tjy the laws of ■ New Ha.mpshire and Massachusetts, the New Hampshire cOfporatibri being the flr?t created. The'ir subsequent .consolidation was first authorized by a law of Massa- chusetts," which, by its terms, did not take effect -until authorized by a'iaw of If ew ■ Hampshire and ac- cepted' by tne' stockholders, both of from that where it is sued.'*' wliieli; authorities were , isubsequently o,lj)l^jin^d. I It |Was .held: |^ha;t tte, consolidated company, a New Hamp- shire corporation, might sue' an- 'bther Miasisa'dhiisytts' cbrjporatioh for an accounting, iti a' 'suit in ■ the Cir- (5ui(i Court . o< the .United States. ifor thes^ r)istriet of Ma,s8acl;usetts.. pf this x;ase, Judge Lowell said : ". Thp Supremie Court," although, perhaps no't with' 'coiiipUte' logifcal cbhsisteri- oy, ' treated ' ithe iplaintifp ■ as ■ tofeing a (ElorpQliatip^i created ';inl liS^Sj'-'' the datqipf the^ fii;st, incorporation prior to the, consolidation, , "by New Hampshire and by New Hampshire alone. .* , * * TJie two corpora- tions of New Sanipshire andMassa- chuse^ts, operated together, , was Held, i^' the Supreipe Oo.urt, to con- stitute * * * an anomalous unib|n of two cprporations created fo;c dis- tinct piirposes, by different States, which had been united as to .their biisiness and property,, but not as to their corporate existence. " Good- win' v.^K'y!, .iif!,'.H. & H, E. Co., 124 ;^ed.' 358^ '3^65.' ^lie statutes of Alabama required a .railroad com- pany, . previously uicorporated m Tennessee, to open books in Alaba- ma for the subscription to its capi- tal stock, in qrder to afford citizens of that State, an opportunity to sub-, scribe .to p.' specified prpportipn ojf the same, and also provided that elections J for directors should be held at the same time , in bpth A.la- bama and Tennessee; the court held, that by reason of the particular^ la^n- 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- 174 ORIGINAL JURISDICTION [§47 Where the foreign corporation, subsequent to the injurjr which caused tte suit, becanie incorporated in the State where the in- jury was done, it \vas held that, for'the purposes of the suit,' it should be treated as a foreign corporation.** Where there is a merger, one corporation remaiining in. existence and the other being absorbed in the sanie, the company continues to be a cit-. izen of; the same State as that of the f ormer.^s j^ g^se of a con- solidation of edrpbrations chartered by different States; if the consolidation creates anew corporate entity and is made under the laws of a single S^ate, it seems that the new company mugt be trea1;ed'.a^ a citizp^ij. of .such State alpne.*^ Jf such consolida- tion, however, is made under the laws of - both the States, then, it has beeA held : that the 'consolidated corporation is to be treated a:s a citizen 'of both, and when sued'in ieither State by a citizen thereof, it has no right of rempval; *'' but that the District Court ton R.R. Co. V. Alabama, 107 V.S. 581, 584;' 27 t ed. 518, 5l9. ', "" , 23 Patch V. Wab'asli ' Kailroak tip., 207 Xt'. S. 277, 2'83, '52 t! ed. 204, 207." ' 24Mowery y. Southern Ey. Co., 129 N. C. 351,' 40 S. -E. 88'."'' ' [ 25 Lee V." Atlantic Coast liine E. Co., iSo Fed. '775; -sphere the Jaet that the transaction left a large pari 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 "{hat the formier com- pany should continue in existencel 26 Westheider v. Wabash Eailroad Co., 115 Fed.' 8'4(j/ 'There th'^'for- mer corporations conveyed all their property to the new compariyj 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 railroads was situated in Illinois ; ' biit the! hew corporation was Beld to have been incorporated under the laws of Ohio and to be a citizen thereof, 'arid, not a citizen of Illi- nois. In Patch V. Wabash Eailroad Co., 207 U.,S. 277, 52 L. ed. 204; W'inn V. Wabash Railroad Co., 118 Fed. 55, it was held, that the same consolidated . company remained, in each of tlie, ^States where one of its constituents was situated, a citizen. fheieoi,. For a case deciding which of two corporations of the same name was the plaintiff 's employer see Postal Telegraph^Cable Co. v.. Darrow, C. 'G, A., 250 Fed. 5'81. 2"? MuUer v, Dows, 94 TJ. S. 444, 24 £. ed. 207 ; Patch v. Wabash Eailr,Qad Co., 207 IT. S. 277, 52 L. ed, 204; Chieag(^ & W. I. E. Co. v. Lake Shore & A' S. Ey. Co., 5 Fed. 19, io' Biss. l£!2; Johnson y. Phila- delphia, W. & B. R. Co., 9 Fed. 6; Paul, v. Baltimore & O. & C. E. Co., 44 Fed. 513; Goodwin v. New York, N. TJ..& H. e: R. Co., 124 Fed. 358,: Goodwin v. Boston & Maine E. E., 127 Fed. 986; Wasley v, Chicago, R. t.,& P. Ey. Co., 147 Fed. 608; Cummins v. Chicago, B. & Q. E. Co., 193 Fed. 238; Case v. Atlanta & C. A. L.' Ey. Co., 225 Fed. 862. But see Nashua & Lowell E. E. Cor- t\m CITIZENSHIP OF CORPORATIONS 175 of the United 'States has jurisdiction of a suit -against it in one of these States by a citizen of anothei?..*^ > •- i ■ ■>.■ ! . :A genejral law enabling foreign corporations of a certain class to transact business in a State upon jcompliance with eertaim con- ditions, or, a special enabling law 'to such effect, does' not! prevent a coi-poration which cqmplies with the same from removing a suit against it because of; a difference of , citizenship- between it and a citizen of such 'a State.*^ "' i. ; !■ ■ The, appointment of an attorney in a foreign State with a con- sent that process served upon him shaJl bind the corporation ; ^ or the operation of a railroad in another State under a, lease,'^ pbratiou v. Boaton & Lowell E. E. Corporation,' 136 U. S. 356,' 34 L. eel.' Th& Bostoti & Albany Railroad 'Company, has been held to beia cor- poration of both Massachusetts and New York so as to justify the ' as- sessment 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. 28 Mai-shall V. Baltimore & 0. R. Co., 16 Howard 3U, 14 L. ed. 953; Wheeling v. City of Baltimore^ Fed. Gas. 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, 0. C. A., 69 Fed. 753, 30 L.E.A. 250; Smith V. New York, N. H. & H. R. Go., 96 Fed. 504; Winn vi' Wabash R. Go., 118 Fed.. 55; Wasley v. Chi- cago, R. I. & P. Ey. Co., 147 Fed. 608. ' ■ 29 Owen V. ' New York Life Ins. Co., Fed. Gas. "No. 10,631 (1 Hughes, 322); Seott v. Texas Land & Cattle Co., 41 Fed. 225; Amsden v. Nor- with Union Fire Ins. Soc; 44 Fed. 515; Amsden v. Traders' Ins. Go. of Chicago, 44 Fed. 515 ; Goodlbe v. Tennessee Coal, Iron & E. Co;, 117 Fed. 348; Morton v. Mutual Life Ins. Co., 105 Mass. 141, 7 Am. Rep. 505; Fisk v. Chicago, E. I. i& P. R. Co. (New Y;ork), 53 ' Barb. 472; Wcswliall V. Atlantic, ' etc., Ins. ' Co., '8..PMla. a06. . ■•'• ' ' -"'i .. 90 Lee v. Aetna Ins.Co.iiFed. Cas. No. 8,181; Hatch v. Chicago, E. I. & P.E. Co.,Fed.. Gas. No.:i6,204 (6 Blatchfl '105) ; ' Oweii v. New York Lisfe Ins.'Coi, Fed.' Gas. No. 10,631 (1 Hughes, 322); FaleS v.- Chicago, M. & St. P. Ey; Co., 32 Fed. 673; Scott' 'vT ' Texas Land & Cattle Co., 41 Fed. 225; Amsden v. Norwifeh Union Fire Ins. • Soc, 44 Fed. 515*; Amsden >v. "Trdders' Ins. Co.- of Chicago, 44 Fed. ^15; Morton' v. Mutual Life' Ins. Co., 105 Mass. 141, .7 Am. Eep. i505; Fisk v. 'Chicago, E.' I. & P. R. Co. (N. Y.), 53 Bar'b. 472 ; Stevens v.; Phoenix Ins. Co., 41 N. Y. 149; Newhall V. Atlantic, etc;, Ins., Co., 8 Phila. 106; Fox t; Alher- ican' Casualty Ins. &' Secilrity Co. .(Penn8ylva;nia), 12 Pa. Co. Ct.' E. 207il2iPa. Dist. E. 158. ' ' ' ■ «1 Baltimore & O. R. R. Co. v. Koontz, 104 U. S. 5,'2eiL. ed. 648; Callahan v. Louisville & N. R. Co., 11 Fedv 536; Crane v; Chicago' & N. W. Ey. Co., 20 Fed. 402; afarmiig Chicago & N. W. Ry. Co. v.; Ctane, 113 U.. S. 424, 28 L. id. 1064; Wil- kinson V. Delaware, L. '■& W.'"R. Go:, 22 Fed. 353 ; WUlsoh v. Winchester & P. R..C6., 99 Fed. 642, 41 C. C. A. 176 OEIGINAIi JURISDICTION [§•47 or under a purchase from a domestic corporation ; **or the filing, in the office of the Secretary of State, of duly authenticated copies of dts charter and'by-laws.;^*oir, it has been held; the sub- sequent acceptance I of a paper described as a charter issued by th"e Secretary of State and reciting a merger; union and consoli- ^dation of a domestic "with a foreign eorporaition; '* or the legis- lative recognition Of the existence within a State of a corpora- tion chartered elsewhere;'* or even the legislative grant of a charter making' it a domestic corporation, when such grant is iiot accepted :'®'do' not make a foreign corporation a citizen of such other State and cut off its right of removal: ' ■' ")iVhere parties sued, or were supd,,as corporations, a,nd there ^as no averment that they were created, by, or organized under, the laws of any specified, State, it was held to be insufficient to allege that one was a eitizeti of a certain State; *' or that it was' ,215; affirming decree, Wilson v. "Winchester & P. E. Co., 82 Fed. 15,; fTreadway y. Chicago & N. rW. Ey. Co., 21 Iowa 3,51. ' I' 88 Williams v, Missouri, K. & T. Ey. Co., Ted.. Gas. No.t17j728.. (.3 Dill., 267) ; Antelope Co; v. Chitago, p. & q. E.:Co., 16 Fed, 295; Chi- cago, St. P., M. & 0.lEy. Coi V. Da- kota County, 28 Fed; 219; Conn i v. Chicago, B. & Q. E. Co., 48 Fed. 177 ; i : distinguishing ' ' Fitzgerald v. Missouri Pae. Ey. Co., 45 Fed. 812; Morgan v: East Tennessee & V. E. Co., 48 Fed. 705. SB-Pennsylvania E. Co. v. St. Louis; A. & T. H.'E. Co., 118 U. S. 290, 30 L. ed. 83; St. Louis, A.' & T. H. E. Co. V. Pennsylvania E, E. Co., 118,' U., S. 630,^30. L. edJ 284; Southern Ey. Co. v. Allison, 190 XJ. .8. ) 326, 47 L. ed. 1078 ; reversing 129.:N. C. 336; Chicago, L &■ N. P. E. Co.' v. Minnesota & N. W. E. Co., 29 Fed. 337. 84Jjeei v., -Atlantic Coast Line E. Co., 150 Fed. 775, 792. •, SB Martin 's Adm 'r v. Baltimore & Ohio E. Co., 151:11. S. 673, 38iL.ed. 311; An/telope Go. v. Chicago, B. & Q. E. Co., 16 Fed. 295; Moore v. Chicago; St. P., M. & O; Ey. Co., 21 Fed. 817; Taylor County Court v. Baltimore & O. E. ,Co., 35'Fed-. 161; Baltimore & 01 ,E. Go; v. Ford, 35 Fed. 170; following I Baltimore & O. E. Co. V. ; Harris, 12 Wall. 65y 20 L. ed. 354; Chapman iv; Alabama G. S. E.I Co., 59 Fed. i370; MarkWood V. Southern Ey. Co., 65 Fed. 817. 36 Pennsylvania R. Co. v. St. Louis, A. & T. H. E. Co., 118 U. S. 290, 30 L. ed. 83; Nashua* Lowell E. E. Corporation v. Boston & Lowell E. E. Corporation, 136 XT. S. 356i;34 L. ed. 363. i ,' 37 Thomas v. Board of Trustees of Ohio State University, 195 ' XT. Sji207, 49 L. ed. 160; Lonergan v. Illinois Cent.' E. Co., 55 Fed. 550; Frisbie v. Chesapeake & O. E. Co., 57 Fed. 1 ; De Loy v. Traveler 's Ins. Co., 59 Fed. 319 ; American S. E. Go. V. Johnson, 60 Fed. 503; Winkler V. ChicagB & B. I. E. Co., 108 Fed. 305; DalttJh v. Milwaukee Mechan- ics' Ins. Co., 118 Fed. 876;' Knight V. Lutcher & Moore Lumber Co., 136 '§48] CITIZENSHIP OP ASSOCIATIONS 177 ^' 'duly "established by law,: having its 'principal place- of busi- ness'' iri a specified State,** or that it "claims to be" a corpora- tion organized under the lavsis of a specified State, as a company of a spedifled character.** An allegation that a party wais' a Corporation under the laws of the State of Virginia, and a citi- zen of Virginia, and ' a resident of the western ■ district thereof, was held, to be sufficifent.*" A' stipulation that the plaintiff 's assigiior was duly incorporated and existed accompanied by the articles of incorporation was held to be sufficient to establi' i that it. was organized undcF the laws of the State named in the complaint.*^ §48*:>Uiuncorporated stock companies and associations. There is no presumption as regards the citizenship of members qft uniijGorpoEated jpint stock (companies, even where, the law under, wl),icll they were organi2;ed authorizes them to sue and.lje sued in the name of one or more of their officer^ j an,d where pne ,of them,,!? a party there is no,,dlvgr^ty,of ,ei,ti,zensJiip,of all the parties on the opposite i^ide of t;h,e controversy.^ The same .rjile applies to .voluntary associations, such as trade unions, which are n,o|; incorporated.* ; , , Fed; 404. Contra, Oakey v; CDm- mareial & Eailroad Bank,. 14 La„ O. S. ^ ,^15,; , , Cruarantee Co. of North America v. First Nat. Bank (Vir- ginia), 28 8. B. 909, 38 New 'York & New England B. E. (So. V. Hyde, C. C, A., 56 Fed. 188, 191. ' 39 Lowiisdale v. Gray 's Harbor Boom dp'; ll?' Fed. 983. ' 40 Mathieson Alkali Works V. Mathieson, C. C. A., 150 Fed. 241. 41 Piedmont Carolina Ry. Co. v. Shaw, 223 Fed. '975. .'§48. 1 Chapman v^ Barney, 129 IJ. S. 67/;' Dinsmore v. Philadel- phia & R. E. Co., , Fed. Cas. No. t,92l ; Jewish Colonization Ass'n v. Solomon & Germanski, 125 Fed. 994. Contra, Maltz v. American Express Co., Fed. Cas. No. 9,002 (1 Flippin, 611); Fargo v. Louisville, N. A. & C. fiy.' Co., 6 Fed. '787; Fed. Prac. Vol. 1—12 Baltimore & O. E: ■ Co.' v. Adams Express Co., 22 Feid. . 404; Whit- man y. Hubbell, 30 ^e^, 81; Sajan- ders V. Adams Express Co., 136 Fgd. 494; Spencer v. Patey, C. C. A., 243 Fed. 555. See Eosenfieid y. Adams Express Co. (Louisiana), 21 La. Ann. 233. All these cases arose under the New York statute. But see Bpatner v. American Express Co., 122 Fed. 714; where '{lie treai ■ '■" I '■ '. .' ' .-I 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- feud for the benefit of. all. 2 A. R. Barnes & Co. v. Berry, 156 Fed. 72; Irving y. b'oiiit Dist., Council of New York, &c., of United Brotherhood of Carpenters, &c.j 180 Fed. 896. 178 ORIGINAL JUBISDICTION [§ 49 § 49. Partnerships. There is no presumption that the mem- bers ,of a partnership, whether gen(jral or limited, are citizens 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 authorizes them to sue and be sued in the firm name.^ It was so held in a State where a partnership was considered to be a legal entity,* and as to limited partnerships organized under the Michigan,' New York,* and Pennsylvania ^ statutes. Where a copartnership was sued alone by its firm name under section 3468 ot the Iowa Code, authorizing a suit to be brought either against a partnership or its members, or both, the members of the firm not beilig named in the plaintiff's petition, which a;lleged the defendant to be a cor- poration, 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.^. § 50. Under grants of different States. Where there is a controversy between citizens of the same State claiming laiid under grants of different States, it seems that the District Coul't of the United States has jurisdiction irrespective of the amount involved.^ Where one party claimed land under a grant of New Hampshire made when Vermont was a part of that State, and the other under a grant from Vermont made after their § 49. 1 Great Southern Fire Co. v. Jones, 177 XJ. S. 449, 44 L. Proof Hotel Co. v. Jones, 177 IT. S. ed. 842 ; reversing, 86 Fed. 370, 30 449, 44 L. ed. 842; H. L. Bruett & C. C. A. 108; and over-ruling: Co. V. P, Oi Austin Drainage Ex- Bushnell v, Park Bros. & Co.,. 46 eayator Co., 174 Fed. 668, under Fed. 209, Ca,rnegie, PMpps & Co. v. Iowa statute; Empire Biee Mill Co. Hulbert, 53 Fed. 10, 3 C. C. A. 391, V. K. & E. Neumond, 199 Fed. 800; 10 U. S. App. 454; Andrews Bros. Columbia Digger Co. v. Eector, 215 Co. v. Youngstown Coke Co., C. C. Fed. 618. A., 86 Fed. 585. In all these eases 2 Empire Eice Mill Co. v. K. & the partnership was organized under E. Neumond, 199 Fed. 800, Louis- Pa. Act of June 2, 1874 (P. L. iana state. As to the Ohio statute, 271'). see Irvine y. Church, 227 Fed. 252. 6 Ralya Market Co. v. Armour & 3 Fred Maeey Co. v. Maeey, 135 Co., 102 Fed. 530. tea. 725^ 68 C. C. A. 363. § 50. 1 See Holt on Concurrent 4 Jewish Colonization Ass 'u v. Jurisdiction, § 60 ; In re Hohorst, Solompn'& Germanski, 125 Fed. 994. 150 U. S. 653, 66Q, 37 L. ed. 1211, 5 Great Southern Fire Proof Hotel 1214; In re Keasby & Mattison Co., § 50] UNDER GRANTS OP DIFFERENT STATES 179 separation, it was held that the controversy arose bet\yeen per- sons claiming lands under grants of diferent ^tates.^ 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.' It was held: that the Federal courts did not take jutisdiction of a case between citizens of the sa:me States, where the defendant claimed the land in dis- piite under a grant by the State ' of North Caroliria, 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 North Carolina to perfect titles^ which, before the separation of the States were inaccurate and imperfect.* Um 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, ease. because the other party cl-aimed under a grant from another State.* , - , .; . ., ; , In a suit between citizens of the same State claiming land under grants of different States, a party who resides in another district may be there served.^ Where, after the decision in such a suit between citizens of dif- ferent States, the Supreme Court of the Uhitied States in a suit between: the States had decided to the contrary, a bill of review of the decree in thp former suit was dismissed, when filed by a speculative purchaser from the pariies who had been unsuccess- ful against a person who had for a valuable consideration .bought; the land from the successful party.'' And it was later held th^t the former decision was res adjudicata against a suit in the Dis- trict Court of the State where the Supreme Court had held that the land was located.* • 160 U. 8. 221, 230, 40 L. ed. 402, 6 Fergnsbri v. Babedek Lumber 405. and' Land Co., C. C. A., 252 Fed. ZPawlet V. Clark, 9 Craneh, 292, 705; see infra, §166. 3 L. ed. 735; Colson v. Lewis, 2 7 Hopkins v. Hebard, 235 U. 8. "Wheat. 377, 4 L. ed. 266. , 287. 3 Colson V. Lewis, 2 Wheat. 377, 8 Ferguson v. Babeock Lumber 379, 4 L. ed. 266 and Land, Co., C. C. A., 252 Fed; 4 Thompson v. Kendriek 'a Les- 705. see, 6 Tenn. (5 Hayw.) 113. 6 Shepherd 's Heirs v. Young, 1 T. B. Monroe (17 Ky.) 203. i8o ORIGliSTAL JURISDICTION [§'51 § 5i. Ancillary jurisdiction. After a Federal court lias acquired jurisdiction, tliirough tlie existence of the necessary dif- ference of citizenship between the original parties, ancillary proceedings may be therein instituted, although parties upon the different sides of the controversy are citizens of the same State an^ there is no o^her ground of Federal jurisdietiofl.^ The q^estijon is not whether the proceeding is supplemental and ancil- lary, or is independent and original, in the nonienclature of the rules of equity pleading, but whether it is supplementary land, an- cillary, oriis to be considered entirely new and original, in the sense which the courts have sanctioned in establishing; the line which i divides the jurisdiction of the Federal courts from that of the State courts.* Thus, not only can a bill of revivor or a sup- plemental bill,* or a cross bill,* be maintained in a Federal court which had jutisdietion of the original litigation ,- but so can' a bill to enjoin the prosecution of proceedings therein'* or else- where* "at law or in equity,'' or for set-off,* or a bjU to i'e- § 51. 1 Dunn v. Clarke, 8 Pet. 1, 8 L. ed. 845; Clarke v. Mathewson, 12 Pet. 163, 9 L. ed. 1041; Freeman V, Hpwfi, 24 Blow. 450, 460, 16 L. ed. 749, 752; Mipnesota ^p. 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;S8 L. ed. 145; Pacific B. of Mo. V. Mo. P. E. Co., Ill U. S. 505, 522, 28 L. ed. 498, 504; Dewey v. W. P. G. C. Co., 123 IT. S. 329, 31 L. ed. 179; Gumbel v. Pitkin, 124- TJ. S. 131, 31 L. ed. 374; Seymour 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. See Hume v. City of New York, C. C. A., 255 Fed. 488. 3 Clarke v. Mathewson, 12 Pet. 164, 9 L. ed. 1041. 4 Morgan's La. & T. R. & St. Co. V. Texas Cent. Ey. Co., 137 TJ.. 8. 171, 34 L. ed. 625. See.mfra, § 201; Central Trust Co. v. Bridges, 57 Fed. 753. 5 Sherman Nat. Bank v, Shubert Theatrical Co., C. C. A., 247 Fed. 256 ; Venner v. Graves, C. C. A., 255 Fed. 686. 6 St. Louis-San Francisco Ry. Co. V. McElvain, 253 Fed. 123 ; see Ven- ner V. Graves, 255 Fed. 686. 7Bradshaw 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. Ca^f Creek OU & Gas Co., 140 Fed. 507; Campbell at al. v. Golden Cycle Min. Co., 141 Fed. 610; Loy V. piston, C. C. A., 172 Fed. 90. 8 Loy V. Alston, C. C. A., 172 Fed. 90. i'5ii ANtitLLARY ' jtjBlSDICTioN 181 straifiot* regulate,® or to set aside,^" or to modify,^^ or to obtain a' judicial ' (joiistructi'on,^* or to enforce by injunlction,^*' soire facias,^* levy of a: tax,^* or otherwise,^® or to protect ^' a judgment 8 Dunn V. leiark, 8 Pet. Ij 8 L. ed.i.^|t5 J. Freeman, iV. Hqwe, ^4 How. 450, 4ej0J ,16 L.^ ed.; 749^ 752; Jones v. Andrews, 10 'Wall. 327, 1^ L. «d. 935'; Krippendorf v. Hyde,' llO' U. ' 8.' 276, 28 L. ed. 145; Johnson v, qifl^jstiaja, 125, U,iS. .642, 31 L. ed. 820 ; Lang v... Choctaw, Oklahoma & Gulf E. Co., C. p. A., 160 Fed. 355; liby V'Alston, C. C. A.i 172 Fed.' 90.. '•: , ' . . lo;t^aei%.E. of Mp. v. M;o. P.E,, Co., Ill U, S.'505, 522, 28 L. ,ed. 498,' y 04; 'Foster v, Mansfield,', C. & L.'M. B. Co., 36' Fed. 627; s. c, 146 ' XJ. S. 188,. 36i L. ed. '899; Carey v.i- Houston & T.i.C. By., Co,,, 161 TJ, 8. 115, 40 L. ed. 638; Maitland v. Gibson, 79 Fed. ,136: Lacanagrues v.'Chapins, 144,p'. 'S.' 119, 36 L.'ed, 368; Broadis V. Broadis, 86 Fed, 951 ; tadd , y. West, 55 Fed. 353 ; fiill y. iCuhlmaii; "io^ C. A., 87 Fed. 4^8; McDonald, y. Seligmans, ^,81 Fed, 753 ; , ,Bichards,on\ y, , Loree, ^.C. C. A.., 94 Fed.,',',375; O'Connor v. 0''Connor, 146 Fed. &94; ];^ang v. Choctajy, Oklahoma^ |fc Gulf E., Co., b. C. A., 160 Fed! 355; Loy v. Als- tqn, C.,C, A., 172 Fed. 90. Where an action was brought upon the award, gf an arbitrator, it was held that a ^ujt ^o set aside, the award for fraud was ancillary to the same, bi^t that the. court could ifot thus obtain jurisdiction . to bring in a stranger tp the former action, who was a ,citizen pf the same S|tate 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. Heeht' V. iYoughiogheny ' & Lehigh Coal Co., l,63,^pd, 812,1 11 Thompson v. ^chenectady Ey. Co.,'i24''Fed.'2*7i'' 12 Minnesota Co. v. St. Paul Co., 2 i Wall. 609, 17 L. ,ed. .886;. Jenks , y. Bre;wst,er, [9,6 , ,Fe)i. 625 ; ,Jjang y. Choctaw,, Oklahoma fc.Gulf E. Co., c'c' a!.'; 166' J'ed. t'SS-Loj v. Al-' ston, C. C. A., 17& Fed; 90. 19 Eailroad Co. v. ; Chamberlainy ,6i Wjall. ,'^48, 18 L,,ed. 859; Eoot;V. Woolwprth, 150 U. 8. 401, 37 L.,ed. 'il23l- Eiverdaie Cotton' Mills vV Ala. &'Ga. Mf^. Co., 198 U. S. 188, 49 " L. ed.ia008; Wabash Eailroad Co. y. ,A,dplWt ! College, .208 :TJ. S, 38, 53, 52 L. ed. 379, 385. But see Ala- bam^ ^.. Gr, Mfg. Co. y. Eiyerdale Cot,t,on Mills, C. C. A-, 127 Fed. 497. liPvillman's 'p. C. Co., v, Wash- burn^' 66 Fed!, 790 ;^s. c. in C. C,.,a1, 76 Fed. 1005; Lafayette County v. Wonderly, C. C.'a!,'92 Fed.' .313. IB Preston v. Calloway, C. C. A., 1§3 F^d.^i9;. Maitland y. Gibson, 79 Fed. 136.;.. Brun y.,Mann, C. C.' A., 12"l.b'.A.(N.S.) 154, 151 Fed. ,145, 149.^ ., !i 16 Cushman y. Warren-8charf As- phalt Paying ' Co., C/d' A., 220 Fed, 857,, (a suit to enforce payment of an assessment levjed pursuant to a writ of mandamus awarded by the Federal Court). Lang y. Choctaw, Oklahoma, & Gulf E.,Co., C. C.\,A., 160 Fedf 355;,Loy y! Alston, C. C, A., 172 Fed., 90. But see .COT,tral Trust Co.y. (^rahthan^, 83 Fed. 540, Where creditors brought a class-suit to, administer^ in equity the amounts due the ' eorporatipn from stock- holders within the territorial juris- 182 ORIGINAL JURISDICTION [§51 or4ecrpe of, or a bond" given to, or an attachment," or execu- tion,*" issued by,,,a Fedpral court ; even where other incidental re- lief is prayed,^^ and 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 example, one of ejectment** or, it seems, when authorized by the State practice, in aid of a judg- inent at law ; *' a bill by a stranger to a suit to enjoin a sale by the marshal of property which he claims to be his,; ** a bill to de- termine the manner in which the proceeds of a judgment or decree shall be distributed, at least when th6y have been paid into court,** and a bill in the nature of an interpleader.** , In such a suit the fact that a new party, is made plajntiff or defendant whose citizenship would have defeated an original bill by the same plaintiff is ilo obj.ection to the jurlsdictiori.*' A, bill to enjoin proceedings in a District Court of the United States was there maintained although an indispensable party defendant was one, a suit against whom the Federal court had previously remanded because of the insufficiency of the matter diction, it was held tliat, ancillary to the jurisdiction which was thus obtained, the court might in an an- cillary bill enter a decree against a stockholder whose liability was less than $2,000. Eobertson v. Con- way, C. 6. A., 188 Ted. 570. 17 Ferguson v. Oniaha & S. W. R. Co., C. C. A., 227 Fed. 513, (a bill to protect the purchaser at a foreclosure sale). Lee Line Steamers v. Robinson, C. C. A., 232 Fed. 417, (a suit to set aside the assignment of a judgment) ; Ross V. Miller, C. C. A., 252 Fed. 697, (to set aside a release of a judg- ment). 18 Lamb v. Ewing, 56' Fed. 269 ; Leslie v. Brown, 95 Fed. 171. l9Lant V. Manley, C. 0. A., 75 Fe'd. 627; Davis v. Martin, C. C. A., 113 Fed. 6; Hatcher v. Hen- drie & Bolthofe Mfg. & Sy. Co., C. 0.' A., 113 Fed. 8. 20Lant v. Manley, C. C. A., 75 Fed. 627 ; Davis v. Martin, C. C. A., 113 Fed. 6. ' 21 Hill V. Kuhlman, C. C. A., 87 Fed. 498. ' 22Ulman v. Clark, 75 Fed. 868; 23 See Mutual Res. Fund Life Ass'n V. Phelps, 190 V. S. 147, 47 L. ed. 987. ' "' ' ' ' 24 Davis V. Martin, C. C. A., 113 Fed. 6. 25 Myers v. Luzerne County, 124 Fed. 436. ' 26 Sherman, Nat. Bank v. Shubert Theatrical Co., 247 Fed. 256. 27 Ferguson v. Omaha & S. W. R. Co., C. C. A., 227 Fed. 513; 8t. Louis-San Francisco Ry. Co. v. Me- Eivaiii, 253 Fed. 123; Venner v. Pennsylvania Steel Co., 250 Fed. 292; Sherman Nat. Bank v. Shubert Theatrical Co., C. C. A., 247 Fed. 2,56. § 51] ANCILLARY JURISMCTION 183 in dispute.*' A bill for the ]*eformation of a policy of insurance is ancillary to an action upon such policy.''* An 'original bill or a petition, to foreclose: a mortgage,'" or a mechanic's lien,'^ or other lien'* upon a railway or other prop- erty, or upon the proceeds 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 ; althougli it brings in new parties whose citizenship would have defeated the juris- diction had they been joined in the original bill." But where the court had no jurisdiction to appoint the receiver it cannot obtain jurisdiction by his seizure of the property.'* ^ So may a suit to partition, the property.'* Ancillary juris- diction includes the power to hear and determine all questions respecting the title, the possession, or the controlj of property in the custody of the court ; '^ 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 ; ''' and irrespective of any difference of the citizenship of 28 Virginia-Carolina Chem. Co. v. Kansas City P. & O. E. Co., 115 Home Ins. Co., C. C. A.j 113 Fed. 1. Fed. 367. As to the jurisdiction 29 Bosenbauiii v. Council Bluffs by cross-bill, see also Everett v. Ins. Co., 3 L.E.A. 189, 37 Fed* 724; Independent School District, 102 Abraham v. North G. F. Ins. Co., Fed. 529 ; Brooks v. Laurent, C. C. 3 L.B.A. 188, 37. Fed. 731. A., 98 Fed. 647; Mississippi VaiUey 80 Morgan's.!/. & T. E. cSfc S. S. Tr. Co. v. EaUway Steel S. Co., C. Co. V. Texas Cent. Ey. Co., 137 U. C. A., 258 Fed. 346; infra, §§201, S. 171, 34 L. ed. 625; Farmers' L. 608. & Tr: Co. v. Houston & T. C. Ey. 33 Infra, §201. Lilienthal v. Mc- Co., 44 Fed. 115 ;; Carey v. Huston, Cormiok,; C. C. A., 117 Fed. 89. T. & C. E. Co., 52 Fed. 671; Comp- 84 Primes Chemical Co. v. Fulton ton V, Jesup, 68 Fed. 263; Toledo, Steel Corp., 254 Fed. 454. St. L. & K. C. Ey. Co. v. Conti- 36 City pf New Orleans v. Howard, nental T. B. Co., C. C. A., 95 Fed. C. C. A., 160 Fed. 393. 497. 86 Wabash Eailroad Co. v. Adel- 31 Central Tr. Co. v. Bridges, C. bert College, 208 U. S. 38, 53, 52 C. A., 57 Fed. 753. L. ed. 379, 385. 32 Blake v. Pine M. I. & C. Co., 37 Julian v. Central Trust Co., C. 0; A., 76 Fed. 624; Central Tr. 193 U. S. 93, 48 L. ed. 629; Wabash Co. V. Benedict, G. C. A., 78 Fed. Eailroad Co. v. Adelbert College, 198; Cent*al Tr. Co. v. Carter, C. 208 U. S. 38,:53, 52 L. ed. 379, 385. C. A., 78 Fed. 225; State Tr. Co. v. 184 OBIGINAIj tJlURISDICTION [■§51 the parties, a District Court of the United States may entertain. a bill, to restrain parties claimiiig' liens from seeking to enforce the same against the property elsewhere than in such "District Gourt.*^ When property! has been seized by a marshal of the United States,' the Federal court may take jurisdiction, by re- moval, of a proceeding in a State court to enjoin the marshal from proceedings under the writ.'* There is no ancillary juris- diction of a suit to foreclose a mortgage upon a line that has been in the possession of Federal receivers of a street railroad system', who have been operating the same under a lease which they have electfed to surrender; when they have offered to return the property to the lessor.*" : ■ ^ After a Federal court has appointed a 'receiveir, ifc^has an- cillary jurisdiction over all suits brought by him irrespective of the citizenship of thfe parties and of the amount involved.** He canjftot, however, remove into such a court all suits brought against him.** It has been held at circuit that a suit pending against the corporation at the time of the recei^fership may; on the petition of the receiver, bte removed into the Federal court. 38 Julian V. Central Trust Co., ISS TJ. 'S.'93;' Wabash Bailroad Co. V. Adelbert College, 208 TJ. S; 38, 53, 52 L. ed. 379, 385.' ■' 39 Frank v. Ifeopold & Feron Co., 169 Fed. -922] 40 Guaranty Ir. Co. v. Second Ave. E. Co.; 165 Ted. 487. « White V. Bwingj 159 U. S. 36, 40 L. ed. 67; Pope v. Louisville, N. A. & C'Ry. Co., 173 TJ. S. 573, 43 L. ed. 814; Cbhnor v. Alliga-tOr L. Co., 98 Fed.' 155; Bowman v. Har- ris, 95 Fed. 917;' Alexander v. So. Home Bldgi & L. Ass 'n, 120 Fed. 963 ; Hamptdii Eoads By. & El. Co. V. Newport News & 0. P. Ey. & :EI.. Go., 131 Fed. '534; 'Gunby v. Armstrong, C. C. A., 133' Fed. 417; Cooper V. Newton, 160 Fed: 190; Hume V. City of New York, C. C. A.y 255 Fed. 488; Hollander v. Heaslip, C. C. A., 222 Fed!' 808; 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 injun'etioni' to restrain the enforcement of a State ■ statute re- ducing the dhai-ges for thfe trans- portation of ' passengers or freight. Trust Co.' of America v.' 'Chicago, P. & St. L. Ey. Co., 199 Fed. 593; that a Circuit Court of the TJiiited States would not take jurisdiction of a suit,' by a receivfer appointed by a Federal coUrt, in another Cir- cuit Court; unless the matter in dis- pute exceeded the jurisdictional amount. Sullivan v. Swain, 96 Fed. 259.'. ■•" . . ir ■ ;/: 42 Gableman v. Peoria; Decatiir & Evansville Ey. Co., 179 IT. 8. 835, 45 L. ed. 220'; Baggs v. Martin, 179 TJ. S. 206, 45 L. ed. 155; swpra, §§ 5, 24,' 37, im/ra, §§ 537, 538. 1^51] ANCILLARY JURISDICTION 185 at least wbem' the plaintiff hais intervened there, although origi- nal jurisdiction over the same 'COuld not have been entertained:** 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 iby ancillary or supplemental plead-, iiig, even though jurisdiction 'would be lacking if said proceed- ings had been originally and independently prosecuted.** It has been held that a pcTSon, whose feitizensMp, if an original party, would have deprived the court 'of jurisdiction, eahnoti intervene when 'the court has possession of no fund or proceeding in which he is interested.** " . Where in a suii' to [foreclose a mortgage to secure its bonds, issufed'.by a corporation the Federal court had made a foreclo- sure sale without any reservation and distributed the proceeds for the beneifit of other holders of rights or liens; meanwhile, by independent proceedings in the State Courts, a judgment had b^en' rendered against the same company because of its guarantee of' bonds issued by another andsueh judgment had been presented and registei^ed as a claim in the Federal court because it was con- tingent at the date set for proving claims there ; it was held that the Federal court had no ancillary jurisdiction of a suit to have such State judgment impressed as' a lien on the property which it had sold.** It has been held: that pending a foreclosure suit a bill to enjoin' the sale of shares' of the capital stock of the defend- ant, not covered by the mortgage, is notahcillary to the former suit ; although the defendant has the equity or redemption there- in ; *'' that where a railroad had' been sOld under a decree of fore- 4»Eice V. Durham Water Co., 91 ancillary bill had paid the expense Fed. 4-33. ■ > ^ . : of the defense to the former, suit);. 44Eouse V. Letcher, 156 IT. S. 47, Venner v. Pennsylvania Steel Co., 49,' 39 L. ed. 341, 342; Second ISTat. 250 Fed;' 292, (a puTChaser pe»dertte Bank v. New York Silk Mfg. Co., lite), contra, Ferguson v. Omaha & Fed; Cas. No. 12,601 a; New 'Ifork S. W. R. Co., C. C. A., 227 Fed. Silk Mfg. Co. V. Second Nat. Bank; 513, (a bill to protect tie purchaser 10'' Fed. 204. See Hekderson v.' at a 'foreclosure' sale), liifoode, 49 Fed."887 ; infra, % 258^. 46Hamer v. N: T. Eys! Co., 244 4BSeligmari v. Santa Rosa, 81 U. S. 266. " ' Fed; 524; United El. S. Co. v. La. 47 Raphael v. Trask, 194 TJ.' S. El.'L. Co., 68 Fed. 673; G. & C. 272, 48 L. ed. 973',' s.' o. 118 Fed. Merriam Co. v. Saalfleld, 241 U. S. 777. ' !' ■ ' ■■'' ■ 22, (where the defendant to the ' ' ' 186 ORIGINAL JURISDICTION [§51 closure by a Federal court such court had no jurisdiction over a subsequent suit to restrain the enforcement of a State judgment, of ejectment obtained by a plaintiff who was riot a party to the foreclosure ; ** that after judgment in ejectment, which awards a writ of possession, the court has no jurisdiction, of an applica- tion by the marshal or other officer to whom the writ is addressedi, seeking instructions as to the performance of his ministerial duties, when there are adverse claims of strangers to the suit; *' that a Federal court after formal judgment has no jurisdiction, independent of a difference of citizenship, to enforce an agree- ment under which the same was entered, when the construction! of the judgment is not in question:*" , It, has been held: that where the original : proceedings are 'dismissed, the ancillary pro- ceedings fall with such dismissal, even though such, dismissal is voluntary by the plaintiff,*^ and that upon the authorized sur,- i^ender of property by Federal receivers to i a State receiver, the Federal court loses jurisdiction of a suit previously begun to foreclose a mortgage upon the same, when. there is no diversity of citizenship, hetween the parties.** But that the discharge of the receiver does not compel the dismissal of an ancillary suit brought by him against a stranger which may be continued by the person who has bought the assets.*^ A creditor's bill, be- tween citizens of the same State founded upon a decree in ad- miralty has been held not within the jurisdiction of a Federal; court.** It has been held at Ci;rcuit that a bill cannot thus be. sustained, irrespective of the i citizenship of, .the parties, , when filed to set aside for fraud, subsequent to its entry, the decree of the Federal court or a contract affecting such decree ; ** nor when filed to set aside for fraud a stipulation and decree in a former .suit, the defendants to the bill being neither parties to 48 Central Trust Co. v. Grantham^ 53 Keith Lumber Co. y. Houston 8,S Fed. 540. Oil Co., C. C. A., 257 Eed. 1., , •; 48 Dickinson v. Huntington, C. C. 54,Winter v. Swinburne, 8 Fed, A., ,185, Fed. 703. ... i; 49, , ;See. Provident Savings .S,oe.,, v. BOStillman v. Combe, 197 TJ; S. Ford, 114, U. 8. 635, 29, L. ed. 261; 436, 49 L. ed. 822, Metcalf v. , Watertown, 128 U. S, 61 Venner v. Graves, C. C. A., 255 586, 32. L. ed. 543; supra., M 24, 39. Sed. 686. BSYeatraan v. Bradford, 44 Fed: 52 Guaranty Tr. , do. v. Second 536., -, Ave. R. Co., 171 ped. 1020. See 8. C, 165 Fed. 487. § 51] ANCILLARY JURISDICTION 187 the former suit nor the personal representatives of such par- ties, but ti"ustees created by a defendant to such suit aftei- the decree, and where none of the property affected by the former' suit was within the custody of the court;''® hbr when filed against defendants to a former decree and a'thii-d party to whom it was' alleged that lands, the subject matter of the former suit, were conveyed prior to the commencement of the same."'' After a final decf ee granting damages for the injury to a street railway by the coristruction of anothet railroad, where the jurisdiction had attached because a constitutional questibn was involved, Mr. Justice Brewer refused to takd jurifedietioii of a supplemental bill tp enjoin the construction of the fival rail- road upon other grounds,' none of which presented a Federal -question.''* Conversely, therie is a similar limitation upon the jurisdiction of 'thei Federal courts. This is well explairied in the foUbwiilg extract from an opihipia by Bradley, J. : " " The question pre- .serited with regard to the jurisdiction of the Circuit Court is, whether the, proceeding, t'6 prbcure iiullity or the former jiidg- menf in such a case as the present is or is not in its nature a sep- arate suit, or whether it is a supplementary proceeding^ so coh- nected with the original suit as to form aii incident to it, and sub- stantially a continuation of it. If the proceeding is merely tan- tamount to the eommbn -law practice df moving to set aside a judgment for irregularity, or to a writ of error, or to a bill of review, or an appeal, it would belong to the latter categoryj'and the United States court could not properly entertain jurisdic- tion of the case.*' Otherwis'e, the Circuit Courts of the United States would become invested with power to control the pro- ceedings . in the State pourts, or v^ould 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. ''Oh 56 Balstpn V. Shai^pn, bl Fed. 702. 89 Graver v. Faurot 64 Fed. 241; See ^qwles V. First Nat. Bank of Little Bock Ey. Co. v. Burke, 6|6 Platta,bfirgh eit al., 133 Fed.' 846. Fed. 83; Hall y. Ames, p, C. A., i90 B7 Xnglo Florida P. H. Qo. v. Mc- Fed. 138. But see Northern Pac. Kibben,, 65 Fed,. 5^9i ' See! Mont- %. Co. v. Kiirtizmp, 82 Fed. 241; goiriery v. McDermott, 99 Fed. 502. QUeens Land & Title Co. v- Kings 5» Omaha H. E. Co. v. Cable T. County Tr. Co., 255 Fei 222. W. Co., 33 Fed. 689. 138 . ORIGINAL JUEIS9IPTION. [p 51 the.oth^ kand, if,tbe proceedings are tantamount to a- bill ip equity , to set aside a depree for fraud in.tte, Qbtaining thereof, then they constitute an original and independent, proceeding, and, aceording|tp,the doctrine laid down in Graines v, Fuentes,*' thejca^e might, be within the cognizance of the Federal courtp. y.hedisliinction.betTiireen the two classes of cases may be some- what nice, but it may be affirmed to exist. In the pne class there would be, a mere reyi^ion of errors and irregularities, or of the legality apd , correctness of the, judgments and decrees^ of the .State courts,,, and in the other elassthe investigation, of a nejvy case arising ;upon, new facts, ,a,lt,bough .having rela,tion to the valid|ty,pf , an ,actiaal judgment, or decree, or the .party's right to claim any bpneflt by reason thereof .' '®^ A suit to make the judgment or decree of a Stata court the judgment or decree, respectively, of the Fedei-ial cpurt can be in,aintained at commpnlaw^^;and in equity.®^ The Federal court may take jurisd,iction o£ a creditor's j bill to enforce a judgment pf t|ie,, State court in the same district,®* Proceedings SjUpple- mentary tp Wecution, Wfider the , judgment of a State ,court ^jUthorized. by State statutes against a judgment debtor or Jihird pei"spns cannot be instituted in pi- reiripved tp^the Fcderja],, courts ; ai],thpugh a creditor'^ bill may be.®^ A petition, after judg- ment in a State, ; opurl;, by plaintiff in ejectment tP have, the d;e- fend^nt's,, damages allowed to. him, is ,a n^ere incident to , thp ejectment suit and, the Federal courts can, .take. np_ jurisdiction jP,f , it.?? It, has ibpen held that a .bill cannpt be maintained to 60 92 tr. S. 10, 23 L.ed. 524; Of. eiBairorw v. Hunton, 99 U.S.-80, rArrowsmithi v. Gleason, 129 XJ. S. Glenn, 56 ,:ped.< 372, ,.-, ,^ ,|,,,, 86, 32 L. qd. 630; Eqbb V. Vo, 155 B^Barr v. Simpson, Baldwin, 545. tr. S. 13, 39 L. edV 52'; Hatch v. 63 See Davis v. Davis, 65 Fed. Pergusbn, 52 Fed. '833; Davenport 380';' Collins' v.' Ashland, 112 Fed. V. Mooreji 74 Fed. 945; i Strand, v. 175. >•. '.'•■ ,.r ': ,,,, , .. .Griffith, 'C. Q.\A.,, 144, ^^&. .828; ,. 64 i;eidlpr ^ v. ,Bartlesofi, ,0., C. ,A., Sehultz V. Highland Gold Mines Co., 161 Fed. 30. 1^8 FM., 337; Union By. Co. y.,Illi- 65 We)3b,eT v. Humphreys, ^ VjiW. .nois den,t. E. (jo., d C, A., 207 Fed. 223; Poole v. Thatolierdeft, 'l9 Fed. 7^i5. ,But ^ee TravelCTs' Protective 49;.Buford v. Strother, 3 McCrary, Ass'n V. 'Gilbert; 0. ,0, A., S^.L.E.A. 2^3; s. '. c.„ ,16.', Fed. 406;, M^ai, v. 53.8, ill.Fed. 269 ; Bailey v.' Wille- billon, '22 Fed, 1..' . '.,'''' ." ^ ford; 126 JPed. 803. ' As to suits to , 66 Cha,pman y. Bar'ger, 4' billon, set aside decrees of naturalization, 587. . ' ' ' ' see inffa, § 151b. ,§ 52] CUSTODY OF ANOTHER COURT ^^9 set asid^ g^ ip^^rjfere jwit}i|theienfor(;einent gf an, interlocutory decree in a cause pending in , another court, ^hen such de- cree, is not a contempt of a Fe,der3,i, court.®'' It.has, b^ep held Ijii^at. whejre, the , , jurisfiiet^pp depends solely upon j;he, ^ ai^c.ijl- Ia,ry nature of the Jbill, ,upon the dismissal of the forme^ suit Tjh,Q ancillary guit m,ust be dj^smigsed, for; want of, j|iris.4if?- tipn ; ®* jWfi, that .r^l^ef ger^iane ;to .the a?:icillary: relief, .,ijf^ the Pjray^r fp;F, the same ,do^s , not, make theiibill multifarious, can bp, granted, although an independent original bill,;foj:, sucji otJier relief .could jn,Qt have been, maintained in the Federal co|ii;t.; b|Ut that if I the ancillary rejl|ief is 4^nied, all .other prayers for relief fal|,/vvith the same; and that affirmative re,|ief against^a I person whp is npt a party,, npr a privy, to, the original acj; jon,, and ^TV^hiOse, claims .have no)t aeerugd prior to,,its,j co^- iRieneenient, cannot, be granted.®® The.dependeiice ,of an anpil- lary suit uppn,:an original suit for pjarposes of jur^gdif;tj_9n|4^^ not,tkro,w,)t)Qth pase^ into hotchpot, and dispense witfe, ,t]^e .ordji,- nary rj^es of pleajding arid, practice as to parties proper jai3,d .necessary Jo each cause pf. ^ctip^. Thg parties to the origin,al .bill have, no. mpfe right tp. ip,tpryene in the dicpende^t cause |;h,au if,tb&,court J[ia,4, independent; ji^risdietion pf the, same; and.a^t^r ju?;i?diptipn |ias been acquired,,, the pleadings, practice ^n(J pro iceedings, are, pursued exactly, .as ^if it were an oi^iginal ,suit.''!' It.b^s J^^en held that,, the court do^S not in the second suit/ take judicial, lUotice ; 0|f, the pleadings or, prpceedings in the ,(prip,er litigation, .unjessi they are formally put in evideixce.''^ § 52. Properjiy jin th^ custody of anothw eourt, of ca-or4inate jurj;S|dictiqn. In general. A egu^t -pf thei United States, through,, a spirit, pf judiqiaj qomity, will, usually r,eifu!se ,to .inte^- ,fere liyijtb.propejrty initlie custody of a State court.^ Conversely, 67 Furnald , y. Olenn., C. C, A., 64 § 52, , 1 Haga^ y. Lueas,, ,10 Pej;. Fed. 49. ' ,' ' ' ' ,400, 9i L, ed, 47Q; Taylor v, Carryl, , 68 pabaniss ' v. Eeco IVfin. Co,.,, .Q. 20 1 How. 583; Peale v.' f>h'ipps, 1^4 '6. A[, lie fed. 3li ' '''"" ' ,'" Sow.' 368,,14 L. ed."i'$9; t^vi' V. 69 Campbejl , v, , Golden ,Cycle', Min. Ooluiiiiiia'lns. Coi, 1 JB^edV, 206 • Hufe- Co„ 'i.41. Fed! 610, 614, 616, 61,7. Ja'ard v..B^llew, 3, Fe'd'. 447; TJ^ion W tipntin'eiital' Tri Co. v, Toledo, Miiiij;. Life Ins. Go. v. IJniyersity qf ^t. L.'_&'K.',ti'; E. Co., 82 Fed. 642, Chicago, 6 ,Fi^c[. 443;' '^uteliinson'v. '645, per Taft, J.^, (Sreeii, .6 Fed. 833,' 836-'839;' HamSl- 71 Eichaidspn vl Loree, 94 Fed. ton v. Chouteau, 6 F.eS- 3^^; .Held- 375. But ' see' im/i-a, § 329a. , , rittery. Elizabeth qi'l'-,clptli Co., 112 ORIGINAL JURISDICTION [§ 52 it, will not tolerate interference by a State court with property- over which it has taken jurisdiction.^ It has been said that "the forbearance which courts of co- ordinate jurisdiction, administered under a single system, exer- cise toward 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 dis- cretion, or mere convenience. These courts do not belong to the same system, so far as their jurisdiction is concurrent and al- though they co-exist in the same space, they are independent, and have no common superior. They exercise jurisdiction, 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 sover- eignty. To attempt to seize it by a foreign process is futile and void.'" "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 litigants. ' ' * "When a court of competent jurisdiction has, by appropriate proceedings, taken property into' its possession through its offi- ces, the property is thereby withdrawn from the jurisdiction of all other courts. The latter courts, though of concurrent juris- diction, are without power to reader 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 XT. S. 294, 28 L. ed. 729; McKinney 390; In re Tyler, 149 TJ. S. 164, V. Landon,-C. C. A., 209 Fed. 300; 186, 37 L. ed. 689, 696; White v. U. S. V. Marrin, 227 Fed. 314. But SeMoerb, 178 U. S. 54,2, 44 K ed. see Dwight v. Central Vermont E. 1183. Co., 9 Fed. 785. 3 Mr. Justice Matthews in Cp- 2 Freeman v. Howe, 24 How. 450, veil v. Heyman, 111 TT. S. 176, 182, 16 L. ed. 749; Heidritter v. Eliz- 28 L. ed. 390, 392; approved in Be abeth Oil-cloth Co., 112 U. S. 294, Tyler, 149 U. S. 164, 186, 37 L. ed.. 28 L. ed. 729 ; Sharon v. Terry, 1 689, 696, per Fuller, C. J. L.E.A. 572, 36 Fed. 337; Covell v. 4 Thayer, J., in Merritt v. Am. Heyman, 111 TJ. S. 176, 28 L. ed. Steel Barge Co., 79 Fed. 228, 231. § 52] CUSTODY OF ANOTHER COTJET 191' 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 deitermine 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 Uo jurisdiction arising out of diversity of citizenship or the nature of the con- troversy. Those principles are of general application and hot 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 ,i,vnseenily and subversive of justice ; and have been .^P- pll^d by this court in,. many cases," some of whicl^ are cited, "sometimes in favor of the jiirisdietion of the courts . o:^ the Sta,te& and , sqmetimes jn favor of the jurisdiction of ,t]^e,,cour|;s, 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, ":^ This is a generaltrule of comity, which usually pre- vails between courts of the same State.^ Even where the custody of the State court has been acquired through fraud, the Federal court will usually not interfere so long as the former retains its hold upon the property.' An ob- jection founded upon this rule does not put the jurisdiction oi the court at issue so that the question can be certified imme- diately to the Supreme Gouxt.* It has been held that after the trial of an action at common law it is too late to raise this objec- B Mr. Justice Moody in Wabiaah ican , Stael Barge Co., 79 Fed. 228, Eailroad Co. v. -Adalbert College, 231. .. 208 U. S. 38, 53, 52 L. ed. 378, 385. 8 Attleborough Nat. Bank v, , N. eO'Mahoneyv. Belmont, 62 N.Y. W. Mfg. & 0. Co., 28 Fed. 113; 133, 149; Milwaukee E. E. Co. v. Louisville Tr. Co. v. Knott,; 191 Milwaukee & Minnesota E. E. Co., U. S. 225, 48 L. ed. 159,' overaitling 20 Wis. 165, 88 Am. Dec. 735. Shields v. Coleman, 157 U.S. 168, 7 Thayer J., in Merritt v. Amer- 39 L. ed. 660. i . ; 192 ORIGINAL JURISDICTION [§52 tion to the jurisdiction.' But whiere the trustee elected by thp creditors o£ an insolvent had. failed to claim property until after, a levy thereupon lUnder a Federal judgment, on his intervention a decree was entered setting aside, the levy,,uppn his paym^pt of the costs of the same and filing an order of, the State, court au- thorizing him, to take possession.^" ... ,,. |., ,,This doctrine does not prevent th^ removal to the Federal cour|;,^ in a,p;roper easp, of a suit in which a State court has ^appointed a receiver ,^^ or the removal of a suit by such, receiver, ^^ nor a suit in one court against a corporation over the property of which another court has appointed g, receiver ;^^ nor the allpwance of an equitable set-off against the judgment of another court ; ^* nor the removal of a suit in which a State Court has taken prop- erty into its possession under a common law writ ; ^* nor a suit to set aside a mortgage, which the mortgagee claims to Tdc a valid lien upon a fund in the possession of a Federal eoui-'t of bailk- riiptcy.^* ' It was recently said by the Supreine Court of the United States, that "the declaration of "a lieii on the property is a i^tep toward the invasion of its possession, which we have held to be beyond the jurisdiction of the State court." ^"^ Before that decision, it 9Gilman V. Perkins, 7 Fed. 887., Union t^ac. E. Co., 'C. C. A.; 254 See' Erwin v. Lowr^, 7 How. 172, Fed. 235. i' "' ' ' ' ' ' "•■••' 12 L. ed. 655; Mo. Pac. E. Co. v. 14 Northwestern Pott Huron' OoJ Fitzgerald, 160 XJ. S. 556, 40 L.i ed. v. Babcock, .C.; C. A., 223, Fed. 479. 536.,,.., ,,.,, i . ^ ISKern V. Huidekoper, 103 U. S. lOGei^inger V. Philippi,' 133 XJ. S. 485, 491, 492, 26 L. ed. 354, 356, 246, '257,"3,3'L. ea. 614, 6lt, Mi/ra, ■3*57. ■ '" '•'ii...,,' §S3. '■ " 16 Frank V. VoUkommer, 205 U. ■11 In re: Iowa & Mian. Constr. S. 521, 51 L. ed. 911, in which "the Cq„ 10 Fed. : 401., Where, hp;we,ver, author, was counsel. ,, all| the property of a foreign cor-, 17 Wabash Eailrpad Co. v. Adel- poration had been placed in the bert College, 208 t7. S. 6()'9, 611, '52 hands" of a receiver appointed by L. ed. 642, 643; s. c, 208' U. S. 38, the State court, the Federal court 52 L. ed. 79; City of New Orleans said, that a case instituted by at- v. Howard, C. C. A., 160. Fed.;'393, tachment, which had been removed a partition suit; See Security,. Trust thereto, should' be remanded. Gold- Co. v. Union Trust Co., 134 Fed. berg, Bowen & Co', v. German Ins. 301.; Lang: v. Choctaw, Oklahoma' & Cb.:, 152 F^d. 831; 834. Gulf E. Co., C. C.' A., 160 Fed. 355; ' 12 Porter" v. F. M.'Davies & Co., Oppenheimer v. San Antonio Land C. ' C. A., 223 Fed. 465. & Irr. Co., G.. C. A., 246 Fed. 934. . 13 Chicago, E. L & P.' Ry: Co. v. , : § 52] CUSTODY OF ANOTHER COURT l93 was held that the doctrine did not prevent a suit to foreclose a mortgage, or to establish a lien, upon property in a State court 'h custody ; ^* provided that no sale was ordered until the proceed- ings in the Stiate court were terminated; ^' and that neither the sheriff, nor, without the permission of the eoutt, a State receiver was a necessary party to the suit ; ^^ 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 detei^mine the claim of the holders of re- ceiver's certificates issued under the order of the State court to a preference over the mortgage ; *^ 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 ; *^ that a State coui-t may entertain 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 I'espondent in the condemnation proceedings, or, in the alterna- tive, for the payment of its value ; ^ ot a suit to determine the ownership of land pending a proceeding in a Federal court to condemn the property for public purposes; ^* that a proceeding in a State court for a writ of assistance, under a foreclosui-e de- cree of sale, does not operate as a bar to an action of ejectment 18 Wheelwright v. St. Louis, N. 346. Contra, Cochran v. Pittsburg, 0. & O. 0. & T. Co., 50 Fed. 709^ S, & N. E. Co., 158 Fed. 549; Cohen 711; Gates v. Bucki, 53 Fed. 961, v. Solomon, 66 Fed^ 411; Hardin v. 968 ; Edwards v. Hill, C. C. A., 59 Union Tr. Co. of Philadelphia, Pa., Fed. 723; Jehks v. Brewster, 96 C. C. A., 191 Fed. 152. Fed. 625, holding that where a 19 Wheelwright v. St. Louis, N. person, not a party to a suit in a O. & O. C. & T. Co., 50 Fed. 709, Federal court, had subsequently to 711. But see Erwin v. Lowry, 7 the institution of the same begun How. 172, 12 L. ed. an action in the State court to 20 Porter v. Sabin, 149 IT. S. 473, foreclose his lien, to which the Fed- 37 L. ed. 815. eral plaintiff was one of the de- 21 Metropolitan Trust Co. v. Lake fendants, the decree of the State Cities El. Ey. Co., 100 Fed. 897. court bound the parties to the same Infra, § 314. and the purchaser of the property, 22 Oishei v. Pennsylvania E. E. pending the litigation under the de- Co., 101 App. Div. (N. Y.) 473. cree of the Federal court ; Metro- 2S Ben jam on v. Brooklyn Union politan Trust Col v. Lake Cities El. El. E. Co., 120 Fed. 428. Ey. Co., 100 Fed. 897. So held in 24 U. S. v. Eisenbeis, C. C. A., 112 1918, Brown v. Crawford, 254 Fed. Fed. 190. Fed. Prae. Vol. 1—13 194 ORIGINAL JURISDICTION [§52 between the same parties for the same property, brought in a Federal court by the applicant for the writ ; ^^ that the pendency in the State court, of an action of ejectment, does not prevent a suit in the Federal court, by the defendant against the plaintiff, to quiet the title to the same land; *^ nor an action in perswiam between the same parties involving the same issues, provided that the property is not seized therein.'*'' It has been held that the pendency of a suit in a Federal court to foreclose a lien upon timber on certain lands does not prevent an attachment 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 ; ^* that property seized and sold by an internal revenue collector, under the statutes of the United States, cannot be replevied from the purchasers by the former owner, under process from the State court, since the remedy for a wrongful seizure, given by the statute, is exclusive.^ Property in the possession of a statutory receiver, not ap- pointed 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." Property 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 J ^^ or in the nature of a suit in rem ** or by the filing of 2B Lamar v. Spalding, C. C. A., 79 Fed. 228; Copeland v. Bruning, 154 Fed. 27. C. C. A., 127 Fed. 550. Infra, § 57. 26 North Carolina Mining Co. v. Cf. Huntington v. Laidley, 176 TJ. S. Westfeldt, 151 Fed., 290. Where in 668, 44 L. ed. 630. But see infra, an action of ejectment in a State § 177. court defendants filed a counter- 28 Nelson v. Camp, C. C. A., 191 claim alleging that they were in Fed. 712. possession and praying a determina- 29 Allen v. Sheridan, 145 Fed. 963 tion of conflicting claims in accord- 3" In re Chetwood, 165 TJ. S. 443 ance with the State statutes (Bevis- 41 L. ed. 782. al N. C. 1905, §1589), it was held 31 Taylor v. Carryl, 20 How. 583 that complainant could not subse- 15 L. ed. 1028; Heidritter v. Eliza quently sue in equity in the Federal beth Oil-cloth Co., 112 TJ. S. 294 courts for similar relief. Westfeldt 28 L. cd. 729; TJ. S. v. Eisenbeis V. North Carolina Min. Co., C. C. C. C. A., 112 Fed. 190. A., 166 Fed. 706. 32 Sharp v. Bonham, 213 Fed 27Eejall V. Greenhood, 60 Fed. 660, (a suit between the represen 784; Merritt v. American S. B. Co., tative of two religious societies to § 52] CUSTODY OF ANOTHER COURT 195 a bill praying the appointment of a receiver ; ^* or by the filing of a bill for the distribution of the assets of a corporation ; ^* 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, ah thoughj. 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 ; '^ or by an adjudication in bankruptcy! '^ But it i has been hel^ thatj except in: the; case of bankruptcy, this doctrine does npt, apply when the issues .and the subject matter of the two suits are different and actual possession has not been taken before .the institution of the second sHit.*'' It ha,s been held that the issue of a writ of atta,chment by thiC Federal Court in an action in personam and its filing as a lien a,gainst the defendant's property does not prevent the State Court from appointing a receiver of the same property ip a suit hy a person nor in privity with the Federal Action.^' It has been held: that, when no actual possession has been tafen, property is not put into the exclusive custody of the State C6urt by the institution of a suit to establish and enforce a lien thereupon, when no actual possession has been taken; ^^ nor by the filing of determine the right to the use of ney v. Kansas Natural Gjas Co., 206 a church held by trustees who were .Fed. 772; Ceiitral Dist, Print. & made defendants). Amusement Syn- Tel. Co. v. Farmers & P. Nat. Bank, dieate Co. v. El Paso Land Imp. Co., C. C. A., 255 Fed". 59. 251 Fed. 345, (a suit to eomjiel the 38 Pac., Coast Pipe Co. v. Com-ad removal of .part of a .building. ,,, City Water Co., 237 Fed. ;673, when a suit in the State Court for 39 Comp^on v. Jesup, 68 Fed. 263, - the same purposes by substantially 283; Morrill v. Am. Eeserve Bond the same parties had previously Co., 151 Fed. 305; Jackson v. Park- been instituted). ersburg' & O. V. Ey. Co., 233 Fed. 33 Farmers' L. & T. Co. v. Lake 784. See Jacob Tome Institute v. St. El. B. Co., 177 U. S. 51, 44 L. ed. Whitcomb,' C. C. A., 160 Fed. 835. 667. Cf. Humane Bit Co. 7. Barnet, See Eodgers v. Pitt, 96 Fed. 668, 117 Fed. 316; McKinney v. Lan- 673. But where the State courts don, 'C. C. A., 209 Fed. 300. had held- that, under its statute's,'' the 31 Louisville T. Co. v. Knott, filing of a petition was the institu- C. C. A., 130 Fed. 820. tion of the suit, it was h'eld that 35 St. Louis & S. F. R. Co. v. the filing of a petition for partition Hadley, 155 Eed. 220. precluded a subsequent suit in the 36 White v. Schloerb, 178 U. S. Federal court prior to the service 542, 44 L. ed. 1183. ' of process. Mound City Co. v. Cas- 37 Empire Trust Co. v. Brooks, C. tleinan, 0. C. A., 187 Fed. 921, af- C. A., 232, Fed. 641. Cwitra, McKiu- firming 177 Fed. 510. 196 ORIGINAL JURISDICTION [§ 52 a bill, which does not pray for a receiver, when. a receiver is ap- pointed by another conrt before the first court is asked to make such an appointment.*" The Federal Court acquires no exclusive jurisdiction over the property by the issue of a summons when the suit in the State Court is begun before the bill in equity is filed." In personal actions, the priority of a suit is ordinarily de- termined by the time when the parties are served with process and not by the date of the filing of any papers in the same.*^ Property continues in the custody of a court until the cause is practically terminated, or the custody filially abandoned; al- though, it has been held, that a formal order of termination is not indispensable.*^ 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 ; ** and it is improper for the District Court of the United States to vacate its order of discharge and claim possession by virtue of jts prior receiver- ship ; *® 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 courU pending the appeal was directed to surrender his possession to the State receiver.*® The discharge of a Federal receivership, before the appointment of a State receiver, Was held to validate the latter; although made in a suit sustained 40 Knott V. Evening Post Co., 124 souri Pae. E. Co. v. Pitzgerald, 160 Fed. 342. See Empire Trust Co. U. S. 556, 40 L. ed. 536. V. Brooks, C. C. A., 232 Fed. 641. 44 Sliields v. Coleman, 157 TJ. S. 41 Waldo V. Wilson, C. C. A., 231 168, 39 L. ed. 660. But see Union Fed. 654, reversing 221 Fed. 505. Trust Co. v. Rockford, R. I. &'St. L. 42Benoist v. Smith, 191 Fed. 514. R. Co., 6 Biss. 197; §55, infra. 43 Buck V. Piedmont & A. L. Ins. 45 Shields v. Coleman, 157 U. S. Co., 4 Fed. 849; Andrews v. Smith, 168, 39 L. ed. 660. But see Union 5 Fed. 833 ; Lake Nat. Bank v. Trust Co. v. Rockford, R. I. & St. L. Wolfeborough Sav. , Bank, C. C. R. Co., 6 Biss. 197, § 55, infra. , A., 78 Fed. 517; Foster v. Lebanon 46 Texas v. Palmer, C. C. A., 22 Springs R. Co., 100 Fed. .'543, but L.R.A. (N.S.) 316, 158 Fed. 705; see Shields v. Coleman, 157 U. S. aff'd. Palmer v. Texas,' 212 V. S. 168, 181, 39 L, ed. 660, 665; Mis- 118, §,52] CUSTODY OF ANOTHER COURT 197 during the pendency, of the Federal receivership.*'' 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 .*8 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 deter- mined ; it was held, that a State court had no power to establish, or to foreclose, a lien upon the property in the hands of a pur- chaser at the foreclosure sale.*' But not when there is no such reservation; even, it has been held, when the decree reqijired the purchaser to assume the obligation that the lien secured-*" It has been held that a State court may take. jurisdiction of a suit against the purchaser at a foreclosure sale, to enforce his liability to pay a debt of the mortgagor, which he assumed as part of the consideration.*! 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 which it first acquired jurisdiction, ceases.*^ This doetrihe does not prevent the filing of a bill to set aside.*' or stay,** proceedings under a judgment or decree of a State court ; nor, it has been held, a bill to enforce a decree of a State court pending an appeal therefrom which does not operate as a supersedeas;^^ nor does the doctrine apply to a case where the 47 Liggett V. Glenn, 51 Fed. 381. Insurance, Trust & Safe-Deposit 48 Daniels v. Lazarus, 665 Fed. Co. v. Norfolk & W. E. Co., 88 718; Lazarus v. McCarthy, 32 N. Fed. 815. Y. Supp. 833. But see infra, § 56. 52 Swinerton v. Oregon Pac. E. 49 Wabash Eailroad Co. v. Adel- Co., 123 Cal. 417, 56 Pac. 40. So bert College, 208 TJ. S. 38, 52, L. ed. held of a Federal court, Hall v. 379; s. c, 208 XI. S. 609, 52 L. ed. Ames, 182 Fed. 1008. 642; Fidelity Insurance Trust & 53 Gaines v. Fuentes, 92 U. S. 10, Safe-Deposit Co. v. Norfolk & W. E. 23 L. ed. 524, Barrow v. Hunt; Co., 88 Fed. 815; Taylor v. Norfolk 54 Kern v. Huidekoper, 103 tJ. S. & O. V. By Co., C. C. A., 162 Fed. 485, 491, 26 L. ed. 354, 356, 357; 452; Lang v. Choctaw, Oklahoma & In re Iowa & Minnesota ConStVue- Gulf E. Co., C. C. A., 160 Fed. 355. tion Co., 10 Fed. 401. But see Cm 50 Tr. Co. of America v. Norfolk & tral Nat. Bank v. Stevens, 169 U. S. S. Ey. Co., 183 Fed. 803. 432, 42 L. ed. 807; Cornue v. Inger- 51 Guardian Trust Co. v. Kansas Soil, C. C. A., 176 Fed. 194. City Southern Ey Co., C. G. A., 55 Baltimore & O. E. Co, v. Wa- 146 Fed. 337. But see Fidelity bash E Co., C. C. A., 119 Fed. 67§, 198 ORIGINAL JURISDICTION [§53 Federal' courts exercise superior jurisdiction for the purpose of enforcing the supr€maey of the Constitution and laws of the United States.^^ Where a Federal court has appoiiited a receiver, in a case where a receiver was previously appointed by a State court, the pii-dper remedy is an application by the State receiver, t6 the Federal court, for the delivery of thei possession of the property td the' appilieant.®''' It has been said that where a State court has, by proper" pif ocess, secured the custody or dominion of specific property, 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' proceed as far as may be without creating a conflict con- cerning the possession or disposition of the property, and that then, if need be, it shall be stayed until the ptoceedings^ in. the State court have been completed or the time for their termination has elapsed.^' The doctrine does not apply to a ease where the 'Stite Court is acting 'in' an administrative 'ind not in a judicial capacity, such as proceedings in a county court directing the presentation of county warrants for redemption, cancellation, reissue, or classification.^® § 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 '6'otirt, although dn purfeiiahee of a State statute he has filed 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 receiyer of property thus assigned ; ^ that where a State court has, by docket- 56 Tefft v; Sterberg, 40. Fed. 2, 6, 58 Mound City Co. v. Gastlematt, per Speer, J., citing Covell v. Hey- G. C. A., 187 Fed. 921. man, 111 IT. 8. 176, 28 L. ed. 390. 59 Falls City Const. Co. v. Monroe But see infra, § 59. County, 208 Fed. 482. 57 Texas v. Palmer, G. 0. A., 22 §53. 1 Powers et al.. v. Blue I.E.A.' (N.S.) 316, 158 Fed. 705; Grass B. & L. Ass'n 86 Fed. 705; aff'd Palmer v l^exas, 212 .TJ. S. under 'Kentucky statute; Watson 118; "Waters-Pv. S. Oil Co. v. Texas, v. Bettman, 88 Fed. 825; under New 47 Tex. Civ. App. 162, 103 . 8. "W. York statute. Cf. Adler v. Eeker, 836; 'State v. Port Eoyal & Augusta 2 Fed. 126; The James Hoy, 59 Fed. R. R. Co., 45 S. C. 470, 23 S. B. 784; George T. Smith; Co., Co. v. 363; People v. New York City Ry. McGroarty, 136 U. S. 237; Swofford Co., 57 Misc. (N. Y.) 114. Bros. D. G. Co. v. Mills,: 86 Fed. §54] CUSTODY ,0E PBOBATE COURTS 199 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,? nor appoint a receiver,^ and that a vessel in the. pos- session of an assignee,, appointed by a voluntary, assignment un- der the insolvent law of Minnesiota,. cfinnpt.be taken from him by a marshal of the United States, upon a libel in rem, to enforce a iclaim against the insolvent.* 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 aifter the levy, of an execution, on :his property, such levy, should: be dissolved and the property turned over to the. assignee;, it was held to. apply to a levy under a .iudgmont of the Circuit Court, of the. United States, and that the a.ssignee might apply to the Fed- eral court for .the release of the levy by a proceeding in the nature of a supplemental hill in equity.^ .Where the trustee, ilnder 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 States, a decree was entered setting aside the levy; upon 'his payment of the costs thereof and filing an ordero'f 'the State court author- izing him to take possession.* ' ' §54. Property in the custody of State coftrtg 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, Qf, the, ereditors,. legatees or next of kin, who are eitiz,ens of the same State as the defendants, and who have no right to seek the Federal jurisdiction.^ It has been Held that a P^ederal 556; under Wyoming statute, ?ifs- , Loaisiana statute; Val. Blatz.Bre.w- taifling an attachment by the Fed- ing Co. v. Walsh, 84 Fpd... 5;. under, eral court; Peale v. Phipps, 14 How. Minnesota statute. 36g, I'i L.' ed. 459.' Contra,' Yal 4 The J. G.' Chapman, 62 Fedl. 939.' Bl'atz Srewirig Co. v. Walsh, 84 Fed.. S^Broehon v. Wilson, C. C. A., 91 5; under Minnesota statute. Fed. 617; under Wisconsin statute. a Edwards v. Hill, C. C. A., 59 6 GeiUnger v. Philippi, 133 U. S. Fed. 723, ,726; under Kansas stat- 246, 257,, 33 L. od. 614, 617; under u^;e. ' ... Louisiana statute. SGeilinger V. Philippi, ' 133 TJ. S. §54. l.Byers v. McAuley, 149 U. 246, 257, 33 L. ed. 614,', 617; under S. 608, 47 L. ed. 867. Cf. Hale v. 200 ORIGIN AL JURISDICTION [§ 54 court of equity cannot entertain a bill by a legatee, to compel an accounting by the surviving partner, and a payment of the balance due by him to the executors for distribution, when the executors and the survivor are citizens of the same state; ^janless an executor is the surviving partner.* Nor issue an execution against the estate of a decedent ; * nor compel the repayment, by a legatee, of a surcharge which he has received under a decision of a State orphans' court;* nor entertain a bill to set aside a sale of stocks, made by executors, and to take the proceeds out of their possession ; ^ nor a bill by an unsecured creditor, even a judgment creditor,'' to compel a general accounting by the execu- tor and a distribution of the estate ; * nor it has been held a bill a compel any accounting by the executor when a previous suit or .proceeding for such an accounting is pending in the State court ^ although the latter complainant was not a party to such former suit or proceeding ; i" nor to compel an executor to file a bond,^^ nor to require him to deliver funds to an administrator appointed in another State ; ^* nor, while the administration of the State court of probate is pending, a bill by the surviving hus- band of a decedent or his grantee against her administrator, to quiet the title to the husband 's share of her separate estate ; ^* nor in the absence of fraud to set aside the orders of the State Court of Probate ; '* nor a bill to prevent ^* or to set aside the probate of a will,^* unless the State law authorizes such a bill Tyler, 115 Fed. 833, 839; Hastings MeCauley v. McCauloy., 202 Fed. V. Douglass, 249 Fed. 378; Smith v. 280. Jennings, C. C. A., 238 Fed. 49. 9 MoCauley v. MeCauley, 202 Fed. 2 Moore ». Fidelity Trust Co., 134 280. Fed. 489; s. c, C. C. A., 138 Fed. 1. 10 Thiel Detective Service Co. v. 3 Am. Baptist Home Mission Sosi- McClure, 130 Fed. 55. ety V. Stewart, 192 Fed. 976. 11 Field v. Camp, 193 Fed. 160. 4 Williams v. Benedict, 8 How. 12 Watkins v. Eaton, C. C. A., 18,'! 107, 112, 12 L. ed, 1007, 1008; Yon- Fed. 384. ley V. Lavender, 21 Wall. 276, 22 L. 13 Thorpe v. Sampson, 84 Fed. 63. ed. 536. 14Northrup v. Browne, C. C. A., 5 Chandler v. Pomeroy, 87 Fed. 204' Fed. 224. 262, 266. 16 Miller v. Weston, C. C. A., 199 6 Jordan v. Taylor, 98 Fed. 643. Fed. 104. 7 Johnson v. Johnson, 225 Fed. 16 Ellis v. Davis, 109 U. S. 485, 413. 27 L. ed. 1006; Farrell v. O'Brien, SByers v. MeCauley, 149 U. S. 199 V. S. 89, 110, 50 L. ed. 101, 609, 13 Sup. Ct. 906, -.'.l L. ed. 867; 111. It has been held that this can- I 54] STATE COURTS OF PROBATE 201 to be filed in a proceeding inter partes, which is not a mere con- tinuation of the probate proceedings.^'' In proper cases, the Federal Courts have jurisdiction over suits for the partition of the real estate of a deceased ancestor,^* for the construction of a will,^® or for the appointment of a receiver to protect the estate of a decedent until a temporary or permanent administrator or executor has received letters from the Court of Probate.^" But not after temporary administrators have been appointed although it is contended that such appoint- ment was fraudulent and illegal. ^^ The Federal Courts have jurisdiction in proper cases to de- iiot be done under the California statute, Stead v. Curtis, C. C. A., 191 Fed. 529; nor under the Maine statiite, Thompson v. Nichols, 25-i Fed. 973 ; nor under the Missouri statute, Oakley v. Taylor, 64 Fed. 245; nor under the Washington statute, Farrell v. O'Brien, 199 U^ S. 89, 110, 50 L. ed. 101, 111;' nor under the Texan statute, Sut- ton V. English, 246 U. S. 199. The orders and judgments of probate courts in the due and orderly ad- ministration of estates are con- elusive upon the. Federal courts. Johnson v. Waters, 111 XJ. S. 640, 667, 4 Sup. Ct. 619, 28 L. ed. 547; Newberry v. Wilkinson, C. 0. A., 199 Fed. 673, 680. Where the pro- bate court at the place of domicile of the testatrix admitted to pro- bate a will, but rejected a codicil for want of testamentary capacity, it was held that this decision must be followed by the Federal court in the Northern District of New York, although a Surrogate 's Court of New York had ad- mitted the codicil to probate. Hig- gins V. Eaton, C. C. A., 183 Fed. 388, reversing 178 Fed. 153, 254 Fed. 973, where it was contended that the probate proceedings had pot been due process of law. 17Broderick's Will, 21 Wall. 503, 519, 22 L. ed. 599, 605; Williams V. Crabb, C. 0. A., 59 L.E.A. 425, 117 Fed. 193, 204 (Illinois statute) ; Wart V. Wart, 117 Fed. 766 (Iowa statute) ; Pulver v. Leonard, 176 Fed. 586 (Minnesota statute) ; Sawyer V. White, C. C. A., 122 Fed. '223 (Missouri statute) ; MeDermott v. Hannon, 203 Fed. 1015 (New York statute) ; Biehardson v. Green, C. C. A., 61 Fed. 423; s. C, 159 U. S. 264, 40 L. ed. 142 (Oregon statute). See infra, § 82. 18 Hastings v. Douglass, 249 Fed. 378; Sutton v. English, 246 XJ. S. 199, 207. ISByers v. McAuley, 149 U. S. 608, 37 L. ed. 867; Toms v. Owen, 52 Fed. 417; Wood v. Paine, 66 Fed. 807 ; Waterman v. Canal- Louisiana Bank & T. Co., 215 U. S. 33, 54 L. ed. 80; Spencer v. Watkins, C. C. A., 169 Fed. 379; McClelland v. Rose, C. C. A., 247 Fed. 721. See Sutton v. English, 246 U. S. 199,. 207. 20 Underground El.- Eys. Co. v. Owsley, 169 Fed. 67, afC'd C. G. A., 176 Fed. 26. See infra, § 302. 81 Smith V. Jennings, C. C. A., 238 Fed. 49, reversing 232 Fed. 921. 202 ORIGINAL JURISDICTION 11-54 cide- questions relating to the interests of heirs, devisees or leg- atees, in trusts, which may be determined without interfering with 'probate or assuming a general administration.*'' Where a State court of probate had established the right of a devisee to land in another State it was held that the courts of the latter State' could not recognize the right of a public administrator there appointed to any part of such land.** After a State court of probate has begun the administration of the assets of a deced- ent, a Federal court may establish a debt against the estate,** and direct the payment, by the personal representative or his sure- ties, of such debt,*^ or of a legacy, or of a distributive share ; *® or determine the rights of a devisee *'' establish a claim that he might have made in the probate court** when the case concerning which he seeks relief is not then pending in the Suri'ogates ' Court ; *® and it may thus or otherwise adjudiea!te upon the constniption of a will,*" and compel an accounting by an executor or administrator ; *' although the court, after declaring 22 Sutton V. English, 246 U. S. 199, 205. 23 Slater v. Thompson, C. G; A., 255 Ted. 768. 24Yonley v. Lavender, 21 Wall. 276, 22 L. ed^ 536; Hess v. Reyn- olds, 113 TJ. S. 73, 28 L. ed. 927; Schiirmeier' v. Connecticut Mut. Life Ins. Co., C. C. A., 171 Fed. 1. 26 Yonley v. Lavender, 21 Wall. 276, 22 L. ed. 536; Hess v. Reyn- olds, 113 U. S. 73, 28 L. ed. 927. See also Erwin v. Lowry, 7 How. 172, 12 L. ed. 655; 86 Payne v. Hook, 7 Wall. 425, 19 L. ed. 260; Byers v. McAuley, 149 U. S. 608, 37 L. ed. 867; Breitdel 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. Baton, C. C. A., 183 Fed. 388, re- versing 178 Fed. 153; Am. Baptist Home Mission Society v. Stewart, 192 Fed. 976; Eraser v. Cole, G. C. A., 214 Fed. 556; Maling v. Maliiig, 217 Fed. 127; Jennings v. Smith, 242 Fed. 561. As to the effect upon isuch a proceeding of a previous intervention in the State court by the State claiming an escheat. Mc- Glellan v. Garland, 217 U. S. 268, 54 L. ed. 762; S. G., C. C. A.,. 187 Fed. 915. See, also, Barker v. East- man, 192 Fed. 659. 2'? Swann v. Austell, 253 Fed. 807. 28 McPherson v. Mississippi Val- ley Tr. Co., C. C. A., 122 Fed. 367. 29McCauley v. MeCauley, 202 Fed. 280. 30 Byers v. McAuley, 149 U. S. 608, 37 L. ed. 867; Toms v. Owen, 52 Fed. 417; Wood v. Paine, 66 Fed. 807; Waterman v. Canal- Louisiana Bank & T. Co., 215 TJ. S. 33, 54 L: ed. 80; Spencer v. Watkiiis, C. C. A., 169 Fed. 379. 31 Payne v. Hook, 7 Wall, 425, 19 L. ed. 260; Hale v. Tyler, 115 Fed. 833, 839. See Comstock v. Herron, i 54J State COURTS. OF pi«>bate 203. the rights of the parties by itfi,|deeree, may refuse to taie juris- diction of an accounting and leave that jnatter to (be determined by the appropriate State, trib^uDja,!.^^ It may .entprtain 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 St?i!te statute gives, the probate court jurisdiction over the accounts, of testamentary jtrustees ; provided that the sni,t in the Fed,eral court was b.egun prior to, an applica- tion to the, probate court for an ajccount.** ;, .WJiere the probate cqnrt has no jurisdiction to de,termine the validity pf the assign- ment of a share of the estate, the Federal court lias in a. proper case jurisdiction; to decide that question and, establish the, rights of an assignee Ijy a .^ecree which should b,Q; refiognized, and en- forced by the court of probate,** In such, a suit, the .Federal court may ,direct a final distribution , and ,se1;tlement of ,,the trust.*^ )Th.e Fedpral court Biay remove a testamentary trustee.*^ Tli^i Fedieral court has juriSidj,ction of a suit by the .beneficiary of a, trust for an accounting by a trustee although during his minority which has, terminated his guardian has brought a suit to remove the trust estate fi^om the possession of the trustee into another jurisdiction the questions in , which have beconie moot because of ,,the termination of the trust, upon the majority, of the beneficiary.^' ,It has been held, that the Federal court may fix the, com- pensation of, the ;trustees; and, that it is not bound by, orders of the State proj^a.te ; court fixing: such cpmpensatioii, which were made after the,,'l;>ill in the Federal court was, filed.** It has, been held : that a Federal court may entertain a bill in equit.y ; toi de- cree, th^t an administrator or other person who has obtained property through a decree of a State court of probate f raudulent- Sd ' Ffcd. 803. Newberry v. Wilkin- 34 Gatzert v. Lucey, 218 Fed. 395. son, C. C. A., 199 Fed. 673. A 'E'ei- SSHerron y. Cpmstoek, C. (?., A., eral court may take juriadiotion of 139 Fed. 370. a suit hiy the foreign guardian of an 36 Davis Trs. Co. y. Smith, 32^ incompetent to compel an account- Fed. 410. ing by a guardian residing within 37 Harrison v. Washington Loan the district. Pulver v. Leonard, ,176 & Tr. Co., Ct. App-, D- C-, 258 F^d. Fed. 586. 273. 32 Crocker V. Dates, 117 Fed. 363. SSHeiron y. Comstoek, C. C. A., 33Serron v. Comstoei, C. (J. A., 139, Fed. 370; Brown v.. I^letqjjer, 13a Fed. 370. T C. C. A., 231 Fed. 91. , 204 ORIGINAL JUElSDiCTIOK [§ 54 ly obtained holds the same as trustee for the parties truly inter- ested.*' 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 ; *" to set aside a fraudulent transfer of property, made by an administratrix with the sanction of the iState probate court ; *^ to set aside a fraudulent sale df land, made by the decedent in his lifetime, although the State probate court has authority to grant a license, at least where the com- plainant does not seek to sell the same, and thus authorize the ad- ministrator to bring a suit for the same purpose, when no such license was granted previous to the filing of the bill ; *^ to set aside a release obtained by an administrator or guardian by fraud ; ** to set aside an election obtained from a widow through fraud ; ** it has been suggested, to set aside a judgment of the State court of probate obtained by fraud ; *^ at the suit of a creditor to en- join an administrator from paying over the money, or distribut- ing the property of the estate, to others joined with him as par- ties defendant, although the Federal court cannot ascertain the amount of unpaid claims nor whether the estate is in a condi- tion for final distribution ; *^ to enjoin an ancillary administrator from transmitting the assets to the court of original administra- tion until a claim of a creditor has been determined ; *'' 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 ; ** a bill to enforce an attachment on the estate of the decedent, levied by the Federal court before his death, when the State statute authorizes attachments and executions to be levied upon equitable interests in real estate ; *' to sell land for the benefit of a creditor of the estate, when the administratrix 39 Diamond v. Connolly, C. C. A., 44 Eddy v. Eddy, C. C. A., 1C8 251 Fed. 234. Fed. 590. 40 Bertha Zinc & Mineral Co. v. 45 Sutton v. English, 246 U. 8. Vaughn, 88 Fed. 566; Diamond v. 199, 207; Broderick's Will, 21 Wal- Connolly, C. C. A., 251 Fed. 2.34. laee, 503, 519, 22 L. ed. 599, 605. Contra, Northrup v. Browne, C. C. But see Smith j. Jennings, C. C. A., A., 204 Fed. 224. 238 Fed. 48. 41 Central Nat. Bank v. Fitzger- 46 Davis v. Davis, 89 Fed. 532. ^Id, 94 Fed. 16. 47Ingersoll v. Coram, 132 Fed. 42 Hale V. Tyler, 115 Fed. 833. 168, 172; afC'd 211 U. 8. 335. 43 Pulver V. Leonard, 176 Fed. 48 Hale v. Coffin, 114 Fed. 567, 586. 49Lant v. Manley, C. C. A., 75 S 0*J STATE COURTS OP PROBiVTE UU& refuses to institute a proceeding for that purpose in the proper State court under statutory authority, although the administra- tion is still pending ip the State court undetermined ; *" to com- pel specific performtace, by the heirs and administrators, of a contract by the decedent in relation to property of the decedent, which is in the process of administration in the State court ; ^^ to compel an executor to pay an assessment levied after the decedent 's death upon national bank stock, which he holds ; ** to ap'point a receiver of the decedent's assets within the district, where the executors disagree and can not act tbgeither ; ^* and when no temporary administrator has been appointed, pending a conflict in the court of projaate cbheerning the right to admin- istration.^* The Oet'upation of lahd therein included by the widow after her quarantine has expired under a claim of title by devise does not take away such jurisdiction.^^ At the suit of a minority Stockholder, to enjoin one of two executors from vot- ing upon a majority of the stock in the corporation pending liti- gation in the State court, which has enjoined the other executor from voting thereupon.^® The property of a debtor taken into the custody of a Federal Court by seizure under process issued under its judgment re- mains under its control to be applied in satisfaction thereof, not- withstanding the death or insolvency of the judgment debtor and the institution of proceedings in a State court to administer his estate, and irrespective of subsequent State legislation.*'' Fed. 627. See Lant v. Kinne, C. C. 56 Villamil v. Hirsch, 138 Fed. A., 75 Fed.. 636. 690. As a condition of granting 50 Brun v. Mann, C. C. A., 12 the injunction, the court enjoined L.R.A. (N.S.) 154, 151 Fed: 145. the holding of a stockholders' 61 Davis V. Davis, 89 Fed. 532. meeting until the dispute between 62 In re Connaway, 178 XT. S. 421, the executors had been decided by 44 L. ed. 1134; Wickham v. Hull, the State court. Villamil v. Hirsch, 60 Fed. 326; Brown v. Ellis, 86 Fed. 143 Fed. 654. 357. 57 Bio Grande B. Co. v. GomUa, 63 Ball v. Topkins, 41 Fed. 486. 132 U. S. 478, 481, 33 L. ed. 400, See infra, §302. 401; Leadville Coal Co. v. Mc- 54 Underground El. Rys. Co. of Creery, 141 TJ. S. 475, 35 L. ed. London v. Owsley,, 169 Fed. 671; 824; Straine v. Bradford Sav. B. s. c, ,C. C. Jt., 176 Fed. 26. & T. Co., 88 Fed. 571; Johnston 56 Underground El. Rys. Co. of v. Jbhnston, 225 Fed. 413. London v. Owsley, 169 Fed. 671; s. C, C. C. A., 176 Fed. 26. 206 OBIGINAL JURISDICTION [§55 § 55. Property in the custody of receivers. The appointjment of a receiver by a court,^ or the filing therein, of a bill praying for the appointment of a receiver ^ or perhaps the presentnient to the court, of a bill praying a receiver and the issue of a re- straining order or other, order thereupon,^ prevents the appoint- ment of a receiver of the same property by a court of co6rdina^;e jurisdiction; exceipt perhaps when the fipst 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 F'ederal court will not prevent the appointment of one for the same property by the State court, in an action to dissolve the corporation; but that such receiver should apply to the Federal court for the return of the property to him.* Upon such an application the Federal Court cannot review the findings of the State Court which are based on evidence, but is §55. 1 Shields v. Coleman, 157 U. S. 168, 39 L. ed. 660; Texas ,y. Palmer, C. C. A., 22 L.E.A. (N.S.) 316, 158 Ped. 705, afC'd Pal- mer V. Texas, 212 U. S.' 118; Gar- ner V. Southern Mut. Building & Loan Ass'n, C. C. A., 84 Eed. 3, 28 C. C. A., 381; .Lancaster v. Ashe- ville St. By. Co., 90 Fed. 129; Sulli- van V. Algrem, C. C. a!, 160 Fed.' 366; Stirling V. Seattle, R. & S.Ey. Co., 198 Fed. 913; £e Lasserot C. C. A., 240 Fed. 325., 2 Farmers ' Loan & Tr. Co. v. Lake Street El. E. Co., 177 U. 8. 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., 85 Fed. 865. See Palestine Water & Power Co. v. Palestine, 91 Tex. 540j 44 S. W. 814, 40 L. E. A. 203; affirming 41 S. W. 659. Contra, De La Vergne Eefrig- erating Mach. Co. v. Palmetto Brew- ing Co., 72 Fed. 579; where the Fed- eral court appointed a receiver in a foreclosure suit, after a rule to show cause in a State court why a receiv- er should not be appointed upon a stockholders ' bill, and refused to do- liver the property to the receiver subsequently appointed by the State court. 3 St. Louis & S. P. E. Co. V. Had- ley, 155 Fed. 220; O'Neil v. Welch, C. C. A., 245 Fed. 261, reversing Welch V. Union Casualty Ins. Co., 238 Fed. 968. , 1 State V. Port Eoyal & Augusta E. Co., 45 S. C. 470, 23 S. S. 363, 386; Louisville, New Albany & Chi- cago E. R. Co. V. Cauble, 46 Ind. 277^ 280; People v. Kew York City Ey Co., 57 Misc. (N. Y.) 114; Peo- ple V. Haabrouek, 57 Misc. (N. Y.) 130; St. Louis Car Co. v. Stillwater E. Co., 53 Minn. 129. See City Wa- ter Co. V. Texas, 88 Tex. 600, 604; Alderson Eeceivers, § 20. See Kan- sas City Pipe Line Co. v. Fidelity Title & Tr. Co., C. C. A., 217 Fed. 187. §55] CUSTODY' OF STATE RECEIVERS 207 limited to a consideration of the question of priority of jurisdic- tion.* Such an application by temporary receivers appointed in a dissolution suit, was denied, without prejudice to its renewal in case their appointment should be made permanent.® The fact that the first receivership was based upon the fraud of ofScers and directors and the second application upon the ground of insolvency, does not affect the rule.'' But it has been held that this doctrine does not apply when the actions are based upon different subject matters and different issues are therein raised, and the court in which suit first was brought has ap- pointed no receiver before the second '■ court has appointed a receiver who has taken possession.* It has been said that the doctrine does not apply where the record shows that the first appointment was beyond the jurisdiction of the court, but that it does apply even if the first appointment was attained by fraud.' 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,^" or other process,^^ before his appointment was prayed. Where a State court had attached a debt, before the court of another State had appointed the receiver of the creditor, the Fedei'al court directed that judg- ment be entered against the receiver in an action' by him to collect the debt, unless he should consent to a itay of proceedings until the State court had acted upon the matter .^^ ^ ' 5 McKhiney v. Laiidoii, C. C. A., tain Tunnel Co., 188, Fed. 447. But 209 Fed. 300. See Pac. Cpnst. Pipe see Kansas City Pipe Line Co. v. Co. V. Conrad City, Water Co.,, 2.S7 Fidelity Title & Tr. Co., C. C. A., Fe,d. 673. ' 217 Fed. 187. But see' Jackson v. 6 Penpsylvania Steel Co. v! New Parkersburg & O. V. El. Ey. Co., 233 York City By. Co. (Lacbmbe, J., S. Fed. 784. D. N. Y.), N. Y. L. J., February 4, 11 Lake Bisteneau Lumber Co. v. 1908. But see Eobinson v. Mutual Mimms, 22 So.' 7-30, 49 La. Ann. Reserve Life Ins. Co., 162 Fed. 794. 1283 ; Knudsen v. First Trust & 7 Stirling v. Seattle, E. & S. Ey. Savings Bank, C. C. A., 245 Fed. Co., 198 Fed. 913. 81. 8 Empire Trust Co. v. Brooks, Q. 12 Avery v. Boston Safe Deposit C. A., 232 Fed. 41. & Trust Co., 72 Fed. 700. See 9 Pac. Const. Pipe Co. v. Conrad Jackson v. Parkersburg & O. V. El. City- Water Co. 237 Fed. 673. Ey. Co., '233 Fed. 784; Pac. Const. 10 Southern B. & T. Co. v. Folsom, Pipe Co. v. Conrad City Water Co., C. C. A., 75 Fed. 929; Hale v. Bugg, 237 Fed. 673. ' . 82 Fed. 33 ; Dodds v. Palmer Moun- 208 ORIGIN aij jurisdiction [§ 55 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 another corporation, which owns a majority of its stock and operates its railroad under a lease; and that conse- quently, 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 ; ^? but this rule will not apply if the Federal court has extended the receivership to the interest of the lessor in the property.^* 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.^^ 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 Fed- eral court could not subsequently appoint another receiver of its own to take the property from the possession of the State receiver ; ^® but an appeal to a State court of review from the order appointing a receiver, and the filing of a supersedeas bond, which stays the proceedings, before the receiver has taken pos- session, does not authorize the appointment of a receiver by the Federal court; and such Federal receiver must surrender the property to the State receiver after the State order of appoint- ment 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.^'' 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 ;^* and that after the Federal court has acquired jurisdiction of a bill praying the IS Central E. & B. Co., v. Farm- 17 Texas v. Palmtr, C. C. A., 22 crs' L. & Tr. Co., 56 Fed. 357. L.E.A. (N.S.) 316, 158 Fed. 705; liSe Metropolitan Railway Be- aff'd. Palmer ». Texas, 212 U. S. reivership, 208 U. S. 90, 52 L. ed. 118, 53 L ed. 435; Sullivan v. Al- 403. grem C. C. A., 160 Fed. 366; Stir- 15 MeKechney v. "Weir, C. C. A., ling i-. Seattle, K. & S. Ry Co., 198 118 Fed. 805. Fed. 913. 16 Shields v. Coleman, 157 U. S. 18 Guaranty Trust Co. v. North- 168, 39 L. ed. 660. But see Inter- ern Chicago St. Ry. Co., C. C. A., state Ey Co. v. Philadelphia, B. & 130 Fed. 801. T. St. Ry. Co., 164 Fed. 770. § 55] CUSTODY OF STATE RECEIVERS 209 removal of the trustee of a corporate mortgage, the appointment of another and. the appointment of a receiver of the mortgaged property pending the suit, the State court cannot entertain pro- .ceedings for the appointment of a new trustee in accordance with the deed of trust.^' After the apointment of a receiver and until the termination of his receivership, his removal or discharge, no court, but that which appointed him, except in cases of bank- ruptcy, can interfere with the property placed in his custody.*" 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.*^ A receiver appointed by a State court cannot, except possibly in a suit for the infringement of a patent, be sued without the permission of his court.** And if he refuses to sue upon a claim belonging to his estate, it has been held that no person inter- ested can bring a suit to collect the same without his joinder as a defendant by the permission of such court.** Formerly a Federal receiver could not be sued without the permission of his court.** The Judiciary Act of 1887 abrogated this rule; *^ but a judgment against him cannot be enforced without the permis- sion of the Federal court. *^ The appointment of a receiver of a corporation does not pre- vent a suit in another court against the subject of the receiver- ship.*'' But the coiji^t which appointed the receiver of the property may enjoin the, prosecution in another of suits to foreclose liens upon the same.*' It has been held : that when a receiver has been 19 state Nat. Bank v. Syndicate 84 Barton v. Barbour, 104 TJ. S. Co., 178 Fed. 359. 126, 26 L. ed. 672. 20 In re Tyler, 149 TJ. S. 164, 37 25 25 St. at L. 866, §3, p. 436; L. ed. 689; Porter v. Sabin, 149 U. m/ra, §314. S. 473, 37 L. ea.;815; Security Trust 26 Porter v. Sabin, 149 U. S. 473, Co. V. Union Trust Co., 134 Fed. 37 L. ed. -815; Mo. Pae. Ey. Co. v. 301. Texas Pac. Ry. Co., 41 Fed. 311, 21 Memphis Sav. Bank v. Hon- re-enacted in Jud. Code, § 66, 36 Chens, C. C. A., 115 Fed. 96, 111. St. at L. 1087; infra, § 314. 22 Porter v. Sabin, 149 U. S. 473, 27 Chicago, R. I. & P. Ey Co. v. 37 L. ed. 815; Rejall v. Oreenhood, Union Pac. E. Co., C. C. A., 254 60 Fed. 784; Ross v. Heckman, 84 Fed. 235. See infra, §§ 270a, 313, Fed. 6. But see infra, f 314. 314. 23 Porter v. Sabin, 149 U. S. 473, 28 Oppenheimer v. San Antonio 37 L. ed. 815; infra, §314. , Land & Irrigation Co., Limited, C. Fed. Prac. Vol. 1—14 210 ORIGINAL JURISDICTION [§ 55 appointed of the property of a corporation, its mortgagee cannot without permission of the court which made such appointiQent take proceedings to foreclose a mortgage thereupon because of a subsequent default ; ^^ 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 fraudulently obtained was no bar to such Federal suit ; ^^ that a Federal court may fore- close a mortgage upon property held by a receiver appointed by a State court in a suit to which the mortgagee was not a party ; tkat in.such foreclosure suit the Federal court can determine the claims of the holders of receivers ' certificates issued under the order of the State court to a f)reference over the mortgage,*^ and that where a suit was brought, in a Federal court, to fore- close a mortgage, prior to the institution of a suit in a State court in which a receiver was appointed, the Federal court might de- cree the foreclosure sale, notwithstanding the possession of such receiver.^^ 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.*^ Property in the possession of a statutory receiver not ap- pointed by a' court is not usually considered to be in the court's custody.'* Where the receiver of a national bank appointed by the Comptroller 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.^* After the appointment by the Comptroller of the receiver of a bank, the State court may levy a writ of attachment against the bank and the receiver as garnishee. The State court then has juris- diction to enter a judgment establishing the claim, but not to C. A., 246 Fea. 934. See infra, bert College, 208 TJ. S. 38, 52 L. S 270a. ed. 379 ; quoted, supra, § 52. 29 Slade V. Massachusetts Coal & 32 Bridgeport El. & Ice Co., v. Power Co., 188 Fed. 369. Header, C. C. A., 72 Fed. 115. 30 Sims V. United Wireless Tel. 33 Kurtz v. Philadelphia & E. E. Co., 179 Fed. 540. Co., 40 Atl. 988, 187 Pa.. St. 59. 31 Metropolitan Tr. Co. v. Lake 34 In re Clietwood, 165 U. S. 443, Cities El. By Co., 100 Fed. 897. 41 L. ed. 782. But see Wabash B. B. Co. v. Adel- 35 ibid. § 56] CONTROVERSIES BETWEEN SHERIFFS AND MARSHALS 211 order the receiver ^o^ make a payment out of the assets of the bank. It is the duty of the receiver upon the service of the writ to report the facts to the Comptroller, and it then becomes the duty of the Comptroller to hold any funds coming to his hands through the Treasury as the proceeds of the assets subject to any rights that have been ,^^judicated| by the State court,^^ In a proper case, an injunction maj"^ be granted to enjoin such a re- ceiver from transmitting the assets to the Coniptroller of the Currency.*''' The apointment of a receiver or trustee by a Court of Bank- ruptcy in a ease 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 ease, 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.** A suit, in which a State court has appointed a receiver, may be removed to the Federal court.*' 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, for the delivery of the possession of the property to the applicant.** § 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 36 Earle v. Conway, 178 U. S. 456, court said, that a case instituted 4i, L. ed. 1149; Earle v. Pennsyl- by attachment which had been re- vania, 178 V- S. 449, 44 L. ed. 1146. moved , thereto, should be remanded. 37 American Can Co. v. Williams, Goldberg, Bowen & Co. v. German C. C. A., 153 Fed. 882. Ins. Co., 152 Fed. 831, 834. 38 In re Watts and Sachs, 190 U. 40 Texas v. Palmer, C. C. A., 22 S. 1, 27, 47 L. ed. 933, 941; infra, L.E.A. (N.S;) 316,' 158 Fed. 705; § 59. Waters-P. Oil Co. v. Texas, 47 Tex. 39 In re Iowa & Minnesota Con- Civ. App. 162, 103 S. W. 836 ; State struction Co., 10 Fed. 401, Where, v. Port Eoyal & Augusta E. E. Co., however, all the property o£ a for- 45 S. C. 470, 23 S. E. 363; People eign corporation had been placed in v. New York City Ey. Co., 57 Misc. the hands of a receiver appointed (N. Y.) 114. by the State court, the Federal 212 ORIGINAL JUKISDICT16N [§ 56 exclusive custody of the same until it abandons it.^ This rule applies to a judgment,^ and a fund in court ^ which are not sub- ject to attachment * or garnishee process,^ 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 juris- diction of the court ; ^ and checks prepared by the clerk of the court for mailing, in accordance with such an order, cannot be attached or made subject to garnishee process.'' It has 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 owner ; * 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 lo procure a shipping receipt and bill of lading for the same, these acts constituted a delivery to the plaintiff and a State sheriff might subsequently levy upon them under a writ of at- tachment issued by a State court ; * that, where a State sheriff had made no valid levy upon property by taking possessign 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 § 56. 1 Freeman v. Howe, 24 5 Mack v. Winslow, C. G. A., 59 How. 450, 16 L. ed. 749; Krippen- Fed. 316, 319, 8 C. C. A., 134; dorf V. Hyde, 110 TJ. S. 276, 28 L. Menees v. Matthews, 197 Fed. 633; ed. 145; Summers v. White, C. C. and eases cited; Kantor v. Murchie, A., 71 Fed. 106; De Galard v. Safe 210 Fed, 573; Swinerton v. Ore- Deposit & Trust Co., 196 Fed. 981, gon Pae. R. Co., 123 Cal. 417, 56 a Federal suit in equity to obtain Pae. 40. In Menees v. Matthews, possession of bonds previously at- 197 Fed. 633, the Federal court re- tached under process of a State fused to stay an execution on its court. When the sheriff held prop- judgment because the circumstances erty under summary proceedings for tended to show collusion between a foreclosure under the Georgia the garnisher and the judgment statute, it was held to be in the debtors. custody of a State court. Tefft v. 6 Corbitt v. Farmers' Bank of Sternberg, 5 L.R.A. 221 40 Fed. 2. Delaware, 114 Fed. 602. 8 Menees v. Matthews, 197 Fed. 7 Swinerton v. Oregon Pae. R. 633; Mack v. Winslow, C. 0. A., 59 Co. 123 Cal. 417, 56 Pae. 40. Fed. 316, 319, 8 C. C. A., 134;''and 8 Daniels v. Lazarus, 65 Fed. eases cited. 718; Lazarus v. McCarthy, 32 N. 3 Corbitt V. Farmers' Bank of Y. Supp. 833. Delaware, 114 Fed. 602. 9 Animarium Co. v. Bright, 82 4 Ibid. Fed. 197. ^ 56] . CONTROVERSIES BETWEEN SHERIFFS AND MARSHALS 213 United States court of admiralty.^" It has been held that t 1" ^- ^^- ^^ > Eosenstein v. ZSGamiiei v. 'Pitkin, 124 V. S. Tai-r, 51 Fed. 368; Mack v. Wins- 131 31 L ed 374 '°"'' ^^ ^^^' ^^^'' *^^^° ^" ^"^ ^'' o^-r. T.' ,V .■ ' r. c' ' Fisher, C. C. A., 115 Fed. 929. 29 D. B. Martin Co. v. Siiannon- „„ „ „ tvt , -,^,. -r, , „^o 33 U. S. V. Neeley, 146 Fed. 763. ,house, 203, Fed. 517. 3^ jj^^^^^^. ^ (je,,ellschaf t Oce- SOFreemanv. Howe, 24H0W. 450, ^^^ ^ Chitha Shipping Co., 226 16 L. ed. 749; Summers v. White, Fedt^ 339. C. C. A,, 71 Fed. 106. 35 Infra, § 59. 216 . ORIGINAL JURISDICTION [§ 57 between the same parties involving the same issues ; provided that the property is not seized therein.^ "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 determined ; not to dismiss the second suit.* A plea in abatement in such a case was not sustained ; ^ but a bill against an administrator, which sought tq interfere with assets in the custody of a State court of probate, was held to be demurrable.* Where the proceedings in the State court are of an administrative and not a judicial nature, the doc- trine does not apply.*. Where the Federal court has first obtained jurisdiction it may enjoin proceedings in the State court subse- quently begun.* 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 counsel ; it was held : that these proceed- ings took precedence of subsequent suits in the State courts to enforce the statute ; and that such subsequent suits by the de- fendants to the former bills might be enjoined ; '' 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 sup- ply of gas to a consumer for his refusal to pay the original price.* It has been said that the rule that the first court which acquires § 57. 1 Porter v. Davidson, 62 3 See infra, § 177. Fed. 626; Eejall v. Greenhood, 60 4 Lant v. Manley, 71 Fed. 7; le- Fed. 784; Merritt v. American S. B. versed on another point, s. c, C. C. Co., 79 Fed. 228; Copeland v. Bru- A., 75 Fed. 627. See supra, §561. ning, C. C. A., ,127 Fed. 550. Cf. 5 Falls City Const. Go. v. Monroe Huntington v. Laidley, 176 U. S. County, 208 Fed. 482. 668, 44 L. ed. 6.S0. See infra, 6 St. Louis & S. F. R. Co. , v. S 1 77. Hadley, 155 Fed. 220 ; , St, Louis & 2 Zimmerman v. SoEelle, 80 Fed. S. F. Ry. Co. v. M'Elvain, 253 Fed. 41 7 ; Hughes v. Green, C. C. A., 84 12.3, infra, § 270a. Fed. 83.3; infra, § 177. See U. S. ''St. Louis & S. F. E. Co. v. Had- v. Belknap, 73 Fed. 19. Contra, ley, 155 Fed. 220. Swpra, § S5. R. M. Rose & Co. v. Southern Ex- 8 Richman v. Consol. Gas. Co., 186 press Co., 223 Fed.. 868; Woren v. N. Y. 209. The Court of Appeals Witherbee, Sherman & Co., 240 Fed. intimated that the State court of 1013, original jurisdictJou should stay thg § 57] LITIGATION IN ANOTHER COURT 217 jurisdiction over a suit takes it to the exclusion of tHe other ap- plies only where the parties to the suits or their privies are the same and the same relief is sought in both cases.' It has been held that the pendency ill a Federal court of a suit by' a gas company against a city to set aside, as an iiiipairment of the contract made by its franchise,, an ordinance regulating the pres- sure in complainant's mains, does not justify an injunction against a subsequent suit by the city against the company in a State court for an 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 collec- tion of such rates. ^^ Where a suit by one riparian owner against another to enjoin interference! ' with the complainant 's use of water, had been first btought in a Federal court, a subsequent suit in a State eoilrt in a different State, when brought by a privy of the defendant against the complainant to the first suit, was held to be rightfully enjoined.'^ Similar rules should usu- ally be followed by the Federal courts when the State courts have first acquired jurisdiction of such suits for injunctions; ^^ but it seems that they are not bound to do so.^^ It has been held that the pendency in a State court of a suit to determine the validity of a State statute under the Federal Constitution does not divest the Federal court of jurisdiction of a subsequent suit involving the same question nor afford aity reason tO the Federal court for declining to assume jurisdiction even if the parties are the same.^* And in another ease that where the previous suit was betiveen private parties arid the second is a proceeding instituted to deter- mine the rights of all the parties interested there is no reason why the Federal court should not assume jurisdiction.^^ It was held that a decree of a State court in personam, restraining a trial until the determination in the 12 People 's GasUght & Coke Co. v. Federal court of the issues there City of Chicago, 192 Fed. 398 ; Moss raised. _ ' ' & Co., v. McCarthy^ 191 Fed. 202.' 9 Jackson v. Parkersburg & O. V. 13 People's Gaslight & Coke Co. v. El. Co., 233 Fed. 784. City of Chicago, 193 Fed. 398. ' 10 Kansfts City Gas Co. v. Kan- 14 E. M. Rose & Co. v.' Southern sas City, 198 Fed. 500. Express Co., 223 E*ed. 868. 11 Rickey Land & Cattle Co. V. Mil- I6"pae^ liive Stock Co. v. Lewis, ler & Lux, 218 IT. S. 258, 54 L. ed. 241 TJ. S. 440. 1032. 218 ORIGINAL JURISDICTION , [§58 water company from refusing to furnish water to, tlie city qn cer- tain 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, ^^ , Where the suit in the State court was to compel the removal of parts of a building it was held that the Federal court should not entertain a subsequent suit for substantially the same object.^'' "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 receiver and a cancellation of certain fraudulent bond,s,se^ cured by the trust deed.; it was held, that the State court was .not, bound to r'eeognize any subsequent order in proceedings, after- wards brought in the State court for the appointment pf a, new trustee, in accordance with the deed of trust.^* A, State coui;t cannot levy an attachment or garnishee process, against, a debt, pending an action in a Federal court to collect the same,^* It has been held: that the pendency of a suit in a State court in another district, in which a trustee has been enjoined from be- ginning 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 pf a majority of the bondholders.*" , .It,];ias been held,: that the pendency of a suit in the Federal court tp fore- close a lien, in which no receiver is appointed, , fipes not affect the jurisdiction of, a State court tp entertain a suit.^or the fore- closure of a mortgage on the same , property, when the mort- gagee was not a party to the suit in the Federal court; and that the decree in the Federal court does not bind the mprtgagee, nor affect the rights of a purchaser at the foreclosure sale.*"- § 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 tlxe custody pf a per- 16 Laighton v. City of Carthage, 20 Woodbury v. Alleghany & K. Mo., 175 Fed. 145. E. Co., 72'Fed. 37i; " ' ' 17 Amusement Syndicate Co. v. El 21 National Foundry & , Pipe Paso Land Imp. Co., 251 Fed. 345. Works v. Oconto City Water Supply 18 State Nat. Bank v. Syndicate Co., C. C. A., 113 Fed. 793.' See Co., 178 Fed. 359. National Foundry & Pipe Work's, v.' 19Walaoe v. McConnell, 13 Pot. Oconto Water Supply Co., 183 t;."S. 136, 10 L. ed. 95; Rosenstein . v. 216, 46 L. ed. 157. Tarr, 51 Fed. 368; Mack v. Wins- low, 59 Fed. 316. '§58] CONFLICTING CBIMINjVL, PROCEEDINGS 219 son in a criminal eaSe.^ Thus, the Federal courts ordinarily refuse to discharge by habeas corpus before his trial, and even in some eases, before he has exhausted his remedy by writ or appeal, after conTiction, a ' prisoner held under indictment by a State court.^ 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 Federar 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 authoi-ities.' Conversely, a State court has nO power to release by hdbet^s corpus a prisoner held under the process of a court' of the United States.* The acts of Con- gress, however, ' authorize in certain cases the Removal' of crim- inal proceedings from a State to a Federal court.^ 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 hiiieas corpus, to protect him.^ i 1i jias 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 Staite court before the 'Federal court' obtained jurisdiction.' The same rule applies when %ie is, at that time,'i'n thife' custody' of a court of the United States, in the district from which it is sought to reinove him; * unless such cburt relinquishes 'its: jurisdiction, which it may' do § 58. 1 Harkrader v. Wadley, 10,0, XJ. S. 257, 25| L. ed. , 648. See 172; U. .-S. 148, 164, 43 L., ed. 399, | §,5^7, 551, -552,- m/ra. -; iO,4,- pel; SMras, J., citing Sx .parte- ^ .. sinreNea^le, 135,.TJ. ,S. 1, 34 L. Crouch',' 112 US. 178, 28 L. ed. 690.' ed. 5ff'; 'Ohio 'v.' Thomas, 173 TJ. S- Z Ex parte Eoyall, 117 TJ.' S. 241, 276, 285, 43 L. ed. 699, 702';' Boske 254, 29 L. ed. 868, 872; §§ 461, 466, v. Cotoiligore, 177 U. S. 459, 44 L. infra, il; ,.,i'. .i ,<. 64.1,846,;. Anderson v., Elliott, C. C. 3U. S. V. Wells, 11 Am. L^w.Reg. A-, 101, ^ed. 609; In re Turner, 119 (N.S.) 424, s. c.,^ Fed. Cases No. Fed. 231 ; West Virginia v. Laing, 16;665.'"' -'■•!■••■ • ■' 0. 0. a!, 133 Fed. ' 887. See §461. 4Ableinan-v.i;BDoth, 21 How. 506, infra. 16 L. ed. 169: See Tarble's Case, '1 Be James, 18 Fed. 853; U. S. v. 13 Wall. 397, 20 L. ed. 597;'Boblu Oorrie, 23 L. Rep. 145; U. S. v. V. Connolly, ' 111 U. S. 624, 28 L. Burr, 2 Burr's Trial, 455. See Me ed. 542. In the Matter of Spangler, Johnson, 167 XT. S. 120, 42 L. ed. 11 Mich. 298. - 103. 5U. S. E. S;, §§641j 643; 18 St. SJfg Johnson, 167 XI. S. 120, 124, at L., p. 401; Tennessee v. Davis, 42 L. cd. 103, 104. 220 ORIGINAL JURISDICTION [§ 59 with the consent of the government; and if it does so, the ac- cused will be removed.^ 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.^" 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 pro'duce him. ' ' " Where a prQceedilig between citizens of different States had been brought, in a State court, to determine the sanity of an alleged lunatic,, the Federal court refused, pending the deter- mination thereof, to review the right to his custody upon a writ of habeas corpus. ^^ "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 same rights that are in issue before that court, the latter may enjoin such criminal proceedings."^^ 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 cannot interfere where the proceedings were pending in the State court before the ju- risdiction of the Federal court was sought ex parte.^^ § 59. Effect of the custody of property by the State court, where the Federal courts exercise jurisdiction under the Con- stitution and laws of the United States. This doctrine does not apply where the Federal courts exercise superior jurisdic- tion, for the purpose of enforcing the supremacy of the Coii- stitution and laws of the United States. ^ The institution of a proceeding in bankruptcy gives juris- 9 Beavers v. Haubert, 198 U. S. 13 Ea; parte. Young, 209 U. S. 123, 77, 49 L. ed. 950; Be Beavers, 125 162, 52 L. ed. 714, 730. Fed. 988; Pecliham v. Henkel, 166 H Ibid. Fed. 627. S 59. 1 Tefft v. Sternberg, 5 10 Be Beavers, 125 Foil. 988. L.E.A. 221, 40 Fed. 2, 6, per Spoor, 11 Beavers v. Haubert, 198 U. S. .T.; citing Covell v. Hymaii, Ml U, 77, 85, '49 L. cd. 950, 953. S. 176, 28 L. ed. 390, !8 Hoadley v. Cliase, 126 Fed. 8] 8- § 59] CONPUOTING PEPERAL JURISDICTION 221 diction 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.^ The pos- session of a sheriff_ or other officer of a State court obtained more than four iiionths before the filing of the petition in bank- ruptcy is usually respected by the State court.^ The posses- sion, of the property of a corporation by receivers appointed by a State court does not affect thg 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 inabilitj' to pay its debts and its willingness to be adjudicated a bank- rupt, so as to support involuntary proceedings in bankruptcy.* After an adjudication of bankruptcy, the appointment of a receiver ^ or trustee ® by the bankruptcy court supersedes the au- thority 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 extraor- dinary 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.'' 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 ; * and in the county of 2 30 St. at L., p. 564; In re Ma- 259. In that ease, the court refused con S. D. & L. Co., 112 Fed. 323, to punish the State receiver for re- 333; Carling v. Seymour Lumber fusal to deliver possession of the Co., C. C. A., 113 Fed. 483; In re property to the receiver in Ijank- Tujie, 115 Fed. 906; Be English, C. ruptcy when he aeted under the ad- C. A., 127 Fed. 940; In re Moench vice of qounsel. See in re Watts & Sons' Co., C, C. A., 130 Fed. 685. and Sachs, 190 U. S. 1, 27, 47 L. ed. See §§609, 635, iivfra. 933, 941. 3 Jn re Pilcher & Son, 228 Fed. 6 Be Hecox, C. C. A., 164 Fed. 823. 139. TBe Watts and Sachs, 190 U. S. 4 In re Moench & Sons' Co.,, G. C. 1, 27; Be Hecox, C. C. A., 164 Fed. A., 130 Fed. 685; Be Electric Sup- 823. ply Co., L75 Fed. 612. Otherwise » Be Spalding, C. C. A., Second ivheu enjoined. Be Hudson Riyor Ct., May 1905, reported in Be Oak- El. K. Co., 17.3 Fed. 934. See infra laud Lumber Co., C. C. A., 174 Fed. §S625, 626. 634, 637; iJe Dcsrochers, 183 Fed. 5 Be J. W. Zciglcr Co., 189 Ftjd. D91; Be Standard Cordage Co., 184 222 ORIGINAL JURISDICTION [§59 New York it is the practice of the Supreme Court, in such a ease, to instruct its receiver to apply to the Federal court to set aside the appointment there made and to a;ppeal ' if such application be denied.® The filing of a suit in equity in the District Court of the United States by a trustee in bankruptcy, to set aside as fraudulent a conveyance of inoftgaged premises by the bankrupt and an interlocutory judgment in his favor therein, was held to be no ground for vacating an order ap- pointing a receiver of the mortgaged premises in a suit of fore- closure subsequently brought in the State court. ^^ A District Court of the United States will enjoin a suit in a State court, begun subsequent to an adjudication of bankruptcy, to take pos- session of property held by the bankrupt or his trustee. ^^ 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, is no bar to the seizure of a boat by the marshal under process in ad- miralty.*^ 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 possesfsion or notified the master, or any person on board the vessel, that he has been appointed ; ^^ 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.** That, upon a. similar claim, a marshal cannot take property from the hands of an assignee under the insolvency law of Minnesota.*^ 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 Fed. 156. So held when an assignee 12 Moran v. Stlirges, 154 V. S. in insolvency was in possession, Se 256, 38 L. ed. 981. Bosenthal, 144 Fed. 548, 549. 13 The Lotta, 65 Fed. 319. 9 People V. P. V. Eovnianek & Co., 14 The E. L. Cain, 45 Fed. 367. N. Y. L. J. Jan'y 12, 1911. 15 The J. G. Chapma,n, 62 Fed. 10 Mutual Life Ins. Co. v. Fleiseh- 939. man, 149 App. Div. (N. Y.) 23. 11 White V. Schloerb, 178 V. S. 542, 44 L. ed. 1183, § 60] CUSTODY QF OTI^ER FEDEJJAL COURTS 223 during his ' managenient , of the vessel.^^ That the seizure of a boat, owned; by a partnership upon a libel in admiralty to recover damages caused by a collision and the giving of security by one partneir to free the boat frpm custody does not prevent aiiother mpmber of the firm, while the procedure in admiralty is pending, from suing in a State court for an accounting of profits.^'' § 60. Property in the custody of another Federal Court of Equity. The different District Courts of the United States, acting upon the principle of judicial comity, usually, when prop- erty has been taken into the custody of another District Court, or when proceedings have been instituted therein for such a pur- pose, refuse to interfere with the same. Thus, where proceed- ings to cancel a mortgage had been instituted in one district, the Federal 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. ^ So, where a receiver has been appointed to take possessiori of certain property, such as a rail- road, which is situated in several districts, it is the usual prac- tice for the District Courts in the other districts to appoint the same person as ancillary receiver of the property within their territorial jurisdiction ; ^ 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.* 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.* This rule however, is largely within the discretion of each District Court, 16 The Willamette Valley, C. C. Fed. 889; Parsons v. Charter Oak A, 66 Fed. 565; S. C, Chandler v. L. I. Co., 31 Fed. 305; infra, 8 304. The Willamette Valley, ,63 Fed. 130. 3 Farmers' I. & T. Co. v. North- 17 Alexina C. S. Dowd, respondent, ern Pac. Ry. Co., 72 Fed. 26, 30, 31 ; V. James E. Hughes, appelant, 173 Clyde v. Eichmond & D. B. Co., 65 N. Y. App. Div.i 118. . ■ Fed. 336. §60 IHurd V. Moiles, 28 Fed. 4 Central T. Co., v. East Tenn.,_ ggy , Va. & G. K. Co., 30,Fed. 805. 2 Williams v. Hintermeister, 26 , 224 ORIGINAL JURISDICTION [§60 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.^ Where the trustees of a second mortgage oil a railroad had begun a foreclosure suit, making the trustee of the first mort- gage a party, and receivers had been 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.® 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.'' Where a controversy arose out of transactions in the ancillary jurisdiction, it was jtield: that the court there should determine the same.* Where a Federal Court in another district, in a suit between other parties, had refused an injune- . tion against a railroad merger and consolidation, the motion, for substantially the same relief, was denied.® The court in which a trustee has begun a foreclosure suit should not enjoin the trustee from suing in a Federal Court in another district to enforce a guarantee of the bonds by a person who is a stranger to the foreclosure suit and held no interest in the mortgaged property.^" When the Federal Court in one district has forbidden cer; tain acts, the party enjoined cannot by filing a bill in another district be granted permission to perform the acts enjoined.^"- 5 The Wabash Oases : Atkins v. 6 Mercantile Tr. Co. v. Atlantic & Wabash, St. L. & P. By. Co., 29 P. K. Co., 70 Fed. 518. Fed. 161; Central T. Co. v. Wabash, TBowker v. Haight & Freese Co., St. L. & P. Ey. Co., 29 Fed. 618; 140 Fed. 797. U. S. T. Co., V. Wabash, St. L. & 8 Jones v. Central Trust Co., C. P. Ey. Co., 42 Fed. 343. See also C. A., 73 Fed. 568. Mercantile T. Co. v. Kanawha & 0. 9 Daly v. Georgia & A. Ry., 112 Ry. Co., 39 Fed. 337; Central T. Co. Fed. 838, 840. V. East Tenn., Va. & G. Ey. Co., 69 10 Ex parte, Equitable Tr. Co., C. Fed. 658; N. Y. Security & T. Co. C. A., 231 Fed. 571. V. Equitable Mtg. Co., 71 Fed. 556 ; " Louisville & N. RR. Co. v. W. Reynolds v. Stockton, 140 U. S. 254, U. Tel. Co., C. C. A., 233 Fed. 82. 272, 35 L. ed. 464; infra, § 304. 5 60c] CUSTODY OP OTHER FEDERAL COURTS 225 §60a. Conflicting jurisdiction of the Federal Courts in Bankruptcy and Equity. After an adjudication of bankruptcy in- tlie same or another district the Federal Court sitting in equity has no jurisdiction to interfere with, the custody of the property,^ or with the administration of the estate by :setting aside the adjudication ^ or sale in the bankruptcy proceeding or by staying the bankruptcy proceedings ^ or by enjoining suit by the trustees in bankruptcy.* §60b. Conflicting jurisdiction of Federal Courts of Ad- miralty and Equity. Before the abolition of the Circuit Courts it was held: that a District Court could not seize property by process in admiralty, in order to apply it upon a claim that arose before the appointment of a receiver by the Circuit Court in the same district unless, the Circuit Court gave permission to such taking and applieation,^ and that a Federal Court, which had, through its receiver, sold vessels subjiect to maritime liens and liens under the State laws for supplies; had no jurisdiction when sitting in equity to determine and enforce such liens, but that those matters belonged exclusively to the admiralty juris>- diction.^ §60c. Conflicting jurisdiction of Federal Courts in bank- ruptcy and in, admiralty. It has been held, that where a court of admiralty acquires jurisdiction by the filing of a libel in rem against a boat before the! filing of a ■ petition in bankruptc,y against the owner in the same or another district, although within four months before the institution of the proceedings in bankruptcy ; ^ it may retain the possession for the purpose of determining all questions concerning maritime liens even when the boat was not seized in admiralty before the institution of the bankruptcyi proceedings ; ^ but that a court of bankruptcy should not direct that a boat in the possession of its receiver belonging to an estate in bankruptcy, be surrendered to a court of admiralty to be subject to the suit of a libelant, who seeks § 60a. 1 Cmehet ; v. Red Eover § 60b. 1 The Joi^as H. French, Min; Go., 155 Fed,; 486. 119 Fed. ,4^2, 2 Gibbons v. Dexter Horton Trust 2 Hudson v. N. Y. & A. Transp. 6 Savings Bank, 225 Fed. 424.- Co. 175 Fed. 519. S Ibid. § 60c. 1 The Philomena, 200 Fed. 4 Hull V. Burr, C. 0. A., 206" 859. Pod. 1. 2 The Bethulia, 200 Fed. 862. Fed. Prae. Vol. 1—15 226 OBIGINAli JURISDICTION ' [§61 to enforce a maritime lien against it for a liability which arose before or after the bankruj^tcy.^ A court in admiralty when distributing the proceeds of a sale may grant priority to the claims for fees and disbursements of a receiver in bankruptcy not a party to the admiralty proceedings.* § 61. Limitations upon jurisdiction, by residence. Statutory provisions. The Judicial Code provides: "§51. Except as provided in the five succeeding sections, no person shall be ar- rested in one district for trial in another, in any civil action be- fore a district court; and, except as provided in the six succeed- ing sections, no civil suit shall be brought in any district court against any person by any original process or proceeding in aiiy other district than that whereof he is an inhabitant: but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the de- fendant. ' ' § 52. When a State contains more than one district, every suit not 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 de- fendants, 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 marshal of any other dis- trict in which any defendant resides. 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 orig- inal 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 marshal 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 dis- 3 The Gasco, 230 Fed. 929. 809; s. o. in C. C. A. The iPalcon, i Hudson Oil & Supply Go. v. C. C. A., 177 Fed. 916. Booraem, 216 TJ. S. 604, 54 L. ed. § 61. 1 St. at L. 1087. 636; affirming Be Hughes, 170 Fed. § 61] LIMITATION BY EEBIDENCE 227 trict 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.^ All prosecu- tions for crimes or offenses shall be had within the division of such districts where the same were committed, unless the court, or the' judge thereof, upon the application of the defendant, 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 seal of the court, to the division to which the cause is so ordered trans- ferred; and thereupon the cause shall be proceeded with in said division in the same manner as if the offense had been committed therein. In all cases of the removal of suits from the couj-ts of, a State to the District court of the United States such removal ^ shall be to the United States; District court in the division , in; which the county is situated from which the removal is made ; and the time within which the removal shall be perfected, 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 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.^ "§ 55. Any suit of a local nature, at law or in etluity, where the land or other subject-matter of a fixed character lies partly ill 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, isjsued and executed, as fully a.s if the said subject-matter were wholly 2 It has been Jield that where de- trii't from that iu which the court feniiants reside in different districts sits. Babbitt v. Burgess, 2 Dillon, of the same State, an injunction 169. l>d. Cas. No. 69.'i.i may be served therein another dis- 3 See infra. § 64. 228 ORIGINAL JURISDICTION [§61 within the district for which such court is constituted. " * 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.^ It has been said that the appointment of a receiver therein is an equitable attachment of all property of the defendant within the State.® " § 56. Where in any suit in which a receiver shall be ap- pointed the land or other property of a fixed character, the sub- ject of the suit lies within different States in the same judicial circuit, the receiver so appointed shall, upon giving bond as re- quired by the court, immediately be vested with full jurisdic- tion and control over all the property, the subject of the suit, lying or being within such circuit ; subject, however, to the dis- approval 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 oppor- tunity to be heard upon the motion of such disapproval; and subject, also, to the filing and entering in the district court for each district of the circuits in which any portion of the prop- erty may lie or be, within ten days thereafter, of a duly certified copy of the bill and of the order of appointment. The disap- proval of such appointment within such thirty days, or of 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 ease coining 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 affecting such property shall be entered of record in each district in which the property of- fected may lie or be." ' "§ 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 4 36 St. at L. 1087. 8 Tbid. 5 Horn ¥. Pere Marquette E. Co., 7 .^6 St. at L. 1102, Comp. St. 151 Fed. Gas. 626, 627. § 1038. §i61] LIMITATION BY RESIDENCE 229 the title to real or personal property within the (^strict where such suit is brought, one or more of the defendants therein shall not h©! 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 certai'n 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- ' muri' 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 publifeation of said oTder atid of the performance of the directions- icontaihed 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 profeess 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 eithe* 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 OK 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. " * I ' .'■>■■ 8 36 St. at L. 1087. See § 166, infra. 230 OEIGINAIi JUEISDICTION [§ 61 ' ' § 58. Any civil cause, at law or in equity, may, on written stipulation of the parties or of their attorneys of record signed and filed with the papers in the ease, in Yacation or in term, and on the .written order of the judge signed and filed in the case in vacation or on the order of the court duly entered of record in term, be transferred to the court of any other division of the same district, without regard to the residence of the defendants, for trial., When a cause shall be ordered to be i transferred to a court in any other division, it shall be the duty of' the clerk of the court from which the transfer is made to carefully transmit to the clerk of the court to.which the trai^fer is made the entire file of papers in the cause and, all documents and deposits in his court pertaining thereto, together with a certified transcript of the records of all orders, interlocutory decrees, or other entries iui the cause; and he shall certify, under the seal of the court, that the papers sent are all which are on file in said court be- longing to the cause ; for the performance of which duties said clerk; so transmitting and certifying shall receive the same fees as are now allowed by law for similar services, to be taxed in the bill of :eosts, and regularly collected with the other costs in the cause; and such tradseript when so certified and received, shall henceforth constitute a part of the record of the cause in the court to which the transfer shall be made. The clerk receiving such transcript and original papers shall file the same and the case shall then proceed to final disposition as other cases of a like nature. ' ' ® "§59. Whenever any new district or division has been or shall be established^ or any county or territory has been or shall be transferred from one district or division to ariother district or division, prosecutions for crimes and offenses committed within such district, division, county, or territory prior to such trans- fer, shall be commenced and proceeded with the same as if such new district or division had not been created, or such .county or territory had not been transferred, unless the court, upon the application of the defendant, shall order the cause to be re- moved to the new district or division for trial. . Civil actions pending at the time of the creation of any such district or di- vision, or the transfer of any such county or territory, and aris- 9 36 St. at L. 1103, Oomp. St. § 1040. § 61] LIMITATION BT RESIDENCE 231 ing within the district or division so created or the county or territory so transferred shall be tried in the district or division as it existed at the time of the institution of the action, or in the district or division so created, or to which the county or ter- ritory is or shall be so transferred, as may. be agreed upon by the parties, or as the court shall direct. The transfer of such prose- cutions and actions shall be made in the manner provided in the section last preceding. " ^^ - i "The creation of a new district or division, or the transfer of any county or territory from one district or division to an- other district or division, shall not affect or divest any lien there- tofore acquired in the circuit lOi" .district court by virtue of a decree, judgment, execution, attachment, seizure, or otheiwise, ui)on the property situated or being within the district or di- vision so created, or the county or territory so transferred. To enforce any such lieri, the clerk of the court in which the same is acquired, upon the request and at the cost of the party desiring the same, shall make a true and certified copy of the recoi'd itself, which, when so made and certified, and filed in the proper court of the district or division in which such property is situated, or shall be, after such transfer,' shall constitute the record of such lien in suehi court, and shall be evidence in all courts and places equally with the original thereof; and, there- after like proceedings shall be had thereon, and with the same effect, as though the cause or proceeding had been originally in- stituted in such court. The provisions of this Section shall apply not only in all cases where a district or division is created, or a county or any territory is transferred by this or any future Act, but also in all cases where a district or division has been created, or a county or any territory has been transferred by any law heretofore enacted. " ^^ The Tucker Act which authorizes suits against the United States upon claims not sounding in tort, not exceeding $10^000, provides : ' ' The plaintiff must file a petition duly verified with the clerk of the respective Courts having jurisdiction of the ease and in the district where the plaintiff resides. " ^^ This provision 10.36 St. at L. 1103, Comp. St. 12 24 St. at l! 50n, C. H. .1.59, 's. 5, § 1041. Oomp. St. 752. 1136 St. at L. 1103, Comp. St. §1042. 232 ORIGINAL JURISDICTION [§61 has not been repealed by the Judicial Code.^^ An objection that such a suit is brought in an improper district is waived unless specifically made before pleading to due merits.^* A demurrer that the Court has no jurisdiction of a defendant, or subject of the action ; does not raise this objection." "Whether this require- ment applies to suits where the plaintiff resides^ outside of the United States has been doubted.^^ The Judicial Code further provides : " § 48. In suit^ brought for the infringement of letters patents 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; of 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 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 disteiet in which suit is brought. " ^'' The Copyright Act of March 4, 1909, provides: "That civil actions, suits, or proceedings arising under this Act may be in- stituted' in the district of which the defendant or his agent is an inhabitant, or in which he may be found. "^^ It has been said that the action may be brought in the district where there is infringement by either the principal or his agenti ' It seems that this authorizes the suit to be brought in any district in which defendant's agent may be found employed as'defendaht's representative. 18 The apparent purpose of the act is to permit suits to be brought in any district where acts of infringement are being committed.*" 18U. 8. V. Hvoslef, 237 U. S. 1, 11. 19 Warner v. Wilson, 225 Fed. Ulbid. 237 TJ. S. 1, 12. 912; West Pub.! Co. v. Edward 16 Ibid. 237 V. S. 1, 8. Thompson Co., U. S. C. C;, S.,D. N. 18 U. S. V. N. Y. & O. S. S. Co., Y., January 5, 1911;, ]V[r. William B. C. C. A., 216 Fed. 61. Hale in 13 Corpus Juris, 1194. ".,36 8t at L. 1087. See infra, 20 Ibid.; Lederer v. Rankin, 90 ^ 62. Pe,j. 449 . Lederer v. Ferris, 149 18 35 St. at L. 1075, S 35; infra, Fed. 250. Contra, Fraser v. Barrie; S62. 105 Fed. 787. § 61] LUVtlTATION BY RESIDENCE 233 "Every applicant for registration of a trademark or for re- newal of registration of a trademark, who is not domiciled 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 affect- ing the right of ownership of th'e trade^mark of which such appli- cant may claim to be -the owner, brought'under 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, regis- trant 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. " *^ A suit by the owner of a patent, trade-mark, print, label, or copyright, a license to use Which is , granted under the Act of October 6, 1917 against Trading with the Enemy may file a bill in equity against the licensee in' the District court for the dis- trict in which the licensee resides, or, if a corporation, in which it has its principal place of business, to recover for use and enjoy- ment of the right granted by the license.** In proceedings in equity to restrain violations of the provisions of laws of'thc 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 inclos- ure." ^^ In suit^ by the United States for injunctions, under the ''Act td protect trade and commerce against unlawful restraints and monopolies." Usually called the Sherman Act whenever it ap- pears to the couri 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.^ The order ' may be obtained as soon as the bill is filed ZlAct of February 20, 1905, 33 23 Jud. Code, §24, subd. 21, 36 St. at L. 724, § 3, 10 Fed. St. Ann. St. at L. 1087. 22 40 St. at'L. 420; o. h. 106; § 10; 24 Act of July 2, 1890, 26 St. at CoJrip.' si 3115. See iiifrd, §§87, L. 209, §5; XT. S. v. Standard Oil' 146. • Co. of New Jersey, 152 Fed. 290, 234 ORIGINAL JURISDICTION [§ 61 before the issue of a subpoena for the resident defendant and without notice to him.^' The Act of October 15, 1914, which is known as the Clayton Act provides : "Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any District court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover three fold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." ^^ And again: "Any suit, action, or proceeding under the anti- trust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, .but alfeo in any dis- trict wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found. "^'' When the de- fendant transacts business, within a district it may be sued in the District court there held although it has no agent within such dis- trict, seiTrice being made at the defendant's domicile.** But i1 cannot be sued in a district where it is not incorporated and tran- sacts no business; although its agent is found there, when the latter is not acting in his representative capacity.*' The word "found" means that the corporation must be pres- ent in the district, or its officers or agents carrying on its busi- ness.^" What constitutes such a business as will subject a cor- poration to service of process depends upon the facts in each case.^^ The general rule is that the business must be of such a nature as to warrant the inference that the corporation has sub- jected itself to the local jurisdiction.^* The ownership of stock in local corporations, the publication of advertisements within 25 IT. S. v. Standard Oil Co., 152 28 Southern Photo Material Co. v. Fed. 290. This section was not re- Eastman Kodak Co., 234 Fed. 955. pealefl by the Judicial Code. Wogan 29 Frey & Son, Inc., v. Cudahy Bros., Inc., v. American Sugar Eefin- Packing Co., 228 Fed. 209. ing Co., 215 Fed. 273. , 30 People's Tobacco Co. v. Am. 26 38 St. at L. 731, Comp. St. Tobacco Co., 246 U. S. 79, 84; U. S. 8835 D. V. Am. Bell Tel. Co., 29 Fed. 17, 27 38 St. at L. 736, Comp. St. infra, § 164b. 8835K; Southern Photo Material 31 Ibid. See m/ro, § 164b. Co. V. Eastman Kodak Co., 234 Fed. 32 Ibid. TJ. S. v. Am. Bell Tel. 955. Co., 29 Fed. 17. § 61] LIMITATION BY RESIDENCE 235 the district, and the presence there of agents without authority to sell, to collect, or to extend credit who solicit orders which are filled by jpbbers who buy from the corporation will not subject it to the service of process there.^^' The Act of October 22, 1913, provides: "The venue of any suit hereafter brought' to enforce, suspend, or set aside, in whole or in part, any order of the Interstate Commerce Commission shall be: in the judicial district wherein is the residence of the party or any of the parties upon whose petition the order was made, except that where the order does not relate to transporta- tion or is not made' upon the petition of any party the venue Shall be in the district where the matter complained iof. in the petition before the commission arises, and except that where the order does not relate either to transportation or to a matter so com- plained of before the commission the rriatter covered by the order shall be deemed to arise in the district where one of the petition- ers in court has either its principal ofSce or its principal operat- ing office. In case such transpbrtation relates to a through shipment the term 'destination' shall be construed as meaning final destination of such shipment."^* A suit to review an order establishing rates for railroad trans- portation may be brought in the district in which the petitioners reside or have their principal office although the railroad company has its principal ■operating office in another district.'^ A suit by a railroad company to restrain a State official from interfering with the maintenance of intra-State rates adopted in pursuance of an order of the Interstate Commerce Commission is not brought to enforce the order within the meaning of the statute and need not be brought in the district of the residence of any of the parties upon, whose petition the order was made.'* With- out the consent of the United States, a Federal court in a district where the petitioner does not reside cannot in a suit io aid of such. an order entertain a cross bill praying that the order be set aside and the United States and the Commission enjoined ss Ibid. *^ McLean Lumber Co. v. IT. S. 34 38 St. at 1j.'219, Oomp. St. 994. 238 Fed. 460. This Act was not repealed by the S6 Illinois Central E. R. Co. v. Judicial Code: St. Louis S. W. Ey. Public Utilities Cbrnmissio*; 245 U. Co. V. 8. Samuels & Co., C. 0. A., S. 493. 211 Ted. 588. ^36 OIUGINAL J URISUiCTIOl?} [§ 6l from its enforcement and. the carrier from compliance there- with." ■The Judicial Code further provides: ; " § 49. AH 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. " ** : - 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. " ^* i The Judicial Code- provides : "That no ease arising Under an act entitled 'An Act relating to the liability of common carriers by railroad to their employees in certain cases,' approved April twenty-second, nineteen hundred and: eight, or any amendment thereto, and brought in any State court of competent jurisdic- tion shall be removed to any court of the United States. ' ' *" The District Courts can take original jurisdiction of suits in the cases above specified.** A railway company which receives and delivers freight at piers within the> distript and has anof&ce building therein is liable to suit under this statute there although none of the commerce in which the injured servant was employed took place in the district.*^ Greneral Order 18 issued by the Director General of Railroads as amended April 9, 1918 provides: "All suits against carriers while under Federal control must be brought in the county Or district where the plaintiff resides at the time of the accrual of the cause of action or in the county or district Tvhere the cause of action arose. " *^ 37 Illinois Cent. E. E. Co. v. Public 43 See Cocker v. N. Y. 0. & 'W. Ey. ■Utilities Commission, 245 IT. S. 493. Co., 253 Ped. 676; Muir v. Louis- 38 36 St. at L. 1087. ville & N. R. Co., 247 Fed. 888; 39 36 St. at L. 291. Cocker v. N. T. & O. Ey. Co. 253 40 28, 36 St. at L. 1087. Fed. 676;, Harnick v. Pennsylvania 41 Connelly v. Central E. Co. of N. R. Co., 254 Fed. 748. See infra, .T. 238 Fed. 932. § 96i. 4ZIbid. § 61] LIMITATION BY RESIDENCE 237 The Act of August 13, 1894, concerning sureties upon govern- ment contracts, prWides: "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; has now or hereafter may have jurisdiction of actions or suits upon such recognizance, stipulation, bond, or undertaking, in the district in which such recognizance,, stipulation, bond, or undertaking was made or guaranteed, or in the district in ;which the principal office of such company is located. And f oi^ the purposes of this Act such recognizance, stipulation, bond, or undertaking shall be treated as made or guaranteed in the dis- trict in which the offlce is located, to which it is returnable, or in which it is filed, or in the district in which the principal in such recogiaizance, stipulation, bond, or ujidertakiug resided when it was made or guaranteed."** The same statute further provides: "That no such com- pany shall do business under the provisions of this Act beyond the limits of the State or Territory under whose laws it was incorporated and in which its principal office is located, nor beyond the limits of the, District of Columbia, when such com- pany was incorporated under its Jaws or under the laws of, the United States and its principal office is located in said District, until it shall by a written power of attorney appoint some per- son residing within the jurisdiction of the court for the, judicial district wherein such suretyship, is to be under1;akeii, who shall be a citizen of the State, Territory, or District qf ,Columbia, wherein such court is held, as its agent,, upon whom may be served all lawful process against such compai^y, and who shall be authorized to enter an appearanqe in its behalf. A copy of such power of attorney, duly certified and authenticated, shall be filed with the clerk of the district court of the United States for such district at each place where a term of such court is or ntay be held, which copy, or certified copy thereof, shall be legal' evidence in all controversies arising under this Act. If any such agent shall be removed, resign,. ;or die, be- come insane, or otherwise incapable of acting, it shall be the duty of such company to. appoint another agent in his placp as 44 28 St. at L. 279, eh. 282, § 3, Comp. St. § 3297. 238 OBlGINATi JURISDICTION [§ 61 hereinbefore prescribed, and until sueh appointment shall have been made, or during the absence of any agent of such company from sueh district, service of process may be upon the clerk of the court wherein such suit is brought, v?ith like effect as upon the agent appointed by the company. The officer executing such process upon such clerk shall immediately transmit a copy thereof by mail to the company, and state sueh fact in his return. A judgment, decree, or order of a court entered or made after serv- ice of process as aforesaid shall be as valid and binding on such company as if served, with process in said district.*^ "The district courts of the United States shall have original cognizance to entertain suits in equity begun by bills of inter- pleader where the same are filed by any insurance company or fraternal beneficiary society, duly verified, and where it is made to appear by such bill that one or more persons, being bona fide claimants against such company or society, reside within the jurisdiction of said court; that such company or society has made or issued some policy of insurance or certifi- cate of memibership providing for the payment of a sum of mouey of at least $500 as insurance or benefits to a beneficiary or beneficiaries or to the heirs, next of Mn, or legal represen- tative of the person insured or member; that two or more ad- verse claimants, citizens of different states, are claiming or may claim to be entitled to such insurance or benefits and that such company or society deposits the amount of sueh insurance or benefits with the clerk of said court and abide the judgment of said court. In all such eases the court shall have the power to issue its process for said claimants, returnable at sueh time as the said court or a judge thereof shall determine, which shall be addressed to and served by the United States marshals for the respective districts wherein said claimants reside or may be found; to hear said bill of interpleader and decide thereon according to the practice in equity; to disehatge said com- plainant from further liability upon the payment of said in- EiUrance or benefit as directed by the court, less complainant's actual court costs ; and shall have the power to make such orders and decrees as may be suitable and proper and to issue the necessary writs usual and customary in sueh cases for the pur- 45 Ibid, § 2, Oomp. St. § 3294. § 61] LIMITATION BY RESIDENCE 239 pose of carrying out such orders and decrees; Provided, That in all cases where a beneficiary or beneficiaries are named in the policy of insurance or certificate of membership or where the same has been assigned and written notice thereof shall have been given to the' insurance company or fraternal benefit society, the bill of interpleader shall be filed in the district where the beneficiary or beneficiaries may reside. ' ' *•" The Judicial Code continues : " § 40. The trial of offenses punishable with death shall be had iii the county where the offense was committed, where that can be done without great inconvenience.*''' " § 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 of- fender 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, determiined, and punished in either district, in the same maimer 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 they accrue or in the district where the offender is found. " ** The Judicial Code continues : " § 44. Taxes accruing under any law providing internal revenue may be sued for and re- covered either in the district where the liability for such tax occurs or in the district where the delinquent resides. ' ' ** 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 district in which the violation of the law was committed' or in any district through which the transportation was conducted.^" 46 Feb. 22, 1917, e: 11.3, 39 St. at 19 36 St. at L. 1100, Gomp. St. L. 929, Comp. St. § 991a. ' §§ 1022-1026. iT See infra, § 525. BO Act 'of June 29, 1906, M St. at 48 This applies to a suit to re- L. 584, 588. cover the penalty for the importa- tion of contract labor. Tomkins v. Paterson, 238 Fed. 879. 240 ORIGINAL JUEISDICTION [§61 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.^^ Courts of admiralty have jurisdiction in proceed- ings in rem wherever the property is seized and in proceedings in personmn wherever the person is served with process. ^^ The sections of the Judicial Code fo'llowing preserve this general jurisdiction of courts of admiralty over certain proceedings in rem.^* It has been held : that the exception of suits " of a local character," in a statute defining the territorial jurisdiction of a particular District Court, 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 admi- ralty is a suit of a local nature, and consequently must be prose- cuted in the division where the vessel ii seized, although her home port is in another division.^* ' ' §. 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. " § 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 em- ployed, in aiding, abetting, or promoting any insurrection against the Government of the United States, or knowingly so used or employed by the owner thereof, or with his consent, may be prosecuted 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 51 Se Louisville TJnderwriters, 134 64 D. Washington v. The Willa- U. S. 488, 33 L. ed. 991. mette, 53 Fed. 602. 52 Ibid. BSJud. Code, §§45, 46, 47, 36 St. at L. 1087. § 61] LIMITATION BY RESIDENCE 241 the President in- pursuance of law, or of goods and chattels coming from a' Steitfe or section ^ declared by proclamation of' the Presidents to be in insurrection into other parts -of the United States, or of any vessel or vehicle conveying: such prop- erty, or conveying persons to or from such State ■ or* section, or of any vessel belonging, inJwhole or in part, to any inh'ajbi- tant of such State or section, may be prosecuted' in ally 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 thait district."** Jurisdiction of a pijoceeding for the forfeiture of smuggled goods exists only in the district of seizure, which is the district in which the goods, if on land, are found. A collector' cannot, by carrying them into another district and there making the formal seizure confer jurisdiction of the ptoeeeding on the court in such district.*^ "Whether; admiralty jurisdiction re- mains otherwise the same as before the enactment of this Code,. has not been decided.' Courtsof 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 prin- cipal place of 'business, reside, or have their domicile within' the United States, but have property within their jurisdiction) i or who have been adjudged bankrupts by courts of competent jurisdiction without the United States ^.nd have property within their jurisdiction,"*'' and "exercise ancillary jurisdiction over persons or property within their respective territorial limits in aid of a receiver or trustee appointed in any bankruptcy proceedings pending in any other court of bankruptcy. ' ' *8 The extent to, which juris(iietipn in suits by aliens is affected by the residence of the parties, is .discussed in a previous section:*^ Proceedings to cancel a certificate of citizenship issued to a 56 36 St. at L. 1100, Comp. St. 57 30 St. at L. 544, |2. See § 1030. ' ' infra, § 615. 56 U. S. V. Larkin", C. C. A., 153 68 Ibid., as amended 36 St. at L. Fed. 113. See TJ. S. v. Whitcomb' 838. ' See infra, §612. M. B. Co., 45 Ted. 89. &9 Supra, §45. Fed. Prac. Vol. 1—16 242 ORIGINAL JURISDICTION [61a naturalized citizen should be brought in the district where he resides at the time the suit is brought.^* It has been held that such proceedings may not be brought in a district where the naturalized citizen is in prison when his residence at the time of his conviction was elsewhere.®^ §61a. Residence in suits by the United States. A suit by the United States, unless the statute authorizing the same other- wise provides, can be brought only in the district of which the defendant is an inhabitant.^ 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.^ The Act of Au- gust 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 controversy in such suit and not elsewhere. ' ' ^ Before the Judicial Code, it was held that this authorized the Federal court in such disttiet to obtain jurisdiction of the persons of non-resident defendants through the service upon them of its process in whatever dis- trict they might be found.* § 61b. Residence in suits arising under the Constitution or laws of the United States. Where the jurisdiction depends upon the existence of a Federal question, and is exclusive, the suit must be brought in the district of the defendants' resi- dence ; ^ except in those cases arising under the spesial statutes ' 60 34 St. at L. 601, Comp. St., applied only to suits by claimants §4374; infra, § 151b. for labor or material supplied to 61 XJ. S. V. G-oodiich, 211 Fed. the contractor and not to one 548. brought by the Government for its S 61a. 1 U. 8. V. No. Pac. E. Co,, own benefit. XJ. S. v. McGee, 171 C. C. A., 134 Fed. 715 ; Kirk v. U. Fed. 209. See § 5a, sup^-a. S., C. C. A., 187 Fed. 753 ; affirmed i V. S. v. Congress Construction 199 IT. S. 607. Co., 222 U. S. 199. See, also, XJ. S. 2 Kirk V. U. S., C. C. A., 137 Fed. v. Schofield Co., 182 Fed. 240. 753 ; affirmed 199 XJ. S. 607, 50 L. § 61b. 1 Macon Grocery Co. v. ed. 331. Atlantic Coast Lino K. R. Co., 215 3 28 St. at L. 278, amended 33 XJ. S. 501, 54 L. ed. 300; affirming St. at L. 811. It was held that this Atlantic Coast Line B. Co. v. Ma- § Olb] RESIDENCE IN CASES UNDER PEDEBAlj STATUTES 243 which have been described in the preceding sections of this work.^ It has been said that the official resideilce of the commissioner of patents is in the District of Columbia and that suits against him in such capacity cannot be brought in any other district withoilt his consent.^ Where the jurisdiction depends upon the existence of a Fed eral 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;* 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.^ It has con Grocery, Co., C. C. A., 166 Fed. 206; Sii.nderland Bros. v. Chicago, K. I. &'P. By. Co., 158 Fed. 877; Memphis Oil Co. v. Illinois Cent. E. Co., 164 Fed. 290; Imperial Col- liery Co. V. Chesapeake & Ohio By. Co., 171. Fed. 589. Contra, North- ern Pac. Ey. Co. v. Pacific Cpast Lumber .Mfrs.' Ass'n, C. C. A., 0th Ct., 165 Fed. 1, 9, and cases cited. ^ Supra, § 61. 3 Barrett Co. v. Ewing, C. C. A., 242 Fed. 506. 4McCormick H. M. Co. v. Wal- thers, 134 U. S. 41, 4,3, 33' L. ed. 834; St. Louis,. V. & T. H. E. Co-, v. Terre Haute & I. E. Co., 33 Fed. 385, 386; In re Keasbey & Mat- tison Co., 160 IT. S. 221; Macon Grocery Co. v. Atlantic Coast Line K. Co., 215 U, s! 501, 54 L. ed. 300. SMcCormiek H. M. Co. v. Wal- thers, 134 TJ. S. 41, 33 L. ed. 833; Pitkin, Min. Co. v. MarkeU, 33 Fed. 386; St. Louis; V. & T. H. E. Co. v. Terre Haute & I. E. Co., 33 Fed. • 385, 386; Fales v. Chicago, M. & St. P. Ey. Co., 32 Fed. 673; Short v. Chicago, M. & St. P. Ey. Co., 33 Fed. 114; Gavin v; Vance, 33 Fed. 84; W. U. Tel. Co. v. Brown, 32 Fe'd. 337; Macon Grocery Co. v. At- lantic Coast Line E. Co., 215 TJ. 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., 191 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, Dancigei v. Wells, Fargo . & Co., 154 Fed. 379. 244 ORIGIN Ali JURISDICTION [§ 61(! been held that where the jurisdiction is founded upon the fact that the cause of action involves a Federal question and the requisite diversity of citizenship exists, the suit must be brought in the district where the defendant resides.^ Since the [per- mission to sue in the district of either the plaintiff or the de- fendant is limited to cases "where the jurisdiction is founded only on the fact that the action is between citizens of different .States;" where the plaintiff's pleading shows both such a dif- ference 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 defendant's habitation,'' unless the case falls within one of the: express statutory exceptions. Where such a suit was brought in a State where the- defendant did not reside, it was held that it could not be removed.* It has been held that where a count under a Federal statute, which authorizes a. suit in a district different from that of the residence of eitter party, is joined wi^th one arising under the comm.pn law alone ; the suit cannot be maintained in a district in which neither party resides.' § 61c. Residenjce where jurisdiction depends upon diversity of citizenship. Where the jurisdiction depends upon citizen- ship in different. States, tlie suit may be brought in the district in which either the pla,intiff or the defendant resides, provided the defendant can be duly served.^ Biit not in any other dis- 6 Macon Grocery Co. v. Atl. Coast Am. Tobacco Co., 178 Fed. 117. See Lino Co., 21.5 U. S. 501; Eailroad Sunderland Bros. v. Chicago, R. I. Gommissioners v. Burleson, 255 Fed. & P. By. Co., 158 Fed. 877; Atlan- 604. ■ • tic Coast Line E. Co. v. Macon Gro- 7 Imperial Colliery Co. v. Chesa- eery Co., C. C. A., 166 Fted. 206 ; peake & Ohio By. Co.y Powhatan ' C. Imperial Colliery Co. v. desapeake & Coke Co. V. Norfolk & "Western & Ohio By. Co., 171 Fed.' 589. By. Co., 171 Fed. 589 ; Cound v. § 61c! 1 McCormiek H. M. Co. Atchison,, T. & S. P. By. Co., 173 v. "Walthers, 134 D. S. 41, 33 L. ed. Fed. 527; Smith v. Detroit & T. S. 833; Pitkin Min. Co. v. Markell, 33 L. B. Co., 175 Fed.506!i Whittaker Fed. 386; St. Louis, V. & T. H. R. V. Illinois Cent, E. Co., 176 Fed, Co. v. Terre Haute & I. B. Co., 33 130; Newell v. Baltimore & 0. B. Fed. 385, 386; Fales v. Chicago, Co., 181 Fed. 698. M. & St. P. By. Co., 32 Fed. 673; 8 Boise Commercial Club v. Ore- Short v. Chicago, M. & St. P. By. gon' Short Line R. Co., C. C. A., Co., 33 Fed. 114; GaVin v Vance; 260 Fed. 769. 33 Fed. 84; "W. U. Tel. Co. v. , 9 Ware-Kramer Tobacco Co. v-. Brown, 32 Fed. 337; Marian Coal S 6lcl RESIDENCE IN GASES OF DIVERSITY OF tilTIZENSHIP 245 ti'iot,^' even by removal^ except by consent or waiver,* or, when service is by statute authorized in another (iistrict.?' When one of tlie plaintiffs lis a resident of the district; and the othijr plaintiff and the defendant are citizens of different Statesfrom those of each other and. of the plaintiff, and are both non-residents, the Federal court has no jurisdiction,* either originally 'i'i or by re- moval.* .Where pMntiffs Are citizens- and residents of different . Statesj and thedefendant da a citizen and resident of a. third State, the suititlay Be brought in the district of the defendant's residence.? Where the- defendalmts are,", residents of different States, the) suit cannot be brought in any district except that of theplaintiffi'sresidence.^? iWhdnbrotight imthe residence of some but not all of the defendants only thenon-resident can take 'this objection. ^^ And if he ib' not an indispensable 'party the suit *ill be retained as regards the others. ^^ This will 'be' done when an- actibil is brought against joint debtors. ^^ The def endaht can- Co. V. Peale, C: C. A., 204 .Bed. 161; Lehigh Valley Coal Co. , v.. ,'vy;aphko,, c. ,c. ,A., 234,1 rea,,^.4;?;. Twin Lakes Land & Water Co. v. Dohuer, C, ,C, A., , 242, Fed. 309; Tate V. , Baugh, , 252 , Fed. 3 17. ;, 2 Lindsay v. Chieago,,,B. & Q. E. Qo., Q. C. A; 22^ Fed. ,23. J 3 Ex parte: Wisner, 203 rXJ, S. 449, 51 L, ed. 264; H. .J, Deckeir, Jr. & Co. V. Southern Ry. Co., 189 Fed. 224; W. U. Tel. Go. v. Louisville & N. E. R. Co., ' 201V Fed. 932; Guaranty &■ Tr. Co; v. McOabe, C. C. A., 250 Fed. 699, certiorari denied, 247 TJ. S.' 505, 3» Sup. Ct. 427, 62 L.' ed. 1240; Boise Commercial Club'v. Oregon Short Line E. Co., C. C." A., 260' Fed. 769,' afid eases cited. Contra, Eubbfir '& Celluloid Harness Trimming Co. v. John L. Whiting- J. J. Adams Co., 210 Fed. 393; Louisville &; Nashville S;E. 60. y. W^estoTn Union Tel. Co., 218 Fed. 91; Hohenberg & Co. y. Mqbile Lin- ers, 2.45,. Fed. 169 ; James y. Ama- rillo Light & Power ! Co.,' 251 TFed. 337. .See infxa, ,%$2b^. ^A,, ■4See in/TO,^§§,62a,,170. , ,,- , 5 Supra, § 61. , Sgmith V, Lyon, 133 TJ.. g. ,315, .33 L.ed. 635,. Moffat v. Soley, Fed. , Gas. l>{o',^ . 9,688, ' 2 Paine, , 103 ; Elk- hart Nat.', B,a,nk v^.N. V. g' h- Co., .84 Fed. 76; Hjibbard .v.. Northern Railroadj Co., Fed,., Gas. ,Nq. 6.,818, 3 Blatchf. 84,,25 Vt. 715. 7 Carl Laemmle Music Co., v. Stern, 209 i^-^d, 1?9. SPjOorman, v. Cleveland, C, p. & St. L. Ey. Co.j ,255,.^F^d; 987. I , 9' Sweeney ,y. Carter Oil ,C,o.,, 1^9 U. S. 252, 50 L. ed. 178.'"^ , . lO.Ca-mp.y. Gress,, 25,0 U, 8,' ,308, reyeraiug, C. C. A., 244''Fedj, 121, , and ,oyerriiling . a number of ^asps in the courts. Ipelow. , ,,,,, llCam,p y.',Gress, 250,",U, S.;^d8; Bensiuger Self -Adding , Cash Reg. Co. V. Nat'. Cash Reg. Oo.,.'42,., Fisd. 81- „,-.,-. , "„:",'"i"" I81bid. I "\ , 246 ORlQINAIi JURISDICTION [§ 61c not remove a ease to a district where nfiither party resides,'* and if he so attempts, the plaintiff may have the case remanded. '^ It has been held that the assignee of a cause of action, when the jurisdiction is founded upon diversity of citizenship, 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.'® It has been said that "the words 'inhabitant,' 'resi- dence, ' and ' resident, ' as used in the statute, are synonymous. To hold otherwise is to add confusion.''''?'' "The word inhabi- tant in that act was apparently used not in any larger meaning than ' citizen, ' but to avoid the incongruity of speaking of a citizen of less than a State, when the intention was to cover not only a district which included a whole State, but also two districts in one State. ' ' '* The word ' ' inhabitant ' ' seems how- ever, to be more limited than resident. '^ Inhabitancy within the State, iwhich is divided into two districts, is not inhabitancy in both of them.^" 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,^' even when they are the only UEx parte Wisner, 203 U. S. Gronich, 2ll Fed. 548; Thomas v. 449,, 51 L. ed. 264; Yellow Aster South Butte Mining Co., C. G. A., Min. & Mill. Co. v. Crane Co., C. 230 Fed. 968. C. A., 150 Fed. 580; Goldberg, 19 For oases of residence, s6e Bowen & Co. v. German Ins. Co., King v. TJ. S., 59 Fed. 9; Riveils v. 152 Fed. 831; H. J. Decker, Jr. & Bradley, 53 Fed. 305; Reckling v. Co. V. Southern By. Co., 189 Fed. McKinstry, ' 185 Fed. 842. 224. 20 Wange v. Public Service Ry. 16 Sa parte Wisner, 203 U. S. Co., 159 Fed. 189. 449, 5l L. ed. 264; H. J. Decker, 21 Greeley v. Lowe,a55 U. S. 58, Jr. & Co. V. Southern Ry. Co., 189 39 L. ed. 69; Dick v, Poraker, 155 Fed. 224, 51 L. ed. 264. See infra, U. S. 404, 39 L. ed.;201; Carpe,nter §63. V. Talbot, 33 Fed. 537; Pollitz y. ISStrinson v. United Wrapping Farmers' L. & Tr. Co., 39 Fed. 707; Machine Co., 156 Fed. 298. Cori- Ames y. Holderbaum, 42 Fed. 341; tra, Waterman v. Chesapeake & O. U. 8. y. Southern Pac. R. Co., 63 Ry. Co., 199 Fed. 667. ' Fed. 481; Wheelright v. St. Louis, IVBogue V. Chicago, B. & Q. R. N. 6. & 0. Canal Co., 50 Fed,' 709; Co., 193 Fed. 728, 733, Smith Mc- Texas Co! v. Central Fuel Oil Co., Pherson, J. C. C., A., 194 Fed. 1; IngerspU v. 18 Gray, J., ,in Shaw v, (^uincy Coram, 211 IT. S. 335, 53 U e,&i 208; Min. Co., 145 U. S. 444, 447, 36 L. Howard v. National Telephone Co., ed. 768, 770. See United States v. 182 Fed. 215, infra, § 166. See 5:6M] EESIDENiCE OF CORPORATIONS 247 defendantsi.^^ The limitation of the jurisdiction to the place of - the residence of the parties does not apply to local actions, such as ejectment,^* or for trespass upop. land.** Such actions; can only- be brought in the district where the land is situated ; and they may there be brought, irrespective of the • residence of thei parties and without the procurement of an order 'for the service of process outside the district; provided that the necessary difference of citizenship exists and that the defend- ant can be found there.^* When there is^ no Federal question involved, an action begun in the State court between two non-residents by an attachment cannot be removed, although the necessary difference of citi- zenship: exists.*® ; , § 61d. Residence of corporations. A corporation oharterecl by one of the United States cannot have a residence in another State,^ even where it has, as a condition of doing business therein, filed a stipulation authorizing service of process upon its agents within the State and agreeing not.to remiove a suit to the Fed- Kulm V. Morrison, 75 Fed. 8J; ,but, see Detweiler v. Holderbaum (G. C), 42 'Fed.' 337.' ''" '' '"','' 82 Dick v. Foraker, 155' U. ^. 404, .39 L. ed. '201;' Wheelright V. St. Louis, N. O. & O. Canal Co., 50 Fed. 7,09; U. S..V. Southern Pac. R. Co., 63 Fed. 4,81; Single v. Scott Paper Mfg. Co., 55 Fed. 553. 23 Spencer v. .. Kansas City Stock Yards Co., 56 Fed. 741 ;: Elk. Garden Co. V. T. W. Thayer Co., 179 Fed. 556. 24 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, Fed. Case No.. 8411;' Northern In- diana Ey. Co., ;v. Michigan Cen- tral By. Co., 15- How. 238, 14 L. ed. 674; Bllenwood iv. Marietta Chair Qo., 158 U. S. 105, 15 Sup. Ct. 771, 39 L. ed. 913. 26 Spencer v. Kansas City ; Stock Yi^rds.Co., ,56: Fed. 741;, Kentucky Coal. Lands Co, v. Minersil Dqyelop- ment Co.,' 191' Fed. 899. See infra^, §64. '■ '■ ■ ' ' ■ ''' ' 28 George v. Tennessee Coal, Iroli & R. Co., 184 Fed. 951. § 61d. IShaw v. Quincy Min. Co., 145 U.' S. 444, 453, 36 L. ed. 768, 772; Galveston, H. & S. A. Ry. Co. v. Gonzales, 151 TJ. S. 496, 38 L. ed. 248; Southern Pac. Co., v. Arlington i Heights F'ruit Co., C. 0. A., 191 Fed. 101; Stone v. Chicago, B. & Q. B. Co., 195' Fed. 832; Thomas'. 'V. South Butte Min. Co., C. C. A., ,230 Fed. 968.. Adzenoska r. Erie R. Co., 210 Fed. 571; Yan- iiszauckas v. Mallory S. -S. Co., C. C. A., 232 Fed.: 132; Vitkus v. Clyde S. S. Co., 232 Fed. 288; Lukosewiez v. Phila. & Reading Coal & Iron Co., 232 Fed. 292; Best v. Great Northern Ry. Co., 243 Fed. 789;- Budris v. Consolidation Coal Co., 251 Fed. 673. 248l: ORIGINAL JURISDICTION [§-61d ei-al court on the ground of difference of citi^ensHip or non- residence.^ In the abs&neeof any provision in the charter, the? principal office and the , domicile of a railroad company incor- porated by Congress are 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.* Where a State contains more than one Federal judicial district, a corpo-' ration of the State is presumed- to be a i'esident 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 requirements.* "Where a State is divided into several Federal districts, it seems : that the district of the resi- dence of a domestic corporation is fixed by the State statute,^ and that where jurisdiction depends upon the defendant's resi^ dence it cannot be sued in any other district in the state.® The residence of a corporation is usually determined by either the location of its principal place of business or the per- sonal residence of the party whom it has appointed as its attor- ney-of-faet upon whom service of process may be made.''' Where a domestic corporation failed to ' comply with the statute of West Virginia,* by filing a powqr of attorney appointing a private individual with autiiority to accept service of process 2 Southern Pac. Go. v; Denton, * Firestone Tire & Eubber Co. v. 146 U. S. 202, 207, 36 L. ed! 943, Vehicle Equipment Co., ' 155 Fed. 945. 676. S Interstate" ■ Com. Com. v. Texas 5 Lemon v. Imperial Window & Pac- By. Co., 57 Fed. 948, 955;' Glass Co., 199 Fed. 927; Stimson Texas- & Pae. Ey. Co. v. Interstate v. United Wrapping Mach. Co., 156 Com. Com., 162 U. S. 197, 204,i 40 Fed. 298. See Dulles v. H. D. L. ed. 940, 942. It has been held Crippen Mfg. Co., 156 Fed. 706; that the Texas & Pacific By. Go. Cincinnati H. & D. By. Co. v. Orr, was an inhabitant of Dallas County, 215 Fed. 261. Contra, Consolidated Texas, where it maintained an office, Eubber Tire Co. v. Ferguson, 169 which it designated as its general Fed. 888 s. c, C. C. A., 183 Fed. office, and where all the acts' of the 756; Waterman v. Chesapeake ' &' board of directors in New York wore 01;iio By. Co.,^ 199 Fed. 667; Guar- subsequently affirmed at a board anty Trust Go. v. 'McOabe, C. C. A., meeting, the senior vice-president 217 Fed. 699. living in the same county. Matter 6 Ibid. of Dunn, 212 U. S. 374, 388, 53 L. T Ibid. See infra, § 164a. od. 558, 564. ,1, ' 8 Code W. Va.; §2313. ' §■ 62] RESIDENCE IN I'ATENT: CASES 249 and with other statutory pbwers, but -had complied with' :an- other statute appointing; the State auditor its attorney to accept such service; it was held to he liafele 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.': ■• : , • § 62. Residence in patent cases. The Judicial Code pro- vides: "§,48.; In suits brought for the infringement of letters patent the, District courts of the tJni ted i States shall have juris- diction, in law or in equity, in the district of which the defend- ant is an inhabitant, or in any distrietiin which the defendant, whether, a person, partnership, on corporation, shall have com- mitted 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 inhabitant^ ;but in, whidh such defendant hasi a regular and established place- of ibusiness, sei?vice of process, summons, or subpoena upon .the defendant may be maide.iby service upon the agent or agents- engaged in. cdndueting isueh ■business in the district in which suit is brought." ^ i ,< ! 'In a suit to enjoin the infringement of a patent, the defend- ant, even df. he is an alien,^ may be sued in any district where his infringement occurred, df» ihe has a regularly established place of busiliess there, or else in the district of which be is an inhabitant,* but unless he is ah alien, not elsewhere.* ' It has been held that such a suit against an alien may be maintained in any district where he can be served.* When the suit js brought in the district of which the de- 8 Lemon v. Imperial Window Noonan v. Chester Park Athletic Glass Go., 199 Fei. 927. '" Club Co., 75 Eed.' 334. , , §62.. 1,361 St. at L. 1087. 4 Peaer v. A. B. , Fiedler & Sons, ZUnited Shoe Maiehinery Cd.'' v. 116 Fed. 378; Underwood Type- Duplessis Independent Shoe Machin- writer Co. v. Fox Typewriter Co., ery Co., 133 Fed. 93.0; Smith : v. 158 Fed. 476. Farbenfabriken of Elberfeld Co., 5 Sandusky Foundry & Machine C. 0. A., 203 Fed. 476. . ' Co.j' v. De Lavaud, 251 Fed. 631. SBowers v. Atlantic G. & P. 'Co., Smith v. Farben^fabrikeii ( of Fiber ■ ,104 Fed. 887; Ohieaga Pneumatic 'feldi Co., C. C. A., 203 Fed. -476; Tool Co. V. Phila. Pneumatic Tool Arbetter Felling Maeh. Co. v. Lewis Co., lis Fed. ,852; U,. S. Consnl. .Blind Sitoh: Machiy G. C. A., 230 Seeded Eaisin Go. v. Phoenix Baisin, Fed. 992. 'Supra, §45.., S. & P. Co., 124 Fed. 234. But see 250 ORIGINAL JURISDICTION [§ 62 fendant is not an inhabitant, he must have a regular and estab- lished place of business there, at the time when the suit is brought.^ Whether that was the ease at the time of the com- mission of the acts of infringement there^ is immaterial.'' The maintenance of "an established place of business" in the district Will not give jurisdiction if no act of infringement was there committed.* ' It has been held: that a corporation cannot be sued in a district where it has no regular and established place of busi- ness, although it has one in another district in the same State, which is the State of its incorporation, and it is charged with an infringement made jointly with other defendants 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.' That where the non-residence of defendant ap- pears in the bill, there must be averments of infringement in the district.^" But that the phrase, "maintains a regular and established place of business,'' need not be used where that fact appears from the allegations. That a bill against a corpo- ration and its president and gen'eral manager, who isi so de- scribed, 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. ^^ That where the defendant sells the infringing articles at a fixed place within the district and. also assembles different parts of the same, there the court has jurisdiction.^^ Where the 6 Feder v. A. B. Fiedler & Sons, 10 International Wireless Tele- 116 Fed. 378; Underwood Type- graph Co. v. Fessenden, 131 Fed. writer Co. v. Fox Typewriter Co., 491; National El. Signaling Co.- v. 158 Fed. 476. Telefunken Wireless T^elgraph Co., 7 Underwood Typewriter Co. v. 194 Fed. 893. Fox Typewriter Co., 158 Fed. 476. 11 Thomson-Houston El. Co. «. 8 United Autographic Register Co. Eleetrose Mfg. Co., 155 Fed. 543. V. Egry Register Co., 219 Fed. 637 ; 12 Am. Stoker Co. v. Underfeed U. S. Envelope Co. v. Transo Paper Stoker Co., 182 Fed. 642. Spo Co., 229 Fed. 576. Consol. Rubber Tire Co. v. Diamond 9 Cheatham El. Switching Device Rubber Co., C. C. A., 21.5 Fed. lOO. Co. ■/. Transit Development Co., 191 Fed. 727. § 62] BESIDENCE IN PATENT OASES 251 de.fe'ndanti sells througji mail orders whieli he receives and makes the coUeotions at his home .but, keeps, his goods, in a warehouse from whieh they are shipped within another district, he has a "regular and established place of business" in the latter and can there be sued for infringement of a patent." Proof that the defendant, whp 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 hasi an (established place of business there." The complainant has the burden of : proof to establish aii infringement, within, the district and ithe . maintenance by the defendant of a regular established;. place of business there.^^ It has been held: that a foreign corporation does not have a "regular and established place of business," in a district where it has a salesagent who keeps an office there at his own expense and takes orders on commission which are filled at the principal office of the company where it also makes the collections.^^ Nor where, it keeps an office in the district with one stenographer and a salesman in charge who solicits orders which are filled in another district from which collections are made.^''' Nor where its goods are sold by a jobber whom it; agrees to pro- tect against patent suits although its letter-heads give addresses in different places, including one in the district of the suit, and the man in charge of the jobber's office states that they are the representatives of the company in such district.^' 13 Smith V. FarBenfabriken of El- in New York, Eumf ord Chemical berfeld Co., C. C. A., 203 Fed. 476. Works v. Egg: Baking Powder Co., 14 Edison v. Allis-Chalmers Co., 145 Fed. 953. See also the note to 191 Fed., 837. Bailey v. Mosher, 11 C. C. A., 304, 15 Underwood Typewriter bo. v. 313. Fox Typewriter Co., 181 Fed. 041. 16 General El. Co. v. Best El., 220 For another case of defective proof. Fed, 347 ; United Autographic Eeg- see Consolidated Rubber Tire Co. v. ister, Co. , v. Egry Register Co., 219 B. F. Goodrich Co., 195 t'ed. ,764. Fed. 637. . , It has been held that proo;f that 17 Amer. El. Welding Co. v. La- the label, "New York," was upon lance Grosjean Mfg. Co., 256 Fed. infringing articles sold in anoth,er 34. State by a corporation with a reg- 18 Stryker Deflector Co., Inc., v. ular and established place of, busi- Eerrin Mfg. Co., C; C. A., 256 Fed. ness in New York, is insuf&cient to 656. prove that they were manufactured 252 ORIGINAL JTJEISDICTION [§ 62 The employment of an agent in the district who in the course of his business uses infringing articles, and who has po^^er to make a contract in the district, is immaterial if the defendant has no regular and establislied place of business there.*' It has been held: that paying an agent to solicit orders to be exe- cuted at the office of its ■ domicile, sharing the expenses of the^ agent; including salary and rent, with another corporation which employs him, when he merely solicits orders which are executed at the home office; is not the maintenance of a regular and established place of business.^" That proof that salesmen of the defendant exhibited infringing articles within the district and that one of them said that his employer had sold mauy there, is insufficient to establish the jurisdiction'.** It is necessary to prove and allege a complete act of infringe- ment wi1;hin the district and not merely a threat or an evident purpose to infringe there.*^ The contributory act within the jiirisdiction must be ■pi'Oved to have resulted in a complete in- fringement.*' ' The provision that service of process may be made upon the asgent 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;** Under the former statute, it was held that a suit to compel the issue of a pateBt might be brought in any district where valid service could be made upon the defendant.*' When the defendant is' a non-resident, the bill must show that it had a regular and established place of business within the district when the infringement occurred.*® An allegation that the defendants "are now doing business" at a designated 19 Chicago Pneumatic Tool Co. y. v. Republic Eubber Co., 195 Fed. Phijadelphia Pneumatic Tool Cp., 768. lis J'ed. 852; XJ. S. Envelope Co., V. 24 National El. Signaling Co. v. Transo Paper Co., 229 Fed. 576. Telefunken Wireless Telegraph Co., 20 W. S. Tyler Co. V. Ludlow-Say- 194 Fed. 893. lor Wire Co., 236 TJ. S. 723. ' . 25 Lewis Blind Stitch Co. v. Ar- 21 Gray v. Grinberg, 147 Fed. 732. better Felling Mach. Co., 181 Fed. See also the note to Bailey v. 974. Mosher; 11 C. C. A. 304, 313. 26 Internat. Wireless Tel. Co. v., 22 Westinghouse El. Co. v. Stan- Fessenden, 131 Fed. 491 ; , XJnder- Icy El. Co. 116 Fed. 641; Gray v; wood Typewriter Co. v. Fox Typo- Grinberg, 147 Fed. 732. writer Coi, 158 Fed. 476. 23 Consolidated Eubber Tire Co. § 62]' RESIDENCE IN PATENT CASES 253 place within the district is insufBcient.*'' ■ The denial of a mo- tion to quash the summons or subpoena, , ruling ithat the facts show that the person upon whom service was made was the defendant's duly authorized agent within the district, is 'hot an adjudication that it maintained a regular and established place of business there.^* Whfere the bill joins causes of action for tort or breach of contract with one arising under the patent laws, if brought in a district where the defendant does not reside, , so much thereof as sets forth the former causes of action must be dismissed.^® The objection that the. suit was not brought in the proper district may be waived.*" A general appearance or; answer to the merits is such a waiver.^^ ; Where the. answer admitted that the defendant was a corporation organized under the: laws of -West Virginia with its principajl place of business in the state of 0-hioi and it appeared that this was the first- of several companies organized in different states under the same name and had originally had an estajblished place of business in Illinois, it was held that this was suiBi'cient to sustain -the allegatioins, in the bill that at the time of the , infringement, it still maintained an office in Illinois, although it appeared thati at some time, the date of which was not shown, this office was taken by one of the other companies.*^ WTiei-e J;he bill alleges infringeine^t in the district only and this is denied by the defendant, the issue is limited to, an in- fringement within such district.** The bill cannot after a gen- eral appearance then be amended so as to allege infringement beyond the district.** Where the bill alleged infringement in the district arid' elsewhere in the TJuited States, a defendant 27 Scheuerle v. One Piece; Bifocal ber Co., 115 Fed. 634; 'Westingliouse' Lens Co., 241 Ped. 270. ■ Elec. & Mfg. Co. v. Stanley Elec. 28 Geneva Furniture Co. v. Kar- Mfg. Co., 115 Fed. 641 ; Eumf ord pen, 238 IT. S. 254, , Chemicali Works v. Egg Baking 29 Cheatham El. Sw. Device Co. v. Powder Co., 145 Fed. 953; Feder v. Transit Develop. Co., 191 Fed. 727. A. B. Fiedler, C. C. A., 116 Fed. 30 See, §62a. 378. ■ - - - ■ ■ 31 Corrugated! Paper Patents Co. 32 Consol. Rubber Tire Co. !v. Dia- V. Paper Working Mach. Co. of N. n-ond Rubber Co., 215 Fed. 106. Y., 23,7 Fed. 380;, Sandusky Foun- 33 Gray v. Grinberg, C. C. A., 159 dry &-Ma6h. Go. v., iDelavaud, - 251 Fed. 138. . '< , . Fed. 631;-,to/to, §170. But see 34 Western Wheel Seraper v. 6e-i Bowers v. Atlantic G. & P. Co., 104 hagen, 152 Fed. 648. See infra, Fed. 887; Streat v,. 'American Rub- §§169,170. 254 ORIGINAL JURISDICTION [§62a who had appeared and answered to the pierits without raising the objection that he was sued for foreign acts of infringement, was held to have made a waiver.*^ The defendant, when sued in a district where the complainant does not reside, may set up a counter-claim for infringement of other patents elsewhere.*® The pendency of a suit in the district where the defendant is incorporated is no defense to another suit against it in another district; but, in such a case, the accounting in the latter suit will be limited to infringe- ments within the district.*''' § 62a. Waiver of objections as to residence. The non-resi- dent defendant alone can object, because the suit is not brought in the proper district.^ The objection is waived by the joinder of issue,^ or, it seems, by a general appearance,* without raising the same ; even when 35 Sandusky Foundry & Mach. Co. V. DeLavaud, 251 Fed. 631. 36 United States Expansion Bolt Go. V. H. G. Kroncke H. Co., 316 Fed. 186. 37 Warren Bros. v. Montgomery, ]72 Fed. 474. § 62a. 1 Camp v. Gress, 250 XJ. S. 308; Jewett v. Bradford 8av. Bank & Tr. Co., 45 Fed. 801; Smith V. Atchison, T. & S. F. E. 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 Ey Co., 189 Fed. 224. 2 Western Loan & Savings Co. v. Butte & Boston Consol. Min. Co., 210 XT. S. 368, 52 L. ed. 1101; At- chison, T. & S. F. Ey. Co. v. Gilli- land, C. C. A., 193 Fed. 608; Texas Co. V. Central Fuel Oil Co., C. C. A., 194 Fed. 1. 3 St. Louis .& S. F. Ey. Co. v. McBride, 141 U. S. 127, 35 L. ed. 659 ; Texas & P. Ey. Co. v. Cox, 145 tr. S. 593, 603, 36 L. ed. 829, 832; Interior Const. & I. Co. v. Gibney, 160 U. S. 217, 40 L. ed. 401; Cen- tral Trust Co. V. McGeorge, 151 U. S. 129, 38 L. ed. 98; Fbsha v. W. V. Tel. Co., 114 Fed. 704; Occi- dental Consol. Min. Co. v. Comstock Tunnel Co., 120 Fed. 518; V. S. Consol. Seeded Eaisin Co. v. Phcenix 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. Orippen Mfg. Co. et al., 156 Fed. 706; Bpgue v. Chicago, B. & Q. E. Co., 193 Fed. 728. But see Chesapeake & O. Coal Agency Co. v. Fire Creek Coal & Coke Co., 119 Fed. 942. Where the plaintiff's pleading in an action brought in the Federal court did not refer to the Employ- ers' Liability Act, but the court submitted the case to the jury upon the theory that it was based there upon; 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; Simpson § 62a] WAIVER OF OBJECTION AS TO RESIDENCE 255 neither of the parties resides within the district and the case was removed from a State court.* It has been said that the service of a notice for the taking of depositions, which is en- titled in the Federal court, is not such a waiver.* "When the facts which establish a lack -oi. jurisdiction because of resi- dence were not known when the defendant appeared or an- swered, he may move to dismiss the case upon that ground as soon as he discovers it even upon the trial.® In such a ease, the plaintiff is entitled to a hearing upon the question whether the defendant, when he appeaxed or at any time before the trial, did have sufficient information to believe that the action was brought in the wrong district.'' It has been held that the proper method of raising the ob- jection after a general appearance is by a motion for leave to file a plea to the jurisdiction.* If it appears by the proof, that the defendant had no knowledge nor information suffi- cient to form a belief, that the plaintiff's averments of citizen- ship and residence were untrue, until shortly before his motion was made, he has an absolute right to plead to the jurisdiction upon such discovery .8 The issue as to defendant's knowledge or information may be tried upon affidavits before as well as V. Cory, 204 Fed. 507, see infra, (N.S.) 926, 155 Feci. 68; Proctor §§169,170. , , , Coal Co. v. United States FideUty 4 Matter of Moore, 209 U. S. 490, & Guaranty Co.,, 158 Fed. 211. 52 L. ed. 904; where it was held 6 Hubbard v. Ctipago, M. & St. that the filing by the plaintiff of P. By. Co., 176 Fed. 994. an amended answer and his stipula- 6 Lehigh Valley Coal Co. v. Wash- tion.for a continuance after the re- kp, 0. C. A., 231 Fed. 43. moval was an acceptance of the ju- 7 Lehigh Valley Coal Co. v. Yen- risdiction of the Circuit Court. In savage, C. C. A., 218 Fed. 547; Le- Kreigh v. Westinghouse, Church, nigh Valley Coal Co. v. Waahko, C. Kerr & Co., 214 TJ. S. 249, 53 L. C. A.. 231 Fed. 42. ed. 984; it was held that such a 8 Lehigh Valley Coal Co. v. Yen- waiver was made by a joinder of savage, C. C. A., 218 ¥eS. 547; issue on the merits without such an Kever v. Phila. & Reading Coal & objection. To a similar effect are Iron Co., 234 Fed. 814, s. c, 241 the rulings in Western Loan &■ Sav. Fed. 883; s. c, C. C. A., 260 Fed. Go. V. Butte & Boston Consol. Min. 534. Co., 210 II. S. 368, 52 L. ed. 1101; 9 Lehigh Valley Coal Co. v. Wash- -Corwin Mfg. Co. v. Henrici Washer ko, C. C. A., 231 Fed. 42, 46, modi- Co., 151 Fed. 938; Louisville & N. fying Lehigh Valley Coal Co. v. R. Co. v. Fisher, C. C. A., 11 L.R.A. Yensavage, C. C. A., 218 Fed. 547. .256 ORIGINAL JURISDICMON": [§63 upon the trial,^" unless the judge directs that the issue be de- cided by a jury. : i - Where the facts concerning residence were known by the defendant but he claimed ignorance tha,t -there was a Federal question in the ease, such; a motion will be denied if the plain- . tiff's pleadings suggested this although plaintiff did not rest this cause of action squarely upon the Federal statute.*^ The plea tothe jurisdiction should not be joined with a plea to the merits.^* Should these be joined or a motion made to dismiss up- on the jurisdiction and upon the merits the defendant will be deemed to have waived this jurisdictional objection.^* The court may allow the plaintiff to withdraw a juror or suspend the trial so that plaintiff may obtaiin witnesses to show the de- fendant 's knowledge, . or information. i* , When a plea to the jurisdiction was overruled, defendant was permitted to rein- state its answer and have a trial upon the merits provided the plea was filed in ,good faith although its counsel was misled by inaccurate statements by defendant 's agents.^^ § 63. Suits by assignees. "No district fiourt sha,ll have cog- nizance 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 bearer and be not made by any cor- poration, unless such suit might ha,ve been prosecuted in such court to recover upon said note or other chose in action if no assignment had been m^de. ' ' ^ The provisions of this limitation 10 Ibid. Kever v. Phila. & Eead- 14 Lehigh 'V'alley Coal Co. v. ing Coal & Mih. Co., 234 Fed. 814, Washko, C. C. A.; 231 Fed. 42, 47. s. c., 241 Fed. 883. ' IS Philadelphia & Beading Coal & ■11 See § 24, supra. ' Iron Co. v. Kever, C. C. A.,' 260 Fed. ,12 Lehigh Valley Coal Co. v. Ten- 534, s. c, 241 Fed. 883. savage, C. C. A., 218 Fed. 547; §63. 1 Judicial Code, §24, subd. Kever v. Phila. & Heading Coal & 1, 36 St. at L. 1087. The former' Iron Co., 234 Fed. 814, s. c, 241 statute extended this limitation Fed. 883, s. c, C. C. A., 260 Fed. upon the jurisdiction to suits "to ,j,^4. ■ recover the contents of any' promis- 13 Lehigh Valley Coal Co. v. 'Yen- sory note or' other chose in action savage, C. C. A., 218 Fed. 547 ; in favor of an assignee, ' ' &c. It Kever V. Phila. & Reading Coal & may be that the' omission of the Iron Co., 234 Fed. 814, s. c. 241 phrase will induce the courts to dis- Fed. 883; Lehigh Valley Coal Co. regard some of the eai'lier decisions. V. Washko, C. C. A., 231 Fed. 42, 47. ' § 63] SUITS BY 'assignkeS , 257 apply to all assignments of choses in action of the character 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 either 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 tb that pur- port in repeated decisions. ' ' Shoe- craft v. Bloxham,, 124 :IJ, ,S. 730, 735, 31 L. ed. 574, 57'6; affirmed in Plant Inv. Co. v. Jacksonville, T. & K. W. Ry. Co., 152 IJ. 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 Cranoh, 332, 335, 336, 3 X. ed. 240, 241; Sheldon v. Gill, 8 How, 441, 449, 450, 12 L. ed. 1147, 1151; Tredway v. Sanger, 107 TJ. 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, 105 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. Ain. Shipbuilding Co., 197 Fed. 780; nor a suit by the assignee of a note to recover damages against a public officer for the illegal execution of the same, Indiana v. Glover, 155 TJ. Fed. Prac. Vol. 1—17 S. 513, 39 L. ed. 243. The phrase also , includes ^uits to foreclose mort- gages, Kolze V. Hoadley, 200 IT. S. 76, 50 L. ed. 377; Hoadley v. Day, 1^8' Fed. 302; Ban v. Columbia Southern By. Co., 109 Fed. 499 (a lien); although the ,bill also prays a cancellation of a fraudulent satis- faction thereof, Kolze v. Hoadley, 200 IJ. S, 76, 50 L. ed. 377. It in- cludes siiits 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. Ky.. Co., 152 TJ. 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 deedsj where, complainant sues as assignee of a mortgage and of a cer- tificate of purchase, in foreclosure proceejiings, without having ac- quired the legal title, Farr V. Hobe- ley, 173 U. S. 243,' 43 L. ed. 684; Peters Land Co., C. €.- A., 188 Fed. io, 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 , agejit 's right to an accounting. Brown V. Beaeom, C. C. A., 174 Fed. 812... The phrase does not include an action of replevin, Deshler v. Dodge, 16 How. 622, 631, 14 L. ed. 1085, 1088; Buckingham v. Dake, 112 Fed. 258, 50 C. C. A. 492. Or ejeetmentj Smith v. Kernoehen, 7 How. 198, 12 L. ed. 666; "Willitt v. Baker, 133 Fed. 937. Or otherwise brought to recover property takes 258 ORIGINAL JURISDICTION [§63 therein described whether they are made in good faith or col- lusive.^ The words "if such instrument be payable to bearer and be not made by any corporation" do not limit the compreliensive- ness of the phrase ' ' chose in action. ' ' ^ The effect of this clause is to deprive the District. Courts of all jurisdiction for the recovery of promissory notes or other choses 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 choses in action made by corpora- tions and payable to bearer.* The, restriction applies to the re- moval of cases.* A draft drawn in one State and payable in another of the by the defendant before the assign- ment of the title to the plaintiff, Gest V. Paekwood, 39 Fed. 525, Even 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. 0. A., 141 Fed. 282. But see.§§ 46, 47, *itpra. Nor a suit to recover damages for the conversion of personal property, Ainbler v. Ep- pinger, 137 XJ. S. 480, 34 L. ed. 765. Nor a claim against a railroad com- pany to recover excessive over- charges for freight. Conn v. Chi- cago, B. & Q. E. Co., 48 Fed. 177. Nor a suit in equity to compel the transfer of stock on the books of a corporation, Jewett v. Bradford S. B. Tr. Co., 45 Fed. 801. Nor, it hag been held a suit by the as- signee of a corporate debt to en- force the individual liability of a stockholder, Ballard v. Bell, 1 Ma- ' son, 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 cor- poration 's State, Gorman- Wright Co. V. Wright, 134 Fed. 363, 67 C. C. A. 345. But see Cole v. Phila. & E. By. Co., 140 Fed. 944. It has been suggested that the restriction applies only to contracts "which may be properly said to have con- tents," not to "mere naked 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 contracts which contain within them- selves some promise or duty to be performed, ' ' Barney v. Globe Bank, 5 Blatch. 107. See, however, Bush- nell V. Kennedy, 9 Wall. 387, 391, 19 L. ed. 736, 738; Ambler v. Ep- pinger, 137 U. S. 480, 483, 34 L. ed. 765, 766. 2 Consolidated Rubber Tire Co. v. Ferguson, C. C. A., 183 Fed. 756. 3 Mexican Nat. E. Co. v. Davi- son, 157 U. S. 201, 206, 207, 39 L. ed. 672, 674, 675. 4 Newgasa v. New Orleans, 33 Fed. 196; New Orleans v. Quinlan, 173 U. S. 191, 43 L. ed. 664. 6 Guaranty Tr. Co. v. McCabe, C. C. A., 217 Fed. 699. § 63] SUITS BY ASSIGNEES 259 United States is a foreign bill of exchange.® A cheek is a bill of exchange.'' A promissory note payable "to the order of "is equivalent to a promissory note payable to bearer.* So is a promissory note payable td the order of the maker, when indorsed by" him in blank ; and if the requisite diversity o'f ' citiizetiship' exist between hini and the holder the latter may su'^ in the Federal__Court, if. the other requisites of jur'isdiction exist.' A promissory note' payable tb the order of the maker arid by him endorsed in blank is payable to bearer.^' A bill of ex- change or promissory note drawn' payable to the order of a specified person and indorsed by him in blank is hot a pro'mis- sory note payable to bearer within the statutory exception.^'^ When his citizenship differs frOm that of defendant, the orig- iiial beneficial owner can sue in the Federal courts upon 'a riote, although an Original but nominal payee, by reason of citizenship, could not.^* When the nominal payee was an agent for the maker and took the ilote to negotiate it his citizenship in a suit by his transferee is disregarded.^* A county warrant payable to a specified person or bearer is equivalent to one paya|)le to bparer.^* A city,^^ qountjf,^® 6Buqkner y. Pinley, 2 Pet. 586, 7 Superior City v. Eipley, 138 ,p;, ,S. L. ed. 528. ' 93, 34 L. ed. 914; Hoadley y'. '^ TBulW. Bank of Kasson, 123 U. '' 128' Fed. 302; ' Kirven v. Virginia-' S. 105, 31 L-. ed. 97. Carolina Cheihieal Co., Ci. C. A., 8 Steel V. Eathburn, 42 Ted. 390 ; 145 Fed. 288. Lyon County ■ V. Keene Five Cent 13 Baltimore Tr. Co. ''v.' Screven' i Sav. Bank, 100 Fed. 337, 40 C C. County, 238 Fed. 834. '' ' A. 391; affirming 97 Fed. 159; 14 Gratiot County v. Aylesworth, Eeynolds v. Lyon Comity, Iowa, 97' 159 ' TJ. S.' 250, 40 Li ' fed. 146; Fed; 155. Thonipson V. Searcy County;' G. C. SHouek V. Bank of Briiikley, A., 57 Fed. 1030; Jerome v. Rio C. C. A., 242 Fed. 881. ' • Grande County Comm'rs, 18 Fed. 10 Bank of British N. A. v. Bar- 873. ' '' \' ■ "' > '■ ling, 46 Fed. 357; s. o. in C. C. A., 16 New Orleans v.Quinlaii, 173 TJ. ■'^6 Fed. 260; Jones v. Shapero, 57 S., 191, 43 L. ed. 664; affirming 92 Bed. 457. Contra, Houek v. Bank Fed.' 695. ■ of Brinkley, C. 0. A., 242 Fed. 881. 16 Leake County Comm'rs. v. Dud- 11 Thomson v. Town of Elton, 100 ley, 173 XJ. S. 243, 43 L. ed. 684; Fed. 145. Graitidt County v. Aylesworth, 159 IZ Holmes V. Goldsmith', 147 U. S. U.' S. 250, 40 L. ed. 146; Jerome v. 150, 13 Sup. Ct. 288, 37 L. ed; 118; Rio Grands County Comm'rs, 18 260 ORIGINAL JURISDICTION [§ 63 incorporated town,^^ or township,^^ jg i^gld 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 citizenship of any previous holder. The assignee of a city warrant payable to the order of a specified person and indorsed by him cannot, if the Federal court would have had no jurisdiction of a suit by his assignor,^^ but if his assignor might have sued there the assignee may do so, provided that the requisite diversity of citizenship still exists.^" Jurisdiction over a suit upon coupons, executed by a municipal corporation payable to bearer, depends upon the status of the owner of the same,*^ although they are cut from bonds payable to persons who are citizens of defendant 's State.^^ 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.** Not, however, where the note is void and the mortgage valid.''* The fact that a note payable to bearer and secured by a mortgage is overdue when it is assigned does not deprive the assignee of his right to seek the Federal jurisdiction.^^ A mortgage given by a water company covering rentals accruing to it under a con- tract with a city is no more than an assignment of a chose in action as to such rentals, and, in such a ease, one claiming the right to enforce the contract by subrogation to the rights of the mortgagee is considered to be an assignee.*® But where a Fed. 873 ; Rollins v. Chafeee Coun- 80 Emsheimer v. New Orleans, 186 ty, 34 Fed. 91 ; Wilson v. Knox U. S. 33, 46 L. ed. 1042. County, 43 Fed. 481; Thompson v. 21 Reynolds v. Lyon County, 97 Searcy County, C. C. A., 57 Fed. Fed. 155; Independent School Dist. 1030; Board of Comm'rs of Kearny of Sioux City v. Rew, 111 Fed. 1, County V. Irvine, C. C. A., 126 Fed, 49 0. C. A. 198, 55 L.R.A. 364. 689. 22 Reynolds v. Lyon County, Iowa, 17 A New York town, Andes v. 97 Fed. 155. Ely, 158 XI. S, 312, 39 L. ed. 996. 23 Tredway v., Sanger, 107 U. S. 18 An Ohio township, Loeb v. 323, 27 L. ed. 582; Cross v. Allen, Trustees of Columbia Tp., 91 Fed. 141 TJ. S. 528, 35 L. ed. 843 ; Hoai- 37. ley v. Day, 128 Fed. 302. 19 Cloud V. City of Sumas, 52 Fed. 24Mersman v. Werges, 112 U. S. 177; New Orleans v. Benj^-min, 153 139, 28 L. ed. 641. U. S. 411, 38 L. ed. 764, Seymour 2S Cross v. Allen, 141 U. S. 528, V. Farmers' L. & Tr. Co., C. C. A., 35 L. ed. 843. 128 Fed, 907. 26 American Waterworks & Guar- § 63] SUITS BY ASSIGNEES 261 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 alfect the jurisdiction.^'' It has been held: that a sale under a decree of foreclosure upon waterworks, together with the rights of all the parties in the franchise and contract uiider which they were constructed, does hot operate merfely as an assignment of the contract ; that such a provision does not affect the right of the purchaser to 'main-tain a suit in a Federal court to en- force rights under such contract; and that in such a ease 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.^* A purchaser of warrants at a judicial sale under authority of an order of the probate court is an assignee, within the mean- ing of the statute.^' The transfer, of property which is not a chose in action doe^ not come within the , rule '" nor does the, prohibition apply to a suit to recover a specific thing or damages for its wrongful taking or, detention.'^ Such are suits to protect their interests by the assignee of a trust estate ; '* the assignee of a distributive share in the estate of a decedent ; '* the assignee of a mining lease ; ** the assignee of standing timber who : sues to enjoin its cutting after the assignment ; *' the as- signee of an equity of redemption who sues to have a deed ad- aiitee Co. v. Home Water Co., 115 any reservation, when made to es- Fed. 171; City of Bau Claire v. tablish a diversity of citizenship. Payson, ioi'^. 5S2, 46 C. C. A. 466, City of Livingston v. Monidah rehearing denied 109 Fed. 676, 48 Trust, C. C. A., 261 Fed. 966; but C. C. A. 608. see supra, §47. 27 city of Seymour v. Farmers' 31 Brown v. Fletqher, 235 TJ. S. Loan & Trust Co., 128 Fed. 907, 63 589, reversing 206 Fed'. 461. C. C. A. 633. ' 32 Ibid. 28 Portage City Water Co. v. Por- 83 Stotesbury v. Hubert, 237 Fed. tage, 102 Fed. 769. 414. 29 Glass V. Police Jury of Con- 84 Shaffer v. Marks, 241 Fed. 139 ; cordia Parish, 176 tJ. S. 207, 44 Aggers v. Shaffer, C. C. A., 256 Fed. L. ed. 436. 648 (both under the laws of Okla- 80 Brown v. Fletcher, 235 TJ: S. homa). 589, reversilig 206 Fed. 461. Not 3B Crown Orchard Co. v, Denuis, even, it hag been held, if without 229 Fed. 658, 262 ORIGIN Ali JURISDICTION [§ 6-^ judged, a mortgage and a cloud removed from his title,^® or sues to rjedepm, mortgaged laudi*^ , Butit; was held, thati a-si4t; toohtaia the use of certain water rights -v^hich , ,tl;ie defendant had obtained through fraud upon th,e .plaintiff's, assignor,^* ia,nd to eniorce the assignor's right, to ji-ecoyer ,part; of the purchase price qf stock under an agree- ment fcir purchase which had b.een rescinded,*^ could not , be maintained. in a Federal Court when such coifrt would not have had jurisdiction of a similar suit by the plaintiff's assignor. It has been held that when plaintiff had advanced his as- signor money to pay into court as security, his suit to recover this money was brought for money had and received and that his citizenship, not that of his assignor was the test of th6 ju- I'isdiction.*" The Illinois statute giving a plaintiff in attachment the right to bring an action oh a forth-coming bbnd taken by the sheriff, "the same as if such bbnd had been askigned to him," does not render him, in fact or constructively, an assignee, within the meaning of ' the' aet.*^ The prohibition does not extehd to a suit by a stockholder to procure the appointment of a receiver of his corporation, because of insolvency.** A suit to collect a judgment by a creditors' bill or other- wise, cannot be brought in a Federal court by an assignee, unless the assignor might have sued there.*^ 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 36 Power Irrigation Co. of Clear 41 Smith v. i^aekard, 98 Fed. 793, Lakes y. Adapison, C- C, A., 226 39 C. C. A. 294 Fed. 645. «Be Cleland, 218 U. ,S. 120, .54 37 Power & Irrigation Co.. v. L. ed. 962. As to other, stoekhold- Capay Diteh Co., C. C. A., 226 Fed. ers' bills, see infra, § 145. ■ 634, reversing 213 Fed. 399; Power 43 Walker v. Powers, 104 TJ. . S. Irr. Co. V. Stephens, C. C, A., g26 245, 26 L.' ed. 729; Metcalf v. Wa- Fed.i 642. tertown, 128 XT. S. 586, 32 L. ed. 38 Power & Irr. Co. v. Oraig, 543, 9 Sup. Ct. 173; Mississippi C. C. A., 226 Fed. 998. Mills v. Colin, 150 IJ. S. 2,02, 37 L. 39 Power & Irr. pp. y. Bank of ed. 1052, 14 Sup. Ct. 75 ; First Nat. Woodland, C. C. A., 226 Fed. 698, Bank v. Dull Cpunty, 74 Fpd, 373 ; affirming 213 Fed. 109. , , Sullivan v. Ayer, 174 Fed. 199. 40 Menasha Ware Co., v. Southern Oregon Co., C. C, A., 244 Fed. 83, §63] SUITS BY- ASSIGNEa:S 203 there exists the requisite difference of citizenship between him- self and the defendant, irrespective of that of his original a,ssignor.** And it has been- held that the citizenship of the assignor is immatejial in a suit by his assignee, to vacate the satisfaction of a judgment,^^ or to iset aside a decree for: fraud, although payment of the claim is incidentally requisite.** . It seems that the holder of a municipal warrant, who seeks to recover municipal assets without a previous judgment at law, brings a suit to recover iipon a chose in' aciion within the meaning of the 'Statute.*''' ; , i ' . An: endorsee, Tvho' is a citizen of the same State as the maker of the note, may sue his immediate' endorser in a Eiistrict Court of the United States, if the latter be a citizen of a different State from that of the plaintiff ;** but when, in a suit by ah endorser against the maker *^ or' a prior endorser,®" the plaintift derives his title through a citizen pi the same State as the de- fendant,' such as in the fo'riher ease, the original payee, there is no jurisdiction on account, of a difference of citizenship be- tween the defendant 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 citizenship between them, irregpfietive of the citizenship of the endorser ; *^ and under similar circumstances the payee of a bill of exchange is allowed to sue the acceptor 44 0ber V. Gallagher,- 93 V. S. 199, 49 State Nat. Bank of Denisoii v. 206, 23 L. ed. 829, 831 ; Bean v. Eureka Springs Water ,Co., 174 Fed. Smith, 2 Mason, 252, 269; HuHberg 827. V. Anderson, 170 Fed. 657. - 50 Turner v. Bank of N. A., 4 46 Hay V. Alexaaidria & W. R,.Co., Ball. 8, 1 L. ed. 718; Mollan v. Tor- 20 Fed. 15; , But see Blaeklock v. raneej 9 Wheat.! 537, 598, 6 L.: ed. Small, 127 U. S. 96, 32 L. ed. 70. 1'54. But see Portage C. R. Co-, v. 46 Bertha Z. & M. Co. v. Vaughn, Portage, 102 Fed. 769. 88 Fed. 566. ,61 Blair v. Chicago, 201 U. S. 400, 47 New Orleans v. Benjamin, 153 50 L. ed. 801; Goldsmith v. Holmes, U'. S. 411,-38 L. ed. 764. 36 Fed. 484; s. c, Holmes v. Gold- 48 Young V. Bryan, 6 Wheat. 146, . smith, 147 TJ. S. 150-, 37 L. ed. 118 ; 5 L. ed. 228; Manufacturing Co. v. Wachusett Nat. Bank v. Sioux C. Bradley, 105 TJ. S.. 175, 26 L.-ed. S. Works-,- 5.6 Fed. 321; Hoadley v. 1034; Parker v. Ormsby, 141 U. S. Day, 128 Fed. 302.1. When! the notes 81, 35 L. ed. 654; Kolze v.i Hoadley, had been pledged as collateral. 200 U. S. 76, 50 L. ed. 377. , , < 264 ORIGINAL JURISDICTION [§63 although he could not have sued the drawer in the Federal court.** Trustees in bankruptcy,*^ assignees in insolvency ** and buyers at a judicial sale *^ are included within this restriction ; but receivers*® and executors and administrators*'' are not; not even when they are administrators of the assignee.** A party who claims the benefit of a contract as an incident to, another contract is to be considered as the assignee of the former when he sues to enforce it, although it has never been formally assigned to him.*' The acceptance by a city of an order by a contractor directing the payment to a third person of part of the contract price wa,s held to constitute a new con- tract between the city and the payee, and not to be the assign- ment of the original contract.*" A party who claims by sub- rogation *^ or by novation ®* is not within this restriction, neither is the assignee of an executory contract when he sues to re- cover for work done after the assignment.®^ A suit tp enforce specific performance of a contract to convey land which has been assigned is within the limitation.®* Where plaintifl' al- 62 Superior v. Bipley, 188 U. S. 9.3, 34 L. ed. 914. 68 Guaranty Trust Co. v. McCabe, C. C. A., 217 Fed. 699. See infra, § 610. «lSere v. Pitot, 6 Cranch, 332, 336, 3 L. ed. 240, 241. 56 Glass V. Concordia Parish Po- lice Jury, 176 U. S. 207, 44 L. ed. 436. 66 Davies v. Lathrop, 12 Fed. 353. Nor the successor of a receiver. Paige V. Eochester, 137 Fed. 663. But see XT. S. Nat. Bank v. McNair, 56 Fed. 323; Thompson v. Pool, 70 Fed. 725. 67 Sere V. Pitot, 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. 68 Sands v. James Carruthers & Co., Ltd., 243 Fed. 636. 69 Plant Inv. Co. v. Jacksonville, T. & K. W. Ry. Co., 152 U. 8. 71, 76, 38 L. ed. 358, 360. But see Por- tage C. W. Co. V. Portage, ip2 Fed. 769. 60 City of Superior v. Ripley, 138 IT. S. 93, 34 L. ed. 914. 61 New Orleans v. Caines ' Adm 'r, 138 tJ. S. 595, 606, 34 L. ed. 1102, 1106. Contra, Am. Waterworks & Guarantee Co. v. Home Water Co., 115 Fed. 171. 62 American Colortype Co. v. Con- tinental Colortype Co., 188 U. S. 104, 47 L. ed. 404; J. I. Case Threshing Maeh. Co. v. Road Im- provement Dist., 210 Fed. 366. 63 County of Cullman v. Vin- cennes Bridge Co., C. C. A., 251 Fed. 473; Oak Grove Const. Co. v. Jefferson County, C. C. A., 219 Fed. 858. 64 State of Maine Lumber Co. v. Kingfield Co., 218 Fed. 902. § 63] SUITS BY ASSIGNEES 265 leged a cause of action for damages for a conspiracy charged to have been made by defendants against him after he became the assignee of a contract for the sale of real estate, it was held : that thg citizenship of ^plaintiff's assignor of the contract was immaterial to the jurisdiction.^* It was held under the old Judiciary Act that the jurisdic- tion 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.^^ 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 iii that court by the firm.®'' 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 jurisdictional amount.®* If both the original promissor and the plaintiff have a citi- zenship different from that of the defendant, the citizenship of a mesne assignee is immaterial.®' If the requisite diversity of citi- zenship and the proper residence existed in the original parties to a note or contract, and a suit between them might have been maintained in the Federal Court; any subsequent assignee may maintain such action provided he has the requisite residence and citizenship and that all the other jurisdictioiial require- ments also exist.'" The fact that an intermediate assignee was 6BNoyes v. Crawford, 133 Fed. Fire Ins. Co. v. Erie E. Co., 172 796. • Fed. 899. See also Hammond v. 66 Weems v. George, 13 How. 190, Cleaveland, 23 Fed. 1. But see 14 L. ed. 108. Woodside v. Vasey, 142 Fed. 617. 67 Ban V. Columbia Southern By. 69 Emsheimer v. New Orleans, 116 Co., |117 Fed. 21, 54 C. C. A. 407,, Fed. 893. reversing 109 Fed. 499. 70 Portage City Water Co. v. Por- ' 68Bernheim v. Birnbaum, 30 Fed. tage, 192 Fed. 769; Bolles v. Lehigh 885, 887; Bowden v. Burnham, C. Valley R. Co., 127 Fed. 884; Farr C. A., 59 Fed. 752; Bergman v. In- v. Hobe-Peters Land Co., C. C. A., man, 91 Fed. 293 ; Chase v. Sheldon 188 Fed. 10 ; Lipsehitz v. Napa E. M. Co., 56 Fed. 625; Hartford Fruit Co., C. C. A., 223 Fed. 698; 266 ORIGINAL JURISDICTION [§ 63 a resident and of the same; State as the defendant has been held to be immaterial.''^ It has been held: that where the requisite diversity of citi- zenship existed between the' assigTior and defendant, the resi^ dence of the assignor was immaterial ; ''^ that where at the time of the commencement of the suit the assignor might have sued in the Feideral coiirt, but at the time of the assignment he^ coiild not, if the eitizeiiship of the assignee and the defendant are diverse, the court may take jurisdiction in a proper case ; ''* tliat 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 ; '* that where an assignee of a chose in action is, entitled to sue thereon alone in the Federal courts, he and his assignee may sue there together as if no assignment had been jnade;''^ that where one of compla,inant 's contracts is within the jurisdiction of a court, it, draws to the court juris- diction 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;'''^ The fact that the assignor is a national bank does not give jurisdiction.''''' The statute does not forbid one of the original' iCon tractors from suing in a Federal court Wilson V. Pisher,: Baldwin, 133, Fed. 73 Jones v. Shapero, C. C. A., 57 Gas. No. 17, 8(|3 ; MilledoUar V. Bell, Fed. 457; Noyes v. Crawford, 133 2 Wallace^ Jr., 334, Fed. Cas. No. Fed. 796. 9,549. > ' 71 Moore Bros. Glass Co. v. Dre- 71 Ibid. vet Mfg. Co., 154 Fed. 737. 72 Stimsoh V. United Wrapping 75 Paige et al. v. Bochester, 137 Mach. Co. et al., 156 Fed. 298. See Fed. 663 ; Independent School Dist. Dulles v. H. D. Crippen Mfg. Co., of Sionx City v. Rew, 111 Fijd. 1, 156 Fed. 706; Cincinnati H. & T). 49 C. C. A. 198, 55 L.B.A. 364. iJy. Co.'v. Orr, 215 Fed:' 261. Contra, 76 Camp v. Peacock, Hunt & West Consolidated Kubber Tire Co. v. Fer- ' Co., C. C. A., 129 Fed. 1005; Howe guson, 169 Fed.' 888, s. C, C. C. A., & Davidson Co. v. Haugan, 140 Fed. 183 Fed. 756; Waterman v. Chesa- 182; affirming 128 Fed. 1005. ' peake & Ohio By. Co., 199 Fed. 667; 77 George v. Wallace, C. C. A., 135 Guaranty Trust , Co. v. MeCabe, ,C. Fed. 286. a A., 217 Fed. 699. . , , S64J TERBITOHIAIj , JURISDICTION 267 the. assignee, of the other party., although the citizenship of the plaintiiit' is the, same as that of the; assignor.''* ; ■••' The assignee must aver in, his pleading that his. assignor might have sued in the Federal court.''^ > ' §64. Territorial jurisdiction of the District Courts of the United States. In general. There is a District Court in each judicial district of the United. States.^ It shas been ■ said that "jurisdiction is the power to proceed: by authorized service."^ In actions of a local nature, no court ihasi jurisdiction except that in the; district where the property is situated-,* i for usually the execution of the judgment will require acts . in a district' where the officers of the court in which the judgment is entered have no, authority..* i ,A&tions of .a. transitory, nature can' be 78 Brooks V,, Laurent, 98 ,Eed., 647, 39 0. C. !a.;201. , , .' u' ,, 79 barker v. Ormsby,^ 141 U. ,S. 81, 35 L. ed. 654; XJ. S.' Nai. Bank v. McNair, 56 Fed; 323 ; Kolze v. Hoadley, 200 TJ. ,8. 76, 50 iL. ed. 377; J. J. MeCaakill.Co. v. Dickson, C. C. A., 159 Ted, 704,; Bison St^te Bank v. Billington, d. C. A., 209 Fed. 610; Houck v. Bank of Brink- ley, C. C. A., 242 Fed. '881. An allegation in a bill, filed' by an as- signee of; claims .agamst ,a Louisiana, corporation, that the _ assignors are and were citizens . qf States other than Louisiana,' and obmpetent as sufch to sue the ' defendant iii the Circuit Court,' if no assignment had been ma,dq, was, held to. be msuffi,- cient to confer jurisdiction on the Circuit Court because the .State or States of which, the assignors were citizens were not, specifically desig- nated. Benjamin, v. ; New Orleans, CO. A., 74 Fed., 417. ,. Where it appeared in the record that: the as- signor was domiciled and resided in a State other than that of which the defendant was a oitizdn and no ques- tion concerning his citizenship was raised in the court of first instance, .the, .court ,o;f ,reyieiiy, refused ,to dis- miss . the case f pr, want ,of jurisdic- ' tion. First Sfat.^ Bank^ of Canyon. T^xa's V. CrowieyV C. C'.' A.,' 183' Fed. 578.' '.i^i-' ''' .' - ■ § 64. . 1 Infra, § 66i ; ••■" < 2,Kentuokyi,.08ali Lands Go. v. Mineral Development Co., ,219, Fed. 45. ' "■' , ,'," ' ' , 3 Mississippi & M. E. i. ' Co. v. Ward, 2 Black, 48'5;'17 Ll'ed. 311; Coquitlam v.. IT.. S.). 163.®.' S. 346, 16 Sup. Ct. 117, 1 41. L. ed. il84; ,,Ijade-vv V. Tennespep Giqpper, Co., 218 U. S. 357, 54 L. ed, 1069, ,.affirming 179 Fed. 245;'McGowan v.'Colum'- bia River Packers'' Ass'n, '245 XT. ^. 352;. Ferglison v. Babcock Lumber & Land Co., C. G. A., 252 Fed. 7b5; Matarazzo v. Hustis, 256 Fed. 882. 4Mc6owan v. Columbia Eiver Ptuiker^' Ass'n,' 245' 'U. S. 352; Miller v. Dows, 94X1. S. 444, 449, 34 L. ed. 207, 209;' Fall v. Bdstin, 215 II. S. 1, 54 L. ed. 65,' affirming Fall V. Fall, 75 .'Neb. 104, 120, 113 N. W. 175; MacGregor V.' Mae- gregor, 9 Iowa, 65; Glen v. Gibson, 9 Ba;rb. (N. T.) 634; Story '^^ Eq. Jur., § 1292 ; - 2 Spenofe, 8,' n. (d) ; Smith's Eq. 80; Bispham's Eq.' § 7. &68 originaJj jurisdiction [§ 64 maintained in any district, the court of which can obtain juris- diction over the person of the parties.^ Where a transitory cause of action is united with one which is local the court can- not obtain jurisdiction in personam invitwm over a defendant who is served in another district.* 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 rentsJ Jurisdiction of local actions cannot be obtained hf the consent of the parties.' It has been said, that in determining whether an action is of a local or transitory nature the court should be guided by the law of the forum.' Where the court which originally entertained a suit had no jurisdiction of the same because of the locality of the property affected no other court can take ancillary jurisdiction in aid of the judgment and orders therein.^" The fact that a suit relates to. land lying within the' jurisdiction does not give juris- diction to the Federal court when there is no difference of citizenship, nor Federal question involved.^^ A District Court of the United States cannot serve process beyond its district except in the cases specified by statute which have been herein- before described. ^^ Amongst these exceptions are the following: "In suits of a local nature, where the defendant resides in a different dis- trict, 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. ' ' ^* The subpoena must be directed and issued to the marshal and the marshal and his deputies are the only persons who can serve it." A subpoena ad testificandwin may be serVed upon a wit- 8 Potomac Milling & Ice Co. v. Steel Corp., 254 Fed. 454, 463. Baltimore & 0. B. Co., 217 Fed. 665. 11 Pooley v. Lueo, 72 Fed. 561 ; 6 Supra, §S 61b, 62; infra, § 166a. Tbland v. Sprague, 12 Peters, 300, 7 Healey v. Humphrey, C. C. A., 328, 9 L. ed. 1093, 1104. 81 Fed. 990. 12 Toland v. Sprague, 12 Pet. 300, 8 Matarazzo v. Hustis, 256 Fed. .328, 9 L, ed. 1093, 1104. ' See infra, 882; PrimoB Chemical Co. v. Fulton §163. Steel Corp., 255 Fed. 427. IS § 54, 36 St. at L. 1087; copied 9 Primes Chemical Co. v. Fulton from U.' S. E., § 741, 4 Fed. St. Steel Corp., 254 Fed. 454, 463. Ann. 555. 10 Primos Chemical Co. v. Pulton 14 Kuzma v. Witherbee, Sherman § 64] TERRITORIAL JURISDICTJION 269 ness in a civil case anywhere within the district and beyond the same within one hundred miles of the place of trial, ajid in a criminal ease in any part of the United States.^* 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 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-ih.atter were wholly wdthin the district for which such court is constittited. " ^® ' "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 rbasonable notice to adverse parties and an (^portUnity to be heard upon the motion^ for such disapproval ; and subject; also, to the filing and entering in the district court for each district of the circuit in which any portion of the property may lie or be, within ten days thereafter, of a duly certified copy of the bill and of the order of appointment. The disapproval of such appointment within such 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 stich receiver of jurisdic- tion over all such property except that portion thereof lying orbeing within the State in Which' the suit is brought. In ally case coming within the provisions of this section, in which a receiver shall be appointed, proieess miay 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 & Co., .232 Fed.'' 286; Viikusy. Clyde i6>55, '36 St. at L'.' 1087; copied S.'S.'Co., 23;2^Fea. 288." ' ' ''' from TJ. S. 'A. S.,,' §'742, '4 Fed.' St. 15 IT. S. E. S., §876; mfrq, Ann. 555. §§342, 523. 2)70 ORIGINAL JURISDICTION [§64 district :; but orders affecting such property shall be entered ot record in each district in which the property affected may lie or be.^'' "When I 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 Uen or cloud upon the title to real or personal property 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 directiiig such absent defendant or defendants to appear, plead, answer, or demur by a day cer- tain to .he 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 demur 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 dis- trict; but said adjudication shall, as regards said absent de- fendants without 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, 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 n § 56, 36 St. at L. 1087. § 64] TEREITORIAL JURISDICTION 271 in said district court, and tkereupon the said court! skail maJie an order setting aside the judgment therein land permitting said defendant or defendants to plead therein on payment , by him or them of such costs as the court shall dedmjust; and there- upon said suit shall be proceeded with to final judgment accord- ing to law. " ^* A lease of land for a term of years is in the State of New York personal property; and not land, the location of which determines the jurisdiction.^® When the service of process is made within the district or the defendant voluntarily appears, the court may make a decree which directs the performance of, or abstention from, an act, or directs a transfer of, or otherXvise affects the title to, prop- erty beyond the territorial jurisdiction ; ^^ 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.^^ But not of a suit where the decree directs the' defendant to remove certain structures. ^^ Where the defend- ant is within the jurisdiction of the court, it may decree spe- cific performance of a contract,** or the administration of a is'jud. Code §57, 36 St. at L. Vacuum Oil Co. v.' Eagle Oil Co., 1102, Comp. St. § 1039. See infra, 154 Fed. 867. ' Contra, Northern § 166. Indiana'B. Co. v. Michigan Cent. E. 19 Primds Ghem. Cfl. v. Fulton Co., 15 How. Pr. 233, affirming 5 Steel Corp., 254 Fed. 471. McLean, 444. . 20Arglasse v. Muschamp, 1 Vern. 22 Mississippi & M. R. R. Co. v. 75; Carron I. Co. v. Maclaren, 5 Ward, 2 Black, 485, 17 L. ed. 311; H. L. C. 416; MuUer v. Dows, 94 Ladew v. Tennessee Copper Co.', 218 U. S. 444, 24 L. ed. 207 ; Dull v. U. S. 357, 54 L. ed. 1069, affirming Blackman, 169 U. S. 243, 246, 42 L. 179 Fed. 245; McGowan v. Columbia ed. 733, 734; Selover, Bates & Co. v. River Packers' Ass'n, 245 U. S. Walsh, 226 U. S. 112, 57 L. ed. 69; 352. Wheeler v. McCormack, 4 Pish. Pat. 23 Selover, Bates & Co. v. Walsh, Cas. 433; s. c, 8 Blaehf. 267; 226 TJi S. 112, 57 L. ed. where it Lynde v. Columbus, C. & I. C. Ry. wag held that specific performance Co., 57 Fedi E. 993, 996. For an ex^ of a contract made in one State for cellent review of the authorities, see the sale of land in another, can be the learned opinion of Davies, J., in decreed by the courts of the former Gardner v. Ogden, 22 N. Y. 327. State, and that the courts of the lat- See also Carpenter v. Strange, 141 ter will be bound to give effect to U. S. 87, 35 L. ed. 640. the judgment thus obtained; Wfest- 21 Morris v. Bean, 146 Fed. 423; em Union Tel. Co'. v. Pittsburg, (C, 272 ORIGINAL JURISDICTION [§ 64 trust,^* or the cancellation of a conveyance,^^ which affects land without the jurisdiction; but under the former practice if the defendant refused to obey the directions of the court, the judg- ment had no force elsewhere, even when a State statute provided that the order directing a conveyance should have the same ef- fect as if the conveyance were made in obedience thereto;*® An equity rule authorizes the court to appoint a person to execute a mandatory order, injunction, or decree for specific perform- ance, and provides that the act, when so performed, shaU have like effpet as if done by the defendant.*''' An action to recover damages for a personal injury is of a transitory and not a , local nature.** A State statute which creates a. new cause of action of this nature will sustain a suit thereupon in a district in another State although the statute provides that such actions must be brought in the State of its enactment.** A Federal court may entertain a suit to set aside a release of a judgment of a court held in another State,^" or a suit to obtain subrogation to the rights of a judgment creditor where the judgment was entered in the court of another State,'^ and to substitute a new trustee under a will which has been probated in another State.'* A suit to abate a nuisance existing beyond the jurisdiction cannot be maintained.'^ It has been held that a Federal court can maintain an action for injuries C. & St. L. By. Co., 137 'Fed. 435; Cunningham, 222 Fed. 821; Kuzma Eobin V. Long, 60 How. Pr. (N. v. Witherbee, Sherman & Co., 232 Y.) 200. Fed. 286. 24 Memphis Sav. Bank v. Houeh- 29 Tennessee Coal, Iron & E. R. ens, C. C. A., 115 Fed. 96, 108; Co. v. George, 233 U. S. 354. affecting land situation outside the 30 Williams v. Miller, 249 Fed. jurisdiction. Dunlap v. Byers, 110 495. Mich. 109 (a decree directing the 31 Cooper v. Jewett, 233 Fed. 618. conveyance of land upon the wind- 82 Harrison v. Washington Loan ing up of a corporation). & Tr. Go. Ct. App., D. C, 258 Fed. 28 Jones V. Byrne, 149 Fed. 457, 273. 469. . 33 Mississippi & M. E. E. Co. v. 26 Fall V. Eastin, 215 U. S. 1, 54 Ward, 2 Black, 485, 17 L. ed. 311 ; L. ed. 65 ; afBrming Fall v. Fall, 75 Ladew v. Tennessee Copper Co., 218 Neb. 104, 120, 113 N. W. 175. Con- V. S. 357, 54 L. ed. 1069; affirming tra, Burnley v. Stevenson, 24 Ohio 179 Fed. 245 ; McGowan v. Columbia St. 474j 15 Am. Eep. 621. River Packers' Ass'n, 245 U. S. 27 Eq. Rule 8. See § 441, infra. 352. 28 Keane Wonder Min. Co: v. § 64] TERBITORIAL JURISDICTION 273 caused to lands in another State by a canal witMn its jurisdic- tion.'* An action for a trespass on land such as a suit for the destruction of buildings, is of a local nature and cannot be maintained in a district in which the land is not situated.'^ Ordinarily, a court in equity cannot direct a sale of land situated in another State.'® Accordingly, the court will not decree a partition of land beyond the juri'sdiction, since no commissioner by it could have authority to act there,*'' and it cannot adjudge that a deed of land in another State is void; '* nor in a suit for a divorce award to a married woman a dower right in land else- where, which will be valid until a conveyance thereof has been executed by her husband.'* Where a corporation was domiciled arid carried on its principal business in another district, it was held that the fact, that it had a small bank account and had leased offices in another district, did not give the court of the latter jurisdiction to appoint a receiver of its property:*" The court of one State or district will usually not interfere with the internal management of a foreign corporation by a suit for an accounting or otherwise.** Such it has been held is a suit by the holder of a tontine or semi-tontine policy for an account.*^ The courts will refuse jurisdiction of a suit to enjoin the admin- istration by the courts of another State of personal property including notes and bonds there located at the time of the 34 Bundle v. Delaware & E. Canal, 87, 35 L. ed. 640 ; State ex rel. Hunt 1 Wall. Jr. 275 (Fed. Cas. No. 12,- v. Grimm (S. Ct. Mo., June 1912) 139), aff'd 14 Howard, 80, 14 L. 148 S. W, 868, where the deed was ed. 335. within the jurisdiction, but it had 36 Potomac Milling & Ice Co. v. been recorded in another jurisdic- Baltimore & O. R. Co., 217 Fed. 665. tion, where the land was situated. 36Lynde v. Columbus, C. & I. C. 39 Fall v. Eastin, 215 U. S. 1, 54 Tr. Co. V. Postal Tel. Co., 55 Conn. L. ed; 65 affirming Fall v. Fall, 334; 3 Am. St. Bep. 53, 11 Atl. 184; 75 Neb. 104, 120, 113 N. "W. 175. Oairenter v. Strange, 141 U. S. 87, Contra, Buriiley v. Stevenson, 24. 106, 35 L. ed. 640, 647; Mercantile Ohio St. 474. Tr. Co. V. Kanawha & 0. Ey. Co., 39 40 Primes Chemical Co. v. Fulton Fed. 337; Be Anderson, 94 Fed. Steel Corp., 254 Fed. 454, 463. 487; York County Sav. Bank v. Ab- 41 Eberhard v. N. W. Mutual Life bot, 139 Fed. 988. Ins. Co., 210 Fed. 520; Costagnino 37Spenee, 8, n. (d) ; Story's Eq. v.' Mutual Eeserve Fund Life Ass'n, Jur., §1292; Smith's Eq. 30; Bis- C. C. A., 157 Fed. 29, 84 C. C. A. pham's Eq. §47. 533. 38 Carpenter v. Strange, 141 U. S. 42 Costagnino v. Mutual Eeserve Fed. Prac. Vol. 1—18 274 OBIGINAI, JURISDICTION [§65 owner's death-,*^ and of a suit to recover damages for acts com- mitted in a foreign court under the authority of the sovereign thereof.** § 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, but the same shall be deemed to be returnable to, pending, and triable in the terms established next after the return day thereof. " ^ " District courts shall hold monthly ad.iournments 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 cases. ' ' * Ordinarily, when one term begins, the preceding term, which is held in the same place, ends; unless it was the evident inten- tion of the statute that the term should be concurrent in whole or in part.^ "When the trial or hearing of any cause, civil or criminal, in a District Court, has been commenced and is in progress before a jury or the court, it shall not be stayed or dis- continued by the arrival of the time fixed by law for another session of said court; but the court may proceed 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. " * A special term of a court may be held while a regular term is in session at another place in the same district, where there are two judges, each having authority to hold court in said district.® The term of a District Court may be extended to a period sub- sequent to the opening of the succeeding statutory term, for the purpose of a particular case.^ A term of a District Court may be Fund Life Ass 'n, C. C. A., 157 Fed. 1 Jud. Code § 8, 36 St. at L. 1087. 29, 84 C. C. A. 533 ; Eberhard v. 5 East Tennessee Iron & Coal Co. N. W. Mutual Life Ins. Co., 210 v. Wiggin, C. C. A., 68 Fed. 446; Fed. 520. U. S. v. Louisville & N. E. Co., 177 43 See supra, § 54. Fed. 780. a See infra, § 102a. 6 Alder v. Edenborn, 198 Fed. 928. § 65. 1 Jud. Code § 7, 36 St. at See Guaranty Tr. Co. v. Metropoli- L. 1087. tan St. Ey. Co., C. C. A., 177 Fed. 2 Jud. Code § 10, 36 Stat, at L. 925. 1087. 3 Ex parte Friday, 43 Fed. 916, 918. S 65] TERMS OF DISTRICT COURTS 275 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.'' 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.^ It does not neces- sarily end at the opening of a term, held pursuant to a statute, in another place in the same district.® The term does not expire until the limit set by law for its con- tinuance ; ^° except when it has been fornially adjourned without a day,^' or when there has been no attendance at the opening of the term and no instruction to the marshal to adjourn for a sub- sequent day.^^ If the judge of any district court is unable to attend at the commencement of any regular, .adjourned, or special term, or any time during such term, the court may' be adjourned by the mar- shal, 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." ^^ ■ ' ' ,;: . "When any disti'iet 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 7 Florida v. Charlotte Harbor 11 Harlan v. McGourin, 218 TJ. S. Phosphate Co., C. C. A., 70 Fed. 442, 450, 54 L. ed. 1101, 1106, 31 883., ; , Sup. Ct. Eep. 44; 21 Ann. Cas. 849 ; ,8 Harlan v. McGourin, 218 TJ. S. afflrrairig Ex parte Harlan, 180 Fed. 442, 450, 31 Sup. Ct. Rep. 44, 21 119. Ann. 'Cas. 849; 54 L. ed. 1101, 1106, lHEx pwrte Harlan, 180 Fed. 119; affirming Esp. parte Harlan, 180 Fed, ■ aff'd, as Harlan v. MeGourin, 218 119; East Tennessee Iron & Coal , TJ. S. 442, 450, 54 L. ed. 1101, 1106, Go. V. "Wiggin, C. C. A., 68 Fed. 31 Sup. Ct. Eep. 44, 21 Ann. Cas. 446. 849. 9 Ibid. ISJud. Code §12, 36 St. "at L. 10 Schofleld V. Horse Spiringg Cat- 1087. tie Co., 65 Fed. 433. 276 ORIGINAL JURISDICTION [§ 66 discharge all the judicial duties of the judge so disabled, during such disability. Whenever it shall be certified by any such cir- cuit 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 dis- trict within the circuit to perform the duties of such disabled judge, the chief justice may, if in his judgment the public inter- ests as require, designate and appoint the judge of any district in another circuit to hold said court and to discharge all the judicial duties of the judge so disabled, during such disability. Such appointment shall be filed in the clerk's office, and entered on the minutes of the said district court, and a certified copy thereof, under the seal of the court, shall be transmitted by the clerk to the judge so designated and appointed." ^* After the term Jias 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.^^ § 66. Specific territorial jurisdiction and terms of the differ- ent District Courts of the United Sta,tes. There is a District Court in each of the judicial districts of the United States.^ The Judicial Code provides: "§ 69. The United States are divided into judicial districts as follows: I " §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 constitute the eastern division of said district; also the territory embraced U Jnd. Code § 13, 36> Bt. at L. Sup. Ot. Eep. 44, 21 Ann. Gas. 849. 1087. ! §66. 138 St. at L. 580, Corap. 15 Ex parte Harlan, 180 Fed. 119 ; St. § 968 ; Jud. Code § 1 as aff'd as Harlan v. Gourin, 218 U. 8. amended., 442, 450, 54 L. ed. 1101, 1106, 31 § 66] ALABAMA 277 on the date last mentioned in the counties of Blount, Jefferson, ajad Shelby, which shall constitute the southern (Uvision of said district; also the territory embraced on the date last mentioned in the counties 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 Galhoun, Clay, Cleburne, and Talladega, which shall consti- tute the eastern division of said district ,•• also the territory em- braced on the date last mentioned in the counties of Bibb, Greene, Pickens, Sumter, and Tuscaloosa, which shall constitute the west- ern division of said dist;rict. Terms of the district court for the northeastern division shall be held at Huntsville on the first Tues- day in April and the second Tuesday in October ; for the north- western division, at ^Florence on the second Tuesday in February and the third Tuesday in October : Provided, That suitable rooms and accommodations for holding court at Florence shall be fur- nished free of expense to the Government; 'for the middle divi- sion, at Gadsden on the first Tuesdays in February arid Atigust :■ Provided, That suitable rooms and accommodations for the hold- ing court at Gadsden 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 re- main in session for the transaction of business at least six months in each calendar year; for the Jasper division, at Jasper on the second Tuesdays in January and June : Provided, That suitable rooms and accommodations for holding eOurt at Jasper shall be furnished free of' expense to the Government ; for the 'e'astern division, at Anniston on the first Mondays in May and Novem- ber ; and for the western division, at Tuscaloosa on the first Tues- days in January and June. The clerk of the court for the iiorth- ern 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 th,Q northern dis- trict shall reside at Birmingham. ,The middle district shall in- clude the territory embraced on the 'first day of -July, nineteen hundred and ten, in the counties of Autaiuga, Barbour, B'ullock, Butler, Chilton, Coosa,' Cbvirigtori; Crenshaw, Elrtior'e, Lowndes, Montgomery and Pike, which shall , constitute the northern divi- sion of said district; also th'e territory embraced- on the date last 278 ORIGINAL JURISDICTION [§ 66 mentioned in the counties of Coffee, iDale, Geneva, Henry, and Houston, which shall constitute the southern division of said district also the tel^ritory embraced on the date last mentioned in the counties of Chambers,' Lee, Macon; • Eandolph, Russell and Tallapoosa, which shall constitute the eastern division of said middle judicial district. Teims of the district court for the northern division shall be held at Montgomery" on the first Tues- days in May and December ; for the southern division, at Dothan on the first Mondays in June and December and for the eastern division at Opelika on the first Mondays in April and November : "Provided, that suitable rooms and accommodations for holding court at Opelika shall be furnished free of expense to the Gov- ernment. The clerk of the court for the middle district i shall ' maintain an ofSce, in charge of himself or a deputy, at Dothan, and shall maintain an office in charge of himself or a deputy, at Opelika, which said offices at Dothan and Opelika shall be kept open at all times for the . transaction of the business of said divisions. " ' i "The southern district shall include the territory embraced on the first, daj' of: July, nineteen hundred and ten, in the counties of Baldwin, Choctaw, Clarke, Conecuh, ■ Escambia, Mobile, Monroe, and Washington, which sliall constitute 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 Mon- days in May and November, and for; the .northern division, at Selma on the first Mondays in May and November." ^ "There is hereby established a district court for the district of 2U. S. E. S., §532, 36 St. at Aug: 2, 1886, elii 842, §2, '24 St. at L. 1105, am'd Aet of Feb'y L. 213, Comp. St. 1901, p. 449, hafl 28, 1913, 37 St. at L. 698, , Cpmp, co-qrdinate powers, and that . each St. § 1052. Under the Aet of could appoint and remove a re;feree February 25, 1907, ch. 1198, 34 in bankruptcy within the northern St. at L. 931; Comp. St. Stipp. ' district^ 37 St. at L. 698J Comp.' St. 1907, p. 187, which authorized the §1052.' Birch t. Steele, C. C A., appointment of a separate: district v 165 Fed. 577; afSrming Se Steele, judge for the northern district, ii , , , 156 Fed. 853; and. OYferrulin^l Ex was Tield that he and the judge pre- parte Steele, 161 Fed. 886,, 162 Fed. vioiisly appointed for the middle 694. and northern districts, under Act of §66], ., ALASKA 279 Alaska, with the jurisdiction of circuit and district courts of the United States and with general jurisdiction in civil, crim- inal, equity, and admiralty causes ; and four district judges shall be appelated for the district, each at an annual salary of seven thousand five hundred > dollars, who shall during their terms of office reside in the divisions of the district to which they may be respectively, assigned; by the President. The court shall consist of four divisions,' which shall also be recording divisions. Divi- sion' iinmheved one shall I consist of all that part of the district of Alaska lying east, of the Osue hundred and forty-first meridian of west longitude. L>ivisiooi aumber two shall consist of all that territory lying west of a ,Hne commencing on the Arctic coast at the, one hundj:ed and forty-eighth meridian; thence , extending south along the easterly watershed of the Colville River to a poiut on the Rockj^ Mount'ain divide between the headwaters of Colville River on the north and west and the waters of the Chandler on the south; thence southwesterly along the divide bet^Yeen the waters of the Colville River, the Kotzebue Sound, and the Norton Sound on the north and west and the waters of the Yukon on the south to the one hundred" and sixty-first meridian of ' west longitude'; thence along said meridian to the Kuskokwim Rivei- ; thence southwesterly along the center of the channel of said Kuskokwinl River ; then southwesterly along the center of the channel of said KUskokwim River to Bering Sea thfe said division to include all the islands lying north of the fifty- ninth parallel' of north latitude.' jDwmou numbeted three shall consist of all that territory lying soiith and west of the line start- ing on the coast of the Gulf of Alaska at the one hundred and forty-first meridian of -west longitude; thence northerly along said meridian to a i point due east from Mount Kiniball; thence west to the summit of Mount Kimball ; thence southwesterly along the southerly .watershed of the headwaters of Tanana River; thence westerly along the divide between the waters of the Gulf of ^Ala-ska on the, south and the waters of the Yukon on the noi-th to the summit of , Mojint , McKinky ; thence continuing westerly along the .(iiyide between the, waters of the Gulf of Alaska and;BristO[l Bay on the south and the waters of the Yukon and Kuskokwim on the north to the one hundred and fifty-ninth meridian of west longitude ; tlience northwesterly to the Kusko- kwim River on the one hundred and sixty-first meridian of west 280 ORIGIN Ali JUKISDICTION [§ 66 longitude; thence southwesterly along the center of said river to Bering Sea; said division to include the Alaska peninsula, the Aleutian Islands, and all islands along the coast of this district south and west of the said district and all lying south of the fifty-ninth parallel of north latitude. Division numbered fmir shall consist of all that part of the district of Alaska lying east of the second division and north of the third division. One gen- eral term of court shall be held each year at Juneau, and such additional terms at other places in the first division as the Attor- ney-General may direct. One general term of court shall be held each year at Nome, and such additional terms at other places in the second division as the Attorney- General may direct. One general term of court shall be held each year at Valdez, and such additional terms at other places in the third division as the; Attorney-General may direct. One general term of court shall be held each year at Fairbanks, and such additional terms at other places in the fourth division as the Attorney-General may direct. Each of the judges is authorized and directed to hold such special terms of court at such times and places in their re- spective district as any of them, respectively, may deem expedi- ent, or as the Attorney-General may direct. Each of the judges is authorized and directed to hold such sp«cial terms of court as may be necessary for the public welfare or for the dispatch of the business of the court at such times and places in their re- spective districts as any of them, respectively, may deem ex- pedient, or as the Attorney-General may direct; and each shall have authority to employ interpreters and to make allowances for the necessary expenses of his court, and to employ an official court stenographer at such compensation as shall be fixed by the Attorney-General. At least thirty days' notice shall be given by the judge, or the clerk, of the time and place of holding the several terms of the court." * "The jurisdiction of each division of the court shall 'extend over the district of Alaska, but the court in which the action is pending may, on motion, change the place of trial in any action, civil or criminal, from one place to another place in the same 3 3.5 St. at L. 839, Comp.- St. '' ■ •, §3564. ' ■ § 66] ALASKA 281 division or to a designated place in another division in either of the following cases : First. When there is reason to believe that an impartial trial can not be had therein ; ; ' Second. When the convenience of witnesses and the ends of justice would be promoted by the change; Third. When from any cause the judge is disqualified from acting; but in such event, if the judge of another division will appear and try the action, no change of place of trial must be made; Fourth. By the court, on its own motion, when, considering available means of travel, it appears that the defendsint will be put to unnecessary expense and inconvenience if summoned to defend in the place or division in which an action has been com- menced ; and when it appears to the satisfaction of the court, or judge thereof, that an action has been commelieed in a place or division remote from the residence of the defendant for the purpose of causing unnecessary expense or inconvenience^ the place of the trial shall be changed at the cost of the plaintiff, and such costs shall not be recovered from the defendant. In any criminal prosecution the court shall change the place of trial where it appears to the satisfaction of the court that the defendant will not be prejudiced thereby and that the United States will be put to unnecessary expense in such criminal prose- cution if the transfer is not made. " * The courts of Alaska have no power to punish a defendant arrested within the district, charged with the, commission of an offense on board an American vessel on the high seas ; and cbnse- quently, such an offender is tried in the First District of the United States, to which he is brought after his arrest in Alaska.? The judge qf 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 pufclic convenience may require. He is also required to appoint commissioners, who are ex-officio probate judges, with probata andicertain other jurisdiction within their^ respective precincts, and to rehiove such commissioners at pileasure.* It was held : that an order abolishing a precinct, pro- 4 31 St. at L. 323; Comp St. 6 U. S. ^- Wewth, 149 Fed. 302. § 3565.' 6 31 St. at L. 323. 282 ORIGINAL JURISDICTION [ § -66 viding that the territory, embraced therein should become a part of another precinct, accepting the resignation of the commis- sioner for the precinct abolished, and directing him to "deliver the records and property pertaining to hiS' office " to the commis- sioner of the new district, with which the former one was con- solidated; constituted the, commissioner of the latter precinct the successor in office of the former commissioner of that abol- ished, and transferred to him. all the probate oases pending in the former precinct, with power to proceed inithe same.'' The State of Arizona constitutes one district, with one district judge, and is attached to the ninth circuit. Terms of the district court shall be held, in Tucson on the first Mondays in Maj^and November; at i Phoenix on the first Mondays in April and Oc- tober; at Preseott on the first Mondays in March and: September ; and at Globe on the first Mondays an June aiid December. Causes, civil and criminal, may be , transferred by the court or judge thereof from any of the aforesaid places where, court shall be held in said district to any of the places hereinabove men- tioned in said district when the convenience of the parties or the ends of justice would be promoted by the transfer ; and any inter- locutory order may be inade by the court or judge thereof in any of the hereinabove mentioned plapes.* "§71. The State of Arkcmsas 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, Lafayette, Co- lumbia, Nevada, Ouachita, Union, and Calhoun, which shall con- stitute the Texarkcma division of said district ; also the territory embraced on the date last mentioned in the counties of Polk, Scott," Yell, "Logan, Sebastian, Franklin, Crawford, Washing- ton, Benton, and Johnson, which shall constitute the Fort 'Smith division of said district ; also the territory embraced on the date last mentioned in the counties of Baxter, Boone, Carroll], Madison, Marion, Newton, and Searcy, which ^hall constitute the Harrison division of said district. -Terms of the District court fqr the 7 Cheney v. Alaska Treadw^U 8 36 St. at L. 576, 38 St, at L. Gold Min. Co., C. 0. A., 148 iFed. 203. ' : 808. See mfra, § 67. . §•66] , ,, ARKANSAS 283 Xexarhancat division :shall be held at Texarkana on the second Mondays in May and November ; for the Fort Smith Division, at Fort Smith oh, 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 terri- tory embraced on the first day of. July, nineteen hundred and ten, in the, counties of Lee, Phillips, ^Saiut- Francis, Cross, Monroe, Wgodruff, , Pesha, and, Chicot, -vyhich shall constitute the eastern division of S9.id district ; alsQ the territory, embraced on the date last m.^ntioned, in tlie countie,S| of Independence, Cleburne, Stone, Izavd, Sharp ;, Ja^ck^on, which shall constitute the northern divi- sion of said distriG|; ; also the territory embraced on the date last meutioned in the counties of Crittenden, Clay, Craighead, Greene, Mississippi, Poinsett, Fulton, Randolph, and Lawrence, ^yhich shall constitute^ the Janesboro division of said district; and also the territory embi;aced on the date last mentioned in the counties of Arkansas, Ashley, Bradley, Clark, Cleveland, Con- way, Dallas, Drew, Faulkner, Gairland, Grant, Hot Spring, Jef- ferson, Lincoln, Lonoke, Montgomery, Perry, Pope, Prairie, Pu- laski, Saline, Van Buren, and White," and Yell, "which shall oonstitnt^ the' western 'divisitin of said district. Terras of the District court for the eaMern division shall be held at Helena Oil the second JMouday in March and the first Monday in October ; for the northern division, at Batesville on the fourth Monday in May and the second Monday in December;" for the /o«es6oro division, at- Jonesborb' on* the first Monday in May and the fourth Monday in November,, "and for theiiifestern division, at Little Rock; on the first Monday .in April and the third, Moiiday. in Oc- tober. ..The clerk of the court for the .eastern, district shall main- tain apoiffice^in charge q(f .himself or a deputy at Liljtle.Rocki at Helena, at Jpnesbpro, and at, Batesville, which shall; b^ kept open at all tinie,s for the, transaction of the .]3usiu,ess of the court. And tb,e .cl^rk of, the court fpr the wfistevn dis,trifit ^hs^)! maintain an office in charge of himself or adeputy ^t Fort Smith, at Harrison, and at Texarkana, which shall be kept open at all times for the transaction of the business of the court."* 9 36 St. at L. 1106, as For' the special jlirisdictioii of 203,' Comp. St. § 1055;' as amended, courts held in the western district 38 St. at 'L.' 1193; St. §§1056, over controversies affecting the Gulf, 1056a, 1056b, lOSfic, ' " Colorado & Saiita Fe Railroad Com- 284 OEIGINAli JURISDICTION [§66 " § 72. The State of California is divided into two dist^fiets, to be known as the northern and southern districts of California. The southern district shall include the territory embraced, 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 division of said dis- trict ; 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 sonithern 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 of Los An- geles on the.second Monday in January and the' second Monday in July, and at San Diegq on the second Monday 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 Del Norte, Siskiyou, Modoc, -Humboldt, Trinity, Shasta, Lassen, Tehama, Plumas, Mendocino, Lake,' Colusa, Glenn, Butte, Sierra, Sutter, Yuba, Nevada, Sonoma, Mapa, Yolo, Placer, Solano, Sacramento, Bl Dorado, San Joaquin, Ama- dor, Calaveras, Stanislaus, Tuolumne, Alpine, and Mono, which shall constitute the northern di/oision of said district; also the territory embraced, on the date last mentioned, in the counties of San Francisco, Marin, Contra Costa, Alameda, San Mateo, Santa Clara, Santa Cruz, Monterey, and San Benito, which shall constitute the southern division of said district. Terms of the district court for the northern division of the northern district shall be held at Sacramento on the second Monday in April and the first Monday, in October, and at Eureka on the third Monday in July ; and for the southern division of the northern district, at San Francisco on the first Monday in March, the second Monday in July, and the first Monday in November. The clerk of the district court for the 'northern district shall maintain an office at paiiy, and the Southern Kansas 40 Fed. 273; s. c, 144 TJ. S. 133, Railway Company, see 23 St. at L. 36 L. ed. 377. As to Indian Ter- « 8, p. 72 ; 23 St. at L. § 8, p. 75 ; ritory, see 25 St. at L. 786 ; Gowen Briscoe V. Southern Kan. Ey. Co., v, Harley, 56 Fed. 973. §;66] CALIFORNIA, OOLOBADO, CANAL ZONE 285 Sacramento, in charge of himself or a deputy, which shall be kept open at all times for the transaction of the business of the court."" '*§ 73. The State of CoLorhda shall constitute one judicial dis- trict, to be known as the district of Colorado. Terms Of the dis- trict court shall be held at Denver on the first Tuesday in May , and November; at Pueblo On the first Tuesday in April; at Grand Junction on the sedond Tuesday in September; at Mont- rose on the third Tuesday in Septeinber ; and at Durango on the fourth Tiiesday in September.^^ "That the Secretary of the Treasury, in constructing the pub- lic buildings heretofore authorized to be constructed at the cities of Grand Junction and Durango, be, and he is hereby, authorized' and empowered to provide accommodations in, each of said buildings for post office, United States court, and other govern- mental offices, and the existing authorizatioiis for gaid buildings be and thp same are hereby respectively amended accordingly; and the unexpended balance of all appropriations heretofore made for the construction of said buildings and all appropria- tions which; may be provided in any pending legislation, or that hereafter may be made for the construction of said buildings, are hereby made available for the purpose stated in this paragraph : Provided, That if at the time the holding of the terms of said court in any year in either of said cities of Grand Junction and Durango there is no business to be transacted by said court, the term may be adjourned or continued by order of the j.udge of said court in chambers at Denver, Colorado, And provided fvir- ther. That the marshal and clerk of said court shall each respec- tively appoiht at least one deputy to reside at and who shall main- tain an office at each of the four said places where said court is to be held by the terms of this Act." ^^ ' ' There shall be in the Canal Zone one district court with two , divisions one including Balboa and the other including Cristobal, and one district judge 'of the said district who shall hold his 10 24 St. at L. 308, 36 St. at L. 11 19 St. at L. 61, §§ 73, 76, 36 1107, 39 St. at L. 122, Comp. St. St. at L. 1107, Comp. St. § 105§, , s 1057. Ii2 Ibicl, -. 286 ORIGINAL JURISDICTION [§66 court in both divisions at such time as he may designate by order, at least once a month in each division. " '* ' i "§74. The State of Connecticut shall constitute one judicial district, to be knoypn as the district of Connecticut. Terms of the District court shall be held at New Haven on the fourth Tuesdays in Pebrua,ry 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 dis-, triet, 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 include 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, Saint Lucie, and Volusia. Terms of the district court for the southern dis- trict shall be held at Oeala on the third Monday in January ; at Tampa on the second Monday in February ; at Key West on the first Mondays in May and November ; 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 dis- trict court for the southern 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, Calhou,n, Escambia, Frank- lin, Gadsden, Holmes, Jackson, Jefferson, Lafayette, Leon, Levy, Liberty, Santa Eosa, Taylor, Wahulla, Walton, and Washington. Terms of the District 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 13 37 St. at L. 565, § 8, Comp. St. 18 36 St. at L. 1108, Comp. St. § 10044. See mfra, § 70a. § 1060. 1136 St. at L. 1108, aornp. St. S 1059. § 66] FLORIDA, Georgia 287 first Monday in April; and at Gainesville on the second Mondaj^s in June and Deeember.^^ " § 77. The State of Georgia is divided into two districts, to be known as the northern and southern districts of Georgia. The northern district ^hall 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, Payette, Fulton, Forsyth, Gil- mer, Gwinnett, Hall, Henry, Lumpkin, Milton, Newton, Pickens, Rockdale, Spalding, Towns, and Union, which shall constitute the northern division of said district ; also the territory embraced on the date last mentioned in the counties of Banks, Clarke, El- bert, Franklin, Greene, Habersham, Hart, Jackson, Morgan, Madison, Oglethorpe, Oconee, Rabun, Stephens, Walton, and White," and Barrow "which shall constitute the eastern' dim^n of said district; also the territory embraced on the date last men- tioned in the counties of Chattahoochee, Clay, Early, Harris, Heard, Meriwether, Marion, Muscogee, Quitman, Randolph, Schley, Stewart, Talbot, Taylor, Terrell, Troup, and Webster, which shall constitute the western division of said district; also the territory embriaced on the date last nientioned in the counties of Bartow, Chattooga, Catoosa, Dade, Floyd, Gordon, Haralson, Murray, Paulding, Polk, Walker, and Whitfield, which shall constitute the northwestern division of said district. Ternis 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; and at Gainesville on the fourth Monday in April and November, and it' shall be the duty of the judge to assign such cases both civil and criminal; as may in his judg- ment be most convenient to the parties to said cases and as may be in the interest of economical expenditures by the Gov- ernment ; for the eastern division at Athens on the second Mon- day in April and the first Monday in November for the west- ern division, at. Columbus on, the first Mondays in May and ' December ; and for the northwestern 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 16 36 St. at L. 1108, Oomp. St. § 1061. 288 ORIGINAL JUEISDICTION [§ 66 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 said first day of July, nineteen hundred and ten, in the counties of Appling, Bulloch, Bryan, Camden, Chatham, Emanuel, EfSngham, Glynn, Jeff Davis, Liberty, Montgomery, Mcintosh, Screven, Tatnall, Toombs, and Wayne," Candler, Jen- kins, and Evans, "which shall constitute the eastern division of said district; also the territory embraced on the date last men- tioned in the counties of Baldwin, Bibb, Butts, Crawford, Dodge, Dooly, Hancock, Houston, Jasper, Jones, Laurens," "llonroe, Pike, Pulaski, Putnam, Sumter, Telfair, Twiggs, Upson, Wilcox, and Wilkinson, which shall constitute the western division; also the territory embraced on the date last mentioned in the counties of Burke, Columbia, Glascock, Jefferson, Jenkins, Johnson, Lin- coln, McDuffie, Richmond, Taliaferro, Washington, Wilkes, and Warren, which shall constitute the northeastern division; also the territory embraced on the date last mentioned in the counties of Berrien, Brooks, Charlton, Clinch, Coffee, Decatur, Echols, Grady, Irwin, Lowndes, Pierce, and Ware, ' ' the counties of Ma- con and Thomas, "which shall constitute the southwestern divi- sion; and also the territory embraced on the date last mentioned in the counties of Baker, Ben Hill, Calhoun, Crisp, Colquitt, Dougherty, Lee, Miller, Mitchell." Tift, Turner and Worth, "which shall constitute the Alban/y division. Terms of the district court for the western division shall be held at Ma- con on the first Mondays in May and October ; for the eastern division, at Savannah on the second Tuesdays in February, May, August, and November; for the northeastern division, at Au- gusta on the first Monday in April and the third Monday in November; for the southwestern division at Valdpsta on the second Mondays in June and December; and for the Albany division, at Albany on the third Mondays in June and Decem- ber."" "§ 78. The State of Idaho shall constitute one judicial dis- trict, to be known as the district of Idaho. It is divided into four divisions, to be known as the northern, central, soufKern, and eastern divisions. The territory embraced on the first day IT 36 St. at L. 1107, 37 St. at L. 1017, Comp. St. § 1062, as amended. § 66] IDAHO, ILLINOIS 289 of July, nineteen hundred and ten,- an the counties of Bonner, Kootenai, and Shoshone, i shall constitute 'the i^orAeni division of said idiistrict ; and, the territory i embraced on the date last men- tioned in the. counties of Idaho,, Latah, and.Nez Perce, ,shall con- stituteithe central division, of said.distpictf; a,pd. the territory em- braced on the date last mentioned in the counties, of , Ada,,. Boise, Blaine, Cassia, Twin Falls, i Canyon, Elmore, Lincoln, Owyhee, and Washington, shall sonstitnte the, smiih'ern cl^ivmojis ,ot sai^ district; and the territory embraced \on ,the datei last mentioned in the counties of Bannock, Bear Lg,ke,! Bingham, Cu.ster, Fre- mont, Lemhi, and, Oneida, shall constitute, the eastern divisioii of , said district; I Termis of the Ejistript, coui't, for, the 7wrf /tern division of said district shall be held rati Coeur d'^lene City on the fourth Monday in May and the third Monday in Novemt)cr ; for. the cen^raZ division, at Moscow, on the .s,eGond-Monday in May and the. first Mondaj^ in November; for the, southern, division, at Boise, City on the second. Mondays, in, Ii]ebruary ,and September; and for the, eastern division, at PoeateUOiQ];! thciSficond Mondays in March and October. The clerk of the.court shall raaintainiaii office in charge of himself .or a deputy atiCoemr.d'Alene City, at Mo.seow-, at Boise City, and at Poeatello, which shall bo open at all times for the transaction, qf theibusinessiof the court.^^ ; "§i79. The State of; ZW?')!o?'.s is divjded , into ;thjcee,, districts to be known as the northern, soi(rt]iern,and:east6rn district of Illi- nois. The northern district shalli include the. territory rembraced on ithe first day of July, nineteen hundred and ten, in the xqun- ties of Cooki Dekalb, Dupage, Grundy, Kane,- Kendall, I^ake, Lasalle, McHenry, and Will, which shall constitute, the etistem division; also :the territory embraced on. the date ilast mentioned in the counties of Boone,. Carroll, Jo Daviess, Lee, Ogle, Stephen- son, Whiteside, and Winnebago, w^hich shall constitute the west- em division. Terms of the. district court 'for the eastern division shall be held -at Chrcago on the first Mondays in February, March, April, Mayyjune, July, Se'^tember,''Oetober, and Noveiiiber,' and the third Monday in December; and for the 'ivestentidivisimii' sA. Preeport on the third Mondays in April ah'd^ October. The Clerk of the court tot' the 'northern district shall maintain an office iii ..18i26 St. at L...at7, -27; St. at L. . ^ 1062b, 36 St. at !,.• 927; ia,09;.Oomp. ■73, 28 St. at;L. 5,l30;^.t(.|at,Ij. 423, ,, gt.,,§5063. , ,,,,,,,[, ,,, ,, ;, Fed. Prac. Vol. I— IP 290 ORIGINAL JURISDICTION [S 66 charge of himself or a deputy at Chicago and at Preeport, which shall be kept open at all times for the transaction of the business of the court. The marshal .for the northern district shall main- tain an office in the division in which he himself does not reside and shall appoint at least one deputy who shall reside therein. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Bureau, Pulton, Henderson, Henry, Knox, Livingston, McDon- ough, Marshall, Mercer,' Putnam, Peoria, Eock Island, Stark, Tazewell, Warren, and Woodford, which shall constitute the northern division; also the territory embraced on the date last mentioned in the counties of Adams, Bond, Brown, Calhoun, Cass, Christian, Dewitt, Greene, Hancock, Jersey, Logan, Mc- Lean, Macon, Macoupin, Madison, Mason, Menard, Montgomery, Morgan, Pike, Sangamon, Schuyler, and Scott, which shall con- stitute the southern division. Terms of the d,istrict court for' the northern division shall be held at Peoria on the third Mondays in April and October; for the southern division, at Springfield on the first Mondays in January and June, and at Quincy on the first Mondays in March and September. The clerk of the court for the so^ithern district shall maintain an office in charge of him- self or a deputy at Peoria, at Springfield, and at Quincy, which shall be kept open at all times for the transaction of the business of the court. The marshal for said southern district shall ap- point 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, nineteen hundred and ten, in the counties of Alexander, Champaign, Clark, Clay, Clinton, Coles, Crawford, Cumberland, Douglas, Edgar, Edwards, Effingham, Payette, Pord, Pranklin, Gallatin, Hamilton, Hardin, Iroquois, Jackson, Jasper, Jefferson, Johnson, Kankakee, Lawrence, Marion, Massac, Monroe, Moultrie, Perry., Piatt, Pope, Pulaski, Randolphy Eiehland, Saint Clair, Saline, Shelby, Union, Vermilion, Wabash, Washington, Wayne, White, and Williamson. Terms of the district court for the eastern dis- trict 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 first 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 §66] ILLINOIS, INDIANA, IOWA 291 ^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, files, and documents pertaining to the court at that place;*® ,,"§i80. The State, of Indiana shall constitute one judicial dis- trict,, to be known as the district of Indiana. Terms of the dis- trict court shall be held at Indianapolis on the first Tuesdays in May and November; at New Albany on the ifirst Mondays, in 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 his office at New Al- bany, one at Evansville, one at Fort Wayne, and one at Ham- mond. Each deputy shall keep in his offi'ceJulI records of all actions and proceedings of the district court held at that place.*' " § 81. The State of Iowa, 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, Bejiton, Tama, Grundy, and Hardin, which shall constitute the Cedar Bapids 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, Haniilton, Worth, Cerro Gordo, Franklin and Butler, which shall constitute the central divi- 19 36 St. at L. 1110, Comp. St. §§ 2, 3, 23, 33 St. at L. 992, 997, §1064. A court sitting' in one di-' Comp. St. Supp. 1909, pp. 123, 130, vision has jiirisdietio];i' to hear and has jurisdiction to try offenses corn- determine a motion, for a new trial mitted before the creation of his in a criminal case tried in another office as well as those committed division. Dwyer v. U. S., C. C. A., subsequently. Walsh v. XJ. S., C. C. 170 Fed. 160. The additional dis- A., 174 Fed. 615, Oomp. St. §1065. trict judge, appointed for the 5i<> 36 St. at L. 1110, Comp. St. northern district of Illinois under O065, the Act March 3, 1905, ch. 1427, ^92 ORIGINAL JURISDICTION [§ 66 sioii;' also the territory embraced on the date last mentioned' in v the counties of Dickinson, Clay, Bviena Vistaj" Sac, Osceola, O'Brien, Cherokee, Ida, Lyon, Sioux, Plymouth, Woodbury; and Monona, which shall constitute the western division. Terms of the district court ior 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 Cedar Rap- ids on the first 'Tuesday' in April and the fourth Tuesday in Seprtember ; ■ for the central division, at Fort Dddge on thd sec- ond Tuesdays in June and November'; and for the western division, ait Sioux City on the fourth' Tuesday in May arid the third Tiiesday in October. The southern di'^trict shall include the territory embraced on the first day df July, nineteen hun- dred and ten, in the counties of Louais, Henry, Des^ Moines, Lee, and Van Buren, whiuh shall constitute the eastern division of said district; also the territory embraced on the date last mentioned in the counties of Marshall, Story, Boone, Greene, Guthrie, Dallas, Polk, Jasper, Poweshiek, Marion, Warren^ and ]\Iadison, which shall constitute the central division of said dis- trict ; also the territory embraced on the date last mentioned* in the counties' of Crawford, HaiTison, Shelby, Audubon, Cass, Pottawattamie, Mills, and Montgomery, which shall constitute the western division of said district ; also the territory embraced on the date last mentioned in the counties of Adair, Adams, Glarke, Decatur, Freemont, Lucas, Page, Ringgold, Taylor, Union and, Wayne, which shall constitute the southern division o£ said district; also the territory embraced on the date last mentioned in the counties of Scott, Muscatine, Washington, JohnsOn 'and Cliiiton, which shall constitute the Davenport di- vision of said district; also the territory embraced on the date last mentioned in the counties of Davis, Appanoose, Mahaska, Keokuk, Jefferson, Monroe, and Wapello, which shall constitjite Ottunvwa division of said district. Terms of the district court for the Eastern division shall be held at Keokuk on the sixth Tues- day after the fourth Tuesday in February and the eighth Tues- day after the third Tuesday in September ; for the central divi- sion, .at Des Moines on the tenth Tuesday after the fourth Tuesday in February and the fifteenth Tuesday after the third Tuesday ill September; for the western divisio)i, at Council Bluff's on the §'66] IOWA, KANSAS 293- fourth Tuesday in' 'February and the sixth' Tuesday after the' third Tiiesdaj^Jin September ; .for the southern division, at Ores- ton on the fourth Tuesday- after the fourth Tuesday in February and the third Tuesday in September ; for the Davenport divisioft,' at Davenport On the eighth Tuesday aifter the fourth Tuesday 'in' February and the second Tuesday after the third Tuesday in September; and tor the'Oitumwa division, afOttumWa b'n the Kecond Tuesday after the fourth' Tuesday in F'e'brUary and the fourth Tuesday after the third 'Tuesday in September. The clerk of the' court for said district shall maintain an office in charge of himself or a deputy at Davenport and at Ottunlwa, for the trans- ciction of the busin,ess of said division. " *^ ■' Under the Act of June '1, 1900,^^ it was provided that all grand dnd petit jurors for the southern district should be se-' lected from citizens residing therein. It was held thait jurors drawn for service in the central division need iiot reside therein, provided they reside witlun the district.*^ ' ' " § 82. The State of Kansas "shall constitute one judicial dis- trict, to 'be known as the district of Kdnsas. It is divided into three divisions, to be known as i\i& jirst, second, awA third divi- sions' of ih.G district of Kamsas. The first division shall include the territory embraced on the first day of July, nineteen hun- dred and ten, in the cbuiities 'of Atchison, Brown, Chase, Chey- enne, Clay, Cloud, De'eatur, Dickinson, Doniphan,' Douglas', 'Ellis, Franklin, Geary, dove,' Graham, Jackson, Jefferson, Jewell, Johiison, Leavenworth, Lincoln, Logan; Lyon, Marion, Mar- shall,' Mitchell,' Morris, Xcmaha, Norton,' Osag'e, Osbotne, 'Gt'-' tawa, Phillips, Pottawatomie, Rawlins, Republicj' Riley, Rooks, Russell, Saline,' Shawnee, Sheridan, Sherman, Smith, Thomas, Trego, Wabaunsee,' 'Wallace, Washington, and Wyandotte.' '-The second division shal] include the territory embraced on the date last mentioned in' the counties of Berber, Barton, Butler, Clark, Comanche, Cowley, Edwards, Ellsworth, Finney, Ford, Grant, Gray, Greeley, Hainilton, Harper, Harvey, Hodgeman,' Haskell, -Kingman, ICiowa,, Kearny, Lane, ^McPherson, . Morton, Meade, Nes|?^ Pratt,', Pawnee, Reno,' Rice, Rush, Scott,', Sedgwick, Staf- 8X36 St. 'at L. 108'7, tin, am Vl' 22 S d, Ch. 601, 31 St. at L. '249, A'ct ''bf ' Mar. 3, 1913, 37 'St. at L. Gomp. " St.' 1901, p. 353. 734, 39 St. at L.'i2, 55; Gomp. St. 23 Spencer v. V. S., G. 0; A., 169 S 1066. Fed. '562." 294 OEIGINAI. JURISDICTION [§ 66 ford, Stevens, Seward, Sumner, Stanton, and Wichita. The third division shall include the territory embraced on the said date last mentioned in the counties of Allen, Anderson, Bour- bon, Cherokee, Coffey, Chautauqua, Crawford, Elk, Greenwood, Labette, Linn, Miami, Montgomery, Neosho, Wilson, and Wood- son. Terms of the district court for the first division shall be held at Leavenworth on the second Monday in October ; at Topeka 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; terms of the dis- trict court for the second division shail be held at Wichita on the second IMonday in March and September; and for the th'rd division, at Fort Scott on the first Monday in May ajad the sec- ond Monday in November. The clerk of the district court shall appoint three deputies, one of whom, shall reside and keep his office at Port Scott, one at Wichita, and the other at Salina, and the marshal shall appoint a deputy who shall reside and keep his office at Kansas City. ' ' ^ § 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, Gal- latin, Boone, Kenton, Campbell, Pendleton, Grant, Owen, Frank- liur Bourbon, Scott, Woodford, Fayette, Jessamine, Garrard, Madison, Lincoln, Rockcastle, Pulaski; Wayne, Whitley, Bell, Knox, Harlan, Laurel, Clay, Leslie, Letcher, Perry, Owsley, Jackson, Estill, Lee, Breathitt, Knox, Pike, Floyd, Magoffin, Martin, Johnson, Lawrence, Boyd, Greenup, Carter, Elliott, 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 ; 24 36 St. at L. 1112, as amended, Colorado & Santa Fe Eailroad Com- 39 St. at L. 725, Comp. St. § 1067. pany, and the Southern Kansas See McGlashern v. TJ. S., 71 Fed. Railway Company, see 23 St. at L. 43'4. For special jurisdiction of 72, 75; Briscoe v. Southern Kan. the courts held in this district over Ey. Co., 40 Fed. 273. controversies affecting the Gulf, § 66] KENTUCKY 295 at Covington on the first Monday in April and the third Mon- day in October ; at Eichmond 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 November ; at Cat- lettsbur^ on the fourth Monday in May and the second Monday in December; and a;t Jackson on the first Monday in March and the third Monday in September : Provided, That suitable rooms and accommodations are furnished for holding court at Jack- son free of expense to the Government until such time as a public building shall be erected there. "At Lexington: Be- ginning on the second Monday in January, and the second Mon- day in June in each year.' Provided, That suitable rooms and accommodations for holding court at ^Lexington shall be fur- nished without expense to the United States." The weMern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Oldham, Jef- ferson, Spencer, Bullitt, Nelson, Washington, Marion, Larue, Taylor, Gasey Green, Adair, Russell, Clinton, Cumberland, Mon- roe, Metcalf , Allen, Barren, Simpson, Logan, Warren, Butler, Hart, Edmonson, Brayson, Hardin, Meade, Breckenridge, Han- cock, Daviess, Ohio, McLean, Muhlenberg, Todd, Christian, Trigg, Lyon, Caldwell, Livingston, Criftenden, Hopkins, Web- ster, Henderson, Union, Marshall, Calloway, McCraeken, 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 Mondajys 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 of Kentucky shall maintain an office in charge of himself or a deputy or a clerical assistant at each of the places of holding court within said district." "The clerk for the western district shall maintain an office in charge of him- self 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 pf 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 return- able to the court nearest to the county of the residence of the 296 ORIGINAL JURISDICTION [§ 66 defendant, or of that defendant whose county is nearest to a court, and shall, immediately upon payment, bj^ the plainj;iff of 'hiS' fees accrued, send the papers filed to the clerk, qf the court to which the process is made returnable; and whenever , the process is not thus made returna,ble, anj^ defendant may, ,upoii motion, on or before the calling of the cause, have it transfei*red to the court to which it .should have been sent.hajd the clerk known the residence - of the defendant when, the ,a,c,tioii was ■brought. " 2* , ; :''§84.- The State of Louisiana is divided into, 'two juGliciajl districts, to be known as the easter.n and western districts, ) of Louisiana. The eastern district shall include the territory .era- braced on, the first day of July, , nineteen hundred -and ten, in the parishes of Assumption, Iberia, Jefferson, Lafourche, Or- leans, Plaquemines, Saint Bernard, Saint Charles, Saint James, Saint Johb the Baptist, Sainit Mary, Saint Tammany, Tangi- pahoa, Terrebonne, and Washington, which shall constitute the New Orlaens division; also the territory embraced on the date last mentioned in the parishes of Ascension, Bast Baton iEojige, 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. Ternis 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 Rouge on the second Mondays in April and November. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputj' at New Orleans and at Baton Rouge which shallbe kept open at all times for the transaction of the business of the court. The M'csffr?) district .shall includethe territory embraced on the first |day of July, nineteen hundred and ten, in the parishes of Sa^int. Landry, Evangeline, Saint Martin, Lafayette, and Vermil- ipn, w:hich, shall constitute the Opelousas division of said district ; also the ; territory embraced on the date last mentioned in, the 85 ,36 St. at L. 1087, 1112, Cpmp. did not lapse by reason of tiie eo;n- St. §1068, Act of Jan. 19, 1920. mencement of intervenmg' terms Under the former law, '31 St. at' JO. elsewhere. IJ. S. v. Louisville & TST. 781, Comp. St. 19W,,p. .360j it was E. Co., 177 Pod. '780. .:, , , lifjd' that ,a, tprni h^ld in Lonisvillc §66] LOUISIANA, MAINE. 297 parishes of Rapides, Avoyelles, Catahoula^ La Salle, Grant, and Winn,' which shall constitute the Alexandria division of said dis- trict; also the territory embraced 'on the said date last mentioned in the parishes of ^ Caddo, De Soto, -Bossier,' Webster, Claiborne^' Bienville, Natchitoches, ' Sabine, and Red River, which shall con- stitute the Shixveport division oi said district; also 'the territory- embraced on the date last mentioned in' the parishes of Ouachita, Franklin, Richland, MorehoUse, Bast Carroll, West Carroll, iladisoii, Tensas, Concordia, Union, Caldwell, Jackson, and 'Lin- coln, which shall constitute the Monroe division of 'Said district; also the territory ' embraced on the date last men'tiohed in the parishes of Acadia, Calcasieu, Cameron, and'Vernon, which'shall constitute the Lake Charles diviHon of said district. ' Terms of the district court for the Opelousas division shall be held at Opelousas on the first Mondays in January and June; for the Alexandria division, at Alexandria oh the fourth Mondays in J^anaary and June; for the Shreveport division, at Shreveport on the third Mondays in February and Octoher; for the Monroe division, at Monroe on the first Mondays in April and October; and for the Luhe 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 Opelpusas, at Alexandria, at Shreveport, at Monroe, ■aucl, at '|Ija^e,, Charles, which shall be kept open, ^1i, all tiines,;f()ri thei transaction of the business of the court. "^® <, -Prior .to th,e Judicial Code it was held, that in a suit in admiralty in person- niii, where two or rnqre of the defendants were citizens.of dif- ferent districts of the State of Louisiana, the, suit might be brought in either district.^'' " §85. The State of Maine fihall constitute one judicial dis- trict to be known as the district of Maine." It is ■" divided dnto two- divisions, to be known, respectively, as -the northern and southern divisions. The counties of Aroostook,' Penobscot, Pis- cataquis, Washington, Hancock, Waldo, and Somerset' shall be known as the northern division, the court for which shall be held' in the said city of Bangor. Tlic remaining counties in said 26 36'"st.'at L. 1087, 1113, Cqirip. ' 27 Downs v. FaU, C. C. A., 17(5 St. 1069. Fed. 657. , ., . . 298 OKIGIN.SL JURISDICTION [§ 66 State and district of Maine shall constitute the souihBrn ddvision, the court for which shall be held in the said city of Portland. ' ' ^' ' ' For the purpose of determining the jurisdiction and venue of all causes, suits, actions, bills, petitions, matters, libels, proceed- ings, prosecutions, indictments, complaints, informations, and other judicial business, whether civil or criminal, or whether in equity, in admiralty, in prize, in forfeiture, or in condemnation, in rem, in personam, or mixed, whatsoever, cognizable in the United States district court, each of said divisions shall be as if it were a separate and distinct judicial district of the United States. There shall be but one judge, one clerk, one marshal, and one district attorney for said district of Maine. United States commissioners in either of said divisions, until otherwise provided by law, shall be appointed and have jurisdiction and cognizance through said district of Maine in the same manner and to the same extent and effect that they now have under ex- isting law. " *® "Any cause, suit, action, bill, petition, matter, libel, proceed- ing, prosecutioji, indictment, complaint, information, or other ju- dicial business, whether civil or criminal, or whether in equity, in admiralty, in prize, in foi-feiture, or in condemnation, in rem, in personam, or mixed, whatsoever, pending in either of said divi- sions, when all the parties thereto so stipulate in writing, and where the ends of justice or the convenience of the parties will be promoted thereby, may, at the discretion of the court of judge, be transferred wholly or specially for the hearing, trial, .or deter- mination of any single proceeding, matter, step, or motion there- in from one of said divisions to the other. On request of all accused in any criminal prosecution and of all claimants in any cause, proceeding, libel, information, or other matter in rem, the same may be transferred, at the discretion of the court or judge from one of said divisions to the division in which a term of said court is next to be held, without the joinder in such request of the United States when the G-overnment is the only other party thereto not joining in such reauest.^" ' ' All ex parte, of course, default and pro conf esso, proceedings and matters, and all interlocutory matters in which all interested 28 § 3, 39 St. at L. 850, Comp. St. 30 § 5, 39 St. at L. 851, Comp. St. 1070c. 1070e. 29 § 4, 39 St. at L. 851, Comp. St. 1070a. § 66] MAINE 299 parties are present and consenting that such hearing may be had, in whichever of said divisions the same may be cognizable or pending, may be heard and determined by the court or judge and all findings, orders, judgments, and decrees be made, and all mesne and final process therein be tested, sealed, issued, and re- newed in either of said divisions, in term time, vacation, or chambers."*^ "Nothing in this Act contained shall be construed to deprive the court or judge of the power to grant a change of venue or con- tinuance in any cause, proceeding, or matter whatsoever accord- ing to law and the requirements of justice. ' ' ^^ "All Acts and parts of Acts inconsistent with this Act are hereby repealed. " ^* ' ' The clerk of said district court for said district of Maine and the marshal of said district shall each at all times maintain by himself or by deputy an office in charge of himself or deputy, both at said city of Bangor and at said city of Portland. The deputy clerk in charge of the office in the division in which the clerk does not reside himself shall reside in the city where, the office of which he has charge is located. That said marshal shall appoint a field deputy, who shall have charge of the office in the division in which the marshal does not reside himself, who shall reside in the city where the office of which he has charge is lo- cated; and who, within and for said division, in the absence of the marshal, shall have all the powers of the marshal, and who shall also, throughout said district of Maine, have all the powers of other deputy marshals. And such field deputy, before he enters on- the duties of his office, shall give bond before the judge of said district of like tenor, effect, and amount and of similar form and condition, with like sureties, and to be approved in like manner, as now or may hereafter be required by law of the mar- shal of said district. " '* "Hereafter, and until otherwise provided by law, two sessions of the United States District Court for the District of Maine, shall be held in each and every year in the city of Bangor, in said dis- trict, beginning respectively, on the first Tuesday of February 31 § 6, 39 St. at L. 851, Comp. St. S3 § 8, 39 St. at L. 851, Comp. St. 1070f. 1070h. 32 § 7, 39 St. at L. 851, Comp. St. 34 § 2, 39 St. at L. 850, Comp. St. 1070g. 1070b. (300 OKIGINAL JUHISDICTIOK [,§ §6 and, the fii^st Tuesday of June, and three sessions of said cojjrt shall fee held in ea,ch and every year in the city of Portland, in said district, beginning, respectively, on the first: Tuesday of April, on the third Tuesday of September, and on the secpnd Tuesday in December. " *s ,,,, ■ i ,; "§,86. ,The State of Maryland shall constitute one judicial district, to be known as the district of Maryland. . Tepmsipf, the district court shall, be held at Baltimore on the first Tuesdays in March, June, September, and December ; and at Cumberland pp jt^fi .second Monday in May , and the last Mfinday . in, September. The clerk of the court, shall; appoint a .deputy who si13.ll, reside .and .maintain;, an office ,a,t Cumberland, unless the clerk/ shall himself reside there-; and the marshal shall also appoint a deputy, who. shall reside and maintain an office at Cutjab^rlaiid, , unless jie sh.airhifliself, reside there.^,^ . , , ,; "§87. The.- State oi, Massachusetts shall constitute , one judi- cial district, to be known as the district of Massachusetts. Terras of the, diptj-ict court shaill be held at Boston, pn;the;tliird, Tuesday in Ma^-cji, the fourth Tuesdaj' in June, the : second, Tuesday, in ;September, and the first Tuesday, in .December,; and: &t Spring- field,- on, the second Tuesdays dn May. and December : Provided, That, suitable rooms and . accommpdations for hplding court ; at Springfield , shall be furnished free of expense to ithe -Gpyern- jment until such time as a Federal building shall be er,efited there for that purpose. The marshal and the clerk for said dis- trict shall each appoint at least one deputy,; to reside in Spring- field and to mairitain an office at that place.*' ., "§88: The State of, Michigan is divided into two judicial districts, to be known as the eastern and western districts ;of ,]\fichigaii.. The eastern, district shall include the territory em- braced on the first day of July,, nineteen .hundred and' ten, ,in the counties of Alcona, Alpena, Arenac, Bay, Cheboygan, Clare, Crawford, Genesee, ■ Gladwin, . Gratiot, Huron, Iosco, , IsaJbella, : Midland, ; Montmorency, Ogemaw,' Oscoda, Otsego, Presque. Isle, Rpsapmmon, Saginaw, Shiawassee, and Tuscolo,, which, .shall .eon- Sititute the. northern division; also the territory embraced, on ,tte - 35 § J. , 39 St. at L. 850, Comp. St. - 37 36 St: . at ,L. ..llU,'Gomp\.- St. 1070a. §1072. ■] :,,, 36St.,# L. 1114, Comp., St. ,,,.■, ,: ; ..k S1071. „p:,.1 §.66 J MICHIGAN 301 da,te,last mentioned- iH; the ejQuptiejs: , of Branch,, QaHiQian, Clinton, I ijilis^ale,, Ingham,: Jackson, Lapeer, Lenawee, Livingstqn, Ma- comb,, Monroe, Oakland, St. Clair, Sanilac, Was;h,tqnaw, and Wayne, which i^hall, constitute the sflutJifim division of said dis- trict. Terms of , the district court fqi-i th.e southern division shall be held; at Deti^oit on 1;he .first Tuesdays in jBtareh, June, and .'No- vember; for, the, w,ori/!.erti.|!!ifwmoii, at Bay City,onttl>e., first Tues- days in May and October, and at Port Huron in .thfi discretion of the jjjdge, of said, court apd.iEit sUiCh., times as he sh^ll appoint -therefor, ; There shalL also .bes, held,;?, special[,or adjourned, term : pi, the district pourt.at Bay City if,or\ the,, hea,ring,, of admiralty causes, beginning in thje month, of Fisbruary,, in,, each .year. The western .<}istriot shall include! the ' ' territory embraced on the first day, of Julj', nineteen .hwjdred and ten, in the. counties of Alger, Baraga, Chippewa, Delta, Dickinson, Gogp.bic, Hou,gh ton, , .Iron, Keweenaw, Luee, .Mackinac,. Marquette, M,enominee, .Qntonagpn, and ,S,cho,ol,craf t, ,]Vjhieh, . shall ; eon§tj.tute the ivortfi^^fu idM),is,iqn; !^l§0,.the territory embraced qnthe said.d,^te, la?t meutipned in th.e counties of Allegan, Antrim, Barry, Benzie, Berrien, Cass,.,Clia.r- IcYoix, Eaton, Ejnmet^, Grjand Traverse,, lonja, Ivalaraazoo, .K^l- Jkaska, Kent, Lake, Le,el^nau, Manistee, M^son, .M.ePOsta, Miggau- kee, Montcalm, ^jyfuskpgon,. Newaygo, Oceana, Osceola, Ottawa, St. Joseph, Van Buren, a^idi Wiexfprd, ,wl?ieh shall .constitute t)Xe so^thervi division of, said district.',' .;' "The terms of ithe district courts for; thei western district of Mii-'higan for th,e southern di- vision shall be held at ,Grand, Rapids, commencing p)i, the, first Tuesdays in March,, June, October and December and for the northern division at Marquette, commencing , on l^he , seepnd Tuesday of, April |and. Septpmber; anij, at Sault Saint iM^j-ie, C0mm|encing on.;tJiei Sj^cpnd Tviesdfiys in , January a,nd , July,,"^* ,','|A11 issjies offapt.shallbe tried art, i^ie terms he]i(i in.the division ,,whpre STicbi snitshaj,! be commenced., Actip,ns in. .re:(ri,j, and,, ad- miralty may ; bp. , Ijrougi^it , in ^^ipl:ieYer . diyi^ipn, , pf , .tjip., p^^tprn diS'trict service, can bp had upon ;f he. .res,., Nothing bie^pin^^con- tained sJra/U prevent, the, district !ppurt.pf.,t;]ie TJsfestieiiijii idivi^i^on from, regulating,,' by. genera^l rule, the venuip. of transitory; ac]ti.0T\s either at law or in equity, or from changing the same for cause. Th'P eldrk pf the court foi* the western district 'sha\\ reside and , 38. 36;, St.- i at L. 1114, 37 ; St. at •). . ,, , .L^, 190, ,Co|mp. .St; §§ 10,73, 1074. ,. ; 302 ORIGINAL JURISDICTION [§ 66 keep his office at Grand Rapids, and shall also appoint a deputy clerk for said court held at Marquette, who shall reside and keep his office at that place; The marshal for said western dis- trict shall keep an offi'ce and a deputy marshal at Marquette. The clerk of the court for the eastern district shall keep his office at the city of Detroit, and shall appoint a deputy for the court held at Bay City, whoshall reside and keep his office at that place. The marshal for' said district shall keep an office and a deputy marshal at Bay City and mileage on service of process in said northern division shall be computed from Bay City.** " § 89. The State of Minnesota, shall constitute one judicial district, to be known as the district of Minnesota. It is divided into six divisions, to be known as the first, second, third, faurth, fifth, and sixth divisions. The first dd-vision shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Winona, Wabasha, Olmsted, Dodge, Steele, Mower, Fillmore, and Houston. The second d/ivision shall include the territory embraced on the date last mentioned in the counties of Freeborn, Faribault,' Martin, Jackson, Nobles, Rock, Pipestone, Murray, Cottonwood, Watonwan, Blue Earth, Waseca, Lesueur, Nicollet, Brown, Redwood, Lyon, Yellow^ Medicine, Sibley, and Lac qui Parle. The third division shall include the territory embraced on the date last mentioned in the counties of Chicago, Washington, Raimsey, Dakota, Goodhue, Rice, and Scott. The fourth division shall include the territory embraced on the date last mentioned in Jhe counties of Henne- pin, Wright, Meeker, Kandiyohi, Swift, Chippewa, Renville, McLeod, Carver, Anoka, Sherburne, and Isanti. The fifth divi- sion shall include the territory embraced on the 'date last men- tioned in the counties of Cook, Lake, Saint Louis, Itasca, Kooch- iching, Cass, Crow Wing, Aitkin, Carlton, Pine, Kanabec, Mille Lacs, Morrison, and Benton. The sixth division shall include the territory embraced on the date last mentioned in the counties of Stearns, Pope, Stevens, Bigstone, Traverse, Grant, Douglas, Todd, Ottertail, Roseau, Wilkin,' Clay, Becker, Waldena, Nor- man, Polk, Red Lake, Marshall, Kittson, Beltrami,*' Clear- 39 Kelliher, in the county of Bel- States by the Chippewa, Treaty of ii-ami, state of Minnesota, which is February 22, 1855 (10 Stat. 1165), within the exterior boundaries of is Indian territory. Harris' v. TJ. the territory ceded to the United S. (G. C. A.), 249 F. 41, certiorari § 66;] MINNESOTA, MISSISSIPPI 303 water, Mahnomen, and Hubbard. Terms of the district court for the first division shall be held at Winona on the third Tues- days in May and November; for the secoid division, at Man- kato on the fourth Tuesdays in April and October ; for the third division, at Saint Paul on the first Tuesdays in June and December; for the fowrth divisi&n, at Minneapolis on the first Tuesdays in April and October; fqr the fifth division, at Du- luth on the second Tuesdays in January and July; and for the sixth division, at I^ergus Falls on the first Tuesday in May and second Tuesday in November. The clerk of the court shall appoint a deputy clerk at each place where the, court is now re- quired to be held at which the clerk shall not himself reside, who shall keep his office and reside at the place appointed for the holding of said court.*" ','§ 90. The State of Mississippi is divided into two judicial districts, to be known as the northern and southern districts of Mississippi. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alcorn, Attala, Chickasaw, Choctaw, Clay, Itawamba, Lee, Lowndes, Monroe, Oktibbeha, Pontotoh, Pren- tiss, Tishomingo, and Winston, which shall constitute the eastern division of said district also the territory embraced on the date last mentioned in the, counties of Benton, Calhoun, Carroll, De Soto, Grenada, Lafayette, Marshall, Montgomery, Panola, Tate, Tippah, Union, Webster, and Yalobusha, which shall con- stitute the western division of said district; also the territory embraced on the date last mentioned in the counties of Bolivar, Coahoma, Leflore, Quitman, Sunflower, Tallahatchie, and Tunica, which shall constitute' the Delta division of said district. The terms of the district court for the eastern division shall be held at Aberdeen on .the first Mondays in April and October ; and for the 'western division, at Oxford on the first Mondays in June and December ; and for the Delta division, at Clarksdale on the fourth Mondays in January and July; Provided, That suitable rooms and accommodations for holding court at Clarksdale are denied, 38 St. at L. 425. Crim. Law, C. C. A., 149 Fed. 305. For the 742(1), J130(2); Indians, 35, power to execute process upon the 38(1). open waters of the Great Lakes, see 40 36 St. at L. 1087, 1115, Comp. The Lindsay, 62 Fed. 851. St.- §1075. See Clement v. TJ. S, 304 ORIGIN All JURISDICTION. [§'66 furnished free of expense to the United States. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Adams, Amite, Copiah, Covington, Franklin, liinds. Holmes, Jefferson, Jeffer- son Davis, Lawrence, Lincoln, Madison, Pike, Rankin, Simpson, Smith,' Scott, Wilkinson, and Yazoo, which shall constitute the Jachson division; also the territory embraced on the date last mentioned in the counties of Claiborne, Issaqiiena, Sharkey, War- rep, and Washington, which shall constitute the western divisio^i; also the territory embraced • on the date last mentioned in the counties of Clarke, Jones, Jasper, Kemper, La;uderdale, Leake, Neshoba, Newton, Noxubee, and Wayne, which shall constitute the eastern division; also the territory embraced on the date last mentioned in the counties of Forrest, Greene, Hancock, Harrison, Jackson, Lamar, Marion, Perry, and Pearl River, which shall constitute the southern' division of said district. Terms of the district court for the Jaekson division shall be held at Jackson on the first Mondays in May and November; for the ivestern divi- sion, at Vicksburg on the first Mondays in January and July; for the eastern division, at Meridian on the second Mondays in March and September;'and for 'the son //(crn di/uision, at THiloxi on the third Mondays in February and August. The clerk of the court for each district shall maintain an office in charge of him- self or a deputy at each place in his district at which court is now required to be held at which he shall not himself reside, which shall be kept open at all times for the transaction of the business of the court.' The marshal for each of said 'districts shall maintain an office in charge of himself or a deputy at each place of holding court in his district." "§91. The State of Missouri is divided into two judicial dis- tricts, to be known as the eastern and western districts of Mis- souri. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the city of Saint Louis and the counties of Audrian, Crawford, Dent, Frank- lin, Gasconade, Iron, Jefferson, Lincoln, Maries, Montgomery, Phelps, Saint, Charles, Saint Francois, Sainte Genevieve, Saint Louis, Warren, and Washington, which shall constitute the east- 41 Jud. Code, 36 St. at L. 1087, ch. 136, 37 St. at L. 118, 59 Comp. 1116, as am 'd Act of May 27, 1912, St. § 1076. §' 66] MISSOURI 305 em division of said district; also the territory embraced ou the date last mentioned in the counties of Adair, Chariton, Clark, Knox, Lewis, Linn, Macon, Marion, Monroe, Pike, Ralls, Ran- dolph, Schuyler, Scotland, and Shelby, which ' shall - constitute the northent division' oi said' district; also the'' territory em-, braced on the date last mentioned in the counties of Bollinger, Butler, Cape Girardeau, Carter, Dunklin, Madison, Mississippi, New Madrid, Pemiscot, Perry, Reynolds, Ripley, Scott, Shan- non, Stoddard, and Waynej which shall constitute the souih- easiern division of said district. Terms of the district court for the eastern division shall be held at Saint Louis on the third Mondays in March and September, and at Rolla on the second Mondays in January and June : Provided, That suitable rooms and accommodations for holding court at Rolla are fur- nished free of expense to the United States; for the northern division at Hannibal on the fourth Monday in May ahd the first Monday in December; and for the southeastern division at Cape Girardeau on the second Mondays in April and October. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten in the counties of Bates, Caldwell, Carroll, Cass, Clay,' Grundy, Henry, Jack- son, Johnson, Lafayette, Livingston, Mercer^ Putnam, Rajj Saint Clair, Saline, and Sullivan, which shall .constitute' the western division; also the territoT'y embraced on the date last mentioned in the counties of Barton, Barry, Jasper, Lawrence, McDonald, Newton, Stone, and Vernon, which shall constitute the southioestern division; also the territory embraced on the date last mentioned in the counties of Andrew, Atchison, Bu- chanan, Clinton, Daviess, Dekalb, Gentry, Holt, Harrison, Noda- wa.y-, Platte, and Woi-th, which shall constitute the Saint Joseph division; also the territory embraced on the, date last mentioned in the counties of Benton, Boone, Callaway, Cooper, Camden, Cole, Hickory, Howard Miller, Moniteau, Morgan, Osage, and Pettis, which shall constitute the central division; also the ter- ritory' embi-aced on the date last mentioned in the counties of Christian, Cedar, Dade, Dallas, Douglas, Greene, Howd,!, Le- elede, Oregon, Ozark, Polk, Pulaski, Taney, Texas, Webster, and Wright, which shall constitute the ^southern division. Terms of the district court for the western division shall be held at Kansas City on the fourth Monday in April and the first Mon- Fed. Prac. Vol. 1—20 306 ORIGIN All JURISDICTION [§ 66 day in November, and at Chillicothe on the fourth Monday in May and the first Monday in December : Providsd, That suit- able rooms and accommodations for holding court at Chillicothe are furnished free of expense to the United States ; for the southwestern division, at Joplin on the second Mondays in June and January; for the Saint Joseph division, at Saint Joseph on the first Monday in March and the third Monday in Septem- ber; for the central division, at Jefferson City on the third Mon- days in March and October ; and for the southern division,, at Springfield on the . first Mondays in April and October., The clerk of the court at Saint Louis^ in the eastern district, shajl maintain an office in charge of himself or a deputy at Saint Louis and Hannibal and at such other places of holding court in said district as may be deemed necessary by the judge, which shall be kept open at all times for the transaction of the busi- ness of th6 court. The clerk of the court for the western dis- trict shall maintain an office in charge of himself or a deputy at Kansas City, at Jefferson City, at Saint Louis, at Chillicothe, at Joplin, and at Springfield, which shall be kept open at all times for the transaction of the business of the court. The marshal for each district shall also maintain an office in charge of himself or a deputy at each place at which court is now held in his district.** - § 92. The State of Montana shall constitute one judicial district, to be known as the district of Alontana. Tcirms of the district court shall be held at Helena on the first Mondays in April and November; at Butte on the first Tuesdays in Feb- ruary and September ; at Great Palls on the first Mondays in May and October; at Missoula on the first Mondays in January aftd June; and at Billings on the first Mondays in IMCarch and August. Causes, civil and criminal, may be transferred by the court or judge thereof from Helena to Butte or from Butte to Helena, or from Helena or Butte to Great Falls, or from Great Palls to Helena or Butte, in said district, when the convenience of the parties or the ends of justice would be promoted by the transfer ; and any interlocutory order may be made by the court or judge thereof in either place. ' ' *^ 42 Jud. Code, 36 St. at L. 1087, 43 25 St. at L. 682, 36 St. afe L. 1117, as am'd Act of Deo. 22, 1911, 1118, Comp. St. §1078'.- 37 St. at L. 51, Comp. St. § 1077. <§ 66] MONTANA 307 ''The provisions -of the act of the Legislature of the State of Montana, approved February seventeenth, nineteen hundred ^and eleven, ceding, to the United States exclusdve jurisdiction over the territory embraced within the Glacier National Park, are hereby accepted, and sole and exclusive jurisdiction is hereby assumed by the United States over such territory, saving, how- ever, to the said State the right to serve civil or criminal process within the limits of the aforesaid park in suits or prosecution for or on account of rights acquired, obligations incurred, or crimes committed in said State but outside of said park, and saving further to the said State the right to tax persons and coi'porations, their franchises and property, on the lands in- cluded in said pai-k. All the laws applicable to places under the sole and exclusive jurisdiction of the United States shall have force and effect in said piark. All fugitives from justice taking refuge in said park shall be subject to the same laws as refugees from justice found in the State of Montana.** ■ "Said park shall constitute a part of tlie United States judicial district of Montana, and the district court of the United States in and for said district shall have jurisdiction of all offenses committed within said boundaries.** "If any offense shall be committed in the Glacier National Park, which offense is not prohibited or the punishment is not specifically provided for by any law of the United States, the offender shall be subject to the same punishment as the laws of the State of Montana in force at the time of the commission of the offense may provide for a like offense in said State; and no subsequent repeal of any such law of the State of Montana shall affect any prosecution for said offense committed within said park.*^ "The United States district court for the district of Mon- tana shall appoint a commissioner, who shall reside in the park, and who shall have jurisdiction to hear and act upon all com- plaints made of any violations of law or of the rules and regu- lations made by the Secretary of the Interior for the govern- ment of the park and for the protection of the animals, birds, 44 38 St', at L. '798^ Comp. St. 46 Ibid., Oomp. St. § 5249o. § 5249a. 46 38 St. at L. 800; Comp. St. § 5249b. SOS ORIGINAL JURISDICTION ; [§ 66 and fish, and, objects of interest therein, and for other purposes .authorized by this Act. ' ' Such commissioner shall have power, upon' sworn inf orma^ tion, to issue process in the name of the United States for the arrest of any person charged with the commission of any mis- demeanor, or charged with a violation of the rules and regula- tions, or with a violation of any -of the provisions of this Act prescribed for the government of said park and for the protec- tion of the animals, birds, and fish in said park, and to try the person so charged, and, if found, guilty, to impose punishment, and to adjudge the forfeiture prescribed. "In, all cases of conviction an appeal shall lie from the judg- njent of, said commissioner to the United States district court for the district of Montana, and the United States district court in said, district shall prescribe the rules of procedure and prac- tice for said commissioner in the trial of: cases and for appieal to said United States district court.*'': .''Any sueh commissioner shall also have power to issue process as hereinbefore provided for the arrest of any person charged with' the commission, within said boundaries, of, any criminal offense not covered by the provisions of section four of this Act, ,to,,hear the evidence introduced, and if he is of opinion that ■probable cause is shown for holding the person so charged for trial,, shall cause such person to be safely conveyed to a secure place of confinement within the jurisdictidn of the United States district court for the district of Montana, and certify a tran- script of the record of his proceeding's and the testimony in the case to said court, which court shall have jurisdiction of the case.:. Provided, That the said commissioner shall grant bail in all eases bailable under the laws of the United States or of said State." '.'•All 'process is.sued by the commissioner shall b,e directed to the irfarshaLof the United States for the district of Montana, but nothing herein contained shall bo so construed as to prevent the arrest by any officer or employee of the Government, or any person employed by the United States in the policing of said reservation, within said bpu,ndaries, without process, o^any per- 47 39 St. at L. 444, Comp. St. 48 Ibid,, Comp. St., § 5249g. .. §5249f. ' ,j. §•66] , I I , , , NiBBB^VSKA 309 son taken in the 'act of violating- the law or this Act, or .the regulations prescribed by said Secretary as aforesaid."*^ >■• "§93. The' State of Nebraska shall . constitute one judicial district to be known as the i district of Nebraska. Said district is divided into, eight divisions. The territory embraced on the first day of July, nineteen hundred and ten,! in the counties of Douglas, -Sarpy,! Washiii^on, Dodge, Colfax, iPlatte, Nance, Boone, "Wheeler, Burt, Thurston, iDakotai, Cuming, Cedar, and Dixon, shall eonstitutei the Omo/ifticimifonyi -the- territory em- braced 'on the date last mentioned Jiu' the counties ofiMadison, Antelope, Knox, Pierce, Stanton, Wayne, Holt, Boyd, Rock, Brown, and Keya Paha, shall .constitute the' Norfolk division; the territorj^ embraced on the date last mentioned Jti the coun- ties of Cherry, Sheridan, Dawes, Box Butte, and Sioux, shall constitute the Ghadt-on division;'^ the territorj- embraced 'on the date last mentioned in the counties of Hall, Merrick, Howard, Greeley, Garfield, Valley, Sherman, i Buffalo, Custer, Loup, Blaine, Thomas, Hooker, and Grant, sliall constitute the -Or and Island division; the territory embraced on the date last-men- tioned in' the counties of Lincoln,! Dawson, Logan, MePherson, 'Keith, iDeuel,' Garden, Morrill,' Cheyenne, Kimball, Banner, and ! Scott's Bluff, shall constitute the North Platte division; the ter- ritory embraced on the 'date last mentioned in the' counties' of Cass, Otoe, Johnson, Nemaha, Pawnee, 'Richardson, Gage, Lan- caster, Saunders, Butler, Seward, Saline, Jefferson, Thayer, Fill- more, York, Polk, and Hamilton, shall eonstitiite the. £mi'co7.» divisimi; the territory embraeed on the 'date lavst' mentioned in the counties' of Clay, Nuckolls, Websteii, Adams, Koarnoy, Frank- lin, Harlan, and Phelps, shalb constitute the- Hastings division; and the territory, embraced^'onithe Tdate last mentioned .in . the counties of Gosper, Furnas, Red Willow, Froiatier, Hayes, Hitch- cock, i Dundy, Chase,' and'^Peaihins,! shall constitute '-the Mcj(Jook ■division. Terms of the! district oo^rt tor the' Omaha> division shall be held at Omaha oil the- first Monday in April aaid the fourth' 'Monday in September; for the iVor/o'Z/c.dn.'w? oh, 'at Nor- folk on the third Monday - iAi 'Septernber-vfor: tle.'Cfac&'on ■(?«.'?- ^if?«., atfphj^ron ,Q,i),,tl>^fs^gond Monday in Septenjlier, ;, fpr.^the ■ffmnd Island division, at Grand Island on the second Monday in f'l"!' ;. i^ J.]...,.' .: ■ • '•■ '■•r'. .III-..'! "Mi .,! K; I. :>; :i,.Ii: 49 Ibid., Comp. St. § 5249h. 310 ORIGINAL JURISDICTION [§ 66 January ; for the North Platte division, at North Platte on the second Monday in June ; for the Lincoln division, at Lincoln on the second Monday in May and the first Monday in October; for the Hastings division, at Hastings on the second Monday in March; and for the McCook division at McCook on the first Monday in March: Provided, That where provision is made herein for holding court at places where there are no Federal buildings, a suitable room in which to hold court, together with light and heat, shall be provided by the city or county where such court is held, without any expense to the United States. The clerk of the court shall appoint a deputy for each division of the district in which he does not himself reside, who shall keep his office and reside at the place of holding court in the di- vision for which he is appointed.*" ' ' § 94. The State of Nevada shall constitute one judicial dis- trict, to be known as the district of Nevada. Terms of the dis- trict court shall be held at Carson City on the first Mondays in February, May, and October.*^ " § 95. The State of New Hampshire shall constitute one judi- cial district, to be known as the district of New Hampshire. Terms of the district court shall be held at Portsmouth on the last Tuesday in October; at Concord on the last Tuesday in April and the second Tuesday in December; and at Littleton on the third Tuesday in September.*^ " § 96. The State of New Jersey shall constitute one judicial district, to be known as the district of New Jersey. Terms of the District Court shall be held at Newark on the first Tuesday in April and the first Tuesday in November, and at Trenton on the third Tuesday in January and the second Tuesday in September of each year. The clerk of the court for the district of New Jersey shall maintain an ofSce in charge of himself or a deputy, at Newark and at Trenton, each of which offices shall be kept open at all times for the transaction of the business of the court ; and the marshal shall also maintain an office, in charge of himself or a deputy, at Newark and at Trenton, each of which offices shall be kept open at all times for the transaction of the 50 36 St. at L. 1118, Comp. St. 52 Jud. Code, 36 St. at L. 1087, 1079. 1119, as am 'd Act of Aug. 23, 1912, 51 36 Stat, at L. 1118, Comp. St. 37 St. at L. 357, Comp. St. § 1081. § 1080. -§ 66] NEW JERSEY, NEW MEXICO, NEW YORK 311 business of the court. " ^* By an agreement made between the States of New Jersey and New York on September 6, 1833, of which Congress i approved by the Act of June 28, 1834,^* the boundary line between the two States was fixed "from a point in the middle of Hudson river, opposite the point on the western bhore thereof, in the forty-one degree of north latitude, as here- tofore ascertained and marked, to the main sea, shall be the middle of the said river, of the Bay of New York, of the waters between Staten Island and New Jersey, and of Raritan Bay, to the main sea. ' ' The boundary of the respective jurisdictions of the Federal courts sitting in New York and New Jersey is the same as that fixed in this agreement.®* The District Court of the United States for the District of New Jersey when sitting in admiralty has exclusive jurisdiction of a vessel fastened to the New Jersey shore, although below the low water liiie.*^ It was so held when a tug was afloat in the Kill Von Kull, between Staten Island and New Jersey, fastened at the end of a dock at Bayonne, about three hundred feet below low water mark and about half a mile from the entrance of the Kill Von Kull into the Bay of New York ; ^"^ and when a vessel was lying afloat at anchor on the Hudson River, between Jersey City and Manhattan Island, on the westerly side of the middle of the Hudson River, several hundred feet east of the Morris Street Pier of Jersey City ; and when made fast to a wharf in the Morris Canal basin in Jersey City.** The State of New Mexico constitutes one district, with one District Judge. It is attached to the Eighth Circuit. The regu- lar terms of the (Hstrict court are held at the capital of that State, Santa Fe, on the first Mondays of April and October in each year.** " § 97. The State of New York is divided into four judicial dis- tricts, to be known as the northern, eastern, southern, and west- 68 36 St. at L. 1087, 1119, am'd Kenaedy, 25 Fed. 569; The Norma, Act of Feb 'y 14, 1913, 37 St. at L. 32 Fed. 411. 265, 37 St. at L. 674, Comp. St. 56 ibid. § 1082. ^ 57 The Sarah E. Kennedy, 25 Fed. 54 4 St. at L. 708. 569. 56 Se Devoe Mfg. Co., 108 U. S. 58 The Norma, 32 Fed. 411. 401, 2 Sup. Ct. 894, 27 L. ed. 764; 69 36 St. at L. 557, 565, §13, s. c, 14 Fed. 183; The Sarah E. Comp. St. §1083. 312 ! 'ORIGINAL JURISDICTION [§66' em districts of New York. -The north'ern- district shall include the 'territory embraced on the first day of July, nineteen huh- diied and ten, in the counties of' Albany, Broome, Cayuga, Che- nango,' Clinton, Cortland, Delaware, Essex, Franklin, Fulton, Hamilton, Herkimer, Jefferson, Lewis, Madison, Montgomery, Oneida, Onondaga,' Oswego, Otsego, Rensselaer, Saint Lawrence, Saratoga,' Schenectady, Schoharie,' Tioga, Tompkins, Warren, and Washington, with the waters thereof; Terms- of the district court for said district shall Be held at Albany on the second Tuesday in February ; at Utica on the first Tuesday in December ; at Binghamton on the second Tuesday in June ; at Auburn on the' first Tuesday in October; at Syracuse on 'the first Tuesday in Apiil ; and in the discretion of the judge of the court, one term annually at such time and place within the counties of Rens- selaer,' Saratoga, Onondaga, Saint Lawrence; Clinton, Jefferson, Oswego, and Franklin, as he may from time to time appoint. Such appointment shall be made by notice of at least twenty days published in a newspaper published at the place where said court is to be held. The eastern disirict shall include the territory em- braced on: the first day of- July, nineteen' hundred arid ten, in the counties of Richmond, Kings, 'Queens, Nassau, and Suffolk, with the waters thereof. ' Terms of the district court for said district shall be held at Brooklyn on the first Wednesday in every month. The southetii district shall include the tex'ritory embraced on the first day of July, nineteen hundred and ten, in' the counties of Columbia, Dutchess, Greene, New York, Orange, Putnam, Rock- land, Sullivan, Ulster, and Westchester, with the waters thereof; Terms of the district court 'for said district shallbe held at New York iCity on the first Tuesday in each ' month, i The district courts of the southern and eastern districts shall have concurrent jurisdiction over the waters .within the counties of New York, Kingsj, Queens, Nassau,' Richmond, and Suffolk, and over all seizures made and all matters done in such waters ; all processes or orders' issued within either of said courts or by any judge thereof shall run and be executed in any part of said waters." ^^ The District Court of the Southern District of New York, iii admiralty, has no jurisdiction on the westerly side of the mi,d41e 60 .'36 St. at L. 1087, 1119; Coriip. St. § 1084. Aft of January 21, , J920. §■66] NEW YORK,, NORTH CAROLINA 313 of the Hiidson River .^^ i"The western-district whalii include the territorj' embraced ion the first da^' of July, nineteen hundred and ten, in the counties of Allegany,' Cattaraugus, Chautauqua, Chemung, Brie, Genesee, Uivingst6il,'iiMonroe,NiagaTa',' Ontario, OrleanSj ' Schuyler, i Seneca, Steuben; 'Wayney ;'Wyomin,g! and Yates, with the waters thereof. Terms of ithe district court for said district shall be held at Elmira on thei second Tuesday in January ; 1 at Buffalo on the. second Tuesdays in! March and No- vember; at Rochester on^the -second Tuesday iniMayj.at James- town on the. second' Tuesday in. July,; at Lockport ort- the sec- ,CMid. Tuesday in I October ; and at .Canandaigua on the second Tuesday in September. The regular 'sessions of 'the district court for the western district for . the heading, of motions, and' for proceedings in- bankruptcy and the- trial of , causes in admi- ralty -shall be held at Buffalo at least two weeks in each month of the yea.r, except .August, unless the business is sooner dis- posed of. The times for holding the same and such other spe- cial sessions as the court shall/deem necessary shall be fixed by rules of the court.-; All process in admiralty causes and prb(5ifeed^ ings shall be made returnable at iRuffalo. The judge of i anj^ dis- trict in the State of New York may perform the duties of !the judge of any other district in such State iupoii the request of any resident judge entered in. the minutes of. his eoiu't jand- in su'eh cases such judge -shall have the same powers as are vested in the resident judge. ^* ' ''§ 98. The State of North Carolina is. divided; into -two dis- tricts,: to be known as the.eas^erw-ahd western districts iof North Carolina. The eastern district shall include the territory em- bmced on the:first day of July, nineteen hundred andit«n, in the counties of Beaufort, Bertie, Bladen, Brunswick, Camdejii Chat- ham, Cumberland, Currituck, Craven; Gblumbus, Chowan,. Cart- eret, Dare, Duplin, Durham^ Edgecombe, Franklin, Gates, Gran- ville, Greene, Halifax, Harnett^ Heritford, Hyde, Johnston, Jones, Lenoir, Lee, Martin, Moore, Nash, New ; Hanover, yNorthampton, Onslow, Pamlico, PasquotanJi, Pender; Perquimans, Person, Pitt, i-f!., '.. / r,i'. ':',' .- '' '. !,,[ . - ,;,, -1 i(f>"'*:.l!i ,'■/ 61 The Noma,, 32 Fed. 411. See, send, 219, Fed. 761, inff^a,, § 52q; alspi.Se Devoe ,M£g. Co., 108 tJ. S. an'd ..?ypro' .lijider Ne-w Jersey. 4'0t,''2 Sup. Ct' Sii,' 5.Y Ij. ed. 764;' '■ ''62 r.6" St.'at' L. "lllS,' Cbmp.^ ^t. is.'x., 14 Fed; 183- The Sarah 'E. -'-''S 1084; 'Art of .Taiv. 2,' 1920. Kennedy, -25' Fed. 569; V. S. Town- . :,' ,(! i./i -li |i 314 ORIGINAL JURISDICTION [§ 66 Robeson, Richmond, Sampson, Scotland, Tyrrell, Vance, Wake, Warren, Washington, Wayne, and Wilson. Terms of the district court for the eastern district shall be held at Laurinburg on the last Mondays in March and September; at Wilson on the first Mondays in April and October; at Elizabeth City on the second Mondays in April and October ; at Wasliington on the third Mon- days in April and October; at Newbern on the fourth Mondays in April and October ; at Wilmington jon the second Monday after the fourth Mondays in April and October ; and at Raleigh on the fourth Monday after the fourth Mondays in April and October : Provided, That the city of Washington, the city of Laurinburg, and the city of Wilson shall each provide and furnish at its own expense a suitable and convenient place for holding the district court at Washington, at Laurinburg, and at Wilson until a court- house shall be constructed by the United States. The clerk of the court for the eastern district shall maintain an office in charge of himself for a deputy at Raleigh, at Wilmington, at Newbern, at Elizabeth City, at Washington, at Laurinburg, and at Wilson, which shall be kept open at all times for the transac- tion of the business of the court. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alamance, Alexander, Ashe, Alleghany, Anson, Buncombe, Burke, Caswell, Cabarrus, Catawba, Cleveland, Caldwell, Clay, Cherokee, Davidson, Davie, Forsyth, Guilford, Gaston, Graham, Henderson, Haywood, Iredell, Jackson, Lincoln, Montgomery, Mecklenburg, Mitchell, McDowell, Madison, Macon, Orange, Polk, Randolph, Rockingham, Rowan, Rutherford, Stanly, Stokes, Surry, Swain, Transylvania, Union, Wilkes, Watauga, Yadkin, and Yancey. Terms of the district court for the west- ern district shall be held in Greensboro on the first Mondays in June and December ; at Statesville on the third Mondays in April and October; at Salisbury on the fourth Mondays in April and October ; at Asheville on the first Mondays in May and Novem- ber ; at Charlotte on the first Mondays in April and October ; and at Wilkesboro on the fourth Mondays in May and November. The clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Greensboro, at Ashe- ville, at Statesville, and at Wilkesboro, which shall be kept open at all times for the transaction of the business of the court. §66] NORTH CAROLINA, NORTH DAKOTA 315 Two additional terms of the district court for the trial of civil cases, for the eastern districi of North Carolina ^hall be held at Raleigh, North Carolinaj on the first Monday in March and the first Monday in September. ^^ "§99. The State of North Dakota shall constitute one judicial district, to be kiiown as the district of North Dakota. The ter- ritory embraced on the first day of January, nineteen hundred and sixteen, in the counties of Burleigh, Logari, Mcintosh, Em- mons, Kidder, McLean, Adams, Bowman, Dunn, Hettinger, Mor- ton, Stark, Golden Valley, Slope, Sioux, Oliver, Mercer, Billings, and McKenzie shall constitute the southwestern division of said district ; and the territory embraced on the date last mentioned in the counties of Cass, Richland, Barnes, Sargent, Ransom, and Steele shall constitute the southeastern division; and the terri- tory embraced on the date last mentioned in the counties of Grand Forks, Traill, "Walsh, Pembina, Cavalier, and Nelson shall constitute the northeastern; and the territory embraced on the date last mentioned in the counties of Ramsey, Benson, Towner, Rolette, Bottineau, Pierce and McHenry shall constitute the northwestern division; and the territory embraced on the date last mentioned in the counties of Ward, Williams, Divide, Mount- rail,, Burke, and Renville shall constitute the western division ; and the territory embraced on the date last mentioned in the counties of Griggs, Foster, Eddy, Wells, Sheridan, Stutsman, Lamoure, and Dickey shall constitute the central division. The several Indian reservations and parts thereof within said State shall constitute a part of the several divisions within which they are respectively situated. Terms of the district court for the southwestern division shall be held at Bismarck on the first Tuesday in March ; for the southeastern division, at Fargo on the third Tuesday in May ; for the northeastern division, at Grand Forks, on the second Tuesday in November; for the northwestern division, at Devils Lake on the first Tuesday in July; for the western division, at Minot on the second Tuesday in October ; and for the central division, at Jamestown on the second Tuesday in April. The clerk of the court shall maintain an office in charge 63 36 St. at L. 1120, 38 St. at at L. 56, Comp^ St. § 1085a. Act L. 728, Comp. St. § 1085. ( Jud. of March 17, 1320. Code § 98, as amended) 39 St. L. 316 OEIGINAL JUEISDICTION [§'66 of himself or a deputy' at each place at which court is held in his district.?* This part 'of the statute becomes operative in so far- as. any. particular reservation is concerned upon the extin- guishment of the Indian title.®^ A pi-oseeutioii for. felorious homi- cide alleged to have been committed on an Indian reservation cannot be maintained in this court where the indictment does not aiUege that either the defendant or the person killed is an Indian. ' ' ^® "§100. The State of O/i-MJ is divided into two judicial dis- tricts, to he known as the rwrthe.rh a.nd soidhern districts of Ohio. iThe northern, district shall include the territory embraced on the first day of July, nineiteen hundred and ten, in the coun- ties of Ashland, Ashtabula, Cuyahoga, Carroll, Columbiana, Crawford, Geauga; Holmes, Lake, Lorain, Medina, Mahoning; Portage, iRichland, Summit, Stark, Tuscarawas, Trumbull, and: Wayne which .shall constitute the easterii; division ; also the terri- tory embraced; on the date last mentioned' in the counties of Au- glaize, Allen, Defiance, Erie, Fulton, Henry, Haneock, Hardin, Huron) .i Lucas, Mercer, Marion, Ottawa, Paulding, Putnam, Senega,' Sandusky, Van Wert^ Williams, Wood, and Wyandot, which shall constitute the'western division of said district. Terms of the district court' for the^ eastern ddvision' shall be held at Cleveland on the first Tuesdays' in February, April, and October, and at Ycmngstown on the first Tuesday after the first Monday in March; and for the western division, ab Toledo on the last Tues-. days -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 also at the: term then being, held or authorized to. be held at Youngstown. Crimes and offenses committed in the pastern divisiqn shall be cognizable at the terms held at .Cleve- land or at Youngstown, as the cojirt may direct,,. Any suit) brought in the eastern division may, in the discretion of the court, be, triec1,3,t the term held at Youngstown. ^ The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties , of Adams,^ Brown, Butler, Champaign, Clark, Clermont, Clinton, I)arke, 64 .",6 St. at L. 11^1, 37 St. at' L. 65 U. S. v. La -Plant, 200 Fofl. 92. 60, 39 St. at L. 386, Coriip. St. '66 Ibid, 5in.S6, as ameiided. §66] OHIO, OKLAHOMA 317 Grteene, Hamilton, Highland,' Lawrence, Miami, Mbntgomeryj Preble, Scioto, Shelby,' and Warren, which shall constitute the western division; also the teiritory embraced on the date" last mentioned in the counties of Athens,' Belmont, Coshocton, Del- aware, Fairfield, Payette, Franklin, Gallia, Gueriisey, Harrison, Hocking, Jackson, Jefferson, Knox, Licking, Logan, Madison, Meigs, Monroe, Morgan, Mbrrow, Muskingum, Noble, 'Perry,' PicfeaWay, Pike, Ross, Union, Vinton, and Washington, which shall constitute the eastern division oi said district. Terms of the district court for the ivestern division shall be held at Cin- einhati on the first' Tuesdays 'in February, April, and October; and for the eastern division at Columbus on the first Tuesdays in June and December,' and at Steubenville on the first Tuesdays of March and September. Grand arid petit jurors summoned' for service at a term' of court being held at Columbus may, if in the opinion of the court the public convenience so risquires, be' directed to serve also at the termbeiug held or 'authorizfed td'bC held at SteUbeflville. Crimes and offenses committed in the east- ' em division shall be cognizable at the terms held at ColUmbus, Or' at Steubenville, 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 Steubenville: Provided, That suitable rooms and' accommodations for holding 6ourt at Steubenville shall be' furnished free of expense to the Government until the comple- tion of the Federal building: "And provided fuitJier, That terms of the district court for the sottthern districts shall be held at' Dayton on the first Mondays in May and'Novembef. Prosecu- tions for crimes and offenses committed in any part Of said dis- trict shall also be cognizable at the terms held at Dayton. AH suits which may be brought within the southern district, or either division thereof, may be instituted, tHed, and determined 'kt' the terms held at Dayton.'"*'' '■ '■-' ■■■.-.-[. "§ 101. 'The State of Oklahoma is divided into two judicial districts, to be known as the eastern and the western districts of Oklahoma. The eastern district shall inclijde the territory em- braced On the first day of July, nineteen hundred land' ten, in the counties of Adair, Atoka, Bryan, Craig, Cherbkee, Creek, Choc- taw, Coal, Carter, Delaware, Garvin, Grady, Haskell, Hughes, 67.36 St. at L. 1.121, 38 St. at L. 1 ] 87, Comp. St. § 1087, as ameiidcd. 318 ORIGINAL JURISMfiqjION [§'66 Johnston, Jefferson, Latimer, LeFlore, Love, MeClaiii, Mayes^' Muskogee, Mcintosh, McCurtain, Murray, Marshall, Nowata, Ottawa, Okmulgee, Ofuskee, Pittsburg, Pushmataha, Pontotoc Rogers, Stephens, Sequoyah, Seminole, Tulsa, Washington; and "Wagoner. Terms of the district court for the eastern ddstrie-t. 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 Monday in October ; and at Chickasha on the first Monday in November in each year, ' ' and at Hugo, on the second Monday in May.^* "Provided, That suitable quarters fot holding said court shall be furnished without expense to the government. The western district shall include the territory em- braced on the first day of July, nineteen hundred and ten, in /the ^ counties of Alfalfa, Beaver, Beckham, Blaine, Caddo, Canadian, Cimarron, Cleveland, Comanche, Custer, Dewey, Ellis, Garfield, Grant, Greer, Harmon, Harper, Jackson, Kay, Kingfisher; Kiowa, Lincoln, Logan, Majors, Noble, Oklahoma, Osage, Paw-' nee, Payne, Pottawatomie, 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 Mon- day in September; 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 Tues- day in April; and at Medford on the first Tuesday in October. The marshal and the clerk for said district shall each appoint in the manner provided by law, at least one deputy at Pendle- 68 34 St. at L. 275, 36 St. at L. 69 Ibiil. 1122, 40 St. at L. 1184; Comp. St. U 1088, 1088a. § 66] OREGON', PENNSYLVANIA 319 ton and one at Medford^'who shall reside and maintain an office at each of said places." ""> The State courts of Oregon have jurisdiction in civil and criminal cases upon the Columbia River and Snake River,- concurrently with States and Territories of which those rivers f orm^ a boundary in common with this State. ' ' "^^ The District Court oi Oregon has the same territorial jurisdic^ tion.''^ This concurrent jurisdiction does not extend to perma- nent structures attached to the river-bed within the boundary of the other Statej'* It has been held that the district court of Washington has concurrent jurisdiction over floating structures used in connection with fishnets in the river, although anchored by means of weights,''* and that the district court of Oregon has jurisdiction in admiralty over a vessel moored at a wharf on the Washington shore.''^ ''The State of Penitisylvania is' divided into three judicial districts, to be known as the eastern,, middle, and western districts of Pennsylvania. The eastern district shall include the territory embraced On the first day of July, nineteen hundred and ten, in the counties of Berks, Bucks, Chester, Delaware, Lancaster, Lehigh, Montgomery, Northampton, Philadelphia, and Schuyl- kill. 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 begins. The middle district shall include the territory embraced on the first day of July^ niiieteen hundred and ten, in the counties of Adams, Bradford, Cameron, Carbon, Center, Clinton, Columbia, Cumberland, Dau- phin, Franklin, Pulton, Huntingdon, Juniata, Lackawanna, Leb- anon, Luzerne, Lycoming, Miflfiin, Monroe, Montour, Northum- berland, Perry, Pike, Potter, Snyder, Sullivan, Susquehanna, Tioga, Union, Wayne, Wyoming, and York. Terms of the dis- trict court shall be held at Scranton on the second Monday in March and the third Monday in October; at Harrisburg on the 70 36 St. at^L. 1087, 1122; Comp. Ass'n v. McGowan, 172 Fed. 991. St. § 1089. 73 Columbia Eiver Packers ' Ass''n 71 Organic Act of Feb'y 14, 1859, v. MoGowan, 172 Fed. 991. ch. 33, 11 St. at L. 383.' 74 Ibid. 72 Nielsen v. Oregon, 212 IT. S. 75 The Annie M. Smull, 2 Sawyer 315, 316, 29 Sup. Ot. 383, 53 L. 226, Fed. Cas. No. 423. See, also, ed. 528; Columbia Eiver Packers' State v. Mullen, S5 Iowa 199. 320 ORIGINAL JURISDICTION [§ 66 first Mondays in May and December; at Sunbury on the i second Monday in January; and at "Williaffisport on the first Monday in June. The elerk of, the court for the middle district shall maintain an !office, in charge of himself or a deputy, at Harris- burg; the 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 they are removed to another place for trial. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Allegheny, Armstrong, Beaver, Bedford, Blair, Butler, Cambria, Clarion, Clearfield, Craiwford, Elk-, Erie, Fayette, Forest, Greene, Indiana, Jefferson, Lawrence, MeKean, Mercer,, Somerset, Ven- ango, Warren, Washington, and Westmm?eland. Terms of the district court shall be held at Pittsburgh on the (first Monday of May and the second Monday of November, and terms of the court shall. be held at Erie on the thirdMonday of March and the, third Monday of September. The clerk and marshal of said district shall have their principal offices at Pittsburgh, and shall maintain, by themselves or by their deputies,; offices at Erie. "The clerk shall place all cases in which the defendants reside in the counties of said district nearest Erie upon the trial list for trial at Erie, where the same shall be tried, unless the parties thereto stipulate that the same may be tried at Pittsburgh.'^ In Porto Rico there is one district. Eegular 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.''"'' 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 terras of the District Court of Porto iRicp.T^ , "The judicial ipqwer ,shalL be vested; in the courts, and tri- bunals of Porto Rico now established and in operation under and by virtue of existing laws. The jurisdiction of said courts 76 36 St. at L. 1123, 37 St. at L. , 77 31 :St. at L. 84, 85, Comp.' St. 730, 38 St. at L. 385, 38 St. at L. §S 3784, 3785. 713, 38 St. at L. 283, Coaip.tSt. 78 Ani. Bailuoad Co. v., Castro,; 204 S 1090. Comp. St. § 968a (c. 20, U. S. 45.3, 51 L. ed. 564. SI) as amended; ' , ,, , §66] f-OBfd RICO 321 and the form of procedure in them, and the various officers and attaches thereof, shall also continue to be as now provided until otherwise provided by law : Provided^ however, That the chief justice and associate justices of the supreme court shall be ap- pointed by the President, by and- with the advice and consent of the Senate of the United States, and the Legislature of Porto Rico shall have authority, froin time to time as it may see fit, not inconsistent with this Act, to organize, modify, or rear- range the courts and their jurisdiction and procedure, except the District Court of the United States for Porto Rico. "Porto Rico shall constitute a judicial district to be called ' the district of Porto Rico. ' The President, ' by and with the advice and consent of the Senate, shall appoint one district judge, who shall serve for a term of four years and until his successor is appointed and qualified and whose salary shall be $5,000 per annum. There shall be appointed in like manner a district attorney, whose salary shall be $4,000 'per annum, and a marshal for' said district, whose salary shall- be $3,500 per annum, each for a term of four years unless sooner removed by the President. The district court for said district shall be called 'the District Court of the United States for Porto Rico,' and shall have power to appoint all necessary officials and as- sistants, including' the clerk, interpreter, and such ' commis- sioners as may be necessary, who shall be entitled to the same fees and have like powers and duties as are exercised and per- formed by ' United States commissioners. Such district court shall have jurisdiction of all cases ' cognizable in the district courts of the United States, and shall proceed in the same man- ner. In addition said district court shall have jurisdiction for the naturalization of aliens and Porto RicanS, tod for this pur- pose residence in Porto Rico shall be counted in the same man- ner as residence elsewhere in the United States. Said district court shall have jurisdiction of all controversies where all of the parties on either side of the controversy are citizens or sub- jects of a foreign State or States, or citizens of a State, Ter- ritory, or District of the United States not domiciled in Porto Rico, wherein the matter in dispute exceeds, exclusive of in- terest or cost, the sum or value of $3;000, and of all contro- versies in which there. is a separable controversy involving such jurisdictional amount and in which' all of the parties on either Fed. Prae. Vol, 1—21 322 ORIGINAL JURISDICTION [§ 66 side of such separable controversy are citizens or subjects of the character aforesaid: Provided, That nothing in this Act shall be deemed to impair the jurisdiction of the District Court of the United States for Porto Rico to hear and determine all con- troversies pending in said court at the date of the approval of this Act. Upon the taking effect of this Act and the salaries of the judge and officials of the District Court of the United States for Porto Rico, together with the court expenses, shall be paid from the United States revenues in the same manner as in other United States district courts. In case of vacancy or of the death, absence, or other legal disability on the part of the judge of the said District Court of the United States for Porto Rico, the President of the United States is authorized to designate one of the judges of the Supreme Court of Porto Rico to discharge the duties of judge of said court until such absence or disability shall be removed, and thereupon such judge so designated for said service shall be fully authorized and em- powered to perform the duties of said office during such ab- sence or disability of such regular judge, and to sign all neces- sary papers and records as the acting judge of said court with- out extra compensation. "The laws of the United States relating to appeals, writs of error and certiorari, removal of causes, and other matters or proceedings as between the courts of the United States and the courts of the several States shall govern such matters and pi-oceedings as between the district court of the United States and the courts of Porto Rico. Regular terms of said United States district court shall be held in San Juan, commencing on the first Monday in May and November of each year, and also at PonCe on the second Monday in February of each year, and special terms may be held at Mayaguez at such stated times as said judge may deem expedient. All pleadings and proceed- ings in said court shall be conducted in the English language. The said district court shall be attached to and included in the first circuit of the Unilied States, with the right of appeal and review by said circuit court of appeals in all cases where the same would lie from any district court to a circuit court of appeals of the United States, and with the right of appeal and review directly by the Supreme Court of the United States in all, cases where a direct appeal would be from such district courts. § 66] RHODE ISLAND, SOUTH CAROLINA 328 "Writs of error and appeals from the final judgments and decrees of the Supreme Court of Porto Rico may be taken and prosecuted to the Circuit Court of Appeals for the First Cir- cuit and to the Supreme Court of the United States; as How provided by law. " '''' • ■ "The State of Rhode Islcmd shall constitute one judicial dis- trict, to be known as the district of Bhode Island. Terms of the district court shall be held at Providence on the fourth Tues- day in May and the third Tuesday in November. " *" The State of Soitih' Carolina, is divided into two districts, to be known as the eastern and western districts of S6uth Carolina. The western, district includes the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Abbeville, Anderson, Cherokee, Chester, Edgefield, Fairfield, Greenville, Greenwood, Lancaster, Laurens, Newberry, Oconee, Pickens, Saluda, Spartanburg, Union, and York. Terms of the District court for the Western district are held at Green- ville on the third Tuesdays in ^April and October, at Rock Hill, the second Tuesday in March and September ; at ' Greenwood, the first Tuesday in February and November; and at Anderson, the fourth Tuesday in May and November. ' ' The eastern district includes the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Aiken,' Bamberg, Barnwell, Beaufort, Berkeley, Calhoun; Charleston, Chesterfield, Clarendon, Colleton, Darlington, DiUon, Dorchester; Florence, Georgetown, Hampton, Horry, Kershaw, Lee, Lexington, Marion. Marlboro, Orangeburg, Richland, Sumter, and Williamsburg. Terms of the District court for the eastern district shall be held at Charleston on the first Tuesdays in June and Decem- ber; at Columbia on the third Tuesday in January and first Tuesday in November, the latter term to be solely for the trial of civil eases; at Florence on first Tuesday in March; and at Aiken, on the first Tuesdays in April and October."*^ The office of the clerks of the district court for the. Western dis- 79 39 St. at L. 965, Comp. St. 81 Jud. Code, 36 St. at L. 1087, !> 3803q. 1123, as am'd Act of Feb'y 5, 1912, 80 Jud. Code, 36 St. at L. 1087, 37 St. at L. 60,' Comp. St. §1092. 1123, as am 'd Act of Feb 'y 1, 1912. See § 70, infra, 37 St. at L. 59, Comp. St. § 1090, 324 ORIGINAL JURISDICTION [§ 66 net shall be held at Greenville, and the office of the clerk of the listrict court for the eastern district shall be at Charleston.*^ "There shall be a district judge for the eastern district of South Carolina and a i district judge for the western district of South Carolina, who shall be appointed as district judges are ap- pointed in other judicial districts of the United States: Pro- vided, That the President, previous to appointing said judge, shall make public all indorsements of the applicants for said position. The present district judge, who is a resident of the eastern district of South Carolina,; is hereby assigned to said eastern district as the district judge thereof. "All causes of a civil nature and motions therein submitted and all causes and proceedings of a civil natui e, . including pro- ceedings in bankruptcy, in the western district of South Carolina in which the evidence has been taken in whole or in paa^t before the present district judge for the eastern and western districts of South Carolina, or taken in whole or in part and submitted to and passed upon by the said district judge, shall be retained by said judge and proceeded with and disposed of by said judge, who may for that purpose continue to exercise jurisdiction in the said western district." ^\ "§ 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, Han- san, Hutchinson, Kingsbury, Lake, Lincoln, McCook, Miner, Minnehaha, Moody, Sonborn, Turner, Union, and Yankton, 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, Coding- ton, Corson, Day, Deuel, Edmunds, Grant, Hamlin, MePherson, Marshall, Roberts, Schnasse, Spink, and Walworth, and in the Sisseton and Wahpe.ton Indian reservation, and in that portion of the Standing Rock Indian reservation lying in South Dakota, shall constitute the northern division; the territory embraced on the date last-mentioned in the counties of Armstrong, Buffalo, 82 88 St. at L. 961, as amended, 88 38 St. at L. 961, Comp. St. 39 St. at L. 721, Comp. St. § 1092a. §§ 968e, 968f, as amended. § 66] SOUTH DAKOTA, TENNESSEE .325 Dewey, Faulk, Hand, Hug'hes, Hyde, Jeraul, Lyman, Potter, Stanley, and Sully, and in the Cheyenne River, Lower Brule, and Crow Creek Indian reservations, shall constitute the central division; and the territory embraced on the date last mentioned in the counties of Bennett, Butte, Custer, Fall River, Harding, Lawrence, Meacie, Mellette, Pennington, Perkins, Shannon, Todd, Tripp, "Washabaugh, and Washington, and in the Rosebud and Pine Ridge Indian reservations, shall constitute the western di- vision. Terms of the district court for the soutJiern division shall be held at Sioux Falls 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 centred division, at Pierre on the second Tuesday in June and-fthe first Tuesday in October ;, and for the western d.ivi- sion, 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 DeadVood, which shall be kept open for the transaction of the business of the court. ' ' ** ^ "The District court of the United States for the distric,t of South Dakota shall have jtirisdiction to hear, try, and deter- mine all actions 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 weapon, committed within the limits of any Indian reservation in the State of South Dakota. ' ' ^ The District court of the United States for South Dakota is the same court, whether held in one division or another ; and where a recogni- zance 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- ties upon his recognizance.*® , " § 107. The State of Tennessee i;s divided into three districts, to be known as the eastern, middle and western districts of Ten- nessee. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties :of Bledsoe, Bradley, Hamilton, James, McMinn, Marion, Meigs, 84 36 St. at L. 1087, 1123. 86 HoUister v. U, S., C. C. A., 145 85 Ibia., Comp. St. § 1093. Fed. 773, 326 OEIGINAL JURISDICTION [§ 66 Polk, Rhea, and Sequatchie, which shall constitute the southern division of said district; also the territory embraced oh the date last mentioned in the counties of Anderson, Blount, Campbell, Claiborne, Grainger, Jefferson, Knox, Loudon, Monroe, Morgan, Roans, Sevier, Scott, and Union, which shall constitute the north- ern division of said district ; also the territory embraced on the date la-st mentioned in' the counties of Carter, Cocke, Greene, Hamblen, Hancock, Hawkins, Johnson, SulliVah, Unicoi, and Washington, which shall constitute the northeastern division of said district. Terms of the district court for the southern divi- sion of said district shall be held at Chattanooga 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 iriTDecember ; and for the iiorthedstern division, at Greenieville on the first Monday in March and the third Monday in September. The yiiiddle district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Bed- ford, Cannon, Cheartam, Coffee, Davidson, Dickson, Franklin, Giles, Grundy, Hickman, Humphreys, Houston, Lawrence, Lewis, Lincoln, Marshall, Maury, Montgoknery, Moote, Robert- son, 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, Jackson, Macon, Overton, Pickett, Putnam, Smith, Van Buren, and White, which shall constitute tho northeastern division of, said district. Terms of the district court for the Nashville division of said district shall be held at Nashville 6n the second Monday in March and the fourth Monday in Septem- ber ; " at Winchester on the first Monday in April and the third Monday in 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 § 66] TENNESSKE, TEXAS 327 on the date last meationed in the counties of Benton, Carroll, Chester, Crockett, Decatur, Gibson, Hardeman, Hardin, Hen- derson, Henry, Lake,' McNairy, Madison, Obion, Perry, and Weakley including the waters of the Tennessee River toi'low water mark on the eastern shore thereof wherever such river forms the boundary line between the western and middle dis- tricts 6f 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 Kentaicky strikes the east bank of the river, which shall constitute the eastern ddvision oi said dis- trict. Terms of the district court for the western division of sai4 district shall be held at Memphis on! the fourtli Mondays in May and November; and for the eastern division, at Jackson on the fourth Mondays in April and October. The clerk of thte court for the western district shall appoint a deputy who shall reside at Jackson. The marshal for the westerli' district shall appoint a deputy who shall reside at Jackson. The inarshal for the eastern district shall apjpoint 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, at Chattanooga, and at Greenville, which shall be kept open at all times for the transaction of the business of. the court.*' ' ' § 108. Tbe 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, Nav- arro, and Rockwall, which shall constitute the Dallas ■ division j also the territory embraced on the date last mentioned in the counties of Comanche, Erath, Hardeman, Hood^; Jack, Palo Pinto, Parker, Tarrant, and Wise 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, Crosby, Dallam, Deaf Smith, Dickens, Donley, Floyd, Gray, Hale, Hall, Haiis- ford. Hartley, Hemphill, Hockley, Hutchinson, King, Lamb, 87Jiia. Code, 36 St. at L. 1087, as at L. 232, § 1094a Jud. Code, as am'd Act of Aug. 20, 1912, 37 St. amended. ■ ' . > ' '' : at L. 314, Comp. St. § 1094, 39 St. 328 ORIGINAL JURISDICTION [§ 66 Lipscomb, Lubbock, Moore, Motley, Ochiltree, Oldham, Parmer, Potter, Kandall, Koberts, Sherman, Swisher, and 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, Lynn, Midland, Mitchell, Nolan, Scurry, Shackelford, Stephens, Stonewall, Taylor, Terry, Throckmorton, and Yoakum, which shall constitute the AMlene division; also the territory embraced on the date last mentioned in the counties of Brown, Coke, Coleman, Concho, Crockett, Glasscock, Irion, Manard, Mills, Runnels, Schleicher, Sterling, Sutton, Tom Green, and 'Upton,' which shall constitute the San Angelo division of the said district ; ' ' also the counties of Archer, Baylor, Clay, Cottle, Foard, Montague, King, Knox, Wichita, Wilbarger, and Young, which constitute the Wichita Falls divi- sion. ' ' Terms of the district court for the Dallas 'division shall be held at Dallas on the second Monday in i 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 third Monday in September; "for the Abilene , division, at Abilene on the first Monday in October and the sec- ond Monday in April ; for the San Angelo division, at Sari An- gelo on the third Monday in October and the fourth Monday in April," and for the Wichita Falls division, at the city of Wichita Falls, in Wichita county, twice each year, on the fourth Monday in Mdreh and the third Monday in November. 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, at San Angelo, and at Wichita Falls which shall be kept open at all times for the transaction of the business of the court. ' ' The eastern district 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, Rusk, Smith, Van Zandt, and Wood, which shall constitute the Tyler division; also the territory em-' braced on the date last mentioned in the counties of Hardin, Jas- per, Jefferson, Liberty, Newton, Orange, Sabine, San Augustine, Shelby, and Tyler, which shall constitute the Beaumont division; also the territory embraced on the date last mentioned in the §66] TEXAS 32,9 Counties of Collin, Cook, Denton, Grayson," " which shall constitute the Sherman division; also the territory embraced on the date last mentioned in the counties of Camp, (Jass, Harri- son, Hopkins, Marion, Morris, and Upshur, which shall constitute the Jefferson division; also the territory embraced on the last mentioned in the counties of Delta, Fannin, Red Fiver, and Lamar, which shall constitute the Paris division; also the terri- tory embraced on the date last mentioned in the counties of Bowie, Franklin and Titus, which shall constitute the Texarkana division. Terms of the District court for the Tyler division shall be held at Tyler on the fourth Mondays in January and April; for the Jefferson division at Jefferson on the first Monday in Oc- tober and the third Monday in February ; for the Beaumont divi- sion, at Beaumont on the third Monday in November and the first Monday in April ; for the Shei-man division, at Sherman on the first Monday in January and the third Monday in May; for the Paris, division, at Paris on the third Monday in October and the first Monday in March ; and for the TexarkoMa division at Tex- arkana on the third Monday in March and the first Monday in November. The clerk of the 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, Llanb, 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 An- tonio division; also the territory embraced on the date last men- tioned in the county of Brewster; also the counties of El Paso and Presidio" which shall constitute the El Paso division; "and also the territory embraced on the date last mentioned in the counties of Bell, Basque, Coryell, Falls, Hamilton, Freestone, Hill, Leon, Limestone, McLennan, Milam, Robertson, and Somer- vell which shall constitute the Waco division; also the territory embraced on the date last mentioned in the counties of Kinney, 330 ORIGIN AIj JURISDICTION [§66 Maverick, Pecos, Terrell, Uvalde, Valverde, and Za valla, which shall constitute the Del Bio division. Terms of the district court for the Austin division shall be held at Austin on the fourth Monday in January and 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 I'aso on the first Monday in April and the first Monday in Oc- tober; 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 western: district shall maintain an ofiSce 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 transac- tion of business. The southern district shall include the terri- tory embraced on the first of July, nineteen hundred and ten, in the counties of" La Salle, McMullen, "Webb, and Zapata,, which shall constitute the Laredo division; also the territory embraced on the date last mentioned in the counties of Cam- eron, Hidalgo, and Starr, which shall constitute the Browns- ville division; also the territory embraced on the date lasl tioned in the counties of Austin, Brazoria, Chambers, Galveston, Fort Bend, ilatagorda, 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, Trin- ity, Walker, and Waller, which shall constitute the Houston divi- sion; also the territory embraced on the date last mentioned, in the counties of Calhoun, Dewitt, Goliad, Jackson, Refugio, and Victoria, which shall constitute the Victoria division. Terms of the district court for the Galveston division shall be held at Galveston on the second Monday in January and the first Monday in June; for the Hotiston 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 § 66] TBZAS, UTAH 331 himself or a deputy at each of the places now designated; for holding court in said district. " ** " The counties of Bee, Liive Oak, Aransas, San Patricio, Nueces, Jim Wells, Duval, Brooks^ and, Willacy shall constitute a divisiftn of the southern judicial district of Texas. Terpisipf, the district, court, of the Uniteci States for the said somtjiern, district of Tj'exasi, shall be held twice in each year at the- city of Corpus Ghristi, in Nueces County, and that, until otherwise provided by law, the judge of said cojirt shall fix the times at which said court shall be held, at Corpus Christi, of which he shall make publica.tion and give^idue no- tice."*^ "That the counties of Reeves, Ward, Martin, Reagan, Winkler, Ector, Gaines, Andrews, Upton, Midland, Lqying, Jeff Davis, and Crane shall constitute a division of the western judi- cial district of Texas. Terms of the district court of the United States fpr the said western district of Texas shall, be held twice in each year at the citj^ of Pecos, in Reeves county, and that, uritil otherwise provided by law, the judge of said court shall fi:f the tj^j^es at which said court sljall be held at Pecos, of which he shall niake proclamation and give due notice : Provided,, however, that suitable rooms and accommodations shall be furnished for the holding of said court and for the use of the officers of said court at Pecos, free of expense to the Government of the United States.'"" ',' § 109. The State of Utah shall constitute one judicial dis- trict, to be known as the district of Utah. It is divided into twp divisions, to be known as the northern and ceniral .divisions. The ^northern division shall include the territory embraced on the iirstday of July, nineteen hundred and ten, in the coup- ties ot Boxelder, Cache, 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, , (ja.r- 88 36 Stat, at L. 1125, Comp. ern Kan. Ey. Co., 40 Fed. 273. As St. § 1095j 39 St. at:L. 939, Comp. to jurisdiction over pending ca,aes, St. § 1095a, Comp. St. § 1095b; Act see O'Connor v. O'Connor, 146 Fed. of April 1, 1919. For special juris- 994. See also Be Jackpn, 40 Fed. diction of the courts held in this 372; International Bank'& Trust district over controversies affecting Co. v. Scott, C. C. A., 159 Fed. 58. the Gulf, Colorado & Santa Fe Eail- , 89 Act of May 29, 1912,, 37 St. at road Company, see 23 St. at L., ch. L. 120, Comp. St. § 1097, 37 St. at 177, §8, p. 72; 23 St. at L. ch. L. 663, Comp. St. §1098. 170 S fi T> QTK- Ttvienno -it Smi+Vi. SO Aot nf Ti'AVi 'ir H 101-1 S32 ORIGINAL JURISDICTION [§ 66 field, Gtand, Iron, Juab, Kane, Millard, Piute, Salt Lake, San Juan, San Pete, Sevier, Summit, Tooele, Uinta, Utah, Wasatch, Washington, and Wayne. Terms of the district court for the northern division shall be held at Ogden on the second Mondays in March and September; and for the central division, at Salt Lake City on the second Mondays in April and November. The clerk of the court for said district shall maintain an office in charge of himself or a deputy at each of the pMces where the court is now required to be held in the district.*^ ' ' § 110. The State of Vermiont 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 Government of the United States until the public building pro- vided for by Act of Congress shall be erected. " ^^ "§ 111. The State of Virginia is divided into two d^istricts to be, known as the eastern and western districts of Virginia. The eastern distHct shall include thd territory embraced on the first day of July, nineteen hundred and ten, in the counties of Ac- comac, Alexandria, Amelia, Brunswick, Caroline, Charles City, Chesterfield, Culpeper, Dinwiddie, Elizabeth City, Essex, Fair- fax, Fauquier, Gloucester, Goochland, Greensville, Hanover, Henrico, Isle of Wight, James City, King and Queen, King George, King William, Lancaster, Loudoun, Louisa, Lunenburg, Mathews, Mecklenburg, Middlesex, Nansemond, New Kent, Nor- folk, Northampton, Northumberland, Nottoway, Orange, Pow- tatan. Prince Edward, Prince George, Prince William, Princess Anne, Richmond, Southampton, Spottsylvania, Stafford, Surry, Sussex, Warwick, Westmoreland, and York. Terms of the Dis- trict court shall be held at Richmond on the first Mondays in 91 .^e St:' kt' L. 1127, Comp. St. 92 36 St. at L. 1127^ 37 St. at L. §1100. ' "■' '' ' s's; Goaip. St. § 1101. ' § 66] VIRGINIA, WASHINGTON 333 April and October ; at Norfolk 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 territory em- braced on the first day of July, nineteen hundred and , ten, in the counties of ' Alleghany, Albemarle, Amherst, Appomattox, Augusta, Bath, Bedford, Bland, Botecourt, Buchanan, Bucking- ham, Campbell, Carroll, Charlotte, Clarke, Craig, Cumberland, Dickenson, Floyd, 'Fluvanna, Franklin, Frederick, Giles, Gray- son, Greene, Halifax, Henry, Highland, Lee, Madison, Mont- gomery, Nelson, Page, Patrick, Pulaski, Pittsylvania, Rappahan- nock; Roanoke, Rockbridge, Rockingham,'Russell; Scott, Shenan- doah, Smyth, Tazewell, Warren, Washington, Wise, and Wyth&.'^9» Terms of the district court shall be held at Lynchburg on the second Mondays in January and July ; at Roanoke on the second Monday in February and the first Monday in August; at Dan- ville' on the second Monday in March and the third Monday in September ; at Charlottesville dn the second Mondays in April and November ; at Harrisoi'iburg on the fourth Mondays in April and November ; at Big Stone Gap on the third Monday in May and the second Monday in October; and at Abingdon on the second Mondays, in June and December. The clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Lynchburg, Roanoke, Danville, Charlottesville, Harrisonburg, Big Stone Gap, and Abingdon, which shall be kept open at air times for the transac- tion of the business of the court.'* The court of admiralty in the Eastern District of Virginia can serve process of the Potomac River below Georgetown, be- tween' the District of Columbia arid Alexandria County, Vir- ginia.** " § 112. The State of Washington 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 93 36 St. at L. 1087, 1127.' As to , 94 domp. ^t. iil and Jefferson, -with the waters thereof. Terms of the district court for the noirthem district shall be held at Martinsburg on the first Tuesday of April and the third Tuesday of September; at Clarksburg on the second Tuesday of April and the first Tuesday of October; at Wheeling on the first Tuesday of May aqd the third Tuesday of October ; at Philippi on the fourth Tuesday of -May and the second Tuesday of November ; at Elkins on the first Tuesday in July and the first Tuesday in December; and at Parkersburg on the second Tuesday of January and the second Tuesday of June: Provided, That a place for holding court at Philippi shall be furnished free of cost to the United States by Barbour County until other provision is made therefor by law : A')id provided further, That a place for holding court at Elkins shall be furnished free of cost to -the United States by Randolph County until other provision is made therefor by law. The southern district shall include the territory embraced on the 97 A nuisance consisting of nets in the Western District of Wash- connected with buoys and heavily ington. Such jurisdiction does not anchored to the bottom of the Co- reach the bed of the stream in Ore- lumbia Eiver, between the line of gon. Affirming C. C. A., 219 Fed. extreme low tide and the channel, .365; reversing, 172 Fed. 991. in Oregon, is not subject to abate- 98 Columbia River Packers Ass'n ment by the District Court sitting v. McGowan, 172 Fed. 991. •336 ORIGINAL JUKISDICTION [§ €6 first (Jay of July, nineteen hundred and ten, in the counties of Jackson, Roane, Clay, Braxton, Webster, Nicholas, Pocahon- tas, Greenbrier, Fayette, Boone, Kanawha, Putnam, Mason, Ca- bell, Wayne, Lincoln, Logan, Mingo, Raleigh, Wyoming, Mc- Dowell, Mercer, Summers, and Monroe, with the waters' thereof. Terms of district court for the southern district shall be held at Charleston on the first Tuesday of June and the third Tues- day of November; at Huntington on the first Tuesday of April and the first Tuesday after the third Monday of September ; at Bluefield on the first Tuesday of May and the third Tuesday of October ; at Williamson on the first Tuesday of October ; at Web- ster Springs on the first Tuesday of September; and at Lewis- burg on the second Tuesday of July: Provided, That a place for holding court at Webster Springs shall be furnished free of cost to the United States : And provided further, That a place for holding court at Williamson shall be furnished free of cost to the United States by Mingo County until' other provision is made therefor by law. ' ' *' § 114. The State of Wisconsin is divided into two districts, to be 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, Manitowoc, Mari- nette, Marquette, Milwaukee, Oconto, Outagamie, Ozaukee, Ra- cine, Shawano, Sheboygan, Walworth, Washington, Waukesha, Waupaca, Waushara, .and Winnebago. Terms of the District court for said district 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 coun- ties of Adams, Ashland, Barron, ,Bayfield, Buffalo, Burnett, Chippewa, Clark, Columbia, Crawford, Dane, Dunn, Douglas, Ban Claire, Grant, Green, Iowa, Iron, Jackson, Jefferson, Juneau, La Crosse, Lafayette, Lincoln, Marathon, Monroe, 99 31 Stat, at L. 736, 36 St. at L. 1129, 37 St. at L. 76, 38 St. at L. 702, Comp. St. § 1104. § 66] ' WISCONSIN 337 Oneida, Pepin, Pierce, Polk, Portage, Price, Richland, Rock, Rusk, Saint Croix, Sauk, Sawyer, Taylor, Trempealeau, Ver- non, Vilas, "Washburn, and Wood. Terms of the District court for said district shall be held at Madison on the first Tuesday in December; at Ban 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 juiy. The clerk of the court for' the western district shall maintain aoi office in charge of hiiuiself 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 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 sanie, 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 sihall 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." "° Tt 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."^ 100 36 St. at L. 1087, 1129, Comp. 101 U. S. v. Peterson 64 Fed. 145. St. • § 1105. Fed. Prac. Vol. 1—22 338 ORIGINAL JURISDICTION [§ 66a "§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 Tuesday 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 pajfk, on such dates as the court may order. The marshal and clerk of the said court shall each, respectivelj'-, 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 iu 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 deputj^ marshals for the Yellowstone National Park, who shall reside in said park. "^'*^ "The District court for the district of Wyoming shall have jurisdiction of all felonies committed within the Yel- lowstone National Park and appfellate jurisdiction of judgments in ' cases of convictions before the commissioner authorized to be appointed under section five of an Act entited 'An Act to protect the birds and animals in Yellowstone National Park, and to punish crimes in said Park, and for other purposes, ' ap- proved May seventh, eighteen hundred and ninety-four. ' ' ^"^ It seems that the territorial limits of these districts, as fixed by the statute, are unaffected by any subsequent State legis- lation authorizing new counties and changing county lines. ^''* § 66a. Jurisdiction over ceded territory. The Federal Con- stitution gives Congress power to exercise exclusive legislation in all cases whatsoever "over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock Yards, and other needful Buildings. ' ' ^ It has been held that this clause of the Constitution does not 102 36 St. at L. 1130, Comp. St. 104 Hyde v. Victoria Land Co., §1106. ]25 Fed. 970. 103 36 St. at. L. 1087. § 66a. 1 Article 1, section 8. § 66a] CEDJID TERRITORY 339 apply to territory acquired otherwise than by purchase ; " nor to land leased to the United States for a camp.* But it is settled that apart from this express grant the United States have power implied by the Constitution to accept a cession of jurisdiction made by a State for use for Federal purposes and that the ac- ceptance by Congress of such a cession will be presumed in the absence of action to the contrary.* The State may reserve the right to tax public lands ^ and to serve process within such a cession.^ It has been said:- "This jurisdiction cannot be acquired tor- tiously, or by disseisin of the State; much less, can it be ac- quired by a mere occupancy, without implied or tacit consent of the State, when such occupancy is for the purpose of protec- , tion. " '' it has been said, that the consent of a State Convention is not equivalent to the consent of the State Legislature.* The consent of the Legislature may be given after as well as before the purchase.® The inhabitants of such places are not citizens or electors of the States by the consent of which they were pur- chased.^" The cession by the State includes judicial as well as legis- lative jurisdiction.^^ Such cession does not deprive the State court of jurisdiction by service made beyond the ceded territory of process in an action for tort or other transitory causes of action which arose within the district which is the property of the United States.^^ Other- wise, it was held that process of the State court could not be served in such ceded territory, when the right to make such 2 People V. Godfrey, 17 Johnson (N. "K.) 225, 233, per Spencer, C. J. (N. Y.) 225. ,8 12 Op. A. G. 428. But see 3 U. S. V. Tierney, 1 Bond 571, Port Leavenworth E. E. Co. v. Fed. Cas. 16, 517. Lowe, 114 TJ. S. 525, 540, 5 Sup. 4 Port Leavenworth E. E. Co. v. Ct. 995, 29 L. ed. 264. Lowe, 114 U. S. 525, 528, 5 Sup. 9 IT. S. v. Tucker, 122 Fed. 518. Ct. 995, 29 L. ed. 264; Chicago & 10 Sinks v. Beese, 19 Ohio St. Pac. Ey. Co. v. MeGlinn, 114 XT. S. 306. See opinion of Justices, 1 542, 5 Sup. Ct. 1005, 29 L. ed. 270; Metcalf (Mass.) 580; 6 Op. A. G. Benson v. V. S, 146 U. S. 32. 577. 6 Port Leavenworth E. E. Co. v. HJBe Lad, 74 Fed. 31; Steel t. Love, 114 IT, S. 525, 528, 5 Sup. Halligan, 229 Fed. 1011, 1017. Ct. 995, 29 L. ed. 264. 12 Ohio Eiver Contract. Co. v. Gor- 6 Ibid. don, 244 IT. S. 268. 7 People V. Godfrey, " 17 Johnson 340 ORIGINAL JURISDICTION [§ 66a service had not been reserved.'* It is customary in the act of cession to include a clause stating that the State reserve the right to serve civil and criminal process in the ceded territory.'* "The reservation which has usually accompanied the consent of the States that the civil and Criminal process of the State courts may be served in the places purchased, is not considered as interfering in any respect with the supremacy of the United States over them ; but is admitted to prevent them from becom- ing an asylum for fugitives from justice. And Congress, by statute passed in 1795, declared that cessions from the States of the jurisdiction of places where light-houses, beacons, buoys, or public piers were or might be erected, with such reservations, should be deemed- sufficient for the support and erection of such structures, and if no such reservation had been, made, civil and criminal process issued under the authority of the States or of tbe United States might be served and executed within them." '' An action for a tort committed within such a district arises under the Constitution and laws of the United States although the liability of the defendant is determined by the principles of the common law and is not affected by any Federal statute.'® A suit brought in a State court against a Federal officer for acts committ'ed within the district may be removed to a Federal court." It has been held that in such a case the plaintiff's statement of his cause of action need not show that it is' based on the Constitution or laws of the United States.'* Whether the ceded territory was purchased by the United States '* or not ^^ the criminal laws of the State have no force ISPolley V. Shriver, 81 Va. 568 v. Clary, 8 Mass. 72; Mitchell v. (a Soldiers' Home). Tibbitts, 17 Pick (Mass.) 298. HE. G. Kansas Laws of 1875, aoijg Lad, 74 Ted. 31, 40; Steele p. 95; "Wisconsin P. & L. Laws of v. Halligan) 229 Fed. 1011, 1017; 1867, ch. 275. see U. S; v. Meagher, 37 Ted. 875; 16 Fort Leavenworth E. E. Co. v. IT. S. v. Lewis, 111 Fed. 630; L'owe, 114 XT. S. 525, 533, 5 Sup. Lasher v. State, Tex. App. 17 S. Ct. 995, 29 L. ed. 264, per Field, W. 1064. Contra, Me Kelly, 71 Fed. J., citing 1 St. at L. 426. 545-; Be 0*Connor, 37 Wise. 379; 16 Steele v. Halligan, 229 Fed. both of which cases arose from 1011. erimes committed in a Soldiers' 17 Ibid. ' ii'oiiie, a Federal corporation which 18 Ibid. held the title to .the property, al- 19 IT. S. V. Cornell, 2' MaSon 60, though jurisdiction over the land Fed. Gas. 14,867; Commonwealth had been ceded to the United States '66a] CEDED TERRITORY 341 there after the cession unless adopted by legislative enactment of the United States. The laws regulating private i-ights, if not in eonflicl with the laws of the United States or the pur- poses for which the land is acquired, remain there in force untii changed by Congress.*^ A subsequent State statute has no effect there ; ^* except it has been held, as to such part of the land as the United States pei-mits to be used for purposes not govern- mental and other than those for which it was ceded.*' with a reservation of the right to serve civil and criminal process there. 21 Chicago & P. E. E. Co. v. Mc- Glinn, 144 TJ. S. 542, 5 Sup. Ct. 1005, 29 L. ed. 270; Steele v. Halli- gan, 229 Fed. 1011, 1017; Cf. Bownes V. Bidwell, 182 U. S. 244, 298, 21 Sup. Ct. 770, 45 L. ed. 1088. 22 W. U. Tel._ go. V. Chiles, 214 TJ. S. 274, 29 Sup. Ct. 613, 53 Li ed. 994 (imposing penalty for failure to deliver a telegram), Kaufman v. Hopper, 220 N. Y. 184 (a labor law). 23 Crook, Horner & Co. v. Old Point Comfort Hotel Co., 54 Fed. 604, 610, 611. "It is plain that the resolution of congress of March 3, 1887, relating to the Chamber- lin Hotel, and the act of assembly of Virginia of March 30, 1887; on the same subject, both treat this hotel and its site as a diversion of that part of the cession obtained from Virginia by the United States from the purposes for which it was ceded. If so, what is the jurisdic- tional status of that hotel? Has it riot' reverted to the State, to remain under its jurisdiction so long as it continues to be used for other than military purposes, ' subject > to such laws of the State as do not interfere with or conflict with the free arid full use by the United States, for' mili- tary purposes, of the rest oi^ the land ceded to and held by them at Old Point Comfort? If this be not the true jurisdictional status of the Chamberlin Hotel and its site, it would be very difEcult to conceive arid to define what their status is. It seems to riie to be a necessary and an inevitable conclusion that the Chamberlin property has reyerted jurisdictionally to Virginia, subject to such continued control by the United States as may be necessary to the discipline of the riiUitary purposes. Subject to these' liihita- tions, it results that the la^ys of Virginia of a general chara,cter such as do not conflict with the purposes for which the United States hold the' land at Fortress Monroe', are in force there, especially in the places like the Chamberlin Hotel, which haVe befen appropriated to other than the military purposes for which oinly they were ceded by Virginia. If tliese conclusions be not true, then, except State laws more than- half a century old, the hundreds of in- habitants engaged in civil pursuits arid residing at Old Point Comfort Eti'e- living in a No Man 's Land, arid, exiiept in a criminal sense, are as fcdfeplete outlaws as if they were at- Botany Bay; '■'i^' I am' aware that the a/rgwrnen- iuiA ab inconvenienti cannot be iielft- to enact laws if they' ^o not ibMially e*ist; but when re&sori'aftd 342 ORIGINAL JURISDICTION [§ 67 Congress has enacted a Criminal Code wliicli applies, to otienses committed within the territory thus acquired.^* § 67. Jurisdiction of District Court of Alaska. In Alaska there is a District Court with general jurisdiction in civil, crim- inal, equity and admiralty cases.^ This court is npt a District Court of the United States.* It ha« been considered as a Su- preme Court of a Territory.* The court consists of three divi- sions, each of which is held by a different judge with a sepa- rate clerk, district attorney and marshal. ",The jurisdiction of each division of the court, shall extend xjver the district of Alaska, but the court in which the: action is pending may, on motion, change the place of trial in any action, civil or criminal, from one place to another place in the same division or to a designated place in another division in either of the following cases: First. When there is reason to believe that an impartial trial can not be had therein ; Second. When the convenience of witnesses and the ends of justice would be promoted by the change ; ^ , , Third. When from any cause the judge is, disqualified from acting; but in such event, if the judge of another division will appear and try the action, no change of place of trial must be made ; , Fourth.. By the coUrt, on its own motion, when, considering available means of travel, it appears that the defendant will be put to unnecessary expense and inconvenience if; summoned to legitimate statutory construction tary post are in force at ,01d Point show that State legislation is Comfort, and are especially in, force in force in places where, if not, in those parts and places at Old there would be no law at all, the Point Comfort which have been ap- inconvenienee of holding otherwise propriated to other than the mili- comes in aid of the adopted con- tary purposes of the Tli^ited struction. Let me emphasize the States." fact that this decision goes no 24 Act of March 4, 1909, 35 St. further than to hold that the gen- at L. 1088, Comp. St., §§ 10165; eral laws of Virginia, other than 10519. criminal, which are not in conflict § 67. 1 23 St. at L. 24 ; 30 St. with those of the United States re- at L. 545; 31 St. at L. 321. The lating to forts, and which do not boundaries of these, divisions aro interfere with the military control, described supra, § 66. discipline, and use by the United 2 Summers v. U. S., 231 U. S. 92. States of Portress Monroe as a mill- 8 Ibid. § 67 J DISTRICT COURT OF ALASKA 343 defend in the place or division in which an action has been com- menced; and when it appears to the satisfaction of the court, or judge thereof, that an action has been comJnenced in a place or division remote from the residence of the defendant for the pur- pose of causing unnecessary expense or inconvenience, the place of the trial shall be changed at the cost of the plaintiff, and such <50sts shall not be recovered from the defendant. In any criminal prosecution the court shall change the place of ti'ial where it appears to the satisfaction of the court that the de- fendant will not be prejudiced thereby and that the United States Mall be put to unnecessary expense in such criminal prose- cution if the transfer is not made. " * 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 re- quire.^ He is also required to appoint commissioners and to remove such commissioners, at pleasure.^ 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, recorders 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.'' ' It was held : that an order abolishing a precinct, providing that the territory embraced therein should become d part of another precinct, accepting the resignation of the commissioner 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 4 31 St. at L. 325, Comp. St. Aet of March 3, 1899, 30 St. at L. § 3565'. 1253. For the former statute, see 5 23 St. at L. 24 ; 30 St. at L. the Organic Act of May 17, 1884, 545; 31 St. at L. 321, swpra, §66, 23 St. at L. 24. It has been held r 70. that such commissioners have no ju- 6 Ibid. risdiction of larceny committed in a 7 Act of June 6, 1900, 31 St. at ship, steamboat or other vessel. Ex L: 321, §6. This act contains the parte Kie, 46 Fed. 485. As to pro- Code of Civil Procedure for Alaska. liate jurisdiction, see Ex parte Em- For the Alaska Criroinal Code, see ma, 48 Fed. 211. 344 ORIGINAL JURISDICTION [§ 67 in ofSce 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.* The practice in Alaska is regulated by a Code of Civil Pro- cedure for Alaska ' and a Criminal Code.^" The Act providing a civil government for Alaska directed: "That the general laws of the State of Oregon now in force are hereby declared to be the law in said district, so far as the same may be applicable and not in conflict with the provisions of this Act or the laws of the United States, " ^^ It has been held that the law of Oregon in force on May 17, 1894, determines the construction and proper requisites of an indictment although they are in conflict with the rules of the common law in that respect. i'' And that the sections of the Revised Statutes of the United States upon that subject do not apply. 1^ 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.^* It has been said "that the whole subject matter of jurors in the territories is committed to territorial, regulation. " ^^ Until changed by statute, the court resorts to the laws of Oregon to determine the qualification of grand jurors.^* It seems that statutes of the United States granting defendants the right to separate trials in certain cases ^'^ regulating the number of per- emptory challenges to jurors ^* and the mode of challenging petit jurors ^' do not apply. Neither is application made of the section of the Revised Statutes directing that the defendant in certain cases be furnished with 'a list of the witnesses to be pro- duced against him on the trial.*" Nor of that permitting the 8 Cheney v. Alaska Treadwell 13 Summers v. U. S., 231 IT. 8. 92. Gold Min. Co., C. C. A., 148 Fed. HRassmussen v. XJ. S., 197 U. S. 808. .516, 25 Sup. Ct. 514, 49 L. ed. 863. 9 31 St. at L. 321. IB Clinton v. Englebrecht, 13 Wal- 10 30 St. at L. 253. Act of March lace; 434, 445. 3, 1899; Summers v. II. S., 231 TJ. 16 Jackson v. TJ. 8., 102 Fed. 473, S. 92. 477. 11 Act of May 17, 1884, ch. 53, 17 Cochran v. U. S., C. C. A., 147 23 St. at L. 24. Fed. 206, 207. 12 Fitzpatriek v. U. 8., 178 TJ. S. 18 Ibid. 304, ■308. See Endleman v. U. 8., 19 Miles v. U. S., 103 U. S. 304. 86 Fed. 456. 20 U. S'., E. S., § 1033, Ball v. § 68] SUPREME COURT OP DISTRICT OP COLUMBIA 345 joinder in one indictment of several charges for connected acts or transactions or for acts or transactions of the same class of erimes.^^ A subsequent act of the territory legislature permits such joinder.22 Nor the former sections forbidding testimony of a party in an action- against an executor or an administrator with certain exceptions.''* Where the statutes and decisions of Oregon and Alaska are silent, the common law is in force in this territory ^* so far as it lias not been changed by the statutes of the United States.^^ ' ' Congress by its legislation intends always special regulations for the Territories,"*^ § 68. Jurisdiction of the Supreme Court of the District of Columbia. The Supreme Court of the District, of Columbia has in general thC; same civil jurisdiction tha,t was vested in the General Court, or the Supreme Court pf Chancery, of Maryland, on February 27th, 1801.^ It has also the same civil jurisdiction as the District Courts of the United States^* with the possible exception of admiralty, and including jurisdiction in bank- ruptcy, when the bankrupt resides in the district.* It has no jurisdiction of suits against persons not inhabitants of the dis- trict, except in the same way that nonresidents were proceeded against in the General Court or Supreine Court of Chancery of Maryland on May 3, 1802, and where such jurisdiction is con- ferred by special statutes.* It has jurisdiction of applications for divorce.* It has jurisdiction to issue writs of mandamus, prohibition and certiorari whieli cannot be, issued, by the District Courts of the United States.^ It may thus issue the writ of mandamus addressed to administrative officers of the United II. S., 147 Fed. 32, 36; Thiede v. TJ. S. 48; Summers v. XT. S., 231 Utah, 159 V. S. 510, 514. U. S. 92. 21 U. S. E. 8. §1024; Summers 26 Summers v. V. 8., 231 V. S. V. U. S., 231 U. 8. 92. 92, 104. 22 Alaska Session Laws 1913, ch. §68. ID. C. Code, §1; 31 St. at 39. L. 118&. 23 Corbus V. Leonhardt, 114 Fed. 2 Ibid. 10. 3 R. S. D. C. § 765, 19 St. at L. Z4MeCloskey v. Pacific Coast Co., 253, 254. C. C. A., 22 L.R.A.(N.S.) 673, 160 4D. C. Code, §§ 105-112! 32 St. Fed. ■ 794. at' L. 520. 26Kie v.. IT. S., C. C. A., 27 Fed. SD. C. Code, §963. 351, 356. See U. S. v. Pridgen, 153 6 32 St. at L. 520. 346 ORIGINAL JURISDICTION [^ 68 States within the district.'' It might be 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 United States at Washington ; * 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.^" The common law, both civil and criminal, prevails in the District of Columbia and there maj' be a common law offense against the United, States committed therein which is not created by any statute. ^^ The practice in this court is regulated by a code of procedure, enacted by Congress, which recognizes the distinction between common law and equity.^* Before the enatment of thiat code, the court had power to make rules for its practice at common law and in equity ; ^* including a rule that in an action on con- tract 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 declaration, 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.^* TD. C. Code, §68, 31 St. at L. District of Columbia, 5 Mackey (D. 1189; TJ. S. y. Schurz, 102 U. S. C.) 376; "Wood v. District of Colum- 378, 394, 26 L. ed. 167, 171; Ken- bia, 6 Mackey (D. C.) 142; Foster dall V. U. S., 12 Pet. 524, 9 & Abbott on the Federal Income L. ed. 1181; Decatur v. Paulding, Tax,, 238. See, infra, §460. 14 Pet. 497, 10 L. ed. 559; Kendall 9 Smith v. Whitney, 116 U. S. 167, V. Stokes, 3 How. 87, 11 L. ed. 506; 173, 29 L. ed, 601, 602. See infra, Com'r of Patents v. Whiteley, 4 §456. Wall. 582, 18 L. ed. 335; U. S. ex 10 See the discussion in the Elee- rel. Miller v. Black, 128 tJ. S. 40, 50, toral Commission, cited, infra, 32 L. ed. 354; U. S. ex rel. Redfield S 468. V. Windom, 137 TJ. S. 636, 34' L. ed. 11 Harrison v. Mayer, 224 Fed. 811; U. S. ex rel. Boynton v. Blaine, 224. 139 U. S. 306, 35 L. ed. 183; Hob- 12 31 St. at L. 1189. erts V. U. S., 176 TJ. S. 221, 44 L. ed. 13 Fidelity & Deposit Co. v. U. S., 443; V. S. ex rel. Eiverside Oil Co. 187 TJ. SI. 315, 47 L. ed. 194. , V. Hitchcock, 190 U. S. 316, 47 L. 14 Ibid. It is doubtful whether ed 1074. See infra, §469. . , the Equity Rules prescribed by the 8 Alexandria C. E. & Br. Co. v. Supropie Court of the United States § 69] DISTRICT' CODBT OP APPEiVLS 347 The general equity rules for the Federal courts do not apply to the Supretae Court of the District of Columbia.^^ Whether the Act of Ma;reh 3, 1915, previously quoted, which authorizes a suit improperly brought in equity to proceed at com- mon law, and vice versa, and equitable defenses to be pleaded in actions at common law, applies to the Supreme Court of the Dis- trict of Columbia does not seem to have been decided.^* If not, a ease impi'operly brought in equity cannot be transferred to the common law side of the court.^'' § 69. Jurisdiction of the Court of Appeals of the District of Columbia. The 'a;ppellate 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, including any final order or judginent in any ease heard on appeal from a jus- tice of the peace, may appeal therefrom to the said court of ap- peals; and upon such appeal the court of appeals shall review such order, judgment, or decree, and affirm, reverse, or modify the same as shall be jtist, except as provided in the following sections. Appeals shall also be allowed to said court of appeals ft-om all interlocutoi'y orders' of the supreme court of the District of Colurhbia, or by'ahy justice thereof, whereby the possession of property is changed oraifected, such as orders for the ap- 'J)oiritment of receivers, granting injunctions, dissolving writs of attachment, and the like; and also from any other interlocutory order, in the discretion 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 justice to allow sudh appeal."^ This court has further jurisdiction of appeals from the decisions of the Com- missioner of Patents refusing to issue or to reissue patents,* and apply to this court. The judges at L. 434, Comp. St. 573, 4 Bed. St. thereof are preparing new rules sub- Ann. 466. stantially in accordance with these, 2 D. G. Code, § 228, 27 St. at L. which will probably be in force be- 436, § 9, Comp. St. 3391, 5 Fed. St. fore this work is through the press. Ann. 502, Pierce 's Fed. Code, § 7336, IBCurriden V. Middleton, 232 U. D. C. R. S., §780; V. 8. E. S., S. 633. S 4912, 5 Fed. St. Ann. 505 ;'Pierce 's 16 38 St. at L. 956, Comp. St. Fed. Code, §8777; McKnight v. S 1251 a, quoted, iJi/ra, § 80. Metal Volatilization Co., 128 Fed. 17 Ibid. 51. § 69. 1 D. G. Code, § 226, 27 St. 348 ORIGINAL JURISDICTION [§ 69 from the decision of that commissioiier in any interference case.^ It has also jurisdiction of appeals _from the decisions of the com- missioner 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.* In the last class of cases, the appeal may be taken by an applicant for a registration, or a party to an interference, or a party who has filed opposition to a registration, or a party to an application for the cancellation of a registration.^ In these classes of eases, when an appeal is taken to the Court of Appeals of the District. of Columbia, the appellant shall give notice thereof to the Commissioner, and file in the Patent-Office, within such time as the commissioner shall appoint, his reasons of appeal, specifically set forth in writ- ing.* "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 Commissioner 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 Commissioner and the examiners may be examined under oath, in explanation ; of the principles of the thing for which a patent is demanded. "'' " The court, on petition, shall hear and determine such appeal, and revise the decision appealed from in a summary way, on the evidence produced 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 reasons of appeal. After hearing the case the court shall "return to the Commissioner a certificate of its pi'oceedings 3D. C. Code, §228, 27 St. at L. BIbid. 436, §9, Comp. gt. 3391, 5 Fed. St. 6 TJ. S. R. S., §4912, 5 Fed. St. Ann. 502; McKnight v. Metal Vo- Ann. 505, Pierce 's Fed. Code, § 8777. latilization Co., 128 Fed. 51. T TJ. S. R. S., § 4913, 5 Fed. St. 4 34 St. at L. 1251, §9; Pierce's Ann. 506, Pierce's Fed. Code, Fed. Code, §8815; McKnight -v. §8778. Metal Volatilization Co., 128 Fed. 51, § 70] DISTRICT COUBT OP PQKTO RICO 349 and decision, which shall be entered of record in the Patent- Office, and shall govern the further proceedings in the case. But no opinion oi< decision of the court in any such case shall pre- clude any person interested from the right to contest the validity of such patent in any cpurt wherein the same may be called in question."* The statute authorizing such appeals is constitu- tional.® It does not repeal^" the prior statutes authorizing subse- quent bill in" equity to compel the issue of patents^^ and for relief against interfering patents,^^ which are discussed in a subsequent section of this work.^* 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 inventor is not to be determined.^* §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 either 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.^ This includes a suit between two subjects of a foreign government.* Unless a Federal question is involved it has no jurisdiction over controversies in which any litigant on either side is not a icitizen 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.' The laws of the United States relating to appeals, writs of error and certiorari which apply to the Supreme Courts of the Territories and 8 U. S. E. S., § 4914, Pierce's Fed. IS Infra, § 147. Code, §8779. l4Wheaton v. Kendall, 85. Fed. 9 U. S. V. Duell, 172 U. S. 576. 666. lOMcKnight V. Metal V. Co., 128 § 70. 1 31 St. at L. 77, 84, 85. Fed. 51; Dover v. Greenwood, 143 2 Ortega v. L^rga, ,202 TJ. S. 339, Fed. 136. 50 L. ed. 1055. 11 TJ. S. E. S., § 4915, 5 Fed. St. S Cuebas v. Cuebas, 223 U. S. 376, Ann. 507; Pierce's Fed. Code, 56 L. ed. 476. § 8780. 12 U. S. E. S., § 4918, 5 Fed. St, Ann. 526. 350 OKIGINAL JURISDICTION [§ 70 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 jiersons, as between the District Court of the United States and the courts of Porto Rico.* 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 tlie District Courts of the United States.^ The District Court of the United States for Porto Rico is not a constitutional court of the United States.® Its authority emanates wholly from Congress, under the sanction of its power to govern territory occupying the rela- tion that exists between Porto Rico and the United States.'' When Congress has not legislated upon 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 [Tuited States, except the revenue laws.^ Tt is subject to the provisions of the Revised Statutes^" providing for the surrender of fugitive criminals by Governors of Terri- tories.^' The Employers' Liability Act'^ and the Safety Appli- ance Acts,'^ are there in force. The sections of the Revised Statutes regulating bills of exceptions apply to the District Court of the United States for Porto Rico.'* It is undetermined whether the provisions of the Code of Civil Procedure of Porto Rico upon that subject apply to that court. '^ All pleadings aind proceedings in this court must be conducted in the English language.'® The court has jurisdiction of a suit by members of a firm located in Porto Rico against subjects of Spain although 4 31 St. at L. 84, 85, 953. of Porto Eioo v. Bireh, 224 U. S. 5 31 St. at L. 86. 547, 56 L. ed. 879. SRomeu v. Todd, 206 TJ. S. 358, 13 Act of March 2, 1893, 27 St. 51 L. ed. 1093. ^t ^- ^^^j ^^- ^^^j -^^t "^ April , IZhii, 1896, 29 St. at L. 85; Act of March Si^ii 2, 1903, St. at L. ; Am. R. E. 9 Act of AprU 12, 1900, 31 St. at ^°-f P"^*" ^^'^ ^- ^^idricksen, 227 /nrr 'o . o' It " ^ee U. 8. K. S., §953, Guar- 10 TT ^ T? ^ S 'i?78 ' " 7 ■ ■' ■ dian Assurance Co. v. Quintana, 227 U Kopel v. Bingham, 211 U. S. p. S, 100, 57 L. ed. — . 468, 53 L. ed. 286. 15 ii,ia__ 227 TJ. S. 100, 105, 57 L. 12 Act of April 22, 1908, 35 St. at ed. — . L. 65, 291 Oh. 149; Am. E. E. Co. 16 Ibid. § 70a] CANAL ZONE . 351 the citizenship of the members of the firm does not appear.^^ In a suit brought by a citizen of the island against a foreign subject the jurisdiction is not ousted because on the application of the Attorney General, Porto Rico is substituted for the de- fendant.^* The court has power to enjoin a railway company from violating the statute regulating rates.^® The court has no probate jurisdiction.^' It cannot in a suit to cancel a mortgage and foreclosure proceedings declare the plaintiffs the only heirs at law of the mortgagor.^^ The court has no jurisdiction in a suit against the Government of Porto Rieo*^ without its con- sent^ except perhaps in a suit affecting property which is an escheat.** The court has power to allow the Government of Porto Rico to intervene in a pending suit in a proper case.^ §70a. Jurisdiction of District Court of the Canal Zone. "There shall be in the Canal Zone one district court with two divisions, one including Balboa and the other including Cristobal ; aad one district judge of the said district, who shall hold his court in both divisions at such time as he may designate by order, at least once a month in each division. The rules of practice in such, district court shall be prescribed or amended by order of the President. The said district court shall have original juris- diction of all felony cases, of offenses arising under section ten of this Act, all. causes in eguity; admiralty and all eases at law involving principal sums exceeding three hundred dollars and all appeals from judgments rendered in magistrates ' courts. The jurisdiction in admiralty herein conferred upon the district judge and the distract court shall be the same that is exercised by the United States district judges and: the United States dis- trict courts, and the procedure and practice shall also be the same. The district court or the judge thereof shall also have jurisdiction of all other matters and proceedings not herein 17 Sueesores de L. Villamil & Co., 21 Ibid. S. En C, V. Merced, 0. C. A., 2.S9 28 Porto Eieo v. Eosaly, 227 U. S. Fed. 86. a?. 18 Porto Eico V. Eamos, 232 TJ. S. 23 Porto Eico v. Eamos, 232 XJ. S. 627. ' 627. 19 People of Porto Eieo v. Ameri- , 24 Porto Eico v. Eamos, 232 TJ. S. can E. Co. of Porto Eico, C. C. A., 627, 632. 254 Fed. 369. 25 Ibid. 20 Santiago v. Eoses, C. 0. A., 242 Fed. 209. 352 . ORIGINAL Jurisdiction [§ 70a provided for which are now within the jurisdiction of the Su- preme Court ' of the Canal Zone, of the Circuit Court of the Canal Zone, the District Court of the Canal Zone, or the judges thereof. Said judge shall provide for the selection, summoning, serving, and compensation of jurors from among the citizens of the United States, to be subject to jury duty in either division of such district, and a jury shall be had in any criminal case or civil case at law originating in said court on the demand of either party. There shall be a district attorney and a marshal for said district. It shall be the duty of the district attorney to conduct all business, civil and criminal, for the Government, and to advise the governor of the Panama Canal on all legal questions touching the operation of the canal and the administration of civil affairs. It shall be the duty of the marshal to execute all process of the court, preserve order therein, and do all things incident to the oflSce of marshal. The district judge, the district attorney, and the marshal shall be appointed by the President, by and with the advice and consent of the Senate, for terms of four years each, and until their successors are appointed apd qualified, and during their terms of offlee shall reside within the Canal Zone, and shall hold no ' other office nor serve on any official board or commission nor receive any emoluments except their salaries. The district judge shall receive the same salary paid the district judges of the United States, and shall appoint the clerk of said court, and may appoint one assistant when neces- sary, who shall receive salaries to be fixed by the President. The district judge shall be entitled to six weeks 'leave of absence each year with pay. During his absence or during any period of disability or disqualification from sickness or otherwise to dis- charge his duties the same shall be temporarily performed by any circuit or district judge of the United States who may be designated by the President, and who, during such service, shall receive the additional mileage and per diem allowed by law to district judges of the United States when holding court away from their homes. The district attorney and the marshal shall be paid each a salary of five thousand dollars per annum. ' ' ^ "The President is authorized to determine or cause to be determined what towns shall exist in the Canal Zone and sub di- S 70a. 1 .S7 St. at L. 565. Comp. St., §10044. I '70a] ' CANAL ZONE 353 vide and from time to time 'resubdivide' said Canal Zone into subdivisions, to be designated by name or number, so that t^ere shall be situated one town in each subdivision, . and thai boun- daries of each subdivision shall be dearly defined. In each town there shall be a magistrate's court' with exclusive original juris- diction coextensive with the subdivision in which it is situated of all civil cases in 'Which the principalsiim claimed does hot exceed three hundred dollars, and all criminal cases -wherein the punishment that may be imposed shall not exceed a fine of one hundred dollars, br ' imprisonment not exceeding thirty days, or both, and all violations of police regulations aiid ordinance^ and all actions involving possession or title to personal property or the foi'eible'entty and detainer of real estate. Stleh magistrates shall also hold preliminary investigations' in charges of felony and offenses under section! ten of this Act, and commit or bail in bailable cases to the district court. A sufficient number of magistrates and consta:bles, who must be citizens of the United States, to conduct 'the business of such courts', shall be appointed by the governor of the Panama Ganal for terms of four years and until their successors are appointed and qualified, and the compensation of such persoiis' shall be fixed bj^ the President, OT by his authority, uiitil such time as Congress may by law regulate the'' same. The routes governing said' courts and pre- scribing the duties of ' said 'msigistrates and constables, oaths; and bonds, the times arid places of iholdingsuch courts, the disposi- tion 'of fines,' costs, forfeitures, enforcements of judgments, pro- viding for appeals therefrom i to the district court, ' and the dis- position, treatment, and pardon of convicts shall be established by order of the ■ President. The governor of the Panama Canal shall appoint' all notaries public, prescribe their powers and duties, their official seal, and the fees to' be charged and col- lected by them. "^ I ' " ■ This C6urt'has jurisdietioil of all' criminal offenses of trespass, injury br destruction of fortiflcationfe' or ^harbor defenses eom- jnitted- within the Canal Zone or within any defensive sea' areas which the President is authorized to establish for purposes of national defense.' 2 37 St. at L. 564, Oomp. St., amended; 39 St. at L. 1194,' 40 St. §10043. at li. 89, Comp.' St., § 10208. 3 39 Criminal Code, § 44, as Fed. Prac. Vol. I— 23 354 ORIGINAL JURISDICTION [§ 71 All laws of the Canal Zone which existed August 24, 1912 ancj which governed practice and procedure of the courts then existing are applicable and adapted to the practice and pro- cedure in both these courts ; * but not as regards bills of excep- tions, writs of error and appeals.* The practice in this EHstrict court is regulated by the Code of Civil Procedure for the Canal Zone promulgated by the President. The executive order of the President issued August 14, 1919 provides amongst other things : — .yThe plaintiff in any civil suit, or special proceedings, may be ruled to give security for the costs upon motion of the de- fendant; or of any officer of the court interested in the costs accruing in such suit; and if such rule be entered against the plaintiff and he fail to comply therewith, within the time pre- scribed by the court or judge thereof, the suit shall be dis- missed. ' ' ^ This leaves the making of the rule in the discretion of the District court.'' The Act against Trading with the Enemy provides: "The several courts of the first instance in the Philippine Islands and the District Court of the Canal Zone shall have jurisdic- tion of offenses committed within their respective districts, and concurrent jurisdiction with the district courts of the United States of offenses under this Act committed upon the high seas and of conspiracies to commit such offenses as defined by section . thirty-seven of the Act entitled ' An Act of codify, revise, and amend the penal laws of the United States, ' approved March fourth, nineteen hundred and nine, and the provisions of such, section for the purpose of this Act are hereby extended to the Philippine Island and to the Canal Zone. ' ' * § 71. Jurisdiction of District Court of Hawaii. The District 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 4.37 St. at L. 565; Comp. St., § 7 Ibid. 10045. 8 Act of October 6, 1917, which 5 Promulgated March 22, 19,07, prohibits Trading with the Enemy, government printing office, Wash- 40 St. at L. 425, § 18, Comp. St., ington, A. D. 1907. § 3115y2ii. 6 Panama R. Co. v. Curran, C. C. A., 256 Fed. B. 768, 770. § 72] PHILIPPINE COURTS 355 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,^ Until the Act of June 14, 1900, which formally in- corporated the Territory of Hawaii,* there was no right to a grand jury, nor to the unanimous verdict of a petit jury, in Hawaii.* Where a will provides that vacancies in the board of trustees therein created should be filled "by the choice of H majority of the justices of the Supreme Court"; it was held: that the power of appoiiitment was conferred upon the justices of the Supreme Court as individuals and not in their official capacity.* The Territory of Hawaii is exempt from suit with- out its consent.* The Hawaiian statute which; as construed by the Supreme Court of the Territory, holds that, after gar- nishee process a summons may be served upon a non-resident defendant by leaving a copy at the place where he last had stopped in the Hawaiian Islands ; is constitutional.* § 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 pro- vince in the Philippine Islands in which civil government is established; which courts shall be open for the trial of all causes proper for their cognizance, and justice shall be therein im- partially administered without corruption or unnecessary de- lay. " ^ " The judicial power of the Government of the Philip- pine Islands shall be vested in a Supreme Court, Courts of First Instance, and courts of justices of the peace, together with such 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. ' ' ^ § 71. 1 31 St. at L. 158. § 72. 1 § 2160, Compilation Acts 2 31 St. at L. 141. See §§ 5 and of the Philippine Commission 1908, 83. Part VIII. the Judiciary, Title 39, 3 Hawaii v. Mankichi, 190 TJ. S. ch. 207. 197, 23 Sup. Ct. 787, 47 L. ed. 1016. z § 2161, Compilation Acts of the See Dorr v. TJ. S., 195 TJ. S. 138, 24 Philippine Commission 1908, Part Sup. Ct. 808, 49 L. ed. 129. ym ^^e Judiciary, Title 39, Ct. iSe Bishop's Estate, C. C. A., g^^ g^^ ^^^ ^j j^j^ ^^ ^^^^ ^33 St. at L. 691, 695). "Chap. 1369.- 250 Fed. 145. 5 Kawananakoa v. Polyblank, 205 U. S. 349. See infra, § 95. ^"^ ^et temporarily to provide for 6 Herbert v. Bicknell, 233 U. 8. the administration of the affairs of 70. civil government in the Philippine ^56 ORIGINAL JURISDICTION [§ 72 "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 injunctions, and for all other orders of the court which are not final in their character and do not involve a decision of the ease pending upon its merits. The ' interlocutory jurisdiction shall also in- clude the hearing of petitibns 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. inter- locutory jurisdiction shall also include, the power of appoint- ing notaries public^ as provided: in section thirty-three hundred and seventy-seven I hereof ." ^ "The Supreme Court shallcon- sist of a Chief Justice and six associate, judges, any five of whom when convened: shall fotm a quorum, and may transact any of the business of the court; but in the absence of a quorum the member or^ members; present may adjourn the court from time to time with i the -same effect ^s if all were present. The concurrence of at least four members of the court shall be nec- essary to pronounce a judgment. The word 'judges' or 'judges of the Supreme Court' when used in this title shall include the Chief Justice."* "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 ease of his absence at a session of the court, the judge present next in seniority to the Chief Justice shall preside.' The seniority '6f the associate judges shall be determined by the 'dates of their respective eom- islands, and for other purposes." heretofore provided by the 'Philip- * * * pine -Commiasion, subject i in all mat- "§ 9. That the Supreme Court and ters to sueli al(;eration and amend- the court of first instance of the ment as may be hereafter enacted Philippine Islands shall possess and by law." exercise jurisdiction as heretofore 3 § 2164 ( Philippine Commission 1908, Part 10 § 2199, Compilation Acts of the Villi the ■Juidiiciary,, Title 39, Ch. Philippine Commission 1908, Part 308. IT. S, V, Aticnza, 1 Phil. Eci). VIII. the Judiciary, Title 39, Ch. 358 ORIGINAL JUEISDIdTION [§ 72 of Courts of First Instance shall be of two kinds: (a) Orig- inal; and (&) Appellate."" "Courts of First Instance shall have originar jurisdiction: (a) In all civil actions in which the subject of litigation is not- capable of pecuniary estima- tion; (&) In all civil actions which involve the title to or pos- session 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 juris- diction of which is by law conferred upon courts of justice of the peace; (c) In all cases in which the demand, exclusive of interest or the value of the property in controversy, amounts to two hundred pesos or more; (d) In all actions in admiralty and maritime jurisdiction, irrespective of the value of the property in controversy or the amount of the demand; (e) In all matters of probate, both of testate and intestate estates, appointment of guardians, trustees, and receivers, and in all actions for annulment of marriage, and in all such special cases and proceedings as are not otherwise provided for; (/) In all criminal cases in which a penalty of more than six months' imprisonment or a fine exceeding two hundred pesos may be imposed; (g) Said courts and their ■ Judges; or any of them, shall have power to issue writs of injunction, mandamus, cer- tiorari, prohibition, quo warranto, and habeas corpus in their respective provinces and districts, in the manner provided in title forty-one hereof; (h) Of all crimes and offenses committed on the high seas or beyond the jurisdiction of anj^ country, or within 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, neverth^e- less, That the court first lawfully taking cognizance thereof •shall have jurisdiction of the same to the exclusion of all other courts ill the Philippine Islands."^* The several courts of 209. J3farcia v. Ambler, 4 Phil. Eep. VIII. the Judiciary, Title 29, Ch. 81. ^ . 209. ' 11 § 2204, Compilation Acts of the 12 § 2205, Compilation Acts of the Philippine Commission 1908, Part Philippine Commission 1908, Part § 72] PHILIPPINE COURTS 359 first instance in the Philippine Islands aihd the District Court of the Canal, Zone shall have jurisdiction of offenses committed within their respective districts, and concurrent jurisdiction with the District courts of the United States of offenses under this Act comm-itted upon the high seas and of Conspiracies to commit, such offenses as defined by section thirty-seven of the Act entitled ' ' An Act to codify, revise, and amend the penal laws of . the . United States, " approved M arch i fourth, nineteen hundred and nine, and the provisions of , such section for the purpose of this Act are hereby extended to the Philippine Islands and to the Canal Zone.^^ "Courts of First Instance shall have appellate jurisdiction over all causes arising in jus- tices' and other inferior courts, in their respective provinces.;" ^* "A jud,ge of ; First Instance shall have power to issue writs of injiinetion and to make orders appointing receivers in causes pending in the Court of First Instance within his district, and all other preliminary and interlocutory orders, when he is within the , district but without' the province; and to hear and deter- mine, when within the district but without the province, any interlocutory motion or issue after i dug and ; reasonable notice to the parties; hut all final hearings shall be had withdnl 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 i or for release upon bail or reduction of bail in any Court of First Instance, the VIII. the Judioiary, Title 39, Oil. , risdietion " did not put in force in 209 ; tJ. S. V. Sweei, 1 Phil. Eep. 18 ; the Philippines the law, practice, Legirda v.' Valdfez, 1 Phil. Eep. 146; and procedure in force in ' adtniraiiy TJ. S. V. Fowler, 1 Phil. Kep. 614; courts in the United States, I van- TJv S. V. Dasal, 3 Phil. Eep. 6; Bene- eich v. Odliii, 1 Phil. Eep. 284; dicto V. De la Eama, 3 Phil. Eep. Heath v. Stea,mer "San Nicholas,;' 34; Springer v. Odlin, 3 Phil. Eep. ,7 Phil. Eep. 532. For annulment of 344; Artacho v. Provincial Board of marriage and divorce see Benedicto Pangasinan, 4 Phil. Eep. 670; Oeh- v. De la Eama, 3 Phil. Eep. 34'; lers V; Hartwig, '5 Phil.' Efip. 487; Ihanez v. Ortiz, 5' Phil. Eep. 325. Gastano v. Lobingier, 7 Phil. Eep. 13 40 St. at L. 425, § 18, Comp. 91; Eafferty v. Judge of First In- St., § 3112y2ii. stance,- 7 Phil. Eep. 164. See, aflso, 14 § 2206, Compjjation Acts ofithe chapters 238 and 256, and cases Philippine Commission 1908, Part there cited under : different subjects Villi the Judiciary, Title' 39, Oh. mentioned in this section. * The 209. ' phrase "admiralty and maritime ju- '360 ORIGINAL JURISDICTION [§ 72 hearing may be tried at any place in the judicial district which the judge shall deem convenient. All criminal triails 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 pro- vided in section twenty-two hundred and twenty-seven here- of." i« "In every province in which there now is, or shall here- after be established, a Court of First Instance, courts of justices of the peace shall -be maintained in every 'organized municipality. " ^'^ "In all civil actions including those men- tioned in sections twenty-six hundred and ninety to twenty- Seven hundred, inclusive, hereof, arising in his inunioipality and not exclusively cognizable by the Court of First Instaiice, the justice of the peace shall have exclusive original j"urisdie- ition where the value of the subject-matter or amotint of the demand does not exceed two hundred pesos, exclusive of- interest and costs; and where such value or demand exceeds two hun- dred pesos but is less than six hundred pesos the' justice of the peace shall have jurisdiction concurrent with the Court of B^irst Instance. In forcible entry and detainer proceeding's the justice shall have original jurisdiction but he may reeeivt evidence upon the question of title therein solely for the pur- pose 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 ad- judication is brought before him it shall be his, d^ity, upon discovering the same, to suspend further proceedings therein and certify the cause forthwith to the Court of First Instance. The jurisdiction of a justice of the peace shall not extend to civil actions in which the subject of litigation is not capable of pecuniary estimation, except in forcible entpy and detainer cases; nor to those which involve the legality of any, tax, impost or assessment; nor to actions involving admiralty' or maritime 16 § 2229, Compilatioti Acts of the 16 § 2234, Compilation Acts of tlie Philippine Commission 1908, Part Philippine Commission 1908,' Part VIII. the Judiciary, Title 39, Ch. VIII. the Judiciary, Title 39, Ch. 209. U. S. V. Tan Banco, 4 Phil. 210. E«p. 325. § -72] l^HILIPPINE COUBTS 361 j Jurisdiction,; nor tO' matters of probate, the appointment of gjUardians, trustees, or receivers; -nor to actions for annulment of marriage. " " "The territorial jurisdiction of a justice of the peace, except in the case of ex ofKcio justices and in other special cases provided by existing .law, shall, be coextensive with his municipality, and the civil process of his court shall iipt run, beyond the same except to summon a defendant im- pleaded with one yfho resides and has been served therein as pro,yided,in section twenty-four hundred and, seventy-nine here- of,, Forcible entry and detainer actions shall be brought, in the municipality, ^v■here the subject-matter thereof is situatesd- 4.11 other p.roceedings sliall be instituted in the municipality wherein a defendant j-esides or may be served ■yvith summons.'' ^* ('Justices of Ihc peace, except in the city of Manila, shall .have original jurisdiction to try parties charged with misdemeanors, oft'enses, and infr,actious of municipal ordinances, arising /viKith' in the. municipality, in which the penalty provided by law d,oes not; exceed, six .months' imprisonment or a fine of two hundred pesos,, or, both such imprisonment and fine.'',^® "Concurrent jurisdiction is hereby conferred upon the justices of the peace for, the municipalities of Iloilo and Buenavista over causes arising in the barrio now known as Sanao, on the Island of Grnimaras, in the Province of Iloilo, anything in existing law to ; the contrary notwithstanding: Provided, haufever, That the jjistice of the peace first acquiring jurisdiction over any cause shall have, exclusive jurisdiction thereof.'.'^' "The gpyernpr 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 Palawan. His jurisdiction as justice of the peace shall be concurrent in every municipality and in every jaart of said province with that of the proper justice of the peace of the municipality. I IT § 2237,.,CompilatiQm Acts of the • 19 § 2239, Cpmpilatiou A(;ts of the Philippine Commission 1908, Part Philippine .Commissiom 1908, Part VIH. the, , Judiciary, Title 39, Ch. VIII. the Judiciary, Title 39, Ch/ 210. , 210. 18 § 2238,, Compilation Acts of the 20 § 2240, Con^pilation Acts of the Philippine Commission 1908, Part Philippine Commission- 1908, Part yill.-,the Judici?iry, Title 39, Ch. VIII. the Judiciary, Title 39,_ Ch. 210. '''-'■ '. . 210. 362 ORIGINAL JURISDICTION [§'72 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."" "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. " ^^ " The Governor-General is authorized, with the advice and approval of the Philippine Commission, to appoint a justice of the peace and auxiliary jilstice of the peace, from time to time, for the Island of Basilan, iiotwithstanding said ' island has been included within the mu- nicipality of Zamboanga by Act Numbered Twenty-one of the legiislative 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. ' ' ^^ "The commission has also passed statutes regulating the prac- tice in these courts in civil ^* and criminal procedure. ^^ The power to enact such legislation is given by the Act of July 1, 1902.28 21 § 2241, Compilation Acts of the Philippine Commission 1908, Part - Philippine Commission 1908, Part VIII. the Judiciary, Title 39, Ch. VIII. tfie Judiciary, Title '39, Ch. 210. ' ' 210. 81 Ibid. Title 41, chaps. 29-275, 22 § 2242, Compilation Acts of the §§ 2403, 3248. Philippine Commission 1908, Part 2B Ibid. Title 42, chaps. 276-290, VIII. the Judiciary, Title 39, Ch. § 3249, 3375. 210. 26 39 St. at L. 691, 695; un- 23 § 2443, Compilation Acts of the changed in this respect by Act of I 73] UNITED STATES COURT POE .CHINA . 363 \.. "The Act of F!ebrvi9 George 'II, enacted in 1757, creating the offense of ol)taining money or goods under fal^e pretenses, and subsequent amendments to the same.*.. Tha, court ,has jurisdiction of suits,, betw,een. citizen^i.of the I United States in controversies) which arose, in China.*. The court may grant a divorce to an American citizen' 'from his wife who is a Chinese.^ This judicial 'authority of the United States Court in China is rejst.ricted ,to the five ports .mentioned in the treaty with that nation,'' namely, Kwang-Chow,. Amoy, Fuchow, Niugpo and Shanghai.' The jurisdiction of Consular courts is explained in tlie 'succeeding section.^ An action may be brought io, any one; ,of the United ^States upon a money judgment recovered in a consula;r court of China.^" In the State of New 2 Act of June 30, 1906, 34 Stat. ' 5 Swayne & Hoyt, Inc. v. Everett, at L. 814, Chap. 3934, "An Act ere- G. C. A., 255 Fed. 71. atilig a United States court for CM- 6 Eichards V. Eichards, Lobingier, na and prescribing the jiifisdiction J. May 1, 19i5. ' '38 St. at L. 1122. thereof." ' " '''J-'. Note' Act of March' 4, 1915, Comp. 3 As to the efeect'of a plea of St., § 769ea. ' former acquittal, based upcin pro- 7 34 St.^ at L. 814. See 9 Op. eeedings in the formfer TTnited States A. 6. 294.' Consular Court of Shanghai, see 8 Treaty of Dee. 31, 1846, Mal- Price: V. IT. S., 156' Fed. 950, 85 ley's Treaties, I, 196. C. C. A. 247, 13 Ann. Cas. 483, 15 9 Infra, §74. L.' E. A. (N. S.) 1272. Biddle v. 10 Newman v. BaaCh, 89 Mise; (N. U. 8., C. C. A., 156 Fed. 759. Y.) 622; ' 4 Biddle v. TJ. S., C. C. A., 156 Fed. 950. 366 ORIGINAL JURISDICTION IS 73 York an action upon such a judgment is not barred for twenty years.^1 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, within two. ' ' ^'^ Pinal decrees and judgments of this court may be brought for review to the Circuit Court of Appeals for the Ninth Circuit, by appeal or writ of error, as the case may be.^' Upon an appeal from this cotirt, the record in this court should show an allowance of the appeal.^* Unless the appeal is allowed in open court, a cita- 11 Ibid. 12 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 enact a statute, as such, but the lan- guage of the rule shows that it can- not be regarded ag 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 be adapted to the social and business conditions of the period of suit. In this way we can explain not only the limitation of two years for unwritten engage- ments, which in the then immature and unsettled condition of our busi- ness in China, may have been emi- nently proper, but the omission of the exceptions I have noticed above. I held, thereforey that Rule XV. of the Regulations of 1864, 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 coiirts 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. . 13 § 3, 34 St. at L. 814, 815, Jud. Code, § 1.31, 36 St. at L. 1087. 14 Steamer Spark v. Lee Choi Chum, 1 Sawyer 713. § 74] consuijAb courts 367 tion should be issued and served,^" and the proceedings should conform in other respects to those of appeals to the Cii^cuit Court of Appeals. §74. Jurisdiction of the Consular Courts. The Revised Statutes provide as follows: "To carry into full effect the provisions of the treaties of the United States with China, Japan, Siam, 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."^ "The officers mentioned in the preceding section are fully empowered to arraign and try, in the manner herein provided, all citizens of the United States charged with offenses against law, com- mitted 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 neces- sary to carry this authority into execution. " ^ " 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 enter- tain 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 mat- ters, at the port where, or nearest to which, the cause of contro- versy arose, or at least where, 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. ' ' ' "Jurisdiction in both criminal and civil matters shall, in all cases, be exercised and enforced in conformity with 15 Ibid. Ann. 819, Pierce's Fed. Code, §74. ITJ. S. E. 8., §4083, 2 §4246. Fed.' St. Ann. 819, Pierce's Fed. 3TJ. S. E. S., §4085, 2 Fed. St. Code, §4245. Ann. 819, Pierce's Fed. Code, 2U. S. E. S., §4084, 2 Fed. St. §4247. 368 OKIGINAIi JURISDICTION [§ 74 the laws of the United ;States, which . are :hereby, , so far, as is necessary to execute such, treaties, resspectively, and so far as they are suitable to carry the same into effect, extendesd over all citizens of the United Statps in thc^e countries, and- over all others to the extent that the terms of, the- treaties, respectively, justify or require. But in all eases where such laws are not adapted tp 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 deficiencies. " * " Each of the consuls mentioned jin section forty hundred and, eighty-three, at the port for which he is appointed, is authorized uppn facts, within his own knowledge, or which he has good reason |to,J)elieve true, or upon complaint 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 o^fthe United States charged with committing in the country an pffense against law ; and to arraign and try any such offender; and to sentence him to punishment in the manner herein prescribed. " ^ " The consuls and com; mercial agents of the United States at islands or in countries not inhabited by any civilized people, or recognized by any treaty with the United States, are authorized to try, hear, and determine all eases 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 authorized and empowered where the United States ,have exclusive jurisdictipn. They are also invested with the powers conferred by the provisions of sections forty hundred and eighty-six and forty liundred and eighty -seven for trial of 4 IT. S. B. S., §4086, 2 Fed. St. B U. S. R. S., §4087, 2 Fed. St. Ann. 820, Pierce's Fed. Code, Ann. 820, Pierce's Fed. Code, §4248. §4249. § 74] CONSULAK CQUKTS , 369 s offenses or misdemeanors.',' ^,,f' Any consul when sitting alone may also decide all, eases in which the fine imposed does not exceed five hundred dollars, or the term of imprisonment does not exceed ninety da,ys ; but in all suph cases,, if the fine exceeds one hundred dollars, or the term of imprisonment for misde- meanor exceeds sixty days,, the defendants or any of them, if there be more than one, may take the case, by appeal, before the minister, if allowed jurisdiction, either upon errors of law or matters of fact, under sueli rules as^may be prescribed by the minister for the prosecution of appeals in such eases." '' "Capi- tal eases for murder or insurrection against the government of either of the countries hereinbefore inentioned, by citizens of the UniTied States, or for 'offenses against the public, peace amounting' to felony under the laws of the United States, inay be tried before the minister of the United' States in the country where the offense is eommittfed 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."* "Bach of the ministers men- tioned in section forty , hundred and eighty-three shall, in the country to which he is appointed, .be fully authorized to hear and decide all cases, criminal and civil, -which may come before him, by appeal, under the provisions of this Title, and to i^sup all processes necessary to execute the power conferred upon liim ; and he is fully empowered, to decide finallj-.any case upon the evidence which comes up vs^ith it, or to hear the partie,s further, if he thinks justice \vill be promoted thereby; and he niay a)s- prescribe the miles upon which hew trials may be granted,, either by the consuls or by himself, if asked for upon sufficient 6U. 'S.' K. 'S;, §4088, 2 Fed. ' St. '"stJ." 's. B.' S., '§40,90,' 2 Fed. St. Ann. 820, Pievee'a Fed. Code, 'Ann. 821, Pierce's Fed. Code, §4250. . §4252. ,J tV. S: R."S., §4089, 2 Fed.'St. ;' Ann. 821 ; Pierce's Fed'. Code, § 4251. Fed. Prac. Vol. 1—24 370 ORIGINAL JURISDICTION [§ 74 grounds."^ "In all eases, criminal and civil, the evidence shall be taken down in writing in open court, under such regulations as may be made for that purpose ; and all objections to the com- petency or character of testimony shall be noted, with the ruling in all such eases, and the evidence shall be part of the ease. ' ' ^^ "It shall be the duty of the ministers and the consuls in tihe countries mentioned in section forty hundred and eighty-three, to encourage the settlement of controversies of a civil character, by mutual agreement, or to submit them to the decision of referees agreed upon by the parties; and the minister in each country shall prepare a form of submission for such cases, to be signed by the parties, and acknowledged before the consul. When parties have so agreed to refer, the referees may, after suitable notice of the time and place of meeting for the trial, proceed to hear the ease, and a majority of them shall have power to decide the matter. If either party refuses or neglects to appear, the referees may proceed 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. ' ' ^i In all criminal eases 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. " ^^ " 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- 9 TJ. S. E. S., § 4091, 2 Fed. St. 11 U. S. R. S., § 4098, 2 Fed. St. Ann. 821, Pierce's Fed. Code, Ann. 822, Pierce's Fed. Code, i 4253. § 4260. 10 TJ. S. E. S., §4097, 2 Fed. St. 12 U." S. E. S., §4099, 2 Fed. St. Ann. 822, Pierce's Fed. Code, Ann. 823, Pierce's Fed. Code, § 42.59. § 4261. i 74] CONSUIiAB COURTS 371 spectively. " ^^ "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 tbe discretion of the officer who decides the ease, but subject to the regulations herein 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 person who refuses or negledts 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 minister in the country. "1* "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 concur in opinion, and the minister also approves of the conviction. But it shall be lawful to convict one put upon trial for 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. " ^^ " 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, appointing 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. "^^ "No fine imposed by a consul for a contempt committed in presence of the court, or for failing to obey a summons from the same, shall exceed fifty dollars ; nor shall the imprisonment ex.ceed twenty- four hours for the same contempt."" "Any consul, when sitting alone for the trial of offenses or misdemeanors, shall 13 U. S. B. S., § 4100, 2 Fed. St. 16 TJ. S. R. 8., § 4103, 2 Fed. St. Ann. 823, Pierce's Fed. Code, Ann. 823, Pierce's Fed. Code, § 4262. § 4265. 14 U. S. R. S., §4101, 2 Fed, St. 17 U. S. E. S., §4104, 2 Fed. St. Ann. 823, Pierce 's Fed. Code^ Ann. 824, Pierce 'a Fed. Code, §4263. §4266. 16 TJ. S. E. S., § 4102, 2 Fed. St. Ann. 823, Pierce's Fed. Code, § 4264. 372 ORIGINAL JURISDieraON [§ 74 decide finally all eases where the fine imposed does not exceed one hundred dollars, or the term of imprisonment does not ex- ceed sixty days."^* "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, oi- whenever he is of opinion that severely punishments 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 approved 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 differ in opinion from the consul, the ease, without further proceedings, together with the evidence and opinions, shall be referred to the minister for his adjudication, either by entering up judgment therein, or by remitting the same to the i consul with instruction how to pa?oceed therewith.''^® "Bach 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 five 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 denianded exceed five hundred dollars, he shall summon, to sit with him on the hearing of tho case, not less^ than two nor more than three citizens of the United States, if such are residiijg,at the port, who shall be taken from a list which had previously been submitted to and approved by the minister, and 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 18 tJ. S. E. S., §4106, 2 Fed. St. 19 U. S. R S., §4106, 2 Fed.' St. Ann. 824, Pierce's Fed. Code, Ann. 824, Pierce's Fed. Code, § 4267. § 4268. § 74] . • CONSULAR COURTS BIS reasons therefor as he thinks properi to assign ; but' the consul sliall give judgment in the ease. '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 ma> appeal to the minister, 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 minis- ters, respecti-vely, in the countries named in' section four thousand -and > eighty -three shall be exercised' by them ■ in those countries, respectively; wherever theymdf be."^* ^'The- juris- diction of such ministers. in' all matters of civil redress, or of crimes, except in capital cases for murder or insurrection against the governments of such countries, respectively, or for offenses against the public peace amounting to felony under' 'the laws '6f the ' United States, shall' ' be ' appeMte only ; Provided, That in cases where a consular ofScer is interested, either as party or witness, such minister shall have original jurisdiction. " *^ ' ' All such officers shall be responsible for their conduct to the United States, and to the laws thereof, not only as diplomatic or consu- lar officers, but as judicial (rfficers, when they perform judicial duties, and shall be held liable 'for' all negligences and miscon- duct as public officers."*^ /'The President is authorized to appoint marshals for such of the consular courtis 'in those coun- tries as he may think propery 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.^"** "It shall be the duty of the marshals, respectively, to execute all process issued by the ministers 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 80 tr. S. E. S., §4107, 2 Fed. St. 23 XT. S. K.'S.; §4110, 2 Fed. St. Ann. 824, Pieree's Fed. Code, Ann. 825, Pierce's Fed. Code, § 4269. § 4272. 21 U. S. U.S., §4108, 2 Fed.- St. ' 24lJ. S. B. S., §4111, 2 Fed. St. Ann. 825, Pierce's Fed. Code, Ann. 825, Pierce's Fed. Code, § 4270. § 4273. No longer in Japan and 88 U. S. E. S., §4109, 2 Fed. St. iChina. Treaty of Nov. 22, 1894, 29 Ann. 825, Pierce's Fed. Code, St. 'at li.''853. ' §4271. '' 374 ORIGINAL JURISDICTION ' f§ T4 issued, and to conform in all respects to the regulations pre- scribed by the ministers, respectively, in regard to their duties. " ^^ " Bach marshal, before entering upon the duti-es of his office, shall give bond for the faithful performance thereof 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 transmitted to the Secretary of the Treasury, and a certified copy thereof be lodged in the office of the minister." ^^ "When- ever 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 Secretary of the Treasury, or the minister to whom the application is made, is satisfied that there is probable cause of action against the mar- shal. " ^"^ ' ' Upon a plea of non est factum, verified upon oath, or any other good cause shown, the court or the consul or min- ister trying the cause may require the original bond of the marshal in those countries to be produced; and it shall be the duty of the Secretary of the Treasury to forward the original bond to the court, or consul, or minister requiring the same. ' ' ** "All rules, orders, writs, and processes of every kind which are intended to operate or be enforced against aiiy 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. " ^9 "In order to organize and carry into effect the system of jurispru- dence 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 25 IT. S. R. S., §4112, 2 Fed. St. 28 U. S. E. S., §4115, 2 Fed. St. Ann. 825, Pierce's Fed. Code, Ann. 826, Pierce's Fed. Code, § 4274. § 4277. 26 TJ. S. E. S., § 4113, 2 Fed. St. 29 U. S. E. S., § 4116, 2 Fed. St. Ann. 826, Pierce's Fed. Code, Ann. 826, Pierce's Fed. Code, § 4275. § 4278. 27 TJ. S. E. 8., § 4114, 2 Fed. St. A.nn. 826, Pierce's Fed. Code, § 4276. § 74] CONSULAR COURTS 375 by any of the consuls ; the mode of executing and the time of returning the same; the manner in which trials shall be con- ducted, 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 securitjr which shall be required of the party who appeals from the decision of. a consul ; and shall make all such fiirther decrees and regulations from time to time, under the provisions of this Title, as the exigency may demand. ' ' *' "All such regulations, decrees, and orders shall be plainly drawn up in writing, 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 signify 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, bj 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- fied by Congress; and it shall take effect, from the publication or any subsequent day thereto named in the act."^^ "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."'^ "It shall be the duty of the minister in each of those countries to estab- lish a tariff of fees for judiciail 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 accounits, both of receipts and . expenditures, shall be kept by 30 tr. S. E. S., §4117, 2 iPed. St. 32 U. S. E. S., §4119, 2 Fed. St. Ann. 826, Pierce's Fed. Code, Ann. 827, Pierce's Fed. Code, § 4279. § 4281. 31 U. S. E. S., §4118, 2 Fed. St. Ann. 827, Pierce's Fed. Code, § 4280. 376 OKIGINAIi .JJVIBISDICTION [§ 74 the minister and consuls , and iti-ansmitted annually to the Secre- tary of State. "^' . "The President, when provision is not other- wise made, is authorized to allow, in the adjustment of the accountSi 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 hundred 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.?,'^* 1'The provisions of this Title, so far as the same relate to crimes and i offenses committed by citizens of the. United States, shail extend to Tui-key, under the treaty with the iSublime Porte o.l: May .seventh, eighteen hundred and thirty, , and shall- he executed in the Ottoman do- minions in conformity • with the provisions of the treaty, and of. this Title, by the minister and the consuls, appointed to reside therein, whbiare hereby ex-officio vested with the powers herein conferred upon the ministers and consuls in China, for the pur- poses above expressed, so far as regards the punishment of crime, and also for the exercise of. 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 na- tions.'' ^* "The provisions 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 tc 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 33 XJ. S. E. 8., §4120, a Fed.-St. China Treaty of Nov. 22, 1894,' 29 .\mi. 827, Pievep'a Fed. Code, St., at L. SS.'!. S 4282. , ■ _ 35 U. S. R. S., § 4125, 2 Fed. St. 34 TJ. S. U. S., §4121, 2 Fed. St. Ann.,. 828, Pien'e 's Fed. Codr, .\nii. 829, Pierce's Fed. Code, §4287. ' - § 428.'!. No longer in .Japan and §■74] cOnstjlar courts ' STY subjects and citizens of the United States shall be darried befor^ the Persian tribunal to which such matters are usiially referred, at the place where' a consul or ' agent of ' the United ^ States toaly reside, and shall be discussed and decided according to teqiiity, in the presence of an employe of the consul tit a'gBnt of the United States; and it shall be the "duty of the consular Officer to attend the trial in person, and see 'that justice isaditaiii- 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 eolisuls, in accordance with such regulations as shall be mutually agreed' upon by the minister of the United States for the time being; 'and the ministers of such foreign powers, respectively, 'wfaiich regulations shalr 'from time to time be submitted to the Secretary of State'.'" ^^ "The pro- visions of this title so fai* as -the same are in conformity with the stipulations in the Existing 'treaties' between the 'United States and Tripbli, Tunis, Morocco; 'Muscat; and the'Saifloari or Navi- gator Islands, respectively, shall extend to those covintries, ' arid shall be executed in Conformity with the^prOvisionsof the treaties and of the pro'visibns of this title by theeorieuls ap'pointed by the United States to reside therein, who are her'eby 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 -flair as the 'Same can be exercised under the provisions of treaties' between th'e United States and the several countries mentioned iin this section, and in accordance with the. usages for thei countries in th-eir inter- course 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 coiisul-gerieral or consul shajl be, clothed with judicial authority, and securing the right of , tibial to American citizens, residing therein before such consul-general or consul; and containing provisions similar to; or like those contained in the ferea ties with the' governments named in this act, then si^id title. So far as the same may' tie applicable, shall have full force in reference to said treaty ^ and s]:fal] ex^^nd 36 U. S. R. S., §4126, 2 Fed. St. Ann. 829, Pierce's ¥ed. Cofle, ■ "■ §4290. 378 ORIGINAL JURISDICTION | § 74 to the country of the government negotiating the same." ^^ "If at any time there be no minister in either of the, countries herein- before 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. ' ' ^* "The provisions of this Title relating to the jurisdiction of con- sular and diplomatic officers over civil and criminal eases in the countries therein named, shall extend to any country of like character with which the United States may hereafter enter into treaty relations."*' "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 consulygeneral, consul or vice-consul or a i consular agent."*" Formerly the acting consul," or acting, consul- general *2 could not exercise the jurisdiction conferred by those statutes.** Where no treaty otherwise provided, it was the opinion of 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 no't judicial.** 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, The Netherlands (and colonies), Portugal, Rou- mania, Salvador, Sweden and Norway, and Tripoli.*^ Similar 37 U. 8. R. S., §4127, 2 Fed. St. 41 Acting Secretary Adee, March Ann. 829, Pierce's Fed. Code, 22, 1894, Moore's Dig., §264, II., §4291. ~ 622. 38 U. S. E. S., §4128, 2 Fed. St. 42 Moore, §§261-284, Secretary Ann. 830, Pierce's Fed. Code, Fish, Feb'y 9, 1876, Moore's Dig. §4292. §264, II., 62a. 39 U. S; E. S., § 4129, 2 Fed, St. 48 Ibid. Ann. 830, Pierce 's Fed. Code, 44 8 Op. A, G. 830. § 4293. 45 Consular Regulations, 1896, V. 40 IT. S. E. S., §4130, 2 Fed. St. 88. Ann. 830, Pierce's Fed. Code, §4294. Act of Feb'y, 1876, as amended by 19 St. at L. 2. iJi] CONSULAR COURTS 379 powers were given by a treaty with Russia;*® but whether that will be in force at the time this book is > published, is a doubt- ful question. In Sweden and Norway at least, this power does not extend- to : public ofEenses, 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."*'' They have also power to adjust damages suffered at sea and in matters of wrecks and salvage, granted to tbeiJi by, treaties with Austria-Hungary, Belgium, Bolivia, Borneo, China, Co- lumbia,, Dominican Republic, Ecuador, France, Germany, Greece, Guatemala^ Hayti, Hondu;ras,t Italy, Japan, Corea, Liberia, Ma- dagascar, Maskat, Morocco, The Netherlands (including colo- nies), Ottoman Porte, Paraguay, Roumania, Salvador, Siam, Spain, Sweden and Norway, Tripoli, and Tunis.** These treaties are not in violation of the clause of the Federal Constitution which gives to the Federal courts jurisdiction in all eases of admiralty and maritime jurisdiction.*' The court of ad- miralty has consequently no jurisdiction of the claims for trans- portation to Holland made by Dutch seamen against a Dutch vessel; *" nor, it. ha^,. been held, of a suit by an American seaman against a Dutch ship to recover wages.^^ , In Maskat and the Ottoman dominions, they, have the right, in the absence of the owner or agent, to receive the property of American citi- zens wrecked or captured from pirates.^^ Conventieftis secure to them the right to take depositions in Austria-Hungary, Bel- gium, Columbia, Ftance, Germany, (for American citizens only), Italy, Kongo Free State, The Netherlands, Roumania, Servia and Salvador,^* The advice of a consul in a foreign port gives- the master of a vessel no justification for an illegal act.^* His action in dischar^ng a seaman in a foreign port is not con- clusive where the latter subsequently files a libel for wages,^* and where he has discharged seamen at the request of a master, « Ibid. Bl The Albergen, 223 Fed. 443. 47 15 Op. A. G. 178i B2 Consular B«gulations, 1896, V. 48 Consular Eegulations, 1896, V. 90. 90. 53 Ibid. V. 87. 49 The Albergen, 223 Fed. 443. 64 Wilson v. The Mary, Gilpin, 31. 50 The Eindjani, C 0. A„ 254 55 Campbell v. The Uncle Sam, Fed. 913. McAllister 77, 380 ORIGINAL, JDBISDICTION [§74 the consul canuot detain them in prison as a punishment.^^ A consul has no authority to order the sale of a ship in a foreign port, whether on complaint of the crew or otherwise.*'' 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 riioneythus illegally collected and retained.** He has no ahthority to demand dnd receive from the master of a vessel, the money and effects belonging to a deserter from the sanie,*' nor to retain the papers of vessels ■tvhich he suspieets are destined for the slave trade.*" American consuls have no' authority to require 'niasters of American ships to carry tO the United States for trial, 'persons accused of crime. *^ The constitutionality of the statute granting judicial powers to consuls ill countries where Christianit.y does not prevail has been sustained under the treaty' power.^^ The consular courts 56 Jordan y, Williams, ,1 Curtig,, countries thpy were, by treaty stipu- 69. , latjons, usually; clothed with au- 57 6 Op. A. G. 617. 58 Ibid. 6914 Op. A. G. 520. , 60 9 Op, A. 6.,;426.,, 61 7 dp. A. G. 7^2. 62iJe lioss, 140 V. S. 4.53/462- 46.3/ 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 jurisdietioii over vessels and seamen of their country, to watch the. interests pf their coun- trymen and to assist in adjusting their disputes and protecting their eoniineree, go^s back to a' Very 'early period, even preceding what are termed the Middle Ages. During those ages these eormnereial magis- trates, ^generally designated as con- suls, possessed to some extent a' rep- resentative character, sometimes flis- rharging judicial and diplomatic functions. In other than Christian thority to hear complaints against their countrymen atid 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 oh 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 procjeedings 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 enforce confession from parties ac cused, it was a matter of deep in- terest to Christian governments to § 74] CONSULAR COURTS 381 have jurisdiction of crimes committed on water within the ter- ritory of their district.*' A consular court has jurisdiction of a criminal offense; such as murder, committed in a port of its district by a citizen of a 'foreigil i State, such as a' British subject, while duly enrolled as a seaman on a merchant vessel of' the United States.** By ra regulation of the Minister to CJiina, approved by the ,S|;ate Departme^nt,*^ when a criminal prosecution was pending* in anyi consular district of China against a citizen of. the United States, who might be found in another district;' thd consul before whom the J)roseeuti()n ig pending might issue a warrant for the arrest, under which, when btised by 'th,e consur,,of the latter district, the accused might be. arrested and transported to, the, former district for trial.*® The State- Department has expressed' the opinion : that the statutes confer no jurisdiction over citizens of th6' United States serving on board foreign vessels of war;*'' nor authority to make a regulation requiring citizens of the United Statei? to register their names, nor power to enforce such, a regulation judicially; ** nor to banish a convict to China or another foreign country ; *' nor to try a criminal charge against toyone who is not a citizen of the United States:'* nor a regulation con- cerning the importation of fire-arms and ammunition into a port, with the government of which there is no treaty.?^ , , withdraw the trial of their subjects, 63 ^e Boss, 140 IT. S. 453, 11 Sup.' when charged with the oommission 897, 35 L. ed. 581. of a public offense, from the arbi- 64 Ibid. ■ ' trary and 'despotic action of the 66 Secretary Olney, Feb 'y 2, 1897. local officials. Treaties conferring 66 Moore's Dig:., § 263, II., 621. such jurisdiction- upon these consuls 67 Mr. Cadwalader, November 26, were essential to the peaceful resi- 1875, Whatton's' Dig., § 125, Vol. I., dence of Christians within those p. 809. eoufitries and the successful prose- 68 Secretary Fish, "February 26,' cution of commerce with their peo- 1873, Wharton's Dig., § 125, Vol pie. ' The' trealty-making power vest-'' I,, p. 803: '■'' ed in our governmtent extends to all 69 Mr. Fish,. Septemlier 10, 1870, proper subjects of ' negotiation *ith Wharton's Dig., '§'125; Vol.' I., p. foreign governments. It can, equally 805. ' ' with' any' of the former or ptesent 70 Mr. Fish, January ' 8, 1873, governments of Europe, make treat- Wharton's Dig., §125, Vol. I., p. ies proWding for the exercise of ju- 808. ' ' "" dieial authority' in other', countries 71 IflstruetiOn of ■ August 15, 189o, by its officers appointed to reside Moore's Dig., §263, I., 622, tliorcin," •' ' 382 ORIGINAL JURISDICTION [§74 The provisions of the Constitution which guarantee trial by jury under an indictment by a grand jury do not apply to the consular courts,''^ nor to their jurisdiction over persons charged with crimes committed within their districts,''* or upon vessels of the United States. ''* In the trial of a crime before a consular court, the accused should have an opportunity of examining ^!tSe Boss, 140 U. S. 453, 464- 465, 11 Sup. Ct. 897, 35 L. ed. 581, 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 aeeusation 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 laws 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 impossibil- ity 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 A,mer- 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." 73 Ibid. 74 Ibid, § 74] CONSULAR COURTS 383 the complaint against him or should be presented with a- copy stating the offense; he -has committed.'''* At least in the absence of an act of Congress authorizing proof by the depositions of witnesses beyond the jurisdiction, he is entitled to be confronted with the witnesses against him and to cross-examine them.''® He has the right to be represented by counsel.''"'' The State -Department has disapproved the use of torture to elicit testi- mony, although authorized by the law of the country where the consul holds court,'''* and the infliction of flogging as a punishment for wife-beating.'''' The Attorney General has ex- pressed the opinion that a consular court cannot execute a sen- tence 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.*" The State De- partment 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 Depart- ment, and the President's views in the premises shall have been received.'^ Consuls exercise in the Turkish dominions, by usage, the power to adjudicate controversies between Christian citizens of the United States and the trial of suits by foreign Christians against the same.*^ Citizens of a foreign country, who are not in the employ of the consulate, nor enrolled on American ships, can only sue in the courts of the United States by comity.®^ 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." 7B Ibid. *2 Op. A. G. 565 ; Consular Eeg- 76 Ibid. ulations, XXX, 620. See IT. S. E. 77 Ibid. S., § 4125, 2 Fed. St. Ann. 829, 78 Assistant Secretary Hay, Au- Pierce's Fed. Code, §4291, quoted gust 16, 1880, Wharton's Dig. (2nd supra. ed.) , § 125, Vol. I, p. 810. 83 Acting Secretary Davis, August 79 Moore's Dig., §266, Vol. II, 11, 1882, Moore's Dig., §260, Vol. p. 632. - II,/p. 604. 80 14 Op. A. G. 522. 84 11 Op. A. G. 474. 81 Wharton's Dig., §125, Vol. I, p. 819. 384 Original jurisdiction [§ 74 In Oriental countries^ consuls may probate wills.** They have panted decrees of divorcei*® In Turkey, the consular courts have exclusive jurisdiction to decide who are the heirs and widow of an American citizen who died when there domiciled.*'' 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 aban-- doned their residence or have never resided there.** 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 the validity of mortgages and bills of sale,*' 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 & written con- tract.'° The power of the ■ Secretary ■ of State to exercise the right to review by appeal a consular decision or the exercise of other judicial functions, ihas been said to be doubtful.®^ It has been said that where the . consul acts beyond his jurisdiction, his order may be set aside by the Secretary of State or the President, but that, in the absence of a treaty giving such au- thority, this cannot be dope in case of an erroneous decision upon the merits within the consular jurisdictioij.'^ A person imprisoned within the Unite(i States by the order of a consul or a,cpnsula,r court acting beyond its , jurisdiction may, in a proper ease, haye a review by habeas corpus.®* Except pos- 85 Secretary Evarts, March 15, 89 Assistant Secretai^ Eockhill, 1879,: Moore's Dig., §265, Vol. II, Oct. 9, 1896, Moore's Dig., §263, p. 626. II, 622. _ 86 See Naggar 's Case in Cairo, 90 Assistant Secretary Hunter, Egypt, Moore's t)ig., § 265, Vol. II, Sept. 3, 1874, Moore's Dig., §265, p. 626. Eegulations concerning di- II, p. 627. vorce by Minister of Japan were 91 Assistant Secretary Strobell, disapproved; Secretary Fish, De- January 16, 1894, concerning the cember 26, 1870, Wharton's Dig. Madagascar Treaty, Moore's Dig., (2nd ed.), § 125, Vol. I, p. 807. § 266, Vol. II, p. 631. See Se Ross, 87 Decree of Turkish Council of 140 U. S. 453, 11 Sup. Ct. 897, 35 Ministers, Moore's Dig., §265, Vol. L. ed. 581. II, p. 627. 92 Pacific Mail S. S. Case, by Sec- 88 Mr. Fish, December 20, 1870, retary Seward, Moore 's Dig., Au- Wharton's Dig., § 125, Vol. I, gust 18, 1868, | 265, Vol. II, p. 629. p. 807. See Dainese v. Hale, 91 XT. 98 Be Boss, 140 V. S. 453, 11 Sup. 8. 13. Ct. 897, 35 L. ed. 581. §76] BOARD OF GENERAL APPtSAISERS 385 jjibly in the flVs- ports of China,®* an abtirtii will' lie against the boilsur if his order iS void for watft 'of jtirigaietion:®* It'has been held that a consular court 'is' a (!diiTt''of'liDaited jurisdic- tion aihd thd'fc ail the jurisdictioHal facts iHiiSt b6 a'lfe^ed iii the plaintiff's libel, petition or bther pleadin!^j which otherwise will be insufficient.*^ ' ■'■'" - ..'.i,.! r, i i §75. Jurisdiction' aind pracStice oi the Coinmerce Court. Since the CoinmferCe Court has been 'i^epealed, this sfection'has been omitted' from this iedition. ■ ■ ■" '• ;' ■ ■' § 76. Jurisdiction of the Board of General Appraisers. The Payii^ Tariff IMyf Of Alu'gust 5, 1909, as amended October 3, 1913, contains the following provisions coneiernin^ the Board '6f Gen- eral Appraisers oiE merchandise: '^'§1^. That there shall be ap; pointed by the Presideiit, by and with 'the advice and consent' of the Senate, nine general appraisers of merchandise. ' Ntit' more than five of such general 'appr'ai's6i's 'shall be'appointted'froin the same political party. They shall not be engaged in ahy other buSineSSs- avocation, 'or' eihplbyinelit. "Thiit'the office of said gen- eral appraisers ' ^hall be at tte port of NeW York, and three of them shall be 6n dutj' at that port daily as a 'board- 'of general appraisers.' ' ■ ' ^■■ < ,-., ;,.■. ■,,■ . "All of the general appraisers' of merchandise heretofore or ' heteaf ter appointed under' thfei ' authority 'of said ' Act Shall hold tiheir office during gbod behavioi*, but may', 'after due hear- ing; be removed' by th6 President' for the following causes, knd no other: Neglect of duty, malfeasance in' office, or inefficiency. ' ' That hereafter the' salary of each of the general i appraisers of merchandise shall be at the ^ate of nine thousaTtid ' dollars per annum. "That the' boards of general appraisers and the members thereof shall have and pbs^fess all ' the ' powers Of a circuit court of the' United States in iireser'ving order, compel- ling the attendance of witnesses, and the production of evidence, and in punishing for contempt. ' ' ' ' ' ' "All notices 'in' Writing to colle'ctors of dissatisfaction of any , 84Spe;Langev. Benedict, 73 N. Y< Id 96 steamer Spark v. Lee Choi 12, 29 Am. Eep.|80j, ,,,,,.-. .., i I j!9,'?!>^>:l,^''^ye,^>'71?r. iK°^*J^^™''" 95l)p,inese y. Hale, 91 JJ. S. , 13, jject, generally,, see Wharton's Dig., 23 f. ed'.'igo'; Secretary Seward 'in''' i'l'^S, Vol.' r,''M66i-e's''big.,' §§ 25'9- '|Paciflc Mail S. S. ' Case, ' Moo*e 's 266; ' ' and the authorities therein ;Dig., August 18, 1186Sji:§.26S, iVoL. cited.- . , . ■: . < Fed. Prac. Vol. 1—2.5 386 ORIGINAL JURISDICTION [§ 76 decision thereof, as to the rate or amount of duties chargeable upon : imported merchandise, including all dutiable costs and cha-rges, and as to all-fges 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 by 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 sai,d 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 respectively Board 1, Board 2, and Board 3. 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, 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 now or heretofore was proyidedby laiw 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 tTvo 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, or a majority thereof, shall have 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 produc- tion, 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 § 76]' BOARD OP GENERAL, iU'RBAISBBS 387 board assign or reassign any case for hearing^ determination, or both, and shall designate a general apf)raiserpOr a board of general appraisers, and, if necessary, a oleirk thereto, to prqeeed 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 ot. 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, lOr a majority: of : them, who decided the case, may, upon motion of either party imadci within thirty days_ next after their decision, grant a rehearing or retrial of said case when in their opinion theiiends of justice may require it. " / ,. ,m " The; appraiser shall revise and correct- the reportsof-thei as- sistant appraisers as he may j,udge proper, and- the, appraiser, or 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 ,,,thiere is no appraiser the certificate of the customs officer, ,to whom is com- mitted the estimating and collection of duties, of, the dutiable value of any merchandise required to be appraiseidr shall ,be deemed and taken to be the appraisement of such merchaiiT disc. If the collector shall deem the appraisement of any imported merchandise too low, he may, within sixty days, there- after, appeal to reappraisement, which;, shall be, made by one of the general appraisers, or if the importer, owner, agent or consignee of such merchandise shall deem the appraisement, thereof, too high and shall have complied with the requirements of law with respect to the entry and appraisement of me^schan- dise, he may within ten days thereafter appeal for reapprais_eT ment by giving notice thereof to the collector ini writing. Such appeal shall be deemed to be finally abandoned and waived unless within two days from the date, of filing thereof' the per- son who filed such notice shall deposit with the collector i of customs a feeiof $1 for each entry. Such fee' shall be deposited and accounted' for as miscellaineQus .receipts, and in case the appeal in connection with which such fee was deposited shall be finally sustained, in, whole or, in part, such, fee shall be refunded to -the importer, with the duties found to be collected in excess, 388 ORIGINAL JURISDICTION ' [§76 from the appTopriation for the refund to importers of excess 6f deposits. The decision! of the general appraiser in eases of reappraisemeht ' shall be final and conclusive as to the dutiable value of such merchandise against all parties interested: therein, unless the importer, owner^ consignee, or agent of the merchan- dise shall deem the reappraisement of the merchalndise too high, and shall, within five days thereafter, give notice to the col- lector, in writing,' of an appeal, or unless the collector shall deem the reappraisement of the merchandise too low, and- shall within ten days thereafter appeal for reappraisement ; 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 assighed 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 determine' the dutiable value of the imported merchandise, and in so doing may exercise both judicial and inquisitorial functions. In such cases the general appraisers and the Boards of General Appraisers shall give reasonable notice to the importer and the proper representative of the Government of the time and place of each and every hearing at which the parties or their attorneys shall have opportunity to introduce evidence and to hear and cross-examine the witnesses foi" the other party, and to inspect all samples and all docu- mentary evidence or other papers offered. Affidavits of persons whose attendance can not be procured may be admitted in the discretion of the general appraiser or Board of General Ap- praisers. The decision of the appraiser, or the person acting as such (in case where no objection is made thereto, either by the' collector or by the importer, owner, consignee^ or agent), or the single general appraiser ill case of no appeal, or of the board ' of three general appraisers, in all reappraise- ment 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 per- son acting as suck shall ascertain, fix, and liquidate the rate and amount of thei duties 'to be paid on such merchandise, atid the dutiable costs and charges thereon, according to law; and no reappraisement or re-reappraisefflent shall be considered invalid because of the absence of the merchandise of samples §76] BOARD OF GENERAL APFKAISEES 389 thereof before the officer or officers making the same, where no party in interest had demanded the inspection of sucb merchan- dise or samples, and where the merchandise or samples were reasonably abeessible for inspection."' "The ; decision of the collector as to the rate and amount of duties; chargeable upon imported merchandise, or upon mer- chandise On which duty- shall have been assessed including ', all dutiablei costs and charges, and as to all fees and exactions of whatever character (except duties on tonnage), shall be final and conclusive , against all persons intereSteid < therein, vm.-. less the owner, importer, consignee, or agenti of such mer- chandise, or the person paying such fees, charges, and ex- actions other than duties, shall, within thirty 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 dissatisfifed with such decision, imposing a higher I ate of duty, or a greater charge, fee or exaction, than he shall claim to be. legally payiable, file a protest or protest in writing with the collector, setting forth therein distinctly and speci- fically, 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 deitermination as hereinbefore provided; such determina1;i6n shall be final and conclusive upoii all persons interested therein, and the i-ecord shall be transmitted to the proper collector or person acting as 'Such, who shall liquidate the entry accordingly, except in eases 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. : " The general appraisers, or any of them, are hereby au- thorized to' administer oaths, and said general appraisers, the board: of genera^ appraisers, the local appraisers or the collet- tors, as the case may be, may cite to appear : before them, and examine upon oath any owner, importer, agent, consignee', or other person touching any matter or thing which they, or 390- ORIGINAL JURISDICTION [§'76 either- of them, may deem material respecting any imported merchandise, then under consideration or previously imported within one' year, in. ascertaining the classification, or dutiable value thereof, or the rate or amount of duty; and they, or either of them, may require the production of any letters, accounts, contracts; or invoices relating to said merchandise, and may re- quire such testimony to be reduced to writing, and when' so taken dt shall be filed and preserved for use or reference until the final decision Of the collector, appraiser, or said board of appraisers shall be made respecting the valuation or classification of said merchandise, as the case may be. " "If any person so cited to appear shall neglect or refuse to attend) or shall decline to answer, or shall refuse to answer ifa writing any interrogatories, and subscribe his name to his deposition, or to produce such papers when so required by a general appraiser, or a board of general appraisers, or a local appraiser or a collector, he shall be i liable to a penalty of hot; less than twenty dollars nor more than $500 ; and if such person be the owner, importer, or consignee, the appraisement which the general appraiser, or board of general appraisers, or local appraiser or collector, where there is no appraiser,, may make of the merchandise shall be final and conclusive ; and any person who shall willfully and corruptly swear falsely on an ex- amination 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, or the value thereof may ■ be recovered from him." * '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 inspection under proper regulations to be prescribed by the Secretary of the Treasury. All decisions of the general appraisers shall be re- ported forthwith to the Secretary of the Treasury and to the board of general appraisers on duty at the port of: New York, and the report to the board shall be accompanied, whenever practicable, by samples of the merchandise in question, and it shall be > the duty of the said board, under the direction of I the Secretary of the Treasury, to cause an abstract to be made and published of such decisions of the appraisers as § 76] BOAED OP GENERAL APPRAISERS 391 orjheiinay deem inipprtant to be published either in full ^of; if full publication' shall not be requested by the seeretary -oi* by the, board, then bj^a^. abstract containing a general description of the merchandise in question, and of the, value and rate of duty fiixed in, ii^ach, ease, with reference, whenevei' practicable, by number or other designation, to samples deposited dnl the place of samples at New York,. and such abstracts shall be issued if romi time to time, at Jeast once in each week, for the information of customs officers and, the public^ , . , i / ; ,, . "No allowance , shall be, madci in the estimatioii! and liquida-' tion of , duties , .for, shortage, or, non-fimportation caused by de- eayj destruction or injury to fruit or other perishable articles irap,orted into the United States whereby their commercial value has been destroyed, unless under regulations prfescribed . by the Secretary of, the Treasury. Proof : to ascertain^ such destruc- tion or non-importation, shall be . lodged with the . collector of customs of the port where such merchandise has: been landed,' or the person acting as, such, within ten days after the landin® of such merchandise. The provisions hereof i shall apply whether or not the merchandise has been entered, and^whetkerl 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 he made for damage, but the importers may within ten days after entry abandon ; to .the United States: all or any portion of goods, wares lor merchan- dise of every description included in any inivoice and. be i re- lieved from the payment of . the duties on ithe! portion sO' aban- doned,: Provided, That the portion so abandonedi, shall amount to ten per,, centum, or more of the total value i. 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 I the -same haveiiaily commercial value. Provided further. That section twenty-eight hundred and ninety-nine of the. Revised Statutes, i relating. to the return of packages ! unopened for appraisement, shall: in no wise prohibit the right of.importers to makciiall needful examinations to determine whether the right to abandon accrues, or whether by reason of tQtal destriiction there is a nonrim- portation in -whole or in; part.. All merchandise I ajiandonedi ito the G-ovemment by. the importers shall be delivered, iby, the,, im- ^2; ORIGINAL JURISDICTION , |.§'T6. porters^ thereof at siieh 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 be; the abandoned merchandise shall be disposed of by the customs authorities under suchi 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 condemna-' tion, lodge with the collector, or 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 perishable goods condemned, and unless proof to ascertain the shortage or nonimportation of fruit or perishable goods shall have been lodged as herein required, or if the importer or his agent fails to notify the collector 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. ■'§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 been ascertained by final liquidation' there- of , the law required to be paid or deposited, the Secretary ' of the Treasury shall direct the Treasurer to refund and pay the same out of any money in the Treasury not otherwise appro- priated. The necessary moneys therefor are hereby appropri- ated, and this appropriation shall be deemed a permanent in^ definite appropriation; and the Secretary of the Treasury is hereby authorized to correct manifest clerical errors in any entry oi- liquidation, for or against the United States, at any time within one year of the date of such entry, but not a;fter- •%7T] COURT OF CUSTOMS APPEALS - 393 waTds: Provided, That the Secretary of the Treasury ' shall, diii his annualreport 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 reventie, together with copies of the rulings under which' repayments were made." ^ ■ §77. Jurisdiotion of the Court of Customs Appeals. The ■ Court of Customs Appeals Avas created by the Paiyne ' Tariff Law of August 5, - 1909.^ It was continued by the Judicial Code which provides for the same as follows: ' ' j ''"§.188-. There shall be a United ' States Court 'of' Customs Appeals, which shall consist of a presiding judge and four associate judges, each of whom shall be appointed by the Presi- dent, by and with the advice and consent of the' Senate, and shall receive a salary of eight thoiisand five" hundred * dollars a year. The presiding judge shall be so designated iii'the orfier of appointment and in the commission issued to him by the President; and the associate judges shall have precedence ac- cording to the date of their commissions. Any three members of said court shall constitute , a quorum, and the concurrence of three members shall be necessary to any decision thereof. In caseiof a vacancy or of the temporary inability or 'disquali- fication, "for any ireasoHj 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 i cir- cuit 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. ' ••'^§189. The said court of Customs Appeals shall always be open for the transaction of business, and sessions thereof may, m the discretion of the coilrt, be held in the several judicial circuits, and at such places as said court may from time to time 'designate. " '' "§194. The said Court of Customs Appeals shall be a court of record, with jurisdiction as in this chapter established ' and lirnited. . It shall prescribe the form and style of its seal, and 8 7^.'' 1' 36' Si at L. 11, 38 St: at §77. 136 St. at L. 11, 105. L.i 186-188, ' Comp: St. §§5594- 2 Act of Feb. 25, 1919. ;5@97. ■ "' ^3,9^ ;, ORIGINAL JURISDICTION [§77 tliejorniiol: its wi;its and other process and procedure, and exer- cise ;Siich powers coiif erred 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 business, of the court, and as may be needful for the uniformity of decisions within its jurisdiction as conferred by law. It shall hiave power to review any decision or matter within its jurisdiction, and may^ affirm, modify, or, reverse the same and remand the case iwith suoh orders as may seem to it proper in the premises, which shall be executed accordingly. ',',§. 195.,, The Court of Customs Appeals established by this chapter shall lexerciSB exclusive appellate jurisdiction to review 'by , appeal,, : as hetein, provided, hnal decisions by a Board of (Jeneral Appi^aisers i in .all cases as to the construction of the law . and , th?, facts, respecting the classification of merchandise and the rate of. duty, limposed thereon under such classification, and the , fees, and, .charges, connected therewith, and all appeal- • able questiojis as ,to the, jurisdiction of said board, and all ap- pealable questions, as to the laws and regulations governing the collection , of .the custoins revenues ; and the judgments and de- crees of said Court of Customs Appeals shall be final in all such cases, i Pi;ovided, . however,. That in any case in which <. the judg- ment, or^ decree of the Cojurt of Customs Appeals is made .final by the provisions of this title, it shall be competent for the Supreme Court, upon the. petition of either party, filed within sixty days next after the issue by the Court of Customs Ap- peals of, its mandate upon decision, in any ease in which there is drawn in question the construction of the Constitution of the United States, or any part thereof, or of any treaty made pursuant. thereto, or in any other ease when the Attorney G-en- eral.pf the United States shall before the decision of the Court ,p,f; Customs Appeals is rendered, file with the court a certifi- cate to the effect that the case is of such importance as to render expedient its review by tjjie Supreme Court, to require, by certiorari or, pthei;wise, such case to be certified to the Supreme , Court for its review. and determination, with the same power and authority in the case as if it had been carried by appeal or writ of error to .the Supreme Court : And provided further, That this' Act shall not apply to any case involving onl.y the construction of section one, or any portion thereof, of an Act § 77] C0UR5P OF CUSl-OMS APPEALS 395 entitled; 'An Act. to projfide, revenue, equalize duties, and en- courage tiie industries, of .the United States, and for other pur- poses,' approved! August fifth, nineteen hundjjed and. nine, nor to any ease involving the construction of, section two of an Act entitled f An I Apt to promote reciprocal trade relations; with the Doflaiflioo Pf Canada, and for other purposes,,' : approved July twenty-sixth, nineteen hundred and eleyen.*, , , ; . ; , , , , .''§ 196, After, the organization of said court, no appeal, shall ,bei,ta«ken or allowed from any ^oard of .United , States General Appraisers to -any other court, and no appellate jurisdictipn shall thereafter be exereised or, allowed by,. any, .Qther, courts, ip cases deeidediby said Board of United States General Appraisers ; but all, , appeals, allowed by law ,from such Board- of, General Appraisers shall, be subject to review only in,the,pQurt of Cijis- toms , Appeals hereby ; established,, accor,ding. to the provisions of this (Chapter: PjoDided, .That nothing in,thi^ .chapter, ^^all be deemed to deprive, the Supreme Couirt of the Uni,t^ States of jurisdiction to hear and determine . aU customs , cases,, wlW-ch have heretofore been icertified. to said, ,cpupt, from, the lJ|i;ited ,3tates, circuit courts of, appeals , on applications for writs,,, pf certiorari or otherwise, nor to review by writ of. cert^oifE^ri an;- cuS(toms 1 case her etof pre decided, or, now pending, .and ; thereafter decided, by any circuit .cpprt of appeals, provided applipatipn for said writ be made within six .months after Ajjgusl^ fiftvh, nineteen, .hundred and nine; Provided /urWter,,.Th,ajt,£ill.,cu3tpnis cases decided by, a cijrpuit or, distript .count, of ; the United States or- a court of , a, Territory ipf the .United States pripi"it9,,s9,,i4 date abpye mentipned, and. which hayp. not been rpmoyefi. from said cpurts by appeal or writ oj error,. and all.suchi,pa5ips, there- tofore .submitted for .decision in said courfs ,an4„rema,ining un- .decided may be reviewed ,pn appeal at the, ins,tai^ee ^pf either party by the United ^tates ..Court pf, Customs Appeals, pro- iVided. suehj a,ppeal be taken within one year from, .the dat^ of the, entry. of the o^dei;,-.judginent, or decrees sought to be re- viewed."* , , , ,."§19'8. If the importer, owner, consignee, or agent of any imported merchandise, or the collector or Seeretarj'- 6i the Treas- 3 36 St. at L. 91, 105, 38 S,t. at 436 St. at L. 1087., L. 703, Comp. St. §1186. . '..,'.', 'S&6 ORIGINAL JURISDICTION ['§' 77 ury; shall be dissatisfied with the decision of the Board of Gen- eral 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 O'ther appealable decision of said board, they, or either of them, may, within sixty days next after the entry of such decree' 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 tiling in the ofSce 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, together 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 Custoihs 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. "§199. Immediately upon receipt of any record transmitted to said Court for determination the clerk thereof shall place the same'iipon the calendar for hearing and submission, and such calendar shall be called and all eases thereupon submitted, except for good cause shown, at least once every sixty days : Provided, That such calendar need not be called during the months of July and August of any Year." *" ' ■: Prior to the creation of this court, the questions of law and faCt involved in the decisions of the Board of General Appraisers were reviewed by the Circnit Court of the United States within the dis- trict in which the matter arose.* No appeal would lie from the 4" 36 St. at L., 91, 105, 1146. viUe Pub. W. Co. v. Collector, 49 5 26 St. at L., ch. 407, §1.5, p. Fed. 561. ' ' ' ' ■>! ■ 131; 35 St. at L. 403. See Louis- § 77] COUET OE.i CUSTOMS APPfiALS » 397 decision of tjae.; Board > of , General Appraisers ascertaining and fixing, the dutiable value of goods whem the j board had acted regularly ajid without: fraud, or other,, misunderstanding.^ Thie return of the board, iwas compared ito a master's report. T Where, on ; review by a Circuit Court of a .decision of the Boai'd df General Appraisers, fthe- record returned, toy, the, Board was de- fective by reason, of j the loss of the evidence on which .the Board's , findings were toased,, it was held that, no -other iesvidenee beinig presented, it mwst ,be,ec>,nclusively ppesum^ediithat, the,, findings, by the Board, were proper and justifiable.* The; Board may make a diffierent findipg, f rom : the , loe,^-! appraiser ,wj,th|0u^., takihg additional evidence.® In a case where the only .iap.tj|-,ce;rtiifi(jd by ^ tlifj; appraise^^ ,was };hat j."'?,ilk„,is ■j;]t)iej..cojnpion£!n(it material of chipf .^'alue, " jt,;was held tjiat |]je return. ,sh(^uljd| be sept l^aqk for a, ,;^urth,er stateipent,,, Judge ■Lai:59rp.be |tl],ej)^^^|S,g,ji4:, , ''Had t^l\f, , l?.oa,r|dj , alspj.ci^rtified that; th^ , articles, w,ere correctly (^escribefl in the invoice, or entry, or in tljie appraisers' return, there might be sufHcient; but, as it is, there is nothing to show what ,the articles really' are. ^" In a case where .the return stated that all the facts involved m said case, so.iar.as ^ascertained by the board, are iully stated in [a certain opinion] and decision annexed, thereto ; ai^d in such opinion it was sta|;ed., that , inas- much as somfr of the questions raised by protest were ! ' unj^er- stood to' be now pending in the, United .States, courts, [they] do not deem it advisable to ■ enter into the merits of the same, but afcfrnM the [collector's] ass'essmeiit of dues;" a further return was ordie.red..^^ ,A single d.ay s .delay ^ftejT the, period of thirty days ailoiwed for , filing the , application cQmpelle,d, %\ie dismissal of' the appeal although the ■parties have gone i to trial in the ' Circuit Cbiir't' upon the merib;^* ' The provision irl the fqr;tfl,^r,^ct,,,that,iapon an appeSal'to th'e,Ci5Cuit Court the b^oard should return '.'.the srecord and the eyi^en. i ' , . elagan v: IT. S., 147 Feld. 855. ' ,. , ;, 9U. 8. V.Stratass Bros. &Co., 128 . - T Fed. 473. 398 ORIGINAL JURISDICTION [§77a was held not to require the return of evidence which was ex- cluded.^* Where a party wished to have the court upon ap- peal 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.^* An importer who had offered evidence before the board was not thereby precluded from introducing new evidence in the Circuit Court upon an appeal' from the board's- deicision.^* Where no new evidence was offered by the importers before the Board of General Ap- praisers; it was held that they could offer none before the Cir- cuit Court.^® § 77a. Jufisdiction of the Interstate Commerce Commission. The Interstate Commerce Act is enforced primarily by the In- terstate Commerce Commission. The orders of the Interstate Commerce Cominission are enforced by the courts. The courts have also power to review, to set aside, and to restrain the en- forcement of the orders of the Commission in proper eases. The Interstate Commercfe Commission was created by the Act of February 4, 18^7, which has since been repeatedly amended. lariarris v. TJ. S., 177 Fed! 475. Ulbid. ' ' 15 Wm. Wolff & Co. V. U. S., 168 Fed. 970. 16 William F. Allen & Co. v. U. S,, 127 Fed. 777. , See also U. S. vi Kliiigenberg, ife'S V. S. 93, 38 LI ed. 647; IT. 8. v. Jahn, 155 U. S. 109, 39 L. ed. 87; XT. Sj v. Lies, 170 U. S. ^28,. 42 L. ed. :il70.; Earn- shawv. |u. S. 14'6 U. S. 60, .36 L. ed. 887; Apgar v. 'V. S., C' t!. A., 78 Fed. 332; Marine v. Lyon, C. C. A., 5 Fed. 992; U. 8. v. Davis, C. C. A., 54 Fed. 147 ; Be Marqmard, 57 Fed. 189; TJ. S. v. Eosenwald, C. C. A., 67 Fed. 323; White v. U, 8., C. 0. A., 72 Fed. 251; U. 8. v Lies, 74 Fed. 546; U. 8; v. Ken worthy, C. C. A., 668 Fed. 904 "Zante Currants," 73 Fed. 183 Sang Lung v. Jackson, 85 Fed. 502; Foster v. Vooke, 60 Fed. 745; Be Chase, 50 Fed. 695; Be Wyman, 45 Fed. 469; Be 8ternbach, 44 Fed. : . , 413 ; Be Sherman, 49 Fed. 224 ; s. e., , sub nom. Be Collector of Customs, C. C. A., 55 Fed. 276; Be Kursheedt Mfg. Co., 49 Fed. 633; s. c, C. C. A., 54 Fed. 159; Be Muser, 49 Fed. 831; Be Crowly, 50 Fed. 465; s. c, C. C. A., 55 Fed. 283; Be Bache, 54 , Fed. 371 ; s. c, U. 8. v. Bache, C. C. A., 59 Fed. 762; Mexican Onjrx & Tr; Co. v. U. S., 66 Fed. 732; Be Buffalo Natural Fuel Co., 73 Fed. 191; s. c, tr. 8. V. Buffalo N. G. F. Co., C. C. A., 78 Fed. 110; Stern V. tr. S., 77 Fed. 607; Lesser v. TJ. 8., 89 Fed. 197; IT. S. v. Hahn, 91 Fed. 755; Morris E. & A. Ex. Co. V. TJ. 8., 94 Fed. 6643; Be F. W. Myers •& Co., 123 Fed. 952. § 77a] INTERSTATE COMMERCE COMMISSION 399 The latest amendments are ^contained in the Transportation Act of February 28, 1920. / ' The Interstate Commerce Commission consists of eleven mem- bers with terms of seven years, except tha!t the terms of those appointed to -fill vacancies, expires at the same time as the orig- inal term of the commissioners whom they succeed. Each of them receives as compensation $12,000 a year. Not more thati three of the commissioners can be appointed from the same political party. "Any commissioner may be removed iby the President for inefficiency neglect of duty, or malfeasance in office. No person iii the employ of' or holding any official relation to any common carrier subject to the provisions of thife act, or owning stock or bonds thereof, ot who is any manner pecuniarily interested therein, shall enter upon the duties of or hold such officer Said Commissioners shall not engage in any other busi- ness, vocation, or employment. No vacancy shall in the Com- mission impair the right of the remaining Commissioners! to exercise all the powers of the Commission. " ^ ' The statute provides: "The Commission hereby created shall have authority to inquire into the management of the business of all common carriers siibject to the provisions of this act, and shall keep itself informed as to the manner and method in which the same is conducted, and shall' haive the right' to obtain from such common carriers full and complete informa- tion necessary to enable the Commission to perform the duties and carry Out the objects for which it was created; and the Commission is hereby authorized and required to execute ahd enforce the provisions of this act: "(1) The provisions of this Act shall apply to cbinmori car- riers engaged in — "(a) The transportation of passengers or property wholly by railroad, or partly by railroad and partly by water when both are used under a common control, management, or arrange- ment for a continuous ca,rriage or shipment; or "(b) The transport^itipn of oil or other commodity, except § 77a. 1 Act of Feb. 4, 1887, ch. 595, as amended Aug. 9, 1917, eh. 104, § 11, 24 St. at L., 383, Odmp. 50, 4d St. at L. 2^0, as amended St. §8575; Act of June 29, 1906, Act of Feb. 28,' 1920, Comp. St. cH. 3591, adding §24, 34 St. at h. §8396. - 400 ORIGINAL JURISDICTION [§ ^Ta water and expept natural .or, artificial gas, by pipe line, or partly by pipe line and partly by railroad or by water; or i : i ; "(c), The transmission of intelligence by wire or wireless;; — from one State or Territory of tbe Uiiiited States^ or the Dis- trict of Columbia,, to . any other. State or Territory of; the United States, ! or the District of. Columbia, or from one place in a Territory to another place dufthe, same Territory, or from any place in the United, i Sta-tes through a foreign country to any other place in the United ,States, or from or to any place in the United States. to or; from a foreign country, but onlj' in so far as such i transportation lOr transmission takes place within the United States., ',',(2). The proyisiqns of this Act shall also apply to such trans- portation of passengers, and property and transmission of in- telligence^ but only, in so far as such transportation or trans- mission takes place , within the United' States, but shall not apply— . 1- - ■ , ,, "(a) To the transportation of passengers or property, or to the receiving, delivering, storage, or handling of property, wholly within one .State and ,not shipped to or from' a foreign country from or Jo any place in the United States ag aforesaid; , .:";(b) To the transmission of intelligence by wire or wireless wholly within one State and not transmitted to or from a foreign country from or to any place in the United States as afore- said ; or , ' . "(c) Tp the transportation of passeiigers or property by a carrier by water, w;h,ere Sjucfi transportation would not be sub- ject to the provisions of this act except fpr the fact that such carrier absorbs, out of ,its port-to-port water rates or out of its proportional through rates, any switching, terminal, lightei^age, car rental, trackage, handling, or other charges by a rail carrier for services within the swr|;ching, drayage, lighterage, or cor- porate limits of a port ternijnal or district. ''(3) The term 'common carrier' as used in this Act shall include all pipe-line companies ; telegraph, telephone, and cable companies operating by wire or wireless ; express companies ; sleeping-car companies; and all persons, natural or artificial, engaged in, such transportation or transmission as aforesaid as common carriers for hjire. "^herever the word ' carrier ' is used in this Act it shall be held to mean 'common carrier.' The §,77a] INTERSTATE COMMERCE COMMISSION 401 term 'railroad! aS:,, used in this A,ct - sfeall include all bridges, ear, floats, lighters, and ferries, used by or operated, in eonnee- tion "with any railroad, and also alLthe. road 'in use by any common carrier operating a railroad, whether, owned, or oper- ated under a contract, agreement, orleasey arid also all swi.tches, spurs,! tracks, terininals,, and terminal facilities of every kind us,ed or necessary in the transportation, of the persons or prop- erty designatpd herein, including, all freight depots,, yards, and grounds, used, or necessary in the, traoisportation or delivery of , any .suqh property. The term 'transportation' as. used in this Act shall include ilpcomptives, cars, and other . vehicles, vessels, and all: instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or impiipd, for the use thereof, and all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported. The term 'transmission' as used in this Act shall include the transmission, of intelligence through the application of electrical energy or other use of electricity, whether by means of wire, cable, radio apparatus, or other wire or wireless conductors or appliances, and' all instrumentalities ar\d facilities for and ^ services in . connection with the receipt, forwardingj and deliverjr of .messages, communications, or other intelligence so transmitted, hereinafter also collectively called, messages. , ; . < , "(4) It shall. be the' duty of every common carrier subject to this I Act engaged in the transportation of passengers or prop- erty to provide and furnish such transportation upon reason- able request therefor, and to .establish-through, routes and just and reasonable rates, fares, and charges applicable thereto, and to provide, reasonable facilities' for operating, through routes and to make reasonable rules and regulations with respect to the operation of through routes, and providing for reasonable compensation to those entitled thereto ; and in case of' joint i^ates, fares, . or charges, , to establish just, reasonable, and equi- table divisions thereof as between the carriers subject to this Act participating therein which shall not unduly prefer or prejudice any of, such participating carriers. "(,5) AH charges made for any service rendered or to be rendered in the, transportation of passengers or property or Fed. Prac. Vol. 1—26 402 OBIGINAL JUBISDICTION [§ 77a in the transmission of intelligence by wire or wireless as afore- said, or in connection therewith,- shall be just and reasonable', and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared' to be unlawful: Provided, That messages by wire or wireless subject to the pro- visions of this Act may be classified into day, night, repeated, unrepcated, letter, commercial, press. Government, and such other classes as are just and reasonable, and ' different rates may be charged for the different classes of messages: And provided further. That nothing in this Act shall be construed to prevent telephone, telegraph, and cable companies from! enter- ing into contracts with common carriers for the exchange of services. " (6) It is hereby made the duty of all common carriers sub- ject to the provisions of this Act to establish, observe, and en- force just and reasonable classifications of property for trans- portation, with reference to which rates, tariffs, regulations, or practices are or may be made or prescribed, and just and rea- sonable regulations and practices affecting classifications, rates, or tariffs, the issuance, form, and substance of tickets, receipts, and bills of lading, the manner and method of presenting, mark- ing, packing, and delivering property for transportation, the facilities for transportation, the carrying of personal, sample, and excess baggage, and all other matters relating to or con- nected with the receiving, handling, transporting, storing, and delivery of property subject to the provisions of this Act which may be necessary or proper to secure the safe and jirompt re- ceipt, handling, transportation, and delivery of property Sub- ject to the provisions of this Act upon just and reasonable terms, and every unjust and unreasonable classification, regula- tion, and practice is prohibited and declared to be unlawful. "(7) No common carrier subject to the provisions of this Act, shall, after January first, nineteen hundred and seven, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its employees and their families, its officers, agents, surgeons, physi- cians, and attorneys at law; to ministers of religion, traveling secretaries of railroad Young Men's Christian Associations, in- mates of hospitals and charitable and eleemosynary institutions, and persons exclusively engaged in charitable and eleemosynary § 77a] INTERSTATE CO'MMEBCE COMMISSION 403 work ; to indigent,! destitute, and homeless persons, and to such persons when transported by charitable societies or hospitals, and' the necessary agents employed in such transportation; to inmates of the National Homes or State Homes for Disabled Volunteer Soldiers, and of Soldiers' and Sailors* Homes, in- eluding those about to entei? and those returning home after discharge; to necessary care takers of live stock, poultry, milk, and fruit; to employees on sleeping cars, express cars, and to linemen of telegraph and telephone companies; to Railway Mail Service employees, post-bffic6 inspectors, customs inspectorsj and immigration inspectors; to newsboys on trains, baggage agents, witnesses attending ■ any legal investigation in which the com- mon carrier is interested; persons injured in wrecks and phy- sicians and nurses attending such persons : Provided, That this provision shall not be construed to prohibit the interchange of passes, for the officers,^ agents, and employees of common car- riers, and their families; nor to prohibit any common carrier from carrying passengers free with the object of providing relief in eases of general epidemic, pestilence;' or ©ther calamitous visitation: And provided further, That this provision shall not be"' construed to prohibit the privilege of passes or franks, or the exchange thereof with each other, for the officers; agents, employees, and their families of such telegraph, telephone, and cable lines, and the officers, agents, employees and their families of other common carriers subject to the provisions of this Act: Provided further, That the term 'employees' as used in this paragraph shalP include furloughed, pensioned, and superan- nuated employees, persons who have become disabled or infirm in the service of any such common carrier, and the remains of a person killed in the employment of a carrier and ex-employees traveling for the purpose of entering the service of any such common carrier; and the term 'families' as used in this para- graph shall include the families of those persons named in this proviso, also the families of persons killed, and the widows during widowhood and minor children during minority of per- sons who died, while in the service of any such common carrier. Any common carrier violating this provision shall be deemed guilty of' a misdemeanor, and for each offense, on conviction, shall pay to the United States a penalty of not less than one hundred dollars nor more than two thousand dollars, and any 404 ORIGINAL JURISDICTION [§ 77a person, other than the persons excepted in this provision, who uses any such interstate free ticket, free pass, or free trans- portation shall be subject to a like penalty. Jurisdiction > of offenses under this provision shall be the same as that provided for offenses in an Act . entitled ' An Act to further regulate commerce with foreign nations and among the States,? approved February nineteenth, mineteen hundred and three, and any amendment thereof. " (8) Erom and after May first, nineteen hundred and eight, it shall be unlawful for any railroad company to transport from any State, Territory, or the District of Columbia, to any other State, Territory, or the District of Columbia, or to any foreign;, country, any article or commodity, otber than timber and the manufactured products th,ereof, manufactured, mined, or produced by it, or under its authority, or which it may own in whole or in part, or in which it may have any interest, direct or indirect, except such articles or commodities as mS/y be nec- essary and intended for its use in the conduct of its business as a common carrier. "(9) Any common carrier subject to the provisions of this Act^'Upon application of any lateral, branch line of railroad, or;of any shipper tendering interstate traffic for transportation, shall construct, maintain, and operate upon reasonable terms a switch connection with any such lateral, branch line of rail- road, or private side , track which may be constructed to con- nect with its railroad, where such connection is reasonably prac- ticable and can; be put in with safety and will furnish sufficient ibusiness to [justify then construction and maintenance of the same ; and shall furnish cars for the movement of such traffic to the ;b est of its ability, without discrimination in favor of or against any such shipper. If any common carrier shall fail to install and , operate any such switch, or connection as afore- said, on application therefOr in writing by any shipper or owner of such lateral, branch; line of railroad, such shipper or owner of such lateral, branch line of railroad may make complaint to the commission, as provided in section thirteen of this Act, and the commission shall hear and investigate the same and shall detennine as to the safety and practicability thereof and justification and reasonajblecatnpensation therefor, and the com- mission may make an order, as provided in section fifteen of § 77a] INTEESTATE COMMEBCE COMMISSION 405 this Act, directing the commoai. carrier to comiiply with the pro- visions of this 'section in accordaneteiwitb such order, and such order shall be enforced as hereinafter provided. for the 'enforce- ment of all other orders by the commission, other than orders fori the payment; of money. i, , . ''(10) The iterm' car service'' in this Act shall include the use, .control, supply, movement, distribution, 'csiehange, inter- change, and return of locomotives, cars, and other vehicles used in thei transportation of property,! including special tyf)es of equipment, and the supply ofitrain^vby ally carrier by railroatd suibjeet to'this Act. ' i -> ■ if (ill)i It shall be the duty of every carrier iby railroad sub- ject to this Act to furnish safe and adequate car service, and toi establish j 1 observe, and enforce just and reasonable 'iEules, regulations, and practices! with respect to car service ;> and. every unjust and unreasonable rule, regulation,, and practice with re- spect io ear service is prohibit|ed and declared to be unlawiful. "'(12) It shall 1 also- be theduty.of every carrier by railroad to make just and reasonable.' distribution of cars regulations or practices. i: i ,, - ; ^ !,. " (15) Whenever the .Gommission is of opinion [that shortage of equipment, congestion of : traffic, or other emergency requir- ing immediate action exists in any section of .the ^ country, the Commission shall have,, and it iS' hereby given, authority, ' either upon complaint or upon its own initiative without 'complaint, at once, if.it so orders, without answer or other formal pleading by the interested carrier or carriers, and with or without notice, hearing, or the making or filing of a report, . according as the Commission may determine.: (a) to suspend the operation of any or aU rules, regulations, or practices then established with respect to car service for such time as may be determined by the Commission; (b) to make such just and reasonable directions with respect to car service without regard to the ownership as between carriers c)f; locomotives, ears, i and other vehicles, dur- ing such emergency as in its opinion will best promote the service in the interest of the public and' the commerce of the people, upon such terms of compensation as between the car- riers as they may agree upon, or, in the event of their dis- agreement, as the Commission may after subsequent' hearing find to be just and reasonable; (c) to require such joint or common use of terminals, including main-line track or tracks for a reasonable distance outside of such terminals, as in its opinion will best meet the emergency and serve the public in- terest, and upon such terms as between;. the carriers as they may agree upon, or, in the ievent of their disagreement, as the Commission may after subsequent hearing find to be just and reasonable; and (d) to give directions for preference or priority in transportation, embargoes, or movement of traffic under per- mits, at such time and for such periods as it may determine, and to modify; change, suspend, or annul them. In time of war or threatened war the President may certify to the Com- mission that it is essential to the nationall defense and' security §''77a] INTERSTATE COMMEECE COMMISSION 407 that certain traffic shall ihave preference or priority iia trans- ■portationj and the Commission shall, under the power herein conferred, direct that stieh preference or priority be afforded. " (ifi) Whenever the Commission is of opinion that any car- rier i by railroad subject to this Act is for any reason unable to transport the traffic offered it so' as properly' to serve the public, it may, upon the same procedure as provided in para- graph (15), make such just and reasonable directions with re- spect to the handling, routing, and movement of the traffic of such icarrier' and; its' distribution over other lines 'of Toads; as in the opinion of the Commission will best promote the service in the interest of' the public and the commerce of the people, and upto such terms as between the carriers as they may agree upon, or, in the event of their disagreement, as the Commission may after subsequent hearing find' to be just and reasonable; "(17) The directions I of the Commission as to car service and to the matters - referred to in paragraph (15) and (16) may ibe made through and by such agents or agencies as the Commission' shall designate and appoint for that purpose. It shall be the duty. 6f all carriers' by railroad subject to this Act, and of thbir' officers, agents, and enipioyeies, to obey strictly. and conform promptly to such orders or directions of the Com- mission; and in case 'of failure or refusal on the part of any carrier, receiver, or opierating' trustee to comply with any such order or direction such carrier, receiver, or trustee shall be liable to a. penalty of not less than $100 nor more than $500 for each offense and $50 for each and every, day of the continu- ance of such offense, iwhich shall accrue to the United States and may be recovered in a civil action' brought by the United States: Provided, however. That nothing in this Act shall impair or affect the right of a State, in the exercise of its police power, to require just and reasonable freight and passenger service for intrastate business, except in so far as such require- ment is inconsisteht with any lawful order of the Commission made under the i provisions of this Act. "(18) After ninety days after this paragraph takes effect no carrier by railroad' subject to this Act shall undertake the ex- tension of iits line ofi railroad, or the construction of a new line of railroad,; or shall acquire or operate any line of rail- road, or extension' thereof, or shalf engage in transportation 408 ORIGINAL JURISDICTION : : [§ 77a under this Act over or by means of such additional or extended line or railroad, unless and until there shall first have been obtained from the : Commission a certificate that the present or, future public convenience and necessity require or will re- quire the construction, or operation, or construction and opera- tion, of such additiojnal, or extended- line of railroad, and no carrier by railroad subject- to this Act shall abandon all or any portion of -a line of i railroad, or the operation thereof, unless and until there shall , first have been -obtained from : the Com- mission a certificate that the present or future public convenience and necessity permit of such abandonment. 'i-(19)'The a-pplication for and issuance of any such certifi- cate shall be- under such rules and regulations as to hearings and other matters as the Commission may from time to time prescribe, and the , provisions of this Act shalL apply to all such proceedings. Upon receipt of any application for such certifi- cate the Commission shall cause notice thereof to be given to and a copy filed with the governor of each State in wMeh such additional or extended line of railroad is proposed to be con- structed or operated, or all or any portion of a line of railroad, or the operation thereof, isi proposed to be abandoned, with the right to be i heard as hereinafter provided with respect to the hearing of complaints or the issuance of securities; and said notice shall also be; published for three consecutive weeks in some newspaper of general circulation in each county in or through which said line of railroad is constructed or operates. "(20) The Commission shall have power to issue such cer- tificate as prayed for, or to refuse to issue it, or to issue it for a portion or portions of a line i of: railroad, or extension thereof, described in ; the ; application, or for the partial exercise only of such right or privilege, and may attach to the issuance of the certificate such terms and conditions as in its judgment the public convenience , and necessity may require. Prom and after issuance of- such certificate, and not before, the carrier by railroad may, without securing approval other than such eer- ti-fieate, comply: with the tei'ms and conditions contained in or attached to the issuance of such certificate and proceed with the construction, operation, or abandonment covered thereby. Any construction, operation, or abandonment contrary to the provisions of this paragraph or of paragraphs (18) and (19) of this section may be enjoined by any court of competent ju- § 77a] INTERSTATE COMMERCE COMMISSION 40& risdietion at the suit of the United States, the^CommiSsioni any commission or regulating body of the State or States affected, or any party in interest; and any carrier Which, or any di- rector, officer, receiver, operating trustee, lessfee,' agent, or person, acting for or employed by such carrier, who knowingly au- thorizes, consents to, or permits any violatioii of' the provisions of this paragraph or of paragraph' (18) of this' section, shall upon conviction thereof be punished by a fine of not m6re than $5,000 or by imprisonment for not more than three years, or both. "(21) The Commission may, after hearing, in a proceeding upon complaint or upon its own initiative without complaint, authorize or require by order any carrier by railroad subject to this Act, party to such proceeding, to provide itself with safe and adequate facilities for performing as a common carrier its car service as that term is used in this Act, and to extend its I line or lines : Provided, That no such authorization or order shall be made unless the Commission' ' finds, as to such extension, that it is reasonably required in the interest of public convenience and necessity, or as to such exension or facilities that the expense involved therein will not impair the ability of the carrier to perform its duty to the public. Any carrier sub.ject to this Act which refuses or neglects to comply with any order of the Commission made in pursuance of this para- graph shall be liable to a penalty of $100 for each day during which such refusal or negliect continues, which shall accrue to the United States and may be recovered in a ci'vil action brought by the United States. "(22) The authority of the Commission conferred by para- graphs (18) to (21), both inclusive, shall not extend to the construction or abandonment of spur, industrial, team, switch- ing or side tracks, located or to be located wholly within one State, or of street, suburban, or interurban electric railways, which are not operated as a part or parts of a general steam railroad system of transportation. "For the transportation of persons or property in carrj'ing out the orders and directions of the President," during the war with Germany, "just and reasonable rates shall be fixed by the Interstate Commerce Commission; and if the transporta- tion be for the Grovernment of the United States,! it shall be paid 410 ORIGINAL JURISDICTION [§ 77a for currently or monthly by the Secretary of the: Treasury out of any funds not otherwise appropriated. Any carrier comply- ing with any such order or direction for preference or priority herein authorized shall be exempt from any and all provisions ■ in existing law imposin,gi civil or criminal pains, penalties, ob- ligations, or liabilities upon carriers by reason of giving prefer- ence or priority in compliance with such order or direction. ' ' ^ "If any common carrier subject to the provisions of this Act shall, directly or indirectly, by any special rate, rebate, draw- back, or other devise, charge, demand, collect, or receive from any , person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property or the transmission of intelligence, sub- ject to the provisions of, this Act, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and, contemporaneous service in the transportation or transmission of a like kind of traffic or mes- sage under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimi- nation, which , is hereby prohibited and declared to be unlaw- ful."3 " (1) It shall be unlawful for any common carrier subject to the provisions of this Act to make or give any undue or un- reasonable preference or advantage to any particular person, company, ifirm, corporation, or locality, or any particular de- scription of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unrea- sonable prejudice or disadvantage in any respect whatsoever. "(2) From and after 'July 1, 1920, no carrier by railroad subject to the provisions of this Act shall deliver or relinquish possession at destination of any freight transported by it until all tariff rates and charges thereon have been paid, except under 2 Act of February, 4, 1887, ch. August 10, 1917, eh.. 51, 40 St. at 104, §1, 24 St. at L. 379, , as ,L,,272, Feb. 28, 1920,! §§ 400-403, amended June 29, 1906, ch. 3591, ' Comp. St. § 8563. 34 St. at L. 584^ April 13, 1908, 3 Ibid., S 2, 24 St. at L. 379, as ch. 143, 35 St. at L. 60, June 18, amended Feb. 28, 1920, | 404, Comp. 1910, eh. 309, 36 St. at L. 545, May St. § 8564. 29, 1918, eh. 23, 40 St. at L. 101; § 77a] INTERSTATE COMMERCE COMMISSION 411 such rules and regulations as the Commission may from time to time prescribe to assure prompt payment of all such rates and charges and- to prevent unjust discrimination : Provided. That the provisions of this paragraph shall not be construed to prohibit any carrier from extending credit in connection with rates and charges on freight transported for the United States, for any department, bureau, or -agency thereof, or for any State or Territory or political subdivision thereof, or for the District of' Columbia. " (3) • AH carriers, engaged in the transportation of passengers or property, subject to the provisions of this Act, shall, accord- ing to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and de- livering of passengers or property to and from their several lines and those connecting therewith, and shall not discrimi- nate ill their rates, fares, and charges between such connecting lines, or unduly prejudice any such connecting line in the dis- tribution of trafiSe that is not specifically routed by the shipper. "(4) If the Commission finds it to be in the public interest and to' be practicable, without substantially impairing the ability of a carrier owning or entitled to the enjoyment of terminal facilities tO' handle its own business, it shall have power to require the use of any such terminal facilities; • including main line track or tracks for a reasonable distance outside of such terminal, of any carrier, by another carrier or other carriers, on such terms ajid for such compensation as the carriers affected may agree upOn, or, in the event of a failure to agree, as the Commission may fix as just and reasonable for the use so re- quited, to be ascertained on the principle controlling compen- sation in condemnation proceedings. Such compensation shall be paid or adequately secured before the enjoyment of the use may be commenced. If under this pariagraph the use of such terminal facilities of any carrier is required to be given to an- other carrier or other carriers, and the carrier whose terminal facilities are required to be so used is not satisfied with the terms fixed for such use, or if the amount of compensation so fixed is not duly and promptly paid, the carrier whose terminal facilities have thus been required to be given to another carrier or other carriers shall be entitled to recover, by suit or action 412 ORIGINAL JURISDICTION [§ 77a against such other carrier or carriers, proper dalmages for any injuries sustained by it as the result oi compliance with such requirement, or just, compensation for such use, or both, as ;the case may be." * ,. .. , . " (1) It shall be unlawful for any common carrier subject to the provisions of this Act to charge or receive arty greater com- pensation in the aggregate for the transportation of passengers, or of like kind of property, for a shorter than for a longer distance over the same line or rpute in the same direction, the shorter being included within ithe longer distance, or to charge any greater compensation as a through rate than the aggregate of the intermediate rates subject to the provisions of this Act, but this shall not be construed as authorizing' any common car- rier within the terms of this Act to charge or receive as great compensation for a shorter a.s for a longer distance: Provided, That upon application to the Commission such common carrier may in special eases, < after investigation, be authorized by the Commission to charge less f or ilonger than for shorter distances for; the transportation of passengers or property; and the Com- mission may from time to time prescribe the extent, to which such designated common carrier may be relieved from the op- eration ■ of > this section ; but in exercising the authority con- ferred' upon it in this proviso the Commission shall not permit the ■ establishment of any charge to or from the more distant point that is not reasonably compensatory for the service per- formed; and if a circuitous rail line or route is, because of such circuity, granted authority to meet the charges of a more direct line or route to or from competitive points and to main- tain higher charges to or from intermediate points on its line, the authority shall not include intermediate points as to which the haul of the petitioning line or route is not longer than that of the direct line or route between the competitive points; and no such authorization shall be granted on account of merely potential water competition not actually in existence: And provided further. That rates, fares, or charges existing at the time of the passage of this amendatory Act by virtue of orders of the Commission or as to which application has theretofore 4 Ibid., §3, 24 St. at L. 380, as ameiulpd Feb. 28, 1920, § 405, Comp. 8t. § 8565, § 77a J INTEBSTATE qOMMEllCE COMMISSION 413' been filed with tlie Commission and not yet acted upon, shall not be required to be changed by- reason of ^ the provisions of this section until- the' further ioMer of or a determination by the ' Obmmission. ' > ■ ii''(2) Whereveri a carrier by railroad shall in competition with' a water route or routes reduce the rates on the carriage of any species of freight to- or from competitive points it shall not be pefrmittedito increase such iratfes unless after hearing by the Commission it shall be found ' that such proposed increase rests upon changed conditions i other thani the elimination of water competition. ''*' I " - :•■■<:> , ' > i "(1)> Except upon specific apprpval by order of the Com- mission as in this section prbvided, and except as provided in paragraph (16') of section 1 of this Act, it shall be unlawful for any cominon carrier subject to this Act to enter into any contract, agreement, or combination with any other feommon carrier or > carriers for the pooldrlg of' freights of different and competing railroads, 'or to divide' between them i the aggregate or' net proceeds' of the earnings of isueh railroads, or any por- tion thereof; and in any case of am agreement for the pooling of freights as aforesaid ■ each day of its continuance shall be deemed a separate oifense: Provided, That whenever 'the Com- mission is of opinion, after hearing upom application of any carrier or (Carriers engaged in the transportation of passengers or i property subjectto this Act, or upon its own initiativej that thc'idivision of their traffic or earnings, to the extent indicated by the Commission, will be in the interest of better service to the public, or economy in operation, and will not unduly re- strain competition, the Commission shall have authority by order to approve and authorize, ' df ' assetited to by all the car'- riers involved, such division of ' traffic or ! fearningSi under such rules and regulations,' and for^ slich consideration as between Kuch carriers and upon such terms anid conditions, as shall be found by the Commission to .ibe- just ;alndi' reasonable' in the premises.' . , : ' , ,..■. , "' • • >• . 'i','f(2) "Whenever the Commission is of opinion, after hearing, upon application of any carrier or carriers engaged dn the trans- portation of passengers or property subject to- this Act, that '6ibid.,"S'4, 24 St. at L. .380, as 36 St. ' at L. 547, Teh. 28, 1920, amended June 18, 1930, ch. 309, §406, Oomp; St. ■§ 8566; 414 ORIGINAL JURISDICTION [§ 77a the acquisition, to the extent indicated by the Commission, by one of such carriei-s of the control of any other such carrier or carriers either under a lease or by the purchase of stock or in any other manner not involving the consolidation of such car- riers into a single system for ownership and operatioii, will be in the public interest, the Commission shall have authority by order to approve and authorize such acquisition, under such rules and regulations and for such consideration and on such terms and conditions as shall be found by the Commission to be just and reasonable in the premises. " (3) The Commission may from time to time, for good cause shown, make such orders, supplemental to any order made under paragraph (1) or (2), as it may deem necessary or appropriate. "(4) The Commission shall as soon as practicable prepare and adopt a plan for the consolidation of the railway prop- erties of the continehtal United States into a limited number of systems. In the division of such railways into such systems under such plan, competition shall be preserved as fully as possible and wherever practicable the existing routes and chan- nels of trade and commerce shall be maintained. Subject to the foregoing requirements, the several systems shall be so ar- ranged that the cost of transportation as between competitive systems and as related to the values of the properties through which the service is rendered shall be the same, so far as prac- ticable, so that these systems can employ uniform rates in the movement of competitive traffic and under efficient management earn substantially the same rate of return upon the value of their respective railway properties. " (5) When the Commission has agreed upon a tentative plan, it shall give the same due publicity and upon reasonable notice, including notice to the Governor of each State, shall hear all persons who may file or present objections thereto. The Com- mission is authorized to prescribe a procedure for such hearings and to fix a time for bringing them to a close. After the hear- ings, are at an end, the Commission shall adopt a plan for such consolidation and publish the same; but it may at any time thereafter, upon its own motion or upon application, reopen the subject for such changes or modifications as in its judg- ment will promote the public interest. The consolidations herein provided for shall be in harmony with such plan. § 7,7a] INTERSTATE COMMERCE COMMISSION 415 " (6) It shall be lawful for two or more carriers by railroad, subject to this Act, to consolidate their properties or any part thereof, into one corporation for the, ownership, management, and operation of the properties theretofore in separate owner- ship, management, and, operation, under the following con- ditions: ''(a) The proposed consolidation must be in harmony with and in furtherance of the complete plan of consolidation men- tioned in paragraph (5) and must be aproved by the Commis- sion; ':'(b); The bonds at par of the corporation which is to be- come the owner of, the consolidated properties, together with the outstanding capital stock at par of such corporation, shall not exceed the value of the consolidated properties as deter- mined by the Commission. The value of the properties sought to be consolidated shall be ascertained by the Commission under section 19a of this Act, and it shall be the duty of the Com- mission to .proceed immediately to the ascertainment of such value for the properties involved in ; a proposed consolidation upon the filing of the application for such consolidation. ''(c) Whenever two or more carriers propose a consolidation under this ^section, they shall present their application therefor to the Commission, and thereupon the Commission shall notify the Governor of each State in which any part of the properties sought to be consolidated is situated and the carriers involved in the proposed consolidation, of the time and place for a public hearing. If after such hearing the Commission finds that the public interest will be 'promoted by the consolidation and that the conditions of this section have been or will be fulfilled, it may enter an order approving and, authorizing such consolida- tion, with such modifications and upon such terms and condi- tions as it may prescribe, and thereupon such consolidation may be effweted, in accordance with such order, if all the carriers involved agsent thereto, the law of any State or the decision or order of any State authority to the contrary notwithstanding. " (7) The power and authority of the Commission to approve and authorize the consolidation of two or more carriers shall extend and apply to the consolidation of four express companies into the American Railway Express Company, a Delaware cor- piQi^ation, if applica,tion for such approval and authority is made 416 ORIGINAL JURISDICTION [ § 77a to the Commissian within thirty days after the passag^e of this amendatory Act; and pending the decision of the' 'Commission such consolidation shall not be dissolved. "(8) The carriers Eiffected by' any order made tinder the foregoing provisions of this section and any corporation or- ganized to effect a consolidation approved and authorized in such order shall be, and they are hereby, relieved' from the operation of the 'anti-trust laws,' as designated in section 1 of the Act entitled 'An Act to supplement existing laws against unlawful restraints and monopolies, and for other purposes,' approved October 15, 1914, and of all other restraiiits or prohibi- tions by law. State or Federal, in so far' as may be necessary to enable them to do anything authorized' or required by any order made under and pursuant to the foregoing provisions of this section. • " (9) From and after the fiTst day &f July, nineteen hundred and fourteen, it shall be unlawful for any' railroad company or other common carrier subject to the Act to regulate commerce to own, lease, operate, control, or have any interest whatsoever (by stock ownership or otherwise, either directly, indirectly, through any holding company, or by stockholders or directors in common, or in any other manner) in any common carrier by water operated through 'the Panama Ganal or elsewhere with which said raili-oad or other carrier aforesaid does or may com- pete for trafiSe or any vessel carrying freight or passengers upon said water: route' or elsewhere with which said railroad or other carrier aforesaid does or may compete for traffic; and in Case of' the violation of this provision each day in which such violation continues shall be deemed a separate offense. " (10) Jurisdiction is hereby conferred on the Interstate Com- merce Commission to determine questions of fact as to the com- petition or possibility of competition, after full hearing, on the application of any railroad company or other carrier. Such application may be filed foi* the purpose of determining whether any existing service is in violation of this section and pray for an order permitting the continuance of any vessel or vessels already in operation, or for the purpose of asking an order to install new service not in conflict tvith the provisions of this paragraph. The Commission may on its own motion or the application of any shipper institute proceedings to inquire into § 77a] INTBESTATB COMMERCE COMMISSION 417 the operation of apy vesgftl iri, u^e by any railroad or other carrier wlwch has not, applied to. the commission and had the question of . competition or the possibil.ityj of competition de- tenmined as herein provided. In .aU, jsuch ca^es, the order of said commission shall be final. i ; , , ,','(11). If, the Interstate Commerce^ Cpmmission ,sh^ll be of the opinion that any such existing specified :,serYice by water other than through , thp Panama , Canal is , bping operated in the, interest of the public and is of adyantageto the convenience and commerce of the people, and that such extepsiqii^will n,e,ith^r exclude', prevent, npr reduce competition on,, the route by water under consideration, the. Interstate Commerce Coin.mipsion maj', by order, extend tlie time during, which such service by water may continue: to be operated beyond July first, .nineteen , hun- dred and fourteen.,; In every case of such extension the rates, schedules, and practices: . of such watefr, carrier shall be filed with the; Interstate Comnierce Commission a,nd shall be subject to the Act to regulate commerce and all , ameijdments thereto in. the same manner and to the same ,ex,tent, as is the railroad or other common carrier controlling such jyater carriei: or in- terested in any manner in, its operation :,,, .J'royided, Aiiyi ap- plication for extension under the terms. of this provision filed with the . Interstate Commerce Commission prior tQ July first, nineteen hundred and fourteen, but far, any ];'eason .not heard and disposed of befflrg .said date, may be considered ajad granted thereafter. " ® , , ^ , " (1) Every common carrier subject to the provisions of this Act; shall file with the Cqmmi^sion cijeiated, by this Act and print and; keep open to public inspection schedules showing all the rates, fares^ and charges for transportation between different points on its own route and between points on its own route and points on the route of any, other carrier by railroad, by pipe line, or by .water when a tlirough route and joint rate have ,bieen established. ,, Jf.no joint ra.te over the through route has been established, i the several ,oaJ"ri§r^ in such through, route shall, file, print and keep open .to public inspection as afore- said, the separately established rates, ffargs- an,(J charges applied tO; the through ti'ansportation. ,1116; schedules printed as afore- eibid., §5, 24 St. at L.'380-, as 37 St. at L. 566, Feb. 28, 1920, amended Aug. .24, 1912, ell. 390, §§ 407, 408, Comp. St. §8567. Fed. Prac. Vol. 1—27 418 ORIGINAL JURISDICTION [§ 77a said by any such eommon carrier shall plainly state the places between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the Commission may re- quire, all privileges or facilities granted or. allowed and any rules or regulations which in any wise change, affect, or deter- mine any part or the aggregate of such aforesaid rates, fares, and charges, or the value of the service rendered to the pas- senger, shipper, or consignee. Such schedules shall be plainly printed in large type, and copies for the use of the public shall be kept posted in two public and conspicuous places in every depot, station, or office of such carrier where passengers or freight, respectively, are received for transportation, in such form that they shall be accessible to the public and can be con- veniently inspected. The provisions of this section shall applj'^ to all traffic, transportation, and facilities defined in this Act. "(2) Any common carrier subject to the provisions of this Act receiving freight in the United States to be carried through a foreign country to any place in the United States shall also in like manner print and keep open to public inspection, at every depot or office where such freight is received for ship- ment, schedules showing the through rates established and charged by such common carrier to all points in the United States beyond the foreign country to which it accepts freight for shipment; and any freight shipped from the United States through a foreign country into the United States the through rate on which shall not have been made public, as required by this Act, shall, before it is admitted into the United States from said foreign country, be subject to customs duties as if said freight were of foreign production. " (3) No change shall be made in the rates, fares, and charges or joint rates, fares, and charges which have been filed and published by any common carrier in compliance with the re- quirements of this section, except after thirty days' notice to the Commission and to the public published as aforesaid, which shall plainly state the changes proposed to be made in the schedule then in force and the time when the changed rates, fares, or charges will go into effect; and the proposed changes shall be shown by printing new schedules, or shall be plainly § 77a] INTERSTATE COMMERCE COMMISSION 419 indicated upon the schedules in force at the time and kept open to public inspection: Provided, That the Commission may, in its discretion and for good cause shown, allow changes upon less than the notice herein specified, or modify the requirements of this section in respect to publishing, posting, and filing of tariffs, either in .particular instances or by a general order applicable to special or peculiar circumstances or conditions : Provided further, That the Commission is hereby authorized to make suitable rules and regulations for the simplification of schedules of rates, fares, charges, and classifications and to permit in such rules and regulations the filing of an amendment of or change in any rate, fare, charge, or classification without filing complete schedules covering rates, fares, charges or classi- fications not changed if, in its judgment, not inconsistent with the public interest. "(4) The names of the several carriers which are parties to any joint tariff shall be specified therein, and each of the parties thereto, other than the one filing the same, shall file with the Commission such evidence of concurrence therein or acceptance thereof as may be required or approved by the Com- mission, and where such evidence of concurrence or acceptance is filed it shall not be necessary for the carriers filing the same to also file copies of the tariffs in which they are named as parties. "(5) Every common carrier subject to this Act shall also file with said Commission copies of all contracts, agreements, or arrangements with other common carriers in relation to any traffic affected by the provisions of this Act to which it may be a party. " (6) The Commission may determine and prescribe the form in which the schedules required by this section to be kept open to public inspection shall be prepared and arranged and may change the fonn from time to time as shall be found expedient. "(7) No carrier, unless otherwise provided by this Act, shall engage or participate in the transportation of passengers or property, as defined in this Act, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of tliis Act ; nor shall any carrier charge or demand or collect 420 • ORIGINAL juKiSDlCTiON [§77a; or receive a greater or less or different compensation for such transportation of • passengers or property, or for any service in connection therewith, between' tlie points named in such tariffs than the rates; "fares,' and charges ' which are specifiedi in thie tariff filed and in effect at the time ; nor shall any car- rier refund or remit in any manner or by any device any por- tion of the rates, fares; and charges so specified, nor extend to any shipper or peirson any privileges: or facilities in the trans- portation of passengers or property, except such as are specified- in such tariffs. • '* (8) That in time of war or threatened war preference and precedence shall, upon the demand of the President of i the- United States, 'be giveri, over alL other truffle, for the transpor- tation of' troops and material of war, and carriers shall adopt every means within their control to facilitate and expedite the military trafBc. And in time of peace shipments consigned to agents of the United States for its use shall be delivered by the carriers as promptly as possible and without regard to any embargo that may have been declared, and no such embargo shall apply to shipments so consigned. " (9) The Commission may reject and refuse to file any sched- ule that is tendered for filing which does not provide and give lawful notice of its effective date, and any schedule so rejected by the Commission shall be void and its use shall be unlawful. "(10) In case of failure or refusal on the part of any car- rier, receiver, or trustee to comply with the terms of any reg- ulation adopted and promulgated or any order made by the Commission under the ijrovisions of this section, such carrier, receiver, or trustee shall be liable to a penalty of five hundred dollars for : each such offei^se, and twenty-five,, doUars for each and every day, of the continuance of such offense, which shal] accrue to the United States and may be recovered in a civil action brought by the United States. " (11), If any common carrier subject to the provisions of this Act. after written request made upon the agent of such carrier herrinaftor in tliis section referred to, by any person or com- pany for a written statement of the rate or charge applicable to a described shipment between stated places linder the sched- ules or tariffs to which such carrier is a party, shair refuse or nmit to give such written statement' within a reasonable §. 77a] INTEBSTATK COMMERCE COMMISSION 421 timej or shall misstate in writing the applicable rate, and if the person or company making such request suffers damage in consequence of isuchi refusal or omission or in consequence of the misstatement ; of ; the rate, either through making the ship- ment over a line or route for which the proper rate is higher! than the rate over another available line or route, or through entering into any sale or other contract whereunder such per- son or compainy obligates himself or itself to make such ship- ment of freight at his or its cost, then the said carrier shall be ' liable to a penalty of two hundred and fifty dollars, which shall . accrue ito. the United States and may be recovered in a civil action brought by the United States. ' "(12) -It shall be the duty of every carrier by railroad' to keep at all times conspicuously posted in every station where freight- > is r received for transportation the name of an agent resident in . tihe city, village, , or town where such station is lo-' cated; to ,whom application may^ be made for the information by this section required to be furnished on written request; andiin case an jr. carrier shall fail at any time to have such name so posted in any station, it shall be sufficient to address: such: request in substantially the following form: 'The Station Agent of the ^^. — ^ Company at Station,' together with the name of the proper post-office, inserting the name of thC; carrier cpnipany and of the station an the blanks, and to serve the same by depositing the request so addressed, with postage thereon prepaid, in any post-office. ," (l-S) When property may be or is transported from point to point in the United States by rail and water through; the Panama Canal or .atherwise, the transportation being by a com- mon carrier or carriers; and not entirely within the . limits- of. a single State, the Interstate Commerce Commission shall have jurisdip,tif>n,:of , such transportation and of the carriers, both by rail and by water, which may or do engage in the saine, ,in the following particulars, in. addition to the jurisdiction given by the 4ct to regulate commerce, as amended June .eighteenth, nineteen hundred and ten : . , .,, "(a) To establish physical connection between the lines, of the rail carrier and the dock at which interchange of passenger (^r p];operty i^ to be made by directing the rail carrier to make .suitable coniieetion between it.s line and a track or tracks which 422 ORIGINAL JURISDICTION [§ 77a have been constructed ; from the dock to the limits of the rail- road right of way, or by directing either or both the rail and water carrier, individually or in connection with one another, to: construct and connect with the lines of the rail carrier a track or tracks to the dock. The Commission shall have full authority to determine and prescribe the terms and conditions upon which these connecting tracks shall be operated, and it may, -either in the construction or the operation of such tracks, determine what sum shall be paid to or by either carrier: Pro- vided, That construction required by the Commission under the provisions of this paragraph shall be subject to the same re- strictions as to findings of public convenience and necessity and other matters as is construction required under section 1 of this Act. "(b) To establish through routes and maximum joint rates between and over such rail and water lines, and to determine all the terms and conditions under which such lines shall be operated in the handling of the traffic embraced. " (c) To establish proportional rates or maximum, or mini- mum, or maximum and minimum proportional rates, by rail to and from the ports to which the traffic is brought, or from which it is taken by the water carrier, and to determine to what traffic and in connection with what vessels and upon what terms and conditions such rates shall apply. By proportional rates are meant those which differ from the corresponding local rates to and from the port and which apply only to traffic which has been brought to the port or is carried from the port by a common carrier by water. "(d) If any rail carrier subject to the Act to regulate commerce enters into arrangements with any water carrier operating from a port in the United States to a foreign country, through the Panama Canal or otherwise, for the handling of through busi- ness between interior points of the United States and such foreign countrj', the Interstate Commerce Commission may require such railwa.y to enter into similar arrangements with any or all other lines of steamships operating from said port to the same foreign country. " '^ 7 Ibid., § 6, 24 St. at L. 380, as St. at L. 855, June 29, 1906, ch. amended March 2, 1889, ch. 382, 25 .^591, .S4 St. at L. 586, June 18, § 77a] INTERSTATE COMMERCE COMMISSION 423 "(1) Any person, firm, corporation, ; company, or iassoeiation, or any mercantile, agricultural, or manufacturing society or other organization; or aiiy body politic or municipal .organiza- tion, or any common carrier, complaining of anything done or omitted to be done by any common carrier subject to the provi- sions of this Act, in contravention of the provisions thereof, may apply to said commission by petition, which shall briefly state the facts; whereupon a statement of the complaint thus made shall be forwarded, by the commission ito such common carrier, who shall be called upon to satisfy the complaint, or to answer the same in writing, within a reasonable time, to be specified by the commission. If such, common carrier within the time speci- fied shall make reparation for the injury alleged to hav€ been done, the common carrier shall be relieved of liabilitj' to the complainant only for the particular violation of law thus com- plained of. If such carrier or carriers shall not satisfy the complaint within the time specified, or there shall appear to. be any reasonable ground for investigating said complaint, it shall be the duty of the commission to investigate the matters com- plained of in such manner and by such means as it shall deem proper. " (2) Said commission shall, in liie manner and with the same authority andi powers, investigate any , complaint forwarded by the railroad commission or railroad commission of any State or .Territory at the request of such commissioner or commission, and the Interstate Commerce Commission shall have full author- ity and power at any time to institute an inquiry, on its own motion, in any case and as to any matter or thing concerning which a complaint is authorized to be made, to or before said commission by any provision of this Act, or concerning which any question may arise under any of the provisions of this Act, or relating to the enforcement of any of the provisions of this Act. And the said commission shall have the same powers and authority to proceed with any inquiry instituted on its motion as though it had been appealed to by complaint or petition under any .of the provisions of this Act, including the power to make and enforce any order or orders in the case, or relating, to the 3910. ch. 309, 36 St. at L. 548, Aiig. 604, Feb. 28, 1920, §409-413, Comp. 24, 1912, oh. 390, 37 St. at L. 568, St., § 8569. Aug. 29j,19]6,.oh. 417j 39 St. at. L. 424 ORIGINAL JUBISDICTION [§''"'^'1 matter or thing concerning which the inquiry is had excepting Orders for the payment of money. No complaint shall at any time be dismissed because of the absence of direct damage i to the complainant. "(3) Whenever in any investigation under the provisions of this Act, or in any investigation instituted upon petition of the carrier concerned, which petition is hereby authorized to bfc filed, there shall be brought in issue any rate, fare, charge, classification, regulation, or practice, made or imposed by au- thority of any State, or initiated by the President during the period of Federal control, the Commission, before proceeding, to hear and dispose of such issue, shall cause the State or States interested to be notified of the proceeding. The Commission may confer with the authorities of any State having regulatory jurisdiction over the class of persons and corporations subject to this Act with respect to the relationship between rate structures and practices of carriers subject to the jurisdiction of such State bodies and of the Commission; and to that end is author- ized and empowered, under rules to be prescribed by it, and which may be modified from time to time, to hold joint hearings with any such State regulating bodies on any matters whereii!) the Commission is empowered to act and where the rate-making authority of a State is or may be affected by the action taken by the Commission. The Commission is also authorized to avail itself of the cooperation, services, records and facilities of such State authorities in the enforcement of any provision of this Acti " (4) Whenever in any such investigation the Commission, after full hearing finds that any such rate, fare, charge, classi- fication, r^ulation, or practice causes any undue or unreasonable advantage, preference, or prejudice as between persons or locali- ties in intrastate commerce on the one hand and interstate or foreign commerce on the other hand, or any undue, unreason- able, or unjust discrimination against interstate ' or foreigTa commerce, which is hereby forbidden and declared to be unlaw- ful, it shall prescribe the rate, fare, or charge, or the maximum or minimum, or maximum and minimum thereafter to be charged, and the classification, regulation,, or practice there- after to be observed, in such manner as, in its judgment will remove such advantage, preference, prejudice, or discrimina- tion. Such rates, fares, charges, classifications, regulations, and §-77aJ; inteiistate cO'Mml'kge commission 425 practices shall be observed while iii effect by the carriers parties tO' such proceeding affected thereby, the law of any State or the decision or order of any State authority to the contrary riot-i withstandin g. " * , , , , , "Whenever, after full : hearing, upon a complaint madCjas ■provided in section- 13 of this Act, or after full hearing ujader an order for investigation and hearing made by the Commission on its own initiative, either in extension of any pending pow- plaint or without any complaint whatever, the Commission shall be of opinion' that any individual or joint rate, fare, or charge whatsoever demanded, charged, or collected by any common carrier or carriers subject to this Act for the transportation of pei'sons or property or for the transmission of messages as defined in the iirst' section of this Act, or that any individual or joint classification, regulation; or practice whatsoever of such carri prescribing and determining the divisions of joint rates, fares and charges, the Commission shall give the consideration, among other things, to the efficiency vt^ith which the carriers concert'eid are operated, the amount of revenue required to pay 'theii" i'ie- speetive operating expenses, taxes, and a fair return on their railway property held for and used in the service of transporta- tion, and the importance to the public of the transportation services of such carriers and also whether any particular par- ticipating carrier is an originating, intermediate, or delivering line, and any other fact or circumstances which would ordinarily, without regard to the mileage haul, entitle one carrier to' ' a greater or less proportion than another carrier of the joint rSte, fare or charge. " (7) Whenever there shall be filed with the Commission aHy schedule stating a new individual or joint rate, fare, or charg'e, or any new individual or joint classification, or any new indi- vidual of joint regulation or practice ' affecting any rate, fafe, or charge, the Commission shidl have, and it is hereby given, authority^ either upon complaint or upon its own initiative without ebmplaint at once, and if it so orders without answer or other formal pleading by the interested carrier or carriers, but upon reasonable notice, to enter upon' a heiaring concerning the unlawfulness of such rate, fare, charge, classification, regulation, or practice ; and pending such hearing and the decision thereon the Commission,' upon filing with such schedule and delivery' to the carrier or eari'iers affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, fare, charge, classi- fication, regulation, or practice, but not foir a longer period than one hundred and twenty days beyond the time when it would otherwise go into effect; and after full hearing whether com- pleted befbi-e or after the rate, fare, charge, classification, regu- lation, or practice goes into effect, the Commission may' make such order with reference thereto as would be proper in a pro- ceeding initiated after it had become effective. If any such hearing cannot be concluded within the period of suspension, as above stated, the commission may extend the time of suspension for a further period not exceeding thirty days, and if the pro- ceeding has not been concluded and an order made at the'expira- tion of such thirty days, the proposed change of rate,' fare. § 77a] INTERSTATE. iCOMMERCE COMMISSION 429 iaharge, classification, regulation, , or .practice , shall go into effect at the end of , such period, but, in' .case of a proposed increased rate or charge for or in respect to the transportation of property, the Commission may by order, require the interested carrier or carriers to keep, accurate .account in /detail. of all , ardounts re- ceived .by f reason of such increase, specifying by whom 'and in whose behalf i such amounts are paid,iand( upon .completion, of the liearing and decision mayi by further, order require the interested carrier or carriers to refund; with, interest, to. the persons in whoise ; behalf , such amounts were paijd such portion of such in- ci-eased rates or charges as by: its decision shall be found not justified,.' At any hearing . involving i a. rate; fare, or charge in- creased after ' January 1, 1910, or of la rate, fare, or charge, sought to be increased after the passage of this .Act, the burden of . proof to show that the increased rate, ..fare,^ or charge, or proposed . increased rate, fare, or: charge, is .just, and, reasonable shall be upon the carrier, and the Con^mission shall give to .the hearing and decision of such questions preference over all other •questions pending before it and decide the same as speedily as possible." : :.:. .• .; " (8) In all cases where at the time of delivery of property to any . railroad, corporation being a common carrier for trans- portation subject'to the provisions of this;Aet.to any point of destination, between, which and the point of such delivery for shipment two or more through routes aind. . through rates shall have ibeen established as in this Act provided to which through routes and through rates^ such carrier is a party, the person, firm, or. corporation making such shipment, subject to such i-easpnable. exceptions and regulations as the Interstate Com- merce Commission shall from time to time prescribe, shall have the right to ; designate, in writing by which of such through routes sucih. property shall be transported to destination, and it shall thereupon he the duty! of the. initial carrier. to route said property* and issue a through bill of. ladingi therefor as so • di- rected, and to ; transport said property over its. .own line or lines and deliver the same to a connecting line orjines according to such through route, and.it shall be the duty of each of said con- neetiiig, carriers to receive said, property and transport it over -the said line orilines and. .deliver the same to the next succeeding carrier or consignee aoeording to the routing instructions in said 430 ORIGINAL JURISDICTION | S 77a bill of lading: Provided, however, That the shipper shall in all instances have the right to determine, where competing lines of railroad constitute portions of a through line or route, over which of said competing lines so constituting a portion of said through line or route his freight shall be transported. " (9) Whenever property is diverted or delivered by one car- rier to another carrier contrary to routing instructions in the bill of lading, unless such diversion or delivery is in compliance with a lawful order, rule, or regulation of the Commission, such carriers shall, in a suit or action in any court of competent juris- diction, be jointly and severally liable to the carrier thus de- prived of its right to participate in the haul of the property, for the total amount of the rate or charge it would have received had it participated in the haul of the property. The carrier to which the property is thus diverted shall not be liable in such suit or action if it can show, the burden of proof being upon it, that before carrying the property it had no notice, by bill of lading, waybill or otherwise, of the routing instructions. In any judg- ment which may be rendered the plaintiff shall be allowed to recover against the defendant a reasonable attorney's fee to be taxed in the case. "(10) With respect to* traffic not routed by the shipper, the Commission may, whenever the public interest and a fair dis- tribution of the traffic require, direct the route which such traffic shall take after it arrives at the terminus of one carrier or at a junction point with another carrier, and is to be there delivered to another carrier. "(11) It shall be unlawful for any common carrier subject to the provisions of this Act, or any officer, agent, or employee of such common carrier, or for any other person or corporation lawfully authorized by such common carrier to receive informa- tion therefrom, knowingly to disclose to or permit to be acquired by any person or corporation other than the shipper or con- signee, without the consent of such shipper or consignee, any information concerning the nature, kind, quantity, destination, consignee, or routing of any property, tendered or delivered to such common carrier for interstate transportation, which infor- mation may be used to the detriment or prejudice of such shipper or consignee, or which may improperly disclose his business transactions to a competitor; and it shall also be unlawful for § 77a] INTERSTATE COMMERCE COMMISSION 431 any person or corporation to solicit or knowingly receive any such information which may be so used : Provided, That nothing in this Act shall be construed to prevent the giving of such information in response to any legal process issued under the authority of any state or federal court, or to any ofiSeer or agent of the Government of the United States, or of any State or Territory, in the exercise of his powers, or to any officer or other duly authorized person seeking such information for the prosecution of persons charged with or suspected of crime; or information given by a common carrier to another carrier or its duly authorized agent, for the purpose of adjusting mutual traffic accounts in the ordinary course of business of such car- riers. "(12) Any person, eoi-poration, or association violating any of the provisions of the next preceding paragi-aph of this section shall be deemed guiltj- of a misdemeanor, and for each offense, on conviction, shall pay to the United States a penalty of not more than one thousand dollars. "(13) If 'the owner of property transported under this Act directly or indirectly renders any service connected with such transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be no more than is just and reasonable, and the Commission may, after hearing on a complaint or on its own initiative, determine what is a rea- sonable charge as the maximum to be paid by the carrier or carriers for the services so rendered or for the use of the in- strumentality so furnished, and fix the same by appropriate order, which order shall have the same force and effect and be enforced in like manner as the orders above provided for under this section. "(14) The foregoing enumeration of powers shall not ex- clude any power which the Commission would otherwise have in the making of an order \inder the provisions of this Act."'* " (1) When used in this section the tei'm 'rates' means rates, fai-es, and charges, and all classifications, regulations, and prac- tices, relating thereto; the term 'carrier' means a carrier by railroad or partly by railroad and partly by water, within the continental United States, subject to this Act, excluding (a) 9«Ibicl. 432 ORIGINAL JURISDICTION [§ '''7a sleeping-ear companies a;nd express' companies, (b) street or suburban electric railways unless operated as a part of a gen- eral steam railroad sj^stem of trajisportation, ' (e) interurban electric railways unless operated as a part of a general steam raili^oad system of transportation or engaged in the general transportation of freight, and (d) any belt-line railroad,' ter- minal switching railroad, or other terminal facility, owned ex- clusively and maintained, operated, knd controlled by any State or political subdivision thereof ; and the term ' net railway oper- ating income ' means railway operating income, including in the computation thereof debits and credits arising from equip- ment tents and joint facility rents. ' "(2) In the exercise of its power to prescribe just and rea- sonable rates the Commission shall initiate, modify, establish or adjust such rates so that cairriers as a whole (or as a whole in each of sUch rate groups or territories as the Commission may from time to tilrie designate) will, under honest, efficient and economical management and reasonable expenditures for maintenance of way, structures and equipment, earn an aggre- gate annual net railway operating income equal, as nearly' as may be, to a fair return upon' the aggregate value of the rail- way property of such eairriers held for and used in the s'erviefe of transportation : Provided, That the Commission shall have reasonable latitude to modify or adjust any particular rate whie'h it may Md to be unjust or unreasonable, and to pre- scribe different rates for different sections of the country. ""(3) The Commission shall from time to time determine and make public what percentage of such aggregate property value constitutes a fair return thereon, and such percentage shall be uniform for all rate groups or territories which may be desig- nated by the Comlhission. In making such determination it shall give due consideration, ainong other things, to the traiis- portation' needs of the country and the necessity (under honest, efficient and economical management of existing transportation facilities) of enlarging such facilities in order to provide the people of the TTnitcd States with adequate transportation: Pro- vided, That dui-ing the two y eats beginning March' 1, 1920, the Commission shall take as such fair return a sum equal to •''V2 P^r centum of such aggregate value, but may, in its dis- cretion, "add thereto a sum not exceeding one-half of one per § 77a] INTERSTATE COMMEECE COMMISSION 433 centum of such aggregate value to make provision in whole or in part ior improvements, betterments or equipment, which, according to the accounting system prescribed by the Commis- sion, are chargeable to capital account. "(4) For the purposes of this section^ such-aggregate value of the property of the carriers shall be determined by the Com- mission' from time to' time and as often a& may be necessary. The Commission may utilize the results of its investigation under section 19a of this Act, in so far as deemed by it available, and shall give due consideration to all the elements of value recog- nized by the law of the land for rate-making purposes, and shall give to the property investment account 'of- the carriers, only that consideration which under such law it is entitled to in! establishing values for rate-inaking purposes. Whenever pursuant to section 19a of this Act the value of the railway property of any carrier held for and used in the service of transportation has 'been finally ascertained, the value so ascer- tained shfill be deemed by the Commission to be the value thereof for' the purpose of determining such aggt'egate- value. "(5) Inasmuch as it is impossible (without tegulation and control in the interest of the commerce of the United States considered as a whole) to establish uniform rates upon com- petitive traffic which will adequately sustain all the carriers which are engaged in such traffic and which are indispensaible to the communities to which they render the service of trans- portation, without enabling some of such carriers to receive a net railway operating income substantially and unreasonably in excess of a fair return upon the value of their 'railway prop- erty held for and used in the service of transportation, it is hereby declared that any carrier which receives such an in- come so in excess of a fair return,- shall hold such part of the excess, as hereinafter prescribed, as trustee for, and shall paj- it to, the United' States. • "(6) If, under the provisions of this section, -any carrier receives for any year a'^net i railway operating income in excess of 6 per centum of the value of the railway property held for and used by it in the service of transportation, one-half of such excess shall be placed 'in a' reserve fund established and maintained by such carrier, and the remaining one-half thereof shall, within the first fo'nr months following' the close of the Fed. Prac. VoL 1—28 434 ORIGINAL JURISDICTION [§ ?'<'» period for which such computation is made, be recoverable by and paid to the Commission for the purpose of establishing and maintaining a general railroad contingent fund as here- inafter described. For the purposes of this paragraph the value of the railway property and the net railway operating income of a group of carriers, which the Commission finds are under common control and management and are operated as a single system, shall be computed for the system as a whole irrespective of the separate ownership and accounting returns of the various parts of such system. In the case of any carrier which has accepted the provisions of section 209 of this amendatory Act the provisions of this paragraph shall not be applicable to the income for any period prior to September 1, 1920. The value of such railway property shall be determined by the Commis- sion in the manner provided in paragraph (4). " (7) For the purpose of paying dividends or interest on its stocks, bonds, or other securities, or rent for leased roads, a carrier may draw from the reserve fund established and main- tained by it under the provisions of this section to the extent that its net railway operating income for any year is less than a sum equal to 6 per centum of the value of the railway prop- erty held for and used by it in the service of transportation, determined as provided in paragraph (6) ; but such funds shall not be drawn upon for any other purpose. "(8) Such reserve fund need not be accumulated and main- tained by any carrier beyond a sum equal to 5 per centum of the value of its railway property determined as herein pro- vided, and when such fund is so accumulated and maintained the portion of its excess income which the carrier is permitted to retain under paragraph (6) may be used by it for any law- ful purpose. "(9) The Commission shall prescribe rules and regulations for the determination and recovery of the excess income pay- able to it under this section, and may require such security and prescribe such reasonable terms and conditions in connec- tion therewith as it may find necessary. The Commission shall make proper adjustments to provide for the computation of excess income for a portion of a year, and for a year in which a change in the percentage constituting a fair return or in the value of a carrier's railway property becomes effective. § 77a] INTERSTATE COMMERCE , COMMISSION 435 " (10) The general railroad contingent fund so to be recover- able by and paid toi the Commission and all accretions thereof shall be a revolving fund and shall be adniinistered by the Commission. It shall be used by the Commission in further- ance of the public interest in railway transportation either by making loans to carriers to meet expenditures for capital ac- count or to refund maturing securities originally issued for capital account, or by purchasing transportation equipment and facilities and leasing the same to carriers, as hereinafter pro- vided. Any moneys in the fund not so employed shall be in- vested in obligations lof the United States or deposited in au- thorized depositories of the United States subject to the rules promulgated from time to time by the Secretary of the Treasury relating to Government deposits. "(11) A carrier may at any time make application to the Commission for a loan from the general railroad contingent funds, setting forth the amount of the loan and the term for which it is desired, the- purpose of the loan and the uses to which it will be applied, the present and prospective ability of the applicant to repay the loan and meet the requirements of its obligations in that regard, the character and value of the security oifered, and the extent to which the public con- venience and necessity will be served. The application shall be accompanied by statements showing such facts and details .as the Commission may require with respect to the physical situation, ownership, capitalization, indebtedness, contract, ob- ligations, operations, and earning power of the applicant, to- gether with such other facts relating to the propriety and expediency of granting the loan applied for and the ability of the applicant to make good the obligation, as the Commis- sion may deem pertinent to the inquiry. '^(12) If the Commission, after such hearing and investiga- tion, with or without notice, as it may direct, finds that the making, in whole or in part, of the proposed loan from the general railroad contingent fund is necessary to enable the applicant properly to meet the transportation needs of the public, and that the prospective earning power of the applicant and the character and value of the security offered are such as to furnish reasonable assurance of the applicant's ability to repay the loan within the time fixed therefor, and to meet 436 ORIGINAL JURISDICTION [§ 77a its other obligations in connection with such Joan, the Com- mission- ma;y make a loan to the applicant from such railroad contingent fund, in such amount, for such length of time, and under such terms and conditions as it may deem proper. The Commission shall also prescribe the security to be furnished, which shall be adequate to secure the loan. All such loans shall bear interest at the rate of 6 per centum per annum,' pay- able isemiannually to the i Commission, i Such loans when repaid, and all interest paid thereon, shall be placed in the general railroad contingent fund. 1 "(13) A carrier may at any time make application to the Commission for the lease to it of transportation equipment or facilities, purchased from the general railroad contingent' fund, setting forth the kind and amount of such equipment or facilities and the term for which it; is desired to be leased, the uses to which it is proposed to put such equipment or facilities, the present and prospective ability of the applicant to pay the rental charges thereon and to meet the requirements of its ob- ligations under the lease, and the extent to which the public convenience and necessity will be served.- The application shall 'he ai3companied by statements showing such facts and details as the Commission may require with respect to the physical situation, ownership, capitalization, indebtedness, contract obli- gations,' operation, and earning power of the applicant, to- gether with such other facts relating to the propriety and expedielicy of leasing such ' equipment or facilities to the ap- plicant a',^' the Coitimissi'oii' may deem pertinent to the inquirj^ "(14) If the Commission, after such hearing and investiga- tion, with or without notice, as it may direct, finds that the leasiiig to the applicant of such eqilipmeiit oi- facilities, in whole or in part, is necessary to enable the applicant properly to meet the transportation needs of the public, and that the pro- spective earning ppwcr of the applicant is such as to furnish reasonable assurance of the applicant's ability to pay promptly the rental charges and meet its other obligations under such lease, the Cgmmissipn may lease such equipnaent or facilities purchased by it from the general , railroad contingent fund, to the applicant fpr such, length of time, and under such terms an(J conditions as it may ,d.?em,, propers The rental charges I'TtaJ INTERSTATE COMHERCE COMMISSION 437 provided in everj^ such lease shaill be at least sufficient to pay a return of 6 per centum per annum, plus allowance for de- preciation determined as provided in paragraph (5) of section 20 of this Act, upon the value of the equipftient or facilities leased thereunder. All rental charges and other payments re- ceived by the Commission in connection with' such equipment and facilities, including amounts received under any sale there- of, shall be placed in the general railroad contingent fund. " (15) The Commission^ may from time to time purchase, con- tract for the constniction, repair and replacement of, and sell, equipment and facilities, and enter into and carry out con- tracts and other obligations in connection therewith, to the extent that moneys included in the general railroad contingent fund are available therefor, and in so far as necessary to en- able it to secure and supply equipment and facilities to carriers whose applications therefor ai'e approved under the provisions of this section, and to maintain and dispose of such equipment and facilities. " (16) The Commission may from time to time prescribe such rules and regulations as it deems necessary to carry out the provisions of this section respecting the making of loans aild the lease of equipment and facilities. ''(IT) The provisions of this section shall not be construed as depriving shippers of their right to reparatioii in ease of overcharges, unlawfulh- excessive or discriminatory rates, or rates excessive in their relation to other rates, 'Bui' no shipper ' shall be entitled to recover upon, the sole groulid' that any par- ticular rate may reflect a proportion of excess income to be paid by the carrier to the Commission in the public interest under the provisions of this section. '^ (18) Any carrier, or. any corporation organized to construct and< operate a railroajd, proposing to undertake the construc- tion and .pperatipn of ,^ new line pf i-ailroad may apply to tlie Commission for permissipn to retain fpr a period not to exceed ten years all or any part of its earnings derived from such new construction in excess .of the amount heretofore in this section provided, for such disposition as it may lawfully make of the same, and the Commission may, in its discretion, grant such permission, conditioned, however, upon the com- 438 ORIGINAL , 4UEISD1CTI0N [§ 77a pletion by the Commission in its order granting such permis- sion." i« " (a) The commission shajl, as herein^ifter provided, my esti- gate, ascertain, and report the value of all the property ojvned or used by every common carrier subject to the provisions of this Act. To enable, the commission to make such investiga- tion and report, it is authorized to employ such experts and other assistants as may' be necessary. The commiission may appoint examiners who shall have power to administer oaths, examine witnesses, and take testimony. The commission shall make an inventory which shall list the property of every com- mon carrier subject to the provisions of this Act in detail, and show the value thereof as hereinafter provided, and shall classify the physical property, as nearly as practicable, in conformity with the classification, of expenditures for road and equipment, as prescribed by the Interstate Commerce Commission. "(b) First. In such investigation said commission shall as- certain and report in detail as to each piece of property owned or used by said common carrier for its purposes as a common carrier, the original cost to date, the cost of reprpduction new, the cost of reproduction less depreciation, and an analysis ,pf the methods by which these several, costs are, obtained, and t^e reason for, their differences,, if any. The commission shall in like manner ascertain and i;epprt separately other values, and elements of value, if any, of the property of suclT common car- rier, and an analysis of the methods of valuation employed, and of the reasons for any differences between any such value, and each of the foregoing cost values. "Second. Such investigation and report shall state in detail and separately from improvements the original cost of all lands, rights of way, and terminals owned or used for the purposes of a common carrier, and ascertained as of the time of dedica- tion to public use, and the present value of the same, and sep- arately the original and present cost of condemnation and dam- ages or of purchase in excess of such original cost or piresent value. "Third. Such investigation and report shall show separately 10 Act of Feb. 4, 1887, ch. 104, §15a, 24 St. at L. 385, as added, Feb. 28, 1920, oh. —, '§§'422, 8583a. § 77a] INTERSTATE COMMERCE COMMISSION 439 the property held for purposes other than those of a commo]i carrier, and the original cost and present valine of the same, together with an analysis of the meiihods of valuation employed. "Fourth. In ascertaining the original cost to date of the property of such' "common carrier the commission, in addition to such other elements as it may deem necessary, shall investi- gate and report upon the history and organization of the present and of ainy previous corporation operating such property ; upon any increases or decreases of stocks, bonds, or bther securities, in any reorganization; upon moneys received by any such cor- poration by reason of any issues of stocks, bonds, or other se- curities; upon the syndicating, banking, and other financial arrangements under which such issues were made and the ex- pense thereof; and upon the net and gross earnings of such corporations; and shall also ascertain and report in such detail as m'ay be determined by the commission upon the expenditure of all' moneys and the purposes for which the same were ex- pended. ' . II , "Fifth. The commission shall ascertain and report the amount and value Of any aid, gift, grant of right of way, or donation, made to any such common carrier, or to any previous corpora- tion operating such property, by the Government of the United States or by any State, county, or municipal government, or by individuals, associations, or corporations; and it shall also as- certain and report the grants "of land to any such common car- rier, or any previous corporation operating such property, by the Government of the United States, or by any State, county, or municipal government, and the amount of money derived from the sale of any portion of such grants and the value of the unsold portion thereof at the time acquired and at the present time, also, the amount and value of any concession and allowance made by such common carrier to the Govern- ment of the Uttited States, or to any State, county, or municipal government in consideration of such aid, gift, grant, or donation. "(c) Except as herein otherwise provided, the commission shall have power to prescribe the method of procedure to be followed in the conduct of the investigation, the form in which the results of the valuation shall be submitted, and the classifi- cation of the elements that constitute the ascertained value, and such investigation shall show the value of the property of 44G '.H ORIGINAL JURISDICTION [§ 77* every: common carrier as a whole and separately the value of its property . in, each of the several States and Territories and the District of Columbia, classified and in detail as herein re- quired. ^ • ,■ "(d) Such investigation shall be commenced within- sixty days after J the approvalof this Act and shall be prosecuted with diligence and thoroughness, a;nd the result thereof re^ ported to Congress at the beginning, of each regular session thereafter until completed. " (e) Every common carrier subject to the provisions of this Act shall furnish to the commission or its agents from time to time and as the commission may require maps, profiles, con- tracts, reports of engineers, and any other documents, records, and papers, or copies of any or all of the same, in aid of such investigation and determination of the value of the property of said common carrier, and shair grant to all agents of the commission free: access to its right of way, its property, ajid its accounts, records, and memoranda whenever and wherever requested by any such duly authorized, agent, and every com- mon carrier is hereby directed and required to cooperate with and aid the commission in the work of the valuation of its prop- erty in such further particulars and tO'SUCh extent as the com- mission may require and direct, and all rules and regulations made by the commission for the purpose of administering the provisions of this section and section twenty of this Act shall have the f uU force and efEect of law. Unless otherwise ordered by tlie commission, with the reasons therefor, the records and data of the commission shall be open to the inspection and ex- amination of the public. "(f) Upon , the , completion of the valuation herein provided for ,the commission shall thereafter in like manner keep itself informed of all extensipipis and improvements or other changes in the condition and value of the property of all common car- riers, and shall ascertain the, value, thereof, and shall from time to time, revise and correct its valuations, showing such revision and correction classified' and as a whole and separately in each of the several; States and Territories and the District of Colum- bia, wliich valuations, both original and corrected, .shall be tentative yaluatipns;and* shall be reported to. Congress at the beginning of each regular session. : § 77a] INTERSTATE COMltfEReE CO'M'BIISSION 441 ''(g) To enable the commission to make such changes and corrections in its valuations of each class of' property, every common carrier subject to the provisions of this Act' shallmake such reports and furnish -sudh' information as the commission may require. - • , , , " (h) Whenever the commission shall have completed the ten- tative valuation of the property of any common Carrier, as heftein directed, and before such valuation shall becoine final, the commission shall give notice by' registered letter to the said carrier, the Attorney General of the 'United States, the governor of any State in which the property so valued is located, and to sui3h additional parties as the commission may ' prescribe, stating the valuation placed upon the several classes of property of said carrier, and shall allow thirty days in which to file a prbtest'of the same with the commission.' If no protest is filed within thirty days, said valuation shall become final as of the date thereof. ■ ' . •• ,: , , "(i) If notice of protest is filed the commission shall fix a time for hearing the same, and shall proceed as promptly as may be to hear and' consider any 'matter relative and material thereto which may be presented in support of any such protest so filed as aforesaid. If after hearing any protfe'st of such tentative valuation under the provisions of this Act the com- mission' shall be of -the opinion that its valuation ' should not become final, it shall make such changes as may be necessary, and shall issue an order making such corrected tentative valua- tion final as of the date thereof. All final valuations 'by the commission and the classification thereof shall-be published and shall be ' prima facie evidence of the value of tbe property in all proceedings under the Act to regulate commerce as of the date of the fixing thereof i and in all judicial proceeding's for the enforcement of the Act approved' February fourth, eighteen hundred and eighty-seven, commonly known as ' the Act to' reig- ulate commerce,' and the various Acts amendatory thereof, and in all judicial proceedings brought to enjoin, set aside, annul, or suspend, in 'whole or in part, any order of' the Ititerstate Commerce Commission; ' "' ' ' ' • ''''(,'ji)' If upon the trial of any action involving a final value feed by the^ commission, evidence shall be ,introduced regard- ing suchi'value whiehis found bythe court to be, different from 442 ORIGINAL JURISDICTION ; [§;77a that offered upon the hearing bef pre the commission, or addi- tional thereto and substantially affecting said value, the court, before proceeding to render judgment shall, transmit a copy of such evidence to the commission, and shall stay further pro- ceedings in said action for such time as the court shall deter- mine from the date of such transmission. Upon the receipt of such evidence the commission shall consider the same and may fix a final value different from the one fixed in the first instance, and may alter, modify, amend or rescind any order which it has made involving said final value, and shall report its action thereon to said court within the time fixed by the court. If the commission shall alter, modify, or amend its order, such altered, modified, or amended order shall take the place of the original order complained of and judgment shall be rendered thereon as though made by the commission in the first instance. If the original order shall not be rescinded or changed by the commission, judgment shall be rendered upon such original order. " (k) The provisions of this section shall apply to receivers of carriers and operating trustees. In case of failure or re- fusal on the part of any carrier, receiver, or trustee to comply with all the requirements of this section and in the manner prescribed by the commission such carrier, receiver, or trustee shall forfeit to the United States the sum of five hundred dollars for each such offense and for each and every day of the con- tinuance of such offense, such forfeiture to be recoverable in the same manner as other forfeitures provided for in section sixteen of the Act to regulate commerce. "(1) That the district courts of the United States shall have jurisdiction, upon the application of the Attorney General of the United States at the request of the commission, alleging a failure to comply with or a violation of any of the provisions of this section by any common carrier, to issue a writ or writs of mandamus commanding such common carrier to comply with the provisions of this section. ' ' ^^ The Supreme Court of the United States has directed the issue of the writ of mandamus to compel the Commission to in- vestigate and to report separately the present cost of condemna- 11 Act of Feb. 4, 1887, ch. 104, 37 St. at L. 701,' Feb. 28, 1920, eh. §19a, added, March 1, 1913, eh. 92, — , 5 433, Comp. St. S 8591. § 77a] INTERSTATE COMMEECB COMMISSION 443 tion and damages or' of purchase in excess of such original cost or present value of property owned or used by a common carrier employed in interstate commerce. ^^ " (!)■ The Oorhinissioii is hereby authorized to require annual reports from all conimon carriers subject to the provisions of this Act, and from the owners Of all railroads engaged- in inter- state commerce as defined in this Act, to prescribe the manner in' which such reports shall be made, and to require from such carriers specific answers' t6' all 'questions upon which the Com- mission may need information. 'Such annual reports shall show in detail the' amount of capital stock issued, 'the amounts paid therefor, Md the rhanner" of payment for the same; the divi- dends paid, the surplus fund, if any, and the number of stock- holders- the funded and floating debts and the interest pa;id thereon ; the cost and value of the carrier 's property, franchises, aiid equipments ; the number of employees and the salaries paid ea'eh class; the' accidents to passengers, employees, and otheir persons, and the fcauses thereof; the amounts expended for im- provements each year, how expended, and the ' character of such iniprovements ; the earnings and receipts from each branch of business and from all' sources ; the operating and other expenses ; tlie balances of profit and loss; and a complete exhibit of the financial operations of the carrier each year, including an an- nuar balance "sheet. Such reports shall also contain such in- formation in relation to rates or regulations concerning fares or freights, or agreements, arrangements, or contracts affect- ing the same ais the Commission may require; and the Com- mission may, in its discretion, for the purpose of enabling it the better to carry out the purposes of this Act, prescribe a period 'of time within whieli all common carriers subject to the provisions of this Act shall have, as near as may be, a uni- form system ' of accounts, and the manner in which sucii ae- eotints shall be kept. "(2) Said detailed reports shall contain all the required statistics for the period of tWelve months ending on tfie thirtieth day of Juiie ii^.'each year, oi* on the thirty -"first day of Decem- ber in each year if the commission by order substitute that 12 TJ. S. ex rel. Kansas City South- Commission, Sup. Gt., IT, S., March ern Ey. Co. v. Interstate Gonimerce 8, 1920, 444 ORIGINAL J UEISDICTION, [^ Tlo. period for the year ending June thirtieth, and shall be made out under oath and , filed with the commission at its office in Washington within three months after the close of the year for which thp report is made, unless additiongj time be granted in any case by the commission; and if any carrier, person, or. corporation subject to the provisions of this Act shall fail .to, make and file said annual reports within the time above specified, or within , the . time, extended by the commission, for making and filing the same, ; or. shall iail to make specific answer to, any question authorized by the provisions of this section within thirty. days from the time it is lawfully required so to do, such party shall forfeit to the United States the sum of one hundred dollars for each. and i every day it shail continue to bein default with, respect thereto. The commission shall also have authority by. general or special orders to require said, carriers, or any of them, to file monthly reports of earnings and expenses, and 1o file periodical ori special, or both periodical and special, re- ports concerning any, matters about which the commission is authorized or required by this or any other law to inquire or to keep itself informed or which it is required to enforce ; and such, periodical, or special reports shall be under oath whenever the, commission so requires ; and if any sueli carrier shall fail to; make and file any , such, periodical or special report within the time fixed by, the comniission, it shall be subject, to the forfeitures last above provided. " (3) Said forfeitures shall be recovered in the manner pro- vided foi- the recovery of forfeitures under the provisions of this Act. " (4). The path required by this section may be taken before any person authorized to administer an oath by the laws of the State in lyhich the same is; taken. , "(5) The Commission -may, in its discretion, prescribe the forms of any and all accounts, records, and memoranda to bp kept bj' carrier.s subject to the provisions of this Act, including the accounts, record^, and memoranda of the movement of traffic, as weJl a.s of the Receipts and expenditures of moneys. The Commission shall, as soon as practicable, prescribe, for carriers .'■ubject to this Act, the classes of property for which depreciation charges may properly be included under operating expenses, and the pprcmtages of depreciation which shall be charged § 77a] INTERSTATE OOMMEECB COMMISSION 445 with respect to each of ■ such classes of property, classifying the carriers as it may deem proper for this i purpose. The Gom- mission may, when it deems necessary, modify the classes and percentages so -prescribed.' The carriers subject to,, this, Act shall not charge to operating expenses any depreciation ehargey on classes of property i other than those prescribed by itheiGom- mission, or charge with respect to any class of property a per- centage of depreciation! other than that prescribed therefor by the Commission. No such 'carrier shall in any case include in any form under its operating or other expenses, any deprecia- tion qr other charge or expenditure included elsewhere as a depreciation charge or otherwise under its operating or other expenses. The commission shall at all times have access to all accounts; records, and memoranda, including all . documents, papers, and correspondence now or hereafter existing, and kept or required to be kept by carriers subject to this Act, and the provisions of this section respecting the preservation and de- struction of books, papers,! and documents shall apply thereto, and it shall be unlawful for such carriers to keep any other accounts, records^ or memoranda than those prescribed or ap- proved by the Commission, and it may employ special agents or examiners, who; shall halve authority under the order of the Commission to inspect and, examine any and all accounts, rec- ords, and memoranda, including all documents, papers, and correspondence now or hereafter existing, and kept or required to be kept by such carriers.- This provision shall apply to receivers- of carriers and operating trustees. The provisions of this section shall also apply to all accounts, records, and mem- oranda, including all documents, papers, and correspondence now or hereafter existing, kept during the :period of Federal control, a:nd placed by the President in the custody of carriers subject to this Act. " (6) In case of failure or refusal on the part of any such carrier, receiver, or trustee to keep such accounts, records^ and memoranda on the booksi and in the manner prescribed by the Coiimiission, or to submit such accounts,' records, and mem- oi-anda as are kept to the inspection , of the Commission or any of its authorized agents or examiners, such carrier,, receiver, or trustee shall forfeit to the ■ United States the sum of five hundred dollars for each such offense and for each and every 446 ORIGINAL JURISDICTION [§ 77a day of the continuance of such offense, such forfeiture to be recoverable in the same manner as other forfeitures provided for in this Act. "(7) Any person who shall willfully make any false entry in the accounts of any book of accounts or in any record or memoranda kept by a carrier, or who shall willfully destroy, mutilate^ alter, or by any -other means or device falsify the record of any such account, record, or memoranda, or who shall willfully neglect or fail to make full, true, and correct entries in such accounts, records, or memoranda of all facts and trans- actions appertaining to the carrier's business, or shall keep any other accounts, records, or memoranda than those prescribed or approved by the Commission, shall be deemed guilty of a misdemeanor and shall be subject, upon conviction in any court of the United States of competent jurisdiction, to a fine of not less than one thousand dollars nor more than five thousand dollars, or imprisonment for a term not less than one year nor more than three years, or both such fine and imprisonment : Provided, That the commission may in its discretion issue orders specifying such operating, accounting, or financial papers, rec- ords, books, blanks, tickets, stubs, or documents of carriers which may, after a reasonable time, be destroyed, and prescribing the length of time such books, papers, or documents shall be preserved. ' "(8) Any examiner who divulges any fact or information which may come to his knowledge during the course of such examination, except in so far as he may be directed by the Commission or by a court or judge thereof, shall be subject, upon conviction in any court of the United States of competent jurisdiction, to a fine of not more than five thousand dollars or imprisonment for a term not exceeding two years, or both. " (9) That the circuit and district courts of the United States shall have jurisdiction, upon the application of the Attorney- General of the United States at the request of the Commission, alleging a failure to comply with or a violation of any of the provisions of said Act to regulate commerce or of any Act supplementary thereto or amendatory thereof by any common carrier, to issue a writ or writs of mandamus commanding such common carrier to comply with the provisions of said Acts, or any of them. § TTa] INTERSTATE COMMEKCE COMMISSION 447 " (10) And to carry out and give effect to the provisions of said Acts, or any of them, the Commission is hereby authorized to employ special agents or examiners who shall have power to administer oaths, examine witnesses, and receive evidence." ^' " (1) As used in this section the term 'carrier' means a com- mon carrier by railroad (except a street,, suburban, or inter- urban electric railway which is not operated as a part of a general steam railroad system of transportation) which is sub- ject to this Act, or any corporation organized for the purpose of engaging in transportation by railroad subject to this Act. "(2) Prom and after one hundred and twenty days after this section takes effect it shall be unlawful for any carrier to issue any share of capital stock or any bond or other evidence of interest in or indebtedness of the carrier (hereinafter in this section collectively termed 'securities') or to assume any obligation or liability as lessor, lessee, guarantor, indorser, suretj"-, or otherwise, in respect of the securities of any other person, natural or artificial, even though permitted by the au- thority creating the carrier corporation, unless and until, and then only to the extent that, upon application by the carrier, and after inyestigation by the Commission of the purposes and uses of the proposed issue and the proceeds thereof, or of the proposed assumption of obligation or liability in respect of the securities of any other person, natural or artificial, the Commission by order authorizes such issue or assumption. The Commission shall make such order only if it finds that such issue or assumption: (a) is for some lawful object within its corporate purposes, and compatible with the public interest, which is necessary or appropriate for or consistent with the proper performance by the carrier of service to the public as a common carrier, and which will not impair its ability to per- form that service, and (b) is reasonably necessary and appro- priate for such purpose. " (3) The Commission shall have power by its order to grant or deny the application as made, or to grant it in part and IS Act of Feb. 4, 1889, eh. 104, 309> § 14, 36 St. at L. 555, March § 20, 24 St. at L. 386, amended 4, 1915, ch. 176, § 1, 38 St. at L. June 29, 1906, eh. 3591, §7, 34 St. 1196, Aug. 9, 1916, ch. 301, 39 St. at L. 593, Feb. 25, 1909, eh. 193, at L. 441, Feb. 28, 1920, ch. — , .■?5 St. at L. 649, June 18, 1910, ch. • § 433, Comp. St.. § 8592. 448 ORIGINAL JURISDICTION [§.77a deny it in part, or ;to grant it with such modifications and upon such terms and conditions as the Commission may deem nec- essary or appropriate in the premises, and may from time to time, for good cause shown, make such supplemental orders in the premises as it may deem necessary or appropriate,- and may by any such supplemental order modify the provisions of any previous order as to the particular purposes, uses, and extent to which, or the conditions under which, any securities so there- tofore authorized or the proceeds, thereof may be applied, sub- ject always to the requirements of the foregoing paragraph (2). "(4) Every application for authority shall be made in such form and contain such matters as the Commission may prescribe. Every such application, as also every certificate of notification hereinafter provided for, shall be made under oath, signed and filed on. behalf of the carrier by its president, a vice president, auditor, comptroller, or other executive ofiiGer.having. knowledge of the matters therein set forth and duly designated for that purpose by the carrier. " (5) Whenever any securities set forth and described in any application for authority or certificate of notification as pledged or held unencumbered in the treasury of the carrier shall, sub- sequent to the filing of such application or certificate, be sold, pledged, repledged, or otherwise disposed of by the carrier, such carrier shall, within ten days after such sale, pledge, re- pledge, or other disposition, file with the Commission a cer- tificate of notification to that effect, setting forth therein all such facts as may be required by the Commission. "(6) Upon receipt of any such application for authority the Commission shall cause notice thereof to be given to and a copy filed with the governor of each State in which the ap- plicant carrier operates. The railroad commissions, public serv- ice or utilities commissions, or other appropriate State authori- ties of the State shall have the right to make before the Com- mission such representations as they may deem just and proper for preserving and conserving the rights and interests of their people and the States, respectively, involved in such proceedings. The Commission may hold hearings, if it sees fit, to enable it to determine its decision upon the application for authority. " (7) The jurisdiction conferred, upon the Commission by this section shall be exclusive and plenary, and a carrier may issue , § 77a] INTERSTATE COMMERCE COMMISSION i^9 securities and, assume obligations or liabilities in accordance T!(fith the provisions of this section without securing approval Qther than as speci^ed herein. , f'(8) I^Tothing herein shall be construed to imply any guar- anty or pbligatipn as to such securities on the part of the United States. ,,| ■ ," (9) The foregoing provisions of this section shall not apply to notes to bei issued by the carrier maturing not more than t^wq years after the date thereof and aggregating (together with, all other then outstanding notes of a maturity of two years or less) not more than 5 per centum of the par value pfthe securities of the carrier then outstanding. In the case {}f securities having no par value, the par value for the pur- pose of this paragraph shall be the fair market value as of Jthe date of issue. Within ten days after the mating of such i^ptes the , carrier issuing the same shall file with the Commission a certificate of notification, in such form as may from time to tjme be determined and prescribed by the Commission, setting forth as nearly as may be the same matters as thosei required in respect of applications for authority to issue other securities : Provided, That in any subsequent funding of such notes the provisiqns of this section respecting other securities shall apply. " (;l6) The Commission shall require periodical or special re- ports from each carrier hereafter issuing any securities, in- eluding such nqtes, which shall show, in such, detail as the Com- mission may, require, the disposition made of such securities and the application of the proceeds thereof. ."(11) Any security issued or any oblijgation or liability as- sumed by a carrier, for which under the provisions of this, sec- tion the authorization of the Commission is required, shall be void, if issued or assumed without such authorization therefor haying firist, been obtained, or if issued or assumed contrary to any term or condition of such order of authorization as modi- fied by any order supplemental thereto entered prior to such issuance or assumption; but no security issued or obligation or liability assumed in accordance with all the terms and con- ditions of such an order of authorization therefor as modified by any order supplemental thereto entered prior to such is- siiance or assumption, shall be rendered void because of failure to comply witli any provision of this section relating to pro- Fed. Prac Vol. I— 29 ill (. -■.■;.■. 1 '' . t , ''■''! •~" '■ 450 ORIGINAL JUEISDICTION [§ 77a 'cedure and^ptlier'm the^'ehtJfy.of 'such ordei of auth6']fiza:tion. ' If any "security 'so made void or iaiiy security in respect to wMch. the assumption of obligation jjr liability ,is so in^'de void, is ^acquired by any person for value and in 'good fai^V and wil!houi' notice that the issue or assumption is void, guch, person, may in a, suit or action in any court bf com- pefjeiit jurisdiction hpld jointly and sever,ally liable for the full * amount ~of the damage sustained pj him in respect thereoi, the carrier ^hich'issued the'security so made void, or assumed the "pl)ligati6n op; liability so made void, and its directors, officers, attorneys, aiid'other ^agents, who 'particij)ated iii any way in the authorizing, issuing, "hyj^pthecating, * or selling of the security ., so made y6i,d or in the 'authorizing of the assumption of the 'obligation or liability so made void. In,, ckse any security go niade void, was air ecify acquired from the carrier issuing it, the holder maj^, at his bptioh. rescind the tfans^ and upon the _ surrender of the security r^eoyer'the q6iisi4eration given there- ,,for. ' Aiiy director, pmcer, attorney or agent of the carrier wlio feriowirigly assents to or concurs iii! any. issue of securities or assumptions of., ohligations oi* liability forbidden by this sec- tion, or any sale or oth^r disposition of securities contrary to ' th^^roVisions of Ihe Commission's order or orders i';^'^ the, prei- ises,' or'.'anj application not authorized by the Commission of the, fiijids derived. hy the carrier ^through such s,ale or other /disposition^ of ' such securities,, shall be, guilty of a misdemeanor and upon conviction, shall, be, punished by a fine bf riot less than $1,000. nor more than. $10,000, or, by imprisorimeht for .ii6t less than, prie year .liOTmor^tha^ thr,ee .years, or by both su,ch fine arid' imprisoiimerit, in the discretion, of the court. , ' " 'V'tiS)' aWct beeember 3l, 1921, 'it shall be unlawful Ibr any person to. hold the pOjSition ot omc^r or director, of more than 'qrie carrier,' unless such' hpldirig shall have been authorized by order of the Cqmmissibn upqri' due shoAving, in form and ma^rier prescribed/byj the .Commission, "that. neither public nor private iritei^ests' will be fidyersejy affected thereby. After this .section , takes effect it, shall be "urilawful' for any officer or director pf 'any carrier to receive for his ow,n l^enefit, directly or indirectly, anjj ^mbney or tlji^g of |.'val^e in r.espeQt of the negotiation, h'y- potlieeatiori,'flr'saie of 'any Securities issued or Jto be issued 'by such carrier, or to share in any of the proceeds thereof ^ or' to §,,'(-7a] INTERSTATE COJdMERCE. CP]>^MISSION 45^ participate in, tl^e making , or,. pp^|^g,,,0f.ja;n3^[^^;i{i«^ndg,fl| ^|i, operating carrier from any funds properly includei^^^^^. (pa^^ts^,., ac^c^uii|;, .Any yip^tion..0:^.,,t^_esje-pr(:^yjsio:ps«,sliall^(f^e, .a misde- meanor, ;an(it oi^ cpnvietion ini,£^py Un^t^dj.Sfat^i.c^ufjt! l?9.ving Wfligf^^ctipn sjti^ll be pu,nished'j)y',^4'^(,?f.'^Pi^ M^^ ft^?i ^^iPQP.. npr more .tl}p^,.^l,q,0QO,| o^ byffpip^j^qn)?^efl.jt ..i^or, jncj^ i,?ss„j^|3, ii^pris,9pin^nt,^,inthe4i^ci:et^^^^ t,.: . - M.ids'-rr .^ ''-,(],) j.^vepy commpn carriep by ^^a^^i^^.ifi,ji(3j:.ei^^ eQiarae^p^^^ whose .ysssels .are ,registered,]in(|.!^r.j-bhje ^Iws ql, .t^'e),Upite,d„0t^);^^^ sl;^,ll;,^lp,;'S)^jJtht,ihe,,Cj9jnmissipA,, w^^^ dfl,ys '^f^ tbj^j sfi9;l^on ..tv^pqmes effective and 4egula:r^ly.,tb,er,^f1i^^^ a^.,cliafl.g^,' are; ma.de, a sobedule pr spli(^d^l,e^;shp-yFii)^-f{jrj(e^9h pfjjitsjte^i^, yepsels mtended tq,,load, genesraljC^pg^ at- ppr^ts, iarthe pjiil^dj, Stptps,,'|p^|,^prpign,,d^^j;ina,%;^s the,..pOfts.'ot lf>ading^ ,(:b), tJis,,;cja^j^jj,Tipon ^■wllie]a, such. yespel^.,yFill cfiiftmeace to. ; rqeeiyp,, freight „an^., dates ;p( sailing, 'i(c) ,,|^e. |^p]i^e,;a^d ij;^n,erajry_^^]i(3\ y^ssels, \¥ilf^.|pl^Qw and the ,por|^s.,9^,;c^il.^r,,,]y|ij^' f;argp^;y(r,ill J'i^), jpppn applicatipn ,0^, any , Sjl^ipper a capier b.y; r^ilrp^d^ sh^ll n^ake request for, ai;d:the e^-rrier.by jjirf^tjer ,^l^ai].^..|ippni r,ejce,ipt.^pf;i^u^h request ■ nan;e^ £|, .specifi^^r^alie. a:^plying',fQr ,spi?lj,, s9,iliHg,, ^rjdjUpqii suqii qoi^piodi|;y,,^ ^Jj.^l|,,bp ejjabra|eei^, in- the; inquiry, ,and .^sh^l name ii;i,,cpnnectienp-v^ijt|i, such rate, port, ch^a^rg^s, . if anj^j.^yphich-^acgrUje^iin, adji^tijonifp itbej.,5|espl's 'rateigj a^^ are ;npt , otherwise publi^lip,d by-, the^ , railway .as - in ^(|jJi^ioiL., to or^^sorijed in the railway Tate; _y,esspl rates, if opn,dition^(}:. uppn, quantity of , shipment,-, must, .be so ;^|ta,te^,P,iid,feparate ra;^^^, may be provided for carlQadv9-n.dr|le§g. than iicarload; shipments.-; The .carrier, )by waterj upon advice^ from aicarrftert by,^>rai]|rpad, stating thqt , the i : quotied , [ratef is firmly . accepted - ^8 'frpplyingt upori.va!.specifiiBally naiiied quantity 'of' any commodity, I^haUil siiibject to. such eohditipn^ as' the Commission by regulitiori mays prescribe,'! make firm' reservation from'iihsold spkce fn'siieh stesamB vessel'-as' shall 'be 'required for 'its ti'ansportation and shall Sb^ advise tiie carrier by railroadjiil which kdvices Shall beiliciuSiitea'' 14 Acf » of Febl ' »4i 1887; (i&. ■ 10^4, §2,0|a„i,AS:ad£'!edj[.J^bi 2^, l^2P,'t^^^ — , §,43iEI,|Po,ip{). .^t, §j85?2aj,,,, , . r; ,, , 452' ORIGINAL JURISDICTION ' [§''-'77a- the latest available information as to prospective sailing date' of such vessel. '■ " (3) As the matters so required' to be stated in such schedule or schedules are changed or modified from time to tim^, tli^ carrier shall file with the Commission such changes Or modifi-' cations as early as practicable after sucti modification is asc^r-' tallied. The Commission is authorized to make arid publish regulations not inconsistent herewith governing the mariner and forrii in' which such carriers are to comply with the foregoing provisioris. The Commission shall cause to be published in coiri; pact form, for the information of shippers of commodities throughout the country, the substance of such schedules, and furnish such publications to all railway carriers subject to this Act,' in such quantities that railway carriers may supply to each of their agents who receive commodities for shipmeiit in such cities and towns as may be specified by the Coirimission, a cOpy of said piublication ; the intent being that each shippirig community sufficiently important, from the standpoirit of the export trade, to be so specified by the Commission shall have opporturiity to kriow the sailings and routes, and to ascertain the transportation charges of such Vessels engaged in foreign commerce. Each railway carrier to which such publifeation is furnished by the Commission is hereby required to distribute the same as aforesaid and to maintain such publication as it is issued from time to time, in the hands of its agents. The Com- mission is authorized to make sucli rules and regulations not inconsistent herewith respecting the distribution and mainte- nance of such publications in the several communities so specified as will further the intent of this section. "(4) When any consiguor delivers a shipment of property to any of the places so specified by the Commission, to be de- livered by a railway carrier to one of the vessels upon which space has been reserved at a specified rate previously ascertained, as provided herein, for the transportation by water from and for a port named in the aforesaid schedule, the railway carrier shall issue a through bill of lading to the point of jdestination. Such bill of lading shall name separately the charge to be paid for the railway transportation, water transportation^ and port charges, if any, not included in the rail or water transporta- tion charge; but the carrier by railroad shall not be liable to §*77a] INTERSTATE CdHMERCE COMMISSION 453 tfie corisignbr, eolisi^nee,"6if' other person interested in the ship- m'ent ''after it's deli'v^ry to the vessel. The Commission shall, in'Sueh"'mari'iier as ■^ill fit'eserve for the carrier by water the protectibn of limitfed liability provided b^ law,' make subh rules atid 'tegUlat'i6hi"n(it''i'nco'tls'iSt'dn!t herewith as wiir prescribe' the form of'Such'thi-ough bill of lading. In all such cases it shall be'the duty' of ihfei' 'carrier 'iiyraiWoad to deliver'such shipment to" the vessel dk a p^ft of its undertaking as ai common carrier. *' (5) The i'^^iian'cfe'of 'a through bill of lading covering ship-' m'eiits pi'ovided for herein shall not be held to constitute 'an ai-ra'ngemeiit f 6r ' eontiiiubus carriage or shipment' within the mieariiiig^ of this Act. ' ' is ■ ''^Tfie Commission ihayi after investigation, order any carrier bj^ railroad ^tibj^ct' to" this' Act, within a tinie specified in the order, to 'iiiistall automatic train-stop or train-coiitrol device^ dr*' bther 'safety devices, 'Which comply with specifications and re'quiremeritfe' prescribed by the Commission, upon the whble Or aiiy p'arli'bf'its railrbad, such order to be issued and published' at le'ast t'^o' yeats" before the daite specified for its fulfillment: Pfbvided^ That" a barrier shall not be held to be negligent be- eau'Se of 'I'ts'fiiWe to install such devices upon a portion of its raiilrodS iiot iiielud.ed iii' the order- aiid any action arising be- cause of an accideiii ^happening upon such portion of its rail- rbS,ii shallbe determined without coiisideratibh of the use of siich devi'ces upon another portion of its railroad. Any com- mbii' carrier 'w|i'ich' refuses or neglects to comply with any order ofHhd'Coihnlissibh iriade under the authority conferred by this seqiion shall be liatie to a peiialty of $100 for each day that such refusal or neglect cqiitinues, which shall accrue to the United States^ and inay be recovered in a, civil action brought by the United! States. ^,1^ '"'■'■' , " ' "(11) Any common carrier, railroad, or , transportation com- pany subject ]to the provisions of this Act receiving, property fon iransp^rt^tion frcjnii a .poiiit in one State or Territory or th^ I?ji«t.riiet ,of CIplumbia tq a point in another State, Ten^jtqry, E|ifft,rict 9:^' Columbia, o^? from any point in the Upited States .lV|ict fit Feb>^ 4, 1887j eh. 104, 16 Act of Feb. 4, 1887, ch. 104,, §25, Feb. ,'2§, '1926, "oh. —,'§.441, § 26, ' as added, 'Feb. 28, 1920," eh. Oom'p.' St'.' § '8596a. ■'""'"■■ ' — , § 441, Oomp. St. § 8596b. 454= OBIGINA];^ JURISDICTION [S/^T* to a point in an adjacent foreign country shall issue £i_ receipt orijlbill of lading , therefor, and shall be liable to the layi^fu^ holder thereof for any l0j§s, damage, or injury to such property, CMfied by it or by any cpmmpnparriei:, railrpad, or transpor-^ tati,an company to which such property may be delivered , or oj\fer whose line or lines such property may pass within the, I|iii^pd States or within an adjacent foreign country when trans- , ported on a through bill of lading, and no contract, receipt, rule, regulation, or other limitatipn of any character what- soever,, shall exempt such common carrier, railroad, or trans- portation company from the liability hereby imposed; and any such common carrier, railroad, or transportation company so receiving property for transportafjion from a point in one State, Territory, qr the District of Columbia, to a p pint in anotjher State or Territory, or from a point in a State or Territory to a ppint in the District of Columbia, or from any point in the , United States p a point in an adjacent foreign country, or for transportation wholly within a Territory shall be liable to the. Ia7\fjful holder of said receipt, or bill of lading or to any party entitled to recover thereon, whether such receipt or bill of lading, has been issued or not, for the full actual loss, damage, or injury to such property caused by it or by any such common carrier, railroad, or transportation company to which such property may be delivered, or oyer whose lipe or, lines such property may pass within the, United States or within an adjacent foreign country when transported on a through bill of lading, not- withstanding any limitation of liability or limitation of the amount of recovery or representation or agreement as to value in any such receipt or bill of lading, or in any contra.ct, rule, regulation, or in any tariff filed with the Interstate Commerce Commission; and any such limitation, without respect to the manner or form in which it is sought to be made is hereby de- clared to be unlawful and void: Provided, That if the loss, damage, or injury occurs while the property is in the custody of a carrier by water the liability of such carrier shall be de- termined by and under the laws and regulations applicable to transportation by w'ater, and the liability of the initial carriei* shall be the same as that of such carrier by water: Provided, however, That the provisions hereof respecting liability for full actual loss, damage, or injury, notwithstanding any limitation § 'ZTa] INTERSTATE COMMEECE COMMISSION 455 of liability or recovery or representation or a'gi'eement or Re- lease as to value, and declaring any sUcli limitatitin to be un- lawful and void, sha!ll not apply, first, to baggage carried on passenger trains Or boats, or trains or boats carrying passengers'; second, to property, except ordinary live stock, deceived for transportation concierning which the carrier shall have been or shall' feerfeafter be expressly authorized or required by Order of the Interstate! Commerce Commission to establish and uiaih- taiii rates dependent upon the value declared in writing by the shipper or agreed upon in writing as, the released value of the property,, in which case such declaration or' agreement shall have no otTief pftect than to limit liability and recovery to an amount not exceeding the value so declared or released, and stall not, so far as relates to values, be held to be a violation of section ten of this Act to regiilate comiQeree, as amended; and any tariff schedule which may be filed with the coflimission pursuant io such ord!er shall contaliii specific reference thereto arid may establish ra!tes varying with the value so declared 6r algreed upon; arid the comjriission is hereby empowered to make such order in eases whei^e ra(tes dependent iipbn and varying with declared or agreed values would, in its o^inidri, be just and reasonable under the circumstances and conditions , sur- rounding the transportation. The term 'ordinary live \s);oc|£.' shall include all cattle, sWine, sheep, goats, horses, arid, mules, except, such as are chiefly valuable for breeding, racing, /phow purposes, or other special uses:, , Provided further, That noth- ,ing in, this section shall depriye any holder of sjuph receipt or bill of lading of any remedy or right of, action whiclij he has jundeyi jth,©; exisl;ipg law: Provided further. That it shall be pnlajvful for any such eommon carrier to provide by rule, con- tract, regulation, or otherwise a shorter period for, giving notice of 1 claims than ninety days, for the filing of; claims /than four months,, and for the institution of suits than two years, sudu period for institution of suits to be computed from the day •ivHen notice in writing is given by thte carrier to the' claiiridnt that 1^ the carrier has disallowed the claim or any part or parts thereof specified in; the notice: Provided, however, ..That if ,tlip loss, damage, or injury complained of was due to delay or dam- age while being loaded or unloaded; or dainaged in transit by 456 ORIGINAL JURISDICTION ^^^^ ,[§ ■'^7a earel^ssiiess or Ileglige^ce, then no notice of claim nor jfilin^ pi claim shall .]De required 3,8 a condition precedent to jreepvery. " ^7 "(12) Tjie common carrier, railroad, oj- transpor|;ation|Comj- pany issuing such recpipt or bill of lading, shall be entitjed^to recover from the common carrier, railroad, or transportation company pn whose line the loss, (Jamage, or injury sliallhaye been sustained the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript there- of."" ^ " '"'^'\ .''.'S',^ '',',',■ "(a) When used in this section— "The term 'carrier' means a carrier by railroad which, dur- ing any part of the period of Federal control, enga,ged as a comm,on carrier in general transportation, and competed , for traffic, or connected, with' a railroad , under Federal contrpl, and which sustained a deficit in its,ra,ilway operating ijieomei for that portion (as a whole) of the period of Fed,eral control dur- ing which it operated its own railroad or system of transpor- tation ; but does not include any street, or ipterurban electric ^^ailway which has as its, principal source of. operating revenue urban,, suburb£in, ^or interurban passengei; traffic _or sale, of power, heat, and. light, or both; and , \ "The term 'test period' means the three years ending June 3b, 1917.,^ ■""'",! "'' ' '',' '■'■'"-•"^••' ^'' ■' '^|t!:... "(b) For the purposes of this section — "Railway operating income or any .'deflclV therein for the period of Federal control shall be computed in a manner s'liiiiiar to tha,t provided in section 209 with respect to such income '6r deficit for' the guaranty period ; and "Railway operating income or ariy deficit therein for the test period shall be computed in the manner provided in sectibii' 1 of the Federal Control Act. ' '■(c) As soon as practicable after March 1, 1920, the Com- mission shall ascertainr for every carrier, for evety month' of 17 Act of Feb. 4, 1887, eh. 104, , 18 Act of |F^b. 4, 1887, . ch. ,104, §20, 24 St. at L. 386, as amended, § 20, 24 St. at,L. 386, as amended June 29, 1906, ch. 3591, § 7,, 34 St. June 29, 1906, eh. 3591, § 7, 34' St. at L. 593, Aug. 9, 1916, eh. 30i, at L. '593, 'Feb.' 28, 1920, eh. — , 39 St. at L. 441, Feb. 28, 1920, ch. . §436, Compi St. § 8604aa. <■' — , §§ 436-438, Comp. St. § 8604a. ; . , , §77a] INTERSTATE Commerce COMMISSION 457 tnfe',i)el''iod 6f Pfeider'al control during which its railfoad or sys- teih. 6f transportation was not 'under Federal operation,' its dentil; in railii^ay operating income, if siiiy, and its railway oper- atmg incom'e,' 'if aiiyj '(hereinafter called '-Peideral control re- turn') aiid'the average of its deficit in railwa,y operating income, ii'knf, aiid'ofit^'i-'allWay operating inbonie, if any, for the three c'6rre'si)6hdiiig'iti6hths df'the t6st period taken together, (herein- after cfeilied'te'^l period retu'rh'):' Provided, That 'test period rettirn,' in 'Ihe cage of a" carrier which operated its railroad or systein'*8f''^i'd,nspbrtation for at lealst one year during, but not for'tne AvhoTe of, the test period, means its railway operating income, of the deficit therein, for the corresponding month dur- ifi^''the 'test' peritfd,' of the' -average thereof for the cotrespond- iri^ m'biit'Ks' during 'ttie test period taken together, during which tIie'cafriei''operated its failroad or system of transportation. ' "(d) 'i"br' every in oil th of the period of Fedefal control dur-' i'n'l whici the ' raWfoad of system of transportation of the eav- rieP'Va^ubt; iiiider Federal' operation, the ''Ccimmission' shall tlren'''dscertk'in ('1) the difference betwfeen its Federal control r^tufiiV'if'a deficit, 'and its test pferibd return, 'if a smaller def- iciljj'^o'r '(2)' the'diffetence between its test period return, if an' incbin^; and its Federalcontrolr'eturn, if a smaller income, or (ftf/'the'silm of 'itfs Federal' control return, if a; deficit, plus its test period r^Mrh, If ah 'iiicoihe. The sum of such amounts sli'all lie" Credited' to the carrier. ' "'(^e) Tor eV^ty' such month the Gommissibii shall then as- certain "(1) 'the difference 'between the carrier's Federal con- trol fettli^rij'if arifticome,'and its test period return, if a smaller inc6ih'e,''of ''(2) the 'diffetence between its' test period return, if a deficit, and its Federal control return, if a smaller deficit, o)c' (S) tHe Surrl bf its Federal control return, if an income, plus itfe'''ty^t|'peWod' reJturn, if 'a deficit. The sum of such amounts sli'ilii"b4 ci^edifed' to 'the' United 'States. ■ : "''(f)''If tfhesiim'bf the' amounts so credited to the carrier tI^Mt subdivision' (&) exceeds the sum of the amounts so cred- ited to the United States under subdivision (e), the difference shall be payable to the carriel-r 'In the case of a carrier which op'eratfed"ii^'fail!ebad' of system bf transportation fof less than a year during,, or for none of, the test .period, the foregoing computations ■ shall not be used, but there shall be payable to 4^8 PRIGINAL JURISDICTION [§ 77a such carrier its deceit in railway operating income, for that portion, (as a whole) of the period of Federal control during which it operated its own railroad or system of transportation, ,',' (g) The Commission shall promptly certify to the Secreta,ry; of the .Treasury the several amounts payable to carriers under paragraph (f).., The Secretary of the Treasury is hereby au-, thftrized and di^fjcted thereupon to draw warrants in favor of each such .carrier upon the Treasury of the United States for thp amount shown in such certificate as payable thereto. An^ amount sufficient fo pay such warrants is hereby appropriated out ; of auy money in the Treasury not otheriivise appropri- atetJ/''^' ^i, , • ' ' ' ",(,a) iUl rates, fares, and charges, and all classifications, regulations, and practices, in any wise changing, affecting, or determining, any part or the aggregate of rates, fares, or charges, oi; ; the.j value oif the: service rendered, which on February 29, 1920, are in effect on the lines of carriers subject to the Inter- state Qonjmerce Act, shall continue in force and pffect until thereafter changed by State or Federal authority, respectively, or ■pursuant to authority of law; but prior to September 1, 1920; no suph rate, fare, or charge shall be reduced, and no such classification, regulation, or practice shall be changed in such manner as tO: reduce any such, rate, fare, or charge, unless such reduction or, change is approved by the Commission. "(b) All divisions of joint rates, fares, or, charges, which, on February 29, 1920, are in effect between the lines of carriers subject to the Interstate Commerce Act, shall continue in force and effect until thereafter changed by mutual agreement be- tiveen, the interested carriers or by Statp pr Federal authorities, respectively. , "(c) I Any land grant railroad organized under the Act of July 28, 1866 (chapter 300), shall receive the same compen- sation for transportation of property and troops of the United States as is paid to land grant railroads organized under the Land Grant Act of March 3, 1863, and the Act of July 27, 1866 (chapter 278)." 20 "(a) When used in this section — "The term 'carrier' means (1) a carrier by railroad or partly .19 Act of Feb. 28, 1920, ch. -^; 20 Act of Feb. 28, 1920, eh. — , § 204, Comp. St., §; 10071i4bbb. §208, Oomp. St. § 10071%d. '§'77a] INTERSTATE COMMERCE COMMISSION 459 'by railroad and ^partly by water, whose railroad or system of transportation is under Federal control at the time Federal control terminates, or which has heretofore engaged as a com- mon carrier in general transportation and competed for traffic, or' connected, with a railroad at any time under Federal con- trol; and (2) a Sleeping car company whose system of trans- portation is uiider Federail control at the time Federal control terminates; but does not include a street or interurbari electric tail waiy riot' under Federal control at the time Federal control terminates, which has as its principal source of operating revenue Urbjan, suburban, or interurban passenger trafi&c or sale of !t)0wer, heat, and light, or both ; ' '"The term 'guaranty period" means the six mdnths' beginning March 1, 1920. "The term 'test period' means the three years ending June 30,1917^ and "The term "^railway operating income' and other referencies to accounts of carriers by railroad shall, in the case of a sleep- ing car company, be construed as indicating the appropriate corresponding accounts in the accounting system prescribed by the Commission. "(b) This section shall nipt be applicable td any carrier which does not on or before March 15, 1920, file with the Coin- mission a written statement that it accepts all the provisions of this section. " (c) The United States hereby guarantee— . "(1) With respect to any carrier with which a contract (ex- elusive of so-called cooperative contracts or waivers) has been made fixing the amount of just compensation und.er the Federail Control Act, that the railway operating income of such carrier for the guara-nty period as a whole shall not be less than one- half the amount named in such contract as annual compensa- tion, or, where jthe contract fixed a lump sum as compensation for the whole period of Federal operation, that the,, railway operating income of such carrier for the guaranty p^iodl as a whole ishall hot be less than an amount which shall bear the same proportion to the lump sum so fixed as six months bears to the number of months during which such carrier was under Federal operation, including in both cases the increases in such I ORIGINAL JUEISDICTIOJ^ , [kl'^'^ ipensation . provided for in, section 4 of tl\e :F,eder^l , pont:fftl '(2) With respect to any carrier ,entit|l,ed to ju^t coiiip,eqS|a,- 1 under the Federal Control Act, :wi,th, which siich.a (jpntEa^t not been made, that the railway operating incomes of gufjh rier f oi: the guaranty pei"iod as a whole, shall,,not be ,less than i-half of the annual amount estimated by tlji.e Ppesidpnt. a,s t compensation for such carrier , under, thp Federal CJojityol :, including: the increases in si^h compensation, provided for section 4 of ttte Federal Cpn,ti;ol Act. If any such, iCarrier IS not accept Jihe President's estimate respecting it^,jus;t,cpm- isation, and if in proceedings unfjer se,ctipn;3 pf ithp, Federal itrol Act it is determined that a J^rger , or smaller annual ount is due as just compensation, the guaranty under .^hjs ■agraph shall be increased or d^crcjased according-ly ; n ■ ' (3) With respect to any carrier, whether or mpt, entitled(,to t compensation under the F'ederal .Cont^pl, Act, ,with yhich h a contract has not been niftde, and for, ysrhich no estifliatie just compensation is made li)y,,the,Pres,ident, and which ,^pr test period as a whole sustained a deficit in railway .operating ome, the guaranty shall be a sum equal to (a) the,, amount which any, deficit in its railway operating inepme for the iranty period as a whole exceeds one;'half of its average annu,al icit in railway operating income for t^ie test period, plus I an amount equal to one-half the annual sum fixed by the isident under section 4 of the, Federal Control Act; . '(4) With respect to any carrier not entitled tp.just com- isation under the Federal Control Act, which foj" the test ■iod as a whole had an average annual railway operating ome, that the railway operating income of such carriei? for guaranty period as a whole shall not be less than one-half average annual railway operating incoine of such carrier "ing the test period. '(d) If for the guar ajity period as a whole 'the' rail wily dpe'r- ag income of any carrier entitled to a guaranty ilnder park- iph (1), (2), or (4) of subdivision (c) is in excess of thfe limum railway operating income guaranteed in' such para- iph, such carrier shall forthwith pay the amount of sufeh less into the Treasury of the United States. If iot the guar- ;y period as a whole the railway operating income bfi any ,§ 77a] INTBBSTATE COMMERCE COMMISSION 461 Pj^rrier j enti|;led^ to a guaranty under p|aragraph, (3) of sub- division (,c) is in, excess of one-half of the annual sum fixed by ^^b,e jPresideiit with respect to such carrier under section 4 ot tjie ^^pderal Control Act, such carrier shall forthwith pay the amount of such excess into the Treasury of the United State?. The amounts so paid into the Treasury of the United States shall ■be, added to the funds made available under section 202 for the purpose^ ^indicated m such section. Notwithstanding the pro- visions o£ ,1^is subdivision, any carrier may retain out of any such excess any amount necessary to enable it to pay its fixed charges accruing jduring the guaranty period. ",(e) ^or the purposes of this section railway operating in- come, or any deficit therein, for the test period shaU be com- JUuTl V).!!'' i "S ■ ''I ■ "I- . . . ' ^ •'. " .''■'■' f ' , ■ „ , ' • _ ,' ■ , puted.,in the manner provided tor m section 1 of the Federal nilit)'! ijV'i )ji,,'i ■' ■,'•*! ' ■ .' ■ ■■ . ' .Control Act. I " (b) In computing railway operating income, or any deficit jthereiii, TEpr the guaranty period for the purposes of this sec- tioii — ' , . . "(1) Pebits and, credits arising from the accounts, called m t]i,e monthly reports to the Commission equipment rents and joint facilitj' rents, shall be, included, but debits and credits arising from the operation of siich street electric passenger rail- ways, ' including railways commonly called interurbans, as are fiot' under Federal control at the time of termination thereof, fehalTbe exdlWed; ' " (2) Proper Etdjustments shall be made (a) in case any lines Which were, during any portion of the period of Federal control, a part of the tailroad or systeni of transportation of the carrier, and whose railway operating income was included in such income of the carrier for the test period, do not continue to be a part of such railroad or system of transportation during the entire guar- ^anty period, and (b) in case of any lines acquired by, leased to, or consolidated with, the railroad or system of transportation of the carrier at any time since the end of the test period and prior to the expiration of the guaranty period, for which separate operating returns to the Commission are not made in respect to the entire portion of the guaranty period ; .,," (,3)| There s^all not be included in operating expenses, for ip^fiiutenance of way and structures, or for maintenance of equip- ment, more than an amount fixed by the Commission. In fixing ■*'02 ' ■' OEIGIKAL JURISDICTION ' ' ' '[§'7ta sfeh ambiint'tii'fe' Citimttiission §iiall so far as practicafele 'apply tW'ruite set forth in 'We proviso in paragraph (ia,) of sectioii, 5 'of the 'standard 'feoiitr'act' between the United' States an^ tjie ca'rriers (whether pi* 'riot such feonlTrdet has been entered liit'o with the carrier whose railway operating income is being c6|m- 'i^ted)i,^^^ ,.;./" ,► . : . " ' "i i. „ " " (4)-'Phepe shall. not be included 'e^ny taxes paid' under' Title I Br II 'of the ^bvenue Act. of l9l7, or such portion of the taxes ■paidunder Title'll or ill of the Revenue Act of 1918 as by the terms 6f such Act are to be treated as levied by an Act in anienjd- m.ent pf Title I or ll of the Revenue Act of 1917 ; and ' ' ' ' "(5) TH^ Oomiriission ' shall require the elimination and re- ^staitemerit'cyf the operating; expanses and feveriues .pother than fcr maintenance o^'way arid structures^ or maintenance pf equip- men|;) for the guaranty period, to thefixterit.necessai-y to correct arid exclude any dispropdrtipriate or unreasonable charge to such expenses '8r' revenues for such period^ or any charge to such expepses or revenues for such period which under, a proper jsystem of accounting is attributable to another period. J. , (^)-The Cpmmission sjiall, as sopn as practicable after the Expiration of. the, guaranty period, asc^rt;ain and certify. to the .Secretary .p|, the Treasury thp, several amounts necessary to ma^;e go;pd, the foregoing guaranty tp.eaph;, carrier. The Secretary of the Treasury is hereby authorized and directed,, thereupon to drapv fTj^^rjr^Pjt^i in favor of e?.c]l,-,SViQri, carrier ;upon the Treasury pf.tlie, United iStates,- for .the ; amount shown. in such. certifiieate as, necessary tpmak* good ^uph guaranty. An amount suffiQient .tft,paysui®i'r:^arra,ntsis:. hereby appropriated put of any money tin 'tlat TBeasiiryifOpit otherwise appropriated.i' ,i ■ . ' '. ■ificii^b) Uppu* application, of ^ny, carrier to the^ Commission, .aslfing that durirtg the guaranty period there may be. advanced ito dt frPm time'td' time 'such suriis, riot in excess of thie estimated ia)ino[unt necessary tb riiake good the guaranty, as are necessaty to: eil&bie It lio'meet its fixed charges and operating expenses, the c©o*HHliisSiori may ' certify 'tP the 'Secretary of the' Ti-easury the amount of, and times at which, such advaiices, if any, shall be Iffi^dfe." 'ThF Seeretar';^ of the Treasury, ori receipt of such eer- 'tiifiy^te,"is authorized aiid directed to make the advsinceS in tlife "ariioiints and at tlie'liriies Specified in the certifidate, UJ)ori' the § 77al INTERSTATE COMMERCE COMMISSION 463 ex^uJ;ioin by .the carrier of a contract, secjired iii such manner as the Secretary may determine, that upon final' determiiiatioii of the amount o'f the guaranty provided f6r liy this section 'sUch carrier will repay to the United S'tates an^^ ainbuiits which it has 'received from silch advances in excess 6f the guaranty, with interest at l£e i'ate of'6 iper centum p^i" anhtim from the' timfe such' excels* was paid.' There is hei^ehy -appropriated, tfct' ' of 'siiiy inoriey in the Treasury hot other'wise appropriated',^ & su'ifi'guffi'eien'll to enable the Setiret'ary of thte Treasury to make; the advances referred to in this subdivision. '■■• ;.>:'■'•'! :'•'.'. " (a) ' If ' the American Railway Expres's Company shall;, on or befor^'Mia'rch 15, 1920, file With i the Commission a written k statement ^ that it accepts all' the p-rovisions of this subdivision, ' the! feonttslet' of' June 26, 1918, between such 'company a,nd the-^ Director General of Railroads,, as amended' 'and- continued rby-; agreement dated i November 21, 1918, shall; remain jin rfuU force aild effect duiting the guaranty period in soffa^cas ;the!- sajnei; constiimtes a guaranty on the part of, the United, Stat^ t^ Sfl?^) companyi against a deficit in operating, income, ; .,- ,- , ,; ',f>jjp^ "In computing operating, income, , aadanyjdeficit, therein,, foEj, the guaranty , period fpr the purposes, of , this, subdivision, jthe Commission , shall require the ,6limiinp,l^on and resta1;mi^nt . ,o|, , thai (.operating expenses and reyenues fpr i;the, guaranty period^ . ta the; iextentiii,ecessary to correct, W"^ ex,^jide any dispropoftiotn-. ate , or , unreasonable charge to, such expenses or revenues fpr., such period, or any ..charge to such expenses or revenues fgr.^iieh.,, period which under a proper system of accpuntingfis atl^ribjijtabj.pj' to lanother peripd, and to excludfi from c^eratjng- expenses sp , much of the charge for payment for exp];'ess privileges, to, car-^, riers on whose, lines the express traffic i^,.qarried &s is in excess . .of :50u25 per centum of gross . ejf press revenue. , ''Eor ,t;he guaranty period the American Railway. Express CojSapany, shall pay to every carrier which, accepts the prpyi^ipn^, , of this section, as provided. in; subdiyi^ipn, .(b) .herepf,50.2J5, per . centum of the gross revenu;e earned, on thp trani3pojta;t^pii,,>)f all • its express .traffic on the carrier's lines, an^ every such qarrier , shaiU.aqeept frpm the A^ierican RaU^way Exjiress, Company ,^i;i,cl^. percentage of the gross revenue ,as its e;Ompensa,tion. .f|n ^arriyjng . at I, the gross .revenue on: thrpugh or joint express traffip, tti.e,. 464 ORIGINAL JURISDICTION [§773 method of dividing the revenue between the carriers shall be that agreed upon between the carriers and such express com- pany and approved by the Commission. ' ' If for the guaranty period as a whole the American Railway , Express Company does not have a deficit in Qperatjng income, it shall forthwith pay the amount of its operating income f pr , such period into the Treasury of the United States. The amount, so paid shall be added to the funds made available under section 202 for the purposes indicated in such section. i,. ,,ji "The Commission shall, as soon as practicable after the expira- tion of the guaranty period, certify to the Secretary, of the Treasury the amount necessary to make good the foregoiug guaranty to the American Railway Express Company.. The Secretary of the Treasury is hereby authorized and directed . thereupon to draw warrants in favor of such company upon the Treasury of the United States for the amount shown in such certificate as necessary to make good such guaranty. An amount sufficient to pay such warrants is hereby appropriated out of any money in the Treasury not otherwise appropriated. "Upon application of the American Railway Express Com- pany to the Commission, asking that during the guaranty period there niay be advanced to it from time to time such sums, not in excess of the estimated amount necessary to make good the guaranty, as are necessary to enable it to meet its operatingi expenses, the Commission may certify to the Secretary of the- Treasury the amount of, and times at which, such advances, if j any, shall be made. The Secretary of the Treasury, on receipt of such certificate, is authorized and directed to make the ad- vances in the amounts and at the times specified in the certificate, upon the execution by such company of a contract, secured' ill" such manner as the Secretary may determine, that upon final determination of the amount of the guaranty provided for by this subdivision such company will repay to the United States any amounts which it has received from such advances in excess of the guaranty, with interest at the rate of 6 per centum per annum from the time such excess was paid. There is hereby appropriated out of any money in the Treasury not otherwise appropriated a sum sufficient to enable the Secretary of the § 77a] ' INTERSTATE COMMERCE COMMISSION 465 Treasury" to make ttie advances referred to in this 'subdivi- sipn:*''"'- ' r ■ ' "■ ■'■ ^ ,, ^ " "■'" ■"'' " (a) For the purpose of enabling carriers by railroad subject to the 'Mterstate Commence Act properly to serve the public during the, transition period immediately following the termina- tion' of Federal cdntrol,' any such carrier miay, at Any time aftiei* tiie pksiage of this !Act and before the expiratioii of two years' after the termination of Federal cbiitrol, make application ' to the Commission for a loan frorn tlie United States, setting foi^tb| the amount of ibe loan arid the term for which it is desired, tlie purpose of 'the loan arid the uses to which it will be applied, the present' and prospective ability of the applicant to repay the loan and meet' the requirements of its obligations in that fegarci, the cliaracter arid value of the security offered, and the extent to which the, public convenience and necessity will be served." Tb'e" application' shall be aceompariied by statements showing such facts arid details' as the Commission may' require with resjpeet to the physical situatiori, owriership, capitalizaitidri, in- debtedness, contract" obligations, bpetatidri, iarid earning power. 6i the appflicariti together with such other 'facts relating lo the propriety arid expediency of granting the loan applied for ariid the'ability of the iapplicarit to make good the obligation, as the Commission rii'ay deem pertinent to the iriquiry. • " - '' (b) If the Commission, after such hearing and investigatibri, with or without notice, as it riiay direct, firids that the making, in' whole" Br' in part', of the' proposed loan by the 'IJnifed Spates is'riecessary to enable the applicant properly tb'meet the traris- p^Vtkti'cih needs of the public, and that the prospective earriirig power of the applicant and the character and value of tlie security ' offered are such as to furnish reasonable assurance of the 'ai)plicarit 's ability to repay the loan withiri the tlriie, fixed therefor, and to meet its other obligations in conne<^ion,>i,th stf^ii loa;i7,''?he''Coiiiiriissiori Way' c'ettify'lo the Secretary of!' ^e Ti^easui^* itW liridirigg tif fact and its ry^brnmendations as' toT the ajnqunt of the loan which is to be made ; the time, not, ex- ceedirig five years from the making thereof, within which, it is tQ.(be, repaid ; the, character pf the security which, is to be offersed therefor ';- and the terms and conditions i of the loan. 21 Act of Feb. 28, 19io, ch. — , :.i § 209 Comp. St. § 10071%aa. ' ' Fed. Prae. Vol. 1—30 4j6(^, pEIGINAL ,rUEISDICTipN [§ 77b " (c) Upon receipt |0f, such certificate from the Commission, the Secretary of the Treasury, at any time before the expiration o^ tvj^euty-six. months aiter the, termination of Federal control, i? jauthorized to niake a loan, riot exceeding the maximum ^mount recpmmended iu: such certificate, out of any moneys in the re- yplying fund prpyided for in this section.,^ All such loans shall bear interest at the ra,J:e of 6 per centum per annum, payable semi-annually to the Spcretary of th& Treasury and to, be placed, tp the credit of the revolving fund provided for in this section. The .time, not exceeding five years f rpm the making thereof, within which such loan is to be repaid, the security which is tp be taken therefor, which shall be adequate to secure the loan, the termg and conditions of the loan, and the form pf the obligation tp.be entered into,, shall he prescribed by the Secretary of the Treasury. .■.....'.. ,," (d) The Cominissipn pr the Secretary of the Treasury, may call, upon the Federal Reserve Bpard for advice and assistance with respect jto any sucb application or loani , , . ' ' Xe) There is , hereby, appropriated pu,t pf any moneys in the Treasury not "other.y^ise a.pprppria,ted the, sum o^f $300,000,000!, which, shall be used as a revolving fund for the purpose of mak- ing the loans provided for in this section, and fpr paying the judgmeiits,. decrees,; and awards referred to in subdiyisipn (e) of seption 206. • ' ' :(f ) A carrier may issue evidences of indebted.ness to the United States pursuant to this section without the authorization or aBP''9Wl 01 ^^y authority. State pr Federal, and withput com- pliance with any requirement. State or Fe(^eral, as to notifica- tip^-'i"' '. , ''", .. . ""'J,,!' ' ''- ,,. , ' '^^,r ..The Commission has also acted as a bp3,rd of arbitratioij, ,|)e- tweeu shippers and carriers in thp adjustment of rates, in a few cases.^ _ ,, ■ ,' ^ §77b. Practice and rules of the Interstate Commerce Com- misMon. , " The Commissipn may conduct,, its proceedings in 83 Act of Feb. 'ih, 1920, eh, — , I. 'C. C. R. 13^ and In the Matter of raid'Cdmp. St. §i0071%iadcl. Ffeiglit Rates between MempTiis and 28'gee proceedings entitled, In the points in Arkainsas, decided August' Matter of Differential Freight 15, 1905, 11 Ii 0. C. R. 180, Barnes, Rates to and from North Atlantic Interstate Transportation. Ports, decided April 27, 1905, 11 §'77b] interstate' CciMMBRCE COSiMISSION '467 siich malirier as will best condiicte'tb the proper' diispj^tch of •businieSs'and'tb the ends of justice. The'Commissioil Shiall have an offieiWl seal, which shall be judicially noticed. Any inemibeT of the Goihmission may administer Oaths knd affirniations and sign subpoenas. A majority of the Commission shall constitute a quorum for the transaction of bilsines^, except as may be otherwise herein provided, but no Commissioner shall partici- pate in any hearing or proceeding in which he has any peduiiiary interest.! The Commission may, from time to time; make lOr amend such general rules pr orders as niay be requisite for, the order and regulation of proceedings before it,,. or before; any division of (the cftmmission,; including fprn^s of, notices and the service thereof,, i which shall; , epnf qraij , as , ,np,arjy ; as, , may , bp,, , ,tp ,th,pse in.jiise: in the cpur^s of lihe Uniteid States.: Any, pftrty m,ay appear ,f)efpre,|;he, (f^mmissipn or r any diy^sipn. I^ejrep^ ^nji^^.^lt':^ h,eard,,jn person f^r by attpi^ney.j Every vptiC and, pffiqial,ac.t |0^ th^ Cpmmissipn, pr pf, lany diyis^Piirther|epf,,^ha|ll.^e entered qf record, and its prp^ pedings ,shali be public uppn the request of any party interested. . ,, i .. ,;, ,1,. ','(2) The Commission is hereby authorized , by i1^ ordep .to divide the membeirs,tliei'eof into as many, divisions (each to con- sist of not less tnari three members] as it mp,y.deeni necessary, which may be changed from time to time. Such divisions sliall be denominated, respectively, division one, division two, and so forth. Any Coniniissioner may be assigned to and' may serve upon such division or division as the Commission may direct, and the senior- in' service pf the Commissioners donstituting 'any pf said divisipns, shall act as chairman thereof. In case of Va- cancy in any division' or of absence or inability to Sei^^e thereon of aiiy; Commissioner thereto assigned- the chairman of thS Cbiri- mission orany Commissioner designated by him for that piir- pose, may temporarily serve on said division until the Oommi!?- sion shall otherwise order. '''(3)' The Commission may by order direct that' any pf its wprk,' btlsi'n^ss, Pr functions arising under this Act, Or under any Act amendatory thereof, pr supplenien^al, thereto, ^.or^i uijder any amendment whichtmay be madgito any pf said Acts, or. under any other Act or gointresolutipn which hajs been or may her'e- afterbe'apprbved, or in respect of any riiatter which "hks'blen or maiy be refei-i-ed to the Commission liy Congress or' by either 468 OEIfilNAL JURISDICTION , [§.7'''-^ biranieh, .thpreof , be a^signpd or referred, to any pf said d.ivi^i,ops for action tjiereoij, and nfay by order a,t.any time, amend, ]ai,«3 ,i : L ' " (4) In conformity with and subject to the Order or orders of the ■ Commission in the premises; each division so constituted shalL have power and authority by a majority thereof to hear and determine, order, certify, report, or otherwise act as to any of said work, business, or functions so assigned or referred to dt' for action by the ' Commission, and in respect thereof the division shall have all the jurisdiction and powers now or then bonferred'by law upon the Commission, and' be' subject to the same duties ' and obligations. Any order, decision, ' 'or rfepoVt made or other aiJtion taken by any of said ditisiOn'g in respect 'of any matters so assigned or referred to it shall have the same force and effect, and' may be made, evidenced, and enforced' in the same manner as if made, or taken biy the Commissioii, sub- ject .to rehearing by the Commission, as provided in section sixteen-a hereof for rehearing cases decided by the Commission, i'he secretary and seal of the commission shall be the secretary ,and sealof -pach division thereof., ,,!,;, "(5) Nothing in this section contained, or dpne pu;rsuant thereto, s)iall be deemed to divest the Commission of, any of its powers. ", ^ , . , The, fTi^,• 4 (Feb. 4, 1887, eh. i 104, §13, 24 6 Se Alleged ExeesSive IPreight ^t.; at L. 383,. amended .June 18, Rates on J'o.od Prod^qtsj 3 I. CC 1910, eh. 309, § Jl, . 36 St. at L. B. 1,51,^4 I. C. C,. B. .116,^,1^0, , 'S'SO; Comp! St. § 8581; ' e'See infra, iuo. ' '' '' ' §,77b] INTERSTATE COMMERCE COMMISSION 471 . ;'.'j(q)! Jf complaint is ma^e in respect of through transporta- tifln J)y, continuoTis carriage or shipment aU carriers subject to, theAct participating therein should be made defendants. , "(d) If complaint is made of rates, fapes, cjiarg^, regulations, or practices of more tlj^an one carrier all carriers against which an prder is sought should be inade ciefendanfs, . , i" (fi) If complaint is made of a. classification or any provision, thereof it will ordinarily suffice to make deiend.ants;the, carriers operating one or more through routes between representative points of origin and destination. ; , "(f) The receiver or operating trustee of the line of a defend- ant must also be made defendant. "(g) In investigation proceedings the carriers designated therein are styled respondents. ' , ' "(h)' In investigation' aiid suspension proceedings the appli- cisints "upon 'whoise protests the pi-oceeding was instituted are styled ' Protestants. " (i) In applications for relief from any provision of the Act the carriers by or dh whose behalf the application is made are stj^led ajjplitirints. ' "(j) Others seeking relief are styled petitioners. " (k) Petitioners permitted to intervene' as ' hereinafter pro- vided are styled interveners. "(1) Any "one entitled under the Act to complain to the Cpmjmission may petition for leave to intervene in any piendiiig proceeding prior to or at the time it is called for hearingj, but. not after except for good cause shown. The petition ^hall set- forth the grounds of the proposed intervention ; the position and interest of the petitioner in the proceeding ; and, if affirmative relief is sought, should conform to the requirements for a formal complaint. Leaye will not be granted except op, allegations reasonably pertinent to the issues already presented and which do not uMuly broaden them. If leave is granted, the intervener thereby becomes a party to the proceeding. 'When the petition is filed, prior to the hearing the petitioner must furnish there- with a sufficient number of copies for service upon all parties to the ^proceeding and three additional copies for the use of the Coiliiiission. When not so filed prior to but tendered at the hearing sufficient copies must be provided for distribution as motion papers tq the parties represented at the hearing. If 472 ORIGINAL JURISDICTION [§77b. leave be granted at the hearing sufficient copies must also be fur- nished for service and three additional copies for the use of the Commission. It is desirable, especially where affirmative telifef is sought, that the petition be filed in season to permit of service on the defendants and afford them an opportunity to answer before the hearing, thereby making it possible in some iristan'ceis to grant leave which otherwise it may be necessary to ' deiiy in fairness to the parties to the proceeding.'' ' III. "COMPLAINTS. "(a) Complaints may be either informal or formal. "(b) Informal complaints may be mad^, by letter or other writing and as received are filed. Matters thus presented are, if their nature warrants it, taken up by correspondence with, ^Ijf^ carriers affected in ,an endeavor to bring al)out ;fi^justpaent or satisfaction of the complaint without , formal hearing, a-nd are given serial numbers on the informal docket. This , ^nf prmal procedure has been ipund; pfHcacious iii tb,e great, majority- of cases and is. recommended.* , i 'See m/'ro,;i§ 258-261. 8 " It might be well to state that while cases forward on this docket are adjusted in an informal man- ner, this special docket is not an informal docket in respect to the form of pleadings and the charac- ter of the hearing. The Commis- sion cannot on the special docket exceed the authority exercised by it on the formal docket nor may it omit any requirement with respect to eases on the special docket that the law imposes on it in the dis- position of eases on the formal docket. In all cases, whether on the formal or the informal docket, the law requires a complaint and, an- swer and a full hearing, and pro- viijes that where damages are aWarded the report of the Commis- sion shall include the findings of fact on which the award is made. The Commission has endeavored to simplify the procedure on the special docket by accepting the applicatioai of the carrier as the equivalent. ,o£ a complaint and answer, and by accepting as a sufficient compliance with the requiriements of Section' 15 for a full hearing itS' admisaion that the rate ohaiiged under the;,pir^m- ptances , then . existing was re^son.- able. "It will therefore be' observed that the Commission's jtction'- ill' special reparation cases apiingg from the same authority , which jt exercises in formal cases." ; Twen- . ty-third Annual Eeport of Commun- ity,, A. D. 1909, Barnes on Inter- State TranSporttrtiori,' pp; 1021-102S. J.7/7b] INTERSTATE , COMMERCE COMMISSION '473 -!u'i(i'?)'No foriB of ; informal complainti, is, prescribed, but in ^i^\ibfi1i^C6 the let'ter or other writing must; qontajiii the essentia) ^lem^:^ts of a icomplaint, injcluding, name and , address of the .G,Qr)apla^nafl,t, a statement that the> Act has .been violated by t^e cairijier n,a^ed, indicating when, where and how, and, a requfist IWiiaffij^Watiye rj^ief. It is desirable that the informal com- plstint be accompanied, by copies, in sufficient number to enable ithe Commission to, tra,nsmi^ one to each carrier named, and it m^y .;l)e accompanied by supporting papers. Proceedings thus iiistitjited on, thp, informal docket are without, prejudice to com- plainant's right tOi,filjq,and prosecute formal coniplaint, where- upon tljp proceedings on the informal docket will, be discon- tinu,^.,. , ,|; ,,; . ,;"(.d) ,Sec. i6,iof the Ac,t, as .amendesd by section 424 of the Transpqcts^tipin Act, 1920, provides that all complaints for the recovery of damages shall he filed with the Canmission mthin tp^oy.ears,. from the time the cause of action accrues,^ and not after, .ijinlessijihe ;Carrier, aft^er the expiration, of such two years or jwithin njinety days before such expiration, begins an action fofl recovery of charges in, respect. p:f, the same service, in,;whiph C^esueh period, of tW|0 years shall be extended to and including .i}jpety,. days, frqnj,.thfi|time, such actipn by the carrier is ^eguu. In, , ejj^r; pase the cause of, action in respect of a shipment, of property .shall, for the purposes of said Sec. 16, be deemed to accriiej upon deliyery or tender of, delivery thereof by the carrier, and;po;l;iaf^e^.|, Sec. ,2P6,,si;iibdiYision (f), of the Transportation ,4((i?i9^0, proyjldes that the period of, Federal control shall not be.cpmputed as a part of the period of limitation in claims for reparation to,the Copimission for causes of action i arising prior jti9,|Pei(Jer^l .control.,! The peripd ftf , time within which cpm- '9 See infra, § 180g, see Morris- ex. rel. Louisville Cement Co. y.,.In- dale Coal Co. v. Peima. R. E. Co., terstate Cdmineree Commission Co., 330'. '^e'^.' 304; Meeker* COi t. Le- 246 U. S. 638; overriiliiig Calrter v. MfehSyalley E. B., Co., 236 U. S. , Kew Orleans, C. G. A., 143 Fed. 412; affirming Lehigh Valley E. E. 99; Missouri Pac. E. E. Co. v. C. Co. y., lileeker, C. C. A., 211 Fed. Ferguson Sawmill Co., C. CjA., 7^,5; „A„ J, Phipplepa Co. v. Grand 237 Fed. 483,, Chicago & N. W. By. OSrunk , Westprn Ey. Co., 236 IT. S. Co. v. Ziebarth, C. C. A., 245 Fed. q62, iS,.,,c., C. C. A., 195 Fed. 12; 334; N. Y. Cent. E. Co. ,y. Mutual Arkansas Fertilizer Co, v. U. S. Orange Distributors,, 251 Feci, 230. (Comm. Ct.), 193 Fed. 667; U. S. '474: OBIGINAL JURISDICTION [§ 77b plaints for 1-ec'overy of damages shall be filed with, the Cominis- sion tinder th'esfe statutory provisions; and those cited in Appen- dix 1, will be referred to in these Rules as the statutory period. "(e) A complaint for iJie recovery of damages maj be infor- mal but must be filed within the statutory' period, and, if 'in- formal, should contain, in addition to the inattets above indi- cated, such data ^^ as will serve to identify ' with redsoiiable deiimten6ss the shipments or other transportation services in respect of which recovery is sought, the carriers participating, the Mhd and amount of injury sustained, when and by whom, and, if ■ any rec6very is sought oh behalf of 'others than com- plainant, a statement of the capaicity or authority in or by which complaint is made in their behalf. Notification to the Commission that a complaint mdy or will be filed later for the tecovei-y of dlamages is not a filing of complaint within the mean- ing of the statute. "(f) Carriers willing to pay damages for violations of the Act shbuld make applibation in the form pj?escribed by the Com- mission for Mthority id pajj. Such applications will be filed in the special docket under serial number, and, if granted, ordets to that effect will be entei-ed on the Special docket. Such appli- catioii, %hen riot made upon informal complaint filed "with the Commission, must be filed withiri the statutory period arid will be deemed the equivalent of an iflformal complaint arid an ariswei* thereto admitting the matters stated in the applicatiori. If a eatrier is unable to file such application withiri the statu- *to'ty period and the claim is not already protected Jrom the operation of the statute by informal complaint, a statement self- tiugl forth the fafets may be filed h'y the ea/rrier within the stiltutbry p(eriod. Such statement will bfe dedmed the equivaleta't 0^ an informal complaint filed on behalf of. the shipper a,nd sufficient to stay the operation of the statute., , i . ^ "(g) If it develops that the complaint for recovery of dam- Ages cannot be disposed of informally, the eomplaiuant and the 10 Original note "Illustrative of carloads, routes of movement, if pertinent data, are, in case of ship- known, commodities transpofted, ments, ' their dates, origins, destina- weight, charges assessed,' at wha't tioiis, ednsignors and consignees, rate, when and by whom paid arid dates of aelivery or tender of de- by whom borne. " ' livery, car numbers and initials if in §,77b] INTERSTATE qOMMEBCE COMMISSION 47^^ c^rifij^s , affected, wi|l.|}e so jjptified.jn \yriting by the,Co)a!|.raissio.n. ]jft suph case fomuit c(^plqj,fj,t. must be; filefJ, .with tbe Comr^issipP; withj^n !^ mpnths;,, after, the , date .pn whjchi.sijcli nptific£|,ti(^.,is, n^^^ile^, ,^p complainant, and,,,i,f so; filed, ^ill.be deemed. ,tp iTi^late back to the date of filing th,e.infoj]mal,i complaint. , ,If„,^9ip][^fil,, C0|]fijp|^jfl.tj j^ npt so fi^lpdMyrithin .6 iponth^ af.ter th^,,datej of mail- ipg. sucji pptification .the complainant willbe, defiiified, tp il^^XCi abandoned the .complaint and.no forhigl. complain^ for recoivery of damages, .ba,sed, , on : the, .sanie cajise.pf actipn,,\^ill thereaf;tpr be g|acied pn.fil^Qr.fiO^sidered jinjless. itself jSled i^yi.thjn t)ij«! statutpr^; ,„j',(li) Pormal com^ji^m^simust conform to tjie requirpmefi^t^, of rule XXI. The names of all parties complainant an^; de- f€W^9Jji,:^i.piu^f.. jl^ft, stated iij ;full ,:«i{i,thput abbreviation, anjjithe a,dd^ess ; of, each complainant, with, the name a];id , addijes^ pf , |hi^ , atj;pmey, ,if,£ipy, inust appear. Each formal complaint must; b^, accoinpajniefJiby, copies in ^ufifipient number to i enable,, the Qpnj-., mission tp sprveonejUponneach.party defendant apd retain 'thf,?p. fqy it^.pwn iise, ;,Theidpmniigsion will serye thes complaint. upon,, each defendant by leaving a copy wtih its designajtpd,, agent i^. Was^iingtpn, D, ,C., or, if ,up: sujch agent i has, been designated, by porting a ,eppy in the offi,ee pf thjC, Seei^etary p;£.t% Cpmm,is^pp,, i '.'(i) CpmplpJLnjtsi should be sp dra^yn as fully an(^ eompl€;tel3(; tp.adyi^e );li.e. parties defen,d(ant. and, the .Conimi^ipn.whereiii-,jthfi, provisipns,pf the Apt ^laye been, are, (pr and) will be violated,, by a continuance pf the acts j or omissions complained . of ,. g,nd- should iSjet,,f9rth,)3ri^fly and in plain, l,anguage thp* fapts claim,^^, to con^^i,tute, such violation and the relief sought.^^ ;Twp,,pr, mpji-e-, grounds of complaint involving the same pri,nciple, sub- ject,; (Or; ,s]fc^t|e, of facts, may Ije included in pnp cpmplaint, l^ii^^ should ;be separately ;stated and numbered,^* The several rjat^^,; far,es, charges, classifications, jregijlations, or practices,, com: plaipedpf: should be set put by si)eci% referenpp to tjhe tariffs, ipf which jthey appea,r T»p;lienever t,liatjis practicaj)le,. . ,, . , . !■,.,■ . ■ . , ,,-'■',, , ■, , , ■ ■.' t. ' ■' U Compare Southern Pae. Ry. Lee, 199 i^ed. 621; Bear Bros. Mer-, Co. V. Railroad Commission of Cali- eantilte Co. v. Denver & R. G. R. Co!,' foriiia, 193' Fedj 699; Atlantic 200 Fed. 614; Louisville & N. R!' Cdast Line R; Co.' V. Interstate Com- Co. v. XT. S. 225 Fed. 571; eiteA mefce CommifesipiijMPomro. Ct., ,194 infra, f 15L' Fed.: i49,j, Norifchern Pap. Ry. Co. v. 18 Sep infra, §§ 139-142. ; 476 ORIGINAL JURISDICTION [§ 77'b" "(j) In case violation of two or more sections iof the'Act is allfeged the facts claimed to constitute violatibn of one section' should 'be stated separately from those in respect of aiiy other section or sections, wherever that can be done biy' ref^reiicti'or otherwise without undue repetition. "(k) In ease violation of section 1 of the Act is alleged, the complaint should show whether the rates^ fares or ehargfes' assailed have been increa;sed since January' 1,- 1910^ ' ' '''">'"^ "(1) In case unjust discrimination in violation- 'of' seetioh 2' is alleged the special rate, rebate, drawback or other device a;nd the manner in which thereby the greater or less compensati6ii'. complained of has been charged, collected or received shoilld be specified. ' ' ' . ; ' ^ '. ., i i.i " (m) In case undue or unreasonable preference or advantage',' or undue or unreasonable prejudice or disadvairitage, in'violjttioii of section 3 is alleged, the particular person, comp!any, firm,- corporation, locality or description of traffic affected thereby, and the particular preference or advanta;ge,' or prejudice br diy- advatttage, relied upon as constituting such violation, should bfe clearly specified. : ; "' (n) If the complaint brings in issue any rate, fsirei char^^J classification, regulation or practice, made or imposed by authot- ityof any State, or initiated by the President during the period of Federal control, as causing any undue or uhreasohable" Ad- vantage, preference, or prejudice as between persons or localities in intrastate commerce on the one hand arid interstate or foreign commerce on the other hand, or any undue, unreasonable, 6i'' unjust discrimination against interstate or foreign' commercev which is forbidden and declared unlawful under Sec. 13 bf the Act, as amended by Sec. 416 of the Transportation A'ct,'' 1920',' the 'compla;int should also contain appropriate allegations to' pre- sent for decision the issue of the justness and reasbli&blerife'sW under section 1 of the rates, fares,' charges, classificatibiisi'r'^gtt- lations or pracstices complairied of in so far as applic^blie to interstate or foreign commerce, and the issue as to what should be the rate, fare or charge, or the maximum or miniriiuin, or maximum and minimum, thereafter to be charged, and , tbe classification, regulation or practice thereafter to be observed jn order to' remove such advantage, preference, prejudice or dis- crimination. The facts should be stated with sufficient definite- i T7b]' INTERSTATE COliMEECE CbHitMISSION 477'' ness to dis(ildse fully the contention made in respect of aiij' tarifeprb vision pr^^cribed, ' established or compelled by State authority or hf the President. ' The Commission, before procee'd- ihg' to hekr ' and dispose of such issiie',' must cause 'the Staite or Statek interested to be notified of the proceeding and muSt be fiirhishbd with cbjJies of the eomplaiiit' in sufficient nuilibeffoi' that purpose. '/'(o) In case violation of section 4 of the' Act is alleged the facts' ks to compensation charged or received, the respects' iri wiiich the 'section was thereby violated, aiid the tattff '{nfovi'sidiis applica,ble, should be stated with particularity. ' ' ' ' ''''('pj'Iii case recovery of damages is sought the'cdmplaint should e'ontain appropriate allegations showing, in addition to the iliatttsrs indicated 'iabove, ^u'ch' data as Will serve to iiieiitify with reasonable definiteness the shipments Or other transporta- tion services in respect of which recovery is sOught, arid' statiiig (a) that coriiplainant makes claim for reparation, (b) the name of 6ach individual claimant asking reparation, (c) the names of deferidaiits agaiiist which clalirii is riiade, (d) the commodities ti'arisported, the rate applied, the date when thfe trarispbi?tatioB chai'ges were paid, by whom paid, arid by whdrii borne, (e) the p^'ribdof tiijie within which or the specific dates upiori #hich the shipments Were made, and the dates when they were delivered ot tendered for delivei-y, * (f ) the' points of origin and destina- tion, either specifically, or, where they are numerous, by definite indication of a defined territorial or rate group of the points of origiri arid destiriation, and, if known, the toutes of movement, (g) the nature and amount of the injury sustained by "each' claimant, and (h) if any reparation is sought on behalf of others than' the complainant; in what capacity or by what a'uthbi;ity complaint is made in their behalf. ' i.i ■ "(q)'The Commission will consider as in substaritial"cd«<- pliance with the statute of limitations a complaint in which the complainant' alleges that the rifaitters complairifed of, if continued in thfe future, vein constitute Violations of the Act in the p'artibli- larb arid to the extient iridicated, and prkys reparation accord-' ingly Ori all shiptiients affected thereby which may mbve during the 'pendency of the proeeeditig and on' which the transportation' charges shall be paid and borne by the complainant. "(r) If a general rate adjustment is challenged in the com- 4y§;. ORIGINAL JURISDICTION ^ , ^ [§7'^^ p^^int, pr.many sijipments or points of origin and destination are involyed,(it.iS: tljje, practice of^tl^e Commission to find and deter- mpiie.iij its report the, issues as to violation, of the i^pt, injury thereby to complainant, and right to r^paratiojn, and, thereafter tpjaf^qrd, the, pai;|;ies. opportunity to agree or niake prp|Pf respect- ii^g'ithejShipments a^d amqupt of reparation, liue under its find-, ing before its order awarding rieparation. See Rule y, , ,In suph. eases -freighthillS' and other , exhibits bearing on the details of shipments, and, the amount, of reparation: on each, need not ^e-, I)r9,diic^^^at|:,tb,e; hearing unless .palled for or needed to dsyelop other pertinent facts. , , . , ,, |,, - , ; !'(s),,!B,x('ept under unusual circumstances, and for good cause shown, , reparation ;will; not be awarded upon a complaint, , in w,hi9h It i^ not specifically prayed for, or upon a new complaint by.Qr,!|or, |the, sajne, complainant which is, based uppii any find-, iligiig: the original proceeding. , n; ,['f'rit). Supplemental complaints ^^ may be tendered fp;r filing by the parties complainant against the parties defendant in the oi-iginal jcp,niplaint, setting forth any causes of action under the A,c]b , alleged, , to haye, apcruedin favor, of the complainants and again|S,t the defendants since the filing of , the original complaint, an4, upo;} leave granted, will be filed, and served by; tljie ,Com: mission as provided in cases qf; original complaints, and heard, ccj;ifi;idered and disposed of rtherewith in the same proceeding, if practica,ble; , , '' (u) If recovery of damages, is sought by supplemental com- plaint, i^, must be, filed with the. Commission within the statutory periqd.,,f ; , , " (v)-; Cross complaints. See.Eule IV. ; .;f(l) Except as hereiiiafter provided, proceedings ; upon causes of action arising out of federal control will be governed by thc] Commission's rules of practice in- so far as applicable. ; " (4) ,^f in any .complaint so pending the complainant alleges. tl^at- .the rates, fares, charges, classifications, regulations,! or practices cpijiplained of are and/or will be in violation of any i proyj^^H) of thP;, interstate commerce act and seefes; relief,, there; fro^ for.the future,' and- t^^e carriers over whose lines the rates, ,, . ,: ,.-fr ' : : }i Infra,,, §§23^234. § 77b] nSTTEBSTAlTE COMMEKCE COMMISSION 479 fares, charges, ciassi^eatioiis,, regulations, (jr practices, , coiii- piained of apply are not already defendants, the complainant should promptly file with the Commission a suplplemental com- plaint containing appropriate allegations and naming said car- riers as,3,«iditibnal defendants, together witli copies of the sup- plemental complaint in sufficient number for service upon all parties to the proceeding, including the new defendants named, and also three additional copies for the use of the Commission. Service thereof will be made by the Commission. If within twenty days after such service the n6w defendants do liot notify the Commission of their desire fpr resetting of a hearing al- ready set, 0^' for further hearing if liearing has already been had,, it will be understood that no resetting or further- hear- ing is desired. ' ' .ll> ' . : . ,1, "(5) Where the complaint seeks only reparation for' a 'cause of action arising prior to federal contrdl the participating cisr- rier oi- e&riers must be made parties defendant, but neither the Direictdr General nor the agent designated by ihe Priesi'dSiit is a' necessary pSrty. 'i-m... ■ ,»...■ ■ " (6) Where' the complaint seeks only reparation for aiiy cause set forth in subdivision (c) the ageint designated by llUe i*residerit is the only necessary party defenda^nt, but tlie car- riers .whose railroads or systems of ti-ansportation Were Und^r federal "ciintrol and over which the rates, fete, applied' should be specified in an appropriate place iii the body of the com- plaint. (See form 6, Rules of Practic"e.'; . "'t!7) Where the complaint seeks only the establislm^nt of j rates for the fufiire the individual carriers must be named as defendants. Neitlier the' Director General nor' the agent 6fii- ignated by the President should be so named. "(8) 'Where the complaint seeks reparation for any cause set forth iii subdivision (c)' and also the establishm'e'nt or rat^s :t6r the futiire, both the agent designated by tlie President and the carriers should be named as defendants." OFFICE iNDjA^pRESS OF THE C03V^ "(a) Pleadings and other papers required to be filed with the Commission may be transmitted by ma'il Or ek^rgss.'or ,^8,0 ORIGINAL JURISDICTION , tS/?"^?^ otherwise delivered, but must be received for filing at, its office in "Washingtoii, D. Q., within the tinje limit, at any^ il^or such filing. 'That, office is open from 9 a. m. to, 4:30 p. m. of each business day. ' , . i i " (b,) All communications to the Coinmission must be ad- , dressed to Washington, D. C,, unless otherwise specifically Ai- rected." IV. ■'"■"■-■ ' ■ ■. ANSWERS. • " ,.,'f(a) Answers must conform to, the .requirements of,, Rule '^XI.,,, ,,, ,\'„^ ,:.,;■ V,',' "(b) Answers to formal complaints must be filed with tjhe .CIpmmission within 20 days after the day on which the. complaint was .seriiredi Fpj^ defendants having general offic,qs at or west of El P^so, Tex., Salt Lake City, Utah, or Spokane; Wash., saifi period, 0|f 20 days is extended to 30 days. The periods SQ, fixed may be shortened or extended by the Commission when it d^ems advisable. The answer must in the same period be .seryed as provided in Rule VI. Any defendant ,failing to file and serve answer lyithin ^aid period will be deemed in default and issv^e as to such. defendant will bp thereby joined, ., : ''(c) Ansyvers to petitions in intervention or amended com- plaints, filled and; seryed upon leave granted need not| be sepa- rately made unless the -defendants so elect, and thesir answers to the, formal complaint will he deemed answers to the petition ip , intervention. Answers if separately made should be ^led arid served as promptly as possible, and within the same peripd after service of petition in intervention as is above provided for answers after service of complaints. Answers tq cross-com- plaints filed and served upon leave granted must be filed and -served within the same period after service of the crossTCom- plaint. , , . "(d) All answers should be so drawn as fully and completely to advise the parties and the Commission of the nature of the defense, and should admit or deny specifically and in detail each material allegation of the pleading answered.** ' ' 1* Se? infra, § 174. . ; § ^Tb] interstate' commerce commission 481 "(e) An aiiswei- denying that an alleged discrimination is unjust under section 2 of the Act, or that an alleged preference or prejudice is undue or unreasonable under section 3 of the Act,' should state fully the grounds relied upon in making such denial. , "(f) Whenever it is apparent from the pleading answered, ei^ihei- by direct aljegation or otherwise, that a departure from the requirements of the fourth section of the Act is involved, the answer should set forth by number the particular applica- tion or order, if any, w'hich protects such departure. "(g) It is desired that every effort be made to narrow the issues iipoh hearing. Matters alleged as affirmative defenses should be separately stated and numbered. Counterclaims and set-offs against shippers are not within the jurisdiction of the Commission. ' " (li) CrosS-complaints alleging violations of the Act by cair- riers complainant or seeking relief against them thereunder may be tendered for filing by defendants with their answers, and, upon leave granted, will be filed and served by the Commission in the manner provided in Eule III for complaints. In such cases the cross-complaint will be heard, considered and disposed of in connection with the issues raised by the complaint in the same proceeding.^* " (i) If a (iefendant satisfies a formal complaint, either before or after answering, a statement to that effect signed by both complainant and defendant must be filed setting forth when and how the complaint has been satisfied. "When the carrier fails to answer the complaint the Commis- sion will take such proof of the facts as it considers proper, and make such order as the circumstances of the case require.^® "Pleas in abatement and objections to the jurisdiction sub- mitted before the hearing are discouraged and the decision thereupon will usually be reserved until the disposition of the whole case.^' "No replication is required. " ^' 16 See iaifra, §§197-201. Vt Ee Procedure concerning ques- le Teeumseh Celery Co. v. Cincin- tions of law, 1 I. C. R. 224. nati J. & N. R. Co., 5 I. C. C. R. 18 Xe Procedure in eases at Is- 663, 4 I. C. R. 318. sue, 1 I. C. C. R. 223, 1 I. C. R. Fed. Prac. Vol. 1—31 ,482 OEIGINAL JURISDICTION '[§ 77b REPARATION STATEMENTS. FORMAL CLAIMS FOR REPARATION BASED UPON FINDINGS OF THE COMMISSION. "(a) When the Commission finds that reparation is due, but that the amount can not be ascertained upon the record before it, that complainant should immediately prepare a statement showing details of the shipments on which reparation is claimed, in accordance with Form 5. (See page 38). The statement should not include any shipment not covered by the Commis- sion's findings, or any shipment on Avhich complaint was not filed with the Commission within the statutory period., See Rule III. The statement, together with the paid freight bills on the shipments, or true copies thereof, should then be for- warded to the carrier which collected the charges for checking and certification as to its accuracy. The certificate must be signed in ink by a general accounting ;offieer of the carrier and should cover all of the information shown in the statement. If the. carrier which collected the charges is not a defendant in the case its certificate must be concurred in by like signature on behalf of a carrier defendant. "(b) If the shipments moved over more than one route a separate statement should be prepared for each route, and sep- arately numbered, except that shipments as to which the col- lecting carrier is in each instance the same may be listed in a single statement is grouped according to routes. "(e) Statements so prepared and certified shall be filed with the Commission, whereupon it will consider entry of an order for reparation. The filing of statement? will not stop the run- ning of the statute of limitations as to shipments not covered by complaint or supplemental complaint. See Rule III. "(d) All discrepancies, duplications, or other errors in the statements should be adjusted by the parties and correct agreed statements submitted to the Commission. ^^ An application for 410 ; Oregon ^hore Ling Ey. Co. v. 19 For actions upon awarda of Northerij Pac. E. Co., 3 I. C. C. E. reparation see supra, § 32a. .264, 2 I. C. E. 639. § 77b] INTERSTATE' COMMERCE COMMISSION 483' reparation is not barred by a pending suit for damages in a State court." 2" VL SERVICE. ~ "(a) Formal complaints and, upon leave, granted, petit^(?iis in intervention, supplemental complaints, rcross-complaipts, and amended complaints, will be ;ssrve(^i by ,the Conamissjon, anc} copies of each must be furnished in sufficient number, as pro- vided in Rule III in respect of complaints. "(b) Answers, petitions, mot jons, . applications, uotices and all other papers, except depositions, in proceedings pending before the Commission upon its formal docket, must, when. filed or tendered for filing by the Commission show service thereof, upon all parties to the proceeding. Such service shall be made by delivering in person or by mailing, properly addressed with postage prepaid, one copy, to gach party. "(c) When any party has appeared by attorney service upon such attorney will be deemed service upon the party. ' ' Where a complaint seeking reparation duly filed had been dismissed without prejudice upon the comfilainant's motion, the Com- mission decided that it had the power to reinstate this by an order mine pro tunc as of the date of its first filing; but held that it could not reinstate the pleading as subsequently amended* so as to include claims not originally therein mentioned, which at the time of the application were barred by the j Statutes of Limitation.*^ VII. amendments; " (a) Amendments to any pleading will 'be allowed or refused by the Commission at its discretion." Amendments are allowed with great liberality.** An amend- 20 Gallody & Firestein v. Cincin- 22 Delaware State Grainge v. N. nati H. & D. Ry. Co., 11 I. 0. C. Y. P. & N. Ey. Co., 2 I. C. C. B. S. 1. ' 309, 2 I. C. B. 187. 21 Werner Saw Mill Co. v. I. C. C. B. Co., 17 I. G. C. R. 388, 389, 391. 484 ORIGINAL JURISDICTION [§ 77b merit to incorpwrate transactions which occur after the original complaint was filed may be allowed.^* An amendment, which substitutes a new cause of action will be denied.^* When the complaint prayed merely for reparation and the facts had been stipulated; an application at the hearing for an amendment so as to include a prayer for through rates and joint rates was denied.*' Wlien the original complaint did not seek reparation and is subsequently amended so as to include a claim therefor, the statute runs from the date of the amendment.*® "VIII. CONTINUANCES AND EXTENSIONS OF TIME. "(a) Continuances and extensions of time will be granted or denied by the Commission at its discretion. "IX. STIPULATIONS. "(a) The parties may, by stipulation in writing filed with the Commission, or presented at the hearing, ag^ee upon any facts involved in the proceeding. It is desired that the falcts be thus agreed upon in so far as and whenever practicable. ' ' *'' When the complainant fails to appear at the hearing, or fails to offer any evidence,*' his complaint will be dismissed. A complaint wiU not be dismissed because there is no proof of direct damages to the complainant.** 23 Lehigh Valley E. Go. v. Am. 582, 584; Virginia-Carolina Chemi- Hay Co., 219 Fed. 539, 540. cal Co. v. St. Louis, I. & S. By. Co., «4Eiddle D. & Co. v. Bait. & O. 18 I. C. C. E. 1, 2. E. E. Co., 1 I. C. C. E. 372, 1 I. C. «7 Jackson v. St. A. & T. E. Co., E. 701; Delaware State Grainge v. 1 I. C. E. 599. See Eapson Coal N. Y. P. & N. Ey. Co., 2 I. C. C. E. Mining Co. v. K. C. M. & O. Ey. .'509, 2 I. C. E. 187. See infra, Co. Unrep. Op. A-824.. , § 210b. *» Holbrook v. St. Paul M. & N. 25 La Salle & Bursoner County E. Ey. Co., 1 I. C. C. E. 102, 1 I. C. E. E. Co. V. C. & N. W. E. E. Co., 13 323. , -. : I. C. C. B. 610, 613. 29 Milk Producers' Protective 28 Cattle Eaisers' Ass'n v. C. B. Ass'n v. Del. La. W. B. E. Co., 7 & Q. E. E. Co., 10 I. C. C. B. 83, L C. C. E. 92, 163; Burford v. L. East St. Louis Walnut Co. v. St. & N. R. E. Co., 31 I. C. C. B. 182, Louis S. W. Ey. Co., 17 J. C. C. E. 185. §;77b'] INTEKStATE COMMERCJi: COMMISSION 485 _. "'''''"' ' ''' ■' ^'■'"'■"' ■HEARINGS. ,f..'(a) ;Whenissue,;isi joined upon formaL complaint by service of answer, .or by i'dHw^oi defendant to answer, the Commission lyjilt assign a; 'time; and place for hearing. Witnesses will be ©?i$pn.iMefil;flrally.^be^orerthe, Commission, a Commissioner, or one of';its;ieKamiriers,nU!nless. their . testimony' is taken by deposition OiTitliiie facts are. agreed upon as provided for in these rulestl. •)iiH.b.)ilAt hearings on formal complaint the complainant shall open.iand^clo$e. '.lAt.Jiearings upon applications for relief from any pnovisi'on ■ ol . tlie r Acit the applicant shall open' and close. At hearings of investigation and suspension, proceedings the-, respondent shall, open andnclese. At hearings of all other in- vestigations on the: motion of the Commission, the Commission: shail .open and close," except. as,, the Commission may prescribe a different order or the presiding commissioner or examiner 'may oitjherwfisen direct. , In hearings of several, proceedings upon a cojQsolidated .irecord ithe ! presiding commissioner or examiner, shialll designate who shall open and, close. Interveners shall follow the party in,,whosei behalf the intervention is made, and in all oalses; where ithe intervention is not in support of either oafigvinal party; tihe,. .presiding commissioner or examiner shaijl designate at what stage such interveners shall be heard. '^ *' ..',1 mil,'. .-''BRIEFS AND :ORAL ARGUMENT. ,; i . ^ ''.(a) ^Briefs must jbe printed and comply with the requicc- mei^its 01 Rule XXI. The date of each brief must appear on its front cover or title page. Each brief should contain an abstract ,01 th,e evic^ence relied upon by, the party filing it, pref r erably assembled by, subjects, with reference to the pages of- the., rjecord p.r exhibit, , where .the, evidence, appears. It. should include, requests for such, specific findings as the party thinks the .Cpmmission should make. ..":(b;) .Exhibiljli pi&ul.d .not .Ifje reproduced in the brief, but may,, if ,desii'e,d,, be, reproduced in an appendix to the brief. so For Rules XI-XIII on Defini- tioijsy see- § 77a, Mi/:f:q. ,.[.!, ,,[;,. jiT? ..'^tidq j[b -■"1 zi\ J[b:I :.' :'■:<• - ' 486 ORIGINAL JURISDICTION [§ 77b Analyses of such exhibits should be included in the abstract of evidence under the subjects to which they pertain. The abstract of evidence should follow the statement of the case and precede the argument. Every brief of more than 20 pages shall con- tain on its front flyleaves a subject index with page references, the subject index to be supplemented by a list of all cases cited, alphabetically arranged, with references to the pages where the citations appear. In proceedings upon complaint alleging undue prejudice to or preference of any locality as contrasted with another locality, or otherwise attacking a rate relationship, the complainant should insert in his brief opposite the statement of the case a small map or chart of the territory showing the situation involved. " (c) Briefs not filed with the Commission and served on or before the dates fixed therefor will not be received except by special permission of the Commission. All briefs must be ac- companied by notice, showing service upon all other parties or their attorneys who appeared at the hearing or on brief, and 20 copies of each brief shall be furnished for the use of the Commission. Applications for extension of time in which to file briefs shall be by petition, in writing, stating the facts on which the application rests, which must be filed with the Com- mission at least five days before the time fixed for filing such briefs. "(d) For application in eases designated in the notices setting them for hearing as 'proposed report' cases, the following pro- cedure will govern, superseding that prescribed elsewhere in these Rules in so far as conflicting therewith: "1. If oral argument before the presiding commissioner or examiner is desired he should be so notified at or before the hearing and may arrange to hear the argument at the close of the testimony within such limits of time as he may determine, having regard to othei^ assignments for hearing before him. Such argument will be transcribed and bound with the tran- script of testimony, and will be available to the Commission for consideration in deciding the case. The making of such argu- ment shall not preclude oral argument before the Commission, or a Division thereof, and application therefor may be made as hereinafter provided. "2. Only one initial brief shall be filed by each party. The presiding commissioner or examiner shall fix for all parties the § 77b] INTERSTATE COMMERCE COMMISSION 487 same time within which to file their briefs. Reply briefs are not permitted at this stage. "3. After expiration of the time set for briefs the presiding or participating examiner will prepare his proposed report con- taining the statement of the issues and facts and the findings and conclusions which he thinks should be made. This proposed report will be served by mailing copies to the parties or at- torneys who appeared at the hearing or upon brief, except that in general investigations copies may also be mailed in the Com- mission 's discretion to other parties whose appearances are noted of record. "4. Within 20 days after service of the proposed report any party may file and serve, in the manner prescribed for briefs, exceptions to the examiner's proposed report and brief in sup- port of the exceptions. Exceptions and brief should be con- tained in one print. Within 10 days after expiration of the time so fixed briefs in reply to the exception briefs may be filed and served, but will not 'he received later except under leave gra,nted upon application therefor. Applications for oral argu- ment .before the Commission or a Division thereof if made by a party filing exceptions must accompany the exceptions, or if made by a party not filing exceptions must be filed not later than 10 days after the time fixed for filing and service of ex- ceptions. "Parties or attorneys at El Paso, Tex., Salt Lake City, Utah, Spokane, Wash., or points west thereof, who appeared at the hearing or upon brief, will be allowed 5 days' additional time for filing and serving exceptions, exception briefs and reply briefs, respectively. "5. Exceptions to the examiner's proposed report either as to statements of fact or matters of law should be specific. If ex- ception is taken to matters of law or conclusions the points relied upon should be stated separately and clearly. If exception is taken to any statement of fact reference should be made to the pages or parts of the record relied upon and a corrected state- ment incorporated in the exception brief. "6. In the absence of exceptions that are sustained or of ascertained error the statement of the issues and of the facts by the. examiner will ordinarily, be taken by the Commission as, the basis of its report. i88 ORIGINAL- JTJRISDICTTON' ' | § ^Ib -"(e) Except as hereiuabove provided ill subditisibn (d'^'of this r-ule, briefs for the various parties shall be 'filed iri'the'same order as governs in the' taking of their testimony' 4t Tleai-ings. At the close of the testimony in each case the presidiirg com- missioner or examiner will fix the time' for filing and sei-vice of the respective briefs as follows,' unless good cause tor variation therefrom is shown : For the opening brief, ' 30 days from' close of testimony; for the brief of the opposing party, 15 days"after the date fixed for the opening brief; for reply brief, 10 days after the date fixed for the brief of the' opposing pai'ty. Briefs of interveners shall be filed and' served within the time 'fixed for the brief of the party in whose behalf the intei-vention is made, or within such other time as may be fixed by the presiding commissioner or examiner. Parties who fail' to file opening brief, as required by this rule, will not' be permitted to file reply to brief of opposing' party. ' Bx'cept'a's' provided in sub- division (d) of this Kule applications for oral arguinent before the Commission or a Division thereof shall ' b6 made at the hear- ing or in .writing within 10 days after the close of' testiniony!"' By the Interstate Comnierce Act: (l)"'Whenever an investiga- tion shall be made by saiid Commission, it shall' be its duty to 'make a l-eport iii writing in respect thereto, which shall state the "Cbh- clusions of the Commission^ together with its decisioii', oi'der or requirement in the premises ; and in ease damages are'awar'ded such report shall include the- findings of fact on 'which" the dward is made. ' ' ' ' ' " ' '"' '■'(2) All reports of invest] gatioiis made by the Commission sliall be furnished' to the party who may have complained, aiid to any common carrier that may have been complained of. _ " (3) The Commission may provide for the publication' of its reports and decisions in such form and manner as may be best adapted for public information and ti'^e, 'knd such authorized publications shall be competent evidence of the reports 'arid de- cisions of the Commission therein' contained in all courts of the United States and of the several States without anj^ further proof or authentication thereof. ' The ' Commission may also cause to be printed for' early distribution its annual report's."'^ 31 Act of Feb. 4, 1887, eh. 104, ' § .s; S4' St. at lV .ISQ, Feb.' '2'8j i'92'O, S14, 24 St. at L.' 384, amended, oh. ^' '§417, ''Crtmii"' Si- ' f 89^S ; March 2, 1889, eh. 382, §4, 25 St. Meeker & Qo: :v..]L.eh.igh '■Valleyi ;E. at L. 8.59, June 29, 1906, oh. 3591, Cc^ 236 U. S. 412; mfra, § 333h. §J7j3]: , INTEUSTATlv.GyliMEJSCr, COJyiJUSSION 489; .iV(f4£);6f ; a ^ecisrion, order, pr requirement, has beau inade by the Commission in any proceeding any party thereto may at any ti^e make aPPlii?fttion for rehearing of the same, or any matter dletermiqed'th^reiti, and it shall 'be lawful for the Com- mission in- itsf discretion t to grant such a, rehearing if sufficient r^asoia ■ theref or''be /madb to appear. Applications for rehearing shallt'be.goverriediby such -general rules as the Commission may e9tra"b]ish.'- Nor such application shall excuse any carrier from complying With or- obeying any decision, order, or requirement of the Commission, or operate in any manner to stay or post- pone the enforcement thereof, without the special order of the OomiilissJo'n. In' case k rehearing is granted the proceedings thereupon shall, conform fts nearly as may be to the proceedings i^"ah original hearing, except as' the Commission may otherwise direct ; aiid if. Hi its judgment, after such rehearing and the con- sid'ei'atipn" of 'kir fkcts, includiilg those arising since the former hbariiig," it shall appfear'.that the original decision, order,^ or requirement is in ajiy respect ^ unjust or unwarranted, the Com- ' mission may reverse, change, or. modify the same accordingly. Any decision, order, or' requirement made- after such rehearing, reversing, changing,; or modifying the original determination shall.be subject to the; same provisions as an original order." ■■ n .. '■XV. APPIflCATION'S FOR REHEARINGS OR MODIFICATION OF ORDERS. -r;ff(i3-y.-s4Prf^ '■' INFORMATION TO PARTIES^ '' "(a) The secretary of the Commission will, upon request, advise as to the form of complaint, answer, or other paper to be filed in any proceeding. " • ' SPECIFICATIONS AS TO COMPLAINTS, ANSWERS; ' PETITIONS, APPLICATIONS, BRIEFS;* ETC. '^"''-■ " (a) All formjal complaints,: answers, motions, petitions,, ap- plications, notices, depositions,: or other pap,ers to be, filed,, ningt be typewritten or printed. , , ■ "(b) If typewritten they jniist he op.; paper not more;than 8% inches wide or 12, inches long, weighing not less than ,16 .pounds to the ream, folio base 17 by 22, inches,.; with. left-hand margin not less than 1% inches wide. The impression must, be on only one side of the paper. "(c) If printed they, as well as briefs, must be in 10 or 12 point type, on good unglazed paper, 5% inches wide by 9 inches long, with inside margin' not le^s'thaii 1 inch wide, and with double-leaded text and singje-leaded citations.. , , "(d) Complaints, answers,, motions, petitions, appjieations and noticed must be signed in ink by t^e party, petitioner or a'pplicant, or by his or its duly authorized attorney, and miist show the office and postoffiee address' of the signer." XXIL ^ ' ,' ^ ' ''',*, l^ [ OFFICE AND ADDRESS OF THE COMMISSION. : "[ "(a) Pleadings' and other papers required to be filed, with the Commission may Ije' transmitted by mail or express; or otlier- wise delivered, but mi:ist be .reeeis^ed, for .filing, at its office in ■.Washington, D. C, witbin the time limit; if any, f9r such filipg. That office is open from ?■ a.;m. to 4 :30 p. m. of each bUsiaefes'day. " (b) All communications to the ' Commission inuSt 'fee ' ad- § 77c] INTERSTATE COMMERCE COMMISSION 493 dressed to Washington, D. C, unless otherwise specifically di- rected."'* § 77c. Evidence and depositions before the Interstate Com- merce Commission. The investigations of the Commission are not narrowly restrained by technical rules as to the relevancy of evidence, nor is a strict correspondence between allegations and proof required.! The essential rules of evidence, by which rights are asserted or defended must be observed.* The com- missioners cannot act upon their own information.' All parties must be fully apprised of the evidence to be considered. They mitst be given an opportunity to cross examine witnesses,* except possibly in the case of expert evidence,* to inspect documents offered or considered and to offer evidence in explanation or rebuttal.* Hearsay evidence is insufficient to justify an order.'^ The Supreme Court has disapproved the practice on the part of a carrier to withhold a greater part of its evidence from the Comrnission and introduce it for the first time in the court in opposition' to an applica,tion to enforce the. Commission's order.* The Statute provides: "The Commission hereby created shall have authority to inquire into the management of the business of all common carriers subject to the provisions of this act, and sliall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain from such common carriers full and complete information necessary to e'nable the Commission to perform the duties and carry out the objects for which it was created ; and the Commission is hereby authorized and required to execute and enforce the pro- visions of this act. 34 The forms drafted by the Com- 6 Interstate Corameree Commission mission are pi-iiited in the Appendix v. Louisville & N. E. R. Co., 227 of thi.'i work.i XT. S. 88, 9.3, supra, § 1.51. S 77<:. 1 Interstate Commerce 1 Dales Freight Fuel Co. v. Mis- Commission V. Baired, 194 U. S. 25, souri K. & T. By. Co., 12 I. C. C. ,44;. 24 Sup. Ct. 563, 48 L. ed. 860. B. 427 (a secretary of a freight 8 Interstate Commerce Commission association). V. Louisville & N.' R. E. Co., 227 » Cincinnati N. O. & T. P. By. U. S. 88, 93. Co. V. Interstate Commerce Commis- , 3 Ibid. sion, 162 U. 8. 184, 196, 16 Sup. 4 Ibid. Ct. 700, 40 L. ed. 935. s Atlantic .Coast Jiine E. Co. v. Interstate Commerce Commission, Comm. Ct., 194 Fed. 449. 494 OEIGINAL. JURISDICTION [§ 77c "(2) Such, attendance of witnesses, and the production, of such documentary evidence, may be required from any place in 1,he JInited States, at any . designated place of hearing. And in case of. disobedience to a subpoena, the Commission,, or any party to a proceeding before the Commission, may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the productipn of books, papers, and documents under, the provisions of this section. "(3) And any of the circuit courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of . contumacy or refusal to obey a subpoena issued to any common carrier subject to the provisions of this act, or other person, issue an order requiring such common carrier or other person to appear befoxe said Commission (and produce books and papery if so ordered), and give evidence, touching the matter in question ; and any failure to obey such order of the court may be punished by such court as a contempt thereof. The claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying; but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding. " (4) The testimony of any witness may be taken, at the instance o£ a party, in any proceeding or investigation depend- ing before. the Commission, by deposition, at any time after a cause, or pi;oceeding is at issue on petition and answer. The Commission may also order testimony to be taken by deposition in any proceeding or investigation pending befoi:e it, at any stage of such proceeding or investigation. Such depositions may be taken before. any judge of any court of the United' States, or any commissioner of a circuit, or any clerk of a district or circuit court, or any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county court, or court of common pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the pro- ceeding or investigation. Reasonable notice must first be given in writing by the party or his attorney proposing to take such deposition to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the § 77c] INTERSTATE COMMERCE COMMISSION 495" witness and the time and place of the taking of his deposition. Any person may be compielled to appear and depose, and to produce documentary evidence, in the manner as witnesses may be compelled to appear aind testify and produce documentary evidence before the Commission as hereiinbefbre provided. ' " (5) Every j)erson deposing as herein provided shall be cau- tioned and sworn (or affirm, if he so requ'efet) to testify 'the whole truth, and shall' be ekrefuUy exalminied. His testimoiny shall be reduced to writing by the magistrate taking the deposi- tion, or under his direction, and shall, after it has been reduced to Writing, be subscribed by the deponent. " (6)' If a witness whose testiinony may be desired to be taUen by deposition be in a foreign country, the deposition may be taken before an officer or person designated by the Commission, or agreed upon by the parties by stipulation in writing to be filed with the Commission. All depositions must be' promptly filed with the' Commission. " (7) Witnesses whose depositions are taken pursuant to this act, and the magistrate or oth'6r officer taking this same, shall severally be entitled to the saine ¥ees as are paid for like serv- ices in the courts of the United States. " ' "No person shall be excused fi-om attending and testifying or from producing books, papers, tariffs, contracts, agreements and documents before the Interstate Coiiimerce Commission, or in obedience to the subpoena of the Commission, whether such subpoena be signed or issued by one or more Commissioners, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of the aict of tJdngr'ess, entitled. 'An act to regulate commerce,' alpproved February fourth, eighteen hundred and eighty-seven, or of any amend- ment thereof on the ground ,or for the , reason that the testi- mony or evidence, documentary or otherwise^ required of him, may tend to criminate him or subject him to a penalty or for- feiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, mat- ter or thing, concerning which he may testify, or produce evi- 8 Feb. 4, 1887,' ch. 104, §12, 24 Feb; Itf, 1891, ch. 128, 26 St. at L. St. at L. 383, amended, March 2,' 743, Feb.' 28," 192iO, ch. — , §415;' 1889, ch. 382, § 3, 25 St. at L. 858, Comp/ St. § 8576. 496 ORIGINAL JURISDICTION [§ 77p denee, documentary or otherwise, before said Commission, or in obedience to its subpoena, or the subpoena of either of them, or- in any such case or proceeding: Provided, That no person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying. ' ' Any person who shall neglect or refuse to attend and testify, or to answer any lawful inquiry, or to produce books, papers, tariffs, contracts, agreements and documents, if in his power, to do so, in obedience to the subpoena or lawful requirement of the Commission shall be guilty of an offense and upon conviction thereof by a court of competent jurisdiction shall be punished by fine not less than one hundred dollars nor more than five hundred dollars, or by imprisonment for not more than que year or by both such fine and imprisonment. " ^^ "No person shall be prosecuted or be subject to any penalty , or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or, produce evidence, documentary or otherwise, in any proceeding, suit,- or prosecu- tion under said Acts ; Provided further, That no person so testi- fying shall be exempt from prosecution or punishment for per- jury committed in so testifying." ^^ "Immunity shall extend only to a natural, person who in obedience to a subpoena, gives testimony under oath or pro- cures evidence, documentary or otherwise under oath. ' ' ^^ The Commission is expressly authorized to employ special agents or examiners with power to administer oaths, examine witnesses and receive evidence.^' "Witnesses summoned before the Commission shall be paid the same fees and mileage that are paid witnesses in the courts of the United States."" ^\ 10 See infra, §§ 339a, 339b, 27 St. St. at L. 649, June 18, 1910,' ci.' at L. 443, Comp. St. § 8577. 309, § 14, 36 St. at L. 555, March 11 Act of Feb. 25, 1903, ch. 755, 4, 1915, ch. 176, § 1, 38 St. at L. § 1, 32 St. at L. 904, Comp. St. 1196, Aug. 9, 1916, ch. 301, 39 St. § 8578. at L. 441, Comp. St. § 8592. 12 Act of June 30, 1906, eh. 3920, 14 Act of teh. 4, 1887, ch. 104, 34 St. at L. 595, Comp. St. § 8579. §18, 24 St. at L. 386, amended 13 Act of Feb. 4, 1887, ch. 104, March 2, 1889, ch. 382, § 7, 25 St. S 20, 24 St. at L. 386, amended June at L. 86, Feb. 28, 1920, § 433, Comp. 29, 1906, eh. 3591, § 7, 34 St. at St. § 8587. L. 593, Feb. 25, 1909, ch. 193, 35 ... •., r-iut .§. 77c] INTERSTATE OOMMEfiCE COMMISSION 497 "The copies of schedules and classifications and tariffs of ratps, fares a,nd.cliarges, a,nd of; all; contracts, agreements,! and,, ajrapgementSibetwgen, common carriers; filed with the commission as. herein .provided and, the statistics, tables, and: figures con- tained , in the annual or other reports of carriers madeto the . commission as required: under the provisions of this Act shall be; preserved as .public records in the custody of the secretary ofi the, commission, and shall be received as prime facie evidence of >v;liat,they purport to be for the; purpose of investigations by tjhe.copiwssion and in all judicial proceedings ; and copies of and; extracts from any of said schedules, classifications, tariffs, contracts, agreements, arrangements, or reports, made public records, as aforesaid, certified by the secretary, under the com- mission's seal, shall be received in evidence with like i effect as thgiQriginals. " ^^ !,/ o : ■ , , • ■ ;i ^■*"' dbpositi6ns." \ '(](a) The deposition pf a witness for use in a proceeding p;eiidi;jg,. before the Commission may, after issue joined, be taken, in-,|30iiipliance with the following rules of procedure, prescribed, under sectipji U of the Act, , but not otherwise. "j^b) Sifch depositions , may be taken before a special agent or exa|minpr of the Commission, or any, judge or commissioner of any court of the UnHed States, or any clerk of a district court, or any chancellor, justice, or judge of 'a supreme or su- perior court, mayor or cMef magistrate of a city, judge of a, county court or cpurt; of common: pleas of any of the United). States, , ojc any notary public not being of counsel or attorney to, either pf, the parties nor interested in the event of the pro- cef^dif|g, or jpvestigation, ^.ceording to such desigijiation as the Qpninjigsion may make in any order made by it in the premises, expep|;,,t]f^t where such deposition is ; taken; in a foreign country it may be taken before an officer or person designated by the G^pimission, : or . agreecj^ upon by the parties by ; stipulation in writing to be filed with the Commission. / -.u,;] "Any party desiring to take the^ deposition. of, a witness in 15 Aet "of Feb. 4, 1887, ch. 104, S 5, 34 St. at L. 590, June 28, 1910, §16, 24 St. at L. 384, . a'roeiidea 'eh. 309, § 13, 36 St. at L. 554; Feb. March 2, 1889, ch. 382, §5, 25 St. 28, 1920, eh. — , §§423-429, Comp. at L. 859, June 29,-1906, eh. 3591, St. § 8584., , , , , , ?I Fed. Prac. Vol. 1—32 498 ORIGINAL JURISDICTION [§ 77c ' such a proceeding shall notify the Commission to that effect, and in such notice shall state the time when, the place where, and the name and post-office address of the party before whom it is desired that the deposition be taken, the name and post- office address of the witness and the subject matter or matters concerning which the witness is expected to testify, whereupon the Commission will make and serve upon the parties or their attorneys an order wherein the Commission shall name the wit- ness whose deposition is to be taken, and specify the time when, the place where, and the party before whom the witness is to testify, but such time and place, and the party before whom the deposition is to be taken, so specified in the Commission's order, may or may not be the same as those named in said notice to the Commission.^* "(c) Every person whose deposition is so taken shall be cau- tioned and sworn (or afSrmed, if he so request) testify the whole truth and nothing but the truth concerning the matter about which he shall testify, and shall be carefully examined. His testimony shall be reduced to typewriting by the officer before whom the deposition is taken, or under his direction, after which the deposition shall be subscribed by the witness and certified in usual form by the officer. After the deposition has been so subscribed and certified it shall, together with two copies thereof made by such c^cer or under his direction, be forwarded by such officer under seal in an envelope addressed to the Commission at its office in Washington, D. C. Upon receipt of the deposition and copies the Commission will file in the record in said pro- ceeding such deposition and forward one copy to the complain- ant or his attorney and the other copy to the defendant or its attorney, except that where there are more than one complainant or defendant the copies will be forwarded by the Commission to the parties designated by such complainants or defendants as the case may be. "(d) Such depositions must conform to the specifications of Eule XXI. "(e) No deposition shall be taken except after 6 days' notice to the parties, and where the deposition is taken in a foreign country such notice shall be at least 15 days. 16 See infra (e) and § 354a. § 77«] INTERSTATE COMMERCE COMMISSION 499 "(f) No sueh deposition shall be taken either before the pro- ceeding is at issue, or, unless under special circumstances and for good cause shown, within 10 days prior to the date of the hearing thereof assigned by the Commission, and where the deposition is taken in a foreign country it shall not be taken after 30 days prior to such date of hearing. "(g) Witnesses whose depositions are taken pursuant to these rules and the magistrate or other officer taking the same, unless he be a special agent or examiner of the Commission, shall sever- ally be entitled to the same fees as are paid for like service in the courts of the United States, which fees shall be paid by the party or parties at whose instance the depositions are taken. "XII. WITNESSES AND SUBPCENAS. "(a) Subpoenas requiring the attendance of witnesses from any place in the United States at any designated place of hear- ing may be issued by any member of the Commission. "(b) Subpoenas for the production of books, papers, or docu- ments, unless directed by the Commission upon its own motion, will issue only upon application in writing. Application to compel witnesses who are not parties to the proceedings, or agents of such parties, to produce documentary evidence must be verified and must specify, as nearly as may be, the books, papers, or documents desired and the facts to be proven by them. Applications to compel a party to the proceeding to produce books, papers, or documents should set forth the books, papers, or documents sought, with a showing that they will be of service in the determination of the proceeding." "(c) Witnesses who are summoned are entitled to the same fees as are paid for like service in the courts of the United States, such fees to be paid by the party at whose instance the testimony is taken.^' XIII. DOCUMENTARY EVIDENCE. " (a) Where revelant and material matter offered in evidence by any party is embraced in a book, paper or document contain- 17 See vnfra, §§ 341, 349, 350. 18 See infra, §§ 340-343. <500 OEIGINAL JURISDICTION I ^7"^ ing other matter, not material or relevant, the party must! plain- ly designate the matter so offered. If the other matter is in such volume as would unnecessarily cumber the record, such book, paper or document will not be received in evidence but may be .marked for identification and, if properly authenticated, ithe relevant and material matter may be read into the record, or, if the presiding commissioner or examiner so directs, a true copy of such matter, in proper form, shall be received as an exhibit, and like copies delivered by the party offering the same to opposing parties or their attorneys appearing at the hearing, who shall be afforded opportunity to examine the book, paper or document, and to offer in evidence in like manner other por- tions thereof if found to be material and relevant. "(b) In case any portion Of a tariff, report, circular, or other document on file with the Commission is offered in evidence, the party offering the same must give specific reference to the items or pages and lines thereof to be considered.. The Commission will take notice of items in tariffs and annual or other periodical reports of carriers properly on file with it or in annual, statis- tical, and other official reports of the Commission. i' When it is desired to direct the Commission's attention to such tariffs or reports upon hearing or in briefs or argument it must be done with the precision specified in the second preceding sentence. In case any testimony in proceedings other than the one on hearing is offered in evidence, a copy of such testimony must be presented as an exhibit. When exhibits of a documentary character are to be offered in evidence, copies must be furnished to opposing counsel. " (c) All exhibits showing rates or distances must, hy proper I. C. G. number reference, indicate the tariff authority for the rates, and. must also show by lines and junction points the routes via which the distances are computed, as well as the authority for the distances used. "(d) All exhibits received in evidence are Bound with the rest of the record in covers of uniform size. It thus becomes desirable that, wherever practicable, they should be on one side only of sheets not exceeding. 121/2 inches from top to bottom by 22 inches in width, and imperative that a sufficient margin for 19 See infra, § 329a. Ij^l77e] INTERSTATE COMMERCE COMMISSION '501 -M*ifding| preferably 1% inches, be lelt blank on the left side of :each sheet. They must be on paper of good quality and so prepared as to be plainly legible and durable, whether printed, 'typewritten, mimeographed, planographed, photographed or • o'tiherwise. ■ The. use of hectograph and white-line blue prints "lis flisBOuraged. ::!•'!*: (e) The isheets of each exhibit and the lines of each sheet ■should be numbered, wherever practicable, The first sheet, or -ititleipage should he confined to a brief statement of what the -exhibit purports; to show, with reference by sheet and line to illustrative or typical examples contained in the exhibit. It is dfesirable that, wherever practicable, rate comparisons and other evidence should be condensed into tables. "(f) Where agreed ujjoh by the parties at or after the hear- • ing, the presiding ftommissioner or examiner, if he deems ad- j visab^e, -may receive specified documentary evidence as a part of the; record within a time to be fixed by him, but which shall /.expire not; less than 10 days ibefore the date fixed for filing and serving briefs. ■ : '.'.(g) Except as above provided, or as may be expressly per- mittedin particular instances, the Commission will not receive in evidence or consider as part of the record and documents, letters or other writings submitted for consideration in connec- - tion^ with the proceeding' after the close of the testimony, and will .retiirn the same to the sender. XVI. TRANSCRIPT OF TESTIMOJSIY. In j" (a)!-.One copy of the transcript of testimony will be furnished • biy the C.omfUission without charge for the use of the complain- ant and one copy for the use of the defendant. If two or more jcompteinants of defendants have appeared at the hearing, such complainants or defendants must 3esignate to whom the copy if or their use shall be delivered. A similar cotn*se will be pursued 'iii 'proceedings involving the suspension of tariffs. . " (b) In proceediiigs instituted by the Commission on its own motion, other than proceedings involving the suspension of q|^aipffs,;nG copies of the. transcript will ibe furnished by the Com- miseito." ■ 502 ORIGINAL JURISDICTION [§ 77d § 77d. Enforcement of orders of Interstate Commerce Com- mission. ' - Upon the request of the Commission, it shall be the duty of any district attorney of the United States to whom the Commission may apply to institute in the proper court and to prosecute under the direction of the Attorney-General of the United States all necessary proceedings for the enforcement of the provisions of this act and for the punishment of all violations thereof, and the costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States; and for the purposes of this act of the Com- mission shall have power to require, by subpa?na, the attend- ance and testimony of witnesses and the production of all books, papers, tariffs, contracts, agreements, and documents relating to any matter under investigation. " ^ "Except as otherwise provided in this Act, all orders of the Commission, other than orders for the payment of money, shall take effect within such reasonable time, not less than, thirty days, and shall continue in force until its further order, or for a specified period of time, according as shall be prescribed in the order, unless the same shall be suspended or modified or set aside by the Commission, or be suspended or set aside by a court of competent jurisdiction. ' ' ^^ ' ' If any carrier fails or neglects to obey any order of the com- mission other than for the payment of money, while the same is in effect, the Interstate Commerce Commission or any party in- jured thereby, or the United States, by its Attorney-General, may apply to the appropriate district court for the enforcement of such order. If, after hearing, that court determines that the carrier is in disobedience of the same, the court shall enforce obedience to such order by a writ of injunction or other proper process mandatory or otherwise, to restrain such carrier, its officers,, agents or representatives, from further disobedience of such order, or to enjoin upon it or them obedience to the same. ' ' * § 77d. 1 Act of Feb. 4, 1887, ch. at L. 1196, Aug. 9, 1916, ch. 301, 104, S 20, 24 St. at L. 386, as 39 St. at L. 441, Feb. 28, 1920, amended June 29, 1906, eh. 3591, § 434, 436, Comp. St. § 8592. § 7, 34 St. at L. 593, Feb. 25, 1909, l»Ibid. § 13 Act of Feb. 28, 1920, ^5 St. at L. 649, June 18, 1910, S§ 418, 421. ell. 309, S14, 36 St. at L. 555, . 2 March 2, 1889, ch. 382, %S, 25 March 4, 1915, ch. 176, § 1, 38 St. St. at L. 862, Comp. St. § 8593. §-77d] INTERSTATE COMMEECE COMMISSION 503 "Whenever the Interstate Commerce Commission shall have reasonable ground for belief that any common carrier is en- gaged in the carriagis of passengers or freight traffic between given points at less. than the published rates on file, or is com- mitting any discrimination forbidden by law, a petition may be presented alleging such facts to the district court of the United States sitting in equity having jurisdiction ; and when the act complained of is alleged to have been committed or as being com- mitted' in part in more than one judicial district or State, it may be dealt with, inquired of, tried, and determined in eithier such judicial district or State, whereupon it shall be the duty of the court summarily to inquire into the circumstances, upon such notice and in such manner as the court shall direct and without the formal pleadings and proceedings applicable to ordinary suits in equity, and to make such other persons or corporations parties thereto as the court may deem necessary, and upon being satisfied of the truth of the allegations of said petition said court shall enforce an observance of the published tariffs or direct and require a discontinuance of such discrimination by proper orders, writs, and process, which said orders, writs, and process may be enforceable as well against the parties interested in the traffic as against the carrier, subject to the right of appeal as now provided by law. It shall be the duty of the several district attorneys of the United States, whenever the Attorney-General shall direct, either of his own motion or upon the request of the Interstate Commerce Commission, to institute and prosecute such proceedings, and the proceedings provided for by this Act shall not preclude the bringing of suit for the recovery of damages by any party injured, or any other action provided by said Act approved February fourth, eighteen hun- dred and eighty-seven, entitled An Act to regulate commerce and the Acts amendatory thereof. ' ' ' ' ' It shall be the duty of every common carrier subject to the provisions of this Act, to designate in writing an agent in the city of Washington, District of Columbia, upon whom service of all notices and processes may be made for and on behalf of said common carrier in any proceeding or suit pending before 8 Act of Feb. 19, 1903, ch. 708, §3, 32 St. at L. 848, Comp. St. § 8599. 504 ORIGINAL JURISDICTION - [§|7.7|d the Interstate Commerce Commission (or before said commerce court) and to file designation in the ofSce of the secretary; of, the Interstate Commerce Commission, which designation ma,y froqi- time to time be changed by like writing similarly filed; and, thereupon service of all notices and processes may be made upon such common carrier by leaving a copy thereof with sjich common , carrier by leaving a copy thereof with such designated agent ^.t his office or usual place of residence in the city of Washington, , with like effect as if made personally upon such common carrier, and in default of such designation of such agent, service of any.i notice or other process in any proceeding before said Interstate, Commerce Commission (or commerce court) may be made by posting such notice or process in the office of the secretary pf the Interstate Commerce Commission. " * ' ' That in any proceeding for the enforcement of the provisions of the statutes relating to interstate commerce, whether, such, proceedings be instituted before the Interstate Commerce popi- mission or be begun originally in any circuit court of the United. States, it shall be lawful to include as parties, in addition to the, carrier, all persons interested in or affected by the rate, regula- tion, or practice under consideration, and inquiries, jiriyestiga-, , tions, orders, and decrees may be made with reference to, and,; against such additional parties in the same manner, to the, same extent, and subject to the same provisions as are or shall be. authorized by law with respect to carriers. " ^ r-<..-- ' The District Courts of the United States "have jurisdiction,, upon the application of the Attorney-General of the United States , at the request of the Commission, alleging a failure to co:^ply, with or a violation of any of the provisions of said Act, to regulate commerce or of any Act supplementary thei'eto or . amendatory thereof by any common carrier, to issue a writ; or; writs of mandamus commanding such common carrier to comply with the provisions of said Acts, or any of themi " * • • *Act of June 18, 1910, ch. 309, .June 29, 1906,; eh; 3591, § 7, 34 St. ; §6, 36 St. at L. 544, Comp. St. f^t L. 593, iPelj., 25, 1909, , 85 i^t. at §Sf600. L. 649, June 18, 1910, eh, ,309, .§14,. 5 Act of Feb. 19, 1903, eh. 708, 36 St. at L. 555, March 4, 1915, cb. S 2, 32 St. at L. 848, Comp. St. 176, § 1, 38 St. at L. 1196, Aug. 9, S 8598. • 1916, ch. 301, 39 St. at L. 441,Ee^. 6 Act of Feb. 4, 1887, ch. 104, 28, 1920, § 434, 436, Comp. St. ; 5 20, 24, St. at L. 386, as amended § 8592. ' \ .. , . -. §■77(1] INTERSTATE COM]vn<:RCE COMMISSION 505 ■ Tile District Courts of the United States "have jurisdiction 'ii^on the relation of any person or persons, firm, or corporation, alleging such violation by a common carrier, oif any of the p»ro- A'isidns' of the act 'to' which this is a supplement and all acts amendatory thereof, as prevents the relator from having inter- ■stkt*- traffic moved by said common carrier at the same rates as are charged, or upon terms or conditions as favorable as those given by said eomilion eatrier for like traffic under similar con- ditions to any other shipper, to issue a writ or writs of mandamus ag'ainst said common carrier, commanding such common carrier to move and transport the traffic, ot- to furnish cars or other facilities for traiisportation for the party applying for the writ ; 'Provided;' That if any qliestion of fact as to the proper com- •'pehsation to tbe common Carrier for the service to be enforced by the writ is raised by the plfeadings, the writ of peremptory 'maiidaWus may issue, notwithstanding such question of fact is undetermined, upoii such terms as to security, payment of money 'into the court, or otherwise, as the court may think proper, pending the determination of the question of the question of fact; Provided, That the remedy hereby given by writ of man- damus ^hall be cumulative, and shall not be held to exclude or interfere with other remedies provided by this act or the act to which it is a supplement." ' ■The Act of March 1, 1913, providing for the physical valua- tion' of property of carriers provides, "that the District Courts of the United States shall have jurisdiction upon the application oi the Attofriey-Geriet'ar of the tfnited States at the request of the commission, alleging a failure to comply with or a viola- tion of 'any of the provisions of this section by any common carrier to issue a writ or writs of mandamus commanding such common carrier to comply with the provisions of this section." * ' The Supreme Court of the District of Columbia may issue a man- daintis against the commission in a proper case.^ • ■ TAct of March 2, 1889, ch. 382, 9U. S. ex rel. Kansas City South- >8.6i, 25^ St. ;at L. 862, Gomp. St. em Ey. Co. v. interstate Commerbe § 859.3. Commission, s. c, TJ. S., March 8, '-•'8 Act of Feb. 4, 1887, ch. 104, 1920. f 19a, added March 1, 1913, ch. 92, 37 St. at L. 701, Feb. 28, 1920, § 438, Comp. St. § 8591. 506 ORIGINAL JUKISDIOTION [§ 77d "(1) If, after hearing on a complaint made as provided in section thirteen of this Act, the Commission shall determine that any party complainant is entitled to an award of damages under the provisions of. this Act for a violation thereof, the Commis- sion shall make an order directing the carrier to pay to the com- plainant the sum to which he is entitled on or before a day named." '" " (2) If a carrier does not comply with an order for the pay- ment of money within the time limit in such order, the complain- ant, or any person for whose benefit such order was made, may file in the" (District Court) "of the United States for the dis- trict in which he resides or in which is located the principal operating office of the carrier, or through which the road of the carrier runs, or ia any State court of general jurisdiction haying jurisdiction of the parties, a petition setting forth briefly the causes for which he claims damages, and the order of the commission in the premises. Such suit in the" District Court "of the United States shall proceed in all respects like other civil suits for- damages, except that on the trial of such suit, the finding of an order of the commission shall be prima facie evi- dence of the facts, therein stated,^i and except that the petitioner shall not be liable for costs in the" District Court "nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal. If the petitioner shall finally prevail he shall be allowed a reasonable attorney's fee to be taxed and collected as a part of the costs of the siiits.*'' "(3) All actions at law by carriers subject to this Act for recovery of their charges, or any part thereof, shall be begun within three years from the time the cause of action accrues, and not after. All complaints for the recovery of damage shall be filed with the Commission within two years from the time the cause of action accrues, and not after, unless the carrier, after the expiration of such two years or within ninety days before such expiration begins an action for recovery of charges in respect of the same service in which case such period for two years shall be extended to and including ninety days 10 Act of Feb. 4, 1887, eh. 104, 1910, eh. 309, § 13, Act of Feb. 28, § 16, as amended, Aet of March 2, 1920, §§ 423-429, Comp. St. i 8584. 1889, eh. 382, §5, Aet of June 29, 11 See mipra, § 32a;. infra, § 333g. 1906, eh. 3591, § 5, Act of June 18, 12 See infra, § 416a. § 77d] INTERSTATE COMMERCE COMMISSION 507 from the time such action by the carrier is began. In either case the cause of action in respect of a shipment of property shall, for the purposes of this section, be deemed to accrue upon delivery or tender of delivery thereof by the carrier, and not after. A petition for the enforcement of an order for the pay- ment of money shall be filed in the District Court or State court within one year from the date of the order, and not after.^' " (4) In such suits all parties in whose favor the Commission may have made an award for damages by a single order may be joined as plaintiifs and all of the carriers parties to such an order awarding such damages may be joined as defendants, and such suit may be maintained by such joint plaintiffs and against such joint defendants in any district where any one of such joint plaintiffs could maintain such suit against any one of such joint defendants ; and service of process against any one of such defendants as may not be found in the district where the suit is brought may be made in any district where such defendant carrier has its principal^ operating office. In ease of such joint suit the recovery, if any, may be by judgment in favor of any one of such plaintiffs, against the defendant foUnd to be liable to such plaintiff. "(5) Every order of the Commission shall be forthwith served upon the designated agent of the carrier in the city of Washington or in such other manner as may be provided by law. " (6) The Commission shall be authorized to suspend or notify its orders upon such notice and in such manner as it shall deem proper. " " (7) It shall be the duty of every common carrier, its agents and employees, tp observe and comply with such orders^ so long; as the same shall remain in effect. "(8) Any carrier, any officer, representative, or agent of a carrier, or any receiver, trustee, lessee, or agent of either of them, who knowingly .fails or neglects to obey any order made under the provisions of sections 3, 13, or 15 of this Act shall forfeit to the United States the sum of $5,000 for each offense. Every distinct violation shall be a separate offense, and in case 18 See infra, § 180. 508 ORIGINAL JURISDICTION' [§'77e" of a continuing violation each; day shall be deemed a separate"' offense. f' (9) The forfeiture provided for in this Act shall be payable, into the Treasury of the. United Stiates, and shall be recoverable in a civil suit in the name of the United: States, brought in- the-, district where the carrier has its principal operating ofSce,, .or. lin any district through which, the road of the carrier runs. :. i ■ "(10) It shall be the duty of the various district attorneys, under the direction of i the Attorney-General of the United States, to, prosecute for the recovery of forfeitures. ,The; costs- and. ex-r penses of such prosecution shallube paid out of the appropria.- tion for the expenses of the courts of the United States.-: " (11) The Commission may employ sjjch, attorneys as it finds necessary for proper legal, aid and service of the i Commission j or its members , in the conduct of their work, or. for ! proper; representation of the public interests in investigations made by it or cases or proceedings pending before it, whether at the,' Commission's own instance or upon complaint, or to appear for or represent the Commission in any case in .court ; and the ex- penses of such employment shall be paid out of tjhe apprppriatiou for the Commission. " 1* , , , „■. "The orders, writs, and processes of the District, Cpi;irt^- may in these cases, run, be served, and be. returnable anywhere in the United States. "16 ' \ .,,,.,,;. , -/ ' i ,', Suits to review, to set aside, and to restrain the enforcemjent. of orders of the Commission, are subsequently considered. ^^ § 77e. Jurisdiction of the Railroad Boards of La.bor Adjust- ment. The Transportation Act of February 28, 1920, providies: "(1) The term 'carrier' includes any express compan;^', sleeping ear company, and any carrier by railroad, su'biject to the Interstate Comiherce Act, except a street, interurban, HP' suburban electric railway not operating as a part of ' a geietaT steam railroad system of transpoi-taiion ; "(2) The term 'Adjustment 'Board' means any 'Railroad Board of Labor Adjustment established under section 302:'' ' UAet of, Feb. 4, 1,88,7, eh. 104, eh. 309, § 13, 36 St. at L, 554. .non^p. §16, 24 St. at L. 384, amended St. §8584. • ^ -. March 2, 1889, eh. 382, § 5, 25 St. IB .s's St. at L." 219." ''"' ' at L. 859, June 29, 1906, eh. 3591, 16 See infra, S§ 100b, 151 S 5, 34 St. at L. 590, June 18, 1910, ■ ' ••-■•■« §!77e] RAILROAD BOARDS OF LABOR ADJUSTMENT 509 i!f'(3) The term 'Labor Board' means the Railroa;d Labor Board; !''(4) The term 'commerce' means commerce among the several States or between any Sfate, Territory, or the District of : Columbia and any foreign nation, or between any Territory. or, the-District of Columbia and any State, or between any Territory and any other Territory, or between any Territory and the Dis- trict! of Columbia, or within any Territory or the District of Columbia^ or between points in the same State but through, any other. State or any Territory or the District of Columbia or any foreign nation ; and ' . >: , : - ; . "(5) Th6 term 'subordinate official' includes officials 'of carriers of subhicMss or rank as the Commission shall 'designate byisregulation formulated and fssued after such notice and hear- ing as the ComiMission may prescribe, to the carriers, and em- ployees and subordinate officials of carriers, and organizations thereof, directly to be affected by such regulations.'' ^ "It; shall be the duty of all carriers and their officers, em- ployees, and; agents to exert every reasonable effort and adopt every available means to avoid any interruption to the operation; of any carrier growing out of any- dispute between the carrier and the employees or subordinate officials thereof. All such dis- putes shall be considered and, if possible, decided in conference between, representatives designated and. authorized so to confer by tl|e, carriers, or the euiployees or subordinate officials thereof, directly I interested in the dispute. If any dispute is not decided! in such conference, it shall be referred by the parties thereto, to the board which und^r jthe provisions of this title is, authorized to hear and idecide such dispute. " "^ ■ . • "Railroad Boards of 'Labor Adjustment may be established- by,:, agreement between any carrier, ' group of carriers, or the carriers as a whole, and aiiy employees or subordinate officials of carriers, or organ5iation or group of organizations thereof. " ' ,," Each such ad justment Board shall, (1) Upon the application, oi,. the chief executive^ of any catrier or organization of em- pjqy,eftg or subordinate officials whose members are, directly inter- 's r7e. 1 Act of Feb. 28, 1920, eh. 3 Act of Feb. 28, 1920, ch. — , --^, § ■300, Comp. St.''§'10'071i4ee. "' §302, Comp. St. §.10071Mf. 2 Act, of . Feb. ,28, 192ft, ehv — , , , §'30.J,v,Comp. St. §,1007114eQe. , 510 ORIGINAL JUBISDlSTION ' [§ 77£ ested in the dispute, (2) upon the written petition si^ed hy not less than 100 unorganized employees or subordinate ofi&cials directly interested in the dispute, (3) upon the Adjustment Board's own motion, or (4) upon the request of the Labor Board whenever such board is of the opinion that the dispute is likely substantially to interrupt commerce, receive for hearing, and as soon as practicable and with due diligence decide, any dispute involving only grievances, rules, or working conditions, not de- cided as provided in section 301, between the carrier and its employees or subordinate officials, who are, or any organization thereof which is, in accordance with the provisions of section 302, represented upon any such adjustment Board." * §77f. Jurisdiction of the Railroad La.bor Board. "There is hereby established a board to be known as the "Railroad Labor Board ' ' and to be composed of nine members as follows : " (1) Three members constituting the labor group, represent- ing the employees and subordinate officials of the carriers, to be appointed by the President, by and with the advice and con- sent of the Senate, from not less than six nominees whose nomina- tions shall be made and offered by such employees in such manner as the Commission shall by regulation prescribe; "(2) Three members, constituting the management group, representing the carriers, to be appointed by the President, by and with the advice and consent of the Senate, from not less than six nominees whose nominations shall be made and offered by the carriers in such manner as t,he Commission shall by regu- lation prescribe ; and " (3) Three members, Constituting the public group, represent- ing the public, to be appointed directly by the President, by and with the advice and consent of the Senate. "Any vacancy on the Labor "Board shall be filled in the same manner as the original appointment."^ "If either the employee or the carriers fail to make nomina- tions and offer nominees in accordance with the regulations of the Commission, as provided in paragraphs (1) and (2) of sec- tion 304, within thirty days after the passage of this Act in case of any original appointment to the office of member of the Labor Board, or in case of a vacancy in any such office within fifteen 4 Act of Feb. 28, 1920, ch. — , § 77f. 1 Act of Feb. 28, 1920, ch. § 303, Comp. St., § 10071%ff. — , § 304, Comp. St. § 10071 I4fff. § 77f ] KAILROAD LABOR BOARD 511 days after such vacancy occurs, the President shall thereupon directly make the appointment, by and with the advice and con- sent of the Senate. In making any such appointment the Presi- dent shall, as far as he deems it practicable, select an individual associated in interest with the carriers or employees thereof, whichever he is to represent. ' ' * " (a) Any member of the Labor Board who during his term of office is an active member or in the employ of or holds any office in any organization of employees or subordinate officials, or any carrier, or owns any stock or bond thereof, or is pecuniarily interested therein, shall at once become ineligible for further membership upon the Labor Board; but no such member is re- quired to relinquish honorary membership in, or his rights in any insurance or pension or other benefit fund maintained by organization of employees or subordinate officials or by a carrier. "(b) Of the original members of the Labor Board, one from each group shall be appointed for a term of three years, one for two years, and one for one year. Their successors shall hold office for terms of five years, except that any member appointed to fill a vacancy shall be appointed only for the unexpired term of the member whom he succeeds. Each member shall receive from the United States an annual salary of $10,000. A member may be removed by the President for neglect of duty or mal- feasance in office, but for no other cause. ' ' ' "(a) The Labor Board shall hear, and as soon as practicable and with due diligence decide, any dispute involving grievances, rules, or working conditions, in respect to which any Adjustment Board certifies to the Labor Board that in its opinion the Ad- justment Board has failed or will fail to reach a decision within a reasonable time, or in respect to which the Labor Board deter- mines that any Adjustment Board has so failed or is not using due diligence in its consideration thereof. In case the appro- priate Adjustment Board is not organized under the provisions of section 302, the Labor Board, (1) upon the application of the chief executive of any carrier organization of employees or sub- ordinate officials whose members are directly interested in the dispute, (2) upon a written petition signed by not less than 8 Act of Feb. 28, 1920, ch. — , §306, Comp. St. § 10071%gg. Act § 305, Comp. St. § 10071 %g. of Feb. 28, 1920, ch. — , § 307, S Act of Feb. 28, 1920, ch. — , Comp. St. § 10071 %ggg. -^512 ORIGINAL JURISDICTIOl^ [§ 77f 100 uiiorgaiiized'eniployeies or subordinate officials directly inteir- ested in the dispute; or (3) upon the Labor Board's own 'motion if it is of the opinion that tl).e dispute is likely substantially to interrupt commerce, shall receive for hearing, and as soon as practicable and with due diligence decide, any dispute invdvin-g grievances, rules, or working conditions which is not decided as provided in section 301 and which Adjustment Board would be required to receive for hearing and decision under the provisions of section 303. "(b) The Labor Board, (1) upon the application of the chief executive of any carrier or organization of employees or subor- - dinate officials whose members are directly interested in the dispute, (2) upon a written petition signed by not less than 100 unorganized employees or s'ubordinate officials directly interested in the dispiite, or (3) upon the Labor Board's own motion if it is of the opinion that the dispute is likely substantially to inter- rupt commerce, shall receive for hearing, and as soon as prac- ticable and with due diligence decide, all disputes with respect to'-the wages or salaries of employees or subordinate officials of carriers, not decided as provided in section 301. The Labor Board rhay upon its own motion within ten days after the deci- sion, in accordance with the provisions of section 301, of any dispute with tespect to wages or salaries of employees or subor- dinate officials of carriers, suspeiid the operation of such deeisidn if the Labor Board is of the opinion that 'the deeisioh involves such, an increase ih wages or salaries as will be likely to neces- sitate a substantial readjustment of the rates of any carrier. The Labor Board shall heai* any decision so suspended and as soon as practicable and with due diligence decide to affirm or modify such suspended decision. \ • ■ ''(c) A decision by the Labor Board under the 'provisions of paragraph (a) or (b) of this section shall require the concur- rence therein of at least 5 of the 9 members of the Labor Board : Provided; That in case of any decision under paragraph (b), at least one of the representatives of the public shall concur in such decision. All decisions of the Labor Board shall be entered upon the records of the board and copies thereof, together with . such statement of facts bearing thereon as the board may deem proper, shall be immediately communicated to the parties to the dispute, the President, each Adjustment Board, ahd the Commis- § 77f ] RAILROAD LABOR BpARD 513 sipri,, ,ap(J, s)i^ll |::je giveii fuijther publicity: in such manner as the L^|)pr Bpard may determine. j , ',',{4) 1^ thp decisions of the Labor ,Board.m respect to wages or ^salaries and, of the Labor Board or an Adjustment Bqard in respect to working conditions of employees or subprdina,te offi- (fi^l^^p^iflMrieps shall pstablish rates of wages and. salaries and eta^fi^jifds o;f wftr,king pojiciitipns Tj?;hi.chdn, the opinion of the board are just and reasonable. In determining the justness a,nd;reason- albileness of ^ii^h wages and sala,ries| pr working ppnditions the board ^hall, so ; far a^, applicable, take into, consideration among other relevant circumstances : ,,"(1). The spalespf, wages paid for similar kinds of work in pth,er, ^n^usi;ries ; , ,';i(,2), The, relation between wages and the cpst of living; ,l"(3) iXhe hazards, pf the employment; . ,,,,','(4) The, training and skill required,; ,..''(5) The degree pf Tesppnsibility ; . :: : i,,".|(6,).,']rhe ,cha.ractpr, a,nd, , regularity of the employmentiii and.,. .."(7) IJnequaliljies of increases in wages or of treatment,i the r,esult of, previous y age orders or adjustments,"* , ," The, Labor Board— " (1) Shall elect a chairman, by majority vQte of its members; :"(2) .Shall maintain central offices in Chicago, Illinois, but the I^abpr Bpard may, whenever it deems it necessary, meet a,t, sUj^^i ojther place as it may determine; " (3) ShaU investigate and study the relations between carri- ers ,an4 their employees, particularly questions relating to wages, h^urs pf lg.bpr, and pther conditions of emplojonent and the respective privileges, rights, and duties of carriers and employees, and shall gather, compile, classify, digest, and publish, from tifli,P;to (time, data and information relating to such .questions tp.tjie ei^.d j^at tl^e .Labor Board may be iproperly equipped to perfpi^m its duties under this title and that the members of the Adjustment, Boards and the public may be properly informed ; ".(4). IVfay make regulations necpssary for the efficient execu- tion of th,e functions vested in it by this title; and , " (5} Shall at least annually collect and publish the decisions 4 Act of Feb:. 28,: 1920, ch. — , § 307, Gpmp.; St. ,§ 10071%,h. Fed. Prac Vol. 1—33 5i4 ORIGINAL JURISDICTION [§ 77f and regulations of the Labor Board and the Adjustment Boards and all regulations of the Labor Board and the Adjustment Boards and all court and administrative decisions' and regula- tions of the Commission in respect to this title, together with a cumulative index-digest thereof."* "Any party to any dispute to be considered by an Adjustment Board or by the Labor Board shall be entitled to a hearing either in person or by counsel. ' ' ® "(a) For the efficient administration of the furictions vested in the Labor Board by this title, any member thereof may re- quire, by subpoena isued and signed by himself, the attendance of any witness and the production of any book, paper, document, or other evidence from any place in the United States at any designated place of hearing, and the taking of a deposition before any designated person having power to administer oaths. In the case of a deposition the testimony shall be reduced to writing by the person taking the deposition or under his direction," and shall then be subscribed' to by the deponent. Any member of the Labor Board may adininister oaths and examine any witness. Any witness summoned before the board and any witness whose deposition is taken shall be paid the same fees and mileage as are paid witnesses in the courts of the United States. "(b) In case of failure to comply with any subpoena or in case of the contumacy of any witness appearing before the Labor Board, the board may invoke the aid of any United States Dis- trict Court. Such court may thereupon order the witness to comply with the requirements of such subpoena, or to give evi- dence touching the matter in question, as the case may be. Any failure to obey such order may be punished by such court as a contempt thereof. "(c) No person shall be excused from so attending and testify- ing or deposing, nor from so p'roducirig any book, paper, docu- ment, or other evidence on the ground that the testimony or evidence, documentary or otherwise^ required of him may tend to incriminate him or subject him to a penalty or forfeiture; but no natural person shall be prosecuted or subjected to any penalty or forfeitui-e for or on account of any transaction, 5 Act of Feb. 28, 1920, ch. — , 6 Act of Feb. 28, 1920, ch. — , § 308, Comp. St. § 10071%hh. § 309, Comp. St. § 10071 J4hhh. '§i77f] RAILROAD LABOR BOABD 51,5 matter, or thing, as to which iin, obedience to a subpoena and^up^^r oath, he mayi so testify or produce evideiia^ documentary or otherwise. Eiut no person shall be exempt from prosecution and punishment for perjury eonimitted in so testifying,"''' ,.._, " (a)> Whein necessary to ithCi.efficieiit, administration of tjie functions vested in the, Labor Board by j this title, any member, officer, .employee,; Qr agent thereof, duly authorized in writing by the board) shall at all rea^onabl^ttimeSiforithepurppseof exami- nation have access, to and the right to copy any book, account, ,rep- ord,!, paper, or correspondeniqe relating to any matter which .th« board is authorized to consider or investigate. Any person who upon demand refuses, any duly authorized member, officer, em- ployee, or agent of the Labor Board such right of access or copy- ing, or, hinders, obstructs, or resists him in the exercise of such right, shall upon conviction thereof be, liable to a penalty of $500 for each such offense. Each day during any part of which such offiense. continues shall constitute a separate offieijse. Such penal- ty shall be recoverable in a civil suit brought in the name of the United, States, , and .shall be covered into the Treasury of the United States as miscellaneous receipts. ' "(b): Every officer or employee of the United iStates,; whenever requested by any member of the Labor Board or an Adjustment Board duly authorized by the board for the purpose, shall supply to such board any data or information pertaining to the adminis- tration of the functions vested in it by this title, which may be contained in the records of liis office. — ' "(e) The President is authorized to transfer, to the Labor Board any booksy papers, or documents pertaining to the ad- ministration of the functions vested in the board bjr this title, which are in the possession of any agency, or railway board' of adjustment in connection therewith, ' establislied for executing the powers granted the President under the Federal Control Act and which are no longer necessary to the administration of the affairs of such agency. " 8 ' ' 'Prior to September 1, 1920, each carrier shall pay to each employee or subordinate official thereof wages or saliry at a rate not less than that fixed by the decision of any agehcy, or 7 Act of Feb. 28, 1920, eh. — r, 8 Act of Feb. 28, 1920, ch. ■ — , § 310, Comp. St. § 10071%i. S 311, Comp. St; § 10071,i4ii. 516 OEIGINAL JURISDICTION ?[§ 77f railway board of adjustment in connection therewith, established for executing the powers granted the President under the Federal Control Act, in effect in respect to such employee or subordinate official immediately preceding 12.01 a. m. March 1, 1920. Any carrier acting in violation of any provision of this section shall upon conviction thereof be liable to a penalty of $100 for each offense. Each such action with respect to any such employee or subordinate official and each day or portion thereof during which the offense continues shall constitute a separate offenSei. Such penalty shall be recoverable in a civil suit brought in the name of the United States, and shall be covered into the Treasury of the United States as miscellaneous receipts. " * ' ' The Labor Board, in case it has reason to believe that any decision of the Labor Board or of an Adjustment Bbaxd is violated by any carrier, or employee or subordinate official, or organization thereof, may upon its own motion after due notice and hearing to all persons directly interested in such violation, determine whether in its opinion such • violation has' occurred and make public its decision in such manner as it in'ay' deter- mine."" ' ' "The Labor Board may (f) appoint a secretary, who shall receive from the United States an annual salary of $5,000 ; and (2) subject to the provisions of the civil-service laws, appoint and remove such officers; employees, and agebts; and make Such expenditures for rent, printing, 'telegrams, telephone, law books, books of reference, periodicals, furniture, stationery, office equip- ment, and other supplies and expenses, including salaries,; travel- ing expenses of its members, secretary, officers, employees, and agentSj and witness fees, as are necessary for the efficient execu- tion of the functions vested in the board by this title and as may be provided for by Congress from time to time. All ofithe expenditures of the Labor Board shall be allowed and paid upon the presentation of itemized vouchers therefor approved by the chairman of the Labor Board. " ^^ : , "There is hereby appropriated for the fiscal year ending June 30, 1920, out of any money in the Treasury not otherwise ap- propriated, the sum of $50,000, or so much thereof as may be 9 Ibid., §312. "Act of Feb. 28,. 1920, ch. --, 10 Act of Feb 28, 1920, eh. — , §314, Comp. St. § 10071%j. / ' §313, Oomp. St. §10071%iii. . '' ^ ' § 77g] BOAKD OF MEDIATION AND CONCILIATION 517 n'8feessa4'J',''t6'be expended by the tabor Board, for defraying the expenses of 'the maintenance and establishment of the board, iiibluding the payment of salaries as provided in this title." ^^ ''•I'he'pciwifersand duties of th6 Board' of Mediation and Con- ciliation: ■ treated by the Act approved July 15, 1913, shall not extend tb any' dispute 'which may be recieived for hearing and decision byany iAdjustment Board or the Labor Board." ^' ' § 77|f. Jurisdiction of the United States Board of Mediation aiid Conciliation. The United States Board of Mediation and Goneili&tioh! is thus composed, '"There shall be a Commissioner of Mediation arid' Conciliation, who shall be appointed by the President, by arid with the advice and consent of the Senate, arid whbse'salaiy "shall 'be ■$7,500 per 'annum, who shall hold his bfftee for" aJ term of seiven years and until a successor qualifies, and who shallTje removable by the President only for misconduct iri'dffifc'e:'' The President shall also designate not more than two other officials of the- Government who have been appointed by aiid w'ith the advice and consent of 'the Senate" arid the officials thus designated, together with the Commissioner of Mediation arid ^oriciliatlon, shall constitute a board to be known as the tMted''States Boaird of Mediation and' Corieiliatiori: " ''''Therfe shall be 'an Assistarit Commissioner of Mediation and ■Coriciliation wlio shall be appointed by the President, by and Wi'fh'the advice of the Senate, and whose salary shall be $5,000 per annum. In thfe abserice of the Commissioner of Mediation arid Conciliation, or wheri that office shall become vacant, the assist- ant comriiissiorier shall' exercise the functions and perform the dtities'of that office. Under the direction of the Commissioner of llediatibri arid' Conciiliation, the assistant commissioner shall assist m the work of mediation and conciliation and when acting alorie in any case !he shall have the right to take acknowledg- ments, .receive agreements of arbitration, and cause tlie notices to be ^efved upon thje arbitrators chosen by the respective parties to the 'controversy, as.prov'ided for in section five of this Act." ^ '' "(1; 'the provisions of this act sliall apply to any common '''l2Adt"^f Feb. ^8, '1925; ch. —:''"' § 77g. 1 Act of July 15,' 1913, § 315, Comp. St. § 10071%jj. eh. 6, S 11, 38 St. at L. 108, Comp. 13 Act of Feb. 28, 1920, eh. — , St. § 867'6. '' § 3ie, Comp. St. § 10071%jjj. ^^8 ORIGINAL JURISDICTION , ■ [§ 77g ca^riei^ or carriers, and their officers, agents, and employees, except masters of vessels and seamen, as defined in section forty- six hundred and twelve. Revised Statutes of the United States, ej^gag'^edin the transportation of passengers or prope]::ty wholly by railroad, or partly by railroad and partly by water, for continuous carriage or shipment, from one State or Territory of the United ■ States or the District of Columbia to any other State or Territory of the United States or the District of Colum- bia, or ,from any place in the United States to an adjacent for- eign country, or from any place in the United States through a foreign country to any place in the United States. ''(2) The term 'railroad' as used in this Act shall include all bridges and ferries used or operated in connection with any ra,ilroad, and also all the road in use by any corporation oper- ating a railroad, whether owned or operated under a contract, agreement, or lease; and the terms 'transportation' shall include all instrumentalities of shipment or carriage. " (3) The term 'employees' as used in this Act shall include all persons actually engaged in any capacity in , train opera- tion or train service of any description and notwithstanding that the ears upon or in which they are employed may be held and operated by^ the carrier under lease or other coiltract; Pro- vided, however. That this Act shall be held to apply to employees of street railroads and shall apply only to employees engaged in railroad train service. In every such case the carrier shall he responsible for the acts and defaults of such employees in the same manner and to the same extent as if said cars were owned by it and said employees directly employed by it, and any pro- iifisions to the contrary of any such lease or other contract shall be binding only as between the parties thereto and shall not a,ffect the obligations qf said carrier either to the public or to the private parties concerned. i " (4) A common carrier subject to the provisions of this Act is hereinafter referred to as an 'employer' and the employees of one or more of such carriers are hereinafter referred to as ' employees. ' " * ','(1) Whenever a controversy concerning wages, hours, of 2 July 15, 1913, oh. 6, § 1, 38 St. at L. 103, Comp. St. § 8666. § 77g] BOARD OP MEDIATION AND CONeiLIATION SIS', labor, or conditions of employment shall arise between an em- ployer or employers subject to this Act interrupting or threaten- ing to interrupt the business of said employer or employers to the serious detriment of the public interest, either party to such controversy may apply to the Board of Mediation and Con- ciliation created by this Act and invoke services for the purpose of bringing about an amicable adjustment of the: controversy;; and upon the request of either party the said board shall with, all practicable expedition put itself in communication with the parties to such controversy and shall use its best efforts, by mediation and conciliation, to bring them to an agreement; and if such efforts to bring about an amicable adjustment through mediation and conciliation shall be unsuccessful, the said board shall at once endeavor to induce the parties to submit their controversy to arbitration in accordance with the provisions of this Act. ' "(2) In any case in which an interruption of traffic is im- minent and fraught with serious detriment to the public in- terest, the Board of Mediation and Conciliation may, if in its judgment such action seem desirable, proffer its services^ to the respective parties to the controversy. " (3) In any case in which a controversy arises over the meain- ing or the application of any agreement reached through media- tion under the provisions of this Act either party to the' said ^ agreement may apply to the Board of Mediation and Concilia^ tion for an expression of opinion from such board as to the meaning or application of such agreement and the said board shall upon receipt of such request give its opinion as soon as may be practicable " ' . "Whenever a controversy shall arise between an employer or employers subject to this Act, which can not be settled through mediation and conciliation in the manner provided in the pre- ceding section, such controversy may be submitted to the arbi- tration of a board of six, or, if the parties to the controversy prefer so to stipulate, to a board of three persons, which board shall be chosen in the following manner: In the case of a board of three, the employer or employers and the employees, 8 July 15, 1913, ch. 6, § 2, 38 St. !^ at L. 104, Comp. St. § 8667. 520 ORIGINAL JUJIISMGTION [§.;77g^ parties respectively to the agijepment, to .3,rt)itrat,e,,,sha]il eaoji name one arbitrator; and the two arbitrators tliuS|Ph.pse)i..^lia,Il select the third arbitrator; j but in theevent.of their ,jfa,ilu,i^e .rt9| name the third arbitrator within five days after their fir^tiaeet- ing, such/ third arbitrator shall ibfe named by jthe. ^piard p^. ,Mp,4i-, ation and Conciliation. In the case of a board lof i six, the.gWT ployer or employers and employees, parties respectively to, the agreement to arbitrate, shall each.! name two, arbiteiatpi;s, g.n.fl the four arbitrators thus chosen .shall, by a majority vote, seieet the remaining two arbitirators-: but. in ,|;he, Qyent:o|. their, failure to name the two arbitrators, wil^in the, fifteesj^,. days, af,t^i; their first meeting the said two arbitrators, or ,as,niany crf,t}iein, ap have not been named, shall be named by, the. Boapd Pjt, Me(ii,a.- tion and, Conciliation. ,: , ,, ', > ', , , • ;|iji "In the event that the employees engaged in afl.y given 9931.- troversy are not members of a labor organization, such enj-j ployees may select a committee whi0h; shall have , ith^ \ right- to name the arbitrator, or the arbitrators, who are tOfbe, nam^clr'Piy; the employees as provided above in this ,sgction.," * , -■ (.,,,, "The agreement to arbitrate: ,, ,. ,,,^. "First. Shall be in writing; ,. , ., , ., ,,,;,,„).<.,, ' ' Second, Shall stipulate that the arbitrati/m is had jinder the provisions of this Act^; , i i > < ,p "Third. Shall state whether the .board of ..arbitration ,i^i,|;q consist of three or six members ; . .,,,;; , ;, .,,;.., "Fourth. Shall be signed by duly accredited , repr,eseiitativies of the employer or employers and of the employees; . ,;•,,,(■, "Fifth. Shall state ispeeifieally the, question to fee suhmitt,§4 to the said board for decision ; li.,,: "Sixth. Shall stipulate that a majority of said board '.shall be competent to make a valid and /binding award; , ■ .. "Seventh. Shall fix a period' from the date of .the appoint- ment of the arbitrator or arbitrators necessairyto complete i the board as provided for in the' agreement, within 1 which ,the said board shall commence its hearings ; : 'i •■,-. " Eighth. Shall fix a period from the beginning of the hear- ings within which the said board' shall make and file its. awaisdi 4 July 15, 1913, eh. 6, §3, 38 St. ' ' . '. ' : ' 1 15 at L. 104, Comp. St. § 8668. • , .j §'t7g] BOARD OF iVtEDIATIOlSr AND CONCILIATION 521 T*ro'vi(^feu, Ttlat this period shall be thirty days unless a dif- fei'^iit period be agi-eed to; '..:■■ "'"Ninth.' Shall' '^provide for 'the 'date from which the award shall teome effective and shall' fli the period during which this skid' siward shall continue in force ; : ' ' ' " Tfeiith. Shall provide' that the respective parties to the award will ekch faithfully fexeciite' th6 same; "Eleventh. Shall provide that the award and the paper.*: and ^'rbieefeditigs'; including the testimony relatdlig thereto^ eerti- ■fiM' 'iihder the hands of the' arbitrators and which shall havp thfe' force and effect of a "bill of exceptions, shall be filed in the clerk's bfflce of the District' Court of the United States for thp district wherein the! controversy arises or the arbitration i» entered into, and" ^all' be final and conclusive upon the partie's tb' the 'agreement uiiltiss set aside for error of law apparent on the record; ■ ' > ' '"""Twelfth.' May also Jj'foyide that any difference arising as to the ineanirig' or the application of the provisions of an award 'mMe"l)y a board of arbitration shall be referred back to the same board or to a sub-committee of such board for a ruling, Which ruling shall have 'the same force and effect as the original aVkrdr a:nd if any member of the original board is unable or unWilling to serve another arbitrator shall be named in the same ihtarineir as such: original member was named." ^ , , .. '. ' ! ' f B'oi' the • purpctees i of i this Act the arbitrators herein provid,ed ifoi^,) or.j^ither of 'them, shall .have power to administer paths ,a^,d affirm&tiions, sign subpcenas,, require the attendance and testi- mony of .witnesses, and ,thp, produc;tion of such books, papers, Ti3ontr,acts, agreements, and , documents material to a just deter- min^tiqn of the. .maljters. under ^investigation as may ,be ordered by the.fio,urt; and may jnyok^j the, aid of the United States courts to compel witnesses to atj;end and testify and to produce suet ,jb,opkSsj| R^-P^J^j contracts, agreeipients, and dpcuments to the same .extent £^nd, under ,^he same conditions and penalties as is pro- yidecj fpjff in the Act :1;o rjegulate commerce approved February rf (»\irth, eighteen hundred and. , eighty-seven and the amendments s1^erqtqv''« ;, •;., , ' ; \, 5 July iSj igiSj eh^ 6, §4, SS St. , sjuly 15, 1913, eh^e, « 5, 38 St. a't'L."l64; Coi*^.' Si' §'8669. " at L. 104, Coinp. St. §8*70. jS22 obigikal jueisdiction [§ 77g i ,'.' (1)^ Jjvery agreement of arbitration under this Aet shall be acknowledged by the parties thereto before a notary public ■or a clerk of the District of Circuit Court of Appeals of the United States, or, before a member of the Board of Mediation and Conciliation, the members of, which are hereby authorized to itakesu6h, acknowledgment; and when so acknowledged shall be delivered to a member of said board or transmitted to said boBird to be filed in its office. , " (2) When such agreement of arbitration has been filed with the sd,id boa:rd, or one of its members, and when the said board, 'or a member thereof has been furnished the names ol the arbi- trators chosen by, the respective parties to the controversy, th,e board, or a member thereof, Shall cause a notice in writing to be served upon -the said arbitrators notifying them of their appointment, requesting them to meet promptly to name the remaining arbitrator or arbitrators necessary to complete the board, and advising them of the period to complete the board, and; advising them of the period within which, as provided in the ai*r cement of arbitration, they are empowered to name such arbitrator or arbitrators. ii ^'(3) "When the aftitrators selected by the respective parties have agreed upon the remaining arbitrator or arbitrators they shall notify the Board of Mediation and Conciliation; and in the event of their failure to agree upon any or upon all of the necessary arbitrators within the period fixed by this Act they shall, at' the expiration Of such period, notify the Board of Mediation and ' Conciliation of the arbitrators selected, if any, or of their failure to make or to complete such selection. '/ "(4)' If the parties to an arbitration desire tfie reconvening 'of a board, to pass upon any controversy arising over the mean- ing or a,pplieation of an award, they ^all jointly so notify the Board , of Mediation and Conciliation and shall state in such written notice: tlie question or questions to be submitted to such reconvened board. The Board of Mediation and Conciliation shall thereupon promptly communicate with the members of the board of arbitration or a subcommittee of such board appointed for such purpose pursuant to the provisions of the agreement of arbitration, and arrange for the, reconvening of said board or subcommittee^ ,and shall notify the respective parties to the § 77g] BOAko OF MEDIATION AND CONCILIATION 523' controversy of the tiime and place at which the board will meet for hearings upon the matters in controversy. " '' '■ (1) The board of arbitration shall organize and select its own chairman and make all necessary rules for conducting its hearing; but in its award or awards the said board shall confine itself to findings or recommendations as to the questions specifi- cally submitted to it '■ or matters directly ■ bearing thereon. AH testimony before said board shall be given under oath or affirma- tion, and any member of the board of arbitration shall' have the power to administer. oaths or affirmations. It may employ such assistants as may be necessary in carrying on its Work: It shall, whenever practicable be supplied with suitable quarters in any Federal building located at its place of meeting or at any place' where the board may adjourn for its delihbrations. The board of arbitration shall furnish a certified copy of its awards to the res|pective parties to the controversy and shall transmit the original, together with the papers and proceedings,' and a transcript of the testimony taken at the hearings, certi- fied under the hands of the arbitrators to the clerk of the Dis- trict Court of the United States for the district wherein the controversy arose or the arbitration is entered'into, to be filed in said clerk's office as provided in paragraph ieleven of section four of this Act. And said board shall also furnish a certified copy of its award, and the papers and prbceedings ihcliiding the testimony relating thereto, to the Board of Mediation ' and Conciliation, to be filed in its office. " (2) The United States Commerce Court, the Interstate Com- merce Coinmission, and the Bureau of Labor Statistics are hereby authorized to turn over to the Board of Mediation and Con- ciliation upon its request any papers and documents hereto-' fore filed with them and bearing upon mediation or arbitration proceedings held under the provisions of the Act approved June first, eighteen hundred and ninety-eight, providing for media- tion and arbitration. " * ., "(1) The award,' being filed in the clerk's office of a dfstfict court of the United States as hereinbefore provided, shall go into practical operation, and judgment shall be entered thereon ae- 7 July 15, 1913, eh. 6, §6, 38 St. 8 July 15, 1913, ch. 6, §7, 38 St. at L. 104, Oomp. St. §8671. at L. 104, Comp. St. §8672. 524: ORIGINAL JURISDICTION i,i,. LSJTlt cordingly ati the expiration of ten. days from gueb .filing, .unless, within such ten days either party shall .file exceptions itberetp; for matter of law apparent upon the record, in which case said award shaU go into practical operation, and . judgment be enr tered accordingly, when such' exceptions shall have been finallyi disposed of either by said district court or on appeal therefrom. "(2), At the expiration of. ten days from, the decision, of the District Court upon exceptions taken to said award as afore- said judgment shall be entered in accordance, with said decision, unless during said ten days either party shall appeal therefrom to the Circuit. Court of Appeals. ,,In such case only;Such por-^ tion of , the record shall be transmitted to the Appellate; Cpui?t as is necessary to the proper understanding and consilieratioii of the questions of law presented by said exceptions and to be decided. . i it , . ■; ,w i ';i(3) The determination of said. Circuit Court of Appeals, upon said questions shall be j final, andy being certifiedrby the^ clerk thereof to said District Court, juflgiaenfc pursuant, thereto shall thereupon be entered by said District- Court. . "(4) If exceptions to an award- are finally sustained, judg- ment shall be entered setting , asidei the award.in .wholp' or.dn part; but, in such case the parties' may agree upon a. judgment to be entered disposing of the subject matter of the controversy, which judgment when entered shall, have the same force and effect as judgment entered upon an award, ii ... "(5) Nothing in this Act contained : shall be construed , to. require an employee to render personal service without' his eon- sent, and no injunction or other legal, process shall be issued which shall compel, the performance by any, employee, against his will of a contract for personal labor or service. " ® . . , ; "Each member of the board of arbitration created, under the provisions, of this Act shall receive s\iph compen^tion as may be fixed by the Board of Mediation and Coppiljation, together, with his traveling and other necessary expenses. " ^^ §77h. Jurisdiction and practice of Federal Trade Commis- sion. The Act of September 26th, ,19J4. provi(Jes: .: "That,.a commission is hereby created and esta,blished, to, beknpwn as.JHe 9 July 15, 191,3, ch. 6, §8, 38 St. 10 July, 15, 1913, eh, 6, §9, 38 St. at L. 104, Comp. St. §8673. at L. 104, Comp. St. §8675. \ ,,; §;77h3 FEDERAL TRADE COMMISSION 525; Federal Trade Commission :( hereinafter referred to as the com- mission), which shall, he composed of five commissioners, who shall be appointed by the President, by and with the advice and consent of the Senate. Not more than three pf the commissioners shall be members of the same political party. The first commisr sioners appointed shall continue in office for terms of three, four, five, six, and seven years, respectively, from the date of the taking effect of this Act, the term of each, to be designateidibyi the President, but their successors shall be appoiuted for terms of 'seven years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired/ term of the commis- sioner whom he shall succeed. The commission shall choose a chairman from its own membership. No commissioner shall engage in any other business, vocation, or employment. Any commissioner may be removed; by the President for inefficiency, neglect of duty, or malfeasance in office. A vacancy in the com- mission shall not impair the right of the remaining commis- sioners to exercise all' the powers of the commission. ''The commission shall have an official seal, which shall be judicially noticed. !'SeC;. 2. That each commissioner shall receive a salary of $10^000 1 a year, payable in the same manner as the salaries of the judges of; the courts of the United States. The commission shall appoint a secretary, who shall receive a salary of $5,000 a year, payable in like manner, and it shall have authority to employ and fix the compensation of such attorneys, special ex- perts, examiners, clerks, -and other employees as it may from time to time find necessary for the proper performance of, its duties and as may be from time to time apipropriated for by- Congress. ''With the exception of the secretary, a clerk to each com- missioner, the attorneys, and such special experts and examiners as the commission may from time to time find necessary for the conduct of its work, all employees of the commission shall be a part of the classified civil service, and shall enter the service under such rules and regulations as may be prescribed by the commission and by the Civil Service Commission. "All of the expenses of the commission, including all necessary expenses for transportation incurred by the commissioners or by their employees under their orders, in making any investigation, 526' ORIGINAIl JURISDICTION [§ 77h or upon official business in any other places than in the city of Washington, shall be allowed and paid on the presentation of iteihized vouchers therefor approved by the commission. "Untir otherwise' provided by law, the commission may rent suitable offices for its use. ''The Auditor for the State and Other Departments shall reCeiVe and examine all accounts of expenditures of the com- mission. "Sec; 3. That upon the organization of the commission and election of its chairman, the Bureau' of Corporations', and the offices of Commissioner and Deputy Commissioner of. Corpora- tion's shall' cease to exist ; and all pending investigations and prodeedings of the Bureau of Corporations shall be continued by the commission. , ' "All clerks aind employees of the said bureau shall be trans- ferred to and' become clerks hud employees of the commission at their present grades and salaries. All records, papers, and property of the said bureau shall become records, papers, and property of the commission, and all unexpended funds and ap- propriations for the use and maintenance of the said bureau, including any allotment already made to it by the Secretary of Commerce from the contingent appropriation for the Depart- ment of Commerce for the fiscal year nineteen hundred and fifteen, or from the departmental printing fund for the fiscal yeb,r. nineteen hundred and fifteen, shall become funds and appiropriations available to be expended by the commission in the exercise of the power's, authority, and duties conferred on it by' this Act. ' ■ "The principar office Of the commission shall be in the city of Washington, but it may meet and exercise all its powers at any other place. The commission may, by one or more of its members, or by such examiners as it may designate, prosecute any inquiry necessary to its duties in- any part of the IJnited States. ' - ! . ' "Sec. 4. That the words defined in this section shall have the following meaning when found in this Act, to wit: " 'Commerce' means commerce among the several States or with -foreign nations, or in any Territory of the United States or in the District of Columbia,' or between any such' Territory and another, or between any such Territory and any State! or § 771l] FEDERAL TEADB COMMISSION 527 foreign nation, or between ,the Pistrict of Columbia and apy State or Territory or foreign, nation. , " ' Corporation ' means any company or association incorpor- ated or unincorporated, which is organized tp ca;rryr on busiriess for pr9^t and ha,s shai^es of .capital or capital, §tock, and, any company or association, incorporated or unincorporated,, without shares of capital or capital stocky except partnerships, which is organized to, carry on business for its own profit ,or that of its membepsi , . . ■ ',' 'Documentary eyidenee' means all documents, papers, and correspondence in existence ,a|; and after the passage of this Act. i" 'Acts to .regulate commerce' means the Act entitled 'An Act tpj regpdalje commerce, ' approved February fourteenth, eightejen hundred and eighty-seven, and all Acts amendatory thereof and supplementary thereto. ; . . ; " 'Antitrust, acts' means the Act, entitled 'An Act to,, protect trade and comflierce against jjnla\iff ul i^esitraints and monopolies, ' approved July second, eighteen hundred and ninety ; ■ also the sections seventy-three to seventy-seven, iricliisive,. of an , Act entitled, 'An Act to reduce taxation, to provide revenue^ for Jhe (jqyei'nment, and. for other purposes,' approved Augnst, twenty- seventh, eighteen hundr.ed and ninety-fqur; and also the Ajct ^nti,tled 'An Act to amend sections seventy-three and seventyTsix of the Act of August twenty-seventh, eighteen hundred, and ninety-four, entitled 'An Aqt, t,0; reduce taxation, to provide revenue for. the Government, and for other: purposes, '■ ap- proved February twelfth, nineteen hundrcji and th,irteen. "Sec. 5. , That unfair method^; of competition in commerce are hereby declared unlawfiiL, , :,.i,, "The, commission is hereby empowered .and i. directed , to pi:e- vent persons, partnerships, or corporations, except bianks, and common carriers subject to the Acts to regulate commerce,, from using unfair methods^ of competition in eommerce. "Whenever the commissioni shall have reason to believe th,at any .such, person, partnership, : or corporation bas . been or , is using any unfair method of coftipetition in commerce, and if it shall appear to the commission that a proceeding by it in respect ther.^qf would be to the/interest of the public, it shall issue and serve upon suqh person, partnership, or corppration. a co.m plaint stating its charges in that respect, and; containing a notice 6f a 528 ORIGINAL JURISDICTION [§' *7*7h Hearing upon a day and at a. place therein fixed at least thirty- days after the service of said complaint. The person, partner- ship, or corporation so complained of shall have the right to appear at the place and time so fixed and show cause why an order should not be entered by the commission requiring such person, partnership, or corporation to cease and desist from the violation of the law so charged in said complaint. Any person, partnership, or corporation may make application, and upon good cause shown may be allowed by the commission, to intervene and appear in said proceeding by counsel or in person. The testimony in any such proceeding shall be reduced to writing and filed in the office of the commission. If upon such hearing the commission shall be of the opinion that the method of competi; tion in question is prohibited by this Act, it shall make a report in writing in which it shall state its findings as to the facts, and shall ssue and cause to be served on such person, partnership, or corporation an order requiring such person, partnership, or corporation to cease and desist from using such method of compe- tition. Until a transcript of the record in such hearing shall have been filed in a circuit court of appeals of the United' States, as hereinafter provided,' the commission may' at any tiiiie, upoii such notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any report or aiiy order made or issued by it under this section. "If such person, partnership, or corporation fails or neglects to obey such order of the commission while the same is in effect, the commission may apply to the circuit court of appeals of the United States, within any circuit where the method of competi- tion in question was used or where such person, pa!rtnershij)j ' or corporation resides or carries on business, for the enforceinent of its order, and shall certify and file with its application a transcript of the entire record in the proceeding, ^including all the testimony taken and the report and order of the commission. Upon such filing of the application! and transcript the court shall cause notice thereof to be served upon such person, partnership; or corporation and thereupon shall have jurisdiction of the proceeding and of the question determined therein, and shelll have power to make and enter upon the pleadings, testim6ny, and proceedings set forth in such transcript a decree affirming, modifying, or setting aside the order of the commission. The § 77h] fedSeal trade commission 52i9 findings of thfe'eoriiinisyioii as' to the ikcts, if supported by testi- mony/ sh'all be 'eo^(Jlugi'ye,''''' "■" '"' ' ''"'"'* -""■fi eitber party shall apply to iHe cOiirt for 'leave' Wad'd'uee additional evideriee, and shall show'to the satisfaction' 'of "the coiirt'lihat such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the commission, tie court may order su'en adiiitionar evidence to be taken before the commission aiid to be adduc'eii upon the' hearing in such maiiiier arid^upoii' su'eH terms and conditions as ib the court may seem pifciper. The cdmi mission iii'ay modify its findings as to the'Iacts, or itialife' new nridihgs, by reason of the additional evidence so takeii, and li sliall file such modified'' br' new 'findings, which, if supported by testimony/ stall be conclusive, and its recommendation, if aiiy; for th'e'inodification Or 'setting aside of its original order,. Wl'tt the retui;n of such "additiohar evidence. The judgmen't, and decree of the' 'ebii'rt shall be' final, except that the saMesliail 'fee subject to review by the Supreme Court up 6n certiorari as' p'roviddfi' in sectibii 'two hundred 'and forty of the Jiidicial Code.**"' ' ''' ' "Any party i:'equired by such order of 'lh6 cbmniiSsion to cease and desist from lising k'uch method of competitioii may bbiaiin a reviejv of su'cli' order in said circuit' court of appeals by 'Sling in the cburfa written petition praying tMt the prdfer of the commission bfe' set aside. A copy 'df such petition sliall iie fortli- witii' served u^in the cdmmissiori; arid tliereujicin' the commission fortliivith shall certify and file in the court "'a transcript of thfe record as'li'ereinbef ore provided. tTpon ' the' 'filing of ' the tran- script the court shall have the same jurisdiction to aferin, set aside)' or' 'modify the order of the commission as in the ease of an application by tlie' commission foi" the enforcement of'itk' (S^dpr,' a;nd the'flridings df the compiission as to 'the facts,' if siipp'orte'A' by testimony, shall in like mlariner be conclusive. ' '"'The jtii-isdictidn or the circuit court of appeals of 'the United States. to enforce, set aside, oi- modify drders of the commission shall be' exclusive.* J 77h. I'See infra, §689. the Comiriission has i;o.' pbwqr to in- 8 It has 'b^en'heia b^-the Supreme quire into tiiat, part'of the' 'business Court of the bistriot of "Columbia of a coal mining company wHet is per B'ai]^y, J. ' in Maynard, Coal (Co. purely intrastate. | ' vi'^'li'eliefar' Trade Corrimission that "The mere fact," 'said Justice Fed. Prac. Vol. 1—34 530 ORIGINAL JURISDICTION |§ 7;7h ' ' Such proceedings in the circuit court of appeals shall be given precedence over other cases pending therein, and shall be in every way expedited. No order of the commission or judg- ment of the court to enforce the same shall in any wise relieve or absolve any person, partnership, or corporation from any liability under the antitrust acts. "Complaints, ordjers, and other processes of the commission under this section may be served by anyonejduly authorized by the commission, either (a) by delivering a copy thereof to the person to be served, or to a member of the partnership to be served, or to the president, secretary, or other executive officer or a director of the corporation to be served; or (b) by leaving a copy thereof at the principal office or place pf business of such person, partnership, or corporation; or (c) by registering and mailing a copy thereof addressed to such person, partnership, or corporation at his or its principal office or place of business. The verified return by the person so serving said complaint, order, or other process setting forth the manner of said service shall be proof of the same, and the return post-office receipt for said complaint, order, or other process registered and mailed as aforesaid shall be proof pf the service of the same. "Sec. 6, That the cpmmission shall alsp have power — "(a) To gather and compile information concerning, 'and to investigate from time to time the organization, business, conduct, practices, and management of any corporation engaged in com- merce, excepting banks and common carriers subject to the Act to, regulate, commerce, and its relation to other corporations and to individuals, associations, and partnerships.^ "(b) To require, by general or special orders, corporations engaged in commerce, excepting banks, and common carriers subject to the Act to regulate commerce, or any class of them, or any of them, respectively, to file with the commission in such form as the commission may prescribe annual or special, or both annual and special, reports or answers in writing to specific questions, furnishing to the commission such information as it Bailey, "that a corporation engaged torial powers of Congress over cor- in mining ships a portion of its porations' interstate commerce." N. produets to other States does not Y. Sun, April 20, 1920. subject its business of production or 8 According to the newspapers, its intrastate commerce to the visi- on AprU 1,9, 1930, -in Majnard § 77h] FEDERAL TRADE COMMISSION 531 may require as to the organization, business; conducl^,' practices, management, and relation to other corporations, partnerships,' and individuals of the respective corporatipns filing such reports or answers in writing. Such reports and answers shall be made under oath, or otherwise, as the commission may prescribe, and shall be filed with the commission within such reasonable period as the commission may prescribe, unless additional time be granted in any case by the commission. "(c) Whenever a final decree has been entered' against any defendant corporation in any suit brought by the United States to prevent and restrain any violation of the antitrust Acts, to make investigation, upon its own initiative, of the manner in which the deqree has been or is being carried out, and upon the application of the Attorney General it shall be its duty to make such investigation. It shall transmit to the Attorney General a report embodying its findings and recommendations as a result of any such investigation, and the report shall be made public in the discretion of the commission. "(d) Upon the direction of the President or either House of Congress to investigate and report the facts relating to any alleged violations of the antitrust Acts by any corporation. "(e) Upon the application of the Attorney General to in- vestigate and make recommendations for the readjustment of the business of any corporation alleged to be violating the antitrust Acts in order that the corporation may thereafter maintain its' organization, management, and conduct of business in accord- ance with law. "(f) To make public from time to time such portions of the information obtained bj'^ it hereunder, except trade secrets and names of customers, as it shall deem expedient in the public interest ; and to make annual and special reports to the Congress and to submit therewith recommendations for additional legisla- tion ; and to provide for the publication of its reports and deci- sions in such form and manner as may be best adapted for public information and use. Coal Co. V. Federal Trade Commis- vestigation of the Commission into sion an injunction was granted by the intrastate business of a coal min- the Supreme Court of the District of ing company. N. Y. Sun, April 20, Columbia per Bailey, J. against an In- 1920. 532 ORIGINAL JURISDICTION [§ 77h " (&) From time to time to classify corporations and to make rul,es: and regulations for the purpose, of carrying out the pro- visions of this Act. . : , ,, ;','>(h). To investigate, from time to time, trade conditions in and with foreign countries where associations, combinations j or practiees: of manufacturers, merchants,, or traders, or other con^ ditions,:may affect the foreign tirade of the United States, and to report to Congress thereon,, with such i recommendations, as it deems advisable.; . ; » . .''',SbC. .7, Thatin any suit in equity brought by; or under the direction of < the Attorney General as provided in the antitrust) Acts,-, the court may, upon the , conclusion of the testimony therein, if; it, shall be then of opinion that the cqmplainant is entitled to relief, refer said suit to the commission, as a master iT>. chancery, to ascertain and report an appropriate form of decree therein. The commission shall proceed upon such notice to, the parties and under such rules of; procedure as the court may prescribe, and upon the coming in of such report such exceptions may be 1 filed and such proceedings had in relation thereto as upon the report of a master in other equity causes, but the court may adopt or reject such report, in whole or in part; and enter such decree as ; the natuj^e of the case may in its judgment re- quire., .''Ser. 8,,, That the several departments, and bureaus of the Grovernment when directed by the President shall, furnish ,the commission, upon, its request, all records, papers, and, , inf qrn^i; tion in their possession relating to any corporation subject tp any of, the provisions .of this, Act, and, shall detail from,, time to time S|Uch officials and employees to the commission as, he may direct.; ' ^,Sec. 9. That for the purposes of this Act the commission, or its duly authorized agent or ageuts, shall at all reasonable timps have access to, for the purpose of examination, and the right ito copy any documentary evi(ience of any corporation being in- vestigated or proceeded against ; and the commission shall have pbwSr to require by subpoena the attendance and testimony of witnesses and the production of all such documentary evidence relating to any matter under investigation. Apy member of the commission inaj sign subpoenas, and members an,d examiners of the commission may administer oaths and' affirmations, examine witnesses, and receive evidence. §|77h] FEDBI?AL fBAElB ,CO^MISSipN 539 ,,,;,'S]i;gtl,^j;t?i]Wi*fteP,pf. witnesses,, and the, prodaction, of such (^pc.u,went^ry .evidence, may be, required from aiiy place in, i;he l/fliite^, States,, at any,4esignated place of hearing. Aiid m,case qf.5{J|sp,be4ii^RC,e .to,jf,^ subpoena , th,e ,c,ommissioin may invoke, the aid iqI any court of ,t^e, United States in requiring the attendance q,nd testimony pf .^itne^ses ;an(i the p,rp(^iie,tipii pf documentary, ejipipj^ce..,, ,,,,,, ,,, ,,, ,„ . , , , j;' Any ,pf., the. .district cojirts of the,Uj3Lit^d States within, the, jurisdiction of,v(f]j.ieh,,such inquiry is, carried on may, in case pf coptumacy pr|.jfgfysal to obey, a subpoena, issued to any eorpora- ^i9iHiOr,.9the^, person, issue, an order requiring such corporation or other person to appear before, the commission, or to produce ^pcupientary evidence if, so o;^de/refj,„or,,to give evidence touching tl^q matter in, que;stion ; and any , failure tp obey, such order of the .cpu.rt,i)iay be .punished by such court as, a contempt therjepf., ;! "Upon. the, iappli^iatipn of.ll^e Attorney Genei^al of the United StfttsSj.at the, requesj;,,pfj the commission, the -district courts of t,he|Ufl,itQd ^tates shall,, Jiave. jurisdiction to issue writs of man- damus, comma^n.ding anypfirson or corporation to comply, with the provisipiis,p^||thi^ ^ct or any order of thecommissipn ma,dei in, pursuance ;thpi;^of, „,"Th9 com,missiofli may order, testimony to be taJjen by deposi- tion, jin,. any proceeding or investigation pending under this Act at^any stage. of suph, proceeding or investigation.. Such, deposi- tions may,b,e, takep l?ef ore any person designated by the commis- sion . anid, . haying power to administer oaths. Such testimony s^all;,b,e..i;^4l?fjpd,to writing by ,the person taking the depositipp, or un4pr ^is direction, .and, shall then be subscribed by the deponent, ,, Any person may be compelled to appear and dppose an!d.,to Bro.duce dpcumentary evidence in the same manner as ■v^jjljnesse^ m3,y,.]:)e cpmpell^d to appear an,d testify and prpduce dpeu^mentaryi evidence before the commission as hereinbefore provided,,,,,,,, , , ,, , ,,, , ,.: ,: • . " ^iti^e^se^, 3ummoi;i,e(^ Jbef pre the .commission shall be paid the same ^f^es, and mileage that are paid witnesses in the courts of ti^^„T7ni^?d, States, and, witnesses whose depositions are taken and thje,. persons taking thp. same , sh^U . severally be entitled to the sftfi)ie.fpe^ as are pai(J for,,lfke services in tlie courts of the Uni1;ed Spates.,, , ,,,, .,,_,), ,,, "No person shall be excused ^fijom attending an^,, testifying 534 ORIGINAL JURISDICTION [§ 77h or from producing doeumentary evidence before the commission or in obedience to the subpoena of the commission on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to criminate him or subject him to a penalty or forfeiture. But no natural person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify, or produce evidence, documentary or otherwise, before the commission in obedience to a subpoena issued by it: Provided, That no natural pei*son so testifying shall' be exempt from prosecutioH and punishment for perjury committed in so testifying. "Sec. 10. That any person who shall neglect or refuse to attend and testify, or to answer ahy lawful inquiry, or to pro- duce doeumentary evidence, if in his power to do so, in obedience to the subpoena or lawful requirement of the commission, shall be guilty of an offense and upoh conviction thereof by a court of competent jurisdiction shall be punished by a fine of not less than $1,000 nor more than $5,000, or by imprisonment for not more than one year, or by both such fine and imprisonment. "Any person who shall willfully make, or cause to be made, any falsd entry or'stateihent of fact in any report required to be made under this Act, or who shall willfully make, or cause to be niade, any false entry in any account, record, or memorandum kept by any corporation subject to this Act, or who shall will- fully neglect or fail to make, or to cause to be made, full, true, and correct entries in such accounts, records, or memoranda of all facts and transactions appertaining to the business of such corporation, or who shall willfully remove out of the jurisdiction of the United States, or willfully mutilate, alter, or by any x)ther means falsify any documentary evidence of such corporation, or who shall willfully refuse to submit to the commission or to any of its authorized agents, for the purpose of inspection and taking copies, any documentary evidence of such corporation in his possession or within his control, shall be deemed guilty of an offense against the United States, and shall be subject', upon conviction in any court of the United States of competent juris- diction, to a fine of not less than $1,000 nor more than $5,000, or to imprisonment for a term of not more than three years, or to both such fine and imprisonment. I 77h] FEDERAL TRADE COMMISSION 535 "If any corporation required by this Act to file any annual or special report shall fail so to do within the time fixed by the commission for filing the same, Etnd such failure shall continue for thirty days after notice of such default, the corporation shall forfeit to the United States the sum pf $100 for eatih and every day of the ;Continuance of such failure, which forfeiture shall be payable: into the Treasury of the United States, and shall be recoverable in a civil suit in the name of the United States brought in the district where the corporation has its principal office or in any district in which it shall do business. It shall be the duty of the various district attorneys, under the direction of the Attorney General of the United States, to prosecute for thfe reco^very of forfeitures. The costs and expenses of such prosecu- tion shall be paid out of the appropriation for the expenses of the courts of the United States, "Any officer or employee of the commission who shall make public any information obtained by the commission without its authority, unless directed by a court, shall be deemed guilty ipf a misdemeanor, and, upon conviction thereof, shall be punished by a fine not exceeding $5,000, or by imprisonment not exceeding one year, or by fine and imprisonment, in the discretion of the court. "Sec. 11. Nothing contained in this Act shall be construed toi prevent or interfere with the enforcement "of the provisions of the antitrust Acts or the Acts to regulate commerce, nor shall anything contained in the Act be construed to alter, modify, or repeal the said antitrust Acts or the Acts to regulate commerce or any part or parts thereof.''* The practice before the commission is regulated by the follow- ing rules adopted June 17th, 1915: "I. Sessions. :,,,,,,, The principal office of the Commission at "Washington, D. C, is open each business day from 9 a. m. to 4:30 p. m. The Com- mission may meet and exercise all its powers at any other 4 Act of Sept. 26, 1914, eh. 331, 311-38 St. et. L. act 717 Comp. St. §§.8836a-8836%e. , , 536 ORIGINAL JURISDICTION [§ 77h place, and may, by one or more of its members, or "by such examiners, as it may d^ignate, prosecute any inquiry necessary to its^ duties in any part of the United States. Sessions of the Commission for - hearing contested proe.eed- ings will be held as ordered by the Commission. Sessions of the Commission for the purpose of making ordei's and tor, the, transa,ction of other business, unless gtlierwise ordered, will be held, at the o£6,'ce of the Commission at ^Wasfi; ington, D. C, on each business day at 10:3.0 a. m. Three inem- Ipers of the Commission shall constitute a qu'cirum foi; the transaction of business. All , orders of the Commission shall be signed by the Sec retary. ' , II. Complaints. ."i Any person, partnership, corporation, or association, , may apply to the Commission to institute a; proceeding in, respect to any violation of law over which the, Commission., l^?is,' juris.- dietion. ..-i . ;, , , , ,:, ^ .^,| i Siieh : application shall be in writing, signed by oir in b,efaj;a,],f of the applicant, and shall contain a short and simple ^tutp: ment of the facts constituting the alleged, violation of law, and the name and address of the applicant and of ,the, party com^- plai-nedfof. ^ • , ,, , . ,■ . ,- .\< t,., The ; Commission ; shall investigatfce the matters, eomplaii^^d of. in such, application, and if upon investiga,tion the.;Comnj|§- sion shall have reason to believe that thgrp is a violatijpn \,of law over which the Cpmmi^ioii has jurisdiction, tjie; Conjimis- sion shall issue and serve upon,, the .party complained of, a com- plaint stating its charges and containing a notice of a hearirig upon a day and at a place therein fixed, at least 40 days after the service of said complaint. III. Answers. -■■■'- ,;■';■ if. Within 30 days from the service of the complaint, unless such time be extended by order of the Commission, the defendant shall file with the Commission an answei* to the" complaint. Such answer shall contain a short and simple statenieiil; of 'the facts which constitute the ground of defense. It shall spfe- |j77h] FEDERAL TRADE COMMISSION 537 Y, admit, or deny or explain each of the fae1;s alleged in 1^., pc^mplaint, unless the defendant is withojit knowledge, in i^hjph Qase,,hi€|,,sh^ll so state, such statement operating as a depjalji Ai^swers.in typewriting must be on one side of the pape^:;,ouly, (jn pa,T)er not more ttan 8i/^ inches wide and not more than 11 inches long, and weighing not less than 16 poiindls to the ream,, jEoli,9 base, 17, by 2? inches, with left-hand margin not less than 1^^ inches wide, or they may be printed in 10 01* ' 12 point itype on good unglazed paper 8 inches wide «by 10 V2 inches long, with inside margins not less than 1 inch wide. ,, . I"V;. Service. ' Goimplaints, orders, and. other processes of the Commission may be served by anj^one duly authorized by the Commission^ eithtii- (a) by delivering a copy thereof to the person to be served, or to a ih'ember of the partnership to be served, or' to the pi'esident, secretary, or other executive officer,' or a director, of the corporation or assbeiation to be served; or (6) by leav* ihg a' c6py thereof at tlie principal office or place of business of such 'person, partnership, corporation, or association ; or '(c) biy registering and mailing a copy thereof addressed to such person, ' partuership, corporation, or association at his or its principal office or place of business. The verified return by the person so serving said complaint, order, or other process, setting forth the manner of Said service, shall be proof of the sam6, and the return post-office receipt for said complaint, order, or other process, registered and mailed as aforesaid, shall be proof of the service of the same. V. Intervention. : ' ' Ml' Any person, partnership, corporation, or association desiring to intervene in a contested proceeding shall make application in writing, setting out the grounds on which he or it claims to'be interested. The. Commission. may, by order, peraait inter- vention by counsel or in person to such extent and upon such terms as it shaU deem just. iApplications to intervene must be on one side of the paper only, on paper not more tlian 8% inches wide : and not, more 638 OEI&INAL JURISDICTION [§ 77h than 11 inches long, and weighing not less than 16 pounds to the ream, folio base, 17 by 22 inches, with left-hand margin not less than 1% inches wide, or they may be printed in 10 or 12 point type on good unglazed paper 8 inches wide by lO^/o, inches long, with inside margins not less than 1 inch wide. VI. Continuances and Extensions op Time. Continuances and extensions of time will be granted at the discretion of the Commission. VII. Witnesses and Subpcenas. Witnesses shall be examined orally, except that for good and exceptional cause for departing from the general rule the Com- mission may permit their testimony to be taken by deposition. Subpoenas requiring the attendance of witnesses froip any place in the United States at any designated place of hearing may be issued by any member of the Commisision. Subpoenas for the production of documentary evidence (un- less directed to issue by a Commissioner upon his own motion) will issue only upon application in writing, which must be verified and must specify, as near as may be, the documents desired and the facts to be proved by them. Witnesses summoned before the Commission shall be paid the same fees and mileage that are paid witnesses in the courts of the United States, and witnesses whose depositions are taken, and the persons taking the same, shall severally be entitjled to the same fees as are paid for like services in the coijrts of the United States. VIII. Time for Taking Testimony. Upon the joining of issue in a proceeding by the Commission the examination of witnesses therein shall proceed with all rea.sonable diligence and with the least practicable delay. Not less than five nor more than ten days' notice shall be given by the Commission to counsel or parties of the time and place of examination of witnesses before the Commission, a Commis- sioner, or an Examiner. § 77h] PEDKRAIi TEADE COMMISSION 539 IX. Objections to Evidence. Objections to the evidence before the Commission, a Commis- sioner, or an Examiner shall, in any proceeding, be in short form, stating the grounds of objections relied upon, and no transcript filed shall include argument or debate. X. Motions. A motion in a proceeding by the Commission shall briefly state the nature of the order applied for, and all affidavits, records, and other papers upon which the same is founded, except such as have been previously filed or served in the same proceeding, shall be filed with such motion and plainly referred to therein. XI. Hearings on Investigations. When a matter for investigation is referred to a single Com- missioner for examination or report, such Commissioner may conduct or hold conferences or hearings thereon, either alone or with other Commissioners who may sit with him, and reason- able notice of the time and place of such hearings shall be given to parties in interest and posted. The General Counsel or one of his assistants, or, such other attorney as shall be designated by the Commission, shall attend and conduct such hearings, and such hearings may, in the dis- cretion of the Commissioner holding same, be public. Xll. Depositions in Contested Proceedings. The Commission may order testimony to be taken by deposi- tion in a contested proceeding. Depositions may be taken before any person designated by the Commission and having power to administer oa^hs. Any party desiring to take the deposition of a witness shall make application in writing, setting out the reasons why such deposition should be taken, and stating the time when, the place where, and the name and post-office address of the person before whom it is desired the deposition be taken^ the name and post-office address of the witness, and the; subject matter bio ■ ORIGINAL JURISDICTION [§ 771l or matters eciicerning which the witness is expected to testify. If good cause be shown, the QonM^iission wiljl, make ancj- ^epe upon the parties, or their attorpe^s, an order wherein, the Commission shall name the witness whose deposition is to be taken and specify the time when, the place where, and the per- son before whom tlie witness is to testify, but such time and place, and the person before whom the deposition is to be taken, so specified in the Commission's order, may or may not be the same as those nam^d in said application to the Cpminission/ • The; testimony of , the witness shall be irpdjifted. to, .writing by jthe officer before whom, the deposition is taken, or under hjs direction, after whicb the deposition shall be, subscribed by.t)!? witness and certified; in usual form by the, officer. After „tbp f'eposition has been so certified it shall, together witjia copy thereof made by such officer pr under his direction, be for- warded by such officer under seal in an envelope addressed to the Commission at its office in Washington, D. C. Upon receipt of' the deposition and copy the Commission shall' file i'ti 'the record in said proceeding such deposition tod' for^aitd the copy to the defendant or the defendant's attorney. ■''■■''' ' ■■'■■■ Such ' depositions shall be typewritten on onfe side only of the paper, which shall be not more than 8I/2 inches wide and not more than 11 inches long ' and weighing' not less thatf 16 pounds to the ream, folio base, 17 by 22' incheb, with left-hand margin not less than 1% inches wide. No deposition shall be taken except after at least '6 days' notice to the parties, and where the deposition' is' taken iii'a foreign country such notice shall be at least 15 days. No deposition Shall be taken either before the proceeding is at issue, or, unless under special circumstances and for g:ood cause shown, within 10 days prior to the date of me hearing thereof assigned by the Commission, and where the d!eposition is taken iii a foreign co;untry it shall not be taken after 3b days prior to such date of hearing. / ■ ■.,.■• ■ .■■■■111-' ', ■,•^1 ■ ■ XIJI. DOCTJliteNTART EVIDENCE.' ' ' Where relevant and material matter offered 'in dvid'6nee!' is embraced in a Socumlent containing other matter 'W6t material or relevant and not intended to be put in evidericfej Such' 'dolili- § 77h] FEDERAL TRADE COMMISSION 541 I ment will not be filed, but a copy only of such relevant and material matter shall be filed. XIV. Briefs. Unless otherwise ordered, blriefs may be filed at the close of the testimony in each contested proceeding. The presiding Commissioner or examiner shall fix the time within which [ji-ief^, shall be filed and service thereof shall be' made ■fup,0}i>the adverse ipaijtie^-, ,, i All, briefc must be , filed i with the , ^pcretary and be, accom- panjfid by proof of serviqe upon, the adverse parties. Fifteen copies qf , eaeb brief , shall be furnished for tlie use ,o,f the: Com- mission, viPilessother;vyise,prdejred. , , : . ,.,t 'A t,.,Appli(jati()n f or i e:steiisiQn of time in which. to file any .brief sh^U he, l?y petition in writing, stating, th,e facts upon which .the application .rests, which must be filed with the Conun^^on at l^ast: 5 ,dayS:bqfo]:e the time for filing tlip brieif. , , .,■ ;,,,,: ,, Every jlirief shall. cpntain, in, the, order here;, stated-^, , i.rj. ,,(1) A conci&e abstract, or, statement of the case. , , .,. (2) A brief of the argument, exhibiting a.plear. statement .Pif the points, of if act or laiir to be discussed, with the reference, to the pages o| the record and the authorities relied upon in, sup- port of each point. , ; , ; Every brief of more .than 10 pages shall contain pn its t.qp ,fly(leayei^ a subject index -v^ith page references, the subject in- ■desx to be supplem,ented by a list of all cases referi^^d to,- alpha- betically arranged, together with references to pages where thie .eases are ci^ed., ,[, .Brieifs, ,must be printed in 10 or 12 point jtype on good un- . glazed paper, 8;. inches by 1Q^2 inches, with; inside margins noj; de^s than, 1 .inch wide, and with, double-leaded tps;t and singls- leadpd, citations. , , . iOr,al arguments will be had only as order,ed by the ; Commit sion. ■' XV. Address OP THE CoMMissiolsr. i . All communications to the Commission miist b© addressedsto Fede:^al' Trade Commission, Washington, D. C, unless otherwise specifieally directed. ' CHAPTER II. JURISDICTION IN EQUITY. § 78. Equitable jurisdiction in general. Equity is that sys- tem 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 Eiiglish 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;* those of that, which was administered at first exclusively by ecclesiastics, are in the canon, which was ■itself derived from the greatest monument of the genius of ancient Rome, the civil law.' Since the time of Nottingham, 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,* 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 case$ 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.* The chronicles of the §78. iMitford's Pleadings; Bis- B Kennedy v. St. Paul & Paeiflo pham 's Equity, § 1. , • E. Co., 2 Dill.' 448; "Wallace v. 2 Holmes' Com. Law. Loomis, 97 U. S. 146, 24 L. ed. 895; SLangdell'S Eq. PL, Introduction. Joy v. St. Louis,' 138 TJ; S. 1, 50, 4Selden's Table Talk, Title 34 L. ed. 843, 859; Toledo, A. A. & "Equity." N. M. Ry. Co. v. , Pennsylvania Co., 542 § 78] EQUITABLE JURISDICTION IN GENERAL 543 growth and development of equity abound with names well known to the studeilts, as well of general history as of jurispru- dence. Among them Wolsey, More, Bacon, Clarendon, Somers, and Erskine are the most familiar to the former, while the mem- bers of the profession look back with especial admiration upon the careers of Nottingham, Hardwicke, Eldon, Westbury, 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 assistance, courts of equity would almost always give a suitor complete relief in the matter about which he complained.^ 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,' the la,tter have not felt obliged to relinquish, the jurisdiction which they formerly acquired.* 6ne of the marked characteristics which distinguish equity from the common law, is that, while the latter, 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 pro- cedure being founded upon the theory that the parties to an action owe no obedience to the court ; ® and is consequently re- stricted in its operation when the property Which is the subject of a contention is beyond the reach of its writs; equity acts directly aga'inst 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.^" 19 L.E.A. 395, 5 Inters. Com. Eep. 8 Putnam v. New Albany, 4 Bias. 545, 54 Fed. 746, 751; Wallworth 365. V. Holt,- 4 Mylne & Cr. 619. SLangdell's Eq. PI., §40. 6 1 Fonblanque 's Equity, b. i, ch. 10 Archer v. Preston, 1 Eq. Caa, i, § 3, note (/) ; Motteux v. London Ab. 133, pi. 3, cited and followed Assur. Co., 1 Atk. 545; Tayloe v. in Arglasse v. Muschamp, 1 Vern. Merchants' Fire Ins. Co., 9 How. 75; s. c, 1 Vern. 135; Penn. v. Lord 390, 405, 13 L. ed. 187. Baltimore, 1 Ves. Sr. 444; Maasie v. 7 Moses V. Maeferlan, 2 Burr. Watts, 6 Craneh, 148, 3 L. ed. 181; 1005; Diekerson v. Colgrove, 100 Muller v. Dows, 94 XT. S. 443, 24 L. U. S. 578, 25 L. ed. 618. ed. 207, at pages 449-450. The au- m JURISDICTION IN EQUITY [§79. : § 79. (Seneral survey cff the jurisdiction of courts of equity. T^hfi^ ju^^isdietjpn, of courts, of, equity is,,exgr,cised eitkpv, for the pro,tBe,tion, of rights which the cpmmon law obliged to attend upon the trial; in rare eases to grant a new trial.** To set aside a judgment obtained by accident, mistake, or fraud.''* To set aside an award by arbitrators upon allegations of misconduct not apparent on the face of the award, nor affecting the jurisdiction of the arbitrators.*^ Bank of TJ. S. vl Beverly, 1 How. 134, 151, 11 L. ed. 75, 82. BOAldrieh v. Gooper,, 8 Ves., 394; Trimmer v. Bayne, 9 yes, 209; 2Se,| Metropolitan Railway Receivership, 20i8 TJ. S. 90, 52 L. ed. 403. A bill may be sustained when the defend- ant's land is so encumbered, by dif- ferent liens, that it does not appear probable that it could be sold ad- vantageously without an adjustment of the priority and rights of the several liehholders. HufE v. Bid- well, C. C. A., 151 Fed. 563. Where njunicipal bonds have been issued to, an amount beyond the con- stitutional, limit, a bondholder may sue to obtain a judicial determina- tion as to what part, if any, of the debt 'thus created can be eniorced. Everett v. Independent -School Dis- trict, 109 ffed. 697, 702; Truman v. Inhabitants of Town of Harmony, 198 Fed. 557. ZlFineh V. Finch, 2 Ves. Sr. 491; Moodalay v. Morton, 1 Bro. C. 0., 469; Brown v. Swann, 10 Pet. 497, 500, 9 ,L. ed. 508; Heath v. Erie Ey. Co., 9 Blatchf. 316. , 82 Earl of Suffolk v. Green, 1 Atk. 450; Pearson v. Ward, 1 Cox Eq. 177; Lord Duisley v. Berkeley, 6 Ves. 251; Eiehter v. Union Tr. Co., 115 U. S. 55, 29 L. ed. 345; N. T. & B. C. P. Co. V. N. Y. C. P. Co., 9 Fed. 578. See U. S. E. S., §§ 863- 8i867, and infra, § 345. 23 Moodalay v. Morton, 1 Bro. G. C. 469. li 24Folsom V. Ballard, C. C. A., 70 V Fed. 12; McLaurih v. McLalicWin, C. C. A., 215 Fed. 345. ' 25 Metcalf V. Williams, 104 U. S. 93, 95, 26 L. ed. 665, 666; Coleman V. U. S., 181 Fed. 599. 26 Hartford Fire Ins. Co. v. Bon- ner Mercantile Co., 44 Fed. 151, 156. ,, Nor, ia the absence of a State 'statute authorizing such a proceed- ing, a bill to set aside the probate of a will. Broderick's Will, 21 Wall. 503, 22 L. ed. 599; Ellis v. Davis, 109 U. S. 485, 27 L. ed. 1006; Sim- mons V. Saul, 138 TJ. S. 439, 34 L. ed. 1054; ParreU v. O'Brien, 199 TJ. Si. 89, 50 L. ed. 101; Goodrich v. Ferris, 145 Fed. 844. Cf. supra, § 54; nor to cancel a will itself. Oakley v. Taylor, 64 Fed. 245; on account of a mistake, undue, influ- ence, forgery or other fraud. For ja case where it was held that the suit was an action at law for dam- , ages for fraud and not in equity to , set aside the probate, see Murphy v. \ Mitchell, 245 Fed. 219. But a Fed- eral court may entertain a bill for the construction of a will duly es- 550 JURISDICTION IN EQUITY [§ ^9 But not to set aside or enjoin proceedings to enforce a judg- ment at law because of fraud; unless the complainant had a defense to the action upon the merits,*" and either the fraud was extrinsic to the matter tried and not in issue in the former suit, nor then known to the complainant, or else some uncon- scientious advantage was taken of the successful judgment debtor during the progress of the suit without any fault or negligence upon his part.** Nor to set aside a judgment at law *' or a decree in equity for an omission to serve a party *" to the same, except perhaps when the record shows an appa- rent service."* Where a party refused to carry out a lost stipu-' lation, that a judgment should abide the result of a writ of error to another judgment, but did not deny that he had made the same, it was held that a bill in equity to vacate the judg- ment could not be sustained, because the complainant had an adequate remedy at law.*^ Nor il was held in one case to set aside a judgment recovered in favor of the United States through an alleged misunderstanding between the defendant and the district attorney.** Nor for newly discovered evidence, unless the complainant shows that his failure to discover the same before the former trial was not attributable to his own want of diligence; nor when the evidence ought to have been within tablished. Wood v. Paine, 66 Fed. 27 L. ed. 903; Nat. Surety Co. v. 807. See § 54 Supra. State Bank, C. 0. A., 61 L.R.A. 37 White V. Crow, 110 TJ. S. 183, 394; 120 Fed. 593; Aldrich v. 28 L. ed. 113. Contra, Mills v. Crump, 128 Fed. 984; Hudgens v. Scott, 43 Fed. 452.. The bill must Baugh, 225 Fed. 899;' Scotten v. show that the judgment debtor had Kosenblum, 231 Fed. 358. See Knox a good defense upon the merits. County v. ^arshman, 133 U. 8. Christy v. Atchison, T. & S. F. Ey. 152, 33 L. ed. 586; Leavenworth Co. 214 Fed. 101. Where after County Com'rs v. Chicago, E. I. & judgment in an action for breach P. Ey. Co., 134 U. S. 688, 33 L. ed. of a covenant of seisin the plain- 1064; Sanford v. White, 132 Fed. tiff's title was made good by the 531. statute of limitations, defendant 29 Lewis v. Cocks, 23 Wall. 466. was allowed to maintain a suit in 30 Yeatman v. Bradford, 44 Fed. equity to' cujoin the judgment's en- 536. forcement. Mather v. Stokely, C. 30a Simon v. Southern Ry. Co., 236 ' C. A., 236 Fed. 124. U. S. 115. Z8 Life Ins. Co. v. Banks, 103 31 Brown v. Arnold, 127 Fed. 387. TJ. S. 780, 782, 26 L. ed. 608, 609; 32 Buckley v. TJ. S., 196 Fed. 429. Cragin v. Lovell, 109 TJ. S. 194, 79] GENERAL SURVEY OP EQUITABLE JURISDICTION 551 the knowledge of the party when he made his defense to the action at law.'* To satisfy judgment out of property of a debtor which can- not be reached by an execution;** to prevent a threatened breach of a right,*^ or compel the performance of a duty,*^ SSPiekford V. Talbott, 225 U. S. 651, 56 L. ed. 1240. 34Angell V. Draper, 1 Vern. 399; Scottish Am. Mtg. Co. v. PoUans- bee, 14 Fed. 125. See infra, § 151d. 35 Hobinson v. Lord Byron, 1 Bro. Q. 0. 588 ; Osborn v. Bank of U. S., 9 "Wheat. 738, 6 L. ed. 204; Vicks- burg Water Works Go. v. Vicksburg, 185 XT. S. 65, 82, 46 L. ed. 808, 815. Bills may be sustained; to enjoin the head of a department of the na- tipnal government from acting be- yond the scope of his authority to the prejudice of the complainant. Noble V. Union River Logging E. Co., 147 TJ. S. 165, 37 L. ed. 123. See infra, § 100. To enjoin a State pflSeer from revoking a permit au- thorizing a foreign corporation to tran!5?iet business within the State. Greenwich Ins. Co. v. Carroll, 125 Fed, 121. Infra, § 105. By a rail- road company, to enjoin scalpers from spiling non-transferable re- turn tickets, already issued by com- plainant, and all tickets of a simi- lar nature which complainant may issue in the future. Bitterman v. Louisville & N. R. R. Co., 207 U. S. 205, 52 L. ed. 171. But not a bill to protect rights which are purely political, even though right of property may be thereby incident- ally affected. Mississippi v. John- son, 4 Wall. 475, 18 L. ed. 437. Georgia v. Stanton, 6 WaU. 50, 18 L. ed. 721; Green v. Mills, C. C. A., 30 ,L.E.A. 90, 69 Fed. 852; An thony V. Burrow, 129 Fed. 783; Dal- las V. Dallas Consol. El. St. Ry. Co., (S. C, Texas, June 1912) 148 S. W. 292. Nor a bill to enjoin the removal of an of&cer of the United States or of the State, or a, munic- ipality. In re Sawyer, 124 U. S. 200, 31 L. ed. 402; White v. Berry, 171 U. S. 366, 376-378, 43 L. ed. 199. Nor a bill to enjoin the re- fusal to examine an applicant for a icense. Williams v. Potter, C. C. A., 223 Fed. 423. Nor a bill by the United States to enjoin a corpora- tion from opening an exhibition on Sunday, where Congress has made an appropriation toward the ex- pense of the enterprise \ipon the express condition that it shaU be closed on the first day of each week. World's Columbian Exposition v. U. S., 56 Fed. 654. Nor a bill to enforce an ' ' abstract right" which the complainant as- serts, and which he may never prac- tically exercise; as, for example, the right to remove an obstruction from a navigable river, when he does not allege that he is about to navigate the same. Spooner v. MeConnell, 1 McLean, 337. A bill for an adjudication of a right to a fund was dismissed be- rause the fund had not then come into .existence. Reina v. Bracho, C. C. A., 256 Fed. 834.' A statute providing for compen- sation to a stockholder who refuses to exchange his stock upon a consoli- dation does not afford an adequate remedy to a suit by one to restrain a consolidation not authorized by law. General Inv. Co. v. Lake Shore & M. S. Ry. Co., C. C. A., 250 Fed. 160 552 JURISDICTION IN EQUITY [■§.7{ the commission or omission of which, respectively, would in- flict such an irreparable injury upon a person', that a judg- ment for damages,^'' or the cumbrous legal' process of eject- ment,'* jreplevin,'* detinue, or account rendered,*" would be Nor, except in a very extraordi- nary case, a bill to enjoin slanders or libels. Francis v. Flinn, 118 TJ. S. 385, 30 L. ed. 165; Baltimore Oar Wheel Co. v. Bemis, 29 Fed. 95. Contra, Emack v. Kane, 34 Fed. 46 ; Fourgeres v. Murbarger, 44 Fed. 292. See infra, § 284a. Nor to enjoin an action at law to which the complainant has a clear legal defense. Grand Chute v. Winegar, 15 Wall. 373, 21 L. ed 174; Francis v. Flinn, 118 XJ. S 385; Hapgood v. Hewitt, 119 TJ. S 226, 30 L. ed. 369. See Drexel v Berney, 122 TJ. S. 241, 30 L. ed 1219. Nor, it has been said, upon the mere allegation of insolvency of the defendant. Strang v. Richmond, P. & C. E. Co., 93 Fed. 71, 74. 36 Stribloy v. Hawkie, 3 Atk. 275 ; Huguenin v. Baseley, 15 Ves. 180; Hunt V. Eousmanier's Adm'rs, 1 Pet. 1, 7 L. ed. 27; Willard v. Tay- loe, 8 Wall. 557, 19 L. ed. 501. But not a bill to eotopel a public office] to perform a ministerial duty. Craig V. Leitensdorfer, 123 TJ. S. 189, 31 L. ed. 114. Nor to fix the freight rates charged by railroads in intrastate commerce. Montana, W. & S. E: Co. V. Morley, 198 Fed. 991. Nor, in the absence of statutory ■ authority for the collection of taxes, Preston v. Chicago, St. L. & N. 0. E. Co., 175 Fed. 487, aff'd as Preston v. Stur- gis Milling Co., C. C. A., 183 Fed. 1. Nor a bill to compel mu- nicipal, county or State officers to levy a tax'; Walkley v. Muscatine, 6 Wall. 481, 18 L. ed. 930, to issue bonds, even in the case of a con- tract; Smith V. Bourbon County, 127 U. 8. 105, 32 L. ed. 73; or since the remedy, when it exists at all, is by mandamus. Nor a bill for the appointment of a receiver to levy taxes, or to collect taxes previously levied, Rees v. Watertown, 19 Wall. 107, 22 L. ed. 72; Heine v. Levee Gom'rs. 19 Wall. 655, 22 L. ed. 223; Meriwether v. Garrett, 102 U. S. 472, 26 L. ed. 197. Nor a bill to en- join an insolvent municipality frbin expending its funds for ■ other mu- nicipal purposes, Thompson v. Allen County, 115 U. S. 550, 29 L. ed. 472, Safe. Deposit & T. Co. v. City of An- niston, 96 Fed. 661, 663. Nor to collect ' the amount of an insurance policy. Graves v. Boston Marine Ins. Co., 2 Cranch, 419, 2 L. ed. 324. See' Houston Oil Co. of Texas v. Drake, C. C. A., 182 Fed. 202. Nor to collect a note from its maker, Dowell v. Mitchell, 105 TJ. S. 430, 26 L. ed. 1142, or an indorsee, Shields V. Barrow, 17 How. 130, 15 L. ed 158. Special School Dist. v. Jones, C. 0. A., 250 Fed. 440. 37 Dumont v. Fry, 12 Fed. 21. In the case of special and peculiar chattels, papers and documents which cannot be replaced; for ex- ample, ■ a certificate of admission to the bar or a license to practice medi- cine the plaintiff may be entitled to a decree in equity for their re- turn. Keown V. Keown, 257 Fed. 851. See § 151d infra. ' 38 A landlord, after cancelling a mining lease, may file a bill agaihst his lessee, to establish his right to § 79] GENERAL SURVEY OP EQUITABLE JURISDICTION 553 no adequate remedy uf or' the loss thereby occasioned; to pre- possession, and to enjoin the latter from committing waste while min- ing ore upon the premises. Big Six Development Go. v. Mitchell, C. C. . A., 1 L.E.A. (N.S.) 332, 138 Fed. 279. Independently of statute,' it was held that a Federal court had jurisdiction of a bill to quiet title by a complainant out of possession ; .where the questions in issue included the establishment of the fact of an administratorship and the interpretation and effect of an administrator's deed, under which the complainant claimed. Butter- field V. Miller. C. C. A., 195 Fed. 200; and where the complainant alleged title to a tract of land em- bi-aciug 147,000 acres against a number of defendants, each of whom claimed -titlo to a separate -portion thei'eof and was in possession of the same. Buchanan Co. v. Adkins, C. C. A., 175 Fed. 692: But see infra, § 141. But not solely for purposes that could be accomplished by an ac- tion in ejectment, Hipp Vi Babin, 19 How. 271, 15 L. ed. 663; Lewis v. Cocks, 23 Wall. 466, 23 L. ed. 70; Ellis V. Davisj 109 U. S. 485, 27 L. ed. 1006; Eillian v. Effiinghaiis, 110 U. S. 568, 28 L. ed. 246; U. S. v, Wilson,. 118 U. S. 86, 30 L. ed. 110; Speigle V. Meredith, 4 Bliss. 120. South Penn Oil Co; v. Miller, C. C A., 175 Fed. 729. Nor a bill for a partition filed by a tenant in com- mon out of possession; who has been disseised by his co-tenant, Frey v. WilloTighby, C. C. A., 63 Fed. 865; nor where the complainant's title la denied; American Ass'n ^f. Eastern Ky. Land ■ Col, 68 Fed. ' 721, l)ut see Fuller' V.' Montague, 59 Fed. 212; except when the^' complainant ^s title is not recognized at common law, Hopkins v. Grimshaw, 165 U. S. 342, 358; nor to quiet the title to real estate when the complainant's rights are purely equitable. Frost v. Spit- ley, 121 U. S. 552; nor, in the ab- sence of a State statute authorizing such a suit, when he is not in pos- session of the land, U. S. v. Wilson, 118 U. S. 86, 30 L. ed. 110; Frost v. Spitley, 121 U. S. 552, 30 L. ed. 1010; §§82, 83, infra. New Jersey Land & Lumber Co. v. Gardener Lacy Lumber Co., 190 Fed. 861, but, in such a case, it may be presumed that the possession of uninclosed woodland follows the legal title, and in such a case equity has intervened. Graves v. Ashburn, 215 U. S. 331, 54 L. ed. 217. 39 Since imported goods in the custody of the collector cannot bo replevied, U. S. R. S., § 934, a bill in equity may be maintained to re- cover their possession, Pollard v. Eeardon, 65 Fed. 848. But not usu- ally, to restrain the seizure or to compel the return of personal prop- erty, Knox v. Smith, 4 How. 298, 11 L. ed. 983; Van Norden v. Morton, 99 U. S. 378, 25 L. ed. 453; Jones v. MacKenzie, G. C. A., 122 Fed. 390; but see Crane v. McCoy, 1 Bond, 422; unless its loss by the owner would result in irreparable injury by the destruction of his business and commercial credit, Watson v. Sutherland, 5 Wall. 74, 18 L. ed. 580 ; North v. Peters, 138 tJ. S. 271, 34 L. ed. 936 ; or by rendering it im- possible for him to manage his farm," Breeden v. Lee, 2 Hughes, 484; oi* on account ■ of its unique ' vahie, Pusey V. Piisey,! Vern. 273 ; Duke of Somerset v. Cookson, 3 P. Wms.' 389. n54 JURISDICTION IN EQUITY | § 7^ vent a neeflless multiplicity of suits ;*i and to compel the can- But see Lawrence v. Times Printing Co., 90 Fed. 24, or if it be held in trust, New Orleans v. Morris, 105 U. S. 600, 26 L. ed. 1184; Eeynes v. Dumont, 130 U. S. 354, 32 L. ed. 934. That the value of the property- is so great that the complainant is unable to give the Vond required in an action of replevin affords no ground for the interference of equity. In re Oregon Iron Works, 4 Saw. 169, 170; s. c, 17 N. B. R. 404. MGunn v. Brinckley C. W. & M. Co., 66 Fed. 382. Bills for account- ing are discussed subsequently un- der § 151a. 41 Freeman v. Pontrell, Chan Cal. XIII; Earl of Bath v. Sherwin, 4 Bro. P. C. 373; Woods v. Monroe, 17 Mich. 238; Cummings v. National Bank, 101 U. S. 153, 25 L. ed. 903; Dodge V. Briggs, 27 Fed. 161; Hale %. Allison, 188 U. S. 56, 47 L. ed. 380; Donovan v. Pennsylvania Co., 199 U. S. 279, 50 L. ed. 192; Gen- eral Film Co. V. Sampliner, C. C. A., 252 Fed. 143. The licensor was per- mitted to sue in equity to enjoin the licensee from violating its covenant against infringement of several of these patents. Eeece Folding Maeh. Co. V. Earl V. Wilson, 205 Fed. 539, See § 146 mfra. Bills in equity may be filed to set aside a laud patent, issued in violation of' a statute, when the bill is filed by the party entitled to the land. Southern Pao. R. Co. v. Wiggs, 43 Fed. 333, but not, it has been held, to decree a forfeiture of a land grant, and to recover the land so granted for a breach of a condi- dition subsequent, in the absence of g, fleelar^fipn pi forfeiture by Con- cress or of express statutory author- ity from Congress to institute the suit, U. S. V. Washington Improve- ment & Development Co., 189 Fed: 674. Cf. U. S. V. Northern Pac. R. R. Co., 177 U. S. 435, 20 -Sup. Ct 706, 44 L. ed. 836. Contra, U. S. V. Whitney, 176 Fed. 593. To procure an adjudication that a land patent, which has been obtained from the United States through an I rror of law or a gross mistake of I'aet or fraud, belongs to the original owner of the equitable title of the . land, Howe v. Parker, C. C. A., 190 Fed. 738. But not when the bill is filed by one who has never placed himself in privity with the United States by the acceptance of a grant,' or settlement, and improvement, or occupation, entry or payment. Campbell v. Weyerhaeuser, C. C. A., 161 Fed. 332. A person whose ap- plication to purchase has been re- jected by the Land Department cannot bring such a suit. Ibid. "It la possible that one who holds ' land under grant from the United States, who has done everything in his power to entitle him to a patent (which he cannot compel the United States to issue him), and is deemed the legal owner, so far as to render the laud taxable to him by the State in which it lies, may be considered as having sufficient title to sustain a bill in equity to quiet his right and possession." Gray, J., in Frost V. Spitley, 121 U. S. 552, 556, 30 L. ed. 1010; citing Carroll v. Saf- ford, 3 How. 441, 463, 11 L. ed. 671; Van Wyek v. Knevals, 106 U. S. 360, 370, 27 L. ed. 201; Van Brocklin v, Tennessee, 117 U. S. 151, 169, 29 L. ed. 845, 851; ' .§' 79] GENERAL SURVEY OP EQUITABLE JURISDICTION 555 cellation or execution of instruments,*^ the existence or want Cif which is a cloud upon, or an 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. "Mere complication of facts alone and difficulty of proof are not a basis of equitable jurisdiction."** Nor is it suffi- cent ground for the interference of a court of equity that the evidence in: a cause is voluminous and tedious.** It has been saidi "To give a court of equity jurisdiction, the nature of the J relief asked must be equitable, even when the suit is based on an equitable title. ' ' ** The inadequacy of the remedy at law which ^will justify relief in equity does not consist merely in its failure to produce the relief sought, — that is a not un- usual result of all remedies, — but that in its nature or char- acter it is not fitted or adapted to the end in view.*® An adequate remedy in a foreign court is not sufficient to deprive the court of equitable jurisdiction.*''' Where a bill rightfully invokes the , equitable jurisdiction of the court, the court cannot refuse to entertain it because of conditions that came into existence after it was filed,*' unless they were caused by the fault of the eompliainant.*® 18 Pierce V. Webb & Stalker, note «.Bowen v. Ghase, 94 TJ. S, 818, to Eyan v. Mackmath, 3 Bro. G. G. 824, 24 L. ed. 184, 187. 15; Peake V. Highfield, 1 Euss,; 559, MFu^aell v. Gregg, 113 XJ. S. and eases cited; Bunee v.Galla,glier, 550, 554, 28 L. ed. 993, 994, per 5 Blatehf. C.. C. 481; Quinby v. Gon- Woods, J. .sumers' Gas Trust Co., 140 Fed. 46Miller, J., in Thompson v. A> 362, BiUa may be filed to set len County, 115 U. S.' 550, 554, 29 aside a contract obtained by h, ed. 473, 473. Cf. Texas & P. Ey. fraud, Boyce v. Grundy, 3 Pet. 210, Go. v. Marshall, 136 IJ. S. 393, 405, 7 L. ed. 655. To set aside a con- 34 L. ed. 385, 390; St. Louis-San veyance obtained for a grossly inad- Francisco Ey. ;Go. v. McElvain, 853 equate. consideration from a man in Fed. 122. a state of intoxication, partly 47 State ex rel. Gilbert Eliot & caused by the acts of the defendant, Go. v. Lake Torpedo Boat Go. Thackrah v. Haas, 119 U. S. 499, 30 (Gonn.), 98 Atl. 580. h. ed. 486. To establish a deed 48 Carnegie Steel Go. v. Colorado which has been destroyed by the de- Fuel & Iron Co., 165 Fed. 195; Fay fendant. , MidkifE v. Golton, C. G. v. Hill, G. C. A., 249 Fed. 420. A., 252 Fed. 420. Gildner v. Hall, 49 Friedley-Voshardt Co. v. Ee- 227 Fed. 704. See mfra, §151f. liance Metal Spinning Co., 238 Fed. 43 Curriden v. Middleton, 232 V. 800. S. 633, per Holmes, J. 556 JURISDICTION IN EQUITY [§ 79a § 79a. Who seeks equity must do equity. The maxims en- forced by other courts of equity are followed' by the Federal courts. ..,.,, The maxim that he who seeks equity must do equity is of very ancient origin. • •• He who seeks equity must do equity in the courts of the) United States.! rpjjjg j.^2e is enforced either by requiring an offer to do equity to be made by the complainant in his bill,^ or by the entry of a decree conditioned upon such conduct by him,' or in some eases by requiring the performance of some act before suit is brought.* The more usual instances are : the requirement that bills fOr relief against excessive taxation should aver payment of what is conceded to be due;'' suits to set aside a judicial' : sale ^' and applications for the appointment of receiver^.'' i , , This maxim does not apply to a defendant unless he files a cross bill or counter claim.* § 79b. Requirement of clean hands. He who s«eks equity must come with clean hands.^ This doctrine is most frequently enforced in trademark cases where a party whose trademark contains a fraudulent representation is denied relief.* It has § 79a. 1 State E. B. Tax CaSes, 25 L. od. 339, infra, §153; State 92 U. S. 575, Fosdick v. Sohall, 99 B. B. Tax Cases 92 U. 8. 575 infra, XJ. S. 235; Cronen v. Moore, C. C. §153. ' A., 210 Fed. 239; Broatch v. Boy- 5 State E. E. Tax Oases, 92 U. S. sen, C. C. A., 236 Fed. 516; Boll- 575, 617, 33 L. ed. 669, 674; infra, man Mfg. Co. v. Universal Hardware § 153. ' Works, C. C. A., 238 Fed. 568; 6 Davis v. Gaines, 104 TJ. S. 386, Alexander v. Fidelity Trust Co., 238 76 L. ed. 757, infra, § 153. Fed. 938; Seaples v. Card, 246 Fed. TFosdick v. Sehall, 99 U. S. -235, 501 ; Louisiana Agricultural Cdrpo- 25 L. ed. 339, infra, § 153a. ration v. Pelican Oil Befining Co., 8 Columbus v. Mercantile Tr. Co., Inc., C. C. A., 256 Fed. 822. See 218 U. S. 645, 54 L. ed. 193; infra, Niblett V. McFarland, 92 U. S. 101 ; § 400. Eeed v. Tyler, 56 III. 288. § 79b. 1 Primeau v. Granfield, C. 2 Missouri K. & Tr. Co. v. Krum- C. A., 193 Fed. ,911; Mathews v. seig, 172 XT. S. 351, 43 L. ed. 474, Wayne Junction Tr. Co., 197 Fed. infra, §153. 237; Piekford v. Talbott, 225 U. 8. swalden V^ Bodley, 14 Peters 651, 56 L. ed. 1240; Daneigar v. 156, 164, 165, 10 L. ed. 398, 401, Stone, 187 Fed. 853. 402; Fosdiek v. Sehall, 99 U. 8. 2 Diamond Crystal Salt Co. v. 235, 25 L. ed. 339, infra, § 153. Worcester Salt Co., C. C. A., ■221 4 Fosdiek v. Sehall, 99 U. 8. 235, Fed. 66 ; Channel! Chemical Co. v. E. § 79b] CLEAN HANDS 557 also been applied to a ease where the complainant's trademark was an unfair imitation of one previously, used by a stranger to the suit.* The doctrine has not been extended so as to deny the right to sue for the infringement of a trademark or unfair com- petition, by imitation thereof, when the trademark is a label which contains a notice of a copyright that does not exist.* The maxim has been applied to a suit to protect the name of a vaudeville sketch which the complainant had advertised as performed by the use of telepathy whereas the result was pro- duced by use of a code of secret signals.* To a suit to enjoin the refusal of a license for a moving picture which although morally unobjectionable had been advertised so as to suggest that it was an indecent exhibition.^ To a suit to enjoin the enforcement of ^ State ' ' Blue Sky Law ' ' regulating the sale of securities, when the system of the business transacted by the complainant showed^ on its face that it was intended to defraud purchasers.'' To a suit for the infringement of a copy- right, where the complainant had committed in the publication of the book for which he sought protection piracies similar to those of which he complained.' To a suit by an alien to pre- vent infringement of his American copyright when he had pub- lished in his own country a larger book there copyrighted with a notice that this included the matter copyrighted in the United States without indicating in the latter publication what matter was taken from the former.** To a suit to enjoin a baseball player from playing with another club when the complainants W. Hayden Co., C. 0, A., 222 Fed. 4 M. B. Pahey Tobacco Co. v. 162; Koke Co. of America v. Coca- Senior, 247 Fed. 809. cola Co., C. C. A., 255 Fed. 895; Sin, Howard v. Lovett, in the Leather Cloth Co. v. Am. Leather Supreme Court of Michigan (De- Cloth Co., 11 H. L. C. 523, affirm- member, 1917, 165 N. W., 634). T ., ni. 1, TTr„ iv, „ ;„ 8 Ivan Film Production v. Bell, ing, Lord Chancellor Westbury in ^^ ,^ „ ^, „ ,r, ^, -,/x ■ . TVT Di oi Ttr J n^ N. Y. Sup. Ct. Sp. Tm. per Shearn, 10 Jurist N. S.' 81; Werden v. Cal. -vr v t t r. k iqib Fig Syrup Co., 187 IT. S: 516, 23 '-^S.iL^^i/ci^-Keat- Sup. Ct. 161, 47 L. ed. 282. For .^^^ ^^g ^^^ ^^^ recent cases where it was held that g Edward Thompson Co. v. Am. there was no fraud. See Allen y. ^aw Book Co., C. C. A., 122 Fed. Walker & Gibson, 235 Fed. 230, 922 925. 246. SaBentley v. Tibbals, C. C. A., 3 Ubeda v. Zialcita, 226 U. S. 452. 223 Fed. 247. 558 JURISDICTION IN EQUITY [ § 79b had ■persuaded- him to contract for exclusive employment by them with knowledge of a former contract of the same nature which he had made with the other club upon a sufficient consider- ation which could not be enforced for want of mutuality.^ To suits where a prior wrong by the complainant was the cause of the act by, the defendants sought to be enjoined.^" To a case where the plaintiff sought the same, relief in separate actions upon such inconsistent averments of fact as to show a lack of candor.^^ It has been said, that it should be applied where the plaintiff sent a spy to seek employment by the defendant to' obtain information for the use in his business ; ^^ but not where the spy was employed merely to t)btain evidence oL a violation of his Hghts..^^ Improper conduct by the complainant's agents which does not appear to haive been authorized by him does not make his hands unclean.,^* It relates to the subject-matter of ,the suit only, and im- proper conduct by the complainant in matters not therewith connected will not bar equitable relief. ^^ Such are previous misconduct in similar transactions with strangers to the suits ^® and in a suit to rfescind a patent license because of miscon- duct by the licensee, previous breaches of the contract by the complainant which; had been remedied before the suit was 9 Weeghman v. KillJfer, C. C, A., contract for the sale of property 2ig . Fed. 289, affirming 215 Fed. and the good will therewith con- 166. neetcd, should not be dismissed be- io Barber v. Columbia Chemical cause the purchaser acquired the Co., 228 Fed. 476; Montrose Eoalty property for the purpose of obtain- Co. v.'Vcrnorol Co., N. Y. L. J., irtg a monopoly of tho business 'and Nov. 23, 1914. ' in pursuance of an illegal eombina- 11 Bentlfey v. Tibbals> 0. C. A., tion in restraint of trade. Oscar 223 Fed. 247; Ogden v. Auor, Mo., Barnett Foundry Co. v. Cro,we, C. Mar., 1916, 184 S. W. 72. '■ C. A., 219 Fed. 450; Talbot v. In- ' 12 Vulcan Detinning Co. v. Ass- dependent Order of Owls, 220 Fed. mann, 185 App. Div. 399. 660; American Sugar Eefining Co. 13 Ibid. ' V. McFarland, 229 Fed. 284; Koke *i4internat'r News Serv. v.' Asso. Co. of Aw. v. Coca-Cola Co., C. C. Press, 248 U. S. 214, ' 243 ; Todd A., 2^0, Fed. 895. Protectograph'Cb. v. 'Hedman Mfg. 16 Talbot v. Independent Order of Co., 254 Fed. 829. ^ Owls, 220 Fed. 660; American IB Camors-McConnell v. MeCon- Sugar Eefining Co. v. McFarland, nell, 140 Fed. 412; holding that 229 Fed. 284. a l)ill to enforce, by injunction, a brought.'^'' Except in an qxtraordinary case ithis doctrine will not defeat a suit to enjoin the infringenient of a patent be- ca,u^e the eomplainajnt.de'iies the publjcthe, right to ! use :the invention which it protects,^* nor of a patent ^® or trademark; ^" because complainant use^ the same in sujch, a, manner as to re- strain, trade in .in{tersta,te commerce.; In the Second Circuit, beca,use of infringement by the platintiff of the copyright to a previous, edition of the defendant's book,, or of a later edition , of "Wfhich, complaint is made, or an unlawful importation into , the United ^tates of another edition of; the same book is no defense.^^ It has beeij held: that, it does not apply to a case where,, subse- quent to suit brought,, tjhe complainajit.ha^ been guilty of repre- hensible conduct, whiqh does not affect the cause of action,^^ and that plaintiff might recover at common law when he repudiated a conltj^act to commit, a, fra,ud upon strangers and sued to recpver the money he h,ad paid thereiinder, on. the ground that he had been induced to enter into :the same hj fraud, since he was not in pari delicto with the defendant.''* It is no defense, to a con- tract which has been: performed by the promisee, that the prom- isor knew that the performance of the , agreement might aid the ;former , to , violate public policy, when the two parties, di(i not conspire to accomplish that result, nor share in the benefits of such a violation.^* , Tlie doctrine does, not apply t,o a defendant who does notspek affinnative relief .^^ ','A man.by committing a fraud does pot become an outlaw and caput lupinum."^^ "He may have.no 17 Osear Barnett Foundry Co. v. 28 Chute v. Wisoonsili Chemieal Crowe, C. C. A., ^19 Fed. 450. Co.j 185 Fed. 115. 18 Continental Paper Bag Co. v. 23 Stewart v. Wright, C. Oj A., Eagter^i Paper Bag Co. (Paper Bag 147 Fed. ,321,, ; Patent Case), 210 TJ. S. 405, k30, 84 Mechanics' Ins. Co. v. Hoover 52 L. ed. 1122, 1133; Henry v. A. Distilling Co., C. C. A., 31 L.R.A. B. Dick Op!, 224 U. S, 1, 56 L. ed, (N.S,) 87^, 182 Fed.. 590. 645. , 2B Armour & Co. v. Benaker, 191 190. & /yy. Thuni Co. V, Dickin- Fed., 48; Eeid v,. Shadier, C. C. A., son, C. C. A., 245 Fed. 609. 249 Fed., 553; Ba,Tnett.Fqundry Co, 20 S. E. Hendricks Co. y. Thomas v. Crowe, C. C. A., 219 Fed. .450.. Pub. Co., C. C. A., 242 Fed. 37, ,40. 26Stoffeia v. Nugent, 217,11. S. 21BentIey v. Tibbals, C. C. , A., 499, 501,, 54 L., ed. 856, ,858^ per 233 Fed., 247, 253., But see T. B. Holmes, J. , Harms & Francis Day &,H,unter v. Stern. , , , 560 JURISDICTION IN EQUITY [§ 80 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 justice so far as is consistent with adherence to law."" § 80. The distinction between law and equity in the Federal courts. The fact that those who framed the Constitution thought it necessary to mention law and equity separately, 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.^ The better opinion, however, seems to be that this distinction between law and equity is enforced by the Constitution only to the extent to which the Seventh Amend- ment forbids any infringement of the right of trial by jury, as fixed by the common law.^ The Equity Rules of 1912 provide : " If at any time it appear that a suit commenced in equity should have been brought as an action oil the law side of the court, it shall be forthwith transferred to the law side and be there pro- ceeded with, with only such alteration in the pleadings as shall be essential. " ^ " If in a suil in equity a matter ordinarily de- terminable 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." * The Act of March 3, 1915, provides: "In case any of said courts," any Territorial District, or Circuit Court, or the Court of Claims of the Supreme Court of the United States, "shall find that a suit at law should have been brought in equity or a suit in equity should have been brought at law, the court shall order any amendments to the pleadings which may be neces- sary to conform them to the proper practice. Any party to the 27 Ibid. V. Railroad Cos., 6 Wall. 134, 18 §80. 1 Parsons v. Bedford, 3 t. ed. 765; Reubens v. Joel, 13 N. Pet. 433, 7 L. ed. 732; Bennett v. Y. 488, p. 497. A similar remark Butterworth, 11 How. 669, 674, 13 is contained in the message of L. ed. 859; 861; Hipp v. Babin, 19 President Taft on Dec. 7th, 1909. How. 271, at p. 277, 15 L. ed. 633, 2 Mr. Justice Matthews in Boot 634; Fenn v. Holme, 21 How. 481, v. Railway Co., 105 XT. S. 189, 206, 486; Costs in Civil Cases, 1 Blatehf. 26 L. ed. 975, 981. Cf. Ex parte C. C. 652, 654; Butler T. Young, 1 Boyd, 105 TJ. S. 647, 26 L. ed. 1200. Flip. 276, 278; Meade v. Beale, 3Eq. Eule22. Taney, 339, at p. 361; Thompson 4Eq. Rule 23. § 81] FEDEBAL EQUITABLE JURISDICTION 561 suit shall have the right, at any stage of the cause, to amend his pleadings so as to obviate the objection that his suit was not brought on the right side of the court. The cause shall proceed and be determined upon such amended pleadings. All testimony taken before such amendments, if preserved, shall stand as testi- mony in the cause with like effect as if the pleadings had been originally in the amended form. ' ' ° ' ' In all actions at law, equitable defenses may be interposed by answer, plea, or replication without the necessity of filing a bill on the equity side of the court. The defendant shall have the same rights in such ease as if he had filed a bill embodying the defense of seeking the relief prayed for in such answer or plea. Equitable relief respecting the subject matter "of the suit may thus be obtained by answer or plea. In case affirmative relief is prayed in such answer or plea, the plaintiff shall file a replica- tion. Review of the judgment or decree entered in such case shall be regulated by rule of court. Whether such review be sought by writ of error or appeal the appellate court shall have full power to render such judgment upon the records as law and justice shall require. ' ' ® Previously, it had been held that, where, in a suit for a parti- tion, 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 permit the plaintiff to bring an action at law for that purpose.' § 81. General rules aflfecting the jurisdiction in equity of the Federal courts. The jurisdiction in equity of the Federal courts is, subject to the limitations of the Constitution, substan- tially the same as that of the English Court of Chancery in 1787, when the Federal Constitution was adopted ; ^ although, in the absence of special statutory authority, they do not have those extrajudicial powers which were exercised over the persons and B 38 St. at L. 956, Comp. St. at p. 484, 16 L. ed. 198, 199 ; Meade § 1251a. V. Beale, Taney, 339, at p. 361 ; Gor- 6 38 St. at L. 956, Comp. St. don v. Hobart, 2 Sumn. 401, at p. § 1251a. 405; Fletcher v. Morey, 2 Story, 7 Gilbert v. iBopkins, 171 Fed. 70. 555, at p. 567 ; Boot v. Railway Co., §81. iBobinson v. Campbell, 3 105 TJ. S. 189, at p. 207, 26 L. ed. Wheat, 212, at p. 221, 4 L. ed. 372, 975, 981. 375; Fenn v. Holme, 21 How. 481, Fed. Prac. Vol. 1—36 562 JURISDICTION IN EQUITY [§81 estates of infants, idiots, lunatics, and charities by the Lord Chancellor, as the representative of the sovereign and by virtue pf the latter 's prerogative as parert^ patrice.^ "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, jurisdiction exercised by that court in its earlier history, but subsequently abandoned, and any enlargement of its jurisdiction by statute subsequent to 1789 are to be excluded. ' ' ^ The District courts of the United States, when sitting in equity, have the powers that were exercised in probate matters by the English Court of Chancery; provided that they do not interfere with the jurisdic- tion of the State courts in matters before them.* The distinc- tion between law and equity as recognized in the jurisprudence of England is to be observed in the courts of the United States, in administering the remedy for an existing right. But it does not follow that every right given by the English law, and which at the time the Constitution was adopted might have been en- forced 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.^ The Judicial Code provides that: "Suits in equity shall not be sustained in either of the courts of the United States in any case srontain v. Ravonel, 17 How. 3 Alger \ . Anderson, 92 Fed. 696 ; 369, at p. 391, 15 L. ed. 80, 89; Fontaiu v. Ravenel, 17 How. 369, Loring v. Marsh, 2 Clifford, 469, at 394,' 395, 15 L. ed. 80, 90, 91; per p. 492 ; In re Barry, 42 Fed. 113 ; Taney, C. J. " The grant of power In re Bnrnis, Petitioner, 136 U. S. cannot be enlarged by resorting to a 586, 34 L. ed. 500; N. y. Foundling , .iurisdiction which the Court of Hospital V. Gatti, 203 U. S. 529, Chancery in England, centuries ago, 439, 51 L. ed. 254, 259. See Be may have claimed as a part of its Bishop's Estate, C. C. A., 250 Fed. ordinary judicial power, but which 145. As to their .iurisdiction to in- had been abandoned and repudiated quire ino the custody of the luna- as untenable on that ground, by the tic, see King v. McLean Asylum, court itself, long before the Consti- C. C. A., 64 Fed. 325; Hoadley v. tution was adopted." Chase, 126 Fed. 818. But, see tlie 4, Johnson v. Johnson, 225 Fed. Late, Corporation of The Church of 413, supra, §54. Jesus Christ of Latter Day Saints v. 5 Taney, C. J., in Meade v. Beale, U. S., 136 U. S. 1, 51, 56, 34 L. ed. 339, 361." 478, 493, 495; s. c, 140 TJ. 8. 665, 35 L. ed. 592. § SlJ FEDERAL iEQUITABLE jDRISDICTION 563 where a plain, adequate, and' complete remedy may be had at law." ^ 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 constitutioual right to a trial by jury.'' "It would be difficult, and perhaps impossible, to state any general rule which would determine in all cases, what should be deemed a suit in equity as distinguished from an action at law, for pairticular 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 tlie 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. "^ "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 multiplicity of suits. "^ ''By inadequacy of the remedy at ejud. Code, §267, 36 St. at L. L. ed. 484, 487, per Bradley, J.: 1087; re-enacting XJ. S. B. S., 723. "This enactment certainly means 7 Hipp V. Babin, 19 How. 271, 15 something; and if only declaratory L. ed. 633; Insurance Co. v. Bailey, of what was always the law, it 13 Wall. 616, 62l, 20 L. ed. 501, must, at least, have been intended 503; Grand Chute v. "Winegar, 15 to emphasize the rule, and to im- Wall. 373, 375, 21 L. ed. 174, 175; press it upon the attention of the Lewis V. Cocks, 23 Wall. 466, 470, courts." , > ' 23 L.' ed. 70, .71; Boot v. Railway 8 Whitehead v. Shattuck, 138 TJ. Co., 105 U. S. 189, 212, 26 L. ed. S. 146, 151,- 34 L. ed. 873; 874, per 975, 983; Killian v. Ebbinghaus, Field, J. 110 U. S. 568, 573, 28 L. ed. 246; 9Buzard v. Houston, 119 XJ. S. N. Y. Guaranty Co. v. Memphis 347, 351, 352, 30 L. ed. 451,i 4S2, Water Co., 107 IT. S. 205, 214, 27 453, per Gray, J. ■ 564 JURISDICTION IN EQUITY [§ 81 la^ 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 na- ture or character it is not fitted or adapted to the end in view. ' ' ^^ "AVhen irreparable injury is, spoken of, it is not meant that the injury is beyond the possibility of repair or beyond the possibil- ity of compensation and damages ; but it must be of such constant and frequent recurrence that no fair or reasonable redress can be had therefor in a court of law. "^^ "If the remedy at law is adequate in theory it deprives equity of jurisdiction, although practically it may be inadequate to secure the collection of the claim sued on. " ^* Equitable jurisdiction does not accrue to the Federal court because it is thought i 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.^' "There may consequently be cases over which the Eng- lish courts of chancery would have taken jurisdiction, which are not cognizable by the Federal courts when sitting at equity. ' ' ^* The facts stated, and the relief sought in the first pleading, and not its form or name, determine whether it invokes the jurisdic- tion and commences a suit at law or in equity. ^^ Where the com- plainant has a remedy at law by mandamus, the fact that a Federal court has no jurisdiction to grant the mandamus does not make the remedy at law inadequate.^'' The fact that a judg- ment can only be enforced by application to a court of equity does not take the case from the common-law side of the court.^'' "The adequate remedy at law which is the test of equitable juris- 10 Thompson v. Allen Co., 115 U. IB Armstrong Cork Co. v. Mer- S. 550, 554, 29 L. ed. 472, 473, per chants' Refrigerating Co., C. C. A., Miller, J. 184 Fed. 199. 11 Chicago General Ry. Co. v. C, 16 Smith v. Bourbon Co., 127 U. B. & Q. E. E. Co., 181 111. 605, 611; S. 105, 32 L. ed. 73. Contra, Pro- quoted with approval in Donovan visional Municipality of Pensaeola V. Pennsylvania Co., 199 U. S. 279, v. Lehman, 57 Fed._324, 331; Steph- 305, 50 L. ed. 192, 204. ens v. Ohio State Tel. Co., 240 Fed. 12 Safe Deposit & T. Co. v. City 759, 767. As to the rule vphere the of Anniston, 96 Fed. 661, 663, per State courts give a remedy by oer- Shelby, J. tiorari, Ewing v. City of St. Louis, 13 Cable v. United States Life 5 Wall. 413, 18 L. ed. 657; Taylor Insurance Co., 191 TJ. S. 288, 48 L. v. Louisville & N. E. Co., 88 Fed. ed. 188. 350, 359. 14 Buzard v. Houston, 119 TJ. S. 1'' Thompson v. Northern Pac. Ey. 347, 352, 30 L. ed. 451, 453. Co., 93 Fed. 384. § :81a] EQUITABLE JURISDICTION UNDER FEDERAL STATUTES 565 ddetion in; these courts, isi that' which existed when the Judiciary- Act of 1789 was adopted, unless subsequently changed by Con- gress.-'' " A State statute giving an adequate relief at law does not iaffieet the equitable jurisdiction of a Federal court." 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 case of discovery, — has not yet been settled.*" §81a. Equitable jurisdiction to enforce rights created by statutes of the United States.. 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.^ Thus, it has been held 'that a suit to enforce the individual^ liability of stockholders or directors to creditors of a corporation,* or to determine the question of the 18 McConiJiay v. Wright, ,121 V, S; 201, 206, 30 L. ed. 932, 933, per MattSews, J. 19 Missouri, K. & T. Ry. Co. v. Elliott, 56 Fed. 772; Mississippi; Mills V. Cohn, 150 U. ; S. - 202, 37 L., ed., 1052; Sheffield Furnace. Co. v.'witiierow, 149 V. S. 574, 37 L. ed. 853; Smyth v. Ames, 169 U. S. 466, 42 V. ed. 819; Lindsay v. First Nat. Bank, 156 TJ. S. 485, 39 L. ed. 505; Travelers' Protective Ass ?n v. Gilbert, C. C. A., 55 L.E.A. 538, 111, Fed. 269. Borden "s. Condensed MUk Co. V. Baker, C. C. A., 177 Fed. 906, where the State statute gave relief in certiojari; Union Pac. E. Co. V. Board of Com'rs of Weld County, Colo., C. C. A., 222 Fed. 651; Nevada-California Power Co. V. Hamilton, 235 Fed. 317; Second Nat. Bank v. Georger, 246 Fed. 517 ; Western Union Tel. Co. v. Trapp, C. C. A., 186 Fed. 114, a suit to enjoin the collection of taxes. City Council of Augusta,! 6a. v. Timmer- man, C. C. A., 233 Fed. 216; Me- Dougal V. Mudge, C. C. A., 233 Fed. 235. Contra, as to suit to enjoin the collection of taxes. City Council of Augusta v. Timmerman, 227 Fed. 171. See infra,} 82. 20 Compare Vaughan v. Central Pac. B. Co., 4 Sawy. 280; Pratt v. Northam, 5 Mason, 95; Peters v. Prevost, 1 Paine, 64; Home Ins. Co. V. Stanehfield, 1 Dill, 424; Markey v. Mut. Ben. Life Ins. Co., 6 Ins. L. J. 537; Heath v. Brie E. Co., 9 Blatchf. 316; Drexel v. Berney, 14 Fed. 268; Post v. Toledo, C. etc. E. Co., 144 Mass. 341, 59 Am. Eep. 86, 4 New Eng. E. 221. §81a. lEdgell v. Haywood, 3 Atk. 354; Hornor v. Henning, 93 U. S. 228, 23 L. ed. 879; Terry v. Lit- tle, 101 U. .S. 2tt6, 25 L. ed. 864; Manufacturing iCo.i v. Bradley, 105 U. S. 175, 26 L. ed. 1034; Doe v. Waterloo Min. Co., 43 Fed. 219. 2 Hornor v. Henning, 93 U. 8. 228, 23 L. ed. 879; Terry v. Little, 101 U. S. 216, 25 L. ed. 864; Manu- facturing Co. V. Bradley, 105 U. 8. 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., 566 JURISDICTION IN EQUITY' [§ Sla right of . possession to land under section- 2326 of the Revised Statutes .when there are conflicting claims to patents before a land .officej-^ must be brought in equity. The stattite authoriz- ing a suit to quiet title by an adverse claimant to public lands in Alaska* does not apply to contests between homestead set- tlers and locators . of mining claims as to the mineral or non- mineral character of land;® a complaint by the receiver of an insolvent bank .against former directors to recover a dividend fraudulently and unlawfully declared', and paid, and also to recover money illegally paid out of capital for the surrender of stock certificates was held to state a cause of action at com- mon law.® A suit under section 5239 of the Revised Stat- utes to recover of a director of a national bank the damages sus- tained in consequence of excessive loans must be brought on the common-law side of the court,'' although the bank holds stock as security for' the loan.* A suit by the receiver of a national banking association, to recover dividends paid to stockholders when the corporation was insolvent, may be brought in equity.* But it was held : that the liability of directors under the Civil Code of California^" for incurring indebtedness beyond the amount of the subscription of the capital stock of a corporation must be enforced by a bill in equity.^^ It has been held:, that suits by a trustee in bankruptcy, to recover money paid as a preference, should be brought in equity,'^ that a suit' to foreclose a mechanic's lien must be eh. 23, the creditor may proceed at ^ Stephens v. Overstolz, 43 Fed. law or in equity. N. Y. Life Ins. 771. Co. V. Beard, 80 Fed. 66. As to 8 Corsioana Nat. Bank v. Johnson, proceedings under the Texas statute, C. C. A., 218 Fed. 822. see Thomson-Houston El. By. Co. v. 9Hayden v. Thompson, 71 Fed. Dallas Con. Tr. By Co., 54 Fed. 60. It was held otherwise under the 1001. See notes to Biekerson Boiler Maine R. S. C. H. 47, § 89 ; a suit Mill Co. V. Farrell Foundry & M. by a stockholder, John A. Boebling's Co., 75 Fed. 554, 23 C. C. A., 302; Sons v. Kinicutt, 248 Fed. 596, 599. Seott V. Latimer, 33 C. C. A. 1. 10 § 309. 3 Doe V. "Waterloo Min. Co., 43 11 Me La Jolla Lumber & Mill Co., Fed. 219. 243 Fed. 1004. 4 30 St. at L. 413. 12 Parker v. Black, C. C. A., 151 ' 5 Lassley v. Brownall, 0. C. A., 199 Fed. 18. But see § 644, infra. ■ Fed. 772. . 6 Jesson V. Noyes, C. 0. A., 245 Fed. 46. § 82] STATE STATUTES CREATING RIGHTS 567 brought in equityi'-^ The: proceeding under the act of Congress to prevent the unlawful occupancy of public lands^* is a sum- mary proceeding in the nature of a suit in equity and may be tried without, a jury.^^ In the absence of express provisions to that effect, lit was held that a statute directimg the Attorney- General to take ''proper proceedings to prevent any unlawful' interference with the rights and equities of the Uiiited 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.^® § 82. State laws creating new rights are enforced by Fed- eral courts at law or equity. If, however, the customary ^ or statute^ law of a State has created a new right, the Federal, courts vi/ill enforce the same, at law or equity, if it falls within the remedies authorized by either branch of their jurisdiction. Such are statutes giving a mortgagor or his judgment cred- itors a certain time 'within which to redeem land after a fore-' closure sale ; ^ authorizing a suit to set aside the probate of 13 Armstrong Cork Co.! v. Mer- Clarke, 2 McLean, 568, 577 ; Nichols chants' Eefrigerating Co., C. C. A., v. Eaton, 91 IT. S. 716, 729, 23 L. 184 Fed. 199; Pioneer Min. Co. v. ed. 254, 258; Fisher v. Shropshire, Delamotte, C. C. A., 185 Fed. 752. 147 IT. S. 133, 37 L. ed. 109; St. Sq held where there were conflicting Louis & S. F. R. v. 8. W. Tel. & liens to be adjusted, although the T. Co., C. C. A., 121 F 276. State statute gave a right of action 8 Clark v. Smith, 13 Pet. 195, 10 at iaw. Healey lee Mach. Co. v. L. ed. 123; Fitch v. Creighton, 24 Green, 181 Fed. 890. How. (U. S.) 159, 16 L. ed. 596; 14 23 St. at L. 321. Brine v. Insurance Co., 96 IT. S. 627, 15 Cameron v. U. S., 148 IT. S. 24 L. ed. 858; Mills v. Scott, 99 IT. 301, ,304,, 37 L. ed. 459, 460; Buf- S. 25, 25 L. ed. 315; Van Norden field V. San Francisco Chemical Co., v. Morton, 99 IT. S. 378, 25 L. ed. 198 Fed. 942. , ;. 315; Cummings v. National Bank, 16 Uflion Pac. Ry. Co. v. V. S. 59 101 IT. S. 153, 157, 25 L. ed. 903, Fed. 813. 904; Holland v. Challen, 110 IT. S. 1 82. 1 Neves v. Seott, 13 How. 15, 28 L. ed. 52; Reynolds v. Craw- 268, 271, 14 L. ed. 140, 142 ; Gaines f ordsville First Nat. Bank, 112 U. v.. Fuentes, 92 IT. S. 10, 20; 23. L. S. 405, 28 L. ed. 733. ed. 524, 528; Ellis r. Davis, 109 TT. S Brine v. Insurance Co., 96 IT. S. S. ,485, 27 L, ed. 1006;' Lorman y. 627, 24 L. ed. 858; Orvis v. Powell, 568 JURISDICTION IN EQUITY [§8a 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.^ But this cannot be done unless the proceeding is an ac- 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 af- forded by the court is a mere continuation of the probate pro- ceeding, 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.^ A Federal court of equity will follow a State statute' au- thorizing a person in possession of land and unmolested ; ' or 98 V. S. 176, 178, 25 L. ed. 238, 239; Connecticut Mut. L. Ins. Co. V. Cushman, 108 V. S. 51, 27 L. ed. 648. . 4Broderick'a 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.E.A. 425, 117 Fed. 193, 204 (Illinois Statute) ; Wart V. Wart, 117 Fed. 766 (Iowa Statute) ; McDermott v. Hannon, 203 Fed. 1015 (N. Y. Statute). See § 54, supra. 5 Williams V. Crabb, C. C. A., 117 Fed. 193, 204, 59 L.E.A. 425; Wart V. Wart, 117 Fed. 766 ; McDermott v. Hannon, 203 Fed. 1015 (N. Y. Stat- ute). See Chicago, B. & Q. E. Co. v. Oglesby, 198 Fed. 153. But in Sexton Mfg. Co. v. Singer Sewing Mach. Co., C. C. A., 194 Fed. 56; held that the section of the Me- chanics' Lien Law of Illinois, which provided that the lien shall not be enforced to the prejudice of any other creditor, encumbrancer or purchaser, unless the contractor within four months after completion "shall either bring suit to enforce his lien thereof or shall file with the clerk of the circuit court in the county in which the building," is situated, a claim of lien (111. L. 1903, p. 230; 111. E. S. 1905, 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, swpra. But see Preston v. Chicago, St. L. & N. O. E. Co., 175 Fed. 487. 7 Clark v. Smith, 13 Peters, 195, 10 iL. ed. 123; U. S. Min. Go. v. Lawson, 0. C. A., 134 Fed. 769; North Carolina Mining Co. v. West- feldt, 151 Fed. 290; Kraus v. Cbng- don, C. C. A., 161 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 182] STATE, STATUTES CREATING BIGHTS 569 eyen one out of possesion of vacant land,* - to ; maintain a bill to determine ini equity the title to the same or to recover pos- session ttiereof ; but not a State- statute authorizing one out of the possession of land ;without a trial by jury to, obtain pos- session of the same when occupied by an adverse claimant.® It will; follow a State statute making an assessment for opening streets a lien upon abutting lajids, which can be foreclosed by th,e city or its assignee; ^^ authorizing the. appointment of a re- ceiver under certain conditions, which in the Federal courts must then also be performed ;^^ authorizing any creditor or stockholder to sue to wind up the ajfairs of a corporation which has become insolvent or suspended its ordinary business for want of funds,^* but not a iState statute authorizing a court of equity to dissolve a corporation ; ^* authorizing a bill for a par- tition of an , equitable claim to. land the legal title to which is in the United States ; ^^ authorizing an injunction to be granted action iii hia own name to remove a cloud upon tilile 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. B. Co. V. City of New York, 145 Fed. 661. ■ 8 Holland v. Challen, 110 U. S. 15, 28 L. ed. 52; Southern Pac. E. Co. V. Stanley, 49 Fed. 263; Field v. Barber Asphalt Cb., 117 Fed. 925; Smith Oyster Co., v. Darbee & Im- mel Oyster & Land Co., 149 Fed. 555. S-Whitehead v. Shattuck, 138 V. S. 146, 34 L. ed. 873 ; Wehrman v. Goriklin; 155 TJ. S. 314, 325, 39 L. ed. 167/173; Giberson v. Cook, 124 Fed. 986; Union Pac. E. Co. v. Cun- ningham, 173 Fed. 90; Baum v. Longwell, 200 Fed. 450. See Klenk V. Byrne, 143 Fed. 1008; ContraP&ir 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 afirmatively either that the plaintiff is in possession, or that both complainant and defend- ant are out of possession. So. Pac. E. Co. V. Goodrich, 57 Fed. 879. 10 Fitch, V. Creighton, 24 How. (U. S.) 159, 16 L. ed. 596. 11 MoGraw v: Mott, C. C. A., 179 Fed. 646. (§ 65 of N. J. Corp. Act, N. J. P. L. 1896, p. 298). 18 Flash V. Wilkerson, 22 Fed. 689; Feehheimer v. Baum, 2 L.E.A. 153, 37 Fed. 167; T. & W. M. Co. V. Shatto, 34 Fed. 380; Conklin v. U. S. Shipbuilding Ass 'n, 123 Fed. 913; s. o., 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. ' 13 Conklin V. TJ. S. Shipbuildiag Co., 140 Fed. 219. Contra, Jacobs V. Mexican Sugar Co., 130 Fed. 589. 14 Aspen Mining & Snielting Go. v.'Eucker, 28 Fed. 220 570 JURISDICTION IN EQUITY [§ 82 in a new class of eases,^^ where there is no dispute as to the legal title of the complainant, as in a taxpayer's suit to I'estrain the waste of municipal property.^^ But, it has heen 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.^'' Federal courts of equity have followed statutes authorizing an action for the protection of a water right, in which all per- sons who have diverted water from the game stream or source are joined, and the court, in one judgment, settles the relative rights and priorities of all parties to the action ; i* empowering a guardian, with the permission of the State court, to mort- gage his ward's estate, but not clauses providing that such a mortgage can only be foreclosed in the court whitih authorized its execution ; ^^ creating and providing for thfe enforcement of a mechanic 's lien ; ^^ authorizing a bill by the debtor, to com- pel the return or cancellation of securities for a usurious loan, without payment or the offer of payment of the amount bor- rowed with the lawful interest ^^ — but it has been held 'that a court of equity may allow interest upon an uriliqu'idated claim, although, by the State practice, such interes;t is not allowed,^^ IS Cummings v. National Bank, 18 Ames Realty Co. v. Big Indian 101 U. S. 153, 157, 25 L. ed. 903, Mining Co.j,146 Fed. 166. 904; Lanier V. Alison, 31 Fed. 100; 19 Davis v. James, 2 Fed. 618. Grether v. Wright, C. C. A., 75 Fed. 20 Idaho & 0. L. I. Co. v. Brad- 742; Weidenfeld v. Sugar Bun E. bury, 132 U. S. 509, 33 L. ed. 433; Co., 48 Fed. 615, 619 ; St. Louis & Sheffield Furnace Co. v. Witherow, S. F. E. Co. V. S. W. Tel. & T. Co., 149 U, S. 574, 579, 37 L. ed. 853, C. C. A., -121 Fed. 276. See Stone 856; John W. Hood & Co. v. Breaker v. Hunter, C. C. A., 215 Board of School Directors of Tangi- Fed. 67, a right recognized by the pahoa Parish, 210 Fed. 384. But see common laws of the State. But see as to attorney's lien, Sherry v. O.' Davidson v. Calkins, 92 Fed. 230; S. N. Co., 72 Fed. 565. Lehigh Valley C. Co. v. Hamblen, 21 Missouri, Kansas & Texas Tr. 23 Fed. 225. Co. v. Krunrseig,: 172 XT. S. 351, 43 leSeceomb v. Wurster, 83 Fed. L. ed. .474; . Olds v. .Curlette, 145 856; Jjarabee v. DoUey, 175 Fed. Fed. 661. But see Matthews v. .365. . "Warner, 6 Fed, 461, 465; affirmed 17 Illinois Life Ins. Co. v. New- without pa,s8ing on this point, 112 man, 141 Fed. 449. See, however, U. 8. 600, 28 L. ed. 851. tlip authorities cited §§ 151g, 271b, 22 Pennsylva.nia Steel Co. v. N. Y. infra. § 82] STATE STATUTES CREATING BIGHTS 5lt and although at common law the State rulings upon this point would be followed;*^ 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 order; ^*.' au- thorizing a court of equity after the destruction of the public records to enter a decree establishing and confirming the title of a landowner ; ^^ authorizing the assignee oi an insolvent to applyi for the dissolution of levies of attachments and execu- tions against his property ; *^ and* the Federal courts of equity enforce a vendor's lien recognized by the State common law:^'' The United States Circuit 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 adverse deed of respondent." ^^ It has been held that the Federal courts in Ohio should follow the State statute authorizing a decree of specific performance against a non-resi- dent not served within the State; provided that jurisdiction is ob- tained under the Revised Statutes of the United States ; ^' that the summary method of foreclosing a mortgage under the Louisi-: ana Code belongs on the equity side of the court ; *" and that the Louisiana statute authcirizing a summary proceeding to set aside an incorrect assessment for tax3,tion will be enforced pursuant to the chancery practice on the equity side of the court, anduot tn accordance with the State practice by a petition upon the common-law side.*^ The Massachusetts employers' liability act, which authorizes an action to recover damages for the dteath of an employee,. "tp be assessed with reference to the degree, of culpability of the employer or of the person for whose nggli- CHy Ey. Co., CO. A., 198 Fed. 778, den's Adm'x, 2. Black, 458^(17 L. 779. '' ed. 304; Wilson V. Plutus MiM. Cq., 23 Stephens v. Phosnix Bridge Co.., C. C. A., 17,4 Fed. 317. C. C. A., 139 Fed. 248, 71 0. 0. A. . as A. & ,W. Sprague Mfg.; Co. v. .'i74. , Foyt, 29 Fpd.,.421. See in/ra, § 441v . ?4PlIatt V. Lecocq, 0. C.,A., 1.5 29 Single v. Scott Paper Mfg. Co., L.R,A. (N.S.),558, 158 Fed. 723. .55, Fed. 553, 557. 2BGormley?v. Clark, 134 TJ. S. SOFleitas v, Eiehardaou, 147 U. li.'iS, 33 L. ed. 909. , S. 538; 37 L. ed.. 272. ,. 26 Brochon V. Wilson, 91 Fed.. 61 7. SI Lindsay v. First Nat. i Ba,iik, 27 Fisher v. Shropshire, 147 U./.S. 156 V. S. 485, 39;L. ed. 505. 133, 37 L.ed., 109; Chilton IV. Brai- ,; 572 JURISDICTION IN EQUITY [§ 82 gence the employer is liable," is not a penal statutey in such a sense that an action based thereon may not be maintained in a Federal court at common law.^^ A State statute cannot give a Federal court jurisdiction in equity of a case in which there is an adequate remedy at com- mon law.*' The liability of shareholders for unpaid subscriptions to stock are several and independent. When they are unconditional and no issue with the corporation affecting such liabilities is common to the shareholders, the remedy of the corporation, or its trustee in bankruptcy, or receiver, is by action at common law against each shareholder separately.'* The same rule applies to a suit by a creditor under the same circumstances.'* It has been held that a State statute authorizing a suit in equity will not be followed.'^ A Federal court will not follow a State statute which authorizes a creditor's bill against an individual ''' or a corpora- tion," even against a stockholder where no accounting is re- quired,'® by a complainant who has not obtained a judgment establishing his claim; but State statutes were followed which gave such a remedy to the creditor of an insolvent decedent,*" 32 Malloy V. American Hide & S^ Seott v. Neely, 140 U. S. 10,6, Leather Co., 148 Fed. 482. 35 L. ed. 358; Gates v. Allen, 149 33 Whitehead v. Shattuek, 138 U. U. S. 451, 37 L. ed. 804; Oillespie S. 146,' 34 L.ed. 873; Scott V. Neely, v. Riggs, C. C. A., 253 Fed. 943, 140 U. S. 106, 35 L. ed. 358. infra, § 151e. 31 Kelly V. Gill, 245 U. S. 116, 38 Morrow Shoe Mfg. Co. v. New California Statute; but see Brown Eng. Shoe Co., 60 Fed. 341; Atlan- V. AUebach, 156 Fed. 697, N. J. tic & F. E. Co. v. Western Ey. Co., Statute. C. C. A., 50 Fed. 790. 36 Clinton Min. & Mineral Co. v. 39 Alderson v. Dole, C. C. A., 74 Cochran, C. C. A., 247 Fed. 449, Fed. 29. South Dakota Statute ; John A. Eoe- 40 Lilienthal v. Drucklieb, C. C. bling's Sons Co. v. Kinnicutt, 248 A., 92 Fed. 753. In the District Fed. 596, Maine Statute. Contra, of Columbia such a bill may be 2nd Nat. Bank of Erie v. Georger, maintained without statutory au- 246 Fed. 517, N. Y. Statute. thority. Kennedy v. Creswell, 101 36 Alderson v. Dole, C. C. A., 74 tJ. S. 641 (at p. 645), 25 L. ed. Fed. 29, Maine Statute; 2nd Nat. 1075, 1076; s. c, Creswell v. Ken- Bank V. Georger, 246 Fed. 517, 518; nedy, 3 MacArthur, 78. Other au- Minn. Statute. John A. Roebling's thorities in the Distrift Court to Sons Co. V. Kinnieutt, 248 Fed. the same effect are, Dunn v. Miirt, 596, Maine Statute. See Borland 4 Mack, 289; Richardson v. Peiiicks, V. Haven, 37 Fed. 394, 405. 1 App. D. C. 261, at p. 267; Offutt § 82] STATE STATUTES CREATING BIGHTS 573 and to an assignee for the benefit of creditors.*^ The Federal court will follow a State statute which authorizes the in volun- tary appointment of the sheriff as administrator and a suit in his name without his consent by a party interested in the estate.*^ It has been held: that the New Jersey statute authorizing the in- spection, by a stockholder, of the books of his corporation, cannot be enforced by a suit in equity ; ** 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 his insurance company for an accounting.** The Federal court in Virginia refused to follow a State statute which gave the complainant in a creditor's bill a priority over other creditors of the same class.*^ Whether a mortgagee must sue at law or in equity to recover from one who by a covenant with the mortgagor has as- sumed 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.*® When a State statute creating a new lia- bility provides an exclusive remedy, such liability can be en- forced in the Federal courts in no other manner.*'' When a State statute creates a new liability and provides that it can only be enforced in a specified State tribunal, the Federal courts will enforce the liability, and reject the clause respecting the ex- clusive jurisdiction.** Where, however, the suit authorized is one against the State itself, and the statute shows that the leg- islature contemplated that the State court alone should entertain the same, the Federal courts have no jurisdiction.*^ Otherwise, the exceptions made by the State statute will be usually recog- V. King, 1 MacArthur, 312. But « Willard v. Wood, 135 IT. S. 309, see Thiel Detective Service Co. v. 34 L. ed. 210. McCIure, 130 Fed. 55. 47 Fourth Nat. Bank v. Franck- liaosser V. Strawn, 227 Fed. lyn, 120 U. S. 747, 30 L. ed. 825; 139. Flour City Nat. Bank v. Wechsel- 42 Sheffey v. Davis Colberg Co., berg, 45^Fed. 547. C. C. A., 219 Fed. 465 (W. Vir- 48 Davis v. James, 2 Fed. 618. ginia Statute). " Cf. Bowker v. Hill, 115 Fed. 528; 43Maeder v. Buffalo Bill's "Wild Hale v. Tyler, 115 Fed. 833. "West Co., 132 Fed. 280. 49 Chandler v. Dix, 194 U. S. 590, 44 Peters V. Equitable Life Assiir- 48 L. ed. 1129. Infra, § 105. ance Society, 149 Fed. 290. 46Talley v. Curtain, C. C. A., 54 Fed. 43. 574 JUBISDICTION IN EQUITY [§ 83 nized by the Federal court .^^ It has been held : that a suit to col- lect 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 defendant and other stockholders have made a colorable and fraudulent transfer of their stock to another corporation for the purpose of escaping such liability.^^ § 83. State statutes cannot impair the jurisdiction nor regu- late the practice of Federal courts of equity. No State statute giving one of its courts — for example, a court of probate — ex- elusive jurisdiction of a certain class of litigation can impair the jurisdiction of the Federal courts.^ No State statute enlarg- ing the powers of courts of common law can impair the jurisdic- tion of a Federal court of equity.^ No State statute diminishing or destroying an equitable remedy, or in any way regulating the practice in courts of equity, can have any effect upon the juris- diction or practice of the Federal courts.^ Such are statutes requiring a mortgagor to tender the debt secured by his mortgage before filing a bill to redeem the mort- gaged premises ; * requiring a bill to foreclose a mortgage given 60 Harrison v. Remington Paper 3 Boyle v. Zaeharie, 6 Pet. 648, Co., 0. C. A., 3 L.R.A. (N.S.) 954, 8 L. ed. 532; Bein v. Heath, 12 140 Fed. 385. How. (TJ. S.) 168, 179, 13 L. ed. SI Aiiglo-Am. Land M. & A. Go. v. 939, 944; Noonan v. Lee, 2 Black, Lombard, 132 Fed. 721. ' 499, 509, 17 L. ed. 278, 281; Thomp- § 83. 1 Suydam v. Broadnax, 14 son v. Railroad Cos., 6 Wall. 134, Pet. 67, 10 L. ed. 357; Hull v. Dills, 18 L. ed. 765; Cowles v. Mereer 19 Fed. 657; Semmes v. Whitney, County, 7 Wall. 118, 19 L. ed. 86; 50 Fed. 666; Hershberger, v. Blew- Payne v. Hook, 7 Wall. 425, 19 L. ett, 55 Fed. 170; Heaton v. Thatch- ed. 260; Railway Co. v. Whitton's er, 59 Fed. 731. Adm'r, 13 Wall. 270, 285, 20 L. ed. ZMcConihay v. Wright, 121 XJ. S. 571, 576; Smith v. Railroad Co., 99 201, 206, 30 L. ed. 932, 933; and IT. S. 398, 25 L. ed. 437. But see cases cited. Borden's Condensed Massachusetts B. L. Ass'n v. Loh- Milk Co. V. Baker, C. C. A., 177 miller, C. G. A., 74 Fed. 23. Fed. 906, where the State statute 4 Gordon v. Hobart, 2 Sumn. 401. gave relief in certiorari; Western See Klenk v. Byrne, 143 Fed. 1008. Union Tel. Co. v. Trapp, G. C. A., 186 Fed. 114, a suit to enjoin the collection of taxes. § 83] STATE- STATUTES EEGULATING EQUITY PRACTICE 575 to secure a judgment to show that execution has' been issued un- der the judgment' and returned unsatisfied;^ requiring leave to be obtained from a State court before a suit can be brought to erlforee a judgment therein entered ; ® or the presentment of a claim to the comptroller '' or city council * or a county board ' or the termination of an appeal to a specified State coiirt from' the decision of the municipal authorities upon such an appeal,^* before a suit against the city; or at least when the United States are the claimants, the presentment of a claim to an executor before a suit thereupon can be revived against the estate of a decedent ; ^^ forbidding an injunction against the collection of illegal taxes ; ^^ but a State statute forbidding an injunction against the improper operation of a benefit society except at the suit of the Attorney General was followed ;^^ requiring that a bond be given before an injunction can be granted ; or regulating the form of the security then required or the proceedings to en- force the same ; ^* regulating the fees in receiverships ; ^^ deter- mining what shall constitute notice of a pending suit ; ^* author- izing persons to agree upon a statement of facts, and to stipulate that the court take jurisdiction to try a cause and render a de- cree without pleadings ; ^"^ authorizing an appearance by his gen- eral guardian, to bind an infant not personally served with process ; ^' in the absence of a Federal statute, authorizing the 5 Dow V. Chamberlin, 5 McLean, v. N. Barstow Co., 243 Fed. 621. 281. 13 Cummings v. Supreme Council 6 Phelps V. O'Brien County, 2 of Eoyal Arcanum, 247 Ted. 992. Dill. 518. WBein v. Heath,' 12 How. (U. 8.) TGamewell F. A. Tel. Co. v. 168, 13 L. ed. 939; Eussell v. Far- Mayor, etc., 31 Fed. 312. ley, 105 U. 8. 437; 26 L. ed. 1061; 8 Barber Asphalt Pav. Co. v. Mor- Meyers v. Block, 120 XT. S. 206, 211, ris, C. C. A., 132 Fed. 945, 66 C. 30 L. ed. 642, 643. 0. A. 55, 67 L.E.A. 761. 15 Guaranty Tr. Co. v. Galveston 9 Covington County v. Stevens, C. City E. Co., 107 Fed. 311. But see G. A., 256 Fed. 328. . 25 St. at L. 436. 10 Barber' Asphalt Pay. Co. v. l6McClaskey v. Barr, 48 Fed., Morris, C. C. A., 132 Fed. 945. 130, 132. Contra, Jones v. Smith, ' 11 Pond v.;TJ. S„ C. C. A., Ill Fed. 40 Fed. 314; Gamble v. Eural In- 989. dependent ScTiool Dist., 76 C. C. A., 12 In re Tyler, 149 U S. 164, 189, 539, 146 Fed. 113. 37 L. ed. 689, 697; Western Union iTNickerson v. Atchison, T. & S. Tel. Co. v. Trapp, C. C. A., 186 Fed. F. R. Co., 1 McOrary, 383. 3 14 ; City Council of Augusta v. 18 N. Y. Life Ins. Co. v. Bangs, Timmerman, 227 Fed. 171; Speidel 103 U. S. 780, 26 L. ed. 609. 576 JUEISDICTION IN EQUITY _ [§83 examination of a piarty before trial; '^ or, regulating the manner of taking depositions ; ^° providing that a county can be sued only in a specified State court ; ^^ forbidding a foreign corporation to sue. until it has complied with a statutory condition.^* It has been said that proceedings for the foreclosure of a mortgage in a Federal court should proceed upon the ordinary lines of such proceedings in the State courts.^ But it has been held that equitable relief may 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.^* 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.** 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. ' ' *^ 19 Ex parte Fisk, 113 V. S. 713, 33 L. ed. 766. See Chicot County 28 L. ed. 1117; Dravo v. Pabel, 132 v. Sherwood, 148 XJ. S. 529, 37 L. TJ. S. 487, 33 L. ed. 421; Harks ed. 546. Dental Ass 'n v. International T. C. 22 Bank of N. A. v. Barling, 44 Co., 194 V. S. 303, 48 L. ed. 989. ped. 641; affirmed, as Barling v. See infra, § 359. Bank of N. A., C. C. A., 50 Fed. 20 Ex parte Pisk, 113 XJ. 8. 713, 260; ' Vitagraph Co. v. Twentieth 28 L. ed. 1117; Dravo v. Fabel, 132 ^entnry Optiscope Co., 157 Fed. 699. 23 Deck V. Whitman, 96 Fed. 873 ; Knickerbocker Tr. Co. v. Penaoook TJ. 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. 8. v. 50 Boxes and ,,^ ^ „ „ , „ , Packages of Lace, 92 Fed. 601; ^^^- C'»- ^^^ ^'^- ^^^- «««' ^"^f Tabor V. Indianapolis Journal News- «^''^' N^"« ^- ^""''g' ^^^ ^- »• ^24, paper Co., 66 Fed. 423. See infra, *" ^- «^- ^^''• §§359 372. 34 Knight v. Fisher, 58 Fed. 991. 21 Cowles V. Mercer County, 7 ** U. 8. Bank v. Lyon County, 48 Wall. 118, 19 L. ed. 86; Lincoln Fed. 632. Conntv V. Luiiinfr. 133 TJ. 8. 529. 26 Edison Electric Lieht Co. v. TJ. §84] SOURCES OP i+EDBBAIi EQUITY PRACTICE 577 §84. Sources of Federal equity' piractibe. The Revised Stat- ute's provide ■:' "The Supteme Court shall have power to pre- scribe, frota time to time, and in any manner not inconsistent with alhy law of the United States, the forms of writs and other process, the modes of framing and filing proceedings and plead- ihgs, of taking and obtaining evidencCj of obtaining discovery, of pi-oeeeding'to obtain relief, of drawing up, entering, and en^- rolling decrees, and of proceeding before trustees appointed by the court, and generally to ifegulate thb whole practice tb be used in suits in equity or admiralty, by the Circuit and District Courts. " 1 ' The several ' 'District Courts may, from time to titne, and in aii^' m^anner not inconsistent with any law of the United Stated, or with' any rule prescribed by the Supreme Court lirider the preceding section, make rules arid orders directing the returning of writs and processes, the filing of pleadings, the taking of rules,, the entering and making up of judgmen,ts by de- fault, and pother matters, in vacation, and otherwise regulate thgir oyv;n , pracljie^ as may be necessary or, convenient, for, the adyancemeiit of justice and the prevention of ,, delays in proceed- ings."^ Thj^^e statUj^es, ar^; epnsliitiitional' and the rules - tj^^Jis promulgated,: whpn not in,.e,Qnflict with the-.l^ede;ral Constitjiiioii or a statute of the United States, have the force and .effect , of law.* . S; ,E1,, Light Po.,,,53 I^ed. 300,, 313;,, White v.| frol,edo, . S,t. , L.: & K. a R. s. c, 3 C. C. A. 83, per Laconibe, Co., 7^ Fed. 133. ■• , J. See Marion Phosphate 'Co. vi 4 Bank of V'. S. v. White, 8 Perry, 74 Fed. 425. _., Peters, 262, 269, 8 L. ed. 938, 941; §'84." iitf. S. fe. S^, §917. ' ■ Seymour v.' Philips & Colby Const. 2U. S. k S., '^918., This' must Co., 7 Bi'ss. 46'0, Ped. Cas. No. be construed in epnneetion with U. 12689; Northwestern Mut. Life Ins. S. E. S., § 914, requiring the prae- ^"^ ^- ^^^^' C" ^ A., 77 Ped. 374; .. . i- i. 1 „ i Am. Graphophone Co. V. Nat. Phono- tice m; actions at common law to , „ „ , , „ , / ., graph Co., 127 Fed. -349: U. S. v. conform as near as may be to the ^^^^^^ ^^^^^, Co.,' 169 Fed. 184. practice in the State courts of ree- j^ ^^^ ^^^^ ^^^^ ^ Circuit Court of ord; any rule of the court to the Appeals hM no authority to prb- eontrary notwithstanding. Im- mulgate a rule permitting the proa- porters' & Traders'; Nat. Bank v. ecution'of appellate proceedings in Lyons, 134 Fed. 510. ' forma pauperis. Bradford v. Sbuth- ' 3 Wayman v. Southard, 10 Wheat. ern Ry. Co., 195 U. 8. 243, 25 Sup. 1, 6 L. ed. 253; Beers v. Houghton, Ct. 55, 49 L. ed. 178; Se Bradford's 9 Peters, 338, 359, 9 L. ed. 149; tetition^ 0. 0. A., 139 Ped. 518, 71 Fed. Prac. Vol. 1—37 578 JURISDICTION IN RQUITY , , [§84 They bind the Unitpd . S;t,ates ; ^^ , well as individuals,^ Un,der these provisiqns prior to the year 3-912, the Supreme Court had from time to time promulgated ninety four rules, pf equity prac- tice® a,nd most of the inferior courts have also adopted rules of their own. ,. ,, ; , ^ The ninetieth equity rjtile lOf the Supreme , Court, whiph was promulgated in, March, 1842, provided, that, "in all cases where the rules, prescribed by this court or by the Circuit Court do not ^Pply? the practice of, the Gircuit; Court, shall be regulated by the present practice of the High Court of Chancery, ip. England, so far, as the same may reasqnably be applied consistently with the local circumstances and loca,l conveniences of the, district where the court is held, not ,as positive rules, but as , furnishing just analogies to regulate the practice. ' ' The preyious rule promul- gated at the October term, 1822, was: "In all cases where these rules prescribed by this Court or tlie Circuit Courts, do not apply, the practice of the Circuit Courts shall be i-egulated by the practice of tbe High Court of Chaineery in England. ' ' '' Judge Sawyer said: "The rule quoted simply regulates the practice in exei-cising the jurisdiction of the court in those reSpects wherein the rules adopted do not apply ; but the practice of the High Court of Chancery ife to applied, ilot as controlling, but simply as furnishing just analogies to regulate the prac- tice." » 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. ' 0. C. A,, 334; overruling Ileed v. 172. In minor particulars, many Pennsylyania Co., , Q. C. A., Ill Fed. of the courts disregarded them. In 714, 49 C. d. A. 572. See ji/n,fra, 413. C. C, W. D. Tenn, no' entry was 6 U. S. V. Barber Lumber Co., made in the order-book for more 169 Fed. 184. The Equity Eules of than seven years. Electrolibra:tion 1822 are published in 7 Wheaton Co. v. Jackson, 52 Fed. 773, 774. xvn., 5 Li, ed. 875.. The Equity In E. D. Mo., for a long time no Rules of 1842, in 1 Howard, XLI. order-book was kept. Hopkins' The amendments thereto are to be Bules, 10. found in the vplumes of the reports, 6 See Kelley v. 'T. L. Smith Co., published about the tim^, of their C, C. A., 196 Fed. 466. promulgation. For a criticism of 7 Rule xxxm, 7 Wheaton, xill. the practice under, , thege rules, , 8 Lewis v. Shainwald, ,7 Saw. 403, see Monarch Vacuum Cleaner Co. 405. V. Vacuum Cleaner Co., 194 Fed. § 84] SOUECES OF PEDBEAL EQUITY PEACTICE 579 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, ■ otaitted the ninetieth rule, which has just been quoted.'" What practice should be followed in cases whei*e the present rules and statutes and the f ornier deci- sions of the Federal courts are silent has not yet been decided. The prudent practitionei; will,in such case f pllow the chancery practice in, England as, it! existed in 1842 or previously.^',. The established practice approved by the Supreme Court, is still ,in foi;ce except as changed by the new equity rules or the rules of the District Clourts.", It has, been said, however, that "It would seem to be the spirit of these new equity rules that they were drawn ]by tlje Supi;'eme (j,ouj:t yfith the ifl,tfint .q| leaving the .judge free to adjust ,ipatters in the, interests of substantial justice, as he se^s it, unharaper.ed, by precedent and,, by techiiicial definitioAs and , distinctions, " '2 Since the alterations, in, the nevi^,, rules are based, to a, large extent upon provisions in the English Rules of, 1,883, ; which in 1;h]eir,tura were suggested by ,the. New York Code of I?roced.ure, written, by David Dudley Field.,, where , the construptipn of the equity rules of 1912 is doubtful, the decisions of the English coiirts since 1883 and, of the courts, of New York since, 1848 should be consulted." 9 The first Ameriqan edition of far as ppssible to mould, procedure Daniell's Chancery Practice and the so as to meet the exigencies of the second American, edition of Smith's case. Davies v. Andre, 24 Q. B. D. Practice, both, of which were pub- 598, 607. , They must not give to lished in 1837, are the authoritpjtive the rules a pleader's construction, works which, l^est explain the Bug- but a construction consistent with lish chancery practice in 1841. common sense. Edwards v. Low- Note by Mr. justice Bradley in ther, 24 W. R. 434. "Practical Thomson, v. Wooster, 114 U. S. 104, rules ought not to be construed ac- 29 ,L. ed. 105, 107. cording to mere grammar, if that 9*226 tr. S. 629. which is an absurdity from a busi- 10 MaejJer v. Buffalo Bill 's Wild ness point of view is thereby pro-. West Co., 132 Fed. 280. , duced. ' ' . Hannay v, Smurthwaite 11 .Individual, Drinking Cup Co. v. (1893), 2 Q. B. 412, 420, per Esher, TJidon News Co., C. C. A., 250 Fed. M. R. Where one rule is general 625. and another specific, the latter 12 Sheeler v. Alexander, 211 Fed- should prevail. Cavendish v. Strutt 544. Alien Enemy Act, 40 St. at L. (1904), 1 Ch. 524, 526, 527, 531; 411. Oomp. St. § 31153Aa-3115yo,i. Locke v. Wliite, 33 Ch. D. 308. 13 It is the duty of the courts as CHAPTER III. PERSONS WHO MAY BE PLAINTIFFS OB DEFENDANTS, IN A SUIT IN EQUITY, § 85. General rule as to persons ciapable of being plaintiffs. All persons may file a bill in equity in their own right, except alien enemies, infants, idiots, lunatics, married women, foreign corporations Who halve 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.' 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. ^ § 87. Alien enemies as plaintiffs. In the absence of a statute upon thb subject, subjects. of a country at war with the United' States cannot sue in the State or Federal courts before the con- clusion of peace, unless they are residents of this country or within the jurisdiction of four allies.' The Act of October 6, 1917> § 85. 1 Infra, § 88. It Has been session until tlie judgment of quo h^ld that a company wliieh has not warranto has been obtained against been organized as a corporation in it. TJtah Light and Traction Co. v. complia;nce . with the statute regu- U. S., C. 0. A., 230 Fed. 343. lating the subject cannot bring a § 86. 1 Ames v. Kansas, 111 XJ. suit in equity because of the in- S. 49, 28 L. ed. 482 ; XT. 8. v. fringement of a patent although it Louisiana, 123 tJ. S. 32, 31 L. ed. might as a de facto corporation en- 69; supra, ^IZ. Tor the jurisdic- force in the courts contracts with tion of suits brought in the name parties who had recpgnized it as of a State ex relatione, see supra, having corporate privileges. Am. 42. Ball Bearing Co. v. Adams, 222 Fed. 2 Wisconsin v. Pelican Ins. Co,,, 967, reversed Cardo Co. v. Adams, 127 TJ. S. 265, 32 L.' ed. 239. C. C. A., 231 Fed. 950. Such a de- § 87. 1 Wilcox v. Henry, 1 Ball., feet, however, will not prevent the 69, 1 L. ed. 41; Crawford v. I'.he corporation from protecting its right William Penn, 1 Pet. 0. , 0. 106 ; to property of which it is in pos- Mumford v. Mi^mford, 1 Gall. 3^6; 580 §87] ALIEN ENEMIES '581 agiainst Trading r with the Enemy provides: "Nothing in • this Act shall be deemed to authorize the prosecution of any suit or action at laiw or in equity in any court %ithin the; United States by: an enemy or ally of enemy prior to the end ol.the war, except as provided in isection ten' hereof: Provided, however, that an enemy or alien enemy licensed to do business under this Act may prosecute and maintain any such suit or action so far as the same arises solely out of the business transacted with' the, United States under such license and so long as stfch license remains in lull force and effect: And pfdvided further,. T^hat an enemy or ally of enemy may defend by counsel any stjit in equity or action at law "which, may be brought against him. . , i -"Receipt of notice from the President to the effect that he has reasonable ground to believe that any person is an enemy or ally of enemy shall be prima /aciei defense to any one receiving, the same, in any suit or action 6t law or in equity brought or main- tained, or to any right or set-off or recoupment asserted by, such person and based on failure to complete or perform since , the be- ginning of the war any contract or other' obligation.^ " . > , . A -resident, of the United States,? at least if he has declared, his intention of becojning a citizen thereof, does not lose his right to sue in the courts of the United States because he is still a subject or, a, citizen of , the enemy.* ilf a compla,iii^n,t p^Qifrae^ ap^;alien enemy after a suit has bee,n begun, the defeiise ,raay be interposed by answer.^ Tlae effect of such a defense is ; then, however.. Sx parte' Grater, 247 Fed. 882; Sup! 944, aflarming ld9 N. Y. Sup. Clarke v. Morey, 10 Johns. (N. Y.) 304; Kranehanake v. Aeme Mfg. Co., 69; 2 'Kent's Coin. 63. Where prae- N. C' 95 S: E. Rep. 851. '■ ' ' tieally all tlie stock of a New Jersey On the general subject see a coi^oration was' owned by citizens geries of articles on The War and of Germany; but a majority of the tjje Law by John Meriin'an 'in Tlie directors were residents of the TTnit- Docket 1919 1920 ' ' ' ed States; the Supreme Court of 8 40 St. at t: '416, eK, 106, §7, New York held that it had right v, -,, „ ' ''J,'. •, Aiii-iJ j, i, ,. ,, •■ subd. (b). Comp. St. § 3],15%d. to sue there, pending the war. _ „, ' „„■ ' ' , ~ , Fritz Schultz, Jr., Co v. Fraines ''^^« 0'^°P«' ^55 Fed. ,132; Plet- & CO., App. Tm. 164 N. Y. Sup. ^^""^^^S, Holthaus fi^Co. v., I. J. 454;- affirming McAvoy, J. As to the Salmon & Co., 241 Fed., 605; righ't of a.lien residents to sue, see Stumpf v. A. Sohreiber Brewing Speide! V. N. Barstow Co., 243 Fed. Co., 242 Fed. 80. ; ,; i- 621; Arndt-Ober v. Met. Opera Co., * The Oropa, 255 Fed; .132. — App. Div. N. Y. — ; 169 N. Y. SBell v. Chapman, 10 Johns. (N. 582 CAPACITY TO SUE [§ 88 merely to suspend the cause of action and suit, not to dismiss the bill.* If the defendant' is an alien enemy; afteir the com- mencement of the suit,' in the absence of a statute upon the subject, the proper practice ordinarily is for the court to enter- tain jurisdiction ahd then to suspend proceedings or otherwise maintain the stmtus quo until, through the restoration of peace or otherwise, adequate presentation of his defense becomes pos- sible.* The subject is regulated to a certain extent by the Trad- ing with the Enemy Act.® The Act against Trading with the Enemy further provides: "Any enemy, or ally of enemy, may institute and prosecute suits in equity against any person other than a licensee under this Act to enjoin infringement of letters patent, trade- mark, print, label, and copyrights in the United States owned or controlled by said enemy or ally of enemy, in the same man- ner and to the extent that he would be entitled so to do if the United States was not at war : Provided^ That no final judg- ment or decree shall be entered in farOr if such enemy or ally of enemy by any court except after thirty days ' notice to the alien property custodian. Such hotice sha;ll be in writing and shall be served in the same manner as civil process of Federal courts."" §88. Foreign corporations. The State statutes cannot de- prive a foreign corporation from suing in its courts upon a con tract connected with interstate commei:ce.^ To what extent a State statut,e can deny a corporation of another State, not so en- Y.), 183; Watts, Watts & Co. v. 8 Watts , Watts & Co. v. TJnione XJnione Austriaea, 248 U. S. 9. Austriaca, 248 TJ. S. 9. « HuteWnson v. Brock, 11 Mass. 9 40 St. at L. 420, § 10, Comp. 119; Parkinson v. Wentworth, 11 St. § 3il5%ee. See mfra, § 96k. Mass. 26; Levine v. Taylor, 12 Mass. 10 Act of October 6, 1917, as to 8 ; Hamersley v. Lambert, 2 Johns. Trading with the Enemy, ch. 106 § C. (N. Y.) 508; Ex parte Bouss- 10, 40 St. at L. 420; Comp. St. maker, 13 Vcs. 71; Wilcox v. Seiiry, 3115%ee (f) and (g). See infra, ] Dall. 69, 1 L. ed. 41; Story's Eq. §.96k. PI., § 54. But see Mumford v. § 88. 1 International Textbook Co. Mumford, 1 Gall. 366. v. Pigg( 217 TJ. S. 91, 112, 54 L„ed. 7 Samuel M. Kintner and' Harry 678, 687 ; Buck Stove Cq- v. Yickers, M. Barrett v. Hoch-Frequenz-Ma- 226 U. S. 205, 214, 57 L. ed. . schinen Aktien-Gesellsehaft Pur Drahtloss Telegraphie, N. Y. L. J., Jan. 1918. § 89] MABBIEp WOMEN 583 gaged, equality of treatment with individual citizens, in respect to the right to sue and defend in its courts, is a doubtful ques- tion.^ It may forbid a corporation of another State from making a contraeti within I its borders which, is not connected with inter- state commerce, until it has complied with certain reasonable statutory provisions, such as the filing 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 conditions have been complied with, shall be vpid ; *i but no State statute can deprive such a, corporation of , the right to sue in a court of the United States held within, such State.* And where the State stat- ute provided, "No foreign, stock corporation doing business in this state shall maintain any action in this state upon any con tract made by it in this state, unless prior to the making of such contract it shall have procured such certificate";" this did not prevent the recovery upon such contract in the Federal court there held.^ ' ; ' , i,;, -; , r - §89. Married women as pkintiifs; A married woman orig- inally 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 ; ^ or unless the suit concerned her separate property, when she was obliged to sue by her next friend.*' The next friend, however, was chosen by herself;' and the husband was then usually made a party defendant, that he might have ah opportunity to assert ahy claim he might have 2 International' Textbook Co. v. • posed by the defendant and allow it Pigg, 217 TJ. ,Si 91, 112, 54 L. ed. , as a set'OfE against the plaintiff's G78, 687. demand, although it could not ren- S Diamond Glue Co, v. TJ. S. ] INFANT PLAINTIFFS 585 By the old Chancery practice, an infant could onlyi sue by his next friend,^ who might beany person' that would undertake the suit in his behalf, subject, however, to the costs and the censure of the ijourt, if it were improperly brought.* The next friend, at any time, may be removed by the' court either sum- marily or after a reference, if it seemed for the best interest of the infant to appoint another.'" This is usually done if he is interested in the suit.' It was doubtful whether insolvency and consequent inability to respond for costs was, in itself, a ground for the next friend's removal.' That might, however, be a reason for an order directing him to give security for costs.^" The court might, at any time, order a reference to a master, to determine the propriety of a suit; and> if it ap- peared toi have been brought against the infant's interest, would stay iproceedings in it or i^ismiss the bill, with costs to be ipaM by the next friend.^^ This eould^be done even without a ref- erence.^^ No such reference would, 'it seems, be ordered at the request of the next friend himself v" unless there were another 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 dismissed.^* An application to dismiiss a bill as im'properly filed on behalf of an infant might be made by a -person "as next friend for the purpose of this application,"" or by a defendant to the bill.^* It seems that any motion clearly for the interest oh an infant complainant could be made. by a next friend for the S Rule' 87; Story's' Eq. PI., §57; 9 Anon., 1 Ves. Jr. '409. ' ^ Dudgeon v. Watson, 23 Fed. 161; 10 Fulton v. Eosevelt, 1 Paige (N. BradWell v. Weeksj 1 J. Ch. (N. Y.) Y.) , 178, 180, 19 Am. Dee. -409; ' • 325. ■ ' 11 Da Costa v. Da Costa, 3 P. '6 Campbell v. Campbell;-. 2 M. & Wms. 140; NaMel: v. Hawkins, 2 C.'25, 30;' Sale v. Sale, 1 Beav. 586; M. & K. 243; Saile v. Sale, 1 Beav. Starten v. Bartholomew, 6 Beav. 586. See King v. McLean Asylum 143. of Massachusetts General Hospital, rNalder v. Hawkins, 2 M. & fe. 64 Fed. '325. ■ 243; Eussell v' Sharpe, 1 Jac. & 12 Sale v. Sale' 1 Beav. 586. ■■' W. 482;' Jarvi's v. -Crozier, 98 Fed. IS ffoHes v. Powell, 2 Met. 141. ■ ' 753,755. ^ ^' l4Taner V. Ivife, 2 VesI-Seii.lWe. ■SJarvis v. Croziei-, 98 Fed. '753, IB Guy, v. Guy, 2 Beav. 450'; ' - 755. See in re Corsellis, 50 Law ISFox v. Suwerkrop, 1 Beav.'-SS.'l. T. N. S. 703. ^- --V-.!'- "■■:■;.••■■■'■ 586 CAPACITY TO SUE [§'90 purpose of the application, wlien the next friend who filed the bill refused to move.^'? If two suits were instituted on behalf 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.** A bill might be filed by a next friend to them.^'' W^ei> a, bill was filed on behalf of an in- fant, his coming of i age ,did not .aba,te,the suit; but he might, then elect whether , he .would 'proceed; with it or not.^* If he chpsg to go Qn.|With the i cage,, all jf^irtlier: proceedings could be carried on without apy amendment or the filing of a supple- mefltalbill-^. HJCiwas then li,ablie for all costs of the suit, as if he ha.(i!fil6(i,t^eibill( after he.ipfl,me,,of age.'" ; Otherwise, he was npt personally chargeable;, s??ith ,cps.ts; *^ , unless he made a mo- tion to dismisSithe,biU; whieh it seemg,e,ovild only be done upon 1;he payment of costs by him^e)^^^ if.hecouldinot establish that thpi hill was improperly filed : by his . next friend.^^ If the next friend, died,, duripg 1;he; infant's, minority, and the latter took; no step in the ea^e .aftei;, he had comp.iof age, the defendant might ,, have, the , bill disraissed;;;but without costs, since there would then be no, one living; who was liable to pay theni.^* The suit, is brought, in thcj, name iofn the infant, not in that of the next friend;*^ i and the infant's citizenship is the test of the jurisdiction.*^ Where thei bill shbwsi that the suit was brought by a guardian in a'repMsentative capacity, but by the title it appears that' he sues individually, '^the title, if necessary, may be amended.'''' A guardian ad litem for an infant, although appointed in a State court 'before the removal of the cailse, can- hot without the approvM '6f the court, bind the infant by a con- tract concerning the amount of the attorney's fees.'* §91. Suits on behalf of idiots^ lunatics, and persons of weak mind. Idiots 'find luhatibs s'iie - by their committees or guardians, if they have any, otherwise by neixt friends.^ It is the usual practice' to join th'em as plaintiffs 'with theii* represen- tatives, though it might be held unnecessary to do so when one 27 Ibid, 34 Morgan v. Potter, 157 TJ. S. 28Gijy V. Guy, 2 Beav. 460. ^ 195, 39 L. ed. 670. 29 Hoffman's Oh. Pr. 60; Daniell's ' 36 Wophidge v. McKenna, 8 Ped. Ch. Pr. (2d Am. ed.) 102. 650 ; supra, § 44. 30 Daniell 's Ch. Pr. (2d Am. ed.) ' 36 Ibid. 102. 37Pulver v. Leonard, 176 Pad. 31 Walring y. Crane^ 2 Paige (N. 586. Y) ,79, 21 Am. Dec. 70. 38 Ryan v. Philadelphia & Eead- 32 Waring v. Crane, 2 Paige (N. ing'Coai & Iron Co., 189 Fed. 253. Y.) 79, 21 Am. Dec. 70. §91. IRule 87; Hoffman's Ch. S3 Turner v. Turner, 2 Stra. 708. Pr. 61, 588 CAPACITY TO SUB [§'91 has a committee authorized by statute to sue in hiS name.^ If ■the interest of the committee be adverse to that of his ward, the lattej shbuld sue by a next friend.* Although the practice is un- settled, it would be advisable to have the next fri'eild appointed by the court.* Whefe, £|, volunteer applied for the writ of habeas corpus on behalf of a person whom he alleged to be wrongf ttUy confined as a lunatic, the court appointed another guardian ad Ziiem'with the direction that he examine the facts 'and use his own I discretion in deteirininirig whether to continue the proceed- ing.^ If a plaintiff become a lunatic after the institution bf ' a suit, a supj^lemental bill may be filed in the joint names of the' lunatic and of the coiiimittee of his' estate, ■ ADMINISTRATORS 589 the court.^" 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.^^ If a bill has been filed in the name of a plaintiff, Avho, at the time of filing it, is in a state of mental incapacity, it may, on motion, be taken off the file,^* but it has \>een held that a bill cannot be dismissed upioii the motion of the defendant because the complainant was in filing the sam^e dominated by anothier person, to such an extent that she was not free to exercise her. will, when the cbm- plainant does not unite in the motion.'^ If, however, after a suit, has been properly iristitiited^ a plaintiff becomes imbecile, 'the bill cannot for that reason be taken off the fiie.^* ' §92. Capacity of foreign, executors and administraitors to sue, Foreign executors and administrators, under which term are included those appointed in other States than that whpre the court is held, cannot sue until tiiey haye taken out ancil- lary letters; pf adnjinistratipn,^ unless the State statute au- thorizes suqh suit; in which case the Fed^al court will follow the Stflite practice.^ Tl^is nile^lqrbids an '.actipn by ,a fpreign administrator without ancillary letters to recover damages for the death of his intestate within the State where th6 suit was 10 Howard v. | Skinner, 87, ^Md. v. Porter, 41 Fed. 68; Johnson v. 556, 40 L.E.A. 753; Pyott v.'Pyott, Powers, .'iS^ TJ. &. 156, 158, 35 L. 191 111. 280. , ,, I ,; ed^ 112, 113; Be Kingaley, 160 Ped. llWartnsiby v. Wartnaby^ Jao. 275; J. B.' & X M. Cornell Co. v. 377; Owing'^ pase, ,1 Bland (Md.j, "Ward, C. C. A., 168 Fed. 51,; Dodge 370, 373, 17 Am.^|I)e(;. 3li; Stbry.'s v. Town o'£ North Hudson, 177 Fed. Eq. PI. §66l. 986; Watkins v. Eaton, C. C. A., IZWartiiaby y, Wartnafby, Jae. 183 Fed. 384; Klug v. Martinsburg 377;,Story,'3-Eq,. PI., §66. ' Power Co., 229 ;Fed. 861; St. Bern- is Spe'ckart V, Schmidt, C- C. A., ard v. Shane, 201 Fed. 453 ; Old 190 Fed. ,499. ,, ^"""^"ipp, Ti:ust Co. v. First Nat. l4Wartnaby y, Wartnaby, Jae. Bank,' 252 Fed. 613 (a curator). 377, ],'.' 2, Hayes V. Pratt, 147 U.S. 557, §92. iFenwiok v. Sears, 1 37 'L. ed. S79; Beaumont v. Beau- Cranph, 259, ^ L. ed. 101; Dixon y. mont, 144 Fed.. 128, under New Jer- Eamsay, 3, Qra,nch, 3l9,, 2 ti^ eii. sey Statute; Provident Life & Trust 453 ; - Doe , V. , McFarland, 9 Cranch Co. y. Fletcher, 237 Fed. 104 (New i5,l, 3 L. ed. 68^ ; , Kerr v. Moon, 9 York Statiitp) ;. ,Publio Service Elec- Wheat, 565,. 6, L. ed. 161; Mason trie Co., v. Post, C. C. A., 257 Fed. y. Hartfofd, ProyidBnee & Fislikill 933 (New Jersey Statute). B. Co., 19 Fed. 53; Duchesse d'Auby 590 CAPACITY TO SUE , ^ [§;9>^ brought,' under the Federal Employers Liability i Act,* The action may be brought by an ancillary admimstrat^r appointed in a State where the employee was not domiciled.,'', The omis- sion is cured by the issue of ancillary letters a,t any time befoire the hearing.^ An act of Congress authorizes, them to sue with- , out ancillary letters in the , District of Colximbia.T It has; been held: that a foreign administrator, ^without ,anqillary|,, letters, may sue to recover damages foi* the death of his inteptate, which took place within the State of his appointment, when the cause of action arises under a statute of such State; ' but , that a for- eign administrator, appointed in tlie 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 appdintmeni' was made and the suit is brought.' A foreign executor may siie without ancillary letters when the title is vested in him as trustee tiy devise.^" A foreign executor or administrator, without ancillary letters, may sue to recover the proceeds of the decedent's estate, which is in the hands of an agent of such personal representative.^^ § 93. Capacity of f ol-eigid receivers to sue. Ordinarily a re- ceiver appointed by a foreign court cannot sue to collect a cause of action that belongs to the corporation; ^ even when he brings 3J. B. & J. M. fiorneU Co. y. 10 De Forest vi Thompson, 40 Fed. Ward,, p. C. A., 168 Fed. 51; tjodge 375. ' V. Town of North Hudson^ 177 Fed. 11 Moore v. Petty, 0. C. A., 135 986. V ^^^- ®^*- 4 Anderson v, Louisville & N, E. § 98. 1 Booth v. Clark, 17 How. Co., C. C. A., 210 Fed. 6^9. ' 322, 15 L. ed. 164; Hale v. Allin- ■ 5 St. Bernard v, Shane, 201 Fed. son, 188 TJ. S. 56, 47 L. ed. 380; 453. Great Western Mining & Mfg. Co. 6 Hodges V. Kimball C, C. A., 91 v. Harris,' 198 TJ. S. 561, 49 L. ed. Fed. 845. 1163 ; Sterrett v. Ind. Nat. Bank, 7 24 St. at L. 431; Overby y. 248 XJ. S. 73; Burr vl' Smith, 113 Gordon, 177 U. S. 214, 44 L. ed. Fed. 858; Hilliker v. Hale, d. C. 741; Brownson v. Wallace, Fed. A., 117 Fed. 220; eertioran denied Cas. No. 2,042, 4 Blatchf. 465. 188 V. S. 739, 47 L. ed. 677; Ed- 8 McCarty v. N. Y., L. B. & W. R. wards v. National Window Glass Co., 62 Fed. 437., ' jobbers Ass'n, 139 Fed. 795; Co- SMaysville Street E fi. & Trans- veil v. Fowler, 144 Fed. 535. It fer Co. V. Marvin, C. Cr A., 59 Fed. has l)een held: that this rule applies 91 ; Brooks v! Southern Pao. Co., to a Teceiver appointed by a ITnited 148 Fed. 986. States court of bankruptcy. In re 93] FOREIGN RECEIVERS AS PLAINTIFFS 591 a suit in the name of the corporation itself.*^ A receiver can never sue in a foreign court, to enfore^ a cause of action, upon which he could not sue in the courts of the State where he was appointed.' It has been said:' that a defendant to the suit, iu' which the foreign receiver was appointed, cannot, if he has been duly servedwith 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.* The fact that the court, which appointed the receiver, gave him leave to sue in another district, does not authorize him there to sue without an ancillary appointment.*' It has been held that a foreign receiver cannot obviate this objection by bringing a suit in the name of the corporation,* noi: by obtain- ing ex parte an order froin the court in which the suit is brought and obtaining a ratification of the: appointment by such court.'? It has been said : that when the foreign receiver is the statutorj- successor of a corporation, he can suC in 'a foreign court without an ancillary appointment.' He can also do §o when ^he has received a voluntary assignment National Mercantile Agency, 138 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. 986. 3 Hale V. AUinson, 188 U: S: '56, 47 L. ed. 380. 4 Burr V. Smith, 113 Fed. 858. ' 6 Fowler v. Osgood, 4 L.B.A. (N.S.) 824, 141 Fed. 20. 6 Great Western Min. & Mfg. Co. V. Harris, 198 V. S. 561, 25 Sup, Ct. 770, 49 L. ed. 1163; Fairview Fluor S;^ar & Lead Co. v. Ulrich, C. C. A., 192 Fed. 894; Strout v. tTrlited Shoe Machinery Co., 195 Fed. 313; Fair- view Fluor Spar & Lead Co. v. Ul- rich, C. C. A., 192 Fed. 894; 35 St. at L. 65. See infra, U 304. 311. 7 Fairview Fluor Spa;r & Lead Co. V. Ulrieh, C. C. AL, 192 Fed. 894. SEelfe V. Bundle, 103 V. S.'222, 26 I^. 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 f orfeign jurisdiction) ; Bemheimer v. Converse, 206 tJ. S. 516;- Avery v. Boston Safe Deposit & Trust Co., 72 Fed. 700; Rogers v. Eiley, 80 Fed. 759; Hale v. Hardon, 89 Fed. 283, 287; Hale v. Coffin, 114- Fed. 567; AndBrson v. Louis- ville & N. E. Co., C. C. A., 210 Fed. 689. Irvine v. Baker, 225 Fed. 834; Hopkins v. Lancaster, 254 Fed. 190, holding that the Federal Court is bound by the decision of the courts of the State which ap- pointed the receiver as to the in- terpretation of the statute. Sterrett V. Second Nati Bank, 248 U. S. 73. But see Hale v. AUinson, 188 U.S. 56, 69, 47 L. ed. 380, 889. 592 LIABILITY TO SUIT i [§94 of the assets of the insolventi; ' and where the statute vests in him the; right to sue for and eolleet an assessment. upon the s-tock- hplders, he is a quasi assignee, and; can maintain such suit in another jurisdiction.^" Where he has recovered a judgment in the State 6f his appointment he may maintain an action there- upon in another jurisdiction as a judgment creditor and his description of himself in his pleading as receiver may be disre- garded as surplusage ; ^^ but it has been held that in such a case, he cannot sue to recover equitable assets until he has obtained a judgment in the State where they are situated,^* 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 i is located.^^ It seems that a receiver, appointed by, a State court, can sue in the Federal court in the same district.^* §94. Who may be defendants. All persons may be made defendants, except the United States, without their consent,^ or a Territory thereof; ^ foreign States and sovereigns for aCts done in a political : capacity.; ^ "one of the United States ibyi citizens of another State, or by citizens or subjects of any foreign State; * '' receivers appointed by State courts without the leave of such courts ; * and foreign executors and administrators,^ un- less they have assets within the jurisdiction. of the court, where 9 Hawkins v. Glenn, 131 U. 8. 433, 25 L. ed. 209 ; Kansas v. U. ,S., 319, 33 L. ed. 184; Lewis, v. Clark, 204 V. S. 331, 51 L.ed. ;510, mfra-, C. C. A., 129 Fed. 570; (where the §§95-97. assignment was made T)y a foreign 2 Kawananakoa v. Polyblank, :2Q5 receiver^ to a receiver appointed in TJ. S. 349, 51 L. ed. 834. ; ^ another State, who was allowed to 3 Duke ' of Brunswick v. King of sue in a third State). Hanover, 6 Beav. 1; Hullett v. King 10 Converse v. Hamilton, 224 U. S. of Spain, 2 Bligh N. R. 31. . 243, 56 L. ed. 749; Irvine v. Put- 4 Eleventh Amendment to Consti- nam, 190 Fed. 321. tutiou. 11 McBride v. Oriental Bank, 200 6 Barton v. Barbour, 104 TJ. S. Fed. 895. 126, 26 L. ed. 672; Thompson v. 12 Trotter v. Lieman, 199 N. Y. Scott, 4 Dill, 508; Express Co.. v. 497. Railroad Co., 99 U. 8. 191, 25 L.ed. 13 Grant v. Buekner, 172 TJ. ; S. 319. See ^ZU,. infra. • " 232, 238, 43 L. ed. 430. « Vaughn v. Northrup, 15 Pet. 1, ItPoltfer V. Sabln, 149 TJ. 8. 473; 10 L., ed. ^639; Courtney v. Pradt, 37 h. ed. 815. 196 TJ. 8. 89,. 49 L. eH. 398; s. C, §94. ICarr v. TJ. 8., 98 U. 8. 135 Fed. 818;-L^i8 v. Parrish, C. 95] UNITEP STATES ^Si DiEPENDANT 593 the bill is filed,!' in, wl^icil, case they are liable, as trustees^ to account for the same,, to those, entitled theretOi^ Whether a suit can be broughit.. against, the President of the United .States is undecided.' ; , §95. The United States as a defendant. In general. The United States cannot be suedi fins, any court without their eon- sent.^ ,A Territory of the United States, such as the Territory of Hawaii,* or Pprto RioOj? has the same immunity. The Dis- trict of Columbia has not.* Neither has .the city of Manila in the Philippines.* Byen if there is no remedy, adequate .to .the C. A., 115 Fed. 285; Skiff v. White, 127 Fea. 175; Story's Eq. PI., § 179,' infra, § 109. ' ' ' 7 Sandilands v. Inness, 3 Sim. 363; MeNamara v. .Dvwyer,;7 Paige (N. Y.),,2cl9, ,32 Am.,, Dec. ,627; CampbeU v. Tousey, 7 Cow. .(N. Y.) , 64, mfra, § 109. ' ■ ' ■ ; SLewis V. Parrisli, C. C. A., 115 Fed. 285, i7i/ra, § 109. ' 9 See Mississippi v. Johnson, 4 Wall. 475, 18 L. ed. 437; People ex. rel. Broderiek v. White, 156 N. Y. 136, 4 L.E.A. 231, 66 Am. St. Rep. 547, and cases cited. §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. ZKawananakoa vr Polyblank, 205 tr. S. 349, 353, 51 L. ed. 834, 836; per Holmes). J.: "Sdme 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 before the o^ays of Hobbes. (Leviathan, c. 26, 2.) A sovereign is , exempt from suit, not because of any formal con- ception or obsolete theory, but on the logical and practical ground that there can be no legal right, as against the authority that makes the law on which {he "right depends^ 'Car on peut hien reoevoir loy Fed. Prac. Vol. 1—38 d'autruy, ma/i^ il est impossible par nature de se donner loy. ' Bbdin, Eepublique, 1, e. 8. Ed. 1629, p. 132. Sir John Eliot, De Jure Maiestatis, c. 3. Nemo siu) statuto ligatur necessitatwe.. ^fialdMS., De Leg. et Const.. Digna Vox (2d.ed., 1496, foi.' 51b. Ei. 1S39J "foi. ,61)'. As the ground is thus logical and practical, the dcictrine! is riot coii- fined to powers that are sove'ileig^ in the full sense of j,udicial theory, but naturally is extended to those that in actual administration ! 7 Wall., 152, 154; Walker v. V,. g.^ Schwalby, 162 IT. S. 255. 139 Fed. 409. A more liberalruie' 17 Stanley v. Scht^alby, 162 til S. against the government is siig- ' 255,' ^72. Jji/ra, § 105'.' ' gested in Fifth Nat. Bank y. Long, '18 Gould Coupler Co. t. TJ. S. ShiJ)- 7 Biss. 502 ; Elliot v. Van Voorst, 1 ping BcjardI Emergeney, , Fleet fior- 3 Wall., , Jr. 299; Briggs v. The poratiou (S. D. N. Y.), 261 Fqd. Light Boats, 11 AUen (Mass.), 716. Bpt see , Commonwealth Fur- 157; Stanley v. Schwalby, 162 TJ. S. nace Cdrp'u v. Landis (E. D. Pa.) 255, 272. In' TJ. S. V. Ansonia Brass 261 Fedj* 440. '' ' '" & Copper Co., 218 TJ. S. 452, it was 19Muir v. Louisville & N. B. Co. held that certain stipidations made 247 Fed. 888; Coeker v.N. Y.' & O. by a District Attorney of the TJnited ^7- C!?,, 253 |I]ed. p76; Harnio^ y. States, in order to obtain possession fennsylvaiiia E. Co,, 254 Fed. 748; of vessels seized by judicial proceed- infra, § 96i. ings while in the course of construe- ' 20 'WitlierspOon & Sons v; Postal tion, should ilot be construed as Telegraph & Cable Co;, 257' Fed. depriving the Government of any. I 758. See infra, § 96j. , rights asserted under the contracts 21 Commonwealth, Furpace , Corp "n for such construction. v. Landis (B.,D, Pa.)^ 261 Fed. 440. S96 PLAINTIFFS OR DEFENDANTS IN A SUIT IN EQUITY [§ 95 at' law,' suits in equity and proceedings in admiralty, based on causes oif'^ction arising out of the possession, use, or operation by tlie President of the railroad or system of transportation of any carrier (under the provisions of the Feideral Control ^ct, or the Act of August 29, l9l6) of such character as prior lo Federal ' control could have been brought against such carrier may, after the teriniriatiOn of Federal control, be brought against an' ageiit d'esigiiated by the President for such pUrposej whifeh agent shall be designated by the President within thirty days after the' passage of this act'! Such actions. Suits, or proceed- ings may, within the periods 'of limitation now prescribed by State or Fedferdl statutes but 'iibt later than two years from the date of the passage of this act, be brought in any court which but for Federal control would have had jurisdiction' of the cause of actibn; had it arisen against such carrier. ' i ''Process may be served upon any agent or officer of the car- rier operating such railroad or system of transportation, if such agent , or (oflScer is authorized by law to be served with process in ptoeeedings brought; against- such carrier and if a contract has been made, with such carrier byior through the President for the conduct of litigation arising out of operation during Federal contirol.! If no such contraict has been made' process may be served upon such agents or 'officers as may be designated by or through 'the President. The' agent designated by the President under subdivision (a) shall cause to be filed, uppU the ter- mination of Federal control, in the office of the Clerk, of each I)isferi'Ct iCpurt of rthe United States^ a statement inamingi all carriers with whom he has contra&ted for the conduct of litiga- tion arising out of operation during Federal control, ahd a like statement designating the agents or officers upon whom process may be served in actions, , suits, aud proceedings arising in re- spect to railroads or systems of transportation with the owner of which no such contract' has been, made; and such statements shall' be supplemeiited from time to time, if additional contracts are made or other agents oi officers appointed. ," Compl9,ints praying fof reparation on account of damage elaimed: to.have: been caused by reason of the collection or en- forcement byi'M- through the President during the period of Federal control of rates, fares, charges, classifications, regula- tions, or practices (including those applicable to interstate, for- §'S5] uWlTfe'STlVTESAs'BilFfeijbANT ' ' 597 eign, or intrastate traffld)'wMch were unjust, unreasonable, un- justly discriminatory, or unduly or unreasonabljr prejudicial, orotlierwiEie in* violation '(^tli'eliiterstate C6mmerc~e Act, may be filed with the Commissioil, -within oh^ ye'ai*' after the terini- nation of Federal control, a'^aiiist' the agent designated" by the President lindet'subdiTisitiii' '(a)' J naming in the petition the railroad or systelh of transportation against which such eoih- plainit w'oiild have been brought if sUch railroaid or System had not been u'nd^r Federal 'bohtrol at the tiiii^thfe'' matter com- plained of toolr place; The' Commission is hereby given juris- diction 't6' hear and decidfe such cbinplaiiits in the fflahriei- pi'6- vided in the Intei-'state Commerce Act, and all nbtices and or-' der's in such proceedings '"slifeiH be' served ii'j^bh the agfeiit desig- nate by 'fte'President tinder ktibdi'^M'dn w:" '""'■ ' "Actions, suits, ii)i*oceedings,' and l^epkration claiiiis,' of the charafeter ' above described pendin'g at the termination of Fed- eral control shall not abate Itif'' reason off such termination, b'tif may be' prosecuted to final 'judgment, substituting the agent' designatfed by the President uidet subdivision ( a) . ''Final judgments, decrees', and awards in' actions, suits)' 'pro- ceedings, or reparation claims, of the eharicter above deSeribedj rendered against the ageiit designated by the President under subdivision (a), shall be* promptly paid out of the revolving fund created by section '210. ■' ■■■ < : ' ' ' ' "The period of Federal control shall not be computed as a part of the periods of liiiiitation in actions against carriers or in claims for reparation to the Gomimission for causes of ; action arising prior to Federal control. , , , "No execution or process, other than on , a judgment recovered, by the XJnited States against a carrier, shall be levied upon the,, property of any carrier ,;vvherejthe, ,<;aus^ of acjjion on account of which, the judgment was obtained; grew tpjit of. the possession^, use, control, or operation: of any railroa|d pr;syst«ni of transpop-, tation by the: President ■y^^lderFedera^lfiontI;9l.^^_. ,, !„,, , The Act of March 9,^1920, authorizes libels and ,crc)ss-li})els in personam to be filed '.against vessels owned by the. United States or by corporations, a majority of the stock in which is owiied by the United States. This statute will be quoted in the Chapter ojp.. Admiralty- _. .■. ■ .■ , ,. ,- "Whether the Uiuited- .States is a legal effective party is,de- 098 PLAINTIFFS OR DEFENDANTS IN A SUIT IN EQUITY [§96 termined not by the record Jbut by the effect of the decree which is sought.*^ § 96. Liability of the United Stated to suits for the recovery of money upon contract. The Judicial Code provides: Dis- trict Courts of the United States shall have jurisdiction, ''Con- current 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 regalation qf an Executive Department, or upon any contract, express or implied, with the Government of the United States, or for damages, liqui- dated or unliquidated,, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, eitl^ei; 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 unliquidated, or other denisjnds whatsoever on the part of the Government of the United States against any claimant against the Government in said court : Provide^, however, That nothing in this paragraph shall be construed as giving to either the district courts or the Coui't 0^, Claims jurisdiction to hear and determine claims growing out of, the late Civil War, and commonly known as 'war claims,' or to ;hear a,nd 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 com- mission authorized to hear and determine the same, or to hear and determine claims for pensions; or as giving 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 claiming as such officers or as assignees or legal representatives thereof ; but no suit pend- iilg on the twenty -seventh day of June, eighteen hundred and nihety-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 : Providedf That the claims of married women, first accrued during marriage, of persons 22 Louisiana v. MoAd_oo, 234 TJ. suits against the Director General S. 627; see infra, §§ 100, 105e. For of Railroadfl, see infra, § 96i. § '96] SUITS AGAINST UNITED STATES ON CONTEACT 599 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 dis- ability has ceased ; but no other disability than those eniimeraited 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." ^ This withholds from the District Courts jurisdiction over all claims against the United States which exceed ten thousand dollars and all cases brought to re- cover fees, salary or compensation for the services of officers. In such cases, suit must be brought in the Court of Claims ; " but it has been held that the District Courts have jurisdictidn of suits to recover disbursements made by marshals; in payment of the services of court bailiffs,' and ;the expense allowances of Circuit Judges.* Actions for similar causes may be brought in the District Court of the United States for Porto Rico.* It is doubtful whether an alien corporation can maintain such a suit in any court.^ It has been doubted whether an alien corporation can bring snch a suit in a District Court.'' But the Circuit Court of Appeals for the Second Circuit has held that it may do so.' "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 imply^ §96. 136 St. at L. 1087, §21, ; SHijo t.,U, ^., 194 U.; g. 315, 48 subd. twentieth. This is practically L. ed. 994. a re-enactment of the Tucker act, 6 Hijo v. TJ. S., 194 XJ. S. 315, 48 passed in 1887, as subsequently L. ed. 994. amended 24 St. at L. 505, 30 St. at 7 Ibid. L. 494. 8U. S. V. N. Y. & O. S. S.'Co., 2 Infra, Chapter XXXV on Court C. C. A., 216 Fed. 61, 69. « Contra, of Claims. Heid Wrecking Co. v. U. S., 202 Fed. S U. S. V. Swift, 0. C. A., 139 314. See infra, §§ 671, 672. Fed. 225. , 4Arehbald v. United States, 217 Fed. 165. 600 PLAINTIPPS OB ■ DEFENDANTS IN A SUIT, IN EQUITY [96a ing an adjudication conclusive as' between the parties, in the nature of a judgment or -award. The proviso that liothing in this; section shall be construed as ^ giving to either of the courts named in the • aet jurisdiction to hear and determine claims 'which have heretofore' been rejected or reported on adversely by any court, department, or commission authorized tcx heai' and determine the same, '.must 'be liinited to a rejection of a claim, or an adverse report thereon, by* a court, department, Or commis- sion which deteiimines the rights of the parties, siich as the ap- proval by the Secretary of the Treasury of an account of expense's under the captured and abandoned property act,^ or the. de- cisions of an international commission. Moreover, the Court of Claims-, even before the passage of the Act of 1887, had jurisdic- tion of Claims under anact of Congress or under a cOntrabt, and could therefore hear and determine claims for legsil salaries or fees;^" "We cannot believe that the' Act of 1887, entitled 'An act to provide for the bringing of suits against the government of the'Unated States,' the raanif est scope and purpose of which are to extend the liability of the government to be sued, was intended to'takeaway a 'jurisdiction already existing, and to give to the decisions of accounting officers an authority and eifedt which they never ' had before. "^^ Consequently, the ]*ejection ' of a claim by the First Comptroller' of the Treasury, which is only conclu- sive within the Department of the Treasury, is not a bar to such a suit.^^ . ' ■ ' ' § 96a. Suits against, the United States for torts and upon implied contracts when a tort is waived. It has been said : that the words "in cases not soundingiin tort "limit only the last part of the clausBj and dorjlot afiect claims founded upon the Consti- tution of the United States or a law of Congress.^ With the ex- ception of claims for the proceeds of captured or abandoned prop- »TT. S. V. Johnson,; 124 U. S. 12 XT. S. v. Harmonj 147 U. S. 236, 31 L. ed. 389, 8 Sup. Gt. E. 268; ». e. as Harrisoii v. TJ. S. 41 446. Fed. 560; tr. S. v. Eand, C. C. A., 53 10 Meade = V. :u.' 8., 9 Wall. 691, Fed. 348; TJ. S. v. Jones, 131 U. S. 19 L. ed.'687. ' ■ ' ' 1, 13, 33 L.'ed. 90. ,'' ' 11 Meade v. U. S., 18 Ot. '01'. 281'. § 96a. iDooley v. V. S., 182 V. s. c, 109- IT. S. 146; ■Adams v.^tT. S.' 222, 45 L. ed. i074; XT. S. v. S., 20 Ct. CI. 115; XT. S. v. MeDon- Lynah, 188 XT. S. 445, 475, -47 L. aid, 128 tr 8. 471, 32 L. ed. 506; ed. 539,' 550:; ■ ."' ' f i i :! tA XT. 8. V. Jones, 131 U. §. 1, 13, ''■ "' §:96a] S^UITS AGAINST UNITED' STATES FOB TOBT 601 erty and others 'arising 'under 'special statutes, tKe courts have no jurisdiction of claims upon torts committed by the ■ United Stat^,2 except where the claimanf. can waive the' tort and Sue upon an implied contract,^ or where the case arises under-^th'e' Constitution or a law of theUnited States.* The United States is not liable, for damages caused by the negligence of a goVern- ment contractor.* The Uni1ied= States are not liable for = injury 8 "There' can ''fee lio reasonaWe doubt that this limitation to cases of eontraet, express or implied, was established , in, _ reference, to the dis- tinptiqn between actions arising out of contracts, as distinguished from those founded on' torts, which is in- herent in the essential nature of ju^ dijCial , remedies, under . all systems, and especially under the system of the common law. The reason of tliis restHctibn ' is ''very' ' bb-vious on a moment ,'s' reflection.' "Wlhile Coh-!i gress might be , willing: to BU|bjpct ; the Qovernment to (fhe judicial, en- forcement of valid contracts, wiich could only bb valid' ds agaiinst the United 'Statesi when' made by soine' ■ offl,eer of the. Government acting un- . derj,jlawfur, authority, , ^ith power vested in him to make such eon- tracts, or to do acts which implied themj.the very' essence; of a tort* is .■ that, jt,j.s i^n,jjnla'jffu^ act done, in/ viojation of tlie, legal rights of some one. Tor' such acts, however high" the position 'of the ofScer or ageiit • of the Government who did or com- manded them, .Congress did, ,9.ot, in- tend to subiect .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 idistinotioni be- tween actions ex delicto an,d, apjipjis ex contractu, as well understood in our system of jurisprudence, and th'ere'by' subject the Government ' to 'payment 'of ' damages for all' the wrdugs committed by dtsi of&cers or agents, .iifld,er,.aj mistaken zeal, or actuated by less ■worthy motives." ' Miller, J.,''m''Langford vl'v'.'' s'.,"i6i: U. S:'341, 25 L. ed; lOlO.' '■■"'' ' ' ' Wheicei a ^statute which aluthorized a;, 3ui^i against ,_ the United ■ Slj^tes for I a pontinupusj tort was, repealed pending suet suit, it was held ' that thfe damages' sustained up to •thei timeof the isepeali only could be reeo,versd. !,?,4W|3' L. ,]Go,, v. ,U., S., 5,5.,Fe4.,854. ' ^^', __ , . 3 ingrarn' v. U. '^".'''s? dt!'cl.''i^7, i62y pe¥ 'Nbtt,' C' J. : '',' The (ioniinon •law- reduces 'all :civil actions' be- tween, individuals, -to twfo simple elassesj e» opntractUi and .,ex ^de- iicio. There ar^ many, subdivisions of the former,' bilt generally it iriay bessaid'tliat'-Whait- is'ko't' ex delicto is,^j;^co«t5^i)sct5ijjy]Jt igithe opifjo^of this court that Congress used th^e language ' upbn aiiy contract, ex- pressed or implied,'' with refelence to this general classification of the CQmnipn,^a,y^. The., meaning, is, thjat thft , eoijrt ^all have jurisdiction of all actionp ex cpntragt^Ui jwlfpther the contract be express.' or, implied, but shall not have jurisdiction, of ■ ac- tions ex delicto. " ■ . ' i ; 4Dooley:V. U. S., 182 U. S.:2a2, 45; L. ed. 1074; Lincoln v. U. S.,'197' U.S. 419,149 L. ed. 816. ,„ B U. 8. V. Rifae Co., 247 Fed. 374. 6,02 PLAINTIFFS OB DEFENDANTS IN A SUIT IN EQUITY [§ 96b resulting from the negligence of their officers to those who are not in a contractual or a giwwt-contractual relation with them.^ 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.'' Where the Kegister of the Treasury canceled registered bonds without authority 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.* An action for the unlawful seizure of private property for the use of the army sounds in tort and the courts have no jurisdiction of the same.' Where a suit was brought by an army officer against the United States for indemnity because of his payment of a judg- ment 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 recovered.^' Damages have been awarded against the government for the use of a vessel impressed during the Spanish War.*^ The liability of the United States and of offtcers thereof for damages to real estate,^^ for infringement of patents ^' and for taxes illegally collected,^* is subsequently considered- § 96b. Suits against the United States for damages for use of, and injury to, real property. A suit may be brought against the United States to recover damage to property leased by the Government and injured by want of reasonable care while in its 6 German Bank of Memphis v. 10 Carpenter v. XJ. S., 42 Fed. 264. U. 8., 148 V. S. 573, 37 L. ed. 564; u Neal'a Case, 36 Ct. CI. 49. See Occidental Const. Co. v. XJ. S., C. u. 8. v. Russell, 13 Wall. 623, 20 L. C. A., 245 Fed. 817. TBigby V. TJ. 8., 188 U. 8. 400, ed. 474. 47 L. ed. 519. ^'^ J'wM. § 96b. 8 German Bank of Memphis v. 13 Infra, § 100 and Chapter xxxv U. 8., 148 TJ. S. 573, 37 L. ed. 564. on the Court of Claims. 9 Herrera v. TJ. S., 222 V. 8. 558, u infra, § 96f. 55 L. ed. 316. § 96b] SUITS AGAINST UNITED STATES BY LANDOWNERS 603 possession,^ but not, it has been held, when the Federal agent who made the lease was actiilg without authority.* When the Government of the United States, by such formal proceedings as are necessary to bind it, takes for public use land to which it asserts no claim or title, but admits the own- ership to be private or individual, there arises an implied obli- gation to pay the owner its true value,' unless Congress has provided for the payment of the same, in which ease no more can be recovered, although the owner has protested.* It has been held : that an action will lie to recover damages to land, to which the Government claims no title, if the same is permanently flooded* or permanently Subjected to periodical floods* by a work, such as a dam built on adjoining land, under the direction of an Act of Congress; but that it is not liable for damages caused hy temporary flbods \o Idnd which was previously siib- ject to overflow in time of freshets, although increased by a Gov- ernment dam on adjacent land,' or by revetments erected by the Government along the banks of a river to prevent erosion from natural causes,* 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 was no stipulation in the contract to the effect.' Not for damages by dredging to land artificially submerged when the Government had acted § 96b. 1 Bryan v. TT. S., 6 Ct. CI. Development Co. v. U. S., 40 Ct. 01. 128; McGowan v. U.S., 20 Ct. CI. 33. 147. ^ 4Hooe V. U. S;, 218 U. S., 322, 2 Occidental Const. Co. v. XI. sl, C. 54 L. ei. 1055. C. A., 245 Ted. 817. 6 U. S. v. Lynah, isS U. S. 443, SLangfoTd v. U. S., 101 U. S. 47 L. ed. 539; TJ. S. v. Welch, 217 341, 25 L. ed. 1010. See Hill v. U. U. S. 333; U. S. v. Grizzard, 219 TJ. S., 149 V. S. 593, 37 L. ed. 862; S. 180, 55 t. ed. 165, 3l L.B.A. Great Falls Mfg. Co. v. Att'y Gen., (N.S.) 1135. 124 U. S. 581, 31 L. ed. 527; U. S. 6U. S. v. Cress, 243 U. S. 316; V. Eussell, 13 Wall. 623, 20 L. ed. 7 Coleman v. U. S., 181 Fed. 599. 474; Grant v. XT. S., 1 Ct. CI. 41; 8 Bedford v. U. S., 192 U. S. 217, Hollister v. Benedict & B. Mfg. Co., 48 L. ed. 414. See Manigault v. 113 TJ. S. 59, 67, 28 L. ed. 901, 903; Springs, 199 TJ. S. 473, 485, 50 L. Mills V. U. S., 19 Ct. 01. 79; Kettler ed. 274, 280; Mills v TJ. S. 46 Fed. V. TJ. S., 21 Ct. CI. 175; Alexander's 738. Case, 39 Ct. CI. 383 (land used for 9 Collins & Farwell y. TJ. S., 34 a camp) ; Philippine Sugar Estates Ct. CI. 294, 604 PIjAINT^lFpS QB DEPEI;jpANTS, ;IN A- SUIT, IN EQUITY [§.96b .un4er the belief that it was part „Qf a naviga|)lei river.^" Wljjep damages for the Jioonjing of land, 3-fe allowed, they, .include, tlie yalu,e,of a pr^yate rightiP;^ way to othefj l^j^(i. of plaintiffs, ^^ U. 8. 22, Foster's Income Tax, 2nd ed. §§ 123, 28 L. ed. 341; Christie Street Com- 128. ' : mission Co; v. IT. 8., C. C. A., 136 5 Swift Co. V. IT. S., Ill U. 8. 22, Fed. 326; reversing 129 Fed. 506. 28 L. ed. 341; TJ. S. v. Emery, feird. See N. Y. Consol. Card Co. v. TJ. 8., Thayer Eealty Co., 237 TJ. ' 8. 28 20 Ct. CI. 174; U.S. v. Hvoslef, 237 ,§ |96f ] SUITS FOR RETURN OP TAXES 609 illegally imposed, the non-payment of which would have pre- vented the clearance of vessels carrying the, mails.' Si^:ts cannot be ferouglit against the United States to recover taxes paid voluntarily without any contemporary protest or no- tice! Pjf .objection,^" nor money paid for the purchase of revenue stamps under similar circumstances,", except where the statute i:|]|.djeK which the suit was brought .shows an intent on the part ^f , the Goy^rnEjent, not to require such, a protest.^^ Where one protest, has, been duly made, subsequent protests against similar qxaetions are not necessary.^* ..Neither a statute imposing a tax, noi: execution thereunder, nor a, mere demand for payment, con- stitutes duress ; but where the.^t^tute contains seljE-operating, pro- visions, by TP^hich non-payment pf the tax results in heavy, penal- ties and a forfeiture of the right to do business, payment by one within the class affected is not voluntary, but compulsory.^* In, such a case, payment , by one not, included in such class is, not made, under duress," TJie, ref,usal,, by a recpr,der, to accept a deed without the revenue ^tamps,^^ and the, refusal ,of the collec;- ,^01" to give to a ship a clearance without such, stamps; ^'' do not ,epn,stitute , such , duress as will .authorize ,a suit to recover ' th,e taxes, when there was no contemporary protest or notice, al- though the statute made the , omission of .the stamps a misde- meanor.^* The question whether stamps were bought and affixed, unc^er duress is usually one of fact.^' A subsequent appli- cation to the internal revenue ,poinmissioner for a return of the rapney paid for stamps ig npt equivalent to a contemporary pro- test pr notice.^" The payment/of an inheritaT^ce tax under U. S. 1.; Klock Produce Co. v. 14 Gaar, Seott & Co. v. Shannon, Hartson, 212 Fed. 758.i, 223,U. S. 468,.56 L. ed. 510. ,? Oceanic ,|Stefljn,: Navigation Co. 15 Ibid. V. Stranahan, 214 V. S. 320, 329, 53 16 Chesebrbugh v. TJ. S., 192 XJ. S. L.ed. 1013,1018; Klock -Produce Co. 25?, 48 L. ,ed. 432. V. Hartson, 212 Fed. 758, "TJ. S. v. N. Y, Cuba Mail S. lOCheseBrough, V. IT. S., 192 U. 8. Co., 200 U. S. 488, 50 L. ed. 569. S. 253, 48 L, ed, 4;32; U. S, v. New 18 Chesebrough v. U. S., 192 U. S. York &, Cuba Mail S.,S. Co., 200 U. 253, 48 L.,.^d. 432. S. 488, 50 L. ed.,,569. WRutan v. Johnson, C. C. A., 23,1 U Ibid. Fed. 369, , , . \ 12 U. S. V. Jones, 2^6 U. g. 106;- 80 Herold y, Kalin,| C. C. A., 159 U. S. V. Hvoslef, 237 XT. ,S. 1. Fed. 608. ,,,'; 13 Johnson v. Herold, 161 Fed. 593.. Fed. Prac. Vol. 1—39 610 PLAINTIFFS OR DEPENDANTS IN A SUIT IN EQUITY [§ 96g protest, after a threat by the collector that, unless promptly paid, it would be collected with a penalty and ihterebt of one per cent a month, was held ' to be involuntary and to justify a suit against the internal revenue collector to recover the same.^^ Such has beeli held 'to be the payment of an'illegal tax upon IWld for the purpose of obtaining possession of the same lahd.^^ § 96g. Suits against the CbmmisisioiiOT and Collectors of In- ternal Bevenue to recover taxes paid under duress. Where Internal EevenUe taxes have been illegally exacted and paid under protest and the payment was necessary to avoid stopping the business in which the plaintiff was engaged, the Commis- sioner of Internal Revenu'e or coUieetor of Internal Revenue, or other officer who has compelled the unlawful paymeilt mAf be sued personally for' their reisOvety.^ Where drastic penalties are imposed for non-payment of taites, such duress exists.^ This can be done in the case of stamp taxes.' Before suit can be brought compliaiice must be made with the statutory require- ments subsequently ^oted.* What constitutes duress has been previously discussed.* It has been held that an appeal to the Commissioner of Internal Revenue is not a prerequisite to an action against the Collector of Internal Revenue;® A successor of the collector who has made the unlawful collection, is not subject to' such a suit.'' Such a ^uit cannot be maintained by the recovery of an inter- nal revenue tax unless a claim for the return of the tax is pre- sented to the Commissioner of Internal Revenue within two years after its payment* Th^ judgment is not res adjvMcata in a subsequent suit against the United States.® The Revised' Statutes provide: "No suit or proceeding for the recovery of any internal tax alleged to have ■ been errdne- 81 Simons v. XJ. S., 19 Gt. 01. 601. 4 U. S. E. S., § 3225-3228. 22t)evlin V. U. 8., 12 Ct. 01. 266. 6 Supra, § 96f . But see Carver "v. TJ. S., Ill U. S. 6 Ewers v. Weaver, 182 Fed.' 713. 609, 28 L. ed. 540. " 7Eoberts v. LOwe, 326 U. S. 604. § 96g. 1 Ewers V. Wesiver, 182 8 New York Illail & Newspaper Fed. 713; Emery,' Bird, I'hayer Transp. Co. v. Anderson, 234 i'ed. Realty Co. v. U. S., 198 Fed. 242. 590. /' '2 International Paper Co; v. Bur- 9 Sage v. U. S., 260 tJ. S. 33. rill, 260 Fed. 664. 3 Swift Co. V. U. S., Ill TJ. 8. 22, ' ' 28 L. ed. 341. §,96g] SUITS AGAINST INTERNAL REVENUE PPFIOERS 611, onsly or illegally assjessed or collected withQi^t a,utliority, qv of any sum alleged to have been excessive or in afly manner, vrjong- fu^ly collected,, shall be maintained , in, any court, unless the sanje is brought v?;ithin two years next after the cause of ao-, tion accrued: Pt:qvid$d, That actions for sucli .claims which accrued prior to June six, ,eigh,teeii , hundred and seventy-two, may be brought within one year frpm s^id date ; and ;that where any such claim, was pendirig before the Commissioner, as, pro- vided in the preceding section, an action thereon may be bj^ougfet within one year, after such deeision and not after. But no right of action which was already ba-^ed by ,any stal;ute on the, said dat^ sliall be revived by this section. " 1" , "All claims for the refunding of anydntemal tax alleged to havte been erroneously or illegally assessed pr collected, or, of any penalty alleged to have been cpllected without authprity, pr of any sum alleged to"hav,e been excessive or in any manner wrongfully collected, must be presented to the ^Cpmrnissioner ,of Internal, Reyenue within two, yeaj^next after the cause of ac- tion , accrued : Provided, TJiat claims which accrued prior to June six, eighteen hundred and seventy-two, may be: presented to the Cpmmdssioner at any time, within one year from^said date. But nothing in this section shall be. construed to rjeTfiyp any rightofaption which ^as already barred by any, statute on that date,!'" ,', , ,• . ,; ,''The Gommissipnerof Internal Revenue, with the advice arid, consiciit of the Secretary of the Treasury,, may compromise any civil or criminal case arising under the .internal-revenue la,vys instead of commencing suit .therepn ; and, with the i advice and consent of the said Secretary and- the recommendation of the, Attorney-General, he may compromise any such case after a suit therebn has been commenced. Whenever a compromise 'is made in any ease there shall be placed on file in the office of the Commi^ioner the opinion of the Solicitor of Internal Rev- enue, or of the ofSeer acting as such, with his reasons therefor, with a statement of the amount of tax assessed, the amount of additional tax or penalty im.posed' by law in the consequence of the neglect or delinquency of the person against whom the tax 10 U. S. B. S., §3227, Comp. St. U U. S. ,E. S., . § 3228, Cpmp. St. §5950. §5951. 612 PLAINTIFFS OR DEFENDANTS IN A SUIT IN EQUITY [§ 96g is assessed, and the amount actually paid in accordance with the terms of the compromise. ' ' ^^ "No discontinuance or nolle prosequi of any prosecution un- der section three thousand two hundred and fifty-seven shall be allowed without the permission in writing of the Secretary of the Treasury and the Attorney-Gerierali " ^* ' "It shall be lawful fo;r any court in which any suit or crim- inal proceeding arising under the internal-revenue laws may be pending, to contine the same at any stage thereof, for good cause shown on motion by the district attortiey. ' ' ^* "When a second assessment is made in case of any list, state- ment, or return, which in the opinion of the collector or deputy collector was false or fraudulent, or contained any understate- ment or undervaluation, no tax collected under such assess- ment shall be recovered by any suit unless it is proved that the said list, statement, or return was not false nor fraudulent and did not contain any understatement or undervaluation ; but this section shall not apply to statements or returns made or to be made in good faith under the laws of the United States regal'd- ing annual depreciation of oil or gas wells and mines." ^^ ' Those sections of the Revised Statutes apply to proceedings under the Income Tax of 1913.i« Since the internal revenue laws contain no requirement that the protest shall be in writing, it has been said that an oral protest is sufficient.^'' Where, however, the taxes were paiid by a check marked on its face 'Paid under protest,' it was held that it did not appear that the fact of the protest came suffi- ciently to the knowledge of the comniissioner, and that conse- quently it was insufficient.^' A payment not under duress 12 XT. S. B. S., §3229, Comp. St. 24 Sup. Ct. Rep. 262; U. S. v. N. § 5952.' Y. & Cuba Mail S. S. Co., 200 U. S. 13 XJ. S. R. S., § 3230, Comp. St. 488, 50 L. ed. 569, 26 Sup. Ct. Rep. §5953. 327. 14U. S. R. S., §3231, Comp. St. IT Wright v. Blakeslee, 101 XJ. S. § 5954. 174, 179, 25 L. ed. 1048, 1049. See 16 XJ. S. R. S., as amended, 39 Stewart v. Barnes, 153 XJ. S. 456, St. at L. 773, Comp. St. § 5948. 459, 38 L. ed. 781, 783, 14 Sup. Ct. 18 38 St. at L. 166, 181, ch. 16, Rep. 849; Abrast Realty Co. v. §11, Par. L.; Dodge v. Osborn, Maxwell (E. D. N. Y.), 206 Fed. 240 XJ. S. 118; Ohesebrough v. XJ. 333, 334-;336. S., 192 V. S. 253, 48 L. ed. 432, 18 Kings County Savings Institu- § 96g] SUITS' AGiAINST iNTBteNAL REVENUE OFFICERS 613 would seem' to be' past recovei'y, although niade under protest. The' payment' of an inheritance tax under protest, after a threat by the collector that' unless promptly paid it would be collected With a penaltj' 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 amount Of the same.^' Where the protest had been sent by the collector to the com- missioner who i'Uled adversely to it, it was held that no formal appeal to the commissioner was required.*" The Eevised Statutes further provide: "When a recovery is had in any suit or proceeding against a collector or other officer of the revenue for any act done by him, or for the re- covery of any money exacted by or paid to him, and by him paid into the Treasury, into the performance of his official duty, and the court' certifies that' there was probable cause for the act done by the collector or other officer, or that he acted under the directions of the Secfetary of the Treasury or other proper officer of the government, ho execution shall issue against such collector or other officer j but the amdunt so recovered shall upon final judgment be provided for and paid out by the proper ap- propriation from the treasury."*' ''This statute is constitutional.** After Such a certificate has been given, tM statute practically dbiiveiiis the suit against the oflficer in one against the United States.*^ , The certificate may be granted by^ a judge who did not try ' the case.** If, however, the trial judge has denied the applica- tion, another ju,dge will rarely, if ever, grant it.** The cer- tificate cannot be granted, before a trial.** When the Govern- ment has haci no notice, actual or constructive, of the suit, and no opportunity to defend, it is not concluded by the certificate tion V. Blair, 116 U. S. 300, 29 iL. 23 United States v. Sherman, 98 ed. 657, 6 Sup. Ct. Hep. 353. U. S. 565, 25 L. ed. 235; Flanders 19 Simons v. U. S., 19 St. CI. 601. v. Seelye, 105 V. S. 718, 724, 26 L. See Hubbard v. Kelley, 8 W. Va. ed. 1217, -1219. 46. , . 84 Cox V. Barney, 14 Blatchf. 289, 20 Dodge V. Brady, 340 U. S. 122. Fed. Cas. No. 3^300. Zltr. S.' Bev. Stat. §989, U. S. 25 Frericlis v. Coster, 23 Blatchf. Comp. Stat. 1901; p. 708. ■ 74, 22 Fed. 637. 22 Carey V. . Curtis, 3 How. 236, 26 Cox v. Barney, 14 Blatchf. 28, 345, 246, 11 L. ed. 576, 581, 588. Fed. Cas. No. 3,300. 614 . PLAINTIFFS OE DEFENI?ANTS IN A SUIT IN EQUITY [§ 96g of . prolDal?le cause.^'' Jn case a writ of error is sued out no money will be paid by the Treasury upon the judgment until an affirmance and entry of thc; judgment upon the mandate oi the court; of review.®* It has been held that lafter. judgnient neither the .Government nor the collector is liable for, interest ; ''^ but upon affirmance the court of. review will allow interest which wilL be I included in the judgment of affirmance entered upon the mandate in the court below;^" The commissioner may after, judgment against the"' collector allow a repayment of the tax to the plaintiffi even though < no certificate of probable cause was granted.?^ "No suit shall be maintained in any court for thie recovery of any internal tax alleged to have been erroneously; or illegally assessed or colleicted, or of any penalty claimed to have been collected without authority,. or, of any sum alleged to have been excessive or in any manner wrongfully collected, until appeal; shall have been duly made to the Gommissipner of Internal, Revenue,, aecording to the; pr9jvisions,of law in that regard, and the regulations of thje.Sec^fetary of thp; Treasury established in pursuance .thereof,; an4 a ^ficisipn of th«i Commissioner has been had therein: Provided, That if such ,a, decision is delayed more th^n six. months, fi^oin the, ,date; of such; appeal, then, the said ^uit may be brought without first having a decision of the Coi;^mis- sioner at any time within, thg period limited, in the. next sec- ticm."32 ^ ^^^ ^^ "' '^|: ' '"'■ ''; .', ,.^^'' , ! . ,■■ It seems that these statutes apply to suits against the United States although when originally framed they were intended to regulate actions agpnst Collectors of Internal itevenue.^* ,The rejection of the claim by the Commissioner of Internal Revenue does not prevent a suit against the United' States for its' recovery.^* ' ' '"" aVDunnegan v. U; S., 17 Gt. 01. 31 United States v. Erericha, 124' 247. " ' : '■ TJ. S. 315, 31 L. ed.. 471, '8 Sup. asCoehfan v. Schell, 107 U. ■ S. Ct. Bep. 514. ' . or 625, 27 L. ed. 543, 2 Sdp. Ct. Bep. 82 TJ. S. B. S. | 3226, as amended 827. ■ ■ ■ ■ ■ 19 St. at L. 248, Comp. St. § 5949. 29 White V. Arthur, 20 Blatohf. 33 U. 8. ivi Hvoslef,' 237 U. S. 1, 232, 10 Fed. 80. 10; Coleman v. U. S., 250 U. S. 30; 30 Cochran v. Schell, 107 TJ. 8. Sage v. V. 8., 250 U. S. 33. 625, 27 L. ed. 543, 2 Sup. Ct; Bep. 34 TJ. S. v. HvosMj 237 TJ. S. 1, 8. 827. § 96i] SUITS AGAINST COLLECTOftS GP' PORTS '615 § 96h. Suits agfainst Golledtorg of the Ports to recover duties paid under duress. Duties illegally' cbllected under the tariff prior to that of' August'5, 1909, could' besrecoVef'ed a,gainst the Collectors of the Port where the duty had been paid undelr teir- cumstdnices sinliistr to those uUdfef which Intfemal ReVenufe Taxes could be recovered by the taxpayer * except that no appeal to the Commissioner of Internal 'Rei'eriue was required.^ When such a suit was brought in a State court it could be' removed.' Tljiat stdtute provided that thenceforth ^' no coUeetor: or othfer officer of the customs shall be in any way 'liable to any owner, importer, consignee, or' agent of any merchandise, or any piel"- son, for or on account of any rulings or decisions as to the ■clas- sification of said merchdudise or 'the duties charged therebn, or the collection of any dues, charges', Or duties on or on account of said merchandise, or any ' Other' matter or thing as to Whifeh said owner, importer, consignee, or agent of such merchandise might, under this Act, be entitled to appear from the decision '•of s4id collector or other officer; or from any board of appraisers provided for in this Act. " *' The isame statute directs the S'^cre- tary of the Treasury to refund and pay, out'of any money 'in the treasury not' otherwise appropriated, all moneys that are shown to his ^tisf action 'to' have' 'be6li' paid to or deposited "with a Collector' of customs inaliy' case of Unascertained or estimated duties." '• '•'" '" "" '•'!''■■'■ .■;,<■'■■:; T Claims fbr the' return of duties Upon imports must be duly brought before the Board of General Appraisers and shoiild then decide against the claimant before' the Court of Customs Ap- peals. The practice is previously explained.^ ' ""' §961. Suits ag&in^t Director Greneral of Railroads and Bail- roads under Government control. The Army Appropriation Act of August 29th, 1916, provides: ' : ;■ " The President, in time of war, is empowered, through the I Secretary of War, to take possession and assume control of any system or systems -of transportation, or any part thereof, and to utilize the same, to theexclusion as far as may be necessary 1 96h. l,De Lima v. Bidwell, 182 4 36- St. at L.' 11,,§ 24. U. S.'i', 45 L'.'ei'ioil. ' ' " ' ' 6'lbid.,' i.S'a.'"' ■" ■ '' '■."I'l" 2 See Ewers v. Weaver, 182 Fed. 6 Supra, §§ 76, 77, 37 St. a:t L. 240 713. (Legacy Tax.').'' ' ■ ■ ' '"' ' 3Infra, § 551. ' 616 PLAINTIFFS OE DEFfllNDANTS IN A SUIT ,IN EQUITY [ § 961 of all other traffic, thereon, , for, ithe transfer or transportation of troops, war material and equipment, or for wsueh other pur- poses connected with , the epiergency as may benp^ful or de- sirable. " ^ . I ' : President Wilson on December 26, 1917, issued a Proclama- tion taking possession and assuming control through the Secre- tary of War "at 12, o'clock noon on the twenty-eighth day, of December, 1917,, of each of every system of transportation and the appurtenances thereof located wholly or in part within the boundaries of the cont>inental United States apd consisting of railroads, and owned Qi:, eontrc(ll0d systems of coastwise and inland transportation, engaged in , general transportation, whether operated by, steam or by electric power, including also terminals, terminal companies and terminal, asosciations, sleep- ' ing and parlor cars, private ears and private ear lines, ele- vators, warehouses, telegraph and, telephone lines and all other equipment and appurtenaijces commonly used upon or, operated as a part of such rajl oi; ^ODibined; rail and, water systems of transportation; — to the end that such systems ; of ti;anspprtation be utilized for the, transportation, of troops, war material and equipment, to the excl;usion ,SQ far as, may, be, necessary of all other traffic thereon; and that. so. far as .such exclusive use be not necessary or desirable, sucli, systems of, transportation be operated and utilized in the performance of such other serv- ices as the nationa,l interest may require and of the usual and ordinary business and dutjps of common carriers, "It is hereby , directed! that the possession, control, operation and utilization of such transportation systems hereby by me, un- dertaken shall be exej;cisfld byand through, William G. McAdoo, who is hereby appointed and de.signatedt Director, General, of Railroads. Said Director may perforin the duties, imposed upon him, so long and to such ex.tent as he shall determine, through the Boards of Directorsj Receivers, officers, and employees of said systems of transportation. ■ Until and except so far as said Director shair from time to time by general or special orders otherwise provide, the Board of Directors, Receivers, officers and employees of the various, transportation systems shall continue S 96i. 1 39 St. at L. 6,45, eh. 418, § 1 ; Comp. Stat. § 197a. §'96i] SUITS AGAINST' DIRECTOU GENERAL OP RAILROADS 617 the operation .thereof in the usual ' and ordinary course of the business of common 'carriers' in the names of their respective companies. ■ ■ ' , ' "Until and except so far as said Director shall from time to time otherwise by general or special orders determine, such systems of transportation shall remain subject to all existing statutes and orders of the Interstate Gommeree Commission, and^ to all statutes and orders of regulating commissions of the various states in which said systems or any part thereof may be situated. But any orders general or special, hereafter made by said Di- rector, shall have paramount authority and be obeyed as such. ' ' * The proclamation further provides : "But nothing herein contained, expressed or implied, or here- after done ori suffered hereunder, shall be deemed in any way to impair the rights of the stockholders, bondholders, creditors and other persons having interests in said systems and transporta- tion or in the profits thereof, to receive just and adequate com- pensation for the use and control and operation of their property hereby assumed. ' ' ' Regular dividends hitherto declared, and maturing interest upon bonds, debentures and other obligations, may be paid in due course; and such regular dividends and interest may con- tinue to be paid until and unless the said Director shall from time to time otherwise by general or special orders determine; and, subject to the approval of the Director, the various car- riers may agree upon and arrange for the renewal and extension of maturing obligations. ^'Exeept with the prion written assent of ! said Director, no at- tachment by mesne process or an execution shall be levied on or against any of the property used by any of said transportation, systems in the conduct of their business as common carriers; but suits may be brought by and against said, carriers and judgments^ rendered as hitherto until and except so far as said Director may, by general or special orders, otherwise' determine. "From and after twelve o'clock on said twenty-eighth day of December, 1917, all transportation systems included in this order and proclamation shall conclusively be deemed within the pos- session and control of said Director without further act or notice. 2 Ibid. Note. 618 ' PLAINTIFFS OR DEPENDANTS IN A SUIT IN EQUITY [§ 961 But for the purposes of accounting said possession and control shall datefrom twelve o'clock midnighton December 31j'1917i."^ • The Act of March 21, 1918, regulating the Federal control of railroads during the war with iG&rmany provides: "The provisions of the Act entitled 'An Act making appropri- ations for the support of : the Army for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes,' approved August .twenty--ninth, nineteen hundred and sixteen, shall remain in force and effect except as expressly modi- fied' and restricted by this Act ; and the President, in addition to the powers conferred by this Act, shall have and is hereby given such other and further powers necessary or appropriate to give effect to the powers herein and heretofore conferred.. The provi- sions of this Act shall also apply to any carriers to which Federal control may be hereafter extended.* "Carriers while under Federal control shall be subject 'to all laws and liabilities as'eommon carriers, whether, arising under State or Federal laws or at common law, except in so far as may be inconsistent 'vvith the provisions of this Act or .any other Act a^plidable to such Federal control or with any 6rder of the President. Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now pro- vided by law; and in any action at law or suit iii equity against the' carrier, no defense shall be made thereto, upon the ground that the carrier is an instrumentality or agency of the Federal Government, Nor shall any such carrier be entitled to have transferred to a Federal court any action heretofore or hereafter instituted by or against it, which action was not so transferable prior to the Fedefral control of such carrier, and any action which has heretofore been so transferred because of such Federal con- trol or of any Act of Congress or ofScial order or proclamation relating thereto shall upon motion of either party be retrans- ferred to the court in which it was originally instituted. But no process, mesne or final, shall be levied against any property under such Federal control. "During the period of Federal control, . whenever in his opinion the public interest requires, the President may initiate 3 Ibid, ifote. 4 40 St. at L. 000 ch. 25, §10; Comp. St. § 1X15341. § 96i] SUITS AGAINST DIEECTOB GBNEJRAIj OP RAILROADS 619 rates, farfe," charges, clas^ificatiolis, regulations, and practices by filing the' same with the Interstate Commercie CoinmisSion which said rates, fares, charges, classifications, regulations; and practices shall not be suspended by the commission pending final determination. • " " ' • "Salid rates, fa,res, charged, classifications, regulations, and practices shall bei reasonable and just and shall 'take effect at such time and upon such notice as he may direct,' biit the Inter- state Commerce COmidissiOli' shall, upOn complaint, enter upon a hearing concerning the justness and reasonableness of so much of any order of the President as establishes or changes any rate, fare, charge, elassifieati'ori, regulation^ or practice of any carrier under Federal control; and may consider all the facts and cir- cumstances existing at the time of the making of the same. In deterhiining' any question concerning any 'such rates, Jares, charges, classifications, Tegulations,' or prstcticfis or changes therein; the Interstate Commerce 'Commission shall give due consideration to the facto that the transportation systems are : being operated- under a |unificd and coordinatfid national , con- trol and not in competition.!. ,;,, , i , .! ''After full hearing the commission may make such i findings and orders as are authorized by 'the Act tOjregulatp, commerce, as amended, and said findings and orders shall hc enfq.rc^|i as provided in, said Act,: .P.rqvj^ded, hoyiever, That w;hen;the Presi- dent shall find and certify., to, J;he Interstate CommeTC^ Commis- sion that in .0|rder,t;o defra^^ the expenses \of Federal controj and operation fa^lyj ch^rgeablje to railway^ ,^ operating expenses, and also to pay. railway tax accruals pther than war taxes, ^et reiits for joint faciliti,es and equipment, and eompeiisation to the car- riers, operating as a unit, it is necessary to increase the railway operating revenues, the Interstate Commerce Commission in de- termining the justness an& reasonableness of any rat'e, fare, eharffe, classification, regulation, or practice shall take into con- sideration said finding and certificate by the President, together with:suchrecommendations ashe may make."*, ^ ., "All pending 'cases in the courts of the United States aj^ict- ihg railroads' or other transportation systems brought under the 640 St. at L. 000 ck 25, §10; , ' " Comp. St. §3115%j. ■ . , 620 PI;AINTIFFS OR DEFEI^DANTS IN A SUIT IN EQUITY [§ 96i Act to regulate commerce, approved February fQurth, eighteen hundred and eighty-seven, as amended and supplemented, in- cluding the commodities clause, so called, or u^ider the Act to protect trade and; commerce , against unlawful restraints and monopolies, approved July second, eighteen hnudi;ed and ninety, and amendments thereto, shall proceed to final determination as soon as may be, as if the IJ|nited Sta-tes had not assumed control of transportation syste^ms; but in any such ease, the court having jurisdiction may, upon the application of the United States, stay execution of final judgment or .decree until such time, as it shall deem proper. " ^ , , ,,,, , , This Act is constitutional aS: an, exercise by. Congress of the War Power.'' It divests aU State boards, and commissions of power to interfere with the management of the railroads," An order by the Director General made April 9, 1919, as amended on April 18, 1919, reads as follows: .;• "Whereas, the act of G6ngress approved March 21, 1918, en- titled ' An Act to provide for the operation of transportation systems while under federal control; ' provides (section 10) 'that carriers while under federal control shall be- subject to all laws and liabilities as common carriers, whether arising under state or federal laws or at common la;w, except in so far as may be inconsistent with the provisions of this act or with any order of the President. . . ". But nO process, mesne, or final, shall be levied against any property iihder such federal control ; ' aiid "Whereas, it appears that suits' against the ca'tWers for per- sonal injuries, freight and damage claims, are being brought in states and jurisdictions far remote from the place where plain- tiffs reside or where the cause of action ai'ose, the effect thereof being that men operating the trains engaged in hauling war ma- terial, troops, munitions, or supplies are required to leave their trains and attend court as witnesses and travel sometimes for hundreds of miles 'from their work, necessitating absence from 6 40 St. at L. 000 eh. 2.5, §10'; holding that the order of the Di- Comp. St; §3115%in; 'rector General was valid. 7 Northern Pae. By. Co. v. North .SNpr^thern iI^ao,,Ey. Co. v. North Dakota, 251 U. S. 000, 39 Sup. Ct. Dakota, 151 U. S. 000; 39 Sup. Ct. 502; 63 L. ed. ; Wainwright v. 502, 63 L. ed. Pennsylvania E. Co., 253 Fed. 459, § 96i] §UITS AGAINST DIRECTOR GEN JSRAL QF RAILBOADS 621 their trains for days and, sometimes for a week or more, which practice is highly prejudicial to the just interests of the govern- ment and seriously interferes with the physical operation of the railroads, and the practice of suing in remote jurisdictions is not necessary for the protection of the rights or the just inter- ests of plaintiffs : ' , "It is theref pre ordered that all suits against carriers while under federal, qontrol must be brought in the county or district where th,e p]aintji;0; resided at the tiihe of the accrual of the cause of , action ;or in the county or district where the cause of action arose. " ^^ "Whereas, the act of Cqngress approyed March 21, 1918, en- titled 'An ,act to provide for the operation of transportation sys- tems (While undpr federal control,' provides, (section 10) 'tha|; carriers while under federal control shall be; subject to all laws and liabilities as common carriers, whether arising under state or federal laws or at common law, except in so far as may be incon- sistent with the ,prpvisipns of thi^ act ... or with any order , of the President. , . . But no process, mesne or final, shall be levied against any property under such federal control, ' aiici authorizes th^ President to exercise any of the pow- ers by said act or therefpre granted , him with relation to fed- eral contrpl, through such ageiicies as he might determine; and , . ' 'Whereas, by, a proclamation dated March 29, 1918, the Presi- dent, acting under the Federal , Control, Act and all other powers him thereto enabling, authprized the Director General, either personally or through such divisions, agencies, or persons, or in the name of the President, to. issue any and all orders which may in any way be found necessary and expedient in connection with the federal cpntroj of systems of transportation, railroads, and inland^ waterways as fuUj' in all respects as the President is au- thorized to do, and generally to do and perform all and singular acts ! and things and to exercise all and singular the powers and duties which in and by thd said a;ct, or any other act in relation to the subject hereof, the President is authorized to do and per- form; and "Whereas, it appears that there are now pending against car- 9 Cocker v. N. Y. C. & Western 10 Ibid. By. Co.,, 253 Fed. 676, 677. 622 PLAINTIFFS OR DEFENDANTS IN A SUIT IN EC^UITY [§'96i riers under federal control a great many suits for personal in- jury, freight and damage claims, and that the same are being pressed for trial by the plaintiffs in states and jurisdictions far removed from the place where the persons alleged to haVe been injured or damaged resided ^t the time of such injury or dam- age, or far remote from the place where the causes of action arose, the effect of such trials' being that men operating the trains engaged in hauling 'war materials, troops, munitions, or supplies att re(iuired to leave their ti'ains' and attend court as witnesses, arid travel sometimes for hundreds of miles from their work, necessitating absence from their trains for days and sometimes> for a week or more, which piractice is highly prejudicial to the just interests of the government and seriously interferes with the physical operation of i-ailroads, and the practice of trying such eases duriiig f ed^t'al control in remote' jurisdictions is not iieeeSSary for the protection of the rights or the just interests of plaintiffs: "It is therefore ordered that upon a showing by the defend- ant carrier that the just interests of the government would be prejudiced "by a, present trial of any suit against any carrier under federal control, which suit is not covered by Gtoeral Order No. 18, and which is'nbw pending in any county or district other than where the cause of aCtibn arose or other than in which the person alleged to haVe been injurdd or damaged at that time resided, the suit shall not be tried diiring the period of federal control: Provided, if no suit on the same cause of action is now pending in the county of district where the cause of action arose, oi* where the person injured or damaged at that time resided, a new suit may, upon jjrBper' service, be instituted therein ; and if such suit is now barred by the statute bf limitations, or will be barred before Obtobef 1, 1918, then the stay directed by this order shall not apply Unless the defendant carrier shall stipulate in open court to waive the defense of the statute of limitations in any such suit which may be brought before October 1, 1918. "This order is declared' to be necessary in the present war emergency. In the event of unnecessary hardship in any case, either party may apply to the Director General for relief, and he will make such order therein as the circumstances may require consistent with the puMi'e interest. "This order is not intended in any way to impair or affect § 96i] SyiT,^. AGAINST PIEECTOB GENERA!^,, J .RAILUOAPS, , 623 Qeneral Ov^e^M.Q. 18, as amended by Gener,al Order ]^p. 18a." ^f^^ By General Order No, SQ,, ,pct(>]5er 28, 1918 :<:; ,, ,;|__; ,,' ,, ,,; "Actions to be brought against the Director; ^^eit-pT^il . of Rail- roads, instea,d of against the carrier corporations ; themselves, where the eaiise of action arose after December 31^ .1917.i "Whereas by, the proclamations, dated; I)eceinber 26, 19,17) and April 11, 1918, the I^reside^t took possession ; and ^ssifn^efj con- trol of sys,tem,s of trajisportation and ,the appurtenances thereof, and appointefi, the, undersigned,,, WilliEim. Q- McAdop,; Director, General of Railroads, and provided in and by said proclamations that 'until and except so far as said direetgr sball from time to time otherwise by general or special orders determine, siich sys- tems of transportation shall; remain subject to all.,exisl;irig stat-, utes and orders of the Interstate,. jCommerce Commission anditp, all statutes,,, , . . but any prders, general or special, here- after made by said director shall have paramount a,uthority and be obeyed as such;' and "Whereas the: Act of .Congress, called the Federal .Control Act, approved March 21, 1918, provided that 'carriers while under federal control shall be subject to all layvs and; liabilities as com-, mon carriers, wjiether arising undcir state or federal laws or at. . common law, except iii so fair, as may be inconsistent with the pro- visions of this act or any, other act applicable to such federal; cion-j trol, or with any order of : the President ;,' aaad ,• , .... "Whereas since Ifhe director general assumed control of said, systems .pf . transportation, suitst are being ; brought and judg- ments and deqrees rendered against carder, corporations on matters based on causes of action arising during federal con- trol, for which the said carrier^ corporations are not responsible, and it is right and proper that ithe actions, suits and proceed- ings hereinafter referredi to, based, on causes of action arising during or out of federal control should be brought directly against the said Director General of Ra;ilroads and not against said corporations'; it is therefore ' > "Ordered, that actions at law, suits in equity and proceedings in admiralty hereafter brought in any court based on contract, binding upon the Director General of Railroads, claims for death 11 Eutherford v. Union Pac. Ry. .. ,, Co..,, 2.64 Fed. 880. , , 624 PLAINTIFFS OR DEFENDANTS IN A' SUIT IN EQUITY [ § 96i or injury to person, or for loss and datnage to property, arising since December 31, 1917, and growing out of the possession, use, control or operation of any railroad or system of transporta- tion by the Director General of Railroads, which action, suit or proceeding but for federal control might have been brought against the carrier company, shall be brought against William G. McAdoo, Director General of Railroads, atad nOt otherwise, pro- vided, however, that' this order shall hot apply to actions, suits, or proceedings for the recovery of fines, penalties and forfeitures. ' ' Subject to the provisions of general orders numbered 18, 18-a and 26, heretofore issued by the Director General of Railroalds, service of process in any such action, suit or proceeding may be made upon operating officials operating for the Director General of Railroads, the railroad or other carrier in respect of which the cause of action arises in the same way as service was heretofore made upon like operating officials for such railroad or other car- rier company. "The pleadings in all such actions at law, suits in equity or proceedings in admiralty now pending against any carrier com- pany for a cause of action arising since December 31, 1917, based upon a cause of action arising from or out of the operation of any railroad or other carrier, may, on application, be ameiided by substituting the Director General of Railroads for the carrier company as party defendant and dismissing the company there- from. "The undersigned Director General of Railroads is acting herein by authority of the President for and on behalf of the United States of America; therefore no supersedeas bond or other security shall be required of the Director General of Rail-' roads in any court for the taking of or in connection with an appeal, writ of error, supersedeas or other process in^ law, equity, or in admiralty, as a condition precedent to the prosecution of any such appeal, writ of error, supersedeas or other process, or otherwise in respect of any such cause of action or proceed- ing."" 12 N. Y. L. J. Oct. 28, 1918. It regards actions pending when the has been held, that this is a consent order was made the provision for by the United States to an action substitution was permissive only for against the Director General. Dahn the benefit of the plaintiff and de- V. MoAdoo, 256 Fed. 549. That as fendant could not obtain such relief §'96i] SUITS AGAINST DIRECTOK GENERAL OP RAILROADS 625 This order is valid; ^' It has been held that the railroad com- pany has an absolute right to the substitution.^* It has been said: "Under these acts of Congress and the proclamation of the President the Director General is a carrier. He' conducts the business of receiving and transporting goods and passengers for hire. A receiver of a railway company is a barrier as to the goods and the passenger transported," giving citations,*" "and the office of the Director Generalis analogous to that of a receiver of the railway companies."*® An obiter dictum of a Federal District Judge concerning the Act of August 29, 1916; reads thus : "The statute authorizes the President (a) in time of war, (b) through the Secretary of War, (c) to take, possess, and assume control, (d) of any system of transportation, to the exclusion, if necessary, of any > other transportation thereon, (e) for the trans- fer or transportation of troops, war material, and equipment, and for such other purposes connected, (f) with the emergency as may be needful or desirable. Under no established rule of inter- pretation can it be doubted that it was the intention of the legis- lative body to authorize, in time of war, the War Department and no other to take over the railroads for war purposes, such as transijortation of troops and war material, and for such other purposes as might be desirable in the emergencies of war. Be- sides being an appropriate function of the War Department, it was the plain meaning of the statute which Congress enacted that the War Department should have authority over it, and even if without the plaintiff 's consent. Jen- 13 Eutherf ord v. XTniou Pac. E. sen V. Lehigh Valley R. Co., 255 Co., 254 Fed. 880. Fed. 795. By State courts that the 14 Eutherf ord v. Union Pae. E. order so far as it applies to a pend- Co., D. Nebraska 254 Fed. 880 ; ing action is invalid. Vaughan v. Contra, Jensen v. Lehigh Valley R. State (Ala.), 81 So. Eep. 417;, Scar- Co., S. D. N. Y., 255 Fed. 795. borough V. Louisiana Ey. & Nav. 1* United States v. Nixon, 235 U. Co., La. 82 So. Eep. 286; McGregor S. 231, 234, 35 Sup. Ct. 49, 59 L. V. Gfi-eat Northern Ry. Co. (N. D.), ed. 207; United States v. Eamsey, 172 isr. W. 841. That the order does 197 Fed. 144, 146, 116 C. C. A. 568, not prevent subsequent suits against 42 L. R. A. (N. S.) 1031. railroad companies. Lavalle v. 1® Rutherford v. Union Pac. R. Northern Pac. Ey. Co. (Minn.), 172 Co., 254 Fed. 880. N. W. 918. Gowan v. McAdoo (Minn.), 173 N. W. 440. SeeJbhn- son V. McAdob, 257 Fed. 757. Fed. Prac. Vol. 1—40 626 PLAINTIFFS OR DEFENDANTS INi A SUIT: ilN EQUITY [ § 961 we assume (which is inconeeivable) that the: Secretary, of "Wjar declined for that department to take up;the war work indicated, we find nothing, in the statute which authorizes it to be taken up by the Treasury Department, nor by a Director Greneral of Bail- , roads; Congress not having intrusted the .work to either. .And; the situation, if strict rules were to operate, might involve, cour, sideration of the question whether, the rule stated, by the Su-. preme Court in Smith v. Black, 115 U. S. at page 319, 6 'Sup. Ct. 56, 29 L. Ed. 398, to the effect that, fWhere there is a statute requiring a thing to be done by a known and responsible public officer, it may well be held that he must do it in person,^ would not apply." " , . i , ■ i The same judge stated in the same case : " On its face .the act of August 29, 1916, does not give authority to the President , to make or promulgate a proclamation of any character. No one, however, could or would contend- that he had. not abundant authority to issue such documents whenever he thought it proper to give notice or information to the public. But such papers cannot have any effect as laws, in the absence of express consti- tutional or congressional authorization. "We cannot say that the President had any view to the contrary of this when he issued , the proclamation in question. " ^* And again: ''The statute is ; silent upon the subject of litigation of aUy character, and, does not attempt to close either the State or Fedei^al courts to any per- son who might already have an existing cause of action against any railroad company upon the mere ground that the property of the company had been taken over for a temporary though most important use. The proclamation designates Mr. McAdoo as Director, General of Railroads. This position being unknown to the law, its powers are not fixed; but we suppose it was the, intention to make him, not only a member,' but the head of the board of directors of each railroad company, thife property of which was taken into possession; — thus giving him, instead" of the Secretary of War, the control of all operations under the statute. Many rules for him to enforce appear to be, prescribed in thci proclamation, but we pass over all of them as having no bearing upon the cases before us, exbept that one of them which is in this language: IT Muir V. Louisville & N. E. Co., 18 Ibjd. Muir v. Louisville & N. 247 Fed. 888, 894, per Evans, D. J. E. Co., 247 Fed; 888, at p. 895. '§961] .■ SUITS AGAINST DIRECTOR GENERAL OF RAILROADS 627 "f Except witk the pi^ior written assent of said Director, no attiachment by mesne process or on execution' shall be levied on or against any of the praperty used by any of said transporta- tion: i^ystems in the conduct of their business as common carriers; but ^uitsmay be brought by and against said carriers and judg- men'ts rendered as hitherto until and except so far as said Di- rector mayy by general oi- special' orders, otherwise determine.' "We find no statutory warrant for this prbvision in the procla- mation, and 'especially none for the eixception mentioned in the last 'clause' of it. We may, however, ignore that exception, be- cause nothing appears 'to' "show any attempt to carry it into effect; but, eveh'if'tre suppose that the other limited interrup- tion of the rights 'Of litigants while the war goes on should be patriotically accepted by air good citizens, litigant and otherwise, it by no means follows that the law authorizes any interference with the course 'of judicial procedure between litigants befori the time' arrives when there, might be, attempts to seize, under execu- tion issued upon fiijai jiijdgments, property in the , temporary possession of the United States under the proclamation: -Nor can we see how even a Tight to prevent interruption' of such tem- porary possession after final judgment has been rendered can, per se and independently of the nature of the cause of action, support the theory, of t^e, REiilroad Company that the suits in which judgments may be rendered arise under the Constitution or laws of the United States."" ' This judge held that actions in the State courts against rail- road companies, each sued in personain, prior to the second statute after the firsts prpclamatipn for injuries caused imme- diately before the first proclamation subsequent to the first statute, could not be removed to the Federal court where there was no diversity of citizenship, and that their prosecution in the State courts should iiot be enjoined.*" This decision cojuldh^ sus;l;ained without giving sanction to the expressions, of the judge's' opinion hereinbefore quoted. The writer has found no approval of these dicta in any other case. These orders of the Director-General have since been fol- lowed by the courts.*^ W Ibid. Muir v: 'Ijouisville & N. Fed. 888. To the same effect is B. Co., 247 Fed. 888, 896, 897. Longhnen v. Hines, 261 Fed. 218. 20 Muir V. Louisville By. Co., 247 KlWainwright v. Pennsylvania B. .628 PbAINTIPFS OR DEPENDANTS IN A SUIT IN EQUITY [§ 96i Suits brought subsequent ta April. 18, 1918, against carriers elsewhere than in the county or district where the cause of action arose or where the plaintiff resided at the time of the. accrual thereof, it was said, should have been dismissed^^ provided of course that this objection was duly and specifically made.^* In other cases against railroad companies the stay of proceedings was held to be in the discretion of the Court.^* In order to obtain a stay, it was said that there should be a showing as to the number of witnesses, the inconvenitoees to which the defend- ant may be put by bringing it witnesses to a trial in the district, the nature or quality of the work in which the witnesses were then engaged, whether they could be conveniently replaced dur- ing a temporary absence, and a general showing of the number of men in the defendant's employ.** A removal from the State Co., -2,53 Fed. 459; Cocker t. N. Y. & O. E7. Co., 253 Fed. 676; Har- nick V. I^ennsylvania E. Co., 254 Fed. 748. Contra, Friese'n v. Chi- cago B. I. Ey. Co., 254 Fed. 870. , 22 Wainwright v. Pennsylvania E. Co.,, 25,3, Fed. 459; Cocker v. N. Y. & O. Ey. Co., 253 Fed. 676, 677. Con- tra, Friesen v. Chicago, E. I. & P. Ry.' Co., 254 Fed. 875. See Seaver V. Hines, 261 Fed. 239; supra §61. 28 Harniek v. Pennsylvania E. Co., 254 Fed. ,74,8. 24 Harniek v. Pennsylvania E. Co., 2S4 Fed. 748, per Mantqn, Ct. J.'; Cocker V. N. Y. & O. Ey. Co., 253 Fed. 676, 679, 680, per Mayer, D. J. 26 Harniek v. Pennsylvania E. Cp., 254 I^ed. , 748. The; : following facts were held to justify a, stay: "Coming now to the case at bar, it appears that the plaintiff is an in- faiit about 14 years of age, now suing by his giiardian for an injury which occurred at Scranton, Pa., on August 9, 1916. Plaintiff and his guardian then resided and now re- side in Scranton, Pa. Four witnesses of the railroad are actively employed by it in its freight service, and are &.t present; engaged in moving coal, freight, munitions, and other war materials at and in the vicinity of May field Yard, in Peiinsylvanid. The most important branch of the defendant railroad at this time is! the one running from Cardozia, ]!^. Y., to Scranton, Pa., over which are hauled many carloads of coal f roih the mines in Pennsylvania, and in which freight service the railroad witnesses are engaged. The ; show- ing is well made that , the absence of these employes at this time would be serious, because defendant is shorthanded, owing to the large num- ber of employes who have gone into the military service, I or who have left to obtain positions at shipyards and otjier industries performing war service, for which larger compensa- tion is paid. The engineer, the fire- man, the conductor, and one of the trainmen are all necessary and ma- terial .witnesses , concerning the ac- cident. , Defendant further submits the affidavit of a physician to the effect that although the infant plaintiff's left leg has been amputated above §i96j]PEDERAL CQKTEOIj OF TELEGRAPH ANP TELEPHONE LINES 629 tothe Federal couift was a waiver of the objection;*® iln a proper ease,; when the plaintiff's injuiiies are serious and his financial condition desperate, a preference upon the trial calendar .may be allowed.*'' Such a ease may be removed from the State court to the Federal court in, the same district when a necessary diver- sity, of citizenship exists and, the jurisdictional amount is in- volved,*' unless it arises under the employers 'liability , law.** Such a removal waives any objection by the defendant that ,the suit was not brought in the proper .district.*"; ,;. I , ! , i ,, , , Actions growing out of j the possession, , us© ; or ; .operation iPf .thei lines und.Qr Federal control should noW/. be. brought. against the agent, designated by.the |President, fprthat purpose, as, pre- viously deseribedf*^ Federal cpntrol of, carriers has terminated lUndesr the, Federal, Transportation. Act, of February 28, ,1920,^ § 96j. Suits. a^QJnst telegraph and telephone comps^nies; when under Federal control. Thp Act of' August 29, 1^16,, provides : , , ," The , Pr,esident,. in tinie of war, is .empowered,! through the Secretary lOf War,, to takei posses^ipji andi assume control,. of i any system or system&of transportation,, or any! part, ithecelof, and, to utilize the! same, to, the eixelusion' as if ar as maybe necessary of .all other traffic thereon, for the, transfer, or transpJortatipik of troops, war material and equipmentj or for suchother purposes cionnected with the emergencj' as maj^beneedful or desirable:'' '^ On July the'fknee, ;,he is st]rong. andr rpbust, aii^.,Ms; h^^rt and lungs,, an^^.ab; domen are normal. Defendant also submits an affidavit from ■ one O 'Boyle,' presumably an investigator, that 'he has seen the infant plain- tiff.; and ealled upon, him with the .pe promptly brought ; i in : f Scjantptn, wheire plaintiff resides, an, stipulates for interest.^? The exemption' of the United S,tateSi from interest does not extend to all subordinate: governmental agencies, such as The National. Hom'e' for, Disabled Yplunteer Soldiers.^" The judgment can be reviewed only by (the Supreijie Court of the United;. States.^* Tbei plaintiff can appeal isphei;ei the amount in controversy exceeds three thousand dollars, ; or; where his claim is forfeited' to i the United states by ithe judg- ment of the court ibelffw,''* for fraud in iconneetiqn with, ,, its i presentation or proof. ^* A judgment in a suit to recover offi^ IS TJ. S. ' V. Hyaifts, C. 0. ' A., l46 60 Fed. 523, 527 ; TJ. S. R. Si, § 1091. Ted. 15. 20 National, Home fqr Riaabled, 14 Ibid. Volunteer Soldiers v. Parish, 229 U. 16U. S. v'.'Hyams, C. C. A., 146 S. 494. ' ' . • -i - i s-^ Fed.- 15, 24 St. 'at L. eh.'b59, §7, 21 J. Homer Friteh v. United p. 506. ' ' ' States, 248 IT. S. 458, 'overrtiUng 18 U. 8. V. Saunders, C. C. A., 79 O^den v. IT. S., 148 IT. S. 390; IT. Fed. iOi; Mc^EWath v. TJ. S., 102 S. v. Morgan, C. d. A., 64 Fed. 4. U. S. 426, 26 L. ed. 189. 22 24 St. at L. 506, § 9. IT 24 St. at L. 508, § 15. See "U. 23 Jud. Code, § 182, te-eiiaetirig S.'v. Harmon, 147 U. S. 268, 282, "37 U. S. E. S., §1086; IT. S.' E. S., L. ed. 164, 169. § 7'07 ; IT. S. v. Davis,' 131 TT. S. 36. 1124 St. at L. '507, §10. 39, 33 L. ed. 93, 94; Strong v. IT; S.. 19 Int. B. & S. Dock Co. v. IT. S., iH 'Fed: 183. ' 636'. PLAINTIFFS OB DEFENDANTS IN A SUIT IN EQUITY [§98 eial fees, sal&ryi or compensation is ordinarilj'^ reviewable by writ of error, hot by appeal.*** 'A judgment in a suit to' recover rent is reviewable ^by writ of error.^* Such appeal or writ of error should be taken within ninety days after the judgment is rendered.** An appeal or writ of= error may bri taken, irre- spective of the amount involved, 'by the district attorney, at the direction of the Attorney-General, ' vfithin six months after the judgment or decree.*'' Upon appeal or writ of error the findings of fact of' the trial court are conclusive unless the record would warrant the conclusion that the ultima;te facts are not supported by any evidence.*' The only question is whether the conclusions of law are justified by the facts found.** Otherwise, the practice in all courts in suits brought under this statute is similar to that in other suits, with "such additions and modifications as said cdiifts may adopt. " ^^ ' § 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 tenant 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 bi'oUght in the district in which such laiid is situate."* The Act of May 17, 1898, of part of which this is a reenactraent, further pi-ovidesr that "when such suit is brought by any per- son owning an undivided interest in such 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, and by mailing a copy of' the same by registered letter to the Attorney-General of the United States ; and the com- plainant in such: bill shall 'file with the clerk of the court in 24 U. S. V. Harsha, 172 TJ. S.; 567, 27 24 St., at L., eh. 359, 507, § 10; 43 L. ed. 556; U. S. v. Adv, C. C. A., U. S. y. DayiiS, 131 f. S. 36, 39, 33 76 Fed. 359; TJ. S. v. Tinsley, C. C. L. ed. 93, 94; TJ. S. v. Yukers, 60 A., 75 Fed. 369; TJ. S. v. Morgan, F.ed. 641. C. 0. A., 64 Fed. 4; U., S. v. Flpt- 28 U. S. v. Buffalp Pitts Co., 234 Cher, C. C. A., 60 Fed, 53. U. S. 228. 25 Chase V. TJ. S., 155 TJ. S. 489, 29 Ibid. 39 L. ed. 234. 30 24 St.. at L., eh. 359, 506, 5 4. 26 24 St. at L. 506, § 9 ; U. S, B. S 98. 1 36 St. at L. ,1087, § 24, S., §708. But see TJ, S. v. Davis, Coinp. St. § p91, subd. (25). -; 131 TJ. S. 36, 39, 33 L. ed.. 93, 94. . , § 99] ! SUITS BY INDIANS FOR LAND ALLOTMENTS 637 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 at- torney upon whom service of the bill is made as aforesaid to' appeariandi defend the interests of the Government,' and within sixty days after service upon him as hereinabove prescribed; un- less the time shall be enlarged by order of the court made in the case, to file a plea, answer, or demurrer on the piart of the Gov- ernment, and the cause shall proceed as other eases for partition by courts of equity, and in making such partition the court shall be governed 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. If the United States shall be the purchaser 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."* § 99. Suits by Indians for aJlotments of land. The Judicial Code gives the District Courts of the United States jurisdiction "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 re^nactment, further pro- vides : " 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 either of the Five Civilized Tribes, nor to any of the lands within the Quapaw Indian Agency : Pi-ovided, That the right of appeal shall be allowed to either party as in other cases. ' ' * This act gives the district courts jurisdiction to decree relief to an Indian, entitled under the law to an allotment of land, when he has been deprived of that right by the rulings of 1;he Land Department.' The provision of the act, that the decree of the court, jn favor 2 30 St. at L. 416, Comp. St. 2 28 St. at L. 286, 305, Oonip. St. § 1579. § 4214. § 99. 1 36 St. at L. 1087, § 24, 3 Hy-Yu-Tse Mil-Kin v. Smith, C. Comp. St. § 991, subd. 24. C. A., 119 Ted. 114. 638 PLAINTIFFS OB DEPENDANTS IN A SUIT;! IN EQUITY [§ 99a of a claimant, shall have the same [effect as an allotment allowed and approved by: the Secretary of the Interior is a consent upon the ipart of the, United States to be bound by such decree; and' where the suit involves simply a question of priority! of i right; between two claimants, the United States is not a neciessary party.* i ; The Act of June 25, 1910, provides that when an Indian to whom an allotment of land has been made dies without a will before the expiration of the trust period the Secretary of :the In- terior upon notice and hearing under such rules i as 'the Secretary may prescribe shall ascertain the Indian's legaL heirs and that the decision of the Secretary thereon shall be iinal and oOn^ elusive.'' This statute is constitutional and such decision capnot be reviewed by the courts.^ §99a. Suits to establish the tights of bona fide purchasers of lands erroneously patented or certified. The Act of March 2nd, 1896, provides: , ^. . i i> « i "Suits' by the United States to vacate and 'annul ' any patent to lands heretofore erroneously issued under a railroad or wagon ^ road grant shall only be' brought within five years froiti'the passage of this Act, and suits to vacate and annul patents 'here-' after issued shall only be brought within six jeaxs after the date of the issuance , of such patents, and the limitation of sec^ tion eight of chapter, five hundred and sixty-one. bfi -the i acta of the second session of the Fifty-first Congress aiid iamendments thereto is extended accordingly as to the patents herein referred to. But no patent 'to any lands held! by a bona fide purchaser shall be vacated or annulled, but the right and title of such purchaser is hereby confirmed; Provided, That no suit, shall be brought or maintained, nor shall recovery be had for lands or the value thereof, that were certified or patented in lieu of other lands covered by a grant which were lost or relinquished by: the grantee in consequence of the failure of the Government oti its officers to withdraw the same from sale or entry." ^ "If any person claiming to be a. Z»tMwJ:^e purchaser of any 4 Ibid. ,; §99a. , 129 ,8t, at,:i:^. ,42,,,Coinp. 6 36 St. at L. 855; Hallowell v. St. §4901. Commons, C. C. A., 210 Fed. 793. 6 Hallowell v. Commons, C. C. A., 210 Ted. 793. , • , § 99a] LiVND CLAIMANTS AGA'lN ST THE UJiTlTED STATES 639 .lands erroneously patented or certified shall present his claim to the Secretary bf the Interior prior to the institution of a suit to cancel a 'patent or certification, and if it shall appear that he is' a 60^ /We purchaser, the Secretary of the Interior shall request that 'Suit be broughli in such ease against the patentee, or the corporation, company, 'person or association of persons for whose ben'efit the certification was made, for the Value of said land, which in no case shall be more than the minimum Govern- ment price' thereof, and the title of such claimant shall stand confirmed. An adverse decision by the Secretary of the Interior on the bdna-fides of such claimant shall not be conclusive of his rights, 'and if such' claimant, oi" one claiming to be a bona fide purchaser, but who has not submitted his claiin to' the Secretary of the*Interior'j is made a party to such suitj andif found by the court to. be a bona fide purchaser, 'the court shall decree a con- firmation of the ititle, and shall render a decree in behalf of the United States against : the patentee, , corporation, • company, per- son, or association of persons for whose benefit the certification was made > for the i value of the land as hereinbefore/ provided. Any bona fide purchaser of lands patented or certified to a rail- xflaid company, and, who is npt made a party to such , suit, and who has npt subinitted his claim to the Secretary ,pf|the Interior, inay , establish* his ,i?ights as such bona /lote purchaser in any United States ; court having jurisdiction of the subject-matter, or at his option, as prescribed in section^ three .and four of chapter three hundred and seventy-six of the | Acts of the second session of the FortyTninth Congress. " ^2 " If at any time prior to the institution of suit by the Attorney- General to cancel any pat^t or certi;&cation of lands erroneously patented or certified a claim or statement is presented to the Secretary of the Interior by or on behalf of any person or per- sons,, corporation or corporations, claiming that such person or persons, corporation or corporations, is a bona fide purchaser or are bona fidi purchasers of any patented or certified land by deed or contract or otherwise, from or through "the original patentee , or porporation to which patent or certification was issued, no suit or action shall be brought to cancel or annul the patent'br certification for said land until such claim is investi- 2 29 St. at L. 43, Comp. St § 4902. 640 PLAINTIFFS OE DEPENDANTS IN A SUIT IN EQUITY [§ 100 gated in said Department of the Interior ; and if, it shall appear that such person or corporation is a bona fide purchaser as aforesaid, or that such persons or corporations are snch bona fide purchasers, then no such suit shall be instituted and the title of such claimant or claimants shall stand, confirimed ; but the Secretary of the Interior shall request that suit be, brought in such case against the patentee, or the corporation, company, person, or association of persons for whose benefit the patent was issued or certification was made for the value of the land as here- inbefore specified." * It has been held that this statute is broad enough to include all patents erroneously or fraudulently issued under any of the Acts of Congress.* § 100. Injunctions against officers of the United States. An officer of the United States,^ even a cabinet officer,* may be on- joined from an act in violation of the complainant's rights, which is not discretionary and which is beyond the ' scope of his authority. An injunction may be granted when the officer transcends the limits of his authority under a constitutional statute.' Such injunctions have been granted : to restrain the Secretary of the Interior from revoking the approval by his predecessor of 'the maps of a right of way over public "lands * to enjoin sub- ordinates of that Secretary from collecting unlawful charges for the use of water under the Reclamation Act of June 17, 1902.^ To restrain subordinates of the Secretary of Agriculture, the Chief and Chief Inspector of the Biireau of Animal Industry from enforcing illegal rulings of the Secretary of Agriculture.* To restrain the Board of Tea Appeals from excluding tea upon 3 29 St. at L. 43, Comp. St. § 4903. 5 Magriider v. Belle rourche Val- 4 United States v. Pitan, 224 Fed. ley Water Users' A^s'n, 219 Fed. 604. 72; Masses Pub. Co. v.rPatton,. 245 §100. 1 Caldwell V. Eobinson, 59 Fed. 102; s. C. 11. Fed. 653, 660. 6 Hall v. Willcox, 225 Fed. 333; 2 Noble V. Union E. L. E. Co., 147 St. Louis Independent Packing Co. U. S. 165, 171, 37 L. ed. _123, 123. v. Houston, C. tl. A., 242 Fed. 337; 3 Philadelphia Co. v. Stimson, 223 Brougham v. Blanton Mfg. Co., C. U. S. 605, 56 L. ed. 570. C. A., 243 Fed. 503. In both these 4 Noble V. Union E. L. E. Co., 147 eases the injunctions were reversed U. S. 165, 37 L. ed. 123. but the jurisdiction sustained. ,§,100] INJUNCTIONS AGAINST FEDERAL OPPICEES 641 an unlawful test prescribed by the Secretary of the Treasury.' .TJo restrain the collector, of a port from refusing to enter and p^l^qjase imports Wjhen there is no dispute as regards the amount of duty; ' or tjie unlawful removal of goods from hjs district, although he acts under an order of the Secretary of the Treas- ury.® To restrain an acting collector of Internal Revenue from refusing to issue liquor licenses.^' To enjoin an Indian agent from interfering with the right to land. which he claims belonged to an Indian tribe.*^ An injunction may be granted: to restrain the Secretary of War from unlawfully changing harbor lines and from instituting criminar proceedings to enforce the same.** To restrain the withholding of mail by a postmaster under an order of the Postmaster General, when the plaintiff's rights are elear.^* 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; ** nor when his decision 7 Waite V. Maey, 246 TJ. S. 606. SGretaeh Mfg. Co. v. Scheening & Malone, 231 Fed. 57. 9 Waite V. Macy, 246 XT. S. 606. 10 Jacob Hoffman v. McElligot, C. C. A., 259 Fed. 525, modifying 259 Fed! 321. '' 11 Caldwell v. Eo,binson, 59 Fed. 653; Wadsworth v. Boysen, 0. C. A., 148 Fed. 71. It has been held that an Indian agent is 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., 194 Fed. 1. See infra, § 119. 12 Philadelphia Co. v. Stimson, 223 U. S. 605, 620, 32 Sup. Gt. 340, 56 L. ed. 570. 13 Am. School of Magnetic Heal- ing V. McAnnulty, 187 U. S. 94, 47 L. ed. 90; New Orleans Nat. Bank V. Merchant, 18 Fed. 841; Hoover V. McChesney, 81 Fed. 472; Fairfield Floral Co. v. Bradbury, 87 Fed. 415; Davis v. Brown, 103 Fed. 909; Fed. Prae. Vol. 1—41 Rosenberger v. Harris,, 139 Fed. 1001; Donnell Mfg. Co. v. Wyman, 156 Fed. 415; Lewis Pub. Co. v. Wyman, 152 Fed. 787, where the complainant had been denied a full hearing before an order, excluding his publication from second class matter in the mailSj was made. But see s. c, 168 Fed. 752; aff'd G. C. A., 182 Fed. 13, Lewis Pub. Go. v. Wyman, 168 Fed. 756; Brooklyn Daily Eagle v. "Voorhies, 181 Fed. 579. See a note to Timmons. v. TJ. S., 30 0. C. A. 74. 14 Bates & Gould Co. v. Payne, 194 U. S. 106, 48 L. ed. 894; Central Trust Co. V. Central Trust Co. of Illinois, 216 TJ. S. 251, 54 L. ed. 469; Enterprise Sav. Ann's v. Zum- stein, C. C. A., 67 Fed. 1000; Peo- ple's TTnited States Bank v. Gilson, 140 Fed. 1, holding that upon the hearing, the person affected may be required to assume the burden of proof and to show affirmatively that his business is legitimate and hon- 642 PLAINTIFFS OE DEFENDANTS IN A SUIT IN EQUITY [§ 100 depends upon a doubtful question of law.^* Where there has been a dispute as to the right to send publications through the mails as second-class matter, preliminary injunctions have been granted in return for a bond, given by the complainant, to pay the excess postage in case the controversy should ultimately be decided against him.^^ In such a case, where payments of post- age had been made under protest, it was held that the com- plainant's right to recover the same was enforceable a;t common law and that, upon a determination that it was, not entitled to an injunction, the bill should be dismissed without prejudice.^' When the United States is willing to pay money which it owes into court to have the rights of the respective claimants thereto judicially determined, the court piay take jurisdiction of a suit for that purpose.'* 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 aaginst it in respect to the subject matter; '' but where no such statutory consent had been given, that court refused to entertain juris- diction of a similar case.^" 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 Congress, authorizing the sale of cer- tain 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.^' The Supreme Court has no jurisdiction of an action brought by a State against the Secretary of the In- terior to establish title to lands and to prevent other disposition of the same, where there is a disputed question of law and fact est; Appieby v. Cluss, 160 Fed. 18 MeGowan v. Parish, 237 XJ. S. 984, People's United States Bank v. 285. Gilson, C. 0. A., 161 Fed. 286; Put- 19 Minnesota v. Hitchc^ock, 185 nam v. Morgan, 172 Fed. 450; Bran- U. S. 373,, 46 L. ed, 954. aman v. Harris, 189 Fed. 461. 20 Oregon v. Hitchcock, 202 U. S. 15 Smith V. Hitchcock, 226 U. S. 60, 50 L. ed. 935; Masses Pub. Co. 53, 57 L. ed. — . v. Patten, 245 Fed. 102. 16 Lewis Pub. Co. v. Wyman, C. 21 Naganab v. Hitchcock, 202 U. C. A., 182 Fed. 13. , • S. 473, 50- L. ed. 1113. 17 Ibid. §,100] :, ,INJUNCTI03SrS AGAINST FEDERAL QFF:^CEES 643 concerning the ownership thereof by the United States.*^ Nor by a-^tate again^t^ the Secretary of the Interior and the Com- missi,C|ner o;f,the,,Grener,al Land Office to enjoin the i^Ejue. of , a paten.t.^^ In general, no injijnction will lie against an, officer of a Department, interfering with the discharge ,c)f his duties in the sale qf, public lands, so long as the title thereto remains -in tlie United Statps.2* „ i , , , , No court has jurisdiction of a suit to review the, action of the Secretary of the Treasury in determining the rate of duty to be collected, under statutes; anfi trM^ji^s, and_ to compel him to collect a specific amount. ^^ , Nor ,f)^, a suit to, enjoin ithe Post- master (general, or one of his assistants from terminating a con- -ti-aqt for the carriage of mail.^^ Nor to.^njoin a District Attor- ney of the Uuited States from instituting criminal proceedings under an erroneous construction of, a valid statute.^'' Nor to restj^^in the , Director General of Railroads from changing the location of railrpad, shops from one place to another.^* Nor to restrain the commissioiJer of health, of Porto Bico, in his official capacity, f row purchasing land and erecting a tubftrcu^osis,; hos- pital.^' An injunction was denied when prayed to prevent an army officer, acting under the orders of the Secretary of War and claiming statutory authority, from constructing in a proper man- ner a sewer upon Government lands which would injuriously affect other land on the stream into which the sewer emptied.*" It has been doubted whether a suit against the members of the Mississippi River Commission to enjoin them from constructing l&vees is not a, suit against the United States.'^ In a proper case, an injunction will lie against a marshal of the United States 22 state of Louisiana v. Garfield, 25 Louisiana v. McAdoo, 234 tJ. 211 TJ. S. 70. " S. 627.. , 23 New Mexico v. Lane, 243 U. S. 26 Wells v. Roper, 246 U. S. 335. 52. ' 27 Jacob , Hoffman Brewing v. 24 Johnson V. Towsley, 13 Wall. McElligot, C. C. A., 259 Fed. 525, 72; 87, 20 L. ed. 485, 458; Marquez modifying 259 Fed. 321. V. Fi-isbie, 101 U. S. 473, 475, 25 L. 28 Nueces Valley Town-Site Co. v, ed. 800, 801 ; Humbird v. Avery, 19.t M 'Adoo, S57 Fed. 141. U. S. 480, 503, 49 L. ed. 286, 296; 29 Solder v. Seoville, C. C, A., 253 Cameron v. Weedin, Register of TJ. Fed. 932. S. Land Ofaee, 226 Fed. 44; Devil's 30 Sheriff v. Turner, 119 Fed. 782, Den iConsol. Oil Co. v. United, 31 Cubbins v. Mississippi Eiver States; Lost Hills Mining Go. v. Commission, 241 U. S. 351. Same, p. C, A., 251 Fed., 548. , 644 PLAINTIFFS OR DEFENDANTS IN A SUIT m EQUITY [§ I'OO to prevent the enforcement of a judgment which is void for want of jurisdiction, when such want of jurisdiction does not appear upon the face of the writ ; ^^ but in such a case, tio in- junction will be granted against the United States or a clerk of one of its courts.** Payment of a sum of money by the United States cannot be compelled by a suit against- the Comptroller of the Treasury or other public officer.** <" •• An injunction 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.*^ 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 conipehsation' for the use of the patent, in accordance with the Act of June 25, 1910,*® except when the facts show an express or implied con- tract between the parties, when a suit will lie' upon the siame.*' Nor against a Government contractor forbidding the making of articles which would contribute to an infringertient of a patent by the Government.** In a proper case a bill in equity will lie' for an accounting to the patentee by a Government contractor who has infringed his patent.*' It has been held that no injune- 32 Kirk y. V. S., 124 Fed. 324; s. 37 U. S. v. Palmer, 128 U. S. 262, 6., 131 Fed. 331. But see Buckley 32 L. ed. 442; The United States "v. V. TJ. ,8., 196 Fed. 429, 431. Societe Anonyms des Aneiens ,Es- 33 Buckley v. V. &., 196 Fed. 429. tabliasements Call, 224 XJ. S. 309, 34 Case V. Terrell, 11 Wall. 199, 20 56 L. ed. 778; § 96a, supra. But see L. ed. 134; Van Antwerp v. Hul- Schillinger v. U. S., 155 U. S. ifej burd, Fed. Cas. No. 16,827 (8 39 l. ed. 108; Eussell v. U. S., 182 Blatehf. 282). XT. S. 516, 45 L. ed. 1210; Harleyv. 35 Cammeyer 7. Newton, 94 TJ. S. -y g ^ ^gg y g' 229, 49 L. ed. 1029;. 225, 235, 24 L. ed. 72, 75; Belknap Bg^ch v. TJ. S., 226 TJ. S. 243, S^L. V. Schild, 161 TJ. S. 10, 17, 40 L. ed. ^3 _ j„ ^^^ j^^^ ^hree cases, it 599, 601; International^ Postal^ Sup^ ^^^ ^^^^ ^^^^ ^^^ ^^^^^ ^.^ ^^^ .^^ ^ '^ , ',7.^. "^^ ' . ,-, -.^ 1 ..'«« tify an inference of such a contract, L. ed. 1134, aflSiming 114 Fed. 509; „ -^ ^ ^, „ • . ^ t infra, §100. Orozier y. Fried, ^^ ^^ ^^ ^'^T. n?''L7^ kWp Aktiengesell-Schaft, 224 Tj! '"^"'^ ^a^e, 27 Ct. CL 260. S. 290, 56 L. ed. 771. 38 Marconi Wireless Tel. Co: yJ 36 36 St. at L. 851; Crozier y. Simon, 246 U. S. 46, modifying. Fried, Krupp Aktiengesell-Schaft, C. C. A., 231 Fed. 1021, • 227; Fed. 224 U. S. 290, 56 L. ed. 771. See 906; Si)erry-Hutchinson Co. v. Kuhiiy Chapter on the Court of Claims, 212 Fed. 555. ... infra. 39 Wm. Cramp & Sons', and so '§ iOOa] ' INJUNCTIONS AGAINST FEDERAL TAXATION 645 ^ion "will lie against an individual or corporation to preveiit the infringement' of a patent ^by 'the use of a chute used in the cdlleclJion of the mail under the regulations of the Post Office Department and that ah action for damages is the only remedy, if iariy, of the patentee, against' the owner of the building where the same is' used.*" ■''Trhe right to a mandamus against an officer of the United States is' subsequently considered.*^ §'100a,. Injunctions against collection of Federal taxes. The Revised Statutes provide as follows: "No suit for the purpose of I'esfi'aSnirig the assessment of collection of any tax shall be inaintaihed in any cdurt. " * Under this provision, it has been held that wherever a tax is imposed by a person in office having jaut'hority in the assessment of taxes for the United States, who acts under color of the statute, no injunction will be issued to restrain i|s collection, no matter how erroneous the assessment may be, and although the person against whom the assessment is made dpes notown. the property taxed-^ "It is sufficient that a statute, has authorized the assessor to entertain the general sub- jj?,c|; of taxation ; th^t, it w:as in fact entertained, and a judgment, ]^w;^uJ,,Qr,unla,wful, was ]fesn,dered .concerning it."^ It has been hield, tjiat,the unponstitu^iionality of the statute imposing the tax ^w^ljf-notjauli^qrize' the, issue of i an injunction.* The Supreme ,P,qnrt, .ofitljpjDistrict of Columbiai has. denied an application for an^ipjpncition against the enforcement of the Act of October 3, forth, Co. ,y.. International Qurtiss Bpan, 23 Int., Bey. Eec. 351, Fed. Jdarine'O'urbme'Co., 246 IT. S. '28. Cas. No. 202; United States v. 40 Cutler V. Maryland Hotel Co., Black, H Blatchf. 538, Fed. Cas. 168 iPed. 931. No. 14,600. But see Frayaer v. Eus- 'illnfta, §§ ■457-459. seU, 3 Hughes, 227, Fed. Cas. No §10"0a. ■ 1 tr. S. E. S., §3224, 5,067. On general question of in- CottiJ). St. §"1901. junction to restrain collection of il- • ^Eensett t. Stivers, 18 Blatchf. legal tax, see note in 22 L.E.A. 699. 397, 10 Fed. 517; Pullan'v. Eiri- SEnunons, J., in Pullan v. Kin- singer, '2' Abb. ' TT. S. '^i, Fed. Cas. singer, 2 Abb. IT. S. 94, 99, Fed. No.' ''f 11,463'; -. Howland v. Sdiile, Cas. No. 11,463. Deady, 413, ' Fed! Ca^. No. 6,800 ; 4 Eobbins^ v. Freeland, 14 Int. Delaware Ei. Co. v. Pt'ettyman, 17 EeV. Eec. 28, Fed. Cas. No. 11,883; Int; EeV. Eec. 99, Fed. Cas. No. Shelton v. Piatt, 139 U. S. 591, 598, 3,767; Kissinger v. Bean, 7 Biss. 35 L. ed. 273, 277, 11 Sup. Ct. Eep. 60, Fed. Cas. No. 7,853; Alkaii v. 646. 646 PLAINTIFFS OE DEFENDANTS IN A SUIT IN EQUITY:[§ lOOa 1913.^ f It has been held that a mandatory injunction requiring a collector of internal revenue to accept an export bond for spir- its in a bonded warehouse and to allow their withdrawal for export without payment of taxes, is in effect a bill to restrain, the collection of internal revenue taxes and cannot be granted.* ' ' The inhibition of section 3224 applies to all assessments of taxes made under color of their offices by internal revenue officers." "The remedy of a suit to recover back the tax after it is paid is pro- vided by statute, and a suit to restrain its collecti >n is forbidden. The remedy so given is exclugiye, and no other remedy can be substituted for it. Suqh has been the current of decisions in the Circuit Courts of the United States, and we are satisfied it is a correct view of the . law. ' ' '' This prohibition is constitutional, since the remedy by injunction is not a remedy at common law, and therefore the statute does not deny the citizen a right to legal process.* "The system prescribed by the United States in regard to both customs duties and internal revenue taxes, of stringent measures, not judicial, to collect them, with appeals to specified tribunals, and suits to recover back moneys illegally exacted, was a system of corrective justice intended to be complete, and enacted under the right belonging to the Grovernment to pre- scribe the conditions on which it would subject itself to the judg- ment of the courts in the collection of its revenues. In the exer- cise of that right, it declares, by section 3224, that its ofiieeri shall not be enjoined from collecting a tax claimed to have beeii unjustly assessed, when those officers in the course of general jurisdiction over the subject-matter in question, have made the assignment and claim that it is valid. " ' The prohibition was 5 Dodge V. Osborn, S. C. D. 0., 14,600, United States v. Black, 11 May 14, 1914. Blatchf. 538, 543, Fed. Cas. No. 6 Miles V. Johnson, 59 Fed. 38. 14,600 ; Kissinger v. Bean, 7 Bias. 7 Mr. Justice Blatchf ord, in Sny- 60, Fed. Cas. No. 15,983; Alkan v. der x. Marks, 109 U. S. 189, 193, Bean, 23 Int.. Eev. Eec, 351, Fed. 27 L. ed. 901, 903, 3 Sup. Ct. 159; Cas. No. 202; Kemsett v. Stivers, citing Howland v. Soule, Deady, 413, 18 Blatchf. 397, 10 Fed. 517. Fed. Cas. No. 6,800; Pullan v. Kin- S.PuUan v. Kinsinger, 2 Abb. U. singer, 2 Abb. U. S. 94, Fed. Gas. S. 94, Fed. Cas. No. 11,463. No. 11,463; Bobbins V. Freeland, 9 Mr. Justice Blatchf ord, in Sny- 14 Int. Eev. Eec. 28, Fed. Cas. No. der v. Marks, 109 U. 8. 189, 194, 27 11,883; Delaware E. E. Co. v. L. ed. 901, 903, 3 Sup. Ct. Eep. Prettyman, 17 Id. 99, Fed. Cas. No. ^59. § 100a] INJUNCTIONS AGAINST FEDERAL TAXATION 647 held to apply so as to forbid an injunction against assessments made and warrants for collection issued prior to the enactment of' the original statute.*" It has been suggested that an injunc- tion might be granted to restrain an unlawful increase of an as- sessment when sufficient ground for equitable relief was shown.** An injunction by a State court against the assessment or collec- tion of a Federal tax will be vacated after a removal of the ease inito a Federal court.** This statute does not apply so as to forbid an injunction by a Federal court against the collection or assessment of taxes by State" or municipal authorities in a proper case for relief.*' Judge Hughes in the Circuit Court of the United States for the eastern district of Virginia granted an injunction against the assessment of the tax against a citizen who had already paid all that was due. That judge said: "His threatened levy was for what was not a tax, and it was threatened to be made in a manner which set at naught the provisions of section 3371. If was a clear case for the exercise of the restraining power of the court ; and was not a case falling within either the letter or spirit or intention of section 3224. ' ' ** The case which held that the Income Tax of 1894 was uncon- stitutional was brought by a stockholder to prevent his corpora- tion from paying the tax. The government did not raise the ob- jection of an adequate remedy at law and an injunction was con- sequently granted.** But where it appeared that the suit was collusive, the Supreme Court dismissed a similar bill ; *^ and in a later ease, where that did not appear but the district attorney lOKensett v. Stivers, 18 Blatehf. Co., 14 Blatehf. 426, Fed. Cas. No. 397, 10 Fed. 517. 17,390. 11 Magee v. Denton, 5 Blatdhf . 14 Frayser v. Eussell, 3 Hughes, 130, Fed. Cas. No. 8,943, A. D. 227, 330, Fed. Cas. No. 5,067. 1863. 16 Pollock V. Farmers' Loan & l« Kissinger v. Bean, 7 Bias. 60, Trust Co., 157 U. S. 429, 554 (Har- J'ed. Cas. No. 7,853. Ian and White, JJ., dissenting at ISJJe Tyler, 149 V. S. 164, 37 L. p. 653), 39 L. ed. 759^ 809, 844, 15 ed. 689, 23 L. ed^ 669; Schulenberg- Sup. Ct. Bep. 673. Boeckeler Lumber Co. v. Town of 1* Corbus v. Alaska Treadwell Hayward, 20 Fed. 422, 424. But Gold Min. Co., 187 TJ. S. 455, 47 s«e Wells v. Central Vermont B. L. ed. 256, 23 Sup. a. Eep. 157. 648 PLAINTIFFS OR DEFENDANT? IN A SUJT. IN, ^_QUITY;[§ 3,001) took the objection, thp injunction was, deni^ti in a Di^tript eourt.^'' ' , . , ; , i;; § 100b. Injunctions against Interstate Oonunerce Ooijomis- sion. The Act of October 22, 1913, provides; "No.interlocu- tory injunction suspending or, restraining the enforceBient, op- eration, or execution of, or setting aside, ,in wholC; or in part, any order made or entered by the Interstate Coromerc^ ^?^,' mission shall be issued or granted by any district cp'ui^t of the United States, or by any judge thereof, or any circuit "j,i:idge sq liBqs puB aSpnC ^oij^sip lo ^jmoaio v o% pai^uasai^ aq iibus aiu'BS aq:; joj uoi^BOjxddB 8q:j ssapn 'aSpnC ;>oi j^isip ' sv Sui^ob 8U0 ^sBa{ |B uioqAi'jo 'sg^pnt aaiii^' Aq pamraiaiap' pij'B pjce'sq shall be a circuit judge, and uiiless a' ihajority of "8^1(1 -ttiWfe judges shall concur in' granting such application. Wheii such application as afoi-esaid is presented to a'' judge, he shall im- mediately call to his assistance to hear and deterniinfe the Appli- cation two other judges. Said application shall -Mt be' heard or determined before at least fiv^e days notice of the hearing has been given to the Interstate Commerce Commission, to/ the Attorney General of the United States, and'to' such othen per- sons as may be defendants" in the suit: Providedj That ■. in cases where irreparable damage would otherwise ensUe to iifehei, peti- tioner, a majority of said three judgesi concurring,, may, on hearing, after not less than .three days' notice to tbe Interstate Cominerce Commission and th^ Attorney ,(^^^r^l, allqw , a itCfli- porary stay or suspension in whole or in par^, pfthe operation of the order of the Interstate, Con^mei;ce,;Commis^i9n,foy,;n(>t more than sixty days from the date of the ; order jO^ saj^ tbfpe judges pending the application for the order of injunction, in which case the said order shall contaip a, specific, finding, b^sed upon evidence submitted to the judges making the) ftr^der and identified by reference thereto, tlj^ti such irreparable, ..damage would result to the petitioner and specif yiag. -the jiature< of the damages. The said judges may, at the time of hearing such application, upon a like finding, contifaue the temporary'* §tay or suspension in whole or in part upon such application for all interlocutory injunction shall be given precedence arid shall be 17 Straus V. Abrast Realty Co. (E. , , / ; . ,,,1) D. N. Y.), 200 Fed. 327; m/ra, , ; . ,j;i,- §145. ; ' AGAINST INTERSTATE CbMMERCE COMMISSION 649 in 'every '.way Expedited and be assigned from a hearifig at the earliest jifadticatoe day after tlie expiration of the notice her ein- be'fbr'e prbyided for.' An' appeal may te taken direct to the. ^upreine CbuiH;"^ 'the United' .S'tates from tie order granting or' .depyiflg afteir' np'tii^' aiid hearing, an interlocutory injunc- tion, i,n such case if siieh appeal fee 'taken within thirty days aftet'lt'h'e orijer, in 'respect to which complaint is made, is granted' or refilsecl; and upon the final heai-ing of any suit brought to susjJend or' set aiside, in whole or in part,' any order of said commission the same . requirement as to judges and the same procedure .a'^fo expedition and appeal siall apply. "^ The Re- peal 9!^ tjie' statute 'cr&tirig.the Cominerce Court, left'this'sectiori' of the act 'fully in force.* Upon the decision of the motion the courts may balance the damages to be suffered by the eom- ^laip^nts if |tl}e inju^nction is denied ag;ainst those which will be' incurred bytbe sMppers for whose benefit the commission has acted, ■ if! thft writ is issued.' After such an injunction has 1 loot. '-1 Act of Oct: 22, 1913, ch.'ga, 3^ 'St. at L. 220. Cornp. St. §99^, see'^i^jw-ft,' § 34a,' im/ro, §151. ■ fet'ouisviile'&'K'U. Co. v.'-IJ. S., 25[Y-Fea. 273;'27S.' ^ '" 3 Brown i)rug Co. v. IJ. 'S., 235 i'Sd. '603, '603, 606; ph- Smith, J.: ' ' Such iniiiiictions ar^ ordinarily gra,'lrted''biefoVe' proofs are' complete, aii'i in determining whether to grant tiiebi "or libt, tihe'fetiurt inust consider tte'^datoages which would be sus- tai'iied bjr' the diefdndants if a ■writ of injtoetiori did i^sue' Before proof, and''' the damages to be incurred bj'' the 'conipIaJnants if it did' not issue. As Sidvix City has, accoriding to the flfldings of the Interstate Commerce Coninfissfon been suffering from this (li^iriinihation against ' it for about t'Wo-; yfears a'nd seven mouths, ' we caiinot find that Withiii the thirty or sixty 'days between this and the final hearilig the South Dakota towns will suifer mbre daiiiiages frorti the fail- uH tb' grant 'this injunction than Sioux City would suffer from grant-, ing in this case. The presumption is that the Interstate Commerce Commission 'a determination was cor- rect and "vailid. We cannot assume that that controversy would be de- termined in favor of the compliain- ahts against the Interstate Com- merce Commission, and thus grant this injunction when the damages to Sioux City ■ from the grantisng . of the injunction would be substantially equal to the damages to the South DWcota towTis 'b;^ fefusilig' it; " Per wade, 'J., ' 606-608: "This being the' siti^ation I personally do not feel that it Justifies action by a court of equity at this stage. I do not believe that a court should grant a temporary injunction unless there is irreparable injury to the com-' plainants and unless it can be granted without imposing irrepar- able injury upon some one else ; and, it 'being impossible to grant a tem- porary injunction without imposing 650 PLAINTIFFS OK DEFENDANTS IN A SUIT IN EQUITY [§ 100b been granted the court has power to issue a supplementary in- junction forbidding the further prosecution of a suit within the class originally restrained.* _ Such an interlocutory injunction is not within the statute and a direct appeal therefrom to the^ Supreme Court cannot be taken. ^ An injunction should not be granted against suits to enforce an order by the Commission for reparation, unless all the parties to whom reparation is directed are before the court.® Nor it seems when it is proved to be their intention to prosecute their claims in a consolidated, action at or by a test case at common law.' It has been held that a motion to dismiss the bill cannot' be heard by the three judges convened to hear the motion for an injunction but that the former motion must be heard by a single judge who may be one of these.' damages upon the merchants of Sioux City, as aforesaid, I do not believe that the court at this time should exercise its extraordinary power to restrain the defendants from proceeding under the order of the Interstate Commerce Commis- sion. ' ' 4Looney v. Eastern Texas E. E. Ge., 247 TJ. S. 214, 219. 6 Ibid. 6 See Louisville & Nashville E. Co. V. Garrett, 231 U. S. 298, 230. Cf. S. C. as Louisville & N. E. Co. V. Kentucky E. E. Co., 214 Fed. 465, 471. 'Louisville & N. E. Co. v. Ken- tucky E. E. Co., 214 Fed. 465, 473. 8 Brown Drug Co. v. U. S., 235 Fed. 603, 605; per Eeed, J. (dis- senting) 609, 610. "As to the ques- tion of a temporary injunction, I agree with the majority that the relative damages that may ' be sus- tained by one or the other of the parties may, and ordinarily should be considered. But if any damage is likely to result to Sioux City, or any other party, the injunction should not be denied upon that ground, but should be granted, if the plaintiff is otherwise entitled thereto, upon the plaintiff giving proper security to indemnify the party against whom it shall issue against such damages as the grant- ing of the injunction may cause. The plaintiffs are commercial clubs and jobbers in five of the largest cities and towns in South Dakota that will be seriously injured if the proposed increase of rates by the express companies is put into effect. I cannot agree that this court as niow constituted may not determjae the question of jurisdiction to grant a temporary injunction at the proper time. It is apparent upon the face of the petition that jobbers in these five towns will be discriminated against if the proposed rates shall go into effect, and will suffer dam- ages — how much I do not know. But whatever they may be, the plaintiffs may be required to give proper security that will indemnify those who will be damaged by the granting of the writ. If I was to now determine the question of the merits of the demurrers of the ex- § 101] EJECTMENT AGAINST FEDERAL OFFICERS 651 After a motion for an injunction under the statute has been denied, the District Court composed of the same judges may- grant a temporary injunction, to expire at the end .of. thirty days unless, meanwhile the complainant takes an appeal and applies to the Supreme Court for a continuance of such an injunction pending the appeal, upon which appeal and applica- tion the injunction shall continue until the Supreme Court's decision.' The decisions under the statute regulating applications for injunctions against the enforcement of State statutes and orders of State boards of administration and commissions may be ex- amined in connection with this act^^" §100c. Injunctions against the United States Shipping Board. The Act of September 7, 1916, which creates the United States Shipping Board, provides : ' ' The venue and pro- cedure in the courts of the United States in suits brought to enforce, suspend, or set aside, in whole or in part, any order of the board shall, except as herein otherwise provided, be the same as in similar suits in regard to orders of the Interstate Commerce Commission, but such suits may also be maintained in any district court having jurisdiction of the parties, ' ' ^ § lOOd. Injunctions against Federal Trade Commission. ' ' The jurisdiction of the Circuit Court of Appeals of the United States to enforce, set aside, or modify orders of the "Federal Trade" Commission, shall be exclusive."^ § 101. Ejectment against, officers of the United States. An action of ejectment has been sustained against government offi- cers sued as individuals for land, such as a soldiers' cemetery^ and a pier * held by them for governmental purposes in the name press companies to the petition, I 451, §31. Oomp. St. § 8146(oo). might be inclined as now adyised to § lOOd. 1 Act of Sept. 26, 1914, overrule it; but that question, as ch. 311, §5, 38 St. at L. 719, Comp. before stated, is not now for deter- St. § 8836e, supra, § 77h ; infra, mination. ' ' § 693. 9 Louisville & N. R. Co. v. TJ. S., § 101. 1 U. S. v! Lee, 106 U. S. 227 Fed. 273. See Interstate Com- 196, 27 L. ed. 171; Stanley v, merce Coriimission v. Louisville & Schwalby, 147 U. S. 508, 37 L. ed. Nashville K. R. Co., 101 Fed. 146, 259; Tindal v. Wesley, 167 TJ. S. 148; Louisville & N. R. Co. v. Siler, 204, 42 L.. ed. 137. But see Stan- 186 Fed. 176, 203, infra, § 300. ley v. Schwalby, 162 TJ. S. 255, 40 lOLykin v. Chesapeake & O; Ry. L. ed. 960. Co., C. C. A., 209 Fed. 573. * Scranton v. "Wheeler, C. C. A., 57 i'lOOc. 139 St. at L. 735, eh. Fed. 803, 807. 652 PLAINTIFFS OE DEFENDANTS IN A SUIT IN EQUITY [§ 102 of the United States ; but the United States are not bound .by; any adjudication in such a suit.^ ' . ' ,' ■ ■:■^^• § 102. Replevin against officers of the United States. Papers on file in a Government Department cannot be obtained^ /by replevin.! Before the Tucker act, it was held that no suit should lie to compel the Treasurer and Comptroller of the United Stei^es to deliver to the complainant the surplus i of bonds deposited- ,as security for bank notes when the bank notes had beSni paid.^ Since the Tucker act, it has been held that a suit thereunder will lie against the United States to recover taxes which a statute .;b9,d directed the Secretary of the Treasury to- refund^' butt that no injunction should issue to prevent a collector from^ disposing of duties paid by the complainant, which the BoasdLctfi.Gfenemt Ap- praisers and the court have held should be refunded.^! i' , -t^i §102a. Liability of a foreign government to suit. i ,.j; Sehwalby, 147 TJ. S. 508, 37 L. ed. ZHassard v. TJ. S. of Mexico, 29 259; s. c, 162 TJ. S. 255, 272, 40 L. Mise.' (N.' Y.) 311, aff'd 46 App. ed. 960, 966; Scranton v. Wheeler, Div. 62'3, aff'd — N. Y. ^.' Man- 57 Ted. 803, 807; Tindal.v. Wesley, ning v. Wicaraugua, 14 How; Pt. N. 167 TJ. S. 204, 223, 42 L. ed. 137. Y. 917. Se^'TPhe Sapphire, 11' Wall. 143. 164, 20 L. Oo-Op. 127, 130 atid note.' §102. iVan Antwerp V. Hul- 8 Kingdom of Eouihaiiia v. Giiar- burd, Fed. Gas. No. 16,827 ^S anty Trust 06., C.'C- Ar, 250' Pefl: Blatchf. 282). See Case v. ^errel. .^41. ' • ■• i..,,ir, .■ li Wall. 199, 20 L. ed. 134. '4 Ibid. ' ' - ■'■' ..;;' • 2Brent v. Hagner, 5 Cranch (0. 6 Ibid. ' ■' ' /■ i'.i .'irj.),: -•,, C:) 71, 6 Opiiiions of Attorney Gen 6 Th6 Schooner Exohaagelv.i Mc- eral, 223. Fadden, 7 Cr^.ncli, 116, L. ed. 287. 3U. S. V. Shipley, C. C. A., 197 . .;A ; Fed. 265. . . , j. i § 1,02a] , , LIABILITY OF FOREIGN GOVERNMENTS 653 while in, it?i possession a,nd used in goyernmental acts cannot fee Ubeled by a Court of Admiralty.'' That a foreign govern- ment has no longer> possession of the vessel it may be libeled for ,thi§ . negligence of its crew while in such government's employ, ha?. b^W hftld in a single case.* , ,, ,The, avowal of the foreign government, a certificate from its 3i)abasisado,r?. or a sjiggestipn by the Attorney General of the United States or his representative ^^ that the ship is in use by it as a governmental act is conclusive upon the court. , I A court will not entertain a suit which requires the determina- tion of the .validity of the act of a foregn government performed in its sovereign capacity within its own territory, although such government is not a party def endant.^^ Thus the Federal courts have refused to take jurisdiction: of an action for assault and false imprisonment by the soldiers of a foreign government.^* Of an iPiCtiofl .against a cqrporation chartered by one of the states of the Union, because of its instigating soldiers of a foreign gov- ernment to seize the plaintiff's property.^* Of a suit to impress a lien upon a fund which had been wrongfully paid to citizens of the United States by a foreign government in violation of a contract by such government.^* , But the courts have jurisdiction to adjudicate upon the val- idity of, the title to property which it is alleged has been con- idiemned and sold by a foreign government recognized by the Uni^d States ^^ although the action of the authorities of such foreign government must be accepted as the rule of decision.^® ... A coiirt has jurisdiction to decide the title to land held by an iudividual in territory over which the United States exercises de 7 the Maipo, 252 Fed. 627; M. Fed. 261; Hewitt v. Speyer, C. C. Baars & Co. v, The Adriatic, C. C. A.j 250 Fed. 367; Rieard v. Am. A., March, 19ib. - Metal Co., 246 U. S. 304. 8 The Adriatic, C. C. A., 258 Fed. 12 Underhill y. Hernandez, 168 902. ' U. S. 250, 18 Sup. Ct. 83, 42 L. ed. 9 The Florence H., 248 Fed. 1013. 456. 10 The Florence H., 248 Fed. 18 Am. Banana Co. v. United 1013.' I'ruit Co., 213 TI. S. 347, 29 Sup. • 11 Underhill v. Hernandez, 168 U. Ct. 511, 53 L. ed. 826. S. 250, 18 Sup. Ct. 83, 42 L. ed. 1* Hewitt v. Speyer, C. C. A., 250 '456, affirming G. C. A., 65 Fed. 577, Fed. 367. 38 L.R.A. 405; Am. Banana Co. v. ISOetjen v. Central Leather Co., .United Fruit Co., 213 U. S. 347, 20 246 U. S. 297, Eicard v. Am. Metal Supt. Ct. 511, 53 L. ed. 826, 16 Ann. Co., 246 U. S. 304. , Cas. 1047, affirming C. C. A., 166 16 Ibid. 654 l^LAINTIPPS OR DEPENDANTS IN A SUIT IN EQUITY [§ 103 facto jurisdiction, although ilegotations are pending by the United States and a foreign gdvernlnent to determine which of them has the right of sovereignty thereover.^'' ' § 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.^ Such consent was given by the State when it was admitted into the Union, upon an eijual footing with the other States.^ §104. Liability of a State to a suit by another State. The Constitution provides that "the judicial power shall extend . . . to Controversies between two or more States, . . - and between a State, and the Citizens thereof, and foreign States, Citizens, or Subjects." ^ 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 Statfe. Such jurisdiction, how- ever, is confined to controversies concerning rights affecting property ; not to those merely affecting political rights.* It in- cludes controversies concerning boundaries between different States, even though the complainant claim no title other than that of sovereignty and jurisdiction over the lands in question.* For, "in this country, where feudal tenures are abolished, in cases of escheat the State takes the place of the feudal lord, by virtue of its sovereignty, as the original and ultimate proprietor of all the lands within its jurisdiction. " * If, however, in a bill which prays relief against a threatened invasion of rights purely political in their nature, a threatened injury to property be stated "only by way of showing one of the grievainces resulting from the threatened destruction of the State, and in aggrava- tion of it, not as a specific ground, of relief;" and "this matter 17 Cordova v. Grant, 248 U. S. Georgia v. Grant, 6 Wall. 241,, 18 L. 413. eel, 848. § 103. 1 U. S. V. Texas, 143 U. * Rhode Island v. Massachusetts, S. 621, 36 L. ed. 285; Kansas v. U. 12 Pet., 657, 9 L, ed. 1233; Missouri S., 204 XT. S. 331, 51 L. ed. 510. "■ ^o™? ^ ^o"- ^60, 12 L. ed. 861; 2U. S. V. Texas, 143 U. 8. 621, ^'""'^'^ ^- Georgia, 17 How. 478, 15 646, 36 L. ed. 285, 293. ^- ^^- ^^^' Alabama v. Georgia, 23 ^104 lArt III S2 ^■''- ^^^' ^^ ^■^^■55&; Virginia !-.u , !; v., West Virginia, 11 Wall. 39, 20 2 Cherokee Nation v. Georgia, 5 l gj; g7_ Pet. 1, 8 L. ed. 25; Georgia v. Stan- 4 Georgia v. Stanton, 6 WalL 50 ton, 6 Wall. 50, 18 L. e(i. 721; 75, 18 L. ed.,721, 724. , §104] SUITS BETWEEN STATES,., 655 of property is neither stated as an independent gro,und, nor is it nptice;d at all in the prayers for, .rplief : " the bill will be dis- missed.* A State. may sue another State for an injunction against the diyersion of ,the waters of a stream flowing through both which unreasonably intepfepqs with their use for irrigation,® and to en- join 0.J public; -nuisapce affecting a;large.nupa)bpr of the complain- ant's, citizens, such as the pollution of the water.'' , A State can- not sue another State or the Government and Health officials of the latter to enjoin their enforcement of unreasonable quarantine regulations which interfere with commerce between the two Stfttes.* A State cannot. obtain an order or judgment compelling a governor of another State to return a fugitive from labor or justice.® A suit cannot be maintained when brought by one State against another to enforce the payment by the latter of its bonds originally held by citizens of the; former State, and as- signed by them to it solely for the purpose of collection.^" But a State which owns absolutely the bonds of another State, although it has received 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. ^' A State may sue another State, and a municipal cor- 8 Georgia v. Stanton, 6 Wall. 50, $27,400, with costs. The Committee 77, 18 L. ed. 721, 725. of the North Carolina bondholders 6 Kansas v. Colorado, 206 U. S. subsequently offered, to the Gover- 46, 51 L. ed. 956. _ nor of South Dakota, other bonds of V Missouri- v. Illinois, 180 U. S. North Carolina, which with princi- 208, 45 L. ed. 497; s. c, 200 V. S. pal and interest aggregated $150,- 496, 50 L. ed. 572. ,, 000. Governor Elrod wrote, in an- 8 Louisiana v. Texas, 176 U. S. 1, swer : ' ' Your kind offer is declined, 44- L. ed. 347; Kansas v. Colorado, for the reason that it seems to me 206 XJ, S. 46, 86, 51 L. ed. 956, 970. to be against public policy and good 9 Kentucky v. Dennison, 24 How. conscience. ' ' On January 8th, 1907, 66, 16 L. ed. 717. he recoAmended the passage of an 10 New Hampshire v. Louisiana, act returning the money received 108 tJ. S. 76, 27 L. ed. 656. from South Carolina, saying: "Mpr- 11 South Dakota v. North Caro- ally, we have no right to one cent lina, 192 U. S. 286, 48 L. ed. 448. of this money, and we ought to be Before the day fixed for the sale, brave enough and true enough to the defendant paid the amount of give it back. This money was clearly the plaintiff's claim in full, namely, intended for our university. She 656 PLAINTIFFS OR DEFENDANTS IN A SUIT IN EQUITY [§104 poration of the latter, for an injunction against the excessivfe and unreasonable discharge of sewage into a river, which poisons the water supply of the inhabitants of the plaintiff 'and injuriously affects that portion of the bed of the river which lies within the plaintiff's territory.'^ A State may sue another State, to pre- vent the latter from authorizing the diversion of the waters of a stream flowing through both States, so as to deprive the plain- tiff's inhabitants of the water, to which they were entitled;^* 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. It is entirely plain, that ingenious schemers are using our State for private , ends. * * * If is plain that designing individuals would contmue to use the good name of the State of South Dakota to collect questionable se- curities of other States. * * » It is clear to me that our State ought not to become a collecting agency, neither ought it to forget the docstrine 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. No State ought to be endowed with the power to speculate upon unen- forceable claims of individuals apainst other States. Under the Federal Constitution individuals cannot sue States on such bonds, 90 the holder gives or sells them te us, and we can sue the State that issued the bonds. The decision in the above entitled, case hangs j en- tirely on the fact that South Dakota was the iona 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 donaticin , 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 the Union; and I do not wonder ithat, the Governor of South IJakota, 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 Carolina!" Report, p. 171, Mohonk Conference, A. D. 1907. 12 Missouri v. Illinois, 180 U, S. 208, 45 L. ed. 497 ; s. c, 200 U. S. 496, 50 L. ed. 572; where the bill was dismissed without prejudice after a trial of the issues of fact. 13 Kansas v. Colorado, 185 U. S. 125, 46 L. ed. 838; where the bill was eventually dismissed, , withoiii prejudice to the right of the plain- tiff to institute new proceedings whenever it shall appear that through a material increase in the depletion of the waters of the Ar- §105] i SUITS AGAINST STATES -BY PRIVATE PERSONS 657 arid where the navigability of the stream is not affected, the Ufaited States has no right of intervention because of its "alleged duty'of legislating for the reclamation of arid lands.^* A State cannot sue another State, to enjoin the enforcement of quaran- tine regulations, which impose unreasonable restraint upon com- merce between ports of the' two States.^^ A tribe of Indians domiciled within the borders of the United States does not con- stitute' a foreign State within the 'meaning of the Constitution.^^ §105. Liability of State® 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. "^ This was held to subject a State to liability to an. action by a citizen 'of another State.^ The decision was opposed, to the opinions of Marshal! and others, as expressed in the 'con-' ventions which ratified the Constitution,' and was repugnant to the feelings of the people. Consequently, the Eleventh Amend-'; ment was adopted! Thissenaeted that "the Jjidicjal Power of the United, States shall not be construed; to exteind 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." " ' A State cannot, without its consent, bie sued by one of its own' citizens, ev^n on a, cause of action arisin'g under the Consiitu-,' tion and laws of the United -States.* ,; It hag been suggested, but not decided, that, in a case arising under the Fourteenth Amend- ment,' the inhibition of 'the Blevehth Amendment mav not' kansHiS by Colorado, its corporations §105. 1 Art. II^L, §2. The li^- j or citizens-, the sit)stantial interests bility of a State to suit by the of. Kansas ai;e being injured to the TJnited States or another State is extei?.t of destroying the equjtable described, supra, § 3. , , apportionment of benefits between 2 Chisholm v. Georgia, 2 Dal^. 419, the , two,. States resulting from the 1 L. ed. .440. . , , flow of the river. .Kansas v. Colo- 3 See Elliott's pebates. In Hans r^'jJo, ,20,6 !u. S.v 46) 117, 118, 51 L. Louisiana, 134 V. S. 1, Bradley, J., ed. 956, 983. speaking for the court, said that , 4* Kansas v. Colorado, 206 TJ. S. Chisholm v. Georgia was erroneously. 46, 86, 51, L. ed., 956, 970. de.cided. ,15 Louisiana y. Texas, 176 U.. S. 4 Hans v. Louisiana, 134 TJ. S. 1, 1,, 44 L. ,ed. 347. Supra, i 3. 33 L. ed. 842; ..North Carolina v. 16 CJierokee Nation v. Georgia, 5 Tenj^ple, 134 U. s! 22, 33 L. ed. 849., Pet. 1, ,8 L.,ed,. 25. , . Fed. Prac. Vol. 1—42 658 PLAINTIFFS OR DEFENDANTS IN A SUIT IN EQUITY f§ 105 apply.' It has been said: "The Constitution, with its amend- ments, is construed as one instrument, and the Eleventh Amend- ment cannot be applied to nullify the power conferred on Con- gress to regulate commerce among the several States. It is not a barrier to judicial investigation to ascertain whether other provisions of the Constitution have been disregarded by the State action. " ^ A corporation chartered by Congress cannot sue a State.' An action at law or a suit in equity or in admiralty, against a municipal corporation,* or against a county,' or any other political subdivision of a State,^" is not a suit against a State and a State statute cannot divest a Federal court of jurisdic- tion over such a suit.^l Where a State statute authorizes suits against the State only in a State court, the District Courts of the. United States have no jurisdiction.^* 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. ^^ A State agricultural college may be sued for a tort.^* It has been held at circuit, that a crossbill may be filed against B 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. Cas. 764. 6 Illinois Cent. B. Co. v. Mis- sissippi Eailroad Commission, C. C. A., 138 Ted. 327, 331; per Shelby, J. See also Southern By. Co. v. Greensboro Ice & Coal Co., 134 Fed. 82. 7 Smith V. Beeves, 178 XJ. S. 436, 44 L. ed. 1140. 8 Cainden Interstate By. Co. v. Catlettsburg, 129 Fed. 421; TJ. S. v. Port of Portland, 147 Fed. 865. 9 Lincoln County v. Luning, 133 U. S. 529, 33 L. ed. 766; Eaton v. Shiawassee County, C. C. A., 218 Fed. 588 ; Lauderdale County v. Kit- tel, C. C. A., 229 Fed. 593; United States V. C. A. Biffle Co., 247 Fed. 374. 10 Hopkins T. Clemson Agricul- tural College of South Carolina, 221 TJ. S. 636, 55 L. ed. 890. See supra, §95. 11 Lincoln County v. Luning, 133 TJ S. 529, 33 L. ed. 766. 12 Smith V. Beeves, 178 TJ. S. 436, 44 L. ed. 1140; Smith v. BacklifEe, C. C. A., 87 Fed. 964; Deseret Wa- ter, Oil & Irr. Co. v. State of Cal- ifornia, C. C. A., 202 Fed. 498. 13 Southern By. Co. v. North Car- olina B. Co., 81 Fed. 595, 599, 600; Simonton, 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 U. S. 636, 55 L. ed. 890. But a State court has held that an action against a State industrial school in Alabama is an action against the § 105] SUITS AGAINST STATES BY PRIVATE PERSONS 659 a State, which has brought an original bill ; ^® but it seems that ho affirmative judgment can be rendered against the State in such ease.^^ It has been held at circuit : that after the removal of a suit brought by a State, an injunction may be granted to stay further proceedings in the State court therein.^'' A State may waive its exemption from suit.^* An appear- ance by the State attorney general, "for and on behalf of the State, ' ' under statutory authority is a waiver, by the State, of its immunity from suit.^' But not when the statute limits his right of appearance in such litigation to the Courts of the State,*" nor when he has no statutory authority.*^ AVhen 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 con- cerned.** A statute providing that a State officer should be made a party defendant to all actions to; recover taxes *' or to set aside tax sales ** was held not to be a waiver, by the State, of its constitutional immunity from suit in a Federal Court. 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.** Where, in the regular course of judicial administration, prop- erty of the State, or in which the State has an interest, has State. Alabama Girls' Industrial 477. See Getting v. Kansas Gity School V. Reynolds, 143 Ala. 579, 42 Stock Yards Go., 183 TJ. S. 79, 114, So. 114. , 46 L. ed. 92, 110> See supra, § 95. IS Port Royal & A. Ry. Go. v. 20 Deseret Water, Oil & Irr. Co. v. South Garolina, 60 Fed. 552. See State of Galifornia, C. C. A., 202 the Siren, 7 Wall. 152, 154, 19 L. ed. Eed. 498. 129, 130. Swpra, § 95. 21 Farish v. State Banking Board IBEeeside v. Walker, 11 How. of Okla., 235 U. S. 489, 512. (U. S.) 272, la L. ed. 693; New 22 Interstate Gonst. Co. v. Regents York V. Dennison, 84 N. Y. 272. of the University of Idaho, 199 Fed. I7Abeel v. .Culberson, 56 Fed. 509. 329. .See infra, §§ 268, 284, 361. 2S Smith v. Reeves, 178 U. S. 436, 18 Gunter v. Atlantic Coast Line 46 L. ed. 1140. B. R.:Co., 200 U. S. 273, 50 L. ed. 24 Chandler v. Dix, 194 U. S. 590, 477; Interstate Const. Co. v. Re- 48 L. ed. 1129. gents of the University of Idaho, 2& Alabama Girls' Industrial 199 Fed. 509. School v. Reynolds, 143 Ala. 579, 42 19 Gunter v. Atlantic Coast Line So. 114. R. R. Co., 200 U. S. 273, 50 L. ed. 660 PLAINTIFFS OR DEFENDANTS IN A SUIT . IN EQUITY [§ 105a come under the control ;of the court, without being forcibly taken Jrom the possession of the government ; the cou-pt ; wiil proceed to discharge: its, duty in regard, to the samcf;.,.anidi;the State, if it choose to come in as plaintiff, , as lin ,pri(ze cftses, or to intervene in other cases where, it has' a lien or lOther claim upon , the; property, will be permitted so to do, - subject, how- ever, to: the State's rights and will receive the same consideija,: tion as those of any other party .interested in the matter, and will SO; far as its rights in such property are concerned ibe, sub- jected)in like manner to the judgment of. the court?®, Cases have often arisen, where, although a State was not a party (to the record, it had rights which it claimed would be affected by the determination of the suit; before the court. ^ To determine; accujrately the jurisdiction of the Federal court ,m such; cases has been a very difficult and delicate matter ;,iara,d the questions which thus , continually arise are hard tp; 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; Meyenth Amendment.^'' Whether; a State, is an actual party in the sense o| the , prohibition must be determined by a consideration of the nature of the case as presented by, the,'v\(h()le; record.^* ,,; §105a,. Act;ions at comman law a,gaiiist State officers. An ac1;ion a,t common law, against a public: officej-, who is sued as an individual and justifies under the authority of the State, is usually held not to be an action against the Stq,teT^ , To make out his defense, he must show that his authority was sufficient in law to protect hiin.* It has been so held of an action of 26 Clark V. Barnard, 108 tT. S. 436, 88 Poiadexter v. ;Greenbow,! 114i TJ. 27 L. ed. 780; Chinningham r. Macon S. 270, 287, 29 L. ed. 185,. 191; In & Brunswick E. Co., 109 TJ. S. 446, re Ayers, 123 TJ. S 443, 492, 29 L. 452, 27 L. ed. 992, 994; 'citing' The ed. 185, 191; Pitts v. McGhee, 172 Siren, 7 'Wall. 152,' 157, 19 L. -ed. TJ. S. 516, 43 L. ed. 535. See supra, 129.; THe, Davis, 10 Wall. 15, 20; 19 §§95; 100. ' -n ;,. , L. ed. 875, 877. Supra, § 95. § 105a. 1 Cunningham v. Macoii & 27 Elliott V. Wiltz, 107 TJ. S. 711, Brunswick R. Co., 109 TJ. B. 446, ,452, 27 L. ed. 448; Cunningham v. Maeon 27 L. ed; 992, 994. &'?Brunswick"E. Co., 109 TJ.. S. 446, 2 Cunningham v. Macon &Br.unB- 27 L. ed. 992; Hagood v. Southern, wick R. Co., 109 TJ. S. 446, ; 452, 27 117iTJ: S. 52, 29 L. ed. 805; In re L. ed. 992, 994.; .: 'Ayets,1.23.TJ.;S. ,443, 31 L, ed;;216; ; ■•/ Pitts Y. MeGhee, 172 TJ. S. 516, 43 , . . : L. ed:"535. ' -i §,lQ5a] ,, ACTIONS, AGAINST STATE OFFICERS 661 ejeetpienl;, against I, a, State pffieerj,, who heldi ilajad : in the name ^nd J.pr thes uses ,o£~the State ;^ even when the defendant was sja,e4>ias ;(2ojnp,troller .of the State;* and tha-taftera judgment jn.^ej^tnieiit against . him, another State officer cannot inter- vene and have the judgment opened upon an answer contain^ .jflg,:4ihe,^.saHie .defense.^^ , An action ef detinue ndiay be main- tained ;aga.in^t ■ a ' State> .officer* , to recover the possession; of per- actn^l , property, , which he has' seized under State authority.* A, Stfttej jpfficeri may be sued in trespass; for the seizure of per- soual property in obedience to an., unconstitutional statute of the .^tate.''[. A State Bank Cprnmissioner may be' sued for.dam: ages.i9,aused by Jiis.loss in guarding, thfj, business and assets of a,;.]^ap^,?.but|,an action, against a State treasurer, to recover ,^;xes., illegally ^xaeted,® arid an action | against a County Dis- pensary Board, .in ^pu1;h Carolina, t!0,recover,th,€! price pf sup- plies bought on behalf pf the State, the proceeds of. the sale of which bad been paid to other State officers,^" are suits against the State, and cannot be maintained. And, it' has been held, tBat a State officei* cannot be sued for damages under the Fed- eral, anti-;trust, law, ^^ for aiding the State in monopolizing in- teijsitate, cpjmiierce.i^? When a State officer has a well defined duty in 1 regard to a^ specific matter, which is not discretionary, and which does not affect the general powers or function of tlie gbverfiiiieiit ; Ijut in the performance of which one or more individuals have a distinct interest capable of enforcement by judicsial process r a writ of mandamus will usually issue against .r-. . I .;.•', ...■ I'! ..- rSXindaL*. Wesleyj 167 :TJ. S. 9 Smith v. EeeveSj 178 Hi; S;;436, 204, 42 L. ed; 137. ' > 44 L. ed. 1140. l.Saranac, It; & T. iCo., v. Bob- lO Carolina Glass Co. v.; Murray, erts, 68 Fed. 521. 197. Fed. 392: ;"Wheretk& statute . 6 Vance: V. : "Wesley., 85 Fed. 157. (25 St. at L.,) South Carolina, p. SPoindexter v. Gareenhow, 114 V. 463) provided for a purchase in ^. 270, \29 L. ed.a85. ■: ' the name of the State and "that the i7 Virginia Coupon Cases,. 114 TJ. State should not be liable on any Sii; 4Herndon v. Chicago, riRQck In- land & Pac. Ey. Co., 218, U. S. '13§p 54 L. ed; 970; St. Louis & S. E.fR. Co. V. Allen, 181 Fed. 710;, Louis?? ville & N. R. Co. V. Bosworth, 20t' Fed. 380. ■: ..„:.a. 6 Such ,suits have been siiataiiied: in Davis V. Gray, 16 Wall. 203, 21 L. ed. § llOSc;] i I 1 ,: .INJUNCTIONS AGAINST STATE OFPICEES 665 State! bbard^^ from bringing suits, whether civil or criminal, ;in its courts, in- 1 pursuance of a State statute, which isuncon- istJrtutio-nal; or from enforcing such a statute;'' or from en- •- forcing ! the/ order of a State board in pursuance of such a statute;* or to enjoin a State railroad commission from suing It®: recover penalties for the violation of an order made by it, -^hieh was void as a regulation of interstate commerce.® Ab jvmjiunctiom!imay;-be granted a/gainst a State officer,^" even, it iseems,"a State prosecuting officer,^^ to prevent ^ his invasion : of the rights of i the complainant to property, although he acts ..under .color of .the- attempted administration of a constitu- ttional statute. Where State officers, under a statute which r447: Pennoyer v.;McOflnnaughy, 140 .V'. S.'i, 35 L. ed..363', s"a,43 Fed. isiS,' '339 ■' Southern' Ey; 'cdJ v. N^orth Carolina E. Go!, .81 Fed. 595. It has J&en' held; that the court may take jurisdietijOp pifi sueh a{ai}it. Crane v. ■Iphnsiou, 233, Fed; ,334, ;But spe, Gun- ^ liingham v. Macon & Brunswick B. 'CSy.;'109 U. S. 446,'k53'; 27 L. ed. ' 992,! 905, perMillef, J.' "It is, ,clea,r that tin enjoining the governor of the. S|tate^in ,.th,e, perforinance, of one of his executive functions, the ea'se'g'oes'to the verge of' sound doc- trine, if not beyond it, and that the priati^le should be extended no fur- ther'." '■■ 6 Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819; University of "the ■South V. Jetton, 155 Fed. 182, a;p- ''provedias'to this] reversed upon an- other point; '208 U. S. 48»,'52 L. ed. 5«4.i'- Scully V, Bird, '209 U. 8. 481, 52 L. ed. 899. Western Union Tel. Co. v.- Andrews, 216 U. S. 165, 54 L. lied;" 430; Hei-ndon v. Chicago, Eock •Islaind &'Pae. By Co., 218 U. S. 135, S4'L. ed. 970; St. Louis & 8. F. B. Co.'-V. iHadley, 161 Fed. 419; Cen- tra! 'of Georgia By. Co. v. Bailroad d^mmis^idn ' bf Alabama, 161 !Fed. 9-25 ; i KatsSb Natui-al 'Gas Co. v. Haskell, 172 Fed. 545; St. Louis & S. F. B. C9, V. Allen, 1^1 Fed. 710; Louisville & N, E. Co. v. Bailroad Commission of Alabama, 191 Fed. 757. An individual may be enjoined from suing, toi recover a' penalty Or 4aimages '• , und^r a. .State statute, which is unconstitutional. McNeil V. Southern By. Co., 202 U. S. 543, ' 50 L. ed. 1142; Louisville & N.' E. Co. V. Bosworth, 209 Fed. 380.' 7 East V. Van Deman & Lewis, 240 V.,B, 342, 355; Louisville & N. E. Co. V. Bosworth, 209 Fed. 380; iRock- away Pacific Cdrporation v. Stotes- bury, 255 Fed. 345. 8 Smyth v. -Ames, 169 U. S. 466, 42 L. ed. 819 ; Herndoii v. Chicago, Bock- Island & Pae. By. Co., 218 U. S. 135, 54 L. ed. 970. 9 McNeill ' V. >Southe*n By. ' Co., 202 U. S. 543, 50 L. ed. 1142; affirm- ing Southern By. Co. v. ' Greeiistioro Ice &' Coal Co., 134 Fed. 82; Cen tral of Georgia By. Co. v; Bailroad Commission of Alabama, 161 Fed. 925; Louisville & N. E. Go. v. Bail- road Commission of Alabama, 191 Fed. 757. 10 Greene v. Louisville InteruAan B. B. Co., 244 U. 8. 499. H Jacob Hoffman Brewing Co. v. McEUigot, C. C'. A., 259 Fed. 525, 527, 542. 666 PLAINTIFFS OR DEPENDANTS IN A SUIT IN EQUITY [§ 105c was constitutional, denied the complainant the equal protec- tion of the laws by an arbitrary discrimination against it, on its application for a racing license the court held, that it had jurisdiction to grant an injunetion.^^ 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 ; '' even when acting under the orders of the State court in a case of which the Federal court had prior jurisdiction;" from infringement of the copyright of an edition of the State statutes under express l^slative authority ; ^^ from revoking a license to transact business in the State, which has been issued to a foreign corporation,^® or from annulling the franchise of a corporation, in pursuance of an unconstitutional State statute ; ^^ 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.^' It has been held, 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.^® A State board 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 ex- change.^" An injunction was granted against a State treasurer 12 Douglas Park Jockey Club v. 21 L. 447. "It is clear that in en- Grainger, 146 Fed. 414. joining the governor of the State 13 Scott V. Donald, 165 U. S. 107, in the performance of one of his 41 L. ed. 648. executive functions, the case goes 14 In re Tyler, 149 U. S. 164, 37 to the verge of sound doctrine, if L. ed. 689. not beyond it, and that the principle 15 Howell V. Miller, C. C. A., 91 should be extended no further." Fed. 129. But see supra, § 100. Miller, J., in Cunningham v. Macon 16 Met. Life Ins. Co. v. McNall, & Brunswick B. Co., 109 U. S. 446, 81 Fed. 888 ; Chicago, K. I. & P. 453, 27 L. ed. 992, 995. The orig- Ey. Co. V. Ludwig, 156 Fed. 152; inal ease was followed, however, in Chicago, E. I. & P. Ey. Co. v. Pennoyer v. McConnaughy, 140 U. Swanger, 157 Fed. 783; mfra, § — . S. 1, 35 L. ed. 363; s. c, 43 Fed. 17 Chicago, E. I. & P. Ey. Co. v. 196, 339. But see New Mexico v. Ludwig, 156 Fed. 152. Lane, 243 TJ. S. 52, supra, § 100. 18 Manchester Fire Ins. Co. v. 20 Board of Liquidation v. Me- Herriott, 91 Fed. 711, 716. Comb, 92 U. S. 531, 9B L. ed. 623. 19 Davis V. Gray, 16 WaU. 203, § 105c] INJUNCTIONS AGAINST STATE OFFICERS 667 forbidding him, from .payiAg, to anyone but the plaintiff the income of a fund, to which the plaintiff had a contractual right.^^ In two State courts, it has been held : that a taxpayer 's bill can be brought to prevent the payment of money from the State treasury, under an unconstitutional law.** An injunc- tion may be issued to restrain a State officer from levying an illegal tax;**, or making an illegal assessment for taxation.** The latest authorities are to the effect that when a State statute is constitutional, a State Attorney General or other public prosecutor can not be enjoined from acting under a mistaken construction thereof.*® It has been held: that no injunction can be issued against a State Attorney General to restrain him from enforcing an unconstitutional statute, which does not im- pose upon him a specific duty when he has not threatened to enforce it.** It has been held : that a Federal court cannot en- join either criminal or civil proceedings pending in the State court when the bill is filed.*'' Nor the issue under a State statute by State officers of a certificate of nomination to a can- didate for Representative in Congress. Nor to require a State officer to certify the nomination of a certain candidate for such office.*' It seems : that affirmative relief will not be granted to compel a State officer to perform an act forbidden by a State statute; even if such statute is uiiconstitutional.*^ 21 President, etc., of Yale College 113 Fed. 616, 65 L.E.A. 864; Cen- V. Sanger, 62 Fed. 177. See Ghaffraix tral Consumers Co. v. Austin, 238 V. Board of Liquidation, 11 -Fed. Fed. 616; Jacob Hoffman Brewing 638. The United States obtained Co. v. McEUigot, C. C. A., 259 Fed. an injunction against the use by a 525, 529, 532, 542. See Harkrader State Land Commission of the pro- v. Wadley, 172 U. S. 148, 169, 43 L. ceeds of public lands in violation of ed. 399. the terms of the gift. Ervin v. IT. 26 Cavanaugh v. Looney, 248 U. S 8. 251 TJ. S. 41. 453. »2Lynn v. Polk, 76 Tenn. 121, 27 St. Louis & S. F. R. Co. v. 123, 125; Butler v. EllePbe, 44 s. c. Allen, 181 Fed. 710, citing U. S. E. 256, 276, 283. S., § 720, Comp. St. 1901, p. 581. SSOsborn v. Bank of TJ. S., 9 See infra, §§270, 271. Scully v. Wheat, 738, 6 L. ed. 204; infra, Bird, 209 U. S. 481, 52 L. ed. 899. §S 151g, 271b. 28 Anthony v. Burrow, 129 Fed. 24 Union Pae. Ey. Co. v. Alexan- 783. der, 113 Fed. 347; infra, §§ 151g, 29 Cunningham v. Macon & Bruns- 271b. wick, E. Co., 109 .U. S. 446, 453, 454, 26 Arbuckle v. Blackburn, C. 0. A., 27 L. ed. 992, 994, 995 ; Pennoyer v. 668 PLAINTIFFS OR DEFENDANTS IN A StrlT IN JEQUITY [§' lOSfl The existence of a remedy in the State courts dtje's riot depi-ive the injured party of his rights to relieif in the Federal jurisdic- tion.^" When, however, the proceedings are adiriinistr^tivb rather than judicial in their natuire, the Federal courts will require him first to exhaust his remedies by' appeal or otherwise in the State Tribunal.'^ §105d. Practice upon applications for injunctions agairist State officers. The Judicial Code provides : "No interlocutory injunction suspending or restraining the enforcement, ojiera- tion, or execution of any statute of a State by restraining the action of any officer of such State in the enforcement or eXeCti- tion of such statute or in the enforcement or execution of an order made by art administrative board or commission acting under and pursuant to the statutes of such State, shall be isstie'd or granted by any justice of the Supreme Court, or by ahf District court of the United States, or by' any jtid'ge ' thereof , or by any circuit judge' acting as district judge, upon the ground of the unconstitutionality of such statute, unless the applicatidii for the same shallbe presented to a justice of the Supreme Court of the United States, or to a circuit or district judge, and gh&ll be heard and determined by three judges, of whom at least one shall be a justice of the Supreme Court, or a circiiit judge, and the other two may be either circuit or district judges, and titrfess a majority of said three judges shall concur in granting stich application. Whenever such application as aforesaid is i pre- sented to a justice of the Supreme Court, or to a judge; he shall immediately call to his assistance to hear and determine the application two other judges: Provided, however, Tliat one of such three judges shall be a justice of the Supreme Court-, or a circuit judge. Said application shall not be heard or de- termined before at least five days' notice of the hearing' has been given to the governor and to the attorney generalof the State, and to such other persons as may be defen49-nts. in the suit: Provided, That if of opinion that irreparable loss or McConnaughy, 140 TJ. S. 1, 35 L. ed. 31 PreWtis v.' Atlaritie'CoaSt liiiie 363. Co., 211 TJ. S. 210, 29 Sup. Ci' 67, 80 Smyth V. Ames, 169 TT. S. 466, 56 L. ed. 150'; Eenffradiiig'^'Oi] 18 Sup. Ct. 41'8, 42 L. ed. 819; Man- Co: v. Associated Pipe* Line Co., 217 ufacturers' Light & Heat Co. v.Ott, Fed. 273. See in/ra, § 105d. •' C. C. A., 215 Fed. 940, 943; '. - •■ ■.,'!! . ,. §'l'05d] PRACTICE 'UPON INJUNCTIONS AGAINST' STATi; OFFICERS 669 damage would result fo'tHecoiJaplainant unless a temporary restraining order is granted, any justice of thie'Supreitie' Court, 01* any circuit or district judge, inay grant siich" temporary restrainitig order at any time before such hearing anid determi- nation' of the application for all interlocutory injunction; btlt such teimporary restraining order shall remain in force only until the hearing and determination of the application for ain interlocutory injunction upon notice as aforesaid. The hearing upon su6h applieatioii for an interlocutory injunction shall he given precedence and shall be in every way expedited and be assigned for a hearing at the earliest practicable day after the expiration of 'the notice hereinbefore provided for. An appeal may be taken direct to the Supreme Court 'of the United States from the order granting' or denying; after notice and hearing, an interlocutory injunction in such case."^ It is further pro- vided, That if before the final hearing of such application a suit shall' have been brought in a court of the State having jurisdic- tion thereof under the laws of stiCh Statie to enforce such stat- ute or order, accomplished by a stay in such State court, of pro- ceedings under such statute or order pending the determination of such' suit by such State court, all proceedings in any court of the United' States to restrain the execution of such staitute or order s'hall'be stayed pending the final determination of such suit in the courts of the State. Such stay may be vacated upon proof made after hearing and notice of ten days served upon the attorney general of the State that the suit in the State courts is not being prosecuted with diligence and good faith."* '^ ,yhe wbr4S|''or in the cAforcempnt .or execution of an, order made by an administrative Board or Commission acting -under and. pursuant to the statutes of such State" were inserted •'by amendment; because of decisions of the Circuit Courts which held that a city ordinance^ and the order of a State Eailroad 1 §105d. 1§266, 36 St. 'at ' L. E. v. Niles, 218 Fed. 944; Equitable 1087. As aiU'd. by Act of Marrh Trust Co. v. Western Pac. By. Coi, 4, 1913,tT'. L. No. 445. 233 Fed. 334; Jackson^ v. Cravens, 8 Sparry & HuteMnson Co. v. 235 Fed. 212. ■-■ '■ ' ' ' City of iTacoma, 190 Fed. ' 682; S Cumberland Tel. &' Tel. ■ Gb." v. Biriningham Waterworks Co, v. City of Memphis, 198 Fed. '955; City ' of Birmingham, 211 Fed. Palermo Land & Water Co. v. Bail- 497;. Calhoun et al. v. City > of Se- road Commission of 'California,' 227 attle, 215 Fed. 226; Boston & M. E. Fed. 708. i -..,.. 670 PLAINTIFFS OR DEPENDANTS IN A SUIT IN EQUITY [§ 105d Commission * were not State Statutes within the meaning of this law although these courts took jurisdiction to set them aside on the ground that they were laws of the respective States, The statute applies to a suit against a State Railroad, Comr mission ^ or Public Safety Cominission.* It does not apply to injunctions against officers, boards or commissions of Porto Rico.'' It applies when the order is attacked as an infringemept of the Federal Constitution although the validity of the statute under which the board or commission acts is not questioned.' It does not apply when the validity of the statute is questioned solely because it is an infringement of the State Constitution * or where the validity of an order of a State Board is questioned because it is a violation of a State Statute.^" It hasi been said that no such injunctions should be granted except in clear cases where intervention is essential to protect rights effectually against injuries otherwise irremediable,^^ and that the complain- ant assumes the burden of showing with reasonable certainty that rates for a public service charged by a State Commission are unconstitutional.^^ But it has been held by the lower courts that where the penalties for disobedience are great an injunc- tion may be granted against their enforcement until the comr plainant has a reasonable time to comply with the order of the State officer or board. ^^ That excessive and accumulative penal- ties niay be enjoined until the final hearing of the suit." , Upon an application for a temporary injunction restraining 4 Chicago, B. & Q. K, Co. ,v. Ogles- see Lykins v. Chesapeake & O, Ey. by, 198 Fed. 153; Lykin v. Chesa- Co,., C. C. A., 209 Fed. 573. peake & O. Ey. Co., 0. C. A., 209 SMcDougal v. Mudge, 233 Fed. Fed. 573. 234. B Louisville & N. E. Co. v. E. E. 10 Lykin v. Chesapeake & O, By. Commission of Alabama, 208 Fed. Co., C. C. A., 209 Fed. 573. 35; Seaboard Airline Ey. Co. v. 11 Oavanaugh v. Looney^. 248 U. Bailroad Commission of Georgia, S. 453, 456. C. C. A., 213 Fed. 27; Eastern Tex- 12 Manufacturers Light & Heat as E. Co. V. Eailroad Commission of Co. v. Ott, 215 Fed. 940. Texas, 242 Fed. 300. 13 Phoenix By. Co. of Arizona v. 8 Cook V. Burnquist, 242 Fed. 321. Geary, 209 Fed. 694. TBenediet'o v. West Indian & 14 Kern Trading & Oil Co. v. As- Panaraa Tel. Co., C. C. A., 256 Fed. soeiated Pipe Line ' Co.,, 217 Fed. 417. 273. See Eastern Texas B. Co. v. 8 Louisville & N. B. Co. v. Bail- Eailroad Commission of Texas, 242 road Commission, 208 Fed. 35. But Fed. 300. § 105d]. PRACTICE UPON INJUNCTIONS AGAINST STATE OFFICERS 671 a State Railroad Commission and others from suing to enforce rates prescribed by the State Commission which were charged to be in conflict with an order of the Interstate Commerce Com- mission it was held to be unnecessary for the court to decide upon the merits of the ease but the court finding. that the bill presented a case for equitable relief and, that proceedings affect- ing some of the rates were still pending before the Federal Com- mission, the injunction was granted. ^^ In the same case it was held, that an order of the Interstate Commerce Commission could not be thus attacked collaterally.^^ It has been held that the statute forbids a single judge from ^denying a motion for sucli an injunction, and even from vacat- ing such a restraining order previously issued by. himself,^'' and that tlie Supreme Court may issue a mandamus to set aside such second order when made by him.^* It has been held that mandamus will not issue to compel a court of first instance to dismiss a ease, in which it is claimed that a State is a party, when such court has held that the State is not an indispensable party to.the suit,^* and that where the Supreme Court takes cognizance of a ease dismissed as against a State for want of jurisdiction; it cannot determine whether the bill should have been dismissed because not presenting a case for equitable re- lief.^" The Supreme Court of the United States has held that no such injunction should be granted against the enforcement of an order, of the State was until such appeals therefrom as are authorized by the State statute have been exhausted.^^ It has been held that where a supersedeas upon such an appeal to a State court is denied, the injunction may be granted,'* and wiiere the court was of the opinion that the statutory power 16 Eastern Texas E. Co. v. Rail- Co., 211 U. S. 210, 29 Sup. Ct. 67, road Commission of Texas, 242 Fed. 53 L. ed. 150. But see City of Kan- 300. kakee v. Am. Water Supply Co., 199 16 Ibid. Fed. 757; Kern Trading & Oil Co. 17 Ex parte Metropolitan Water v. Associated Pipe Line Co., 217 Fed. Co., 22.0 U.:S. '539, 55 L. ed. 575. . 273. But see Manufacturers Light 18 Ibid. & Heat Co. v. Ott, 215 Fed. 940. 19 Ex parte Nebraska, 209 TJ. S. 22 Love v. Atchison, T. & S. F. 436, 52 L. ed. 876. Ey. Co., C. C. A., 185 Fed. 321; af- 20 Scully V. Bird, 209 U. S. 481, fii-ming Atchison, T. & S. F. Ey. Co. .52 L. ed. 899. v. Love, 174 Fed. 59. 2iPrentis v. Atlantic Coast Line 672 PLAINTIFFS OR DEFENDANTS IN A SUIT IN EQUITY [§ 105d of review was unauthorized by the State constitution, such an injunction was sustained;^' Where the Federal Court denied the injunction an appeal, a supersedeas and a restraining order pending such appeal were denied without prejiidice to the' right of the plaintiff to renew its application in the Supreme Court.^* • 23 Kankakee V. Am. Water Supply Co., G. .0. A., 199 Pad. 757. ' 24 Louisville & N. E. Co. v. Eail- roa.d Cpminission, 208. Fed., 35, ,5§,, ' 60. Shelby, J. : " The applieation now before the court seeks to enjoin of stay the order of the Commission pending an appeal by the plaintiff to the Supreme Court from the order , refusing the interlocutory injunc- tion, The first application was for an injunction pending the suit which stood for trial in the District Court; the second application ' is for an'in- 'jtinotive order pending the appeal. Belief I on either application meant the suspension of the rates fixed by the.Cpmm-issioji and the re-establish- ment of the higher rates fixed by the plaintiff. Both ' applications are urged by the same ' feirguments and the same offer of bond. I can see no reason for granting the second application that would not have been equally applicable to granting the first. To have granted the first would not have delayed a trial on the merits. While to grant the second may have that effect. The real practical' question' on both applica- tions is- whether the Commission 's order shall remain in force oi be -suspended.' It is; of course,-* just as satisfactory to the plaintiff to' en- join it on appeal, with bond/ as on the first application, with bond. The delay ' in enforciiag the order, if it is finally enjoined, is likely to be greater by the granting of the stay on the second application than if it had been granted on the, first. > It seems , to m^ utterly useless ,to llW^ ref Uj^ed tip: fiTP^ ^PV]^p,^^9^> ^ tl*" second is to be granted. If a ease is now presented for the exercise of judicial discretion by revoking, in effect, our former order, we shoilld have granted the interlocutory in- junction on the ; first application. We gave reasons for the refusal ,of the injunction which seem to me equally controlling on the second motion. Conceding that 'the' stat- utes allow a supersedeas after denial of the injunction in cases arising under section 266,, we ,ha)^ b^efore us praetica,lly the same q;ie^tion that we had on the first application — whether or hot the Commission's order should be in force pending the litigation. , The only difference, is that the Commission 's prdeiT. is if.oyi fortified by tl^e opinion of this court. Having refused to enjoin it and hav- ing put it in force on' the' meKts after full hearing, it seems to me that it would be practically ■ a re- versal of our position to' snsjlend it now after our elaborate approval of it. I do not lose sight of the "fact that the first application was for an interlocutory injunction- only, and that the second is also for apjjeal. The question of suspending the Com- mission's order is separate from the claim for appeaL The latter is granted as a matter of course. But as to the suspension of the Comlhis- §106] SUITS AGAINST INFANTS 673 § 106. Suits against infants. An infant when sued should be provided by the court with a guardian ad, litem} For an omission to appoint a guardian ad litem, a decree against an infant will be reversed upon appeal.^ An application for the appointment of a guardian ad litem for an infant should be made by petition, which, if the appointment of a particular person is desired, should state his name and his consent to act as sueh.^ The court will usually appoint the infant's general guardian or "the nearest relative not concerned, in point of interest, in the matter in question;"* but the choice of the guardian rests in the sound discretion of the court, and only in an extraordinary case would a decree be reversed for an error in this respect.* The interests of an infant are guarded jealously by the court, which will not hold him bound by any admission made by him or in his behalf, whether in the pleadings® or sion's oi'der pending an appeal, if we have authority to grant it, like the one for the interlocutory in- junction, is addressed to the judicial discretion. "It is argued that, because one of the judges dissented from the decision on the first application, such doubt is created that the second ap- plication should be granted. If one thing is made clear by the statute, it is that one judge cannot grant the injunction. If, when the in- junction is refused by the court, composed of three judges, the dis- sent of one of the judges was per- mitted to control a second applica- tion and cause an injunction or a continuance of the restraining order, the purpose of the statute would be defeated. One judge could still prevent the enforcement of the rates fixed by a Commission or by a liegis- lature. "It is urged that the second ap- plication should be granted because the decision of this court may be reversed. If a majority of the court now believe we have decided erro- Fei. Prae. Vol. If— 43 neously in refusing the injunction on the first application, the way to correct it here, if we have authority to do so, is to set aside the order and grant the injunction. That should be done, if at all, directly, and not indirectly. ' ' See supra, § 100b. §106. IBule 70; Bank of TJ. S. v. Eitchie, 8 Pet. 128, 144, 8 L. ed. 890, 897. See Woolridge v. McKen- na, 8 Fed. 650, 670. 2 O 'Hara v. MacConnell, 93 U. S. 150, 23 L. ed. 840. 3 Ehinelander v. Sanford, 3 Day (U. S. C. C. D. Conn.), 279. iBank of XJ. S. v. Ritchie, 8 Pet. 128, 144, 8 L. ed. 890, 897; Story's Eq. PL, §70; Calvert on Parties, Book III., eh. xxxi. 5 Bank of U. S. v. Eitchie, 8 Pet. 128, 144, 8 L. ed. 890, 897. See Kingsbury v. Buckner, 134 IT. S. 650, 33 L. ed. 1047. 6 Baiik of U. S. v. Eitchie, 8 Pet. 128, 144, 145, 8 L. ed; 890, 897; Walton V. Coulson, 1 McLean, 125; s. c, Coulson V. Walton, 9 Pet, 62, 84, 9 L. ed. 51, 60; Hawkins v. Lns- . 67|4 PLAINTIFFS OB DEFENDANTS IN A SUIT IN EQUITY [§ 106 otherwise ; ' but a decree If^y consent as the result of a compro- ,,mise approy,ed by the ^ court may be made without a reference ,to a, Blaster,', although the safer, practice is to have it referred. , The guardian ad lit^m is ; responsible for the propriety of the . 4ef piise.^ He must; pay epsts for scandal ; ^° and he may be re- rnqved. by ,the,. court,; at any time." This may , be: done if he is unable or unwilling to pay. the expenses of the defense.^^ If no person of substance is, willing to serve for the infants, the court " might suspend , further proceedings until it could send a next friend or guardian, ad litem to, the State, courts, having juris- diction of their person, and property, to secure such guardian- , ,ship as would protect them. ' ' ^^ Infants may defend m forma pauperis; but, except ijnder, extraordinary circumstances, their expenses w^ill npt be advanced out ,pf a fund in the, hands of a receiver.^* A giiardian ad, litem may recoup his expenses from the infant's property.^^ According to English practice, an ■appearance could be entered for an infant before a guardian ad litem had been appointed.^* It is the safer practice in this country to serve the infant with a subpoena before the appoint- ment of a guardian ad litem ;^'' but where a guardian ad litem has been; appointed, it will be presumed, in the absence of evi- dence to the contrary, that the infant was duly served.^' A decree against an infant is void unless he has been personally served with process, although a general guardian has appeared for hiin,^' except in the cases where substituted service *" or service by publication is authiorized.*^ eombe, 2 Swanst. 375, 390; Savage 12 Ferguson v. Dent, 15 Fed. 771, V.Carroll; 1 Ball. & B. 553. 772. T Lega'rd v. Sheffield, 2 Atk. 377 ; 18 Ferguson v. Dent, 15 Fed. 771, White v. Miller, 158 U. S. 128, 39 772. L. ed. 921. See also Kingsbury v. 14 Ferguson y. Dent, 15 Fed. 771. Buckner,.'134 IT. S. 650, 33 L. ed. 15 Ferguson v. Dent, 15 Fed. 771, 1047; aarke v. Glarke, 178 XJ. S, 772. 186,- 44 L. ed. 1028. iSBraithwaite's Pr. 322. 8 Thompson v. , Maxwell: L. G: & . 17 Smith y. Eeid, 134 N. Y. 568; 'By. Cp.,- 168 TJ. 8. 451, 42 L. ed. Settlemier v. Sullivan, 97 tJ. S. 444, 539. , 24 L. ed. 1110 ; infra, § 163. 9 Knickerbaoker v. De Freest, 2 18 Sloane v. Martin, 77 Hun (N. Paige (N.Y.), 304. . Y.) , 249 ; W™, § 163. 10 Daniel] 's Ch, Pr. (2d Am. ed.) 19 N, Y.' Life Ins. Co. v. 204. ', ._ 10.3 U, S. 435, 26 L. ed. 580. 11 Russell' v. Sharpe, 1 Jae. & W. ZO infra, §165. 482. m' Infra, §166. § 108] SUITS AGAINST IDIOTS AND LUNATICS 675 §107. Suits against idiots, lunatics, and persons oi weak mind. Idiots and lunatics defend by guardians ad litem, ap- pointed for them by the court. ^ A committee will usually be appointed guardian ad Hi em of the person in h^s charge,* ur^less, his interest be opposed to that of t];ie idiot or lunatic,' or per- haps if he refuse to answer or defend.* The guardian ad litem is usually joined with the idiot or lunatic as co-defendant.* It was held by Chancellor Kent, tHat in New York the committee appointed in accordance with statute, and not the idiot or luna- tic, is the proper party to the bill ; * but the rule in tte Federal courts seems to be otherwise.' "A person reduced by age or infirmity to a second infancy may defend by guardian."* It is said that the answer of a superannuated person, put in by guardian, may be read against him as an answ(^r of one of full age put in in person; and that the difference in this respect be- tween such answer and that of an infant put in by guardian is, because an infant improves and mends, and therefqre is to have a day to show cause after he comes of age; but the other grows worse, and is to have no day.' §108. Suits against married women. In suits against a mar- ried woman by a third person. Tier husband, if not civilly dead or permanently absent from the State, should be joined with her as a co-defendant; ^ except in States where she has the same rights and liabilities as a spinster,* or when she is sued in a representative capacity.' She may, however, answer separately §107. lEule 70; Harrison v. 224, 225; citing Leving v. Caverly, Bowan, 4 Wash. C. C.,202, 207. Prec. Oh. 229. , ,,,,. .; . 2 Story's Eq. PI.,' §70; West- §108. 1 Story's Eq. PI., §71; comb V. Westcomb, 1 Dick. 233; Calvert om Parties, Book III., ch. Harrison v. Bowan, 4 Wash. C. C. xxx; Hiilm^ -v. Tenant, 1 Brown, 202, 207. , Ch. C. 16; Taylor V, Holmes, 14 1 SSnell V. Hyat, 1 Dick. 287; Fed. 498,, 514., Story 's Eq. PL, § 70. 2 Lorillard v. Standard OU Co., 4 Lloyd V. , 2 Dick. 460. 2 Fed. 902. But see Taylor v. 5 Harrison v. Eowan, 4 Wash. C. Holmes, 14 Fed. 499, 514 ; Douglas C. 202. V. Butler, 6 Fed. 228; U. S. v. Pratt 6 Brasher 's Ex'rs. v. Van Cort- Coal & Coke Co., 18; Fed. 708;. landt, 2 Johns. Ch. (N. Y.) 242. O'Hara v. MacConnell, 93 U. S. 15Q, T Harrison v. Bowan, 4 Wash. C. 23 L. ed. 840. ,, ,, C. 202, 207. , 3 Moore v. Meyvell, 2 Vei-n. 614, 8 Markle v. Markle, 4 J. Ch. 168. note. SDaniell's Ch. Pi-. (2d Am. ed.) 676 PLAINTIFFS OR DEPENDANTS IN A SUIT IN EQUITY [§ 109 from her husband.* A t)ill filed in the name of a married woman suing alone, may be amended by the addition of a next fripnd, when necessary.* § 109. Foreign executors and administrators as defendants. In the absence of a statute giving its courts jurisdiction over them, foreign executors and administrators are not subject to suit,^ unless they have assets within the jurisdiction where the suit was filed.* In the latter case, they are liable, as trustees, to account for the same, to those entitled thereto.* But a Federal court has no power to require an executor or administrator -to deliver a fund to an administrator appointed in another State.* The exemption from the jurisdiction may be waived.* A foreign executor, by filing a bill for an accounting of the affairs of a firm to which his testator belonged, waives his privilege and request- ing an adjudication of the claims of partnership creditors waives his privilege as against the partners and suoh creditors as intervene.® A State statute '' which authorized a foreign executor or ad- ministrator to sue or be sued was enforced in the New York State courts in an action at law under the Sherman Anti-Trust Act,' although the Federal court had previously quashed a summons in a similar action against the same person.^ Subse- quently, the Federal Court directed that service of a summons in a similar action be set aside, unless the defendant, upon the plaintiff's demand, should show that one of such States would recognize a judgment against a foreign executor in the pending action. 4 Duke of Chandos'v. Talbot, 2 3 Lewis v. Parr'ish, C. C. A., 115 P. Wms. 372. Fed. 285, See Columbia Law Rev., B Douglas V. Butler, 6 Fed. 228. June 1911, quoted in N. Y. L. J. § 109. 1 Vaughn v. Northru'p, 15 June 8, 1911. Pet. 1, 10 L. ed. 639 ; Courtney v. 4 Watkins v. Eaton, C. C. A., 183 Pradt, 196 TJ. S. 89, 49 L. ed. 398; Fed. 384. s. c, 135 Fed. 818; Lewis v. Parrish, B Lackner v. McKeehney, C. C. A., C. C. A., 115 Fed. 285; Skiff v. 252 Fed. 403. White, 127 Fed. 175; Lawrence v. 6 Ibid. Southern Pac. Co., 177 Fed. 547; TN. Y. Code of Civil Procedure, Story's Bq. PI., §179; Thorburn y. § 1836a. Gates, 225 Fed. 613. 8 Thorburn v. Gates, 184 N. Y. 2 Sandilands v. Innes, 3 Sim. 363; App. Div. 443. McNamara v. Dwyer, 7 Paige (N. 9 Thorburn v. Gates, 230 Fed. Y.), 239, 32 Am. Dec. 627; Campbell 922, s. c, 225 Fed. 613. V. Tousey, 7 Cow. (N. Y.) 64. CHAPTER ly. PARTIES. § 110. General rule as to parties. In ordinary eases, 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.-^ 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.^ This rule has been also stated by the- expressions: that "all persons interested in the subject of the suit should be before the court;"* 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. ' ' * "'In determining who are propeir 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 quetstions affecting liberty,' or life, or property ; na:mely, that no proceedings 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 '•ule 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 § IJO. 1 CaJvert on Parties, Book 4 Calvert on Parties (2d ed.), I ch. i, and cases there cited.- p. 13, and cases- there cited. Iron Z Harding v. Handy, 11 Wheat. Cliffs Cq. v. Negaunee Iron Co., 197 103, 6 L. ed. 429; Wisner v. Barnet, U. S. 463, 49 L. ed. 836; Olagett v. 4 Wash. C. C. 631, 642; Fallows v. Dilluth Tp., 143 Fed. 824; holding Williamson, 11 Ves. 313; Calvert on that ah injunction restraining a Parties, Book I, ch. viii. But see municipal corporation from buying Hicklin v. Marco, 56 Fed. 549. For bonds is no defense to an action the rule in patent cases, see infra, against it by a bondholder, who was § 112. not a party to that suit. 3 Sir William Grant in Wilkins v. Fry, 1 Mer. 244, 262. 677 678 PARTIES [§110 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 in all cases delights to do complete justice, and not by halves ; * to put an end to litigation, and to give decrees of such a nature that the performance of them may be perfectly safe to all who obey them: interest reipuhlicoe wt sit fims litium. In this re- spect there is a 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. ' ' * Thus, when a person who 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 perform 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."' The equity rules now provide: "All persons having an in- terest in the subject of the action and in obtaining the relief demanded may join as plaintiffs, and any 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 determination of the cause. B Knight V. Knight, 3 P. Wms. 7 Lord Chaneellor Talbot in 3.33. Knight v. Knight, 3 P. Wms. 331, 6 Calvert on Parties (2d. ed.), 334. pp. 2, 3. §111] PARTIES WITH NO INTEREST 679 Persons having a united interest must be joined on the same side as plaintiffs or defendants, but when any one refuses to join, he may for such reason be made a defendant. ' ' * Where a contract is joint, all the obligees of the obligation sought to be enforced must be joined as plaintiffs,^ but when the residence of one of them would defeat the jurisdiction all the obligors need not be joined as defendants.'" When a suit might have been brought by either a corporation or the owner of its stock , alone, it was held that the defendant could not complain because both were joined as complainants." § 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.^ The clerk of a court is not a proper party to a suit to enjoin the enforcenient of a judgment entered in his office.^ 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 ; ' but not, it seems to obtain discovery of such as they knew only through their participation in its formation.* 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 demurrer by them to 8Eq. Rule 37. Iron Co., 9 Paige (N. Y.) 189; 9 Himes v. Sohmehl, C. C. A., 257 Doyle v. San Diego L. & Tr. Co., 43 Fed. 69. Fed. 349; Virginia & A. Min. & 10 Camp V. Gress, 250 TJ. S. 308. Mfg. Co. v. Hale, 93 Ala. 542, 9 So. 11 Bellevue Mills Co. v. Baltimore 256 ; Continental Nat. Bank v. Heil- Trust Co., 214 Fed. 817, afE'd C. C. man, 66 Fed. 184; Consolidated A., 223 Fed. 753. See infra, § 140. Brake-Shoe Co., v. Chicago P. & St. §lil. iWych V. Meal, 3 P. L. Ey. Co., 69 Fed. 412; Calvert on Wms. 810, 311, note; Dan. Ch. Pr. Parties (2d ed.) 92-94. But see (2d Am. ed. 342.) Boston W. H. Co. v. Star E. Co., 2 Buckley v. U. S., 196 Fed. 429; 40 Fed. 167; Cleveland F. & B. Co. Wm. A. Eogers v. Nichols, C. C. A., v. U. S. EoUing S. Co., 41 Fed. 476; 124 Fed. 415. Calahan v. Holland-Cook Mfg. Co., 8 Wych V. Meal, 8 P. Wms. 310, 201 Fed. 607, quoting with approval Anon., 1 Vern. 117; Fenton v. the author upon the subject. Hughes, 7 Ves. 289; Glyn v. Sdares, 4McComb v. Chicago, St. L. & 1 Y. & C. 644; Many v. Beekman N. O. E. Co., 7 Fed. 426. 680 PARTIES [§111 such a bill making them parties defendant was sustained.^ Offi- cers 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.^ It has been held that officers of a corporation, who have committed no acts of infringe- ment except in their official capacity, cannot properly be made defendants to a suit to enjoin the infringement of a patent,'' or trademark,* unless the corporation is insolvent ; ® or unless the officers took an active part in the infringement or direetec? the same^" or in the formation of the corporation to continue infringements made by theniselves in their individual capac- ity ; ^^ or under other special circumstances.^^ Where an officer of a corporation has actively participated in an infringement ^' 5 Colonial & TJ. S. Mtg. Co. Ltd., V. Hutchinson Mtg. Co., 44 Fed. 219; Matthews & W. Mfg. Co. v. Trenton L. Co., 73 Fed. 212. See Boston W. H. Go. v. Star Rubber Co., 40 Fed. 167. 6 V. S. V. Standard Sanitary Mfg. Co., 191 Fed. 172. 7 Loomis-Manning Filter Co. v. Manhattan Filter Co., 117 Fed. 325; Farmers' Mfg. Co. v. Spruks Mfg. Co., 119 Fed. 594; 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 In- strument Co., ,C. C. A., 177 Fed. 1006; Steber Mach. Co. v. Random Knitting Co., 217 Fed. 796. See Wm. A. Rogers v. Nichols, C. C. A., 224 Fed. 415; Reis v. Bosenfeld, 204 Fed. 282. Contra, Peters v. Union Biscuit Co., 120 Fed. 679, 685. See Sfixlehner v. jEisner, C. C. A., 147 Fed. 189; s. c, 140 Fed. 938. 8 Vassar College v. Loose-Wiles Biscuit Co., 197 Fed. 982; Wm. A. Rogers v. Nichols, C. C. A., 224 Fed. 415. 9 Saxlehner v. Eisner, 140 Fed. 938. 10 Where an ofSeer of a corpora- tion was joined with it as de- fendant to a suit for the infringe- ment, it was held that he was not liable to account for profits realized by the corporation alone. Mc- Sherry Mfg. Co. v. Dowagiac Mfg. Co., C. C. A., 160 Fed. 948; Hitch- cock V. Am. Plate Glass Co., C. C. A., 259 Fed. 948. But that such an officer was liable for such proceeds as he had received from the infringe- ment by dividends, salary, payment for his time, or in any other way. Hitchcock V. Am. Plate Glass Co., C. C. A,, 259 Fed. 948, 955. See § 389f. 11 Wm. G. Rogers Co. v. Interna- tional Silver Co., C. C. A., 118 Fed. 133; Simplex El. Heating Co. v. Leonard, 147 Fed. 744. 12 Westinghouse El. & Mfg. Co. v. Mutual Life Ins. Co., 129 Fed. 213; Simplex El. Heating Co. ~v. Leon- ard, 147 Fed. 744; Weston El. In- strument Co. V. Empire Electrical Instrument Co., C. C. A., 177 Fed 1006. 13 Eddy et al. v. Kramer et al., 247 Fed. 962; Steber Mach. Co. Ill] PAETIES WITH NO INTEREST 681 or other tort,^* or the violation of a contract by the corpora- tion,^® he may be joined with the latter in an action by the party injured. Where fraud or idtra vires is charged against them, the officers, directors and attorneys, of a corporation, are proper,^'' but not indispensable parties.''* Stockholders who have not taken part in the transactions of which complaint is made are improper parties defendant to a suit for an injunction ; ^' not even, it has been held, in a stockholders' suit,^ nor in the case of a corporation holding a majority of the stock of another corporation, which has taken part in an infringement ; ^^ but they may be joined when they have organized the corporation with a small capital for the purpose of the infringement.** 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 defendant to an in- fringement suit.** Community of officers, directors, and stock V. Eandom Knitting Co. et aly 217 Fed. 796. A surety company which, in aid of an infringing paving contractor, executed a bond to in- demnify the city which employed him against liability for infringe- ment thereby became a party to the infringement and jointly liable for the consequences. Saxlehner v. Eisner, 140 Fed. 938. See Am. Bank Protection Co. v. El. Protec- tion Co., 181 Fed. 350. 14 Board of Trade v. Price et al., C. C. A., 213 Fed. 336; Favorite v. Cottrill, 6 Mo. App. 119 ; Peek v. Cooper, 112 111. 192, 54 Am. Eep. 231; Cameron v. K.-C. Com. Co., 22 Montana 312. 16 United Cigarette Maoh. Co. v. Winston C. Mach. Co., C. C. A., 194 Fed. 947. ITGeer v. Mathieson Alkali Works, 190 V. 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 Gh. App. 77, 90; Clinch V. Financial Corporation, L. E. 4 Ch. App. 117. 18 Sidway v. Missouri Ld. & L. S. Co., 116 Fed. 381; Geer v. Mathie- son Alkali Works, 190 U. S. 428, 436, 47 L. ed. 1122, 1126; Hatch v. Chicago, Rock Island & Pae. R. R. Co., 6 Blatchf. 105, 114. 19 Westinghouse El. & Mfg. Co. V. Allis-Chalmers Co., 168 Fed. 91; Johns-Pratt Co. v. Sachs Co., C. C. A., 175 Fed. 70. 20MeCrfea v. McOlenahan, 114 App! Div. (N. T.), 70. 21 Westinghouse El. & Mfg. Co. v. Allis-Chalmers Co., 168 Fed. 91. 22 Crown Cork & Seal Co. v. Brook- lyn Bottle Stopper Co., 172 Fed. 225; s. c, 190 Fed. 323. 23 Nat. Mechanical Directory Co. V. Polk, 121 Fed. 742; Reliance Const. Co. v. Hassam Paving Co., C. C. A., 248 Fed. 701. 682 PARTIES [§ 111 owners is not sufficient in the absence of other evidence to render one corporation liable for acts of infringement committed by another on the premises occupied by both.^* The State Attorney General and the County Prosecutor are proper parties defendant to a suit to enjoin the enforcement of a State statute, the violation of which is declared a criminal offence.^* A party cannot be made defendant to a suit because he has contributed to the defense of the same.** 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 concerning transactions, with which they were connected ; *'' but it is now held, that this cannot usually be done where their principals are peculiarly responsible.** And in a few eases of fraud it has been held that persons implicated in the fraud might be made parties merely to make them liable for costs.*' The obligor of an agreement to loan a mortgagor the difference between its earnings and its operating expenses and mortgage interest, and to pay the mortgagee such balance as might be due for interest and sinking fund, when the mortgage covered the mortgagor's rights under this contract but did not authorize a sale of such rights, was held not to be a necessary or proper party to a foreclosure suit and the court refused to order that it be brought in.'* An Indian agent is a proper, although not an indispensable party, to a suit to determine rights under leases of Indian lands.'^ «4 Union Sulphur Co. v. Freeport C. C. A., 194 Fed. 1; Taylour v. Texas Co., 251 Fed. 634. Eochford, 2 Ves. Sen. 281; Smith v. 26 Little V. Tanner, 208 Fed. 605. Green, 37 Fed. 424; Huggias v. 26 Parsons Non-Skid Co. v. E. J. King, 3 Barb. (N. T.) 617; Ham- Willis Co., 176 Fed. 176. mond v. Hudson K. I. & N. Co., 20 27Fenton v. Hughes, 7 Ves. 288, Barb. (N. Y.) 386; Pritchard v. 289; Dummer v. Corporation of Palmer, 88 Hun. 412; Calvert on Chippenham, 14 Ves. 252; Bowles Parties (2d ed.), 96, and cases cited. V. Stewart, 1 Soho. & Lefr. 209; See Ervin v. Oregon Ey. & Nav.^Co., Brady v. McCorker, 1 N. Y. 214; 27 Fed. 625. s. c, 1 Barb. Ch. 343. 30 Ex parte Equitable Trust Co., 28Seiferd v. Mulligan, 36 App. C. C. A., 231 Fed. 573. Div. (N. Y.) 33; Bowles v. Stew- 31 Texas Co. v. Central Fuel Oil art, 1 Soho. & Lef. 209. Co., C. C. A., 194 Fed. 1. 29 Texas Co, V, Central Fuel Oil Co., §112] UNNECESSARY PARTIES 683 § 112. Persons who on account of their interest need not be made parties to a suit in equity. No persons should be joined as parties to a suit in equity, either as co-plaintiffs or co-defend- ants, 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.^ Thus, prior incumbrancers should not be made parties to a bill for the foreclosure of a mortgage,* unless it prays for a receiver,* or seeks to obtain a sale of the entire mortgaged prop- erty free from all liens,* or unless "there is substantial doubt respecting the amount of debts due prior lien creditors,-" in which case "there is obvious propriety in making them parties, that the amount of the charge remaining on the land after the sale may be determined, and that purchasers at the sale may be advised of what they are purchasing ; " ^ or unless there are other peculiar circumstances making it necessary. Nor need a mortgagor who has sold his equity of redemption,' or a guar- antor of the mortgage debt even if he has paid interest,* be made a party to a foreclosure, unless relief is sought against him.* When, however, such relief is sought against the mort- gagor or a grantee of the equity of redemption who has assumed payment of the mortgage, all grantees who have made such an assumption should ordinarily be joined as defendants in order that their respective rights may be determined.^* Lessees are § 112. 1 Calvert v. Parties (2(1 5 Hagan v. Walker, 14 How. 29, ed.) 6; Mare v. Malaehy, 1 M. & 14 L. ed. 312; Jerome v. MeCarter, C. 559; Seymour v. Farmers' L. & 94 TJ. S. 734, 735, 24 L. ed. 136, 137: T. Co., C. C. A., 128 Fed. 907. MeClure v. Adams, 76 Fed. 899. 8 Calvert pn Parties (2d ed.), 6 Strong, J., in Jerome v. MeCar- 105; Marquis Cholmondely v. Lord ter, 94 IT. S. 734, 735, 736, 24 L. ed. Clinton, 2 Jac. & W. 138 Saumarez 136, 137. V. Saumarez, 4 M. & C. 331 ; Dial v. 7 Kanawha Coal Co. v. Kanawha Reynolds, 96 U. S. 340, 24 L. ed. & 0. C. Co., 7 Blatch. 391, 416; 644; imfra, §141. Grove v. Grove, 93 Fed. 865. But 3 Hagan v. Walker, 14 How. 29, see Matcalm v. Smith, 6 McLean, 37, 14 L. ed. 312, 316; Jerome v. Mc- 416. As to receivers, infra, § 113. Carter, 94 U. S. 734, 24 L. ed. 136; 8 Columbia F. & Trust Co. v. Nalle v. Young, 160 U. S. 624, 40 L. Kentucky U. By. Co., 60 Fed. 794. ed. 560. 9Ayers v. Wisawall, 112 U. S. 4 Miltenberger v. Logansport Ry. 187, 28 L. ed. 693. Co., 106 U, S. 286, 306, 27 L. ed. 10 Skinner v. Harker, 23 Colo. 117, 125. 333; s. c, 48 Pac. 648. But see 684 PARTIES [§ 112 not necessary, although they are proper parties to a suit to foreclose a mortgage prior to their leases,^ ^ or to foreclose a vendor's lien.^^ Where part of the mortgaged premises had been sold to the sdVel?eign 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.^^ To a suit 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^* 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.,^* Where the receivers of a corporation had made an absolute as- signment 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 such cause of action, although one of the receivers was entitled to one-quarter of the collection.^® The personal representatives of a deceased partner are not necessary Kelly V. Ashford, 133 U. S. 610, 18 Brisco v. Minah Consol. Min. 626, 33 L. ed. 667, 674; infra, § 120. Co., 82 Fed. 952. It was held in 11 Tyler v. Hamilton, 62, Fed. 187. Mississippi where a mortgagor had It has been held that tenants un- conveyed land to the children of his der, leases by a railway company, mortgagee, that the latter were not sutjeet to mortgages of the prop- necessary parties to a suit by, the erty, are not necessary parties to mortgagor against the mortgagee a foreclosure suit, and that their for an injunction and an account- rights are therefore extinguished ing. Lipscomb v. Jack (Miss., by the foreclosure sale (Ibid.), 1896), 20 S. E. 883., and that when all the property is in 13 Kawananakoa y. Polyblank, 205 the hands of the receivers, neither XT. 8. 349, 51 L. ed. 834. the first mortgagee, the mortgagor, 14 Frishmuth v. Farmers ' L. & T. nor any lessor, is a necessary party Co., 95 Fed. 5. to the foreclosure of a, second rail- IB Watson v. Bonfils, C. C. A., 116 road mortgage covering leased lines, Fed. 157, 160. but not affecting the rights of the 16 Fidelity & Deposit Co. of Mary- lessors. Grand Trunk Ey. Co. v. land v. Fidelity Trust Co., 143 Fed. Central Vt. E. Co., 88 Fed. 622. 152. § 112] UNNECESSARY PARTIES 685 parties to a bill to vacate a decree in favor of the partnership.^'' The United States are not necessary parties to a suit by a materialman upon a bond given to the Grovemment for the benefit of the plaintiff and persons Similarly interested.^* In suits for specific performance, it is a general rule that none are necessary parties but parties to the contract, or their representatives,^* including in a proper case their heirs ^^ and devisees ; ^^ unless there are other persons, such as the wife of the defendant,®* with such an interest in the contract or, the property agreed to be sold that their concurrence is necessary to the completion of the title, or that their rights would.be prejudiced were a decree made in their absence.*' But where the c6ntract calls for a title free from incumbrances the court may permit or direct, the lienors to be joined.** 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.*^ It has been held that in such a case he can sue without joining his principal, although defendant knew that he acted as an agent only.*® The licensee or assignee of a playright is not a proper party to a suit to enjoin the production of a motion picture play, which is an infringement of a copyright reserved by a licensor or assignor.**" Where the wife did not sign the contract and is unwilling to join in the conveyance she may be omitted.*' In a suit to enforce a constructive trust in certificates of the stock of a corporation, neither the corporation nor the former owner of the stock is a necessary party.** In a suit by the pledgee of corporate bonds to protect the security from waste, seeking a re- 17 Perkins v. Hendryx, 149 Fed. Evans v. Jaekson, 8 Sim. 217; Cal- 526. vert on Parties, Book III, eh. xvii. 18 Title Guaranty & Trust Co. of 24 Bryan v. Barriger, 251 Fed. 328 Seranton, Pa., v. Crane Co., 219 XT. 25 Pennsylvania & N. J. R. Co. v. S. 24, 55 L. ed. 72. See § 5a supra. Byerson, 36 N. J. Eq. 112, 116. iSTasker v. Small, 3 M. & C. 6."?, 26Kelley v. Tracy, 102 Mo. 522; 68; Calvert on Parties (2d ed.), Brown v. Fletcher, C. C. A., 206 Book III, ch. xvii. Fed. 461. 20 Morgan's Heirs v. Morgan, 2 26a Tully v. Triangle Tilm Corp., Wheat. 290, 4 L. ed. 242. 229 Fed. 297. 21 Woodward "v. Davidson, 150 27 Dixon v. Anderson, C. Ci A., Fed. 840. 252 Fed. 694. 22 Buck V. Buck, 11 Paige (N. 28BrisseU v. Knapp, 155 Fed Y.), 170. ' 809. 23 Jones V. Lewis, 1 Cox. Eq. 199 ; 686 PARTIES [§112 , peiyprship, the appointmejit of a new trustee and the termination of the company's business, the pledgor is a proper party.™ Nor need the assignor ojf the whole interest in a thing in action be made a party to a suit by the .assignee ; ^"^ except in the case of a suit by the equitable assignee of a patent,'^ or copyright,'^ or .trade-mark ^^ or by the licensee,'* or mortgagor by a mortgage 29 state Nat. Bai^K v. Syndicate Co., 178 Fed. 359. 30 Harris ' \'. Johnston, 3 Cranoh, 311, 2 L. edl 450; Boon v. Ciiiles, 8 Pet. 532, 8 L. ed. 1034; Robertson V. Garson,; 19 llV;all., 94, 22 L. e^. ^ 178; s. c. Chafes', Dec. 475; Bates- ville Institute , v. B^auffman, 18 Wall; ■I5i,''21 L. ed.'775; Fulham v. MeCarthy, 1 H. L. 0. 703. 31 StimBSon V. Eo,geiis, 4 BlatcHf. 333.;., North j,, Kershaw, 4 Blatehf. 70 ; ' Patterson v. Stapler, 7 Fed, ; 2l0; (joodyear y. Allen, 3 Fisher, '284. T6 a suit by the assignee o£ ' an applicant, for- a paten-t against ' the applican,t and' a corporation, to , T^l)ieh the patent had. been "issued, later applicants, who were in inter- ference with the first, are not nec- essary parties, althoiigli they have assigned their applications to the same conipany and deceived stock in return,- Thompson y,,. Automatic . Fire I^rotection Co.', 197 Fed. 750. ;EQr -transactions that passed, the •legal title see Am. Bank Protection ,Go. v.- , City N^t. . Bank, 181 Fed. 375., For, a transaction- that did' not, see Central Brass & Stamping Co. v.:Stuber, a C. A,j,<220 Fed. ,90». ,, , 32 Colbum , V. Duncombe, 9 Sim. 151; Chappell v. Purday, 4 Y. & C.,, -485,- Calvert -on Parties (2d ed.), 315. ... , , S3 A finger, who receive^ a roy- alty on the number of mechanical record? of his, -song, that, are =sold, is not a necessary party to a suit by the patentee and owner of the recqrds for an injunction against the sale of copies made by a, re- production of the same. Fonotipia Limited v. Bradley, 171 Fed. 951. • 84Krauss v. Jos. E. Peebles Sons Co., 58 Fed. 585; "Wayman v. Louis Lipp Co., 222 Fed. 679; Southern Machinery Co. v. Fay Stocking Co., 243 Fed. 917. Waterman v. Mack- enzie, 138 XJ. S. 252, 255, 256, 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 wliole patent com- prising the exclusive right to make, -use and vend the invention through- out the United States; or, second, an undivided part pr share of that exqlusive right; or, third, the exclu- sive right under 'the patent within and throughout a specified part of the United States, B. S., §4898. A transfer of either of these three kinds of interests is an assignment, properly speaking, and vests ;ini 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 andi third: cases, in 'the name of the assignee alone. Any assign- ment or transfer, short of one of these, is a mere license, giving the licensee no title in the patent, and no Tight to sue at law in his own name for an infringement. E. S., §4919; Gaylor v. Wilder, 10 How. 477, 494, 495, 13 L. ed. 504, 511, ,512; Moore: V. Marsh, 7 Wall. §112] UNNECESSARY PARTIES 687 duly ' recorded at Washington,'* or by an assignee under an 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. ' ' AdrianceJ P. & Co. v. MeCormick H. M. Co., C. C. A., 56 Fed. 918; Littlefield v. Perry, 21 "Wall. 205, 22 L. ed. 577. Where the owner of the patfent hEis 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 plaiintiff. E. S., §4521;' Little- field V. F'erry, 21 "Wall. 205, 223, 22 L. ed. 577, 579 ; Paper Bag Cases, 105 V. S. 766-771, 26 L. ed. 959- 961 ; Birdsell v. Shaliol, 112 tJ. S. 485-487, 28 L. ed. 768, 769. And see Eenard v. Levinstein, 2 Hem. & Mil. 628. "V\^hether a transfer of a particular right or interest under a patent is an assignment or a license does not depend upon the name by which it calls itself, but upon the legal effect of its provisions. For instance, a grant of an exclusive ripht 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 liniited to making, using and ;vending two ma- chines, excludes, all other persojis, . even the patentee, from making, using or vending like machines witliin the district. "Wilson v. "Bousseaii, 4 How. 6^6, 686," 11 li. ed. 1141, 1159. See D., M. Sechler Carriage Co. v. Deiere & Mansur Co., 113 Fed. 285. "Where, how- ever, the patentee reserved tlie/ right to use the inventions within the territory, for a specified pur- pose, and to ma,ke them therein for ' such use and for use outside of Jthe territory, and the licensee^ agreed not to lease or sell aiiy part of the' inventions for use outside of the territory, without the pateiitee'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 ; aii exclusive riglit' 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 pateiit-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,. 10 How. 477, 13 L. eii. 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. '822. So is an instrument granting 'the sole right and privilege of manufacturing and 688 PARTIES [§112 assignment still executory,'* or by an assignee,. such as a pledgee, whose assignor has an equitable interest in the property ; *'' when it is the safer practice to join, as plaintiff '* or defendant,'* the assignor, licensor, or mortgagee, as the ease may be. The exclu- sive licensee of a patent for a specified territory has the implied 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. Hayard v. An- drews, 106 TJ. S. 672, 27 L. ed. 271. See also Oliver v. Eumford Chem- ical "Works, 109 U. S. 75, 27 L. ed. 862. ' ' 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. De Forest v. Collins Wireless Telephone, Co., 174 Fed. 821. A patent-right is incorporeal 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 Shipman, 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 agreement pend- ing an application to assign any pat- ent which "may be" granted was held to transfer the legal and equit- able title to the patent when issued. Individual Drinking Cup Co. v. Os- mun-Cook Co., 220 Fed. SS.'i; South- ern Textile Machinery Co. v. Fay Stocking Co., 243 Fed. 917. An ap- plicant for a patent cannot sue for an injunction against an infringe- ment before the patent is issued to him. Standard Scale & Foundry Co. V. McDonald, 127 Fed. 709. 85 Waterman v. Mackenzie, 138 U. 8. 252, 34 L. ed. 923. 36 Land Co. of New Mexico i v. Elkins, 20 Fed. 545. 37 Hubbard v. Manhattan Trust Co., C. C. A., 87 Fed. 51, 57; West- ern Nat. Bank v. Armstrong, 152 U. S. 346, 38 L. ed. 470; Ackerson V, Long Branch & L. Co., 28 N. J. Eq. 542; Comptograph Co. v. Uni- versal Accountant Mach. Co., 142 Fed. 539. Contra, Walker on Pat- ents, § 400. 38Gaumont v. Hatch, 208 Fed. 378. §112] UNNECESSARY PARTIES 689 authority, even against the will of ' the owner, to join him as a co-complainant in a bill to enjoin an infringement.*' The patentee and his exclusive licensee may join in a suit to enjoin the infringement of a patent,*" but the patentee and a licensee whose license is not exclusive cannot.*^ Such a licensee is ordi- narily not a proper party plaintiff.*^ "Where the bill alleges, that the licensee has an interest in the inventions which is capable of being impaired by the infringement, the licensee may properly be joined as a complainant.** A former licensee cannot join as a eo-plaintifif, unless all subsequent licensees and assignees of the license are also joined.** An exclusive licensee need not ordinarily be joined as complainant with the patentee.*^ When the patentee sues alone, he cannot recover profits which, but for the infringement, would have enured to the sole benefit of the 39 Libbey Glass Co. v. McKee Co., 216 Fed. 172; Brush-Swan El. 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. G. A., 104 Fed. 553; Havens v. W. R. Ostrander & Co., 190 Fed. 199. It was held in Van Orden v. Nashville, 67 Fed. 331, that the part owner of a patent cannot sue at law for damages caused by an infringement without joining his fellow-owners as co-plaintiffs, 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 them 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 liable to reimburse the assignee for expenses paid in such prosecution, although the issue of the patents was refused because the assignor Fed. Prac. Vol. 1—44 refused so to amend his application as to cancel rejected claims. Strauss v. Dilg, 140 App. Div. (N. T. 424. For a case where a licensor was joined as a defendant, see Lib- bey Glass Co. V. McKee Glass Co., 216 Fed. 172. 40 Ibid., Havens v. W. K. Ostran- der & Co., 190 Fed. 199. « Blair v. Lippineott Gl. Co., 52 Fed. 226. 42 Ibid. But see Wayman v. Louis Lipp Co., 222 Fed. 679, and eases cited supi'a in note. 43 Daimler Mfg. Co. v. ConMin, 145 Fed. 955. 44 Victor Talking Machine Co. v. Am. Graphophone Co., 118 Fed. 50. 45 TJ. S. of S. & S. Co. V. Johnson E. B, Signal Co., 52 Fed. 857; Gayler v. Wilder, 10 How. 477, 13 L. ed. 504. "In the ease of Water- man V. MacKenzie, 138 TJ. S. 252, U L. ed. 923, 11 Supr. Ct. E. 334, the Supreme Court held that a licensee 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." 690' PARTIES [§112 licensee.** 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.*'' 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.** It has been held that any party against whom an order fixing rates is made by the Interstate Commerce Commission, may apply to the proper court for relief without joining other par- ties to the order, since the injury was said to be several and not joint.*^ 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.^" And, as has been said before, no persons should be joined -as plain- tiffs,^^ or defendants,** who claim the property in question under inconsistent titles. For example, a mortgagee cannot maintain a bill against the mortgagor for a foreclosure, which at the same time seeks to enjoin a claimant adverse to both mortgagor, and mortgagee from asserting his title to the mortgaged property.*^ An interest in the question of law involved is not sufficient to make a person a necessary or even a proper party,** except when a bill of peace is filed. The equity rules, following 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 Knowles, D. J., in Brush El. Co. 60 West v. Duncan, 42 Fed. 430. V. California E. L. Co., C. C. A., 51 Marquis Cholmondeley v. Lord 52 Fed. 945, 961. Clinton, 2 Jac. & W. 1, at p. 135. 46 Bredin v. Solmson, 145 Fed. Saumarez v. Saumarez, 4 M. & C. 944. 331,-336. See Parsons v. Lyman, 4 47 Canton S. E. Co. v. Kanneberg, Blatohf . C. C. 432 ; infra, § 140. 51 Fed. 599, 600. 52Dial-T. Eeynolds, 96 TJ. S. 340, 48-Wende v. Horine, 191 Fed. 620. 24 L. ed. 644; infra, § 141. Contra, Smith v. Thompson, 177 53 Ibid. But see Hefner v. North- Fed. 721. western Life Ins. Co., 123 TJ. S. 747, 49 Atlantic Coast Line E. Co. v. 31 L. ed. 309. Interstate Commerce Commission, 54Valette v. Whitewater Valley 194 Fed. 449. Canal Co., 4 McLean, 192. § 113] PERSONS REPRESENTED BY PARTJES 691 or more of the persons severally liable/'^* This rule, how- ever, only applies when the demand is both joint and several, not when it is merely joint; ^® and when one of tjvo or more jointly and severally indebted is the principal debtor, to whom the others are sureties, he must, it seems, always be joined in a bill filed by the creditor to enforce a security against either of .the latter.^'' Concerning the chancery order from which the rule was copied, Vice-Chancellor Shadwell said that it "applied to cases where several persons were liable in different charaicters, ■ — that is, some as- principals and the rest as sureties; and then it was sufficient to mate one individual of each class a party ; bat where there was only one principal and one surety, both of them must be made parties. ' ' *' Where an administrator ihad fraudulently obtained a decree of distribution in favor of those not entitled thereto, his sureties were held to be proper parties to a suit to hold him and the other distributees as constructive trustees for the next of kin.®* § 113. Cases where the law has furnished a representative. On account of the inconvenience which would be causepl.if the general rule were enforced in all cases, there are several classes of exceptions to it.^ The first of these exists when the law has furnished a representative of the interest in question. In such a case, those whom he represents are not usually necessary parties to the suit.* The equity rules now provide: "Every action shall be prose- cutied 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, 55 Bq. Rule 42; .copied from Eule 58 Lloyd v. Smith, 13 Sim. 457, 56, of 1842, which was copied from 458, 459. the 32d Order in Chancery Of Au- 69 Diamond v. Connolly, C^ C. A., gust, 1841. David v: McEae, 183 251 Fed. 234. Fed. 812. § 113. 1 Wallworth v. Holt, 4 M. 66Pierson v. Eobinson, 3 Swanst. & C. 619; Powell v. Wriglit, 7 Beav. 139, n. 449. 67 Eobertson ■ V. Carson, 19 Wall. 2 Calvert on Parties (2d ed,), 22. 94, 22 L. ed. 178; Wilson y. City See Hopkins v. Page, 2 Brock. ,20, Bank, 3 Sumn. 423; Allen v. Houl- 42. - den, 6 Beav. 148; Pinkus v. Peters, 5 Beav. 253. 692 PARTIES [§ 113 may sue in his own name without joining with him the party for whose benefit the action is brought. ' ' ^ Thus, until they have distributed the decedent's estate,* ex- ecutors and administrators are deemed sufficiently to represent all legatees, creditors, and next of kin in suits brought by or against them in their representative capacity,^ except when they are made defendants to a suit by a residuary legatee for his share of the estate,® or when the rights of the legatees or next of kin between one another are in question,'' 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 ; ' or, perhaps, when an executor or administrator is charged with a breach of trust and an accounting is required; but the exe- cutors do not represent the heirs at law in a suit affecting the real estate,^' and the devisees were held to be indispensable parties to a suit to foreclose a mortgage made by an executor.^^ 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 ap- pointed, and it is error to decree that the fund be paid "to such person as may hereafter be appointed administrator. ' ' ^^ So a bankrupt or insolvent debtor ^^ and his creditors ^* are not 3 Eq. Eule, 37. 8 Stevens v. Smith, C. C. A., 126 4 Carey v. Eoosevelt, 81 Fed. 608. Fed. 706. Cf. Toms v. Owen, 52 6 Brown V. Dowthwaite, 1 Madd. Fed. 417. 448; Potter v. Gardner, 12 Wheat. 9 Attorney-General v. Wynne, 499, 6 L. ed. 706; Burton v. Smith, Mos. 126. 4 Wash. Q. C. 522; Dandridge v. lOWoosliu v. Cooper (N. J. Ch., Washington's Ex'rs, 2 Pet. 370, 1897), 36 Atl. 281. See §119, 377, 7 L. ed. 454, 457; Wainwright infra. But see Alger v. Anderson, V. Waterman, 1 Ves. Jr. 313; Anon., 78 Fed. 729, 733. 12 Mod. 522; Glover v. Patten, 165 H Detweiler v. Holderbaum, 42 TJ. S. 394, 41 L. ed. 760. Fed. 337. 8 Atwood V. Hawkins, Hep. temp. 12 Bead v. Bennett (N. J. Errors Pinch, 113; Faithful v. Hunt, 3 & Appeals, 1897), 37 Atl. 75; infra, Anst. 751; Calvert on Parties (2d §126. ed.), 206, 208. But see McArthur ISDe Wolf v. Johnson, 10 Wheat. V. Scott, 113 U. S. 340, 345, 28 L. 367, 384, 6 L. ed. 343, 347; Van ed. 1015; Martin v. Fort, 83 Fed. Eeimsdyk v. Kane, 1 Gall. 371; 19. Calvert on Parties (2d ed.), 24. 7 Kendall v. Hardenberg, 94 Fed. 14 Spragg v. Binkes, 5 Ves. 587. 911; Stevens v. Smith, C. C. A., 126 Fed. 706. § 113] PERSONS BEPEESENTED BY PARTIES 693 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 services a certain per- centage of the amount collected, will support an action by the assignee in his own name where there is no agi-eement that he sha,ll pay the costs of the litigation.^^ A stockholders' agent, elected at a meeting of shareholders in pursuance of statute, may after he has qualified sue on their behalf directors to recover money by malfeasance or misfeasance upon the part of the latter. ^^ It has been held improper for a creditor of an estate to join with its receiver in a suit concern- ing it.^'' 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.^* It has been held that the Comptroller of the Currency and the Treasurer of the United States are not necessary parties to a suit to recover from the receiver of a national bank; ap- pointed by the Comptroller, the amount of an assessment erro- neously made by the Comptroller, paid by the complainant to the receiver, and paid by him into the Treasury.^' 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 ; ^^ that a receiver of a bank is a prdper, but not a necessary, party to a suit in equity in- stituted before his appointment to recover from the bank money obtained by it through fraud ; ^^ that a receiver is an improper party to an action at law for a tort committed before his ap- IB Northwestern S. S. Co. v. Coeh- 20 Continental Tr. Co. v. Toledo, ran, C. C. A., 191 Fed. 146. . St. L. & K. C. R. Co., 82 Fed. 642. 16 McKinnon v. Morse, 177 Fed. 21 Porter v. Sabin, 149 U. S. 473, 576. 37 L. ed. 815. But see Palestine ITDoggett V. Eailroad Co., 99 U. W. & P. Co. v. City of Palestine, S. 72, 25 L. ed. 301. 91 Tex. 540, 40' L.B.A. 203; s. C, 18 Central Trust Co. v. Chicago, 44 S. W. 814; S. c, 40 L.R.A. 203. K. & T. Ky. Co., 54 Fed. 598. 22 Denton v. Baker, C. C. A., 79 19 Brown v. Tillinghast, 84 Fed. Fed. 189 ; Speekart v. German Nat. 17. Bank, 85 Fed. 12. 694 PARTIES [§113 pointment,^' 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 re- ceiver's corporation as a co-defendant;^* 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 appointment ; ^^ that the creditors of an insolvent bank are necessary parties to a suit by a stockholder against the bank and its receiver to have his certificate cancelled ; ^® and that after the discharge 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 purchaser is the only prbper defendant to a suit to collect such a claim.^'' It has been held : that the treasurer of a corporation may sue his pre- decessor in office for an accounting of the corpbrate funds, without joining the corporation.^' ' A corporation represents its officers and agents acting in their official capacity in a suit for an injunction against unfair competition.*' Ordinarily, a corporation represents the stock- holders thereof in all litigation affecting corporate rights; and liabilities ; *" but not those in wh-ich the stockholder has special interest.*^ It has been held that a corporation is so far a repre- sentative of its stockholders that none of, them need be joined in a suit for an accounting, under a lea^e which provides for the payment of dividends directly to. its stockholders ; '* nor a. suit to enjoin the collection of unlawful charges for Xhe use as Northern Pac. E. Co. v. Heflin, 29 International News Service v. C, C. A., 83 Fed. 93. The Associated PreSs, 248 U. S. ,24 Moore v. Los Angeles I. & S. ,215; Wm., A., Rogers, Lt'd, v. H. O Co., 89 Fed. 73. But see Palestine Rogers Silver Co., 237 Fed. 887. W. & P. Co. V. City of Palestine, 30 Pacific H. of Mo. v. Atlantic 9l'Tex. 540, 44 S. W. 814; s. c, 40 & P. R. Co., 20 Fed. 277. See L.E.A. 203. ' Witherbee v. Bowles, 201 N., Y. .427, 26 Union S. & S. Co. v. Philadel- 435; Weidenfeld v. Northern Pae. phia & R. R. Co., 69 Fed. 833. . R. Co., C. C. A., 129 Fed. 305, 311; 26 Dunn v. State Board, 59 Minn. Supreme Couneil pf the Royal Area- 221, 61 N. W. 27. nuni v. Green, 237 U. S. 531, 544. 27 Thompson v. Northern Pae.,Ry. 31 Ibid., see infra, § 186w. Co., 93 Fed. 384. , 32 Pacific R. of Mo. v. Atlantic & '28 Hunter V. Robbing, 117 Fed, P. R. Co., 20 Fed. 277. See "Wither- 920. bee V. Bowles, 201 N. Y. 427, 435; § 118] PERSONS KEPBESENTED BY PARTIES 695 of water by tiiera when the contract was made by the company for their benefit.*^ And an incofporated association of owners and representatives of newspapers is a proper party to repre- sent them in a suit to protect their interest in the news which it collects and distributes among them.^* ' When a statute imposes a tax upon shares of its capital stock and directs it to pay the same, it may sue to test the validity thereof ; ^* but where a question arises affecting the respective rights of different classes of stockholders, the members of each class or representative thereof, as well as the corporation, must be joined in the suit.'® Ordinarily a corporation represents unsecured creditors who have no liens nor judgments in suits affecting the rights of the company to property and its liability.*'' 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 indispensable, nor even necessary, parties." It has been held: that a State statute authorizing one or more officers of an unincorporated association to represent the others in the courts, when suing or being sued about a matter concerning their common interest, will be followed by a Fed- eral court of equity, and the members conclusively presumed to have the same citizenship as such officers.'^ The extent, to which a trade union represents its individual Weidenfield v. Northern Pac. R. Co., 198 Fed. 297. Bijt see Witherbee C. C. A., 129 Fed.. 305, 311. v. Bowles, 201 N. "T. 427. 88 Magruder v. Belle Fourche 87 St. Louis-San Franaisco By. Valley Water Users' Ass'n, C. C. A., Co. v. McElvain, 253 Fed. 123. 219 Fed. 72. 88 Texas Co. v. Central Fuel Oil 34 International News Service y. Co., C. C. A., 194 Fed. 1. The Associated Press, 248 tJ. S. 215. 89 Fargo v. Louisville, N. A. & C. SSCummings v. Nat. Bank, 101 Ey. Co., 6 Fed. 787; Whitman v. U. S. 153, 157, 25 L. ed. 903; San HuMseU, 30 Fed. 81; Liverpool Ins. Francisco Nat. Bank, v. Dodge, 197 Co. v. Massachusetts, 10 Wall. 566, TJ. S. 70, 75, 113, 49 L. ed. 669; 19 L. ed. 1029. But see Chapman Charleston Na.t. Bank v. Melton, v. Barney, 129 tJ. S. 677, 32 L. ed. 171 Fed. 743. 800, and supra, § 48. 86 Baltimore, C. & A. By. Co. v. GodefEroy, C. 0. A., 182 Fed. 525; Carpenter v. Knollwood Cemetery, 696 PARTIES [§ 113 members has not yet been definitely decided.*" Officers of the General Assembly of the Presbyterian Church in the United States may represent the members in a suit to determine the property rights of the church.*^ 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.** And firm creditors may proceed directly against the personal repre- sentative of a deceased partner without asking for judgment against the firm or the surviving partner, although the surviv- ing partners must be made parties, since they are interested in taking the account.*^ Before the Clayton Act ** it was held : that a city and county sufficiently represents gas consumers ** and telephone subscrib- ers,*® within their territory to justify, in a suit in which the for- mer are made parties defendant, an injunction against the latter, although not formally joined ; but in a suit by a carrier against the members of a railroad commission to enjoin the enforcement of an order fixing rates under a statute which provides for awards of reparation for failure to comply with such an order; the Court will not pass upon the validity of any of such awards made to parties not before the court.*'' The United States may sue without joining the allottee Indians, to set aside their con- veyances of lands within the statutory period of restriction,** and may sue upon the official bond of the clerk of a Federal court to recover deposits made by litigants as security for costs ; *' upon the official bond of a Referee in Bankruptcy, to recover 40 Iron Moulders' TTnion v. AUis- Consol. Gas Co. v. Newton, 256 Fed. Chalmers Co., 0. C. A., 166 ¥ed. 45. 238, affirmed by C. 0. A., without See infra, §§ 114-116, 276. opinion, § 258 infra. « Barkley v. HayeSj 208 Fed. 319. 46 Ee Engelhard & Sons Co., Pe- 42 Pagan v. Sparks, 2 "Wash. C, C. titioner, 231 U. S. 646, p. 418 C. 325. 47 Louisville & Nashville E. R. 48 U. S. V. Hughes, 161 Fed. 1021, Co. v. Garrett, 231 V. S. 300 ; Mer- 1023; Story on "Partnership," chants' & Mfg. Traffic Ass'n, 231 § 362. ^ed. 292. See Priest v. Laa Vergas, 44 38 St. at L. 738, ch. 323, § 19, 232 IT. S. 604, 618. Comp. St., §124; infra, §284. 48 Heckman v. U. S., 224 IT. S. 46 San Francisco Gas & El. Co. 413, 56 L. ed. 820. v. City and County of San Fran-. 49 U. S. v. Abeel, C. C. A., 174 Cisco, 164 Fed. 884, 887. But see Fed. 12. § 113] PERSONS REPRESENTED BY PARTIES 697 exeessr/e fees which he has collected ^^ and upon the official bond of a clerk in! the Post Office to collect m6ney and the value of property which he has misappropriated ^^ for the benefit of all parties who have been injured by the official misconduct without joining any of them. The right of the United States to sue upon contractors' bonds for the benefit of laborers and material men has been previously considered.^^ - 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. " ^' " Those in remainder were con- sidered as cyphers" ^* "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 rep- resentatives of the inheritance, although they are unable, by reason of infancy, to bar remaindermen. In truth the court has gone to the full extent which is requisite for convenience in practice. " *® It has been held that a tenant f or- life and the contingent remainderman in fee may represent the in- heritance in a bill for specific performance, if the children of the remainderman will inherit if he does not.^^ 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 re- mainder if the estate were for life only.^'' Lord Bldon said that in most cases respecting trust property the beneficiaries of the trust were- necessary parties.^* The ex- pression naturally suggests the inquiry, in what cases are they not to be made parties ? There -are some cases in which the 60 tr. S. V. Ward, C. C. A., 257 64 Lord Camden in Eeynoldson v. Fed. 372. See infra, §§ 638,662. Perkins, Ambler, 564. 61 U. S. V. tr. S. Fidelity & G'y. 66 Calvert on Parties (2d ed.), 56. Co., C. C. A., 242 Fed. 16. 66 Sohier v. Williams, 1 Curt. 479. 62 § 5a, swpra. 67 Talor v. Fisk, 94 Fed. 242. 68 Lord Eldon in Lloyd v. Johnes, 68 Adams v. St. Leger, 1 B. & B. Ves. 65. 182. 698 PARTIES [§113 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 it into the hands of the trustees.^' In the latter cases the bene- ficiaries of the trust need not,®" although it seems they may be made parties.®^ In the former, when not too numerous, their presence was always required, before the equity rules.*^ The former equity rules, following an English Chancery order,®* 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 to the same e^ctent as the executors or administrators in suits concerning personal estate represent, the persons beneficially interested in such personal estate; and in such cases it shall ijot be necessary to make the persons beneficially interested in such real estate, or rents and profits, parties to the suit, but the court may, upon consideration of the matter on the hear- ing, if it shall so think fit,' order such persons to ]De made par- ties."®* "It seem_s doubtfvil, 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."®^ Trustees under a railroad, mortgage,®® or andgr any other 69 Calvert on Parties, (2a ed.), ver v. Piatt, 3 How. 333, 11 L, ed. 277. \ '^'-\ 622, s. c., 2 McLean, 268; Cross v. 60 Franco v. Franco, 3 Ves. 76; De Valle, 1 Wall. 5, 17 L..ed. 515. Carey v. Brown, 92 IT. S. 171, 23 See Pollitz v. Wabash E. 'e., Bis- L. ed. 469 ; Calvert on Parties _C2d choff, J., N, Y. Sup. Ct, ,Sp. Tm., pd.), 277, 278. N. Y. L. J. Sept. 19, 1912. 61 Harrison v. Eowan, 4 Wash. C. 63 30th Order of August, 1841. C. 202; McCampbell v. Brown, '48 64 Rule 49, of 1842. • Fed. 795; Hayes v. Pratt, 147 U. S. 65 Daniell 's Ch. Pr. (2d Am. ed.) 557, 37 L. ed. 279 ; In re E. T. Ken- 304. See also Whilton v. Jones, 2 ney Co., 136 Fed. 451. Contra, Con- Y. & C. 244; Cross v. De Valle, 1 solidated Water Co. v. City of San Wall. 5, 17 L. ed. 515. Diego, 92 Fed. 759 ; Perkins v. 66 Shaw v. Eailroad Co., 100 U. Hendiyx, 149 Fed. 526. 8. 605, 611, 25 L. ed. 757, 758; 62 Whistler v. Webb, Bunb. 53; Beals v. Illinois, Mo. & T. R. Co., Greene v. Sisson, 2 Curt. 171; Oli- 133 V. S. 290, 33 L. ed. 608; Elwell § 113] PEBSONS REPRESENTED BY PARTIES 699 trust-deed of a similar nature securing the rights in real prop- erty, of a large number . of beneficiaries,®'' are held, in all pro- ceedings affecting the property which they thus hold, adequately' ■ to , represent , the latter, yf^o will -be bound, in the i absence of fraud,; by notice given to, or a decree entered against trustees, although the court may in its discretion make any of such berie- ficiaries a party to the suit at his application ®* but he cannot maintain an action at lawi upon the bonds, and they are not merged in a deficiency judgment taken by him in a foreclosure suit.®' , It has been held that bondholders are sufficiently rep- resented by their trustee in a suit for a release of certain prop- erty from the lien of the mortgage.'''' A bondholder cannot sue to foreclose where there is a trustee under his mortgage in existence without making the trustee a defendant and alleg- ing the latter '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.''* 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.''^ 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 req- V. Fosdick, 134 V. S. 500, 33 L. ed. 68 Williams v. Morgan, 111 TJ. S. 998; Leavenworth County Com'rs v. 684, 28 L. ed. 559; Thomas v. Chicago, R. I. & P. By. Co., 134 TJ. ' Brownville, F. K. & P. E. Co., 109 S. 688, 33,L. ed. 1064; Allen-West U. S. 522, 27 L. ed. 1018; infra. Commission Co. v. Bi:ashear, 176 § 258. Fed. 119. -Ba; pflrte Equitable Trust 69Maekay v. Bandolph Macon Company, C. C. A., 231 Fed. 571. Coal Co., C. C. A., 178 Fed. 881. 67 Van Veehten v. Terry, 2 Johns. 70 Colorado & Southern Ey. Co. v. Ch. (N. Y.) 197; Kerrison v. Stew- Blair, N. Y. App. Div. July, 1914. art, 93 U. S. 155, 23 :L. ed. 843 ; 71 Consol. Water Co. v. San DiegOj MeKee V. Lamon, 159 V. S. 317, 40 89 Fed. 272.- It: was held that a L. ed. 165; Dalton v. Hazelet, C. bondholder cannot be joined as a C. A., 182 Fed. 561; Carpenter v. co-plaintiff with the trustee. Con- Knollwood Cemetery, 198 Fed. 297. sol. "Water Co. v. San Diego, 92 Fed. The power of a trustee- to sue to 759. protect the trust estate, ,by. the 72 Grand Tr. Ey. Co. v. Central foreclosure of a mortgage or other- Vt. Ey. Co., 88 Fed. 622. See N. wise, cannot be restricted by agree- Y. S. & Tr. Co. v. Lincoln St. Ry. raent of the parties. N. T. Tr. Co. Co., 74 Fed. 67. V. Miflhigam Traction -Co., ,193 Fed. 175. 700 PAKTIES [§113 uisite number. '^ A provision requiring the request of the holder of one-fourth of the bonds before a foreclosure did not prevent a foreclosure at the suit of holders of a smaller number, when more than three-fourths were held by a party who had caused the default by misappropriating the earnings of the' railroadJ* The power of the trustee to sue to preserve the trust estate cannot be abridged or restricted, even by agree- ment of the parties.''^ In a foreclosjire 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.''® The fact that the trustee represents conflicting interests does not incapacitate him from bringing a suit to protect the trust estate,''"'' although that might make it proper for the bondholders or for beneficiaries to be joined as parties to the suit.''* In certain eases committees of bondholders have been made parties to railroad foreclosures.'''* Under a railroad lease by which the lessee covenanted 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 bond- holders 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.*" It was held that a trustee appointed by a railway company to hold mortgage bonds, pledged as security for negotiable notes of the corporation, was the agenl of the latter only and not of the note holders, and did not represent them in a suit affecting the validity of the notes.*^ It has been held that to a bill against the heirs of a trustee to quiet the title to property conveyed 73 Central Tr. Co. v. Cincinnati, 76 Toler v. East Tenn. & C. Ey. H. & D. By. Co., 169 Fed. 466. ■ Co., 67 Fed, 168. 74Linder v. Hartwell E. Co., 73 77 Central Tr. Co. v. Cincinnati, Fed. 320. See Hubbard v. Galves- H. & D. Ey. Co., 169 Fed. 466. ton, H. & S. A. Ey. Co., C. C. A., 78 Farmers' L. & H. Co. v. North- 200 Fed. 504, 509. em Pae. E. Co., 66 Fed. 169. 76 N. y. Tr. Co. V. Michigan Trac- 79 Farmers ' L. & Tr. Co. v. Cape tion Co., 193 Fed. 175, 180; citing Fear & Y. V. Ey. Co., 71 Fed. 38 Old Colony Tr. Co. v. City of Wiehi- (by intervention), ta, 123 Fed. 762; Guaranty Tr. Co. 80 Mercantile Tr. Co. v. Baltimore V. Green Cove Springs Co., 139 U. & O. E. Co., 94 Fed. 722. S. 137, 11 Sup. Ct. 512, 35 L. ed. 81 Central Tr. Co. v. Cincinnati, 116. H. & D. Ey. Co., 169 Fed. 466. § 114] CLASS SUITS 701 by the trustee to the complainant, the beneficiary of the trust need not be joined as a party ; *^ but that the beneficiaries must be made parties to a bill by a stranger to set aside the deed of tru,st for fraud,^' and to a suit by one of several stockholders to set aside an agreement to pool their stock by depositing the same with trustees, the other stockholders, as well as the trustees, are necessary parties.** §114. Class suitSx^. When a number of persons have a com- mon 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 interest, 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." ^ But there seems to be no reason for treating the two classes separately. These are called "class suits," "creditors' suits," or "stockholders' suits," as the case may be.® "When the question is one of common or general interest to manj^ persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole. "^ When one or more thus file 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.* In a case where a railroad mortgaged its property directly, 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 bond- 82Gridley v. Wynant, 23 How. §114. 1 Story '3 Eq. PI. §97. 500. 2 Seminole Securities Co. v. South- 88 Collin Mfg. Co. V. Ferguson & em Life Ins. Co., 182 Ted. 85, 96. Hutter's Trustee, 54 Fed. 721. Con- 8 Eq. Rule 38. tra, Vetterlein v. Barnes, 124 IT. S. 4Hoe v. "Wilson, 9 "Wall. 501, 19 169 31 L. ed. 400. L. ed. 762; State of Maine Lumber 84 Ryan V. Seaboard E. Co., 89 Co. v. Kingfleld Co., 218 Fed. 902. Fed. 391. 702 PARTIES [§114 holders must be joined as parties to the bill.® 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 plain- tiff's bondholder filed his bill on behalf of the others as well as of himself.* Any others of the class have the right to join with them in the suit at any time before its settlement or ter- mination upon payment of their share of the costs,'' and counsel fees,^ which have been then paid or incurred, provided they do not seek to act in hostility to the original complainants,® in which ease the court may in its discretion allow them to intervene.^' If their joinder as plaintiffs would oust the court of jurisdiction, they may be brought in as defendants.^^ Such a bill may be filed even when a majority of those interested object to the suit.^® "For where n matter is necessarily injurious to the common right, the majority of the persons interested can neither excuse the wrong nor deprive all other parties of their remedy by suit. " ^^ To such a bill it is not necessary to make defendants all who object to its being filed, provided that enough are brought before the court to sufficiently rep- resent their interest.^* It was originally held that no one could sue on behalf of others who claimed for himself an interest in the matter in 5 Railroad Co. v. Orr, 18 Wall. 10 Galveston E. Co. v. Cowdrey, 11- 471, 21 L. ed. 810. Wall. 459, 478, 20 L. ed. 205. 6 Mangel3 v. Donau Brewing Co., ll'Brown v. Pacific Mail S. S. Co 53 Fed. 513. 5 Blatchf. C. C. 525, 535. But see 7 Ogilvie V. Knox Ins. Co., 2 Stewart v. Dunham, 115 U. S. 61 Blaek. 539, 17 L. ed. 349; s. c, 22 29 L. ed. 329. How. 380, 16 L. ed. 349; Ex parte 12 Bromley v. Smith, 1 Simons Jordan, 94 IT. 8. 248^ 24 L. ed. 123; ' 8; Taylor v. Salmon, 4 Myl. & Cr Hallett V. Hallett, 2 Paige (N. Y.), 134; Story's Eq. PL, §114. But 15; Leigh v. Thomas, 2 Ves. Sen. see Jones v. Gai-eia del Rio, 1 Turn 313, Ransom v. Davis, 18 How. 295, & Euss. 300. 15 L. ed. 388 ; Story 's Eq. PI., § 99. 18 Bromley v. Smith, 1 Simons, 8 8 Central R. Co. v. Pettus, 113 XT. 11. S. 116, 28 L. ed. 915; Trustees v. 14 Clinch v. Financial Corpora Greenough, 105 TJ. S. 527, 26 L. ed. tion, L. E. 4 Ch. App. 117, at p, 1157. 122; Story's Eq. PI., § 135b. 9 IForbes v. Memphis, El Paso & Pacific R. Co., 2 Woods, 323. §114] CLASS SUITS 703 controversy distinct from that of those whom he sought to represent; for example, a mortgagee was not allowed to sue in behalf of general creditors while enforcing his mortgage/^ but later authorities seem to have changed this doctrine.^® All on whose behalf one sues must appear to have an interest in the relief prayed for by him.^'' In such a suit, the bill may be dismissed at any time before decree by the consent of those W'ho are then joined as plairltiffs,^* but not afterwards, since by the decree a right becomes vested in the others.^' The court will nearly always allow a bill filed by an individual in his own right to be amended, so as to allow him to sue on behalf of himself and other members of a clasS.^" The ordinary eases of bills filed by one person of a class on behalf of others similarly situated are bills by stockholders of corporations.*^ By members** or officers *'^ of unincorporated associations, such as a traffic association of merchants,** or a religious society,** by bondholders,** of whom the holders of bonds secured by successive mortgages may, after the death of all the trustees, sue for a foreclosure on behalf of himself and 15 Burney v. Morgan, 1 Sim. & S. 358, 362; Palmer v. Foote, 7 Paige (N. T.) 437; "White v. Hillaere, 3 Y. & C. 597. 16 Galveston E. Co. v. Cowdrey, 11 Wall. 459, 20 L. ed. 199; Mason V. Bogg, 2 Myl & Cr. 443; Story's Eq. PI., § 101, and eases there cited. 17 Newton v. Earl of Egmont, 4 Simons, 574, 585; Jones v. Garcia del Eio, 1 T. & E. 297. 18 Handf ord v. Storie, 2 Sim. & S. 196; Hubbell v. Warren, 8 Allen (Mass.), 173'; Hirshfield v. Fitzger- ald, 157 N. Y. 166, 46 L.E.A. 839; § 361, infra. 19 Handf ord v. Storie, 2 Sim. & S. 196; York v. White, 10 Jurist, 168; Innes v. Lansing, 7 Paige (N. Y.), 583. 20 Johnson v. Compton, 4 Simons, 47; Lloyd v. Loaring, 6 Ves. 773; Darnell's Ch. Pr. (5th Am. ed.) 236, note 6, and 245, and cases cited. 21 Bacon v. Eobertson, 18 How. 480, 15 L. ed. 499 ; Seminole Securi- ties Co. V. Southern Life Ins. Co., 182 Fed. 85, 86; Wallworth v. Holt, 4 Myl. & Cr. 619; Taylor v. Salmon, 4 Myl. & Cr. 134; Hichens v. Gon- greve, 4 Eussell, 562; Gray v. Chap- lin, 2 Sim. & S. 267; Crease v. Bab- cock, 10 Met. (Mass.) 532; Noble v. Gadsden L. & Imp. Co., 133 Ala. 250, 91 Am. St. Eep. 27; S. c, 31 So. 856; Steams Coal & Lirmber Co. V. Van Winkle, C. C. A., 221 Fed. 590. 22 Baiubridge v. Burton, 2 Beav- an 539 ; Sharpe v. Bonham, 213 Fed. 660. 23 Merchants' & Mfg. Traffic Ass'n V. it. S., 231 Fed. 292. 24 Ibid. 26 Sharpe >. Bonham, 213 Fed. 660. 26 Trustees of the Wabash & Erie Canal Co. v. Beers, 2 Black, 448, 17 704 PARTIES [§114 the holders of each class of the bonds which he owns ; ^I and bills by creditors.^* To obtain equitable assets which must be divided equally among all creditors ^® or to enforce a trust in favor of creditors of the class to which the complainants belong.^" Such bills may also be filed by one or more legatees,'* at least if not residuary legatees ; '^ by one of several next of kin ; '* by one of several beneficiaries of a trust fund ; '* by one of many partners ; '^ by one of a class for the benefit of which a charity was founded ; *® by one of the crew of a privateer seeking an account from a defendant who has collected their joint prize money ; *'' by one or more taxpayers,'* or property owners subject to an assessment;'® or owners of lots in a burying ground ; *" but not by one of several imparters to enjoin the seizure of their , different imports under an unconstitutional statute.** Although in such cases it is proper and customary for the plaintiff to allege that he sues in behalf of all, it has been held that such an allegation is not indispensable and that the Court will guard the right of all interested and of its own motion L. ed. 327; Galveston E. Co. v. Cow- v. Eieketts, 3 J. Oh. (N. Y.) 555, drey, 11 Wall. 459, 20 L. ed. 199; and Davoue v. Fanning, 4 J. Ch. Central E. Co. v. Pettus, 113 XJ. S. (N. Y.) 199, with Kettle v. Crary, 116, 28 L. ed. 915; Thompson v. 1 Paige (N. Y.), 417, note. See Emmett Irr. Dist., 0. 'C. A., 227 also Story 's Eq. PI., § 89. Ped. 561. 33 Story's Eq. PI., §105. 27 Galveston E. Co. v. Cowdrey, 34 Watson v. National Life & Tr. 11 Wall. 459, 478, 20 L. ed. 199, Co., C. C. A., 162 Fed. 7. 205. 36 Ohancey v. May, Free. Ch. 592 ; 28 Pink v. Patterson, 21 Fed. 602. Small v. Atwood, 1 Younge, 407. 29 John A. Eoebling's Sons Co. v. 36 Smith v. Swormstedt, 16 How. Kinnioutt, 248 Fed. 596; U. S. 288, 14 L. ed. 942. Smelting Co. v. Hopkins, 245 Fed. 37 Good v. Blewitt, 13 Ves. 397; 896. West V. Eandall, 2 Mason, 181, 194. SOCalder & Eichmond v. E. W. 38 Orampton v. Zabriskie, 101 U. Eosenthal & Co., 250 Fed. 507 ; S. 601, 25 L. ed. 1070. Cook V. Flagg, 255 Fed. 195. 39 Mcintosh v. Pittsburg, 112 Fed. 31 Bennett v. Honywood, Ambler, 705. 708; Story's Eq. PI., §104, and 10 Chew v. First Presbyterian cases cited. * Church, 237 Fed. 219. 32 Upon this point, there is a con- 41 Scott v. Donald, 165 U. S. 107, flict of authority. Compare Brown 4 L. ed. 648. i§1115] SUITS AGAINST ONE OR MORE OP A CLASS 705 direct others to be brought in, if this seems nteeessary for the administration of justice.** A class suit can not be maintained unless the persons in- terested are numerous.** Siieh bills were dismissed when so far as appeared there were only two,** and in another case three ** pei>sons entitled to the relief sought. - 'The bill must show the names and residences of the persons interested who are omitted, so far as they are known to thfe complainant,*^ and that they are too numerous for convenient joinderi*'' It was held that suohi suit could not be filed by a stockholder! of an insolvent railroad company, to compel, the issue to him of stock, which he elahned under a reorganization agreement, when he alleged: "Your orator does nbt know how many others are similarlyisituated; but he avers, upon informa- tibn and belief, that there are many other stockholders of the Georgia Pacific Railway similarly situated, and that their stock amouiits'to at least $500,000."^* "Where none of the com- plainants in the clasS' suit are entitled to nelief,. the court cans- not grant relief to persolns who have not been joined as parties^ on whose behalf it is claimed the suit was brought.*' , It has been held that the court is without jurisdiction, to entefr a fina,l decree i esitablishing, the .rights of: parties represented by: ;the plaintiff, until by. ianiniterloeutory,, decree they h^ye had an op- portunity to intervene.^" '§ 115. Suits against one or more of a class. Similarly, where pefsoii^ who ^i*e jbiiftly liable are very^ numerotis', soinfe may be sued instead of , all, p,rovided that the manner in which they are sued, and. the fact; that they are numerous,, are stated 42 Jaiich V. ' Soearras, 56 N: J. E. 48 Mangels v. Donau Brewing . Co., Q. 524, 531; Lightfoot v. Meyer, 53 Fed. 513. • ,! k; 'Y'. Sup. Ct. Sp. Tem. per Hotch- 46 Whittaker v. Whittaker Iron ki^s, J., li. J:, June 13, 1916. Co., 238 Fed. 980; EoUhamer v. ' 43Eail'roaa t!o. v. Orr, IS'WSU. Smietanka, 239 Fed. 408; 471', '21 L. ed'. 810;' MaigeW v. 47Motley v. Southern Ey., Go., Dbiiau Brewing Co., 53 Fed. 513; 184 Fed. 956, 958. Mblley V; 'Southern Ry. Co., 184 Fed. 48 Ibid. 956,958. ' 49 Watson V. National Life & Tr. 44 Kohlhamer v. Smietanka, 239 Co., C. C. A., 189 Fed. 872. Fed. '408. "' ' BO Re Dennett, C. C. A., 221 Fed. Fed. Prac. Vol. 1—45 350, 357. :'i 706 PARTIES [§115 in the bill.^ 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 act for them in the matters complained of such as a reorganiza- tion, or a protective, committee of stockholders and bondhold- ers,^ or the managing committee of a clearing-house associa- tion.* 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.* This rule has been applied to members of a club,' or of an- other unincorporated i association vjfhen: sued for the collection of its debts, or to enjoin a-violatipn of,the anti-trust act;® to members of a church in a suit affecting the rights of the- church to property ;'' to members of a trades union engaged in a strike ; * and to the stoijkholders of a corporation in a suit brought;. by a creditor after its dissolution to recover the amount of its capital stock which has been divided among them.* 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 uponi its president, sec- retary, manager and supei-in^tendent.^* ' It has been said that "this ruTle has always been understood to modify somewhat the general doctrine in England, that par- §115. 1 story's Eq. PI., §§116, 7 Sharpe v. Bonham, 213 Fed. 660. 117; MBArthur v. Scott, 113 TJ. .S. .'Am. Steel & Wire Co. v. "Wire 340,1 395, 28 L. ed. 1015, 1032; Bal- Drawers' & Die Makers' tlnions, 90 timore, C. & A. By. Co. v. GodefEroy, Fed.' 598. C. C. A., ] 82 Fed. 525; Carpenter SMandeville v. Biggs, 2 Pet. 482, V. KnoUwood Cemetery, 198 Fed. 7 L. ed. 493; Bailroad Co. t. How- 297. ard, 7. Wall. 392, 19 L. ed. 117; Z Bailroad Co. v. Howard, 7 Wall. Wood v. Dummer, 3 Mason, 315. 392, 19 L. ed. 117 ; Carpenter v. 10 Spaulding v. Evenson, 149 Fed. Knollwood Cemetery, 198 Fed. 297. 913, 916. See also Stationary En- 8 Yardley v. Philler, 58 Fed. 746. ginger Pub. Co., v. Pomerf orfl, 155 4Ayres v; Carver, 17 How. 591, Fed. 667, 670; A. B. Barnes Co, v. 15 L. ed. 179. • • ■ Berry,, C. C. A., 156 Fed. 72. But SCullen V. Luke of Queensberry, see ■ Allis-Chalmers Co. v. Iron Mold- 1 Brown's Ch. 101; Cousins v. ers' TJnion, 150 Fed. 155, 183; hold- Smith, 13 Ves. 544; Story's Eq. PI., ing that the ^eeree did, not bind the § 116. absentees or defendants, ijijho had 6XJ. S. V. Coal Dealers' Ass'n of been represented but not served. California, 85 Fed. 252. §116] SUITS AGAINST ONE OB MORE OF A CLASS 707 ties, not formally served with pxbieesS, may 'yet be bound on the principle of representation to the fullest extent that those are bound who are their representatives in the suit. The lan- guage of the reservation is that in sueh cases the decree shall be without pre judicei to the rights and claims of all absent parties. The rule especially is framed to allow a Suit to pro- ceed without having all the members of aii ^ association or of a class of defendants fbrmal parties; but, while preseirving the right of the absent ones to afterwards litigkte" for thfemselves the same question, lit does- not '^jrohibit the whole -cliiss, when plaintiffs, -from i fakdaag 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,: fronii ; binding the absent parties by ; supplemental- iprdeeediSngs to' bring them in when known, if necessary, and subject them to the decree, when they have had that opportunity ^ to' defend agistinist it."'-* §116. Suits by or against: one or more as representatives of a class claiminif a common right. In some instances 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 -litigation, yet as they are said to claim under a eommbn: right, one or more iof them have been allowed to represent tTie rest asiplaiiitiffs or defend- ants in a suit to determine the disputed' question;^: Ordinarilj', 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 rdst.2';;"'^ ' ,""7'" . ''■■ "" '' , /' ' ' ' ' Instances where a suit of. this kind has been allowed by one, or more as plaintiffs in behalf of others similarly situated haye, usually occurred when, although the plaintiff and those rep- resented by bim had no common interest in property, ' yet he sought a determiiiation of a question affectiijg the enjoyment of estates which, though (Jistinct, came to him and the rest, from a common source. Thus, one or more tenants or pari^hionesrs may sue a lord' of a Inanor or parson, to establish a right of 11 Am. Steel & "Wite:Ct)i. v. Wire, son, 181, 195. See Percy Summer Drawers' & >DJe Makers' Unions," 00 Club v. Aatle>, 145 Fed. 53.:, i ?. Fed. 598, 605, per Hammond, J. 2 Ayres v. Carver, 17, How. 593 ^ §116. IWest V, Randall, 3 Ma- 15 L. ed. 179. m 708 PARTIES L§ 116 common,? or of turbary.* One or more tejepkone subscribers may sue on behalf of the rest to prevent an interruption of service.* One or more owners of water rights may sue on be-j half of all to enjoin an excessive use of the water supply.® Two or more foreign corporations were permitted to file a bill, oni behalf of themselves and all other foreign corporations- simi- larly affected, in order to enjoin the execution of an uncon- stitutional statute.'' A few defendants have been allowed- to represent a large class, not only when all of that class had some privity of estate, but also in other cases. Thus, a parson was allowed to sue a few on behalf of all his parishioners to estab- lish a dispu4ed right to tithes.* A lord of a manor may sue some on behalf of alLof his tenants to establish their duty to grind at his millj or his right of enclosure,' or to enforce a rent-charge.^* The court refused to sustain a suit by citizen of a state in behalf of all citizens of the United States to enjoin the Governor of his state from sending to the Legislature 'an amendment proposed to the Federal Constitution.^^ Bills were sustained when brought by those interested in contesting the legality of the issue of certain certificates of indebtedness, against some on behalf of alll of the holders of such certificates;^^ and when brought by the purchaser to set aside a sale to him by a decedent against the executor of the vendor and soijae of his heirs at law, the other heirs at law being unknown.^* It seems that a bill can be sustained: when filed by a' claimant to the equitable title to a tract of land against some 8 Anon., 1 Chancery Cases, 269 ; 9 Brown v. Vermuden, 1 Ch. Cas. Conyers v. Lord Abergavenny, 1 272. Cf. IT. S. v. Dastervignes, 118 Atk. 285; Brown v. Vermiiden, 1 Fed. 199; s. c, C.'C. A., 122 Fed. Ch. Cas. 272 ; Smith t. Earl Brown- 30. ' ' ' ' low, L. E. 9 Eq. 241. • XO Attorney-General y. Wybufghi,-! 4 Baker v. Eogers, 8el. Ch. Cas. . P. Wms. 599; g. c, 2 Eq. Cas. Abr. 74. 167 ; Attorney-General ; v. Jackson, B Stephens v. Ohio State Tele- 11 Ves. 36S, 367; Attorney-General phone Co., 240 Fed. 759. v. ' Shelly,' 1 Salk. 162: ' ' '' 6 Arizona Copper Co. v. Gillespie, H Ohio ex relv Erkenbrecker v. 230 IT. S. 46. Cox, 257 Fed. 334. < 7 Greenwich Ins. Co. v. Carroll, 12 Sheffield Wslter Works v. Teo- 125 Fed. 121. ' • manS, L. E.i2 Ch. App. 8. / ' 8 Brown v. Vermuden, 1 Ch. Cas.' 18 Alger v. Anderson; 78 Fed. 729, 272; Hardcastle V. Smithson, 3 Atk. 733. ' 246. ■ ■ ' § 116] CLASS SUITS 709 on behalf o£ 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.^* 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 joitfed' as defendants, as representatives of their class, upon an allegation that unless an injunction is granted against them they will at- tempt to enforce such rights.^* An alien was not allowed to sue on behalf of himself and all other aliens seeking work to restrain the enforcement of a. State statute , limiting the employmeat of aliens.^® "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 honest support of the pub- lic interest, and when a decree has been obtained, then with respect to the individuals whose interest is so fully and honestly establiidiedj the court on the footing of the former decree will carry the benefit of it into execution against other individuals who were not parties; ' ' ^'' Thus, a city may file such a bill to establish its right to levy a duty; ^' and it has been suggestejd that a suit may thus be brought by one of many persons jointly interested in a geographical trade-mark,^® Such suits cannot be brought against some of the inhabitants of a town to establish the title to property severally held by them and others ; *" nor by a carrier against a few shippers to HAyres v. Carver, 17 Howi 391, Middlesex Water Works Co., 1 Jae. 15 L. ed. 179. & Walk. 358, 369. 15 Northern Pae. Ey. Co. v. Lee, 18 City of London v. Perkins, 3 199 Fed. 621. Contra, St. Louis, Bro. Pari. Cas. 602; Mayor of York Iron Mountain & Southern Ey. Co. v. Pilkington, 1 Atk. 282. V. MeKnight et al.. Railroad Com- 19 City of Carlsbad v. Tibbetts, missioners of the State of Arkansas, 51 Ped. 852, 856, per Putnam, J. et al., 244 U. S. 368. 20 Priest v. Las Vegas, 232 TJ. S. l6Eaich V. Truax, 219 Fed. 273, 604. aff'd on another point as TruaX v. Eaich, 239 U. S. 33. 17 Lord Eldon in Weale v. West 710 PARTIES [I in enjoin them and air similarly interested from suing to recover excessive freight 'charges.*-' .i ; > In these cases, as has been said, ^ai decree against the defend- ants before the court has been held in England to bind others of the same class.** It has been said that this would be the rule here.** - ! i Under the former Equity Rules,^* it^was said that the doctrine did'not apply to members of unincorporated' 'trades' unions.** §117. Omission of parties not withiii the jurisdiction of the court. Tlie .second exception to /tlie'; general rule' is that persons who cannot' be subjected to thfe; 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 be necessary parties defendant, their presence will ordinarily be dispensed with, provided an equitable and effectual decree can be made against those who have been served with process. The former English practice was to charge in the bill 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 jurisdic- tion. Under the modern 'English system this strictness is hot required, and it seems to' be siiMcient if the excuse for not making the absent parties defendant appears on the face of thf bill."^ This rule of ed[uity practice has been confirmed by statute in the United States. "When there are sevei^'al defendants in any suit at law or in 21 St. Louis, Iron Mountain & 84lEq. Rule 48, of 1842. Southern Railway Company v. Mo- 25 See MoArthur v. Scott, 113 U. Knight et al., Railroad Commis- S. 340, 395, 28 L. ed. 1015, 1032. sioners of the State of Arkansas, et Am. Steel & Wire Co. v. Wire Draw al., 244 U. S. 368. ' " ers' & Dye Makers' Union, 90 Fed 22 Brown v. Vermuden, 1; Ch. Gas. 598; Irvtog v. Joint District Coun- 272 ; Lord Eldon in Weale v. West oil, etc., of United Brotherhood of Middlesex Water Works Co.; 1 'Jac. Carpenters, etc., 180 Fed. 896. But & Walk. 358, 369. ' '■ see infra, §§276, 284, 295. 28 Wallace v. Adams; 204 U. S. §117. 1 Judge Dwight' Foster in 415, 425, 51 L. ed. 547, 552 ; Chisolm Palmer v. Stevens, 100 Mass. 461, V. Caines, 121 Fed. 397, 400. Cf. 466. U. S. V. Old Settlers, 148 U. S. 427, 480, 37 L. ed. 509, 529. §117] PARTIES NOT WITHIN iJURISDICTION 7'1 equity, and one or more of ithem 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 thei trial and > adjudication of the suit between the parties who are properly before it, but the judgment or decree rendered therein shalli not eondlude or' prejudice other parties not regularly served with process 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 objection to the suit. ' ' * This statute isj however, merely declaratory, and does not enlarge the power previously possessed by courts of equity.* ' The: power has been extended byi rule, and parties not indis- pensable to an equitable deoreei maj' be omitted if their joinder would oust th* court of jurisdiction by placing persons of the same citizenship upon different sides of a controversy. "In all eases where it shall appear to the court that persons, who might otherwise be deemed proper pa^rties to the suit cannot be made parties by reason ^of, their being out of the: jurisdiction of the court, or incapable otherwise of being made parties, or because their joinderiwould oust the jurisdiction 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 i without prejudice to the rights of the absent parties. " * "If any peraons, 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, by showing them to be .without the jurisdiction of; the court, or thal^ they caijjiot be joined without ousting the jurisdiction of the court as to other parties. And as to persons who are without the jurisdiction and may properly be made parties, the bill may pray that prbc6ss may issue to make them parties to the bill if they should come within. the jurisdiction." * 2U. S. E., §737. See Oonaolly language of Eq. Rule 47, of 1842, V. Wells, 3,"? Fed. 205; Wall v. by omitting the words "necessary Thomas, 41 Fed. 620; Greenhall v. or" before the word "proper." Carnegie Tr. Co., 180 Fed. 812. 5 Simms v. Guthrie, 9 Craneh, 19, 3 Shields v. Barrow, 17 How, 130> ." L. ed. 642; Mr. Justice Curtis in 141, 15 L. od. 158, 161. Shields v. Barrow, 17 How. 180, 139, 4 Eq. Rule 39. This modifies the 1 5 L. ed. 158, citing Clearwater v. 712 PARTIES [§ 117 "As has been said above, a court of equity will ordinarily seek to have before it as parties all persons in any manner inter- ested 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.^ This rule, however, having been established for the promotion of justice, will be modified whenever its rigid enforce- ment 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, provided it can determine the respective rights of the parties before it without affecting those of the rest. There are three classfes 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 inter- ests are so far separable from those of the parties before the court, that it can dispose of the controversy between the latter without affecting the* interests of the former; and parties with an interest in the controversy of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience.' 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.* Thus where a bill was filed Meredith, ,21 How. 489, 16 h. ed. made parties who are interested in 201. the controversy, in order, that there 6 § 110, swpra. may be an end of litiga,tion. , But 7 Mr. Justice Curtis iii Shields v. there are qualifications of this rule Barrow, How. 130, 139, 15 L. ed. arising out of public policy and the! 158i See Chadbourne v. Coe, 51 necessity Of particular ; cases; The Fed. ,479; Lion Traction Cp. v. Bull true distinction appears to be as Traction Co., C. C. A., 231 Fed. fpUows: First, when a person will 156, 160. This text was cited with be directly affected by a decree he approval by Killitts,' J., in' C'ady v. is an indiapensable party, iinless the Barnes, 208 Fed. 359, 360, 361. parties are too numerous to be 8 Federal Mining & Smelting Co. brought before the court, when the V. Bunker Hill & Sullivan Mining case is subject to a special rule. & Concentrating Co., 187 Fed. 474. Secondly, when a person is inter- The rule upon the subject has been ested in the controversy^ but. will well stated by Mr. Justice Bradley: not be directly affected by a decree "The general rule as to parties in made in his absence, he is not an chancery is that all ought' to , be indispensable party, but he should § 118] FORMAL PARTIES 713 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 ithat which affected him.* § 118. Formal parties who may be omitted when without 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 before the court, fornial parties can always be omitted if without the jurisdietioii,^ and their joinder, no matter whether as plaintiffs or .defendants, cannot oust the court of jurisdiction, as they are in reality upon neither side of the controversy*.^ Such are: a, husband against whom no relief is sought, in a suit by his wife to enforce 'the trusts of a marriage settlement;^ trustees of prior railroad mortgage/s in a suit for the foreclosure of a subsequent mortgage and the sale of the mortgaged property subject to their liens; * and parties with the naked legal title; having no interest in the contrbversy.* ' A person against whom an injunction is sought. be made a party i£ possible, and the court wHl ndt 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 eonvenientliy 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;' 1«4; l'87. See Ghadboiirne v. Coe, '51 Ped. 479.' 9 Waterman V. Ganal-Louisiana Bank & Tr. Co., 215 U. S. 33, 49, 54 L. ed. 80, 86. '' § 118. 1 Simms V. Guthrie, 9 Cranch, 19, ;2g, 3 L; 'fed. 642, 644; Wormley V. Wormley, 8 Wheat. 421, 451, 5 if. 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. 8 Wormley v. Wormlfey, 8- Wheat. 421, 451, 5 L. ed. 651, 659; Eemoval Cases, 100 -IT. S. 457, 25 L. ed. 593; Pacific R. Co; v. ' Eetchum, 101 TJ. S. 289, 25 L. ed. 932; Walden v. Skinner, 101 U. S. 577, 25 L.ed. 963 ; Harter v. Kernofihan, 103 U. S. 562; supra, §42. 5 Wormley v. Wormley, 8 Wheat. 421, 5 L. ed. 651; Taylor v. Holmes. 14 Fed. 499. Butsed Watts' v. Waddle, 1 McLean, 200. 4 Pacific E. Co. v. KetehUm, 101 IT. S. 289, 298, 25 L. ed. 982, 936. 6 Simms V. Gruthrie, 9 drstnch, 19, 25, 3 L. ed. '^42, 644; Boon's Heirs V. Chiles, 8 Pet. 532, 8 L. ed. 1034; tTniOn Bank ■ of Louisiana v. Staf - folrd, 12 How, 327; '13 L; ed. 1068; New Orleains Canal & •Banking' Co. V, StafEord, 12 How. §43,- tS^i. ed. 714 PARTIES [§119 unless he consents thereto, cannot be omitted.^ When a suit is brought to recover the possession of real or personal property the person in possession i^ not a formal party.'' Where policy holders sued to enforce their rights against assets transferred to insurance companies, with whom they had not contracted, and the bill also prayed relief against funds deposited by some of the corporation defendants with the State auditor; it was held that his absence would not.pifevent the grant of the rest of the relief which the complainants' sought.* § 119. Parties whose interest is separa,ble. 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 indis- pensable. 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 whicb 'disposes of the matter in dis- pute between the latter without, affecting, their rights.^ Thus, a trustee or director; or executor beyond the jurisdiction has been held properly omitted; in a suit against his colleagues for a breach of trust,, or, for an, accounting.* For a trustee's liability is joint and several.^ One of the next of kin * may sue 1015; Walden v. Skinner^ ,101 U. S. 577, 588, 25 L. ed. 963, 967; Bacon V. Eives, 106 U. S. 99, 27 L, ed. 69; Jackson v. Jackson, , C. C. A., 175 Fed. 710, 717. 8 Ward V. Arredondo, 1 Paine, 410; Mills V. Hurd, 32 Fed. 127. 7 Mass. & So. Const. Co. y. Cane Creek Tp., 155 U. S. 283, 39 L. ed. 152. 8 Watson V. National Life & Tr. Co., C. C. A., 162 Fed. 7. § 119. 1, Cameron v., McRoberts, 3 Wheat. 591, 4 L. ed. 467; MaUow V. Hinde, 12 Wheat. 193, 6 L. ed. 599; Gridley v. Wynant, 23 Hoiy. 500, 16 L. ed. 411; Horn v. Look- hart, 17 Wall. 570, 21 L, ed. 657; Nesmith v. Calvert, 1 Wpodb. & M. 34. This section in the fourth edi- tion is cited with approval in Cady V. Barnes, 208 Fed. 3S0, 369-361, per Eillits, J. ,,,.2 Parsons v. Howard, 2 Woods, 1, ^,;,,:H;eath v. Erie By, Co., 8 Blatchf. iC. C. 345; Hazard y. Durant, ,19 Fed. 471, 476; Plume & A. Mfg. Co. V. Baldypin, 87 Fed. 785; Bay State Gas Co., V. Bogers, 147 Fed. 557, where it was not charged that the omitted trustees had shared in the Woney, as to Tphieh an accounting was prayed. Williams v. Brady, 232 JPed. 740. But see Wall v. Thom- as, 41 Fed. 620. S Parsofls V, Howard, 2 Woods, 1, 5; Heath v. Erie By. Co., 8 Blatchf. 347. 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. I § 119] PARTIES WITH SBP^iRABLE INTERESTS 715 an administrator ajid .his sureties; an.'d a leg^tee,^ at least if not a residuary legatee,? may sUie an' executor to recover his, share of a, d,ecedent,'s e^tatei iyi,thout joining the,, rest of the class to which he belongs. In a, suit by a legatee. t0| enforce an order to an executor . to pay a specified sum, to him and to reach land which tlie executor, had fraudulently conveyed, it was held that a co-executor was not an indispensable. party.' It seems that the executor of a desad, debtor n^eji,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.* , , , One of several tenaiits in common' is not an indispensable party to a suit by another agaiiist a straiiger, to establish the plaintiff's interest in the jiropeMy.^ ■' "In suits to execute the trusts of a will, it shall not be neces- sary to make the heir at law i party- but the plaintiff shall be at liberty to niake the heir at law a partjr where he desires to have the will established against him. " " It has been held: that ari''lieir 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.^^ In a suit against the trusteb to set aside a residuary request to him it was held that the beneficiary of the trust including a legatee whose bequest was conditioned.rupon the trust fund exceeding a B Pandridge v. Washington's Ex'rs, 47 S. E,,597, 65 L.B.A. 924; ,Browne 2 Pet. 377, 7 L. ed. 457. See West v. Browne, Ped. Gas. No. 2,035 (1 V. Randall, 2 Masoi, 181. ' ,' Wash! C. C. 429). , 6 See MeArthur v. Scott, 113 TJ. 10 Eq. Rule 41, copied from Bq. S. 340, 395, 28 L. ed. 1015 ; Braduin Rule 50 of 1842. It has been held : V. Harpur, Ambler, '374;' Hawly v. that the iheirs' of a decedent, who Harvey, 4 Beav. 215; s. .0., 5 Beav. hold a beneficial life interest in, 134. and. a f)0W6r of testamentary ap- 7Fraser V. Cole, C. C. A.,t214Fed. pointment over^ certain property, 556. .1 are not . indispensiable parties to a 8 Mulligan v. Milledge, 3 Cranch, suit against the representatives -of 220, 2 L. ed. 417. , ' the trustees to enforce the rights of 9 Martin v. Fort, 83 Fed. 19, 27 the icomplainants to the same. Mar- C. C. A. 428.; Williams v. Crabb, tin v. Fort, 83 Fed. 19, 27 C. C. A. 117 Fed. 193, 54 C. C. A.' 213, 59 428. L.R.A. 425 ; North Carolina Mining 11 Williams v. Crabb, 117 Fed. Co. V. Westf eldty 151 Fed.. 290,1 296; 193, 54 C. 0. A. 213, 59 L.R.A. 425. AUred v. Smith, 135 N. C. 443, 452, See Jennings v. Smith, 242 Fed, 561. 716 PARTIES [§ 119 certain! sum,: were proper but not indispensable parties. ^^ 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 property was sold upoii the foreclosure of a prior mortgage ; ^' nor are the heiirs of the mortgagor indispeiisable parties to a foreclosure suit, when the bill and answer show that the entire interest in the premises has passed to tlie defendant; although the bill alleges that it passed l>y descent at the death of tlie mortgagor, and the answer that the defendant had acquired it by piireiiase.^* Subsequent lienors are not indispensable parties to a foreclosure.^^ "Where the title to part of the mortga.g:ed 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 insuffir qient.^® Persons in possession of the property, as agents of a defendant, are not indispensable parties to a foreclosure suit.^'' It has been held: that the pledgee of corporate stock is not an indispensable party to a suit to deterinine the title to the same.; 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'.^* It hasi 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 l2Atwood V. Rhode Island Hos- way Co., 101 XT. S. 837, 25 L. ed. pital Trust Co., 255 Fed. 162. 1081 ; Nalle v. Young, 160 TJ. S. 624, IS Kelly V. Ashford, 133 Fed. 610, 40 L. ed. 560. See supra,- ^ 112; 626. But see Skinner v. Harker, Continental & C; T. & 8. Bank v. 23 Colo. '333. Supra, § 112. Corey Bros. Const. Co., C. C. A., 208 14 Cooper V. Johnson, 157 Fed. Fed. 976. ' ■ 104.. 16 Kawananakoa v. Polyblank, 205 ISBrewster v. Wakefield, 22 How. U. S. '349. 118, 129, 16 L. ed. 301 ; Union Bank 17 Golden Cross Min. & Mill. Co. of Louisiana v. Stafford, 12 How. v. Free Gold Min. Co., C. C. A., 154 327j 13 L. ed. 1008; New Orleans Fed. 441. C::'& B, Co. V. Staiford, 12 How. 18 Edwards v. Mercantile' Trust 348, 13 li. Ed. 1015; Howard v. Rail- Co.; 124 Fed. 381, 389. §119] PARTIES WITH SEPARABLE INTERESTS 717 damages because of the delay, althoughi tiie stock is subject to a lien for an inheritance tax.^* ! i It has been held that the mortgagor is not an dndispensable party .to a suit by the mortga/gee to enjoin the enforeement against' the miortgaged propertyof' unconstitutional legislation^*" or to enjoin a muiiicipality from repealing a mortgage fran- chise,^' or' to a suit by the mortgagee,^ or by the bondholders,^* to enjoin trfespasses on the mortgaged property b^' striking employees of the mortgagor, and even that such bondholders need not allege a previous demand for the institution of such a suit by- the niortgagor or by their trustee.^ 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.*" The early English eases hold : that in a suit against a firm, by strangers, a partner beyond the jurisdiction may be omitted if no injustice will be done him by a decree in his absence;** but the American authorities do not support this in all eases.*' 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 property,** and that a partner, whose sole interest is 19 Jessup V. Chicago & N. W. Ey. 24 Carter v. Fortnpy, 170 Fed. 463. Co., 188 Fed. 931. ' ' 25 Paint Creek Go. v. Gallego Coal 20 Knickerbocker Tr. Co. v. City & Land Co., C. C. A., 166 Fed. 62. of Kalamazoo, 182 Fed. 865; City 26 Cowslad v. Cely, Pree. Ch. 83; and County of Denver v. N. Y. Tr. Darwent v. Walton, 2 Atk. 510; Co., C. C. A., 187 Fed. 890. Calvert on Parties, Book III, eh. 21 Denver v. Mercantile Trust Co., xxiii; Smith v. Consumers' Cotton- C. C. A., 201 Fed. 790. But see Oil Co., 86 Fed. 359; Vose v. Phil- Consol. Water' Co. V. City of San brook, 3 Story C. C. 335. Cf. Per Diego, 89 Fed. 272; s; c, 0. G.^A., kins v. Hendtyx, 127 Fed. 448; s. 93 Fed. 849. c, 149 Fed. 526, 529; Lawrence v. ' ' 22 Bah V. Columbian Southerii'Ey. Sokes, 53 Maine,' 110. ■ ■Co., C. C. A., 117 Fed. 21; ea:^dr*e 27 Raphael v. Trask, 194 TJ. S. Haggerty, 124 Fed. 441, infra, § 276. 272, '48 L. ed. 973; Parsons v. How- 23 Carter v. Fortney, 170 Fed.' 463, 'ard,' 2 Woods, 1; Bell v. Donoughue, where the trustee does not sefem 17 Fed. '710-; Mudgett v. Gager, 52 to have been a party, ' althougli the Maine, 541. 'See §120, infra. objection for not jdinihg him ap- SBTowle v. Pierce, 21 Met. ■i^ears riot to haVe been raised. (Mass.) 329; Kilbourn v. Sunder- 718 PARTIES [§119 a share of the joint profits lOf a contract, is not an; indispensable party to a suit by another membei' of the firm,,it6 foreclose, a mechanic's lien for the gross amount due.*® ' 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 fraudulent irepresentations.^" '<' The owners of partial. interests in contracts 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 mixed up in controversies between the parties on the other side, in which they have no concern. " '^ , An heir may file a bill for the specific performance of a contract entitling ihis ancestor to purchase land without bringing in the personal representative of his ancestor, provided that he offers himself to provide for the payment of the puehase-money.** Specific performance of a contract for the sale of land may be enforced against one of several joint tenants without joining the others with him as def endants.^^ land, 130 IT. S. 505, 32 ;L. ed. JOQS., But see § 120, mj'ra. 29 Ex parte Haggerty, 124' Fed. 441. Where the business of the firm was conducted by two houses, and those who^, managed one house had assigned their interest to the managers of the other ; it was held : that i the former, .who filed a dis- claimer, might be made defendants, and that their citizenship> which was the same as that of the prin- cipal defendant, did not defeat: the jurisdiction. Poole v. West Point Butter & Cheese Ass 'n, 30. Fed. 513. SOU. S. V. Salisbury, 157 U. S. 121, 39 L. ed. 642. 31 Mri Justice Field in Willard v. Tayloe, 8 Wall. 557, 571, 19 L, ed. 501, 505; But see Jlpxia v. Carr, 1 Sumner, 173. It has been, held: 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 courts, Rogers v. Pen- obscot Min. Co., C. C. A., 154 Fed. 606, 616. A party to a contract, who has received a release, Dodge v. Frank Waterhouse & Co., 156 , Fed. 57; or one who has released his in- terest. Canal Co. v. Gordon, 6 Wall. 561, 18 L. ed. 894, is not an in- dispensable party to a suit to en- force the same. , seprput T, Eoby, 15 Wall. 471, 21 L. ed. 58. 38 Stephen v. Beall, 22 Wall, 329, 22 L. ed. 786. It has been held, that a corporation, which is not a party to a contract for the convey- ance of certain property thereto, is not an indispejiBable party to a suit to compel specific performance, Sogers V. Penobscot Min. Co., 0. C. §119] PARTIES WITH SEPARABLE INTERESTS 719 It was held that to a hill to set aside a deed and power 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 assignee,'* unless the assignment be executory,'* or, the assignor has anequitaible interest in the claim.*'' Where a cbntract is joint and several, all parties to the same are not indispensable to a suit to enforce- it." Ordinarily all the parties to a contract which is not joint and several are indispensable parties to a suit for its enforcement." In an action at common law to recover damages for breach of a con- tract by which two are jointly bound, both the obligees are not indispensable parties when the joinder of ' one of them would oust the jurisdiction.*" A party to a contract with a trustee, which has been released, is not an indispensable party to a suit A., 154 Fed. 606, 616; and that coiporatlons . 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 thfe 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. Bailroad Co., 99 TJ. S. 191, 25 L. ed. 319. , To a bUl t9 enjoin the execution of a judgment of ejectinent 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. fed. 642, 644. See also Boon's Heirs v. Chiles, 8 Pet. 532, 8 L. ed. 1034. But com- pare Mallow V. Hinde, 12 "WTieat. 193, 6 L. edi; 599. A border case is Elmendorf v. Taylor, 10 Wheat. 152, 6 L, ed. 289. 34 Billings v. A^pen M. & S. Co., '51 Fed. 338, 350. See Hieklin ' v. Marco, 56 Fed. 549. , SB Bateaville Inst. v. KaufEman, 18 "Wall. 151, 21 L. ?d. 775; Treco- thick v. Austin, 4 Mason, 16; Rogers v. Penobscot Min. Co., C. C. A., 154 Fed. 606. 36 Land Co. v. Elkins, 20 Fed. 545. 87 Western Nat. Bank v. Arm- strong, 152 V. S. 346, 38 L. ed. 470; Hubbard v. Manhattan Tr. Co., C. C. A., 87 Fed. 51, 57. 88 Richmond Cedar Works v. Buckner, 181 Fed. 424. Under the Iowa Code of 1897, § 3465, a surety may be sued without joining the principal upon the bond. Kaus' v. Am. Surety Co., 199 Fed. 972. 38 Cristin v. Lednard, C. C. A., 209 Fed. 49. See § 120, infra. 40 Camp V. Gress, 250 IT. S. 308. See also Clearwater v. Meredith, 21 How. 489; Ostrander v. Blandln, 211 Fed. 733. 720 PARTIES [§119 by the cestui que trust to compel such trustee to account, for the loss the plaintiff has thereby sustained.*^ 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.** In a suit by the United States, to collect a bond such as the bond of a referee in bankruptcy*^ or a contractor's bond** or the bond of a postal, clerk*'' for the benefit of individuals interest£!d,,the other parties interested: in the recovery need not be joined. It has been held, that a corr poration, whose citizenship will defeat the jurisdiction, is not an indispensable party: to a isuit by a stockholder to recover damage to his shares ; *^ to a suit by a minority stoclsholder to compel the majority to account to the complainants for their share of the property, which such majority have misappro- priated,*'' nor to a suit in equity by bondholders against directors, to compel them to make good fraudulent representa- tions recited in their mortgage.** That an officer of a corpora- tion, who has deposited with the defendants money, which it is charged he embezzled from the company, is not an indisipensable party to a suit to establish a trust in the same.** The holder of a certificate of stock in a corporation, which has been cancelled by a decree in another court, is not an indispensable pa,rty to a bill to compel the issue to the complainant of a new certificate for the same stock.*" Stockholders and creditors are not neces- sary parties to a suit to foreclose a lien.*^ Where a bill does not disclose that any of them except the defendants are within the jurisdiction of the court, other stockholders in a similar position are not indispensable parties to a creditors' bill tp re- 41 Frank Waterhouse & Co. v. 47 Kuchler v. Greene, 163 Fed.. 91. Dodge, C, C. A., 162 Fed. 1. 48 Slater Tr. Co. v. Ea,ndolphrMa7 42 WHliams v. TJ, S., 138 U. S. cpn Coal Co., 166 Fed. 171. , , 514, 516, 34 L. ed, 1026, 1028. 49 White Swan Mines Co. v. BaJ^ 43 U. S. V. "Ward, C. C. A., 257 iet, 134 Fed. 1004. Fed. 372. 60 Citizens Sav. & L., Aas'n y. 44 See supra, § 5a. Belleville & S. I. B. Co., C. C. A., 45U. g. V. U. 8.. Fidelity & Guar- 11.7 Fed. 109. anty Co., C. C. A., 242 Fed, 16. , 61 Godchaux v, Morris, \ C. § 120] INDISPENSABLE PARTIES ■725_ her personal representative, is 'a neeessaiiy tparty,' Sit 'least when it does not appear that sheior iher 'peTSonaL;rep!r^entatiVe is without the jurisdiction. iof iithe> Qonairtu All' tgaatnts in common of land are, necessary ipartifcS/.to. an action, for trespass upon' the same,*. !,>■',:,', ; i ■]<;'•'■.],':. >;,rn i;.inii;y'. ..,,./. .- ■ , , ,,ilt ,has, beeiij.held tihat Ijlie several,. IpSSArSi- of l^nds, a;re indis- pensable, Pi^rtips. to a, ^uit,^|^tTj^e^ii their,j;ep|pectiY,e, les^ep^^iwjifai j;h^ validity of, ]the^];i;l;^tle,^s lin .qiT^^tion.*;,,, ,,, , w . ,, ,..,.,,,,,5., The United States are necessary parties to a suit brought by a Sta^te against the Sp.erqtary of the In,te;rior to establish theitijtje to, and to prevent i the other disposition-. Sf^ lands iwhich .the Naitional Government claims to own.* ^ '■'' i , 1. ; A State is an indispensable party to a bill against its 'officers to compel specific performance by tjber^ .for it of its contract for th$ gale of Jand ; 7 or. tOi establish, a claim to.prop.erty held; by its officers claiming a title in the State thereto;^ or a claim to corporate stock registered in' its name; the certificates of which aft held by' its officers;^ or to compel the removal of a nuisaiice from, State, land,; ^",13.11,^,^,01;, it has, beesi;! 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.^^ ' • " 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.^^ .; . ; The trustee of an active trust is a neeessaryparty 'tb a suit affecting the ti'iTst estate,^' but the "legal ''rei)resentative of a Sijevis V. Dart, 6' HbW. I;' Hill N; C.'E. Co., 133 tJ. S. 233',' 33 U. ed. V. Wilsoii, C. C. A.,' '210 Fed.' 200. SSS'; siipr'a, §§ 104, I05b. 4'Coihl'an vl Brattnan, ' 196 "Fed. lOHopMus vi 'Clemson 'Agrieul- 219, ' ' ' '"' ■'■■ tui-al College of Soiilih Oarolirky 221 S South Perin Oil Co. v." Miller, C. U.'S.'636, 55 L: ed. 890. ' X"" ' C. A., '175 Fed. 729, 736. ■ ' "■'"'■ H William^ v. U. S., 134'^ XJ. 8. 6'St&,te of' Louisiana' v. Garfield, 514, 516, 34' L. ed. 1026. "-" 211 It. S. 70, 53 X; >ed: 92. izfie dalarfl'^ vi Safe 'iDbp'osM & 7 Preston ■\^. Walsh, 10 Fed.' 31^. Trust 'Co. of Baltimore, 196' Ffed. See als(j Walsh' v.Pres'toil,' 109' 'tf. 981,'''' • S. 297, 2^ L. ed. 940. ''' ' ■ '' i'- 'iS-keBea Y. Brailch Bsun'k 6t±lsi- «See §§103, 104, 105b,' Stt'^a.' ' bama, 19' 'How. 'm,''i5' E. 'ed. 688; 9 Cunningtam V. "Macon ■■&"B: R. O'Hai'a V.' MaeCoiinen,' 93 "tT.S.' '150, Co., lb9'%: 'S: 446. 27' L. ed.''992'; 23 L. ed. 840; Thayerv. Li'f e ' AsS'n, ■skipfa, ■|'3'7. Christian' vl A*tlaij^c"& 112 V: 'S. 717, 28 t. .ed. 864; Amerl- 726 PASTIES [§120 trustee is npt an indispensable party to a suit by a cestui que trust to enforce ai contract concerning the trust property made by the former with the consent of the latter." i Every party to a contract, whether of sale or for another purpose, except one who has released,^" or assigned,^* his intet- est, or who has been released,*' or an agent through whom the title has passed ; ** is ordinarily a necessary party to' a suit to enforce it;** or to set it aside ;^'' or unless its performance can B. S. v. Price, 110 tl. S. 61, 28 L. ed. 70; Black v. Foreinan Brox. Banking Co., 218 Fed. 264; Hamer v.N. Y. By?. Co., 244 U, S. 266; Billings v. Aspen M. & S. Co., 51, Fed. 338, 350; s. c, in C. C. A., 52 Fed. 250. But see New Chester "Water Co. v. Holly Mfg. Co., C. C. A., 53 Fed. 19; supra, §§113, 119. 14 Sage Land & Improvement Co. v., Eipley, C. C. A., 192 Fed. ; 785, where no such representative had been appointed. ' 16 Canal Co. v. Gordon, 6 Wall, ' 561, 18 L. ed. 894. , ■, , , , ,,, 16 Northern Pac. By. Go. v. Kin^ dred, 14 Fed. 77; Mackay v, Ga- bel, 117 Fed. 873; IT. S. V. Clark, 129 Fed. 241; O'Shaugnessy v. Humes, 129 Fed. 953. ITpodgs V. Frank Waterhouae & Co., 156 Fed. 57. 18 Donovan v. Campion, 85 Fed. 71; Gross v. George W. Scott Mfg. Co., 48 Fed, 35; Hamilton v. Savan- nah, F. & W. By. Co., 49 Fed. 412 ; Mackay v. Gabel, 117 Fed. 87,3. But see California v. So. Pae. Co., 157 U. S. 229, 39 L. ed. 683. , , 19 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 y. Megibben, 53 Fed.. 86; Eollins Inv. Co. v. George, 48 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; Cristin v. Leonard, 0. C. A., 209 Fed. 49. See § 119, 20 Shields v. Barrow, 17 How. 130, 15 L.' ed. 158; Coiron v. Miilaudon, 19 How. 113, 15 L. ed. 575; Gay- 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 McAU, 26; Bell v. Donohoe, 17 Fed. 710; Florence S. Mach. , Co. y. Singer Mfg. Co., 4 iPisher'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 Or- leans 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 Northern Ey. Co., 81 Fed. 282; U. S. v.. No. Pac. E. Co., 134 Fed. 715; Beswick v. Dojrris, 174 Fed. 502; Collins v. Penn-Wyoming Copper Co.,. 203 Fed. 726; Hayden, v. per- fection Cooler Co., 217 Fed. 171; Am. Surety Co. of N. Y. v. Conway, 222 Fed. 140; Hawes v. First Nat. Bank, C. C. A;, 229 Fed. 51; 4m. Surety Co. v. Cpnway, 222 Fed. 140. Eq. PI., § 101, and cases there cited Cf.. Sperry & Hutchinson Co.-. v. Pommer, ,J99 Fed. 308. But see French v. Shoemaker, 14 Wall. 314, go L. ed. 852; West v. Duncan, 42 §120] INDISPENSABLE PARTIES 727 would amount to a nuisance,*^ or other tort unconnected ' with contract j** to enjoin a person from carrying it into effect; even, it has been heldy in a case at circuit,' when the other parties are co-trustees beyond the jurisdiction of the court.^ But it has been held that a judgment debtor is not an indis- pensable party to a suit by the judgment creditor to set aside the conveyance which he has made.^* The United States may sue to set aside conveyances, made by Indians, of allotted lands within the statutory period of restriction, without joining such allottees^** The lessee by a railroad company of the right to remove culm from land which the company had formerly occupied as a right of way was held to be an indispensable party to a suit for an injunction against trespass by the company upon the land.^ A railway company is an indispensable party to a suit to enjoin another railway company frpin constructing a roa,d under a lease by it.*'' In, a suit to enjoin tlie persuasion and assistance of contractors with plaintiff to violate their obliga- tions, it was held that such contra,ctors were. indispensable par^ ties,** It seems that an entryman who has bought and paid for Government land is an indispensable party to a suit to enjoin the issue of a patent to him.** Purchasers at a tax sale are indispensable parties to a suit by the United States to enjoin Fed. 430; Smith v. Lee, 77 Fed. Bean, C. C. A., 253 Fed. 1; Wall 779. But see Grigsby v. Miller, 231 v. Thomas, 41 Fed. 620 ; Veitia v. Fed. 521. Fortuna Estates, C. C. A., 240 Fed. 21 Miss. & Mo. E. Co. V. Ward, 2 256. Black, 485, 17 L. ed. 311. ■ 2* Bank of Oommeirce & Trust Co. 22 Cole Silver Min. Co. v. Vir- v. McArthur, C. C. A., 256 Fed. 84, ginia & Gold Hill Water Co., Fed. reversing 248 Fed. 138. Cas. No. 2,989 (1 Sawy. 470). But 26 Heckman v. U. S., 224 U. S. see Anderson et al. v. Bassman et 413, 56 L. ed. 820. al., 140 Fed. 10. 26 Patterson v. Delaware & Hud- 28 Northern Ind. R. Co. v. Michi- son Co., C. C. A., 251 Fed. 255. gan C. E. Co., 15 How. 233, 14 L. 27 Northern Ind. E. Co. v. Mich, ed. 674; Saphael v. Trask, 194 U. C. R. Co., 15 How. 233, 14 L. ed. S. 272, 48 L. ed. 973. But see Heriot 674. V. Davis, 2 Wood'b. & M. 229: 28 Sperry & Hutchinson Co. v. Boon's Heir v. Chiles, 8 Pet. 532, 8 Pommer, 199 Fed. 309. L. ed. 1034; MoConnell v. Dennis, 29 New Mexico v. Laae, 243 V. S. C. C. A., 1S3 Fed. 547; V. S. v. 52, 58. 728 PARTIES [§ 120 a Gonveyanee to them; *" but it was held that the assignors and mesne assignees of a^ patent for : an invention are not neeessary parties to a bill: against the Commissioner to expunge it from the records of the Patent Office.*^,; To a tUl in equity by a State, to enjoin a corporation fromacquiring a majority of the stock i of t^O, competing, railroad, complies, chartered by such State,.an^ thus obtaining, and exercising ownership and control over their raiboads ; jjkese railway companies, are indispensable parties.*^ A city is an indispensable party to a suit, by a company claim- ing a street railroad franchise, to enjoin another railroad com- pajay from occupying the street.^*' To a bill to set aside a decree, the party in whose favor the decree was made is an indispen- sablle party^. This rule applies to a judgment in favor of. the United States which is voidable, but not void.'^ To a bill against the administrator with the will annexed of Kosciuszko, claimiug a legacy under an alleged codicil to tlie will, foreigners claimiiig the assets of tlie deceased as heirs at law were held ' necessar jr parties.'* To a bill between ;^artners for an' accounting, all the surviving partners ajid the representa- tives of a deceiisfed partner, even when . alleged to be insolvent, are, it seems, indispensable' parties,^^ 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.*® All the partners must be joined as plaintiffs and defendants in a suit to recover money due the firm,*'' or, it seems, to prevent the disposition of a fund 30XJ. S. t/ Bean, C. C. A., 253 tee, residing beyond' the jurisdiction, Fed. 1. was not before the court ; see An- 31 Backus P. S. H. Co. v. Si- thony v. Campbell, C. C. A., 112 monds, 2 App. D. C: 290. ' • Fed. 212. ■ ■ 32 Minnesota V. Northern 'Seeuri- S3 Buckley v. U. S., 196 Fed. 429. ties Co., 184- TJ. 8. 199,-46 L. ed. 34 Armstrong v. Lear, 8 Pet. 52, 499. - ,1 ,, : ! • 8 L. ed. 863. ' 32aTacoma Ey/ & Power 'Co. v. ' 36 Bank v. Carrollton R. Co., 11 Pacific Traction Co., 155 Fed.' 259; Wall. 624, 20 L. ed. 82; Bartle v. Hoe V. Wilson,' 9 Wall. 501, 19 L. Coleinan, 3 Cranch, C. C. 283; Gfray ed. 762; Harwood v. Railroad Co., v. Larrimore, 2 Abb. 0. 0. 542; 17 Wall. '78, 21 L. ed. 558; Johisoii BreW v. Cochran, 141 Fed. 459. V. Hunter, 127 Fed. 219. For a 36ToWle v. Pierce, 12 Met. ease ■n'here, upon a petition of inter- (Mass.) 329; Kilbourn v. Sunder- vention, a sale was set aside and land; 130 'IT. S. 505, 32 L: ed-. 1005. a prior lien- upon the- projtefty'' en- •STEdgell v.'-TeldeT, 84 Fed. 6^. forced, although the v?ndoT, a trus- Wh?re the business" of the firm was §120] INDISPENSABLE PARTIES 729 held by the firm.^* To' a partition suit all of the tenants in common are indispensaWe parties;^* A person^ in • possession under aclaim-of a title or interest in pt-operty' is a necessary party to a suit affecting it.*" The mortgagor is a necessary party to a suit by the moirtgagee against a, thiM person to remove a cloud upon the title ; *^ or to prevent an injuryi to the property when the decree must necessarily adjudicate unsettled rights of the mortgagor,*^ or to a suit where personal judgment' is prayed against him.*^- The owHer of the equity of redemption is an indispensable party to a foreclosure suit,** or to enforce an equitable lien upon the property *^ or to a suit to remove the trustee of the mortgage.*^ There is a dictum to the effect that the owner of the equity of redemption is not an indispensable party to the foreclosure of a Biortgage.*'' • ' ' ■ The Owner of the debts secured by the mortgage is ii6t an indispensable party if he'dbeig not' own the equity of redemp- tion.** ■'.....-. It has been held that the trustee of a iHbrtgage i^ hot an in- dispensable party to a foreclosure suit by a bondholder.*® It is the safer practice to join the mortgagor as a party defendant to a bill hy the' mortga'gee of a patefat 'seeking an conducted by two houses, and those &• HAdson Go.., C. 0. A., 251 Fed. who managed one , jhouse had as- ,•, 2^5. ,,.-,,! r ,.' mj ■, .i . signed their interest Jo the manag- , 41Betts v, I)ana, 2 Summer,, 383 ; ers of the other: it was heli: that HieHin v. Marco, C. "C. A., 56 Fed. the former, who filed a disclaimer, 549. '■-•■■'- might be made defendants; and' ' '42Consol. Water Goi v. San Diego, that their pitizenship, , ivyhieji' was 84.F,ed. S69> , l the same as that of tlie .prineipal , iS Be Saltman, C. G. A., 249 Fed. defendant, did not defeat the juris- 455. diction. Poole v. West Point But- HEe Saltman, C. C. A., 249 Fed. ter & CJheese Ass'n, 30 Fed. 513. 455. 38 Raphael v. Trask, 194 U. S. 46 Sa; Parte -Equitable Trust Co. 272, 48 L. ed. 973. Cf. Supra, § 119. a C. A., 231 Fed. 572. - I 39 Barney v. Baltimore, 6 Wall. 46 Hidden v. Washington-Oregon 280, 18 L. ed. 825. Corporation, 217 Fed. 303. ■ 40 Williams v. Bankhead, 19 Wall. 47 Bi'own v. Crawford, 252 Fed. 563, 22 L. ed. 184; Young v. Gush- 248, 253. ing, 4 Biss. 456. But see Eirigci v. 48 Cady v. Barnes,. 208 Fed. 359. Binns, 10 Pet. 269, ' 281, 9 L. ed. 49 Lowenthal v. Georgia Coast & 420, 425; Hicklin v. Marco, C. C. A., P. E. Co., 233 Fed. 1010.^ 56 Fed. 549; Patterson v. Delaware 730 PAKTIES [§120 injunction against its infringement with daniages or an account of profits.^"* It has been held: that all the devisees, who are joint tenants of land, are indispensable parties to a suit to foreclose a mortgage upon the same, given by an executor under a power in the wilL*^ It was held that in a suit to compel the execution and foreclosure of a mortgage, prior incumbrancers and others claiming ah interest in the mortgaged property were necessary (parties, when it did not appear that their joinder was impossible or would oust the jurisdiction.** To a bill to enforce specific performance of a contract, pro- viding for the sale of land the title to which was in one party, and its distribution i between both parties to the contract;, when filed, after the death of each by the personal representatives of the one as complainants against the heirs-at-law of the other, as defendants: the executors of ;the defendants' ancestor are neces- sary ,if not indispensable parties defendant, and the heirs-at-law of the complainant 's decedent are not.** All a decedent 's, hei^s-at-law are indispensable parties to a , bill by oneot' them to spt aside a, sale of the ancestor's property under a decree; and to such a bill ,the, party to the former suit at whose instance the sale was inade, is also, aji indispensable party.** All a woman 's heirs have been held necessary parties to a bill to set aside a marriage settlement.** To a bill by a stockholder to set aside the foreclosure of a railroad mortgage, the trustees of the mortgage foreclosed, the mortgagor, ' the purchaser, and enough of such of the stockholders and bpnc^hplders as consented to the foreclosure to represent the remainder, are indispensable parties.*^ So, it has befen" said, are the trustees of a mortgage by the purchaser, and a corporation holding all the stock of the purchaser.*'' 60 Waterman v. Maekenzie, 138 64 Hoe v. Wilson, 9 Wall. 501, 19 TT. S. 252, 261, 34 L. ed. 923, 927; L. ed. 762; Harwood v. Eailroad quoted mpra, § 112. - Co.y.lTWall. 78, 21 L. ed. 558. But 61 Detweiler v. Holderbaumv 42 — . see Alger v. Anderson, 78 Fed. 729. 62 Metropolitan Bank v. St. Louis 66 McDonnell v. Baton, 18 Fed. Dispatch Co., 149 XT. 8. 436, 450, 37 710. . — L. ed. 799, 804. 56Ribon v. Railroad Cos., 16 58 Seymour v. Freer, 8 Wall. 202, Wall. 446, 21 L. ed. 367: 218, 19 L. ed. 311. See Prout v. 67Wenger v. Chicago & E. E. Co., Roby, 15 Wall. 471, 21 L. ed. 58. C. C.A., 114 Fed., 34. § 120] INDISPENSABLE PARTIES 731 A corporation or its receiver,^* must be a party to a suit to enforce a right against a third person, which the corporation refuses to assert,*® or toiprevelnt the waste of corporate assets.*" If a receiver has been appointed he is an indispensable, party to such a suit, even although (the Stiate court which appointed hiin refuses to authorize the suit against him.*^ Where a corporation hadibeen dissolved and its receiver discharged; it was held: that neither of them was an indispensable party to a suit by its e-redi tors against a former director and treasurer i of' the com- pany, to enforce his promise to pay all its debts in case he should be allowed to buy its property at a judicial sale.'* A county is an indispensable party to a suit to set aside its bonds or warrants as fraudulently issued.*' The trjistees and treasurer of an Iowa township are neces- sary parties to a suit by a taxpayer to prevei;it payment, to the holder of bonds claimed to be invalid.?* It has-been said that to a bill by the receiver of ja water , company tp esta,blish his right to fix the water rates, all consumers of the water must be made parties.** To a bill for an injunction against interference by riparian owners with complainant 's right to divert the waters for irrigation, all persons who claim any right to use the waters are indispensable parties.** It seems that the principal debtor, or his,,assignee in bank- 68 Porter v. Sabin, 149 TJ. S. 473, 64 Sully v. Dreiman, 113 TJ. S. 287, 37 L. ed. 815. 28 L. ed. 1007. Compare Harter v. 69Bavenport v. Dows, 18 "Wall. Kernoohan, 103 TJ. S. 562, 26 L. ed. 626, 21 L. ed. 938; New Jfersey Gen- 411. In a suit by citizens to restrain tral R. Go. v. Mills, 113 TJ. S. 249, the erection of a sehoolhouse on land 256, 28 L. ed. 949, 951; Bell v. Don- dedicated for a public park, it was ohue, 17 Fed. 710; Swan L. & C. Co. held error to refuse to allow an V. Frank, 148 TJ. S. 603, 37 L. ed. amendment to the bill making'the 577 ; Kelly v. Mississippi River Coal- original donors of the land parties ing Co., 175 Fed. 482; Snead v. complainant. Rowzee v. Pierce, 75 Seheble, C. C. A., 175 Fed. 570; Miss. 846; s. c, 23 S. R. 307; s. c, Lawrence v. Southern Pac. Co., 180 40 L.R.A. 402, 65 Am. St. Rep. 625. Fed. 822. 65 Ward v. Sau Diego L. & W. 60 Putnam v. Rich, 56 Fed. 416. Co., 79 Fed. 656, 667, s. o. in C. C. 61 Porter v. Sabin, 149 TJ. S. 473. A., 94 Fed. 849. But see Clyde v. 62 Lilienthal v. Betz, 185 N. T. Richmond & D. R. Co., 57 Fed. 436. 153, 7 Ann. Cas. 41. 66 Washington State Sttgar Co. v. 6S Continental Trust Co. v. Butts Sheppard, 186 Fed. 233. County, 242 Fed. 539. 733 ■ PARTIES [§120 ruptcy or insolvency, is a necessary party to a suit agafnst a surety.^'' •■■':'• Unless the bill is expressly filed on their 'belialf, all creditors of a corporation are indispensable parties to a suit by one of them to collect unpaid I stock subscription;^* " To a suit by' a creditor to enforce a lien upon property through a trust-deed made! for the benefit of ai surety, both the trustee and his^benefieiary are indispens9,We parties, although the prop- erty is; in lithe, possession of neither of them; but if filed' 'in a double aspect,! either for the complainant's individual benefit, 6r ori behalf of the other creditors'of the principal debtor, to set aside a subsequent sale, ' relief may ' be had without haviilg the surety or his trustee before the edtirt:™ So, a debtor,- or if a bankrupt' or itisOlvent, his assignee, is a necessary party to a creditor's siait'to enforce a lien''^'' of to leV;^'''^ upb-h projifertyin which the debtor hds an interest, or to collect ''^ a debt due the debtor. A corporation must be joined as a defendant : to a bill for a receiver;''* to a bill filed by a creditor to apply to' the payment of its indebtedness money due it from its stock- holders,'''* or to enforce the individual liability of its stockhold- ers.'''^ To a 'bill to compel a t'raiisfer upon its books of stock STEobertson v. Garsbn, 19 Waill. the agent,- it is proper then to dis- 94, 22 L. ed. 178. See also Russell miss him. Union Stock Yards Nat. v.- Clark, 7 Cranch, 69^3 li.'ei. 271. Bank v. Moore, CO. A., 79 Fed. But see Eq. Bule 42.~ 705. • • , 68 George, I W. Signer Tie Go. v. 71 Wilsou v. City Bank, 3 Sum- Monett & S.. W. Const.; Co., 198 Fed. ner, 422. » 412. 72 IT. S. V. Howland, 4 Wheat. 69McRea v., Branch Bank of Ala- 108/ 4 L; ed. 526: ■ bama, 19 How. 376, 15 L.,ed. 68:8. 73Elkhart Nat. Bank v. North- 70 Eussell V. Clark, 7 CrancJhj 69, western G. L. Co., 84 Fed. 76. 3 ,L(., ed. 271;, .Robertson, V. 'Carson, 7*'Bingham v. Luddington, 12 19 Wall. 94, 22 ,L. ed. 178. But see Blatehf. C. 0:i237; First Nat. Bank Heriot .v., Davis, Z W.- & Mv 229. It v. Smith,; 6 Fed. 215;- Dormitzer v. was held that in a' ?uit against a Illinois & St. L. Bridge Co., 6 Fed. bank for money deposited bj" Com- 217 ; Walsh v. Memphis, C. &. N. plainant's agent, and applied by the W. R. Co.; 6 Fed. 797; Continental bank toi debts due from the agent. Adjustment Co. v. Cook, 152 Fed. the; latter ' was a proper/, and,, necCs- 652; Clinton Min. & Mineral 'Co. sary party;, but on a decree for com- v. Cochran, C. C. A., 247 Fed. 449. plainant, without there appearing 75 Elkhart Nat. Bank v. North- any right or liability for or against western E. L. Co., 84 Fedi. 76.' § 120] INDISPENSABLE PARTIES 733 which stands in the name of another than the complainant.''^ To a bill by the stockholder i of another companly^ which is in control of a majority of its stock to 'enjoin such' other company from voting ujion such stock land from electing' 'u^oil its board of directors anyone who is a director or officer of the defend- ant company.'" To' a bill' to enjoin its officers' from an infringe- ment or another tort committed' in 'the traiisadtion of its'biisi- ness.''* So mii^t be an unincotpbrated associatitirf to a bill to forecldise a mortgage upon a certificate of membership which cannot be transferred without its consent.''® ' To a bill for the dissolution of a corporation and an account- ing filed for the benefit of a single stockholder, not on t.ehalf of the rest, the other stockholders or their representatives nnJ^st be made defendants.*" A stockholder is an indispensable party to a bill to ^enjoin his corporation from permitting his stock to be voted,*' although the owner is a corporation, ^yi.th the same directors as those pf^thp company the stpc^k, in which,, he 76 Kendig v. Dean, 97 U. S. 423, 24 L. ed. 1061; St. Louis & 8. F. Ry. Co. V. Wilson, 114 V. S: 60, 29 L. ed. 66; Rogers v. Nortwiekj 45 Fed. 513; Patterson v. Farmington St.,Ry. Co., Ill Fed. 262. See yfU- son V. Oswego Township, 151 IT. S. 56i, 38 L. ed. 70 ; and cases cited ; supra, §§ 40-43 ; infrct, § 541. ' But it has been said that in- a suit by the holder of a certificate of stock, duly! endorsed, to compel a trajisf er of i the same by the corporation, the owner of the legal title is not an in- dispensable party, although he has disputed the validity of the trans- fer. O'Neil V. Wolcott Milling Co., C. C. A., .174 Fed. 527,, 530,;, see Gould V. Head, 41 Fed, 24Q„ 248; Williamson v. Kroh^,, 66 Fed. 655. 77Hyama v. Old Dominion Co., 204 Fed. 681, aS'd C. C- A. 209 Fed. 808. 78 Wm. A. Rogers Co. v. Nichols, C. C. A., 224 Fed. 415. 79 Metropolitan Nat., Bank v. ^t, Louis Dispatch Co., 149 U. S. 436, 37 L. ed. 799. SOWatsdn v. U. 8. Sugar Eefiii- ery Co., 68 Fed 769. Where a cor- poratifltn had been required to de- posit moneys with the treasurer .of the Commonwealtli to indemnify those who should sustain damagS by the construction' of a canal, and the fund was insufficient to pay all claims, it was l^eld that a bill \ to ; have certain damages paid there- from should maie parties to the suit all interested in the funds. Cowell V. Cape Cod Ship Canal Co., 41 N. B. E. 290, 164 Mass. '235. Similar is Childs v. p'. B. Oarstein Cq., 76 Fed. 86. But see Bicklgrd V. McComb, 88 Fed. 428. ; ■ , , 81 Talbot J. Taylor &',Gq..„cV. Southern Pac. Ry. Co., 12? F,e4. 147y See Minnesota v. Nprtherii, 3po«ri- ties Co., 184 U. S. 199, 46 L. ed. 499i 734 PARTIES I [§'121 owns.*^ A stockholder is an indispensable party to a suit against a coUeotor of Internal Revenue fend others to have income taxes decla,red an equitable lien upon dividends which a lessee of. his corporation has covenanted to i .pay directly; t,o such stock-- hplders,*', ., . , ;, . ,, .,Tp a bill, by alleged , heirs, ;tfl..set aside the, probate of. a will, persons wih,o appeared; in ,the probate court, claiming adversely to the plaintiffs, that they ,ar,e ,th,e_,true heirs .at,, law ^ are in- dispensable parties.**, I:fi asuit to compel, the execution and foreclosure of a mortgage, it was ,hel4; that prior incumlDrancei-s and others, claiming an interest , in the mortgaged property, ■y^ere necessary parties, when it did nqt appear that their joinder was impossible or would, oust the, jurisdiction.*^ In one case, where a bill was filed to stay proceedings iii ejectmeiit,, the court required the nominal defendant at law to be joined as a co- plaintiff with the real person iiiterested, although it did not appear what citizenship he had.*^ § 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 interest.s were thus conveyed to be omitted from the bill, if the original owner of the property thus divided were made a defendant.^ The rule and the reasons for it are thus stated by Calvert in his valuable work on Parties: "If at party has divided an in- terest amongst- a number of persons for this purpose, the courts ill order that the contrivance may be frustrated, and the equitable relief may be' obtained, allows the suit to proceed in their ab- sence. Siich a division is in reality a fraud, an attempt to defeat 82 Gen. Inv. Co. v. Lake Shore & sies in the chapter XXXII on Ee- M. S. By, Cq., 250 Ted, 160, 171. moyal of , Causes, infra, should be 83 Bensselaer & Saratoga E. Co. v. consulted. irwin, 252 Pod. 921. ' §121. 1 Calvert ou Parties (2d 84Carran v. O'Calligan, C. C. A., ed.). Book I, ch. iv, p. 61; Tates v, 125 Fed. 657. Hambly, 2 Atk. 237. See, also, 85 Caldwell V. Taggart, 4 Peters, Union Bank of liduisiana v. Staf- 190', 7 L. ed. 828. ' ' ford, 12 How. 327, 13 L. ed. 1008; 86 Hyde v. Polgei', 4 McLeaii', 255. New Orleans Canal & Banking Co. v. In connection With this topic, the Stafford, 12 How. 343, 13 L. cd, section 541 on Separable Controver- 1015. ' ■ § 123] EFFECT OP CONSENT OP WAIVER 73G justice by converting the^ general rule of the court intp an obstruction to the ordinary proceedingSi i The court defeats the i'raud by refusing to enforce the general rule.'!* Lord Hard- wicke said, upon this subject: "Where a mortgagee who has a plain redeemable interest makes several conveyances upon trust, in order to entangle the affair, and to- render it difficult for a mortgagor or his representatives, to redeem, .there it is not necessary that the plaintiff should trace out all the persons who have an interest in, such trust, to make i them 'parties." ' This rule might, perhaps, :be, extended, to a ease; where au at- tempt had been made to defeat the jurisdiction of the Federal court by a merely colorable conveyance to a person. of the same citizenship as the complainant.^ § 122. When a person consents to the relief sought. A per- son who' consents to the relief sought,. swhen, it is BO' stated in the bill, need not be joined as a defendant with the iothei; parties interested, unless his presence is indispensable for, their pro- tection.^ Sometimes, the plaintiff is required to execute a satis- factory undertaking that the party omitted: will !Conformi to the decree.* Siinijarly, a person who disclaims all interestrifiithe subject-inatter may also, be omitted, unless his joinder is essen- tial to the protection of , the rights of the other defendants.? An agreement between two i persons that one shall : represeiit ;the other as plaintiff, when the i former would otherwise have no right to the relief Isought, will not be sanctioned' by the" court.* : §123. When the plaintiff waives his right against a pwson. "Where a plaintiff," says Lord Hardwicke, "is only concerned in interest, there he may waive his deniand, and omit making 2 Calvert on Parties (2d ed.), 61. Book I, ,eh. V., 69, 84; Gas Seeuri- S Yates V. Hambly, 2 Atk. 237, ties Co. v. Antero & Lost Park Ees- 238. ervoir Co., C. C. A., 259 Fed. 423. 4 See Union Bank of Louisianp V. S Calvert on Parties (2d ed.), Stafford, 12 How. 327, 13 L. ed.—; Book I, ch. 69; Kirk v. Clarke, New Orleans Canal & Banking Co. Prec. in,ch. 275; Hiarvey v. Corrie, V. Stafford, 12 How. 343, 13 L. ed. 4 Euss. 35, 55; Bawtree v. Watson, 1015; Leather Manufacturers' Bank 3 M. &,K. 339, 340. V. Cooper, 120 U, S. 778, 781, 30 L. ,, SVattier y. Hipde, 7 Pet. 252. ed. 816, 818. 258, 8 L. ed. 675, 677. §122. 1 Mechanics' Bank v. ,Se- 4Bylands v. Latouche, 2, Bligh. ton, 1 Pet. 299, 306, 7 L. ed. 152, 579. , 155; Calvert on Parties (2d. ed.), 736 PARTIES [§ 124 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 neeesSary 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. ' ' ^ Such a waiver cannot, however, be made unless it can be. without prejudice to those against whom the bill is filed* § 124. When the interest of an absent person is evidently very small. In England it has been held^ in accordance with the maxim de minimis ncm curat lex, that when the interest of an absent person 'is evidently very small the court will dispense with his presence in the suit.^ This view seems to be sanctioned by' two decisions of the Supreme Court of the United States.'^ §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 defend in their interest.^ ' § 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 de- cedent's estate, the omission in a , bill affecting that estate of an administrator might be excused if special circumstances were shown.^ If, however, no proceeding in the Ecclesiastical Court were pending, one must ibe instituted before the bill could be filed.?, §123. 1 Williams v. Williams, 9 General v. Gfoddard, 1 T. & B. 348, Mod. 299. See also Wilson v. Todd, 350. See also Faulkner v. Daniel, 1 M. & C. 42,' 46; Mechanics' Bank 3 Hare, 199, 213. V. Seton, 1 Pet. 299, '306, 7 L. ed. 2 Union Bank v. Stafford, 12 How. 152, 155; Calvert on Parties (2d 327, 13 L. ed. 1008; New Orleans C. ed.), 83, and cases cited. & B. Co. v. Stafford, 12 How. 343, 8Bule 50, copied from the 31st 13 L. ed. 1015. Order in Chaneeiy of Ailgust, 1841. §125. 1 Alger v. Anderson, 78 8 Anon., 2 Eq. Cas. Abr. 166, pi. Fed. 729, 734. 6; Story's Eq. PI., §139; Poole v. §126. 1 Plunket v. Penson, 2 West Point Butter & Cheese Ass'n, Atk. 51; Penny v. Watts, 2 Phil- 30 Fed. 513. lips, 149, 154; Calvert on Parties • §124: 1 Calvert on Parties (2d (2'd ed.). Book I, ch. V, p. 70. ed.). Book I, ch. V, p. 70; DaWg v. 2 Penny v. Watts, 2 Phillips, 149, Benn, 1 J. & W. 513; Attorney- 154; Calvert on' Parties (2d ed.). §128] SUMMARY OF KULES 737 § 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.* ' ' The necessity for the relaxation of •the rule is more especially apparent in the courts of 'the United States; where, 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." * A court of equity adapts i its ' decrees to thei 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 in- terested terminate' in a decree against the defendants, it is easy to do substantial justice; to all the parties in interest, and prevent a multiplicity of suits^, by allowing the other persons similarly situated with the plaintiff, "either through a refer- ence to a master, or by some other proper proceeding, to come in and share in the benefit of - the litigation. "',, The discre- tion as to the joinder 1 or omission of the parties is, however, one which, when properly raised, is . subject to review upon appeal.* An act of Congress relaxing or extending the. rules as to parties in a particular case is constitutional.^ § 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 hot oust the jurisdiction of the court, and who have any direct interest Book I, ch. V. See Eeed v, Bennett, * Mr. Justice Davis in Payne v. 55 N. J. Eq. 587, 37 Atl. 75; supra. Hook, 7 Wall. 425, 432, 19 L. eA.' § 113. 260, 262. §127. 1 Cameron 'V. MoKobferts, 3 Mr. Justice Davis in Payne v. 3 Wheat. 591, 4 L. ed. 467; Elmen- Hook, 7 Wall. 425, 432, 19 L. ed. dorf V. Taylor, 10 Wheat., 152, 6 L. 260, 262. See s., c. as Hook v. ed. 289; Lewis v. Darling, 16 How. Payne, 14 Wall. 252, 20 L. ed. 887; 1, 14 L. ed. 819 ; Barney v. Balti- infra, § 258. more, 6 Wall. 280, 18 L. ed. 825; 4 Caldwell v. Tajggart, 4 Pet. 190, Payne v. Hook, 7 Wall. 425, 19 L. 7 L. ed. 828; Robertson v. Carson, ed. 260; Barney v. Latham, 103 U. 19 Wall. 94, 22 L. ed. 178; Hoe v. S. 205, 26 L. ed. 514; Greene v. Sis- Wilson, 9 Wall. 501, 19 L. ed. 762; son, 2 Curtis, 171; West v. Ran- Railroad Co. v. Orr, 18 Wall. 471, dall, 2 Mason, 181; Parsons v. How- 21 L. ed. 810. ard, 2 Woods, 1; Winter v. Ludlow, 6 IT. S. v. Union Paeifio R. Co., 3 Phila. (Pa.) 464. 98 tJ. S. 569, 25 L. ed. 143. Fed. Prac. Vol. 1—47 7.38 PAKTiES [§128 in 'obtaining or resisting the relief prayed for in a bill,, or granted in a decree which so disposes of- the controversy as to prevent any future litigation . concerning the same, must be parties to a suit in equity-.^ .:. ' il. No person without an interest in ;the contest or its settlie- ment can i be joined as a party, except perhaps the officer or member of a corporation, who according to some authorities may 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.^ III. If the persons having a common interest in the subject of the controversy or the question to be decided therein are numerous, they may in certain cases be represented, as plain- tiffs or defendants, by others who hold the legal title in trust for them, or by one or more of their number suing, or more rarely being sued, in their behailf .' 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 omitted, wheii, by reason of their residence or citizenship, not within the jurisdiction of the court.* >. ' V. AH persons who have such an interest in the controversy that a decree cannot be enforced without directly affecting their rights, must be joinedias parties; except possibly when they are unknown to the complainants, or when their interest is very small, or has been created for the purpos^ of depriving the court of jurisdiction.* 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 neces- sary for the protection ' of those who have been made 'defend- ants.^ VII. The necessity pf the joinder of parties is always, in the sound discretion of the; court, which adapts itself to the facts of each particular ease.'' § 128. 1 §§ 110, 120. S §§ 120, 121, 124. 2 §i 110, 111. ' 8 §§ 122, 1^3, 124. 3 §§ 113-116. 7 § 127. 4§§42, 118' 119. § 129] OBJECTIONS FOR WANT OP PARTIES 739 § 129. Objections for want of parties. An objection for want of parties may be taken by motion to dismiss,!'' or by answer,^ or at the hearing,? and if the absent persons are indispensable parties,, even for the first time upon appeal,* : although not if a decree has been made which cannot prejudice their interests." Unless the defect is jurisdictional or the omitted parties are indispensable, it is waived if not specifically raised iui the court of first instance.® If the parties, omitted are indispensable the court even upon appeal may dismiss the bill of its own motion.' The objection should Specify by name or , description the omitted parties.* It should state the names, if' known, of all the persons for whose omission the defendant claims that, the bill is defective,^ and the reasons why their presence is required in the suit.*" It should also state that thBy are living, and, unless they are in every aspect of the bill indispensable parties thereto, that they are within the jurisdiction of the court.^ "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 a,t liberty to make a decree saving the rights of the absent parties."** "Where the defendant shall by his § 129. lEq. Eules 29, 44. Hyams THawes v. First Nat. Bank, C. V. OH Dominion Co., 204 Fed. 681. C. A., 229 Fed. 55; IT. S. v. Bean, 2 Eq. Bules 29, 44. G. C. A., 253 Fed. 1. 3 Eq. Bule 44. 8 Eq, Bule 44. , > , , , 4 Hoe V. Wilson, 9 Wall. 501, 19 9 Attorney General v, Jaekso^, 11 L., ed. 762. It has been held that,' Ves. 367, 3(59; Cook v. Manciiis, 3 at common law, a defendant may, Johns Ch. (N. T.) 427; Dwight under a plea of the general issue, v. Central Vt. B. Co., 9 Fed. 785 j raise the objection that a necessary Campbell v. James, , 2 Fed. 338, 348. party has not been joined. Coch- See Helm v. Zarecor, 222 TJ. S. 32, ran v. Brannan, 196 Fed. 219. But 35, 56 L. ed. 77. see Iron Molders ' Union No. 125 of 10 SheflSeld v. Newman, 77 Fed. Milwaukee, Wis. v. Allis-Chalmers 789. Co., C. G. A., 20 L.B.A.(N.S.) 315, H Goodyear v. Tobyj 6 Blatchf. 166 Fed. 45. 138. 6 See Eq. Bule 39. Keller v. Ash- 12 Eq. Bule 44; copied in sub- ford, 133 U. S. 610, 626, 33 L. ed. stance from Eq. Bule 53, of 1842. 667, 674. See David v. M'Eae, 183 Fed. 8'12, 6 International News Service v. 814. Associated Press, 248 U. S. 215. 740 PARTIES [§ 129 answer suggest that the bill of complaint is defective for want of parties, the plaintiff may, within fourteen da:ys 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 therewith to a hearing, notwith- standing an objection for want of parties taken' by the answer, he shall not at the hearing of thei 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 an amendiflenti on such terms as justice may require."^' Where evidence is re- quired to prove that a defect in parties eidistS the court will ordinarily not determine the question until after a hearing upon all the issues in the case.'* An objection to the whole bill for want of' parties will be overruled if, in any aspect of the bill, the parties therein named would not be necessary ; '^ but only so much of the relief prayed will be granted as cannot injuriously affect those who are omitted.** Where a defendant in a suit in equity for the infringement of a patent made objection for the first time at the argument upon final hearing, that there was a defect of parties, because a person holding an equitable title to the patent was hot 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.*''' The usual practice is for 'the court, if it considers the objection good, to allow the cause to stand 'oyer until the plaintiff shall amend his bill /by bringing in the additional : parties needed.** This ma:y be done upon I appeal.*' , , By the former practide, after a plea for want of parties had 13 Eq. Rule 43; (Copied in part IT Calif orriia : El. Works v. Finek, from Eq. Eule 52, of 1842. ' ( 47 Fed. 583. See also Hills v. Put- 14Bogert V. Southern Pacific Co., nam, 152 Mass. 123. ., 211 Fed. 776. . ''r 18 Hunt v. ' Wickliiffe, 2 Pet.. 2d. iBHoman v. Shiel, 2 Jones 164; 215, 7 L. ed. 397, 402. , ;, Gen. Inv. Co. v. Lake Shore & M. S. 19 Brown v. Fletcher, C. C- A., 231 By. Co. C. C. A., 250 Fed. 160, 171. Fed. 491. 16 Gen. Inv. Co. v. Lake Shore & M. S. By. Co., C. C. A., 250 Fed. 160, 171. § 129] OBJECTIONS FOB ;V«ANT OF PARTIES 741 been sustained, and tl?.^,,];^]!! amended; by adding thereto the parties name<3l in, tjie plea, a , seciond plea further objecting to the bill for the omission of other pfl,rtie& not named in the firs^, plea could pot be fjled,*", ff, the. omitted parties on ac-. count of thpir citizenship cannot. j^eljrpught in, the court may retain the bill, aiijd, perhaps eontdni^e an injunction in accord- ance with it^ , prayer , until the complainants have; had a rea- sonable tiipje to .litigate tlie matters |in, controversy between thenjselyes I and the , omitted parties in,. a court of competent jurisdiction; apd if it.sJiould then appear by the judgment of such a court that,, the complainants .h^ye, in equity a superior title to the .omitted parties, proceed to a determination of the rights bet.w^eflthp. parties to thpbill." If , however, the com- plainant . do^s not .within, a reasonable time amend his bill, or, if so allowed by the court, proceed, against the omitted parties, the court may dismiss his bm;,bT|t sjj,ch dismissal must he with- out prejudice,^ ,,, A l^ck of proper parties is juot a jnrisdietiona,l defect.^' It will npt support an objection to the, jurisdiction, that may be certified to the Supreme Court ; ** and if, pending the, deci- sion upon an objection ,£o(r the omission of a party ^hpse preisence would oust the ; District, pourt.pjf jurisdiction, he dies, or his interest ceases, and the defect, is; thereby cjired, the bill will b^ retainje^-^^ It was , held, .where a defendant hjad removed a, case,. that he could, not object to the absence of a party whose joinder would deprive the Federal court of jurisdiction.** A dismissal for want of proper parties should be without pre- judicd.*'' ZOBawiins v. Dalton, 3 Y. & Cqll. 24 Helm v. Zarecor, 222 V. S. 32, 447. " 35,. ,56 L, ,ed. 77, 79. 21 Mallow V. Hinjde, 12 Wheat 2S Harrison v. Kowan, 4 Wash. 193, 198,1^9, 6 L. ed.,599, 600, 601. C. C. 202, 208; Hinchman v. Pat- 22 Mallow V. Hinde 12, Wheat. erson H'. R. Co., 17 N. J. Eq. 76, 86 193, 199, 6 L. ed. 599, 601; Hunt v. Am. Dec. 252. Wickliffe, 2 Pet. 201, 215, 7 L. ed, 26:^isher v. Shropshire, 147, U. S; 397, 402. ,V 133, 145, 37 L. ed. 109, 115. 28 Harrison v. Bowau, 4 W^sh. G. 27 Hayden v. Perfection Cooler C. 202, 208; Helin v." J!areqQ», 222 Co., 217 Fed. 171. U. S. 32, 35, 56 L. ed. 77, ?9; Hinoh- man v. Paterson H. R. Co., 17 N. J, Eq. 76, 86 Am, Dee. 253. §130. Objections for joindet of improper parties. An objec- tion that improper parties Bave' beeii joined may be raised by motion to dismiss or 'by answer.^ If persons are improperly joined as plaiiltifis^ all the de- fendants' may take the objectiion.* If a person is joined as a plaintiff without his consent, he may on motion, or petition, upon noiice to all parties, have his name stricken out, with co&ts to'be paid by' the plaintiff who has improperly brought him into the 'suit;* Such relief has been granted upon peti- tion after : a decree for costs against the petitioners and the other persons halned' as cbmplainants.* ' Where several com- plainants with a similarity but not a community 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 rigbt to sue the defendants there was allowed to amend the bill so as to make the other complainants! additional defendants.'' "Where one of several coinplainants whose interest is opposed to 'the others, attempts to delay; harass. Or impede' the orderly progress of the cause, the coui-t'may order that he be made a defendant:' '• ' If a perSoU having no interest in the controversy be improp- erly joined as defendant, he alone can raise the objection ; '' except, perhaps,' when the bill is multifarious,* or he was joined through collusion' in order to make out a case of difference of citizenship';^ and no notice of bis' Objection need be' given to §130. lEq. ilule:29. Bray, 2 Y. & Jer. 518, note. 2 Cuff V. Platell, 4 Euss. 242. « Lalanee & G. Mfg. Co. v. Hatjer- King of Spain v. Maehado, 4 Euss. man Mfg. Co. 93 Fed. 197, 199. 225; Story's Eq. PI., §544. , As to the change of p, defendant to 3 Calvert on Part'ies ,(2d ed.), a plaintiff, see Guiiin v. Lee, 6 Pa. 430; Keppell v. Bailey, 2' M. &' K. Super. Ct. 646. 517; Tittertbii v. ©sborne,' 1 'Dick- 7 Whitbeck v. Edgar, 2 Barb. Cli. ens,^ 350; Wilson v! Wilson, 1 J. & (N. Y.) 106; Seymour v. Freer,. 8 W."459. li ivasheli tHat a motion Wall. 202, 218j'Buerk v. Imhaeuser, to dismiss the bill upqn that ground 8 Fed. 457; ' Mitzhener v. Eobiris,. should be denied. ''Sputherii pife (Miss.) 19 S. E. 103. , / Ins., Co, V. Laiiierj' 5 I'la. lib, 58 8 Cherry v. Monro, 2 Barb. C,h. Am. Dec. 448. 618; infra, §141. But see Missouri 4 McGeorge v. Bigstone Gap Imp. Broom *Mf g. Co. et at. v. Guymon, _ Co., 86 Fed. 599. 115 Fed. 112. 5 Insurance Co. of N. A. v. Svend- 9 Helm v. Zarecor, 222 U. S. 32, . sen, 74 F^d. 346. See Aylwus v. 35, 56 L. ed. 77, 79. ' ' ' § 130] OBJECTIONS FOB MISJOINDER 743 the other defendants, except in special cases, where it is clearly for the latter 's interest to detain him in the suit.^" 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.^^ If the objection is not made uitil the nfearing, the court may disre- gard it.^* It cannot be raised, jfor the first .time, upon appeal.^^ When an objection that defendants have been improperly joined, as having: no aiiteirest'lniiithe'JcoiitiolyBissy,; hasubeeii'Isufeitaiiled, the plaintiff will, always be aUowedrto amend iiby: striikimg' oqt their names.^* In such a case^ the difemissali does not' 'affeot the suit as against :>the remaining •defendiarits.'-* Where a' de- fendant is not an indispensable party; a dismissal as 'to him upon any ground Idoes not necessitate a dismissal as toi'oiher defendants properly ibeforfe the ' eourt.^^ If' a bilL is dismissed for a misjoinder of complainants and one of them appears' to haA'e a good cause for equitable relief, the dismissali must I be without prejudice.^'' The subject of misjoinder is diseiussed ' in the next chapter under the head of "MiiltifaTiousness;!' ^* '..,.' ■ ' . -.. -.ih 10 Anon., 9 Yes, 513; Hodson v. ; Pratt, .147 IT. S. 557, 570, 37 I^ied. Ball, .11 Simons, 459 j Calvert on 279, 2Si. , ^ , ,/ , ,. / ; Parties (2d. ed.), 430. WTryon v. Westminster Improve- ■ 11 Helm V. Zarecor, 222 U. S. 32, ment' Com'rs,- fi' jurist (N'.S.), 1324. 35, 56 L. ed. 77, 79. IS Ladew v. TeinWessee Copper Co., ,12 Story V. Livingston, 13 Pet. 179 Fed. 245. .359, 10 L,,,ed. 200; Eade^ v. Harris,,., 16 Ladew v. Tennessee Copper Co., 1 Y. & C. ,N,. E. 235; Raffety v. 179 Fed,., 245; Irving, y. Joint Dist. King, 1 Keen, 601; Mosley v. Tay-. Council, ITnited Brotherhood of Car- lor, cited in 1 Keen. 601; s. c, 2 Y.' 'plenters,' etc., 180 Fed.'Sge. ' ' & J. 520; Calvert on Parties '(2d ITHoiise v. Mullen; i22 Wall.! 42. ed.), 156; , Story ;'s Eq. PI., § 544. 22 -L.-ed. 838. r , . , 13 Liyingston v, . ,Wpo,dworth, 15 18 jCif/rra, §§ 139-143. , ,, How. 546, 14 L. ed. 809;, Hayes V. , , CHAPTER ,y. INFORMATIONS ANt) BtLL^ IN EQUITY. ' § 131. Informations and bills by the United States. The first proceeding in a suit in equity is the preparation and filing of the first pleading. The suit is begum when the complainant's first pleading is filed. V This was either an information, a bill, or an information and bill. Formerly in England the attorney-general br solicitor-general could file an information on behalf of the > crown, or of those who either as idiots and lunatics pattook 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 discbntinuance of the suit'by the Attorney-Geueral without his consehl!, and who was respon- sible for the costs, was usually join^ with the officer in whose name it. was filed. if The main distinction between hn information and a bill was that, whereas the latter was in the form of a petition to the court, in the former the officer thait 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 those rights for which the suit is instituted. If the relator had a personal in- terest in the relief sought, his personal complaint was joined to and incorporated with the information given to the court by the officer of the crown ; and the pleading was termed an information and bill.^ The proceedings upon an information § 131. 1 Farmers' L. & Tr. Co. v. PI., § 8; People v. North San Fran- Lake Street El. E. B. Co., 177 U. eisco Ass'n 38 Cal. 564; Attorney-' S. 51, 44 L. ed. 667; Humane Bit General v. Delaware & H. B. Co., Co. V. Barnet, 117 Fed. 316. 8e;^ 27 N. J. Eq. 1; s. c, 27 N. J. Bq. supra, § 52. 631 ; Newark Aqueduct Board v. ZMitford's PI., eh. 1; Story's Eq. Parson, 45 N. J. Bq. 394. 744 § 131] INFORMATIONS AND BILLS BY UNITED STATES 745 I, Pit could only abate by the death or determinatidn of interest of the defendant. If, howeyer, th^ infori^iatibn were filed at the instance of one or iiiore relators and all died, the court would not allow the cause' to proceed till aii order had been obtained giving leave to' insert the naijie of a new relator, and one had been iiiserted accordingly. Otherwise, proceedings upon infor- mations were substantially the same as upon bills, except that great laxity of practice was permitted when inforjnations were filed on 'behatf of charities.' , , In the courts of the ,United States, it has been held to be the projjer practice, for the Gbveriimeiit to sue in equity in its own nauie, by a 'bill similiir to'oiie filed by a private citizen-* but a pleading styled, aii ini'ormatioii, filed on behalf of the United States, being in substance a bill, was sustained as such; * and so was one filed oii behalf of the United States in his own name by the District Attorney for the Northern District of New York!® 'The niost usual instances of these bills at the present time are in suits tb enforce the Interstate Commerce Act' arid the Anti-Monopoly Law ' and suits or proceedings to cancel cer- tificates of 'citizenship or of 'naturalization.® It has been held that bills in equity will be sustained when filed by the United States to determine a Controversy as to : the boundaries between a State and a Territory;" tp compel the cancellation of illegal icoiitracts between a railroad com- S Mitf ord 's PI., eh.' 1 ; Story's Eq. Pet. 27,' 9 L. ed. 987. In Hawaii, p], § 8. "' at the suit of the Attorney General, 4 Benton V. "Woolsey, 12 Pet. 27, an injunction was granted forbid- 9 L. ed. 616; TJ. S. V. Hughes, 11 di'rig a railroad eomfiany from de- How. 552, 568, 13 L. ed. 809, 816'; creasing the intervals at which cars s. c. as Hughes v. U. S., 4 "^all. were run upon its line, from one 232, 18 L. ed. 303; 'Miss. & Mo. E.' every ten minutes to one every Co. V. Ward, 2 Black, 485,' 492, 17 twenty minutes. Territory of Ha- L. ed. 311, 314; U. S. v. Union PlaC. waii v. Honolulu Sapid Transit & B. Co., 98 TT: S. S69, 25 L. ed. 143 ; Land Co., Sup. Ct. of Hawaii, Jau- Moffat V. U. S., 112 U. S. 24; U. S. uSry 20, 1908. v: Minor, 114 XT. S. 233, 2!9 L. ed. 6 Benton v. Woolsey, 12 Pet. 27, liO; U. S. V. Am. Beli; Td.'Co.; 128 9 L. ed. 987. U. S. 316, 32 L. ed. 450. ' T Jn/ra, see § 151. 5U. S. V. Hughes, 11 How. '^52, 8 26 St. at L. 209; m/ra, § ISla. 568, 13 L. ed. 809, 816; S. o.'"as » Infra, § 151b. Hughes v. U. S., 4 Wall. 232", 18 L. 10 U. S. v. State, 143 V. S. 621, ed. 303. iSec Benton v. Woolsey! "l2 36 L. ed. 285. 746 INFORMATIONS AND BILLS IN EQUITY [§ 131 pany and a telegraph company,, when legal proceedings were a,uthorized by stiatute ; ^^ to enforce their priority oi payment out of a trust fund; ^^ to cancpl a.laiid patent/' or a patent for an invention 1* which has been obtained by fraud, or , a land patent wliich has been by_ a mistake of law issued in violation of g,. statute.^* ', i, . ' . , ; A suit to set aside a land patent issued by mistake can only be maintained when there is no substantial evidence to support .th,e firtdin^g of the Departments^ When a patent for land has been procured froipthe United States by fraijd^ the Goveminent may elect .to ratify the patent or to sue for damages.^'' The Govern- ment 's, right of .election whether to rescind a patent or to, ratify it and sue for damages may be exercised by the Attorney Gen- eral through .the; District Attorney of the Upited States for the proper district.^' It is no obj|ection jto the suit that the beneficial interest i,n,,the land has liecorti^ .vested in an individual who ,will acquire a right thereto by a decree in favor of the Goverpment.^' Whpn lan,d covered) by ^ |pa]t,ent ,obta,ine(i by |frau(i,,has, been acquired by a purchaser in good faith for value, without notice, 11 U. S. T. tTnion Pac. Ey. Co., 160 If.' S. 1, 40"l. ed. 319. '" ' 12 Hunter v^'XJ.' S., 5 P^t. 173; 8 L. ed. 86. • : ' , - ■ , 18 Moffat T. U. S., 112 TJ. S. 24, 28, L. pd. ;623;,,tJ., S. v. Trinidad Gq^. &, Coke Coj,. .137: U, S. 160, 3.4 L.. ed. 640; J. J. McCaskill Op. y. U. S., 216 TJ. S.,50.4„ 54 L. ed. 590; TJ.,S. y. Gunning, 18, Fed. 511; s.,C, 22 Fed. 653; La Eogue y. IT. S., 239 XJ. 8., 62. Such a bill cannot be filed by i an individual. Briggs v. United Shoe Maph. Co., 239 TJ. S. 48. 14 TJ. S, y. Am. , Bell Telep}iona Co., 128 TJ. S. 315, 32 L.; ed. 456; TJ.. S. y. iGnnning,. 18 Fed. 511 ; s. c, 22 Fed. 653; Noble y. Union Eiyer. Logging E. Co., 147 U. S. 165, 37 L. ed. 123. IB Mullan v. U. S., 118 U. S. 271, 30. L. ed. 170; McLaughlin v. U. p., 107 U. 8. 526, 27 L. ed. 621 ; West- ern Pac. E. Co. V. U. 8., 108 U, 8. 5lp, 27 L. e.d. 806, 8ee U. 8. y. Eeed, 53 Fed. 405: ' ' 16 Ul' S. V. D^bell, C. C. A., 227 Fed. 760. The Act of March 2, 1896, ch. 39, 29 8t. at L. 42, pro- vides : ' 'No suit shall be brought or maintained, nor shall recovery be, had for, lands or the- value, thereof, that were .certified or 5a,tented in lieu of .pther lands severed by a grant which were lost or relinquished by th^, gr^ntepi in consequence of the failure, of the goyernmeut or its officers to withdraw the same from sale or entry." ...Thi?, does,. not ap- ply to a patent , .a,pplied , for aftesr its enactment. TJ. 8. v. St. Paul M. M. Ey. Co.,: 247 ,U. 8. 38, Sup. qt. 525, 62 L. ed. 1130. 17 U, 8. y. Koleno,,226 Fed. 180. 18 U. S. v. Kol'eno, C. C. A., 2^6 Fed. 180. , . , ;, 19 U. 8. V. Gres^t.: Northern Hy. Co., 254 Fed. 522. i § 131] INPORMATIOUS AND piLLS BY UNITED STATES 747 the . Grovernmeiit has , no remedy .gainst him.^9 The burden of proof is upon, theMdeffiudeot to show that he isia purchaseri in good .faith f,9p vaJjUie.*^ Where, land, has been recently patented under a grant, and there is basis fpjr a claim, that itibas passed into the, hands, of a purchaser in good iaith, a bill may be filed by the United States .against thfi original grantee in the] alter- native, for the recovery of the land or the price as the facts may appear.** When the last purchaser ,hap, not, paid' and the statute of limitations hag run against, him, but not against his grantor^ Jie may be made a defendant and directed to pay the purehase ;price with, interest and cost, a lien being decreed upon the land to secure the payment.** In a, suit to set aside a patent for fraud, the IJnited States is not bound to reimburse the fraudulent icntry- niau for his improvement^.** , , i It seems that a bill. cannot be filed to enforce a forfeiture of a land grant for failure to .perform a condition subsequent, un- less expressly authorized by Congress.** But a bill was sustained when filed to declare the forfeiture of an easem,ent for water ^storage and a righti pf : way therewith connected under the Act of March 3, 1891,*^ of failure to' construct the reservoair., de- scribed in the application.*'' The United States may file a bill to prevent the waste by the removal of oil and minerals from public lands to which it has a clear title.*' But in such a suit defendants who have bought oil f rohi those who were operating upon the, land cannot be joined since the Government, has a,n adequate remedy at law against; them in an action for comrer- sion.*^ It has been said that in order to obtain appointment of 80 U. S. V. Koleno, C. C. A., 226 86.TI. S. v. Northern Pao. Ey. Co., Fed. 180. For a case where a trans- 177 TJ. S. 435, 439, 441, 44 L. ed. fer to a corporation organized by 836. the same persons as the defendants 26 26 St. at L. 1101, Cdmp. St. was ignoBed see TJ. S. v. Erplora- § 4S34. tion Co., 225 Fed. 854. *7 Union Land & Stock Co. v. U. 21 Wright-Blodgett Co. v. U. S., S., C. C. A., 257 Fed. 635. 236 U. S. 397; Krueger v. tl. S., 2811. S. v; Midway Norther A. Oil 246 U. S. 69; U. 8. v. Kirk, C. C. A., Co., 232 Fed. 619; TJ. S. v. Devil's 248 Fed. 30. Den Consol. Oil Co., 236 Fed. c973 . 82 Oregon' & C. E. Co. v. TJ. S., (reversed on another point. Devil's C. C. A., 144 Fed. 832. Den Oil 'Co. v. V. S., C. V. A., 251 28 TJ. S. V. Cooper, 217 Fed. 846. Fed. 548). 84 TJ. S. V. Howardj C. 0. A., "247 89 TJ. S. v. Midway Nprthern Oil Fed. 455., Co., 232 Fed. 619.. ^48 1Kp6RMAT*I0NS AKD felLLS In EQUITY [§ 131 a receiver of the land in such a case, it is necessary for the bill to show that a procefediiig is trending in the land office to determine the right of the defendants io the iaild 'which they claim under a fraudulent entry.^ The United States may sUe to rebov6r land or to set aside a cloud upon the title therfeto such as a patent,'^ or a d^ed by an Indian who has no power to eOnVey,'* or for an injunction against the taking of oil and gas ffom Indian lands;®' for the benefit of Indians who are not competent to sue. To such a suit an Indian interested is not a necessary party.'* The United States are bound by the same i^quities that i^ould affect the Indian if they were competent to sue.'*' When ia statute author- ized the Seci-etary of the Interior to sue in the name of the United States for the use of certain Indian tribes and "to pay from the funds of the' tribe interested the costs and necessary expenses incurred in maintaining and prosecuting such suits;" he was authorized to employ private counsel to conduct the suits, and it was said that, in the absence of such a provision in the statute, the defendant could not object that the suit was not brought by a law officer of the Govftrnrnfent^'^ The United States may sue to recover duties on imports of which the Government has been defrauded.''' The United States 30 Devil's Den Qonsol. Oil Cq. ,y. ,, ^ receiving; rebates on interstate -ship- TJ. S., C. C. A., 251 Fed. 548. See ments was instituted at the direc- Polk V. U. S., C. C. A., 233 Fed. 1771' tion of the Attorney ' General; who 31 TJ. 8. V. Allen, 000 U. S.' 000;' retained special counsel nominated TJ. S. V. Gray, C. C. A., 201 Fed. by the informing witness, and de- 291; Chase v. U. S., C. C. A., 222 fendants made no application for Fed. 593; U. S. v. Debell, C. C. A., a stay of proeeeSings in order to 227 Fed. 760. • object to the appearance of 'su6h 38 U, S. V. Debell, C. C. A., 227 special counsel; it was held that Fed. 760. ' thejr were not entitled to a dis- ss U. S. v. Mackey, 2l4 Fed. 137; missal on the ground' that prose- see Folk V. TJ. S,, G. C. A., 233 Fed. cutor had agreed with the Attor- 177. ney General 'to bear a deficiency in 34 TJ. 8. V. Debell, C. C. A., 227 the expense or the prosecution after Fed. 760. applying the balance of the Attor- 36 Folk V. TJ. 8., 0. C. A., 233 Fed. ney General's appropriation applica- 177. able to that purpose. TJ. 8. v. Mil- 36 TJ. 8. Eea-Bead Mill & Ele- waukee Eefrigerator Transit Co. et vator Co., 171 Fed. 501. Where a al.', 145 Fed.a007. ^ ' proceeding to restrain certain' ear- 37 TJ. 8. v. John A. Heitz, 238 Fed. riers and shippers from giving and 1002. §131] INFORMATION AND KILLS BY UNITED STATES .749 as ,a bailee fox* hirp can sue for and recover the full value of packages abstracted from the mails.^' • ,;, ,The IJnited States may sue to enjoift acts in pursuance of a conspiracy to obstruct Interstate Commerce*^ and to cause a scarcity of food I in yipla,tion of war legislation,*' In the Siijit| brought, by the State of Florida, against the State of Cr^orgia to ,set1ile the, boundary betwefin them^ tjljiC Attorney- General of the United States was permitted, to file an informa- tion praying "that he be. permitted jto appear in said case, and be I heard in behalf of the United States,: |in, such time, and form as the court sl^all order j" and although permission for him to take tepi,timony in the name of Flori,da . with, its consent was refused, it was ' ' ordjered that the Attorney-General have leave tp ^dduee eyidence, whether written or parol, and to examine .witnesses and; file, their depositions in order 1;o establish the boun(^ary qlaimed by the United Staties, " " Iijfarniations haVe been filed in equity jn the, courts, pf some of the individ,ual states. These haVfi been usually brought to abate pijbJi.G nuisances,** and tp enjoin acts by corporations, which were ultra vires, and which tended to, be a public injury;** but||Pne was alloiwed to prptecj;, a charity, which i had no .person directly interested c[uali]^ed tp defend its rights.** It, has been held : that a State Attorney-General, cannot maintain a^uit toenjpin insurajQce eompaniesjrom carrying out an agree- jnenjt r.egplating their rates in restraint of trade,** A State chancellor refused to entertain an information filed in ,the name of J;he Sta^te Attorney-General on the relation of an alleged imbecile to set aside a conveyance; b,ut he allowed the paper to 38 U. S. Fidelity & Guaranty Co. v. torney-Geneial y. Delaware & B. B. TJ. S., C. C. A., 246 Fed. 433*. See R. Co., 27 N. J. Eq. 1; s. c, 27 N. supra, §§ 5, 5a. J. Eq. 631. S9JBe Debs, 158 V. S. 564, 39 L. " 43 Attorney-General v. Central B. ed. 1092. B., 50 N.' J. Eq. 52, 24 Atl. 964, 17 40 U. S. V. Hayes, D. C. (Ind.) L.R.A. 97; Attorney-General v. Am. Nov. 1919. Tobacco Co., 55 N. J; Eq. 352, 356, 41Flbrida v. Georgia, 17 How. 3 AtL 971, 977J ' ' 478, 480, 523, 15 L. ed. 181, 196. 44 Attorney-General v. Butler, 123 48 Attornfey-General V. Jamaica P. Mass. 306.; ,li' ■ Aq. ,Co., 133 Mass. 361; Attorney- 46 McCarter v. Fireman's; Ins. Co., General v. Hare, 50 Mieh. 447; At- 70 N. J. Eq. 291, 61 Atl.: 705.. 750 INFORMATIONS AND BILLS IN EQUITY [§132 be converted by amendment into a bill filed by the next friend of the alleged imbecile.*^ A State sues in a court of the United States by a bill in equity in its own Uame.*'' '' "When the IJnited States comes into a court of equity as a suitor it is subject to the defenses peculiar to that court.*'** It is suhject to the rules of court,** including those regulating the time of filing pleadings.^" Such an information or bill should be filed in the name of the United States, not in the name of one of its law officers. ^^ If a bill be filed to impeach a patent or other grant by the United States and he not brought by the Attorney-General, or some other Officer authorized ' by statute so to do, it should contain ah allegatioh that the Attcirney-General has "given such ordei* for its institution as will make him officially responsible for it, and show his control over the cause. "^^ The signature of the AttOrhey-General suhsei-ibed to the bill is sufficient to show his authority for filing it.^^ "Where the Attbrney-General is dis- qualified, the bill may "be signed by the Solicitor-General and filed in his discretion.^* § 132. Diefinitioii and classification of bills. The usual course, and the only oiie' opeii to a private citizen, is the filing of a bill. The word "bill" is derived from the Latin Ubellus; 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.^ 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- 46 Thompson v. Thompson, 6 61 Benton v. Woolsey, 12 Pet. 27, Houston (Del.), 225. , 9 L. ed. 987. iT Supra, §3a. Po;r a crossbill 62 Miller, J.,, in IT. 8. y. Throek- filed in the name of a State ex re- morton, 98 IT. S. 61, 71, 25 L. ed. 93, latione by private citizens,' see Jack 97. V. Williams, 113 Fed. 823. 58 U. S. v. MuUan, IQ Fed. 785; 48 U. S. V. White, 17 Fed. 561, S. C, 118 V. 8. 271, 30 L. ed. 170. 565. 64 U. S. V. Am. Bell Tel. Co., 128 49 TJ. S. V. Barber Lumber Co., II. S. 315, 32 L. ed. 450. 169 Fed. 184. §132. 1 Story 's Eq. PI., § 7. 60Ibid. § 132] , OLASSI-PieiATION OP BILLS ! 75X ion give him a right to- sue, and concluding with; a, prayer for the relief to which he deeiHS: himself entitled- M : : ; Quis, quid, coram quo, quo jure petitur, et a quo.- >' Becte eompcfsitusqudsque libel)hi»hdbet.^ :! , , Bills are divided by the books into three classes ; bri'^inal bills, bills' not original,' and bills in the nature' ' of originalbills. A fourth claSs, which may be termed Original bills in the naituffe of bills not original, is recognized by the Federal cburts. Origi- nal bills are those which relate' to Solne inatter not before liti- gated in the court of equity by the same parties standing in the same interests. Bills not original ate those, which relate to some matter ali-eady litigated in the court of eqtiity by the same patties, or their representatives, and which are either an addi- tion to or a continuance of an original bill, or both.' Bills 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 reversar of the decision made therein!* Oi*iginal bills in the nature of bills not original are those having all the character- istics of original 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 jurisdic- tion.* Original bill's are of two kinds : those which pray relief, and those which do not pray relief! Origiiial 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 plain- tiff in oppositipn to some right claimed by the defendant, bills of interpleader, and bills of certiorari. Original bills not pray- ing relief are of two kinds : bills of perpetuate the testimony of witnesses, and bills of discovery. Bills not original are biUs of re- vivor, supplemental bills and bills of revivor anfj supplement. Bills in the nature of original bills are bills in the nature of sup- plemental bills, bills in the nature of bills of revivor, cross-bills, 8 Com. Dig., Chancery, E. 2. 2 Wall. 609, 17 L. ed. 886^ Krippen- 8 Quoted with approval in Anglo- dorf v. Hyde, 110 TT. S. 276, 28 L !Plorida Phosphate Co. v. IMcKibben, ed. 145; Pacific B. Co. of Mo. v. Mo. C. C. A., 65 Fed. 529, 530, 531. Pac. By. Co., Ill U. S. 505, 28 L. 4Mitford's PI., ch. 1, §2; Story's ed. 498; Continental Tr. Co. v. To- Eq. PL, i 16. ledo, St. L.'& K. C. B. Co., 8S Fed. 6 Minnesota Co. v. St. Paul Co., 642; supra, §51. 752 INFORMATIONS AND BILLS IN EQUITY [§1S3 bills of review, bills impeaching deetees upon the ground of fraud, bills to suspend the opbratioh of decrees on special circum- stances or to avoid them on the ground of matter subsequent, and bills partaking of the qualities of some one or more of these bills.^ If the court l^^s juijis^icjtion pf an, j original, bill, it will t^ke jurisdiction of bill^ not (^iginal, and bills in, the nature of original bills, growing, out of the first suit, . witbout| , ^reigard to the citizenship of the jpartJ^. thereto.'' And in certain other cases it will take jurisdiction of .bills othfsriiYise original which are so intimately c.opnec;tpd ^ith jmatfers before the Federal co,u?t that it is in t]p,e interest of convenience, and justice to hg,ye them disposed of befoi;^ the s^me tri][)unal.* These may be ^nam^fi original, bills in t)ie naturp ,of bills not opiginal,* . They ^pe usually, called, a;aei}lary billsi.? Such is, a billto obtain a judicial construction of previous decrees ;, ^"^ a bill to obtain a d^terinina- tipn of the rights of, a,,claima]jit :to, a fund in the hands of a Federal marshal ;^^ a biU to stay proceedings at, law; ^^ ^nd a bill to set aside a decree,^' The, peculiarities! in, th.e form and the procedure upon original .bills not praying relief, bills not original, and MUs ,in the nature of '.original bills, will , be dis- cussed in the latter part of this ,wpifk. In this chapter, .tjbe form of original bills , praying r^lip:^ and^ in the chapters, im- mediately succeeding, the prpceeduigs upon them, will be ex- plained, beginning with the ordinary kind, — bills which, seek relief concerning some right claijiied > by tjie; plaintiff in pppo- sition 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- 6Mitforcl,'s PA.,:ch. 1, §2; story's H Krippeiidorf v. ,B:yde, 11,0, U. Eq. PI., '§§ 16-24 , .8. 276; Pr,eeman V. Howe, 24'how. 7 Clarke v. Mathewson, 12 Pet. ' ' 4E0, 16 L.'ed; 749. ' 164, 9 L. ed. 1041 ; Jones v. An- 12 Logan ■ V. Patrick, ' 5 Crancli, driBws, 10 Wall. 327, 333, 19 L. ed. 288, 3 L. ed. 103; Dunn v. Clarke, 935, 937; Pacific E. Co. of Mo. v. 8 Pet. 1, 8 L. ed. 845; Jones v. An- Mo. Pae. %. Co., Ill U/ S. 505; 28 drews, 10 Wall. 327, 333, 19, L. ed. L. ed. 498. See §53. 935, 937; Dunlap v. Stetson, „4 Ma- 8 Minnesota Co. v. , St. Paul ■ Co., sonj 349. ' 2 Wall. 609, 17 L. ed. 886i . 13 Pacific B. Co. of Mo. v. Mo. aSupra^ §51. -■ Pac. By. C6., Ill U. S. 505, 28 iL. 10 Minnesota Co. v. St. (Paul Co., ed. 498. 2 Wall. 609, 17 L. ed. 886. . ', . §133] I ' PKxVME OF BILLS 753 duction, the premises or stating part, the common-confeder- acjr clause, the charging part, the jurisdiction clause, the interrogating part, the prayer of relief, and the prayer of proc- ess.^ Of these, howcA'er, 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 ihci prays leave to insert as defendants, which owed its origin to i 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 w,hich the plaintiff intended to make thereto; and the piiris- 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,* and by the equity rules of 1842 they were expressly declared superfluous.^ The equity rilles promulgated in 1912 have obviated the neces- sity of the address,* the interrogating part* and the prayer §133. 1 Mitf ord 's PI., ch. 1, § 3 ; upon, your orator complains and Story's Eq. PI., §§ 26-48. ' says that,' etc." 2 Mitf ord 's PI., eh. 1, §3; liang- B The old form was as follows: dell's Eq. PI., §55; Story's Eq. " To the end, therefore, that the said PI., §§29, 32, 33, 34; Comstock v. A. B. and the rest of the confed'- Herron, 45 Fed. 660. erates, when discovered, may, upon 8 Bule 21 of 1842. their several and respective corpo- 4 Eq. Rule 25. By the Equity rate oaths, full, true, direct, and Bules of 1842. "20. Every bill in perfect answer make to all and the introductory part thereof, shall singular the matters hereinbefore contain the names, places of abode, stated and charged, as fiilly and and citizenship of all the parties, particularly as if the same were plaintiffs and defendants, by and hereinafter repeated, and they against whom the biU is brought. thereunto distinctly interrogated ; The form, in substance,, shaW be as and that not only to the best of follows: 'To the judges of the cir- their respective knowledge and re- cilit court of the United States for membrance, but also as to the best the district of : A. B., of , of their several and respective in- aftd a citizen of the State of , formation, hearsay and belief; and brings this his bill against C. D., of more especially that they may an- , and a citizen' of the State of swer and set forth whether, etc.; or , and E. F., of — ' — , and a citi- they may set forth and diseovisr zen of the State of . And there- whether they do not know, have Fed. Prac. Vol. 1—48 754 INPORMATIONS AND BILLS' IN EQUITY [§133 of process.* ■ ' "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 '&,nd' de- fendant, and the citizenship and residence of each paxtf: 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. '• " Third, a short and simple statement of the ultimate "facts upon which the plaintiff asks relief, omitting any mere state" ments of evidence. heard, or are informed, and in their conscience believe that, ' ' &c. Story 's Eq. PI., §35, note 2. "41. By the equity rules of 1842 tie inter- rogatories contained ill 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 with the words 'to the end, therefore,' there shall hereafter be used words in the form or to the effect following: fTo the end, there- fore, that the said defendants ma,y, if they can, ,sjipw why your oratqi; should not hg,ve 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, au^ belief, full, true, direct, and perfppt , answer make to each of ttie several inter- rogatories hereinafter numbered and set forth, as by the note hereunder writtpn , they are respectively re- quired to answer; thati is to say, — '^ 'Whether, etc. , " 'Whether, etc' " i SEquity Eules of 18^2.! "23. The prayer for pi:ocess of isjabpoena ■ 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 beinfants under age, or otherwise . under guardianship,, shall state the fact, so that the court may take order thereon as justice may require upon the return of the process. Jf an in- junction or a writ of ne exeat regno, or any other special order pending the auit> is asked for in the prayer for relief, that shall be sufficient, without repeating the same in the prayer for process." . § 135] JURISDICTIONAL AVERMENTS 755 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 mad&.parties^as that they are not within the jurisdiction of ithci eomrt, 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 taay be stated and sought in alternative forms. If' special relief pending the suit be I 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. ' ' '' § 134. Address ajid 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 Chan- cellor^ except when the Lord Ohancellor himself was the com- plaihanti when it was addressed to the sovereign "in his high court of chancery. " ^ . , In the United States, as a great seal is not, as in England, essential to the validity of writs in equity, before the Equity Rules of 1912, a bill was addressed to the judge or judges Of the court where it is filed.*^ The Equity Rules of 1912 in prescribing the requirements of a bill in equity, omit /therpfrom thei addressj but require the usual caption.* The cap- tion should state the name of the court, including the district and division and the names of each of; the parties; §135i Introduction and jurisdictionill averments. The in- troduction formerly cpntaiued the names, description^, and iiesi- dences of the complainants, together with the character in which they sued, if in a representative capacity, and such other alle- gations as were rieeessai'y to found the jurisdiction of the Cburt.^ Sometimes the names and -descriptions of the def endajits were also here inserted, but it was more usual to name them in the next part of the bill.* The Equity Rules of 1842 regulated the subject as follows: "Evei-y bill in tlie introductory part thereof shall contain the names, places , of abode, and citizenship of all the parties, plain- tiffs and defendants, by and against whom the biU is brought. 7 liq. Rule 25. § 135. 1 Mitford's PL, eh. 1, § 3; §134. IMitford's PI., ch. 1, §3; Story 'g Eq. PI., ' § 26. Story's Eq. PI., §26. 2 Story's Eq.' PI., §26. Contra, SJEq. Rule 20 of 1842. '" Leavenworth v. Pepper, 32 Fed. 718. S Eq. Rule 25. '756 INi'OBMATIONS' AND BILLS IN EQUITY [§135 Thefotm, 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. F., 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 disabilityi that fact shall be stated. Sec- ond, a short and plain statement of the grounds upon which the court's jurisdiction depends. * * *i Fourth, if there are per- sons other than those named as defendants who appear to be proper parties, the bill should state why they are not made par- ties as that they are not within the jurisdiction of the court, or cannot be made parties without ousting the jurisdiction."* iWhere there are two districts in a State, the bill must show in which district a party resides.^ An allegation of residence without an allegation of citizenship is insufficient* So is an a;llegation that plaintiff is "of,"'' or is aibonq fide resident of,* a certain State; or that he is a citizen of a State by domicile or residence,® but a description of a party as a citizfen of a certain county in a specified State was held to be sufficient to describe him as a citizen of the State and a resi- dent of the county.^" Where a bill recited facts to show diversity 8 Eq. Rule 20 of 1842. " plaintiff " is a resident citizen o£ a 4Eq. Eule 2S. foreign country, the reference being B Harvey v. Richmond & M. By. to the liquidating committee of a iQo., 64 Fed. 19. bank, which had instituted a suit, 6 Tug Eiver C. & S, Co. v. Brigel, and not to the individuals compos- 67 Fed. 625; Robertson v. Cesise, 97 iiig the same, who were the real II. 8. 646, 24 L. ed. 1057; Pacific plaintiffs. Postal Tel. Co. v. Irvine, 49 l!"ed. 7Yeandle v. Pennsylvania jR. Co., 113; Stoekwell v. Boston & M. R. C. C. A., 169 lied. 938, ; Colujnbia Co., 131 Fed., 152; Atchison, T. & Digger Co. v. Rector, 215 Fed. 618. S, F. By. Co. V. Frederickson, C. C. 8 Koike v. Atchison, T. & S. F. A., 177 Fed. 206; M'Bldoyney v. Ry. Co., 157 Fed. 623. Card, 193 Fed. 475; Gaugler V. Chi- 9 Clinehfield Coal Corporation v. eago, M. & P. S. Ry. Co., 197 Fed. Steinman, 217 Fed. 875; Yanus- 79; International Bank & Trust Co. zauekas v. Mallory S. S. Co., C. C. V. Septt, C. C. A., 159 Fed. 58, hold- A., 232 Fed. 132. ing that such a defect is not cured lOGruetter v. Cumberland Tele- by an admission in an answer that phone & Telegraph Co., 181 Fed. §135] JURISDICTIONAL AVERMENTS 757 of citizenship without Waking distinct the traversible averments of siich diversity, it washfeld to be sufficients^ So it was held: that, in View of the' Fourteenth Amendment,' ah allegation 'that a plaintiff was a citizeii of the United Stktes and a resident of a specified Stat^ therein, was sufficient to show that he was a citizen of sileh Stjatte.^* An alverinent that a' party is a tax as- sessor in a State is not equivalent to' an averment that he is a citizen thereof. i* Where th6 plaintiffs sue as executors or 'adrttin- istratots, it is insufficient to allege that letters of administration or letters testamentary' had been taken otit in a specified State s* or "that said plaintiffs as such eixecutbrg, are citizens" bf' a speci- fied State;** but it was held to be sufficient to aver that the defendants, "as they are the'qualifi,ed executors of the last will and testiament 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 New 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 NW Jersey. " " ■ If one of the parties is a corporaticfii, the bill must state by or under the laws of what State it was treated, and its members will then be conclusively presumed to be citizens of that State.*'' An allegation that a party described as a committee is a citizen of a specified State** or that it is a edrpoTation "duly established 248. But see Stuart V.I Baston, 156 Steamship Co. v. Tuginan, 106 XJ. TJ. S. 46, 39 L. ed. 341; HenileBsy S. 118, 27 L. ed. 87. ' '•■ V. Richardson iDrug Co., 189 tP. S. 18 ThoHias v. Board of Trustees 2'5, 47 L. ed. 697. of Ohio State University; 195 U. S. ' 11 Q-orham Mfg. Co. v. Weintraub, 207, 49 L. ed. 160; Lonergan v. Illi- 176 Ped. 927. nois Cent. B. Co.; 55 Fed. 550 ; Fris- 12 Clausen v. American Ice Co., bie v. Chesapeake & O. B. Co., 57 144 Fed. 723. Fed. 1; De Loy v. Traveler's Ins. 18 Assessor of Vernon Parish, La. Co., 59 Fed. 319; American S.' E. V. Gould, 210 Fed. 895; • ' Co. v. Johnson, 60 Fed. 503; Wink- 11 Yeandle v. Penaisylvania R. Co., ler v. Chicago & E. I. R. COi, 108 0. C. A., 169 Fed. 938. ; Fed. 305; Dalton v. Milwaukee Me- •' 15 Amory V. Airiory, 95 U. S.' 186, ehanics' Ins. Co., 118 Fed. 876; 24 L. ed. 428. ' ! ■ Knight v^ Lutcher & Moore Lumber 16 Cooke V. Seligman,- 7 Fed; 263. Co., 130 Fed. 404. 'Supra, §48. 17 Lafayette Ins. Co. v. French, Parker 'Washington Co. v.'' Cramer, 18 How. 404,, 15 L. ed. 451; Muller C. C.A., 201 Fed. 878; Chicago, R. V. Dows, 94 U. S. 444, 24 L. ed. 207; I. & P; Ry. Co. v.i Stephens, C. C. 758 INFORMATIONS AND BILLS IN EQUITY [§ J35 by, la,w," ,li,ayjng i,ts principar place:, of, business in a specified State, ^' or, that it is a corporation of a specified State,*" p-i; that it is a corporation existing ,and doing business in a specified State^*^ or that it, "claims to bp",!a CQ^poraition organized ,vuider ; tbe laws of a speeifi,ed State, as a.cjompany of la .specified char- acter,** or that it.is, a "joinjt stock company," duly organized and existing , under .the, laws of a specified Stat.e.and a citizen thereof, *8 is ipsi^fficient. The pleading .shpujd allege that it was created, by or under the l^ws,pf;such State,** or at least that it mas organized** undftr;,1^e|laws ther,e,of. An allegation that a party was a corporation un^er the laws of; the State of Virginia, .and a I citizen of Virginia, and a resident of ,the, Western District .thereof, was beld to, be good.*®., The residence or domicile of a corporation is, sufficiently alleged ,,b.y, an averment that, it is or- ganised under and. pursuant tp the., lav^S of a, State and has its ,prineipal , officjje^ and place of business in a certain county, when the county, is within the judicial district.*'' It has been held : that the fact, thati 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.** , , .., „If one of the partiies is an alien, the bill should aver that he is ' ' a citizen and subject of a foreign State, ' ' specifying that State's name.*' An allegation^thata partyris "ia citizen of Lon- don, England," '" was held to be insufficient to show that he was A., 318 Ped., 535; De Biasi v. Nor- Ci H. Fuller's Ad; Ageney, .135 Fed. mandy Water Co., 228 Fed.i 234; 613. Fentress Coal & Coke Co. Vi'El- 24Lonergan v. Illinois Cent. E. more, C. C. A., 240 Fed. 328. • Co., 55 Fed. 550. :l?N. Y. & N. E. R. Co.' V. Hyde, 26Sun.'Pr. & Pub. Ass'n vj Ed- C. C. A., 56 Fed. 188, 191. wards, 194 U. S. 377, 48 L. fed. 20 Farmers' Oil & Guano Co. v. 1027; Ward v. Blake Mfg. Go,, C. Duckworth Co., C. Cl A., 217 Fed. C. A., 56 Fed. 437. 362. ^ ■ 26MatMeson Alkali Works' v. , 21 Chicago, E. I. & P. Ey. Co. v. Mathieson, C. C. A., 150 Fed. 241. .Stephens, I C. C. A., 218 Fed. 535. 27 United States v. Stannardj ; 207 22Lownsdale v. Gray's Harbor Fed. 198. Boom Co., 117 Fed; 983. 28 Harvey v. Eichmond & M. Ey. 2S Bountree v. Adams Express Co., Co., 64 Fed. 19. ' C. C. A., 165 Fed. 152. For what ' 29 Wilson v. City Bank, 3 Sum- is a sufficient allegation of the eiti- iier, 422. . • , < iienship of members' Of a partner- 30Stuart v. Easton, 1S6 U. S. 46, ship, see D,erk P. Yonkermall Co. v. 39' L. ed. 341. But lin Mahoiling § 135] JUEISDICTIONAL AVERMENTS" ' ' 759 an alien; biit' the averment that the complainants are "all of Cognac, France, and citizens of the Republic 'of France; "was held to be adequate.'^ An. allegation that the 'State '6fi which a party is a citizen' is umknovm, is insufficient when the juTis- dictioinis claimed for difference of citizenship.'* Where a billlor a common-law pleading as .filed or served sub- sequent to the commencement of liie suit, it i^ould aver the citizenship of theiparties a,t the time, the suit was commenped, as, well as in the present /tense.'?,. It has beeii held, tha,ti an jaUega- tion thata corporation hasa.place of business , within, th,e district, when, admitted' in the answer, relates, to theitime|,:^hen,the suit was .bro,u,ghti.?* ,. ,,,, ■,^,.-/ ..■•.i:, .,,,,,;, ,, , , ,, , ,i How advantag,e could lie ta^eppf aja qn^isaip^ in the introduc- tion ;0f,,tlfe,re;si4enceiiqf|,th^ pa^]ties, ■vyJipth^ by demii:rrer or simply by a motioj^j for.secTirity, for posts, was,, undej" the old practiqe, a. doubtful question,'^ It, was held ; that a bill was not demurrable foi; the failure to state the re^i^enpe of a party; f'' and that where the jurisdiction does not depend upon, a diffei-- ence of. citizenship, such as a case arising out of the bankruptcy laws, an omijgsion. to^ aver the citizenship of the parties .dora riot make the bill demurrable, but that thb 6bjectii>n fean be mail^e by motion only ; ''' and that' aii' allegiatiori of the residence of the t)ar- tieg is not reqijiired in a pleading at c.ommon law." The bill, was certainly demurrable if jenoijgh did, not, app;ea,r upon its face ,iq show the court's jurisdiction.'' It, has been. suggested that a de- Valley, Ry. Co. V. 0'5ara, CiC A., , 36 Vermont, Mach. tCo.-.v. GibsoHj 196 Fed. 945, held that an averment 50 Fed. 233; (a patent case) ; Har; that plaintiff "is :nawj and at all vey ,y„ ,E.ichin,ond & M. By, ,Cp., 64 times hereinater' mentioned was, a F,ed. 19;! (a case, of diffeiene© of citissen of Ireland,?' was a sufficient citizenship); Wright v. gkinner, allegation that he, was an alien, i' , . 136 Fed, 694;,. (a, bankruptcy qase). .SlHennessy v. -Riehatdson I)rug 37 Wright v.. Skinner, 13,6 Fed. Co., 189 U. S. 25, 47 L.>ed, 697.;t . 694„, „,„>.:■ ,„,,,;,, , ...i^, 38! Tug River C. & S, Co.,T.,Bri; 38 Bait. & O. R. Co. v. Doty,, C. gel, 67 Fed. 625. ' , i , O. A., 133Fpd. 866.. , 88 Lackey, ;V. Newtan,Min-, ,Qq.,i 56 39 Bingham v^Cabot^ 3 Dall. 382, Fed. 628. , , 1 L., e,di,646; Jackson v. Ashton, 8 84Streat v. Am, Rubber Qo,, ,]J.5 Pet. 148, 8 L. e^. 898; U. S. v. Fed. 634. , . !\ P;ratt, C- & ,,G, ;|9o., ;18, i>dj 708; ^ 36, Eqwley v, EcQles, 1 Sim, &^S. Lackey v, Newton Min. Co., 50 Fed. 511; Daniell's Ch. Pr. (2d Am. efi,) '634; ' ' '. ' 409. ^ 760 INFORMATIONS AND, BIJjLS IN EQUITY [§ 135 feet in this respect in .1}hg introductory part .qf ^ bill, is, not cured by an allegation in its, titles or caption.*" Jt h,9iS;beeu, said that no, one can be .made a defendant unfler a fictitious, jiaine.;,*^ but in an English case where the parents, of an infant, who was a neces- sary defendant to a bill', refused to have her baptized in order to interpose difficulties -iir the plaintiff's way, Sir John Leach or- dered that she Should be described as the youngest female child of A. B. (naming her father) and C. 'D. (naming her mother)." Where the complainant is' assignee of the cause of action, it is the safer practice to allegfe' the citizenship of his assignor.*? An admission: on the trial of "the liability 'of defendant in this case and everything as alleged except the measure of dainages, ' ' is insufficient to show the jurisdiction of the court.** "Where the jurisdiction does not depend upon difference of cit- izenship, the liiU should state, hiere'or elsewhere, the facts show- ing that it arises under' the Constitution or laws of the United Stages or is justified by some ojther Federal statute.** The bill shoulcj also state, here or elsewhere, the facts which ,^how that tjie, matter in , dispute exceeded the jurisdictional amoi;nt,** at_ the^^tijne.jwlienj si^it, was broijight,*'' un|es? ,the case he. one, of whiph,,the .D^t^rict Courts of tJiC; United. States takes 40 Jackson v. Ashto'n^ 8 Pet. 14^, 44 Grand Trunk Western By. Co. 8 l'. ed. 8^8, See Sharon v. Hill, 4. Eeddiek, C. C. A., 160 Fed. 898. 23 Fed. 3.53; itailway Co. V. Bam-' ' U'Siiprdi §§'2*-40. ' ' scy, 22 Wall. 322, 22 h. ed. 823; 46 U. S. v. Pratt C. O. Co., 18 Berger V. Spef ry; 95 V: S. 401;' 24 Fed. 708 ; Mufphy v. Bast Portlaiid, L. ed. 390; Eobertson v. Cease, 97 42 Fed. 308; Olson v. Nor. E. 06'.; U. S. 646, 24 L. ed. 1057;' Gordon 43 Fed. 112; 'Lehigh Z. & I. Co. v. v; Third Nat. Bank, 144 Vl'S. 97, N. J. Z. & I. Co.,' 43 Fed. 545, 546; 36 L. ed. 360. Stfasburger v. Beeeher, 44 Fed. 41 Kentucky S. Mining Co. V. Day, 209; Back v. Sierra N. C; M. Co., 2 Sawyer 0. C. 468. - ' 46 Fed. 673; Harvey v. Raleigh & 42 Ely V. Broughton, 2 Sim. & S. G. B. Co., 89 Fed. 115; Yellow A. 188. ' • •■■ " Mi & M. Co. V. Winchell, 95 Fed, 43 Parker V. Orihsby; 141 U. S. 81, 213; Evenson v. Sjpaulding, 150 35 L. ed. 654; tr/S. Nat. Bank v. Fed. 517; Southern Land & Tim- McNair, 56 Fed. 323; Kolze v. ber Co. v. Johnson, 156 Fed. 246; Hoadley, 200 U. S. 76, 83, 50 L. ed. Nolen V. Biefeliman, 225 Fed. ^12; 3,77; J. J. MeCaSkill Co. v. Dickson, supra, § 6. C. C. a;, 159 Fed' 704. See supra, 47 Strasburger v. feeeclter, 44' Fed. % 63. 209. ' ' ' §136] "JURISDICTIONAL AVERMENTS 761 'jurisdiction, irrespective of the value of thfe' matter in dispiite.** The alleg£tti&ii'is not insufficieii't b^!ause it uses the' word "'amodnt," instead of "inatter'"'iii' dispute:" Upon a' bill for aii' injunction, -whcire the 'amouilt in Vblvdd cannot be' deduced from the facts allegeidj'^ simple aH«^a;tJoii' that the right sought to be p:rotected is of the value of mOre than three thbusahd dol- lars, exclusive of liitierest aiid ct^tsj"" or that the Value of the fliatter in controversy exceeds such amount,** will' usually be sufficient. An omission from the stateiHent of siich an aVerriient is cured b^ allegations in other ^krts b^ the bill whidh'^how that the value' of the m&tter in dispute is sufficitot.** 'When the test of the value of the matter in dispute was stock in a borporation, it was prestlmed that the sairie 'wUh worth ^ar,*' in thi^'ab&ierice of allegations to the contrary.** \ ' , • 48 Supra, § 5. « Blackburn V. Portland Gold- Min, Co., 175 U. S. 571, 44 L. ed. 276. 60 ciiioago, M. & St. P. By! Co. v: Ineofp'orated Town of tost Na- tion, 237 Ted. 709. ' 81 Texas & P. By. Co. v, Kute- man, C. C. A., 54 Ped. 547. ^ee Hyde v, Victoria Land Co., 125 Fed. 970; Louisville & N. B. Co. v. Smith, C. C. iA..; 128 Fed. = 1, 5; Southern Cash Begister; Co. v. Naf tional Gash Begi^tpr Co., 143 Fed< 659 ; Spaulding y;, Evenson, 149 Fed. 913. See, also, supra, ^13. In the following case the allega- tions were held to be insufficient: ' ' The averments of. the bill in the instant .case tp,i\ to :sIio;(7 that when the Judicial Code went into effect on the 1st day pf January, 1912^ there had already accrued to the ' plkdntiff a right of action against the defendant under the previ- ously existiiig law, which made it a prerequisite of the exis- tence of the fight of action that the matter in dispute exceed, ex- clusive of the interest and costs, the sum or value of $2,000. Act, March 3, 1875, c. 137, .18 8tat.,470; 4 Fed. t at. ^. 265. . Averments , to the .ef- fect th,at the. matter in dispute, , at the tiine the bill was filed ' on the ' 5th' day of June, 1912, ex'cjeeded, ; exclusive' of intterest and coats, the ; . sum .or. value of: $2,000, by no means show tjiat, while the f qrmer law was in forcie, a cause of action in- volving what' was the jurisdictional amount under it had accrued to the plaintifEJ I For anything i that is , shpwn to .the; contrary, what the de- fendant did or, omitted to do w.hile thie former la^^ was m force may not have given rise to a cause Of ' action in favor bf ' the plaintiff which involved anything like: .the amount, ^ whdcih , was required tjo au- thorize the bringing of a suit .in a court of the United States." ' Texas Gum Co: v.' Autosales Gum & Chocolate Co., 2i9 Fed. 175, 167, per Walker, J. ' 52 Lee Line Steaihers v. Bobin'son, C. C. A., 232 Fed. 417!' ■ 53 Beriiier V. Griscom -Spencer Co., ']61'Fed.'43'8. ■7,62 INFORMATIONS AND BILLS IN EQUITY [§136 Although it, ;is |;he;prQp^r , practice, that this,, part, of the, bill should ,flontaiii the stajteiapnt ,that,the complainant sues on behalf of; others as, well a^hiiji^^f, if he ii;|^;nd[s so to fio, it has ,be.eii ,sug- gested, that 4;his. might not be necessary when his case is, founded upon a statute ''^hich,^ts^f ,gi,ye3,thfit force and directiqin to the bill." ** , Jti has, bepiihpld,: that, ^uch, an opiisisioni does not jnake the bill demurijablev * There is- a idictum to , the , effect that a bill statjingi that ifche ida^ntiffs, are a^ti^ag pp. behalf, pf .themselves and sucb ptlier, ipreditors oi, a^d ,C[laiinan|;s, agftinst the ,4pfendants, pr any of them, as piay .desire relief similar to thajt prayed for herein and may intervene and, .become parties thereto," should be dismissed.^® . , § 136. The narrative par;t of a bill. IJhe mosit impprtanj; ppr- tion 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 plaintitf asks relief, omitting any mere .statenient of evidence,"^ "It should set forth the plaintiff's case in a clear and, distinct narrative, with the: facts relied upon as the Tjasis of the suit. For convenience, each' paragraph should be numbered, so that the successive allegations may be readily refei'red to.^ The objec- tion of" old common-law pleading was to bring the matter in con- troversy to certain, distinct issues. In equity ; pleading no such attempt was made/ 1 The statement* of thd plaintiff 's ease in the bill differs little in language or f orni from anjr other statement of facts which might be drawn up for the information of third par- ties, say an application to a governmerit 'board.. The defend- ant's answer usually admits, or denies, or. qualifies seriatim each statement in the bill; and occasionally, before proceeding to nt)tice tlife statement in detail, the 'defendant gives a general history of the case from his own point of view. The issues, both pf fact aU;4 of ^^y^! are thus often involyed in large masses pf statement, and have to be selejcted, so to speak, by the judge who 64 Irons v, l«tanufacturers'i .IJat. Kingfield Co., 218 Fed. 902, supra, Bank, 17 Fetf, 308; Meaelland y. § ;14. Rose, C. C. C, 247 Fed. 7^1,' . , , § 13fi, , ,1 Eq. Eule 25,, , 66 Murray v. Sioux Alaska Mining 2 An omission ,tp, dp thi? Tfill not Co., 0. C. A., 239 Fed. 818. he a defept ,in, pleading. - 66 State of Maine Lumber Co. v. 136] NARilxVlftVE part' 763 tries the cause, with, the assistance of the'arguinents of counsel. It would be difficult to' imaigine ^ less'techMcaldodumient thaii a bill in equity. " * : ; : "A bill in equity is ribt to be read and coiisfrued as ah in- dictment would have been read and cohstr'tfed a hundred year^ ago, but it is to be taken to mean what it 'falirly conveys to a dispassionate reader by' a fairly etact use of English speech. ' ' * The bill must contain every fact essential to thfe plaintiff's cause bf action, for rio evidence will be admitted oi: considered to prove any fact not alleged in it."' It rnust plead tiv^ry fact essen- tial fo the rights of the plaiiitiff, and necessarily' within his knowledge, positively, not upon information and belief,® and with certainty.'' Otherwise, it is defective. Aii allegation 'pi an es- sential fact which is made by recital, but in siich 'form that the existence of the fact appears by necessary implication is suffi- cient.*' An allegation my,y be made by' i'eference to a former allegation.*' This is the better pi-actice in pleading a second cause of action.*" It is an elementary rule of pleading in iequity ® and at common 3 Lectures before the Law iSchfeol of Boston University on / Equilty Pleading by Judge pwight Foster, MS. .See tfayne, Eq. 70. 4 Swift & Co. V. r. S., 196 V. S. 375, 395, 25 ^up. Ct. 276, 49 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 monqpolize the supply and distribution of fresh meats throughout [the United States, etc, as has been sta|:ed above, and it seems to us that this general al-, legation of intent colors and .applies ■ to all the specific charges of/ - tl^e bill." See Prindle v, Browp, C. C. A., 155 Fed. 531, 533; 'V^are.-Kramex, Tobacco Go. v. 'Am. Tobaqco Co., 180 Fed. 160. , ,| 6 Gordon, v. . jGordon, 3. Swa»st. , 400, 472; Mjller v. Gotten, .5 Ga, 341, 346; Wilson v. StoUey, 4, Mc- Lean, 275; Groeket v. Lee, 7 Wheat. ,522,, 5 ,L. ed. 513.; Jackson y. Ashton, 8 Pet, 148, ,8 L. ed. 898; keniy y. Suttle, 42 Fed. 91; Phil- lipps V. thillipps, 4 Q.* '^. 'b. 127, ■133. ' '"■ ■ '"■' SLprd, Uxbridg&/v. Stavel^nd, 1 Ves;. Sen. 56; EgreipjOnt v. Opwellj 5 Bea,v. 620; Gsines^ & Go. v. Stroufe, , 117 Fed. 965; Mitfordfs pi. 40; Story's Eq. PL, §S.255, 256. 7 Harrison v. Dixon, -9 Pet. 483, 503, 9 L. ed. 20tl, 208; Wormald y. De Lisle,, 3i Beav.,(,18; Bijooks & Hardy y. O'Hara Brothers, 8 Fed. 529; Darnell's Ch. Pr. (2d Am. ed^) 421-425; infra, §137. Slnvestoji ?ulj. Co. Dobinson, 72 Fed. 603; Graaselli Ghenjiflal Co. -;y., ^tna Explosives Co,, 247 Fed. 603. 8a Maxwell, Steel .Vault ,Co, v. National Pasket Co., 205 Fed. 515, 524. rT 8b Ibid. 9 Ibid. , 764 INPORMATIOljrS , AND BILLS IN EQUITY [§136 law,^" that when a state pf :f^cts,i^ reli,ed upon, it i^ enough to allege it simply without; setting ou^, the subordinate facts wliich are the means of proving it or the evidence sustaining the allegation. Documents, neeid not be set forth at length provided their execution and import are properly pleaded; ^^ but particu- lar eJauses, upqn ,the , construction of ^yhieh the case depends,,, should be copied in full into the bill.^'' Letters which show an excuse for not proceedip.g ,with more diligence may properly be included.^* WJien the complainant,, needs to plead a lengthy document, it is, the better practice to anpex a copy to the bill as an exhibit and to state in ;the, body of the pleading that it is referred to, designating the same by a letter or number by which it is marked,, with, the same effect as if set forth specifically and at length." Where the pleader wished to, include in his bill a judgment of a State court, it was held to bp .sufficient for him to, describe the suit and th^ issues therein, to set forth the date of the judgment and the volume aijd page of the official reports where it could be found.^* Facts not necessarily in, the complainant's knowledge he may allege ''as your orator is in- formed and believes, and therefore avers,"'* or "your orator avers upon information and belief." ''' Or "your orator further .shows on information and belief."'* An allegation "as your orator is infprmed and believes " was said to be bad." So was an allegation upon belief.*" It is the safer practice to set forth in 10 Williams v. Wilcox, 8 A. & E. 534; Helmet' Co. v. Wililam Wrig- 314, 331, per Deriman, C. J. See ley, Jr., Co., C. C. A., 245 Fed. 824. Steuart v. Gladstdne, 10 Ch. D. 644. 17 Helmet Co. v. William Wrigley, list. liouis Car Co. v. i. G. Brill Jr., Co., C. C. A, 245 Fed. 824. Co., 249 Fed. 502. 18 Elliott & Hatch Book-Type- 12 United States v. IJnited Shoe writer Co. v. Fisher Typewriter Co., Machinery Co., 234 Fed. 127; Fos- 109 Fed. 330; Murray Co. v. Cen- ter V. Callaghan & Co., 248 Fed. 944, tinental Gin Co., 126 Fed. 533, a in which the author was counsel. charge of the infringement of a pat- 15 Foster v. Callaghan & Col, 248 ent. See Boyd v. Thayer, 143 XT. S. Fed. 944. ' 135, 36 L. ed. 103. 14 Everglades D. Lieague v. Bro- iBWyckoff v. Wagner Typewriter ward D. Dist., 253 Fed. 246: See Co., 88 Fed. 515; Dupree v. Leg- infra, §§ 365, 366. ' gette, 140 Fed. 776. 16 Hewitt V. Great Western Beet ZOEiibber t. Co. r. Davie, 100 Sugar Co., C. C. A., 230 Ffed. 394. Fed. 85. But see Leaveiiworth v. 16 Coryell V. Klehn, 157 111. 462; Pepper, 32 Fed. 718; Kelley v. s. c, 41 N. E. 64; Wyekoff v. Wag- Bocttcher, C. C. A., 85 Fed. 553; ncr T. Co., 88 Fed. 51 5. Murray v. Curran v. Campion. 85 Fed. 67. Continental Gin Co., 126 Fed. 533, § 136] ! . NARRATIVE PART 765 the bill any faots which justify delay in the commencemeBt of the! suit or which would, take the case out of the bar of the stat- ute of limitations, if; that might otherwise apply .*^ Under the former practice, where the complainant anticipated , a defease which, could only properly be, met by pleadiug new matter, ^t w,as, necessary to set up the same by way of confession and-, ayoida^nce in his bill,** This was originally inserted in the charging part. "It usually consists of some allegation or allegation^ wMch set forth the matters of a defense or excuse which it is supposed the, defendant intends or pretends to set up to justify his non- compliance 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 obtdiniiig a discovery of the nature of the defendant'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 sufficient. ' ' ^ This was more recfently, when considered to be necessary, inserted in the narrative part of the bill.** Illustrations of such cases are : a prior patent ; *^ and, it seems, an estoppel ; *^ but not ordinarily ultra vires?'' The practice under the new rules has not been decided. In Eng- land, it is well settled that this should not be done ; ** but there the plaintiff has the right to reply, by way of confession and 2X Edison El. Light Co. v. Eqjuit- L. M. Co., 63 Fed. 609; Story's Eq, able Life Asaur. Soc. of TJ. §., 55 PI., §31; Southern Pac. E. Co. v. Fed, 478. But see Brush El. Co. v. U. S., 168 IT. S. 1, 42 L. ed. 35§, , Ball El. Light Co., 43 Fed. 899. 27 Interstate Construction Co. v. 82 Curtain Supply Co. v. Nat. Regents of the; U. of Idaio, 199 Fed. Lock Washer Co., 174 Fed. 45. , 509. It was held in North Cai-o- 23 Story's Eq. PL, § 31, See Mit- lina, tha,t, where a deed was pleaded ford 's El., eh. 1, § 3. in, the answer together with aver- 24 Equity Rule 21; Partridge v. ments of the facts upon which its Haycraft, 11 Tes. 574;. validity depended, no amendment of, 26 Curtain Supply ,Co. v. Nat. the bill was needed to enable the Lock Washer Co-i 174 .Fed. 45, 50. plaintiff to attack the validity of Where the answer set up a li- the deed. Boyd v. Hawkins, 2 Dey, cense, complainant was not allowed Eq. (N. C.) 195, 215. to prove 9J1 abandonment thereof be- 28 Hall v. Eve, 4 Ch. D. 341, 345; cause the bill contained no aUega- per James, L. J.: "It is no part of tion to that effect. Wilson v. Stol- the statement of claim to anticipate ley, 4 McLean, 275.; ' the defence, and to state what the 26 Hill V. Hite, C. C. A., 85 Fed. plaintiff would have to say in an- 268. But see Woodward v. Boston swer to it, ' ' 766. INFORMATIONS AND BILLS IN EQUITY [§137 avoidance or otherwise, to any defense in answer.^' Whether that is so under the new Federal Equity Bules is unsettled.'" Under the New York Code of Civil Proeedure, a defense in an answer may be met by confession and' avoidance without any reply or reference to the same in the complaint or other plead- ing by the i)laintiff, unless a reply is ofdered.'^ § 137. Certiainty. A bill must state the plaintiff's ca^e with sufficient certainty.^ 29 Ibid. so See §§195, 203, infra. 31 Welsh V. German - American Bank, 42 N. Y. Superior a. 462, , errors in accounts stated; Freund v. Paten, 10 Abb. N. C. 311, fraud in a diseharge in bankruptcy. § 137. 1 Thus it was held that a bill by a receiver of a national bank to recover for the loss caused to it by the negligence of its di- rectors, which prays relief against the persons who acted as directors during various periods of time, to- gether with the representatives of such as are dead, must "state the dates of the losses sustained by the corporation and the ' dates ' of the acts or omissions contributing to those losses, with sufficient cer- tainty to inform each of the de- fendants with which and how many of the losses it is sought to charge him." Price v. Coleman, 21 Fed. 857. But a late decision holds that upon such a bill it is unnecessary to allege the exact amount of the loss arising froih each transaction, where that was not yet known but that the acts of the defendants, which were charged to constitute negligence or misconduct, must be set forth with particularity, and thie details of the several transactions should be given with as much fullness as could be done by the complainant. Allen V. Luke, 141 Fed. 694. The following aUegations were held to have sufficient certainty: that , tjie defendants '/suffered and per- mitted the said reports," whjch were alleged to' be false, "to be placed oil' file in the' ' Department of the- Comptroller of the' Cur- rency; that the said directors ut- terly failed and neglected to per- form their aforesaid, official du- ties, and each and every of ttem'; and thalt for a considerable period of time, prior to said November 13th, 1902, as hereinbefore lan^i hereinait^T set forth, failed tp give, any adequate attention to th» affairs of said bank,' and allowed the said bank to be improvidently and recklessly ' managed;" aJid that the defendants "wholly failed and neglected to make personal examinations into the conduct and maiiagement of' its affairs and'ihto the condition of^ its accounts." Ibid. For an insuflcent allega- tion that plaintiff was a 60710 iide purchaser of a note before- its 'ma- turity, see ' Ckesar v. Capdll, 83 ' Fed. 409. For a lack of certaiirty- in allegations concerning the as- signment of a, patent, see Jaros H. ir. Co. V. Fleece H. U. Co., 60 Fed. 622. A bill to enjoin the en- forcement as a lien upon lah'd of a judgment entered a few days after complainant had begun to erect a §•137] CSRTAJNTY IN BILLS 767 The same precision of istatement required in pleadings at law is inot; necessary.? jLess, ceiftainty is requiired concerning facts of TlKhich a discovery is sought; from the defendant.' Afli ailegatipn .that an eyenl; , occurred on or about a certain specified day is, hqweve.r, su;fficient.* An allegation that an event happened before a specified date, without averring the day of the event, may; be the subject of a motion for a bill of particulars, but it seems that it is not a ground for dismissing the whole bill.* The bill must Sjtate facts, hot conclusions of law which will be disregarded by the court.® , Thus the avermen,t of irreparable injury will be disregarded in the absence of allegations of facts from which the court can see that irremediable mischief may be apprehended from the threatened wrong:' An allegation that a decree was null, void £ind inoperative, is insufficient without a specification of ;the defects in, the same.* An allegation, tha,t an act complained /of was not a judicial act, and was done; without the jurisdiction of a judge, is a mere conclusion of law.^ An aVel'me'nt that acts wCre done in pursuance of a conspiracy does for failure to allege the particular point of the diversion, and the means and methods used therein. Miller v. Bi(dcey, 127 Fed. 573. ZPrindle y. Brown, Q. C. A., 155 Fed. 531, 533; Daniel's Ch. Pr., lat Am. ed. 421; Storey's Eq. PL, § 253. See Droullard v. Baxter, 1 Seam. 192. 8 Towle V. Pierce, 12 Met. (Mass.) 329, 332, 46 Am. Dee. 679; Lafay ette Go. V. Neely, 21 Fed. 738. 4 Richards v. Evans, 1 Ves. Sen. 39; Roberts v. Williams, 12 East. 33, 37; Leigh v. Leigh, Daniell's Ch. Pr. 369. 5 Prindle v. Brown, C. C. A., 155 Fed. 531, 533. See § 242, infra. 6 Harper v. HiU, 35 Miss. 63. 7 Indian Land & Trust Co. v. Sehoenfelt, C. C. A., 135 Fed. 484. 8 Flannigan v. Chapman & Dewey Land Co., C. C. A., 144 Fed. 371. See XI. S. V. Norseh, 42 Fed. 417. 9 0'Connell v. Mason, 132 Fed. 245. building upon such land under a contract which he claimed gave him priority under a mechanic's lien, was held demurrable for lack of eertaiaty because it failed to set forth <'the actual dates at which he eommenced/ ' ' carried on, and finished work and labor, and the actual dates on which he furnished materials, ' ' in- order that the court might determine the validily and extent and right to priority of the lien he claimed.' McKee v. Trav- elers' Ins. Co;, 41 Fed. 117, 119. An allegation that a song formed a material part of a dramatic com- position was held fatally indefinite because it failed to say whether the pleader intended merely the words of the song, ■ which were set out ih the bill, or also the music to which they were sung. Henderson v. Thompkins, 60 Fed. 758, 765. It has been held: that a bill to re- strain the wrongful diversion of Va- ter from a street is not demurrable 7-68 INFORMATIONS AND BILLS IN EQUITY [1137 not change the nature of a civil action or add anything to its legal force and effect." A general charge of fraiud is not suffi- cient, but it must allege the specific acts or language which con- stitute the' fraud;^^ All th^ evidence of the fraud need ri6t be pleaded. ^2 n is sufficient if the main facts or incidents which 10 Howlaud V. Kain, C. C. A., 232 Ped.f 35, dn which the author was counsel. , 11 Gilbert V. Lewis, 1 De G. J. & Sin. 38, 49; Bryan v. Spruill, 4 Jones Bq. (N. C.) 27; U. S. v. Atherton, 102 U. S-. 372, 26 L. ed. ,213; U. 3. V. ^forseh, 42 Fed. 417. But see Field v. Hastings & Brad- ley',' Co., 65 VeA. 279; Kittel v. Augusta, t. & G. B. Co., 65 Fed. 859; Fatten v. Glatz, 56 Fed. 367; Von Horst v. Am. Hop & Barley Co., 177 Fed. , 976, where allega- tions that an assessment was made pursuant to a conspiracy to deprive complainant of his stock, was held to be insufficient without any show- ing of facts tending to prove sueh conspiracy or improper motive; James v. City Investing Co., 188 Fed. 513. See infra. A bill to set aside a decree for fraud must speoif- ically state the manner in which the imposition was practiced upon the court. U. S. v. Norsch, 42 Fed. 417; U. S. V. Kose, 166 Fed. 999, a bill to set aside a decree of natur- alization. So held where a bill at- tacked a land patent for fraud and mistake. Le Marohel v. Teegarden, 133 Fed. 826. In a suit to set aside conveyances of land, made by an executor in probate proceedings, al- legations that the sales were fraud- ulently' i conducted are insufficient without any averment of the sub- stantive facts justifying the chai'ge. Williamson v. Beardsley, 137 Fed. 467'. A bill to set aside a land pat- ent on account of fraud or mis- take must Stat© the ' particulars of the fraud, the names of those en- gaged therein, the officers who were deceived and the manner in which the mistake occurred. IT. S. v. Ath- erton, 102 U. S. 372, 26 L. ed. 213. But see U. 8. v. Am. Bell Tel.,, Co., 128 U, S. 315, ,32 L. ed, 450; John A. Eoebling's Sons Co., 248 Fed. 596. A patent for public lands will hot be set aside unless the bill shows that it was issued to the wrong party by fraud, gross mis- take, or erroneous construction of law. A bill to enjoin the con- struction of a I county vault, which avers that the cominissioners who let the contract "were imposed up- on by false and fraudulent repre- sentation made to them by . . . the contractor and carpenter, as to the character, quality, and cost of the material of said vault," does not show with sufficient definiteness what representations were made; and an averment "that said con- tract or agreement was made by collusion or a^eement between said A. and co-respondents, or some of them, in order to give said A. an undue advantage in the, erection of the vault over any other persons, to the great damage and injury of the county," is insufficient as fail- ing to set out the facts constitut- ing collusion. Hays v. Alrichs, 115 Ala. 239; s. C, 22 S. E. 465. See Moore v. Hawkins, 19 How. 69, 15 L. ed, 533. 12 IT. S. V. Am. Bell Tel. Co., 128 U. S. 315, 316, 32 L. ed. 450. It has §137] CERTAINTY IN BILLS 769 constitute the fraud against which relief is desired are fa,irly stated so as to put the defendant upon his guard and apprise him of whatevesi^ answer may be required of him.^* A bill t0| set, asi,de been held that a creditor's; bUl for an injunction and a receiver, be- cause of the fraudulent disposition of assets, need not describe the as- sets. Shainwald v. Lewis, 6 Fed. 766, 775. 13 "U. S. V. Am. Bell Tel. Co., 128 tf. S^ 315, 316, 32 L. ed. 450. In a suit for a conveyance of land, it was held to be sufScient to allege that phe defendant, while plain- tiff's agent, proposed that she con- vey the property to him for the purposes of its management,, and promised that he would reeonvey it upon den;iand, which promise he then had no intention oif perform- ing, but made in order to fraudu- lently procure the land; and that she was induced by his promise and representations to make the trans- fer. Alaniz v. Casenave, 91 Cal. 41. See also Tyler v. Savage, 143 U. S. 79, 36 L. ed. 82; Peck v. Vinson, ,124 Ind. 12; Lawrence v. Gayetty, 78 Cal. 126, 12 Am. St. Rep. 29. An averment that one B. was from infancy of unsound mind, and that , his mother and her legal adviser procured a deed from him for a grossly inadequate consideration, which was never paid,, is a suf^eient averment of fraud. Ehino v. Emery, C. ,G. A., 72 Fed. 382. The alle- gation that a decedent, when very feeble both in mind and body, was persuaded and induced through some undue and improper influ- ence, unknown to complainants, to execute a deed, was held to be in- sufficient. Jackson v. Rowell, 87 Ala. 685, 4. ,L.E.A. 637. But see Mott V. Mott, 49 N. J. Eq. 246; s. C, 22 Atl. 997, cited infra, §138. A Fed. Prae. Vol. 1—49 bin alleged ' ' that the bank was irL- solvent on the 5th day of May; that this was weU known to HjS officers; that it wrongfully neglected to dis- close its insolvency to complainant and by continuing, bjisiness ,fl,nd otherwise represented to complain- ant and all other persons dealing with it, that it was solvent; tjhat complainant, on the faith of thege representations, believed such, to be the fact,, without suspicion ; that the bank was, or was in danger of .be- coming, insolvent; that,, acting up- on the representations, and relying on the bank's solvency, complainant delivered the draft; that next morn- ing the bank closed its doorsj and the draft was collected thereafter; and that, by reason of the prem- ises, the draft or its proceeds did not become the property of the bank." These allegations were held sufficient to ebarge, fraud. "The omission to state in the .pleading the degree of insolvency which rendered the bank's con- duct fraudulent was not fatal, as the conclusion asserted showed the intention of the pleader.'' St. Louis & S. F. Ey, Co. v. Johnson, 133 U. S. 566, 577, 578, 33 L. ed. 683, 686, 687. For a case where it was held that sufficient f r3,ud , was shown to authorize a bondholder to bring a suit of foreclosure when the mortgage provided for foreclos- ure only upon request of the ma- jority of the bondholders, Brown v. Denver Omibus & Cab. Co., C. C. A., 254 Fed. 560. On a bill against the officers of a bank for damages caused by the bad management of its affairs, it was held that specific 770 INPOEMATIONS AND BILLS IN EQUITY 137 a, transfer of property in fraud of the creditor or sto'ek|i'older must Show that at the time of the ti'a;nsfei' there were other stockholders or creditors who were defrauded.^* It has been held: that a general allegation that there were others is in- allegations, which in themselves might not be sufficient, when sup- ported by general allegations of mis- conduct and negligence, made out a case for relief. Ackerman v. Hal- sey, 37 N. J. Eq. 336; s. c, 38 N. J. Eq. 501. The following allegation was held to be insufficient: "that in 1911 the defendant Cooper, in whom the eoinplainant placed trust and confidence, and while president of the two defendant corporations, through' an agent approached' the complainant and induced him to purchase certain shares of stock in the Waycross Savings & Trust Com- pany, paying therefor $1,100, and giving his note for $4,400 upon' the ■express understanding 'and agree- ment that said note should be re- newed from time to time until fully paid, principal and interest, by the dividends accruing on said stock; that this course of procedure was followed until the principle sum of said note was reduced to $4,000; that said Cooper, as such president of said corporation, so managed their affairs as to bankrupt the Waycross Savings and Trust Com- pany, and enrich the First National Bank of Waycross with all the val- uable assets of the first-mentioned company; that among the assets of the first-mentioned company trans- ferred to the bank was the note of complainant with the stocks as col- lateral attached; that in March, 1915, said Cooper met complainant in Jacksonville, Fla., and procured the renewal of said note made pay- able to the First National Bank of Waycross, the Complainant not knowing' that the payee had been changed, but supposed it was pay- able to the Waycross Savings & Trust Company, as had theretofore been the case; thst such change of the payee was by an oversight of complainant, and by the procure- ment of sdid Cooper with the in- teiit to defraud the complainant by depriving him of the defenses he otherwise would have had against the Waycross 'Savings & Trust Com- pany; that he would not have signed said last mentioned note had he kno*n of the change in the payee, and ipon demand being made lipon him refased payment of the same ; that' thereupon suit was' brought against him by said First National Bank of WayCross upon said note, which 'res'ultied in a judginent of this court on the cortimon-law side for the sum of $5,040.17 against the complainant in favor of the First National Bank of Waycross ; thalt each of said corporation defendants had full knowledge of the represen- tations and agreements entered into at the time of the purchase of said stock, and giving the first prortiis- sory note. The bill also alleges that by some proceeding in the State of 'Georgia the bank sold said stock for the sum of $90, and purchased the same and now holds it, and gave credit upon the last-mentioned note for said sum. ' ' Button v. ' Ist Nat. Bank, 244 Fed. 236. UHill v. Wilson, C. C. A., 210 Fed. 300. ' 137] CERTAINTY IN BILLS 771 sufficient.^^ Au allegation of a fraudulent intent was held to be an allegation of a fact.^® A bill for relief from an old fraud must state the time of the discovery of the fraud, the reason why it was' not discovered earlier, the means used by the defendant to conceal it, the manner in which it was learned, and the diligence with which the transaction was investigated.^'' A general allegation of concealment and ignorance is insuffi- cient.^* The previous lack of knowledge must be specifically set forth. ^^ Positive averments of fraud based upon information and belief are good.^" In an action by a receiver of a National Bank against the di- rectors for negligence, an allegation that they were liable because of "unreasonable neglect and failure to attend" meetings at which the .unlawful and negligent acts were committed was held IB Ibid. 16 Piatt V. Mead, 9 Fed. 91; But- ton V. 1st National Bank,' 244 Fed. 236. In a suit ' to enforce the liabil- ity of directors for declaring a dividend when their .corporation was insolvent, .the following allegation . was held to be suflScient: "That the defendants; knowing that a large sum of money would soon become payable 'to^ the plaintiff under its contracts with the corpo- ration, of which the defendants were directors, and that the corporation was in consequence insolvent, divert- ed a large part of the assets of the .corporation to themselves and to Other stockholders through and by the fraudulent device of declaring a dividend of 500 per cent, on the Capital stock of the company and following this with a suQces^ful ap- plicatiop to have the affairs of the company placed in the hands of a receiver. The practical result is that the creditors get nothing,, and the stockholders .receive> the one divi^ dend five times the total of the capi- tal stock." TJ. S. Smelting Col v. Hofkin, 245 Fed. 896, 897. 17 Badger v. Badger, 2 Wall. 95, 17. L. ed. 838; Hubbard v. Manhat- tan Trust Co., C. C. A., 87 Fed. 51;, Edwards v. Mercantile Trust Co., 124 Fed. 381; Cutter v. Iowa Water Co., 128 Fed. 505; Strout v. TJ. S. Shoe Mach. Co., 208 Fed. 646. For allegations held to be sufficient, see Lockhart v. Leeds, 195 U. S, 427, 49 L. ed. 263. See Bangs v. Loveridge, 60 Fed. 963. 18 Ibid: Where, as an excuse for laches, it is alleged that negotia- tions were pending froiil which plaintiff hoped to obtain a settle- ment, the bill should allege tKat his adversary encouraged such hope. Mackall v. Casilear, 137 U. V. 556, 567, 34 L. ed. 776, 779. 19 Church, v. Swetland, C. C. A., 243 Fed. 289. 20 Leavenworth v. Pepper, 3? Fed. 718, 719; Helmet Co.. v. Wilfiam Wrigley,, Jr. Co., C. C, A., 245, Fed. 824. 772 INFORMATIONS AND BILLS IN EQUITY [§137, to be insufficient;^^ but an allegation that a director *'stead'- fastly and wilfully negliected and refused to acquaint himself with the affairs of such association tod wilfully, negligently, and steadfastly refused to attend any meetings of the board" was held to be good.^* It is insufficient to allege that the defendant; is a trustee without , stating the facts that ^how how the trust arose,^^ An allegation that an ice company is engaged in cutting and harvesting ice in New Hampshire and transporting the same to Boston and selling it in Boston is insufficient to show that the company is engaged in interstate commerce.^* An allegation that the defendants entered into a combination and conspiracy in restraint of Interstate Commerce, in violation of the Anti- Trust Act, a reference to which act was set forth, is also insuffi- cient.^* In a bill to set aside a freight rate established by a State board or officer, it is insufficient to aver that the rates are unjust and unreasonable and to aver their prospective, effect without stating concrete facts from which such effect can logically or natr, urally result,*® and it is insufScient to allege that the known loss resulting from the rate will be a specified amount without stat- ing the facts from, which such result is reached, nor that the rail- road's principal business between the points affected consists of interstate commerce and the road will be compelled to lower its interstate rates without' showing what part of the predicted Joss lyill be on the traffic a.ffected as distinguished from the general body of traffic. It has beeii said that the bill must disclose facts' showing with reasonable definiteness, not only the present total 21 Williams v. Brady, 221 Fed. such co-defendants; i was not in- 118. suflScient for uneerta^ty, because 22 Williams v. Brady, 232 Fed. it did not allege which of them 740, 743. was the owner of the beneficial. 28 Evan V. Avon, 29 Beav. 144 ; interest in the judgment ; there Dickinson V. Kempner,- 193 Fed. 204. being averments .that, complainant It was held : that a bill by a judg- had no knowledge as to , such fact, ment debtor against ^ the judgment and prayed discovery in relatictn creditor and other defendants, which to the same. Brown y. Pegram, alleged that the creditor ' would 149 Fed. 515. . , hold a certain part of an amount 24 Corey v. Independent lee Co., eollQpted on the judgment in trust 207 Fed. 459. • for his co-defendants, or one of 26 Ibid. them ; and that complainant had 26 Southern Pac. Co. v. Railroad a set-off against each and all of Commission of California/ 193 Fed. §137] 1 CERTAINTY IN BILLS 773 value and total gross revenue pf the road affecteid, but also the gross revenue from each class of business, interstate and local, f reigh* i • passeiiger' or other, and the proportionate property val- ues devoted thereto, together with the gross operating expenses and a proportionate application "thereof to such different classes of traJBc, so that the net ' revenue from each source may be thereby ascertained.*'' In a bill to enjoin • railroads from dis- criminating between white and black passengers, it is insufficient tO'iaver that passenger coaches maintained for the Negro race are not; provided' 'with separate and equal toilet and waiting rooms for male and female passengers, nor equal smoking accom- modations, nor separate and equal chair-^cars, sleeping-cars and dining-car accommodations.^* , An allegation that a defendant corporation is about to exceed its powers is insufficient. The bill must show what acts are threatened, and why tfaey exceed the powers of the corporation.*^ , It has been said> th^it as much certainty is required in a bill by a sitockholder to enforce a corporate right as in a bill by the corporation for the same purpose.*" In a stockholders' suit to wind up a corporation as insolvent, it is not necessary that all the property of the corporation should be speeiflcaUy described in the bill.'^ The allegation that the corporation cannot pay its c-nrrent obligations, as, they mature and is unable in the ordinary course of its business. to pay its liabilities, is a sufficient aUega- 699; Northern Pao. By. Co. v. Lee, the worthlessness of a patent nnder 199 Fed. 21. ' '' ' which it had been carried on, but 87 Southern Pae. ' Cb. v. Railroad without stating that that was the Commission of California, 193 Ped. controlling reason; that the oflS- 699. cers were misapplying the funds, 28M'Cabe v. Atchison, T. & S. but without stating that .any effort F. Ey. Co., 235 tJ. S. 151, affirming, had been made to have the corpo- C. C. A., 186 Fed. 966. ration bring suit; that the officers 88 Leo V. Union Pae. Ry. Co.j 19 had tampered with the books, but Fed. 283. without stating in what manner ; SO Whitney v. Fairbanks, 54 Fed. that certain assets had not been 935. ' entered in the books, but without 81 Williams v. Am. Ass 'n, C. C. A., charging concealment or inten- 197 Fed. 500. A bilL by a stock- tional wrong. It was held that the holder seeking dissolution of a cor- allegations were too general and poration and accounting, alleged indefinite to justify granting re- that business had been suspended, lief. Watson v. IT. S. Sugar Ee- " among other things/' because of finery, C. C. A., 68 Fed. 769. 7 774 INFORMATIONS AND BILLS IN EQUITY 137 tion of insolvency in a bill that prays the appointment of a re- ceiver.'^ The bill should state facts, not evidence." It should not state admissions.'* "The pleader should state the facts, and not formulate mere epithetic ' charges. ' " If the facts are not to be ascertained by diligence, or because of some obstruc- tion, or if the evidence of them is in possession of the other side, this should be made to appear, with technical avermeiits showing the necessity of discovery, when that is wanted; but a court cannot sustain a bill upon mere denunciatory state- ments of the plaintiff's suspicions or belief. The best plead- ings are- those which state the inculpatory facts that carry with them their own conviction of the fraud, and by which the wrong- doing appears, without much necessity for characterizing it as such. ' ' '8 Objections to a bill for certainty should be raised by a special motion to dismiss upon that ground,'® or by a motion for a further and better statement of the nature of the claim or further S2 Am. Can Co. v. Erie Preserving Co., 171 Fed. 540; Cineiniaa);i Equip- ment Co. V. Degnan, C. C. A., 184 Fed. 834. 33 Bq.' Rule 25. 34 This was held by Judge Story not to be the rule in this country. Smith ■ V. Burnham, 2 Summer, C. C. 612 ; Jenkins v. Bldredge, 3 Story C. C. 181, '283, 284; Story's Eq. PL, § 265. By the English Chancery practice, ■ admissions could not be put in evidence unless ,they had been specifically set forth in the bill. Hall V. Maltby, 6 Price, 240; Evans V. Bicknell, 6 Ves. 183; Aus- tin V. Chalmers, 6 CI. & Pin. 38 ; Story's Eq. PI., §265. This is no longer the practice there. Davy v. Garrett, 7 Ch. D. 473, 47^ L. J. Ch. 218, 26 W. R. 225, 38 L. T. 77, (letters) ; Jones v. Turner, (1875) W. N. 239, (plaintiff had "been in- formed by the defendant"). Accord- ing to Professor Langdell, "when a bill charges a defendant with hav- ing had notice, or with having com- mitted a fraud, or with insanity, or drunkenness, or lewdness, or mis- conduct in office, if the plaintiff in- tends to prove specific acts of no- tice, or of fraud, insanity, drunk- enness, lewdness, or misconduct in office, it seems that such acts should be specifically charged in the bill. But this view is not fully supported by authority. It may also be stated generally, that whenever the plain- tiff has evidence which is likely to take the defendant by surprise, it is the safer course to indicate its nature in the bill, rather than to run the risk of having it objected to at the hearing.'* Langdell 's Eq. Assurance Corporation, L. R. 6 Eq. 23; Clark v. Perriam, 2 Atk. 337,; Shepherd v. Morris, 4 Beav. 252. 35 Lafayette Co, v. Neely, 21 Fed. 738. 36 See Eq. Rule 29. ^ §138] BILLS WITH DOUBLE ASPECT 775 and better particulars of the matter stated.^'' By the former practice, when not raised by demurrer, they were ordinarily held to have been waived.** § 138. Inconsistency and bills with a double aspect. The Equity Rules of 1912 provide: that the relief prayed "may be stated and sought in alternative forms. " ^ It has not yet been decided whether this changes the former practice, which was as follows: A bill must not state two incon- sistent states of fact and' ask relief in the altemativci But it may state the facts and ask relief in the alternative according to the conclusion of law that the court may draw from them, so that if one kind of relief sought be denied, another may be granted ; and it may state facts of a different nature not inconsistent with each other, and equally supporting the prayer for relief. In both of these cases a bill is said to have ' ' a double aspect. ' ' * Thus, a bill may state facts constituting an attempt to form a new corporation by the consolidation of two already existing- and pray that, if the new corporation have a legal existence, the plaintiff may be declared entitled to a certain number of shares therein, otherwise to a corresponding interest in the stock of one of the old companies.* A bill to enjoin the infringement of a copyright may set forth an agreement .between the author and the plaintiff, and then allege that if such agreement does not constitute an assignment of the copyright, it is an exclusive li- cense.* The complainant may seek to quiet the title to lands, 87 Eq. Bule 20; mfm, §§240-242. true, which is denied, then the 38 Chicago, M. & St. P. K. Co. said State law, . ... is null V. Pullman P. C. Co., 50 Ted. 24 ; and void, because it operates as a Green V. Terwilliger, 56 Fed. 384; discrimination against the share- Thomas V. Nantahala, M. & T. Co., holders of national banks in viola- 0. C. A., 58 Fed. 485; Eorback v. tioij of the express terms of § Dorsheimer, 25 N. J. Eq. 516, 518 ; 5219 of the Revised Statutes of Mason v. Daly, 117 Mass. 403. ' the United States," is sufSeient to §138. lEq. Rule 25. raise the issue whether there is in 2 Shields v. Barow, 17 How, 130, the act any discrimination prohibit- 144,1 15 L. ed. 158, 162 ; Halsey v. ed by the act of Congress. ' Whit- Goddard, 86 Fed. 25; Shackleton v. ney Nat. Bank v. Paarker, 41 Fed. Baggaley, C. C. A., 170 Fed. 57, 402,406. See Boyd v. N. T. & H. R. Story ^s Eq. PI., §426, note, §254. Co,, 220 Fed. 174. SKilgbur V. New Orleans Gas- 4 Black v. Henry G. Allen Co., 9 Light 0<)., 2 Woods, 144, 148. The L.R.A. 433, 42 Fed. 618, 623. See averment "that if said intention is ChafBn v. Hull, 39 Fed. 877. 776 INPOEMATIONS AND BILLS IN EQUITY [§138 claiming either as devisee or as heir-at-law.^ A bill may , con- tain a prayer that an agreement be either set aside as obtained by fraud, or else specifically enforced ^ or an accounting, there- under directed,'' or eslse that it: be ref orniedy: or if.that capaot be allowed that it be. cancelled,* or elsie that; a lieUi upon th;e same, in favor of the plaintiff, be foreclosed,® or that the de-- fendant either restore property > obtained by fraud or else pay the value of the same.^" But,/ at least; before the act of Marph 3, 1915,^"* not for specific performanee or in the alternative, for, damages which might be recovered at law.^^ A bill may allege that the defendant had actual knowledge or constructive notice of an essential fact.^^ .: , , , 5 Gaines v. Chew, 2 Haw. 619, 643, 11 L. ed. 402, 411; TuUy v. Triangle Film Corp., 229 Fed. 297. 6 Hardin v. Boyd, 113 TJ. S. 756, 28 L. ed. 1141. But see Shields v. Barrow, 17 How. 130, 143, 15 L. ed. 158, 161; St Louis, V. & T. H. E. Co. V. Terre Haute & I. E. Co., 33 Fed. 440, 448. But see Cella T. Brown, C. 0. A., 144 Fed. 742. A bill was sustained ' when filed by one partner against an- other praying for specific per- formance of a contract for the sale of land, or else for an ac- count of the partnership debts, and a charge of their amount upon the land as belonging to the as- sets of the firm. Hoxie v. Carr, 1 Sumn. 173. It was . held : that a bill was not demurrable for mul- tifariousness, or as based on .an- tagonistic rights, when it alleged that a mortgage debt was paid be- fore the mortgage was foreclosed under a power of sale, and asked that the mortgage and deed be cancelled, and, at the same time, asked that the sale be set aside because the mortgage became the purchaser at his own sale.. Dick- erson v. Winslow, 97 Ala. 491; s. c, 11 S. E. 918. But see Cut- ler V. Iowa Water Co., 96 Fed. 777. It was held that a bill was not demiirfable ' for multifariousness, nor based upon antagoiiistic rights, when it prayed, ■ for specific per- fprmauce of an agreement to deliver coal in, return for an advance of money, and in the alternative for the foreclosure of a mortgage, by which 'the 'return of' the money was secured (Peale v. Marian, , Coal , Co., 172 Fed. 639). , ,, ;, , 7 Jackson v. Jackson, C. C. A., 175 Fed.' 710. '"" 8 Electric Goods Mfg.' Co. v. Kol- tonski, 171 Fed. 550. 9 Jones V. Missouri-Edison El. Co., C. C. A., 144 Fed. 765. 10 Hubbard v. ¥rton, 67 Fed. 419 ; TJ. S. V. Debell, CCA., 227 Fed. 760. But see Alger y. Anderson, 92 Fed. 696. 10a 38 St. at L. 956, quoted »U>pra, • § 80. 11 United States v. Debell, C. C. A., 227 Fed. 760 ; Beveridge v. Crawford Cotton Mills, 257 Fed. 832. 12 Brady v. Eelianoe Motion Pic- ture Corp., 23? Fed. 259; Beveridge V. Crawford Cotton Mills> 257 Fed. 832. 1:38] BILLS WITH DOUBLE ASPECT 777 Wheii.' the complainant alleged that a decree which he wished to set aside was obtained bither by mistake of a;irthe' parties, or by deception practiced tipon himself, or by collusion of the de- fendant With third parties, the bill was held to be demurrable for indefihiteness.i^ "To allege that a sale is simulated and if riot ' simulated' iy fraudulent, 'meaning thereby it is a sham sale, aiid"if hicit a sham then a real sale, but fraudulent, may be con- sistent, but it is iio't' certain ; arid' certainty is a requisite in equity jpIMdirig as well as'eonsifetericy. It' Seems to me that, if there is doribt as to the nature of the transaction, the creditor, who has 'to strike in the dark,'' should chai'ge a 'fraudulent simulation, and Oil discovei^ amend if necessary." i* ' ' 13 Brooks' V-O'Hara, 8 Fed. 529; S.'C, 2 MeCraxy, 644. But see Wil-^ liams^v. ^IJ. S.,, ;138,U. S, 514,.,fijl7, 3 S. v. Thirty-Two Oil Co., 242 44 Payne v. Hook, 7 Wall. 425. Fed. 730. 45 Nelson v. Hill, 5 How. 127, 12 51 Hopkins v. Grimshaw, 165 U. L. ed. 81. See also Oliver v. Piatt, S. 342, 358, 41 L. ed. 739, 744; 8 How. 333, 11 L. ed. 622. But see Briges v. Sperry, 95 U. S. 461; Griffin v. Merrill, 10 Md. 364. Hayes' Appeal, 123 Pa. St. 110; 46 Hayes v. Heyer, 4 Sandford Hayes v. Heyer, 4 Sandf. Ch. (N. Ch. (N. Y.) 485. Y.) 517. But see Belt v. Bowie, 65 47Vandalia Coal Co. v. Lawson, Md. 350. App. Indiana, Jan. 29, 1909, 87 N. 62Vreeland v. Vreeland, 48 N. J. E. Eep. 47. L. 56; s. C, 24 Atl. 551. But see 48 Warnoek Uniform Co. v. John Robinson v. Springfield Co., 21 Pla. D. Garifalos and Max Kobre, 224 203. N. Y. 522. SSlJlman v. Jaeger, 67 Fed. 980. 796 INFORMATIONS AND BILLS IN, EQUITY [§il41 mark,^* or who are charged; with using a corpoi:atioii as.. the means of such an infringement,^^ ,or, it was held, ithe manufac- turer and sellers of.the same .articleSi^® may be . joiriedi with the corporation as defendants to , a suit f oj? an injunction and an accounting; but if has, been held^that a bilLcannot join complain- ants against different violators of the same patent^''' or copy- right,^* when their infringements were not performed in con- federacy with eacl?L! other. But the soundness of i the decision last cited has been doubted by Judge Story, ^9 and it: was distinguished by Chancellor Kent.^" It was held that' a bill against an inter- fering patenteewas multifarious when it joined the commissioner of patents as a defendant and prayed for a reissue." , A: bill of peace may be filed to disppsepf the claims of a number of' de- fendants, which all depend on the- determination of a.- single question of fact or law.®* Such ;bills have been itiaintainedi when B4 Popperhusen v. iPalke, 4 Blatehf . C. C. 493. 65 Nerve Pood' Co, .y. Baumbaeh, 32 Fed. 205; California P. S. Cg.i v. Improved P. S. Co., 51 Ped. 296. 66 Capewell Horse Nail Co. y. Green, C. C. A., 188 Ped. 20. , 67 Jewell V. City of Philadelphia, . 186 Ped. 639; , Edison ,v. Allis- Chalmers Co., 191 Ped.. 837;, Climax Lock & Ventilator Co, v. Ajax Hard- ware Mfg. Co., 192 Pedri26; Tag-' gart V. Bremner, C. C. A., 236 Ped. 544. 58r)illy v..,Doig, 2 Ves. Jri. 486. See Thomas H. El. Co. v. Sparry El. Co., 46 Ped. 75. - ".' 69 Story's Eq. PI., §§277, 278. 60 Brinkerhoff v. Brown, 6 J. Ch. (N. Y.) 139, 155. See Poxwell v. Webster, 10 Jur. (N. S.) 137. 61 Gold V. Gold, 181 Ped. 544. 62 Gaines v. Chew, 2 How. 619, 11 L. ed, 402; IT. S. v. Curtner, 26 Ped. 296, 298; Hyman v. Wheeler, 33 Ped. 329. Such are a bill by a parson or lord of a manor to estab- lish a claim against all of his pa- rishioners. Brown v. Vermuden, 1 Chan. Cas. 272, Or tenants, Con- yers v. Lord Abergavenny, 1 Ark. 285 ; a bill by' the owner of a flah'ery, , Mayor of York v. Pjlkin'gton, 1 Atk. 284; or a w,ater-right. Union MJill ^. M. Go. v. Dangberg, 81 Fed. 73 ; , to establish his claim against a' num- ber of riparian owners'.' Or by th'e owner of a; fishery; to enjoin, from the use of the same, seyeral persons who claim the right ; under , a State statute, ^and who commit trespass upon the land of plaintiff, which are only 'incidental to their flshiii'g. Percy Summer Club v. Astle, 145 Ped. 53;' and to prevent injury to ■the stream^ ; WoodrufE' v. North Bloomfield G. M. Co., 16 Ped. ''25; Pacific L..S. Co. v. Handley, 98*Fed. 327; Warren v. Parkhurstj 186' N. Y. 45, L.R.A. (N, 8.) 1149, 78 N. E. 579, 9 Ann. Cas. 512. But see Illinois Steel Co. v. Sohweder,' 133 Wis. 561, 14 L.R.A, (N. S.) 239, 126 Am. St. Eep. 977, 113 N. W. 51; criticised 21 Law Review, 200; -Sut a bill to enjoin the owners of a mill from floating logs over complain- ants' dam, and to recover -da'niSges for previous flbatage, which joined as defendants former owners of the § jl41] . MISJOINDER OF DEFENDANTS 797 ftlif.d^,by;|,a,|Pailr()ad, company against several ticket-scalpers to enj{^jn, .tl^eiir |S^le^ of tiCjkets,.|Wliicli, by their, tier,ms ,c6n;iId,.not,be trmsf erred, and thQ^use of ^|?;hi<;li, pould only be ae(?pmplishe,(J. by a fraud. ^' To prevent; several hackmen from congregating on the sidewalk adjacent to its,s1;ation.^* To enjoiin different , abut^ ters frqni interfering with a right of way,®^ or different riparian owners from polluting a stream.®® To enjoin different smelters from injuring the complain,ant's crops.®' The owners of s'ev^al niihes were allowed to join in a suit to restrain different assayers froti buying otre from laboi-ers employed fcy the complainants, al- though there was no concert of action among the defendants in their vaTioug' purchases.®* "Bills have been sustairied When filed: To resti^aiiii the'tax'cdllectors of different counties from levying faxes separately assessed, but part of each of which was to' be psLid to tie State, and the validity of all of which depended upofn the construction of a' single statute.®' • By a Bity to establish its claim to a tax! agkinst several of the class liable to the sacfie.''® To quiet'a title I against a number of claimants to 'laid in severalty, the- validity oi thai separate title of each of whbmidepends upon the construction of one special statute '^ or the validity or con- struction 'of the same document ''^ or proceeding.''* ■' ' ' '' ,.- ., , .■!/ >,■..,,■'; _■ r,l; ■ ,,; -. „w. mill, .was held. M.he muiUfftrio'us. 69 tTnion Pao. ^^. Go. y. MeSliaii^ Xuison y. DaviWii^ (Ten,n. Ch, 3 Dill, 303,, But see supra, §140^ A^Tp.y Z9 s! W. ,90b. 3ee Car; TOILfpiidpii, v.., Perkins, 2 Brow^ iliichaei V. Texarkana^'g^' Fed. 561^ Pari. Cas^ 652, ,, See'«4pro; §'ll6.'' ' ■ ''"'' 71 Heekm^n y, IJ;. S.., 224, TJ. .^, '' 6S Bit't'eiihan "v. touisyille & N. 4^3, 56 L. ed. 820; modifying, arid E. tlo.;'20'7 U;'S.'205, 52L.''ed. 171; afSmiing U. S. v Allen, q. C, Aj^j, Nashville, 0. & St. li. Ry.' Co. v. 179 Fed. 13, .Wjhich reversed IT. S. McConnell, '82 I'ed. 65; Illinois v., AJlen, 171 Fed. , 90^; XJ. , S^, v. Cent. E. Co. y. Gatfre^, 129 Fed. Flournoy L. S. & E. E. Co., 69 Fed. 770i; Pe'nnsylvania' Co. y. Bay, 150 886; Central PacifieE.. Co. v. Dyer, Fed.^ 770. ,■'■;•.. 1 Saw. 641 ; see Osborne v. Wisco;i- 64'Donovan v. Peanaylvania Co.; sin Cent. E. Co., 43 Fedl 824; supra, 199 v., B. 279, SO L. ed. 192. § 140. , : . , . , 85.IiOuwiUe & N. A. Co. v. Smith, 72 Gaines v. CJiew, 2 How. 619, 11 C. C. A., 128 Fed. 1. L. ed. 402; Crews V. Burehajn, 1 . 1 66 ;Wpodruff v. Nq. BlopBifield Black, 352, 17 L. ed. 91 ; Hyman vi Gravel Co!,' 16 Fed. ,25. , , - , " Wlieeler,' 33 Fed. 329 ; U. g. v. Curt- 67 Am. Smelting & Eefliiing Co. v. ner, 26 Fed. 296; TT. S. v. Eea-EeaA Goifrey, CJ.' d. A:, 158 Fed. 225, 89 Mill & Elevator Co., 171' Fed. 501. C. C. A., 139. ' But see Kansas Cit/ Southern Ey, 88Goldfield Cdns'ol. 'Mines Co. v. Co. v. Quigley, 181 Fed. 190. Eiehardson, 194 Fed. 198, reversed 78Ulman v. laeger, 67 Fed. 980. C. C. A., 202 Fed. 637. 798 INFORMATIOisrS AND BILLS IN EQUITY [§ 142 A bill is not multifarious when brought to enjoin several members of a trade union or other persons from a;cts of violence or other trespasses in furtherance of a striked* But it was held that the claimant of a large tract of land, separate parts of which were in the possession of diiferent persons claiming title in various ways, could not fenforce his rights against them all in a single bill.'"' Where the evidence did not justify a charge of combination made in the bill, it was dismissed for multifariousness upon. the hearing.''® § 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 to- gether, 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 uneon- But bills 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. 563; S. C, 34 Alt. 420; 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, Scott V. McPartland, 70 Fed. 280; to enjoin several landowners from suing plaintiff because of his alleged nuisance, Ducktown Sul- phur, etc., Co. V. Fain, 109 Tenn. 56, 70 S. W. 813. See So. Penn. Oil Co. V. Calf Creek O. & G. Co., 140 Fed. 507, and to enjoin dif- ferent persons from suing a tele- phone company in tort for removing telephones from their separate premises. Cumberland Tel. & Tel. Co. V. Williamson (Miss.), 57 So. 559; following Tribette v. Illinois Cent. E. Co., 70 Miss. 182, 19 L.E.A. 660, 35 Am. St. Eep. 642, 12 So. 32 ; overruling Whitloek v, Yazoo & Mis- sissippi Valley E. Co., 91 Miss. 779, 45 So. 861. See Harv. Law Eev., XXV, 559. 74 Oxley Stave Co. v. Coopers' Int. Union, 72 Fed. 695; Casey v. Cin- cinnati Typ. Union, 12 L.E.A. 193, 45 Fed. 135; Arthur v. Oakes, C. C. A., 25 L.E.A. 414, 4 Inters. Com. Eep. 744, 9 Am. Crim. Eep. 169, 63 Fed. 310 ; mpra, § 115 infra, §276. 75 Buchanan Co. v. Adkins, C. C. A., 175 Fed. 692. 76 Coe V. Turner, 5 Conn. 86. But see imfra, § 143. § 142. 1 Bq. Eule 26. §142] , MULTIFARIOUSNESS 799 nected grounds of equitable relief were therein joined. A bill for the foreclosure of two mortgages can now be sustained.* To create this defect under the former practice, it was requisite that the groilnds of relief should be different and that, each ground should be sufficient as stated to sustain a separate bill.' A bill was considered to be multifarious when it joined two mat- ters, where the necessary parties to the suit were the same, but their interests and attitude were decidedly at variance.* Bills were held not to be multifarious when filed: to dissolve a partnership and to partition the estate, real and personal ; ^ to set aside and cancel an insurance policy and enjoin the further prosecution of an action to recover premiums paid upon the same ; ® to compel the issue of a policy and at the same time col- lect the same ; '' to reform a written agreement on account of a mistake and enforce its performance as reformed ; * to set aside the release of a judgment and to subject an equity in land to the payment, of such judgment' by a bondholder to compel a city to apply to thdr payment the proceeds of assessments, upon which he had a lien, and also praying to enforce a general lia- bility by the city to pay the bonds ; ^° 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.'^ It has been said : ' ' That when the right of a party to specific relief is so incumbered that he cannot assert that right against another until he has removed the incumbrance, he cannot include an attempt to get rid of the incumliranee in a suit for specific relief, which he might be entitled to have, if the incumbrance 2 Elliott V. Klein, 244 Fed. 463. 7 Herbert v. Mutual Life Ins. Co., 8 Brown v. Guarantee Safe Dep. 12 Fed. 807; Brugger v. State Inc. & Tr. Co., 128 XJ. S. 403. Ins. Co., 5 Sawyer, 304, Fed. Cas. 4 See Field v. Camp, 193 Fed. 160 ; No. 2051. Wilson V. American Ice Co., 206 8 Gillespie v. Moon, 2 J. Ch. (N. Fed. 736; Crawford v. Washington Y.) 585, 7 Am. Dec. 559. Northern E. Co., 0. C A., 233 Fed. 9 Boas v. Miller, C. C. A., 252 Fed. 961. 697. B Briges v. Sperry, 95 TJ. S. 401, 10 Olmsted v. City of Superior, 155 24 L. ed. 390. I'ed. 172. 6 Eq. Life Assur. Soc. v. Patter- 11 Fidelity Tr. & Guaranty Co. v. son, 1 Fed. 126. Fowler Water Co., 113 Fed. 560. 3P0 INFORMATIONS AND BILLS IN EQUITY [§ 142 were out of the way.'M^ It was held, under the, former rules, that an equita]Dle owner of stock, whose title was contested, eouJ,d Aot;in the same suit pbtaiii the legal title, and also prot.ection of the corporate assets.^^ _ But the soundness of these decisions may be doubted, and, under the new rules, thp , doctrine, that equity having once obtained jurisdiction , will afford full relief, may be enforced. It has been held that, a bill is not multifarious wtich joins an insufficient with a good case for equitable relief, when tliere is no misjoinder of parties, and that the proper course of the defendant is to delniir tq so much of the bill as is insuffi- cient ; ^* but that a bill i^ multifarious which joins two incon- sistent Complaints 'by different plaintiffs. Under the former practice, where a cause of action arising under the laws of the United States was joined with one bf which a Federal court had no original jurisdiction, and there was no diversity of citizen- iship,' a demurrer for' ihultifariousness was" teustained." The fact that the complainants' prayed for relief ' to ' which ' th^y were not entitled, or alleged facts not material to any relief was held not to make' the bill multifarious.-^^ Since the new equity-rules, it has been held: that when the complainant prayed relief which the court, because of a lack of diversity of citizen- 12 Inman v. N. Y. Interurban v. Union Land Co., ,0. C. A., 187 W^ter Co., 131 Ped. 997, 999; quoted Fed. 886. See Brown v. Guarantee With approval, Witherliee v. Bowlea, Trust Co., 128 U. 8. 403, 32 L. ed. 142 App. Div. (N. Y.) 407; 417, 468. re-vers,ed, 201 N. Y. 427. , , ., . - IB Keasby & , Mattiapn Co. y. 13 Inman v. N. Y. Interurban PMlip Gary Mfg. Co., 113 Fed. 432 ; Water Co., 131 Fed. 997, 999; C. L'. King & Cd.''-^. Inlander, 133 Witherbee v. Bowles, 142 Ajip. Div. Fed. 416. Contra, Onondaga Indian (N. Y.) 407, 417, reversing 201 N. "Wiglwam Co. v. Ka-Noo-No Indian Y; 427 ; U. S. Steel Corporation v. Mfg. Co., 182 Fed. 832. See, also, Hodge, 64 N. J. Bq. 807,' 809, 60 L. Jaros Hygienic Underwear Oo.„ v. E.A. 742. Con-tra, 'Weber v. Waller- Fleeee Hygienic Underwear ■ Co., 60 stein. No. 1, 111 App. Div. (N. Y.) Fed. 622 ; Ball & Socket Fastener 693. See;m/ro, §145. / ' Co. v. Cohn, 90 Fed. 664; Adam v. UMcCabe v. Bellows, 1 Allen Folger, C. C. A., 120 Fed. 260;, G. (Mass.) 269; Snavely v. Harbrader, HeUetnan Brewing Co. it Independ- 29 Gratt. (Va.) 112; Everglades ent Brewing Co., C. C. A., 191 Jfedi Di'a-inage League v. Broward Drain- 489. See sni/pra, §24. . > • age Dist. 253 Fed. 246. Story's Eq. 16 Everglades Drainage League v. PI., § 288. Contra, Hastings v. Broward Drainage Dist., 253 Fed. . Douglas, 249 Fed. 378, 384; Price 246. § 143] OBJECTIONS FOR MULTIFARIOUSNESS 801 ship as to the controversy thereover, had no jurisdiction to grant, the bill should be dismissed as multifarious unless they filed a disclaimer of all right thereto.^'' Where the requisite diversity of citizenship was pleaded, such joinder might be made when the transactions were connected;^' but not, in a patent case, where the infringement was committed within the district, but neither party was a citizen or resident thereof.^* 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 2" or theatrical perforni- ance,*^ or in different States where the general method of the infringement was the same and the acts were committed pursu- ant to a common purpose by the defendant.** Where diverse citizenship exists and the jurisdictional amount is involved, the bill may join prayers to restrain the infringement of a trade mark^' or of a patent** and to restrain unfair competition. A bill may seek to restrain the infringement by the same defendant of separate patents owned by the plaintiff.** It has been held, in England, that plaintiff may not sue the defendant for the in- fringement of twenty-three patents, but that he will be limited to selecting no more than three of them for joinder of acts of in- fringement thereof in, the same suit.** The former rules con- cerning the joinder of complaints against the infringement of different patents are considered in a subsequent section.*'' § 143. Objections for multifariousness or misjoinder. An objection to a bill for multifariousness or a misjoinder of par- ties 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 17 Hastings v. Douglas, 249 Fed. tan Cordage Mills, 0. C. A., 211 Fed. 378, 384. 603. 18 Havens v. Burns, 188 Fed. 441. 24 Miller Bubber Co. v. Behrend, ISWoerheide v. H. W. Johns- C. C. A., 242 Fed. 515. ManvUle Co., 199 Fed. 535. M Elliott Co. v. Lagonda Mfg. „« . T. -^ „. -r ^ c,. r: Co., 205 Fed. 152; Eclipse Mach. 20 Amberg F. & I. Co. v. Shea, C. ^ ' „ , ^ .' ^r ^ ^ _ „ ' , Co. V. Harley Davidson Motor Co., C. A., 82 Fed. 314; Hamper v. Hoi- ^^^ ^^^ J^. ^^^^^^ Percolator man, 84 Fed. 222. ^o. v. Landers, 258 Fed. 28. 21 Empire City Amusement Co. v. z6 Saccharin Corporation v. Wild Wilton, 134 Fed. 132. (1903, C. A.), 1 Oh. 410. See Sac- 22 Bracken v. Eosenthal, 151 Fed. oharia Corporation v. White (C. A.), 136. 88 L. T. 850. 83 Samson Cordage Works v. Puri- 27 Infra, § 146. Fed. Prac. Vol. 1—51 802 INFORMATIONS AND BILLS IN EQUITY [§143 .ground.^ The rule fonnerly was that the objection should' be ra,ised by a special demurr^r.^ If not apparent upon the face of the bill, it is ; doubtful, whether it can be raised by plea or answer.* If it is shpwQby 'the bill, it can never be taken for the first time at the hearing*. or upon appeal;* but the court may, "of its own motion, dismiss a bill for multifariousness at any time ; * and perhaps the objection that the rights of the com- plaints are inconsistent can be raised at the hearing.'' In one case the court, at the hearing, required the petitioner to elect which claim it should enforce, and then dismissed the rest of the petition.* The objection cannot be taken by a defendant who is not injured by it.' The misjoinder of a defendant against whom the ^ §143.; 1 Eq. Bule. 29. 2 Nelson V. Hill, 5 How. 127, 12 L. ed. 81; Herndon v. Chicago, Rock Island & Pac. By. Co., 218 V. S. 185, 155, 54 L. ed. 970, 976. 3 Benson v. Hadfield, 4 Hare, 32 ; Greenwood v. Churchill, 1 M. & K. 559; Gibbs v. Glagett, 2 Gill & J. (Md.) 14; Putnam v. Hollander, 6 Fed. 882; Story's Eq. PI., §747; Beames on Pleas, 157, 158. But see Coe V. Turner, 5 Corni. 86. 4 Greenwood v. Churchill, 1 M. & K. 559; Oliver v. Piatt, 3 How. 333,' 412, 11 ed. 622, 658; Nelson V. HiU, 5 How. 127, 12 L. ed. 81; Bowinan 's Devisees v. Wathen, 2 McLean, 376; TJ. S. v. Reading Co., 183 Fed. 427. 5 Oliver v. Piatt, 3 How. 333, 412, 11 L. ed. 622, 658; Barney v. Latham, 103 XJ. S. 205, 215, 26 L. ed. .514, 518; Converse v. Michigan Dairy Co., 45 Ped. 18; Herndon v. (^Ificago, Rock Island .& Pac. Ry. Co., 218 U. S. 135, 54 L. ed. 970; Miller Rubber Co. v. Behrend, C. C. A., 242 Ped. 515. 6 Oliver v. Piatt, ,3 How. 333, 412, 11 L. ed! 622, 658; Nelson v. Hiil, 5 How. 127, 132, 12 L. ed.'Sl, 83; Greenwood v. Churchill, 1 M. & K. 559; Ohio v. Ellis, 10 Ohio, 456; Herndon v. Chicago, Rock Island & Pac. By. Co., 218 TJ. 8. 135, 54 L. ed. 970; Miller Rubber Co. v. Beh- rend, C. C. A., 242 Ped. 515. 7 Davies v. Quarterman, 4 . Y. & Coll. 257. 8 State Trust Co. v. Kansas City, P. & G. R. Co., 128 Ped. 129. 9 Buerk v. Imhaeuser, 8 Ped. 457 ; Metropolitan Trust Co. v. Oolum- bus, S. & H. R. Co., 93 Ped. 689; Missouri Broom Mfg. Co. v. Guy- mon, C. C. A., 115 Ped. 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 dis- missal for multifariousness at the in- stance of one of the municipalities, was not so at that of the contractor. Olds V. Regan (N. J. Oh.), 32 Atl. 827. See also Couse v. Columbia Power Mfg. Co. (N. J. Ch.), 33 Atl. 331. § 143] OBJECTIONS FOE MULTIFARIOUSNESS 803 bill states no ground for relief is not a cause fdr a demurrer by the other defendants.^" Multifariousness as to subjeijitS or par- ties does not render a decree void, so that it can be treated; as a nullity in a collateral action/^ although the case shown by the principal plaintiff is not sufflcient.^^ When a bill was held to be multifarious for uniting an insufficient cause of action with one that was good, it was held that the plaintiff should be given the right to replead,^* or to file a disclaimer of the insuffi- cient cause of action;^* and upon his failiire to do so, the dis- missal should be without prejudice.^® It is within the constitu- tional power of Congress to pass a law allowing, in a single speci- fied suit against a corporation chartered by it, matters alid de- fendants to be joined in a manner that would otherwise consti- tute multifariousness.^* The question in each instance where it arises calls for the exercise of the discretion of the court, regard being had to considerations of convenience and the substantial rights of the parties.^' Multifariousness depends so much upon the dis- cretion of the courts of first instance that a decision oyer-rul- ing an objection upon that ground would not be reviewed upon appeal,^' except under very extraordinary circumstances. When an objection for multifariousness is sustained the coihplainant will always be allowed, if he asks leave to do so, to amend upon payment of costs.^' If the bill is dismissed, the dismissal should be without prejudice.^ In general, it may be remarked that lOWarthen v. Brantley, 5 Ga. 16 XJ. S. v. Union Pacific R. Co., 571; Whitbeek v. Edgar, 2 Barb. 98 IT. S. 569; 25 L. ed. 143. ' Ch. (N. Y.) 106; MiUer v. Jamison, 17 Weir v. Bay State Gas Co., 91 9 C. E. Green (N. J.), 41 Story's Fed. 940, per Dallas, J. Eq. PL, § 544. 18 See Gaiiies v. Ohew, 2 How. 11 Hefner v. Northwestern Life 619, 11 L. ed. 402; OUverv. Piatt, Ins. Co., 123 U. S. 747^ 31 L. ed. 3 'How. 333, 11 L. ed. 622; Barney 309. V. Latham, 103 U. S. 205, 26 L. ed. 12 Walker v. Powers, 104 U. S. 514; Graves v. Ashburn, 215 IT. S. , 245, 249, 26 L. ed. 729, 731; Bracken 331, 54 L. ed. 217; Sheldon v. V. Rosenthal, 151 Fed. 136. Keokuk N. L. Packed Co., 8 Fed. 18 Price V. Union Land Co., C. 769; Hosmer v. Wyoming Ry. & C. A., 187 Fed. 886. Iron Co., 126 Fed. 884. 14 Hastings v. Bouglas, 249 Fed. 19 Walker v. Powers, 104 U. S. 378, 384. 245, 249, 26 L. ed. 729, 731? Price 16 Price V. Union Land Co., C. C. v. Coleman, 21 Fed. 357. A., 187 Fed. 886. 20 Field v. Camp, C. C. A., 201 804 INFORMATIONS ANP BILLS ■ IN EQUITY [§144 multifariousness is an objection much more often taken than sustained.*^ § 144. General rules of equity pleading. Otherwise, the rules regulating the frame of a bill and, with the exceptions subse- quently given, of other pleadings in equity are substantially the same as those of pleading at common law ; but more liberality is used in their construction,^ and the use of technical expressions is never necessary.^ The Equity Rules of 1912 provide: "Un- less otherwise prescribed by statute or these rules the technical forms of pleadings in equity are abolished. ' ' ^ When a second cause of action is founded in part upon some of the same facts set forth in the pleading of the first cause of action, it is the bet- ter practice to include them by reference.* An allegation that the plaintiff is seized in fee simple is equivalent to an allegation that he is in possession.^ If the Fed. 682; Price v. Union Land Co., C. C. A., 187 Fed. 886. 21 Quoted with approval, United Cigarette Mach. Co. v. Wright, 132 Fed. 195. §144, IDaniell's Ch. Pr. (2d Am. ed.), 413. Supra, § 137. ZDaniell's Ch. Pi. (2d Am. ed.), 414. 3 Eq. Rule 18. ^ 4 Maxwell Steel Vault Co. v. Nat. Casket Co., 205 Fed. 515. 6 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, 18S0, 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 ease 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. Nantahala M. & T. Co., 58 Fed. 485. On the foreclosure of a mortgage for default in payment of interest coupons, an allegation §jl44] GENERAL RULES OF EQUITY PLEADING 805 plaintiff claim under- la derivative title, he must show the steps by which it has eome into existence; ^ but this is not ordinarily necessary when the plaintiff prays protection to rights connected with laudj qf which he is in possession.''' Whei-e, in a suit to restrain, the diversion of the waters of a stream; the complain- ant's claimed to be prior appropriators as to a certain number of cubic inches of ; water, and to b^ entitled to additional amounts 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.^ A bill which alleged th^t the-'plaintiffs were the owners of an interest in trust funds of approximately a specific amount held by, a corporation, a receiver for which was prayed, was held to be insufficient.' "Where, however, there is an existing privity bet'^yeen the plaintiff and defendants, independently of the plain- tiff's title, ■wfhich gives the plaintiff a right to maintain the suit; as, for example, if they are landlord and tenant, or mortgagor and moi'tgagee, then it is' not necessary to state the plaintiff's title fully in the bill.^" The following allegation was held to be sufficient tq show that the person who had filed the claim had possession of the collateral: "Tour petitioners are informed and believe, and therefore ^ allege, that the said Belin or his agents, among them the First National Bank of Scrantoh, Pa., still hold said note and said collateral. Said Belin has filed his claim on said note under order of the court made in this.pro- that they are due and wholly un- v. TJrton, 67 Fed. 419. "It is not paid !' to your orator and other hold- necessary, when all the legal and ers of said bonds" was held a suffi- equitable owners are joined, to state cient allegation of ownership. Toler the formalities or the mode of con- V. East Tennessee, V. & A. Ey. Co., veyance by which the equitable in- C. C. A., 67 Fed. 168. terests became vested in the co- 6 Lord Digby \ v. Meech, Bunb. complainants. ' ' Shipf an, J., in 195; Humphreys V. Tate, 4 Iredell's Black v. Henry ©.■ Allen Co., 9_ Eq. (N. C.) 220; Marshall v. Turn- L. E. A. 433, 42 Fed. 618, 623. bujl, 34 Fed. 827; DanieU's Ch. Pr. 7 Miller & Lux v. Eickey, 127 Fed. (2d Am. ed.) 369, 870. For a case 573. upon the sufficiency of allegations « Miller & Lux v. Eickey, 127 Fed. in a bill that complainants comprise 573. all the heirs and next of kin of de- 9 Cummings v. Supreme Council of ceased, as showing complainants' Eoyal Arcanum, 247 Fed. 992. title, the bill also containing the 10 DanieU's Ch. Pr. (2d Am. ed.) decree of distribution, see Hubbard 370, 371. 806 INFORMATIONS AND BILLS IN EQUITY [§144 ceeding requiring claims against ^tna Explosives Company, Incorporated, to be so filed. "^^ Where the bill alleged that complainant delivered 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 conditions of the deposit, so as to show that it was not a mere bailment ; it was held, that the bill did not aver trust sufficient to confer jurisdiction upon a court of equity.^^ If the plaintiff's title would be incomplete without the per- formance of some preliminary act, then a performance must be alleged, and a mere statement that the title is complete was insufficient.^* It has been held : that a wife's willingness to join in her husband's conveyance need not be affirmatively shown since the law assumes her willingness to unite with him in con- veying the property which he has agreed to convey.^* In a bill filed by an executor or an administrator, it seems to be sufficient 11 Grasselli Chemical Co. v. Aetna Explosives Co., 247 Fed. 603. 12 Young V. Mercantile Trust Co., C. C. A., 145 Ted. 39; Ford v. Charles E. Blaney Amusement Co., 148 Fed. 642. 18 Walburn v. Ingilby, 1 M. & K. 61; Daniell's Ch. Pr. (2d Am. ed.) 369; infra, § 150. An allegation that the 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 ClifE. 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 transfer of the title to a share of stock; and that the bill was de- fective for not alleging such action. Walburn v. IngUby, 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. Greenwall v. Duncan, 16 Fed. 35; Wallburn v. Ingilby, 1 M. & K. 61; Atmll v. Ferrett, 2 Blatchf. C. C. 39; Chica- go Music Co. V. J. W. Butler Paper Co., 19 Fed. 78; Trow City Di- rectory Co. V. Curtin, 36 Fed. 829; Ford V. Charles E. Blaney Amuse- ment Co., 148 Fed. 642, 645. 14 Dixon V. Anderson, 0. C. A., 252 Fed. 694. § 144] GENERAL RULES OF EQUITY PLEADING 807 to state that the will has been proved, or letters of administration taken out, "in the proper court," without naming it.^* If, however, the plaintiff undertake to name the court, and it be an improper or insufficient one, the bill is demurrable.^® An allegation that the defendant is a trustee is insufficient with- out a statement of the facts which make him a trustee.*'' When the nature of the conveyance through which the plaintiff claims is such that by common law, independent of a statute, as, for example, the statute of frauds, no deed, writing, or other formality was essential to its validity, the English rule was that compliance with such formality need not be alleged.** In this respect equity followed the rule at common law, that such statu- tory regulations did not alter the form of pleadings.*® If, however, it appeared upon the face of the bill that compliance had not been made with such a formality, the bill was de- murrable upon that ground.''" But when a right has been orig- inally created by statute, as a right to land by devise, or in this country a patent or copyright, according to the former prac- tice, a compliance with the statutory requirements had to be alleged by one claiming under it.^* It has been held that an estoppel in pais must be pleaded by the party who seeks to avail IS Humphreys v. Ingledon, IP. 9 L.E.A. 433, 42 Ped. 618, 624; Wms. 752; Black v. Henry G. Al- Dauiell's Ch. Pr. (2d ed,) 264. len Co., 42 Ped. 618, 623. The aver- 17 Evan v. Avon, 29 Beav. 144. ment that the complainant was ISDaniell's CJh. Pr. (2d Am. ed.) "duly appointed administrator" 416; Harrison v. Hogg, 2 Ves. Jr. was held insufficient; the issue of 327. letters of administration must be ISDaniell's Ch. Pr. (2d Am. ed.) alleged. Otto v. Begina M. B. Co., 416; Stephen on Pleading, '313. 87 Fed. 510. Where the state stat- aOEandaU v. Howard, 2 Black, ute (Minn. R. L. 1905, §3842) 585, 589, 17 L. ed. 269, 271; Dan- authorizes a foreign guardian to sue ieU's Ch. Pr. (2d Am. ed.) 417; in the state provided he file an au- Redding v. Wilkes, 3 Brown, C. C. thenticated copy of letters in the 401. probate court in the county where ZlDanieU's Ch. Pr. (2d Am. ed.) the ward's property is situated, it 419; Sullivan v. Eedfleld, 1 Paine, was held that a bill by such a 441; Atwill y. Perrett, 2 Blatchf. C. guardian was not demurrable for C. 39; Walburn v. Ingilby, 1 M. & failure to allege the filing of such K. 61; Atwill v. Perrett, 2 Blatchf. a copy. Pulver v. Leonard, 176 Ped. C. C. 39 ; Chicago Music Co. v. J. 586. ■ W. Butler Paper Co., 19 Ped. 758; IB Tourton v. Flower, 3 P. Wms. Trow City Directory Co. v. Curtin, 869; Black v. Henry G. Allen Co., 36 Ped. 829; Pord v. Charles E. 808 INFORMATIONS AND BILLS IN EQUITY [§ himself of the same.^^ A bill to set aside a patent of pu lands must show that the patent was issued to the wrong pj through fraud, or gross mistake, or erroneous constructioi law.*^ A bill which averred a settlement, improvement, fai to post notices of claims, plaintiff's adverse possession for years, and the subsequent issue of a patent to the defend and that he claims some title, estate, and interest in the h by reason of the patent, was held to be insufficient.^* W] complainant for fraud or a mistake in fact attacks a pat issued by the Land Department, he must plead and pi the evidence before the department, show the particular : take that was made, the way in which it occurred, and fraud, if any, which induced the issue of the patent.^^ " rule in equity is that it is not sufficient to charge a fraud sim but you must charge also some injury as the result of' fraud. ' ' 2^ Where a bill shows apparent laches, it should forth the impediments to an earlier suit, the cause of the ( plainant's previous ignorance, if any, of his rights, and yi he first knew of them.^'' In construing a bill in equity, every doubt is against pleader ; ^* but contracts by corporations are presumed t( within their charters until the contrary is shown.^' "W the bill contains general and specific allegations as to the s matter, the general allegations will be referred to those w are specific.^" Exhibits attached to the bill, and therein refe: Blaney Amusement Co., 148 Fed. 545, 546; Olson v. Nor. E. Co 642, 645; infra, §§146, 150. This Fed 112. But see Robinson v. rule of equity practice is enforced urban Brick Co., C. C. A., 127 under .the English Rules of 1883. 804. Seear v. Lawson, 16 Ch. D. 621; 26 Linn v. Green, 17 Fed. 40 Read v. Brown, 22 Q. B. D. 128; 27 Badger v. Badger, 2 Wall Davis V. James, 26 Ch. D. 778. jy ^ ed. 836; Richards v. Ma 22Maybury v. Louisville & J. F. ^g^ -^j g ^gg^ 3^ -^ ^^_ ggg. q Co., 60 Fed. 645. ^ ^^^^-^ ^^2 V. S. 432, 30 I 23 Reed V St. Paul N. & M. Ey. ^Jjj^^^^^ ^ ""^'Mt, ■ ■ S. 96, 29 L. ed. 350. 24 Ibid. ' 26 Le Marchel v. Teegarden, 133 «» Phelps v. McDonald, 99 1 Fed. 826; U. S. v. Pratt C. & C. 298, 305, 25 L. ed. 473, 475. , Co., 18 Fed. 708; Murphy v. East 29 Express Co. v. Railroad C( Portland, 42 Fed. 308; Lehigh Z. & XJ. S. 191, 199, 25 L. ed. 319, 3 T n« „ -w T "7 *, T n/^ A^ "P/i/l 30 Pallia V flAlTTiaTi P..fi Ben.v. § 145] GENERAL RULES OP EQUITY PLEADING 809 to, are considered as a part of the same.^^ "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 ex- hibits with explicit reference to them in the bill, and they may be ref erre"d 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. " ^f " Good pleading requires that everything that is irfa- terial 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 ease."'^ Where thte plaintiff's title is intelligently shown, there is no need for: profert of the documents upon which it is founded.?* §145. Stockholders' bills. By the Equity Rules of 1912, ' ' Every bill brought by one or more stockholders in a corporation against the corporation arid 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 by 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. "^ This, with the exception of the last clause, is the new promtilgatioh of a former equity rule, adopted dur- ing the October term; 1881.2 Lumley v. Wabash Ry. Co., 71 Fed. SS Chameellor Ellett in Harvey v. 21; Story's Eq. PI., § 37a. Kelly, 41 Miss. 490, 93 Am. Dec. 31 Black V. Henry G. Allen Co., 9 267. L.E.A; 433, 42 Fed. 618, 625; infra, 34 La Republique Francaise v. § 366. Schultz, 57 Fed. 379. But see ivr 82 Hammond, J., in Electrolibra- fra, § 146. tion Co. V. Jackson, 53 Fed. 773, §145. 1 Eq. Rule 27. 776. But see imfra, § 146. 8 Old Eq. Rule 94. 810 INFORMATIONS AND BILLS IN EQUITY [§145 The original object of the rule was to prevent suits brought by stockholders, in collusion with the corporation, 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.' It has been extended in the lower courts so as often to defeat the rights of shareholders and shield and en- courage dishonesty by directors and officers of corporations.* -It has been held by one Circuit Ck)urt to apply to a suit removed from the courts of the State, the practice of which required no such allegations.^ 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 con- sideration, since the cause of action arose, might well be at- tacked as unconstitutional. That such a purchasing stockholder has the right to bring such a suit has been held by the courts of New Hampshire,* Illinois,' Alabama,^ Montana,* Idaho, ^^ Pennsylvania,^^ New Jersey,^^ and New York.^* The opposite 3 Hawes v. Oakland (Hawes v. Contra Costa Water Co.) 104 V. S. 450, 460, 461, 26 L. ed. 827, 832, where Mr. Justice Miller said that a stockholder could not file a bill founded upon rights which might properly be asserted by his corpo- ration against the company and • other parties, unless these facts ex- isted. See also Huntington v. Pal- mer, 104 TJ. S. 482, 26 L. ed. 833; Greenwood v. Freight Co., 105 TJ. S. 13, 26 L. ed. 961; Detroit v. Dean, 106 XI. S. 537, 27 L. ed. 300; Quincy V. Steel, 120 TJ. S. 241, 30 L. ed. 624. 4 For an extraordinary case, see Bartlett v. N. Y. N. H. & H. R. E. Co., 221 Mass. 530. B Venner v. Great Northern Ey. Co., 153 Fed. 408, affirmed on ques- tion of jurisdiction only, 209 TJ. S. 24, 52 L. ed. 666. Contra, Earle v. Seattle, L. S. & E. E. Co., 56 Fed. 909; s. c, Eaibens v. TJnion Pac. Ey. Co., 58 Fed. 497; Maeder v. Buffalo Bill's Wild West Co., 132 Fed, 380. 6 Winsor v. Bailey, 55 N. H. 218. 7 City of Chicago v. Cameron, 22 111. App. 91, affirmed 120 111. 447. 8L. & P. Oo. V. Lahey, 121 Ala. 131. 9 Forrester v. B. & M., etc., Co., 21 Mont. 544, 565. 10 Just V. Idaho Canal, etc., Co., 16 Idaho, 639, 133 Am. St. Eep. 140, 102 Pac. Eep. 381. llEafferty v. Donnelly, 197 Pa. St. 423. 12 Appleton V. Am. Malting Co., 65 N, J. Eq. 375. 13 PoUitz V. Gould, 202 N. Y. 11, 38 L.E.A.(N.S.) 988, Ann. Cas. 1912D, 1098. The argument of Judge Hiscock seems unanswerable. "As an 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 §145] stockholders' bills 811 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 en- titled to recover. And if the sub- sequent 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 correspondittg 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 buying subject to it and not be per- mitted 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, iu; 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 tranjaetion 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 action of this nature the stock- holder must in effect disaffirm the corporate transaction and that this disaffirmance involves a personal right of election which vests in the one holding the stock when the transaction is consummated and which cannot be transferred. It is said 'the right to question a fraud is not a purchasable commodity,' and is not ' capable of assignment and transfer,' and does not pass 'as an implied incident to every sale of corporate stock,' and this view seems to be supported by some of the many cases which have been 812 INFORMATIONS AND BILLS IN EQUITY [§145 position is taken by the courts of Georgia,^* Colorado,^^ New Mexieo,^^ North Carolina,^''' lowa,'^ Nebraska.'^ This doctrine does not apply to a bill by the stockLolder to enforce rights held by him in his own capacity such as to enjoin the execution or enforcement of a contract beyond the powers of the corporation,^* or a contract to which a statute requires collected 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 of the stock is a very dif- ferent proposition. ' ' The election to disaffirm a fraudulent corporate transaction be- longs to and is exercised in the right and name of the corporation and not of the stockholder. The stock- holder 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 ths 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." 14 Alexander v. Searcy, 81 Ga. 536, 12 Am. St. Eep. 337. 16 Boldenweck v. Bullis, 40 Colo. 253. 16 Rankin v. S. "W. B. & I. Co., 12 N. Mex. 54.. IV Moore v. Silver. Valley Co., 104 N. 0. 534. 18 Clark V. Am, Coal Cq., 86 ; la. 436, 17 L.B.A. 557. 19 Home Fire Ins. Co. v. Barber, 67 Neb. 644, 60 L.R.A. 927, 108 Am. St. Kep. 716. SO Fortney v. Carter, C. 0. A., 203 Fed. 454; Wester lund v. Black Bear Min. Co., C. C. A., 203 Fed. 599; Elder v. Western Min. (3o., C. C. A., 237 Fed. 966, 974. Contra, Ofen. § 145] STOCKHOLDEKS ' BILLS 813 the consent of a majority of the stockholders,^^ nor it seems to restrain the execution of a contract authorized by the other stockholders to the injury of the complainant 's rights as a stock- holder and creditor ; ®^ or to rescind a contract made by the stockholders individually for the transfer of the corporate prop- erty ^* or for the appointment of a receiver of the corporate as- sets because of insolvency.^* Nor to a bill to enforce a contract by the promoters of the company.** TJhe rule does not apply where the suit arises under the Con- stitution or laws of the United States ; ^ nor to a suit by a mortgagee,*'' or a bondholder.** Nor to a bill by a depositor on behalf of himself and the other depositors to hold the di- rectors of a bank responsible for losses caused by their mis- conduct.*® The rule applies to a suit by a stockholder to enforce a cause of action under the Anti-Trust Laws.^" It has been held that prior to the distribution of an estate, general or residuary legatees cannot bring such a suit,'* and in New York, that a suit to set aside a transfer made by a tes- tator cannot ., be brought by a legatee or next of kin when the executor opposes the relief.'* The rule when a receiver has been appointed has not yet been settled. It seems clear that in such a ease no previous application to the corporation or to the di- rector is required.'' The proper practice is for the stockholder Inv. Co. V. Lake Shore M. S. Ey. of San Diego, 89 Fed. 272; Dawson Co., C. C. A., 250 Fed. 160, 174. v. Columbia Trust Co., 197 XT. S. 21 Ibid. 178, 181, 49 L. ed, 713. But see 22 Granite Brick Co. v. Titus, C. Newby v. Oregon C. B. Co., 1 Saw- C. A., 226 Fed. 557. yer, 63; Dickinson v. Consol. Trae- 23 Old Colony Trust Co. v. Du- tion Co,, 114 Fed. 232, 245. buque, L. & Tr. Co., 89 Fed. 794. 28 Fortney v. Carter, C. C. A., 203 24iJe Cleland, 218 U. 8. 120, 54 Fed. 454. L. ed. 962 ; Adler v. Campeche La- 29 Foster v. Bank of Abingdon, 88 guna Corp., 257 Fed. 789. Fed. 604. 25 Rogers V. Penobscot Mining 30 United Copper Securities Co. v. Co. 154 Fed. 606. Amalgamated Copper Co., 244 TJ. 26 Ball V. Eutland B. Co., 93 Fed. S. 261 ; infra, § 251a. 51.1 See Smyth v. Ames, 169 IT. S. 31 Whitaker v. Whitaker Iron Co., 466, 42 L. ed. 819 ; Pollock v. Farm- 238 Fed. 980. ers' L. & Tr. Co., 157 U. S. 429, 39 32McQuade v. Perret, 223 N. Y. L. ed. 759. Contra, Corbus v. Alas- 75. ka Treadwell Gold Min. Co., 187 TJ. 33 Kelly v. Dolan. 218 Fed. 966. S. 455, 47 L. ed. 256. 970. 27 Consolidated Water Co. v. City §14 INFORMATIONS AND BILLS IN EQUITY [§ 145 to request the receiver to bring such a suit before the stock- holder's bill is filed,** and to make the receiver a party defend- ant.*^ It has been held that in case of the refusal of the receiver to sue, the stockholder cannot file such a bill without the consent of the court which appointed the receiver.*® , Such a practice however which necessitates a disclosure of the plaintiff's evi- dence and enables a court upon a summary application to sac- rifice the rights of the stockholders is not to be commended *'' When the consent of the court was obtained, it was said that a stockholder could not sue in a foreign jurisdiction unless the eaiise of action was assigned to him by the receiver.** Where a receiver of a National Bank had been appointed by the Comp- troller of Currency it was held that the stockholder must pre- viously make a demand upon the receiver, the Comptroller and the bank.*^ A N^w Tork case holds that where in the course of voluntary liquidation a liquidating committee has been ap- pointed, no demand need be made upon them.*" ' The rule does' not apply to suits brought by the stockholders of a corporation a,fter its dissolution *^ or after the institution of statutory proceedings for voluntary liquidation,*^ but the rule Elpplies where, although the charter of the corporation has ex- 34 Mnanee Co. v. S^ J. Short Line in which he did not aet as counsel, 'R. Co., 183 Fed.- 830. See Fisher where the creditors were deprived V. Andrews, 37 Hijn (N.. Y.) 176; of assets amounting to several hun- NelgOn v. Burrows, 9 Aljb. .N. C. drqd thousand dollars because the (N. Y.) 280; Cable v. Beall, 130 N. receiver before and as_ a condition C. 533. of the recommendation for his ap- 3B Kelly v. Dolan, 218 Fed. 966, pointment promised not to sue the 970. ' , directors and subsequently kept his . , 36 Swope y. Villard, 61 Fed. 417 ; word. . Kelly V. Dolan, C. C A., 233 Fed. 38 Kelly v. Dolan, C. C. A., 233 635, modi:^jng s., p., 218 Fed. 966. Fed. 635, 639, where the case was See Land Title & " Tr. . Co. v. however decided upon another point. Asphalt. Cp. of Amer., 120 Fed. See,.m/ra> § 314. 996; Qonley v. Internet., Pump Co., 39 Moss v. Goodhart, 209 Fed. 102. 2.37 Fed. 286, 289; infra, §314. 40Planten v. Nat. Nassau Bank, ,37 It is an unfortunate ,faet tjiat 174 Apjp.. Div. (N. Y.) 234, afSrm- in too' many cases the name of the iiig Gieigerioh, J., N. Y. L. J., Jan- receiver , is sjiggested directly or -in- uary 22, 1916. directly by those whose misconduct, ;>! Lafayette Co. v. Neely, 21 Fed. fj:aiidu}e3|it ' \ / ! 108 Collins V. Penn- Wyoming Cop- 97 Church V. Citizens' St. E. Co., p^^ ^o., 203 Fed. 726. 78 Fed. 526. 104 Ibid. 98 Howard v. National Telephone 105 Edwards v. Mercantile Trust Co., 182 Fed. 215. Co., 124 Fed. 381, 391; Citizens' 99 Granite Brick Co. v. Titus, C. C. Sav. & Tr. Co. v. Illinois Cent. E. A., 226 Fed. 557, 561, 564. Co., C. C. A., 182 Fed. 607. 100 Inman v. New York Interurban §145] stockholders' BILLS 827 It has been said that the maxim that he who seeks equity must come with clean hands ^"^ does not apply to such a suit unless it would have been applicable to a suit by the corporation.^"'' It has been held that where the cause of action is one which the corporation might enforce at common law, the statute of limitations applicable to such suits at common law must be ap- plied thereto.^"* A delay of twelve years to recover for injuries ftom the negligence of the directors was held to be such laches as to prevent recovery,*"® but when the transaction sought to be set aside had been concealed, it was held that there could be no laches by delay before its discovery.^i" A stockholder who had failed to intervene in a former stockholders' bill of which he had knowledge was held to be bound by the judgment therein ren- dered.*** The suit must be brought in equity, even when it is brought to recover damages for an injury through violations of the Anti-Trust Laws.*** Unless a receiver has been appointed, the corporation is an indispensable party to the suit.**' When the joinder of some of the directors would oust the jurisdiction, they are not indispensable parties, although the bill seeks relief becaiise of transactions in which they took part with other direc- tors who are made defendants.*** In a stockholder's suit, a cor- poration, if it is not alleged to be under the control of the defendant or to resist the felief sought should be aligned as a complainant for the purpose of ascertaining the diversity of citizenship which determines the jurisdiction.**^ In a stock- holder'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 con- troversy that they are, for the purpose of determining the juris- 106 Supra, § 79b. **2 United Copper Securities Co. v. 107 Luther v. Garnsey, N. Y. Sut). Amalgamated Copper Co., 244 TJ. S. Ct. Sp. Tm., N. Y. L. J. Feb. 28, 261. See Kelly v. Dolan, C. C. A., 1914-. 233 Fed. 635. 108 KeUy V. Dolan, C. C. A., 233 US Porter v. Sabin, 149 TJ. S. 473, Fed. 635. 37 L. ed. 815, supra, § 120. 109 Kelly V. Dolan, C. C. A., 233 114 Krouse v. Brevard Tannin Co., Fed. 635. C. C. A., 249 Fed. 558. 110 Elder v. Western Min. Co., C. HB Iron Moulders ' Union v. Niles- C. A., 237 Fed. 966. Bement-Pond Co., C. C. A., 258 Fed. 111 Dana v. Morgan, 219 Fed. 313. 408, reversing 246 Fed. 851. See See supra, S 114-116, infra, § 186. § 41 sv,pra. 828 INFORMATIONS AND BILLS IN EQUITY [§145. diction.!'® In one to prevent the majority of the stockholders from causing the deportation to act in fraud' of the minority, the corporation is to be a:ligned on the same side as the majority stockholders. '!''' It has been held: that in a stockholders 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.''' Where the controversy for the control of the corporation transcends 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 members of the board."® In such a case, it has been held that trustees of the corporation, although in sympathy with the complainant should be aligned with the defendant;'*" In a stockholder's suit to recover assets of a corporation it was held that a statutory 116 Doctor V. Harrington, 196 U. 5 579, 49 L. ed. 606, overruling a number of decisions of the lower courts to the contrary. Hyams v. Calumet & Hecla Min. Co., 221 Fed. 529; Whitaker v. Whitaker Iron Co., 238 Fed. 980 ; Cutting v. Woodward, C. C. A., 255 Fed. 632. See Woolsey V. bodge Fed. Cas. No. 18,032, 6 McLean, 142; s. C, as Dodge v. Woolsey, 18 How. 331, 15 L. ed. 401; De Neufville v. New York & N. E. Co., C. C. A., 81 Fed. 10; MacGin- niss V. Boston & M. Consol. Copper 6 Silver Min Co., 119 Fed. 96, 55 0. C. A. 648; Eedfield v. Baltimore & O. E. E. Co., 124 Fed. 929; Mills v. City of Chicago, 127 Fed. 731; Groel v. United Electric Co. of New Jer- sey, 132 Fed. 252; Howard v. Nat. Telephone Co., 182 Fed. 215; Craw- ford V. Seattle, E. & S, Ey. Co., 198 Fed. 920. Before the deeision of Doctor V. Harrington, 196 IT. S. 579, 49 L. ed. 606, it was held: that where a stockholder's bill did not conform to the requirement of the : equity rules, by showing efforts ma^e to secure action by the stock- holders, or an excuse for such fail- ure, the corporation must be aligned with the complainants. Waller v. Color, 125 Fed. 821. 117 De Neufville v. New York & N. Ey. Co., C. C. A., 81 Fed. 10; Eedfield v. Baltimore & O. E. Co., 124 Fed. 929 ; Elkins v. Chicago, 119 Fed. 957. 118 Waller v. Color, 125 Fed. 821; Groel V. United El. Co., 132 Fed. 252. These cases were decided before Doctor V. Harrington, 196 U. S. 579, 49 L. ed. 606. A similar ruling has been made since that decision. Gage V. Eiverside Trust Co., 156 Fed. 1002, 1007. 119 Helm V. Zareeor, 222 U. S. 32, 56 L. ed. 77. But see Stephens V. Smartt, 172 Fed. 466. 120 Kelly V. Dolan, 218 Fed. 966. §145] STOCKHOLDERS' BILLS 829 receiver who had been made a defendant was on the plaintiff's side of the controversy.^*^ It has been said: that where a small minority of the stock- holders have been injured by a sale, it will not always be rescinded ; but that the court may direct a valuation of the complainants' stock and the payment to them of the same under such a penalty as will give fhem ample security.^** A statute which provides that stockholders who do not consent to a sale or consolidation shall be paid the value of their shares does not afford an adequate remedy at law which will prevent a dissentient from enjoining such a consolidation or sale in violation of the statutory requirements. ^^^ Where an injunc- tion is denied, the court may retain jurisdiction to grant any equitable relief to which the complainants may appear to be entitled after the effect of the consolidation is known.^*** In a stockholders' suit to recover property fraudulently transferred, to wind up the affairs of a corporation and to distribute its funds among all the stockholders, the creditors must be given an oppor- tunity to come in and enforce their claim against these funds.*** Where, pending a stockholder's suit against the company and the other stockholders, the latter paid into court a sum of money to abide its order and satisfy the complainant's demand, he was allowed to recover the entire amount after the reduction of costs.*** The stockholder's bill to enforce a cause of action owned by his corporation is for the benefit of the corporation and not for the benefit of the stockholders. Ordinarily no relief will be granted which would not be for the benefit of the cor- poration.**'' Where a majority of the stockholders have author- ized a sale of the assets to a new company in which they received shares, but the minority do not; the burden of proving that the purchase price was the value of the property rests upon 181 Sharpe v. Bonham, 224 U. S. 188 In re Dennett, 221 Fed. 350. 241, L. ed. 747. l86Beltz v. Great Western Lead 128Binney v. Cumberland Ely Mfg. Co., 251 Fed. 696. Copper Co., 183 Fed. 650, 653. 127 Collins v. Penn- Wyoming Cop- 183 General Inv. Co. v. Ii. S. & per Co.; Continental & Commercial M. S. Ry. Co., C. C. A., 250 Fed. Trust & Savings Bank v. same, 203 160. Fed. 726. 124 Simon Borg & Co. v. New Or- leans City R. Co., 244 Fed. 617. 830 INFORMATIONS AND BILLS IN EQUITY [§ 146 them.128 In other eases, when the dissenter who files the bill does not offer to bid more for the assets than was paid at the sale which he seeks to set aside; the court may direct that the property be sold at public sale, no bid to be accepted for less than what has been already paid.^^® Where the property has become so confused with the property of the vendee that it is practically impossible to place matters in statu quo, the court may declare the vendee a trustee and impress a lien upon the property for the benefit of unpaid stockholders and creditors.^^" A statute, which provides compensation to be paid to a stock- holder who refuses to join in a consolidation, refers to one. authorized by law and affords no adequate remedy to a stock- holder who seeks to enjoin an illegal consolidation. ^^^ When a stockholder sued to enjoin a consolidation, it was held that he was entitled to an accounting of all the earnings from the assets of his company made by the corporation into which it had been consolidated. ^^2 In certain cases, where a small minority of stockholders have been injured by a fraud the sale will not always be rescinded; but the court may direct a valuation of the complainant's stock and the payment of this amount to them under such a penalty as will give them ample security.^^' This will not be done where such a valuation is impracticable.^^* When the contract attacked transferred the assets directly or indirectly to a new company in which the complainants were given no interest, the court may award to them such interest in the stock of the new company as would give them full compensation.^^* § 146. Bills to enjoin the infringement of patents. Accord- ing to the rules of pleading which were in force before the adoption of the equity rules of 1912: a bill to restrain the 128 Stebbins v. Michigan Wheel- 133 Binney v. Cumberland Ely- barrow & Truck Co., C. G. A., 212 Copper Co., 183 Ted. 650, 653. See Fed. 19. Jones v. Missouri-Edison Electric 129 Geddes v. Anaconda Copper Co., C. C. A., 203 Fed. 945. Mining Co., 222 Fed. 120. 134 Jones v. Missouri Edison El. 130 Be Dennett, 221 Fed. 350. Co., C. C. A., 203 Fed. 945. 181 General Inv. Co. v. Lake Shore 136 Bogert v. Southern Pac. Co., & M. S. Ey. Co., C. C. A., 250 Fed. 250 TJ. S. 488. 160. 132 Miller v. Chicago & A. E. Co., C. C. A., 204 Fed. 436. § 146] PATENT CASES 831 infringement of a patent must allege: that the complainant or the person through whom he claims was the inventor or dis- coverer of the thing or process patented ; ^ that it has not been previously patented, nor described in any printed publication;* in this or in any foreign country ; ' nor patented in any foreign country in the twelve months, or in the case of a design patent, in the four months, prior to the application ; * that it was not in public use nor on sale for more than two years before the application.^ It must show that the patent was duly issued ; * that the plaintiff has and had, at the time when the bill was filed,' a title to the patent, or such an interest in the same as gives him the right to the protection from the court ; * and that the § 146. 1 Sullivan v. Eedfield, 1 Paine, 441; Am. Graphophone Co. V. Nat. Phonograph Co., 127 Fed. 349. For a precedent of a bill for the infringement by the original patentee, see McCoy v. Nelson, 121 IT. S. 484, 30 L. ed. 1017. An allegation in a bill for in- fringement that a person named was ' ' within the meaning of the statutes of the United State's then in force the inventor" of the patented proe»^ ess, while informal, is equivalent to an allegation that he was the original and first inventor or discoverer. Sehaum & tJhlinger, Inc., v. Copley- Plaza Operating Co., 243 Fed. 924. See § 29, supra,. § 277, infra. 2 Hutton V. Star S. S. Co., 60 Fed. 747; Diamond Match Co. v. Ohio W. Co., 80 Fed. 117; Goebel v. Am. By. Supply Co., 55 Fed. 825; Rub- ber T. W. Co. V. Davis, 100 Fed. 85; Am. Graphophone Co. v. Nat. Phonograph Co., 127 Fed. 349 ; Bay- ley & Sons V. Braunstein Bros. Co., 237 Fed. 671. 8 Moss V. McConway Torley Co., 144 Fed. 128; Elliott & Hatch Book Typewriter Co. v. Fisher Typewriter Co., 109 Fed. 330, 331; Bayley & Sons V. Braunstein Bros.- Co., 237 Fed. 671. 4U. S.-R. S. §4887, as amended, 29 St. at L. 693, 32 St. at L. 1225, Comp. St. 9431; Moss v. McConway Torley Co., 144 Fed. 128; Victor Talking Mach. Co. v. Leeds & Catlin Co., 165 Fed. 931; Elliott & Hateji Book Typewriter Co. v. Fisher Typewriter Co., 109 Fed. 330. 5 Blessing v. John Traeger S. C. Works, 34 Fed. 753; Krick v. Jan- sen, 52 Fed. 823; Am. Graphophone Co. V. Nat. 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; Bayley & Sons v. Braunstein Bros. Co., 237 Fed. 671. 6 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 insuflcient. Vant Woud Rubber Co. V. Sternau, 145 Fed. 197. 7 Krick V. Jansen, 52 Fed. 823. But see Arrott v. Standard Mfg. Co., 113 Fed. 1014. 8 Krick v. Jansen, 52 Fed. 823; 832 INFORMATIONS AND BILLS IN EQUITY [§146 defendant has infringed, and still infringes, the patent;® or threatens to infringe the same.^" "When the bill alleges: that a patent was issued, it is unnecessary to allege that an application was made. The filing of the application in due form com- mensurate with the grant is presumed from the issue of the patent. ^1 When, to meet a defense of prior public use, the plaintiff relied upon a former application which had been aban- doned, it was said that the date and facts concerning the same should have been pleaded in the bill.^^ It is the safer practice still to comply with these rules of pleading. ^^ It has been held, however, that an allegation that the patentee has complied with all of the requirements of the statutes of the United States obviates the necessity of specifically pleading a compliance with each of such requirements. i* It has also been held, that when the bill sets forth the issue of certain properly described letters patent to a person named as inventor, there is no need of alleging: that the invention was new, novel or useful; that the patentee was the first and true inventor thereof; that it was not patented nor described in any Am. Graphophone Co. v. Nat. Pho- nograph Co., 127 Fed. 349. It has been held insuflScient to aver sim- ply the issue to complainant of the patent and that the letters-patent are in his possession. Lettelier v. Mann, 79 Fed. 81. But see Arrott V. Standard Mfg. Co., 113 Fed. 1014. When a bill 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 had 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 By. Co. V. City of N. Y., 42 Fed. 60. 9 Western El. Instrument Co. v. Valee Bros. El. Co., 145 Fed. 534. 10 Bowers v. Bucyrus Co., 132 Fed. 39. 11 Bowers v. Bueyrus Co., .132 Fed. 39 ; Maxwell Steel Vault Co. v. Nat. Casket Co., 205 Fed. 515, 525. 12 Corrington v. Westinghouse Air Brake Co., C. C. A.^ 178 Fed. 711. IS Schaum & Uhlinger, Inc., v. Copley Plaza Operating Co., 243 Fed. 924; Maxwell Steel Vault Co. v. Nat. Casket Co., 205 Fed. 515; Bay- ley & Sons V. Braunstein Bros. Co., 237 Fed. 671. But see Zenith Car- bureter Co. V. Stromberg Motor De- vices Co., 205 Fed. 128. 14 Zenith Carbureter Co. v. Strom- berg Motor Devices Co., 205 Fed. 128; General Bakelite Co. v. Nikolas, 207 Fed.. Ill, 114. §146] PATENT CASES 833 printed publication in this or any foreign country before Ms invention aiid discovery thereof, since such matters are presumed and inferred from the issue of the patent." The bill must also contain a substantial description of the patent or else set out the patent itself, or have the same annexed as an exhibit.^* Profert of the patent will, however, suffice,^'' and will supply any deficiencies concerning its contents or signature which therein appear.'* In such a case, only its title need be set forth.'* It is insufficient to allege: "as by the said letters patent and Specifications, all in due form of law, ready in court to be pro- duced, will fully appear; "20 but it is the safer practice also to state the number of the patent, and the volume and page of its 16 Maxwell Steel Vault Co. v. Nat. Casket Co., 205 Fed. 515, 524. 16 Stirrat v. Excelsior Mfg. Co., 44 Ted. i42. l7Wader V. McCormaek, 2 Blatehf. 31; McMillin v. St. Louis & Miss. Valley Transportation Co., 18 Fed. 260; Dickerson v. Green, 53 Fed. 247; Bogart v. Hinds, 25 Fed. 484; Hildreth v. Bee Candy Mfg. Co., 162 Fed. 40; Fichtel v. Barthel, 173 Fed. 489. "The de- murrer says that the biU should make 'profert' of the letters patent, and the plaintiff replies the 'profert' is unknown to equity pleadings. Teehnieally 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 Eleetrolibration Co. V. Jackson, 52 Fed. 773, 776. It has been held to be sufficient allegation for the plaintiff to allege that he "was the true, original and first inventor of a Fed. Prac. Vol. 1—53 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 lietters-patent annexed, accompanied by certain drawing refered 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. 260. See supra, § 136, infra, § 366. 18 Fichtel V. Barthel, 173 Fed. 489. 19 McMillin v. St. Louis & Miss. Valley Transportation Co., 18 Fed. 260. See Diekerson v. Greene, 53 Fed. 247. 20 Wilder v. McCormiek, 2 Blatehf. 31; Dickerson v. Greene, 53 Fed. 247; Bogart v. Hinds, 25 Fed. 484. See infra, § 366. 834 INFORMATIONS AND BILLS IN EQUITY [§ 14tj record in the patent office;** together with its title. An allega- tion of the date; without profert, is insufficient.?'' It has been held: that the mention, in a bill, of prior patents to the same pateiitee, does not amount to a profert of such patents, so as to bring them before the court for consideration on a demurrer.** In case of a profert, the document thus offered may be retained in the ciistody of the pleader until the hearing.** Under the practice in the Second Circuit, complainant in a suit for infringement may declare on the patent generally and postpone the statement of the particular claims relied on until the taking of the testimony begins.** If the patent is not. set forth at length nor profert thereof made, it, is the safer practice to allege, that it was issued in the name of the i United: States under the seal of the patent office or that it was signed by the Commissioner.*® 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.*'' The bill must show the, plaintiff 's. title to theipajtent when he was not the original patentee.** An averment that the patent was "by various mesne assignments duly assigned" to complain- ants without specifying such assignnieiits was held to be insuffi- cient.*® Where a bill by the assignee of a patent seeks damages and profits for past infringement, lit must state the date of the assignment, and that the right of recovery for past damages and profits was included therein.*" Where the bill alleged that the patent was issued to a different person from the applicant as assignee, it "was held that it might be presumed that an assign- 21 Electrolibration Co. v; Jackson, 27 Dver v. Cryder, 153 Fed. 767. 52 Fed. 773, 776. See Welsbach L. 28 Sehaum & Uhlinger, Inc., v. Ca. V. Eex I. L. Co., 87 Fed. 477. Copley-Plaza Operating Co., 24S Fed. 22 Ibid. 924; Zenith Carbureter Co. V. Strom- 23 Bowers v Bucyrus Co., 132 Fed. berg Motor Devices Co., 205 Fed. 39. ; ■ 158. . 24 Germain V. Wilgus, C. C. A., 29 Sehaum & XJhlinger, Inc., v. 67 Fed. 597. ' Copley-Plaza Operating Co., 243 25 General El. Co. v. Am. Brass & Fed. 924. Copper Co., 209 Fed. 237. SOVant Woud Eubber Co. v. 28 Sehaum & Uhliliger v. Copley- Sterniaii, 145 Fed. 197. ; Plaza Operating Co., 243 Fed. 924. < • See supra note 10. §146] PATENT CASES 835 . ment sufficient to pass title was before the Patent Office.*^ The complainant need not state in his bill the date of the invention.^^ The bill must also show an infringement of the patent.** It has been held that a simple averment that the defendant has infringed the patent above described is sufficient.'* An allegation that ' ' the defendant has manufactured and offered for sale Varnish embodying the inventions" was held to be insufficient.**" When the defendant is a licensee, the bill must M Sehaiim & TJWingerj Ine., v. C3apWy-PJaza Operating Go.^ 243 Fed. 924. ,.,. ,,,, 38 Toad V. Whitaker, 217 Fed. 319. 38 Zenith Carbureter Co. v. Strom- berg Motor DeVibes Co., 205 Fed. 158; Gen. Bakelite Co. v. Nikolasy 207 Fed. Ill, 34 Am. Bell Tel. Cp. . v. Sou. l^el. Co., 34 Fed', SOS; ^ielitel v. fear- thel, 173"ted. '489. See alSo Mc- Millln V. St. Louis & M. V. Tr. Co., IS Fed, 260; McCoy v. Nelson,. 121 IT. S. 484, 30 L. ed- 1017; Cleve- land F. & B. Co. V. Xj. S. Eoll- iiig S. Co., 41 ' Fed. 476 ; Peters V. Chicago Biscuit Co., 142 Fed. 779. See Thomson-Houston El. Co. V. Electrose Mfg. Co., 15 Fed. 543. But see Am. S. L. B. Co. V. Empire ,S. , N. Co., 50. Fed. 929. It is enough to aver: "that the defendant is now construotiag, using, and selling steam-power cap- stans for vessels in some parts thereof, substantially the same in eonstructiou and. operation as in the said Jettets-pateuit mentioned." MpMillin . v. St. Louis & Missis- 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 gaod 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 naUs einbracing the improvement set forth and claimed in the aforesaid letters; 2)atent, " was held demurrable as not containing sufficient averment of infringement^ Am. S. L. B. Co. v. Empii-e S.i N. Co., 50 Fed. 929. It has been held that in a suit against two or more for the in- fringement of a patent, a general allegation of infringement is sufS^ cieut 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. Gw- tra, Shickle v. Foundry Co., 22 Fed. 105; Fitchel v. Barthel, 173 Fed. 489i A bill to enjoin the infringe- ment of a patent by the use of a machine need not state what articles the defendant has made by the use of the machine. Fischer v. Hayes, 6 Fed. 76, 78. An allegation that the defendant "since tlie date of said patent" had infringed was held upon demurrer not to signify, fever since, ' ' but ' ' after or subsequently 836 INFORMATIONS AND BILLS IN EQUITY [§ 146 show clearly whether the suit is for an infringement of a patent, or for damages for the breach of a contract in relation to a patent.'* In sUch a case where three causes of action for infringement are set forth because the ruling of damage might differ, each must be complete and unequivocal.^® The Revised Statutes provide: "Whenever, through inad- vertence, accident, or mistake, and without any willful dpfault or intent to defraud or mislead the public, a patentee has, in his specification, claimed to be the original and first inventor or discoverer of any material or substantial part of the thing patented, of which he was not the original and first inventor or discoverer, every such patentee, his executors, administrators, and assigns, whether of the whole or any sectional interest in the patent, may maintain a suit at law or in equity, for the infringe- ment of any part thereof, which was bona fide his own, if it' is a material and substantial part of the thing patented, and defi- nitely 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 ren- dered for the plaintiff no costs shall be recovered unless the to" that date. Brush EI. Co. v. Ball metz P; M. Co. v. Brown F. M. Co., EI. Light Co., 43 Eed. 899. Where 46 Fed. 72. It has been held: that the bill alleged infringement subse- where a bill charges the infringe- quent to the date of the patent ment of a patent generally, it may and more than six years before the be construed as charging' the in- filing of the bill, it was held not to fringement of all the claims and be defective because it failed to al- that the complainant cannot be re- lege such infringement had con- quired to amend by specifying the tinued. Pitchel v. Barthel, 173 Fed. claims, with respect to which the 489, 491. A bill which alleged that infringement is claimed, and the a complainant had obtained a cer- parts of defendant's machine or tain patent, that the defendant had structure, which are claimed to obtained patents of a later date infringe. Morton Tr. Co. v. Am. which interfered with complainant's Cai' & Foundry Co., C. C. A., 129 rights, and that defendant is mak- Fed. 916. ing and selliiig machines under his 34a Grenerail Bakelite Co.' v. Niko- patents, and has in other ways dis- las, 207 Fed. 111. turbed complainant in the use and SB Sehrade v. Calnillus Co., 242 enjoyment of the rights granted Fed. 523. by his patent, was held to charge 36 Ibid, interference suflSciently. Stone- § 14&] PATENT CASES : 837 proper disclaimer has been entered at the Patent-iOffice 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." *'' It has been held that when one of the claims under a patent has been held to be void, a disclaimer , pf Jhe same must be filed befpre the final decree in an infringement suit.'* Where in a previous suit for infringe- ment, so much p£ the bill as related to a , claim, was dismissed without any decision upon the validity thereof it was held that in a later siiit where such claim was not involved a diselaim,pr need not be filed.'' "Where the complainants sued as joint owners of a patent and as such prayed for an accounting, adding thereto the prayer for general relief, it was held that profits due to a single one of them, as exclusive licensee for a certain territory, could not be recovered in the absence of an averment concerning his license in the bill.*" But the better practice is not to require a disclaimer until the entry of the final decree after any account- ing that may be ordered has been terminated, in order that the complainant may have the right to have so much of the adjudica- tion'as is against him reviewed upon appeal.*^ A disclaimer filed 107 days after a decision of the Supreme Court adjudging the claims therein described to be invalid and which confirmed to the language of the decision was held to be timely and sufiieieilt.*' Where damages for an infringement are prayed, the biU must show that notice tc the public was given by the plaintiff, by affixing the word "patented," together with the day and year the patent was granted, upon 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 could not, be done, by affixing to it, or to the lenclosing 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 vend the atticle so patented.*' Such notice is not Essential where the plaintiff ,, 37 U. S. E. S., §*922, 5 Fed. St. Co. v; Bredin, C. C. A., 186 Fed. Ann. 598, Pierce's Fed. Code 490. (1910), p. 1652,_§8789. 41 Page Mach. Co. v. Dow, Jones SSSuddard v. Am. Motor Co., 163 ■& Co., C. C. A., 168 Fed. 703. Fed. 852. '42 Minerals Separation v. Butte & 39 Todd Protectograph Co. v. New Superior Min. Co., 245 Fed. 577. Era Mfg." Co., 236 Fed. 768. 43 IT. S. R.-S., §4900. Sprague 40 National Metal Weather Strip v. Biamhall-Deane Co.. 133' Fed 838 INFORMATIONS AND BILLS IN EQUITY [§'146 seeks an injunction without 'any* demand for profits or dam- ages; ** and without such marking or any' allegations concerning the same, an accounting may be decreed because of infringements committed after the filing of the bill.** The Revised Statutes provide: ; ''Any person who' has an interest in an invention or discovery, whether as inventor, dis- coverer, or assignee, for which a patent #as Ordered to issue upon the paymerit of the final fee, but who fails to make pay- ment thereof within six months from the time at which it was passed arid allowed, and ri6tice thereof was sent to the applicant or his agent, shall halve iai Hght to make' an application for, a patent for such invention ()v discovery the same as in the case of an original application. !^ut such second application must be made within two years afier the allowance of the original application. But no person .shall J^e^ held,jpesponsi]jle in damages for the manufacture or use of any article or. thing for which a patent was ordered to, issue, pndersucli irenewe^ application prior to the issue pf. the patep^t.^ .(.And upon the hearing of re- newed applications preferrq4, under this seej^W, abaii,donment shall be considered as a question lof fact.?', *^ i .; This does not prevent damages for i§i:(bsequent use nor an injunction in case of the sanie.*''. The history of the invention, and a description of patents issued to the complainant before (that sued upon, were ? held to 738; Streat v. Finch, Young & Mc- .prov-ing the .date;., and that , wlie;!? Conville, 154 Fed. 378; G. Heileman that question was ,iiO;t ( adj.udieated Brewing Co. V. Independent Brewing ' by an interlocutory decree finding Co., C. C. A., 191 Fed. 491. Gibson' infringement and directing an ac- V, Ameriean Graphophone Co., C. C. counting, the date must be proved A., 234 Fed. 633. Where the bill ad- before the Master to afford • any mitted that : the comjSlg,inant: had basis, for an accounting. Lorain Steel made and sold the patented articles, C, v. ,N. Y. Switch & Crossing Co., without alleging compliance with the 153 Fed. 205. statutory requirement concerning 44 Morton Tr. Co. v. Am. Car. & marking the same; but alleged that Foundry Go., 161 Fed. 546. defendant continued to infringe 45 Maimen v. Union Special Mach. after due noticie, and omitted to Co., C. C. A., 165 Fed. 440. give the date of such notieej it was 48 IT. S. B. S. § 4897, Comp..' St. held: that an admiission by the de- §9443. . ', ' ' fendaiit of notice did not relieve 4? Detroit Iron & Steel Co. v complainant from the burden of Carey, C. C. A., 236Fed. 924, §146J PATISNT, : CASES , 839 b^ proper avei-ments.*? .So, were; the grant of foreign, patents for ^ the same iny^tion. and, acquiescence therein in this and other countries.*' It was also held proper to describe previous litigation, '.over the sajn.e or : similar patents.^** The bill need n5it[ allege that the invention, had not been abandoned before the grant of the patent. '•' , .:: . ^ It was held at circuit that in a, billj founded upon a reissued patent it is not necessary to ; aver .specifically the ground upon which the original patent was surrendered;*^ but if such a bill shows a delay of more than two years in the application for the reissue ; ^' or in the .patent office,** it must allege sufficient excuse for the delay. Where the bill shows such a relation between the defendants 48Stea,i?i G. & L. Co. V. .MfiEob eKtg, 26 Ye^^. 765. 49 Peters y., Chicago Biscuit Co., 142 Fed. 779. See feayiey ii Sons V. Blrariberg, C. C. A., 254 Fed.' 696, 80 Steam G. & L. Co.! v.MoEoberts, 26 Fed; 765 ;' Am. Bell Tel;,Co.,v. So. Tel. Co., 34 Fed. 803. But see Western El. Co. v. WiUiams-AbJjott El. Co., 83 Fed 842. '" ' BlFichtel V. Balrthel, 173 Ffed. 489. : , 68 Spaeth V.' Bkrney, 22, Fed. 828. Upon a demurrer for both uncer- tainty and want of equity to a bUl founded upon a reissued patentj when, the only allegatiousi 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- patent to the Commissioner of Patents, and having made due ap- plication therefor, and having in all things complied with thQ acts t)f Congress in such ease made and priovid^d, did, on the eighteenth- ,of February, 1879, obtain new letters- patent, being reissued letters-pat- ent, for the same invention for the residue of said term, and which I were njarked 'reissue. No. 8,590,' and were issued in due form of law to your orator, as assignee, under the seal of the patent oflBlce of i the United States, signed by the Secretary of , the Interior and countersigned t>y the Commis- sioner of Patents, and hearing date the day and year aforesaid, as by the last ineitioned reissued let- ters-patent, ready here in court to be produced, will appear;" it was held that the bUl 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 pf letters-patent by the Commis- sioner is prima fade evidence that such reissue is founded on sufficient ea,use, 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. 63 WoUensak v. Beiher, 115' U. S. 96, 29 L. ed. 350; Thermos Bottle Co. V. Semple, 222 Fed. 942. 54Gandy,v. Marble, 122 U. S. 432, 3Q L. ed. 1223. 840' INFORMATIONS AND BILLS IN EQUITY [§146 and the patentees as to estop the former from denying the valid- ity of the patent, a specific allegation of such estoppel is not necessary.*^ The objection, that a bill for infringement does not show upon which of the claims of the patent complainant relies, is not a ground for dismissing the bill, but should be raised by a motion to require the complainant to specify such claims.^* When there is no other ground for equitable relief, the court of equity has no jurisdiction of a suit upon a contract for royalties,^'' nor for an accounting by an infringement of a patent.^^ Consequently, after the expiration of a patent, when an injunction can no longer be granted against further infringe- ments, a bill for an accounting by an infringer will not be sus- tained.^* 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 t!here exists.^" Where a bill filed after the expiration of the patent *^,or within a few days before ®^ shows that during the six years immediately preceding complainant had not made^ used or sold the patented invention ilor sustained any actual damage thereto, from the in- fringement of the invention by others; it has been held that the complainant could only recover nominal damages at law which. was an, inadequate, remedy and that he might consequently sue in equity for an accounting of the profits made by the defendanti A bill praying an injunction and an accounting, filed only a few 65 caimax Lock & Ventilator Co. Patents Co. v. Centaur Film Co., 217 V. Ajax Hardware Mfg. Co., 192 Fed. 247. Root v. Railway Co., 105 Fed. 126. TJ. S. 189, 26 L. ed. 975; Clark v. B6 Marconi Wireless Tel. Co. v. Wooster, 119 U. S. 322, 325, 30 L. New England Nev. Co., 191 Fed. ed. 392, 393; N. Y, Belting &Paek- 194. ing Co. V. Magowan, 27 Fed.' Ill; 6'' Safford v. Ensign Mfg. Co., C. American D. R. B. Co. v. Rutland C. A., 120 Fed. 480; Allen v. Coft- Marble Co., 2 Fed. 356; American D. sol. Fruit Jar Co., 145 Fed. 948, R. B. Co. v. Sheldon, 1 Fed. 870; where the cancellation of patents Crossley v. Derby Gas Light Co., 4 was also prayfed. L- J. Ch. (N.S.) 25. But see West- 68 Root V. Railway Co., 105 TJ. S. inghouse v. Carpenter, 43 Fed.' 894, 189, 26 L. ed. 975; Brooks V. Miller, and im/ra, § 277. 28 Fed. 615, 617. *1 Tompkins v. St. Regis Co., C. 69 Ibid. C. A., 236 Fed. 221. 60 New Jersey Patent Co. v. Mar- 82 Tompkins v. International Pa- tin, 172 Fed. 760; Motion Picture per Co., C. C. A., 183 Fed. 773. §146] PATENT CASES 841 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 patent.®* . It has been so held of bills filed four months and five days,®* between two and three months,®^ ' ' a few weeks, ' ' ®® f orty- eight daySj^' fifteen days^®* two days,®® before the patent's ex- piration; or even one day before, when the bill alleged thatj3om- plainant had not used its patent and had sustained no actual damages by the infringement; although it did not appear that any motion for a preliminary injunction was made.™ On the other hand, bills were dismissed when no applications for pre- liminary injunctions were made and the suits were begun within two months,'* twenty-nine days,'^ twenty-two days,'* fourteen days,'* thirteen days,'* eleven days, '* ten days," and five days,'® respectively, before the expiration of the patent. The fact that, under the practice of the court requiring a certain notic6, no esBeedle v. Bennett, 122 XT. S. 71, 30 L. ed. 1074; Clark v. "Woost- er, 119 U. S. 322, 324, 30 L. ed. 392; Busoh' V. Joneis, 184 U. S. 598, 46 L. ed. .707; Westinghouge Air Brake Co. v. Carpenter^ 32 Fed. 484,' 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; Eussell V. Kern, C. C. A., 69 Fed. 94. 64 Chinnock v. Patterson, P. & S. Tel. Co., C. C. a;. Third" Circuit, 112 Fed. 531. ' 66 Boss V. Fort Wayne, G. O.'A., Seventh Circuit, 63 Fed. 466; Car- negie Steel Co, V. Colorado Fuel & Iron Co., C. C. A., 165 Fed. 195. 66 Huntington Dry Pulverizer Co. V. • "Virginia, Carolina Chem- ical Co., 130 Fed. 558 (D. N. J.). 67Ain. Sulphite Pulp Co. v. Crowni-Columbia Tulp & Paper Co., 169.Fed. 140. - •- ■ - - --- 68 Clark v. Wooster, 119 TJ. S, 322, 30 L. ed. 392. 69 Motion Picture Patents Co. v. Centaur Film Co., 217 Fed. 247. 70 Tompkins v. International Pa- per Co., C. C. A., 183 Fed.. 7.73. 71 Eacine Seeder Co, v. joliet Wire Check Bower Co., 27 Fed. 367. 7»Keyes v; Eureka Con. Min.-Co-., 158. -U. S, 150, 153, 39 L..ed;929, 930; affirming 45 Fed. 199. 7S McDonald v.'MUler, M Fed. 344. - - ..- 74 Am. Cable Ey. Co~. v. 'Chicago City Ey. Co., 41 Fed. 523. 75 Miller v. Schwariier, 130 Fed. 561. 7B-Diamond Stone Sawing. -Jilach- in& Co. V. Seus, 159 Fed* A97; Beid- Areher. Co. v. North Ameir.. Chemi- cal & Bng. et al., 147 Fed. 746. 77 Overweight- Counterbalance' Ele- vator Co. - V. Standard" Elevator & Mfg. Co., 96 Fed. 231. 78 Burden v.Gomstook, 15 Ted. 395. ■ ''^1 '-^ T -. '^' 842 INFORMATIONS AND BILLS IN EQUITY- [§ 146 injunction could possibty have been obtained before the expira- tion of the patent, may justify the. dismissal of the bill.™ It has been said that in such a ease where the bill was filed before the expiration of the patent the question is not one of jurisdiction but of discretion in the exercise of jurisdiction.*" Where a patent has expired during the pendency of the suit, although an injunction will not be granted, damages oi" an accounting of the profits may be awarded for the infring'ement while: it was in force.*^ Where a bill charged the joint infringement of twp patents and one expired immediately after the bill was filed, it was held that the court had. jurisdiction to , grant relief , because of the infringement of the pther.*^ Allegations that complainftnt, derives ,his benefit from the patent through a limited granting of licenses does not deprive equity of jurisdiction by showing that he has au; adequate remedy at law, when it appears thfit there is no established license fee for all users,*' and even, it has befii held, when there is no aljegation upon the subject in the bill.** The discontinuance of. the infringement,, s.hortly befor^.the commencement of the suit does not. deprive thg complainant of his remedy for an injunction and accounting of the profits previ- ously made.** But where the defendant has ceased to infringe months before the ,suit was brought does not threaten further in- fringement and has showii by his acts that he does not jii,ten^ continuance thereof , the bill may be dismissed.*^ .1 i 79 Clark V. Wooster, 119 U- S. 88 Am* : Sulphite Pjilp Cp. v. 322, 324, 30 L. ed. 392; American Crown-Columbia Pulp & Paper Co., Cable Ry. Co. v. Citizens' By. Co., 169 Fed. 140. 44 Fed. 484; Keyes v. Eureka Con. 84 Peters v. Chicago Biscuit Co., Min. Co., 45 Fed. 199; American 142 Fed. 779. Cable Ey. Co. v. Chicago City, By, 8S Saxlehner v. Eisner, 140 Fed. Co., 41 Fed. 522;. BusseUv. Kern, 938. C. C. A., 64 Fed. 581 ; s. c., 69 Fed. - 86 Ohadeloid Chem. Co. v. John- 94; McDonald v. Miller, 84 Fed. ston, C. a A., 203 Fed. 993; Goshen .S44. Mfg. Co. V. Hubert A. Myersi Mfg. »0W. W. Sly Mfg. Co; V. Cen- Co., C. C. A., 215 Fed. 594 (where tral Iron Works, C. C. A., 201 Fed. defendant had sold its physical as- 683. sets and stopped business) ; Munger 81 Keystone Type Foundry t. Laundry Co. v. National Marking Wynkoop, 239 Fed. 355. Mach. Co., C. C. A., 253 Fed. 144. 82 W. W. Sly Mfg. Co. V. Central Iron "Works, 201 Fed. 683. §146 J PATENT OASES 843 All persons whq. have acted jointly in the infringement of a patent may be ma,dei defendants in tl^e same suit.'' Persons who are acting. in concert as employees of the same corpioration in the infringement of a patent may be joined as.defendants to the same bill,'* The bills should then aver that they are jointly acting and cooperating in the infringemept." , . An averment that two par- ties, one of whom is an officer t of the other, have infringed a patent;, is a sufficient allegation that their , infringement was joint.®", ,Jt has been held that an improper jpinder of applicants for a patent is a purely technical , defense which should not be f ftYPred after the patent has been assigned ; '^ but it was held that, in the same bill,, complainant could not join a prayer for relief against interference With a request that the Commissioner grant a reissue of a patent,'? nor a prayer for an injunction against infringement "with one for specific 'performance of an agreement by a licensee." A bill to enjoin the infringement of several distinct patents under the former practice was held' multifarious ; ** but if all the patents are infringed in the use of or manufacture of a single machine, process, manufacture or composition of matter and it is so aHeged, the bill is good ; '* even if one has expired ; ^ and 87 Climax Lock & Ventilator Co. 8 Fed. 702; Shiekle v. South St. V; Ajax Hardware Mfg. Co.>;192 Leiiis F. Co., 22 Fed. 105; Thomas Fed. 126, corporations who; had H, El. Gq.i v. Sperry, 46 Fed. 75; actpd jointly with ; the patentees. Louden M. Co. v. Montgomery W. whp- had assigned jthejr patents to & Co.y 96 Fed. 232.; But see Eq. them. , Ttnl.e 26, siipra, §139. 88 Popenhuse'n vj Fajke, 4 Blatchf . 98 Quoted with approval in Eob- 493. inson . v. Chicago Eys. Co., C. C. 89 Swift V. Inland Nav. Co., 243, A., 174 Fed. 40, 42; Nourse v. Al- Fed. 375. len, 4 Blatelif. C. C. 376; Perry 90 Thomson-Houston El. Co. v. v. Corning, 7 Blatehf. C. C. 195; Electrose Mfg. Co., 155 Fed. 543. Case v. Bedfield, 4 McLean, 526; 91Sieber & Trussel Mfg. Co. v. Gamewell F. A. Tel. Co. v. Chilli- Chieago Finder & File Co., 177 Fed. cothe, 7 Fed. 351; Nellis v. Mc- 439. Lanahan, 6 Fisher's Pat. Cas. 286; 92 Gold V. Gold, 181 Fed. 544. Diaanond Match Co. v. Ohio M. Co., 93 Indiana Mfg. Co. v. Nichols & 80 Fed. 117; Edison Phon. Co. v. Shepard Cq., 190 Ped. 579. Victor Talking Maeh. Co., 120 Fed. 94 Quoted with approval iu Rob- 305; American Grapbophone Co. v. inson v. Chicago Bys. Co., C. C. A., Leeds & Catlin Co., 131 Fed. 281; 174 Fed. 40, 42; Hayes v. Dayton, Lagonda Mfg. Co. v. Elliott Co., 844 INFORMATIONS AND BILLS IN EQUITY [§ 146 although one is for a process and the other for a product.®'' It has been said that the complainant "should aver that said in- ventions are capable of conjoint as well as separate use^' and are so used by the defendant/' ®* but, before the new Equity Rules, a general allegation of their infringement collectively' was usu- ally held to be sufficient.'* An amendment adding such an aver- ment will be allowed.^"" Since these rules it has been held that the plaintiff may join in one bill causes of action for the in- fringement of several patents.^"^ A charge of infringement, and a prayer for an injunction and accounting accordingly; may be joined with a charge of interference and a prayer for relief against the same.^"^ A bill seeking an injunction with damages against the infringement of a patent, and an injunction with damages against the publication of libelous circulars affecting plaintiff's patent has been held multifarious.^*^ 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;^"* but, it was held, that a complainant could not join a cause of action for the infringement of, a patent with another for unfair competition in trade, though both related to the same subject-matter,^"^ although this might be done irre- 0. C. A., 214 Fed. 578. "See IT. S. lOZLeaeh v. Chandler, 18 Ted. V.' Am. Bell Tel. Co., 128 U. 8. 202; Holiday v. ' Pickhardt, 29 Ted. 315, 32 L. ed. 450. 853; Swift t. Jenks, 29 Fed. 642; 96 Hunting Dry Pulverizer Co. American EoU Paper Co. v. Knopp, V. Virginia-Carolina Chemical Co., 44 Fed. 609, 612; Stonemetz P. M. 130 Fed. 558. Co. v. Brown F. M. Co., 46 Fed. 72. STAm. Graphophone Co. v. Leeds 108 Fougeres v. Murbarger, 44 &; Catlin Co., 131 Fed. 281. Fed. 292. See International T. C. 98 Gamewell F. A. Tel. Co. v. Co. v. Carmiehael, 44 Fed. 349. Chillicothe, 7 Fed. 351;. Nellis v. 104 Janoa H. U. Co. v. Fleece H.IJ. McLanahan, 6 Fisher's Pat. Cas. Co., 60 Fed. 622; Adam v. Folger, 286 ; Robinson v. Chicago Rys. Co., 120 Fed. 260 ; Globe-Wernicke Co. 0; C. A., 174 Fed. 40, 42, v. Fred Macey Co., C. C. A., 119 9eLuten V. Sharp, 200 Fed. 151. Fed. 696, 703, 56 C. C. A. 304; T. 100 Union L. & S. Go. v, Phila- B. Woods Sons Co. v. ValUy Iron delphia E. Co., 68 Fed. 914; Electric Works, 168 Fed. 770. Contra, Cush- Goods Mfg. Co. V. Benjamin El- man v. Atlantis Fountain Pen Co., eetric Mfg. Co., 169 Fed. 832. 164 Fed. 94;' Meeky v. Grabowski, 101 Crysal Percolator Co. v. Lan- 177 Fed. 591. See supra, §§ 24, 142. ders, 258 Fed. 28, supra, § 142. 106 Ball & S. F. Co. v. Cohen, 90 146] PATENT CASES 845 spective of the citizenship of the parties when the unfair compe- tition was' incidental to the infringement.^"^ For example, an imitation of the form ^"'' and design,**' and of pictures of the device in catalogues.^*' When the requisite diversity of citizen- ship exists, a bill seeking these two kinds of relief can be sus- tained.^^* But not, when neither party is a resident of the district and the acts of unfair competition were committed else- wherfe.^'i Whfere there was no diversity of citizenship it was held when the 'patent was'su^tained and its infringement found, that profits and damages for unfair competition- might be included in the accounting.^^^ But where relief because of alleged in- fringement of a patent was denied, courts have held that they had no jurisdiction to consider a cause of action founded upon unfair competition W* in the same. Under the former practice B'ed. 664; C; L. King & Co. v. In- lander, 133 Fed. 416; Cushman v. Atlantis Fountain Pen Co., 164 Fed, 94; 'lUteeky v. Graljowski, 177 Fed. 591;' National Casket Co. v. N. Y. & Brooklyn Casket Co., 185 Fed. 533; Malinson v. Byan, 242 Fed. 951. See. supra, §§24, 142. See, however, Keasby & Mattison Co. v. Phillip Gary Mfg. Co., 113 Fed. 432; C. Ij. King & Co. v. Inlander, 133 Fed. 416. 106 T. B. Woods Sons Co. v. Val- ley Iron Works, 166 Fed. 770; Lovell-McCpnnel Mfg. Co. v. Auto- mobile Supply Co., 193 Fed. 658; Climax Lock & Ventilator Co. v. Ajax Hardware Mfg. Co., 192 Fed. 126; Sayre v. MoGill Ticket Punch Co., C.;C. A., 200 Fed. 771. Farm- ers' Handy Wagon Co. v. Beaver Silo & Box Mfg. Co., C. C. A., 236 . Fed.- 731. K. W. Ignition Co. v. Temco El. Motor Co., C. C. A., 243 Fed. 588;- Detroit Show Case Co. V. Kawneer Mfg. Co., C. C. A., 250 Fed. ■234.- Cbntra,- H. D. Smiith & Co. V. Sbuthington Mfg. Co., 235 Fed'. 160; Schrauger & Johnston v. PhOlip Bernard Co./ 240 ^Fed. l31; Unit Const. Co. v. Huskey Mfg. Co., 241 Fed. 129; Mallinson v. Byan, 242 Fed. 951. 107 T. B. Woods Sons Co. v. Val- ley Iron Works, 166 Fed. 770; Lovell-MeConnell Mfg. Co. v. Au- tomobile Supply Mfg. Co., 193 Fed. 658. Contra, H. D. Smith & Co. v. Southington Mfg. Co., 235 Fed. 160. 108 Lovell-McConnell Mfg. Co. v. Automobile Supply Mfg, Co., 193 Fed. 658. 109 Climax Lock & Ventilator Co. v. Ajax Hardware Mfg. Co., 192 Fed. 126. 110 Miller Eubber Co. v. Behrend, C; C. A., 242 Fed. 515. 111 Woerheide v. H. W. Johns- Manville Co., 199 Fed. 535. 112 K. W. Ignition Co. v. Temco El. Motor Co., C. C. A., 243 Fed. 588; Detroit Showcase Co. v. Kaw- neer Mfg. Co., C. C. A., 250 Fed. 234; Geneva Furniture Mfg. Co. v. S. Karpen & Bros., 238 U. S. 254. lis New Departure Mfg. Co. v. Sargent & Co., C. C. A., 127 Fed. 152, 155, 62 C. G. A. 266; Schiebel Toy & Novelty Co. v. Clark, 217 846 INFORMATIONS AND BILLS IN EQUITY [§146 it was held as follows: A bill to set aside a contract for a, part- nership in royalties, which also! prayed an account of matters collected under a verbal understanding before the date of the contract, is not multifarious ; ^^* nor a bill for an infringement] which also pleads a contract^ in which it is alleged that defend- ants have agreed not to contest the validity of the patent.V^^ A supplemental bill against a new. defendant, to whom the original defendant had transferred its property, pending the suit, which prayed an injunction against the use i of, plaintiff's patents, and that it be obliged to pay the damages caused by its predecessor's infringement; was multifarious. ^^^ "Where a bill set out a con- tract relating to certain pateints, and asked specific performance 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 determina- tion of who are proper parties must be made from different standpoints in the two kinds of bills.^^' The Act of October 6, 1917, against Trading with the Enemy provides: "The owner of any, patent,. trade-mark, print, label, or copyright under which a license is granted hereunder may,, after the end of the war and until the expiration of one year there- after, file a bill in equity against the licensee in the Distr'ict Court of the United States for the district' in which the said li- censee resides, or, if a corporation, in which it has its principal place of business (to which suit the Treasurer of the United States shall be made a party), for recovery from the said licensee for all use and enjoyment 6f the said patented invention, trade- mark, print, label, or copyrighted matter : Provided, however, that whenever suit is brought, as above, notice shall be filed with th^ alien property custodian within thirty days after date of entry of suit : Provided, further. That the licensee may make any and all defenses which would be available were no license Fed. 760; H. D. Smith & Co. v. court held it had no jurisdiction to Southington Mfg. Co., 235 Fed. 160; direxit a partnership accountings, Detroit Showcase Co. v. Kawneer li4Patton,v. Grlantz, 56 Fed. 367. Mfg. Co., C. C. A., 250 Fed. 234. IIB Dunham v. Bent,, 72 Fed. 60. See TJ. 8. E. Bolt Co, v. H. G. 118 Western Telephone Mfg. Co. v. Kroncke Hardware Co., C. C. . A., Am. El. Td. Co., 137 Fed. 603. . 234 Fed. 868; Koenig v. Morris, 117 American Box Mach. Co. v. 243 Fed. 619. Where after finding Crosipan, C. C. A., 61 Fed. 888; that there was no infringement the s. c., 57 Fed. 1021. , §146] PATENT CASES 847 granted. The court on due proceedings had may adjudge and decree to the said owner payment of a reasonable royalty. The amount! of said judgment and decree, when final, shall be paid on order of the court to the "owner of the patent from the fund dfeposited by the licfensee, so far as such deposit will satisfy said judgment and decree; and the said payment shall, be in full or partial satisfaction of said judgment and decree, as the facts may appear; and if, after payment of all such judgments and decreeSj there shall remain any balance of said deposit, such balance shall be repaid, to the licensee ou order of the alien property custodian. If no suit is brought within one year after the end of ,the. war, or no notice is filed as above required, then the licensee shall not be liable to make any further deposits, and all, funds deposited by him shall be repaid to him on order of the alien property custodian. Upon entry of : suit and notice filed , as above required, or upon , repayment of funds as above provided, the liability of the licensee to make further reports to the President shall cease. If suit is, brought as above provided, the court may, at any time, terminate the license, and may, in such event, issue an injunction to restrain the licensee from infringement thereafter, or . the court, in case the licensee, prior to suit, shall have ntade investment of capitals based on possession of the license, may continue, the license for such period and upon such terms and with; such! z'oyalties,,as it shall find to be just and reason- able.i" '■Any enemy, or ally of enemy, may institute and prosecute suits in equity against any person other than a licensee under this Act to enjoin infringement of letters patent^ trade-mark, print, label, and copyrights in the. United States owned or con- trolled by said, enemy or ally of enemy, in the same manner and to the extent that he would be entitled so to do if the United States was, not at war: Provided, That no final judgment or decree shall be entered in favor of such enemy or allj' of enemy by any court except after thirty days' notice to the alien prop- erty custodian. Such notice shall be in writing and shall be served in the same manner as civil process of Federal courts.^^' 118 40 St. at L. 416 Ch. 106, Comp. 119 Ibid g. St. §3115% ee (f). 848 INFORMATIONS AND BILLS IN EQUITY [§ 147 § 147. Bills to compel the issue of patents and bills to obtain relief against interfering patents. Whenever a patent on ap- plication 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 bis invention, as specified in his claim, or any part thereof, as the facts in the case may appear. And such adjudica- tion, if it be in favor of the right of the applicant, shall authoriize the Commissioner to issue such patent on the applicant filing in the patent-ofifice a copy of the adjudication, and otherwise com- plying with the requirements of law. In all casesy where there is no opposing party, a copy of the 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."i "Whenever there are interfering patents, any person inter- ested in any one of them, or in the working of the invention claimed under either of them, may have relief against the inter- fering 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 parties, and other due prbceedings 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."* Such a suit may be brought where there is an interference between patents granted to the same inventor al- §147. lU. S. E. S., §4915, 5 114 V. S. 128, 29 L. efl. 119; Hill Fed. St. Ann. 507, Pierce's Fed. v. Wooeter, 132 U. 8. 693, 33 L, Code, §8780; Bunstetler v. Atkin- ed. 502. son, 23 Off. 6az. 1025; Greeley v. aU. S. E. S., §4918, 5 Fed. St. Commissioner, 6 Fisher, 675; s. c, Ann. 526, Pierce's Fed. Code, 1 Holmes, 284; Ei porte Arkell, 15 J 8783.' ' - '' - ' ■ ' "•' Blatehf. 437; Butterwortli v. Hill, ' -' §147] INTERFERENCE OF PATENTS ' 849 though an adjudication of such interference makeS' the latter patent void.' The act creating the Court of Apipeals for the District of Columbia, with power to entertain appeals from the decisions of the Commissioner of Patents in the cases mentioned in these two sections of the Eevised Statutes, did not repeal them.* Such a bill should not be brought until the determination of an appeal to the District Court of Appeals," and it is the safer practice not to file the same until after the Cbmmissioner has obeyed the mandate of that appellate court.' But where adverse decisions iii interference .proceedings have been made against an applicant for a patent by the examiners, the Patent Commissioner and the Court of Appeals of the District of Co- lumbia 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.'' Where there is no opposing party, a copy of the bill should be served on the Commissioner, and it is the better practice to name him and perhaps also the Secretary of the Interior, as parties defendant.' The Commissioner of Patents is not a necessary party when there is a party to oppose the bill to compel the issue of a patent,' or in an interference casei^" but when the patent has been issued and assigned, the assignee is a necessary, party.^^ "When there is an opposing party; costs; are usualljr awarded to the one who prevails.^* : ... The fact that the two parties to the. interference proceeding have united the interests, and neither of them has opposed the bill, does not deprive the District Court of jurisdiction, nor, at least when that matter is disclosed to it, does it render its decree subject to collateral attack.^' ' 5 Keystone Trading Co. v. Zapata 8 Gandy v. Marble, 122 TJ. S. 432, Mfg. Co.,' 210 Fed. 456. 7 Sup;. Ct; 1290, 30' L. ed. 1223; 4 McKnight v; Metal Volatiliza- Davis v. Garrett, 152 Fed. ?23, 725. tion Co., 128 Fed. 51; Dover v. SGraham v. Teter, 25 Fed. 55S. Greenwood, 143 Fed. 136. . 10 Butler v. Shaw, ^21 Fed. 321.' B Smith v.- MnUer, 75 Fed. 612; 11 Graham v. Teter, 25 Fed. 555. MeKnight v. Volatilization Co., 122 See Illingwofth v. Atha, '42 Fed. Fed. 51. 141, 145. 6 Bernardin v. Northall, 77 Fed. 12 Butler v. Shaw, 21 Fed. 321. 849. 18-Bchnierta Wii-e Glass Co', v. 7MeKnight v. Metal Volatiisrtion Western- Glass Co., 178 'Fed; 973; a. Co., 128 Fed. 51. C, 178 Fed. 977. Fed. Prac. Vol. 1—54 850 INPOEMATIONS AND BILLS IN EQUITY [§ 147 Such a bill' presents a case of original equitable jurisdiction ; not an appeal,^* ,. ;; ,' The statutes do not authorize an injunction against: the issue of a patent by the .Commissioner to some one other than the pJaintiff.^^ An interlocutory injunction has been issued restrain- ing the defendant from- transferring his patent without' leave of the eourt.18 The suit, is not- an appeal from the decision of the Patent Oiffice;^'' It has been described as "something in the nature of a suit to set asiflea judgment. ' ' i* The suit is a. plenary suit in equity to which all the rules of practice and evidence in such, suits apply.^' It i has ■ been held that the suit must be brought in the district in w^ich the defendant is a resident.^" ■ Upon an application : to compel the issue of a patent, When application is made to have the bill taken pro confessO, the court may require a copy of the. proceedings, in the patent-office and call for any competent; evidence that the , complainants may wish to offer.^V ,, The, testimony ; before the. Patent Office is not competent evi- dence except in cases where the common law authorizes the introduction of seebiidary evidence.*^ Admissions of the 'parties made in such proceedings are competent.*' . Statements 'of witnesses before the patent office may be used upon cross examination and of contradiction \('hen their atten- tion has been called to them.** ' ' The record of the proceedings in the patent of^ce is also iiot competent except as above stated arid that the plaintiff maV show l4Wheaton v. Kendall, 85 Fed. 1» Dover v. Greenwood, ' 177 Fed. 666, 671; Appert v. Brownsville 946, reversed on another point, Plate Glass Co., 144. Fed. 115. ,• Greenwood v. Dover Mach. Co., C. . IS Illingwqrth v. Atha, .42 Fed. Fed. 91. i i. , 141, 144. 30 Arbetter , Falling Mach. Co. v. 16 Keystone Trading Co. v. Zapota Lewis Blind Stit^ Mach.. Co., 0. Mfg. Co., 210 Fed. 456. C. A., 230 Fed. 992. ivMprgaa v. Daniels, 153 U. 8. 21 Davis v..Grarl'ett, 152 Fed. 723, 120, 124, 14, Sup. Ct. 772, 38 U 725. ed. 657 ; Sutton v. Wentworth, ' C. 22 Sutton v. Wentworth, 247 Fed. C. A., 247 Fed. 493. 493. 18 Morgan v. Daniels, 153 U.i S. 28 Ibid. 120, 124, 14 Sup. Ct. , 772, 38 L. 21 Ibid, ed. 657. ... !i;l'47] INTERFERENCE OP PATENTS 851 that a judgment of priority hag been rendered against him in oirder to establish .his right to maintain his bill.*'' ■ The decision is subject to the ordinary Equity Rules that the evidence must be relevant to the issues/ made by the pleading, and proof cannot be admitted which tends only to- show that, because of the prior state of the art,, neithpr party is entitled to a patent.**. ,.■;. ,, . ■.•,.!-,,■..:. < ■ The court has poTyer to, decide the questions of priority with- out any 'exceptions i or limitations; and when the- decision , of the patent office is based upon questions of law rathe^' than upouany distinct. ;.fiiiding ofi priority,; the District Cpurt of the United States will' make an independent examina,tion: of the testimony and, iceach its own conclusions.*'' .Issues, not raised in the Patent Office such as the patentability pf .the, invention may then be consideted.*' The order and proceedings of the Patent Office upon a prior ap.plication foundjed,-upQn interference between the isame, parties cannot be considered, by. the cPnrt unless thejcare duly ofEered in evidence.** , , , :It has beeaijsaiid:, 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, was erroneous.^" Where the question decided in the Patent Office was upon conflicting evidence, the decision there made must be accepted as controlling upon that question of . fact in any subsequent suit between rthe, s»me parties unless the contrary is established by testimony which in character and amount carries through con- viction.'^ , The fact, that there was a diversity of opinion between the members of the Circuit Court of Appeals was held to be a sufficient reason for following the decision in the Patent Office which had been affirmed by the District Court of Appeals when 28 Ibid. SOGfeenwood v. Dover, C. C. A., 26 Biohards v. Meissner, 163 Fed. 194 Fed. 91. 957. SI Morgan v; Daniels, 153 V. S. STWheaton v. -Eendall, 85 Fed. 120, 125, '14 Sup. t!t.- 772, 38 L. 666. ed. 657; Gen. El.' Go. v. Steinberger, 28 Hansen V. Slick, 216 Fed. 164, 208 Fed. 699; Gold v.' Ne'!fton,:C. 170. C. A., 254 Fed. 824; Ricbafds v. 29 Sutton V. Wentworth, 247 Fed, Meissner, 163 Fed. 957. ' 493. '' ' 852 INFORMATIONS AND BILLS IN EQUITY [§148 there was no iestimoiiy materially changing the record.'^ It ha;S been held: that Tvhere the evidence is identical the decision in the Patent OiBee is not conclusive ; '^ but that when' afSrmed'by the District Court of Appeals, it must be followed by a court which is not clearly convinced that the decision is wrong.** The rule does not apply where the finding in the Patent OiRce was based on the absence of evidence upon the subject."" It has been said that the rule applies to the decision of ques- tions peculiar to ' the patent law such as the construction' and scope' of the application for the patent.** In a suit to compel the^ issue of a patent, the court may con- strue the claims in issue ; but cannot properly alter these claims since an alteration might affect the decision in a suit founded upon an interference.*'' 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 l-efusal.** § 148. Bills to restrain infringements of trade marks and unfair competition. The Trade Mark Act amongst other things provides: "That the Circuit 'now the District' and Territorial Courts of the United States and the Supreme Court of the Dis- trict 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 equity respecting trade-marks registered in accordance with the provisions of this Act, arising under the present Act, without regard ^to the' amount in controversy." ^ "The owner of a trade-mark used in commerce with foreign nations, or among the several States, or with Indian tribes, provided such owner shall be domiciled within the territory of the United States, or resides in or is located in any fofeigil 32 Gold V. Newton, C. C. A., 245 88 Westinghouse El. & Mfg. Co. Fed. 824. v. Ohio Brass Co, 186 Ted. 518; 38 Gold V. Gold, C. C. A., 237 citing U. 8. B. S., § 4894, as amend- Fed. 84, 85. ed 29 St. at L. 692, § 4, .5 Fed. St. . 34.Heroulea Powder Co. y. New- Ann. 488, Comp. St. 3384, Pierce ton, C. C. A., 254, Fed. 906. Fed. Code,; §8760. SS^Courson V. O'Conor, ,C.. 0. A,, §148. 133 St. at L. ch. 592, 227 !Fed. 890. , , , . §17; Comp. St. §9502., See § 30 86 Gold V. Gold, . C. C. A., 227 supra, § 279 infra. Fed. M, 86. ; , 87 Gen. El. Co. v Steinberger, 208 Fed. 699. § 148] TRADE-MAEK CASES ■ 853 country which, by treaty, convention, or law, affords similar privileges to the citizens of the United States, may obtain regis- tration for such trade-m&rk by complyinig with the following requirements: First, by filing in the' Patent Office an applica- tion therefor, in writing, addressed to the Commissioner of Patents, signed by the applieiant, specifying his name, domicile, location and citizenship; the^ class df- merchandise and the par- ticular description of goods comprised in such class to which the trade-mark is appropriated; a statement of the mode in which the same is applied and affixed to igoods, and the leing^th of time during which the trade-mark i has been u^ed; a descrip- tion of the trade-mark itself shall be included, if desired by the applicant or required by the Commissioner, provided such de- scription is of a character tO' meet the approval of the Commis- sioner. With this statement shall be filed a drawing of the trade-mark, signed by the applicant or his attorney, and such number of specimens of the trade-mark as actually used as may be required by the Commissioner of Patents. Second, by paying into the Treasury of the United States the sum of ten dollars, and otherwise complying with the requiremnts of this Act a;nd such regulations as may be prescribed by the Commissioner of Patents."* ' ' The application prescribed in the foregoing section, in order to create any right 'whatever in favor of the jiarty filing it, must be accorded, so far as the registratiou and protection of trade- marks used on the products of such establishment are concerned, the same rights and privileges that are accorded to owners of trade-marks domiciled within the territory of the United States by the Act entitled 'An Act to authorize the registration of trade-marks used in commerce with foreign nations or among the several States or with Indian tribes, and to protect the same,' approved February twentieth, nineteen hundred and five.* ' ' The application prescribed in the f orejroing section, in order to create any right whatever in favor of tne party filing it, must be accompanied by a written declaration verified by the appli- cant, or by a member of the firm, or an officer of the corporation or association (applying, tp the effect that the applicant believes himself or the firm, corporation, or association in whose behalf 2 33 St. at L. 724, § 1 as amended 3 '34 St. at L. 1^9, Comp. St. 34 St. at L. 728; 35 St. at L. 728 J948fe. (28) f., Comp. St. §9485. 854 INFORMATIONS AND BILLS IN EQUITY [§ 148 he makes the application to be the owner of the trade-mark sought to be registeredj and that no other person, firm, cor- poration, or association, to the best of the applicant's knowledge and belief, has the right to use such trade-mark in the United States, either in the identical form or in such near resemblance thereto as might be calculated to deceive; that such trade-mark is used in commerce among the several States, or with foreign nations, or with Indian tribes, and that the description and drawing presented truly represent the trade-mark sought to be registered. If the applicant resides or is located in a foreign country, the statement required shall, in addition to the fore- going, set forth that the trade-mark has been registered by the applicant, or that an application for the registration thereof has been filed by him in the foreign country in which he resides or is located; and shall give the date of such registration, or the application therefor, as the case may be, except that in, the application in such eases it shall not be necessary to state that the mark has been used in commerce with the United States or among' the States thereof . The verification required by this section may be, made before any person within the United States authorized by law to administer oaths, or, when the applicant resides in a foreign country, before any minister, charge d'af- faires, consul, or commercial agent holding commission under the Government of the United States, or before any notary public, judge, or magistrate having an official seal and author- ized to administer oaths in the foreign country in which the applicant may be whose authority shall be proved by a certificate of a diplomatic or consular officer of the United States. ' ' * "Every applicant for registration of a trade-mark, or for renewal of registration of a trade-mark^ who is not domiciled within the United States, shall before the issuance of the certifi- cate of registration, as hereinafter provided for, designated, by a notice in writing, filed in the Patent Office, some person resid- ing within -the United States on whom process or notice of proceedings affecting the right of ownership of trade-mark of which such applicant may claim to be the owner, brought under the provisions of this Act or under other laws of the United 4 33 St. at L. 724, § 2 as amended, Swift y. Inland Nav. Co., 234 Fed. 35 St. at L. 627; Comp. St. §9487; 375. § 148] TRADE-MARK CASES 855 States, may be served, with the same force and effect as if served upon the applicant or registrant in person. For the purpose 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. ' ' ^ "An application for registration of a trade-mark filed in this country by any person who has previously regularly filed in any foreign country which, by treaty, convention, or law, affords similar privileges to citizens of the United States au application for registration of the same trade-mark shall be accorded, the same force and effect as would be accorded to the same applica- tion if filed in this country on the date on which application for registration of the same trade-mark was first £led in such foreign country : Prflvided, That such application is filed in this country within four months from the date on which the application was first filed Ln such foreign country: And provided, That certifi- cate of registration shall not be issued for any mark for registra- tion of which application has been filed by an applicant located ill a foreign country until such mark has been actually regis- tered by the applicant in the country in which he is located. ' ' ® The proceedings in the Patent Office are not the subject of this work. ' ' The registration of a trade-mark under the. provisions of this Act shall be prima facie evidence of ownership. Any person who shall, without the consent of the owner thereof,, reproduce, counterfeit, copy, or eolorably imitate any such trade-mark and affix the same to merchandise of substantially the same descrip- tive properties as those set forth in the registration, or to labels, signs, prints, pajckages, wrappers, or receptacles intended to be used upon or in connection with the sale of merchandise of sub- stantially the same descriptive properties as those set forth in such registration, and shall use, or shall have used, such repro- duction, counterfeit, copy, or colorable imitation in commerce among the several States, or with a foreign nation, or with the Indian tribes, shall be liable to an action for damages therefor at the suit of the owner thereof; and whenever in any such. action S 33 St. at L. 725, ch. 592, § 3, 6 33 St. at h. 725, ch. 592, § 415, Comp. St. §9488. Comp. St. §9489. 856 INFORMATIONS AND BILLS IN EQUITY [§ 148 a verdict is rendered for the plaintiff, the court may enter judg- ment therein for any sum above the amount found by the verdict as the actual damages, according to the circumstances of the case, not exceeding thrfee' times the amount of such verdict, together with the costs." '''• "That the several courts Vested with jurisdiction of cases aris- ing uiider' 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 on siich terms as the court may deem reasonable ; and upon a decree being rendered in any such case for wrongful use of a trade-mark thC' 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 be assessed under its direction. The court shall have the same power to increase such daiMages, in its discretion, as is given by section sixteen > of this Act for increasing damages found by verdict in actions of law; and in assessing profits the plaintifF shall be required to prove defendant's sales only ; defendant must prove all elements of cost which are claimed." "That in any case involving the right to a- trade-mark regis- tered in accordance with the provisions of this Act, in which the verdict lias .been found for the plaintiff, Or an injunction issued, the court may order that all labels, -signs, prints, pack- ages, 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, by any Circuit Court of the United States, or by a judge thereof, may be served on the parties against whom such injunction may be 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 oitherwise, by the court by •T33-et. »t L.-728j eh, S92, f 16, Comp. St. §9501,' ■ ; ' ■' § liiS] TRADEtMAHK CASESi 857 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 ji or a judge; thereof. The said courts, or judges thereof, shall have jurisdiction :to enforce said injunction, as herein i provided) as fully as if the injunction had been granted by the Circuit Court in which it isi Sought to be enforced. The clerk of the court or judge granting the in- junction 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 certified copy of all the papers on which the said injunction was granted that are on file in his office." ' "That no action or suit shall be maintained under the pro- visions 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 any certificate of registration fraudulently obtained."^ "That nothing in this Act shall prevent, lessen, impeach, or avoid ainy remedy at, law. or in equity iwhich any .party aggrieved by , any wrongful use of any trade-mark migjit h^we,;had,if the provisions of this, Act had not been passed."^" . ; . ; , , "That in any case involving the, yight to a trade:m^rk regis- tered in accordance with thp provisions of this Act, in which tjie verdict has been found for the plaintiff, or an injunction issued, the court may order that a,ll labels, signs, 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 thei owner of a trade-mark registered in accordance with the provisions of this Acl, by any Circuit" now District "Court of the United States,' or by a judge thereof, may be served on the parties against whom such injunction may be granted anywhere in the United States where they may be found, and shall be operative, and may be enforcied 8 33 St. at L. 729, eh. 592, § 19, 10 33 St. at L. 730, ch. 592, § 23, Comp. m. § 9505. Comp. St; § 9508. ■ 9 33 St. at L. 729, eh. 592, §21, Cottlp. St. §9506. 858 INFORMATIONS AND BILLS IN EQUITY [§ 148 by proceedings to puiiish for contempt, or otherwise, by the court by which such injunction was granted, or by any other Circuit" now 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 fully as if the injunction had been granted by the Circuit" now District ' ' Court in which it is sought to be enforced. The clerk of the court or judge granting the injunction shall, when re- quired to do so by the court before which application to enforce said injunction is made, transfer without delay to said court a certified copy of all the papers on which the said injunction was granted that are on file in his office. " ^^ The bill must show that the trade-mark was used in commerce with foreign nations among the several States or with the Indian tribes.^* Where the only averment that the trade-mark was used in interstate commerce was that the mark was registered under an Act of Congress, and that utider such trade-mark com- plainant's product had been known throughout the country, and that defendant 's violation thereof had caused' within the district and elsewhere through the United States great and irreparable injury to com^plainant, it was held that the bill did not aver in- terstate use sufficiently as to confer jurisdiction.^' It was said: ' ' It would seem that the allegation that the defendant is ' palm- ing off its own product upon the public as that' of ydur orator's' might be a sufficient charge of unfair ' competition. " ^* The 11 33 St. at L. 729, eh. 592, § 20, sufficient charge of unfair competi- Comp. St. § 9505. tion : 12 34 St. at L. 1251, § 20. Pierce "* * * Your orator further Fed. Code, § 8826. See Trade-Mark ayerring upon information and be- Caaes,'100 V. S. 82, 25 L. ed. 550, '^^^ ^^^ ^ certain number of deal- and^Mpra, §§30, 44, 137, 151. «" ^^ chewing gum, both the ■ 13 Bernstein v. Danwitz, 190 Fed. '"'^olesale jobber, the retail dealer 604; Schrauger & Johnson' v. Phillip ^""^ *'"' ^^''^^^ *^^"' "^'^ ^« ^"""^ T. -, r,' n.r, -A T 'r,™ who havc purchased the said pack- Bernard Co., 247 Fed. 547. ^ , . „ , , 1 ages of chewing gum from the de- 14 Louis Bergdoll Brewing Co. v. ^^^^^^^ ^^^ ^^^ ^^^^^^^ ^^ ,p^,^, BergdoU Brewing Co., 218 Fed. 131. i„g ^^ , ^^e defendant 's goods upon In Sayre v. McGill Ticket Punch the public as the goods of your Co., 200 Fed. 771, 773. The follow- orator,' and that this defendant has ing allegations were held to be a found, as a matter of fact, that 148;] TBADE-MAEK CASES 859 question whether, in the same bill, relief can be prayed against trade-mark and unfair competition, both parties being citizens of the same State, is still sub judice. It has been held that where the tfade-mark is invalid,^* the court cannot then consider the question of unfair competition, nor when it is valid, but not infringed.*® It has been held that where the trade-mark is valid and has been infringed, and the acts of unfair trade are not separate and distinct from the acts of infringement; that then an injunction against them may be joined with the decree for- the purchasing public makes no distinguishjment between the pack- ages of your orator and the Spear- mint packages of this defendant, and that the Spearmint product of this' defendant can bo palmed off on the public and trade- generally as the .goods and product of your orator. "That your orator avers, upon in- formation and belief,' that the said defendant is preparing to rush and flood the trade with vast' quanti^ ties, of chewing gum haying the exact trade-dress as ;your orator, and that unless the honorable court shall grant an immediate injunc- tion or restraining order preventing the sale or delivery of said pack- ages that said defendant will at once utilize such delay and put upon the market his fraudulent imitation of your orator's trade-dress, as above set forth^ to the great and irreparable damage of your orator, your orator averring that said chew- ing gum product known as 'Hel- met Spearmint' and as made by the defendant, is of an inferior grade or quality to the product of your orator,, is not of the same flia- vor as your orator's product, and is calculated and intended to and does, a« a matter of fact, greatly injure the high reputattori, charac- ter, and quality of your orator's goods. "And your orator avers tha;t this defendant has simulated style of lettering, shape of package, pecu- liar markings, form of wrapper and general color scheme, thereby pro- ducing and giving to its stgrle of paejcage, carton, and wrappers, the peculiar visual appearance that was adopted by your orator and your orator's' predecessors in the year 1894 and through long years of usage has become the predominating means for distinguishing your ora- tor's well-known Spearmint product from other gum products upon the market. * * *" Helmet Com- pany V. William Wrigley, Jr., Co., C. C. A., 245 Fed. 824, 825. 15 Elgin Watch Co. v. Illittojs Watch Co., 179 TJ. S. 665, 21 Sup. Ct. 270, 45 L. ed. 365; Leschen Bope Co. V. Broderick, 201 TJ. 8. 166, 26 Sup. Ct. 424, 50 L. ed. 710 ; Bernstein v. Danwitz, 190 Fed. 604; Diederich v. W. Schneider Wholesale Wine & Liquor Co., C. C. A., 195 Fed. 35; See supra, §146. ' 16 Burt V. Smith, C. C. A., 71 Fed. 161, 17 C. C. A. 573; Hutchinson v. Loewy, C. C. A., 163 Fed. 42, 90 C. C. A. ; Bernstein v. Danwitz, 190 Fed. 604; Sprigg v. X'isher, 222 Fed. 964. See §§24, 132, 146, supra. '860 INPOBMATIONS AND BILLS i IN EQUITY [ § 149 bidding the infringement of the trade-mark; ^'' but that the rule is otherwise when, they are separate and distinct- acts,^* unless the jurisdictional diversity of citizenship exists r in which case if the value of the matter in dispute exceeds the jurisdictional amount, the court may grant such; relief and also relief against infringement of common law rights to trade-marks which do not depend on transactions in interstate or international commerce, although the infringements consist of sepai^ate and distinct acts.^' § 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 persons interested under him, by suit in equity against the, said registrant; arid the court, on notice tP- adverse parties and other due proceedings had accord- ing to the course of equity, may adjudge and declare either of the registrations void in whole or in pkrt according to the inter- est of the parties in the trade-mark, and may order the certificate of registration to be delivered up to ]the CDinmissioner of Pat- ents for cancellation. ',' ^ The pleading and practice under bills of this sort is substantially isiinilar to that of bills to obtain relief against interfering patents.* The' stfit must be brought within a year after final aetibri thereupon in the Patent Office or the determination of any appeal from its decision, unless it is shown that the delay is unavoidable.^ It was Jield to be insufficient to 17 Globe-Wermcke Co. v. Fred , 18 Boss v. H. S. Geer Co., 188 Macey Co., C. ,C. A., 119 Fed. 696, Fed, 731, 734; C. L. King & Co. 703, 56 C. C. A. 304 (a patent v. Inlander, 133 Fed. 416; Cushman case); T. B. Woods Sons Co. v. v. Atlantis Fountain Pen Co., 164 Valley Iron Works, 166 Fed. 770 Fed. 94; Mecky v. Grabowski, 177 (a patent case); Eoss v., H. S; Geer Fed. 591; National Casket Co. t. Co., 188 Fed. 731, 734. See Saxleh- N. Y. & Brooklyn Casket Co., 185 ner v. Eisner & Mendjelson Co., 179 Fed. 533; the f our , last cases were U. S. 19, 37,. 41, 21 Sup, C.t. 7, 45 patent eases. L. ed. 60 ; s. c, C. C. A., 147 Fed. 19 IngersoU v. Doyle, 247 Fed. 620, 189, 77 C. C. A. 417, s. c.,, C. G.-A., supra, § 146. ,25 Fed. 1; Stark Bros; Nurseries & §149. 1 Act of March 2, 1907, Orchards Co. v. Stark, 248 Fed. 143, 34 St. at L. 1251, § 22, Pierce Fed, supra, . 1 147. . Contra, Cu,shman v. Code,' §. 8828. Atlantis- ;Fou,ntain Pen Co., 164- Fed. 8 ;St«pra, § 146. ■ 94;(a patent case) ; Mecky v. Grab- STJ, S. B. 8,, §4969, 2 Fed. St owski, 177 Fed. 591 (a patent ease). Ann. 27,1, Pierce Fed. Code, § 8862. § 150] COPYBIGHT CASES 861 aver that oomplainants brought suit within the year against the party who succeeded in the Patent Office^! and several months thereafter, after learning for the first time that the defendant had assigned the patent, dismissed such suit, and brought the present one against the assignee ; there being no allegation that the assignment was not recorded, nor that the complainant had no means of ascertaining that it had been made.* "When the decision of the Patent Office has been affirmed or approved by the District Court of Appeals, it will be followed by other courts in suits to enjoin infringements iunless*hey> are clearly convinced that it is not correct.'' §150. Bills to restrain infringement of copyrights. The Copyright 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 liahle: ' (a) To an injunction restraining such inf ringenient ; ' (b) To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or in' lieu i of actual damages and profits such damages as to the Cburt shall appear to 'be just, and in assessing such damages the court may, in its discretion, allow the amounts as hereinafter stated, but in the case of a newspaper reproduction of a copyrighted photo- graph such damages shall not exceed the sum of two hundred dollars nor be less than the sum of fifty dollars, and such dam- ages shallin no other case exceed the sum of five thousand dollars nor be less than the sum of tw6 hundred sLnd fifty dolla:rs, and shall not 'be regarded as a penalty: First; In the case 'of a painting, statue, or sculpture, ten dollars for eVery' infringing copy made or sold by or found in the possession.' of the infringer or his agents or employees; Second. In the case of any work enumerated in section five of this Act, except a painting,' statue, or sculpture, one dollar for every infringing copy made or sold 4 Westiiighouse El. & Mfg. Co. v. 6 Gold v. Newton, CO. A., 254 Ohio Bmga Co.. 186 Fed. 1518. : Fed. ,824. 862 INFORMATIONS AND BILLS IN EQUITY [§ 150 by or found in the possession of the infringer or, his agents or employees; Thirdi In the' ease of a lecture, sermon, or address, fifty dollars for every infringing delivery; Fourth. In the ease of a dramatic or dramatico-musicali or a choral or orchestral composition j one ihundred dollars for the first and fifty dollars for every subsequent infringing ; performance ; in the case of other musical compositionsjtien dollars for every infringing per- formance; / '■ ■ ■• i ' .-i ■' •i(e) To : deliver up I oni' bath, io be impounded during the pendency of the action, upon such terms and cdnditions as the court may prescribe, all articles alleged to infringe a copyright ; (d) To deliver up on oath for 'destruction all the infringing copies or devices, as well as- all plates, molds, matrices, or other means for making such infringingcopies as thecourt may oiSder ; (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' mechanically the musical ! work, then in: case, of infringement of such copyright by. the unauthorized manufacture, use, or sale of interchange- able parts, such as disksj 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 grante^diupon such, terms as the court may impose,: and .the, plaintiff; shall be entitled to , re- cover ; in lieu of profits and .damages a royalty ; as , provided in section one, subsection (e), of this Act: Eroyidedjalso, Tljat whenever . any person, in the absence of a licen^p agreement, intends to use a copyrighted musical composition upon ,the parts of instruments serying to reproduce mechanically the: musical work, relying, upon the ,eom,piilsory license provision of this; Act, he shall serve notice; of such intention, tiy register^ed, mail, upon the copyright proprietor at his last ajddress discjpsed ,by the records of the copyright pffiee sending to the .copy rigjit office a duplicate of such notice; and in, case pf bis failure so to dp the court jnay, in its discretion, in addition to sums hereinabove, men- tioned, award the complainant a furthei^ 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 § 1'50] , i , ! COPYRIGHT CASES 863 for practice and procedure under this section shall be prescribed by the Supreme Court of the United States:''^ ■ ■: : {"iAily court ; given jurisdiction i under section thirty-four of this Act may proceed in any action, suit, or proceeding instituted for violation of any provision hereof to: enter a judgment or decree enforcing the ■remedies' herein provided. " * ' "That the proceedings for an injunction, damages, and profits, and those for the seizure of infringing copies, plates, molds, matrices, and so forth, ■ aforementioned, may be united in one action.'',* " 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."* "That any such court or judge ; thereof shall have power, upon bill in equity filed by any party iaggrieved, to grant injunctions to prevent, and restrain' the violation of any right secured ibjyi said laws, according to the course and principles of courts of equity, on such terms as said court or judge may deem reasonable. Any- injunction that may be 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 anywhere in the United: States, and ishall be operative throughout the United States arid he. :enf orceablei by proceedings in contempt or otherwise by any other court or judge possessing jurisdiction of the defendants. " * By- ,the ' Act lof December 22, 1896: "Any injunctiorii that may be granted upon hearing after notice to the defendant by any Cireiiit Court oi the United States or by a judge there- of, restraining and enjoining the performance or representa- tion of any such dramatic or musical composition may be served on the parties against whom such injunction may be granted anywhere in the United States, and shall be operative and may bei enforced by proceedings to punish for contempt or otherwise by any other Circuit Court or judge in the United States; but the defendants in said action, or any or either of them, may fliake a motion in any other circuit in which he or they may be engaged in performing or representing said dra- §150. 1 36 St. at L. 1075, § 25, S Ibid., §27. Pierpe Fed. Qode Supp., § 1587. , 4 Ibid., §35; Pierce Fed. Code , 2 Ibid, §26, 35 St. at L. 1082, Supp., §1589. Comp. St. § 9547. 5 Ibid., § 36. 864 INFORMATIONS AND BILLS IN EQUITY [§150, matio or musical composition to dissolve or set aside the said injunction upon such reasonable notice to the plaintiff as the Circuit Court or the judge before whom said motion shall be made shall deem proper service^ of said motion to be made on the plaintiff in person or on, his attorneys in the action. The Circuit Courts or judges then shall have jurisdiction to enforce said injunction and to hear and determine a motion to dissolve the same, as herein provided, as fully as if the action were pending or brought in the circuit in which said motion is made. ' ' "The clerk of the court or judge granting the injunction, shall when required so to do by the court hearing the application to dissolve or enforce injunction, transmit without delay to said court a certified copyj of all thig' papers on which the said injunc- tion was granted that are on file in his office." ** "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 papers in said cause that are on file in his office."* "That where the copyright proprietor has sought to comply with the provisions of this Act with respect to notice, the omis- sion by accidfent or mistake of the prescribed notice from a particular copy or copies shall not invalidate the copyright or prevent recovery for infringement against ^ny person who, after actual notice of the copyright, begins an undertaking to infringe it, but shall prevent the recovery of damages against an innocent infringer, who has been misled by the omission of the notice; and in a suit for infringement no permanent injunction shall be had unless the copyright proprietor shall reimburse to the innocent infringer his reasonable outlay innocently incurred if the court, in its discretion, shall so direct."' An infringer cannot escape liability because some copies were accidentally issued without the notice of copyright when he did not know of this until his infringement.* "Rules and regulations for practice and procedure in suits 6a 29 St. at L. 481. It seems to 7 Ibid., § 20, Pierce Fed. Code be the opinion of the editor of the Supp., § 1584. Compiled Statutes that this statute 8 Stetcher Lithographic Co. v. is obsolete. Dunstori Lithograph Co., 233 Fed. 6 Ibid., §37. 601. S3501 COPYRIGHT Cases 865 for an injunction damages or profits because of an infringement shall be prescribed by the Supreme Court of the United States. ' ' ' Whenever an injunction is prayed in the plaintiff's pleading the proceeding is to be considered as a suit in eq^iity although the bill includes a prayer for damages and for seizure.*" The Copyright Rules provide: "1. The existing rules of equity practice, so far as thfey' may be applicable, shall be en- forced in proceedings instituted under section twenty-five (25) of the Act Of March fourth, nineteen hundred and nine, entitled 'An Act to amend and consolidate the acts respecting copyright.' 2. A copy of the alleged infringement of Copyright, if actually made, and a copy of the work alleged to be infringed, should accompany the petition, or its absence be explained; except in eases of alleged infring^ent by the public performance of dramatic and dramatico-musical compositions, the delivery of lectures, sermons, addresses, and so forth, the infringement of copyright upon sculptures and other similar works and in any case where it is not feasible. ' ' ** Where there was nothing in the bill to show that the matter eop.yrighted was a sculpture or other similar work or that the case fell within the other excepted classes, a motion was granted requiring the complainant to file with his petition a copy of the same.** The performance of the statutory requirements should be alleged.*^ Formerly the statement that the copyright was issued 9 36 St. at L. 10 TJ. S. 25, as importance. TuUy v. Triangle Film amended, 37 St. at L. 489, Comp. St. Co., 229 Fed. 297. § 9546. W Lesser v. George Berfeldt & Co., 10 L. A. Westermann Co. v. Dis- 188 Fed. 864. patch Printing Co., C. C. A., 233 IS Waalburn v. Ingilby, 1 M. & K. Fed. 609. 61; Atwill v. Ferrett, 2 Blatchf. C. 11214 TJ. S. 536, 53 L. ed. 1074. C. 39; Chicago Music Co. v. J. W. .When an incorrect copy of the Butler Paper Co., 19 Fed. 758 ; Trow work has been filed with the com- City Directory Co. v. Curtin, 36 plaint, it was held that the terms Fed. 829 ; Ford v. Charles E. Blaney upon which the complainant should Amusement Co., 148 Fed. 642, 645. be permitted to file a correct copy Soeiete Des FUms Menchen v. Vita- should be dealt with, not on a mo- graph Co. of America, C. C. A., 251 tion to dismiss, but upon the trial, Fed. 250; N. Y. Times Co. v. Sun when the court should determine- Print. & Pub. Ass'n, C. C. A., 204 whether the differences were of real Fed. 586. See § 146, supra. Fed. Prac. A'ol. 1—55 866 INFORMATIONS AND BILLS IN EQUITY [§150 was held to be insufficient.^* The bill should show that the copies required by the statute have been deposited in the copyrighted office or in the mails postage prepaid duly addressed to the Registrar of Copyrights.^^ "When the subject of the copyright is a moving picture play it is sufficient to. describe it in the bill as a moving picture photograph or photoplay and to allege that "said moving picture photograph or photoplay not having been reproduced in copies for sale, ' the complainant deposited with the register of copyrights ,, the claims for copyright, the title and description and prints from each scene or act of the drama" naming it "and received the certificate of registration."^® In such a case the ownpr of the film and the lessees of the rights in the district where the infringement was committed may be joined as complainants.^'' An allegation in a bill to restrain the infringe- ment of the copyrights in photographs, that the plaintiff's as- signor filed two complete copies of photographs, was held to be insufficient because it omitted the averment that these were com- plete copies of the best edition thejji published.^' Such a bill must also show that the photographs were capable of copyright.^' The following allegation in a suit to enjoin the infringement of a copyright in a moving picture play was held to be sufficient : "that, said moving picture .photograph or photoplay not having been , reproduced in copies for sale, the complainant deposited with the register of copyrights the claims for copyright, the title and description and prints from each scene or act of the drama, 'The International Conspiracy,' and received the cer- tificate of registration."*" The owner of the copyright and his licensees or lessees within a certain territory may join in a suit to enjoin an infringendent in such territory when the licensees or lessees have agreed to return the copyright upon the termination of their rights.*^ The licensee of the playright is ordinarily an improper party to a 14 ibid. ' 17 Ibid. Supra, §112. 16 N. Y. Times Co. v. Sun Print. 18 Crown Feature Co. v. tevy, 202 & Pub. AsB'n, C. C. A., 204 Fed. Fed. 805. 586; Crown Feature Film Co. v. 19 Ibid. Levy, 202 Fed. 805. 20 Gaumont Co. v. Hatch, 208 Fed. 16 Gfaumont Co. v. Hatch, 208 Fed. '378. 378. 21 Ibid. § 150] COPYBIGHT CASES , 867 suit to, protect the moving picture rights.*" When the copyrights to a series of pictures have been , infringed, the complainant should join in a single suit his prayers for an injuoption and profits or damages and if he bring separate suits founded on the infringement of the copyright on each separate picture, it has been said that they should be consolidated.*' ,A11 persons who have united in an infringement may be -joined as defendants although they may not be jointly liable for all the profits.** The bill must further show that the person in whose name the copyright was obtained was the owner of the article copyrighted and was entitled to the copyright.** It was held suflScient to allege, that the, complainant's assignor was the sole and, exclusive owner and proprietor of certain copy- righted productions without an allegation of the facts showing how the complainant became proprietor and his right toisiiij;.** It has been held that an allegatipn that, the sole right of printing and publishing has been sold,' is not sufficient to show ithatjthe - copyright has been transferred.*!' , : ; The copyright rules further provide: , , ; "3. Upon the institution of any action, suit orjaroceieding, or at any time thereafter, and before the entry of final jndgiment or decree therein, the plaintiff , or complainant, or , his authorised agent oriattorney, may file with the Clerkof any Court i given jurisdiction under section 34 of the Act, of March 4, 1909, an affidavit stating upon the best of his knowledge,, information and belief, the number and location, as near as. may be,' of the alleged infringing copies, records, plates, molds, matrices, etc'., or other means for making the copies alleged to infringe the copyright, and the value of the same, and with such affidavit shall file with the Clerk a bond executed by at least'two sureties and approved by the Court or a Commissioner thereof I "4. Such bond shall bind the sureties in a specified sum, to be as Tully V. Triangle Film Co., 229 Amusement Co., 148 FeS. 642. See Fed. 207. , Photo Drama Motion Picture Co. v. 23 L. A. Westermann Co. y. Dis- Social, Uplift Film Corp., ^13 Fed. patch Printing Co., C. C. A., 233 .374. Fed. 609. 26 Crown Feature Film Co. v. 24 Gross V. Van tiyk Gravure Co., Levy, Sd2 Fed. 805. 230 Fed. 412. ' 27 Ford' v. Charles E. Blaney 26 Ford V. Charles E. Blaney Amusement Co., 148 Fed. 642, 645. 868 iNPORMATioisrs and biLls in equity [§ 150 fixed by the Court, 'but not less than twice the reasonable value of «U(3h infringing copies, plates, records, moldsj matrices, or other means for making such infringing' copies, and be con- ditioned' for the prompt proseCutidn of the action, siiit or pro- eeedihg; for the return of said articles to the defendant, if they or any of them are adjudged not to be infringements, or if the action abates, or is discontinued before they are returned to the defendant ; attd for the payment to the defendant of any dam- ages which thb Court may award to him against the plaintiff or complainant. Upon the filing of 'said affidavit and bond, and the approval of said bond, the clerk shall issue a writ directed to the Marshal of the district where the said infringing copies, plates, records, molds, matrices, etc., or Other means of making such infringing copied' sha;ir be stated in said affidavit to be locatied, and generally to a,ny Marshal of the United States, directing the said Marshal to forthwith seize and hold the same subject to the order of the Court issuing said' writ, or of the Court of the district in which the seizure shall be made. <. "5. The Marshal shall thereupoil^ seize said articles or any smaller or larger part thereof he may then or thereafter find, using such force as may be reasonably' necessary in the premises, and serve on the defendant a copy of the affidavit, writ and bond by delivering the same to him personally, if he can be found within the district, or if he caiinot be found, to.his agent^ if any, or to the person from 'whose possession 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 dis- cretion, 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 tbe fact of such seizure and warning all persons from in any manner interfering therewith. "6. A Marshal who has seized alleged infringing articles, shall retain them in his possession, keeping them in a secure place, subject to the order of the Court. ■ "7. Within three days after the articles are seizied, aild,a.copy of the affidavit, writ and bond are served as hereinbefore pro- vided, the defendant shall serve upon the clerk a notice that he excepts to the amount of the penalty of the bond, or to the § 150] COPYRIGHT CASES ■ , 869 sureties o^f ijxe plaintiff or complainantj 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' exe(3ut,ed. by the plaintiff or complainant, or in default thereof within a; time i to be named by -the Court, the property to be returned to the defendant. •'.'8. Withip,; Jtpn, days ;aftesr service of ; such notice, the at- torney of the plaintiff or complainant shall serve upon the defendant op bis attorneyi a notice of the, justification of the sureties,,,andi said sureties shall justify before, the Court or a Judge thereof at,, ihe I iime therein sta,ted. "9. Tihe defejadant, if he, does i not except to, the amount of the penalty of .the bo^d. Pi*:the sufBcieney of the sureties of the plaintiff or complainant, may, make application to the Court fpr the return to him of the articles seized, upon fil- ing an afiSdavit stating all material .facta and circumstances tending to show that the .articles seized are not infringing copies, records, plates,; molds, mati^iceSj or means for making the copies alleged to, infringe ;the copyright. , "10. Thpreppon the Cpuril; in its discretion,, a;£ter such, hearing as it, may dijpect, m.ay or(^^ir..such, i;eturn upon the filing by the defendant pf a bpnd executed by ^^t.^^^^st two sureties, binding them in a specified sum to,,b6 i^?^ i^, J-J^P discretion of the Court, and conditioned (for the delivery qf said specified articles to abide the order pf the CourL The plaintiff or complainant may require such sureties to justify within ten days of the filing of such bond. "11. Upon the.grantjng of such application and the justifi- cation 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 qf such Marshal. "13. For services in cases arising under this section, the Mar- shal shall be entitled to the same fees as are allowed for similar services in other cases. " ** The court cannot grant an order to show cause why articles : «8 214 TJ. S.: 533, 53 L. ed. 1073. Seo §91, supra; §,878, tn/rs, 870 INPORMATIOiTS AND BILLS m EQUITY [§'151 thus' impounded should' not be returned excefpt upon presen- tation of the aflSdavii required by copyright ' rule 9.*' A de- fendant who moves for a'iar^er 'botid' bjr' plaintiff and obtains the same waives any right he might otherwise halve to vacate the wtit' of seizure and have the article returned.®' § 151. Bills in equity under the Interstate Ooimnerce La^w. The appropriate courts of the United' States have jurisdietiom: to entertain bills in' equity to enforce, otherwise tban by adjudi- cation and collection of ' forfeiture of penalty or by infliction of criminal punishinetit, aUy Order 'of the Interstate Commerce Commission other' than for the palymerit of'mraiey.^' Such suits may be brought by the' United States,* arid also by private indi- viduals, for whose benefit the orders werfe made,' such as an order awarding reparation to shipper fOr an unlawful charge.* No court of the United States has jurisdictibn of a suit to enjoin an uril-easonable chkrge for transportation' until the Interstate Commerce Commission has passed upon the question ; " but where, pending a suit tO enjoin an unreasonable increase in freight rates, the complainants applied to the Iriterstate Com- merce Commission, which decided in their favor, the court finally reiidercfd' a decree upori its findings and Conclusions.^ The court formerly had jurisdiction to restrain a railroad cbmpjaiiy from refusing to accept and carry liquor because 6f an unconstitutional statute of the State irite whicK the liquor was to be tfansported.' jTurisdiction has been taken of a suit by citizens of a State engaged in the lawful sale of liquor there io en- join an express company from accepting for transportation 29 Crown reature Film Co. V. ' Grocery Co. v. Atlantic C. L. E. Co., Bettis Amuseftient Co., 206 Fed. 362. 163 Fed. 736, 738; aff'd in 215 TJ. 30 Universal Film Mfg. Co. v. Cop- S. 501, 54 L. ed. 300. But see Jew- perman, 206 Fed. 69. ett Bros. & Jewett v. Chicago, M. & § 151. 1 25 St. at, L. 859; 32 St. St. P. Ey. Co., 156 Fed. 160; Colum- at L. 847; TJ. S. v. Michigan Cent. bus Iron & Steel Co. v. Kanawha R. Co., 122 FdA. 544; jud. Code, § & M. Ey. Co., 171 Fed. 713; Hous- 207, 36 St. at' L. 1087. See supra. ton Goal & Coke Co. \. Norfolk & "W. a U. S. V. Michigan Cent. E. Co., Ey. Co., 171 Fed. 723. 122 Fed. 544. 6 Southern Ey. Co. v. Tift, 206 3 Chicago,' B. & Q. E. Co. v. Fein- V. S. 428, 51 L. ed. 1124. tuch, C. C. C, 191 Fed. 482. 7 Clark Distilling Co. v. Western 4 Ibid. Maryland Ey. Co., 242 U. S. 311. 5 Southern Ey Co. v. Tift, 206 See Boyal Brewing Co. v. Missouri U. S. 428, 51 L. ed. 1124. Cf. Macon K, & T, Ey. Co., 217 Fed. 146. § 151] BII - 44 Louisville & N. E. Co. T. United 38 Skinner & Eddy Corp.^ -v. -U. S., • States,'^ 216 Fed. 672. 249 U. 8. 557. « Atchison, IS. & 8. F. By. Co. t. 39 M. C. Kiser Co. v. Cent, of Sp-ille'r, C. C.iA.,-346 Fed. 1, 19. Georgia Ey. Co., 236 Fed. 573, ,§il51a] BIIiL^ lUNDER THE ANTI-TRUST LAWS 875 aal proceeding before the commission has been idenied* A, pe- tition for a rehearing of I an application by, the 'carrier to which he was not a party will not justify the review of an order upon the suit of a shipperj^' < ,1,, §.151a. Bills under rthe Anti-Trust Laws. .The Clayton Act of October 15, 1914, .provides: "'Antitrust lawSj.' as' used hepeiUj includes the Act entitled 'An Act to protect trside and commerce against unlawful restraints: and monopolies,' approved Julyseeond, eighteen hundred .and ninfety:; sections seVenty-three to seventy-seveUj inclusive, of an Act entitled 'An Aettoxeduefc taxation, to provide revenue fpr the Government, and for other purposes,' of August twenty ^seventh, eighteen hundred and I ninety-four ; an Act. entitled 'An Act to amend .sectLoms seventy- three' and ; seventy-six of the Aotof August tweaty -seventh, eighteen hundred and ninety-four, entitled 'An Act to reduce taxation, to provide revenue for the Government and ior other purposes,' approved February twelfth^ nineteen, hundred' and thirteen; and also this Act. • ■■ , ' ' ' Commerce, ' as used herein, means trade or commerce among the several states and with foreign nations, or between the Dis- trict of Columbia or any Territory -of the United States - and any State, Territory, or foreign nation or between any insular possessions or other places Under the jurisdiction of the United Statete, or between any such possession or place and' any State or Territory of the United States or the District of Columbia or any foreign nation,- or within thfe Distrifct of Cblumbia or any Tei'ri- tprjy^or any insular possession or other pld,c6 under t'be' juris- diction of the United States :^ Provided, that pothing jn this .^ct contained shall apply ito the Philippuie Islands. J ; . , •"The word 'person' «r 'persons' w'hereyer. usedi in this 'Act shiall be deemed to' iiiclude cbrporatibns' and 'asst>eiati6iis -Existing under or authorized by the laws of either tM United , States, thp laws of any of the Territprjes, the laws of any State, or the laws of any foreign country, '' ^:« • ■ "The labor of a liuinan being is hot a commodity or article of comnierce. , Nothing contained in the antitrust laws shall be tbn- 46 United,, States ,v. Mqrchaats & 1914, "ch. 323,i" § J, 3.8 ?t. ftt; Lf 730. Mfgr 's, Traffic Ass '% ,242 IlrS. 178. Comp. St. § 8835a. - § 151a, - . 1 Act : of October ,15, 876 INFORMATIONS AND BILLS IN EQUITY [§ l51tl strued to forbid the existence and operation of labor, agricul- tural, or horticultural Organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organ- izations from lawfully- carrying out ithei ileigitimate objects thereof; nor shall such organizations,! or the members thereof, be held or construed to be illegal combinations or eonspirajeies in restraint of trade, under the antitrust laws." * By the Act of July 2, 1890, !'E-<^ery person who shall monopo- lize, or attempt to monopolize, or combine or conspire, with' any other person or persons, to monopolize any part of the trade or commerce among the several i States, or with foreign nations^ shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not- exceeding five thousand dollars, or by imprisonment not exceeding one year,, or by both said punishments, in the discretion of the court.'' *• . "Every contract, combination in form or trust or otherwise, or conspiracy, in restraint of trade or commerce in any Terri- tory of the United States or of the District of Columbia, or in restraint of trade or commerce between any such Territory and another, or betwefen any such Territory or Territories and any State or States or the District of Columbia, or with foreign na- tions, or between the Distract of. Columbia and any State or States or foreign nations, is hereby declared illegal.^ Every 2 Act of October 15, 1914, iCh. 323, & Co, v. Lpwry, ;93 U;,S, 38, 48 L. §6, 38 St. at L. 731, Oomp. St. ed. 608; Northern Securities Co. y. §8835f. y: ■ . .■ . u g ]9'3:pr g ]^^7^ ^gL g^_ g,^9. 3 Act of July 2, 1890^ eh. 647, § 2, Minnesoia v. Northern Securities 36 St. at L. 209, Compi St. §8821; Co.;' 194 TJ. S., 48, 48 L. ed. 870; 4U. 8. V. E. C. Knight Go;, 156 Swift & Co. v. U. S., 196 U,;S. 375, U. S. 1, 39 L. ed. 325; U.^S.. v. 49 ,L., ed. 518; Loewe v. Lajrler, 208 Trans-Missouri Freight Ass'n, 166 U., S. 274,, 52 L. ed. 488; Shawnee XJ. S. 290, 319, 41 L. ed. 1007; tJ. S. ^ Compress' Co. v. Anderson, 209 TJ. V. Joint Traffic Ass'n, 171 TJ. S. 505, S. 423," 52 L. ed. 865; Continental 43 L. ed. 259; Hopkins v. TJ. S., 171 Wall Paper. Go. ,v, Voight & Sons TJ. S. 578, 586, 43 L. ed. 290,; 293; Co., 212 U. S, 227,, 53 L. ed. 486; Anderson v. TJ. S., 171 XI. s! 604, Standard Oil Co. v. TJ. S., 221 TJ. S. 43 L. ed. 300 ; Addyston Pipe & 1, 55 li. ed. 619,' 34 L.E.A.. (nIs.) Steel Co. V. TJ. S., 175 TJ. S. 211, 44 834 ; TJ. S. v. Am.. Tobacco Co., 221 L. ed. 136; affirming TJ. S. v. Addys- TJ. 8. 106, 55 L. ed. 663; TJ.- S. v. ton Pipe & Steel Co., G. C. A., 46 Terminal R. E. Ass'n of St. Louis, L.R.A. 122, 85 Fed. 271; Montague 224 TI. S. 383, 56 L. ed. 810; Stand- § ir)la] BILLS UNDEK- THE ANTI-TRUST LAWS 877 person who shall make any such contract, or engage in any such combination or conspiracy, shall be deemed guilty of a misde- meanor, and, on conyietion thereof, shall, be punished by fine not exceeding five thousand, dollars, or by imprisonment not exceed-' ing one year, or by both said punishments, in the discretion of the court. " * !, By the Act ,of February 12, 1913 : "Every combination,; con- spiracy, trust, agreement, or contract is hereby declared to. be contrary to public policy, illegal, and void when the same is made by or between two or more persons or corporations either of whom, as agent . or principal, is engaged iu importing any article from any foreign, country into the United States, and whexi such combination, conspiracy, trust, agreement, or con- tract is intended to operate in restraint of lawful trade, or . free competitioii in lawful trade or commerce, or to in- crease the market price in any part of the United States of any article or articles imported or intended to be unported into the United States, or of any nianufacture into which such imported ard Sanitary Mfg. Co. v. IT. S., 226 TJ. S. 20, 57 L. ed. — ; TJ. S. v. Union Pae. K. E. Co., 226 XJ. S. 61, 57 L. ed. 53; a. c, 226 IT. S. 470, 57 ,L. ed. 90; TJ. S. v. Union Stock Yard Co. of Chicago, 226 U. S. 286, 57 L. ed. — ; U. S. v. Patten, 226 U. S. 525, 57 L. ed. — ; U. S. v. Jellico Mountain Coke & Coal Co., 43 Fed. 898; s. c, 12 L.R.A. 753, 46 l^ed. 432 ; Bigelo-w v. Calumet & Heela Min. Co., 155 Fed. 869. See U. S. V. Delaware & Hudson Co., 213 U. S. 366, 53 L. ed. 836; U. S. V. Lehigh Valley R. R. Co., 220 U. S. 257, 55 L. ed. 458; U. S. V. Reading Co., 226 U. S. 324, 57 L. ed- 90; American Biscuit & Mfg. Co. V. Klitz, 44 Fed. 721, 725, 726. 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; Mon- tague & 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 Securi- ties; 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 U. S. 423, 52 L. ed. 865; Continental Wall Paper Co. v. Voight & Sons Co,j 212 U. S. 227, 53 L. ed. 486; U. S. v.. Lehigh VaHeyR. R. Co. 220 U. S. 257, 55 L. ed; 458; Standard Oil Co. V. U. S., 221 U.. S. 1, 55 L. ed. 619, 34 .L.TB.A. (N.S.) 834; U. S. V. Am. Tobacco Co., 221 U- S. 106, 55 L. ed. 663; U. S. v. Union Pac. R. R. Co., 226 U. S. 61, 57 L. ed. 53; s. 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. t. Jellico Mountaiu Coke & Coal Co., 43 Fed. 898; s. c, 12 L.R.A. 753, 46 Fed. 432; Bigelow v. Calumet & Heela Min. Co., 155 Fed. 869. See American Biscuit & Mfg. Co. v. Klitz, 44 Fed. 721, 725, 726. 6 Act of July 2, 1890, eh. 647, S 3, 26 St. at L. 209, Comp. St. i 8822. 878 INPOBMATJONS AND BILLS IN EQUITY [§ 151a article' enters or is intended to enter. Every person who is or shall hereafter be engaged in the importation of goods or any commodity from any foreign country in violation of this section of this Act, or who shall combine or conspire with another to vio- late the same, is guilty of a misdemeanor, and on conviction thereof in any court of the United States such person shall be fined in a sum not less than one hundred dollars and not exceed- ing five thousand dollars, and shall be further punished bj' im- prisonment, in the discretion of the court, for a term not less than thtee months nor exceeding twelve months.''* By the Clayton Act : "Any person who shall be injured in his business or property by reason of anything forbidden in the anti- trust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee."'' Such an action must be brought at common law.* When brought by a stockholder it must be in equity,^ but it has been said that treble damages cannot be recovered in a stockholder's suit.^" The com- plainant must show that the plaintiflE was injured by reason of a coiitract or combination in restraint of trade in violation of the act.^^ A complaint was held to state no cause of action where it alleged that "the bank of which plaintiff was the re- ceiver entered into agreements with two other banking com- panies, whereby the three formed a combination to control the 6^ct of August 27, 18594, '28 St. at cover three-fold the damages by him ti. p70, oh. 349, § 73, as amended, 37 sustained, aiid the costs of suit, in- St, at L, 667, ch. 46,, Cbmp. St. eluding a reasonable attorney's §8831. , . : ■ fee." (26 St. at L. 210, ch. 647, 7 38 St. at L. 731, ch. ^28, § 4, §7, Comp. St. §8829). jDomp.St. §8835d. Supra, i 61. SFleitmanu v. Wellsbach St. ' By the act of August 27, 1894, Lighting Co., 240 TJ. S. 27. "Any person wlio shall be injured in 9 United Copper Securities Co. v. his business or property" by any Amalgamated Copper Co., 244 U. ^. other person or corporation by rea- 261, distinguishing and modifying; son of anything forbidden or de- Pleitman v. Wellsbach Street Light- clared to be unlawful by this Act ing Co., 240 TJ. 8. 27. may sue therefor in any circuit lOFleitman v. Wellsbach St. court of the United States in the dis- Lighting Co., 240 U. S. 27, afflrni- trict in which the defendant resides ing C. C. A., 211 Fed. 103. or ^is found, without respect to the H Noyes v. Parsens, C. C. A., 245 amount in controversy, and shall re- Fed. 689. § :151a] BILLS UNDER THE ANTI-TBUST LAWS 879 banking business at a particular point, that the corporation . of which he was the receiver and another of the three acquired the stock of the third, and that uitimately the first, of which plaintiff was receiver, was absorbed by the second corporation. The complaint alleged as elements of damage the amount paid by the second bank to the stockholders of the first bank, of which he was receiver, which was in excess of the actual value of the stock, on the theory that the bank was deprived of some right, and as other items of damage alleged that it ultimately became insolvent;" that his corporation which previously had a surplus of $110,000 above its liabilities to creditors, became insolvent so that its assets were reduced to more than $500,000 below such liabilities.^* Construing the pleadings, the court cannot take judicial notice of decisions in the State courts in actions by Other plaintiffs to which the defendant was a party.^' By the Clayton Act : ' ' The several circuit courts of the United States are hereby invested with jurisdiction to prevent and re- strain violations of § 73 of this: Act; and it shaljl be the duty,pf the several district attorneys of the United States,' in their re- spective districts, under the direction of the Attorney C-eneral^ to ijnstitutfi proceedings in equity to prevent and restrain such, viola- tions. Such proceedings may be by way of petition setting f 9rth the case and pjraying that such violations shall be enjoined or otherwise prohibited. When the parties complained of shall have IZNoyes v. Parsens, C. C. A.," 245 have paid at- the rates -charged' the Fed. 689; Homestead Co. v. Des Leader Companyi that on account of Moines Electric Co., C. C. A., 248 its competitive relation vpith that Fed. 439, held that: "the com- Company it was compelled to sell plaint states facts suficient to sus- the product of its job printing 'and tain an action in tort for damages photo-engraving business at the under the statute. It sufficiently prices set by the Leader Compaay, states like contemporaneous serv- aiid that, ' its overhead expenses be- ices to the job printing and photo- ing undiily increased by the unfair engraving plants of the two com- requirements of defendant," plaintiff petitors, and like business situa- was deprived of its fair and legiti- tion and circumstances of the com- mate profit and damaged to" the ex- petitoTS and of their plants, and the tent' of said overcharge.' The com- charge and collection from one of plaint then 'demands damages rates 2% times the rates collected against defenSant for the sum of of the other, avers that this dis- $2,950.46 actual damages with in- crimination compelled the plaintiff terest thereon.' " to pay for substantially like serv- iS'Strout v. trnited Shoe'Maoh. ice $2,950.46 more than it would Co., 208 Fed. 646, 653. 880 INFORMATIONS AND BILLS IN EQUITY [^ .1 51a been duly notified of such petition, the court shall proceed, as soon as may be, to the hearing and determination of the case; and pending such petition, and before final decree, the court may at any time make such temporary restraining order or prohibi- tion as shall be deemed ju^t in the premises. Whenever it shall appear to the' court before which any such proceedings may be pending that the ends of justice require that other parties should be brought before the court, the cOurt may cause them to be summoned whether they reside in the district in which the court is held or not, and subpoenas to that end may be served in any district by the marshal thereof. ' ' '* The order may be obtained as soon as the bill is filed before the issue of a subpoena for the resident defendant and without notice to him.^^ The word "found" means that the corporation must be present in the dis- trict, or its ofScers or agents carrying on its business.^® What constitutes such a business as will subject a corporation to serv- ice of process depends upon the facts in each ease.^' The general I'ule -is that the business must be of such a nature as to war- rant the inference that the corporation has subjected itself to the local jurisdiction.^' The ownership of stock in local cor- porations, the publicaition of advertisements within the district, and the presence there of agents without authority to sell, to col- lect, or to extend credit, who solicit orders which are filled by 14 Clayton Act, October 15, 1914, been .duly notified of such petition eh. 323, § 15. 38 St. at L. 736, Comp. the court shall proceed, as soon as St. 8835. The former statute, was may hie, to the hearing and determi- as follows: "The several (circuit nation of the case; and pending courts) of the United States are such petition and before final de- hereby invested with jurisdiction to cree, the court may at any time prevent and restrain violations pf make such temporary restraining this act; and it shall be the duty order or prohibition as shall be of the several district attorneys of deemed just in the premises. " July the United States, in thpir respec- 2, 1890,. eh. 647, §4, 26 St.. at L. tive districts, under the direction of 209.) See § 61, swpra. the Attorney-General, to institute 16 See supra, § 61. proceedings in equity to prevent. and 16 People's Tobacco Co. v. Am. restrain such violations. Such pro- Tobacco Co., 246 U. S. 79, 84; U. eeedings may be by way of petition S., v. Am. Bell Tel. Co., 29 Fed. ,17, setting forth the case and praying infra, § 164b. that such violation shall be enjoined 17 Ibid. See infra, § 164b. ■ or Otherwise prohibited. When the ^*Ibid. V- S. v. Am. Bell. Tel. parties complained of shall have Co.. 29, Fed. 17. § 151a] BILLS UNDER THE ANTI-TEUST LAWS' 881 jobbers who buy from the corporation, will not subject it to the service of process there.^^ , "Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United- States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, including sections two, three, seven and eight of this Act, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunc- tion improvidently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue : Provided, That nothing herein- contained shall be construed to entitle any person, finn, corporation, or association, except the United States, to bring suit in equity for injunctive relief against any common carrier subject to the provisions of the Act to regulate commerce, approved February fourth, eight- een hundred and eighty-seven, in respect of any matter subject to the regulation, supervision, or other jurisdiction of the Inter^ state Commerce Commission. ' ' ^ The Clayton Act is not retrospective.^^ Under the former law an individual could not maintain a suit for an injunction.*^ No injunction can now be granted to parties not showing special injuries to themselves.*' Under the former law it was held that such a suit could not be brought by a stockholder who had suf- fered ho special injuries.** It has been held that the court will not enjoin a clause in an agreement between competitors in Interstate Commerce when there is no evidence that it has been put into effect or that prep- arations have been made for that purpose,** and that the Clayton 16 Ibid. 24 Paine Lumber Co. V. Neal, 244 20 38 St. at L. 737, cli. 323, § 16, U. S. 459, 471 ; Keteham v. Denver Comp. St. § 8350. & B. G. R. Co., C. C. A., 248 Fed. 21Ketchara v. Denver & R. G. E. 106. Co., C. C. A., 248 Fed. 106. 25 U. S. v. Prince Line, 220 Fed. 22 Paine Lumber Co. v. Neal, 244 230. U. S. 459, 471. SSVenner v. Pennsylvania Steel Co., 250 Fed. 292 Fed. Prae. Vol. 1—56 882 INFORMATIONS AND BILLS IN EQUITY [glSla Act is limited to suits seeking preventive relief and does not au- thorize a suit to annul a transaction which has been completed.^® A bill to enjoin the consolidation of two corporations as being in violation of the Anti-Trust Laws of certain States was held to be insufficient when it did not show that any restraint was caused by the consolidation upon transportation exclusively in any one of such States.*'' It has been held that a stockholder who bought his stock with knowledge that a consolidation or combination of railway companies was contemplated cannot sue to enjoin the proceedings as in restraint of trade.^* : "Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the Judicial district whereof.it is an inhabitant, but also in any district where- in it may be found or transacts business ; and all process in such cases may be served in the district in which it is an inhabitant, or wherever it may be found; " *® ;• ■ Where the defendant transacts business within a distrietl it may be sued in the District Court there held, although it has no agent within such district, service being made, at the defendant's domicile.'" , ;, It has been held that it cannot be sued in a district where ,it is not incorporated and transacts no business ; although its agent is found there, when the latter is not acting in his representative capacity.'^ , , , ■ • The Act of.J.uly 2, 1890, provides : ■" WJienever it shall appear to the court before which any proceeding- under sectifln fpur of this act may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether tbey reside in the district 26 Venner v. Pennsylvania Steel any circuit court of the United Co., 250 Fed. 292. States in the district in which the 27 De Koven v. Lake Shore & M. defendant resides or is found, with- S. Ey. Co., 216 Fed. 955. out respect to the amount in eon- 28 Continental See. Co. v. Inter- troversy, and shall recover tliree borough E. T. Co., 221 Fed. 44. fold the damages by him' sustained, 29 38 St. at L. 731, Comp. St. and the costs of suit; including a § 8835d, supra, § 61. By the Act of reasonable attorney 's fee. " July 2nd, 1890, "Any person who 30 Southern Photo Material Co. shall be injured in his business or v.- Eastman Kodalt Co., 234^ Fed. property by any other person or 955. ■ - corporation by reason of anything 31 Frey' & Son v. Cuda:hy Packing forbidden or declared to be unlaw- ' Co., 228 Fed. 209. ■ - ful by this act, may sue therefor in ■ ~ §'i51a] BiLliS iUNDER' THE^ ANTI-TRUST LAWS 883 in which the court is held or not; and subpoenas to that end may be Served in any distict by the marshal thferBof." '* ■'•'A'final judgment or decree hereafter rendei"ed in any crimi- nal prosecution or 'ill' any suit or proceeding in equity brought by or on behalf of the United States under the antitrust' laws to the effect that a defendant has violated said laws shall be prima facie evidence against 'Such defendant in any suit or proceeding brbught' by any 6ther p&.rty igaiilst such defendant under said laiws as to'' stll mEitterS respecting which said judgment or decree would be an estoppel as between the parties thereto : Provided, This section shall not apply to consent judgments or decrees en- tered ' before any testimoiny has been taken: Provided furiher, This section shall 'not apply to consent judgments or deerees ren- dered in criminal' proceedings or suits in equity, now pending, in which the taking' of testimony has been commenced but has not been concluded, provided such judgmehts or decrees are ren- dered before any further "testimony is taken.^^ ''Whenever any suit or proceeding in equity or criminal prose- cution is instituted by the United States to jirevent, restrain or punish violations of any of the antitrust laws, the running of the statute of limitations in respect of each and every private right of action arising under said laws aiid based in whole or in part on any matter complained of in said suit or proceeding shall be suspended during the pendency thereof. ' ' ^* This section of the statute is not retroactive either as regards the rule of evidence or' the application of ' the statute of limita- tions which it provides.'* Ely the Act' of June 28, 1910 : '""In an'y suit in equity' pending or hereafter brought in any Cii'cuit Court" now in aily' District Court "of the United States under the Act entitled 'An 'Act to protect trade and commerce agaiiisl; unlawful restraints and monopolies,' approved July sec- ond, ' eighteen hundred 'and ninety, 'Ah Act to regulate com- S2 26 §t. at L., "21b, cii. 647, § ^,' | ch. 114, 37 St. at L. 731, Comp. St. Comp.'St. §8827. '■''' ' ' § 8826. ' ' SS38 St. at L. 731, ch. 323, §5, 3688 StJ at. L. 731, :eh. 323, §5, Coinp. ^t. § 8835e. ' Comp. St. § 8835e. See infra, ■' .34 Buckey^', Powder Co.'v. E. I. §§'18^, 333p. !Du Pont. ,Pe,! Nemours Powder Co., 248 U. ■^.'SS.' 'Act' of March 3, 1913, 884 INFORMATIONS AND BILLS IN EQUITY [§ 151a meree, ' approved February fourth, eighteen hundred and eighty- seven, or any othey Acts having a like purpose that hereafter may be enacted, wherein the United States is complainant, the At- torney-General may file with the clerk of such court a certificatej tha^t, in his opinion, the case is of; general publie importance,, a copy of which shall be imniediately furnished by ^ueh clerk to each of the (circuit) judges of the circuit in which the case is pending. Thereupon such case shall be given precedence over others in every way expedited, and be assigned for hearing, at the earliest practicable day, before not less than three of the circuit judges of said circuit, if there be three or more ; and if there be not more than two circuit judges, then before them and such district judge as they may select ; or, in case the full court shall not at any time be made up by reason of the, necessary absence or disqualification of one or more of the said circuit judges, the justice of the Supreme Court assigned to that circuit or the other circuit judge or judges may designate a district judge or judges within the circuit who shall be competent to sit in said court at the hearing of said suit. In the event the judges sitting in such case shall be equally divided in opinion as to the decision or dis- position of said cause, or in the event that a majority of said judges shall be unable to agree upon the judgment, order, or decree finally disposing of said case in said court which should be entered in said cause, then they shall immediately certify that fact to the Chief Justice of the United States, who shall at once designate and appoint some circuit judge to sit with said judges and to assist in determining said cause. Such order of tjie Chief Justice shall be immediately transmitted to the clerk, of the Cil'cuit Court in which said cause is pending and shall be entered upon the minutes of said court. Thereupon said cause shall at once be set down for reargument and the parties thereto notified. in writing by the clerk of said court of the action of the court and the date fixed for the reargument thereof. The provi- sions of this section shall apply to all causes and proceedings in all courts now pending, or which may hereafter be brought. ' ' '* This section of the earliest Act upon the subject was not re- pealed by the Judicial Code.''' 36 36 St. at L. 854, ch. 428, Comp. 57 L. ed., setting aside TJ. S. v. St. §8824. Terminal Ass'n of St. Louis/ 197 sn Ex parte V. S., 226 V. S. 420, Fed. 446, iji/ro, §§ 373, 374. S''"'U)| PETTING ASIDI'. NATURAlilf'.ATlOX 885 It, applies to the settleimejit of a decree upon the mandate of the, Supreme Court.*': It has been said that it does; not require three judg^ to hear a motion for a preliminary injunction, or for any interlocutory r^Uef sOJlght before the formal Ihearingv?* , "In the 1 taking, of depositions of witnesses for use in any suit iu equity brought by the i United States under the Act lentitled .'lAn Act to , protect trade and commerce against unlawful re- straints and monopolies, ' approved July second, elghteeni hun- dred 3,nd ninety, and in the hearings before any examiner or special master appointed, to take testimony therein, the proeeed;- ings shall be open to the public as freely as are trials in open eoui^t ; and no order . excluding the public from attendance on any siich proceedirigs sliall be vftlid or enforceable. ' f *" This stat- ute was p9,ssed to obviate the effects of a ruling that the testi- mony might be, taken in secret.*^ § ISib. Suits and propeedinirs to canc^ certificates of cit- izenship and to set aside naturalization. , A bill in equity: will Ijie to set aside, a , certificate , of citizenship or of naturalization obtained by fraud.^ It has been held that such a suit cannot be maintained; when there is an error in the proceedings but no will- ful misconduct on ttie.part of the holder of the certificate or those T5(ho have acted on his behalf. Errors in proceedings for nat- uralization have, been reviewed by writ of error * and appeal.* The more usual rem,edy however is tl\e institution of summary proceedings under the Act of June 29, 1906.* This provides : SSIbid. , 1 • ', 2tr, S. T. Lenore,, 207 Fed. 866. 39 Southern Pac,. Terminal Co. v. See TJ. S., v. Luria, 184 Fed, , 64,S, Interstate Commerce Commission,' 646J Contra, TJ. S. v. Nisbit, 168 166 Fed. 134, 136. ■ Fed. 1005; TT. S.'v. Vandetinoien, 40 37 .St. at; L. 731, Comp. St. 163 Fed. 650. See U. S. v. Ahder- f8826. ,, , ,, . sen, 169 Fed.; 201. ,; 41 U. S. y. United Shoe Machin: . ,, » U. S., v.pzala, C., C. A., 182 Fed. ery Co. of New Jersey, 198 Fed. 51; TJ. S.^v.. Balsara, C. C- A., 180 870. '■ . . f . ' ; ■ Fed. 694, Bessho V. tJ. S., C. b. A, 178 §151b. lU. S. V. NoMch, 42 iPed. 245; U: S. v. Poslusny, C. C. Fed. 4X7. But see XT. S. v. Amder- A., 179 Fed. 830; U. S. v. Martor- sen, 169 Fed. 20. Contra, U. S. v. ana, C. C. A., 171 Fed. 397 ; TJ.: a Schurr, 163 Fed. 648; ,U. S. y. , v. Doyle, C. C- A., .1,79 Fed. 687. Meyer, 170 Fed. 983; TJ. S. v. Plais- See also TJ. S. v, Lenore, 207 Fed. tow, 189 Fed. 1007; U. S. v. NisWt, 865; TJ. S. v. SmitTi, 247 Fed. 131; 168 Fed. 1005; U. S. v. Vander- TJ. S. v: Ozala, C.C. A., 182 Fed. 51. molen, 163 Fed. 650. But see Jo- 4Ch. 3592, § 15, 34 St. at L. 601. hanessen, 225 TJ. S. 227, 240. 886 INPOEMATIONS AND BILLS IN EQUITY [§ 15.1b "It shall be the duty of the United States district attorney for the respective distribts, upon affidavit' showiiig good cause therefor, to institute proceedings 'iii any court havifig' jurisdic- tion to naturalize aliens in the judicial district in which the nat- uralized citizen may reside at' thB^ time of bringing the suit, for the purpose of setting asi(fe and canceling the cei-tificate of citizenship on the i^ound of fraud or on the ground thait such certificate of citizenship was illegially procured. In any such proceedings the party holding the certificate of citizenship al- leged to have been fraudulently or illegally procured shall have sixty days personal notice in which to make answer to the peti- tion of the United States; and if the holder of such certificate be absent from the United States or from the district in Which he IJast had his residence, such notice shall be given by publication in the manner provided for th^' service of Summ&ns by publica- tion or supott' ^ab'sente'efe by the laws of the State or the place where such suit 'is bi^oughl • '-'-- ' ' '' "If any alien who shall have secured a certificate of citizenship under the provisions of this Act, shall, within five years after the issuance of such certificate, return to the country of his nativity, or go to any other foreign country, and take permanent residence therein, it shall be considered prima facie evidence of a lack of intention: on the part of such alien to become a permanent citi- zen of the United States at the time of filing his application for citizenship, and, in the ibseniJe' of coiintervailing evidence, it shall be sufficient in the proper proceeding to authorize the can- cellation Of his certificate _ of citizenship as fraudulent, iaitid,. the diplomatic and cpnsular officers of the United States in foreign countries shajl from.tjm^ to ,time, through the Department , of State, furnish, the Department of Justice with the names of those within their respective jurisdictions who have such certifi- cates of citizenship and "whdf have taken permanent residence in the douiitry of their natiyity.j or in any other foreign country, and such statements, duly certified, shall be admissible in evi- dence in all. courts in > proceedings to cancel certificates of citi- zenship. "Whenever any certificate of citizenship shall be set. aside or cancelled, ^s herejri provided,Jhe court in which such judgment or decree^ is rendered; ^hall make an;or(}er cancelling such certifi- cate of citizenship and shall send a certified copy of such order § 151b] SETTING ASIDE NATURABIZATION 887 to the Bureau of Immigration, and Naturalization ; ^ and in case such certificate was not originally issued b^' the court making Such order it shall direct the clerk of the court to transmit a copy of such order and judgmesnt tothe court out of which such certifi- cate of citizenship shall have been originally issued,. . And it shall thereupon be the duty of the clerk of the court receiving such certified copy of the ordef and judgmen* of the court tp enter the same of record and to cancel such original certificate of citizenship upon the' records and to notify the (Buteau of Immi- gration) and Naturalization of sudh cancellation! "The provisions of this section shall apply not only to certifi- cates of citizenship issued under the provisions of this Act, but to all certificates of citizenship which may' have been issued here- tofore by any court exercising jurisdiction in naturalization pro- eeediiigs unde* Jirior laws. ■ ' ® This Statute is constitutional,' although it applies to naturali- zations made before its enactment * and establishes a p^resump- tion from facts previously existingi' It is valid when the pro- ceedings are directed at a certificate of naturalization granted without any appearance on i the part of the' United' States.'" Whether It can be" applied to a certificate issued after the Gov- ernment has appeared and bieen' heard is left .open by the Su- preme Coiirt.'^ It has been held by District. Courts, that they had jurisdictiion in this manner to set aside certificates of State courts:^when no fraud was committed by .the' applicants for error in the construction of the Statute. '^ even where the Government had appeared and objected to the original proceedings.'* This 6 34 St. at L. 596, as amended, 36 9 Luria v. U. S'., 231 XT. S. 9, 17. St. at L. 830, 40 St. at L., Comp. St. 10 Ibid. §§4351, 4352, 4352a, 4352aa, 4353, H JoianeSsen v. IT. S., 225 tf. S. 4354. 227, 237, 32 Sup. Ct. 613, 56' L. 6 34 .fet.' at li. ^601, Comp. St. ed. 1066. §4374." "This has been transferred, to 12 U. S. v. Simon, 170 Fed. 680; the Department of Labor by the 1J. S. v. Meyer, 170 Fed. 983', 985; Act of March 4, 1913, ch. 141, §3; U. S. v. Plaistow, 189 Fed. 1006, ,37 St. at,L. ,737, Comp. St. §934. 1009. Contra, V. S. v. Anderaen, * '7 Luria V. U. S., 231 U. S. 9, 17; 169 Fed. 201, 205; TJ. S. v. Lenore, JTphanessen v. tJ. S.^ 225 tJ. S., 227, 207 Fed. 865, 868; TT. S. v. Aker- 32 Sup. Ct. 6i3, 56 L,. ed. 10i56. , vik, 180 Fed. 137, 147.. , 8 Jihaiessen V. tf. S., .2.25 .tJ. S- "U. S. , v. '.Plaistow, 189 Fed. 227, 242,. Luria v."tr.'s.,.,23l/tJ, S. 1006, V. S. v. Albertini, 206 Fed. 9, 17. ' ^ ■ " " ' 133. 888 INFORMATIONS AND BILLS IN, EQUITY | § 1511) was done where the hearing had taken place in chambers and not in open court." ; , It has been held that the' finding of fact by a Staite court when there was no fraud cannot be thus reviewed. ^^ Certificates were set; aside because! of - fraud, in testimony concerning the moral character of the applicants: when the petition for naturalization stated that the applicant, was not a married man, but in fact he had abandoned his wife and children in Europe •'* where, when admitted, he was engaged in an immoral and illegal business, letting rooms for use in prostitution.^'' = When he admitted that he advocated the elimi- nation by the power of the ballot of constitutional rights to property and the abolition of the existing political government as the result of a change from individual to common owner- ship of all land, buildings, and industrial institutions.^'^ When he expressed during the Great War his sympathy with Ger- many.^? ' ,' ( The' certificate was not set aside because of an error in the form of the signature of: the petitioner.*" Nor 'when the petitioner was under, twenty-one years of age, there being no chargcof fraud, concealment, or lack of knowledge by the State court of the date of the applicant 'sbirth.?^' Nor because of the failure to attach to the original paper's the! certificate by tlie Department of Commerce and Labor of the arrival of 'the defendant in the United States.** But a mistake in a description of the national- ity of the petitioner is I fatal and cannot be corrected after the temi at which the ; certificate is issued.*' Nor can an ei'ror in his name.be subsequently corrected.** HU. S. V. jSinsberg,, 2^43 , U. S. 1»U. S. ,-. Wursterbarth, 249 472. Fed. Si08. 16 U. 8. V. Butikofer, 2^8 Fed. *" U. 8. v. Lenore, 207, Fed. 866. 918 - *1U.' 8. V. Butikofer, 228 Fed. 16U..S. V. Albertini,, 206 Fed. ^18, 2.B; TJ. S. v. Nes8,;217 Fed. 133. ^ '''■ 17 U. S. V. Kaverat, 222 -Fed. ^^^®- Fed. 262, and cases cited, ovor- 18 U. S. V. Olssen, 196 Fed. 562, ■ ruling TJ.' g. v. Viatopulos, 221 Fed. See ex parte- Sauei, 81 Fed. 355, 455; tJ. S. v.' Orend, 221 Fed. 777; note; U. S. v! sWlgin, 254 Fed. i?e Denny, 240 Fed. 845. 884. ' ' 2iBe Perkins, 204 Fed. 350; ! U. 8. V. N'ess, 217 Fed. 169. >U. 8. vi Vogel, C. C. A., 262 S'lSlb] setting! ariiie Naturalization 889 But it has been held that 'the certificate may be set aside when the application was made iii the wrong district Or county.** Or where the State' court erred in overruling the objection- of the (government because of no previous declaration of inten- tion 'to' become a citizen when the applicant' was a member' of the United States Marine Corps;*'' or was the wiilow of an honorably discharged soldier ; *' or the court erred in con- sidering depositions not authorized by the statute.** Or' where the State court by a misconstruction of the statute granted the certificate before two years had expired following the date of the declaration of intention.'" T(he residence described in the statute is. one where the ap- plicant has voluntarily sojpurneii.,'^ The Federal court of a district where the naturalized citizen is confined in a peni- tpntjary has no jurisdiction to cancel: a certificate of citizen- ship lyhen, at, the ,tifne of the conviction, he resided in another district,** ,; : , , . ,, • .,,The ^ffidayit, submitted, to, the District Attorney , lueed not comply with th^ f Ofrma,li.ties of the st;atements in the pleadings,*' and may be made upon information and belief:'* But it has been held that an averment in a bill or petition that the cer- tificate was ('.'fraudulently and illegally procured" is a mere conclusion and ineffectual,, unless facts are alleged indic.ating such fraud or illegality.**; , An averment is insufficient which states th^t in the petition for naturalization the applicant, contrary to fact, represented that he had been in the United States for more than five years, there being attached to the petition of the Government as an exhibit an affidavit made by a special agent setting forth in 26 U. S. V.' Sehurr, 163 Ted. 648. 33 U. S. y. Leles, 227 Fed. 189. 27U.,,S., V. Plaistow, 189 F^ed. 34lbid., ' , , , 1Q06, , ,1 i '*U. S. vi Rose, 166 Fe,d. 999. 2«U. ,S. ,v. Meyer,. 170 ,:^ed. 982. See U. S. v. Luria, ISi.I'ed. .643, 29U.;,S. v., Nisbit, 168 Fed- 1005. aff'd, 648; Xuria v. U. S., ,231 TJ. SOU. 8. V. Vandermolen, 163 Fed. S. 9, 17; 34 Sup. Ct. 105, 58 L. 650. ; ' .,':u\: ' ed. 101; U. :S.,v. Boektesch,ell, 208 31 U. S. V. Gronieh, 211 Fed. 548. Fed. 530. 32 Ibid. •■.•■.< :..:•... 890 INB'OBMATIONS AND BILLS IN EQUITY [.JlSlc detail the facts which, support the charge, but there being no specific charge of fraud, or perjury.*^ ,,It has been held that ,the Federal court has no power to amend a declara;tipn,in a:S,tate<^9urt.'''.[, Nor after, the, expira- tion of the term to ameiid, the proceedings, iji its own, ;COur|;, so as to change the name of the person to whom the certificate was issued; when no contemporary record, shows a mistake.?* That no court caji after, the term^ enter nunc pro tunc an ordef of naturalization when no entry or memorandum appears in the record or files made at the term, when the judgment is directed to take effect.*' But that it may, pending proceedings to can- eel the certificate, amend a declaration so as to correct a mis- take inade in, good faith concerning the sovereignty t6 which the applicant then owei allegiance.*" The naturalized citizen is iiot entitled to a trial by jury.*^ § 151c. Creditors' bills after executioiis have been returned unsatisfied. A bill inay be filed by a judgment creditor to apply to the satisfaction of his debt assets which cannot be reached by ail eieciitioi.* A previous judgment is required in order to pi'eserve the defeiidant's constitutional right to a trial by jury' if he disputes the creditor's demand.^ Such bills have been sustained when filed by' a judgment creditor to apply tO the satisfaction of bis debt an interest which his debtor may hold in a patent or cbpyright,* Or in a license to use a patented invention ; * by a judgment creditor against a city for an accounting of taxes collected by it which 36 U. S. V. Bocktesehell, 208 Fed.' «Luria;v. V. S^; 231 UJ Sj 9, 530. ■ , , .,;i 17, 34 Sup. Ct. 10, 58 L. ed, 101, 37 U. 8. V. Viaropulos, 221 Fed. affijrming, 184 Fed. ,643. 484, .492. ' ' § 1510. 1 Angell "v. Draper, 1 38 U. 8. V. Viaropulos, 22i Fed. Vern. 399; Scottish Am. Mtg. Co. 484, 492; re Perkins, 204 Fed.' 350; v.' Follansbee, 14 Fed. 125.' ' '" re O'SuUivan (Mo. App., 1909), 117 2'U.' 8. v. Seward Peninsula Ey. 8. W. 651. ■ '* ■ ' ' Co., C. C. A., 203 Fed. 963;Williaiiis 39Gagnon v. TJ. S.', 193 XJ. 8. 451', v.' Adlei'-Qoldman Commission "Co., 48 ii. ed.'74S, overruliftg;>^ Chris- 0. C. A., 227 Fed. ^874, affirming, tern, 43 N. Y. Sup. Ct., 11 (J. & 211 Fed. 530. ' 8.) 523, 56 How. Pr. S. See U. S. ' 3 Agar y. Murray, 105 U. S. 126, V. StoUer, 180 Fed. 910. ' 26 L. edl 942, See Maitland v. Oib- 40 U. 8. V. Viaropulos, 221 Fed. son, 79 Fed. 136. . ; i 484, 492. 4 Matthews v. Green, 19 Fed. 649. §15]li] , iCBBDITOKS' BILIaS 891 had been pledged for the payment of complainant 's i diemand,* To enforce a decree for the payment of money, at least when made' by another court of equity.^ To eriforce the payment of alimony directed to be paid in 'thef final judgment o* decree of a State court.' ■^^■ By a creditor, whose claim has not been reduced to judg- ment, agaiiist an insolvent cor'jjoration for th6 apipointment Of a receiver and the marshaling and distribution of 'its assets; when the corporation' waives the objection' ihat his claim has not been reduced to judgment.* Or when the charter of the corporation has expired, or' because of 'a' sheriff '§ salp of its property and francbises, the officers last elected have become trustees to distribute its assets,^ Under ■ ordinary . qircumst^nces a creditor cannot file a. bill in, equity to apply a^^ets tOithe payment of his debt alone, unless, ,h(3 has, ol)tainpd, a judgpientfof, his claim in a courtbf the, same S|tate,,p]^,,ju]diqial. district,,, and had tfee ,retiirn, of an execution issued thereon unsatisfied.^?. ,.,: The United States, cannot sue in equity to recover a tax until it has obtained judgment against the taxpayer ^^ unless a stat- ute gives the Government a lien upon the property,^* or under special circumstances. . , , •;,. , ."■• fi !;;,n./i.. A creditor who has not reduced his claim to judgment can- not collect his claim by a suit in' equity on showing that the debtor is insolvent and has no property which can be reached 5 City i of New Orleans v. Msher, Water Ice Co., 165 Fed. 714. But C. ,C. A.; 91 Fed;. 574. , , , , , , see B;ooirfer ty, Rose, ,244 'E!e,A., ,a07, 6 Shields v. Thomas, 18 How. 253, 10 Case v. Beauregard, 99 U. 262, 15 L. ed. 368, 372. But see S. ,119, 25 L. ed. 370; Smjth Tilford V. Oakley, Hempst. 197. v. Eailroad Co.; 99 U. S. 398, 25 L. 7Barber V. Barb,er, 21 ^ow. 582, ed. 437; Walser ,v. Seligman, 13 16 L. ed. 226; Knapp v. Kna,pp,, 59 Fed. 415; Swan L. & C. Co. v. Frank, Fed. 641; Israel v. Israel, 130, Fed. 148 U.S. 603, 37,L. ed. 577; Hol- 237;, Johnson v. Johnsion, 13 Fed. lins v. Brierfield, C. & I. Co.,, ISjO 193; Bowman v. Bowman, 30 Fed. U. S. 371, 37 L. ef(. 1113; Maxwell 849. , * 1 ,0!. V. M'Danielp, C.'c'.A., 184Feql. 311. 8. Be Metropolitan Eailwa,y Reiepiv- 11 U. S., v. Seward, Peninsula Ey. ership, 208 !u..S,,90, 52 L. ed,. 403,; Co.,,C, C^ A., 203 Fed. 963., ,. Fink V. Patterson, 21 Fejl. 602. 12^.8. v. Capital City Dairy Qo., 9 Am. Ice Co. v. Pocono Spring 252 Fed. 900. 892 INFORMATIONS AND BILLS IN EQUITY (§ 151c by legal' process.^* Nor in the absence of statutory authority because the debtor is. about to make a fraudulent transfer of his property.^*. Such, a bill may be. maintained, however, by the creditor before he has reduced 'his claim to j udgment, in r order to enforce a right given him by a State statute.^* It has been held ; that sucb a , bill may be maintained in Virginia, by a creditor of an insolvent firm which is, disposing of, its, assets in fraud of creditors, filed on behalf jof the other; creditors as \s;ell as himself, praying the appointment of a receiver, an in- junction against , any , inte;rferience by others with the firm assets and the distribution of those assets among the creditors equally.^® A previous jvidgment and return of execution un- satisfied is not required where,, the creditor sues to enforce a trust or equitable right or lien.^'' Under ordinary circumstances the creditor cannot sue in equity an executor to' collect his claim from the estate before he bias obtained a judgment at law.^* An order of a court of probate directing the executor to pay a claim may be enforced by a bill in equity against the executor,^' '• but not against his sureties until a judgment at law has been obtained agaiiist them.^ When a discovery of assets from the executor is re- quired the creditor may sue in equity for: such discovery and the payment of his debt without obtaining a previous judgment at law.*^ Where the creditor's attorney admitted that the debt was due the creditor and it appeared that debtor had no property any- where subject to execution and had left the State where his equitable assets were located, a creditor's bill without the pre- vious entry of a judgment was sustained.^* A bill may be filed ISWalser v. Seligman, 13 Fed 415; Am. Creosote Works v. C, Lembcke & Co., 165 Fed. 809. 14 Am. Creosote Works v. C. Lem bcke & Co., 165 Fed, 809. But see 19 Fraser v. Cole, C. C. A., 214 Murray v. Sioux Alaska Mln. Co. C. C. A., 239 Fed. 818. IB Murray v. Sioux Alaska Min Co., C. C. A., 239 Fed. 818. 16 Fink V. Patterson, 21 Fed. 602 17 Case T. Beauregard, 101 tJ. S Nat. Bank v. Chattanooga Constr. Co., 53 Fed. 314. 18 TJ. S. V. Bitter Eoot Co., 200 TJ. 8. 451, 475. Fed. 556. See Gillispie v. Riggs, 248 Fed. 843, supra, § 54. 20 Gillispie v. Riggs, 248 Fed. 843. 21 Green's Admx. v. Creighton, 23 Howard 90 ; Kennedy v. Oreswell, 101 u; S. 641. 688, 690, 25 L. ed. 1004: Merchants' 22 Williams v, Adlcr-GoWman § 15l.e] creditors' bills 893 by a breditor of a decedent to set aside a fraudulent conveyance of his estate made after his death by the order of court.^' A judgment creditor in a foreign jurisdiction cannot ordinarily sue to recover equitable assets until he has recovered a judgment in the district where the suit is brought.^* In such a case where execution has been issued in the jurisdiction where the' judg- ment was recovered and the bill shows that he cannot be served with- process within a jurisdiction where he possesses assets that eaainot be reached by attachment, a bill in equity will be main^ tained without' 'a,' pi-evious judgment in the jurisdietion where it is filed.** ' It is not enough for such a bill to show that the defendant is a foreign -corporation.** It must deny that it is transacting business within the State - and aver that it has no agent there upon whom process can be served;*'' It has been held that the judgment debtor is not an indispensable party to such a suit to set aside a fraudulent conveyance by him.** It has been doubted whether a 5'ederal court will entertain a creditors bill founded upon the judgment of a State court within the district. But the better opinion is that such a bill may be maintained.*® ' ' ' When a judgment creditor has an adequate remedy at law, a bill in equity for the same relief cannot , ordinarily be main- tained. Thusi it was held that that a judgment creditor of a national bank cannot sue in equity to compel the receiver of the bank to recognize his judgment and to enjoin the re- ceiver from refusing such recognition ; ^^ because he has an ade- quate remedy by an action at law in the Federal court against the receiver upon the judgment of the State court against the bank.^i But that the fact that he might have collected his Gommissiou Co., C, C. A., 227 Fed. ZTBank of Commerce and Trusts y 74,. affirming, 211 Fed. 530. v. McArthur, C. C. A., 256 Fed. 84. 88 Johnson v. Waters, 111 U. S. 28 Ibid. 640, 28 L. ed. 547. *' Davis v. Davis, 65 Fed. 380. 24 Nat. Tube Works Co. v. Bail- SOBaeon v. Harris, 62 Fed. 99; lou, 146 V. S. 517, 13 Sup. Ct. 165, Bidwell v. Huff, 103 Fed. 362; Feid- 36 L. ed. 1070. ler v. Bartleson, C. C. A., 161 Fed. 25 Bank of Commerce and Trusts 30. v. McArthur, C. C. A., 256 Fed. 84. 31 Denton v. Baker, 79 Fed. 189. 28 Edward Hines Lumber Co. v. Bowers, C. C. A., 238 Fed. 783. 894 INFORMATIONS AND BILLS IN EQUITY [§151d judgment by- garnishee process ■ does not deprive hitti < pf the right to seek relief in equity.*" It was said that, a receiyer, assignee in bankruptcy, or assignee under a voluntary, general assignment, each of whom represents creditors as well as the debtor, cannot maintain a bill to 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.*' , § 151d. Bills for accountings. Equity will entertain a bill to compel an accounting by persons standing in a trust relation to the plaintiff,^ and by those against whom an action for acfeouhti render would lie at common law,^ namely, guardians in socage, bailiffs, receivers, and merchants in their dealings with eaich other,* but not otherwise,* unless the accounts are mutual,* or very complicated and intricate,® or the accounting is supple- mental to some other equitable relief.' 32reiaier v. Bartleson, 161 Fed. 30. 38 Jacobson v. Allen, 12 Fed. 454. §151d. 1 Pacific E. of Mo. v. Atlantic & Paci E. Co., 20 Fed. 277; Fowle V. Lawrason, 5 Pet. 494, 502, 8 L. ed. 204, 206; Littlpfield v. Perry, 21 Wall. 205, 22 L. ed. 577; Providence Min. & Mill Co., v'. Nocholson, C. C. A., 178 Fed. 29; Morris & Co. v. Whitley, C. 0. A., 183 Fed. 764. 2 Cited with approval by C. C, A. of the Fifth Circuit, Morris & Co. V. Whitley, C. C. A., 183 Fed. 764, 765;- Mitchell v. Manufacturing Co., 2 Story, 648; Linson v. Hut- ton, 98 U. 8. 79, 25 L. ed. 66; Fowle v. Lawrason, 5 Pet. 494, 502, 8 L. ed. 204, 206; V. S. v. Na- tional Bank, 73 Fed. 379. 3 Bispham 's Equity, § 481 ; 1 Co. Litt. 90 b; 1 Go. Litt. 172 a; Bacon's Abr., Account, A.; Buller's Nisi Prius, 127; Earl of Devon- shire's Case, 11 Coke, 89. 4Eoot V. Eailway Co., 105 XJ. S. 189, 26 L. ed. 975; Consol. Safety "Valve Co. V. Ashton Valve Co., 26 Fed. 319; Lord v. Whitehead, etc., Mach. Co., 24 iFed. 8o!i:;'''Gunn v. Brinckley Car Works & Mfg. 'Co., 66 Fed. 882. 5 Tenno v. Primrose, 116. Fed. 49; Fechteler pj;, a^.. V. Paljn' Bros. & Co., C. C. A.',^ 13^ Fed.' 462. ,, 6 Cited with approval by Judge Hazel, Harvey v. Sellers, 115 Fed. 757, 758, and by C. C. A. of the Fifth Circuit, Morris & Co. v. Whit- ley, C. C: A., 183 Fed. 764, 1765. , Kil,- bourn v. Sutheriand, 130 TJ. S. 505, 32 L. ed. 1005; John drossiey Sons v: New Orleans, 20 Ffed. 352 ; Pa- cific E. Co. V. Atlantic & Pac. E. Co., 20 Fed; 277; Gunn v. "Brinok-' ley C. W. & Mfg. Co., C. C. A., 66 Fed; 382; Baker v. Biddle Bald. 394; Blakeley v. Briscoe, Hempst. 114; HattiesbuTg Lumber Co. v. Herrick, C. 0. A., 212 Fed. 834. (Where relief obtainable at common law was also'prayed.) But see Lord V. Whitehead, etc., Mach. Go., i 24 Fed. 801; Adams v. Bridgewater Iron CO., 26 Fed. 324; Hagenbeek V. Hagenbeck Zoo A. Go., 59 Fed. 14. Hattiesburg Lumber Co. v. § ISld] BILLS FOR ACCOUNTING 895 !' It was held, that equity could take jiirisddction of i a suit by the United States against the clerk of a court for an accounting of transaction during a period of seven years.* That a judgment creditor inay sue a city for an accounting of taxes collected by the defendant which haid been pledged for the payment of the complainant 's demand.* A bill to compel an account by one part- ner-to another will be sustained although an action for account rendered might lie at common law.^" A bill for an accounting m'ay be -filed, under a contract between two large mercantile houses, requiring each to render to the other, an annual account of its entire business, and to pay a certain percentage of its gross profits. ^^ It has been held : that a factor, whose dealings with his principal were numerous, may file at bill' for an aceotmtihg.^^ It has been said that, wherever the State practice authorizes a reference of a complicate account in an action at law, the Federal court should tafee jurisdiction of the case in equity.^* An uiiseeured creditor ujpon allegations of fraudulent di- yersiqn of assets may sue for an accounting by a corporation which controls his corporate d^btqir.^* , It, has been held that there is jurisdiction. in equity to open a eloped, account, although Jher^ is a remedy at law, in a case where, were the accounts still open, equity might have entertained a bill for an accoiantiag." A bill in equity'is the proper remedy to enforce a decree ma4e by another court of equity for an ac- counting.^® A bill will not be sustained which seeks an account- ing of commissions due an insurance agent upon premiums al- ready paid although it also prays that defendant be required to account for the commissions that may become due on premiums Herrick, ^C.,,C. A., 212 I'ed. 834 U Fechteler v. Palm Bros. & Co., (where relief obtainable at eommon C. C. A., 133 Fed. 462. law was also prayed). iZFenno v, Primrose, 116 Fed. 49. 1 Rubber Co. v. Goodyear, 9 "Wall. IS McMullen Lumber Co. v. 788 J Boot V. Eailway Co., 105 U. Strother, C. C. A., 136 Fed. 295. S. 189j 26 Lj ed,,975. 14 Valley v. Denver & E. , G. E. 8 tJ. S. V. Harsha, 188 Fed. 759. Co., C. C. A., 236 Fed. 176, 182. 8 City of New Orleans V. Fisher, 15 Bisehoffsheim v. Baltzer, 20 C. C. A., 91 Fed. 574. Fed. 890. W Kebart v. Arkin,. C. C. A., 232 16 Collins v. Bradley Co., 227 Fed. Fed. 454 (a Pennsylvania partner- 199. sihip). :,.M 896 iNpoemations and bills m equity [§151d to be paid in.; the future.^'' A demurrer was sustained, to a bill to compel an account of profits made by a purchasing- agent, whrt, it was charged, had sold to the complainant, large quantities of merchandise secretly owned by himself at a price greatly in ad- vance of what he paid for the same; although the agent was a director of the complainant corporation, and the suit was brought against his personal representatives after his decease; when there was no allegation that the agent 's books were fraudulently kept, nor that any different evidence or information could be ob- tainable in equity than that obtained at law; there being, how- ever, an allegation that the accounts consisted of many thousands of items.^' It has been held that the bolder of a tontine policy of life insurance cannot compel an accounting by his insurer except under special circumstances.^** Accountings in patent cases have been previously explained.** When a settlement of accounts is attacked in a case where, had it not been for the settlement, the complainant would have been entitled to an accounting, if he sets aside the settlement, he is entitled to a full accounting without specification in the biU of the items of which he claims.*' Where a bill alleged that the de- fendant was in wrongfiil possession of plaintiff's land and had continuously mined coal on the premises for eleven years and was still mining coal there, the exact quantity of what he had mined being unknown, but exceeding in value the sum of $3;0(K) was held to be a -"fishing bill" and insufficient to require an accounting.** According to the later authorities, the bill need contain no offer by the complainant to pay the balance, if any, found due against him.^* Anciently such an offer was requisite.*' Upon a bill for an accounting the defendant can obtain af- firmative relief without a cross bill or a counterclaim.** After 17 Hicks V. Penn. Mut. Life Ins. 21 Childs v. Missouri K. & T. Ey. Co., 210 Fed. 464. Co., 221 Fed. 219. 18 American Spirits Mfg. Co. v. 22 Columbian Oovernment v. Both- Easton, 120 Fed. 440. schild, 1 Simons, 94, 103; Wells v. 18a Hunton V. Eq. Life Ass 'n S 'y-, Strange, 5 Ga. 22. 45 Fed. 661; Peters v. Eq. Life 23 Godbolt v. Watts, 2 Anst. 543, Ass 'n S 'y-, 149 Fed. 290. infra, § 153. 19 §146, supra. , 24 Fife v. aayton, 13 Ves. 546; 20Lovewell v. Schoolfield, 217 Stapylton v. Scott, ' 13 Ves. 425; Fed. 689. Bradford v. Union Bank of Tenn., §. l<5lle]' BILLS FOB SPECIFIC PERFORMANCE 897 tke right to aii accounting has been adjudicated,*^ the accounts are usually referred to a master.''^ The Judge may himself, how^ ever, take the, account,*'' The proceedings upon, accountings are subsequently ex- plained.*^ *'§ 151e. Bills for specific performance. Bills for specific per- formamce of contracts to convey land are amongst the earliest forms of equitable relief. They were filed in the Court of' Chan- cery as far back as the reign of Richard 11.^ They are sup- ported on the ground that equity considers that done which ought to be done and holds the owner of the legal title to be trus- tee for him to whom he hag agreed to convey the 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.* Accordingly, 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, whenever they are inutual,* certain,^ not unconscionable,® and their en- forSement would be piraetieable.'' Equity hesitates before granting relief to enforce specific performance of contracts which do not affect land. When the 13* How. 57, 14 L. ed. 4S; North- SAdderly v. Dixon, 1 Sim. & Stu. erniE. Cd. v. O. & L. C. E. Co., 18 607; Bispham'a Eq., §375. Fed. 815. But see s. c, 20 Fed. 347. 4 Dorsey y. Paekwood, 12 How. See, Newton T. Gage, 155 Fed. 598; 126, 13 L. ed. 921; Bispham'a Eq., Detering v. Nordstrom, C. C. A., 148 § 377. Fei^ "81. " •' ' 6 Colson v. Thompson, 2 "Wheat. 'Z6As to the preliminary proof 336, 4 L. ed. 253; Bispham's Eq., rehired before a reference for an § 377. afecounlting, see Columbian Bq. Co. 6 Surget v. Byers, Hempst. 715; V. 'Mere. Tr. & D. Co., C. C. A., 113 Eoundtree v. MeLain, Hempst. 245 ; Fdd. 23; § 389 infra. Miss. & Mo. E. Co. v. Cromwell, 91 26 See §§ 384, 389 ikfra. V. S. 643, 23 L. ed. 367; Bispham's 27 Pepper v. Addioks, 153 Fed. Eq. §376. See Eandolph's Ex'r v. 383. Quidnick Co., 135 IT. S. 457, 34 L. sVlnfrcl, § 389. ed. 200. §151e. ICh. Cal. II, p. 2. 7 Boss v. Union Pae. E. Co., 1 2 Teinpore Bich. II ; Lord Scales Woolw. 26 ; Fallon v. Eailroad Co., V. Felbrigg; Ch. Cal. II, p, 26; Tern- 1 Dill. 121; Texas & Pac. Ey. Co. pore Hen. VII; Braoton Lib. II, c. v. Marshall, 136 U. S. 393, 34 L. 27, fol. 61b. ed. 385; Bispham's Eq., § 377. Fed. Prac. Vol. 1—57 898 INFORMATIONS AND BILLS IN EQUITY [§ l'51e compulsion of the specific performance of a contract would com- pel the continuous supervision by the Court, equity will usually refuse to interfere.* Thus, except perhaps under special cir- cumstances, a court of equity will not compel specific perforin- ance by either party to a contract for the construction of a rail- road.* Nor to seize a man's property, and through its oflBcer» complete a bridge in pursuance of a contract which he ha* made." As early as the reign of Edward IV it was held that specific 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 difificulty of supervision, afterwards led the courts. to refuse toi take jurisdiction in the case of an ordinary building contract.^'' Where, however, the building is to be done on land conveyed to the defendant as consideration the plaintiff can obtain the ex- pected benefit in no other way; and in such cases the courts do not always find insurmountable the difficulty that supervision of the construction or even of indefinite maintenance is in- volved. ^^ Equity has refused to compel specific performance of a mining lease.^* Under ordinary circumstances equity will not compel a railway company to ma-intain its permanent ter- minus at a certain place. ^^ Bills were sustained : to compel spe- cific performance of a covenant, to construct and to maintain a station upon land which the complainant had conveyed to a rail- road company,^^ and of a contract between a railroad and a telegraph company, authorizing the maintenance and operation of the telegraph line upon the railroad company's right of way, SErrington v. Aynesly (A. D. 13 Hood v. N. E. E. Co. (1869), 1788), 2 Bro. Ch. 341; Lueas v. L. E. 8 Eq. 666; Gregory v. Ing- Commerford (A. D. 1790), 3 Bro. wersen (1880), 32 N. J. Eq. 199; Ch. 166; Blue Point Oyster Co. v. Lawrence v. Saratoga Lake E. Co. Haagenson, 209 Fed. 278. (1885), 36 Hun. 467; Jones v. Par- 9 Strang V. Eiehmond, P. & G. ker (1895), 163 Mass. 564, 47 Am. E. Co., 93 Fed. 71. See also Fallon St. Eep. 485, 40 N. E. 1044. V. Eailroad Co., 1 Dill. 121; Boss 14 Browning v. Boawell, C. C. A., V. Union Pae. Ey. Co., 1 Woolw. 26. 215 Fed. 826. 10 Texas & St. Louis Ey. Co. v. IB Texas & Pae. Ey. Co. v. Mar- Eust, 17 Fed. 275. shall, 136 IT. S. 393, 34 L. ed. 385. 11 Tear Book, 8 ed. IV, 4. 16 Murray v. Northwestern E. Co., 12Errington v. Aynesly (1788); 2 64 S. C. 520, 42 S. C. 617. Bro. Ch. 341; Lueas v. Coramerford (1790), 3 Bro. iCh. 166. §■ ISle] Bills for specific performance 899 with a provision for free telegraph service to be given to the rail- road company of the right to string and use a wire.^'' But the court refused to condemn the right to maintain telegraph poles on a railway company's right of way although other equitable relief was prayed.^* Ordinarily equity will not enforce specific performance of a contract which contains a power of revocation by either party because it is then not mutual.^' It was so hel(} of a con tract between an express company and railroad company for the carriage of expressed goods.*" A court of equity will not com- pel specific performance of a contract for personal services; for as said in leading case against an opera singer "the CoUrt can- not make a bird sing. "^^ When, hoWever, the contract is ex- clusive the court in a proper case may enforce an express or im- plied negative covenant not to perform similar service for other persons provided that the services of the defendant are of an ex- traordinary nature which cannot be supplied.** Where such a contract is inequitable or not mutual such an injunction will not be granted.*' Thus an injunction was denied when a cofttraet for the defendant's employment as an actor in moving pictures gave the plaintiff the exclusive right to his services for five years with the right to dismiss him at plaintiff's pleasure giving de- fendant no right to compel plaintiff to perform and providing that he should receive no compensation when not acting.** But a State court has held that a provision that the employer may 17Murray v. Northwestern R. N. B. Co., C. 0. A., 238 Fed. 26, E. Co., 64; S. C. 520, 42 S. E. 617; 36; W. XJ: Tel. Co. v. Nashville Western Union Tel. Co. v. Pennsyl- G. & St. L. Ry. Co., 243 Fed. 694. vania Co., C. C. A., 68 L.B.A. 968, 19 Express Co. v. Railroad Co., 129 Fed. 849; Pennsylvania R. Co. 99 TJ. 8. 191, 25 L; ed. 319; Ken- V. St. L., A. & T. H. R. Co., 118 TJ. yon v. Weissberger, 240 Fed. 536. S. 290, 30 L. ed. 83 ; Franklin Tel. 20 Express Co. v. R. R. Co., 99 U. Co. V. Harrison, 145 U. S. 459, 30 S. 191, 25 L. ed. 319. L. ed. 83 ; St. Louia A. & T. H. R. 21 Lumley v. Wagner, 1 De G. Coi V. I. & St. L. R. Go., 9 Bisa. r44; M. & G. 604. :Western Union Tel. Co. v. Pitts- 22 Ibid. See mfra, § 281. burg, C, C. & St. L. Ry. Co., 137 23 Kenyon v. Weissberger, 240 Fed. 435. Fed. 536. 18 Western Un. Tel. Co. v. Ann 24 Kenyon v. Weissberger, 240 Arbor R. Co., C. C. A., 90 Fed. 379, Fed. 536. 386; W. U. Tel. Co. v. .Louisville & 900 INFORMATIONS AND BILLS IN EQUITY [§ ISlc terminate by ten days' notice a contract does not preyenthMs obtaining an injunction against its violation by the employee.^* Since merchandise can usually be bought in the open market, contracts for the sale of personal property will usually not be enforced when the property has a market value. *^ This has been held in the case of a contract for- the transfer of shares of stock in the corporation when, although the stock could not; be bought in the market and related to a new enterprise, the facts which showed the value of the corporate franchise that it represented could be easily ascertained and proved before a jury.^'^ .;. "When, however, the stock was not for sale upon the markeit and the business of the corporation was rapidly increasing, equity gave the relief.** When defendant is insolvent equity might possibly grant relief.*' Equity will compel specific performance of a contract for the sale of a patent right,'" of a contract to issue an insurance policy, and in the same suit to compel payment of the policy,'^ , pf a contract for the purchase of an entire stock of general merchan- dise for a lump sum, that had been paid when it was alleged that defendant had delivered about two-thirds of the goods, but re- fused to deliver the remainder, which he had concealed, sp that complainant could not obtain them by an action of, replevin.'* Where the contract provided that in case of default the plain- tiff should be entitled to the writs of estrepment and scire facias that as an. alternative to the writ of estrepment a receiver should 25 Phila. Ball Club v. Lajoie, 202 Fed. 171, 179. There, however, the Pa. 210, 58 L.E.A. 227, 90 Am. object of the order was to give the St. Eep. 627, 51 Atl. 973. court jurisdiction to punish strikers 26 Hyer v. Richmond Traction Co., who were also made defendants for 168 TJ. S. 471, 483, 28 Sup. Ct. 114, interfering with the business of the 42 L. ed. 547 ; Blue Point Oyster manufacturer. See infra, § 276. Co. V. Haggenson/ 209 Ted. 278. 29 Consolidated Fuel Co.' v. St. 27 Hyer V. Biehmond. Traction Co., Louis, S. W. By. Co., C. C. A., 240 168 TJ. S. 471, 483, 28 Sup. Ct. Fed. 395. 114, 42 L. ed. 543. 30 Hall v. Pitrat, 45 Fed. 94. 28 Mutual Oil Co. v. Hills, C. C. 81 Tayloe v. Merdhants' F. Ins. A., 248 Fed. 257. For an extraor- Co., 9 How. 390, 13 L. ed. 187; dinary case where an interlocutory Hebert v. Mutual L. Ins. Co., 12 order was made directing the per- Fed. 807; Brugger v. State Inv. formanee of a contract to manufac- Co., 5 Saw. 304. ture automobiles, see Dail-Overlan- 32 Raymond Syndicate ' v.- Browii, der Co. v. Willys-Overland, 263 124 Fed. 80. § 151e] BILLS FOE SPECIFIC PERFORMANCE 901 'be' Appointed and! that the property should be sold under execu- tion; it was' held ihat these remedies were more adequate than those 'Which equity could perform and consequently a suit for 'specific performance could not be sustained.'* Specific perform- ance of a contract with a State will not be enforced either di- rectly by suit against the State itself or indirectly by a pro- ceeding against its officers.'* The bi'll" should contain an offer by the plaintiff to perform his part of the contract.'* It has befen said that where the plaintiff is married he need' not afSrinatively show his wife's willingness to 'join in the execution 'of the contract since this will be pre- sumed.'^ The bill may contain a prayer that the agreement be 'either set aside as obtained by fraud or else specifically en- forced." In a bill to compel specific performance of a contract to con- vey real estate which gives to the parties therein mentioned dis- "t'inBt rights to separate lots it seems that they cannot join;" butin a bill to compel specific performance of a decree in a for- mer suit, all the complainants in the first suit were allowed to join as plaintiffs although the decree sought to be enforced Diddered, the payment ipf specific sums severally to each of them." A State is an, indispensable party to a bill against its ofiScers to compel specific performance by them for it of its contract for • the sale of land.*" Where the contract is made by an agent in his own'riame he is a necessary party to a suit by his principal for ,^jp.eeific performance,.^^ In a suit against a corporation to en- force 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 33 Marian: Coal Co. v. Pieale, C. 38 Maiselis v. Morris & L. Co., 1 C' A., 204 I'ed. I6i. ! N. J. Eq. 31, 39. ' 34Aye*s 123 U. S.'443, 502, 31 39 Shields v. Thomas, 18 Howard te'ed. 216, 228, supra, § 105c. 253, 15 L. ed. 368, supra, § 140. " 35'S'taphyt'on v. Scott, 13 Vesey, 40 Preston v. Walsh, 10 Fed. 315. i25;'**ife ^.' Clayton, 13 Vesey 546. See, also, "Walsh v. Preston, 109 TJ. 36''±)ixon V. Anderson, C. C. A., S. 297, 27 L. ed. 940. 252 Fed. 694. 41 Pennsylvania & N. J. E. Co. 87 Hardin >. Boyd, 113 XJ. S. 756, v. Byerson, 36 N. J. Eq. 112, 116. 28 L. ed. 1141, a«pra,§ 138. ' 902 INFORMATIONS AND BILLS IN EQUITY [§ 151e indispensable, nor even necessary parties.*^ To a bill to enforce specific performance of a contract; when filed, after the dfeath of each by the personal representatives of the 'one as complain- ants against the heirs-at-law of the other as defendants; the executors of the defendants' ancestor are necessary, if not indis- pensable parties defendant, and the heirs-at-law of the Complain- ant's decedent are not.*^ It has been held that a tenant for life and the contingent remainderman in fee may represent the in- heritance in a bill for specific performance, if the children of the remainderman will inherit if he does not.** Specific perform- ance of a contract for the sale of land may be enforced against one of several joint tenants without joining the others with him as defendants.*^ In a suit in equity by the purchaser of coal rights in lands for a specific enforcement of the contract, the terms of which are in dispute between the parties, the defend- ant cannot by crossbill bring in as parties defendant the agents who made the contract, on his behalf and with his approval, to have their right to commissions determined, a controversy which 42 Texas Co. v. Central Fuel Oil Co., C. C. A., 194 Fed. 1. 43 Seymour v. Freer, 8 Wall. 218, 19 L. ed. 311. See Prout v. Eoby, 15 Wall. 471, 21 L. ed. 58. 44 Sohier v. Williams, 1 Curt. 479. 45 Stephen v. Beall, 22 Wall. 329, 22 L. ed. 786. It has been held, that a corporation, which is not a party to a contract for the con- veyance of certain property thereto, is not an indispensable party to a suit to compel "specific performance, Eogers V. Penobscot, Min. Co., C. C. A., 154 Fed. 606, 616; and that corpof.ations are not indispensable parties to, a suit for specific per- formance of a contract to convey land ovpned 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 railway company is not an indis- pensable party to a bill against its receiver to enforce specific perfor- mance of a contract made by it, Express Co. v. Bailroad Co., 99 IT. S. 191, 25 L. ed. 319. To a bill to enjoin the execution of a judgment of ejectment and to decree a convey- ance of lands, when the plaintiffs had an equitable title only, the per- sons whose legal title the complain- ants asserted were held properly omitted, when no relief was prayed against them, and tlieir joinder would have ousted a court of jur- isdiction, Simms v. Guthrie 9 Craneh, 19, 25, 3 L. ed. 642, 644. See also Boon's Heirs v. Chiles, 8 Pet. 532, 8 L. ed. 1034. But com- pare Mallow V. Hinde, 12 Wheat. 193, 6 L. ed. 599. A border ease is Elmendorf v. Taylor, 10 Wheat. 152, 6 L. ed. 289. §151f] BILLS TO SET ASIDE CLOUDS ON TITLE 903 has no relevancy to the principal suit, and in which complaint has no interest.*® § 151f. Bills to set aside clouds on title. When a written instrument, not void, upon its face,^ creates an apparent defect in the title to real property,* or in some cases the title to personal property, in a man's possession * or tends to make siich property unmarketable; Equity will entertain a bill to compel the cancella- tion of the papers or to obtain a decree declaring the instrument to be invalid. When a bill states a case for other equitable relief to which the removal of such a cloud is incidental, this relief may also be granted.* Such bills have been sustained when filed." If the cloud does not affect the title to land, such a bill cannot be filed where the plaintiff has an adequate remedy at law.* A bill in equity cannot be maintained by a party out of possession to remove a cloud upon his title to land,' not even 4ePattOB V. MarshaU, C. C. A., 26 L.R.A. (N.S.), 127, 173 Fed. 350. § 151f . 1 Ritchie v. Sayers, 100 Fed. 520; Pierce v. Webb & Stal- ker, note to Ryan v. Mackmatii, 3 Bro. C. C. 15; Peake v. Highfield, 1 Russ. 559, and cases ,cited ; Bunce V. Gallagher, 5 Biatchf. C. C. 481; Qoinby v. Consumers' Gas Trust Co., 140 Fed. 362; Johnston v. Kra- mer Bros., 203 Fed. 733. 2 Crocker v. Ingersoll Eng. & Construction Co., 205 Fed. 99; El- der V. Western Min. Co., C. C. A., 237 Fed. 966. S Sharon v. Hill, 20 Fed. 1 ; Gen- eral Film Co. V. Sampliner, C. C. A., 252 Fed. 443. ♦ General Film Co. v. Lake Shore & M. S. Ry. Co., C. C. A., 250 Fed. 160. 5 To set aside a contract obtained by fraud, Boyce v. Grundy, 3 Pet. 210, 7 L. ed. 655. To set aside a conveyance obtained for a grossly inadequate consideration from a man in a state of intoxication, part- ly caused by the acts of the de- fendant, Thackrah v. Haas, 119 XJ. S. 499, 30 L. ed. 486. By a credi- tor of a decedent to set aside a fraudulent conveyance of his esti- mate made after his death by the order of a court, Johnson v. Wa- ters, 111 U. S. 640, 28 L. ed. 547. By a single man to have declared null and void a paper purporting to be a marriage contract executed by him, Sharon v. Hill, 20 Fed. 1. To set aside an invalid tax deed, or a deed executed under a decree of a court which had no jurisdiction over the matter; vfhen the invalidity or want of jurisdiction must be made to appear by facts not apparent upon the deed itself, Ritchie v. Sayers, 100 Fed. 520. But see Lit- tle Rock Junction Co. v. Burke, G. C. A,, 66 Fed. 83; Morrison v. Marker, 93 Fed. 692. BBronson v. Cook, 247 Fed. 601; General Film Co. v. Sampliner, C. C. A., 252 Fed. 443. 7 Whitehead v. Shattuek, 138 U. S. 146, 34 L. ed. 873 ; Wehrmau v. Conklin, 155 XJ. S. 314, 325, 39 L. ed. 167, 173; Giberson v. Cook, 124 904 INFORMATIONS AND BILLS IN EQUITY,; [§-45K when authorized by State Statute,* unless the land, is vac,^iit,p-nd,j none of the parties are in possession, when thebiU may he.) maintained if authorized by State statute,* or in harmonyriFith State decisions,^" and under special circumstances .sucji, a, bill; was sustained when filed by a mortgagee in the nature of,a,,biU quia timet before default. ^^ . But not a bill to compel a public officer to perform a min- isterial duty.*^ Nor to fix the freight rates charged, by the railroads in intrastate commerce.^* Nor, in tJie absence of statutory authority for the collection of taxes, ^* Nor a bill to compel municipal, county, or State officers to levy :a; tax,** or to issue bonds even in the case of a contract ; *® since- the remedy, when it exists at all, is by mandamus. Nor a, bill f or the appointment of a receiver to levy taxes, or to collect taxes , previously levied.*'' Nor a bill to enjoin an insolvent munieifr. pality from expending its funds for other municipal purposes.** In the case of an oil or gas lease \yhere the law of the State did not authorize a suit and ejectment and there was consequently no adequate remedy at law, the Courts sustained jurisdiction of Fed. 986; ITnion Pae. R. Co. v. Cunningham, 173 Fed. 90; Baum v. Ldngwell, 200 Fed. 450. See Klenk, V. Byrne, 143 Fed. 1008. Contra, Farr v. Hebe-Peters Land Co. C. C. A., 18S Fed. 10; Eowe v. Hill, C. C. A., 215 Fed. 5l8, Eunis-Brown Co. V. Central Pae. By. Co., 22S Fed. 46, s. c, C. C. A., 235 Fed. 825. 8 Ibid. 9 Holland v. Challen, 110 U. S. 15, 28 L. ed. 52; Southern Pae. B. Co. V. Stanley, 49 Fed. 263; Field V. Barber Asphalt Co., 117 Fed. 925; Smith Oyster & Land Co. v. Darbee & ImmeJ Oyster & Land Co., 149 Fed. 555. See supra, § 82. 10 Continental Trust Co. v. Tallas- see Falls Mfg. Co., 222 Fed. 694. But see Frost v. Spitley, 121 U. S. 552. H Graves v. Ashburn, 215 XT. S. 331, 334; 54 L. ed. 217. 12 Craig y. . Leitensdorf er, 123 V. S. 189, 31 L. ed. ,114. . , , ..j 13 Montana, W. & S. B. C9..JV.. Morley, 198'Fed. 991. 7, 14 Preston v. Chicagcj, St. L,, &, N. 0. E. Co., 175 Fed. 487, a^'li, as Preston v. Sturgis Milling Co., C. C. A., 183 Fed. 1. 15 WalMey v. Muscatine, 6 Wall. , 481, 18 L. ed. 930,,, , 16 Smith V. Bourbon County, ,127, U. S. 105, 82 L. ed. 73. 17 Bees V. Watertown, 19 - Wall, 107, 22 L. ed. 72; Heine v.; Levee Com'rs, 19, Wall. 655,. 22 L. ,^. 228; Merriwether v. Garrett, 102, TJ. S. 472, 26 L. ed. 197. !,,' 18 Thompson v. Allen County, 115 U. S. 550, 29 L. ed. 472, Safe'Pe-, posit & T, Co.,v. City of Aijniston,, 96 Fed. 661, 663, . , ,„,,. ~§'151f] BiLLS TO SET ASIDE CLOUDS ON TITLE 905 d, suit by the lessee to restrain those claiming under another lease ■frord iiiterference with the property.^® The bill should show affi'rinatively either that the complainant is in possession, or that he and 'the defendants are out of possession,^" or the other facts which give jurisdiction under the statute. Independently of statute, it was held that a Federal court had jurisdictioii of a bill to quiet title by a complainant out of pos- ' session; where the questions in issue included the establishment of the fact of to administratorship and the interpretation and effect' of an administrator's deed, under which the complainant claimed ;^^ and where the complainant alleged title to a tract of land embracing 147,000 acres against a number of defendapts, each' Of whom claimed title to a Separate portion thereof and was Jri pibssession of the same.^* But not solely for purposes that could be accomplished by an action in ejectment.^^ Possession o'f the surface is presumed to give possession of the mine below.** Where woodland was vacant and not enclosed, possession was presumeid to be in the owner of the legal title.** A State statute giving a tenant under a lease for more than ten years the right , 'to bring such a suit will be followed by the Federal courts.** Except perhaps under extraordinary circumstances,-, sucli a suit, can not; |)e main^tained when the illegality or defect in the paper which it is sought to set aside does not appear upon its face.2'' A cloud, upon a title must consist in some written in- i^tiniment., A mere verbal assertion of ownership, although ac- ,Qompani3d by trespasses, does not authorize a" suit in equity un- 19 Lancaster v. Kathleen Oil Co., son, 118 U. S. 86, 30 L. ed. 110; 241 U. S. 551. I Speigle v. Meredith, 4 Bliss. 120 ; '20 'Southern Pae. v. Goodrich, 57 South Penn. Oil Co. v. Miller, C. •F^i.m:' ' ■■ - ■-■'' C. A., 175 Fed. 729. ai Butterfield J. Miller, C. C. A., 2lLawson v. U. S. Min. Co., 207 1S5 Fed. 20(j. ' TJ. S. 1. , 22 Buchanan Co. v. Adkins, C. C. 25 Graves v. Ashburn, 215 IT. S. A., iVs Fed. 692. But see supra, 331, 54 L.ed. 2i7. § 141. ■ ' . 26 N. Y. N. H. & H. R. Co. v. City 23 Hipp y. Baijin, 19 How. Pr. of New York, 145 Fed. 661. '271; 15'L;'ed: 633;',,Lewis'v. Cocks, 27 Johnston v. Kramer Bros. & 23 Wal}. 466, 23 L. pi 70; Ellis Co., 203 Fed.' 733. But see Williams v.^Bavis, iob ty. S. 485, 27 L: ed. y.' Provident, Life & Tr. Co., 242 1006; Killian v. Effinghaus, lid) U. Fed.'4l7. S. 568, 28 L. ed. 246; tJ. S. v. Wil- 906 INFORMATIONS AND BILLS IN EQUITY [§ 151g less the facts are such as would support a bill of peace.*' Where a mortgagee had delivered possession of part, but not of the whole, of land sold under foreclosure and claimed a statutory right of redemption to all the land; it was held that the pur- chaser might sue to quiet its title to the whole tract and inciden- tally to recover the part of which the mortgagor retained posses- sion.*' Where, in a suit to remove a cloud from the title to land there was a prayer for the recovery of the value of timber cut therefrom, upon the denial by the defendant that he claimed any interest in or title to the land, the whole bill was dismissed, leav- ing the complainant to his remedy at law to recover for the tim- ber cut.^" , § 151g. Taxpayers' bills. In the absence of any statutory re- strictions, a taxpayer may bring a suit to prevent an illegal disposition of the money or of the property of a town or county where he pays taxes, or an illegal creation of a debt which he in common with the other owners of property there may be compelled to pay.^ A suit by several taxpayers to enjoin the governor of Ohio from transmitting to the legislature the Eight- eenth Amendment was dismissed.* It has been held that to a taxpayer's bill to prevent the levy of a tax for the payment of town bonds which are charged to be invalid, the .trustees and treasurer of the township are necessary parties who are on the opposite side of the controversy to the plaintiff when the ques- tion of diversity of citizenship is to be decided.* The Supreme Court of the District of- Columbia has granted an injunction in a Suit by Mr. W. R. Hearst to prevent an un- lawful sale of property of the Government held by the United States Shipping Board.* §152. The interrogatory clause. Under the old practice, discovery could not be obtained unless prayed in the bill.^ The 28 Eichardson v. Penn. Coal Co., 25 L. ed. 1070, 1071. Cf. infra, 203 Fed. 743. § 271b. 28 Conn. General Life Ins. Co. v. 2 Ohio v. Cox, 257 Fed. 334. Weldon, 246 Fed. 265. 3 See Sully v. Drennan, 113 U. S. SOSloane v. Kramer Bros. & Co., 287, 28 L. ed. 1007. 230 Fed. 727. 4 Hearst v. Payne, N. Y. Amer- § isig. 1 Illinois Life Ins. Co. ican, April — 1920. V. Newman, 141 Fed. 449 ; Cramp- § 152. 1 Eq. Rule 43, of March, ton V. Zabriskie, 101 U. S. 601, 609, 1842. § 153] PLEADING WAIVERS AND OFFERS 907 Equity Rules of November 4, 1912, omit any provision for these and provide that interrogatories 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 any time after filing his answer and not later than twenty-one days after the joinder of issue, or thereafter by leave of the court or judge.^ The prac- tice upon this subject is discussed in the subsequent chapter on ' ' Evidence and Discovery. " * § 153. Waivers and offers. It has been customary to insert in the prayer for relief, any waiver or offer which the plain- tiff wishes to make,^ 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- tion three of the Act of Congress of July 2, 1864. " * 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 bill in a sworn answer was pre- sumed to be true, unless rebutted by the testimony of two wit- nesses, or one witness and strong corroborating circumstances.* The rule was a restatement of the former practice in chancery.* It has not been copied in the rules promulgated in 1912, nor do they prescribe the effect of an answer under oath. Until the matter has been adjudicated, a prudent practitioner should a Eule 58. 26 L. ed. 765 ; Coonrod v. Kelly, C. 8 348, infra. C A., 119 Fed. 841; infra, § 331. §153. IDaniell's Ch. Pr., (2na 4Bartlett v. Gale, 4 Paige (N. Am.-ed.) 433. Y.) 503; Cooper's Eq. PI., 325, 326; 2Eq. Eule 41, of 1842. Story's Eq. PI., § 874. SVigel V. Hopp. 104, U. S. 441, 908 INFORMATIONS AND, BILLS IN EQUITY [§153 follow the former practice andinsert, in this part of the bill, a', waiver of an answer under oath, unless he wishes to examine the defendant upon interrogatories,* the effect upon which of such a waiver is still unsettled. ' ■ ■ i 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.* In some cases it enforces this by the entry of 'a con- ditional decree without reference to the pleadings.' This seems to be the proper practice when the defendant, by his own.conl- duct, has so complicated matters between himself and a party seeking rescission that complete restoration, is impossible.' The poverty of the complainant was held to be a sufficient justifica-., tion for relieving him from a tender when the decree provided! for its return or credit.® When the evideiioe showed that the party, to whom a; tender or return of money was due, had re- ceived from the property which he wrongfully held returns ex-' eeeding in value the amount due from the plaintiff, it was held that a tender or return was not necessary.^" In a case where the plaintiff had failed to make the tender, which was a prerequi' site to his cause of action, his prayer of relief was granted ; but he was obliged to pay costs to the defendants, although they had ' resisted the suit.^^ But the more usual practice is to insist that the plaintiff shall offer in his bill, which Qtherwise willi be demurrable, to perform, or, in some cases, allege the perform- ance of, the equitable act required of him. Thus, a bill to canijel 6 See iMfra, §348. 354; Hay v. Hay, 13 Hun' (N; Y.) 6 Fosdiek v. Schall, 99 TJ. S. 235 643 ; Joslyn v. Empire State Degree 25 L. ed. 339. Supra, § 79a. of Honor, 145 App. Div. (N,T.) 14, TWalden v. Bodley, 14 Pet. 156, 17, mfra, §§197, 400. 164, 165, 10 L. ed. 398, 401, 402; 8 Heekseher v. Bdenborn, 203 'N.' Farmers' L. & Tr. Co. 7. Denver, Y. 210, 228. L. & G. B. Co., C. C. A., 126 Fed. 9 Lee Line Steamers Co. v. Bobin- 46; Johnston v. Forsyth Mercantile son, C. C. A., 232 Fed. 417. Co., 127 Fed. 845; Andrews v: Conol- 10 Smith v. Moore, Q. C. A., 199 ly, 145 Fed. 43 ; Kley v. Healy, Fed. 689. 127 N. Y. 555; s. c, 149 N. Y. 346, U Hosmer v. Wyoming By. & 354; Hay v. Hay, 13 Hun. (N. Y.) Iron Co., C. G. A., 129 Fed. 883. See' 315; Halpin v. Mutual Brewing Co., infra, § 409. 20 App. Div. (N. Y.) 583, 590; ' : § l53] PLEADING WAIVERS AND OFFERS 909 securities claimed to be usurious, or otherwise rendered void by a statute, must, in the absence of a State statute to the contrary,^* contain an offer by the plaintiff to pay the defend- ant with lawful interest the money he has received therefor.^* So a bill to redeem mortigaged,^* or' pledged,^* property, must contain an offer to pay what is due thereon, though the par- ticular 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 intierest, provided it was applied for the benefit of the estate ; and this the court may require to be pre- paid bbfore'the bill is filed.^* It seems that a bill to set aside a'foreelosuTe of a railway mortgage should contain an offer of pajonent of the amount admitted to be due under the mort- gage, and of the costs of the foreclosure suit, or at least show some reason why such an offer should not be required.^' In a biUto set aside a transaction for fraud, it is not neces- sary"for the plaintiff to tender the payment of any expenses which" the parties guilty of fraud have made. It is sufficient, if the complaint offers to do equity, and the court can then adjuist the rights of the parties by a conditional decree.^* A bill to set aside a tax sale ordinarily mUst contain an of- fer to repay the purchaser at least all legal taxes on the prop- erty paid by tini, both those for which the property was sold and those. subsequently levied thereupon and paid by him, with interest upon each sum.^® ^ ^yHi to restrain the collection of 12 Mo., k. & T. Tr. Co. v. Krum- First Nat. Bank, C. C. A., 71 Fed. seig, 172 U. S. 351, 43 L. ed. 474. 102. "IS Mason v. Gardiner, 4 Brown, 17 Carey v. Houston & T. C. Ry. C^ C. 436; Tupper v. Powell, 1 J. Co., 45 Fed. 438, 443. Ch. (N. T.) 439; Matthews v. War- 18 Gage v. Pumpelly, 115 XT. S. 454, rier, 6 Fed. 461, 465; s. C., 112 V. 29 L: ed. 449. But see Mendenhall S. 600, 28 L. ed. 851. v. Hall, 134 TJ. S, 559, 569, 33 L. ' ItStoty's Eq. PI., § 187a; Hard- ed.- 1012, 1015. ing V. Pingey, 10 Jurist (N. S.), 19 State Railroad Tax Cases, 92 872; Perry 'v.Catr, 41 N. H. 371; U. S. 575, 617, 33 L. ed. 669, 674; Robinson v. Iron Ry. Co., 135 TT. S. Alburquerque v. Perea, 147 V. S. 522, 34 L. ed; 276; Gordon v. Smith, 87, 37 L. ed. 91. But see Chicago, C. C. A., 62^Ped. 503. B. & Q. R. Co. v. Republic County, 16 Uehling V. Lyon, 134 Fed. 703. C. C. A., 67 Fed. 411; Chicago, B. 16 Davis V. Gaines, 104 tj. S. 386, & Q. R. Co. v. B. of C. of Norton 26 L. ed. 757. But see Rush v. County, C. C. A., 67 Fed. 458; Chi- 910 INFORMATIONS AND BILLS IN EQUITY [§ 153 State taxes must aver payment of what is concede^ to be 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 pre- liminary injunction should be granted.^" If it is claimed that the whole tax is void as improperly assessed, the complainant must tender the amount he would owe if the proper assessment had been made;^^ or, if it is impracticable tO; determine that sum, he should offer security for its payment ; *^ unless there is no right to assess the property at all, either because it is exempt from taxation, or because there is no law providing for the same. 2^ In a case where the whole assessment was attacked for improper discrimination against the complainant in favor of the owners of similar property, the court required, as a conr dition precedent to the issue of an injunction, the payment of a tax, assessed at the same rate as that levied upon other prop- erty, and on corporations of the same class, within the State.** The rule has been applied to a suit to enjoin the collection of penalties for a failure to pay taxes due the United States.** The rule does not apply to a special enactment, which is fun- damentally void and entirely illegal.*^ If the proper officer re- fuses to receive a part of the tax, it must be tendered 'svithout cago, M. & St. P. E. Co. v. Harts- 503, 48 L. ed. 761, 767. But see horn, 30 Fed. 541; Taeoma Ey. & Eitterbusch v. Atehison, T. & S. Power Co. v. Pierce County, 193 P. Ey. Co., 0. C. A., 198 Fed. 46. Fed. 90. The same rule applies to a 82 People 's Nat. Bank v. Marye, bill to enjoin the collection of a li- 191 U. S. 272, 281, 48 L. ed. 180, cense, increased by a recent statute, 185; Fargo y. Hart, 193 U. S. 490, where there is no allegation that 503, 48 L. ed. 761, 767. the statute imposing the original li- 28 Eaymond y. , Chicago Traction cense was invalid. Morenci Copper Co., 207 U. S. 20, 38, 52 L. ed. 78, Co. V. Freer, 127 Fed. 199. 88; Chicago Union Traction Co. v. 20 State Eailroad Tax Cases, 92 State Board of Equalization, 114 IT. S. 575, 617, 23 L. ed. 669, 674; Fed. 557, 567. National Bank v. Kimball, 103 U. .S. 24 Kohlhamer v. Smietanka, 239 732, 26 L. ed. 469; People's Nat. Fed. 408. Bank v. Marye, 191 U. S. 272, 281, 26 Valley v. Denver & R. G. E. Co.,. 48 L. ed. 180, 185; Eaymond v. Chi- C. C. A., 236 Fed. 176, 182. cago Traction Co., 207 V. S. 20, 26 Norwood v. Baker, 172 TJ. S. 38, 52 L. ed. 78, 88; Chicago Union 269, 293, 43 L. ed. 443, 452; Chalker Traction. Co. v. State Board of v. Birmingham & N. W. Ey. Co., 249 Equalization, 114 Fed. 557. U. S. 522. 21 Fargo v. Hart, 193 U. S. 490, § 153] PLEADING WAIVERS AND OFFERS 911 the condition annexed of a receipt in full.*'' Ordinarily, where it is impracticable for the plaintiif 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 ; *« and in such a case an offer to pay the money into court when- ever so ordered is equivalent to a payment into court in the first instance.*' Upon a bill to enjoin the enforcement of a statute reduciiig 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 4nd the original fate, and to give to each purchaser of a ticket a coupon for the payment of that proportion of the difference, to which 'he was entitled in case the bill should finally be dis- missed.'" 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 case.'' A bill to compel the specific performance of a contract by a defendant should, it seems, contain an offer by the plaintiff to perform his part thereof.'* And formerly it was," but no longer is,'* required that a bill for an account should contain an offer on the part of the plain- tiff to pay the balance, if any, found due against him. Upon a stockholder's bill, no tender is required;'* although 27 state Eailroad Tax Cases, 92 146 Fed. 150 ; s. c, Consolidated U. a. 575, 617, 23 L. ed. 669, 674; Gas Co. v. New; York, 157 Fed. 849. National Bank v. Kimball, 103 TJ. S. 32 Stapylton v. Seott, 13 Ves. 732, 26 L. ed. 469. 425 ; Fife v. Clayton, 13 Ves. 546. 28 Gordon v. Smith, C. C. A,, 62 33 Godbolt v. Watts, 2 Anst. 543. Fed. 503; Butchers' & Drovers' S. 34 Columbian Government v. Y. Co. V. Louisville & N. E. Co^, C. Rothschild, 1 Simons, 94, 103; C.' A., 67 Fed. 35. Wells v. Strange, 5 Ga. 22. 29 Cheney v. Bilby, C. C. A., 74 SB Edwards v. Mercantile Trust Fed. 52.. Co., 124 Fed. 381, 391. Citizens' 30 Hunter v. Wood, 209 U. S. 205, Sav. & Tr. Co. v. Illinois Cent, E. 52 L. ed. 747. Co., C. C. A., 182 Fed. 607. 81 Consolidated Gas Co. v. Mayer, 912 INFORMATIONS AND BILLS IN EQUITY [§ 153 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 obtained by fraud, need not contain an offer to return the money paid therefor by the fraudulent patentee.'^ It ' has been held: that a bill by a trustee in bankruptcy, to set aside a fraudulent or a preferential sale, need not altege a tender of the purchase money."' The same rule applies to a suit, by the United States to cancel a conveyance made by an Indian .in violation of a statute.'* But in a proper case a decree con- ditioned upon the return of the consideration might be made." Nor need a bill to obtain relief against an infringement of a copyright contain a waiver of the complainant's statutory ^r^ght to a forfeiture of the piratical plates.*" 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.*^, A dis- covery of such matters can only be compelled when the coin- plainant is the only person who can enforce the penalty or forfeiture, and he is willing to waive it,** as, for example, in a case of infringement of copyright.*' An omission of a waiver, tender, or offer, whenever con- sidered necessary, was formerly a ground for demurrer ** and would now justify a dismissal of the bill,** but leave tO amend is in such cases usually given.*^ And in many; but not all 36 U. S. Minor, 114 XT. S. 233, 563; Atwill v. Perrett, 2 Blatchf. 29 L. ed. 110; U,! S.v. Trinidad Coal 39; V. S. v. White, 17 Fed. 561, & Coke Co., 137 V. S. 160, 34 L. ed. 565; Snow v. Mast, 63 Fed. 623. 640; XT. S. v. Laam, 149 Fed. 581; 42 Lord XJxbridge v. Staveland, 1 U. S. V. Howard, C. C. A., 247 Fed. Ves. Sem. 566; Atwill v. Ferrett, 2 455. See also Moffat v. V. S., 112 Blatchf. 39. - - '^ U. S. 24, 28 L. ed. 623; IT. S. v. « Atwill v. Ferrett, 2 Blatchf. 39; White, 17 Fed. 561, 565; IT. S. v. Farmer v. Calver Lithog. Co., 1 Pratt C. & C. Co., 18 Fed. 708. Flippin, 228, 233; infra. S 348. 37 Johnston v. Forsyth Merean- 44 XT. 8. v. Pratt C. & C. Co.',' 18 tile Co., 127 Fed. 845. Fed. 708. 38 Heckman v. XT. S., 224 XT. S. 46 See § 364, imfra. 413, 56 L. ed. 820. 46 Chicago, B. & Q. E. Co. v. Ee- 39 Ibid. public County, C. C. A., 67 Fed. 40 Farmer v. Calvert Lithog. Co., 413; Chicago, B. & Q. E. Co. v. B. 1 Fippin, 228. But see Snow v. of C. Norton County, C.' C. A., 67 Mast, 63 Fed. 623. Fed. 458. 41 Stewart v. Drasha, 4 McLean, ) i '§ 15'4:] • 1 PHAYEKi POE BELIEF 913 eases,*'' when' no acttial tender is required, a general offer to do whatever equity requires in the premises seems to be suffi- ■cient.*' § 154. The prayer for relief. The Equity Rules of 1912 re- quire that each bill shall contain "A statement of and prayer for any special relief pending the suit or on final hearing, which may l^e stated and sought in alternative forms. "^ , There, is ro express provision in these rules fpr a, prayer for general relief . It will, however, be the better practice to insert the same and to comply with the requirements of the former practice upon the subject. The prayer for general relief, Mr. Rbbbins, "an eminent counsel," used to Say, was "the best prayer after the Lord's Prayer. "2. It is usually in one of the jtjifo foUoTjving forms: "And, that your orator shall have siieh other or ;fiqirthe,r, or o^er and further, relief : in the premjises as to this court shall seem meet;" or '"that your orator may be further and otherwise relieved in the premises accordingto equity and 'good conscience." Under the prayer for general • relief the coiirt will usually grant anjr relief justified by the evi- dence,^ other than an interlocutory order, which is consistent with, and a ^ground for which is included in, the allegations of the bill,* and not inconsistent with the prayer for special relief or with the case made by the bill.* Less relief than that 47 state • EaOroad Tax Cases, 92 if. KeHor Milling Co., 36 Fed. 212. tJ. S. 575; 617, 23 L. ed. 663, 674. See Butterfield v. Miller; C. C. A., 48 Gordon V. Smith, C. C. A., 67 195 Fed. 200; Central Impro'vement Fed. 503. Co. v. Cambria Steel Co., C. C. A., §154. 1 Eq. Enle 25. Am. Grapli- 210 Fed. 696;. Wright v. Barnard, ophone -Co. v. Nat. Phonograph 248 Fed. 756. Co., 127 Fed. 349 ; Bloomfield v. 4 English T. FoxaU, 2 Pet. 595, Eyre, 8 Beav. 250,. 259. 7 .L.,,ed. 531; Curry v. Lloyd, 22 SMansaton v. Molesworth, 1 Fed. 258,, 265; Maokall y. Casilear, Eden; -26, note b; Bprmer y. 137 U., S. 55,6, 564, 34 L. ed. 776, Forteseue, 3 Atk. 124;, Storey's Eq. 778. PI., §41, n, 1. BHiern v. Mill, 13 Ves. 118; So- 1, 8T?,yloe V. Merchant's Fire Ins. den v. Soden, there cited; Grimes Co., 9. How. 390, 13 L. ed. 187; v. French, 2 Atk. 141; Curry v. Stewart v. Cfhesappake & Ohio Can- Lloyd, 22 Fed. 258, 265; Haggart v. ^ Co., i Fed. Sei; County of Mo- Wilczinsld, C. C. A., 143 Fed. 22. bile V. .Ejmliall, 102 IT. S. 691, 26 See Kerr v. Houthwiek, C. C. A., L.~ed. 238;' diicago, St. t. & N. O. 120 Fed. 772. In the foUowing cases R. Co. v. Macomb, 2 Fed. 18; Adams relief not prayed in the bill' was 914 INFORMATIONS AND BILLS IN EQUITY [§154 denied. Where the stockholder's bill prayed that the defendant pay- to the corporation the triple dam- ages under the Sherman Law, it was held that there could not be a decree directing the corporation to sue, or if it failed to sue, permitting the plaintiff to sue in its name and on its behalf. Fleitman v. Wellsbach Street Lighting Co., 240 TJ. S. 27. It was held that a prayer for gen- eral relief in a bill seeking a trans- fer of stock did not authorize a de- cree against the corporation for dividends paid to the holders of such stock pending the suit. Georgia' S. & P. By. V. Einstein, 0. C. A., 218 Fed. 55. Where the bill prayed an injunction against a waste and a trespass, that there could be no de- cree to remove a cloud upon the plaintiff's title to the property. TJ. S. V. Brookshire Oil Co., 242 Fed. 718. Where a bill prayed that a statute be declared void, as a direct tax upon property forbidden by the State Constitution and a denial to the plaintiff of the equal protection of the laws, under the Federal Con- stitution the Court refused to con- sider the question whether the stat- ute was in part invalid as an obstruc- tion to interstate commerce. Union Sulphur Co. V. Beed, 249 Fed. 172. In 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 injunction against the operation of coke ovens so near the plaintiff 's premises as to injure them by the exhalations theref orm, on the ground that this was not agreeable to the case made by the bill. Eainey v. Herbert, C. C. A., 55 Fed. 443. tinder a bill to enjoin a post- master from refusing to transmit a magazine at second-class "rates, it was held that the court would not enjoin him from limiting the: num- ber of copies to, a smaller number than the bill 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. Wyman, 168 Fed. 756. Under a bill for specific per- formance, the equity side of the court has no power to grant a judg- ment for a guwntvm meruit, M 'Kin- ney V. Big Horn Basin Development Co., C. C. A., 167 Fed. 770. Where a stockholder 's bill prayed that a foreclosure sale be set aside for fraud and that the defendants re- store to the mortgagor the mort- gaged property and the proceeds thereof, it was held that the court could not enter a judgment direct- ing the majority of the stockholders to account to the plaintiff and other members of the minority for the profits they had gained through the foreclosure and reorganization there- with connected. MaoArdell y^ , 01- cott, 189 N. T. 368. In the i follow- ing cases relief not prayed in bill was granted: In a suit brought to establish a boundary, the Court _en- tered a decree quieting the title of each party as against the other. Mer- oelis V. Wilson, 235 U. S. 579. Un- der a bill 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, Coffain v. Cole, 67 Vt. 226. Where the prayers were that the §154] PRAYER FOR RELIEF 915 coniplainauts should be decreed to be equitable owners of a part of an award and that the party claini- ing the whole and officers of the United States be enjoined from the receipt or payment of the amount thereof, to the detriment of the com- plainants' interests, under the prayer for general relief the court awarded a decree determining the amount to which the complainants were entitled and directing its pay- ment by the defendant who claimed the whole. McGowan v. Parish, 237 U. S. 285. Where a bill prayed the recovery of securities deposited with the defendant under a syndie9,te agreement and it appeared that the securities had been exchanged for others, i^on which the defendant claimed a lien, the court entered a decree for a delivery of the plain- tiff 's proportionate share of the new securities free from any lien. Kelly V. Illinois State Trust Co., -C. C. A., 215 Fed. 567. Where a bill prayed a cancellation of certain deeds as a cloud upon the title to property mortgaged to the plaiintiff who was not then entitled to the possession, the court upon grant- ing' this relief, it appearing that the mortgagee under the terms of the mortgage was then entitled to the possession, gave the same to it. Continental , Trust; Op. v. Tallassee Falls Mfg. Co., 222 Fed. 694. Where the bill prayed the enforce- ment of a mechanic's lien on the mortgaged premises, the complain- ant, under the prayer for general relief, was granted an order direct- ing the owner of the equity of re- demption and the mortgagee to sign a check to enable it to withdraw funds deposited as security for its work. Turner Const. Co. v. Union Terminal Co,, C. C. A., 248 Fed. 120. Where a cross-bill filed by the lessor in a suit to foreclose a me- chanic's lien on a property leased, prayed for a foreclosure of the les- sor 's liens upon improvements and for general relief, the court granted a decree providing that on the les- sor 's payment of the liens therein declared to be superior to her rights, she should become absolute owner of the property and of the improve- ments. Mellon V. St. Louis Union Tr. Co., C. C. A., 240 Fed. 359. 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 Texan court decreed the foreclosure of a lien for the pur- chase-money. Morris v. Hblland, 10 Tex. Civ. App. 474; s. C, 31 S. W. E. 690. Upon a bill to compel an agent to account for illicit profits, received by him from contractors with his employers, and to follow the same into securitietf 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 complain- ant'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. 286, 291, 54 L. ed. 769. In Mich- igan, a bill which alleged that the defendant had levied as sheriff was held to support an injunction against him in his official capacity 916 INFORMATIONS AND ' BILLS IN EQUITY [§'154 prayed- may be granted.® Where, however, a consolidated cor- poration" filed a bill in equity to enjoin the enforcement of an ordinance reducing all its charges for the supply of gas, not praying, in the alternative relief as regards the gas furnished by' one of its constituents; it was held, that relief could iiOt be granted so far as such constituent alone was concerned.'' Where although the prayer for relief did not describe him as sheriff. Wight V.' Eoethlisberger, 116 Mich.' ,241; s! c, 74 N. Y. ' 474. wkere the bill prayed merely a perpetual and not an iliterlocutory injunction against- the eOristruction of a street railway, and the facts proved upon the final heariiig showed that an in- junction then would not be justified, the SUpresme Court held that the bill was properly . dismissed, although it contained a prayer for general relief 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- ments were ^not introduced for that purpose ;and the complainant at the hearing disclaimed any desire for such relief. Osborne V. Missouri Pac. E^. ;Co.,' 147 U. S. 248, 260, 37 L. ed. 155, 161. Where a bill by a mortgagee, who had tought the property at a foreclosure sale, prayed that the rigHt of redemp- tion of a defendant, who was not a party to the foreclosure suit, might be cut off because he was in priv- ity with one of the defendants to the same ard bound by the decree; it was held, that the court ! might ' order- a general' foreclosure tad a resale 1 of: the property under the prayer for general relief. London & San Francisco Bank v. Dexter Hortou & Co., C. C. A., 126 Fei' 593. In a suit for an accounting under a contract, a decree was made directing an accounting, ,inpluding the proceeds of prpj)erty not cov- ered by the contract which, ha,d been wrorigfuUy taken by the defendant. Stennick v. Jones, C. &>!, 225. Fed 345. In a suit to enjoin unfair com- petition and an infringement of trade mark, relief was granted as to a trade mark not described in the bill where it appeared in one of the exhibits and the defendant 's answer denied its infringement. Gordon's Dry Gin Co. v. Eddy & Fisher Co., 246 Fed. 954. In a suit to enforce a trust in securities, un- der the prayer f or : general . rejief, : the complainant was dficreed the securities upon proof that she was the original owner thereof. Ambro- . sius V. Ambrpsius, ; C. C. A., 239 Fed. 473. , See Jntersta,te Commerce Conjtt(igsipn v. Southern Pac, Co„ 132 Fed. 829; holding that the court cpuld enforce an order by the plaintiff, upon different reasons than those assigned by the Commis- sion for its conclusion, when the bill alleged generally that the rule of the company, set aside by the Com- mission, was in violation of tlie Interstate Commerce Act. But see authorities cited supra, §§136, 137. 6 Bay State Gas Co. v. Eogers," 147 Fed. 557, 574; A. B. Dick Co. V. Fuller, 198 Fed. 404. 7 People 's Gas' Light & Coke Co. V. Chicago, 194 U. S. 1; 16, 48 L. ed. 851, 856. §rJ54] , PBAYEE FOK BELIEF 917 ■ a ;]:4P.' prayed for :ft,Tieformataon: of a, policy; it was held, that a, decree could i not; be granted reforming the policy in a dif- f eji^^t , manner, not justified by the case made by the biU.^ "^here the.;]3ill whicli cjiarged fraud prayed, that a location be declared void, aii(i ^so general relief, a decree was allowed de- clearing that the defendants hold " the mine, as trustees ex^ n^cii(ificipi, tor the complainant's benefit.^ It seems that if thete be no objection to the specific relief prayed i fojq,!, the plaintiff cannot at the, hearing abandon that an,d, obtain a iiecree for different relief.^" ilt Jias bei^ held in. England, that, in some cases of fraud, where no other relief can be given against a party deeply iu- volyed jin the fraud; (Charged by! the bill, (the payment of ttie cost? French v. Dear, 5 Ves. 547. 83 Fed. 604. W See U. S. R. S., § 954. * Scheuerle v. Onepiece Bifocal llKirMey v. Burton, 5 Madd. Lens Co., 241 Fed. 270. 378; Dwight v. Humphreys, 3 Me- BIbid. Lean 104. * Burgess v. Martin, 111 Ala. 636, 18 See TJ. S. B. S., § 747; 1 Hoff- 20 S. 506; Pollard v. So. Fertilizer man's Ch. Pr. 97. Co., 122 Ala. 409, 25 So. 169, 910. § 156. 1 Eq. Bule 27. 920 INFORMATIONS AND BILLS IN EQUITY [§ 157 The former practice further feejuired that an aifidavit be annexed to the bill in the following cases: A bill to obtain the benefit of an instrument upon which aii 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, hiad to be 'sup- ported by an affidavit of those facts which are necessary to give the court jurisdiction.'' A bill to perpetuate the testimony of witnesses, or to take testimony de hene esse, hadito- be supported by an affidavit stating the reasons which render such ,& pro- ceeding necessary.* ;A bill of interpleader, and perhaps; al^o a bill in the nature of an interpleader, had to be supported by an affidavit bj' the plaintiff that he does not collude with eitber of the defendants ; ^ or if the plaintiff were a corporatio,n by,pne of its officers, that, to the best of his knowledge and belief, the plaintiff does not so collude.^" , , . § 157. Bills of interpleader. A bill of interpleader is a peti- tion 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 deeiiie without incurring the risk, if he delivers the property to one, of being finally obliged to pay the other damages for having done so.^ It can only be filed by one who claims no interest in the property in (^uestitin, 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 concerning the same.^ ' .1 The conflicting claims must be doubtful.^ The claimants must seek the same thing, not merely the same amounlls under dif- TWalmsley v. Child, 1 Ves. Sen. iell's Ch. Pr. (Sd Am. ed.) ch. 343 ; Whitfield v. Faussett, 1' Ves. xxxii. ' Sen. 392; Story's Bq. PI., §§313, 8 Killian v. Ebbinhaus, llO-'U'. S. 477; Daniell's Ch. Pr. (2d Am. ed.) 568; 28 L. ed. 246^ LangStOn v. 449, 450. ' Boylston, 2 Ves. Jr. 101 ; Mohawk 8 Philips v. Carew, 1 P. Wms. & Hudson E. B. Ool v. ' Chute, 4 117; Daniell's Ch. Pr. (2d Am. ed.) Paige (N. Y.), 384; Jackson & 452. Sharp Co. v. Pearson, 60 Fed. .113 9 Metchalf v. Hervey, 1 Ves. Sen. 123. See Montgomery v. Phila- 248. delphia, 253;Fea. 473. i lOBignold V. Audland, 11 Si- 8 Shaw v. Coster, 8 Paige (N. Y,) mons, 23. 339, 35 Am. Dec. 690; Goehpaitte v. §157. iMitford'sEq. PI., Chi 1; O'Brien, 2 Jone^(!&, La T. ,38Q; Story's Eq. PI., §§291-297; Dan- Story's Eq. PI., §292. 1 ; . . , eiLLS OF, INTERPLEADER 921 fereiit eontr^acts.* , A tenant or agent may not, by filing sticIj a. bill, dispute thje title o{ bis lessor or principal wben a de- mand lis made upon him, by a stranger claiming under title paramount;* nor can be tbus compel an inteirpleader, of two adverse ,claiinants from wbom he has. taken independent leases, ol,.the same property.* He may, however, thus obtain, relief, when different persons claim under assignments from the i per- son -to, whom be first owed the debt,'' or wben there is a dispute between the ,principa,l 'and a stranger concerning an assignment, which the latter claims the former made to him.', A licensee, in an action by his licensor; for royalties, cannot interplead a; third person who claims an interest in the patent.^ A bill of, interplesader may be filed before or after proceed- ings at, law have been begun against the complainant; ^^ but no iniflfflEtion , can be granted to restrain a proceeding already be- gun, in a State court; ^^ nor, according to the English rule,, to stay proceedings in, ejectment in any court.^^ If a suit in equity has I been already . begun against the stakeholder, he may per- haps obtain relief by a petition therein ; ^* but the more prudent course is . for him to file a new bUl." -The fact that one of the conflicting claims is actionable at law and the other is purely equitable, will not deprive him of relief.^* The enactment of a State statute giving similar re- lief,, upon motion by the defendant to an action at law, does njot, .deprive equity of its: original jurisdiction.^® It has been, held: that where the United States sues upon a bond, in the 4 5a6ggart V. Cutts, 1 Or. & Ph. 9 Pusey & Jones Co. v. Miller, 61 187; Story's Eq. PI.; §293. Fed. 401. ' SJJungey x- 4-iigove, 2 Ves. Jr. 10 Richards v. Salter, 6 J. ,Ch. 304j 31^0; ,,Lowe V. Eiehardson, 3 (N. Y.) 445. Madd. 277;, Story's Eq. PI., § 295. IIU. S. R. S., §,720. But it has been held that a lessee iSMetcalf v. Hervey, 1 Ves. Sen. riiight obtain sueh relief by a cross- 248. bill. Robinson v. Brast, C. G. A., IS Badeau v. Rogers, 2 Paige (N. 149 Fedj 149. T.) 209. 6 Standley v. Roberts, 59 Fed. 14 Birch v. Corbin, 1 Cox Eq. 144. 836. 15 Richards v. Salter, 6 J. Ch^ .TCowtan Y. Wmiams, 9 Ves. 107; (N. T.) 445. Clarke ;v. Byne, 13 Ves. 386; Hog- 16 Barry v. Mutual Life Ins. Co., gart V. Cutts, 1 Or. & Ph. 197, 205. 53 N. T. 536; Wood v. Swift, 81 N. .SHaymard & Clark v. McDonald, Y. 31, 35; Board of Education v. C. C: A., 192 Fed. 890. Scoville, 13 Kan. 17, 30; Prudential 922 INFORMATIONS AND BILLS IN EQUITY [§ 157 absence of statute, the defendant cannot bring in by inter- pleader the persons who might be entitled to participate in the recovery.^'' The courts sustained a bill of interpleader filed by a bank against a depositor and the Custodian of Alien Prop- erty, when the latter claimed that the deposit was owned by an alien enemy.'* A bill of interpleader may be filed by a person who has offered a reward which is claimed by different parties.'* Formerly bills of interpleader were often filed by insurance companies against confiicting claimants to the proceeds of pol- icies issued by them.*" Such bills are now regulated by statute, as follows: "The district court of the United States shall have original cogni- zance to entertain suits in equity begun by bills of interpleader where the same are filled by any insurance company or fra- ternal beneficiary society, duly verified, and where it is made to appear by such bill that one or more persons, being bona fide claimants against such company or society, reside within the jurisdiction of said court; that such company or society has made or issued some policy of insurance or certificate of mem- bership providing for the payment of a sum of money of at least $500 as insurance or benefits to a beneficiary or bene- ficiaries or to the heirs, next of kin, or legal representative of the person insured or member; that two or more adverse claim- ants, citizens of different States, are claiming or may claim to be entitled to such insurance or benefits and that such company or society deposits the amount of such insurance or benefits with th€ clerk of said court and abide the judgment of said court. In all such cases the court shall have the power to issue its process for said claimants, returnable at such time as the said court or a judge thereof shall determine, which shall be ad- dressed to and served by the United States marshals for the respective districts wherein said claimants reside or may be found ; to hear said bill of interpleader and decide thereon ac- cording to the practice in equity ; to discharge said complainant Assurance Co. v. Thomas, L. B. 3 19 Taf t v. Hyatt (Kansas), 180 Ch. App. 74, 77. Pac: 213; Statesman Pub. Co. v. 17 U. S. V. TJ. S. Fidelity & Guar- Foltin (Oregon), 167 Pac. 782 (a anty Co., C. C. A., 242 Fed. 16. prize for solving a puzzle). 18 Amer. Exchange Nat. Bank v. 20 Spring v. South Carolina Ins. Palmer, 256 Fed. 680. Co., 8 Wheat. 268, 5 L. ed. 614. § 157] BILLS OF INTERPLEADER 923 from further liability upon the payment of said insurance or benefit as directed by the court, less complainant's actual court casts; and shall have the power to make such orders and de- crees as may be suitable and proper and to issue the necessary writs usual and customary in such cases for the purpose of car- rying out such orders and decrees : Provided, That in aU cases where a beneficiary or beneficiaries are named in the policy of insurance or certificate of membership or where the same has been assigned and written notice thereof shall have been given to the insurance company or fraternal benefit society, the bill of interpleader shall be filed in the district where the beneficiary or beneficiaries may reside. ' ' ^^ In cases not covered by the statute just quoted, it seems that in the Federal courts no bill can be maintained when either of the defendants cannot be served with process within the ju- risdiction.*'' Such a bill should be filed in the district of the resi- dence of the beneficiary if he is named in the policy. Other- wise in the district of the residence of one of the claimants.*' If a suit is pending in which there is the requisite diversity of citizenship, the citizenship of the parties to the bill of in- terpleader is immaterial.** A bill of interpleader should state the manner in which the plaintiff obtained possession of the property in question, and admit that he has no interest therein. It should set forth the claims of the defendants, showing that they conflict, and that he is ignorant of their respective rights, and cannot determine between them without hazard to himself. It should offer to deposit the fund or other prop- erty in the custody of the court; and conclude with a prayer that upon such deposit the defendants may be enjoined from further molesting him about the matter in question; that they be required to interplead and settle their respective rights among themselves; and that he may have his costs out of the fund, if there be one, otherwise from the defendant.*® 21 Act of Feb'y 22, 1917. See Co. v. Henderson, 244 Fed. 877. H. 113, 39 St. at L. 929 ; Comp. See supi-a, § 61. St. § 991a. Supra, § 5. M Sherman Nat. Bank v. Shubert 22Stockbridge y. Phoenix Mut. Theatrical Co., C. C. A., 247 Fed. Life Ins. Co., 193 Fed. 558. See 256. Supra, § 51. infra, § 166. Z6 Mitf ord 's Eq. PI., ch. 1 ; «8 (Pennsylvania Mut. Life Ins. Story s Eq. PI., §§ 291-297. 924 INFORMATIONS AND BILLS IN' EQUITY [§ 157 Under the former practice the bill bad to be accompanied' by an affidavit; which, when filed by a natural person, should be sworn to by him, and state that ' ' this bill is not filed 'in collu- sion with either of the defendant named, but merely of' his own accord for relief in this Honorable Court. "^® If ' a eorpOrk,- tion be the complainant, one of its officers should make the affidavit, swearing that, to the best of his kno'wledge and be- lief, -the corporation does not collude' with either of the defend- ants.^'' The omission of the affidavit ' was a ground f oi- a de- murrer.28 The bill should also conform to the provisions of the rules regulating origitial bills. No other step can be taken in the cause until after deposit in court of the fund or other property in dispute.^' In case of a bill by an insurance company to determine the right to a pphcy, the deposit of the amount due under the, policy is a condition precedent to the jurisdiction of lie court.*" It has, .howeTOr, been held in England that tha bill is not demurraljle for |;he omission of an offer so to do.^^ . . , , It is better practice to obtain an.prder e^ pa/fie permitting such payment,'^ /When ,tha,1; is done,, an , injunction, will, be granted, restraining , tbe defendants , from suing: the pla,intiff, and from, continuing any action already, begun touching the matter in dispute.*^ The injunction is usually granted to take effect upon payment of the fund into court;** Under special circumstances, however, a stay order might be granted until the complainant had an opportunity to do so.*^ Upon an argument to dissolve this injunction before hearing, it seems that the de- fendants cannot contradict the affidavit that thefe is no collu- 26Metcalf V. Hervey, 1 Ves. Sen. SlMeux v. Bell,i6 Simon?; 175ii ' 248., ,^ , 82 WiUiams , V. .\y^lker, 2 ,Kifi}i. 27Bignold V. Augland, 11 Simons, Eq. (S. C.) 291. _, 23. 88 Sieveking v. Behrens, 2 ' Myl. 28 Metcalf V. Hervey, 1 Ves. Sen. & Cr. 581. 248; Tobin v. Wilson, 3 J. J. Marsh. 34 Sieveking v. Behrens, 2 'i^. & (Ky.) 67; Mitford's Bq. PI., eh. 1. Or. 581. "'' '' ' '' ' 29Meux V. Bell, 6 Simons, 175; 3B Sieveking 'v. Behrens, 2 Mjl;'& Williams v. Walker, 2 Rich. Eq. (S. Ci'. 581;'TT.'S. E. S., §718. ' '^ C.) 291. : , ■. ! 80Penn. Mut. Life Ins. Co. v. Henderson, 244 I'ed. 877. ' ' §157] I ■ . BILLS OP INTERPLEADER 925 sionj'* 'but a reference may be directed when such a charge is made,' and at the hearing collusion may be shown.*'' " ■ ■ • Miln England, a bill of interpleader can be successfully main - itained although all the defendants are beyond the jurisdiction of thc: court.'* Interpleader suits are usually, heard on bill and answered 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 thiMi- decide the controversy between the defendants.*^ The court may of its own motion take an objection to a claim not rMsfed by either of the parties.*** If not, it wiU entei* a decree dismissing the plaintiff with his costs, enjoining the defendants in accordance with the prayer of the bill, and directing, them to (interplead.*^ An order direetingi 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 ex- penses to the other idefendanit, was held to be erroneous.*^ 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 refer- ence to a master is usually ordered.** At the hearing, each de- fendant may read the other's answer against -him.** If one^'of them ^has allowed the bill to be taken as confessed > against him, 36 Stevenson v. Anderson, 2 Ve». 40 Union Pac. E. Co. v. Belek, 211 & B. 407; Manby v. Robinson, L. Fed. 699. K. 4 Ch. App. 347; Fahie v; Lind- 4lDanieU's dh. Pr. C2d Am. ed.) say, 8 Oreg. 474. ' ' 1765; Aagell v. Haddeh,' 16 Ves. 87Mariby v. Eobinaon, L. E. 4 Ch. 202; City Bank v. Bangs, 2 Paige Ap. 347; Langston v. Boylston, 2 (N. Y.) 570j ■ Ves. Jr. 101; Dungey vjAngove, 2 42 Buck v. Mason; C. O. A., 135 Ves. Jr.' 304. Fed. 304. - SSMartinius v. Helmuth, G. 43 Daniell's Ch. Pr. 1765; Story's Cooper, 248; BteVenson v. Anderson, Eq. Jur., § 822; AngeU" v. HadAen, 2. Ves. & B. 412. -Covtrffl, Herndon 16' Ves. 202; City Bank v. Bangs, V. Eidgeway, 17 How. 424, 15 L. ed. 2 Paige (N. Y.) 570. 100; N. Y. 'Life Ins. Cb. v. Dnn- 44Bowyer v. Pritohai'd, 11 Price, levy, C- C. A., 214 Fed. 1, sitpra, 103; Daniell's Ch. Pr. 1765. '-^See §96.! Penn. Mnt. L. I. Co. v. Union Tr. 89Daniell's Ch. Pr. (2d Am. ed.) Co.; 83 Fed". 891. 1765; AngeU v. Hadden, 16 Ves. 202; City Bank v. Bangs, 2 Paige (N. Y.), 570. 926 INFORMATIONS AND BILLS IN EQUITY [§ 158 this is considered as an admission that the bill was properly filed, and that he made an improper claim against the fund ; ** 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.** If, after answer, one of them defaults at the hearing, the court will enter a decree after hear- ing the other.*' The plaintiff, if successful, was formerly entitled to his costs,*' including a counsel fee,*' out of the fund, if there were one. Otherwise, from the defendant whose claim was finally held bad.*" These costs, as well as the costs of the successful de- fendant, had eventually to be paid by him whose claim was finally dismissed.*^ It has been said that when the bill is dismissed, there can be no further proceedings in the cause as between the defendants; not even by consent; inasmuch as the court has thereby lost jurisdiction.*^ 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.*^ § 158. Bills in the nature of interpleader. Where the plain- tiff claims for himself some interest in the fund or matter in question, or does not admit the whole of a defendant's claim, or the defendants claim different amounts, although a bill of interpleader may not, a bill in the nature of an interpleader 45 Badeau v. Rogers, 2 Paige (N. was allowed. McNamara v. Provi- Y.) 209; Fairbrother v. Prattent, dent Sav. Life Assur. Soe., C. C. A., 1 Daniel 64. But see Standley v. 114 Ped. 910, 912. See Mutual Life Boberts, 59 Fed. 836. Ins. Co. v. Farmers' & Mechanies' 46 McNamara v. Provident Sav. Nat. Bank, 173 Fed. 390, 402; Life Assur. Soo., 114 Fed. 910. § 422, wfra. 47 Hodges V. Smith, 1 Cox Eq. 60 Aldridge v. Meaner, 6 Ves. 418 ; 357. Mason v. Hamilton, 5 Simons, 19; 48r)unlop V. Hubbard, 19 Ves. DanielHs Ch. Pr. 1767. 205 ; Downson v. Hardcastle, 2 Cox 51 Mason v. Hamilton, 5 Simmons, Eq. 279 ; McNamara v. Provident 19 ; Covptan v. Williams, 9 Ves. 107 ; Sav. Life Assur. Soc, 114 Fed. 910. Daniell's Ch. Pr. (2d Am. ed.) 1766, 49 Where the face value of a life 1767. insurance policy was $50,000, the 62 Jennings v. Nugent, 1 Molloy, sum of $1,000 W9,s allowed as a 134. counsel fee. Mutual Life Ins. Co. 6S Anon., 1 Vern. 351 ; Jennings V. Lane, 151 Fed. 276. Where the v. Nugent, 1 Molloy, 134; Daniell's amount was $10,000 or less, $150 Ch. Pr. 1765. § 159] BILLS OF CERTIORARI 927 may be sustained.^ 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.^ 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.' A pleading, filed as a bill of interpleader, may be sustained as a bill in the nature of an interpleader.* The frame of such a bill and the proceedings thereunder should conform, imitatis mutwndis, to those of a strict bill of inter- plieader.'' When a suit is pending in which the necessary di- versity of citizenship exists, the citizenship of the parties of such a bill is immaterial to the jurisdiction.^ After payment of what he admts to be due, a decree may be entered discharg- ing 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.'' § 159. Bills of certiorari. A bill of certiorari was a bill filed 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.^ Such a bill first stated the proceedings in the inferior court; then the cause of its incompetency, as, for ex- § 158. XDorn v. Fox, 61 N. T. S Moore Printing Typewriter Co. 264; Mohawk & Hudson E. E. Co. v. National Savings & Tr. Co., 218 V. piute, 4 Paige (N. Y.), 385; U. S. 422, 54 L. ed. 1093. Provident Sav. Life Assur. Soe. v. 4MeNamara v. Provident Sav. Loeb, 115 Fed. 357; Kniekerboeker Life Assur. Soc, 114 Fed. 910. Tr. Co. V. City of Kalamazoo, 182 SMcNamara v. Provident Sav. Fed. 865; Hay ward & Clark v. Mc- Life Assur. Soc, 114 Fed. 910. Donald, C. C. A., 192 Fed. 890; 6 Sherman Nat. Bank v. Shubert Sherman Nat. Bank v. Shubert The- Theatrical Co., 238 Fed. 225. atrical Co., C. C. A., 238 Fed. 225. 7 City Bank v. Bangs, 2 Paige See Robinson v. Brast, C. C. A., 149 (N. T.), 570. See Groves v. Senteel, Fed. 149; Story's Eq. PI., §297b; 153 U. S. 465, 38 L. ed. 785; s. c, Daniell's Ch. Pr. (2d Am. ed.), 1768, 66 Fed. 179. Contra, New England Mutual Life §159. iMitford's PI. eh. 1; Ins. Co. V. Odell, 50 Hun (57 N. T. Story's Eq. PI., § 298. S. C. E.) 279. 8 Kniekerboeker Tr. Co. v. City of Kalamazoo, 182 Fed. 865. 9^8 INPOEMATIONS : AND BILLS IN EQUITY [§-l59. ample, ,that thei subjecti of the action or the' partiesuwere not within its jurisdiction, or that, for some other cause, equal jus- tice could not be done there; and-finally prayed, a writ. of oer-;; tiorwriyio certify and remove the record and the cause to the^ superior court. ^, It did not pray that . the defendaait should answer, or even that he should appear to the bill, and copse-, quently prayed, .fqr, no writ of subpoena, although a supbpena had to be sued out i and, served.^ It was considered as an origi- nal bill, and : filed as such in, the superior court. Thereupon, the plaintiff was required to execute a bond in the penalty of £10Q, with one surety conditioned to prove, the suggestipius . of , the bill iu fourteen days. A subpcena was next sued outi and served ; and a writ of certiorari issued direiCted to the i judge of the.,infej:;ior. court, requiring him to, certify or send to the; court issuing the writ the tenor of the .bill , or. plaint below, with.]fch,e 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.. Testij, mony to; prove, or disprove the suggestions of the l?iM wa;s ijn- mediately taken, and,. the, cause referred to a master to. report, whetl^er they were proven or no. This was required to .be, done within fourteen days, unless the court, specially enlarged the, time. ,,: If the allegations i were proved and sh,owed;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.* In ho reported case has such a bill been filed in a court of the United ■ States, although petitipiis for writs of cer^M)ra.;;*iii proceedings at com- mon law are not uncommon.^ , , . 2 Story '8 Eq. PI., § 298. * Hindee 's Pr. 28-32 and 581, 582. 3 Story's Eq. PI., § 298; Mitford's 8 See infra, § 460. PI. ch. 1. CHAPTER VI. SUBPOteNAS TO ANSWER. § 160. Definition and form of subpoena. The first ptrocess in a court in equity is the siibpoRna ad respondendum which is a wifit requiring the defendant to answer the bill under penalty therein expressed. A similar writ, called quibiisdam certis de caiisis, in the form of a subpoena without any penalty, is also found in some, of, the early English lehancery eases. ^ The process of subpiiena , 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.* 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 issuing from the Supreme Court must bear teste of the Chief Justice of the United States, or, when that offiee is vacant^ of the Associate Justice next in precede^ee. Those issuing from a District court must bear teste of the Judge, or, when that office is vacant, of the clerk thereof.' "When issued from the Supreme Court the writ must be in the name of the President of the United States;* , In the Supreme Court, the return day of the writ must be at least sixty days from the service thereof. " In the District courts, the return day is twenty days from its issue.^ .In the Distript courts, whenever a bill is flled^ 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 tlie bottom of the su})- §160. iMr. Justice Holmes, in 2 Equity Rule 7. an article on Early Englisli Equity, STJ. S.R. S., §911. 1 Law Quart. Rev. 162, note 2, cit- 4U. S. S. C. Rule 5. ing Palgrave, King's Council, 131, « U. S. S. C. Rule 5. 132, note x; Scaldewell v. Stormes- 6 Equity. Rule 12. worth, I'Cal. Ch. 5. * . , 929 Fed. Prac. Vol. 1—59 930 SUBPOENAS TO ANSWER [§ 160 poena shall be placed a memorandum, that the defendant is re- quired to file his answer or other defense in the clerk's office on or before the twentieth day after service, excluding the day thereof; otherwise the bill may be taken pro confesso. Where there are more than one |d^fendant, a, writ of subpoena may, at the election of the plaintiff, be sued out separately for each de- fendant, or a joint' suhipcena against all the defendants.'' If a defendant is sued in a representative capacity, or in both an individual and a repngsentative capacity, he should' be so ■de- scribed in the subpoena; which should in this respeOt fo,llow the prayer I of process in the biilL* A subpoena addressed' to John Moore, guardian of John Stiles, is sufBcien't to give jurisdiction over him individually! although it might not be to gi^e jurisdic- tion over Mm as guardian.^ It was held that a writ addressed to "J.' Oi Baugh, Sheriff of Coahoma County^' Mississippi" was against the individual, not against the office and -might be served in another State when he was found there.^' If a subpoena is iiot properly addressfed;' its service may be set aside upon motion, as made without ' authority. ^^ Such a defect will, however, h6 waived, if the defendant enter his general appearance in his representative capacity. ^^ Where an unincorporated partner- ship was described in the subpoena and 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 partnet's; who failed to notify the plaintiff of his mistake. There, before suit; the attorney for the' co-partnership had iriadvertently writ- ten to the complainiant a letter which implied that the- company 7Eq. bule 12. This, is copied in strong Cork Co. v. Mercljants' Ee- part from Eq. Eule 12 of 1842. It' frig^ratihg Co., 171' I*ed.''778. ' niakes the return' day ' twenty 'days, 8 Carter v. Irigraham, 43 'Ala. 78 ; instead of ' 'the. inext rrite iday prtthe ! ■ Walton v. Herbert, 3' Green Oh. (N. jiejct lulej day |:?Qt,ionej.,^;ti, ,^he'ieleo-, i,J.) 73;' Bi^asher vi |Van Cortlandtj tion, of the plaintiff, occurring after 2 J. Ch. (N. Y.) 247; see Cornjell twenty days from tjie time of the v. Green, 88 Fed. 821. issue thereof.'"' It' oinits the phrase, 9 Cornell v. Green, 88 Fed. 821; added to the former rule Dec. 17, S. C. in C. C. A., 95 Fed. 334. 1900 (180 XT. S. 641), '''which shall 10 Tate V. Baugh, 252 S'ed. 317. contain the Christiaii names as well 11 Waltoh v. Herbert, 3. Grfeen Ch! as the surnames of 'the parties. "' It (N. 3".) '73; Brasher v. Van Cdrt"; adds the words, "and not before," landt,'2 J. C; (N. T;) 242, 247. in order to make clear the practice 12 Ibid. ; Buerk ' v. Iirihaeuser, 8 under the former rule. See Arm- Fed. 457. ' ' ' ' §161] ISSUE OiP' SUBPOENA 931 had a Ijoard of directors,! arid the partnershi*p did business luMer; the name, of the Newport Pressed Brick Company.'* ■ The penalty natoed in the writ is'now usifally two > hundred and fifty dollars. In earlier^iihes itimight be life ftrlimb.M But it. is never enforced, since the taking ; of i the bill asi confessedi affords a far more substantial remedyi Theistib'poeifla should be addressed ito' the 'defehdant against whom it is issiled." - . The usual form of a sufopcena in aillistrietioourtiof the United States is. substantially: as follows: — .ii M! / . .: Thp ■PreMeni^ of the Vnite^ States of Americai.Tp; John,Ap$r: , , jipEjETiNG, — ^Y9u are hereby commanded to appe,ar before tlif. Judges of the District Court ^of the , Unite4 > ^t^teg, of iLipefica for ,^e ^put^ern. District, o|, Nevsr, York, in tjie .^ecoud, Circuit, to answer a bill of icomplaini pxhibited, against ,you ,in th|ES sa,id, Court .in a suit in Equity, by WiLLiAi Terhpne 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 you John ABEHof two hundred Aisfb fifty dollaks ($250). Witness, Honorable GEbEflE C. Holt, Judge of the District' Court of the United ' Stitt's foi- the Southern District of New York, at the City of New York, oii' tlie' first day '6i£ Febk'tiary, in the year one thousand nihe hundred and thirteen and of the Independence of the United States of Aiherica the one hundred and thirty-seventh. i i; ■; ■ > ,r~: 'I Alexander ' GfiLCHRiST, Js.:,€lerk: Robert Jones, Sol'r. ' ' The Defendant John Aber is required to file his answer or other 'defense iii the aboA'e c^useiri iJhe' Clerk's' office of' this Court, on oi; before the twentieth day. affer service hereof ex- cluding the day of said seryice; otherwise the bill aforesaid may be taken pro confess^. •' ' Alexander Gilchrist, Jr., CJerfc. §161. Issue, of the s,uh((>Gena. ?fb procesp of subpoenfi can iss^e,4?om, the, clerk's office in any suit in equity until the bill IS.Baxter v.; Jones,. 185' Fed. 900. J: Proceedings Privy Council (21 K. 14 Mr. Justice Holmes, in anar- 2, 1397). tide on Early Ehglisli Equity, 1 iSCanisU's Ch. Pr. (2d Am. ed.) Law Quar. Rev., 162, note 2, citing 495. i . ; i 932 SUBPOENAS TO AlfSWER [§161 is filed in the ofSce.^ Whenever a bill is- filed the clerk must issue the process of subpoena thereon, as of course, upon the application of the plaintiff.^ The si^ature of counsel is a suffi- cient warrant for his so doing. A praecipe or written order for the subpcena, signed by the attorney is usually first given him. It has been held that: the clerk may issue to an attorney a sum- mons 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.' 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 originalor to retain it by subpcena.* The present practice, it is said, originated when Sir Thomas More was Keeper.^ 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; ® but when leave was asked to file a bill against the President of the United States, under the peculiar circumstances of th^t case it was thought proper that argu- ment should be, heard against the motiour for leavfi.^, U" special circumstances the coiipt will require notice to, be served upon the, proposed defendant,, and leave to ,filp a bill has been denied.* Whenever any subpcena, is returned not executed as tq any defendant, the plaintiff is entitled to another subpoena, toties quoties, against him, if he required it, until due service is made.® . • §161. 1 Equity Bule 12. For the , 6, Wall, 241, , 242, 18 L. ed. 848; rule where a district is divided into Louisiana v. Texas, 176 II. S. 1, 44 two or more divisions, see U. ,S. v. L. ed. 347; Minnesota v. Northern Eddy, 28 Fed. 226. ' ' Securities Co., 184 XT. S. 199, 46 L. 2 Equity Rule 12. ed. 499; Washington v. iS'orthern Se- 3 Jewett V. Garrett, 47 Fed. 625. curities Co., 185 TJ. S. 254, 46 L. ed. 4 Treatise on Masters of the 897. Chauncerie, 1 Harg. Law Tracts, 8 Mississippi v. Johnson, 4 Wall. 302; Darnell's Ch. Pr. ' (2d Am. 475,' 18 L. ed. 43Y ; Georgia v. Grant, ed.) 357. ' ■ 6 Wall. 241, 18 L. ed. 848; Mimieso- 5 Ibid. • ta V. Northern Securities Co., 184 6 Georgia V. Grant, 6 Wall. 241, IT. S. 199, 46 L. ed. 499; supra, 18 L. ed. 848. § 3a. 7 Mississippi v. Johnson, 4 Wall. 9 Equity Rule 14. 475, 18 L. ed. 437; Georgia v. Grant, §;lp|3] ^'E^SON^.L SERVICE 933, § 162. Wlien a, subpoena is necessary. No (^e|en(^ant can b? , b^pught |?ejOor|e, the_pQUJ^|;, agamst his will without .the service of a sub;poena upon hiip.^, A general appearance will,, however, waive, such an omission.^ After a bill has been amended with no fur- ther ,chan.ge than the bringing in of new parties (ieifendant, th,ey alone n^ed be served with, a new subpoena.* If, -however, it were , otherwise substantially attended, according to the English prac- tice a subpoefl^, tp.angwei' t^e amendments had.tp, be served upon all the defendants.* A subpoena to, appear and answer a biU Pf revivor if required, should be substantially in the fp;rm of, a sifbp^cena to an original bill, except that it requires the proper representatives of the party against wbomi it, issues to, appear, at,1ihe.inext,rulp-^ay, which shall occur after fourteen days from the tiinfi, of ;the ^^ervipe pf ,thfi process, and there show cause, if any theyljiav?, why the capse should not ]3e revived," §163. Personal service pf a subpoena. Except in certain e?:cepti9)aal: cases the service of the subpoena must be personal,^ and made within ,the district.* , , ^ Except in such cases it cannot be .served in ,aflptber, district in the same State.* The defendant , must be actually served ^ although he resides within the., district,* The service o,f proepss upon one of two .defendants does not give the .court jurisdi^ition pyer the other.'' A State has no power to provide, that non-residpnj}^, in suits arising out of their business within a State shall J? ^ bound by process served after the agency is iit an end upon the ^agent through whom the business was transac|;e<^,* A statute, providing .that after an attachment hadi §1621 lE'quity'Btile'7. 2 Tbland v. Sprague, 12 Pet. 300, 2Buerk v. Imhaeuser, ' 8 Fed. 457:' i 328, 9 L. ed. 1093, 1104; Picquet v. SLongworth v. Taylor, 1 McLean, Swan, 5 Mason, 35; Bourke v. Ami- 514; .Amgerstein.y. Clarke, 1 yes. Jr. son, 32 Ped. 710 ; , ■)i^rmter v. Koon, 250; Skeffington y. , 4|Ves. Schwartz & Co., 132, Ped. 251; s«pro, Jr. 66. ' §61. i Cppke .y. .Davies, .T. Sp, E. 309 ; 3 Lukosewicz v. Phil?,. & E. Coal & Brainstpn. ,v..',Caj-ter, 2 Simons, 458. I. Co., 232 Fed. 292; ,Tauza v. Peniv. See Kendall V. Bepkett, 1 Russ.', 152. E. Co., 232 Fed. 294; Ba,kauskas v., 6 Equity Eule S6. ' ' '':'^' '.] Brie E. Co., 237 Ped. 495. ', 1 163. lEquity Eule 13. As to fDuttonjv. First Nat. Bank, 244 service in suits against soldiers and, , Fed. 236. . ^ sailors during the war with , Ger- 6 Wright v. Ajikeny, 217 Fed,. 988. many, .see Act of May 8,1^18, oh. epiexner v. Parson, 248 tJ. S. 289. 20,' §260/ 40 St. at L. 440, Comp. .' St. § 307§,. n4bb.' , , 934 SUBPOENAS to ANSWER [§ 163 been levied personal service of the prbde'Ss iiiay be ihade by leav- inar the writ at the place where defendant had last stopped, is diie process of law in so far as it supports a judgment agafast the property seizedJ At coininoil Isiw the Service should be made in accordance witB tlie State statute.' ' Where the State practice permits the writ to be served by an individual who is riot an officer,' it need not be'served by the marshal.® The manner of service upon corpora- tions is described in the following sectirtns.^" In equity it must be made by the mai^hal of the district or his deputy, or by some other person specially appointed by the colirt for that purpose, and not otherwise. ^^ A copy of an order, tli'atriori-residerit defendants apipefir a;nd plead before a day specified therein; may be served by any bney under an order for substituted or statutory service, although tlie us'ukl practice is to serve it hy a deputy marshal of the district where the defendants are found. ^^ It was held that the marshal might' give an attorney an appointment of a special deputy with the name in blank with oral permission to the attorney to fill in the same. ^^ "When the'ma'rshal or his deputy is a party in ^riy caiise', the writs and preeCfepts therein shall be directed to such disinterested person as the court or any justice' or judge thereof may appoint, ' arid' the person so appointed may execute and' returri theni. " ^* "The service of a:ll pi'dcess, mesne and firial, shallbe by the mar-' shal 'of the district, or his deputy, or by some other persbri spe- cially appointed by the, eourj; or judge for that purpose, ,and not otherwise. In the, latter case, the person sejrving the process shall make affidavit thereof."^* When a husband and wife are par- ties a copy should be served upon' each,' although the former practice was complied with hy service upon thp husband alone.^® 7 Herbert v. Bloknell, 233 U. S. 70. 12 Forsyth v. Pierson, 9 Fed. 8ol. 8 Amy V. Watertpwn, 130 TJ. S. IS Jewett v. Garrett, 17, Fed. 625'. \ 301, 32L.'ed'.946;,'si|ainpeauv. Conn. 14 XT. S^E.' S., § 922. ' ' ' R., L. Co., 37 FeiJ. 771 j imfra, § 453. 16 Eq. Eule 15, copied in substance 9 King V. Bavis, 137 Fed. 198, from'Eq,;' Rule 15 of 1842. 'See 210, , af dj as , Blanli^enphip v. King, ' Phoenix jCns. Co. i., Wulf, 1 Fed. C.'C! A.; "157 Ped. 67q. ' ' 775; Hyslpp v.' Hoppock, 5 B'en. 4'4'7;' ' 10§l64. ' " ■' ' i6 0;'H:ara''v. 'MaeConnell, '93 XI. 11 Equity Rule 15; Deacon v. S. 150," 23 'L. ed. 840; Eobiiison v. Sewing M. Co., 14 Rep. 43. Cathcart, 2 Craneh C. C.' 5^6. ;§.ll63l] , PERSONAL SERVICE 935 "J^fhen- a dief^ndant was; sued both individually and in a rcprer ^ejitfttjive capacity,, it was .hgld tjiat only one copy of, the isutv pc^na needjbe left witji him.J'', Such servi*;^ at the door of the defendant's dwellingj^* and at hiss place of . business when, he lives i^irpoms above thp saine,^^ has been helditOi.be suffiejent. In an English case, where infant defendants were seerptfid, service upoii. their:, mother was allowed, and heJd, sufficient.?, " "W^here I a guardian ^d litem hasibeeji appointed it, will, be pre- sumed, in the absence, of evidence ito the contrary, that his wards were duly served.*^ Chief Baron Gilbert,, in, his "Forum Rom- anum, ' ! says of the .subpoena : ' ',T,he seryice is gopd in ;the night or on Sunday,: if it be before , the time of the rptuijn; for, this .lieing only propessrof notice, and jiot to arresst the parties,, jit can, Gi^eate nordistiirbanee, though it be served ini the night or on Sund3.y. "''* Itihas,,.h(>T^e|vei!, since been held in Engl^n/j that, ,a; service on Sunday may be; set aside.^^ ;A decision .pf .circuit ;,hqld^ that, in an extraordinary case, a warrant of ar- rest in admiralty can be issued., on Sunday.^* n i .Personal service of the subpoena cannot, in, the absence! of any special istatJitory provision, be made beyond the territoriaLouris- dietion of the court ; ** not even in another district ,of the State ;?* 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 ibbth districts of the same State. or isi situated 17 Cornell. ;v. Green, 88.,1'pa. 821;; ,; ,?l,Slpiane v. Martin,, 77 |Hun,,(N. s, c. in p. g, ;A.,,.95^iFea. 334. , , (^Y,), 249. . ,See supra, .§.1,06,,^, , ^ j^^ ispkoenixlns.'bo'.'v. Wulf, 1 Fed. ' 22 Gilbert 's ' Forum i^omanum ■)'i. 7751 For cases where the proof of (Tyler's ed.) 41 ' ' service was held insufficient, see 23 Maeiretli v. Nicholson, .l9' Yia. ■Blybhe- v.i Hinckley, 84 Fed. 228; 367. . n: . !■ ,,;.; Qwjf t v.. Meyers, 37 Fed. '37. , : . , , 24 Pearson v. The , Alsalf a, 44; iB'^^. ; 19'Loyin,v. Hicks, 116 Minn. 179, .358 (U. S, I>. C. P.,^.,q ). , , ,., ; 133 n! W. 575. 25 Toland v. Sprague, 12 Pet. §00, , , 2P.Smith;.T. Mai-shaM,-.2 Atk; S70, .328i> 9 L. ed. 1093,? 1104; Picqiiet v. Mr. William Allen Butler, .ini,a Swan, 5 Mason, 35; Bourke v. Artii- ISarmed opinion when! refefeepheld son, 32 Fed; 710; Butterwoiiih! v. that, where a guardian ad Utem.ynis Hill, 114 U. iS. 128, 29 L. ed; lig,..'* appointed, service of a subpoena up- 26LukosewiCz"v.i Phiia. & .B. Coal on -his, infant ward was not, indis- & Iron 'Co., '232 Fedc 292; Tauza v. .peHSabie to the jurisdiction. Stoane Penn. It. Co., 232 Fed. .294; EakauS- V. Martin, 77 Hun. 249.! ' See, s^jjroi, kaS v. Brie E. Co., 237 Fed. '495. §106. '(.'■■'• ; ■■ • ' ; ' ■ 936 SUBPOENAS TO ANSWER [§ 163 entirely in either district of a State which is divided: into two or more districts, a defendant resident theriSin may be served by the marshal of any district in that' State where^ he resides.*'' Thfe writ must be addressed to the marshal in the dlistriet where serv- ice is to be made.** It has been held that a suit brought' solely for the purpose of appointing a receiver of a ralilroad, with ah injunction against its creditors,*' a suit tb' determine the right- ful owners of a fund in court,*" and a suit by the United Stateis to determine the right of an Indian tribe to a fishery,** 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 eojpy- of a writ sued out of the court of the proper district ; and such origi- nal 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 marshal of any district in the same State. ' ' ** Where defendants reside in different divisions of a district, all mesne and final process may be served and executed in any or all of the divisions of the district.*' In other eases where a State is divided into two or more districts the defendant cannot be served out of the district.** n ' , 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 seyeral States or with foreign iiations, the subpoena may be served by leave of the court in any dis- trict by the marshal thereof.*^ 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 de^end- 2'7Jua. Code, §§54, 55, 56, 36 St. »2Jud. Gode, §52, 36 St; at L. at 1,..1087. ' 1087. , , .■ , ' 28Kuzma v. Witherbee Sherman S8 Jud. Gode,' § 53,- 36 StJ at L. Go., 232 Fed. 286; Vitkus v. Glyde 1087. S. S. Co., 232 Fed. 288. 84 Galveston, H. & S. A. By. Co. 29 Bast Teni»;, V. & G. R. Go. v. v. Gonzales, 151 V. S. 496, 38 h. Atlanta & T. F. R. Co., 49 Ffed. 508. ed. 248. But see Winter v. Ludlow, SO Winter V. Ludlow, 3 Phila. 464. 3 Phila. 464. i i ;, 81 XJ. S. V. Winans, 73 Fed. 72. 86 26 St. at L., §§ 5, 210. § :!l,6ia] SERVICE UPON FEDERAL CORPORATIONS 937 ant has a j-egular place of .business in: the, district and has com- mitted acts of infringement there.'^ At common law^ where the State I statutes permit thei practice,*''' and in equity by leave of the court," a receiver of a foreign railroad company may be served by leaving the writ with one of his station agents. It has Jjeen held. that an attorney cannot accept service of a sub-: pcEna ad respondeivdum before the entry; by him of a formal appearance ;** but an acceptance and appearance by him with- out ,any. authority may be ratified by estoppel.*"* ' § 164. Service upon public corporations. If the United States are sought to be made parties defendantj the subpcena should be .served upon the Attorney-General or the District At- torney of. the district where the suit isbrought.V . ''When process at common law or in equity sha^l issue against a. State, the same shall be served on the Governor, or chief ex- ecutive magistrate, and Attorney General of such State."* Service upon a municipal corporation in an action at common law should ;be in ; accordance with the state practice,' which will usually be followed in ^udts in equity* as weU as at law; § 164a. Service upon Federal corporations. 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 prin- cipal 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;'^ and in Pennsylvania, that, in the absenae of an express provision iii its 36Jud. C,q(|e, §38, ;36 St. at L. v.; Virginia, 3 Ball, 3-20, 1 L., etf. 1087; supra, i 62, .,, ! 619 ; swpra, § 3; STEddy V. Lafayejite,! 163 U. S. 3 Amy v. Watertown., 130, IT. S. 4^6, 41 L. ed. 225,. , 301,,9 Sup. Ct. 530, 32 L. edi 946. 88 Central, Tr. .Go. v. ;8t.,,L. A. &■ ■ ,4|Bby v.. Northern Papifie K. Co., T. By. Co., 40 Fed. 426. [■ 13 Phila. 144; § 164a. 89 U. S.' V. -GoaBer(.196 Ped, 584. § 164a. 1 A: • Li, Wolff , &; Co. . v. MCowden v. Wild Goose Mining Choctaw, O. & G. R , Co., 133 Fed. &• Trading , Cov, 0. C. A., 199 Fed. 601. Cf. Caledonian i Coal Co. v. 561.; :,.,{,; ■ , ■ Barker, 196 U. S.: 432,, 49 L. ed. § 164. 1 Hpfflman 's Gh. ,Pr. 108 ; 540 ; . Gould v. Texas & Pae. Ey. DanielPs Ch. Pr. (2d Am. ed.) 51-7, Co., N. Y. Sp. Tm.per Shearn, J., note 4. i I - L. J. Dec. 15, 1916. ■2 Supreme Court :pule 5; Grayson CS8: SUBPOENAS TO ANSWER ' [§a(J4D charter; a corporation created by an act of Congress ban be sued bj^ service upon its president in any State.^ V§164b. Service upon domestic corporations. When a suit is 'brought against a' domestic corporation, that is, one chartered within the State which contains the district where the suit is broughtj the subpoena should be served upon one of 'the officers ; or where that is impossible, by leaving a copy at its principal place of business ; or where it has no place of busineiss nor officers within the State, by service upoii its managing agents, or whdre tihiere is no ^agent there, perhaj)s upon one of its Stockholders.^ Where the State practice prescribed a specific method of service, that must be followed in actions at cominon law,** and will Usu- ally be followed in a stlit in equity.' If not obnoxious tO the Gonstitution, it is binding in a collateral proceeding;* but when the proceeding is attacked by a motion to set aside the service ifpon a foreign corporation, the Federal court detertnines the objection for itself and is not necessarily controlled by the State law.* When railroads were operated by receivers appointed by' a Federal court it was held that the receivers might be served by service upon their managing agent within the State® or by service upon the ticket agent who was also station master.'' An irregularity in service upton the agent of a corporation may: be 1 validated by hisi admission of service.* ■•'■'• <' 2 Tliornburgh v. Savage Mining attorney ' resident in one of its Co., l''Pa,c. Law Maig.' 267. counties nlight be served either by § 164b. iDaniell's Ch. Pr. (Isti attachment and publieatiom or by Am. pd.) 564. "If a bill be filed serving process upon the State aud^ against a corporation the process iter. must be served upon some one of 3 Eby v. Northern Pac. E. Co., 13 the' members. " Citing Hiude's Gli. Phila. 144. But see infra, ii&5." Pr. 87, which uses the same words. 4Swarts v. Christie Grain & Stock But sfee St. Clair V. Obx, 106' TJ. S. Co., 166 Ped. 338. " 353,' 359, 27 L. ed. '223,' 226; feand 5 West v. Cincinnati, N. O. & T; v; ' Proprietor^, etc.; 'Co.-, 3 Day P. Ry. Co.; 170 Fed. 349, aiid cases (Conn.), 441; O^Brien v. Stair 's'F. cited infra. ' •' &■ T. d. Co., 10 Cal. 343. « Jacobs V. Blair, 157 App. l3fv. 2>'Amy V. Watertowu, 130 V. S. (N. T.) 601. ■■/,-:. "i^ 301, 9 Sup. Ct.' 530, 32 L. ed. 946 ; 7 Missouri K. & T. Ey.' Co.' i.^d.-^ Lemon v. Imperial "Window Glass son, 174 Pac. 1058 (Oklahoma, Sept:^ Co.; 199 'Fed. 927, holding 'that, in 1918). See infra, ^fiiii\' ■■.,".. West Virginia, a corporation which STJnion Pa,e. '^Ey.-'^So;-"' v. -I^oyafcv- had failed to fix its place of resi- C. C. A., 61 Fed. 573. Notj'iolf-' dence in the State, by appointing an ever, one by ' a ■sHSatatS^'''' agent. .J,lt64c] SERVICE UPON FOREIGN CORPORATIONS ,9^9 § 1,64c. Service upon foreign corpora.tioris. When , the, juris- diction rests solely upon the existpnee of a !^e^eral question in a case ,whiclj,,is, not bjrought ^ox the infringement of a pa,tent. or copyright nop against a surety company, nor ijnder thp, sjtaj;u|;e .against combinations in restraint of commerce nor under other special statutes, a District Court of the United States. ha|S no ..jui^isdjiatiai;! qver a foreign corporation ^ which is npt an E^lipn. ,,But Tyhen,thei,(i,efendant is an alien corporation,^ or when ^uri^- ..(Jifttipn is, claimed on account of a difference of citizensMp,. a.fpr- ,eign corporation may be .served) with process in thp State pf,tlie eompla,ipant 's residence, provided it be "found" \vi thin itjhe .dis- tricts.'" .,, ; '. , "/'",' ' ', What constitutes such a finding is a mattei^ hard .to define :with a(^euracy. If a State statute forbids a foreign corporatiqn., to I (transact business within its borders except upon condition, t^at ,tb,e corporation stipulate to allpw legal process to be served uppn it, and the company execute such a stipulation, npt in express terms .restricted to the process of a State court; it will be cop- sidered, to apply to the Federal courts, and a subpoena .frojcEs a F^der^l court ,may be served upon ithe foreign corporation in, the same manner as a similair process pf a State tribunal.* , ,, , Such condition and stipulation may be implied as well, as ex- .pressed.* If a State permits a foreign cprporatipn to do busi- ness within her limits, and at the same time provides, that,,, in suits against it for business there dpne, process shall be served upon its, agents, the provision is deemed tP be a condition of . the permission; and corporations that subsequently do business in the State are deemed to assent to such conditions as fully as Farmer v. Nat. Life Ass.'n, 150 Fed. S. 369, 24 L. ed. 853; Pennsylyania 829. Lumbermen's Mutual Fire Ins. Co. § 164e. IMeCormiek H. M. Go. v. Meyer, 197 U. 8. 407, 49 L. ed. V. WaJthers, 134 TJ. S. 41, 33 L. ed. 810; Gale v. So. Bmlding. & .p. 833; In re Keasby. & Mattison Co., Ass'n, 117 Fed.. 732;- Buckingham 160 U. S. 221, 40 L. ed. 402 ; supra, & Hecht v. Nqrth €rerman Fire Ins. J 61. . Co. of New York, 149 Fed. 622 ; 2 In re Hohorst, 150 tJ. S. 653, 37 Castagnino v. Mutual Reserve pund L. ed. 1211; Barrow S. S. Co. v. Life Ass'n, ;C. C. A-, 157 Fejl. 29. Kane 170 TJ. S. 100, 42 L. ed. 964. Overruling several, oases to the eqn- SMeCormiok H. M. Co. v. Walth- ,trary previously decided, in the.,Cir- ers 134 U. S. 41, 33 L., ed. 833; cult Courts. ,,, supra, § 61.. . ,' . ^ St. Clair v. Cox, lO'i^ TJ. S. „350, *e'x parte Schollenberger, 96 U. 356, 27 L. ed.'j822, 225.; 940 SUBPOENAS TO ANSWER [§ l'64e though they had specially authorized their agents to receive service of the process.®' Such eoiidition must not, howeVer, en- croach upon that principle of natural jtistice which requires notice of a suit to a' party before he can be bound by it.'' ' It ihtist be reasonable, and the servibe provided for should be only upOn such agents as may be properly deemed representative of the for- eign corporation. It hd.s been said, "that in the absence of a voluntary appearance, three conditions must concur or co-exist in order to give the Federal courts jUrisdieti'oh iri personam over a corporatioil created' without territorial limits of the State in which the court is held, viz: (1) It must appealr as a matter of fact that the corporation is carrying on its business in such foreign State or district',* (2) that such busiiiess is trianBa*cted or managed' by some agent or officer appointed by and repre- senting the, corporation in such State; and (3)' the existence of some local law making such corporation, or foreign corpbm- tions generally, amenable to ' sUit there, as a condition, express or implied, of doing business in the State."' It seems that by the common law a court has jurisdiction over a foreign eOrpo'ra- tion to' enforce a cause of action arising in its territorial jui'is- diction.^" Service upon a natural person is regulated solely by the Federal Statutes and decisions.^^ It has been said that service upon foreign corporations when the jurisdiction depends upon difference of citizenship must be made in accordance with the State statutes.^^ Service upon an agent, who stood in no representative char- acter to the company; or whose duties wei-e limited to those of a 6 Mr. Justice Field in St. Clair well y. Atohinson, T. & S. F. R, Co., V. Cox, 106 IT. S. 350, 356, 27 L. 34 Fed. 286, 289; 'Buffalo' Glass' Co. ed. 222, 225; Railroad Co. V. Harris, v. Manufacturer's Glass Co., 142 12 Wall. 65, 81, 20 L. 'ed. 354, 358; Fed. 373. ' ' ' ' ' Old Wayne Life Ass'n v. McDon- lONewliy v. Von Opper, etc., Co., ough, 204 TJ. 8. 8, 21, 51 L. ed. L. R. 7 Q. B. '293. '' 345, 350; Hayden v. Androscoggin HVitkus'v. Clyde S. S. 06., 232 Mills, I Fed. 93; Estes v. Belford, Fed. 288. ' 22 Fed. 275. 12 McCflllougi V.; United Gi-ocers 7 St. Clair v. Cox, 106 TJ. S. 356, Corpora'tioii, 247 Fed. 880; Boult- 27 L. ed. 222, 225. ' bee v. Int. Paper Co., C. C. A., 229 S Contra, Sadler v. B. & B. Rub- Fed. 951. But see Henrietta Min. ber Co., 140 App. Div. (N. Y.) 367. & Milling Co. v. 'Johnston, 173 IT.' 8. 9 IT. 8. V. Am. B. Tel. Co., 29 Fed. ?21, 19 Sup. Ct. 402, 43 L. ed. '675. 17, 35, per Jackson, J. See Max- , , . - , . § 164c] SERVICE UPON FOREIGN CORPORATIONS 941 subordinate employee,^' unless formally designated to receive service of proeess,^* or to a particular transaction ^* or whose agency had ceased when the matter in dispute arose ^® have been held to be insufficient. But where, while transacting business there, it had appointed an agent, for the purpose of the service of process, and his authority had not been revoked, the corpora- tion was held to be subject to the jurisdiction.^'' It has been held that after, the United States Railroad Director had taken possession of; a railroad, service upon his agent was not service upon the railroad company.^* It has been said that service upon an agent, otherwise comprtent; whose relations to the claim are such as to make it his interest to suppress the fact is insuffi- cient.^' 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 constitu- tional so far as actions upon contracts made within the State are concerned,*" but not, it has been 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.*^ A few cases in the lower 13 St. Clair v. Cox, 106 U. S. 350, Crews v. Illinois Commercial Men's 359, 360, 27 L. ed. 222, 226; Mexi- Ass'n, 256 Fed. 268. But see Eoss can C. By. Co. v. Pinkney, 149, XJ. S. v. Western Land & Irrigation Co., 194, 37 L. ed. 699; Maxwell v. Atch- 223 Ped. 680. ison, T. & S. P. R. Co., 34 Fed. 286; 17 Hill v. Empire State-Idaho Min- Carron Iron Go. v. MeClaren, 5 H. ing & Developing Co., 156 Fed. 797. L. C. 416; Toledo Rys. & Light Co. 18 Wood v. Clyde S. S. Co., 257 V. Hill, 244 tr. S. 48 ; Franco-Anleri- Fed. 879. can Cham. Co. v. McKee Glass Co., 19 King Tonopah Min. Co. v. 232 Fed. 198;' American Oil & Sup- Lynch, 232 Fed. 485. ply Co. V. Western Gas Const. Co., 20 Saint Mary 's Franco- American C. C. A., 239 Fed. 505; Boultbee v. Petroleum Co. v. West Virginia, 203 International Paper Co., 229 Fed. U. S. 183, 51 L. ed. 144,' 7 Ann. 951; Knapp V. Bullock Tractor Co., Cas. 1018; Leyden v. Western Life 242 Fed. 543. See Eakauskas v. Indemnity Co., 204 Fed. 687, where Erie E. Co., 237 Fed. 495. the statute was applied to a suit for 14 Boultbee v. Int. Paper Co., C. a breach of contract with an agent. C. A,, 229 Fed. 951. 21 Old Wayne Life Ass'n v. Me- 16 St. Clair v. Cox, 106 U. S. 350. Donough, 204 V. S. 8, 51 L. ed. 345 ; 16 Peoples Tobacco Co. v. Am. To- Simon v. Southern Ey. Co., C. C. A., bacco Co., 246 U. S. 69; Cooper v. 195 Fed. 56'. Aff'd 236 U^S. 115. Brazelton. C. C. A.. 135 Fed. 476; 942 SUBPOENA'S TO ANSWER [§ 164c courts hold; that no foreign corporation can be sued for a tort committed in another State or district. ^^ But where 'the defend- ant, had filed a stipulation in pursuance of the statute, it was held-that iti was bound by service Upon the party therein desig- nated in i suits upon causes of action in tort^* or contract aris- ing 2* elsewhere. If the^tatutb!S0 provides the service will be good after ithe defendant has withdrawnfromthe State so far as concerns contracts previously made ^^ or subsequently made for performance in the state.^^ .Whenthe statute does not direct the offiper si&rved to give notide of the 'Service to the corporation, it is i unconstitutional.*'^ Iti has ibeen hefld that the Superintendent of ithc: Insurance Department of the State of New 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 com- pany .^^ It seems that service upon the officer's deputy is suffi- cient,*' The designation of an agent does not authorize service upon him ! in another district of the : State than" that where the suit was brought.*" Service upon such an agent cannot be made without' the limits of the territoria! district.*^ Where there are tWo or more districts in the 'State, service upon the agent in the district other than that where the suit is bi^ought, cannot effect his principal '* except in the cases expressly excepted by s1;at- utes.*' Z2Pry V. Denver & E- G. E. Co., , 27 Eanher v. National Life Ass'ii, 226 Fedj 893; Atch., T. & S. T. lEy. 50 POd. 829. - . . O0. vi Weeks, G. C. A.,, 254 Fed. 513. - • 28 Bankers Surety Co. v. 'Town of See Simon V. Southern Ey. Co.,') 356 Holly, 219. Fedji 96. '"■' IT. S. 115. 29Lukosewicz V. Phila. & E. Coal 23 Sniolik V. Phila. & E. Coal & I. & I. Co., 232 Fed; 292; Tauza v. Co., 222 Fed. 148; Bagdon v. Phila. Peto. E. Co., 232 Fed. 294. & E. Coal & I. Co., 217 N. T. 432. . 30Eakauskas vj Erie E. Co., 237 24Penn. Fire Ins. Co. v. Gold Is- Fed.. 495. : sue Min. & Milling Co., 243 U. S. 31 Lukosewicz v. Philadelphia & 9.3.1 . - Beading Coal & Iron Co., 232 Fed. 26 Mitchell V. Nat. .Surety Co., 206 292. - Fedi' 807; Haglerj V. -Security Mut. 32 Tauza y. Pennsylvania E. Co., LifgiJns. Co., 244 Fed. 863; South- 232 Fed. 294. i ern Paving Const. Go. v. Kuojtville, 33Eakaukas v, Erie E. Co., 237 C.; C. .A., 245 Fed. 421i , -,• , Fed. 495. , 2a Bankers Surety Co. v. Town: of ' - ■ Holly, 219 Fed. 96; King Tonapah Mining Co. v. Lynch, 232 Fed. 485. !§il64d] TRANSACTION' OF BUSINESS WITHIN A DISTRICT wt '§164d. Transaction of business within a State or district. In iordter thus to siibject itself' to th'e' service of process the for- fiigb corporation must actually transact business iii the district ■where the suit is •broug'ht.^ The transaction Of business' subse- quent tO' the service of process does'hbt affect the jurisdifetioh although it liiay be material evidence Upon the ([Question whether the corporation was '"transactihg business in the '^tafe^^ The maintenance of an office ' oi- storerpbin, where goods are kept for sale',' oi" ■where contracts are' closed,* or railroad tickets 'sold;^ th6 continuous sbli'citatioh of orders filled by shipmpnts from the home office wh.en.the soliciting ag^nt had authority to rjeceive ■payment^ iii cash, checks, drafts and notes, payable in ''gieia. 1 Cooper Mfg. Co. V.' Fer- guson; 113 "U.' SJ 727, 2S'L'."ed. 1137 ; 1 iHayden v. Andinoscaggin MillSj.l jl^ed, 93; Zjimbr|ino v. Gal- ; vestpn, H:>^&_.S.,A. By., Qo, 38 J'ed. ^, ■449; Eiddiey., N. T., L. E. & W. "k: Co., 39 Fed. 290; Maxwell v. 'At- ' chison, T. & S. F. B; Co., 37 Fedi 2'86;.Filli V. D., L. & W. B.-.Ca.i, 37 I^eii, ,?^ ;. , .PeitoB. V. Int^n^tiona^ , Co. of Mexico, 36 Fed. 1; Block v.' AtehlBon, T. & S. F. B. GoL, 21 Fed. 529; J.ohn^oii f. Computing Scale Co., 139 Fed. 339 ; Phelps v. Connec- ticut Co., 188' Fed. 765; Chinii v. Foster^Milfeurn' Co.,' 1-95 'Fed. 158; Cody Motors^ Co. 'v. Warren' Motor Car Co., 196 Fed. 254. That other- ■wise, 'the stetutfe ' would 'be uncon- stitutional, ■Was held in Moredotk v. Kirby, 118 Fed. ISO'j'Celld Commis- sion Co. V. Bohlinger, C. C. A., 8 n.B.A.(N.S.) '537,' 147' Fed; 419. See Br'ooks v. Dun, 51 Fed. 138. 2 Frontier 8. ' S'. Co.' v. Franklin S. S. Co., 233 Fed. 127. ' SCheny Bros. 'Co. v. Massachu- setts) 246' Ui S. 147; Toledo Com- puting Scale Co. v. Computing Scale Co., C. C. Aj; 142 Fed.' 919; Chstde!- loid Chemical Co. v. Chicago Wood Finishing Co., 180 Fed. 770. But see Hefner v. Am. Tube & Stamp- ing' Co:, 163 Fed. 866. , 4 Sleiih'er v.. Pullman Co., 170 Fed. 365; Michigan .Aluminum FoUndry Co. v.; Alumjpupji. C3,stiugs Co., 13Q Fed. 879. Whpre the corporation acte^ as' a broker of grain and stooi it was 'held to tr'ans'act busiiless' ik a State where dt'lrtaintained aln office, at, which iprders,' written! or oral, were received by persons called its cOri-esporidfentsj ' the cOrte^Jioindents participating in neitheif tte loss nor the profits ' Of the transaction. Board Of Trade v. Sammoiid Elevator Co., 198 U. S. 424, 49 LV ed. 1111. ; ;■ B Chesape^kfe' & O. By. Co;."v. kio- janbwSki,^ C. 'C. A'.; 191 Ted.' 72'6- Eak*ius!li;as y: Erie' B. Co., 237 Fed,. 295; Mauser -v, Union Pac. B. Co^, 243 'Fed^ '274. But not the mainte- n^nca of an, office y^here, are , sold coupon passenger tickets, attached, to oth^r,ticke^ for trai\sp9rt3laf)i}, ov,er railroa,ds .operated , by othejr copi- panies. Phila. & B. By. Co. y. Mcr Kibbin,. 243 U. 'S. -264, 37;Sup. Ct. 280; Earle v. Chesapeake & O. By. Co., 127 Fed. 23S; Gen.! Inv. (Co. V. Lake Shore & M. So. By. Oo.,- 226 F6d.-976; aff'd C. C. A., 260^ Fed. 944 SUBPOENAS TO ANSWER [§ 164d the forum ;'^ the execution of a single contract; for the instal- lation of machinery upon foundations constructed there for this purpose ;'' the transportation of merchandise for hire from ports there on boats put into commission, repaired and laid up for the winter ; * the shipment by a mining company of a large part of its product by boat into the forum and the rest by rail to a city therein ; ' the maintenance of an office there by its president where he performs his presidential duties,^" or the maintenance there of an office where the executive business of the company is transacted,'^ are sufficient to authorize service within a foreign State. An insurance company is engaged in business in a State where it is accustomed to send its agents there to adjust fire losses.'* But not an incorporated insurance association with no office in the State which issues certificates of membership to residents although its by-laws obligate every member to use his influence in the interest of the association.'* An insurance company does not cease to do business in a State where it receives pre- miums upon policies 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.'* It has been held that service upon an agent of a foreign eor- 160; Granstein v. Butland, E. Co., defendant were withiw the district.) 256 Fed. 409. • » Empire Fuel Co. v. Lyons, C. C. 6 International Harvester Co. v. A., 257 Fed. 890. Kentucky, 234 U. S., 579, 585. Cf.. 10 Washington-Virginia Ey. Co. v. Kirby v. Louismann-Capen Co,, 221 Real Estate Trust Co., of Philadel- Fed. 267; Knapp v. Bullock Tractor phia, 238 U. S. 185; Eevans v. So. Co., 242 Fed. 543; Knapp v. Bui- Mo. & A. E. Co., 114 Fed. 982. lock Tractor Co., 242 Fed. ,543; 11 Eeal Estate Trust Co. of Phila- Fi;anco-American Chemical, Co. v. delphia y. Washington-Virginia Eyt McKee Glass Co., 232 Fed. 198; Co., 204 Fed. 678. American Oil & Supply Co. v. West- 12 Pennsylvania Lumbermen's Mu- ern Gas Construction Co., C. C. A., tual Fire Ins. Co. v. Meyer, 197 239 Fed; 509; Boulther v. Interna- U. S. 407, 49 L. ed. 810. But see tional Paper Co., C. C. A., 229 Fed. Louden Machinery Co. v. Malleable 951; Davis v. B. & O. E. Co., 256 Iron Co., 127 Fed. 1008. Fed. 407. 18 Tomlinson v. Iowa State Travel- 7 Beach v. Kerr Turbine Co., 243 ing Men's Ass'n, 251 Fed. 171. Fed. 706. 14 Connecticut Mut. Life Ins. Co. 8 Frontier S. S. Co. v. Franklin v. Spratley, 172 U. S. 602, 43 L. ed. S. S. Co., 233 Fed. 127. (AVhen at 569. the time of service no boats of the § 164d] TRANSACTION OF BUSINESS WITHIN A DISTRICT 945 poration, who has been sent into the State to negotiate with the plaintiff for a settlement of the controversy, is sufficient; although the company has never done any other business within the jurisdiction." The holding of directors' meetings is an clement to be considered in determining whether a corporation is found within the State," so is the transfer of stock.^'' Tt has been held that the following acts do not 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: The residence of three directors of the corporation and its assistant secretary, who, at various timqs, received and gave information indirectly affecting the business of the corporation elsewhere.^* The residence of the officers or directors served, and a by-law providing that the directors may meet within the district once a month, where there is no propf of a compliance with such by-law.^® The maintenance of an office for the registration of transfers of stock, the meeting of the directors at the office of one of them, and the main- tenance of a bank account, where it was not shown what busi- ness had been transacted at such meetings, nor how recently before the attempted service such meeting had been held.*" The presence of the principal officers of a corporation when they have with them property of the corporation merely for 16 Brusli Creek Goal & Min. Go. N. Y.) ; Wilkins v. Queen City Sav- » . Morgan-Gardner El. Co., 136 Fed. ings Bank & Trust Co., 154 Fed. 173 505 (W. D. Mo.) ; Geo. Wm. Bent- (S. D. N. Y.) ; Hoyt v. Ogden Port- ley Co. V. Olivers & Son, Ltd., 215 land Cement Co., 185 Fed. 889 (N. Fed. 959. See Connecticut Mutual D. N. Y.) ; where service upon the Life Ins. Co. v. Spratley, 172 TJ. S. president was said to be insufficient. 602, 43 L. ed. 569; where, however, 16 Sleieher v. Pullman Co., 170 the company was transacting busi- Fed. 365. ness within the State. Smithson v. 17 Ibid., Westinghouse A. B. Co. Roneo, Ltd., 231 Fed. 350. Contra, v. Great N. By. Co., C. C. A.j 88 Louden Machinery Co. v. Am. Mai- Fed. 258. leable Iron Co., 127 Fed. 1008 (S. 18 Earle v. Chesapeake & O. Ey. D. la.) ; Craig v. Welch Motor Car Co., 127 Fed. 235. Co., 165 Fed. 554; Union Water De- 19 Conley v. Mathieson Alkali velopment Go. v. Stevenson, 256 Fed. Works, 190 U. S. 406, 4fl8, 411, 47 981; Buffalo Sandstone Brick Co. L. ed. 1113, 1114, 1115. V. American Sandstone Brick Ma- aOHoneyman v. Colorado Fuel & chinery Co., 141 Fed. 211 (W. D. Iron Co., 133 Fed. 96. Fed. Prac. Vol. 1—60 9i6 SUBPOENAS TO ANSWER [§164a the purpose of exhibition.^^ The attendance of i the secretary of the corporation upon the taking of depositions, in a suit to which his company is a party. *^ The transaction of busi- ness by, another conipany of which it owns practically thu entire stock.^' The, lease by a foreign, to a domestic: corpo- ration of, personal property, and the payment by the, latter to the former of a part of the profits derived from thp; use of such property within the jurisdiction of the court.^* , Tie acceptance of a lease by a railroad within a State, where the terms of the lease did not appear.^s The negotiation of loans upon a mortgage, and a successful application to have the bonds thereby secured listed on the stock exchange.^® The previous payni'ent of coupons.^''' A single act of business, such as the making of a contract there for the sale of an article to be manii- factured elsewhbre and there delivered, when there was no pur- J)6se to do any other business or td have a place of business within -the district.^' The maintenaiiee of an office with an agent ' merely for the solicitation of business and without au- thority to make contracts *® although samples are showh: in such , Zl Carpenter V. Westinghouse Air- Br^ke Co., 32 Eed.!434. , See,Eeif snider v. American Imp. Pub. Co., 45 Fed. 433; Donovan v. Dixieland Amusement Co., 152 Fed; 661. See Cody Motors Co. v. Warren Motor Car Co., 196 Fed. 254. 22 Ladd , Metals Co.i v. American Mining Co., 152 Fed. 1008. 28 'Peterson v. Chicago, E. I. & Pac. Ey. Co., 205 U. S. 364, 51 L. ed. 841; Phila. & E. Ey. Co. v. Me- Kibbin, 243 U. S. 264, 268, 37 Sup. Ct. 280; Peoples Tobacco Co. v. Am. Tobacco Co., 246 U. S. 79, 87. 24 U. , S. V. Am. B. Tel. Co., 29 Fed. 17. 26 Green v. Chicago B. & Q. Ey. Co., 147 Fed. 767. 26 Clews T. Woodstock Iron Co., 44 Fed. 31. 27 Toledo Eys. & Light Go. v. Hill, 244 U. S. 48. 28 Cooper Mfg. Co. v. Ferguson, 11.3 U. S. ■727,. 735, 28 L: ed. 1137, 1139,; Good Hop© Co. V. Eailway B. F. Co., 22 Fed. 635; Maxwell V. Atchison, T. & S. F. E. ' Co., 34 Fed. 286; Fr.awley v. Pennsylvania Cas. Co., 124 Fed. 259. Cf. Doe v. Springfield B. Co., C. C. A., 104 Fed. 684;; Birioh v. Donnelly C. Co., C. C. A., 105 Fed. 1. 29 Green v. Chicago, B. & Q. Ey. Co., 205 1 U. S. 530, 51 L. ed. 916; People's Tobacco Co. v. Am. Tobac- co Co., 246 U. S. 79, 87; Denver & Eio Grande E. Co. v. Boiler Co., C. C. A., 49 L.E.A. 77, 100 Fed. 7-38; Vflller V. Pennsylvania E. Co.', 113 Fed. .502; Earle v. Chesapeake & O. Ey. Co., 127 Fed. 235; BufCalo Glass Go. V. Manufacturers ' Glass Co., 142 Fed.. 273; McGuire v. Great North- ern Ey. Co., 155 Fed. 280; West V. ■ Cincinnati, N. O. & T. P. Ey. Co., 170 Fed. 349; Hefner v. Am. Tube & Stamping Co., 163 Fedi 866; ,[§;164d TRANSACTIOIjf OF BUSINESS WITHIN A DISTRICT 947 office '" and repairs there ajade.'^ The maintenance of a purch^- ing office when the purchases must be approved at the home office.** The transportation of its freight cars moved by anc^ther .carrier who allows it a proportionate share of the freight.** The insertion of, its name and number in a telephone directory.** The collection of news paid for by the item.*** ; Advertise- ments.**'' <:; ., . ! -, . "Where: the business within the State has ceased, and there is no official appointment of an agent for tibe service of pj-ocess out- standing unrevoked, service upon a former agent is insuffici.ent.*'' Service upon an agent is insufficient unless he represents the, de- fendant in the transaction of business within the State or dis- trict.** Service upon the president,*'' secretary,** or other prin- WiUiam Grace ' ,Co. y. Henry Martiu Brick Mach. Mfg. Co., C. C. A., 174 Fed. 131 ; Fa,wkes v. Am. Motor Car Sales Co., i76' Fed. 1010; Cody Motors -Co. V. Warren Motor Oar Co., 196 Fed. 254; Harasimowicz v. Pe^na. R, Co., 232 Fed. 295. See Tomlinson v. Iowa State Traveling Men's Ass'h, 251 Fed. 171; W. S. Tyler Co. v. Ludlow Saylor Wire Co., 236 U. 8. 723. SO Cody Motors Co. v. Wa,rren Motor Car Co., 196 Fed. 254; Hovey V. De Long Hook & Eye Co., IST. T. Suj). Ct., Sp. Tm. (N. Y.), N. Y. L. J., June 2, 1914. ,81 Fawkes v. Am. Motor Car Sales Co., 176 Fed. 1010. 82 Johanson v. Alaska Treadwell Qpld Min. Co., 225 Fed. 270. 33 Phila. & E. By. Co. v. MoKib- bin,' 243 TI. S. 264, 266. 34PhUa. & E. Ky. Co. v. McKib- ,bin, 243 XT: S. 264, 268. 34a Evansville , Courier Co. v. United Press, 74 Fed. 918. 84b Boardman v. S. S. MeCIure Co., 123 Fed. 614. , 85 People 's Tobacco Co. v. .Am. Tobacco Co., 246 TJ. S. 79; Cooper V. Brazelton, C. C. A., 135 Fed. 476. separtola Mfg. Co, v. Norfolk & W. Ey. Co., 250 Fed. 273; Ppterson V. Chicago, E. I. & Pae. Ey. Co., 205 U. S. 364, 51 L. ed. 841; 'At- chison & S. F. Ey. Co. v. Weeks, 248 Fed. 970, 977; Eyan y. Ohmer, 233 Fed. 165. 37 Phila. & E. Ey. Co. v. MeKib- bin, 243 TJ. S. 264; Carpenter v. Westinghonse Air-Brake Co., 32 Fed. 434; Hoyt v. Ogden Portland. Ce- ment Co., 185 Fed. 889. The New York courts no longer follow the state statute (Code of Civil Pro- cedure, § 432) authorizing service upon a foreign corporation by de- livering a copy of the summons to the president, secretary or treasurer within the State, whether the de- fendant transacts business there or not. Bagdon v. PhUa. & Beading Coal & Iron Co., 217 N. Y. 432, Pope V. Terre Haute Car & Mfg. Co., 87 N. Y. 137; Sadler v. Boston & Bolivia Eubber Co., 140 App.Div. (N. Y.) 367, afC'd 202 N. Y. 547; MaJlory v. Virginia Hot Springs Co., New ' York Supreme Court (Kings County, Sp. Tm.) N. Y. L. J. February 13, 1913. : -. 8? Phelps v. Conneeticut Co., 188 948 SUBPOENAS TO ANSWER [§165 cipal officers ^' of a foreign corporation within the State, is not sufficient ' to confer jurisdiction upon the court, uflless 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 dis- trict under the statutes of the United States.*" Service upon a surety company is made upon its agent in the district ap- pointed by it for that purpose Or in his absence, or, in case there is no such appointment, by service upon the clerk ' of the coijrt where the suit is brought.*^ Such service must be per- sonal.*^ 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 de- prive her courts of jurisdiction because the cause of action arose without the Sta;te.** . By stipulation in the suit, a corporation , may: be estopped from objecting that a person upon whom service was made was not authorized to represent it.** The return of a sheriff or marshal as to service upon a for- eign corporation is presumed to be correct.*^ The marshal's return may be amended.*® It has been held that after removal the sheriff's return cannot,*'' but that its defects may be cured by affidavit.** The return may be contradicted.*' § 165. Substituted service of a subpoena. Independently of an express statutory authority, there is no power in a court Fed. 765; Knapp v. Bullock Trac- & Trading Co., C. C. A., 199 Fed. tor Co., 242 Fed, 543. 561. But see Phila. & E. By. Co. 39 Carpenter v. Westinghouse Air- v. MoKibbin, 243 XT. S. 264, 269. Brake Co., 32 Fed. 434; Union 45 Nickerson v. Warren City Tank Water Development Co.' v. Stevenson, & Boiler Co., 223 Fed. 843. 256 Fed. 981 ; Smithson v. Eoneo, 43 Fountain v. Detroit M. & T. S. Ltd., 231 Fed. 3S0. L. Ry. Co., 210 Fed. 982. ' ■ '40 28-8ti at L., p. 279, suprd, § 61. 47 Boultbee v. International Paper "Ibid. Co., C. C. A., 22a Fed. 951. 42 U. S. V. Southern Dredging Co., 48 Gen. Inv. Co. v. Lake Shore & 251 Fed. 400. M. S. Ey. Co., C. C. A., 250 Fed. 48 Carstairs 'v. Mechanics' and 16. Traders' Ins. Co. of N.-Y], 13 Fed. 49 U. S. v. Southern Bridging Co., 823. ' 251 Fed. 400. 44 Cowdpn V. Wild Goose Mining ' § 165] SUBSTITUTED seeviCe ' 949 of equity to order actual personal service to be effected upon a defeiidant beyond its' territorial jurisdiction;^ buit, in a few cases, such courts have for more than a centiiry' assumed the power of ordering service to be made within their jurisdiction lipon some person for the absent defendant, and have treated such service as valid.*^ In suits to stay proceedings at law in the same court, the set-vice of a subpoena ilp'oh^ the attorney of the plaintiffs at law may be allowed, and it will then bind the lat- ter if he be beyond the territorial jurisdiction of the court.'' 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 fllient is then terminated.* Nor Where an injunction is also asked against a non-resident, who is not a party to the Suit a stay of which is prayed ; * unless he is in privity with one ■ of the 'olriginar flefendajits, in which case it was held^ that serv- ice might be made upon him in another district.® A similar practice would in all probability be allowed in serv- ing process under bills not original; namely, bills of revivor, ■ supplemental bills, and bills of revivor and supplement, which i are nothing morfe , than continuations of the suits upon which they .operate,^ unless they bring in new parties not the per- sonal; representatives; of one who, (has died pending the suitj -A defendant who is charged by a supplemental bill with estoppel by the- decree because he controlled the defense cannot thus- be § 165. 1 This passage was quoted See also Logan v. Patrick, 5 Craiich, ahd approved by Maxey, J., in Batt 288, 3 L. ed. 103; Dunlap v. Stetson, v; 'Proctor, 45 Fed. 515, 516. 4 MasOn, 349. - ' *'' 2 Hales V. 'Sutton, 1 Diokens, 26; 4Kamms v. Stark, 1 SEwyer, 547. s. 'c.; sub. nom. Hallett v. Sutton, B Manning V. Berdan, 132 "Fed. 12- 'S'imons, 145, note; Carter V. De 382. ■'■' Brune, 1 Dickens, 39; Hyde v. For- 6 O'Connor v. O'Connor, 146 Fed. ster, 1 Diekens, 102; Lady Carring- 994. ' ' "ton V. Oantillon, Bunb; 107; Hob- 7 Norton v. Hep worth, 1 H. & T. 'hoii^e V. Courtney, 12 Simons, 140, 158; Bunh v. Clarke, 8 Pet. 1, i L. and. cases thiere eited ; ' Daniell 's Ch. ed. 845; p. 449a. But see Hehdersbn PrJ (2d Am. ed.) 502-508. v. Meggs, 2 Brown Gh. C. 127; An- ' S Diinn V. Clarke, 8 Pet. 1, 8 L. derson v. Lewis, 3 Brown CK.' C. ed.'843; Hitiier v. Siickley, 2 Wash. 429; Gardiner v. Mason, 4 Brown 465pEtk^rt V. Bauert, 4 Wash." 370; Ch. C. 478. This passage was quoted Ward v.'Seab'ry,' 4 Wash. 426; Read with approval by Morrow, J., in V. Consequa, 4 Wash. 174; Bartlett 'Shainwald v. Davids, 69 Fed. 701, V. Sultan of Turkey, 19 Fed. 346. 703. ' ' 950 SUBPOENAS TO i^NSWBE [§3-65 served.^ So,,it bas,«beien; held: That, under a bill to ^efpm an insurance policy pending a,n laction at la\y upon, the. policy, , a subpoena may be thus served upon the attorney foij. the party ;,to ithe action at la-vv,' .Tha-t under a bill to enjoin- the. prosecu- ition of a, suit to compel the transfer of tstock, a subpoena may be served upon the attorney for the plaintiff in tlie former suit.^" , And, that, under a, bill;to collect out of equitable lasspts.a deiCpee of th^ same court of equity, for costs, such service i pf a ; notice lypithputa subpoena is sufficient.^* The Federal courts have re- fused .to extend, this class of .cases so, as to include a ,bjll..ftf interpleader, two of the ;defendants: to .yifhich were engaged,, ,i(n an actipn, between ,thenigelves in the same court, concerning 4be saiiie matter,** although in , England ; such a mode of, seryi; original /suit.*® The safer practice when a defendant to a cross-bill can- , i r ,, , , ' , ' ' : , , I ■ ,,,',',;, , 8 6. !'& C Merriam Co. v. Saal- Kingsbury v. Buekterj 134ir.iiS. field, 241 tr. S. 22. 650, 676, 33 L.^ed. 1047,1057; Low- , 9Alpi;ahani v. North German Tire enstein y. Glidewell,, ^5; Dill, 325; Jn^.,Cx)., 3 Ij.E.A. 188, 37 Fed. 731. Sawyer v. Gill, 3 "Wioodb, ,& M., 97; 10 Kelley v. T. L. Smitli Co., p. Segee v. Thomas,,3 Blatel^f.jll; .Hit- C..'. A., ,1^S„ ^ed, 466. ,,,,,,■: ner v., Suokley, 3,,W,a,sh. 465; Ander- , , 11 Majtla^d . V. Gibson, 79 fed.' son v. Lewis, 3 Brown Ch, C. 429: 136. Gardiner v. Mason, 4 .Brqyjn, ph. C. ; l2Hern^pn v, Eidgway, 17 How. ,478; Waterton v. Croft, 5 Simons, 424, 15 K ed. 100. See §157. 502; infra, §201, yes. &B. 407, See, §157. 16 Rubber Cq. y. . Goodyear, 9 18 Martinius v., Helmuth, 6. Coo- Wall. 307; Heath v. Erie Ry. Co., 9 .per, 248 ; Stevenson v, , Anderson, 2 Blatehf . 316 ; Lowenstein v.. Glide- Ves. & B. 407., .See § 157. , ' well, 5 Dillon 325; l^edbetter |V. MPaeiflc R. Co. of Mo. v. Mo. Mandell^ 141 App.Div. (N. Y.) 556, Pac. Ry. Co., 3 Fed. 772; s. o., on aff'd 205 N, Y. 53,7., But see Kings- appeal, Ul TJ. S. 505, 522, 28 L. feury v. Buokner, J^4 U. S.. 650, 676, e,d. 498, 504. , 33 L. ed. 1047, .1Q57,, See infra, ^,16 Johnson R. E., S. Co. v. Union §201. , ,, i ' ' . S. & S. Co., 43 Fed. 331, §201; ,,.' , „ §'1'65] " SUBSTITUTED SERVICE 951 npt be served personally seems to be to procure an order staying his procel'^iags in the original 6auBe until he answers the crosS- 1^11.^'' 'Silbstitafted service of process or notice upon a petition of intervention is' allowed in the same cases in which it would be allowed Upbn a cross-billi^* Substituted service has also been a'liWisd ill Eriglaild upon the ageiit of a defendant beyond the jurisdictioii, who had authority to represent the latter wilih respect to the property which was the subject of the suit." When substituted service is wished, an order must be obtained that service upon the. attorney employed m, the- former suit or action .shall be deemed good service.^" If service be made upon, the attorney without such an qrder having been obtained, it m^y b^ set; aside,*^ and all subsequent proceedings wil,l be, void.** '^l^e |]p|icjtj(}ii, for sii(^ ^ an ; order ordinarily may, be ex parte.^^ 1% must ^e , ^supported by an af6idaYit,;mad^ by th^ . plaintiff pj*. by ,sorae person having personal knowledge of , the fapts, ther,^in stated, setting forth the reasons why such seryicie: is. necessary and verifying th^- allegations of the bill.** Written admissions of 'the defendant may, however, be sufficient to support the: mo- tion without such affidavit.?^ A previous request bf the! at- torney and his refusal ito accept iserviee of the ^subpoena are not drnebessary preliminary to such a motion.*^ Where the bill is demurrable i for want of equity, the motion for substituted serv^ ..■..■■•-,; !:■'■! -i ■■■ ! r- ^■• .i . ^■' '■XTiSawyer, y. Gil,. 3 W. & M. 97; McCary, 647; Dtoiel's Ch. Pr. (M ^eg5!e,y. .IChojjjaSjiSBlatchf. W; Hit- .Am.ied.) 502., ,;,,!, , | ,,, ;, nei V. Snekley, 2 Wash. 4]S5 ; ; Andf r- 21 Ibid. Jphijstpn-Brown Co, v. 4n v."Leyraf3*'Browii' Ch.''C!..'429';'' 'De'fa. L. & W: R.C6.,'239 .Ped.'590'. (ife'd&e¥'V.''Mdsi)ni ^^ Brown CkC. 22 Gregory v. Pike, 7gPed. '52^.' 4-78;,Wa'fert0wiiv. Croft, 5 Simons, 23 Danilell 's Oh: Pr. (2d Afii. ^OZ^^r. 'i^f)?-! (it, i,,ed.) ,502.; But see, , Crew v, Martin, ^i8;F^|^Uty,;T.,^, S. B.iCp... v. Mo-,, ,1 I'pwler Ex. Pr. 225. ^ . biite St.' By.' Co., 53 Fe4. 8?0; m- ' 24 Pacific ' By. Co. of Mo., v. Mp.' ;9o, fB'g^-''^ '''^ r vi'^r '■ ' '• |(' paic. By. Co., 3' Fed. 772'; s. c, l IBHobhouse v. Courtney, 12 Sim. McCrafy, 647; Delanoy v. Wallis, 14'ff;''FfMity T.'iS^'Si D. Co. v. Mo- 3 Brown's C. C. 12; Stephen' v. Oiai, bile St. By.' C6.vt5^'Ffed!850; Gas- 4 Ves. 359; Eenwoi^thy v. Aceuiior', quet V. Fidelity T. & S. v.. Co., C. S^Madd. 550: a A., 5? I 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 day cei-tain tp be designated, which order shall be served on such absent defendant or defendants, if practica- ble, whenever found, and also upon the person or persons in 27 Muhlenburg Cotiiity v. Citizens ' 2 Landon v. Public . Utilities . Com- Nat. Bank, 65 Fed. 537. mission, 234 Fed. 152, 157. 28 Fidelity T. & S. D. Co. v. Mo- 3 Ibid. bile St. By. Co., 53 Fed. 850. § 166. 12 Wm. IV, eh. 33; 4 & U65a. iJud. Code §56, 36 St. 5 Wm. IV, ch. 82. at L. ch. 231, p. 1102, Comp. St. ,- :. §1038. See supra, H 61, 64. ..--■. § 166] STATUTORY SERVICE 953 possession or charge of said property, if any there he ; or where such personal service upon such absent defendant or defend- ants is 'not ipraeticable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive 'weeks. In ease 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- cretion, 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 jurisdic- tion, 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 defendant or defendants without ap- pearance, affect' only the property which sha;ll 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 whiqh such proeeedinigs shall be taken shall be within another district, but within the same State said suit may be brought in either district 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 men- tioned in this section, enter his appearance in said suit in. said Circuit court, and thereupon the said court shall make an order setting aside the judgment therein permitting said defend- ant or defendants to plead therein on payment by him or them of such costs as the courts shall deem jiist ; and^ accprd[- ing to law."^ It seems that this statute applies to the District Court for Porto Rico in a case where the same has general juris- diction.^ The statute applies, although there is but one defendant.* 8 Jud. Code, I 57, 36 St. at L. ice by publication must be atriotly 1087, , A similar method of service followed. Hunt v. WicklifEe, 2 Pet. is authorizesd in bankruptcy, in. ease 201; Boswell v. Otis, 9 How.- 336, personal service cannot be madeiiSO 13 L. ed. 164. St. at L., §18, pp. 544, 551; ir^m, S Perez v. Fernandez, 220 i U. S. §97. _A11 statutes which authorize 224,, 55 L. ed. 443. proceedings against absent defend- 4 Ames v. Holderbaum, 42 Fed. ants and unknown heirs upon serv- 341; Wheelwright v. St. L. N. O. 954 SUBPOENAS TO .ANSWER [166a It is no defense to such a suit that neither of , the defendants thus served, nor the plaintiff, is a resident of the distriet.^ Nor^ it , has been held, that the property in question has been j at? tached by a StatCi she:^ff.® , , i ., n. § 166a. Cases in which statutory service can be made. Proc- ess can thus, be served in an action of ejectment ; ^ in. a suit. tQ foreclose, a railway,^ or other mortgage,' but not so as to justify a fie.csree, f or the deficiency against a niortgagor, who does not ap- pear; *,in. a, suit: to foreclose an attorney's lien upon personalty' a.stoGjkholders' lien upon the books and funds, of a f preigij- corv poration, after , its, dissolutipn, iuithe State of lits domicile.* I, Process, may thus be served in a partition, suit'' and a suit to quiet, title to real or personal property ; * for example, a suit by the United States to cancel land patents,® or, by a private individual to cancel a deed,^" or by stockholders tOiset, aside a &iO. G. Tr. Co., 50 Fed. 709; supra, § 61. ' ' '5 Ibid. SWhfeelwiight V. St. L., N. O. & O. G. & Tr. Go., 50 Fed. 709; mpra, Si56. ,.,..; § 166a. 1 Spencer v. Kansas City S. F. Co., 56 Fed. 741. 2 Farmers' L. & Tr. Co. v. Hous- ton &T. C. Ry. Co., 44 Fed. 115. 3Du Pont V. Abel, 81 Fed. 534. 4Ibid. i , S IngersoU . V. Coram, 211 TJ. S. 335, 53 L. ed. 208; reversing on an- other point C. C. a1, 148 I^ed. 169; modifying and afSrming 136 Fed. 689, , ,; ',. 6 Kent V. Honsinger, 167 Fed. 619. 7 German Sav. & Loan Soc. v. Tull, G. C. A., 136 Fed. 1. 8 U. S. T.' Southern Pae. Ey. Co., 63 Fed. 481; tr. S. v. Ameridan Lumber Co.; 80 Fed. 309; Evans v. Charles Scribner's Sons, 58 Fed. 303 ; ' Duff V. First Nat. Bank, ' 13 Fed. 65; Dick v. Fbraker, 155 TJ. S. 404, 39 L. ed. 201; Citizens' Sav. & "Trust Co. V. Illinois Cent. B. Co., 205 TJ. S. 46, 51 L,;ed, 703; l^ilkr V. Ahrens, 150 Fed. 644; Evans y. Charles Scribner's Sons, 58 Fed. 303. See Canton Boll & ^Machine Co. V. EoUing Mill Co. of America, ;155 .Fed. 321; Gage v. Eiverside Trust Co., 156 Fed. 1002;^ Schul,t^ y. Diehl, 217 TJ. S. 594, 54 L. ed. 896; Jellenik v. Huron Copper Min- ing Co., 177 tr. S. 1, 44 L. ed. 647; State Nat. Bank v. Syndicate Co., 178 Fed. 359; Hpyrard v., Nat. Tele- phone Co., 182 . 1'pd., 215 ; Sohege v. Singer 'Mfg. Co., Cif. N. J., iffdy. 1907. As to validity of statutes authorizing similar methods of serv- ice in, the State courts, see Hart v. Sanson, 110 U. S. 151, 28 L* ed. 101; Arndt v. Griggs, 134 TT. S. 316, 3.1 L. ed! 918; Eoller \. HoUy, 176 TJ. S. 398, 44 L. ed. 520. 9TJ. S. V. Southern Pac. Ry. Co., 63 Fed. 481; TJ. 8. v. Americfti Lumber Co., 80 Fed. 309; 10 Dick V. Foraker, 155 TJ. S. 404, 39 L. ed. 201 ; Citizens'" Sav. & Trust Co. v^ Illinois Cent. E. Co., 205 TJ. 8. 46j 51 L. ed. 703; MUler v. Ahrens, 150 Fed. 644; Evans v. §'l-66a] STATUTO&Y SERVICE 955'' judgment' iii' the district a^ainSt a foreign eorp6ratioh! obtained by non-residents," or to cancel stock " add bOnds,^' or by claim- ants to sharfes of stock in a domestic corpbration to set aside aii' unlawful transfer of tbeir sfeares arid enforce their right to new ceirtificates,'* although tlie stock certifiieat'es and bonds sought to be cancielled are held by non-residents outside pf the jurisdiction ; but not where the corporation is domiciled withou,t the district even it has been held, if it appears therein, w;hen the jStotck is held by, a non-resident, defendant; ** nor, it has Jbeen held, in, a suit, by a subscriber to a syndicate, to en-, force his right to stock, in which .the managers had invested the syndicate fuinds.^® Process may thus be served in a suit to establish the existence of a lost document which is a muniment, of the,title;to lands in ,the possession. of , the complainant.^''; An. ajbsent judgment debtor may thus be served in a suit by tiie cri^ditpr to appropriate his assets ; ^* but , the statute does not , authqrize a simple contract , creditor to maintain a creditor 's bill, ,t,Q, spt ^^^^ a fraudulent conveyance of property.^® Prpc- , ess may thus be,^eryed;,in a spj^t by a rec^iverto adjust equities, b^jiiYeen tim|Self and non-resident defendants, when a resident defendajj,^, has, obtained for his own benefit, as yy,ell as their^, a.judgnient -vyithin ,t;he jurisdiction, which, he is seeking ,tp &^- Chiles Seribner's Sons, 58 Fed. Steel Barge Co., 79 Fed. 228; Eyan 36s. '^ee' Canton Ebli & Machine v'l Se'aboird' R. Co*, 83 Fed. 889 j" Co. V. Boiling Mill Co. of America, Gideon v. Bepresentatives Securities 165 Fed. '321; Gage v. Biverside Corp., 232 Fed. 184. iContro,KHfe8ttr Trust Co., 156 Fed. 1002. ' v. N. O. G. L. Co., 2 Woods, 144. ' - ll'Schultz V. DieW, 217 tr. S. 594, 15 McKane v. Burke, 132 Fed. 54 I/, ed. 896. 688. 12 Howard v. Nat. Telephone Co., 16 Jones v. Gould, C. C. A., 149 isi2 Fed. 215; Hudson Nav. Go.' v. Fed. 153; affirming 141 Fed.- 698. Murray, 233 Fed. 466, s. c, 236 17 Virginia & W; Virginia Coal Fed. '419. ■ ■ Co. V. Charles, C. C. A., 251' Fed.' 18 State Nat. Bank v. Syndicate 83. Co., 178 Fed. 359; Thompson V. Em- 18 Brigham v. Ludington, 12 mett Trr; Dist., C; C. A., 227 Fed. Blatchf. 237. Cbmpare' Piequet'^v. 560. ' 1 ' Swan, 5 Mason, 35; s. c, 5 Masdrlj' HJellenik v. Huron Copper' Min- 561. " ' '■ ing Co., 177 U: S. 1, 44 L. ed. 647; 19 Canton Boll & Machine Co. vv' Sbhege' v. Singer Mfg: Co., Ch. N. Hwlling Mill Co., 155 Fed. 321. J., 'Nov. 1907. ■ See Merritt v. Ata. ' ' ^56 SUBPOENAS TQ ANSWpB [.1^.^^ force against the fjiiid in tlie receiver's hands.^", , ; In a . ^u^t Jby^ the, creditors, of a corporation, tp. set, aside a convey;ance of, its land and a mQrtga,g,e of its personalty, and; also to obtajn a disj, solution of the corporation and a receiver,.^^ In a sui^t by a,, bondholder, to restrain the trustee, of his mortgage , from paying to the mortgagor, in fraud pi his rights, .the proceeds of, the sale of land, which, by the terms of the mortgage, should be used as a sinking fu,nd for the redemption of the bond's.*^ In a suit to enjoin a foreign corporation from interfering with the complainant's right of way for a telegraph line.*' 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 appear, as effeetuar as a conveyance by him;^ but where there \fas no such statute it was held that process could not thus be served.*^ Nor, it has been held, where the relief sought requires the performance, by the non-resident defendant, of a personal act, such as the acceptance of a building and pavement for the same, which cannot, like the execution of k deed,' be performed 6n his behalf by a master.*® It has been suggested that a lien on partnership assets may be thus enforced.*'' Thie phrase, ' 'claim to ... property ; " is used in th^ ' statute in contrast to liens oi* encumbrianees upoii the 'prdp- erty and relates only to claims in the nature of an asser- ' tion of ownership or proprietary interest, or other direct right or claim to .th« property itself.*' The, stati^te, does npt apply 20 Brown v. ,Pegrani, 143 Fed. hegp, v. Singer Mfg. Co., Chi N. J., 701. , ; : ' , Nov. 1907. ' : , 21 Mellen v. Moline Iron Works, 26 yprk County' SaV. Bank ,y. Ab- 1.31 TJ. S. 352, 33 L. ed. 178; Single , bott, 139 Fed. 988. See § 64, suvra, V. -Scott Paper Mfg. Co., 55 Fed. § 441, im/ro. , =! 553,557.. ; '; , 27Jaekson v. Hooper, 171 Fed. ZZPollitz V. Farmers' Loan & 597. , , Trust Co., 39 Fed. 707. 2* Ladew v. Tennessee Copper Co., 23 Western Union Tel. Co. v. Lou- 179 Fed. 245, 251, per Sanf ord, J. : isville & N. K. Co., 229 Fed, 234. , , "There appears to be no direct ad- 21 Morrison v. Marker, 93 Fed.: judication upon the question wheth,-^,, 692. . er a claim of this character may bft 25 Municipal Inv. Co. v. Gardiner, properly considered a claim to prop- 62 Fed. 954; Nelson v. Husted, 182 erty within the meaning of ^he stat- Fed. 921. See Spurr v. Scoville, ,^ ute. The statement in Shainwald Cushing (Mass.) 578. But see So- v. Lewis (D. q.) 5 Fed, 310, 317,^ § 166a] STATUTORY SERVICE 957 to a suit by a general creditor who has acquired no lien by con- tract, execution, or otherwise.*' The statute does not apply to a suit by a trustee in bankruptcy to set aside, a preferential assign- ment to a non-resident of a debt due the bankrupt.^" Nor to a suit by a bondholder secured by a mortgage against the lessee of the mortgagor and the purchaser of the mortgage property for that by the words 'legal or equita- ble lien or clWm 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 1 Eose'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 Eev. St. § 738, in which these words orig- inally ocdurred, did not apply to a suit iu 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 praviding; 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 ap- pears from the concluding portion of this section that it relates en- tirely to suits of which property is the 'subject,' and as the words 'claim to * * * property' are ev- idently used in contrast to liens or encumbrances upon property and are the only words in the section under which a claim to the direct owner- ship of property may be included, these words relate only to claims made to the property in the nature of an assertion of ownership or pro- prietary interest, or other direct right or claim to the property - it- self," afa.rmed Ladew v. Tennessee Copper Co., 218 XJ. S. 357, 54 L. ed* 1069. 29 Bank of Commerce & Trust v. M 'Arthur, 248 Fed 139. 30 Murphy v. Ford Motor Co., T4l Fed. 134. 958 SUBPOENAS TO ANSWER [ 166a an ' accounting and an application of the rent td the payment of his'bonds.*^ - ' ' ' The statute does not apply to all suits of a local nature,'^ nor to a suit in equity to enjoin a nuisance.'^. Nor to a suit: to set aside a transfer of insurance policies, issued' by a foreign insurance company and not within the district although secured by bonds within the district,'* nor to a suit to collect an insur- ance, policy, issued by a domestic corporation, when a necessary, party, is a non-resident.'* Nor to a suit by an Msurance Cpm- pany, paying for an inspection of the vital organs of the insured, whifeh are in the custody of a clerk of a State court.'^ Nor to a sujt,by heirs against testamentary trustees, to recover a l?a,l- ance in the hands of the defendants.''' Nor to a suit upon a bond, given to release an attachment by a State court." Nor to a suit to establish and enforce a right of membership in the Ass'ociated Press, in a district where the latter corporation is not domiciled; although the right is to be e|Xercised in such dis- trict." Nor to a suit to cancel a promissory note.*" 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 ap- pointment oi a receiver of property within the district ; " but it seems that service can thus be made in a suit to establish a trust in' real estate although the bill prays an accounting.** Process cannot thus be served in a suit to remove a cloud upon the title to a patent-right although the official letters-patent evi- dencing the patent-right are within the jurisdiction.*' 31 Wabash E. Co. v. West Side 37 Payer*eather v. Biteh, 89 Fed. Belt E. Co., 235 Fed. 645. 385. 32 Ladew v. Tennessee Copper Co., 38 Filer & Stowell Co. v. Eainey, 218 XJ. S. 357, 54 L. ed. 1069 ; affirm- 12d Fed. 718. irig 179 Fed. 245. ' 39 Lawrence V. Times Printing 38 Ibid. Co., 90 Fed. 24:. 84 Evans v. 'tSharles Scribner's MManningi v. Berdan, 132 Fed. Sons, 58 Fed. 303. Contra, under a 382. State Statute." Perry v. Young 41 Ellis v. Eeynolds, S5 Fed. 394. (Tenn. 1916), 182 S. W. 577. But see Porter Land & Water Co. 36 Stoekbridge v. Phoenix Mut. i^. Baskin, 43 Fed. 323. Life Ins. Co.;' 193- Fed. 558. 42 Porter Land & Water Co. v. 36 Mutual Life Insurance Com- Baskin, 43 Fed. 323. pany of New York v. Painter, 220 48 Non-Magnetic Watch Co. v. As- Fed. 998. sooiation H. S. of Geneva, 44 Fed.' § 166b] PRACTICE IN 'STATUTORY SERVICE 959. The property affeeted mustbe aetuallyj and iaot merely, icori-i structively,, within- Ithe district.** > , ■ , , , i ■■ . . . i ' In a siiit aflfeeting tfiei title to shares. of the : capital, stock lof the corporation these shares are ordinarily held to be property located in the State *^ where the corporation was' oi-ganized irrespective of the location of. the ceftificatfes.*^ The coiirt wilihin the distri,ct where a will was probat^ed can^ no,t thus acquire jurisdiction of a suit against an absent executor, who has removed the funds from; the State;*'' but after the jurisdiction of the Federal court has attached, it seenig that it cannot be diefeated by an ordet of the State court directing such a removal.** The | existence of property within , the , di^sltricsi^ should, be stated positively and not by inference!,*® , § 166b. Practice in statutory service of a subpoena^ It has been held' at circuit : that an order in pursuance of this stattitd may' be obtaiiiied ihimediately on filing the bill, upon proof by affidavit that the defendant does not dwell within, the district, and cannot be served or found therein ; ^ that there is, need in such; case of a previous attempt to serve a subpcena within the district ; 2 that the day named for his appearance need not be one of the rule^days of the court;.' that personal service of thd order must be made in all, eases where the residence, of the ab^ sent defendant is known or can be made within, a reasonable time and by the exereise of reasonable diligence;; that^ its service by publication can only- be authorized' upon proof by affidavit of 6; standard Gfals Power Co. of Gra. V. gou* v. Northern Gas Light Co., 2 Standard Gas Power Co. of Dela., Woods 144. 224 Fed. 990. ' 47Chaae v. Wetzler, 225 TJi S. 79, 44'(jhise V. Wetzlar, 225 U. S. 79, 56 L. ed. 990. 56 L. €d. 990; MeiSukas v. Green' Mlngersoll v. Coram, 211 TJ. S. ough Eed Ash Coal Co., 24411. S. 335, 359, 53 L. ed. 208, 225; rijvers- gaji'; '' ■' ing' on anothet point C. ' C. a., 148 45Jellenik v. Huron Copper Min. Fed. 169; niodlfying and aflSrliiing Co., 177 IT. S. 1, 44 L. ed. 647; 136 Fed. 689. Gideon V. Representative Securities 49Jaelcson v. Hooper, 171 Fed! Corp., 232' Fed. 184; Hudson Nav. 597, 598. ' Co. V. Mniiay, 233 Fed. 466, s: c, § 166b. 1 FOrsytK v: Piei-son, 9 236 Fed. 419; Holmes v. Camp, 219 Fed. 801; U. S. v. American Lum- N. Y. 359, 114 N. nE. 841. ber Co., 80 Fed. 309. But see Bron- 46 Black V. Foreman Bros. Bank- son v. Keokuk, 2 Dill. 498. ing Co., 218 Fed. 264; Beal v. Car- 2 Ibid, penter, C. C. A., 235 F«d. 273; Kil- 3 Forsyth V. Pierson, 9 Fed. 801. 960 SUBPOENAS I TO ANSWER [§ 166b the facts showing that personal service without the jurisdiction is impracticable; * that the order itself must be served; and that 4Brongoii v. Keokuk, 2 Dill. 498; Batt Vi Proetor, 45 Fed. 515/ Cf. Marx V. Egner, 180 U, S. 314. 45 L. ed. 547; Hicks v., Crawford Coal & Iron Co., 190 Fed. 334. In Jacob v: Roberts, 223' U. S. 261, 264, 265, 56 L. ed. 429, 431; the following affidavit in proceedings in the State court which were attacke(J colla|;er- 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 piirpose of finding said defendants and ascertain their place of resi- dence, has made due and diligent inquiry of the old residents of the Oity of San Diego, the former neigh- bors of said defendants, and is in- formed by D. Choate, who has lived in the City of San Diego over twen- ty-five years, that he thinks the de- 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 thorn 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 plaintifE that he did kot 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 oity 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 out 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 of 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 § 166b] PRACTICE IN STATUTORY SEKVICE 961 the requirements of the statute are not met by service of a sub- poena by the marshal- of the other district, in accordance with an order so directing, made by the court where the suit is pending.* When the person in possession was made a defendant and personally served with process within the jurisdiction, it was held that service of the order upon him was not required.^ 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 unknown^ 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 publication.' If the absent de-' fendant reside in another district of the United States, the safer practice is to obtain an order directing the marshal of that dis- trict to serve him.® A substantial misnomer of a defendant, thus served, who does not appear, wiU invalidate the whole proceedings.^" A defendant 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 it is said, that other parts of the State were not searched, and Jhat, 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 eases 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." Fed. Prac. Vol. 1—61 6 Jennings v. Johnson, C. C. A., 148 Fed. isT; Kent v. Honsinger, 167 Fed. 619. 6 Black V. Foreman Bros. Bank- ing Co., 218 Fed. 264. TBatt V. Proctor, 45 Fed. 515. An affidavit sworn to four months previously was held to be insuffi- cient. Spreen v. Delsignore, 94 Fed. 71. 8 Batt V. Proctor, 45 Fed. 515. SBronson v. Keokuk, 2 Dill. 498; Forsyth v. Pierson, 9 Fed. 801. 10 Meyer v. Kuhn, 65 Fed. 705. In Fanning v. Krapfli, 61 Iowa, 417, 420, the court said: "A pub- lished notice is not necessarily suffi- cient if it is such that the defendant, upon actually seeing it, would prob- ably conclude that it was intended for him. The office of the notice is in part to give the pendency of the action notoriety. It should be such that others than the defendant, see- ing It and knowing the defendant, or knowing of him, would not prob- 962 SUBPOENAS TO ANSWER 166b] whose name is misspelled in the, process, the publication and the addregs cannot safely because of the misnomer ignore |the ably be misled by it as to tjie perT, son for whom it was intended." , In Karr v. Karr, 19 N. J. Eq. 427, the court saii: "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 insufflcient to acquire jurisdiction over non-resident bond- holders. Priest V. Trustees of Las Vegas, 232 U. S. 604, 610, publica- tion, of a notice agains); the "un- known claimants of the interests in the premises and lauds descrjtied in the complaint who claim adversely to the complainants" which com- plainants were named; should not bind the town where the land was situated nor any other persons who could be definitely located and served with process. In Meyer v. Kilhn, 65 Fed. 705, C. C. A., per Fuller, C. J., it was held that publication of a summons against "Sarah E. Meyers, and the unknown heirs of Henry Meyers, deceased, ' ' was insufficient to ac- quire jurisdiction over Elizabeth Meyer, who, was the executrix and devisee of Henry Meyer, deceased, and was so described in the bill. In Virginia & W. Virginia Coal Co. V. Charles, 251 Fed. 83, 141, held that an advertisement of a gen- eral tax sale which named one of the owners as "Eobert". instead of "Eichard" did not bind Richard. In D'Autremont v. Anderson I^on Co. (Minn., May, 1908), 116 N. W. 357; 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. Shafi-etts, 84 Md. 146, 34 Atl. 1122, that where a bill was filed ' ' agiainst i the un- known heirs ,of the, children of pen- jamin Hardester, deceased," a, pub- lication summoning the children of Abraham Hardester was insufficient, although- they were the' persons re- ferred to in the bill and came with- in that description, Abraham being the son of Benjamin. In !Purdy v. Henslee, 97 111. 389, that a, publi- cation addressed to "the nnkn,own heirs and legal representatives of Thomas Osbom, deceased," was in- sufficient 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 unknown heirs of Boolin did not bring before the court Doolin's de- visees , in remainder. In Corrigan V. Schmidt, 126 Mo. 304, 28 S. W. 874; that service by publication against "Owen Corrigan" and ' ' Elisha Corrigan ' ' did not bind John Owen Corrigan and Elizabeth Alicia Corrigan. In Colton v. Rup- ert, 60 Mich! 318, 27 N. W. 520, that a pulilieation against ' ' Grant B. Hunt" did not bind Garrett B. Hunt. In Entrekim v. Chambers, 1 1 Kan, 368, that service by pub- § 166b] PRACTICE IN STATUTORY SERVICE 963 proeeeding.^i ' Where there has been a misnomer the test of the validity of the service is neither whether the names are idem smums nor whether there is a substantial similarity in appear- ance in print; bilt whether the writ ais published and mailed gives sufficient constructive notice to the party erroneously named.^* A defect in personal service, or the fact that personal lication against "Robert Brim- ford" 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. MiUen, although the tract books of lie county gave the name of the landowner as Mil- ler. In Marx v. Hanthorn, 148 U. S, 172, 37 L. ed. 410, that notice of the sale for taxes of the prop- erty of "Ida Ji Hawthorn" gave no jurisdiction over the property of Ida 3. Hanthorn. In Gonzalia v. Barelsman, .143 111.. 634,. 32 N. E. 532, that an affidavit referring to "Fred Meyers" could not be con- strued as applicable 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." 11 Grannus v. Ordeau, 234 TJ. S. 385. lain Grannis v. Ordean, 234 TJ. S. 385, it was held that a siunmons served by publication and mail upon Albert B. Geilfuss, assignee, was sufficient, although it described him as "Albert Guilfuss, assignee." In Steinmann v. Strimple, 29 Mo. App. 478, it was held that an order intended for Benjamin V. S. was sufficient nhen directed to Frank S., that being the name by which Bou- jamiii was usually known. In Lane V. Innes, 43 Minn. 137, 45 N. W. 4, that a change of the name of "Berlah M. Plimpton" to "Beulah ijM, Plimpton" was not fatal. In Snyder v. Parezo, 151 App. Diy. (N. Y.) 116, that a partition sale was valid when the parties had been designated, by publication, under thirteen fictitious names, as "be- ing fictitious, and being intended to designate the wifis, if any, of the ' said Lawrence Kelly, and ' iif' he be dead, his widow,' heirs ,at law, .devisees, and their legal representatives, and their wives, widows, or husbands, if any, and the heirs at law, devisees, and legal representatives of any who may be dead." In Emery v. Kipp, 154 Oal. 83, 19 L.R.A. (N. S.) 983, 129 Am. St. Repi 141, 16 Ann. Cas. 792, 97 Pae. 17, that a jud^nent quieting the title to land deeded to a woman under the name of Louisa Munro was not void because, when sued, she was married and was known as Madeline Louisa Munro Emery, the record of her marriage desig- nating her as Madeline L. Munro. D'Autremont v. Anderson Iron Co., 104 Minn. 165, 17 L.R.A. (N.S.) 236, 124 Am. St. Rep. 615, 15 Ann. Cas. 114. In Green v. Myers (Mo. App.), 72 S. W. 128, that Seibert and Sibert are Htm sonaiis, and the variance between llicm immaterial. In Gottlieb v. Altou Grain Co., 87 App. Div. (N. 964 SUBPOENAS TO ANSWER [§ 166b service was obtained by fraud, will not prejudice proceedings regularly taken under this statute.^* "Where the publication was duly made, the premature entry of a deciiee beforethe statutory time for answer had expired is an irregularity which does not make the decree void or subject to collateral attack.^* No personal judgment can be entered against a defendant who does not appear.^^ But such a clause in a judgment although void does not invalidate so much as affects the title to the prop- erty.^^ This statute does not change the law as to the difference of citizenship essential to jurisdiction.^'' It has been doubted whether it can be applied to a suit removed from a State court.'* Compliance with State statutes providing for service upon non- residents, by publication '* or by attachment,^" will not give a Federal court jurisdiction either in law or equity except in a case which has been removed when the Federal Court will con- tinue the jurisdiction acquired by publication under the State statute provided that is due process of law.^' State statutes are void which authorize a judgment against a nonresident or absentee on five days notice,®'' or personal judg- ment upon publication against a person who has left the State with the intention not to return.®' In the State courts judg- T.) 380, a judgment against W. B. 15 Albert v. Bascom, 245 Fed. 149. Gottlieb was enforced by an action 16 Andes v. Highland Land & in another State against William B. Building Co., 0. C. A., 205 Fed. Gottlieh. In "White v. McClellan, 62 862. Md. 347, that the omission of a 17 Tug Eiver Coal & Salt Co. v. middle initial of a party's name did Brigel, 67 Fed. 625. not invalidate the notice; and in 18 Adams v. Heckscher, 80 Fed. Fanning v. Kr^pfl, 61 Iowa, 417; 742, 744. s. c, 68 Iowa, 544, 14 N. W. 727, 19 Bracken v. TTnion Pae. Ey. Co., 16 N". W. 293, 26 N. W. 183, and C. C. A., 75 Feb. 347; s. c, 56 Fed. Buchanan v. Boy's Lessee, 2 Ohio 447. St. 257, that the publication was 20 U. S. v. Brooke, 184 Fed. 341. sufficient where the names were in- 21 Hudson Nav. Co. v. Murray, correctly spelled but they were ac- 236 Fed. 419. companied by another description 22 Boiler v. Holly, 176 U. S. 398. which made the identification clear. 23 McDonald v. Mabee, March, 13 Fitzgerald & M. C. Co. v. Fitz- 1917, 243 tJ. S. 90, 37 Sup. Ct. gerald, 137 TJ. S. 98, 34 L. ed. 608. 343. 14 Sheffey v. Davis Colliery Co., 219 Fed. 465. § 166b] PRACTICE IN STATUTORY, SERVICE 965 ments by substituted service of process against, resideirts tem- porarily absent from the ^t&te have been sustained.** An order jof a Federal Court for such service is, when attacked collaterally, at least prma facie ejvtifience of the existence of the jurisdictional facts.** ,. , Upon a motion to vacate the order for substituted service, the sufficiency of the bill may be considered and the c^der vacated, where the bill shows no cause for relief in equity ;, although the subject matter is within the statute.*® It has been held: that, the order for service,may be set aside as to part, of the bill and left ifli, force as to the remainder,*'' : „ , The right of. the defendant to appear ,and defend within sa year is absolute.*' It is not lost because he had knowledge of the proceedings.*' The court cannot impose any other condi- tion than that prescribed by, the statute, namely, ithe, payment, of costs.'" An order requiring the application to show a meri- torious defense to the hill is. erroneous.'^ Where the defendants, who have been served by publiqation, appear and defend upon the merits, the suit is converted from a proceeding in rem to, a suit in personam.*^ 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 of from the district in which he last had his residence, such notice shall be given by publication in the manner provided for service of sum- mons by publication or upon absentees by the law^ of the State or the place where such suit is brought. " '* In the eastern district of Louisiana, it was held to be sufficient 24 Huntley v. Baker, 33 Hun (N. 28 Perez, v. I^ernand^z, , 220 • U. S. Y.} 578; Grubel v. Nassauer, 210 224, 55 Ij. ed,. 443, N. Y. ,149. But see Kaher V. Eaher, 29 Ibid, .i 150 Iowa 511; Nicholas v. Vaughan SO Ibid. ,., (Mass.), 105 N. E. 376. , 31 Ibid. , ; 25 Woods, V. Woodson, C. C. A., . 32Beamer y. Werner, ,C. , C. , A., 100 Fed. 515. , 159 Fed. 99. See IngerspU v. Cora,m, 26 Canton Roll &, Machine Co. v. 136 Fed, 689, 692, 693; affirmed 211 Boiling Mill Co,, 155 Fed. 321; TJ;. ;S. 335, 53 L. ed. 208, which re- (Jage v., Riverside Trust Co., 156 versed C. C.'A.,,148 Fed. 169. , Fed, 1002. 33 Oh. 3592 § 15, 34 St. at L. 596, ,27 Evans v. Charles Scribner's > 601,,Comp. St. Supp. 1909, p. 485. Sons, 58 Fed. 303. >: ;- i ' 966 subpoeInas to answbe [§167 to serve the notice upon ari attOrney-at-law, appointed curator ad hoc to represent' aii absentee, without' publication.** § Iffl. Exemptions from service of subpoena or other process, legdA or equitable, other than arrest. Chief Justice Marshall, in the course of the trial of Aaron Burr, ordered that a snbpoBim duces teeitm should issue against President Jefferson. Jefferson, however, refilsed to obey thfe subpoena, while expressing his per- fect willingness to furnish the papfer desired, if requested in what he considereid a proper wky. The dispute went no farther. ^ Subsequently, 'a motion was made for leave to»file a bill in the Supreme Court, praying for an injunction against President Johnson to rest-raiil' hiM- from executing the reconstruction laws. The Attorney-iSenerar then took the position that the President Was not amenable to ijii-'oeess'; but that point was not then and hjis not since been decided. ^ ' On the trial of Guiteau for the murder of President GaMeld, a written statement signed by President Arthilf 'was admitted in evidence by consent without his personal attendance.* No other officer or person has claimed to be; above the law. ' ' .i 34 U. S. V. EUis, 185 T'ed. .546.' ■ §167:, 1 Burr's 'Trial, a ,.. , 2 Mississippi v, ^Jolinson, 4r iWall. 475,, 18 L. ed. 437, See Jefferson's Works, vol. V, p. 102; ■ ' ' ' 3 Guiteau 's Trial, 741, 896. In ■ Ooler v., Brooklyn Eagle, New Y(irk Supreme Court (Kings County), the ; plaintiff • requested President Eoose- velt to give his testimony. ' The fol- lowing answer was received: "Hon. Bird S. Color; 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 eauSe why a <50m- migqion should not issue. His ap- plication 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 re- lates to the plaintiff. This is tech- nical. Second, the ' Executive of a Spvereigii nation may, with the high- ,cst right and dignity, decide, whether he will _ lay aside his official duties to becO'me a witness in the court of another jurisdiction and if the evi- dence pertain, to his duties as a Goyernor of a State some eight years earlier his refusal to testify would be doubly justified. In the present instance, through his secre- tary, he has mElde a, statement tant- amount to such refusal and the issuance of a commission would be a useless if ndt indecorous act, in- asmuch as he is the Commandeir-in- Chief of the army and navy of the United States, and in effect par- amount executive authority in the Bistriot of Columbia, and his re- fusal could not and should not be gainsaid. The law and its history may' be found in the appeal of Hartranft 85 Penn. 433, '27 Amor- g^a'67] EXEMPTTON ' FROM SERVICE 967 The Federal Constitution' provides that Senators and Repre- sentatives ' ' shall in all cases-, except Treason, Felony, and Breach of tlhe Peace, be privileged from Arrest during their Attendance at the 'Session of their respective -House's, iand" in going to and returning from the same."* This has been construed at cir- cuit to exempt them from service of process; unalccompaoied by arrest of theperison, -when on their way to attendfa session of Congress ; ^ and it has been further held that such exemption is not i lost by a slight deviation from the most direct road to the' capital.® In a State court the privilege has been extended to members '©f aConstitutional Convention.'' - "■ ' In certain cases individuals are temporarily exempt .from the service of process, A person temporarily and, voluntarily -within tlie district for, the purpose, of attending, in a Sta;te ' or Federal * court, either as -witness, ^^ or as party," or as attorney, or eoun- ican Eeporter 667. See also Eiee V. Austin 19 miscellaneous 103;" (N. y. Sun, February 10, 1909.) 4 Const., art. I, § 6. : 8 Miner v. Markhamy 28 Fed; 387. 6 Miner V. Markham, 28 Fed.i387. 7 Bolton V. Martin, 1 Dallas, 296, 1 L. ed. 144. 8 Juneau Bank v. MdSpedkn, ■ 5 Biss. 64; Matthews v. Tufts, 87 N. Y. 568. 9 Parker v. Hotchkisa, 1 Wall. Jr. 269; tr. S. V. Bridgman, 8 Am. L. Ree. 541; Brooks v. Far-well, 2 Mc- Crary, 220; s. 0., -4. Fed. 167; Bridges v. Sheldon, 7 Fed. 17; Mat- thews v.^ Puffer, 10 Fed. 606; Lamed v! Griffin; 12 Fed. 590. 10 Stewart v.: Ramsay, 242 U. S. 128; Person v. Grier, 66 N. Y. 124,. 23 Am. Kep. 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 eompulsorily 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 arid 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 thei summons. Dwelle v. AP len, 193. Fed. 546. The Appellate Division -of the New York court 7(e!(i: ; subsequently to the contrary. Dwelle V. Allen,! 151 App. Div. (N. y;): 717. :■ liParkei' ,v. Hotehkiss, 1 Wall. Jr. 269; Juneau Bank v. MoSpedan, 5 Biss. 64; Matthews, iv. Tufts, 87 N. Y. 568; Brooks v. Farwellj 2 McCrary, 220 ; s. c, 4 Fed. 167 ; Bridges v. Sheldon, 7 Fed. 17; Mat- thews v. Puffer, 10 Fed. 606; Lamed \'. Griffin, 12 Fed. 590; Read v. Neff, 207 Fed. 890; Stewart v. Ramsay, ^42 II. S. 128;. Smith v. -Govern- 968 SUBPOENAS TO ANSWER [§167 sel ^2 a trial is or other proceedings,^* civil or criminal,^^ includ- ing the argument df a demurrer,^* or attendance before a cor- oner 's jury,^''' or a referee in bankruptcy ^* or to have his deposition taken ^^ or to attend the hearing of a motion ; ^^ is, while there,' exempt from the service of process eimdo, morando, et redeundo.^^ The officer of a corporation which is a party is entitled to the same privileges as if he were a party himself.^* Service upon a foreign corporation by delivering the process to its secretary while attending court as a witness in the corporation's litigation is invalid.^' A similar exemption would probably be applied to any person while temporarily within the district in the discharge of a public duty.** The privilege of a ment of Canal Zone, 249 Fed. 273 ; Diaihond v. Earle (Mass.), May, 1914, 105 N. B. 363. A service of process, made upon a party attend- ing specially 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 N. Y. 568. ■ 13 Bead v. Neff, 217 Fed. 890; contra, Kobbins v. Lincoln, 27 Fed. 342; Coleman v. Tim, 18 W. N. C. Pa. 240; Greenleaf v. Bank, 133 N. C. 292, 49 S. B. 638, 63 L.E.A. 499, 98 Am. St. Eep. 709; Nelson v. McNulty (Minn.), January, 1917, 160 N. B. 795; Kutner v. Hodnett, 59 Misc. (N. y.) 21, per Hendriek, J.; Paul V. Stuckey (Ark.), 189 S. W. 676, L.E.A. 1917 B. 888. See Hoffman v. Bay Circuit Court, 113 Mich. 109, 71 N. W. 480, 38 L.B.A. 663, 67 Am. St. Eep. 458. 14 XJ. S. V. Bridgman, 8 Am. Law Eecord. 541; Newton v. Askew, 6 Hare, 319; Matthews v. Tufts, 87 N. Y. 568; Parker v. Marco, 136 N. Y. 585, 20 L.E.A. 45, 32 Am. St. Eep. 770; Stratton v. Hughes, 211 Fed. 557 (hearing upon an ap- plication to revoke a license). But see Jaster v. Currie, 198 TJ. S. 144, 49 L. ed. 988. 16 TT. S. V. Bridgman, 8 Am. L. Bee. 541. But see Jenkins v. Smith, 57 How. Pr. (N. Y.) 171. 16 Kims V. Lant, 68 Fed. 436. ITFeister v. Hulick, 228 Fed. 821; Morrow v. TJ. H. Dudley & Co., 144 Fed. 441; Peet v. Fowler, 170 Fed. 618; U. S. v. Zavelo, 177 Fed. 536. It Be Smith Const. Co., 224 Fed. 228; Powell v. Pangborn, 161 App. Div.. (N. Y.) 453. 19 Central Ey. Signal Co. v. Jack- son, 238 Fed. 625. 20 Smith V. Government of Canal Zone, C. C. A,, 249 Fed. 273. 21 Stewart v. Eamsay, 242 XT. S. 128; Biamond v. Earle (Mass.), May, 1914, 105 N. B. 363. 22 Am. Woodenware Co. v. Stein, 63 Fed. 676; Powell v. Pangborn, 161 App. Div. (N. Y.) 453. 28 American Woodenware Co. v. Stem, 63 Fed. 676. 24 Lyell V. Goodwin, 4 McLean, 29; Nichols v. Horton, 14 Fed. 327; 4 McCrary, 560. But see Fitzhugh V. Eeid, 252 Fed. 234. § 167] EXEMPTIONS FROM SERVICE 969 witness does not exempt him from liability to service in a suit arising out of his acts upon that same visit to the jurisdiction.*" Nor where the witness remains within the jurisdiction more time than is reasonably necessary for his attendance upon the case.*® A Federal court will not punish as a contempt the arrest of, or service of process by a State court upon, a foreign witness in attendance before it ; *'' though it might perhaps upon habeas corpus discharge the witness from such arrest,*' 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.*^ A party to a suit in a Circuit Court of the United States was granted a protective writ to prevent, during his at- tendance upon the trial, his arrest as a lunatic under a previous order of a court of the State, when subsequently thereto his san- ity had been adjudicated by a court of another State, where he then lived.80 , If a person be fraudulently enticed within the district and then served with process by those who thus induced hiin to come, the service may be set aside.'^ In one case, where a man was induced by a forged telegram to enter the jurisdiction of 4he court, the party who served him there was held to be pre- sumptively connected with the fraud.'* The service of a notice that a deposition will be taken in another city, when such deposi- tion is subsequently taken in pursuance thereof, cannot, be con- sidered a fraudulent device to entice the party within the jurisdiction.'^ 86 Iron Dyke Copper Min. Co. v. 30 Chanler v. Sherman, C. C. A., Iron Dyke B. Co., 132 Fed. 208. 22 L.E.A.(N.S.) 992, 162 Fed. 19; 26 Fineh v. Gallagher, 25 Abb. N. Fitzgerald & M. C. Co. v. Pitzglf aid, C. (N. Y.) 404; 12 N. T. Supp. 137 V. S. 98, 105, 34 L. ed. 608, 487; Marks v. La Societe, 19 N. T. 611. Supp. 470; "Woodruff v. Austin, 37 SlBlandin v. Ostrander, C. C. A., N. Y. Supp. 22. But see Pope v. 239 Fed. 700; Union Sugar Refinery Negus, 3 N. Y. Supp. 796. v. Mathiesson, 2 Cliff. 304; Steiger in Ex parte Sehulenburg, 25 Fed. v. Boon, 4 Fed. 17; Blair v. Turtle, 211. 5 Fed. 394; s. C, 23 Alb. L. J. 435; SSEx parte Hurst, 1 Wash. C. C. Baker v. Wales, 15 Abb. Pr. N. S. 1866. See Ex parte Sehulenburg, (N. Y.) 331. 25 Fed. 211, 212. SZSteiger v. Bonn, 4 Fed. 17. 29 Bridges v. Sheldon, 7 Fed. 17, S3 Jaster v. Cui-rie, 198 'U. S, 144, 42; Ex parte Sehulenburg, 25 Fed. 49 L. ed. 988, 211, 212. 970 SUBPOENAS TO ANSWER [§ 167a It has 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.34 -I-. The privilege must be elaiSaSied promptly, or otherwise will be waived.'* It was waived by; a delay of nearly four months and a half, during which plaintiff had entered judgment by de- fault;'* but a delay of three i weeks was held not to -operate as a waiver.*' i . A voluntary appearance waives the objecti^Jn ; '* but, it has baen held, that the objection; may i be raised by a plea, in abate- ment;'® even when united- with; a defense upon the iherits.*" It has been held: that the execution of a ;baiL,bond is not a waiver.*^ , , A judgment is not void «o. that it can be attacked collaterally, where process was served upon a party while attending a tria!.*^ § 167a. Return and proof of service of process. If the mar- shal or his deputy make the service, his ' unvferified returii is sufficient.^ This may be contradicted,^ although there is a rem- MHoIyoke & S. H. F. I. Go; v. Ambden, 21 L.B.A. 319,. 55 ; Fedi 593. I M Matthews v. Puffer, 10 Fed. 606, 20 Blatchf. 233; Watson Town Njfct. Bffiik V. Messenger, 66 Pa. trcr." Ot. 609. 36Sebring v. Streyker, 10 Misc. (N. Y.) 289, .30 N. Y. Supp. 1053. 37 Morrow v. TI. H, Dudley &. Co., 144 Fed. Ul. 88 Anonymous, 9 N. J. L. J. 166. But see Lamed v. Griffin, 12 Fed. .590; Stewart v. Howard, 15 Bar- bour (N. Y.) 26; infra,: § 170. 89 Lamed v. Griffin, 12 Fed. 590. 40Larned v. Griffin, 12 Fed. '590; Christian v. Williams, 35 Mo. App. 297; O'Loughlin y-. Bird, 128 Mass. 600. 41 Lamed v. Griffin, 12 Fed. 590; Washburn v. Phelps^ 24 Vt. 506; U. 8. V. Edme, 9. S. & E. (Ps.) 147. « Jaeter v. Currie, 198 TJ. S. 144, 49 L. ed. 988; Walker v. Collins, 59 ■Fed. 70. A number of authorities are coUeeted in an article by Mr. . Alexapd,er H. Bobbins, 65 Cent. L. J. 105. §l67a. 1 Von Boy v. Blaekman, ; S Woods, '98, 101; Phoenix Ins. Co. V. Wulf, 1 Fed. 775; Equity Eule 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. McClaskey v. Barr, ,45 Fed. 151. . 2 Mechanical Appliance Co. v. Castleman, 215 U. S. 437, 54 L. ed. 272; Peper Automobile Go. v. Am. Motor Oar Sales Co., See McClas- key 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. Blaekman, 3 Woods, 98, 100; Joseph v. New Al- bany S. F. & B. M. Co., 53 Fed. 180 ; U. S. Bank v; City of Kendall, 179 Fed. 914; TJ. S. v. McHie, 194 Fed. 894. §. 167a] RETURN AND PKOOP OP SERVICE 971 edy by an action against the officer for, a false return.' The marshal's. return, that the corporation served was transacting business within the district, can' , be contradicted;* so can be his return, tha^ti the person oniwbora the service was made was authorized to represent the : dsfendant for , that purpose,' the r^tiirn is not; conclusive as, against strangers to the writ.® It, is insufficient in the case of service lupon a corporation, unless it shows that the. defendant was , transacting business within the district, or that appears elsewhere in the record.' The. return should, ^how that thepjcrson served was an agent or officer of the defehdant-wMch was .transacting business within; the district,' and also it has i been held the , requirements of the State statutes regulating the subject.' When.it states that the person served was the agent of the defendant, it, will be presumed that he represented the company within,, the; State: " but a return of service upon a general agent,^* or superintendent ^' was held. tO: be insufficient. The return, should: state where .the service was made, if the defendant reside without ithe.. district,^' and iprobablj' in any 3 Von Hoy v. BJaekman, 3 Wqoqp, , ,a .tifue .Copy on the inainaging agent 98, 100. . . of a foreign co,rppration found in 4 Peper Automobile Co. v. Am. the county, that he was the only Motor Car Sales' Co., 1^0 l*''ed. 24'S. ' agent of the corporation therein. See St. Glair v. Coxj 106 U.' 8. 350; that it was a non-resident, and that 359, 27 L. ed. 222j 226, infra, § 164. . none of its principal ofifieers resided 6 Higham y. Ifl^a State Travelers.' ,in ,the State, and, that all of its ofE- Ass 'n, 183 Fed. 845. cers, except, its . managing agent, fe TJi S. V. McHie, 194 Fed. 894. were absent from the State, was 7,Barle v. Chesapeake & O. By. held to be prima fame evidence of Co., 127 Fed. 235; Jackson v. Pel. legall service. .Ch,inn v., Foster^Mil- E. A. Co., 131 Fed. .134; Green v. burii Cp,, 195. Fed, 158. Chicago, B. & Q. Ey. Co., .147 Fed. U Swarts v. Christie Grain & 767; Allen v. Yellowstone. Par)?, Stock Gp^, 166 Fed. 338. , - , -,, Transp. Co., 154 Fed. 504. „ iSBoulthbee v. International Pa- 8 St. Clair V, Cox, 106 XT. S. 350, per Co., C. C, A., First Circuit No. 359 27 L. ed. 222, 226; Swaxts v. 1168. As to agency when two com- Christie Grain & Stock Co., 166 E^jJ. panics have the, same name, see Dar- 338. row v. Postal, Telegraph- Cable Co. 9 Amy V. Watertown, ,130 TJ. S. of N., Y., 229 Fed, 314. 391, 9 Sup. Ct. 530, 32'l. ed. 946. X8 Allen, v. Blunt, 1 Blatehf. 480, lost. Clair v. Cox, 106 tj. S. 350> 487; Thayer v. Wales, 5 Pishor's 359, 27 L. ed. 222, 226. A marshal's Pat. Cas. 448. return, which recited the delivery of 972 SUBPOENAS TO ANSWER [§ 167a event. If another than' the marshal or his deputy serve the subpoena, proof must be made by the affidavit of the process- server, i* Where there had been personal service upon the' de- fendant by a special deputy the 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 proceeding.^* When the return shows that the service was insufficient, a motion may be made to set the service aside.^* The marshal's return is capable of subsequent amendment.^' It has been held that the return to a State court by a sheriff cannot be amended after a removal.^* It may be subsequently supplemented by an affidavit.^* The removal of the suit from a State to a Federal court does not prevent a motion to set aside the service.*" The. return of the sheriff or marshal is not conclusive and may be contradictive by the production of statements in the plaintiff's pleading*^ by affidavits ^^ or otherwise. The question of jurisdiction is for the ultimate determination of the Federal court.** A return that a foreign corporation was found within the State, may be contradicted.** There is ho presuinption in support of the validity of the siervice, aside from the facts therein set forth.** In a suit for an infringement of a patent where, the defendant is a non-resident, an allegation that "defendants are now doing business at a designated place within the district," is not a sufficient allegation that they have "a regular and established place of business."*® A statement that service bas been made 14 Equity Rule 15. SKBoultbee v. International Pa- 16 Hill V. Gordon, 45 Fed. 276. per Co., C. C. A., 229 Fed. 951. 16 Scott V. Stockholders' Oil Co., 23 (Jen. Inv. Co. v. Lake Shore & 122 Fed. 835. M. S. By. Co., C. C. A., 250 Fed. 160, 17 Phoenix Ins. Co., v. Wiilf, 1 165; Mechanical Appliance Co. v. Fed. 775. ' Castleman, 315 TT. S. 437, 441, 30 iBTallman v. B. & O. E. Co., 45 Sup. Ct. 125, 54 L. ed. 272. Fed. 156. 24Peper Automobile Co. v. Am. 19 Fountain v. Detroit M. & F. S. Motor Car Sales Co., 180 Fed. 245. L. L. By. Co., 210 Fed. 982. 26 Scheurle v. One Piece Bifocal 20Goldey v. Morningside News, Lens Co., 241 Fed. 270; Boultbee v. 156 TJ. S. 518, 39 L. ed. 517, sicpra, International Paper Co., C. C. A., §163. 229 Fed. 951. 21 U. S. V. Southern Bridging' Co., 26 Scheurle v. "One Piece Bifocal 251 Fed. 400. Lens Co;, 241 Fed. 270. § 167b] OBJECTIONS TO SERVICK 973 upon the defendant's agent does not authorize the presumption that such agent had the right to receive service of process.*'' Upon a motion to vacate an order for substituted service or by publication, the insufficiency of the bill is immaterial when the subject-matter is within the statute.** It has been held: that the order for service by publication may be set aside as to part of the biU and left in force as to the remainder.*® §167b. Objections to the service of process. A motion to set aside the service,^ or a motion to quash the return,* accom- panied by a special appearance for that purpose,' is the proper method of testing the sufBciency of the service; unless the de- fendant prefers to disregard it and subsequently to raise the objection upon an appeal from the decree,* or to resist the execution of the decree as void.^ Neither plea in abatement^ nor demurrer' is necessary. The motion must deiBnitely point out the defects in the service.* It has been said that nothing beyond the scope of the motion will be considered.' It might be held that the motion was addressed to the court's discretion, where the defendant has a remedy by appeal or a writ of error.^' It was held that the denial of a motion made to quash the writ because of improper service in a patent case did not compel the overruling of a plea in abatement on the ground that no act of infringement had been committed within the jurisdic- 87Boultbee v. International Pa- S. v. Southern Dredging Co., 257 per Co., C. C. A., 229 Fed. 951. Fed. 400. 28 Canton Eoll & Machine Co. v. i Infra, §§169, 170. EoUing MiU Co., 155 Fed. 321; Gage 4 0'Hara v. McConnell, 93 U. S. V. Riverside Trust Co., 156 Fed. 150, 23 L. ed. 840; Butterworth v. 1002. Hill, 114 U. S. 128, 29 L. ed. 119 ; 29 Evans y. Charles Scribner's Herbert v. Bicknell, 233 TJ. S. 70. Sons, 48 Fed. 303. 5 Meyer v. Kuhn, C. C. A., 65 Fed. §I67b. 1 Mason v. N. T. Steam 705. Power Co., 87 Fed. 241; Bourke v. 6U. S. v. Southern Dredging Co., Amison, 32 Fed. 710; Peper Auto- 257 Fed. 400. mobile Co. v. Am. Motor Car Sales TMeisukas v. Greenough Red Ash Co., 180 Fed. 245. Coal Co., 244 V. S. 54. 2 Am. Cereal Co. v. Eli P. C. Co., 8 Bankers Surety Co. v. Town of 70 Fed. 276; Peper Automobile Co. Holly, C. C. A., 219 Fed. 96. V. Am. Motor Car Sales Co., 180 9 Ibid. Fed. 245; Higham v. Iowa State 10 Herbert v. Bicknell, 233 IT. S. Travelers' Ass'n, 183 Fed. 845; IT. 70. 974 SUBPOENAS TO ANSWER [§ 167 L- tion.^1 A subpoena will; oot tie 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. ^^ Before the Equity Rules of 1912,, it was held that the objection could not be. joined with an answer to the merits.^^ A plea in eibatement, which denied that the person served "is ' '• an agent , pr ofBeer , of ..the corporation, was held to be insufSciqnt,; since it did not negative the fact that he was such an agent on the datg of service.^* Under the former practice, it was held that a plea to the jurisdiction 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.^* , It has been held that upon a motion to set aside service upon a f preign 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.^® A motion to set aside the service, made six w6eks after the service, was held not to be barred by laches. i'' WJiere suph 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, ^^ although after a removal the motion may be made for the first time in the Federal Court.^' It has been said that whether a foreign corporation is conducting business within the State and is liable to service therein, is primarily a question of faet.*" Letterheads of defendant which describe a person as one of its offitiers are presumptive evidence of his 11 United Autographic Register eago Wood Finishing Co., 180 Fed. Co. V. Egry Eegister Co., 219 Fed. 77,0, 637. 16 Wall V. Chesapeake & O. By. 12 Mason v. N. Y. Steam Power Co., C. C. A., 95 Fed. 398, Ward, Co., 87 Fed. 241. J., dissenting. ISPeper Automobile Co. v. Am. 17 Phelps v. Connecticut Co., 188 Motor Car Sales Co., 180; Fed, 245. Fed. 765. See Chadeloid Chemical Co. v. Chi- 18 Hoyt v. Ogden Portland Cement cago Wfiod Finishing Co., 180 ,Fed. Co., 185 Fed. 889. 770. ISGoldey v. Morning News, 156 14 Scott V. Stockholders' Oil Co., U. S. 518. 129 Fed. 615. 20 See Peper v. Am. Motor Car 15 Chadeloid Chemical Co. v. Chi- Sales Co., 233 Fed. 245. § 167b] OBJECTIONS TO SERVICE 975 official capacity.''^ TMs question may be referred to a master.^^ 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 authorized representative.*' Where upon a motion to quash service of process it appeared that the foreign corporation transacted business within the State; the court on setting aside the service authorized ■ the issue of process to be served upon the proper agent.^* In one case such a motion was granted without preju- dice 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.*^ , i 81 Kirby v. liauismann-Capen Coi, 84 Knapp v. Bulloeb Tractor Co., g21 Fed. 267., .242 Fed. 543, 553. 88 Ryaji V. Ohmer, 233 Fed. 165. 86 Jaekson v. Hooper, 171 Fed. 83Peper Automobile Co. v. Am. 597,598. Motor Car Sales Co., 180 Fed. 245.' CHAPTER VII. APPEARANCE. § 168. Definition of an appearance. An appearance is the process by which a defendant submits himself to the jurisdiction 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, an omission, or an irregularity in the service of the subpcena upon him, or perhaps for some other jurisdictional defect.^ An appearance gratis is an appearance by a defendant who has not been served with process.^ Upon the former practice, a formal appearance was required.* The Equity Eules 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.^ A defendant may appear in person ^ or by his attorney. It is presumed that an attorney has authority from the party for whom he appears.' It has been held to be too late for the § 168. 1 National F. Co. v. Mo- J Cooper v. Jewett, C. C. A., 233 line Malleable I. Works, 18 Fed. Fed. 618. The president of a corpo- 863; Elliott v. Lawhead, 43 Ohio ration who under its by-laws is its St. 171 ; Dorr v. Gibboney, 3 Hughes, general executive official has power 382; IT. S. v. Am. B. T. Co., 29 Fed. to emij[oy counsel to defend an ae- 17. tion against it although he is not ZDaniell's Ch. Pr. (2d Am. ed.) directed by the directors to employ 590-595. counsel or appear, unless he is for- 3 Eq. Eule 17 of 1841. bidden by them to do so. Blue §169. IDaniell's Ch. Pr. (2d Goose Min. Co. v. Northern Light Aril, ed.) 590, 591. Mining Co., C. C. A., 245 Fed. 727. ZTJ. S. R. S. §747. 976 §169] WHAT CONSTITUTES APPEARANCE 977 defendant after joining issue to question the authority of plain.- tiflf's attorney to appear.* No attorney-at-law can appear in a court of the United States/ unless authorized by a power of attorney, if he is not a member of the bar of such court.*' The rules as to admission to the bar of the District and Circuit courts vary with the different courts. It is the usual practice to recog- nize in each District and Circuit Court of Appeals 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.^ The Circuit Courts of the United States for the Southern District of New York ' and the district of New 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 other than a special appearance and a motion or plea founded thereupon, is equivalent to a general appearance and a submission of the defendant's person to the jurisdiction of the court.® Such is a motion to dismiss the case upon the merits although coupled^ with a special appearance and an application for a dismissal for defective service or lack of residence within the district.*** Such a motion when oral and not in writing 4 BouUler v. A. & B. Schuster Co., 212 Fed. 348. B Ex parte N. K. Fairbank Co., 194 Fed. 978; Matter of Joseph "Wood, S. D. N. T., explained infra, sections on "Haieas Corpus." It has been hMd that the court may admit an attorney to practice nunc pro time so as to validate a writ in the Federal court which he had pre- viously obtained. Jewett v. Gar- rett, 47 Fed. 625. 6 See Goodyear D. V. Co. v. Os- good, 13 Off. Gaz. 325. 7 See Matter of Joseph Wood in- fra, §§ 466, 467. 8 Eouiller v. A. & B. Schuster Co., 212 Fed. 348. 9 New Jersey v. New York, 6 Pet. 323; "Van Antwerp v. Hulburt, 7 Blatchf. 426, 440; Livingston t. Gibbons, 4 J. Ch. (N. T.), 94; Fed. Prac. Vol. 1—62 Bladkbu'rn v. Sehna, M. & M. R. Co., 2 Flippin, 525; Fitzgerald' & M. Const. Co. V. Fitzgerald, 137 TJ. 8. 98, 34 L. ed. 608; m/rti, §170. 10 Thames & Mersey Ins. Co. v. TJ. S., 237 TJ. S. 19; Marian Coal Co. V. Peale, C. C. A., 204 Fed. 161; Adler Goldman Commission Co. v. "Williams, 211 Fed. 530; Lively v. Picton, 218 Fed. 401; "Western Union Tel. Co. v. Louisville & Nv S. Co., 229 Fed. 234; Lehigh Valley Coal Co. v. "Washko, C. C. A., 2nd Ct., 231 Fed. 42; Everett By. Light & Power Co. v. TJ. S., 236 Fed. 806; M'Lean Lumber CO. v. TT. S., 237 Fed. 460; Moore Filter Co. v. Taugher, C. C. A., 239 Fed. 105; Morris Land & Cattle Co. v. Kil- patrick, C. C. A., 256 Fed. 788. But see Ex parte Indiana Transp. Co., 244 TJ. S. 436. 97« APPEABANCE 169 constitutes a general appearance.^^ So is an answer to the mferits, although accompanied by a special appearance, ''^ at least when the answer- does not formally object to the jurisdiction.^^ So it has been held are : a special appearance accompanied by a motion to set aside an order reviving a judgment upon the ground of an irregularity in the proceedings ; ^* obtaining a stay, of proceedings pending a motion to vacate a judgment.^® A motion to make the complaint more definite and certain.^* A petition of intervention, even where the petitioner disclaims any intention td be made a party.^'' Opposition to a motion for a preliminary injunction. ^^ Opposition on the merits to a motion to punish for contempt;^* The filing of a pleading before the court has passed upon this question of ijurisdiction,^" even when filed pending the decision of amotion to set aside the Service of process,*! at least when such pleading does not specifically take that objection,** and a- motion to set aside the service because of want of jurisdiction ' over both the person and the subject- matter.*' ! ■ H Everett By. Light & Power Co. V. U. p., 236 :^ed; 806;;Budns v. Consolidation Coal Co., 251 Fed. 673. IS Caskey v. Chenoweth, 0. C. A., 62 Fedi .712. -See Texas & Pac. By. Co. V. Saunders, 151 U. 8. 105, 38 L. ed. 90; Hankinson ;v. Page, 31 Fed. ,184. ■ See Morris Land & Cat- tle Co. V. Kilpatrick, C. C; A., 25,6 Fed. 788. , 13 Wood V. Wilbert, 226 V. S. 384, 57 L. ed. — . 14 Crawford v.; Foster, 84 Fed. 939. I , , : 18 Crane, v., Penny, 2 Fed. 187. 18 Oas? v. Mountain Timber Co^ 210 Fecl.i 565 ; Commonwealth Cotton Oil Co. V. Hudson (Oklahoma, 1916), i55 Pae, 577. Contra, Valentine v. Myers, 36 Hun (N. Y), 201. Co- lumbia Law Eeview, June 1916. 1'? Bowdoin College v., Merritt, 59 Fed. 8; Jack v. D. M. & Ft; D. B. Goi, 49 Iowa, 627; Frank v. Wed- derin,' C. C. A., 68 Fed. 818. 18 Twin Lakes Land : h Water Co. jV.Pohner, C. C> A.y'242 Fed. 399; Great Lakes & St. Lawrence Transp. Co. V. Scranton, C.C, A-,: 239 Fed. 603. 19 Bradstreet Co. v. Bradstreet 's Collection Bureau, C. G. A., 249 Fed. 958. 20 Texas & Pae. By. Co. y. COx, 145 U. sl 593, 36 L. ,ed„829. 21 Barnes v. W. U. Tel. Co., 120 Fed. 550 ; Perkins v. Hayward, 132 Ind. 95, 31 N. E. 670; C/. Wetzel & T. Jij. Co. V. Tennis Bros. Co., C. C. A., 145 Fed. 458i But see Wheeler, V. Wilkins, 19 Mieh. 78. 22 See Eq. Eule 79; Wood i v. Wil- bert, 226 jr. S. 384, 57 L. ed. — . As to moving to set: aside an order appointing, a receiverj see Lively v. Pieton, 218 Fed. 401. 88 Mahr v. Union Pae. E. Co., 140 Fed. 921. S 169] WHAT CiONSTITUTES APPEARANCE 979 Where thei defendant, appearing specially for that purpose, moved to quash a return pf- service. of a summons and. prayed- judgment .whether it shouM be compelled to plead on the ground that it was a non-resident corporation^ it was held that the ap- pearance was not thereby made general.*^ It was so held: of a motion to quash service upon a party^ in anotheri district on the ground that "it appears from the face of the bill of compla;int that the relief; sought is of such nature that he cannot lawfully be called upon to defend^against the same in this district; " *' Of a motion to set aside service upon the ground that the court was without jurisdiction, of the subject-matter of the suit.** Of an ap- plication for leave to take a deposition in support of a motion to set aside the service of process.*'' Of an application to vacate an attachment** even when made on the ground that the papers did not state a cause of action.** Of a motion to vacate an order directing the payment of money.*" Of a prayer for costs upon the motion to set aside the service.*^ Of an aflfidavit con- taining an argument upon the merits submitted on behalf of an- other person who had appeared.** It seems that there is no general appearance or waiver by ihe defendant's obtaining an order extending his time to pilead to 24 N. E. Fairbanks &. Co. v. Cm-. 25 Jones v. ©ould, C. G. A., 149 cinnalii, N. O. & T. P. Ey. Co., G, Fed. 153. ., G. A., 54 Fed. 420 ; Am. Cereal Co. 86 Smith v. Ooverimient of 'Canal V. Eli PettijohnC.Qa, 70 I^d. 276. Zone, C. C, A., 249 Fed, 273. It is said in the Encyclopedia- .of STGarvey v. Qompania Metalur- Pleading and Practise, axticle II, gica Mexicana, 222 Fed. 732. section 626, that ' ' where a party ap- 28 Davis v. Cteyeland, Giacinnatij pears in court and objects to. the Chicago ,& St^ Itouis By. Co., 217 TJ. jurisdiction of , the court over his S. 157, 54 L. ed. 708. person, he njust state specifically 29 Lowe v. Swinehart Tire & Hub- the grounds of objection; by not so ber Co., 211 Fed. 165; Wood v. stating them his appearance will be Fertick, 17 Misc. (N. Y.), 561. : construed a general one, although SO Chatham & Phenix Nat. Bank he moves to dismiss on that of the City of New York v. Guaran- ground." Citing Bell Bros. v. White ty Trust Company of New York, Lake Lumber Co., 21 Neb. 525; C. C. A., 256 Fed. 90. Aultman v. Steimnan, 8 Neb. 109 Bncklin v. Striokler, 32 Neb. 602 31 Budria v. Consolidation Coal Co., 851 Fed. 673. Layne v. Ohio River E. Co., 35 W. 32 G. & C. Merriam Co. v. SksI- Va. 438. field & OgUvie, 241 XT. S. 22. 980 APPEARANCE [§169 the merits if the court denies his application,** nor by his obtain- ing an adjournment of the motion ** nor by his asking for a stay of protseedings pending such decision.*^ 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.** Even when he joins in the petition for removal with a party properly served.*'' 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.** 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 33 Meisukas v. Greenough Bed Asb Coal Co.; 244 TJ. S. 54, 37 Sup. Ct. 593, 61 L. ed. 987 (Where the ex- tension was granted at the Court's own motion) ; Waters v. Central Trust Co. (2d Ct.), 0. C. A., 126 Ted; 469; Yanuszauekas v. Mallory S. S. Co., C. C. a], 2nd Ct., 232 Fed. 132; Kuzma v. Witherbee Sherman & Co., 232 Fed. 286; Budris v. Con- solidation Coal Co., 251 Fed. 673; Paine Lumber Co. v. Galbraith, 38 App. Div. (N. T.) 68; Bell v. Good, 22 Civ. Proc. Rep. (N. Y.) 356, 46 N. Y. St. Eep. 572; Benedict v. Ar- noux, 38 N. Y. Supp. 882. Contra, Hupf eld V. Automaton Piano Co., 66 Fed. 788; Kneeland v. Austin, 2 Law Bull. (N. Y.) 56; Krause v. Averilly 66 How. Pr. (N. Y.) 97; BriggB V. Strotid, 58 Fed. 717; Mid- land Contracting Co. v, Toledo Foundry & Machine Co., C. C. A., 154 Fed. 797. In Murphy v. Her- ring'Hall-Marvin Safe COi, 184 Fed. 495, 498, where defendants procured the. ! order, ex parte at' cham- bers and did not serve or file it, until long after the removal of the ease, when they procured, a, certified copy of the record. Cf. Liikosewicz V. Phila. & Bead. Coal & Iron Co., 232 Fed. 292 (where defendant also made objection to the merits) ; En- Hght V. Heekseher, C. C. A., 2nd Ct. 240 Fed. 863; (where the extension contained a stipulation that the is- sue should be of a day certain and there was a general appearance.) 84 Meisukas v. Greeilough Bed Ash Coal Co., 244 TJ. S. 54, 37 Sup. Ct. 593, 61 L. ed. 987. (Where plain- tiff asked for the adjournment.) 36 Harasimowicz v. Pennsylvania B. Co., 232 Fed. 295. 36 Goldey v. Morning News, 156 U. S. 518, 39 L. ed. 517; Wabash W. B. Go. V. Brow, 164 U. S. 271, 41 L. ed. 431; National Accident Society v. Spiro, 164 TJ. S. 281, 41 L. ed. 435 ; Cain v. Commercial Pub. Co., 232 TJ. S. 124; Am. Oil & Sup- ply Co. V. Western Gas Const. Co., C. G. A., 239 Fed. 505; Wright v. Ankeny, 217 Fed. 988. 37 Garvey v. Compania' Metalurg- ica Mexicana, 222 Fed. 732, 38 Murphy V. Herring-Hall-Marvin Safe Co., 184 Fed. 495; Hoyt v. Og- den Portland Cement Co. (N. D. Y. Y.), 185 Fed. 889. §169] WHAT CONStaTUtEg APPEARANCE 981 and not general,^' and that a party may file a special appeairaiice with an objection to the jurisdiction over his person joined with other objections, such as a want of equity,*" or want of jurisdic- tion over the subject-matter of the suit,*^ without submitting to the jurisdiction of the court.** The defense by its attorneys at its expense of a suit against another in pursuance of a contract ^ith him is not an appear- ance by a foreign corporation ; nor will it support an application bjr the plaintiff to make it a party.** It has been held: that after the question of jurisdiction has been properly raided, and the court has reserved its decision thereupon, a subsequent defensive proceeding, such as an appeal from an injunction order,** 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,** is no waiver of the objection. ■ A State statute providing that a special appearance for the sole purpose of questioning the jurisdiction is equivalent to a general appearance is constitutional ; *® and has been followed in collateral proceedings, in which a State judgment was offered in evidence,*'' 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.** S9"Wood V. Wilbert, 226 TJ. S. change v; Board of Trade, C. G. A., 384, 386, 57 L. ed. — . 125 Fed. 463. 40 Southern Pacific Co. v. Arling- 46 Tork v. Texas, 137 IT. S. 15, ton Heights Prtiit Co., C. C. A., 191 34 L. ed. 604 (The Texan statute) ; Fed. 101. But see Peale v. Marian Western Life Ind. Co. v. Bupp, 235 Coal Co., 172 Fed. 639. TJ. S. 261 (Kentucky statute) ; 41 Eelley V. T. L. Smith Co., C. Chinn v. Foster-Milbum Co., 195 C. A., 196 Fed. 466. Fed. 158 '(Kentucky statute). 48 Ibid. 47 Southern Pacific Co. V. Den- 43 Nelson v. Husted, 182 Fed. 921. ton, 146 TT. 'S. 202, 36 L. ed. 943; But see Texas & Pac. By. Co. v. Mexican Central Ey. Co. v. Pinck- Saunders, 151 TI. S. 105, 38 t. ed. ney, 149 TJ. S. 194, 37 L. ed. 699; 90; Hankinson v. Paige, 3l' Fed. Galveston H. & S. A. Ey. Co. v. 184; Caskey v. Chenoweth, 62 Fed. Gonzales, 151 TJ. S. 496, 38 L. ed. 712. ' 248; all of which arose under the 44 Bidwell T. Toledo Canal St. Hy. Texan statute. Co., 72 Fed. 10. 48 Western Life Indemnity 'Co." v. 45 Central Grain & Stock Ex- Bupp, 235 TF. S. 261 (Kentucky 9^2 APPEARANCE [§ 170 Rule 22 of the Circuit Court of the Ninth circuit provided that any party appearing specially, shall state in the, paper which he serves and files that the appearapce is special, "and that if the purpose for ^hich such, special appearance is ma,de 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 appear- ance." This has been upheld.** A special appearance, it would seem, is regularly made by special leave of the court obtained by an ex parte motion,^' and it is the safer practice to accompany it with an undertaking by the defendant to abide by the further oi'ders of the court." By styling a paper a special appearance the draftsman does Hot prevent the appearance from becoming general.*^ An appearance gratis Can only be ma,de by a defend- ant named in the introduction or prayer for process in the bill, unless by consent of 'all the parties to the suit.*^ § 170, Effect of an appearance. A general appeararicei waives all objections to the form or manner of service of the subpoena,^ including the objections that the defendant was not found and did not reside within the district * and that neither statute); Cain v. Comniercial Pub. , Cp. ,y. Day, 2 Saw. 468, 473. Sec Co., 232 TJ. S. 124 (Mississippi Anderson v. Watt, 138 XJ. 8. 694, statute) • Louden Maehinerj^ Co. t. 34 L. ed. 1078 ; Beck & Pith Co. v. Am. Mercantile Iron Co., 127 Fed. 'Wae'ker & B. B. & M. Co., C. C. A., 1008, under the Iowa statute. 76 Fed. 10; Roberts v. Brooks, 71 49Mahr v. Union Pac.. Ky. Co., Fed. 914. , , ; 140 Fed. 921. §170. 1 Segee v. Thomas, 3 BO Thayer v^ Waje?, 5 Fisher's Blatehf . 11 ; Goodyear, v. ChafEee, 3 Pat. Cas. 448 ; , Bpmaine v. Union Blatchf . 268 ; Hale v. Continental L. Ins. Co., 28 Fed. 625., .But see Dorr Ins. Co., 12 Fed. 359 ; Provident V. Gibboney, 3 Hughes, 382; Nation- Sav. L. Assur. Soc. v. Ford, 114 U. al F. Co. ,v. Moline M. I. Works, 18 8. 635, 639;, Toledo Rys. & Light Fed. 863 ; York, Comty: Sav. Bank Company v. Hill, 244 U. S. 48; Kor- V. Abbot, 139 Fed. 988. folk Southern By. Co. v. Foreman, SXBomaine v. Union Ins. Co., 28 C. C, A., 244 Fed. .353. In 29 L. Fed. 625. ed. 261, 263 ; Robinson v. Nat. S. 62 Crawford v. Foster, Ci C. A., 84 Co., 12 Fed. 361; s. c, 2P Blatchf. Fed. 939; Caskey v. Chenoweth, C. 513; Moore Fitker Co. v. Taugher, C. 4.., 62 Fed. 712; Chicago Title & C. C. A., 239 Fed. 105. Trust Co. V. Newman, C. C. A., 187 2 Thames & Mersey Ins. Co. v, Fed. 573. United States, 237 U. 8. 19; Texas 68 Attorney-General v. Pearson, 7 & Pac. By. Co. v. Cox, 145 U. 8. Simons, 290, 302; Kentucky 8. Min. 593, 603, 36 L. ed. 829, 832; St. S170] EFFECT OF APPEARANCE 983 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 ; ' that the summons was served in another district ; * that a case pending in a Territorial court was after admission of the Territory as a State improperly transferred to a Federal instead of to a State court ; * and in equity that the plaintiff has an adequate remedy at laAV * unless the latter objection is specifically taken by a eon- current motion or by answer/ although the court may take this objection at any time.* It has been held that a general appear- ance waives the objection that an action by the trustee in bank- ruptcy was not brought in the proper district,* and that a Louis & S. F. Ry. Co. v. McBride, 141 tr. S. 127, 132, 35 L. ed. 659, 661; Sayles v. Norfhwestern Ins. Co., 2 Cart. 212; Shields v. Thomas, 18 How. 253, 259, 15 L. ed. 368, 370; Toland y. Sprague, 12 Pet, 300, 331, 9 L.,ed. 1093^ 1105; Prov- ident Sav. L. Assur. Soc. v. Ford, 114 TJ. S. 635, 639, 29 Li ed. 261, 263; Central Tr. Co. v. McGeOrge, 151 V. S. 129, 38 L. ed. 98; Int. Constr. & I. Co. v. Gibney, 160 U. S. 217, 40 L. ed. 401 ; Texas & Pac. By. Co. V. Saunders, 151 XJl S. 105, 38 L. . ed. 90 ; Lowry v. Tile M. & G. Ass'n, 98 Fed. 817; Fosha v. W. U. Tel. Co., 114 Fed. 701 ; A. L. Wolff & Co. V. Clioetaw, O. & G. R. Co., 133 Fed. 601; Mahr v. Union Pae. R. Co., 140 Fed. 921. Cf. Mearican Central Ry. Go. v. Rob- inson, C. C. A;, 128 Fed. 1020. Bud- ris V. Consolidation Coal Co., 251 Fed. 673 ; General Inv. Co. v. Lake Shore & M. S. By. Co., C. C. A., 250 Fed. 160; Blue Goose Min. Go. t. Northern Light Min. Co., C. C. A., 245 Fed. 727. The above statement in the text was quoted with approval in McKane v. Burke, 132 Fed. 688. But see Noyes v. Canada, 30 Fed. 665; Reinstadler v. Beeves, 33 Fed. 308. It has been said that consent of the parties does not waive the objection that the non-resident, de- fendant to a suit for infringement of a patent has no regular and es tablished place of business within the district. U. S. Envelope Co. v. Franco Paper Co., 229 Fed. 576, 579. S Matter of Moore, 209 IT. S. 490, 52 L. ed. 904; Western L. & Sav. Go. V. Butte & B. Consol. Min. Co., 210 U. S. 368, 52 L. ed. 1101;- Horn >. Pere Marquette B. Co., 151 Fed. 626 ; , Midland Contracting Co. v. Toledo Foundry & Machine Co., C. C. A., 154 Fed. 797; IT. S. Gypsum Co. V. Sliwienska, C- C. A., 183 Fed. 688; Title Guaranty & Surety Co. V. v. 8., C. C. A., 187 Fed. 98. See Southern Pac. Co. v. Denton, 146 TJ. S. 205, 36 L. ed. 945; supra, §62a. 4 See Budris v. Consolidation Coal Co., 251 Fed. 673. 5 Arizona & New Mesdeo By. Co. V. Clark, 235 U. S. 669. 6 Corbaa v. ConkUn, C. C. A., 208 Fed. 231. 7 Heynes v. Dumont. 1»0 U. S. 354, 32 L. ed. 1005; infra, S 376. 8 Lewis V. Bocks, 23 WaU. 466, 23 L. ed. 70; infra, §376. SMcEldowney v. Card, 193 Fed. 475. 984 APPEARANCE [§ 170 general appearance by a foreign receiver waives any question of the jurisdiction of the court to adjudicate concerning the internal aifairs of a foreign corporation.^" "Ordinarily jurisdiction over a person is based on the power of the sovereign asserting it to seize that person and imprison him to await the sovereign's pleasure. But when that power exists and is asserted by service i at the beginning of a cause, or if the party submits to the jurisdiction in whatever form may be required, we dispense with the necessity' of maintaining the physical power and attribute the same force to the judgment or 'decree whether t the party remain within the jurisdiction or not. This is one of the decencies of civilization that no one would dispute. " ^' Where the want of a residence essential to the jurisdiction appears upon the face of the plaintiff's pleading, the objection may be raised by a motion to dismiss. ^^ It is not waived by answer after a motion upon this ground has been overruled,^' provided that the answer specifically reserves the objection.^* Where the complaint misstates the residence, the ^objection may be raised by answer.^* If the misstatement : of , residence is subsequently discovered before or at the trial defendant's remedy is a motioii f6r leave to withdraw his general appearance and answer and to plead specially to the jurisdiction.^^ Should the plea to,the,jurisdic;tion be overruled or successfully traversed in the Second Circuit leave to answer upon the merits may then be given.^'' It 'has been held : That if a party joins with a special appearance and motioii to set aside service of process a motion to dismiss the suit on another ground, he thereby waives his 10 Chicago Title' & Trust Co. v. Foreman, C. C. A., 244 Fed. 353; Newman, C. C. A., 187 Fed. 573. Chicago, K. I. & P. By. Co., v. Jaber, 11 Michigan Trust Co; v. Ferry, 85 Ark. 232,. 107 S. "W. 1170. 228 TJ. S. 346, 353, per Holmes, J. 16 Leonard v. Merchants' Coal 12 Southern Pae.' Co. v. Denton, Co.; C. C. A., 162 Fed. 885. 146 U. S. 202j' 36 L. ed. 943; Tice 16 Lehigh Valley Coal Co. v. Yen- T. Hurley, 145 Fed. 391. But see savage, C. C. A., 218 Fed. 547. Cer- contra, Ches. & O. Coal Agency Co. tiorari denied, 235 U. S. 705. Le- V. Fire Creek 0. & C. Co., 119 Fed. high Valley Goal Co. v. "Washko, C. 942. C. A., 231 Fed. 42. See supra, % 62a. "Leonard v. Merchants ''CoalCo., ^ iVKevor v. Phila. & R. E. E. Co., C. C. A., 162. Fed. 885; Blandin v. ' C. C. A., 260 Fed. 534. ' Certiorari Ostrander, C; C. A., 239 Fed. yoO. denied, 250 Tj; S. 665, 40 Sup. Ct. 14 Norfolk Southern E. Co. v. 13, 63 L. ed. 1197. §170] EFFECT^ OF APPEARANCE 985 objection to the irregularity of service, and his proceeding is equivalent to a general appearance.^* After a special appear- ance for the purpose of objecting to the jurisdiction has been madcj 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.^® A general appearance does not waive an objection to the- juris- diction of the court upon the ground of a lack of the requisite difference of citizenship; ^^ nor admit the validity of a writ of foreign attachment previously issued,*^ 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,*^ It is' not, a waiver of the right of removal.** The court has power to allow a general appearance to;b.e changed by amendment to a special appearance,** or to be with- drawn.** This has been permitted when the original complaint has misstated the plaintiff's residence and that subsequently appears to be such as to defeat the jurisdiction ; ** and where a general appearance was made, after the service of a summons, 18 Fitzgerald & M. C. Co. v. Fitz- maine y. Union Ins. Co., 28 Fed. gerald, 137 TJ. S. 98, 34 L. ed. 608; 625. Jones V. Andrews, 10 Wall. 327, 19 81 Saekett v. Rumbaugh, 45 Fed. L. ed. 935; St. Louis & S. F. By. 23; XT. S. Envelope Co. v. Franco Co. V. McBride, 141 U. S. 127, 132, :Paper Co., 229 Fed. 576. 35 L. ed. 659, 661; Edgell v. Felder, 22 Western Wheeled Scraper Co. v. C. C. A., 84 Fed. 69. But see TI. S. Gahagan, 152 Fed. 648. See To- V. Am. Bell Tel. Co., 29 Fed. 17; ledo Railways & Light Co. v. Hill, McGillin v. Claflin, 52 Fed. 657. 244 XT. S. 48. B«t see Kelley v. T. L. Smith Co., 23 Judson v. Knights of the Mac- C. C. A., 196 Fed. 466; see §169, cabees of the World, 220 Fed. 1004. supra. 24 XT. S. v. Yates, 6 How. 605, 12 19 Harkness v. Hyde, 98 XT. S. 476, L. ed. 575; Hohorst v. Hamburg Am. 25 L. ed. 237, Mexican C. Ry. Co. P. Co., 38 Fed. 273. V. Pinokney, 149 XJ. S. 194, 37 L. 28 Rhode Island v. Massachusetts, ed. 699. See § 169, supra. 13 Pet. 23, 10 L. ed. 41; First Nat. 20 Mansfield, C. & L. M. Ry. Co. Bank v. Cunningham, 48 Fed. 510; V. Swan, 111 XJ. S. 379; Martin v. Chicago Title & Trust Co. v. New- Baltimore & O. Ry. Co., 151 XJ. S. man, C. C. A., 187 Fed. 573, 577. 673, 689, 14 Sup. Ct. 533, 38 L. ed. 26 Hagstoz v. Mutual Life Ins. Co. 311; Chicago, B. & O. By. Co. v. of New Tork, 179 Fed. 569. See Willard, 220 XJ. S. 413, 420, 421, Leonard v. Merchants' Coal Co., C. 31 Sup. Ct. 460, 55 L. ed. 521; Ro- C. A., 162 Fed. 885. 986 APPEARANCE [§170 but before a pleading was filed or served, and the defendant did not then know that the sole ground of jurisdiction was a di- versity of citizenship ; *' but not ordinarily where, before ap- pearing, a defendant had notice 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.** Permission to with- draw a general appearance, if conditioned that it is grantied without prejudice to the plaiiatiff, 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.*' Otherwise it does.'" 27 Crown Cotton Mills v. Turner 29 Graham v. Spencer, 14 Fed. 603. (S. D. N. Y.), 82 Fed. 337. 30 Graham v. Spencer, 14 Fed. 28 Lamborn v. liouisiana Sugar 603, 607 ; First Nat. Bank of Den- Co., Mack, J., N. Y. L. J., Dee. 2, ver v. Cunningham, 48 Fed. 510, 517. 1912. ' CHAPTER VIII. TAKING BILLS PRO CONPESSO. § 171, When a bill may be taken pro confesso. "It ^hall be the duty 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 neimed 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," * § 171. 1 Eq. 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 action; 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 ease as established by an ex parte examination. Keller Proced. Bora. § 69. The original Chancery prac- tice was in accordance with the later Boman law. Hawkins v. Crook, 2 Peere Williams, 556. But at least as early as the Seventeenth Century, bills were taken pro confesso for contumacy. Ibid. This, however, was not done until after an attach- ment to compel an answer, an at- tadiment with proclamations, a com mission of rebellion, and sequestra- tion. Forum Bomanum, 36 ; Boudi- riot V. Symmes, Wallace, C. C. 139, Fed. Cas. No. 1,695. In Thomson V. Worcester, 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, Wal- lace, C. C. 139, Fed. Cas. No. 1,695. A decree taking a bill in equity pro confesso presents striking analogies to a judgment by ntJ cKcit, and to judgment for plaintiff on demurrer to the defendant's plea. ' Davis v. Davis, 2 Atk. 21; Hawkins v. Crook, 2 Peere Williams, 556, quoted in 2 Eq. Cas. Ab. R., 179. Eq. Eule 12 of 1842 providied: "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 987 988 TAKING BIIjLS PRO CONFESSO [§ 171 "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. ' ' ^ "If the answer include a set-off or counter-claim, the party against whom it is asserted shall reply within ten days after the filing of the answer, unless a longer time be allowed by the court or judge. 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 withir^ ten days from the fil^;ig .thereof, aiid ten days shall be accbrded to such defenda^nts for filing a reply. In default of a reply, a decree pro confesso on the counter-claim may be entered as in defaiilt of an answer to the bill. " ' "In every case where an amendment to the bill shall be liiade after answer filed, the defehdaiit 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. lil?e proceeding may be had as upon an omission to put in an answer,"* , i ,; entering his appearance before lie was required to file his plea, de- murrer, or answer to the bill. "In default thereof, the plaintiff may, at his election,, enter an orderi (as of course), in the order-book, that the bill, be taken prpj cow/esso; and thereupon ,the cause shall be pro- ceeded 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 enalile him to obtain a proper decree,, shall be entitled, to process of attachment against the deffijidant to compel an answer, and the ; defendant . ,sh£^ll not, when ar- rested , upon . ,sueh process, bp Sis- 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. ' ' 2 Eq. Eule 29. SSule 31. 4 Eule 32. Under , the. Equity Rules of 1842, in a proper case part of the bill might be taken as con- fessed. Sviydam v. Seals, 4 McLean 12 ; Hale v. ; Continental Life Ins. Co., ,20.Eed. 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 oonfeffsed. Hale V. Continental Life , Ins. Co., 2,0 Fed. ; 344.,, Eq. Eule 64 of 1842 provided: that where exceptions to an answer for insufficiency had been §171] WHEN BILL MAY BE "TAKEN PRO CONPESSO 989 Under the former practice, where the ;bill when the subpoena was served did not show> jurisdiction against a defendant, . a subsequent amendment stating facts sufiSeient ,to show Jurisdic- tion against it would not warrant; the entry of an ordpr taking the bill as confessed without a second service of the subpaena, or an appearance by such defendant.* 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.^ As to the rule: ssrhen trivial amendments are added tp, the bill, the practice in the United States is not settled.' 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 >vaived.' In a proper case, part of the bill might be taken as confessed,® Thus, where the defendant had repeatedly failed to answer an interrogatory, the parts of the bill which the same affected were ordered' taken as con- fessed.*" So where exceptions to an answer 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 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 sustained, tlie defendant might, if Powell, 2 Be Gf. & S. 570; Bebcher he chose, enter an order taking as v. Ireland, 46 Kan. 97. confessed the parts of the bill to 7 The English rule was that a jiew which the exceptions related. It subpoena must be served. Weight- seems th3,t, in the absence of a rule man v. Powell, 2 De G. & 8. 570. upon the subject, the coiriplainant See also Blythe v. Hinckley, 84 I?ed. in such a case might, at his election, 228 ; Harris v. Deitrieh, 29 Mieh. have either the whole bill or the 366. . Contra, Bond v. HoweM, 11 parts insuflfieiently answered taken Paige (N'. T.), 233. as confessed. -8 Sheffield Furnace Co. v. Withe- «Cuebas,v. Guebas, 223 >U. 8. 376; row, 149 V. S. 574, 576, 37 L. ed. NonTMagnetie "Watch Co. V. Asso. H. 85(3,855.; , ,:< of Geneva, 45 Fed. 210. But see 9 Suydam v. Seals, 4 McLean, 12 ; Brown V. Lake Sup. Iron Co., 134 IT. Hale .v. Cont, L. Ins. Co., 80 ,Fedi S. 530, 33 L. ed. 1021; Nelson v. 344. ; - ' ' Eaton, 66 Fed. 376. 10 Hale v. Cont. L. Ins, Co., 20 6 Nelson v. Eaton, 66 Fed. 376; Fed. 344. Bank of ! Utica v. Finch, 1 Barb. 11 Eq, Bule 64 of lSi2;, wfra, Ch. (N. Y.) 75; Weightman v. §194. . i,, i ; 990 TAKING BILLS PRO CONPESSO [I 172 taken as confessed. ^^ It was formerly uncertain whether, when the defendant after answering the original bill failed to file a further answer to liiaterial amendments thereof, the complainant was to have the whole bill taken as confessed, or only the part unainswered.^* It is doubtfid whether a bill can be taken as confessed against ah infant or other persoh tinder a disability. i* Certainlyi it cannot before a guardian ad litem has been appointed.^" Should the guardian refuse to answer; the safer course for the com- plAinaht' would be to obtain a reference to a master and prove the allegations of the bill before him.^^ §172. Practice in taldng a bill pro confesso. When a de- fendant fails to appear or to plead in due' time, "the plailitiif may, at his eleietion, enter an order (as of course) in the order- book, that the biU be taken pro confesso; and thereupon the cause shall be proceeded in ex parte." '^ The order is entered by the clerk without ■ the intervention of a judge.* Doubts have been expressed as to the propriety of entering such an order pending a motion upon a special appearan«e to qua^ a subpoena, or in the case of a cross-bill pending a motion to dismiss the origiriaL bill as against: the cross-coinplainants.? If a bill is fatally defective and shows that the court has no juirisdictioni it is improper to , enter an order or decree taking the same prKO confesso.^ By the former practice,^ there was no need of serving the order taking the bill pro confesso.^ 12 Abergavenny T. Abergavenny, 2 367; O'Hara v. MacConnrtl, 93 XT. Bq. Gla. Abr. 178 ; Weaver v. Liv- S'. 151, 23 L. ed. 842 ; Massie v. Don- ingston, Hopk. Ch. (N. Y.) 595; aldson, 8 Ohio, 377; Chaffin v. Kim- Turner V. Turner, 1 Dickens, 316; ball, 23 111. 36, 38. Smith V. 8t Louis Mut: L. Ins. 16 0*Hara v. MaoCounell, 93 U. Co., 2 Tenn. Oh. 605. But see Ba- S. 151, 23 L. ed. 842. eon V. Griffith, 2 Diekefts, 473; 16 Mills v. Dennis, 3 ' J. Ch. (N. Denuison v. Bassford, 2 Paige (N. Y.) 367. Y.), 370. §172. 1 Eq. Rule 16 copied from 18 Suydam v. Beals, 4 McLean, 12, Eq. Rule 18 of 1842. See Read v. 15/ The latter practice seems to be Consequa, 4 Wash. 174; O'Hara v. favored in Trust & Tire Ins. Co. v. MacConnell, 93 TJ. S. 150, 152, 23 Jenkins, 8 Paige (N. Y.), 589, 593, L. ed. 840, 842. 594; Hawkins v. Crook, 2 P. Wms. 2 Eq. Rule 5. 559 ; Davis v. Davis, 2 Atk. '23. 3 Blythe v. Hinckley, 84 Fed. 228. 14 Compare the positive language 4 Onebas v. Cuebas, 223 IT. S. 376, of Equity Rule 16 of 1842, With 56 L. ed. 476. Mills M. Dennis, 3 J. Ch, (N. Y.) 6Eq. Rule 17; Bank of U. 8. v. § 172] PRACrricE' in. taking bill pro confesso 991 . "When the bill is taken pro cOnfesso the court < may proeefed to a decree at any time after the expiration of thirty days from and afterithe entry of the order to take the bill pro , o at the same term, set asides 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 ithe court shall deem reasonable, and unless the de- fendant shall undertake to file his answer within sucli, time as the court shall direct, and submit to such other terms as the court shall direct, for the purpose of speeding the, cause.",® The application, in the Federal courts should be made by motion'' supported by an affidavit; showing the excuse if or the default, and also, unless a verified answer accompanies the application, which is the better .practice, showing the nature i of the defense.^ .Great liberality should be shown to non-residents served by publication.' An error of the clerk of, the court; ^°.or a default, , which resulted from an oversight of the defendant's counsel ;, ,^,^ or was caused by .his attorney's lack of knowledge of t^e proper (mode of procedure in equity ; ^* or a justifiable reli- ance; upon the defense of a suit by a person in privity with ;the dpfa,ult,^^ i^ a reason for allowing the idefeiidant to appear and defend. Where due service was , made, a; default wjll.not be opened unless a defense on the merits is shown.'* It has been White, 8 Peters, 262, 8 L, ed. 938- Downing, 13 N. J. Eq. 59; XT. S. v. See Oakley v. O'Neill, 2 N. J. Eq- Whitmire, C„ C. A., 188 Fed. 422. 287. But see Metcalf y.i Landers, 3 Baxt. , 6Eq. Rule 17, copied ,in substance (Tenn.) 35. , from Eq. Bule 19 of 1842. See May- 9 American ¥. L. , M. Co. v. Thom- nard V. Pomfret, 3 Atk. 468;.Heyn as, 0. C. A., 71 , Fed. 782. , V. Heyn, Jacob, 49. 10 Blythe v. Hinckley, 84 Fed. 228. T, French t. Stewart, 22 Wall. 238, 11 Benjamin Schwarz & Sons v. 22, L. ed. 854. Kennedy, 156 Fed. 316. But see SScJiofield V. Horse S. C. .Co., 65 City of Kansas -City, Kan. v. Union Fed., 433; Massachusetts B. , L. Pac.:E. Co., C.,C. A., 192 Fed. 316. Ass'n V. Lohmiller, 74 i^ed. 23; iZMcFarland v. State, Savings Wells v.Cruger, :5 Paige (N. Y.), Bank, 129 Fed^ 244. 164; -Winsihip, v. Jewett, 1 Barb. 13 D. & W. Fuse Co. v. Trumbull Ch,.. (N. Y.) 173; Goodhue v.. Church- El. Mfg. Co., 183 Fed.i784. man, J Barb. Ch. (N. Y.) 596; Keil 14 Massachusetts Ben. Life Ass'n V. West, 21 Pla. 508; Emery v. v. Lohmiller, C. C' A., 74 Ped."23. 992 TAKING BILIjS PRO CONFESSO [§ 172 said: that the same rule applies when there is color of claim that due service was made;^* If the defense seems to the court to be unconscientious, the application may be denied." In the State courts, applications to open defaults have been denied where the defendants wished to plead a discharge in bankruptcy,^'' and in one case where the complainant's principal witness had died between the default and the motion.^' Where defendants wished to plead usury, relief has been conditioned upon payment of the principal,^* and upon a waiver of defense to the claim for the principal and legal interest.*" 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 defend- ant; *^ but special favor is shown to assignees for the benefit of creditors.** It has been held that after the term, a decree taking a bill as confessed cannot be set aside on motion,*^ unless the motion was made or noticed at the term when the decree was entered,** even where there is a rule of the State court permitting such a practice.** 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 irregularity for' which the decree would not be set aside upon motion at a subsequent term.** But a decree taking a bill See White v. Crow, 110 TJ. S. 183, 28 (N. Y.) 496; "Watt v. Watt, 2 Barb. L. ed. 113. Gh. (N. Y.) 371; National Fire Ins. 16 Massachusetts Ben. Life Ass 'n Co. v. Sackett, 11 Paige ( N. Y.) V. Ldhmiller, C.! C. A., 74 Fed. 23. 660. 16 Parker v. Grant, 1 J. Ch. (N. «1 Watt v. Watt, 2 Barb. Ch. (N. Y.) 434; Quiney v. Foot, 1 Barb. Y.) 371. Ch. (N. Y.)'496; Freeman v. War- 22 Blanchard v. Cooke, 144 Mass. reil, 3 Barb. Ch. (N. Y.) 635; Bax- 207. ter v. Lansing, 7 Paige (N. Y.), 23 Allen v. Wilson, 21 Fed. 881; 350 ; National Fire Ins. Co. v. Linder v. Lewis, 1 Fed. 378 ; Stuart Sackett, 11 Paige (N. Y.), 660. v. St. Paul, 63 Fed. 644; Electric ■17 Freeman v. Warren, 3 Barb. Vehicle Co. v. De Dietrich Import Ch. (N. Y.) 635. Co., 159 Fed. 492. 18 Wooster v. WoodhuU, 1 J. Ch. 24 Stuart v. St. Paul, 63 Fed. 664. (N. Y.) 529. 26 Austin v. Eiley, 55 Fed. 833. 19 Bard v. Fort, 3 Barb. Ch. (N. 26 Linder v. Lewis, 1 Fed. 378. Y.) 632. See Stuart v. St. Paul, 63 Fed. 688. 20 Quiney v. Foot, 1 Barb. Ch. § 172] PRACTICE IN TAKING BILL PRO CONPESSO 993 as confessed was set. aside upon motion a,t a later term when it had been entered after appearance and before the time to plead had expired.*'' , .And in a proper. case, such a decree can be set aside by an original bill.** A decree %»'o confesso is not as of course according to the prayer of the bill, nor such as the complainant 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.** It has been held that there is an exception 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 copj^ of the proceedings and testimony in the patent- ofiice and call for any other competent eyidenee that the com- plainant may have to offer.*" "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.'f *^ "The bill,, ivf hen confessed by the default,,of the, defendant, is taken to be true in all matters alleged with suffi- cient certainty; but in respect to matters not alleged with due certainty, or subjects which, frora their, nature and : the course of the court, require an examination of details, the obligation to furnish proofs rests on the complainant."** In the State courts a decree pro confesso is usually not taken against an infant without proof of the facts.** The i^ederal practice in this respect is not settled. When the bill relates to an uns,ettled account, a reference to a master is always neces- sary.** ' The equity rules provide that, after an order taking the bid 87 Fellows T. Hall, 4 McLean, 281. S2 Master Hoffman in Williams v. 28 Thomson v. Wooster, 114 U. S. Corwin, Hopkins Ch: 471; quoted 104, 112, 29 L. ed. 105, 107; infra, by BracUey, J., in Thomson v. §§ 450-452. Wooster, 114 TJ. S. 104, 110, 111, 29 29 Bradley, J., in Thomson v. L. ed. 105, 107. See Ohio Central Wooster, 114 IT. S. 104, 113, 29 L. E. Co. v. Central Tr. Co., 133 U. S. ed. 105, 108; Andrews v. Cole, 20 83, 91, 33 L. ed. 561, 563. Fed. 410; Eose v. Woodruff, 4 J. Ch. SS ChafBn v. Kimball, 23 111. 36, (N. T.) 547, 548. 38; Ingersoll v. Ingersoll, 42 Mass. 80 Davis V. Garrett, 152 Fed. 723, 155; Massie v. Donaldson, 8 Ohio, 725. 377, 381. Cf. O'Hara v. MaeCon- Sl Bradley, J., in Thomson v. nell, 93 U. S. 151, 23 L. ed. 842. Wooster, 114 TJ. S. 104, 113, 114, 29 34 Pendleton v. Evans, 4 Wash. L. ed. 105, 108. 104, 112. Fed. Prac. Vol. 1—63 994 TAKING BILLS PEO CONFESSO ' [§ pro confesso for a default in pleading, "thereupon the same & be proceeded in ex parte." ^^ Whether this deprives the fendant of the right to notice of subsecjuent proceedings anc appear before the master is doubtful.'* It has been held thai has no right to a notice and hearing on the settlement of final decree.^' By the English practice, the defendant, aftc decree pro confesso and a reference for an account, was enti' to have notice of the proceedings and to a hearing before master.** The same rule prevailed in the Second,*' in Third,*" and in the Ninth,*i Circuits. It has been held other's in the Eighth Circuit.** A decree upon a bill taken as confes is res odjudAcata between the same parties and their privies subsequent proceedings.*' Where a bill for the infringement of a patent alleges infrii ment of "the invention" of the plaintiffs, and is taken as ( fessed, it seems that it , cannot be claimed in subsequ proceedings in the same suit that the patent is void upon face.** When more than one defendant is charged with a joint lia ity, after the bill has been taken as confessed against one, final decree can be made against him, unless and until a de( is entered against those who appear and defend the suit ; ** ; if the bill is finally dismissed upon the merits as to them, it ■ be dismissed as to the defaulter also.** But the rule seems t( 35 Equity Rule 16. This phi'ase Hoffman Ch. Pr. 520; 1 Barb. is not used in the Rules of 1822. Pr. 479. In New Jersey the 7 Wheat, vii, 5 L. ed. 376. was discretionary. Brundage 36 Bradley, J., in Thomson v. Goodfellow, 4 Halst. Ch. I Wooster, 114 TJ. S. 104, 119, 120, Thomson v. Wooster, 114 TJ. 8. 29 L. ed. 105, 110. 119, 120, 29 L. ed. 105, 110. 37 Provident Life & Trust Co. of 43 Last Chance Min. Co. v. 1 Philadelphia v. Camden & T. Ry. Min. Co., 157 U. S. 683, 39 L. Co., C. C. A., 177 Fed. 854 (Third 859. Infra, § 186m. Circuit) . 44 Dobson v. Hartford Carpet 88 Bennett *. Hoefner, 17 Blatchf . 114 U. S. 439, 446, 447, 29 L. 341. 177, 179, Reedy v. "Western El. 89 Davis V. Garrett, 152 Fed. 723. C. C. A., 83 Fed. 709. 40 Southern Pac. Co. v. Temple, 46 Frow v. De La Vega, 15 "V 59 Fed. 17. 552, 21 L. ed. 60. 41 Austin V. Riley, 55 Fed. 833. 46 Terry v. Fontaine 's Adm 'i 42 Heyn v. Heyn, Jacob, 49. So Va. 451 ; Petty v. Hannum in the New York Chancery, 1 Humph. (Tenn.) 102, 36 Am. § 172] PRACTICE IN TAKING BILL PRO CONFESSO 995 otherwise where his liability is distinct and several.*' Where a decree pro confesso had been entered, adjudicating 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 heJaring on issues raised by other defendants, to give to the defaulter an interest in the fund.** It seems that a decree taking a biU as confessed is of no effect unless followed by, or included in, a final decree.** An appeal can be taken from the decree, after a bill has been taken as con- fessed. Upon such an appeal the decree may be reversed for a defect in the service of the subpoena ; *'' for failure to appoint a guardian ad litenv, when required ; *^ it seems for a want of indispensable parties,** and for a failure to set aside the decree upon a proper application."' The only question for the con- sideration of the court is whether the allegations in the bill are sufficient to support the decree."* It seems that the objection that the complainant 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.*" Where the defendant had not moved until nine months after the appointment of a receiver, and meanwhile the bill had been taken as confessed, it was held to be too late to take this objection."^ 303; Butler v. Kenzie, 90 Tenn. 31; 54Masterson v. Howard, 18 Wall, s. c, 15 S. W. 1068; Clason v. Mor- 99, 21 L. ed. 764; Ohio C. E. Go. v. ris, 10 Johns. (N. T.) 524; Kooper v. Central Tr. Co., 133 U. S. 83, 33 L. Dyer, 59 Vt. 477, 59 Am. Eep. 742. ed. 561. 47 Andrew v. Lee, 1 "Dev. & B. S5 Brown v. Lake Superior L-on Eq. (N. C.) 318; Simpson v. Moore, Co., 134 U. S. 530, 33 L. ed. 1021; 5 Lea. (Tenn.) 376. Western Elee. Co. v. Eeedy, 66 Ted. 48 Third Nat. Bant of Atlantic 163. City, C. C. A., 130 Fed. 751. S6 Brown v. Lake Superior Iron 49Frow V. De La Vega, 15 WaU. Co., 134 U. S. 530, 33 L. ed. 1021; 552, 51 L. ed. 60; Butterworth v. Anderson v. Hultberg, C. C. A., 247 Hill, 114 TJ. S. 128, 29 L. ed. 119. Fed. 273; Miller y. Belvy qil Co., soO'Hara v. MaeConnell, 93 U. C. C. A., 248 Fed. 83; Venner v. S. 150, 23 L. ed. 840; Butterworth Pennsylvania Steel Co., 250 Fed. V. Hill, 114 U. S. 128, 29 L. ed. 119. 292; United States Oil & Land Co. v. BlO'Hara v. MaeConnell, 93 TJ. Bell, 219 Fed. 785; Bowe v. Hill, S. 150, 23 L. ed. 840. ' C. C. A.^ 215 Fed. 518. When a 82 Ibid. deed was delivered but not recorded S3 American F. L. M. Co. v. Thom- before the suit, the grantee is not as, C. C. A., 71 Fed. 782; Nelson v. bound by the decree. Eaton, C. C. A., 66 Fed. 376. CHAPTER ,IX. ANSWERS. § 173. Answers in general, f * 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." ^ , i . . "Demurrers and pleas are abolished;. Every defense in point of law arising upon' the face of the bill,, whether for misjoinder, nonjoinder, or ansufflcieney of fact to constitute a falid cause of action in equity, which might heretofore have been made by de- murrer or plea, : shall he made by motion to dismiss 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 hearing 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 alid disposed of before the trial of the principal ease 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 there- after or a decree pro confesso entered. " ^ ' ' The defendant in his answer shall in short and simple terms set out his defense to each claim asserted by 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 § 173. 1 Eq. Rule 16. 2 Eq. Rule 29. 996 '§' 174] ADMISSIONS, DEISflALS AND DISCOVERY 997 state, such statement operating as a denial. 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, but the answer may be amended, by leaVe of the e6ilrt or judge, upon reasonable notice, so as to put any' averment in issue, when justice requires it. The answer may state as many defenses, in the alternative, regardless of (consistency, as the defendant deems essential to his defense. The answfer' must state in short and simple 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 ah 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 ih ' the same suit both on the original and cross- claims."' ','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."* An answer in eqjiity serves twp purposes : the setting up of the defenses to the, suit and discovery. It may now pray relief against the complainant * and against a co-idefendant.® Formerly this could not ordinarily be done without the filing of a cross- bill.' ' ' ' ' ' § 174. Admissions and deniaJs and discovery. The Equity Rules now proyidcithat the answer must specifically admit, deny, or explain 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.* 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 filed after issue is joined.* They are also silent as to whether the complainant may waive an 3Eq. Rule 30; CoalstBii V. ' H. ' 7 Carnoehan v. Christie, 11 Wheat. Pranke Steel Range Co.', 221 Fed. 446, 6 L. ed. 516; Veaeh v. Riee, 131 671. U. ,8. 293, 33 L. ed. 163. Infra, 4 Eq. Rule 31. , §197. B Eq. Rule 30. §174. 1 Eq. Rule 30. 6 Eq. Rule 31,' « Eq. Rule 58, 998 ANSWERS [§174 aiiswer under qath and as to the effect, of an answer under, patli ,as eyideno^., , ,, ,.■., i,. , , The Equity Rules of 1842,, which seeni in this respect to f 9],low the former practice in chancery,* provided : "If the, , epmplaip- aint.,.,ii} his biJiJL,, shal.l waive an answer under oath, or shall only require an ,ai}swer under oath wi|:h ,reigard to certain, specified interrogatories, the answer of ,thp d,eff5ndan.1;,thp,ugh,Poti under oath,; .shall, npt be eyidi^T^fie in his favor, unless, the cause he set ^Q)yn ^pjt- heaj-ing on bill and answer only; but may nevertheless be,use4:.as an affidavit with, the, same effect as, heretofore upon a motion to grant or , dissolve an injunction, ox on any ptl^er incidental motion in the cause;, but this. shall not prevent ,a de- fendant, from becoming a ,>vitne,ss in his p.wn, behalf under .section 3, of the,,aet,pf Congress of July 2,, 1864."* Consequently, under those rules, an .^nsyer under oath was usually waived by the complainant.^ , It was held that, whei^e an answer under oath, was waived, a discovery could not be required,^ and that defen(iajnt 3 See DanieU's Ch. Pr., First Am'. Ed., ,846; Curling v. Tawialifeiiidj 19 Vesey 628, 629 ; , BiUingalea v.,,iGilr,, Ibert, 1 Blan^ (Md.) 567; Cpntee y. baWson, 2 Bland (Md.j '264; ipul- tbii Bank V. Beaeh,' 2' Paige,' (N. Y.) 307; i Story's Eq. PI., §§874, 875a. , , . , 4Eq. Eule 41 of 1842 as amended December, 1§.71. , The .statute, cited, is now TJ. S. R. S.,' § S58. ' See Wood- rufE V. Dtlbuque & S. C. E. Co., 30 Fed. 91. ■ ' i 5 See. Slessinger v. , Buckingham, 17 Fed. 454, 456. i 6 Tillingh^st v. Chace, 121 Fed. '435; lieFarland y! State Sav. Bank, 132' Fed. 399; Victor '•&.' Bloede Co. of. Baltimore City v. Garter, 148 F?d- 127; .Gorham M^g, Co. v. Wein- traub, 180 Fed. 639. See also Har- rington :y. Harrington, ,15 B. I. ,341, 5 Atl. 502; McCuUa v. Bea^lestpn, 17 E,. I. 20, 26, 2C! Atl. 11; Stark- weather V. Williams, 21 E. I. 55, 41 Atl. 1003; "Ward v. .Peck,, 114 Mass. 121; Badger v. McNamara, . 123 Mass. 117, 120; McCormiek v. Cham- berlaiUj 11 Paige (N.T.) 543;:tr. S. , .y. McLaughliif, (C. C.) 34 Fed. 823; Sheppard v. Akers, 1 Tenn. Ch. 326; Goodwin v. Bishop, 145 111. 4^21, 34 N. !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.j 12;r Fed^ ,845, 848; John Chiirch Co. v. Ziminer- man, 131 Fed. 652. Contra, Batfes on Equity Federal Procedure, Vol. I, §355.; criticised by Brewer, J., in I .Tillinghast v. C^aee,, ],2^,F:ed., 43^, , 436. Citing Kittredge y. Claremont Bank, 1 Woodb. & M. 244| Fed.' bas. ■No^ 7,859;' WMttemore'y.' Patten, 81 Fed. 527 ;■ ' Nat '1 • Hollow Brake Beam Co. v. Interchangeable Brake Beam Co., 83 Fed. 26; Uhlmann v. .^rnhpld,&| Scha,e£Ee,r Brewing C9., 41 Fed. 369; Gapewell Fire- Alarm Tel. Co. y. Mayor (C. c!), 31 Fed. 312j Colgate y. Compagnip Francaise,; 23 Fed. 82; Eeed. y. Cumberland Mut. Ins. Co., 36 N. J. Eq. 393; Manley § 174] ADMISSIONS, DENIALS AND DISCOVERY '999' then could not be required to answer interrBgktdrieS ati'aclied to the bill.' Where no such waiver was inade,' the former riil'e then still prfevailed; and the swbrii: statement by the defendant, in direct response to an d,llegatiori in th'e 'bill, -Was deemed to be tru'e', unless contradicted by ' two 'witnesses bt si single witness and corroborating eirctimstanbes.* '" ' ' - tinder the new rules this'doctriiie has been applied.' Such a waiver does noli relieve the defendant f ro-m' answering interroga- tories subsequently propounded. ^^ Irresponsive 'allegations were riot evidence,^^ ribr' was th'e' dourt boiind' b^' the coristrUetibn placed in the answer upon facts that were therein pleaded! ^^ Such an answfer was not evidence of hew facts, set up by way of Evidence of the allegations of the bill.^' Neither were alleg'a- tions upon information and 'belief,^* iior allegations' sworii' to positively, concerning facts of which it was evident the' respond- ent could have no personal knowledge;^* ' ' ' ' ' The adrnissions of the defendant are' binding lipbri him; and unless he can obtain leave to amend his answer by withdrawing them, he cannot disprove them at the hearing.^* v.,Mickle, 55 N. J. ;Eq. 567, 37, Atl. 7 Independent Baking Powder Co. V. Boorman, 130 Fed, 726; 'Viat(^X G. Bloede Co. v. Carter, 148' Fed. 127. But where he undertook to answer, it was held^ that he must answer fully. Ibid. 8 Clark 's Ex 'rs v. Van Eiemsdjfk, 9 Craneh, idi, 160, 3 L." ed. 688^ 690 ; Union Bank of Georgetown v. Geary, 5 Pet. 99, 110, 8 L. .ed. 60, 64; Seitz v. Mitchell, 94 IT. S. 580, 682, 24 L. ed. 179, 180; Vigel v. Hopp,'l04 tt 8. 4^1, 26 L. edi 765; Slessinger v. Buckingham, 17 Fed. 4'5'4, 456; Kennedy v.' Custer, C. C. A., 17'4 Fed. 972. See the Respon- sive Answer in Equity, considered as Evidence for the Defendant, by J. M, Gest, 52 Am. L. Reg.' '^. . 9'Wiicox'v. El. Banco,; ,0^ C. A,^ 255 Fed. 442. But,' see" Watts v. dtabb, d"C. A.', "257 'Fed.' 'zit.' lOLuten V; Camp, ,221 iFed.i424. Infra, %3,i^> .,,1,,! „■.•„■. ,s . -.- .ui 11 Pennsylvania Co. v. Cole, 132 Fed. ^68. , 12 ifortliern Pac. Ey. Co. v. Boyd, C. C. A., 17'f Fed! 804.' ^ ^ ', 15 Sargent v. Larne^',' 2 .Curt. 34d) fieiiz'y. Mitchell', ,94 tf. ^ 580, 2^ L.'edl 179; ' '^'.',"' ■,\', 14 Berry y. S^awYerj,19 F'e'd.j 2§6; Allen V. d 'Donald, 28 Fed,' 17; Earle v. Art, L. Pul|.' Co,, "95^'Fpd. 5.4. - ^ '■.' "^ ",.' 16 Clark's, Ex 'rs v. Van Riemsdyk, 9 Cranchj '153', iei, 3 ' L, ed. 688, 690; Allen y. O'Donald, 28 'Fed.,17. Ifi ierce, 7 "Wall. 205, 212, ,1ft L. ed, 134, 136; Brooks v. Byara', 1 Story, 29'6. 3BKittredge. v, Clareraont Bank, 1 .w, & ,M, ;244'. . , ; . ... ; , ; ■ " y..., MXJnion M- Ins, Co, v, Coinnier- eial M. M. Ins. Co., 3 Curt. 524; s.,c. on appeal, as Commercial M. M. Ins. Co. V. Union M. Ins. Co., 19 How. 318, 319, 15 L. ed. 636, 637. Thus, when the bill alleged that the defendant executed and delivered a deed, a denial by the defendant of its delivery, accompanied by an ad- mission that he made the deed and placed it upon record, is equivalent to an admission of its delivery. Adams v. Adams, 21 Wall. 185, 22 L. ed. 504. An admission that a deed bears a certain date does not estop the respondent from showing that it was fraudulently antedated. Holbrook v. Worcester Bank, 2 Curt. 244. 41 Klenk v. Byrne, 143 Ped. 1008, 1011. 42 Hill V. Walker, C. C. A., 167 Ped. .341.; Bettes v. Brower, 184 Fed. 342. ^ee .swpra, § 40, infra, §454, §175] PLEADING DEFENSES 1003 which is the sulbject of the suit was at the time bf its cominence- ment Unoccupied is not denied by an affirmative allegation in the answer that defendants "ate now in the' quiet and peaceable possession" of the ^ame.*' In a; suit iii equity,' submitted on bill and answer, the complainant's title to real estate was deemed' to be admitted by an answer in which the defendant pleaded an adverse claim of title, deraigned from a void judicial decree in a proceeding against the complainant to foreclose a lien for taxes, notwithstanding a denial of the complainant's title in the' same answer.** In drawing such an answer, it is usual and often advantageous to interweave the discovery with a narrative of the transaetibris from the defendant's point of view in a continuous statement, so that it will be hard for the plaintiff to read as evidence th6 defendant's admissions without also reading the latfer's own explanation and account of the controversy.** §175. Pleading defenses in ajiswer. Inconsistent defenses may now be pleaded.^ IS Klenk v. Byrne, 143, Fed. 10Q8. Where the holder of a tax Ip-tle sued out, a writ of possession from a State court, and, in a suit to set aside his deed as;a cloud on title, filed a cross-bUl praying possession, held that he tjiereby Confessed that the possession was in complainant. Collier v. Goessling, C. C. A., 160 Fed. 604. Complainant in a suit to quiet title alleged the recovery of. judgment in ejectment against^ de- fendant, and that plaintiff had been put in possession by the marshal pn execution of a writ of possession. Defendant answered, denying that the marshal had executed the writ, and filed a cross-bill alleging pos- session since 1899, as also of a 20- acre tract south and adjoining the; land in controvevsy; that the mar- shal, in executing the writ of pos- session, . removed defendant from^ such south 20-acre tract, and placed plaintiff's agent in possession there- of afterwards filing a return that he had executed the writ by placing, plaintiff's agent ii> possession of the land in controversy; bpt .the cross-bill did not allege that the marshal did not, in. fact place plain- tiff in possession of the land in con- troversy, nor was there any. aver- ment that defendant h,ad,. paid taxes on such landr Held,, that 1|he cross- bill was demurrable for failure to show that the. writ of possession was not executed according to its return^ Center v. Qady, CO. A., 184. Fed, 605. 44Klenk y. Byrne, 143 Fed. ,1008, 45 It has been held that where the original answer intermingles objec- tionable and irrelevant, matter with allegations that are good, so that the result of striking out what is objectionable would be to leave the remaining parts disjointed and not in good form, an entirely nevy an- swer must be filed. .]?r. Miles Medi- csd Co. V. Snellenburg, 152 Fed. 661. § 175. 1 Eq. Rule 30. This prac- 1004, ANSWERS [§175 Matters in abatement,, such as Ijs, pendens and objections to the jurisdiction of the court, can now .be set; up ^|)y-, answer .^^ Formerly, matters in aliatement, s^hieh, di4 noit, affep^t the jjuriSf^ diction and objectior^s to the character of the parties and matters, of form, could not be so pleaded.' , Facts that have occurred since ;the filing gf the bill mayjhej so pleaded by the defendant.* i • • , The defenses must be pleaded ,^ith sufScient certainty, al- though it seems that, the same degree pf certainty is not required in an answer as in a bill * nor as formerly, in a plea.* j. The general rule is that no affirmative defense can be proved unless it has been set up in the .answer,'' but the, failure of the tice was firft authorized by the New York Code of Procedure, writtein by David Dudley Field. Lprd Chaij- cellor Lorebiirn (Harv. Law Eev., xxvi., p. 101): "A litigant 'may ' state in his defense what facts he relies upon, and at the same time may state that he contends that even if the facts te as alleged by' the plaintiff, yfet they furnish no cause of action. Thsit is 'in' feffect a demurrer. There is no doubt that this practice is beneficial. It may be convenient that the 'question of law decided by the demurrer should be decided first, and if decided in favor' of the defendant it will end the case, unless the plaintiff is allowed to. amend and raise a fresh contention. It may be, and generally is, conven- ient first, to ascertain all the facts at a trial, and then to apply the law or equity, as - the . case may be. Which course is to be taken is usu- ally agreed to by the parties, but,' if not agreed, the judge can direct what is to be^3ohe! We find it very useful to have" as much elasticity as possible in these things, and I am sure no one doubts that all relevant contentions both of fact and law ought to be stated in the pleadings. An answer to a bill in equity may plead a .fornieri judgment in bar in connection Tyith matters of defense to the merits. Mound City Co, y. bastieman, 171 Fed. 520. In a pat- ent ca'se the ' defendant may deny Complainant's title to ^he' 'pktent and allege liis own • ownership there- in and at the same time deny its validity'.' Cleveland Eiig. Cii. "v. Gallon Dynamic Motor Truck Co., 243 Fed. '405. ''■"See infra, §188'.' Todd Prbtectograph Co. •vf. New Era Mf^.' 06., 236 F6-d. 768. 2Eq. Eule 29. ' ; 3Eq: Rule 39,' of 1842; Pierc^ v,;' Feagans, 39 Fed. 587. ' ' ' " 4 Earl of Leicester v. Perry, 1 Bfowh Ch; C. 305;- Turner 'v. Kob-' irison,' 1 Sim. & S.'3. • SDaniell's Ch. Pr. {5th Am. ek.) 714. ' ' " ■' ■■>' '-■ 6 Maury v. Mason, 8 Porter (Ala.) 213, 228. 7 Stanley v. Bobinson, 1 EUss. & M. 52f ; Cunimings v. Coleman, 7 Bich. (S. C.) Eq. 509, 520, 62' Am. Dec. 402; Burnham v. Dalling,; 3 d. E. Green (18 N. J. Eq.) l'32-; Dari- ieli's Ch. Pr. (5th' Am', ed.)' 712- Black V. Thome, 10 Biatchf. 66, 84; Sperry v. Brie By. Co., 6 Biatchf. 425. ' ' l.nS] DEFENSES IN GENERAL - 1005 opposite party ,tp mftl^e this, 9, ground, of objection t;o the intro- duction of evj^eif^cp in support of such omitted defense waives the defect.^ ,; ,,; ,_,^ . , Estoppel ' and purchase in good faith for a valuable considera- tion ^^ are such affirmative defenses. The defense that com- plainant has an adequate remedy at law unless rajsgidby wption to dismiss should be set up in the answer ^^ although the court may i-aise the same on its own motion:^^ It has been' held t that when the fact appears, that the complainant hai come into court with unclean hands because of fraudulent misrepresentations to the public concerning the subject-matter of the §uit,:his bill; will be dismissed, althoughthe defense is not pleaded.^' , It, has been said: that, if a defendant states in his answer certain facts as evidence of a' particular case; which he represents to he the eonseguence pf those facts, and upon.whifih he rests his defense, he is not permitted, afterwards to make use of the same facts, for the purpose of ; establishing a different defense from that to which by his ■ answer he has drawn the plaintiff's attention.^* Thus it has been said that where fraud is set up in the answer ' 'the party maMng the charge, if it is denied in a proper plead- ing, will be confined to, that issue. " ^* § 176. Defenses in answer. In general. The defenses which were formerly usually or always included in pleas may now be set up by a:nswer. Pleas have 'been abolished, and with them a vast amoijnt of learning has been rendered obsolete.^ Defenses, 8 Lusk V, Bush, C. C. A., 199 Fed; L.R,^. (N.S.), ftSl, 155 Fed. 964. 369., ' , ' llLangdell's iiq. Pl.,j_§ 79;' Ben- 9 Pennsyl-sraiiiia Co. v.. Cole, 138 nett v.,Neale, Wightwiek, 324:. Fed- 668.. But see Curtain Supply 16 French y. Shoemaker, 14 Wall. Co. V. Nat. Lock Washer Co., 174 314, 335, 20 L. ed. 852, 857. -See Fed. 45,; cited Wo, § 188. , §70. ,. ; : , , .r, 10 Great Northern Py. Co. v. §176. 14, plea was a pleading, Kower, , 236 XT. S. 702; U. S. v. which set up some reason not appar- Grand, rpanypn Cattle Co., C, C. i.., ent upon the.fape pf the bill, why the 24,7^Fed. 44i5i , , defendant should not be obliged to il, Thomas y. .South Butte Min. answer .the whole or a part thereof. Co.,/.0. C- A., 230/Fed. 968; i/r^fra, Lord Eedesdale defines a plea as "a §376. - ,- special answer ,to a bill, differing 12:^eyBes vi pumont, 130 IT. S. in this fr6m an answer in the com- 354,,a2^L,-^d5 934; infra, J 376. mon form, as it demanded the judg- ..,13 Mejnphisr Keeley . Institute , y. mept of the court, in the first in- L^alie E. Keeley Co., C. C. A., ,16 stance, whether the special matter 1006 ANSWERS L§176 which formerly might be set up by plea and can now be included in an answer, are either defenses in abatement or defenses in bar to the suit. Objections in abatement include among them, urged by it did not debar the plain- tiff from his title to that answer which the bUl required." Boche v. Morgan, 2 Sch. & Lef. 721, 725. A pleg. might be to the whole or to a part of the bill. Usually but a sin- gle ground of defense could be pre- sented by a plea, which, though it might state morie than one fact, must bring the matters in issue to a single point. Whitbread v. Brock- hurst, 1 Brown, Oh. C. 404, 416, note 9; 's. C, 2 Ves. & Bea. 154, note; Watkins T. Stone, 2 Sim. 49; Ehode Island v. Massachusetts, 14 Pet. 210, 250, 10 L. ed. 423, 446; Story's Eq. PI., § 654. See Ehino v. Emery, 79 Fed. 483. Otherwise) it was opened to the' charge of duplic- ity and multifariousness, and would be overruled. Ehode Island v. Mass- achusetts, 14 Pet. 210, 259, 10 L. ed. 423, 446. Gaines v. Mausseaux, 1 Woods, 118; Whitbread v. Brock- hurst, 1 Brown, Ch. C. 404, 416, note 9; s. c, 2 Ves. & Beau. 154, note ; London v. Liverpool, 3 Anst. 738; Watkins v. Stone, 2 Simons, 49; Saltus v. Tobias, 7 J. Ch. (N. Y.) 214; Giant Powder Co. v. Safe- ty N. P. Co., 19 Fed. 509; M'Clos- key V. Barr, 38 Fed. 165; Story's Eq. PI., §§ 653-655. But see Eeiss- ner v. Anness, 12 Off. Gaz. 842; s. c, 3 Bann & A. Pat. Cas. 148; MacVeagh v. Denver C. W. W. Co., 85 Fed. 74; Societe Fabriques V. Lueders, 105 Fed. 632; Hazard v. Durant, 25 Fed. 26; Fayerweather V. Hamilton College, 103 Fed. 546. If a bill contained different prayers for relief based upon different grounds, the defendant might file a plea to each part of the relief. Em- mott V. Mitchell, 14 Sim. 432. And in other cases, where great incon- venience could thus be saved, the court might upon motion, after no- tice to the complainant's solicitor, give special leave to file a double plea, Gibson v. Whitehead, 4 Miadd. 241; Kay v. Marshall, 1 Keen, 190, 192. But see Eeissner V. Anness, 12 Off. Gaz. 842; s. c, 3 Bann. & A. Pat. Cas. 148; oi- rather, according to Professor Lang- dell, two separate pleas, each con- taining a single defense, Lang- dell's Eq. PL, §98. Pleas were either pure, negative, or anomalous. A pure plea set up new matter as a defense which was not apparent upon the face of the bill, McCloskey V. Barr, 38 Fed. 165. A negative plea, which was sometimes also termed an anomalous plea, merely denied certain allegations contained in the bill. Story's Eq. PI., §651; Ehino V. Emery, 79 Fed. 483. An anomalous plea set up a fact in avoidance of the bill, but one which the bill had anticipated and withoirt confessing replied to, Langdell's Eq. PI., §102; Story's Eq. PL, §651; McDonald v. Salem C. F. M. Co., 31 Fed. 577; McCloskey v. Barr, 38 Fed. 165; Hilton v. Guyott, 42 Fed. 249. But see Milligan v. Milledge, 3 Cranoh, 220, 2 L. ed. 417. The main object of filing a plea was to avoid discovery, and in their draft- ing and defense much learning and subtlety was employed. Those in- terested in stating their history- and refinement are referred to Beames on Pleas, Wigram on Discovery, and §176] DEFENSES IN GENERAL 1007 objections to the jurisdiction, objections to tlie person and objec- tions to the bill,* Objections to the jurisdiction are: (1) .That the subject of the suit is not within the jurisdiction of a court of equity;* (2) that some, other court of equity has the proper jurisdiction;* (3) that the defendant has not been properly served with process.* Objections to the person are: (1) That -the plaintiff has not the legal capacity to sue ; either at all if an alien enemy,^ or alone if an infant,' or without leave from the court if a receiver.' (2) That the plaintiff is not the person whom he pretends to be, or does not sustain the character which he assumes; as, for example, that he is not executor,' or not assignee,^" or not a corporation,^' when suing as such; or that the suit is brought in the name of a fictitious person ; ^^ or that it is brought in the name of a person who sues for the benefit of another, through collusion or champerty ; '' or, it seems, in a Langdell on Equity Pleading, where they will find the subject discussed at length with full references to the cases. They were abolished in Eng- land by the Judicature Act of 1873, but they endured in the Pederal courts until the end of the year 1912 and are still used in the courts of a few of the States. It was as true when they were abolished as in the time of Beames, that the sub- ject of pleas in equity is one "con- cerning which so much still rem9,ins to be elucidated, that it may be said of them, maxima pars eorum quae scimus est minvma eorvm quae ig- noramus," Beames on Pleas, 61. See Am. Sulphite Pulp Co. v. Bay- less Pulp & Paper Co., 163 Fed. 843, 844. 2 See Beames on Pleas, eh. 2; Story's Eq. PI., §§705-708; Eule 39; Memphis City v. Dean, 8 Wall. 64, 19 L. ed. 326. 8 Story's Eq. PI., §§710-713. 4 Story's Eq. PI., §§ 714-716. BLarned v. Grifan, 12 Fed. 590; Williams v. Emj)ire Tr. Co., 1 N. J. L. 315. 6Albreeh v. Susslnan, 2 V. & B. 323; Story's Eq. PI., §724; Mum- ford V. Mumf ord, 1 Gall. 366. 7 Story's Eq. PI., §725. But see Dudgeon v. Watson, 23 Fed. 161. 8 See Newman v. 'Moody, 19 Fed. 858. 9 See Eubber Co. v. Goodyear, 9 Wall. 788, 792, 19 L. ed. 566, 567; Ord. V. Huddleston, 2 Dick. 510; Story's Eq. PI., §727. 10 Nicholas v. Murray, 5 Saw. 320. 11 Dental V. Co. v. Wetherbee, 2 ClifE, 555; Blackburn v. Selma, M. & M. R. Co., 2 Flip. 525; Emerson Co. V. Nimrocks, 88 Fed. 280. A limited partnership, organized un- der the laws of Michigan; was al- lowed, in the Second Circuit, to sue in equity in its copartnership name, where jurisdiction did not depend upon the citizenship. Sanitas Nut Food. Co. V. Force Food Co., 124 Fed. 302. 12 Chapman v. School Dist. N«. 1, Deady, 108, 116. IS Dinsmore v. Central E. Co., 19 Fed. 153. But see Sperry v. Erie Ey. Co., 6 Blatchf. 425. 1008 ANSWERS [§ 176 stockholder's suit founded np6n a right which may properly be asserted by the corporation, that th^ corporation has not refused to sue.^* It was held that the objection that the plaintiff was a lunatic and could not sue without a next friend could not be taken by plea, and that the proper course for_the defendant was to move either to strike the bill ofif the file on account of the complainant's mental incapacity, or for a stay of the proceed- ings until a committee or next friend was appointed.^* (3) That the defendant cannot be sued except upon the happening of some event which has not occurred, .as under the former practice, that he was a receiver, and no leave to sue him had been obtained from the court by which he was appointed.^® (4) That the defendant is not the person he is alleged to beT-or-does not sus- tain the character which he is alleged to bear;" or that the person named as a defendant is not a corporation when sued as such, in which ease the person served with process on its behalf may file the answer in his own name,^* or was not incorporated under the laws of the. State which is named in the bill as its creator;^* or that the defendant has become a bankrupt or in- solvent, and his interest in the subject-matter has passed to his assignee.^" It is improper to file an answer in the name of a defunct corporation by its successor.*^ It was held: that it was too late to file a plea that the defendant corporation had been dissolved, when, after the alleged dissolution, counsel had argued on its behalf in support of a judgment in its favor, which was subsequently reversed.^* Objections to the bill are: (1) That there is another suit depending in a domestic court of equity for the same matter. (2) That there is a want of proper parties. 14 Newby v. Oregon Cent. By. Co., also Williams v. Empire Tr. Co., 1 1 Saw. 63, 67. N. J. L. J. 315. IB Dudgeon v. Watson, 23 Fed. 19 Blackburn v. Selma, M. & M. 161. E. Co., 2 Flip. 525.- 18 Barton v. Barbour, 104 TJ. 8. aoKittredge v. Glaremont Bank, 126, 26 L. ed. 672; Jerome v. Me- 3 Story, 590; Story's Eq. PI., § 732 Carter, 94 U. S. 734, 737, 24 L. ed. See also Doggett v. Emerson, 1 136, 137; In re Young, 7 I'ed. 855. Woodb. & M. 196. But see 24 St. at L., eh. 373, § 3 ; 21 Underwood Typewriter Co. v. infra, § 314. Fox Typewriter Co., 158 Fed. 476. "Story's Eq. PL, §§ 732-734. ZZL. Bucki & Son Lumber Go. v. 18 Kelly V. Mississippi C. E. Co., Atlantic Lumber Co., C. C. A., 128 1 Fed. 564; s. c, 2 Flip. 581. See Fed. 332. § 177] PENDENCY OP ANOTHER SUIT 1000 (3) That the bill will cause an improper multiplicity of suits. (4) Multifariousness.*' Defenses which consist of matters of law may also be pleaded in the answer.** When an objection to the jurisdiction has been previously overruled it is the safer practice to reassert the same in the answer.** Otherwise the court might hold that it had been waived when capable of waiver.*^ "Where complainant had filed answers in suits in a State court it was held that he could not thereafter maintain in the Federal court a bill to enjoin the prosecution of those actions because of a multiplicity of suits.*'' § 177. The pendency of another suit. A defense, that an- other suit in equity is pending for the same cause in the same court is, if true, a sufl5cient defense to a bill.^ The pendency of an action at law for the same matter is not, however, in itself a defense,* for the very fact that relief cannot be had at law is the usual ground for resorting to equity. Thus the pendency of an action at law upon a contract was held to be no bar to a subsequent bill in equity by the same plaintiff to reform it so as to obviate a cross-action on the contract by the defendant.' Conveirsely it has been held that the pendency of a suit in 28 Story's Eq. PI., §§ 735-748. sistanee to an action of ejectment to 24 Boyd V. N. Y. & H. R. Co., recover possession of a part of such 220 Fed. 174, 178. claim, is not a bar to a subsequent ZS Tate V. Brinser, 226 Fed. 878 ; suit by the same complainant to Fry V. Denver & R. O. R. Co., 226 remove a cloud on its title to the Fed. 898. Supra, §§ 169, 170. entire claim, which includes extra- 26 Granite Brick Co. v. Titus, C. lateral rights not in controversy in C. A., 226 Fed. 557. the former suit. Empire State- 87 Robinson v. Wemmgr, 253 Fed. Idaho M. & D. Co. v. Bunker Hill 790. & S. M. & C. Co., C. C. A., 121 Fed. § 177. IMitford's PI., eh. 2, § 2, 973. Where the former suit was by part 2; Story's Eq. PI., § 736; Ur- a trustee who had removed and the lin v. Hudson, 1 Vern., 332; Foster second by the beneficiary of the V. Vassall, 3 Atk. 587, 590; Crofts trust, it was held that there should V. Wortley, 1 Ch. Ca. 241; Tarleton be no abatement of the latter. V. Barnes, 2 Keen, 632, 635; Insur- Alexander v. Fidelity Trust, C. G. ance Co. v. Brune, 96 U. S. 588, 592, A., 249 Fed. 1. 593, 24 L. ed. 737, 739, 740. See 2 Graham v. Meyer, 4 Blatchf. also Memphis, v. Dean, 8 Wall. 64, 129 ; Thome v. Towanda T. Co., 15 19 L. ed. 326. The pendency of a Fed. 289, 292. suit to enjoin the removal of ore 8 Providence S. E. Co. v, Hatha- from a mining claim, brought in as- way Mfg. Co., 79 Fed. 512. Fed. Prae. Vol. 1—64 ANSWERS [§177 y is no ground for a plea in abatement of an action at law.* owever, there appeared to be no sufficient reason for the tenanee of both, the court at equity might, after the, de- mt has answered, put the pla,intiff to his election, whether iU proceed at law or in equity; and if he elects the latter, his proceeding at law would be enjoined; if the former, his vould be dismissed.* e pendency of another suit in personam in a court of ler State of the Union ^ or of a foreign country '' is not a a suit for the same relief in a- District Court of the United !S when the object is not to obtain the possession of property le custody of the former court * or the former court lias ired jurisdiction by garnishee process or attachment.' e pendency of a similar suit in a court, held within tbe same ! and district where the Federal court is held, is under ar circumstances, not a bar to a suit for the same relief District Court of the United States;^** where the Federal irrett v. Halsey, C. C. A., 244 392. ;ory's Eq. PI., §742; Beames' s in Ch., 11, 12; Mitford's PI., § 2, part 2 ; Eoyle v. Wyne, 1. Ph. 252; Thome v. Towanda )., 15 Fed. 289, 292; infra, surance Co. v. Brune, 96 V. !, 592, 593, 24 L. ed. 737, 739. Stanton v. Embrey, 93 TJ. S. 13 L. ed. 983; O'Callaghan v. en, 116 Fed. _ 934; Robinson v. ban Brick Co., C. C. A., 127 304. But see Dady v. Georgia Ry. Co., 112 Fed. 838. jrd Dillon v. Alvares, 4 Vesey, Story's Eq. PI., §747; The sli, 252 Fed. 267 (a suit ia lam in Admiralty), riggs V. Stroud, 58 Fed. 717, Mankato v. Barber Asphalt g Co., C. C. A., 142 Fed. 329, , § 57. jwenstein v. Levy, C. C. A., 212 383. jatham v. Chafee, 7 Fed. 520; White V. Whitman, T Curt. 494; Sharon v. HUl, 22 Fed. 28; Wash- burn & M. Mfg. Co. V. V. Scutt, 22 Fed. 710 ; Loring v. Marsh, 2 Cliff. 322; Gordon v. Gilfoil, 99 V. S. 168, 178, 25 L. ed. 383, 386; Dwight v. Cent. Vt. E. Co., 9 Fed. 785; Cres- cent City L. 8. Co.' v. Butchers ' U. L. S. Co., 12 Fed. 225; North Mus- kegon, V. Clark, C. C. A., 62 Fed. 694; Marshall v. Otto, 59 Fed. 249; Eejall V. Greenhood, 60 Fed. 884; Short V. Hepburn, 75 Fed. 113; Shaw V. Lyjnan, 79 Fed. 2; Brooks V. Vermont Cent. R. Co., 14 Blatchf. 463, Fed. Cas. No. 1,964; Beekman V. Hudson River West Shore Ry. Co., 35 Fed. 3 ; Barber Asphalt Pav- ing Co. V. Morris,' C. C. A., 67 L. R. A. 761, 132 Fed. 945; Burk v. McCaffrey, 136 Fed. 696; Mankato V. Barber Asphalt Paving Co., C. C. A., 142 J'ed. 329; Barnsdall v. Wal- temeyer, C. C; A., 142 Fed. 415 New York Cotton Exch. v. Hunt, 144 Fed. 511; Weir v; Winnett, 155 Fed. 824; Borden -8 Condensed Milk i'177] PENDENCY OF ANOTHER SUIT 1011 jurisdiction is founded upon- difference of citizenship, although the suit was begun' in a State court where the first action was pending and was subsequently removed.^^ But it is usually a ground for a stay of its own proceedings by the Federal court, whtere the action in the State court was first instituted,** pro- Co. V. Baker, 177 Fed. 906, Chica- go, B. & Q. R. Co. V. Weilj 183 Fed. 956;, People's Gaslight & Coke Co., v. Cit7 of Chicago, 192 Fed. 398; Bixler v. Pennsylvania E. Co. v. Wil- led. 553; Ooihmisaion Co. v. Wil- liams, 211 Fed. 530; Rouiller v. A. & B. Schuster Co., 212 Fed. 348; City of JDronton, Ohio, v. Harrison Const. Co., C. C. A., 212 Fed. 353; Land v. Ferro-Concrete Const. Co., 221 Fed. 433; JJe Lassetot, G. C. A., 240 Fed. 325; Doane v. California Land Co., C. C. A., 243 Fed. 67; Jar- rett V. Halaey, C. C. A., 244 Fed. 392; knudsen v. First Trust & Sav- ings Bank, C. C. A., 245 Fed. 81; W. D. Reeves Lumber Co. v. Leav- enworth, C. C. A., 248 Fed. 686; Latham v. Chafee, 7 Fed. 520; White V. Whitman, 1 Cart. 494; Sharon v. HiU, 22 Fed. 28; Washburn & M. Mfg. Co. V. Scutt, 22 Fed. 710; Lor- ing V. Marsh, 2 Cliff. 322; Gordon v. Gilfoil, 99 IT. S. 168, 178, 25 L. ed. 383, 386; Creslcient City L. S. Co. y. Butchers' IT. L. S. Co., 12 Fed. 225; Dwight V. Cent. Vt. R. Co., 9 Fed. 785; North Muskegon v. Clark, C. C. A., 62 Fed. 694; Marshall v. Otto, 59 Fed. 249; Rejall v. Oreenhood, 60 Fed. 884; Short v. Hepburn, 75 Fed. 113; Shaw v. Lyman, 79 Fed. 2; Brooks v. Vermont Cent. R. Co., 14 Blatchf. 463, Fed. Gas. No. 1,964; Beekman v. Hudson River West Shore Ey. Go. 35 Fed. 3; Barber Asphalt Paving Co. v. Morris, C. C. A., 67 L.R.A. 761, 132 Fed. 945; Burk V. McCaffrey, 136 Fed. 696; Mankato v. Barber Asphalt Paving Co., C. C. A., 142 Fed. 329; Barns- dall V. Waltemeyer, 0. C. A., 142 Fed. 415; New York Cotton Exeh. V. Hunt, 144 Fed. 511; Weir v. Win- nett, 155 Fed. 824; Borden's Con- densed Milk Co. V. Baker, 177 Fed. 906; Chicago, B. & Q. E. Co. v. Weil, 183 Fed. 956; People's Gas- light & Coke Co., V. City of Chicago, 192 Fed. 398; Curlette v. Olds, 110 App. Div. (N. Y.) 596. The fact that a counter-claim was pleaded in the State court \vas held to make no difference in this respect. Burk v. McCaffrey, 136 Fed. 696. But see Gamble, ^f. San Diego, 79 Fed. 487, and swpra, § 57. Contra, Radford v. Folsom, 14 Fed. 97; Brooks v. Mills County, 4 Djll. 524; Lawrence v. Remington, 6 Biss. 44; Marks v. Marks, 75 Fed. 321; South Penn Oil Co. V. Miller, G. C. A., 175 Fed. 729. See Am. Confectionery Go. v. North British & Mercantile Ins. Co., 199 Fed. 195. , See D. E. Loewe Co. v. Lawlor, 130 Fed. 633; holding that an ac- tion, founded upon an act of Con- gress, against monopolies of Inter- state Commerce was not affected by a previous , suit in the State court for similar relief. il Land y. Ferro-Concrete Const. Co., 221 Fed. 433. 12 Foley V. Hartley, 72 Fed. 570; Zimmerman v. So Relle, C. C. A., 80 Fed. 417; Hughes v. Green, C. C. A., 84 Fed. 833; Green v. Under- wood, 86 Fed. 427. See Hughes v. Green, 75 Fed. 693; Benoist v. Smith, 191 Fed. 514. A State court 1012 ANSWERS [§ 177 vided that the parties to the two suits are the same.^' Not, however, when the suit in the court of the United States is brought to enforce a cause of action of which the Federal juris: diction is exclusive.^* , The effect of the pendency of another suit fBr the same cOT^e, in another court of the United States has never been expressly decided. : Where the suits sought to set aside the same judgment and to subject to the payment of the judgment land in different dis- tricts, it was held that the pendency of one did not affect the institution and prosecution of the other. ^* In such a case where, the parties are the same, the court, where the first suit was brought, might enjoin the prosecution of the other suit.^* This might also be done if the prior suit involved an adjudication upon the validity of the right to use a machine affected by the second suit; ^"^ )3ut not merely because the yalidity of the plaintiff's patent is attacked in another suit to enjoin the use of a different machine.^* Where the pendency of the former suit appeared on the face of the complaint it was held that it was waived when not raised by demurrer.^® A defense that another suit is pending, in which the com- plainant might obtain by cross-bill the relief now sought by him, is bad.*" refused to stay foreclosure proceed- Wheeler v. McCormick, 8 Blatchf . ings pending a prior suit to set aside 267; Steiger v. Heidelberger, 4 Fed. the mortgage, brought by a mort- 455; s. C, 18 Blatchf. 426; Brooks gagor in the Federal court in the v. Mills County, 4 Dill. 524, 527. same district, when it appeared that 14 Photo Drama Motion Picture the mortgagor was an attorney in Co. v. Social TJ. Film Corp. 213 Fed. the State courts, who founded his 374. suit upon a technical non-residence, 16 Boss v. Miller, C. C. A., 252 and there were circmnstanees which Fed. 697, 700. made it probable that the action 16 Electric Vehicle Co. v. Barney, was brought to hinder and delay the 143 Fed. 551. mortgagee. Curlette v. Olds, 110 IV Ibid. App. Div. (N. Y.) 596. See supra, 18 Ibid. § 57. , Contra, E. M. Rose & Co. v. 19 Kederiaktiebolaget Amie v. Uni- Southern Express Co., 223 Fed. 868; versal Transp. Co., C. C. A., 250 Woren v. Witherbee-Sherman & Co., Fed. 400. 240 Fed. 1013. 20 Washburn & M. Mfg. Co. v. 13 Kirkpatrick v. Eastern MUling Seutt, 22 Fed. 710. & Export Co., 135 Fed. 144. See I 177] PENDENCY OJ' A>fOTHEl{ SUIT 101^ ;A defense of lis pendens should, set; forth the commencement of the former suit, its general, nature, character, and. objects, wheth.er,it is at law or in; equity, thq, relief, pray e(i and how far, it ha,s. progressed;" it .should then; ayer specifically tha.t , the. second suit I i,s for the. same subject-matter ^^ ^g the first,, and s,^^ks the same or sim,ilar .rpligf ; ^ and |urthe]:;,| that the former suit is still pending.** - It must show that the defend,ant was served or has appeared in the former suit."* "For it is no suit depending, till the parties have appeared or been served to ap- pear, but, only a piece of parchment. thrown into the office, which may lie tiiere forever, and never come to a suit."*^ It, is not necessary .to me sufficiency of the plea that the former suit should be precisely between the sairie parties as the latter. For if a man institutes a suit, and afterwards sells part of the prop- erty in question to ^nothei?, who files an originJal bill tbuehmg the part so putchased by him, a plea of the former suit depend- iiig touching the whole property #ill hold.*' So where one parf- owner'of a ship filed a bill against the htisband for an account, and '^terwards the saHie part-owner and the rest of the owners fllfed a bill for the same purpose, the pendency of the first suit was Tield a good plea to the last'; ** for though the first bill was ihsufficient for ■ want of parties, yeit by the second bill the' de- fendant was doubly vexed for the'Salne cause. The course which the court hais taken in such case 'has been to dismiss the first bill, and to direct the defendant in the second cause to answer upon being paid the costs of the plea allowed.^ Where a former suit had been brought for a part, but not the whole, of the relief sought in the case at bar, the court held its pendency no defense, 21 Crescent City L. S. Co. v. 2B Moor. jv^ Welsh, ,C. Co., 1 Eq. Butchers' U. L. S. Co.,,12. Fed. 225: Gas. Abr, 39,,; pi. U; Story's Eq. Green v. Underwood, C. C. A., 86 ' PI., § 737. See Urlin v. Hudson, 1 Fed. 427; Foster v. Vassal; 3 Atk. Vern. 332; Mtford^s PI., ch. 2, § 2, 589i 590; Story's. Eq, PI., § 737.. ' part 2.^ 22Devie v. Lord Brownlow, 2 86 Ibid. Bi?k, 611; Mitford|B PL, ch. 2, §2, 27 Ibid, part 2; Story's Eq. PI., §.737. 28Durand .v. Hutchinson, Mich. :23-Behrens y. Sieveking, 2 Myl.,& 1771, in Cham : Cr. 602; Wheeler v. MeCormiek, 8 29Mitford's PI., eh. 2, §2 part 2, Blatehf. 267; Jenkins v. Eldridge, citing Crofts v. Wortlpy, 1 Ch. Cas. 3 Story 183; Story's Eq. PI., §737. 241. 24 The Haytian Republic, 57 Fed. 508, 512. 1014 ANSWERS [§ 1V8 but said that proceedings in it miglit be stayed until the determi- nation of the second suit.'' Where a second bill is brought by the same person for the same purpose', but in a different right, as where the executor of an administrator brought a bill ebriceiving himself to be the persbliai representative of the intestate, and afterwards procured administration 'de bonis 71)6%, and brought another bill, the pendency of the former bill is not a good plea.** The reason of this determihatioii seems to have been, that, the first bill being wholly irregular, the plaintiff could have no benefit from it, and it might have been dismissed upon demurrer. Pendency of a suit for a penalty because of the importation of a laborer under contract prevents the institution of a second suit for the same violation of the statute.'* Where a decree is, made upon a bill brought by a creditor on behalf of himself and aJl other creditors of the same person, and anpther creditor comes in befpre the master,, t^o take the benefit of the decree, and, proves his del^t, and then files a bill on behalf of himself and the other ci^editors, the defendants may plead the, pendency of the former suit; for a man coming in under a decree is quasi a party." '* The pendency of: a taxpayer's bill in , the same court was held to be a defense to a bill by other taxpayers for the same relief.'* . , The pendeney of a suit for the infringement of a, patent in one district is no bar to a suit against the same defendant 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 withiui its district if the defendant resides or has made a general appearance in the former.'* § 178. Defenses in bar. iDefenses in bar set up some reason founded on the substance of the case, why the plaintiff is not entitled to relief. They rest upon some master created by either statute, matter of record or matter in pais, which last term 30 Mass. Mut. L. I. Co. v. Chieag* citing upon last point. Neve v. Wes- & A. E. Co., 13 Fed. 857. ton, 3 Atk. 557. 31 Huggins V. York B. Co., 2 Atk. 84 Gamble v. San Diego, 79 Fed. 44. 487. 82U. S. V. Dwight Mfg. Co., 213 3B Wa«en Bros. Co. v. City of Fed. 522. Montgomery, 172 Fed. 414. 38 Mitford's PI. ch. 2, § 2, part 2, ' ■ ■ I 180] STATUTES pF LIMITATIONS 1015 signifies a matter of fact that is not of record, and is not given by statute special effect. § 179. Defenses of statutes. In general. Defenses founded upon matter' that is made a bar by statute rests upon the statute of limitations, the statute of frauds, or less frequently some other statute. An act of Congress ratifying the construction of an otherwise illegal structure willj if constitutional, abate a suit for an injunction against the further maintenance of the struc- ture, although riot set up by plea, answer, or demurrer.^ Congress has enacted statutes of limitations in certain civil and criminal cases. § 180. Statute of limitations to smts for infringement of patents. ' ' In any suit or action brought for the infringement of any patent, there shall be rib recovery of profits or damages 'for any infringement committed more than six years before the filing of the bill of coriiplairit or the issuing of the writ in such suit or action; and this provision sliall apply to existing causes of action."^ Less than six years' delay will rarely bar a suit to enjoin the infringement of a patent ; ^ although it may prevent interlocutory relief.' The fact that the owner of a patent per- mitted a suit for its infringement to be dismissed before trial without prejudice is not such la,ches as to bar a second suit against the same defendant when the (statutory period has not expired,* but a delay before suit by the owner of a patent, of seven,^ or of nine years,® after knowledge of an infringement was held to be such laches as to defeat him, although in the latter § 179. I The Clinton Bridge, 10 6 Hall v. Frank, 195 Fed. 946. In Wall. 454, 19 L. ed. 969. But see Layton Pure Food Co. v. Chureli & Grjffing V. Gibb, 2 Black, 519, 17 Dwight Co., C. C. A., 32 L.R.A. L. ed. 353 J Liverpool, N, Y. & P. S. (N.S.) 274, 182 Fed. 35, it was held S. Co. V. Comrs. of Emigration, 113 that a delay for the same period in IT. S. 33, 38, 28 L. ed. 899, 900. a trademark case did not deprive §180. 129 St. at L. 694. the complainant of the right to an 2 Ide V. Trorlicht, D. & N. Carpet injunction, although the accounting Co., C. C. A.J 115 Fed. 137, 147. must be limited to the time subse- s Infra, §§277, 294. . , quent to the commencement of the 4 Welsbach Light Co. v. Cohh, 181 suit. Fed. 123. ._ 6 General El. Co. V. Yost Electric Mfg. Co., 208 Fed. 719. 1016 ' ANSWERS [§'180a case he claimed that his p'artner in the ownership of the patent had prevented the previous institution of the litigation.''' ' A delay of six years withifaiilure to mark the patented articles was held to bar the owners claim for damages and claims, but not his right to an injunction although he had known of the infringement during the whole time." . Where the.- complainant' duly notified the defendant that the latter was infringing its trade-mark aild threatened suit, subse- quent delay for eight years was hfeld; to be no laches when- the defendant hadnot changed its position in consequence.* ,,i It has been held : that the Federal statute of limitations need not be pleaded to.bartthe collection of profits or damages for infringement of patents more thftu six years before the suit.' , § 180a. Statute of limitations tQ applicatioiis for patents. ''All applieatipns, for patents shall be compj^t^d ,wd, pi^eparpd for examination, withiij one year after tbe filing of the; applica- tion, and in default thereof, or upon failure of the applicant to prosecute the same within' one year after any, action therein, of which notice shall have been given to the applicant, they shall be regarded as abandoned by the partieis thereto, unless it be shown to the satisfactiou of the Coinmissioner of Patents that such delay Was unavoidable."^ It has been held that this reqiiires a bill in equity to corapel the issue of a patent, to be filed within one year after the refusal thereof.* "^ 'For laches • which will not bar a v. Innovation Electric Co., Inc., 234 suijti,|ojf.;3,n. accounting in patent Fed. 9^2; AUen v. Walka- & Gib- and trade mark cases. A. E. Hosier son, 235 Fed. 230, 233 ; Ashley v. & Co. V. Lurie, C. C. A., 209 Fed. Samue; C, Tatura Co., 2.40, Fed. 979; 364; Drum v. Turner, 219 Fed. 188 j o'. & Wi Thum Co. v, Dickinson, Closeis: '& Howard Mffe. Co.^ v. J.. I. 0. C, 'k., :245, Fed,' 609; Hills v, Case ThreshiJig Mach.' Co., '216 Fed. Hain'iiton .W^aich Co., 248 Fed. 4!99. 937. See Wm. A. Rogers, v. H. Q. 9 Meters v. Hanger, C. C. A., 127 Rogers Silver Co., 237 Fed. 887. ' Fed. 820; Johnson v. Roe, 1 Fed,. 8 Aunt Jemima Mills Co. v. Rig- 692; Et^ing v. '"'Marx's Ex'r, 4 FeA'. ney & Co., C. G. A.) 247 Fed. 407. 673. But see .Pratt v. Northam, 5 For laches which will defeat , a suit Mason, 95, for an aecountiiig in patent and § ISOa. 1 IT. S. E. S. §4894, as tradd mark cases, see : Valvoline amended 29 St, at L. 692, § 4, 5 Oil Co. V. Havoline Oil Co., 211 Fed. 'St. Ann: 488, Comp. St. 3384, Fed. 189; Wright's Automatic T. Pierce Fed. Code, §8760. P. Mach. Co. V. American T. Co., a Westingh.ouse El. & Mfg. Qo. 220 Fed.- 163; Vacuum Cleaner Co. v. Ohio Brass Co., 196 Fed! 518. ISOb] STATUTES OF LIMITATIONS TO COPYRIGHT SUITS 1017 ,^ §180b. S1^tute8,,fp|,,UiiuUtions to, copyright suits. The Copyright Act of Ma|:ch 4,. 1909 provic^ps: "That no criminal proceedings s,h.all be, maintained ^und^r, the provisions of. this Act unless, the same; eomBp,enced Fithiii ,three ye|ars after ,the; right of #jC!tion , arose," ^ : ., . ,;,-•, ,„ . .j , T^he IJey^se^- St^atutes proyide,: "No action ^ail, be maintairi,e4 in any case of forfeiture or penalty u,nder pie, copyright , layi, unless the same is commenced within two years after the cause 91, ^action, ha,s arisen. "* Whether this, ^ection is still in force has, not been decided. ^^ ,i ., ', • This statute does not apply ,to a bill in equity for an;injunction and damages,' nor to an action for , the statutory damages f or jthe violation of a dramatic copyright.* Actions at common la,w for damages under the copyright law are subject ;to the State statutes of limita.tions.* Suits, in equity for an injunction and damages or profits, are not subject to, any statutes of limitation.* They may, however, be barred by laches.' ,, ., , , When the statute imposing a penalty was in force each print- ing from plates created a new cause of action." Where w.ithiii a month after the decision of a Circuit Court of Ap- peals giving a narrow construction to a patent, the patentee 1 presenl!ed '. the matter to the Patent Office, and on the advice of that office filed in the court a petition for rehearing, and later a petition for writ oiE cer- tiorari, which ]p,tt6r , was denied fourteen months ' after the original decision. Seven months thereafter the patentee apjplied for a reissue of his patent with ' a written de- scription. Eeld^, that he was not guilty of such iaetes, as would in- validate his reissued pa,tent. Ash- ley V. Samuel C. tatum Co., 240 § 1801), 1'36 St. at L. 1075, § 39, Pierce Fed:' Code Supp., § 158£l;' ' ' 2U.'S. k S., §4968, ^ Fed. fet. Ann. 271, Pierce Fed. Code, § 8861. 8 Greene v. Bishop, 10. Fed. Cases 576, 1 Clifford 186. 4 Brady v. Daly, 175 U. . S. 148, 20 Sup. Ct. 62, 44 L. ed. 109. 5 Ibid, but see' § 181, i»i/ra. 6 See infra, § 181, Hale on Copy- right aujd Literary Property, 13 Coy- pus Juris. 1198. TTiiisley V. Lacy, 32 L. J, C,h. 535, 538; Eobinson v.' Wilkins, 8 Ves. Jr. 224; Piatt. y. Button, 19 Ves. Jr. 447 ; Campbell V. Scott, 11 Sim. 31, 34 Eng. 'ch. 31; Pit- man V. Hine, 1 T. L. E. 39; Eun- del V. Murray Jac. 311, 4 Eng. ph. 311; Bailey v. Taylor, 1 Euss & M. 73, ,5 Eng. Ch. 73, Taml. /2?5, 12 Eng. C!h. 295 ; Mawman v. 'i'egg, 2 eW 385, 3 Eng. Ch. 385; Bux- ton y. James, 5 De. G. ,& S(m. 80;^ Lewis V. Chapman, 3, Beav. 133,, 43 Eng. Ch. 133 ; Me.xborough v. Bower, 7 Beav. J27, 29 Eng. Ch. 127, Hogg V. Scott, L.'Ei, 'is, Eq. 144,. , ,, 8 West PubV Co., vi' EJdward Thompson Co., 176,' Fed. 833. 838. 1018 ANSWERS ' [§ 180c §180c. statute of limitations to vacation of patents for lands. The Act of March 3, lS9l, provides : "Suits by the United States to Vacate and annul any patent heretofore issued shall only be' brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only 'be brought within six years after the date of the issuance of such patents." ^ This statute applies to all suits by the Government to vacate and annul patents to public lands issued under any laws of the United States.* It is strictly a statute of liihitatiohs and does not create the right to maintain a suit to set aside a patent.' The lapse of the statutory period of time gives to the patent the same effect against the Uiiited States that it would have had if it had been originally valid.* The statute does not apply to suits by the United States pray- ing a decree that the patentees or their successors hold lands for the benefit of others.* Nor to suits brought on behalf of Indian tribes issued by mistake for lands witliin their reservations.' Nor to suits by the United States to cancel trust patents for allot- ments of reserved Indian la^ds.' Nor to suits to quiet the title to public land upon the ground that no patent thereto has ever been issued.* Nor to recover the value of lands, a patent to .which has been issued by mistake' or fraud,^" nor to recover damages for such a fraud.^^ 100 C. C. A., 303 [mod. 169 Fed. I'La Eogue v.' IT. S. 239 TJ. S. 833]. 62 affirming 198. Fed. 645. §180c. 1 Act of March 3, 1891, c. «U. 8.\. Lee Wilson & Co., 214 559, 26 St. at L. 1093. Fed. 630. aU. 8. V. Norria,' C. C. A., 222 9TT. S. v. Jones, 0. C. A., 242 Fed. 14. ■ Fed. 609 ; Union Coal & Coke Co. 3 TT. S. V. Koleno,' 226 Fed. 180. v. U. S., c; 0. A., 247 Fed. 106. 4U. 8. V. Chandler Dunbar Wa- 10 IT. 8. v. Whited & "Wheless, ter Pow. Co., 209 IT. 8. 447, 450, 246 U. S. 552, reversing C. C, A., 28 Sup. Ct. 579, 52 L. ed. 881; U. 232 Fed. 139; U. 8. v. Jones, C. C. 8. V. New Orleans Pac. Ey. Co., A., 242 Fed. 669. C. C. A., 235 Fed. 833, 837; U. 8. 11 U. 8. v. Jones, 218 Fed. 973; V. Whited & Wheless, C. C. A., 232 Bistline v. TT. S., C. C. A., 229 Fed. Fed. 139, reversed it: S- 546; Pitan v. U. 8., C. 0. A., 241 BU. S. V. Neyp Orleans Pac. By. Fed. 364. go., 248 IT. 8. 507, 518. 6 Northern Pac. Ey. Co. v. IT. 8., C. C. A., 191 Fed. 947. §180d] TIME FOR SUITS, ON OFFICIAL BONDS 1019 In case , of fraud the statyte is suspended until its discovery.'',^ The Govewment should, hpwey^r, alleged, and prove specific facts showing that its .failure to discover the ca^se of action within the statutory period, was due tPi concealment, by^ the ad- verse party or; because: tjie, fraud was of a spjf coiicealing nature and that the government was not guilty of .negligence, pr, want of diligence.*^ Running of ' the statute is stppped by, the filing of the hills to sf\t aside the patents. and the issue and delivery fpr service of, the subpoena provided the Government shows reason- able diligence in making service, pf the same thereof.^* The com- mencement of the suit against the patentee, does not suspend, the running of the limitations in favor of a prior grantee until he is made a party.^* Service of process, in S|aeh a suiti,agaiflist an individual, stops the irunning of thC; statute against a corporation which, M has secretly; formed, of which all the capital stock , is owned by him, and the existence of which was unknown to the officers of the.GpvernmeBit'^* §180d. Statute of limitations to s.uits upon official bonds. "If, upon the statement of the account of any official of the : . , 1 ; ,, ■,,',■ i . 1, i. ,,.(li' i' Jill ,'i premises were ignorant of the, f r,9,)i^ jintil and except , th^af^ in I^oveniber, 1916, a special ageiit of the,. Inte- rior Department filed a report on the entries! on which complaint is made. '• But the bill ' contains no s,tat,emejit pf tlie facts .fhis report revealed, of who , discovered them, when they were discovered or how or why the special", agent made the report, or of any other material facts tending to show- .,that the , ,lfI^o:wle^ge, of the ;(raud , coiilfl not have been discovered as wejl in ,1904 as in 1916." I4tini> &■ Lane. Timbei; Co., v. U. S., 236 U. S. 574. 15 U. S, y. Cooper, 217 Fed. 8^6; U. S'. V. Norris, C. C. A., 222, Fed. 14, where it was sought to bring in the grantee by an amended bill. See § 131 supra. 16 Linn & Lane Timber Co. v.. U. S., C- G. A., 196 Fed. 593. 12 Exploration Co. v. TJ. S., 247 V. S.. 435, afarming .q. ^g. A., 235, Fed. lio, ii: C, 225 i'ed.W. See' C. C. A., 203 Fed. 387, 190 Fed. 405; Linn & liane Timber Co. v. U. S., C. C. A., 203 :Fed. 394; TJ. 8. v. Southern Pac. qo,, 225 Fed. 197; tr. 8. v. Albright, 234 Fed. 202. 13 U. 8. V. Puget Sound T'r.Lt. & Power Co., 215 Fed. '436." For ca^es where it was held Uhat this was shown, see U. S. .v. Southern Pas. go., 225 Fed. 197; ; U., S. y. Booth-Kejly Lvimber, Co., 246 Fed. 970; TJ. S. V. Diamond Coal & Coke Co., G. C. A., 254 .Fed., 2a6, 267. ' ' There is no, material averm,ent in it of how and when the plaintiff first came to a knowledge,, of the matters alleged in, ,the bill. JThe averment on that subject fails to state any pertinent or ma,terial,fact except tjiat the plaintiff and allrits officers having authority in the 'i020 ANSWERS [§ 180e United States, or of any officer disbursing or chargeable with public money, by the accounting bffiderS of the Treasury, it shall thereby appear that he is indebted to 'the United States, and siiit therefor shall not be instituted within five years after such state- ment of said account, the sureties 6n^ his bond shall not be liable for such indebtedness."^ "No sii'it on a maii'shal's bond Shall be maintained unless it is commenced withifl ' six years after the right of action accrues, saving, nevertheless, the rights of infants, married women, and iWsane persons, so that they sue within three years after their disabilities are removed."* ■ '' n "If on the settlement of the account of any'postmEister it shall appear that he is indebted to' the United States, and suit therefor shall not be instituted within three years after the close of such account, the sureties on his bond shall not be liable for such in- debtedness."^ The bankruptcy law provides: "Suits 'upon referees' bonds shall not be hrought subsequent to two years after the alleged breach of Eond."* "Suits upon trustees' bonds shall not be brought subsequent to two years after the estate has been closed."* ' ' ^ ' ' '' § 180e. Statute of limitations to suits on contractors' bonds. Actions by laborers a,nd materialmen upon bonds given to the United States by contractors for the construction or repair of public buildings and public works "shall not be commenced until after the complete performance of said contract and 'final settlement thereof, and shall be conimenced within one year after'the performance and final settlemgiit of said contract, an^ not later."^ The preceding language of this' statute forbids the commencement of such a suit by a laborer or materialman until six months after "the completion and final settlement of the contract."* During that period, the United States alone can § 180d. 1 25 St. at L. 387, Comp. St. § 9634, see vnfra; i§ 642, 654. St., § 3292. § 180e. 1 Act of August 13, 1894, 2 tr. S. E. S., § 3838, Comp. St. ch. 280, 28 St. at L. 278, Comp. § 7197. St. 1901, p. 2523, as aniendefl by 8U. S. E. S. 786, Comp. St. Act of Tebruary 24, 1905, ch. 778, n.310; supra, §3.3. .33 St. at L. 811, Comp. St. Supp. *See infra, §638. 1909, p. 948. See § 5a, m'^ra. 8 Act of July 1, 1898, ch. 541, Zlbid. Stitzer v. U. 8., C. C. A., S50; 30 St. at L. 558, Comp. 182 Ted. 513, 516, § 180e] TIME FOR SUITS ON CONTRACTORS ' BONDS 1021 sue, although the creditors have the right' to intervene in a suit brought by the United States.' The work must not only be com- pleitedj but there must be a final settlement of the ijontract. So long as the matter is under consideration by the Department and the final ;payment has not been made, the contract has not been finally settled* The guarantee by the contractor to keep the work and iriaterials in repair for a year after completion and ac- ceptance,* the retainer by the United States of five per cent of the contract price for! a year after such acceptance,® the retainer by the- United States qf part of the contract price to cover the co^t of coflipleting part pftjie work, the balance to be paid after the, completion,' and thp refusal of the contractor to agree to the ;se^ttlement made by the department;' do not postpone the run- ning of the six months. The limitation of the time to sue is .the same ,in case of the original plaintiff and an intervener.' It has been held that this statute of limitations is a con- dition to the cause of action granted by the statute ^' and consequently need not be pleaded; ^^ and that so much of tJie statute as requires notice to all known creditors and publication of the commencement of the action need not be com- plied with within this period of time ; ^* and that the commence- ment of an action upon such a bond in a State court, which had no jurisdiction of the same, does not extend the statutory period.^' The action is not begun until a summons or suhpoena or writ is issued although the plaintiff's pleading was previously filfedl** SU. S. V. Winkler, 162 Fed. 397; 10 Illinois Surety Co. v. TJ.- S., Title Guaraiity & Trust Co. v. Puget 240 TJ. S. 414. See XT. S. for the Sound Engine Works, C. C. A., 163 benefit of Starrett-Pields Co. v. Fed. 168, 89 C. C. A., 618; IT. S. Massachusetts Bonding & Ins. Co., V. McGee, 171 Fed. 209; Stitzer v. 215 Fed.'241. U. S., 0. C. A., 182 Fed. 513, 516. H U. S. ex rel. Texas Portland ' 4 Stitzer V. TJ. S., C. G. A., 182 Cement Co. v. MeCord, 233 TJ. S. Fed. 518, 517. ' 157 ; Baker Contract Co. v. TJ. S., 5TJ. S. V. Ill; Surety Co., 195 Fed. C. C. A., 204 Fed. 390; Stitzfer v. 306. ' IT. S., C. C. A., 182 Fed. 513, 516. 6 Ibid. , 12TJ. S. V. United Surety Co.; 192 7 Robinson v. TT. S., C. C. A., 251 Fed. 992. Fed. 461, 464. 13 TJ. S. v. Boomer, C. C. A., 183 8 Ibid. Fed. 726. SPederson v. United States, C. 14 U. S. v. Scheuvman, 218 Fed. C, A., 355 Fed. 622. 915. 1022 ANSWERS [§ 180f The premature commencement of an action by one of the claim- ants before the six months have expired does not tolj; the. stat- ute." When the suit was duly begun, the plaintiff's pleading may be amended after the statutory period has expired provided the amendment states no new cause of action.^* But if the suit was prematurely brought, a petition for intel-vention by- another creditor filed within the prescribed time does not toll the statute, nor can the bill be amended after the period of limitation has expired.^'' An amendment substituting for the surety a com- pany which had succeeded to its business and assumed its liabil- ity cannot be made after the statutory term has expired.^* The statute does not liihit the time within which creditors can inter- vene in a suit brought by the United States; ^* nor the time tor service or publication of notice on the creditors.''" § 180f . Statute of limitations to claims against the United States. "Every claim against the United States, cognizable by the Court of Claims, shall be forever barred unless the peti- tion setting forth a statement thereof is filed in the court, or transmitted to it by the Secretary of the Senate or the Clerk of the House of Representatives as provided by law, within six years after the claim first accrues : 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 claims shall not be barred if the petition be filed in the court or transmitted, as aforesaid 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 IBU. S. ex rel. Texas Portland 18 IT. 8. v. Scheurman, 218 Ped. Cement Co. v. McCord, 233 V. 8. 915. 157. 19 U. 8. V. Marsha, 225 Fed. 687. 16 Bankers ' Surety Co. v. Town 20 TJ. S. for the use of Alexander of Holly, 219 Fed. 96; Illinois Sure- - Bryan Co. v. N. Y. Steam Fitting ty Co. V. U. S., C. C. A., 215 Fed. Co., 235 V. 8. 327; U. S. for. the 334. See infra, S 211. use of Pittsburgh Planing Mill Co. 1717. 8. ex rel. Texas Portland v. Scheurman, 218 Fed. 915;,Ver- Cement Co. v. McCord, 233 U. 8. mont Marble Co. v. National Surety 157. Co., C. C. A., 213 Fed. 439. § 180f ] STATUTES OF LIMITATIONS TO GOVERNMENT CLAIMS 1023 operate eumulati-vely. " ^ A similar statute regulates suits against the United States in the District Courts." * The Act of March 17, 1883, as subsequently amended author- ized the payment in certain cases of the claims of postmasters for the loss of money, stationery and postal savings certificates be- longing to the United States and their possessions provides ' ' That this Act shall not embrace any claim for losses as aforesaid which accrues more than four years prior to the date of approval of Act; and aU such claims must be presented within six months after such, date, and no claim for losses which hereafter accrue shall be allowed unless presented within six months from the time the^loss occurred. ' ' * "All claims for the refunding of any internal tax alleged to have been erroneously or illegally assessed or collected or any penalty alleged to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrong- fully collected, must be presented to the Commissioner of In- ternal Revenue within two years next after the cause of action accrued: Provided, That claims which accrued prior to June sixth, eighteen hundred and seventy-two, may be presented to the Commissioner at any time within one year from said date. But nothing in this section shall be construed to revive any right of action which was already barred by any statute on that date. ' ' * The Act of October 6, 1912, for the reimbursement of officers and enlisted men for loss or destruction of, or damage to their personal property and effects in the Naval Service, due to the operation of the war, or by shipwreck or other marine disaster contains the following provision : ' ' That all claims now existing under this Act shall be presented within two years from the pas- sage hereof and not thereafter; and all such claims hereafter § 180f. 1 U. S. E. S., i 1069, June II, 1896, e. 424, 29 St. at L. Pierce's Fed. Code, §7798, 2 Fed. 458, and Jan. 21, 1914, c. 12, §1, St. Ann. 65. See chapter on Court 38 St. at L. 279, Comp. St. § 7211. of Claims, infra. See TJ. S. v. Smythe, C. C. A., 107 2Jud. Code, §24, subd. 20, 36 Fed. 376, affirming 120 Fed. 30; St. at L: 1087. Henderson v. U. S., 42 Ct. CI. 449, 8 Act of March 17, 1882, c. 41, 18 Op. A. G. 369, 20 Op. A. 6. 315. § 1, 22 St. at L. 29, amended May 4 U. S. R. S., § 3228, Comp. St. 9, 1888, c. 231, § 1, 25 St.. at L. 135, § 5951. 1024 ANSWERS [§ 18,0f arising shall be presented within two years from the. occurrence of the loss, destruction or damage. " * , ; ; ; The act for the reimbursement of qfficers, enlistpd men, and members of the Nurse Corps of the Army for the loss of prop- erty in the military service since April 5, 1917, requires the presentation of such a claim within one year from the time that it accrued and within six months after peace is established!*' , The Act of March 29, 1918, which directs the deposit of money and sale of other property belonging to deceased persons in the Naval Service which have" not been claimed provides : ' ' Tha;t claims may be presented hereunder at aiiy time within Ave years after such moneys or proceeds- have been so deposited in "the Treasury and, when supported by competent proof in any case after such deposit in the Treasury, shall be certified to Congress for consideration."^ . r, The Act of October 6, 1917, amending the Act of September 2, 1914, concerning compensation for death or disability contracted in the line of duty by commanding officers or enlisted men, or by women who are members of the Army Nurse Corps or the Navy Nurse Corps, when employed in active service, provides: t'No compensation shall be. payable unless a claim therefor be filed, in ease of disability, within five years after discharge or resig- nation from the service, or, in case of death during service, with- iiU five years after such death is officially recorded in the depart- ment under which he may be serving : Provided, however, That where compensation is payable for death or disability occurring after discharge or resignation from the service, claim must be made within five years after such death or beginning of such disability. The time herein provided may be extended by the director hot to exceed one year for a good cause shown. If at the time that any right accrues to any person under the pro- visions of this article, such person is a minor, or is of unsound mind or physically unable to make a claim, the time herein pro- vided shall not begin to run until such disability ceases.'' No oompensatiort shall be payable for any period more than two B Ch. »5, 40 St. at L. 389, Comp. 7 § 309,. added, Oetpber 6, 1917, St. § 2869a. ch. 105, § 2, 40 St. at L. 407, Oomp. BaThe Act of March 28, 1918, St. §.-514.,. ' , ch. 28, 40 St. at L. 6 Ch. 31, 40 St. at L., Oomp. St. § 2980a. § 180g] TIME FOR INTERSTATE COMMERCE CASES 1025 years prior , to the date of claim therefor, nor shall increased compensation be awarded to revert back more than one year prior to the dat6 therefor.* - « "That the Act approved January twenty-first, nineteen hun- dred and fourteen, authorizing the Postmaster General to adjust certain claims of postmasters for loss by burglary, fire or other unavoidable casualty, be so amended as to include United States War' Sayings Certificate Stamps, United States Government Thrift Stamps, War tax revenue stamps, and funds received from the sale of such stamps: Provided, that this Act shall not embrace any claim for losses as aforesaid which accrued prior to September twenty-fourth, nineteen hundred and seventeen, and all such claims must be presented, within six months from the time the loss occurred. " ' Statutes creating claims against the United States usually also prescribe of limitation for suits thereunder.^" a §180|^, Statute of limitations to Interstate Commerce cases. By the Interstate Commerce Act as provides concerning claims thereunder against Eailroad Companies: "AU actions at law by jeai^rj^rs subject to this Act for recovery of their charges, or any part thereof, shall be begun within three years from the time ,th& cause of action accrues, and not after. All com- plaints for the recovery of damages shall be filed with the Comr mission within two years from the time the cause of action accrues,, and not after, unless the carrier, after the expiration of such two years or within ninety days before such expira- tion begins an action for recovery of charges in respect of the same service in which case such period for two years shall be extended to and including ninety days from the time such ac- 8 § 310, added, October 6, 1917, loss of horses and equipments dur- ck. 105, § 2, 40 St. at L. 408, Comp. ing the Ciyil War approved June St. § 514t. E. G. The Indian De- 22, 1874; ch. 395, § 2, 18 St. at L. predations Act of March 3, 1891, 193, Comp. St. 6391; Jan. 9, 1883, 26 St. at L. 851, § 2, 2 Fed. St. ch. 15, § 1, 22 St. at L. 401, Comp. Ann. 91, Comp. St. 758, Pierce's St. i§ 6393, 6394. August 13, 1888, Fed. Code, § 7845 ; The French ch. 868, § 2, 25 St. at L. 437, Comp. Spoliations Act of January 20, St. § 6395. For collecting, drilling, 1885, 23 St. at L. 283, § 6, 2 Fed. or organizing volunteers for the Civil St. Ann,. 88, Pierce's Fed. Code, War, TJ. E. S., §3489, Comp St. § 7863. § 6402. For loss and destruction of »Act of July 2, 1918, e. 117, property belonging to oflieers and § 2, 40 ,St, at L., Comp. St. § 7211a. enlisted men in the Civil War, Act 10 The Acts authorizing claims for of March 3, 1885, ch. 335, 23 St. Fed. Prae. Vol. 1—65 1026 ANSWERS [§ 180h tion by the Carrier is begun. In either case the cause of action in respect of a shipment of property shall, for the purpose of this section, be deemed to accrue upon delivery or tender of delivery thereof by the carrier, and not after. A petition for the enforcement of an order for the payment of money shall be filed in the District Court or State court within one year from the date of the order, and not after." ^ This limitation applies to actions to recover damages for a discrimination against a shipper.^ Such acts are not subject to the statute regulating the time for suits to enforce penalties;' This statute need not be pleaded by the defendant.* The State statute applies to an action by a carrier to recover unpaid freight on interstate shipments)* which when there is a bill of lading must be presumed to be based on such bill * and to an action by a carrier to recover the amount of an under charge upon such a shipments' § 180h. Statute of limitations against causes of action arising while carriers were under Federal control. By the Act of February 28, 1920: "Actions at law, suits in equity and proceedings in admiralty, based on causes of action arising out of the possession, use, or operation by the President of the Railroad or system Of transportation of any carrier (under the provisions of the Federal Control Act, or of the Act of August 29, 1916) of such character as prior to the Federal control could have been brought against such car- at L. 350, Comp. St. 6403, Act of sion (jo., 246 TJ. S. 638. See sv,pra, March 4, 1915, ci. 143, § 1, 38 St. §§ 33a, 151. at L. 1077, Comp. St. § 6403a: 3 Meeker v. Lehigh Valley B. B. § 180g. lAct of Feb. 4, 1887, e. Co., 236 U. S. 412, overruling Car- 104, § 16, 24 St. at L. 384, 1901, ter v. New Orleans, C. C. A., 143 as amended by Acts of June 29, Fed. 99. 1906, c. 3591, § 5, 34 St. at L. 590, 4 U. S. ex rel. Louisville Cement June 18, 1910, ch. 309, 36 St. at L. Co. v. Interstate Commerce Com- 5.54, Feb. 28, 1920, §§423, 429; mission, 246 U. S. 638; Missouri Morrisdale Coal Co. v. Penna. E. K. Pac. E. E. Co. v. C. Ferguson Saw- Co., 230 tr. S. 304; Meeker & Co. v. mill Co., C. C. A., 237 Fed.' 483. Lehigh Valley E. E. Co., 236 U. S. B Chicago & N. W. By. C6. v. Zie- 412, affirming Lehigh Valley E. R. barth, C. C. A., 245 Fed. 334; N. Co. V. Meeker, C. C. A., 211 Fed. Y. Cent. R. Co. v. Mutual Orange 785; A. J. Phillips Co. v. Grand Distributors, 251 Fed. 230: Trunk Western Ey. Co., 236 TJ. S. 6 Ibid. 662, s. c., C. C. A., 195 Fed. 12. 7 Chicago & N. "W. Ey. Co. v. Zie- 2U. S. ex rel. Louisville Cement barth, C. C. A.., 245 Fed. 334. Co. V. Interstate Commerce Commis- § 180k] TIME FOR SUITS UNDER REVENUE LAWS 1027 rier, may, after the termination of Federal control, be brought against an agent designated by the President for such purpose, which agent shall be designated by the President within thirty days after the passage of this Act. Such actions, suits, or pro- ceedings may, within the periods of limitation now prescribed by State or Federal statutes but not later than two years from the date of the passage of this Act, be brought in any court which but for Federal control ' would have had jurisdiction of the cause of action had it arisen against such carrier.'' ^ § 180i. Statute of limitations to suits to enforce orders of the United States Shipping Board. The Act' of Sept. 7, 1916, which created the United States Ship- ping Board, provides that "No petition or suit for the enforce- ment of an order for the payment of money shall be maintained unless filed within one year from the date of the order. ' ' ^* §180j. The Employers' Liability Act which applies to com- mon carriers by railroads, interstate or foreign commerce pro- vides: "No action shall be maintained under this att unless commenced within two years from the day the cause of action accrued."* §180k. Statute of limitations to suits under Internal Kev- eime Laws. "No suit shall be maintained in any court for the recovery of any internal tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority, or of any sum alleged , to have been excessive or in any manner wrongfully collected, until appeal shall have been duly made to the Commissioner of Inter- nal Revenue, according to the provisions of law -in that revenue, according to the provisions of law in that regard, and the regu- lations of the Secretary of the Treasury established in pursuance thereof, and a decision of the commissioner has been had therein : Provided, That if such decision is delayed more than six months from the date of such appeal, then the said suit may be brougi without first having a decision of the commissioner at any time within the period limited in the next section." * § 180h. 1 Act' of Feb. 28, 1920, § 180j. 1 Act of April 22, 1908, §206. Ch. 149, §6, 35 St. at L. 66, § 180i. 1» Act of Sept. 7, 1916, amended April 5, 1910, Ch. 143, Ch. 451, § 3, 39 St. at L. 737, Comp. § 1, 36 St. at L. 291. St. §81460. nSOk. ITJ. S. R. S., §3226,' 1028 ANSWEES [§;180k "No suit or proceeding for the recovery of any interns,! tax alleged to have been erroneously or illegally assessed or collected, or of any penalty alleged to have been collected without author- ity, or of any sum alleged to have been excessive or in any man- ner wrongfully collected shall be maintained in any court, unless the same is brought within two years next after the cause of action accrued: Provided, That actions for such; claims which accrued prior to June sixth, eighteen hundred and seventy-two, may be brought within one year from said: date ; and that where any such claim was pending before the commissioner as pro- vided in the preceding section, an action which was already barred by any statute on the said date shall be revived by this section."* :' This statute applies to taxes upon inheritance,' excise taxes * income taxes under the Act of 1913,* and to other taxes which are not imposed upon imports.® Such a suit is brought when' the summons is issued although it is served after the period has-,e?;- pired.'' When Congress has directed a refund of taxes previously in the Court of Claims. will govern.' It does ,i;iot apply, to defense of illegality or irregularity in the assessment jset up in a suit by the government to collect the tax,' feut if thejplaijpis were presented to the commissioner before the enact|r).e;n| they need not be again presented.^" The statute does not require an appeal to the commissioner , before an action against| , the collector for trespass in collecting the tax.^^ When an appeal is taken from the assessment, there is no need of a second appeal, after the payment,^^ but if a second amended Act of Feb. 27, 1877, Ch. 9 Clinkenbard v. U. S., 21 Wallace 69, § 1, 19 St. at L. 248, Comp. St. 68, § 7, 22 L. ed. 477. § 5949. 10 Ibid. 2 TJ. S. K. S., § 3227, Comp. St. H Erskine v. Hohback, 14 Wall. §5950. 613; 20 Fed. 745. But see Coblens 3 Band v. U. S., 249 V. S. 503. v. Able, Fed. Cas. 2926. 4 Public Service El. Co. v. Herold, IZ San Francisco Savings & Lpans 227 Fed. 491. Society v. Gary, Fed. Cas. 12, 317; B Dodge V. Osborn, 240 TJ. S. 118, Schwarzchild & Sulzberger Co. v. 36 Sup. Ct. 275. Eucher, 143 Fed. 656; Weaver v; 6 N. Y. Mail & Newspaper Transp. Ewers, C. C. A., 195 Fed. 247, af- Co. V. Anderson, 234 Fed. 590. firming 182 Fed. 713. Contra, Hast- 7 Mill Creek & Minehill Nav. & ings v. Herold, 184 Fed. 759, 240 E. Co. V. TJ. S., 246 Fed. 1013. U. S. 118. 8 Sage V. TJ, S., 250 TJ. S. 33. §1801] TIME FOR SUITS TO RECOVER USURY 1029 assessment is made the statute runs from the decision for such new assessment unless a second appeal is taken.^^ Delivery of an appeal to the collector for transmission to the Com- missioner as required by the regulations of the Treasury De- partment is the due making of a presentation of the appeal." A written application to the Commissioner for the refund of money spent in buying revenue stamps is not equivalent to taking such an appeal.^" The decision which starts the running of the time is a decision on the merits. A dismissal of an appeal for the irregularity of the papers does not start the running of the time, if a second appeal is duly taken.^^ When the decision is delayed, the tax- payer has the option to sue at once or to await the decision." It has been held that he may then await more than two years and six months after taking his appeal if the decision is delayed dur- ing such time ; i' but there are decisions to the contrary.^* This Act is not merely a Statute of Limitations but it pre- scribes a condition precedent, which is not waived by the defend- ant's failure to plead it.*" "Where an appeal on file in the Treas- ury Department was '' endorsed, examined, and rejected Sept. 8, 1868, by J. Dilled," and it did not appear which office he held or that his' ruling had not been accepted by the commissioner ; it was held by the Court of Claims that there was no proof of any decision.*^ § 180 1. Statute of limitations to suits to recover usury. "The taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section, when know- ingly done, shall be deemed a forfeiture of the entire interest lSC!heatham y. V. S., 92 TT.- S. Hicks v. James' Adm'x, 48 Fed. 85, 35 L. ed. 561, Comp. St., § 5949. 542; Merck v. Treat, C. C. A., 174 14 tJ. S. V. Real Estate Savings Fed. 388. Bank, 104 U. S. 728, 734, 26 L. ed. 18 Merck v. Treat, C. 0. A., 174 908. Fed. 388. 15 Ohesebrough v. U. 5., 192 TJ. 19 Christie Str. Commission Co. v. S. 253, 48 L. ed. 432, 24 Sup. Ct. IT. S., 126 Fed. 991, s. c, 129 Fed. 262, Comp. St. § 5949. 506, affirming D. C. C. A., 136 Fed. 16 James v. Hicks, 110 U. S. 272, 656; Sehwaizehild & Sulzberger Co. 4 Sup. Ct. 6, 28 L. ed. 144, Comp. v. Eucher, 143 Fed. 656. St. § 5949. 20 Bubarry v. Dunn, 162 Fed. 961. 17 James v. Hicks, 110 U. S. 272, 21Lauer v. TT. S., 5 Ct. CI. 447. 4 Sup. Ct. 6, 28 L. ed. 144, affirming See Hubbard v. Kelly, 8 W. Va. 46. 1030 ANSWEGJS [§ 18:0m which the note, bill, or other evidence of debt , .carries with it, or wihich has been agreed to be paid thereon. In case the greater rate on interest has been paid, the person by whom it has been paad, or his legal representatives, may recover back in an action in the nature of an action of debt, twice the amount of the inter- est thus paid from the association taking or receiving the same; provided such action is commenced within two years,, from the time the usurious transaction occurred. The suits, actions and proceedings against any association under this title may be had in any circuit, district or territorial court- of the United States held within the district in which such, association may be estab- lished, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar eases. ' ' ^ The time begins to run from the date of the payment of the usurious interest and not from the date of pay- ment of the debt,^ nor from the date when, a renewal note is given which includes the usurious interest aspi^incipal,' nor, it has been held, from the time of discounting a note, and deducting the usurious interest from the payment by the discounter.* A part payment by the debtor in absence of special circumstances ■n^ill he presumed to be niade on account of interest and to start the statijte running.^ Usurious interest, paid more than two years before an action to collect the debt was brought cannot be credited upon the princi- pal.^ § ISOm. Statute of limitations to suits for penalties or for- feitures. The Revised Statutes provides : "No suit or prosecution for any penalty or forfeiture, pe- §1801. lU. S. E. S., §5198, man's assignee, 111 Ky. 206, 63 amended Act of Feb. 18, 1875, eh. S. .W. 454, 56 L. K. A. 673. Oon- 80, § 1, 18 St. at L. 320, Comp. St. tra, Bobo v. People's Nat. Bank, 92 § 9759. Tenn. 444, 21 8. W. 888, Comp. St. 2 McCarthy v. First National §9759. Bank, 223 TJ. S. 493, 32 Sup. Ct. B Louisville Trust Co. v. Kentucky 240, 56 L. ed. 523. But see Dun- Nat. Bank, 102 Fed. 442, Comp. St. can V. First Nat. Bank, 26 Pitsb. §9759. Leg. J. 129, Fed Cas. 4135, Comp. 6 Bank of Madison v. Davis, Fed. St. § 9795. Cas. 10,038, Comp. St. § 9759. 8 Bank of Daingerfield v. ,Eag- Petersborough Nat. Bank v. Childs, land, 181 U. S. 45, Sup. Ct. 536, 133 Mass. 249, Sup. Ct.' 130, Mass. 45 L. ed. 738, Comp. St. § 9759. 599, Comp. St. § 9759. 4 Citizen 's National Bank v. For- § 180m] TIME TO SUE FOR PENALTIES AND FORFEITURES 1031 cuniary or otherwise, accruing under the laws of the United States, shall be maintained, except in cases where it is other- wise specially provided, unless the same is commenced within five years from the time when the penalty or forfeiture ac- crued." ^ It has been held that this applies to suits to recover penalties for importing contract laborers.^ "No suit or proceeding for the recovery of any internal tax alleged to have been erroneously or illegally assessed or collected, or of any penalty alleged to have been collected without author- ity, or of any sum allpge.d to have been excessive or in any man- ner wrongfully coUeetedj shall be maintained in any court, un- less the same is brought within two years next after the cause of action accrued: Provided, That actions for such claims which accrued prior to June six, eighteen hundred and seventy-two, may be brought within one year from] said date; and that where any such claim was pending before the Commissioner, as pro- vided in the preceding section, aii action therein may be brought within one year after such decision and not after. But no right of action which was already barred by any statute on the said date shall be revived by this section."' Whether an action is for a penalty or forfeiture depends upon the character of the liability sought to be enforced. If brought to recover compensation for a loss sustained by the plaintiff it is not ; but if the sum claimed has no relation to such a loss but is arbitrarily exacted for some act or omission of defendant, the action is penal.* With the exception of the copyright law, the limitations as to suits for penalties accruing under the laws of the United States relate to punitive penalties for infractions of public law and not to liabilities imposed to redress a private injury even when, the wrongful act is punishable as a crime.* This limitation does not apply to an action for damages to an individual which is authorized by the act to regulate commerce.* §180m. ITJ. S. R. S., §1047, 5U. S. E. S., §§ 5508, , 5509; Comp. St. 1901, p. 727. O 'SuUivan v. Felix, 233 XJ. S. 318. Sir. S. V. Dwight Mfg. Co., 213 6 Meeker v. Lehigh Valley E. B. Fed. 522. Co., 236 TJ. S. 412, overruling Car- SU. S. E. S., §3227, Comp. St., ter v. New Orleans, C. C. A., 143 § 5950; see supra, §§ 96e-96g. Fed. 99. ^ 4 Meeker v. Lehigh Valley B. E. Co., 236 TJ. S. 412. 1032 ANSWERS [§ ISOm These statutes do not apply to indictments for crimes punish- able by imprisonment ; ' nor to suits to cover the penal sums named in bonds.* They do not apply to penalties or forfeitures imposed by the Custom Laws.* These are governed by the stat-' utes subsequently quoted.^" Nor to actions to recover interest upon internal revenue taxes. ^^ Nor to recover damages uhden the Antitrust Laws.^^ These are governed by the State stat- utes.^' Nor to an action for a conspiracy to defraud the United States.^* Nor to suits to recover from bank officers damages for ' breach of their official dnty.^^ Nor to suits under the Civil Rights Laws for assaults committed to prevent the plaintiff from voting. 1* It has been doubted, whether it applies to any suits which are not brought by the United States.^''' The statute applies to actions in personam and in rem,^^ to suits for the penalty of importing contract labor. ^' Fraudulent' concealment of the cause of action does not extend the time;** The statutory provision iniposing a penalty for the presen- tation of false claims against the government of the United States, or on a department or officer, thereof with knowledge that the claim is false or fictitious provides that "every such suit shall be commenced within six years from the commission of the act, and not afterward."*^ " 7 U. S. V. Brown, Fed. Cas. 14,665, U. 8. 705, 18 Sup. Ct. 947,,, ^2 L., Comp. St. § 1712. ed. 1217; National Bank, of Com- 8 Eaymond v. U. S., Fed. Gas. merce v. Wade, 84 Fed. 15, Comp. 11,596, Comp. St. §1712. St. § 1712. 9U. S. V. Witterman, 0. C. A., leO'SuUivan v. Felix, 233 U. S. 152 Fed. 377, Comp. St. § 1712. 318, 34 Sup. Ct. 596, 58 L. ed. 980, 10 Ibid. See Lansterg, Fed. Cas. Comp. St. § 1712. ., .; 8,041, Comp. St. § 1712. 17 Atlanta v. Chattanooga ,Foun- 11 U. S. V. Guest, C. C. A., 143 dry & Pipe Co., 101 Fed. 900, 904J Fed. 456, 457, Sup. Ct., C. C. A., affirmed on another point, C. C. A.J 150 Fed. 21. Ct. 65, 51 L. ed. 241, Comp. St. 12 Chattanooga Foundry & Pipe 807, 810, Comp. St. § 1712. , i Works V. Atlanta, 203 U. S. 390, 18 Hatch v. The Boston, 3 Fed. 27 Sup. Ct. 65, 51 L. ed. 241, af- 807, 810, Comp. St., § 1712.^ flrming C. C. A., 127 Fed. 23, 28, 19 U. S. v. Bannister, 70 Fed. 64 L. E. A. 721, which also affirmed 44, 45; TJ. S. v. Drought M. F. G. 101 Fed. 900, 904, Comp. St. § 1712. Co., 210 Fed. 779. See Comp. St. 18 Ibid, Comp. St. § 1712. § 1712. 14 U. S. V. Owen, 32 Fed. 534, 20 U. S. v. Maillard, Fed. Cas. Comp. St. § 1712. 15,709, Comp. St. § 1712. ' 15 Stearns v. Lawrence, C. C. A., 21 Rev. St., §3494, Coniio. St. 83 Fed. 738, 741. Certiorari, 170 §6415. § 180m] TIME TO SUE FOB PENALTIES AND FORFEITURES 1033 An early statute provides : "That no suit or action to recover any pecuniary penalty or forfeiture of property accruing under the customs revenue laws of the United States shall be instituted unless such suit or action shall be commenced within three years after the time when such penalty or forfeiture shall have ac- crued : provided, that the time of the absence from the United States of the person subject to such penalty or forfeiture, or of any concealment or absence of the property, shall not be reck- oned within this period of limitation. " ^^ It was held : that this statute was in force in, 1907 and that it applied to a suit brought under the Customs Administrative Act of June 10, 1890,^^ for the forfeiture of property,** and to an action by the United States upon a bond given by an importing agent for failure to comply' with the Customs Laws.** When the importer of a violin kept it in his drawing room and used it there at concerts, it was held that there was no concealment which extended the time.*® The Revised Statutes provide: "No action shall be main- tained in any case of forfeiture or penalty under the copyright laws, unless the same is commenced within two years after the cause of action has arisen."*' Whether this section is still in ;force has not been decided.** The Act for the Protection of Merchant Seamen provides: "fAll penalties and forfeitures imposed by this Title, for the r^covery whereof no specific mode is hereinbefore provided, may be recovered, with the costs, in any circuit court of the United States, or at the suit of any district attorney of the United States or at the suit of any person by information to any district at- torney in any port of the United States where or near to where the offense is committed or the offender is found; and if a con- viction is had, and the sum imposed as a penalty by the court is not paid either immediately after the conviction or within such 22 Act of June 22, 1874, oh. 391, 26 tJ. S. v. One Stradivarius Kies- 18 St. at L. 190, Comp. St. § 1713, wetter Violin, C. C. A., 197 Fed. 157, p. 727. aflBrming 188 Fed. 542. 23 26 St. at L. 135. * 27 TJ. S. R. S., § 4968, 2 Fed. St. 21 U. S. V. Whittemann, C. C. A., Ann. 271, Pierce Fed. Code, § 8861. 152 Fed. 377. 28 See supra, § 180b. 26 U. S. V. Joles, 251 Fed. 417. 1034 ANSWERS [§ 180n period as the court at the time of the conviction appoints, it shall be lawful for the court to commit the offender to prison, there to be imprisoned for the term hereinbefore provided in case of such offense, the commitment to be terminable upon payment of the amount and costs; and all penalties and forfeitures mentioned p this Title for which no special application is provided,, shall, when recovered, be paid and applied in manner. following:: So much as the court shall determine, and the residue shall be paid to the court and be remitted from time to time, by order of the judge, to the Treasury of the United States, and appropriated as provided for in section forty-five hundred and forty-five : Pro- vided aXw&js, That it shall be lawful for the court before which any proceeding shall be instituted for the recovery of any pecuni- ary penalty imposed by this act, to mitigate or reduce such pen- alty as to such court shall appear just and reasonable; but no such penalty shall be reduced to less than one-third of its origi- nal amount : Provided also; That all proceedings so as to be in- stituted shall be commenced within two years next after the com- mission of the offense, if the same shall have been committed at or beyond the Cape of Good Hope or Cape Horn, or within two months after the return of the offender and the complaining party to the Uiiited States; and there shall be no appeal from any decision of any of the circuit courts, unless the amount sued for exceeds the sum of five hundred dollars. ' ' ^ § 180n. Statute of limitations to criminal prosecutions. "No person shall be prosecuted, tried, or punished for treason or other capital offense, willful murder excepted, unless the in- dictment is found within three years next after such treason or capital offense is done or committed. ' ' ^ "No person shall be prosecuted, tried, or punished for any crime arising under the revenue laws, or the slave-trade laws of the United States, unless the indictment is found or the infor- mation is instituted within fi^ve years next after the committing of such crime. " 2 "No person shall be prosecuted, tried, or pun- ished for any offense, not capital except as provided in section 89 XJ. S. R. s;, §4610, Oomp. St. 2X1. S. E. S., §1046, Conip. St. § 8390. § 1710. §180n. ITJ. 8. E. S., S 1043, Pierce 's Fed. Ooae, § 7760, 2 Fed. St. Ann. 358. § 180n] STATUTE OP LIMITATIONS TO INDICTMENTS 1035 one thousand and forty-six, unless the indictment is found, or the information is instituted within three years next after such offense shall have been committed. But this act shall not have effect to authorize the prosecution, trial or punishment for any. offense, barred by the provisions of existing laws.' The act inflicting punishment for the seduction of , a femal^ passenger on an American vessel provides that "when a person is convicted of a violation of the section last preceding, the court may, in its discretion, direct that the amount of the fine, when paidj be paid for the use of the female seduced, or child if she have any; but no conviction shall be had on the testimony of the female seduced, without other evidence^ nor unless the in- dictment is found within one year after the arrival of the vessel on which the offense was committed at the port of destination. " * "No person shall be prosecuted, tried or punished for any of the various offenses arising under the internal revenue laws of the United States unless the indictment is found or the informa- tion instituted within three years next after the cominission of the offense, in all eases where the penalty prescribed may be im- prisonment in the penitentiary, and within two years in all other eases': Provided, That the time during which the person com- mitting the offense is absent from the district wherein the same is committed shall not be taken as any part of the time limited by law for the commencement of such proceedings; Provided further, That the provisions of this act shall not apply to offenses committed prior to its passage: And provided further, That where a complaint ^all be instituted before a Commissioner of the United States within the period above limited, the time shall be extended until the discharge of the Grand Jury at its next ses- sion within the district: And provided further, That this act shall not apply to offenses committed by ofiieers of the United States.* Prior to this Act of July 5, 1884, the limitation of time for the indictment for crimes under the Internal Revenue Laws was pre- scribed by the section of the revised statutes previously quoted. SIT. S. B. S., §1044, Pierce's BAct of July 5, 1884, ck 225, Fed. Code, §7761, 2 Fed. St. Ann. §1, 23 St. at L. 122, Comp.' St. 358. , . §1711.. 4 Criminal Code, §281, 35 St. at L. 1144, Comp. St. § 10454. 1036 ANSWEBS ■ [§180p The Act of 1884 repeals by implication sp much thereof j as ap- plies to offenses against the Internal Revenue Laws.® These statutes do not apply, to actions to collect penalties for importing contract labor.'' The statute dpes not begin' to run against prosecutions for a conspiracy to defraud the' United ^tates so long as any acts in pursuance with the conspiracy are done.' A conspiracy to defraud the government against duty on im- ports is not a crime arising under the Revenue Daws' but is barred, by the expiration of three years, under the general statute previously quoted.^" This statute applies to the crimes of the commission of frauds against the Government ; ^^ embezzlement by officers and employees of the United States ; ^^ counterfeiting," bigamy,^* embezzlement in the Post Office," the violatioaii of the White Slave Law,^* conspiracies in violation of the Sherman Act,^' conspiracies to acquire public lands by fraud,^' to de- fraud the government on duties for imports,^' to use th&imails for fraud,*" to commit against the United States a violation of the criminal law, and an act, criminal under the bankrupt law.*^ Formerly to criminal contempts.** In criminal contempts by; violation of injunctions, the statute runs against each specific act 6 Act of July 5, 1884, ch. 225, 14 Murphy v. Eamsey, 114 U. . S. § 1, 23 St. at L. 122, Comp. St., 15 Sup. Ct. 527, See 29 L. ed: 47, §1711. Comp. St. §1710. 7 U. 8. V. Dwight Mfg. Co., 213 IS U. S. v. Shojey, 'Fei, Cas. Fed. 522. ' 16, 281. See Comp. St. § 1710.' 8 Houston V. U. S., 217 Ted. 852 ; 18 U. S. v. Lair, C. C. A., 195 Fed. Meyer v. TJ. S., C. 0. A., 220 Fed. 47, Comp. St. § 1710. 800.. 1717. S. V. Kissel, 218 U. S. 601, 9U. S. V. Rabinowich, 238 TJ. S. 31 Sup. Ct. 124, 54 L- ed.,1168, 78, afarming 222 Fed. 846. Cornp. St. § 1710, 10 U. S. V. Hirsch, 100 U. S. 33, 18 Hide v. U. S., 225 U. S. 347, 25 L. ed. 539, Comp. St. § 1710. 32 Sup. Ct. 793, 56 L. ed. 1114, 11 Green v. TT. S., C. 0. A., 154 Comp. St. § 1710. Fed. 401. Certiorari, 207 U. S. 596, 19 U. S. v. Hirsch, ,100 TJ.,S, 33, 28 Sup. Ct. 261, 52 L, ed. 357, Comp. 25 L. ed. 539, Comp. St. § 1;710.. St. §1710; IT. S. V. Cook, 17 Wall. 20 Brown v. EUiott, 225 V. S. 168, 18.2, 21 L. ed. .538; TJ. S. v. 392, 32 Sup. Ct. 812, 56 L. ed. 1136, Irvine, 98 TJ. S., 450, 25 L. ed. Comp. St. §1710. ;93, Comp. St. § 1710. 21 TJ. S. v. Eabinowitz, 238 XT.' S. 12 TJ. S. V. Norton, 91 TJ. S., 566, 78, 59 L. ed. 1211, Comp. St. § 1716;' 23 L. ed. 454, Comp. St. § 1710. 22 Gompers v. TJ. S., 233 TJ. S. 604, 18 See TJ. S. v. Shorey, 9 Int. Eev. 34 Sup. Ct. 693, 58 L. ed. 1115. Bee., 202 Fed. Cas. 16, 281. '§' 180n] , STATUTE OF LIMITATIONS TO INDICTMENTS 1037 of bpntempt from the date of its commission.** In case of a eon- spirady, against the last overt act committed for the purpose of compiietiiig its object.** The statute does not apply to a prosecu- tion against one whose last overt act in further aim of the con- spiracy was committed more than three years previously, when he has acquiesced in subsequent overt acts by his fellow con- spirators.** The filing of an informal information is not the equivalent of an indictm6iit and does not toll the statute.** When a nolle pfosfi^ui is entered after an indictment duly found, a second indictment after the period has expired, is barred.*'' "Nothing in the preceding sections shall extend to any person fleeing from justice. " *' A man who flees to another district within the "United States flees from justice.** Flight to his usual residence in another district may constitute such fleeing.*" Time occupied in resistance to extradition from a foreign country or to i-emoval from another district is occupied in fleeing from jus- tieis.** A casual return to the district after the flight does not make 'the time begin to run.** It has been said that the excep- tion applies to any person who leaves the district after he has committed an offense there, whether or not he does so to avoid punishment.** An attempt to avoid the justice of the United States is not necessary, if the criminal has fled to avoid the jus- tice .of a. State which has criminal jurisdiction over the same 23G6inpers v. U. S.; 237 U. S. 29Grier v. IT. S., C. C. A., 154 604, 34 Sup. Ct. 693, 58 L. ed. 1115, Fed. 401, 411, affirming 146 Fed. Comp. St. §1710. 803. Certiorari, 207 TJ. S. 596, 28 'E4U. S. V. Kisael, 218 tJ. S. 601, Sup. Ct. 261, 52 L. ed. 357, Compi 31 Sup.'Ct. 124, 54 L. ed. 1168; St. §1710. Hide V. V. S., 225 TJ. S. 347, 32 Sup. SO U. S. v. White, Fed. Cas. Ct.'79S, 56 L. ed. 1114; Brown v. 16,675, 16,676, 16,677, Comp. St. Elliott, 225 TJ. S. 392, 32 Sup. Ct. § 1710. 812, .56 L. ed. 1136, Comp. St. 31 § TJ. S. v. Green, 146 Fed. 883, 1 1710. 889, affirming another point C. G. 25 Hyde v. TJ. S. 225 TJ. S. 347, A., 154 Fed. 401, Comp. St. §1710, 32 Sup.' Ct. 793, 56 L. ed. 1114, S2 Bruce, 132 Fed. 390; Bruce v. fiomp. St. §1710. Bryan, C. C._ A., 136 Fed. 1022, 26 TJ. S. V. Slaeum, Fed. das. Comp. St. § 1710. 16,311, Comp. St. §1710. SS Bruce, 132 Fed. 390; Bruce v. 27 TJ. S. V. Ballard, Fed. Cas. Bryon, C. C. A., 136 Fed. 1022, 14,507, Comp. St. § 1710. Comp. St. § 1710. 28 B. S., § 1045, Comp. St. § 1710. 1038 ANSWERS [§ 180n aet.^* It has been said that concealment within the distript is within the exeeption,^^ and that so is departure from the dis- trict where the offense is committed to the offenders usual resi- dence in another district.^® Invpluntary absence by imprison- ment is not within the exception.^'' Nor when the offense is com- mitted by a sailor on a ship during its absence on a voyage then begun.'* Nor by concealment of the commission of the offense.*® The proper way to defend by the Statute of Limitations to a criminal prosecution is by a special plea in abatement before the trial.*" It seems, that it cannot be raised by demurrer when the statute contains no exception or proviso, unless the indictment shows on its face that the defendant has not fled from justice.*^ It has been held that the pleas of the general issue and the Statute of Limitations are not permissible because of duplicity and such a special plea was stricken out.*^ It has been said that the defense may be raised by the general issue upon the trial.** The copyright law of 1909 provides: "That no criminal pro- ceeding shall be maintained under the provisions of this Act un- less the same is commenced within three years after the cause of action arose.** The Naturalization Law provides that "no person shall be 34 Streepp v. U. S., 160 U. S. 41 U. S. v. Cook, 17 Wall. 168, 178, 128, 16 Sup. Ct. 244, §4, L. ed. 21 L. ed. 538; U. S. v. Green, C. 365, Comp. St. § 1710. C. A., 154 Fed. 401, 411, affirming 38 XJ. S. V. O'Brien, Fed. Cas. 146 Fed. 803, certiorari, 207 TJ. S. 15,908, Comp. St. § 1710. 596, 28 Sup. Ct! 261, 52 L. ed. 357; 36 p. S. V. White, Fed. Cas. V. S. v. Andem, 158 Fed. 996, 999. 16,175, 16,676, 16,677, Comp. St. See IT. S. v. Walker, Fed. Cas. §1710. 16,649; TJ. S. v. White, Fed. Cas. 37 U. S. V. Heweeker, 79 Fed. 59, 16,678, Comp. St., p. 1710. 60. Comp. St. § 1710, 42U, S. v. Shorey, Fed, Cas. 38 U. 8. V. Brown, Fed. Cas. 16,280. 14,665, Comp. St. § 1710. 43 U. S. v, Bruce, 143 Fed. 703, 39 TJ, S. V. White, Fed. Cas. 704; TJ. S. v. J. L. Hopkins ,& Co., 16,675. Comp. St. § 1710. 228 Fed. 173. 40 XJ. S. V. Brace, 143 Fed. 703, 44 Act of March 4, 1909, e. 320, 704; TJ. S. V. J. L. Hopkins & Co., § 39, 35 St. at L. 1084, Comp. St. 228 Fed. 173; TJ. S. v. Cook, 17 §9560, see supra, § 180b. Wall. 168, 178, 21 L. ed. 538; John- ston V. TJ. S., Fed. case 7,418, Comp. St. §1710. § 180n] STATUTE OF LIMITATIONS TO INDICTMENTS 1039 Prosecuted, tried, or punished for any crime arising under the provisions of this Act unless the indictment is found or the in- formation is filed within &Ye years next after the commission of such crimes." **,;, ,,; The Bankruptcy Law provides: "A person shall be punished, by imprisonment, for a, period not to exceed five years upon con- viction of the offense of. having knowingly and : fraudulen,tly appropriated to his. own use, embezzled, spent, or unlawfully transferred any property or secreted, or destroyed any documen,t belonging to a bankrupt estate which came into his charge as trustee. \ (b) A person shall be punished, by imprisonment for a period not tO; exceed two years, upon conviction of the offense of having knowingly and fraudulently (1) concealed while a bankrupt, or after his discharge, from his trustee any property belonging to his estate in bankruptcy; or (2) made a false oath or account in, or in relation to, any proceeding in bankruptcy; (3) pre- sented under oath any false claim for proof against the estate of a bankrupt, or used any such claim in composition personally or by agent, proxy, or attorney; or (4) received any material amount of property from a bankrupt after the filing of the peti- tion with intent to defeat this Act; or (5) extorted or attempted to extort any money or property from' any person as a considera- tion for acting or forbearing to act in bankruptcy proceedings. (c) A person shall be punished by fine, nor to exceed five hundred dollars, and forfeit his oflSee,- and the same shall there- upon become vacant upon conviction of the offense of having knowingly (1) acted as a referee in a case in which he is directly or indirectly interested; or (2) purchased, while a referee, di- rectly or indirectly, any property of the estate in bankruptcy of which he is referee; or (3) refused, while a referee or tirastee, to permit a reasonable opportunity for the inspection of the ac- counts relating to the affairs of, and the papers and records. of, estates in his charge by parties in interest when directed by the court so to do. (d) A person shall not be prosecuted for any offense arising under this Act unless the indictment is found or the informa- 46 Act of June 29, 1906, e.' 3592, §24, 34 St. at L. 603, Comp. St. § 4380. 1040 ANSWERS " [§ I8O0 tibn is filed in court within one year after the commission of the offense.*® "A person shall not be prosecuted for any offense arising under the Bankruptcy Act unless the indictment is found or the information is filed in court within one year after the commission of the offense."*''' A prosecution for conspitady to commit aii offense forbidden by the bankruptcy law is not barred by the ex- piration of a year.*' Where all the acts of concealment were com- mitted more than twelve months before the indictment and dur- ing this period the bankrupt did nothing except to remain silent, it was held that the prosecution was barred.*® "No proceeding for contempt shall be instituted against any person unless begun within one year from the date of the act complained of; nor shall any such proceeding be a bar to any criminal prosecution for the same act or acts ; but nothing herein contained shall affect any proceedings in contempt pending at the time of the passage of this Act." *" § I8O0. Liimtations in the act to prevent trading with the enemy. The act aigainst trading with the enemy provide?: "The running of any statute of limitations shall be suspended with reference, to the rights or remedies on any contract op obliga- tion entered into prior to the beginning of the war between par- ties neither of whom is an enemy or ally of enemy, and containing any promise to pay or liability for payment which, is evidenced by drafts or other commercial paper drawn against or secured by funds or other property situated in an: enemy or ally of enemy country, and no suit shall be maintained on any such con- tract or obligation in any court within the United States until after the end of the war, or until the said funds or property shall be released for the payment or satisfaction of such contract or obligation: Provided, however, That nothing herein con- tained shall be construed to prevent the suspension of the run- ning of the statute of limitations in all other cases where such 46 Act of July 1, 1898, c. 541, 48 U. S. v. Rabinowitz, 238 tj. S. §29, 30 St. at L. 554, Comp. St. 78, 59 L. ed. 1211. § 9613. 49 Warren v. U. S., C. C. A., 199 47 Act of July 1, 1898, c. 541, Fed. 753, Gomp. St. § 9613.' ' " §29, 30 St. at L. 554, Comp. St. 60 Act of Oct. 15, 1914, ch. 323, § 9613. s 25. ^'180o] STATUTE AGAINST TRADING WITH ENEMY 1041 suspension would occur under existing law. " ^ " Nothing in this Act coiitaiiied shall render valid or legal, or be construed to rec- ognize as Valid or legal, any dct or tiransactidn' constituting trad^ with, to, from, for or on account of, or on behalf oi, or for the benefit of an enemy performed or engaged in since the beginning of the war and prior to the passage of this Act, or any such act or transadtion hereafter performed or engaged in except as aiiffiotized hereunder, which woilld' otherwise haVe been or be void, illegal, or invalid at law."^ "Nothing in this Act shall be deemed to authorize the prose- cution of any ' suit or action at law or in equity in any court within the United States by an enemy or ally of eneiny prior to the end of the war, except as pi^ovided in section ten hereof: Provided, however, That an enemy or ally of enemy licensed to do business under this Act may prosecute and maintain any such suit or action so far as the same arises solely out of the business transacted within the United States under such license and so long as such license remains in full force aiid effect : And ■proDide^ further, Tliat an enemy or ally of enemy nia!y defend by feounsel any suit in equity or action at law which may be broilght agEiinst him. "Receipt of notice from the President to the effect that he has reasonable ground to believe that any person is an enemy or ally of enemy shall be prima facie defense to any onei receiving the same, in any suit or action at law or in equity brought or maintained, or to any right or set-off or recoupment asserted by, such jperson and based on failure to complete or p^rfoni, since the iieginning of the war any contract or other obligation. In any prosecution under section sixteen hereof, proof of receipt pf notice from the President to the effect that he has reasonable qause to believe that any person is an enemy or ally, of eif^emy shall be prima facie evidence that the person receiving such no- t,iee has reasonable cause to believe such other person to be an enemy or ally qf enemy within the meaning of sectipn three hereof." 3 §1800. 1 Act of Oct. 6, 1917, eh. 2 Ibid., § 8, Sub. Div. (b), Cpmp. 106, §8, Sub. Div. (b), 40 St. at St. 3115i^d. t.' 41&, Comp.'Si, §3115i^ad, Sub. SIbid., §7, Conip. St, 3115%d. ' Div. (o): ,.•-,: Fetf. Prae. Vol. 1—66 1042 ANSWERS [§ I8O0 "That any person, not an enemy, or ally of enemy, elaijping any interest, right, or title in any money or other property which may have been conveyed, transferred, assigned, delivered,, oy paid to the Alien Property Custodian hereunder, and held by him or by the Treasurer of the United States, or to whom any debt may be owing from an enemy, or ally of enemy, whose prop- erty or any part thereof shall have been conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian hereunder, and held by him or by the Treasurer of the United States, may file with the said Custodian a notice of his claim under oath and in such form and containing such particulars as the said Custodian shall require ; and the President, if appli- cation is made therefor by the claimant, may, with the assent of the owner of said property and of all persons claiming any right, title, or interest therein, order the payment, conveyance, trans- fer, assignment or delivery to said claimant of the money or other property so held by the Alien Property Custodian or by the Treasurer of the United States or of the, interest therein to which the President shall determine said claimant is entitled: Pro- vided, That no such order by the President shall bar any person from the prosecution of any suit at law or in equity against the claimant to establish any right, title or interest which he may have in such money or other property. If the President shall not so order within sixty days after the filing of such applica- tion, or if the claimant shall have filed the notice as above re- quired and shall have made no application to the President,' said claimant may, at any time before the expiration of six months after the end of the war, institute a suit in equity in the district court of the United States for the district in which such claimant resides, or, if a corporation, where it has its principal place of business (to which suit the Alien Property Custodian or the Treasurer of the United States, as the case may be, shall be made a party defendant), to establish the interest, right, title, or debt so claimed, and if suit shall be so instituted then the money or other property of the enemy, or ally of enemy, against whom such interest, right, or title is asserted, or debt claimed, shall be retained in the custody of the Alien Property Custodian, or in the Treasury of the United States, as provided in this Act, and until any final judgment or decree which shall be entered in favor of the claimant shall be fully satisfied by payment or con- § 180o] STATUTE AGAINST TRADING WITll ENEMY 1043 veyance, transfer, assignment, or delivery by the defendant or by the Alien. Property Custodian or Treasurer of the United States on order of the court, or until final judgment or decree shall be entered against the claimant, or suit otherwise termi- nated, i "Except as herein provided, the money or other property con- veyed, transferred, assigned, delivered, or paid to the Alien Property Custodian shall not be liable to lien, attachment, gar- nishment, trustee process, or execution, or subject to any order or decree of any court. This section shall not apply, however, to money paid to the Alien Property Custodian under section ten hereof."* " (f )'The owner of any patent, trademark, print, label, or copy- right under which a license is granted hereunder may, after the end of the war and until the expiration of one year thereafter, file a bill in equity against the licensee in the district court of the Uniljed States for the district in which the said licensee resides, or, if a corporation, in which it, has its principal place of business (to which suit the Treasurer of the United States shall be made a party), for recovery from the said licensee for all use and en- joyment of the said patented invention, trademark, print, label, or copyrighted matter: Provided, however, That whenever suit is brought, as above, notice shall be filed with the Alien Property Custodian within thirty days after date of entry of suit: Pro- vided further. That the licensee may make any and all defenses which would be available were no license granted, The court on due proceedings had may adjudge and decree to the said owner payment of a reasonable royalty. The amount of said judgment and decree, when final, shall be paid on order of the court to the owner of the patent from the fund deposited by the licensee, so far as such deposit will satisfy said judgment and decree ; and the said payment shall be in full or partial satisfaction of said judgment and decree, as the facts may appear ; and if, after pay- ment of all such jiidgments and decrees, there shall remain any halance of said deposit, such balance shall be repaid to the licen- see on order of the Alien Property Custodian. If no suit is brought within one year after the end of the war, or no notice is filed as above rec(uired, then the licensee shall not be liable to 4 Ibid, §7, Comp. 3t. 3115e. i044 ANSWERS [ §180p make ali'y further deposits, and all funds deposited by him sh&U be repaid 'to him on order of the Alien Property ' Custodian. Upion' entry of suit and notice filed as above required, or iipori repayment of innds as above provided, the liability of the licen- see to miake further reports to the President shall cease. "If suit is brought as above provided, the court may,'at any time, tetininate the license, and may, in such event, issue an' in- jurietiori' to restrain the licensee from infringement thereafter, or the court,' in case the licensee, prior to suit, shall have made investment of capital based on possession of the license, may con- tinue the license for such period 'and upon such terms and with such royalties as it shall find to be just and reasonable. " (g) Any enemy, or ally of enemy, may institute and prosecute suits in 'equity against any person other than a licensee under this Act to enjoin infringement of letters patent, trademark, print, label, and copyrights in the United States owned or con- trolled by said enemy or ally of enemy, in the same manner and to the extent that he would be entitled so to do if the United States was hot at War : Provided, That no final judgment or decree shall be eiitered in favor of such enemy or ally of enemy by any eoiirt except after thirty days' notice to the Alien Prop- ei^y Custodian, such notice shall be in writing ah(^ shall be served in the Same manner as civil process of Federal courts'. ' ' '' §180p. Statutes of limitations in admiralty. There is no statutory time in which an ordinary suit of admiralty must be begun. The Revised Statutes provide, "A suitfoi^ the recovery of reraurieration for rendering assistance or salvage services shall not' be maintainable if brouglit later than two years from the date when such assista,nce or salvage was rendered, unless the court in which the suit is brought shall be satisfied that dur- ing such period there had not been any reasonable opportunity of, air resting the assisted or salved vessel within the jurisdiction of thie epui;t or within the territorial waters pjE the country in which the. lib&lai^t ir^esides or has his principal pjace of business."^ ■ CPiUrtsi of iadmirajlty are not bound by. the State Statutes of Limitation,,'? except in so far as, the limitation ig by statute' made 6 Ibid., § 10 Sub. Div. (b), Comp. 268, §4, 37 St. at L. 242, Compyst. St. §3115y2ee. §7993. § 180p. 1 Act of Aug. 1, 1912, c. 2 The Key (!!ity,14 Wall. 653, 659; § 181] STATE STATUTES OP LIMITATIONS 1045 a condition of the right sought to be enforced.^ Mehes is a valid defense with a suit in admiralty and depends upon in every case within i the peculiar circumstances. ' ' * §181w. State statutes of limitations. When there is no Act of Congress upon ! the smbject the courts of the United StateS' in actions at common law are bound by the State statutes of limitations!^ The effect of a, State statute of limitations upon action^ at common law, to enforce rights created by Federal sitatutes,'was f br a long time the subject of conflicting adjudica^ tions.? It is -now settled that the State statute applies where the Fdderallawsare silent upon the subject.^ Before the passage of the' act of Congress upon the subject, it was held that actions atl common law for the infringement of a patent were barred by the period of limitations prescribed by the statutes Of the State' where the Federal court was held.* It has been further held: that the State statutes of limitations apply to actions to enforce' the liability 'of 's'toekholders of national banks,* when however, the statute does hot begin to run until the Comptroller oft the Currentey' orders an assessment.^ That, in the absence of Paeifle^Coast S..S. Co. v. Bankeroft- Whitney Co., C. G. A., 94 Fed. 180. 3 Pacific Coast S. S. Co. y.: Bank- croft-Whitney Co., G.,0. A., 94' Ted. 180; .See. mfra, §181; The Key City^ 14 Wall 653, 659; Southard v/ iBrady, 36 ^Fed, ,5^0. -4,:paitleson y. Feidler, 249 Fed. 299.; ; lA / ■ ..■ ■ '.:• :■ . §181. 1 Act, of Pptober , 6, 1917, cb,,106, §8; 40. St./ at L.,, Comp. St. §i3iLi5,%di sub, idiy. o, 38 St. i at L..,734, jComp. St]^:§8835e.; U. S. E. S., §721; Bell v. Morrison,, 1 Pet, ,351,, 7 iL' ed. 174;; Tioga 3. Co. V. Bloasburg & C. E. Co., 20 Wall. 137,, 22 Ji. ed. 331; Bauserman iv. Blunt, 147 U. S. 647, 37 L. ed. 316; Security Tr. Co. y. Black Eiyer ,Nat. Bapk, 187, U.; 8. 211, 47 L. ed. 147; D'Wolf y. Eabaud, 1 Pet. 476, 7 L. ed. 227; Clark y. Smith, 13 Pet. 195, 10 L. ed. 123; Fitch v. Creigh- ton, 24 How. 159, 16 L. ed. 596; Brine v. Insurance Co., 96 U. S. 627, 34 L. ed. 858; MUls v. Scott, i 99' tr. S. 25, 25 L. ed. 294; Van Nor- den- V. Morton, 99 TJ. 8. 378, 25 L. ed. 453; Cummings y. Natioiial Bank, 101 U.S. 153, 157, 25 L. ed. 903, 904; Holland v. Challen, 110 U. ,8. il5>, 28 L. edi 52; Eeynolds. v. Crawfordsville First Nat. Bank, 112 U. S. 405, 28 L. ed. 733; Bueher V. Cheshire E. Co.,, 125 U. S. 555, 31 L.i ed.. 795; Benedict v. New York, 235 Fed. 258, afE'd C. C. A., 247 Fed. 758. But see Watson v. Tarpley, 18 How." 517, 15 L. ed. 509. 2 See the SecOnd Edition of this Treatise, p. 12. 3 'Sullivan v. Felix, 233 U. S. 318, 322, 34 Sup. Ct. 596, 58 L. ed. 980. 4 Campbell v. Hayerhill, 155 U. S. 610, 39 li. ed. 280. SMcClaine v. Eankin, 197 XJ. S. 54,' 49 L. ed. 702. 6 Eankin v. Barton, 199 V. S. 228, 50 L. ed. 163. The statute against 1046 ANSWERS [§ 181 any discrimination against the authorities of the United States, they apply to suits against Federal officers, founded upon their official acts ' to actions upon judgments of courts in the United States * and to suits founded upon the Civil Bights Laws.' The general rule is that the statute of limitations begins to run from the date of the injury and that lack of knowledge on the part of the plaintiff or silence or concealment by the wrongdoer does not create an exception. i" This rule has been applied to an action for criminal conversation.^^ In equity at least ** and in some cases at law ^^ the, statute does not run against a cause of action for fraud until plaintiff's discovery of the fraud where the defendant has been guilty of concealment or the fraud is one that conceals itself and there has been no lack of diligence on the part of plaintiff.^* It has been held: that the acts which constituted fraudulent concealment may be coincident with or even precedent to the accrual of the cause of action.^* That silence by the defendant concerning his receipt of money belonging to the plaintiff constitutes such a concealment,^* but that a refusal to permit the inspection of books, which show the liability is not.^' It has been held that this rule applies to an action for a eon- an assessment against stockholders 11 Ibid. under a State statute does no.t run 12 Johnston v. Chicago, M. & St. until the entry of the decree levying P. Ey. Co., 224 Fed. 197. See supra, the assessment. Irvine v. Putnam, 5 180c. 190 Fed. 321. Be Phoenix Hard- 13 Bailey v. Glover, 21 Wall. 342, ware Co., C. C. A., 249 Fed. 410. 22 L. ed. 636; Peoples v. Georgia 7 McCluny v. Silliman, 3 Pet. 270, Iron & Coal Co., C. C. A., 248 Fed. 277, 7 L. ed. 676, 678; Andreae v. 886. (In bankruptcy.) Am. To- Bedfield, 98 V. S. 225, 25 L. ed. 158; bacco Co., C. C. A., 204 Fed. 58, 62. Barney v. Oelricks, 138 XT. S. 529, 14 IT. S. v. Puget Sound Tr. Lt. 34 L. ed. 1037. See also Beatty's & Power Co., 215 Fed. 436, see Adm'r v. Burne's Adm'rs, 8 Craneh, 180(c), supra; infra, § 182. 98, 107, 108, 3 L. ed. 500, 503, 504; IB Caldwell v. Ulsh, Ind. App., Campbell v. Haverhill, 155 U. S. 103 N. E. 879. 610, 620, 39 L. ed. 280, 283. 16 Holland v. Shannon Tex. Civ. 8 Metcalf V. Watertown, 153 U. S. App., 84 S. W. 854. 671, 38 L. ed. 861. IV Fidelity & Casualty Co. v. Jas- 9 'Sullivan v. Felix, 233 U. b. per Furniture Co., Ind., Oct. 1917, 318, 322, 34 Sup. Ct. 596, 58 L. ed. 117 N. E. 258. 980. 10 Harper v. Harper, C. C. A., 252 Fed. 39. § 181] STATK STATUTES OP LIMITATIONS 1047 spiracy. to injure plaintiff in its business by interstate com- merce; " and that the limitation for the time to begin the action is regulated by a State statute concerning acts for injuries to persona! property to the person or rights of another.*' The statute does not begin to run against the distributee of an estate to recover a debt of his ancestor until the distribution al- though the debt was incurred long before.*"* Nor against a suit by a remainderman to recover property from the grantee of the entire estate by the life tenant until the death of the latter;^* nor against a trustee nntil a repudiation of the trust or such misconduct as amounts to a repudiation.*^ Where a corporation wrote to the claimant of a dividend upon its preferred' stock which had been paid to the stockholders: "The Executive Committee took up the question of payment to you of the dividend on the preferred stock, and decided that, owing to the present money conditions it would be unwise from the company's standpoint to make any payment at this time," it was held that this started' the running of the statute.*' The Stat- ute of Limitations to suits upon sealed instruments applies to a bond or other contract reciting that it is under seal and so in- tended although no seals were formally affixed ; ** and to actions upon coupons originally attached to sealed instruments;** Ordinarily the law of the forum governs the application of the statute of limitations although the causes of action arose in an- other jurisdiction.*® But where the cause of action was created by the statute of another sovereignty a limitation of the time for its enforcement therein contained is usually considered to be a condition of the cause of action, not a limitation of the remedy and will cpnsequently be followed.*' Where the State law pro- is American Tobacco Co. v. Peo- 23 Stokes v. Williams, C. C. A., pie's Tobacco Co., C. C. A;, 204 249 Fed. 114. Fed. 58. 'I- 24 Cook v. Automatic Fire Prbtec 19 Harvey v. ' Booth Fisheries Co. tion Co., 228 Fed. 192. of Delaware, 228 Fed. 782. 2B Smythe v. New Providence ' 20 Humphreys v. "Walsh, C. C. A., Township, 253 Fed. 824. 248 Fed. 414. 26 Eggen v. Canadian Northern 21 Steele v. Highland Park Mfg. By. Co., C. C. A., 255 Fed. 937. Co., C. C. A., 212 Fed. 972. 27 PhillipB v. Grand Trunk Ry. 82 Benedict V. City of New York, Co., 236 U. S. 662. 235 Fed. 258; Bumpa,ss v. McGhee, C. C. A., 247 Fed. 306. 1048 ANSWERS [§181 vided that, the Statute of . JLimitations of ; the State whem, the cause of action arose should govern, an action for a ipersonal in- jury, by a passenger who bought his ticket in one State and was injured in another was barred by the law of the, Stal^e,; where the injury occurred:^* In the absence of an express provision to. the contrary the widow or next of kin may sue because of the, death of the husr band or ancestor from a personal injury although had; he> lived his action would have been barred by the statute.^^ A State Statute of Limitations cannot bind the United States when the Government sues in a, sovereign capacity to assert, a public interest or to enforce a public right,'" even, it has, been said if specially named therein.'^ Such is a suit to collect divi- dends on shares of stock owned by the Government.'^? It was held, that the State Statute of Limitations barred a claim by the United States for the value of timber on Gov- ernment land destroyed by ,fire,'^ and that a suit by the United States for the benefit of an individual land owner ^may- be barred by laches.*' A State Statute of Limitations cannot, baa? the United States ; but the United States may take advantage of a State Statute of Limitations,'* even when it 'does not, name them;'^ and so may of&cers of the United States in possession of property claimed by the government:'® , , > The rule that a State is not affected by laches or a statute of limitation cannot aid d, creditor of a State when, suing, one of its debtors." An individual seeking to enforce by subrogation the 28 Baltimore & O. E. Co. y. Reed, 31a diea^ & ijel. Canal Co. y.' tf. S., C. C. A., 223 Fed. 689. ; '"■' 250 tJ. S. 123'. '''" 29 Western XTn. Tel. Co. v. Pres- 32 Denver. & E. G. E. Go. v; U. ton, C. C. A., 254 Fed. 229, affirm- S., 241 Fed. 614. ing 250 Fed. 480. ' 33 tJ. S. v. .Fletcher, 231 Fed. 326. SO Gibson v. Clioutea,u,: 13 Wall. See supra, § 180c., 92, 20 L.,ed. 534; U. S. v. Thomp- 34 Stanley v. Schwalby, 147 lit S^ son, 98 TT. S. 486, 25 L. ed. 194. See 508, 517, ,37, L. .ed.i 259, ,263. .i c,i infra, §182; Chesapeake & Del. 35 Stanley v; Schwalby, 147 TJ. S. Canal Co. v. U. S., 250 XT. S. 123, 508, 517, 37 L. ed. 259, 263; U.S. reversing C. C. A., 240 Fed. 903 ; v. Minor, C. 0. A., 235i Fed, 101. overruling s. c, C. /G. A., 223 Fed. 36 Stanley v. SchT5"alby, 147 U. S. - 926; IT. S. V. ,Pitan, 224 Fed. 604; 508, 518, 37 L. ed. 259, 263. , Bistline v. V. S.,C. G. A., 229 Fed; 37Cressy v. Meyer, 138 U., S. 525, 546; TJ. S. v. Fletcher, 231 Fed. 326. 34 L. ed. 1018., 31 U. S. V. Thompson, 98 V. S. 486, 490, 25 L. ed. 194, 195. il^l] STATE STATUTES OF LIMITATIONS 1049 rights of a State may be estopped by laches of the State which Would liot have' affected' the State itself.** Municipal corpora- tions and'ebunties may be estopped by laches.'* Laches or the statute of' limitations may be pleaded to a bill to remove a cloud on title filed by one out of possession.*" * The filing of a bill in equity stops the running of the stalnlte of * liinitatibiis, although the subpoehas are not issued until sub- Sequent to its expiration." An amendment to the plaintiff's pleading which introduces a hew or' different coutse of action and marks a new or different deimiaild, 4s the equivalent of a fresh suit upon a new cause of a'e^ibn, ' ahd may be barred by the Statutes bf Limitation al- thbtigh the original suit was duly brought.*^ An amendmeht which; sets up no new cause of , action and makes no new demand, bu4; simply, varies or expands the allegations in support of the cause "Of action previously pleaded relates ' back to the begin- ning of the action'knd when the suit was begun within the statu: tory period of limitation, it is not barred, b^ the expiratipri.of that, time previpusi to, the amendment." The filing of a cross bill without the issue of process has the same effect.** A provision in a State Statute of Limitations that it shall fiot apply te a cause of action ag'aihst a person out'of the' State until h!e comes' into, th§ State applies to a suit against the administra; trix to establish the statutory liability of her intestate as a stock- holder in aniinsalvent corporation and to charge the estate with the liability thus established:** But noi, it has been held, to an equitaible cause of action to subject to the payment of the debt as- sets. iu the hahjds pf ,a distributee.*® "Where the State court hel^ 3» Ibidi 4a U. S. v: Dalcour, 203 U. S. '408; 39 Boonb County V. Burlington M. 423, '5 L. ed. 248, infra, § 210b. ' E. U: Co., 139 U. S. 684, 35 L.i ed. 43 Illinois' Surety Co. v. Peeler, 319. 240 TJ. S. 214;' Seaboard 'Air Line '4dSage V. Winona ■& St. P. E. Co., v.'Eenri, 241 TJ. 8. 293, mfra. 58 PeA.' 297.''' ' ■ 44 Continental' & 'C. T. & S. Bank ' 41 Armstrong Odrk- Go. v. Mer- v. North Platte Val. Irt. Co., 219 chants' Eeftigfei-ating Co., C. C. A., Fed. 488.' 184 Fed. 199; Keystone Goal & Coke 46 Schwartz v. Loftus, 216 Fed. Go. 'V. Feketej'C. ■C.' A., 232 Fed. 320. . : 'J 78; Linn' & 'Lane Timber Co. v. U. 48 Humphreys v. Walsh, C. G. A., S:,' 236 U. 8.' 574, Where thA' sub- 248 Fed. 414. pofen»s had 'been' issued but not ' served. ■■"''.:'■ 1050 ANSWERS [§181 that such a statute excepted from its operation a foreign corpora- tion which maintained an agent authorized to serve process within the State, it was followed by the Federal court-*' Where the State, statute authorizes, after a dismissal or non- suit a renewal of the litigation for the same cause of action within a limited time it will be followed by the Federal court.*' A second suit for death caused by negligence is consideired to be for the same cause of action although different acts of negligence are alleged.*® Federal courts pf equity are not bound by State Statutes of Limitations,*" except in eases where their jurisdiction is concur- rent with the jurisdiction at common law ; *^ but they will usually follow them,*^ unless injustice otherwise would be done.*' espe- 47Quinette v. Pullman Co., C. C. A., 233 Fed. 980. 48 Hicks V. Pordhain, C. C. A., 246 Fed. 236. See Lee v. Levison, C. C. A., 247 Fed. 478. 49 McCaintic-Marshall Const. Go. V. Forgy, C. C. A., 246 Fed. 193, 199. 60 Wagner v. Baird, 7 How. 234, 258, 12 L. ed. 681, 691; Godden v. Kimmell, 99 IT. S. 201, 25 L. ed. 431; Wilson v. Kooiitz, 7 Cranch, 202, 3 L. ed. 315; Kirby v. L. S. & M. S. R. Co., 120 U. 8. .130, 137, 30 L. ed. 569, 572; Mehards v. Mary- land Ins. Co., 8 Cranch,. 84, 3 L. ed! 496; Hanger v. Abbott^ 6 Wall, 532, 18 L. ed. 939; Etting v. Marx's Ex'r, 4 Fed. 673; Stevens v. Sharp, 6 Sawy. 993 ; Continental Nat. Bank V. Heilman, 81 Fed. 36; Bedd v. Brun, C. C. A., 157 Fed. 190; Jack- son V. Horton, 3 Caines (N. Y.) 19 ; Ide V. Trorlicht, D., * E. Carpet Co., C. C. A., 115 Fed. 137; Stevens v. Grand Cent. Min. Co., C. C. A., 133 Fed. 28. Bl Wagner v. Baird, 7 How. 234. 258, 12 L. ed. 681, 691; Godden v. Kjramell, 99 V. S. 201, 25 L. ed. 431; Meath v. Phillips Co., 108 U. S. 553, 27 L. ed. 819. Contra, Eodgers v. Thomas, C. C. A., 193 Fed. 952, 957; Einer, J.: "We think it is the general rule that courts of equity in cases of concur- rent jurisdiction usually consider themselves bound by the statute of limitations which govern courts of law in like cases, and this rather in obedience to the statute of limita- tions than by analogy, while in many other eases they act upon the analogy of the statute of limitations at law." 62 Wagner v. Baird, 7 How. 234, 258, 12 L. ed. 681, 691; Broderick's Will, 21 Wall. 503, 22 L. ed. 599; Godden v. Kimmell, 99 U. S. 201, 25 L. ed. 431; Meath v. Phillips County, 108 U. S. 553; Kirby v. L. S. & M. S. E. Co., 120 II. S. 130, 30 L. ed. 569 ; Pratt v. Northam, 5 Mason, 95, 112, per Story, J.; Nor- ris V. Haggin, 136 IT. S. 386, 34 L. ed. 424; O'Brien v. Wheelock, 184 U. S. 450, 482, 493, 46 L. ed. 636, 651, 655; Smith v. Smith, C. 0. A., 224 Fed. 1. 68 Higgins Oil & Fuel Co. v. Snow, C. C. A., 113 Fed. 433; Patterson V. Safe Deposit & Trust Co., 148 Fed. 787; Eedd v. Brun, C. 0. A., 157 Fed. 190 ; Fogg v. St. Louis, H. §181] STATE STATUTES OP LIMITATIONS 1051 cially in foreclosure suits'* and suits against executors and ad- ministrators,*' unless there is an Act of Congress upon the sub- ject. It has been said that a Federal court of equity will never follow a State statute of limitation when thereby manifest wrong and injustice would be wrought.'® nor usually in case of a fraud that has been concealed.''' The Federal courts will usually give such statutes the same construction that is placed upon them by the courts of the re- spective States where they were enacted; '* but a court of admir- alty refused to follow a decision of a State court which did not permit a foreign corporation, subject to service of process within the State, to plead the statute.'* It has been said that the Statute of Limitations is available only as a defense and never to support a cause of action,** con- & K. B. Co., 17 Fed. 871, 873; Cheatham v. Evans, C. C. A., 160 Ted. 802 ; Wilson v. Plutus . Miu. Co., C. C. A., 174 Fed. 319; Arm- strong Cork Co. V. Merchaftts' Ee- frigerating: Co., C. C. A., 184 Fed. 199 ; Newbery v. Wilkinson, 190 Fed. 62; Bodgers v. Thomas, C. C. A., 193 Fed. 952; Updike v. Mace, 194 Fed. 1001; Da;vis v. Smokeless Fuel Co., C. C. A., 196 Fed. 753; Layton Pure Food Co. v. Church & Dwight Co., C. C. A., 32 L.E.A. (N.S.) 274, 182 Fed. 35; L. Bro- derick's Will, 21 Wall. 503, 22 L. ed. 599 ; Pulliam v. PuUiam, 10 Fed. 53; Fogg V. St. Louis, H. & K. B. Co., 17 Fed. 871, 873;; Story's Bq. Jur., § 1521. Cf. Scott v.' Armstrong, 146 U. S. 499, 36 L. : ed. 1059; Security Tr. i Co. v. Black Biver Nat. Bank, 187 U. S. 211, 237, 47 L. ed. 147, 158. 64 Cleveland Ins. Co. v. Beed,, 1 Biss. 180; Beeves v. Vinaeke, 1 Me- Crary, 213,, 217, per Nelson and Dillon, JJ. 66 PuUiam v. Pulliam, 10, Fed. 53 ; Broderiek's Will, 21 Wall. 503, 22 L. ed, 599; Newbery v. Wilkinson, 190 Fed. 62;\Goodno v. Hotehkiss, 237 Fed., 687. 66 Fogg V. St, Louis, H. & K. B. Co., 17 Fed. 871, 873; Story's Eq. Jur., §1521. Cf. Scott V. Arm- strong, 146 XJ. S. 499, 36 L. ed. 1059 ; Security. . Tr. Co. v. Black Biver Nat. Bank, 187 U. S. 211, 237, 47 L. ed. 147, 158. 57McIntire v. Pryor; 173 V. 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' Sav. & Tr. Oo./v. Illinois Cent. B. Co., C. C. A., 182 Fed. 607. 68 Cheatham v. Evans, C. C. A., 160 Fed. 802; Armstrong Cork Co. V. Merchants' Befrigerating Co., C. C. A., 184 Fed. 199; Fordham v. Hicks, 224 Fed. 870; Quinette v. PuUman Co., 229 Fed. 333; City of Memphis, T. v. Board of Directors, 231 Fed. 217; Salyer v. Consolida- tion Coal Co., G. C. A., 246 Fed. 794. 69 Davis V. Smokeless Fuel Co., C. C' A., 196 Fed. 753. 60 Talbot V. Hill, D. C, C. C. A., 261 Fed. 244. 1052 ANSWERS [§ 181a sequently, the court dismissed a suit to cancel the lien of a deed of trust, when the exercise of the power of sale was barred by .the statute.^^ . ■ ■ ' § 181a. Suspension of statute of limitations. The statute against Trading with the Enemy provides for a suspension of the Statutes of Limitations to the extent and in the manner described in a preceding section.^ ' ' ' ( The Antitrust Law provides "Whenever any suit or proceed- ing in equity or criminal prosecution is instituted by the United States to prevent, restrain or punish violations of any of the antitrust laws, the running of the: statute of limitations' in respeat of each and every private right of action arising under said' laws and based in whole or in part on any matter complained of in said suit or proceeding shall be suspended during the pendency thereof."" § 182. ESquitable laches. Moreover, the lapse of time for a shorter period than the statute of limitations, arid in' cases to which that statute does not apply, will pften b,e held such lacheg as to bar the complainant^ but very rarelj^, unless, other, cir- cumstances than the mere lapse of time make it inequitable to permit the complainant to sue." 81 Ibid. Childs v. Missourv K. & T. Ey. Co., § 181a. 1 Supra, § 180o. 221 Fed. 219 ; iSe International Min- 2 Act of Oct. 15, 1914, 38 St. at eral Co., 222 Fed. 415 • Ma(thiesoii L. 731, ch. 323, §5. v. Craven, 228 Fed. 345';' Fiddity § 182. 1 Brown v. County of Bia- Trust Go. v. Alexander, ' 243 Fed. ena Vista, 95 U. S. 157, 161, 24 L. 162; Bunscomb v. Chicago, B. &'Q. ed. 422, 423. In the following cases R. Co., C. C. A., 246 Fed. 394; amongst others, the doctrine of Guenther v. Dennis-Sinmions' Luln- laches was applied: Town of Essex ber Co., 246 Fed. 521; Naylor v. V. New England Tele. Co. of Mass., Foreman-Blades Lufliber Co., 230 239 TJ. S. 313; Waller v. Texas & Fed. 658; U. S.' v; New Orleans Pac. Pac. By. Co., 239 TJ. S. 398; Nor- Ey. Co., C. 0. A., 235 Fed; 841; thrup V. Browne, C. C; A., 204 Fed. Alwood v. Lewis, C C. A., 254 Fed. 224; Cnbbins v; Mississippi Eiver 810; Benedict v. City of New York, Commission, 204 Fed. 299; Carpen- C. C. A., 247 Fed. 7S8 ;' Church v. ter V. M. J. & M. & M., Gonsoli- Swetland, C. C. A:, 243 Fed. 289; dated, C. 0. A., 212 Fed. 868; Pooler Humphreys v. Walsh, C. C: A., 248 V. Hyne, C. C.A., 213 Fed. 154, 155; Fed. 414; Stewart v. Florida, G. ft Stiles V. Judson, 214 Fed. 811; W. By. Co., C. C. A., 255 Fed. 573i ' Christy v. Atchison, T. & 8. F. By. 2 Stewart v. Holland,' 179 Fed. Co., 214 Fed. 1016; Alexander v. 969; Central B. Co. of New Jersey Fidelity Trust Co., 215 Fed. 791; v. Jersey City, 199 Fed. '237; New 482] EQUITABLE LACHES 1053 It has been said: that when the suit is delayed until; after ex- piration of the statutory time, the burden, of proof is' upon the plaintiff to shpw i sueh - extraqrdjnaryi circiimstance as exclude laches.' If previously brought, upon the defendant to:show that such extraordinary circumstances exist as to create i laches.* Laches by his assignor is binding upon the complainant.^ Ignorance of the defendant 's wrong doing is a sufficjjenti excuse for laches ; ? unless the complainant was guilty of inexcusable neg- ligence, or,'' if there has been no prolonged absence from the jurisdiction or disability, when the facts are notorious such as the operation of a railroad by a well known corporation.* When at the time of the discoveiy of a fraud the evidence thereof was slight, delay until more substantial evidence as found should not be considered to be laches.* It is hot laches for a complainant to delay asserting his rights until the determination in another' suit, brought by himself or ariother in a similar position, of a doubtful question of law materially affecting their validity,!" nor is delay - because ' of berry v.; ViJl^nSOHj G. C. A., 199 Fed. 673 ; Schwartz v. Loftjia, 216 Fed. 320 ; jParker v. Parker, C. C. A., 224 Fed. 186; Elder , v. Western Mining Co., 0. C. A., 237 Fed., 966; Kentucky Blocb Qannel Goal Co. y. Sewelli, C. C. A., 249 Fed. 840; Sharum. v.. WJiitehead. Coal Mining Co., C. C. A.-,,223 Fed. 282. ,S McNeil V, McNeil, C. C. A., 170 Fed., 289. - ; 4 Goddeny, Kimmel, 99 U. S. 201, 25 li.. ed„ 431; National Bank y. Carpenter, 101 U. S, 567, 25 L. ed. 815; Wilson V. Plutus Min. Co., C. C. A., 174 Fed.; 317; Wisner v. Bar- net, 4 Wash. 631. But see Sullivan y. P. & K. E. Co., 94 TJ. S. 806, 811, 24 L. :ed. 324, 326; Doe y. Hyde, 114 U. S. 247, 29 L. ed. 242; PhU- lippi V. Phillippi, 115 TI. S. 151, 29 L. ed. 336. B New York Grape Sugar Co. i y. Buffalo Grape Sugar Co., 24 Fed. 604; Woodmanse & Hewitt Manu- facturing, Co. y. WJlliams, C. C. A., 68 Fed. 489; Tompkins y. St. Epgi^ Paper Co., C. C. A., 236 Fed, ?21, 224. ' .../-,: 6 Tompkins y. St. i^egis Paper |Co., C. C. A,, 236 Fe4. 221, 224; Efder V. Western Mini; Co., C. C, A., 237 Fed. 966. . ; , 7 Waller v. Te^as & Pae. By. Co., 245 Fed. 398; Jewell v. Trilby Mines Co., 0. C. A., 229 Fed. 98. _ 8 Waller y. Texas P'ac. jBy. Co., 245 U. S. 398. ' ' ' ^ 9 Tevander y. Ruysdeal, C. C. A., 253 Fed. 918. ' 10 Buxton T}. James, 5 De Gex & Sm. 80, 84; Eiimford Cheml Worts V. Vice, 14 Blatchf;179, 1^0; Gr^en y. Barney, 19 Fed.'!420; Hurd' v. James Goold Co., 197 Fed. 756 ;' den- tral E. Co. of New Jersey v. Jersey City, 190 Fed. 237; Jackson Co. v. Gardiner Iny. Co., C. G. A., 200 Fed. 113; Stearns-Eoger Mfg. Co. y. Brown, 114 Fed. 939, 945; Tomp- 1054 ANSWEBS [§182 the inability of the owner to bear the expense of the litigatioh,^^ nor, in Porto Rico, a delay warranted by the previous juris- prudence and caused by lack of knowledge of the principles of chancery.^* The United States are not bound by laches,^' unless equities have arisen through the lapse of time ; ^* or where a suit is brought in the name of the United States to enforce the rights of a private person.^* It has been said that the presumption of payment from lapse of time may bar the United States.^' In a stockholder's suit set aside a sale a delay of nine days less than a year was held to be sufficient laches to bar the right of recovery, when in the meanwhile, bonds secured by the purchased property had been issued by the vendee.^' The lapse of time since a decree was entered is no bar to proceedings to punish the violation thereof as a contempt.^' Laches in admiralty is subsequently considered.^' Laches in prosecuting a suit after it is brought may also be taken into consideration.*" kins V. St. Eegis Paper Co., C. C. A., 236 Fed. 221; People v. Cooper, 22 Hun (29 N. Y. S. C. R.), 515, 517. See Illinois G. T. Ey. Co. v. Wade, 140 TJ. 8. 65, 35 L. ed. 342. 11 Davis V. A. H. Reid Creamery & Dairy Supply Co., 187 Fed. 157. Contra, dicta in Hayward v. Nat. Bank, 96 U. S. 611, 618, 24 L. ed. 855; Leggett v. Standard Oil Co., 149 U. S. 287, 294, 13 Sup. Ct. 902, 37 L. ed. 737. But see Elder v. West. Min. Co., 237 Fed. 966. 12 Noble V. Gallerdo Y. Leary, 223 U. 8. 65, 66 L. ed. 353. 1» Gibson v. Choteau, 13 Wall. 92, 20 L. ed. 534; V. S. v. Thomp- son, 98 IT. 8. 486, 25 L. ed. 194. See supra, § 181. 14 TJ. 8. V. Stinson, 197 IT. S. 200, 49 L. ed. 724. IBU. S. V. Chicago, M. & St. P. By. Co., C. C. A., 116 Fed. 969; TJ. 8. V. Fletcher, 231 Fed. 326; TJ. S. V. New Orleans Pac. Ey. Co., 235 Fed. 841. Cf. V. S. v. Beebe, 127 TJ. S. 338, 32 L. ed. 121. 16 Chesapeake & Del. Canal Co. v. TJ. S., C. C. A., 223 Fed. 926, re- versed 250 TJ. 8. 123. 17 Bradford v. Betton Motor Co., 105 Fed. 63, afC'd C. C. A., 155 Fed. 711. See Davis v. A. H. Reid Creamery & Dairy Supply Co., 187 Fed. 157, aflf'd 197 Fed. 80; Marks v. Merril Paper Co., C. C. A., 203 Fed. 16; Kelly v. Dolan, 0. C. A., 233 Fed. 635 (12 yrs.), CoUens v. Penn Wyoming Copper Co., 203 Fed. 726 (a delay of 2% yrs.) ; Weningeh v, Success Min. Co., C. C. A., 227 Fed. 548; Mun- ger V. Perlman Eim Corp., C. C. A., 244 Fed. 799; Tompkins v. St. Eegis Paper Co., C. C. A., 236 Fed. 221, 224. 18 Tash V. Western Kentucky Coal Co., C. C. A., 252 Fed. 44. 19 Infra, § 576. 8e Underfeed Stoker Co. v. Am. Stoker Co., 169 Fed. 891; Northrup §183] PLEADING STATUTES OP LIMITATIONS 1055 The deffeiise of laches need Hot be pleaded.^' Nor the pre- sumption of payment after twenty years.^* § 183. Pleading statutes of limitations. It is the safer prac- tice for the defendant to plead the sta:tute of limitations in every case where he relies upon it; ^ although, when laches appear upon the face of a bill, in equity, it may be dismissed upon a motion be- fore answer ,2 and although, if not pleaded, it may be raised at the hearing before the testimony is taken.* Where the bill shows that a reissued patent was void because of delay in the patent ofiSce,* that defense need not be pleaded.* In most cases, it has been held that Federal statutes of limitations need not be pleaded.® • When a suit is brought after the statutory time, the burden is V,, Browne!, C. C. A., 204 Fed, 224; Drees v. Waldron, C. C. A., 212 Fed. 93; Kellogg Switchboard &■ Supply Co. V. Dean Electric Co., 231 Fed. 194; U. S. V. Fletcher, 231 Fed. 326. 81 Whitaker v. Whitaker Iron Co., C. C. A., 249 Fed. 531. 88 Chesapeake & Del. Canal Co. v. TJ. S., C. C. A., 223 Fed. 926, re- versed on another point, 250 U. S. 123. §183. IFichtel v. Barthel, 173 Fed. 489, a patent case; Robinson V, Mutual Eeserve Life Ins. Co., 175 Fed. 629; Bobinson v. Mutual Ee- serve Life Ins. Co., 175 Fed. 629. The limitation upon the time to bring actions to claim filiation in the Ciyil Code .of Porto Bico of 1889, art. 137, and of § 199 of the Porto Bico 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 be 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. 2Goddeu v. KimmeU, 99 TJ. S. 201, 25 L. ed. 431; National Bank V. Carpenter, 101 II. S. 567, 25 L. ed. 815; Wisner v. Barnet, 4 Wash. 631; Bobinson t. Mutual Beserve Life Ins. Co., 175 Fed. 629; Alex- ander V. Fidelity Trust Co., 214 Fed. 495. See Edison El. Light Co. V. Equitable Life Assur. Soe. of TJ. S., 55 Fed. 478; SuUivan v. P. & K. E. Co., 94 TJ. S. 806, 811, 24 L. ed. 324; Doe v. Hyde, 114 V. S. 247, 29 L. ed. 142; PhilUppi v. Phillippe, 115 U. S. 151, 29 L. ed. 336., . 3 As to the former practice, see Waller v. Texas & P. By. Co., C. C. A., 229 Fed. 87; He International Mineral Co., 222 Fed. 415; FideUty & Casualty Co. v. Jasper Furniture Co., Ind., Oct. 1917, 117 N. E. 258. 4 Nat. Cash Eegister Co. v. Union Comp. Mach. Co., 143 Fed. 342. See ■supra, § 181a. 6Wollensak v. Beiher, 115 TJ, S. 96, 101, 29 L. ed. 350, 351; Loek- l^art V. Leeds, 195 TJ. S. 427, 49 L. ed. 263; Thurmond v. Ches. & O. By. Co., C. C. A., 140 Fed. 697. 6 Supra, i§180c, e, g, k, n. 105!ci AJ^SWERS [§,183 on the complainant to show ; in ,his, bill and by his proof, th,at it would be inequitable to apply the statute to ,his caseJ That the, delay has. been prejudicial to, the defendant need not, -be affirmatively , shown, but, may be presumed, and, it! was sa, pre- sumed when a,! bill was filed,,eighteen months after the .com- plainant, admitted :to, haye di^eoyered the existence of,a,d^i;ee of diyorce which he claimed to be fraudulent and. the def!enda,nt h^d; married since the decree.* ' . .1; -,1 . ,Jn an, action , of common ilaw the Statute of Limitatioi|S must be .pleaded and if not pleaded is waived.® "When, however, , a statute creating, a new cause of action contains a limitation of the right to sue this is frequently construed as a condition of the relief and in such ease need not be pleaded.^" The defense of the Statute of Limitations is in substoiitlally the same form as a similar plea in an action at law, but np special form is essential.^^ The same strictness of ; pleading the statute is not required at equity as at law; and it was held to 1 Godden v. Kimmel, 99 U. S; 201, 25 L. ed. 431; ISfational Bank \. Carpenter, 101 IT. S. 567, 25 L. ed. giS; Wilson V. Plutus Min. Co., C. C. A., 174 Fed. 317; Wisner v. Bar- net, 4 Wash. 631. But see Sullivan V. P. & K. E. Co. 94 IT. S'. 8()'6, 811, 24 L; ed. 324, 326;' Doe v. Hyde, 114 U. S. 247, 29 L. ed. 242; Phil- lippi V. Phillippe, 115 TJ. S. 115 'U. S: 151, 29 L. ed; 336. 8 McNeil V. McNeil, C. C. A., 170 Fe(i."289.' in !NeWfcerry v. Wilkin- sbrij €.'(3. A., 199 Fed. 673, a bill was dismissei for laches when filed against the sureties of a guardian between thrfe^ and four years after the complainant became of age, and he had had notice sufS.eiently to^ut him upon inquiry two years before his ' infancy terminated, but made no search of the' records until thret months Before the suit was brought. 9 Shields V. Shimm, 124 U. S. 351, 8 Sup. Ct, 510, 31 L. ed. 445; Gorm- ley V. Bunion, 138 U. S. 623, 11 Sup. Ct. 453, 34 L. 'ed. 1086'; Hallett v; New England Roller Gi'ape Co.,'C. 0. A., 119 Fed. 873. ' ' 10 Phillips V. ' 1 Grand' Trunk' Co., 236 IT. S. 662'; The Harrisburg, 119 U. S. 199, 1 Sup. Ct. 140, but see Sharrow v. Inland Lines litd., 2l4 N. Y. 101; Cariin v. Peerless 'Gas Light Co.,' 283 111. 142, 119 N.' If. 66;' Goldstein v. Chicago City Ey. Co., 286 111. 297, 121 N. E. 726'; Bretthauer v. Jacblison:/ 79 N. J. Law 223, 75 Atl. 560; McE'ae v. N. Y., N. H. & H. E. E. Col, 199 lllass. 418, 85 N. E. 425; Harwood'v. Chi- cago, Eoclc Island & Pacific Co., 301 Kan. 215, 171 Pae. 354; De Martino v. Siemon, 90 Conn. 527, 97 Atl. 765; Hartary v. Chicago Ey. Co. Illinois, 124 N. E. 849. IX Harpending v. Reformed Prot. Ch., 16 Pet. 455, 101 Fed. 1029 ; West Portland H. Ass'n V. Ldwns- dale, 17 Fed. 205; Story's Eq. pL §752. § 184] STATUTE' OF FRAUDS 1057 be a sufficient averment of thfe Statute of Limitations, as well as of laches, when the answer alleged that if there had been any claim against the defendant's interstate in his lifetime,, by reason of the transactions alleged: in the bill, which was denied, said claim was barred by the ilapse of time and' the neglect of plaintiff to have a settlement qf 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 the deceased.^*; "When the answer pleaded a limitation of six years, whereas the three years' statute ap- plied; it was held to be sufficient.^* li 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.^* § 184. Defense of statute of frauds. The State Statute of Frauds will be followed by the Eederal courts.^ Under the old. practice, if the bill showed that the complainant's ease is re- pugnant to the Statute of Frauds, it was demurrable.* This, however, is rarely the case, and the statute was usually referred to by plea :or answer.' 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 i 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 ; otherwise he is taken to mean that the admitted agreement was a written agree- ment good under the statute, dr elfee that on ^ome other ground it is binding oii 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 en- forced.''* It has been held that the statute is waived unless 12 Huntington Nat. Bank v. Hunt- 585, 589, 17 L. ed. 269, 271. But ington Distilling Co., 152 Fed. 240. see Chapman v. School Dist. 1 IS Eamsden v. Gately, 142 Fed. Deady, 108. ' ' 912. S For an illustration of the plea, 14 Stearns v. Page, 1 Story, 204 ; see Jackson v. Oglander, 2 H. & M; Himrod v. Ft. Pitt Mining & Milling 465. Go., C. G. A., 202 Fed. 724. iEidgway v. Wharton, 3 De G., § 184. 1 EaindaU v. Howard, 2 M. & G. 677, 689. But see Heys Black, 585, 589, 17 L. ed. 269, 271. v. Astley, 9 Law Times (N. S.), 356. 2Eandall v. Howard, 2 Black. Fed. Prac. Vol. 1—67 10581 ANSWERS [§185. pleaded.* The facts which show that the statute applies must be stated specifically.^ Otherwise the defense is bad.' § 185, Defences of matter in pais. Defenses founded upon matters in pais state some other reason, why the plaintiff should not have relief,^ for example a rdease, or an account stated, or an; equitable estoppel,^ an election,^ or a purchase without notice for a valuable consideration.* § 185a. Equitable estoppel in pais. An estoppel in pais is often called an equitable estoppel but it is a defense recognized at common law.^ An equitable estoppel or an estoppel in pais arises whenever a man by his acts, representations, admissions, or silence when he ought '■■ to speak intentionally or through etilpable negligence induces; another to believe certain facts and such othel^ relies and acts thereupon so as to be prejudiced if ' the existence of the facts isdeniied.^ > The most frequent examples of estbppel in pais in the Federal courts arise in patent eases.* A patentee who has assigned his patent,* or a licensee whose license has not been repudiated,' cannlot contiest its validity in a suit for its infringement. An assignor' of a patent cannot sue his assignee for the infringement of an Wder arid broader patent covering the same invention subsequently . acquired byihim^when the assignee has' acted within the limitation of the patent assigned.? The same rule applies: to the licensee lof' the assignor.' To the ' employer of B Jenningsiv. Augir, ;215; JTed. 658; i, , 2 Ferry v. Troy Laundry Co., 288 Contra, Thopias J. Baird Iny. Co. .|Ij'ed, 867. V. Harris, CO. A., 209 Fed. 291., 8 See .im/ra,§ 188. (Holding that in an action at law ilTnderwood Typewriter, Co. v. a ' general denial coupled with an Manning, 221 Fed. 652 ; Mergen- admission of Van execution of the thaler Linotype Co. v. Int. T. Maeh. contr£^ct, didiuot waive the defense Co., 229 Fed. 168; Leader Plow Go.i of the statute of frauds) . v. Bridgewater Plow Co., C. C. A., spailey v. .Wright, 2 Bond, 181; 237 Ffed. 376. ' ' McCloskey v. Barr, 38 Fed. 165, 169. 6 Martin v. New Trinidad Lake 'Ibid. Asphalt Co., 255 Fed, 93. ' §185. 1 Story's Eq. PI., §§79.5-- 6 United Printing Mach. Co. v. 815. .. Cross Paper Feeder Co., 220 Fed. i Infra, § 185a. 322. ' : . ;< 3 Infra, § 185b. 7 Leader Plow Co. v. Bridgewater' *>.InfTa, § 185c. Plow Co., 23? Fed. 376. ' § 185a. 1 "Weber v, Hetaell, CO. A., 230 Fed. 965. '§ 185a] EQUITABLE ESSTOPPEL 1059 the! assignor I who has instructed the latter to design a competing device which, will avoid inf ringeinent.* Tm anyone who with knowledge of the assigtament ; cooperates: with : the assignor im the infringement,' To a coijppration! organized after the assign- ment pf which tl?,e assignor becomes tjhe piiesidfint ; ^^ or organ-- ized by,the,prpcurement of:tl?e assigjior:^^, or which , has succ;e,eded to the, business and, assets of |a co-partnership which hadi agreed to icease i,nfringeme5nt.^^ jRut npt,|to,;the |ma,]fiuf^Gturer of an infringing machine upon the pi^der,:Qf such a corpora^tion except as to that particular machine.^' The estoppel does npt prevent the, assignor or licensee from provinig thfi state, of the prior lart so as to, li|init the scope o^ the patent; ^* nor,,frpm denying the .infringement.^^ It has been i lie^; that, ;i;he assignor, cannpt escape the, estoppel by alleging that he ,was induced, by unfair representatipns to part vj^ith., the pat^^t;,^^ b.ut,;in a , later, case d)^f|enda,nt was pepwitted, ,tP,,deny,,cornplainant's title , to the patent| ajid in a epunter-claini., allege equitBible ownership in itself and pray for a decree quieting itSjtitl?.,^'' ; A compla,inan.t is:npt estopped to attack a. patent introduced; by defendant aspart lof the prior art iwhieh was originally, pleaded, in, tjie biU hut after- w;a,rds , jabandx>ne,d.." A, plaintiff who, has ratified a, , license , by 8 Mergenthaler Linotype Co. v. l4Bat)cock & Wilcox Co. y, ^o- IiiL T. Maeh. Co., 229 Fed. 168. ledo Boiler "W^orks Co., c'c. A., SSchiebel Toy & Novelty Co. v. 170 Fed. 81; Standard Plunger ' Ele- Clark, C. G. A., 217 Fed. 760; Dal-: yatbr-Co. v. Stokesy C. C. ' A.^ 212 ton Add. Maeh. Co., .v. Moon-Hoj),- Fe^.; 941; ScMebel Toy, & Novelty kins Billing Maeh. Co., 223 Fed. 51,; Co., y,, Clark, 217, Fed. 760; Mergen- Martin' Gatuge Co.' v.' Pollock, 251 thaler , Linotype Co., v. Int. Typeset- Fed. 295,' 298. !But see Roessing- ' ^^^ Co., 229 Fed! 168, 172; hI'I). Ernst CO. v. Coal & Coke By-Prbd- ' gmith & 'Co. v! SoHithington Mfg. net Co., 0. C. A., 2PS,Fpd. 990. , ,^g__ ^ ^ ^^ 347 Fed.,342. -'! lOBoessing-Ernst & Co. v. Coal & ^^-^ D. , Smith & Co. v. ,South' Coke By-Pr'oducts Co., C. C. A., 208 . ^ g_ ^ 247 Fed. Fed. 990 11 Martin GSiuge Co. vi Pollock 251 Fed. 295 342*- ,. , , . ,7 ' leyacuum Eng. Co. v. Dunn, Q. WDudlo Mf^. Co., V. Varley^Du- C. A., 209.Eed. 219. ,. ^ plex Magnet Oo.,':C. C. A., 253 Feil. " Clbvetod'Eng. Co, v. Gabon D. 745_ ' ! M. Truck Co., 243 Fed. 405. ■ iSEoessiiig-ErnSt 'Co: v. Coal & ' 18 Mer'gebithaler Lino-type Cd. v. Coke By-Products Co., C. C. A., 208 Int. Typesetting Co., 229 Fedl 168, Fed. 990. 173. ' ' ' '' ' 1060 ANSWERS [i 185 collecting royalties and demalnding accountings thereunder is estopped from repudiating the same upon the ground that it was executed without her authority.^' ' "Where complainant for more thaii twelve years had not adver- tised its trade-mark, nor employed salesmen,' nOr made any attempt, to sell the goods so marked outside bf a single State, the court held that it was estopped from suing for infringement a corporation which in ignorance of the plaintiff's rights had spent several thousand dollars in advertising in another State goods similarly marked.*"* It was held: that the successor to the rights of the lessee in a lease of a coal mine which had successfully resisted a suit by the lessor for a forfeiture of the lease and had operated the mirie for two years, was estopped from asking a cancellation of the lease or a modification of its terins upon the ground that the lessor had misrepresented the quaritity of coal.^^ That a failure by the lessee in such a lease to discover coal seams beneath those which it had operated did not estop it from working sucli seams _ which were included in the general terms of the' lease Although • they were sifbsequently discovered by Successors of the lessor on ■ adjacent property. ^^ Where a mortgage recognizes the priority of another mortgage previously executed, the mortgagee , is estopped from denying the priority of such mortgages and bonds thereby secured.*^ Creditors or others who have knowledge that their trustee or other representative is acting in collusion with the other side in a pending suit, are estopped if without excuse they remain silent until after the decree.** Beneficiaries of a trust who have avoided the charge of laches by the contention that the trust was not repudiated by the trustee in his lifetime, cannot, upon the accounting of the latter 's executor, enforce charges for 19 Voae V. Roebuck Weather Strip v. New Pocahontas Coal Co., C. C. & Wire Screen Co., 216 Fed. 523. A., 252 Fed. 535. 20 Theodore Eectanus Co. v. 28 Mississippi Valley Tr. Go.i v. United Drug Co., C. C. A., 226 Fed. Washington Northern E. Co., 212 548. : Fed. 376. . 21 Browning v. Boswell, C. C. A., 24 Be Bashiell, C. C. A., 246 Fed. 215 Fed. 826. 366. 22 Standard Pocahontas Coal Co. § I85b] ELECTION OF REMEDIES 1061 which there would 'he no liability unless the trustee had con- verted the trust funds to his Own use.^" ' 'W'here executors had no authority to bind the estate by the coiitract; lipori which suit was brought, a stipulation that judg- ment upOn any verdict therein should be entered against theih as executors did not bind them or the estate or estop them ifdM denying the estate's liability.*^ ' ' '. The doctrine of equitable estoppel does not effect the IJriited ^tates becanse land to which the Government assorts a title has been occijpied and improved with the Government's kriowledge.^'' The. payment by a municipal, corporation of interest upon i|s l^on,ds, warrants or other .;vFritten obligations does not .epjop^it f j:Q?n .pi"ovi|:pg , ^hat they were issued ; fraudulently ,^.^i^out con- sideration, and -itWrawrei,^* , .,, ;.,, ,.,,., In equity an estoppel in pais need not be pleaded since ,it,ia in effect a rule of evidence.^* ;At common ilaw in the absencei of a State statute upon the subject it is available as a defenge under the general issue.^" If the State statute or practice requires an equitable estoppel to be pleaded, the Federal court sitting within the State must observe the rule in actions at law.'^ § 185b. Defense of election of remedies. The defense of the election of remedies is not a favorite of courts of equity.^ It has, however; been long observed and is well settled.^ Where two inconsistent remedies, proeeeding upon irreconcilable claims of rights, are opeti to a suitor, (he choice of one bars theothet.' A mistake in the assertion of an alleged right is not an election, because an, election can consist only in a choice between two inconsistent remedies existing and not fancied.* "Election is simply what its name impdrts; a choice shown by an overt act, between two inconsistent rights, either of which may be asserted 25 Alexander V. Fidelity. Tr. Co., SO Ibid. 238 Fed; 938.' 81 Ibid. 26 Grjggsiv. Nadean, 221 Fed. .381. § 185b. 1 Priederichsen v. Benard, arrtah Power & Light Co., -v. U. 247 TJ. S. 207, 211. S., C: C. A., 230 Fed. 328. 2 Ibid. , 28 Hornblower v. City of Pierre, 3 Eatchf ord v. Cayuga Co. Cold C. C. A., 241 Fed. 450. ' < r Storage; & W. Co., 217 N. Y. 565. 29 Shelton v. SouthernEy. Co., 255 4 Gteenhall v. Caraeg^e Trust Co., Fed. 182. f , 180 Fed. 812. ; 1062 ANSWERS I:§,ia5b at the, will of the chooser alone." ^ That a party through, misteikje of law has attempted to exercise a right, to which he is . not entitled, does not prevent his , af terv?^ards exercising another right, which he had and still \vquld,haye unless barred hy .'pja.e previous attempt.® Where the relief sought is substantially the same, although prayed upon different theories, there is. no elec- tion by prosecuting either of them unsuccessfully.' ,, I In case ,of a conditional sale an unsuccessful attempt to en- force a lien upon property * or an action and judgment for the purchase price which has not been collected in full,' does not prevent a recovery in specie. On the other hand, the recaption of the property is an election which prevents the recovery of the'unpiaid installments. ^^ The filing of a mechanic's Hen is a coiieession, that the articles sold have ceased to be p'ersciiiai property and have become a part of the real estate, so that they cannot be replevied. ^^ "It was held: that the entry of judgment in a foreclosure suit, to which the tenant in possession is a defendant, is an election to terminate his lease which prevents the recovery of ■ future rent when he upon the entry of judgment vacated the premises ; although the 'mortgagee subsequently, against the tenant's oppo- sition, obtained ah or deii; vacating the jildgment and discontinu- iiig the foreclosure suit.^^ That: the entry and part' collection of a judgment for damages for breach of covenants, of which the sole consideration was certain promissory notes, is an elec' tioni which prevents a defense to an action upon such notes for want or failure of consideration.^' A suit to annul a contract B Mr. Justice Holmes in William ments due and recovered judgment W. Bierce Ld. v. Hutehins, 205 XJ. for them which was held to be an 8.340,346. - election. 6 Ibid. 10 Kelley-Springfield Road Roller 7 So. Pac. Ry. Co. v. Bogert, 250 Co. v. Sehlimme, 220 Pa. 413 ; Min- U. S. 483. neapolis Harvester Works v. Hally, 8 William W. Bierce, Ld. V. Hutch- 27 Minn. 495; McBryan v. Universal ins, 205 V. S. 340. ' " Elevator Co., 130 Mich; 111: 9 Batchf ord v. tlayuga Co. Cold 11 Kirk v. Crystal, 118 App. Civ. Storage & W. Co., 217 N. T. 565. (N. Y.) 32; aff'd 193 N. T. 622. But see Whitney v. Abbott, ' l91 12 461 Eightt Ave. Cb., Inc. V. Mass. 59, 63 ; Shipley Const. & Sup- Childs Co., 181 App. Div. (N. Y.) ply Co. V. Mager, 165 App. Div. (N. 742. Y.) 866. Where after default the iSKarasik v. People's Trust "Co., vendor elected to declare future pay- C. C. A., 252 Fed. 337. See also § 185c] PURCHASE FOR A .VALUABLE CONSIDERATION 1063l for fraud, which has not ,,Seeii reduced; . to judgment, i doe^ , not, prevent an action for damages for the deceit,^ The.cancellaliion of ia proof of claim upon a bankrupt's motion on the ground, that the claim was not provable because not dischargeable by the bankruptcy proceedings, prevents him from subsequently con- tending that the judgment was void.^* The exclusion in fin action at common law upon a written contract of evidence, that the paper was hot intended to be binding, when the-nlling was upon the plaintiff's objection, estops him from maintaining in a subsequent suit in equity, to enjoin the fomder action, that the evidence was admissible at law only.^^ The filing of a bill to set aside a transfer of assets by a cor- poration and for hn account to the trustee of a stockholder who was alleged to be the owner of all the assets since he was in fact the corporation, is not an election, which prevents an amended bill praying that the assets and securities be returned to the corporation.^' § 185c. Purchase for a valuable consideration. The flefehse of purchase without notice for a yalualsle cpi^sideratiop, musjt b,q pleaded by the defendant or it is waived.^ An allega1;i(>n ip ithe bill that the , defendants bought with knowledge of the, fraud charge is SHrplusage ajid need not be proved.* The defendant; should state the date, parties and a summary |0f the contents of the deed of purchase.' He should deny notice positively apd should state the amount of the consideration.* It is insufficient to plead that the defendant paid a ' ' good and valuable considera- tion, lio-wit, a certain sum of money. ' ' * Notice to ah individual J. L. Owens Co. v. Officer, C. C. A., § 185c. 1 Boone v. Chfles, 10 244 Fed. 47, ^8, 53. . Peters 177, 211, 212; Wright-Blpd- liFriederichsen v. Eenard, 247 U. gett Co. v. XJ. S., 236 IT. S.,397, 403^ S. 207; Bistline v. IJ. ^., C. C. A., Wood v, Mann, 1 Summer 506. 229 Fed. 546. 2U. S. v. Brannoni, C. C. A., 217 IB Dayis v. Wakelee, 156 U. S. 680, Fed. 849. ; , - , 685, 689, 691, 15 Sup. Ct. 555, 39 3 Boone v., GhUe^, 1,0 Peters 177, L. ed. 578. 211; Wright-Blodgett Co. v. U.; S., 18 Michaels v. Olmstead, 157 U. S. 236 U. S. 397, 403. 198, 201, 15 Sup. Ct. 580, 39 L. ed. 4 "Wood v. Mann, 1 Sumn. 506. g71_ S Secombe v. CamplDell, 18 Blatehf. 17 Greenhall v. Carnegie Trust Co., 108. 180 Fed. 812. 10641 ANSWERS [§ 186 is notice to a corporation subsequently formed by him, of which' he retained the control.* '■ In the absence of a statute requiring ,the record of a lis pendens, it seems that a purchaser ^ without notice, pending a suit is confined to asserting his rights in the pending catise.'' i: § 186. Defense of matter of record or res adjudicata. In general. A plea founded, upon matter of record sets up the judgment or d,ecree 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.^ i , Pleas of matter of record are in some of the books distingui^hqd from pleas pf matter as of recorti. This distincti,on vvas due to the fact that, in England, the Court of Chancery in its equitable jurisdiction, the Court pf Admiralty and ecclesiastical courts were deemed courts not of record, although their decrees had the same. effect as the judgments of the court§ of record.^' "Where there is neither valid service of process, nor voluntary appearance, a judgment in personam is not an estoppel ; ' but a State statute providing that a special appearance for the sole purpose of questioning the jurisdiction is equivalent to a geri- eral appearance, will make a judgment thereupon binding -y^hen attacked' collaterally.* So it has beeii held^ will a rule 'of law, established by the courts of a State, that an appeal frPm an oi'det denying a motion to set aside the service of a summons is equiva- lent to a general appearance.^ , 6Eickey Land & Cattle, Qo. v. Mil- vel .eondepMatione ■ M dbgolvitiqne ler, 218 U. S. 258, 263, 54 L. ed. oontikgit." T. B. Harms, Francis 1032, 1038^ See Linn & Lane Tim- t)ay & Hunter v. Stern, 'C. C. 'a., ber Co. v. TJ. S., C. C. A., 196 Fed. 229 Fed. 42. 593. ' ' 2 Story's Eq. PI., §778. 7 Rickey Land & Cattle Co. v. Mil- 3 Simon v. Southern Ey. Cd., C. ler, 218 U. S. 258, 263, 54 L. ed. C. A., 195 Fed. 56; supra, "§164; 1032, 1038;' citing Whiteside v. Grannis V. Ordean, 234 U. S. 385; Haselton, 110 TJ. 8. 296, 301, 28 L. N. Y. Life Ins. Co. v. Dunlevy, 241 ed. 152, 154. See Atlas Ry. Supply V. S. 518; T; B. Harms, Francis, Co. V. Lake & River Ry. Co., 134 Day & Hunter v. Stern, 229 Fed. Fed. 503; Barstow v. Beeket, 110 42. Fed. 826. See infra, § 477. 4 York v. Texas,' 137 IT. S. 15, 34 §186. 1 Hlpian,' liber 42, tit. 20 L. ed. 604. See sv^a, §169. et leg. 1: "Ees judicata dicitur, 6 Chinn y. Foster-Milbum Co., 195 qiiae finem controversarianim pro- Fed. 158, 162. ■ nunciatione judicius accipit: quod ^§^ll86ai] RES ADJUDICATA 1065 i ,jjt,h(?^i^ven been held that 40 the case of a foreign corporation, , , ; ; .' A judgment,, whioh is vojd as agajins,t one party, not merely yoid^le by. him, is void , as against the; oth,er.', ThjC j,udgm^nt,,of the, same, court, or of.|anptlier court of the Uni^j^d, ^tat^s,^" or of a, court of one of thi? Union,^?- with jurisdi9|:jioij: of .th^ ^ubject-matter and of the parties, in, which the 4efen^afl,t,\yas duly .3erve,d, or voluntarily appeared, is, wit}i the exceptions hereinafter noted, and in the abs,ence,,pf fraud, conclusive , between the parties and theijr privies as , , to /, all ma^teir pleaded apd which might ha,ye.sb|?en,|ti;ied! ift.the.fi^ase, J^o jujjgmeint or decree rendered aft«r, a; proceeding not jmrem, in which the defendant therein was not .served ; with, process y^thJH -th^, jurisdiction ; ^j? or in whjcfe4he .unsuccessful:; party iWasden^^d a. hearing; ^ or ^qme such other, gross injustice was perpetrated, as to ren|der the so-called, judicial,: proceeding. not .djue process of law,— is.o:^,|any,^ffect^ ,■ ; . ; ; : .; a, m^nor, 232 U. S.; 162. 202 Fed. 75,| 10 Tilt v. Kelaey, 207 TJ. S, 43, 5 Higgins V. Eaton, C, C. A., 202 52 L.ed. 95; Overby v. GoKdon, 177 Ted. 75. , U^S. 214. ^, 6 Higgins V. Eaton, 202 Fed. 75. 11 Alexand,er v. Fidelity Tr. Cp., TMaegruder v. Drury, 235 U. S. 238 Fed. 938, aitpro, § 54. ; . 106. 117, Jenison v. Hapgood, 7 IB English v. Brown, 219 Fed. 2*8. Pickering, Mass. 1, 7. . r, §186d.. 1 Clay v, Begins, C. C. 8 Smith V. Smith, 210 Fed. 947. A., 63 Fed. 380; Hennessy v. Ta- 9 Tilt, V. Kejsey, 207 U, S. 43, 52 eoma Smelting & Refining Co., C. C. 1070 ANSWERS [§ i86e question was one of general commercial law and 'jurisprudence and the case was decided upon a demurrer.^ It seems that it can not be attacked because it is against the policy of the' forum,^ unless it was a judgment for a penalty.* Where a motion by a mortgagor' in a State court to set aside a foreclosure sale was denied it was 'held: that the decision could not be reviewed collaterally ' by the Federal courts,' although it was contended that' a question under the Federal Constitution, was involved.^ An order, judgment or decree of a 'State court in a suit instituted isubsequeiit' to the beginning of that in a court of the United ^States is ' not res adjudicata:^ Where a suit was first instituted the decree therein' is conclusive although' not I entered untili after the ;^endency of that in which it is pleaded or offered in evidenced The judgment of a State court has no greater weight as res adjtidicata, than 'would be given to the same -by a State tribunal.* §186e. Reciprocal effect as adjudications of judgments of courts of law and of equity, A judgment at common law is a bar to a bill in eqiiity,' based' 'upon the facts there pleaded or offered in evidence; unless a matter is pleaded in equity, of which' the former court could' not have taken 'cognizance.'' A judgment for nominal damages, in an action at law fbr a breach A., 129 Fed. 240,; Susquehanna Coal ,1 X.E.A. 572, 36, Fed, 337, supra. Co. V. Mayor, etc., of South Ambui;gj S§ 52, 57, Contra, Case v, Mountain 184' Fed. 941;' Chinn v. Foster-Mil- Timber Co!,' 210 Fed. 565. See In- bum Co., 195 Fed. 158; Converse suranee Co. v. Harris, 97 XT. S. 3.31, V. Stewart, C. 0. Aj, 197 'Fed.i 1S2. 24=L. ed. 959. ' ' 2 Fuller v., Hamilton County, 53 ■? David Bradley Mfgi Co. v. Eagle Fed. 411; De Bekker v. Frederick Mfg. Co., 0, C. A„ 57 Fed. 980; A. Stokes Co., 248 Fed. 838, s. c, 58 Fed. 721. S^Beal V. Carpenter, 'C. C. 'A., 2S5 8 Union & Planters' Bank v. Fed. 273. Memphis, 189 XJ. S. 71, 47 L. ed. 4 Wisconsin v. Pelican Ins. Co., 712'; Covington v. First Nat. Bank, 127 it; S. 265, 27 L. ed. 656; Hun- 198 TJ. S. lOO, 49 L. ed. 963; Glen- tiiigtdn V. Attrili; 146 XJ. S. 657, eoe Granite Co. v. City Tr., S. D. 667, 13'Suii. Ct. 224, '227, 36 L. ed. & S. Co., C. 0. A., 118 Fed. '386;. 1123; Interstate Savings '& Trust John D. Park & Sons Co. v. Briieh, Co. v. Wyatt, 1 Colorado A^p.^ 139 Fed. 698; Harrison v. Bern- April, 191S, 147 Pac. 444. ' ' ington Paper Co., O. C. A.,' 3 ';:« QUeens ' La;nd & Title Co. v. L.E.A.(N.S.) 954, 140 Fed. 385, 5 ' Kings County Trust CJ., 2(55 Fed'. Ann. Cas. 314: *i 222. ' §186e. 1 Commercial XJnibn As- 6 Blydenstein v. N. Y. S. & Tr. sur. Co., L'd v. N. J. Eubber Co., Co., 59 Fed. 12; Sharon v. Terry, 64 N. J. Eq. 338, 51 Atl. 451; I 186g] RES ADJUDICATA, BY JUDGMENT IN REM 1071 of contract, was heldtobe not a bar to a suit! for specific per- formance.* A final decreei on the merits' in equity is a bar to further litigation' between the same parties in a court of' law as to the same subject-matter.* A dismissal in equity bedause the case is not within equitable jurisdiction is not a bar to any action or defense at law;* but a judgment- or decree! sustaining a demurrer upon the merits to a bill or, eomplaint must be fol- lowed at law.* , i ' § 186f. Res adjiidica>ta by extrstr-t^Iritorial proceediBgfs. In the ' absence of statutory, authority, a .decree of a State court o'f equity is void which declares to 'be invalid a conveyance of land beyond its 'jurisdiction, butidoes not direct a reconveyance; and such a decree does not bind a court within the 'jurisdiction of which such land 'is situdted.^: So, it 'has been held^-is a "decree foreclosing a mortgage upon and 'gelling property beyond the territorial jurisdiction, unless it compels the mortgagor or the trusteei of the mortgage to execute a, conveyance to the pur- chaser.* , . , . § 186g. Effect as res adjudicata of judgments in rem. A do- mestic or foreign judgment in rem adjudicating the title to land or to a ship or to other movable property withiii the : custody of the court, is in the absence of extraordinary icireum'stanees,^ conclusive, and will not be re-examined ; * unless there was such a failure of notice or disregard of the rules of justice as to' make ,the proceedings not due process of: law.* , i; Slaughter v. La Compagnie Fran- By. Co., 57 Fed. 993; Tarmers' L. eaise, 113 Fed. 21.. : ' : & Tr. Co. v. Postal Tel. Co., 56 2Sperry & HuJ;oMnson Co., v, Blue, Conn. 334, 3 Ani. St. Bep. ,53,1 S., C, State Tax Oom'r, 202 Fed. 82; Chi- 11 AtJ. 18^; MercantiJe.Tr. Co.. v. cago & A. By. Co. v. Pressed Steel Kanawha & 6/ By. Co., 39 Fed. 337. Car Co., C. C. A., 243 Fed. 883. But see MuUer v. Dows, 94 IT. S. 3 Fuller V. Hamilton County, 53 444, ' 24 L. edj 207, supra, § 64, Mi- Fed. 411; Old Dominion Copper fra, §'399. Min. & Snlelt. ' Co. ' V. Lewisohn, C. § 186g. 1 See Windsor v. Mc- C. A., 202 Fed. 178. Veigh,'93 U. S., 274, 23'l. ed. 914. 4 Murray vl City of Pocatello, ^26 2 The James G.' Swan, 106 IFed. TJ. S. 318; 5?' L. ed.; Cramet v. 94; Williams v. Arihrdyd, 7 Cranch, Moore, 36 Ohio St. 471. 423, 432, 3 L. ed. 392, 392; Hudsoh 5 Fuller V. Hamilton County, 53 v.' Guestier, 4 Cranch, 293, 2 L. ed. • Fed. 411. 625 ; Hilton V. Guybt, 159 U, S. 113, §186f. 1 Carpenter v. Strange, 167,i40 L. ed. 95, 109. 14l v. s: 87, 35 t. ed. 640. But 3 Windsor v. McVeigh, 93 tJ. S. see Eq. Bule 8. 274, 23 L. ed. 914. 2 Lynda v. Columbus, C. & K. 1072 ANSWERS [§ 186h § 186h. Effect of adjudication of mental incompetency. An adjudication of mental incompetency is in the nature of a proceeding in rem. It is conclusive and can not be collaterally attacked in any proceeding affecting property in the jurisdiction, and if the alleged incompetent was domiciled within the State, it seems, nowhere, so far as his right to freedom from restraint is concerned. The proper remedy is an application to the court which committed him to set its decree aside. ^ § 186i. Effect of adjudication as to custody of a child. It has been held that the decree of a foreign court awarding the custody of a child is not conclusive, but is a fact or circumstance bear- ing upon the discretion to be exercised, without dictating or controlling it.^ §186j. Effect of adjudications in bankruptcy proceedings. An adjudication in bankruptcy is, so far as regards the admin- tration of the property, good against all the world.^ An adjudication of involuntary bankruptcy upon a petition charging that a conveyance was an act of bankruptcy does not estop the grantee in a suit to set aside the conveyance from deny- ing his knowledge that a preference was intended and any fraud on his part.^ An adjudication of the bankruptcy of a partnership is not res adjudicwta, as to the existence of the partnership against parties who are not heard even if they appeared therein.* The dismissal of a petition of involuntary bankruptcy, which charges that the respondents are partners with a man who had been previously adjudicated a bankrupt, when no issues were tried, was held not to be a binding adjudication upon the ques- tion of such partnership.* § 186h. 1 Chalioner y. Sherman, § 186j. 1 Manson v. Williams, C.'C. A., 215 Fed. 867. But see 213 XT. 8. 453, 53 L. ed. 869. See Gasquet v. Fenner, 235, Fed. 997. m/rci, §§ 636-639. Ward v. Central § 186i. 1 People ex rel. Allen v. Trust Co. of 111., 261 Fed. 344. Allen, 105 N. Y. 628; Morrell v. 2 Gratiot County State Bank v. Morrell, 83 Conn. 479, 77 Atl. 1; Johnson, Trustee, 249 U. S. 246, 39 Woodworth v. Spring, 4 Allen Sup. Ct. 263, 63 L. ed. 587; Ward (Mass.) 321; Hanrahan v. Sears, v. Central Trust Co. of 111., 261 Fed. 72 N. H. 71, in all of which the 344. decree was followed ; Ex parte 3 Ibid. Stewart, 137 N. Y. 202, in which ilte B»an, C. C. A., 230 Fed. 405. the decree was not followed. §186j] BBS ADJUDICATA BY BANKRUPTCY PROCEEDINGS 1073 A decree confirming a composition whiqh xelieves a special partner from further liability and dismisses a petition to have him declared a general partner does not estop those who have not appeared nor proved a claim in the bankruptcjr proceedings nor assented to the composition, fi-pm suing him as a general partner, upon proof of fraud, discovered after the decree; al- though they have paid on a claim made against them for the estate in bankrupitcy, and defended an action upon another claim.^ A discharge by a State court of a receiver appointed under a chattel mortgage, the ground of discharge being that the bank- rupt was solvent, is not res adjudicata, or binding, upoii the triistee in bankruptcy, or creditors not parties to the suit, which will prevent an action to recover from the chattel mortgagees a preference received upon an execution sale a few days after the receiver was discharged.^ An order or judgment of a Referee in Bankruptcy disallowing a claim upon the ground that the claimant has received a preference is' res adjiidicata in a subsequent suit by the trustee to recover the preference^ An order or judgment of a Referee in Bankruptcy denyirig the right to recover from the trustee the amount of a check deposited by a stranger in proceedings for a composition, is res adjiidicata in a subsequent suit against the trustee to recover such deposit.* An order or judgment by the Referee dismissing a claim for reclamation because the vendor by accepting a guarantee of payment had' waived its right to reclaim the property waS held not to preclude a claim by the guarantor to retake the property because it had been subrogated to the rights of the seller.' A judgment allowing a claim for reclamation does not estop a party from enforcing a lien upon the property claimed.^" A decree in a suit by a Receiver in Bankruptcy against certain creditors which set aside a trust deed intended as a general assignment was held to bind the trustee who had publicly par- 5 Pell V. McCabe, 250 U. S., 573. 8 Coen v. James, 164 App. Div. 6 Golden Hill Distilling Co. v. (N. Y.) 419. Logue, C. C. A., 243 Fed. 342. 9 Be Aboudara, 246 Fed. 469. 7TJllman, Stern & Krausse v. Cop- lOiJe Jamison Bros. & Co., C. C. pard, C,,C. A., 246 Fed. 124. A., 227 Fed. 30, 35. Fed. Prac. Vol. 1—68 1074 ^ ANSWERS [§186k ticipated in the defense." It was further held that creditors who had not accepted the trust deed had no standing to attack the decree.^* Creditors who had accepted the deed were bound by the adjudication against the trustee. ^^ § 186k. Ees adjudicata by order in special proceeding. The effect of a final order in a special proceeding is governed by the same rules that apply to a final judgment.^ Thus an order granting a writ of mandamus or prohibition against a .public officer binds his successor in office.^ Questions decided upon .tlie issue of a mandamus to compel the payment of judgments were held to |^,e rps adjudicatae upon an application to enforce a later judgment, so far as concerned the balances of the former judg- ments therein . inqluded, but not as to the other claims.* It was held: that, upon am, application for a mandamus to compel the levy of funds to pay a judgment, a statute of limitations which h,ad ;tiot been pleaded in the action resulting in the, judgment, could not be set up as a defense.* A.n order denying an application for an intervention is no bar to an original bill filed by the petitioners,* but, it has been, said that it is res ad^judicata against a bill in equity to enjoin; the proceedings and to permit the intervention.® I A decree of deportation, rendered by a United; States, Qom- missipner, was held to be an adjudication in rem, binding in a criminal prosecution against a stranger to the proceeding.'' i.An order denying an application for naturalization is an adjudication that the defendant is not qualified for citizenship which bars a second application until he can prove that since the .llDashiell, C. C. , A., 246 Fed. 4 Bunch v. U. S., C. C. A., 252 366. See infra, § 186y. Fed. 673. 12 Ibid. 5 Credits Commutation Co. v. U. 13 Ibid. S., 177 U. S. 311, 44 L. ed. 782; 1 186k. 1 Police Jury of Jeffer- Securities Tr. Co. v. Bank of Ber- son County v. U* S. ex rel. Fisk, 60 nice, C. C. A., 239 Fed. 66,5. . See Fed. 249; Kansom v. Pierre, C. C. Manhattan Tr. Co. v. Sioux City & A., 101 Fed. 665. N. R. Co., 102 Fed. 710, mfra, 2 Bank of Kentucky v. Stone, C. § 259. C. A., 88 Fed. 383, 395, 398. 6 McDonald v. Seligman, 81 t^ed. 3 Police Jury of Jefferson County 753. , V.' XJ. 8. ex rel. Fisk, 60 Fed. 2149. 7U. S. v. Hills, 124 Fed. 831. See See infra, §§ 186t, 457, 459. ex parte Wong Wing, 220 Fed. 353. §1861] KES AD JUDICATA BY INTBELOCUTORY DECREES 1075 decision he has been qualified for at least five years.*. Ai decision by a State court upon such an application which overruled an objection made ombehalf of the government was held not to be an ''illegality" for which it might be annulled.' A decision by the Supreme Court of Michigan upon the review of an order of the State Railroad Commission fiixingi ratesi ds, judicial and not legislative or executive in its nature and is res adjudicata in another suit.^' ..Where landowners had been unsuccessful in proceedings in the. State courts to prevent the forfeiture of their land for unpaid taxes, these judgments against them were res ddjudicatae against a bill in the Federal court to set aside the tax sales and proceedings, as a cloud upon their title.^^ A final order in a proceeding administrative and not judicial in, its natur'e is not res cvdjudicata}^ Such are the decisions of the New Jersey State Boards of Taxation and of Equalization of taxes ^* and a final order in a summary proceeding under' the Act of June 22, 1874 1* for relief against the forfeiture of a boat or merchandise which has been seized.^^ So orders quash- ing a writ or denying an application addressed to the discret tion of a court is usually not res adjudicaia}^ The quashing of a writ of certiorari to review an order is hot res adjudicata in a suit for relief against the order as illegal.^'' The denial of a writ of prohibition is not an adjudication that the court sought to be prohibited has jurisdiction of the proceed- ing which it was sought to stop.^* ' ■ ■ * § 186 1. Effect as res adjudicata by interlocutory decrees and orders. In general a decree ] or order which is intetlocutory sue Guliano, 156 Fed.' 420 ; JBe City v. Central E. Co. of Jersey, il2 Centi, 217 Fed. 833. See supra, § 5 Fed. 76. note. IS Ibid. 9 U. S. v. Ness, 217 Fed. 169. Cf. 14 Ch. 391, 18 St. at L. 189. supra, § 151b. 1* U. S. v. Mneteen Bales Snd ' 10 Detroit & Mackinac Ey. v. Sixteen Bundles of Eugs, C. C. A., Mieh. E. R. Comm., 235 U. S. 402. 247 Fed. 380. But see Prentis v. Atlantic Coast 16 Brooklyn Heights E. Co. v. Line, 211 tJ. S. 226, 227. Straus, 245 Fed. 132. 11 Snyder V. TTpper Elk Goal Co., 17 Ibid. 0. 0. A., 228 Fed. 21. See Carpen- 18 Consolidated Eubber Tire Co. ter V. N. J. & N. & M. Consol., C. v. Ferguson, C. C. A., 183 Fed. 756! C. A., 212 Fed. 868. ' ' See §456, infra. 12 Mayor and Aldermen of Jersey 1076 ANSWEES [§1861 such; as a decree for an injunction,^ or a decree for an injunction and ail accounting because of the infringement' of a patent,* is not a bar, for, until the final decree in the cause, it is subject to revision by the court which entered it.^ When no formal judg- ment has been entered upon a verdict of findings, there is no adjudication.* In certain cases orders which finally determine the rights of parties, such as an order of interpleader,* are conclusive in' subsequent litigation. It has been held: that a judgment ap- pointing 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.® That a motion in a State court to set aside a foreclosure sale, although a question under the Federal Constitution was raised, cannot be reviewed §1861. ISantowaky v. MeKey, 0. C. A., 249 Ted. 51. 2 Australian Knitting Co. v. Gormly, 138 Fed. 92; Whittemore Bros. & Oo. V. World Polish Mfg. Co., 159 Fed. 480. SDavijJ Bradley Mfg. Co., y. Eagle Mf;g. Co., 58 Fed. 721; Reinecke Coal Min. Co. v. Wood, 112 Fed. 477;- Dady v. Georgia & A. By., 112 Fed. 8.38; infra, §443. 4 Oklahoma City , v. ■ MeMaster, 1961, U. S. 529, id L. ed. ,587. It has been held: that the following entries in the docket, although in- definite, sufficiently indicated that the action proceeded to fin^l 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 defendant. Costs assessed against plaintiff, $1,389.15. Rents and money, $1,340. Total amount, $2,729.15. Appeal • to the Supreme Court granted." In the Supreme Court: "Court met pursuant to ad- journment. The bench all present. The evidence in the case was then concluded, and, after some argu- ments by counsel on both sides, the ease was submitted to the court for their decision. The court, after some deliberation, decided that the will is good, and hereby con- firms the decision of the lower court." Holford v. James, 136 Fed. 533. An entry in the rec- ord of an Ohio COurt: stating find- ings, adjudging that the marriage contract theretofore existing be- tween the parties be dissolved and both parties released from its obli- gations; and "that the plaintiff is entitled to alimony * * * an^ that he be ordered to pay," speci- fying the amount "and the costsr of this proceeding taxed at $ '■ — , " was held to be a final judgment. Smith V. Smith, C. C. A., 247 Fed. 461. , B Insurance Co. v. Harris, 97 U. S. 331, 24 L. ed. ,959; siiprq.,^ § 157. But see N. T. Life Ins. Co. v. Dun- levy, 241 U. S. 518, § 158. 6 Burr V. Smith, 113 Fed. 858; supra, S§ 35-37, 93. § 186m] RES ADJUDICATA BY DISMISSALS AND NON-SUITS 1077 by a Disticiet Court of the United States^ 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 district ; * that a decree for alimony and eosts will mot isupport' an action iii another State in respect to future payments for which it provides,^ but as to which it remains stibject to modification at any time, in the discretion of the court thati rendered it; * that a decree was not final, which confirmed and adopted a commissioners' report in pa'rtitibn, reeommeiiding a conveyance of part of the land, a sale of the rest, and a distri- bution,. of , the,, proceeds, as thereafter Ordered upon the con- firmation of the sale.^" Where several suits ancillary to eacji oth^r, \vere -broughtj-in different districts, it was said that the validity of a decree in one district could not be questioned by the same,, parties iii the ancillary suit in another district:*^ Some authorities hold that pending an appeal, the jud-gmfent is not final nor conclusive ;^2 but the rule, does not apply to an application to the Supreme Court, for certiorari,^^, noj; probably to a writ of error which is not a continuation of the original proceeding.^* In determining the effect of an appeal from the judgment of a State court, the State practice will be examined.^* §186m. Res adjudicata by dismissals and non-suits. , A dis- eontinuanee,^ a non-suit,^ or dismissa,l for want of jurisdie- . 7 Queens Land & Title Co. v. 13 Keown v. Keown, 257 Fed. 851. King's County Trust Go., 255 Ted. See Minerals Separation v. Butte 222. & Superior Copper Co'., 227 Fed. 8Du Bois V. Seymour, C. C. A., 401; Finley v. Halliburton, G. C. A., 152 Fed. 600; reversing 145 . Fed. 251 Fed. 860. 1003. ^* GeneraU Electric Co. v. Ameri- 9 Israel v. ^Israel, G. C. A., 9 can Brass & Copper ■ Co., 208 "Fed. .L.B.A.(N.S.) 1168, 8 Ann. Gas. 697, 24; see infra, §687. 148 Fed. 576;' Valiquet V. Valiquet, IBGalaf Y Fugurul v. Calaf Y 177Fedi 994; See Gdtter V. Cotter, Eivera, 232 U. S. 371;' Blue Goose C. C. A. 225 Fed. 471. Min. Co. v. Northern Light Co.; C. 10 Clark: V. Boiler, 199 U. S. 541, C. 'A;, 245 Fed. 727. 50 L. e'd. 300. § 186m. 1 Carlisle v.- Smith, 224 llCompton V. Jesup; 68 Fed. 263, Fed. 231; Hanson T. Hansdn, C. C. 282, per.Ta;ft, J. But see s.' c, 167 A., 234 Fed. 853. V.S. 1 42 L. ed. 55. ' 2Hbmer. v. Brown, 16 How. 354, •I'ZBlue Goose Mining Go. V. North- 14 L. ed. 970; Woodward v. Bavid- ern Light Mining Goi, C. G: A., 246 son, 150 Ted. 840; Muir v. Morris, Fed. 727. 257 Fed. 150; Bixler v. Pennsyl- 1078 ANSWERS [§ 186m tion/ or if or want of proof,* or iotherwise, if not upon, the merits, is not conclusive in ai subsequent action upon the same facts,^ and the rulings in such a case, even if made by the appellate tribunal are not binding in a second suit, brought in another jurisdiction.^ A direction, of a verdict is a conclusive adjudication upon i the issues between the parties.'' The decision of a State court as to the effect of a judgment of a certain character in its courts should, unless a contract is involved, be followred by the courts of other jurisdictions.' Ai decree of a court of equity will not be a bar if it resulted iii' the dismissal of a bill Without prejudice;* or for want of pi-osecution,^" or for multifariousness,^^ or for a slip in prac- tice,^* such as a dismissal upon a verified answer Wh^n an oath vania R. Co., 201 Fed. 553; Que- reau v. LeMgh, Valley . E. -Co., 251 Fed. 986. , : 3 Wayne County Securities Co. v. Hughitt, 228 Fed. 816; Bistline v. U-nitfed States, C. C; A., 229 Fed. 546. For an admiralty case, see the Filhelmina, C. C. A., 232 Fed. 430. 4 Bingham v. Wilkins, Fed. Cas. 14l6;' Ploxin v. Brooklyn Heights E. E. Co., C. C. A., 2d Ct., N. Y. L. J., Jan'y 29, 1920, — Fed. — ; Homer v. Btown, 16 How. 354, 14 L. ed. 970; Woodward v. Davidson, 150 Fed. 840; Muir v. Morris, 257 Fed. 150; Bixler v. Pennsylvania E. Co., 201 Fed. 553; Queieau v. Le- high VaUey E. Co., 251 Fed. 986. 5, Gardner v. Mich. Cent. E. Co., 150 TJ. S. 349, 37 L. ed. 1107. But see Williford v. Kansas City, M. & B., E. Co., 154 Fed. 514. 6 Gardner V. Mich. Cent. E. Co.,- 150 TJ. S. 349, 37 L. ed. 1107; Gil^ hert V. Am. Surety Co., G. C. A., 122 Fed. 499; Harrison v. Eeming- ton Paper Co., C. C. A.,L.E.A.(N.S;) 954, 140 Fed. 385, 5 Ann. Cas. 314; Illinois Cent. E. E. Co. v. Benz, 108 Tenn., 670, 58 L.E.A. 690, 91 Am. St, Eep. 763. 7TJ. S. Farm Land Co. v. iTame- son, C. C, A., 246 Fed. 592. i SCline v, Sfluthern IBy Co., 231 Fed. 238 ; Muir y. Morris, 257 Fed. 150. 9 Durant v. Essex Co., 7 Wall. 107, 19 L. ed. 154; House v. Mullen, 22 Wall. 42, 46, 22 L. ed, 838, 8^9; Northern Pac. Ey. Co,, v. St. Paul, M. & M. Ey: Co.", 47 Fed. 536; in- fra, § 377. ■ ■ ' ' • . 10 American D. E. B. Co. v. Shel- don, 17 Blatchf. 208; s. c.> 4 Bann. & A. 551; Keller v. Stolzenbaeh, 20 Fed. 47; Conn v. Penn, 5 Wheat. 424, 427, 5 L. ed. 125; Badger v. Badger, 1 Cliff. 241; Welsbach iLight Co. V. Cohn, 181 Fed. 122. 11 Young V. TJ. S., 176 Fed. 612. 12 Durant v. Essex Co., 7 Wall. 107, 109, 19 L. ed. 154, 156; House y. Mullen,, 22 Wall. 42, 46, 22 L. ed. 838, 839; Walden v. Bodley, 14 Pet. 158; 10 L. ed. 399; Gist: v. Davis, 2 HiU. Ch. (S. C.) 335; Giubb V. Clayton, 2 Hayw. (N.,C.) 378; Hughes v, TJ." S., 4 Wall. 232, 18 L. ed. 303. See,' however, Starr V. Stark, 1 Saw. 270; Anon.,- 3 Atk. 809; Story's Eq. PI., §790. § 186m] RES ADJUDICATA BY DISMISSALS AND NON-SUITS 1079 by the respondent had not been waived; ^' or because the court had no power to grants the relief,^* or by consent before a hearing/18 even, it has been held, when iti provides that each party sihall pay his own costs 5^^ or by: the former English' practice, if it had not been signed and enrolled, although it could then be insisted : on Iby answer as a good defense." Nor does a judg- ment against the plaintiff upon his default have that effect.^* ^ A decree upon a bill taken as confessed concludes the defendi- ant in another suit,^® and the failure of a party to offer evidence upon, an issue ' does , liot make the adjudication less conclusive against hiin.*" The fact that a writ of error was disraissed by the iappellate court without a decision there upon the merits, does not make the decision below the less conclusive.*^ And wheiire ia bill -was dismissed for want of equity as well as for techtiical objections- to the same, the decree was res adjudicata to a subses- quent suit in another court where such objections were not recognizedi^* , A dismissal in equity because the complainant has 18 Speckart, V. Schmidt, 190 Fed. 499.^"' 'M,i ■ U;:,r.: , , '14 Murray v. Gity of Poeatello, 226 U. S. 318, 57 L. ed. 239. / IB M^isliaUr v.; Otto,, §9 Fed. ;249. IBRincon Water & Power Co. v. Anaheim trnion Water Co., il5 Fed. 543. '17 Anon., 3 Atk'. 809; ^Story's Eq. PI., §790. UGabrielson v. Waydell, 67 Fed. 342. 19 Last Chance Min. Co. v. Tyler Min. Co., 15? U. S. 683, 39 L. ed. 859 ; Eeedy ' v. Western El. Co., C. C. A., 83 Fed. 709; Thompson v. Wodster, 114 U. S. 104, 111, 112, 29 L. ed. 105, 107, 108; Ogilvie v. Heme, 13 Vea. 563. Where, in a!n aiitibh ' oh contract, defendant pleaded ' a counterclaim, to which plaintiff replied by plea in abate- ment^ alleging another suit pending between the same parties in the fed- eral court on the' counterclaim, which plea- -Was clearly invalid, and on the trial defendant failed to ap- pear, Whereupon evidencse was intro- diiced by 'plkintifE to rebiit the merits of the counterclaim, but no evidence was given to sustain the plea in ^ ajljifttement ; held, that a judgment' dismissing the counter- claim would not be presumed to hsve been based on the plea of abatement, but was on the meints, and therefore was res adjudicdia'. Groton Bridge & Mfg. Co. v. Clark Pressed Brick Co., C. C. A,, 126 Fed. 552. 20 Confectioners ' Mach. & Mfg. Co. V. Eacine Eng. & Mach. Co., 163 Fed. 914; Delaware, L. & W. E. Co. v: Troxell, C. C. A., 200 Fed. 44. 21 Johnson v. Hefold, 161 Fed. 593. '■ 22 Venner v. Chicago City By. Co., 195 Fed. 788. Where the court had no power to grant relief, the judg- ment was not res adjvMoato: be- cause, in its opinion, it expressed its views against the complainant upon the merits. 1080 ANSWERS :[§186ll an adequate remedy at law, is not a bar to any action; or defense at law.^^ A judgment dismissing an action upon plaintiff 's refusal to amend is a judgment upon the merits.** A decree sustaining a demurrer to a bill is a bar to a subsequent! bill between the same parties involving the same subject-matter un- less the bill is dismissed without prejudice;*^ and a final decree overruling a demurrer operates as an estoppel upon the de- fendant.*^ ' ' Where a decree of dismissal does not disclose the ground,: in the absence of a State statute upon the subject^ the presumption is that the dismissal was upon the merits; but this is not con- clusive ; and when the decree is pleaded in bar of a subsequent suit, the plaintiff may plead facts showing that it was not.*'' § 186n. Effect as res adjudicata of decisions upon criminal prosecutions. A judgment of acquittal upon,i or for dismissal upon the merits of* an indictment is a bar to a suit by the United States to recover a penalty for the same defense,^ or it has been said, to recover duties charged to be owed because of a fraud which had been pleaded in the indictment,* but not, it seems, to a civil suit to recover damages; ^ or an injunction! upon a charge of the same facts.* § I860. Direct and collateral attacks upon judgment. ' A direct attack upon a judgment or decree, m^y be made by a mo- 23Sperry & Hutehinson Co. v. § 186n. 1 Coffey v. TJ. S., 116 ' U. City of Tacoma, 199 Fed. 853. S. 442, 29 L. ed. 686. : 24Liiidsley v. Union Silver Star 8U. S., v, Salem, 244 Fed. 396. Min. Co., C. C. A., 115 Fed. 46. 3 Coffey v. U. 8., 116 U. S. 442, Z5 Northern Pac. By. Co. v. 29 L. ed. 686. Cf. V. S. v. Oregon Slaght, 205 U. S, 122, 51 L.: ed. C Co., 103 Fed. 549. But see 738; Messinger v. New Eng. M. L. United States v. Dwight Mfg. Co., I. Co., 59 Fed. 416; Bradford Belt- 213 Fed. 522. ing Co. V. Kisinger-Ison Co., C: C. 4 U. S. v. Salem, 244 Fed. 296. A., ,113 Fed. 811. Cf. Lindsley v. 5 stone v. U. 8., 167 Ui S. 178, Union Silver Star Min. Co., C. C. 42 L. ed. 127. See Am. Molting Co. A., 115 Fed. 46; Ohio River B. Co. v. Keitel, C. C. A., 209 Fed., 351. V. Fisher, C. C. A., 115 Fed. 929; Asto the rule concerning judgments Sperry & Hutehinson Co. v. City of of the eourts of the Philippines, see Tacoma, 199 Fed. 853. Chantangeo v. Ababoa, 218 U,, 8. 26 Fuller V. Hamilton Co., 53 Fed. 476, 54 L. ed. 1116. 411. 6U. S. V. Donaldson-Sehultz Co., 27 Stratton v. Esser County Park C. C. A., 148 Fed. 581 ; reversing, Commission, 164 Fed. 901. 142 Fed. 300. §;186o] COLLATERAL ATTACK ON ADJUDICATION 1081, tion in the court where it was entered to set the same aside; ^ by writ of error coram. nobis in the s4me eourt,^ or by bill of .review in the same court; by a writ of error coram vobis ot appeal* or by one of the extraordinary writs * in the court of review; by a bill in the nature of a bill of review,^ a bill to impeach the decree on account of fraud, accident or mistake,* or a bill to suspend or avoid its operation.'^ The judgment or decree can not 'be attacked ^Collaterally unless the court had no jurisdiction over the person -of the defendant or of the subject-matter of the suit,* or the : defendant was denied a hearing or whenever the pro- ceedings were not due process of law." A judgment or decree can be attacked collaterally when the court had no jurisdiction of the subject-matter.' / , A judgment or decree of a court of the United States cannot, be attacked collaterally because the record does not show the necessary 'difference of citizenship between thte piarties to the controversy or that a Federal question was involved; ^^ not even when a motion for a remand has been erroneously, denied. ^^ . In the. latter '^ase, the only remedy, if any, is an appeal or writ of error taken in due time.^^ A judgment or decree. '^ cannot be attacked collaterally for fraud.^' ■ ' - i i § I860. iSee 'mfi'a,' §§ 4'43 ' to lace 457; Andrews v. Andrews, 188 445,-481. • !i U. S. 14; Fordham v. HiekS, 240 Z Infra; % 481. Fed. 751. ' ' S Infra, eh. XXXVI. lOEemjje's Lessee v. Kehnedy, 5 4/n/ro, §§456, 457, 460. Cranch 173, 185, 3 I;.' ed. 70, 73; B Infra, § 450i ' ' Skillern's Ex'rs V. May's Ex'rB, 6 6Pac. E. do. of Mo. ^r..^o. Fa.e. Cranch 267, 3 L. ed. 220; Cameron Hy.' Go., Ill TJ. S. 5Ji5, 28 L. ed. v. McEoberts, 3 Wheat. 591, 4 L. ed. 498. 'Infra, §451. ' See Carpenter 467; Des Moines Nav. Co. v. Iowa V. M. J. & M. & M. Consol., C. C. H. Co., 123 TJ. S. 552, 557, 559, 31 A., 1212 Fed. 868. L. ed!- 202,1 204,- 205;-Dowell v. Ap- T Infra, §452. plegate, 152 TJ. S. 327, 337-341, 38 8 Peninsular Iron Co. v. Els, 68 L. ed. 463, 467, 468: Pullman ^s Fed. 24, 35; 36; Christmas v. Eus- P. C. Co. v. WaShburn, 66 Fed. 7.90. sell; 5 Wall. 290, 305, 18 L. ed. 475, Cf: Empire State-Idaho Min. & De- 479; Mawell v. Stewart, 22 Wall. veloping Co. v. Hanley, 205 TJ. S. 77, 22 L. ed. 564; Snyder v. Upper 225, 51 L. ed. 770. Elk Coal Co.,.0. C. A., 228 Fed. 21. 11 Knox V. Lewis V. Alwood, 228 8a Windsor v. McVeigh, 93 TJ. S. Fed. 753; Mellon v. St. Louis Union 274, -SB L. ed. 914. Supra, § 186. Trust Co., C. C. A., 240 Fed.- 359. 9Eoae V. Himely, 4 Cranch 241, 12 But see imfra, §558. 269; Thompson V.' Whitman, 18 Wal- 13 Peninsular Iron Co. v. Eelsy 68 1082 ANSWERS [§,186p Uhder special circumstances it was held si that an ignorant party who was ilnder duress when sued was not estopped by the judgment against him."> - Where the defendant has- objected in thfe original court to.thei jurisdiction over his person and that court has found against him, , the judgment of another court that the decree in ; the first suit is binding, upon him is due, process of law.^" That it is the, duty of another court to follow the same has; been iheld byia Circuit Court of Appeals. 1® §186p. Matters concluded by adjudication. Where, the parties and the pi-operty in dispute are the same and the plaintiff elaims' the same iright' as in the former suit, the prior adjudica- tion is conclusive both as to all question^ which were actually decided and as to all which might have been considered!^ : But Fed. 24, 35, 36; Christmas v. Eusr sell, 5 Wall. .2,9p, 305, 18 L. ed. 475, 479; ,]^awell y. Stewart, 22 Wall. 77^ 22 L'. ed. 564.' ' ' 14 Hicks V. Fordham, C. C. A., 246 Fed. '236, 239. . . ■ ■ 15 Chicago Life Ins. Co. v. Cherry, 244 TJ. S. 25, 29, 37 Sup. Ct. 492, 61 L. ed. 966. 16 Phelps V. Mutual' Eeserve Fund Life Ass'n, C. C. A., 112 J'ed. 453, 61 L,E.A. 717. See, U. S. OU & 'Land Go. V. Bell,;C. C. A., 219 Fed. 785; Queens Land & Title Co. v. Kings County Trust Co., 255 Fed. 223. , ; §,186p. , iM'Aleer v, Lewis, 75 Fed. 134; Nesbit v. Riverside Ind, Dist, 144 V. S. 610, 36 L. ed. 562; Dowell V. Applegate, 152 TJ. S; 327, 38, L. ed. 463; Cromwell v. County of Sae, 94 U. S. 35 J, 24 L. ed. 195; Jaros H. U. W. Co. v. Fleece H. -IT. W. Co., 65 Fed. 424; Bissell v. Spring Valley Tp.,-124 U. S. 225, 31 L. ed. 411; TJ. S. Tr. Co. v. New Mexico, 183 TJ. S. 535, 540, 46 L, ed.'315, 319; Werlein v. New Orr leans, 177 TJ. S. 390, 44 L. ed. 817 Virginia-Carolina Chemical Cp. . v. KiTven, 215 U. S, 252^,54 L. ed. 179; 2Je Coffip,, 146^ Fed. 181;, Wood, v. Brpwning, C. 0. A., 176 Fed. 273; Hewitt V. Great Western Beet Sugar Co., C. C- A., 230'F6d. 394; GoodMo' V. Hotchkiss, 237 Fed. ,687; Miller V. Belvy OiJ Co., C., ,Qi A., ^248 ,Fed^, 83. See Treat v. Ellis, C. o! A.,'253 Fed., 484. A judgment at law upon a suit to collect a note is not ^n estoppel to a suit in equity ,tp je- scind for fraud a contract wder which a note was given. wh,en, this issue was not raised, in the.fornjer action. , , Indep?nde;it Harvestgri Co. V. Tinsman, C. Oj A., 253 Fed., 951,5, Where a decree in a suit upon a note ^adjudicated, that the plaintiff was a holder in due, course, and pro- vided, that the defendants cpuld not make other def ensep, they may 4n a later suit plead ithe, statute of lim- itations, Pensacola State Bank, v, Thornberry, C. C. A., 226 Fed. 611. It was held that a judgment by default in a suit ,upon a qmntimi. meruit for seryices of a physician was not a bar to an action against him for malpractice. Fall y, B,en- netty C. C. A., 248 Fed., 491,. Contra: ;'186p] MATTERS COlJrCLUDED BY ADJUDICATION 1083 where there is a different matter in dispute; the former judgment Gates' V. Preston, 41 N. Y. 113; Black V. Bartlett, 75 N. Y. 150; Bellinger v. ; Craigie, 31 BaibOur (■N. Y.) 534. Where the same matters were pleaded as a ground of complaint in a suit in a State court to enforce the; State Anti-Trust Act, it was held that the judgment was res ad- judicata in a subsequent' suit to en- force ' the Federal Anti-Trust Actl Straus v. Am. Publishers; C. 0. A., 201 Fed. 306. ■A judgment for the defendant in a suit under a State employers'' lia- bility act was held tb be an estop- pel to a; suit' charging the employer with a liability at feommon law for tlie same ' acts. "Mazzariello v. Do- ii'erty, C. 0. A., 204 Fed. 24'5. ' It hsls been held: that, where, in a suit upon ' cbupons, they and the bbnds froin 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. BisseU v. Spring Valley Tp., 124. XT. S. 225, 31 L. ed, 411; Fitoh V. Stanton Tp., C.,;G. A., 190. Fed. 810;, Hickmajn v. Town of Fletcher, C, 0. A.,19g ;Fed, 907. That in a si)milar action a judgment that the bondhqldjer liad| not piaid the sanie in good faith, was binding in a suit upon, coupons subsequently matur- ing., Fitch V. Stanton Tp., C. C. A., 190 Fed.'sid; ' That a decree in a foreclosure suit, directing that coupdns acquired by a corporation interested be pre- ferred ' iU ' paym'ent out of the pro- (*.eeds'' of 'the' inortgao-ed property befoi'e iShe ' principal, did not bar k s'uit' to require the same obmpamy to account to 'the bondhblders fbr the loss sustained by its diversion or withdrawal of the moneys from ,the sinking fund. Brown v. Penri- sylvania Canal Co., 229 Fed. '444. That a judgment for the defend- ants in a suit to set aside the fore- closure of a mortgage was res ad- jiidicata against a suit by ' a privy of the complaihant to foreclose a sub- sequent mortgage. Eaphalel v. Wasatch & J. V. E. Co., C. C. A., 201 Fed. 854. That where' on the reversal of a foreclosure decree after ' a sale thereunder, the court below; in its action upon the 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 adjudicata so tha;t another suit to set it aside could not be maintained.' ©rape Creek 'C. Co., v. Farmers' L. i& Tr. Co., C. C. A., 80 Fed. 200. ' ' That where in a suit to foreclose a mortgage, the mortgagee Of 'the second mortgage appeared, default- ed, and a decree was entered de- claring he had no interest or , lien or claim to the mortgaged premises; the grantee ;of the owner of the equity paid the first mortgage debt, and had the ..foreclqsure, suit , (dis- missed, held .tliat-the decree was i^ot a bar to the,.assertioja of the second mortgage in a subsequent |Suit. Barnes'v. Cady, 232 Fed. 318. , That a deficiency judgmeiit taken by a trustee m a foreclosure suit does not prevent the bondholders from suing at law upon their bonds'. Maekay v. Eandolph Macon Coail Co., d. C. A., 178 Fed. 881. ' ' ' '"■ That a judgment dismissing aUil'l to ' enforce an alleged BiechanJes' lien, upon the ground that there was no lien, was a bar^ to a subsequent suit by the alleged lienor, to redeem 1084 ANSWERS [§186p property . sold in a f orBclosjire sale. Nat. Foundry & Pipe Works v. O'Conta City Water-Supply, C. Q. A.., 113, Fed. 793. 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 termination of a sublease, and a suit to which the lessor, lessee and sublessee were parties has been brought to determine their rights, in which it was adjudged that the lessor owned and had the right of possession of the cars, and compen- sation for storage of them after the end of his lease was awarded to the sublessee; the decree was res ad judi- 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 & 0. E. Co., 75 Fed. 130. But see Chicago, R. I. & P. By., Co. V. St. Joseph Depot Co-, 92 Fed. 22. . That a decision, that a tax for one year was void because the property taxed was exempt, was conclusive as to the exemption of the property when ' taxed for another' year. New Orleans v. Citizens' Bank, 167 U. S. 371,' 42 L. ed. 202; Gunter v. At- lantic Coast Line, 200 U. -S. 273, 291, 50 L. ed. 477, 486; Goodenow V. Litchfield, 59 Iowa, 226. But see Keokuk & W. B. Co. v. Missouri, 152 U. S. 301, 315, 38 L. ed." 450, 456; Davenport v. Chicago, E. & P. E. Co., 38 Iowa, 633 ; Memphis City Bankv. Tennessee, 161 IT. S. 186, 40 L. ed. 664. ,Cf. Baldwin v. Mary- land, 179 tr. S. 220, 45 L. ed. 160. 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 pther year, Covington ;V. First Nat. Bank, 198 IT. S. 100, 49 L. ed. 963. As to stamp taxes,: see Eutan y. Johnson, C. C. A.., 231 Fed. 369. Where in a suit attacking i the constitutionality or ordinances fix- ing the charges for gas and (impos- ing an occupation tax, the District court upheld the rates but declared the tax to be void; upon an appeal by. the gas company, the ruling -as to the tax was not assigned as error nor was reference thereto made in the opinion or mandate of the ap- pellate court directing: further pro- ceedings, after which the rate was again sustained and, the bill dis- missed without further mention of the tax; held: that the earlier ad- judication should be considered to be part of the, final decree lestab- ' lishing beyond ieollatei;al attack that the tax was void; but that the later decree might be modified, to reiter- ate the earlier adjudication. Lin- coln Gas Go. V. Lincoln, 250 IT., .8. 256. ': :..;. 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 adjudicata against the impbrters in subsequent proceedings before the Board of General Appraisers. IT. S. v. J. G. Johnson & Co., 145 Fed. 1018; EaSt Tennessee T6l. Co. v. Board of Coun- ciimen, 190 Fed. 346. As to internal revenue cases, see Johnson v, Her- old, 161 Fed. 563; supra, § 96g. For a case where a prior decree was held to conclusively establish the sufficiency of maps filed by a railway company, see So. Pac. E. Co. v. U. 8., 168 U. S. 1, 42 L. ed. 355. For a case where a decrpe de- claring stock to be -invalid was, said § l86p] MATTERS CONCLUDED BY ADJUDICATION 1085 to substantiaiy establish the inva- lidity of the claim to pay which the stock was issued, see Townseud v.'St.' L. & S. C. & Min. do., 15*) 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. That a decree of a court of equity dismissing a bill to remove g, cloud ," on title is not so far res adjudicata as to prevent the plaintiff from suc- ceeding in a subsequejnt action of ejectment against the same defend- ant, although the court of equity in its opinion stated that the title of plaintifE, was bad. Phelps v. Harris, 101 U. S. 370, 25 L. ed. 855. But see State v. BuUer, 47 Fed. 415. That a judgment in favor of de- fendants for costs in a replevin suit, where one of the defenses was that plaintiff owned only on undivided interest in the property was no bar to a subsequent action by plaintiff 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 wore entitled to car service thereupon during the con- tinuance of a contract between the land owner and the railroad, was res adjudicat(f in a subsequent suit between the parties, or their privies, on the , question of their property rights in the switch; bui did not affect th6 question as to whether the right to use the switch had been lost by the abrogation 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 pf aye* of a petition of intervention, which sought to establish and enforce a .landlord's lien for the rent of terni- inal facilities, did not preclude the intervener 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. E. 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, sqld by the trustee a part of the purdiase money on ac- count of a- shortage in the; quantity, T/here the amount iiivblVed was small, the shortage very large and no defense was made, does not con- stitute an adjudication of the terms of the contract of sale which will bind the trustee vrhen a much larger claim is filed involving other pack- ages. In re Drumgpble, 140 Fed. 208. That a judgment in :£avor of a defendant in a suit brought against him and others, as partners, is not a bar to a subsequent action on the same contract ,aga,inst him individually, wheja no, statute au thorized the affording of , such re- lief in the former action. Millie 1086 ANSWERS [§ 18f6p is only conclusive of the matters whicS were actually d^cided;^ There is a distinction between the effect of a judgment as a bar to a second action for the same cause, and its effect as an estoppel in another action between the same parties upon a different cause of action. In the former ease, when a judgment of the merits is pleaded, and only then, it is an absolute bar and concludes the ^parties, not only as to all matters offered and received in the former case, but also as to any other matter which might have been offejed for that purpose in the la,tter. In the latter case the judgment cannot be pleaded but may be offered in evidence. It then operates as estoppel only as to those matters which were directly in issue and either admitted or tried.* In the former case, the refusal of the former court, to permit an amendment stating additional grounds for the relief prayeii does not enable the plaintiff to urge these grounds in a second; suit for the same relief.* In general, a judgment is a bar to a second attempt to reach the same result by a different medium concludendifi Iron Mill. Co. v. MeKinney, C. C. A., 172 Fed. 42. 2 Last Chaniie Min. Co. v. Tyler Min. Co., 157 TJ. S. 683, 39 L. ed. 859; Cromwell v. County of Sao, 94 TJ. s: 351, 24 L. ed. 195; So. Pae. R. R. Co. V. U. S., 188 U. S. 519, 533, 46 L. ed. 307, 314; Grider v. Groff, 202 Fed. 685; Kemmerer v. St. Louis Blast Furnace Co., C. A., 212 Fed. 63 ; United States v. JSfaldrett, 214 Fed. 895; Northwest- ern Port Huron Co. v. Babeock, C. C. A., 223 Fed. 479; Smith v. Smith, C. C. A., 224 Fed. 1; T. B. Harms & Fra;aQis, Day & Hunter v. Stem, C. C. A., 229 Fed. 42; Birge-Forbes Co. V. Heye, C. C. A., 248 Fed. 636; Horner v. Hamner, C. C. A., 249 Fed. 137; Ofaoer v. J. L. Owens Co., C. C. A., 252 Fed. 337. In the following eases, amongst others, the previous judgment was held to be conclusive: Se Wm. S. Butler & Co., C. C. A., 207 Fed. 705; Byrd v. Hall, 211 Fed. 182; Swift V. McParland, 215 Fed. 452; Bree- den V. Breedfen^'C. C. A., 230 Fed. 49; Masters v.' City of Rainier, 238 Fed. 827; Watts v. Weston, 238 Fed. 149; Sucesores De L. Villa- mil & Co., S. En C, V. Merced, C. 0. A., 239 Fed. 86; Crewdson v. Shultz, 254 Fed. 24; Srere et al. v. Gottesman et al., 254 Fed. 217; Guzzi Vi Delaware & Hudson Co., 256 Fed. 719. 3 Sutton V. Wentworth, C. .C. A., 247 Fed. 493. • , ,, 4 Nat. Foundry & Pipe A^f)fks^ y. Oconto Water Supply Co., 183 U.S. 216, 234; Bates v. Brodie,, 24:5 tf. S. 524, 526; Miller v. Belyy Oil Co., C. C. A., 248 Fed. 83. 6 U. S. V. Daleour, 203 tJ, S. 408, 423, 51 L. ed. 248, 251. See U. S. V. California & Oregon Land Co., 192 U. S. 355, 48 L. ed. 476. ' § 186p] MATTERS CONCI+UDED BY ADJUDICATION lOS?! To find the matters in issue the pleadings must be examined,' T,o ascertain the controverted points upon which the former determination was made, they must be compared w:ithi the judg- ment and each may furnish a definition of the other.^ If these then show that the verdict could not have been, rendered withpiit deciding the particular matter subsequently questioned, it wiU be considered as settling that matter in all future, actions be- tween the parties and those in privity with them. Where they do not show that the matter was necessarily and directly decided by the court and jury, evidence aliunde consistent with the record may be received to prove what was actually doneJ To whiat extent there may be specification and limitation by evidraice aliunde the Supreme Court has' not yet decided.' Even when it appears from the extrinsic evidence that the matter was prop- erly within the issues in the former suit, if it be not shown that the verdict or findings and the judgment necessarily involved the consideration and determination thereof, the question will, not be concluded.® If, upon the face of the record, anything; is left to .conjecture as , to what was. necessarily involved . ajad decided,; there is no estoppel in it when, pleaded, and nothing conclusive in it whenofiEered as evidence ; ^^ but, where, on the face of the record, it appeared that the judgment might have proceeded, upon one of several grounds, evidence was admitted to sho^ aliunde upon which of these grounds it did proceed, sq as to make it effectual as an estoppel.^^ It seems also that the opinion may be considered.^* . It has 6 Bates V. Brodie, 245 U. S. 524, Lehigh Valley R. Co., 160 IT. S. 110, 5^6. 120, 40 L. ed. 358, 362. 7 Packet Co. v. Siekels, 5 Wall. H Benjamin Schwarz & Sons v. 580, 593, 594; National Foundry & Kennedy, 142 Fed. 1027. Pipe Works v. Oeonto Water-Supply 12 National Foundry & Pipe Co., 183 U. S. 216, 46 L. ed. 157; Works v. Oconto Water-Supply Co., TJ. S. ex lel. Cofifman v. Norfolk 183 U. S. 216., 46 L. ed, 157; Mack & W. Ey, Co., 114 Fed. 682, 686. t. Levy, 60 Fed. 751; U. S. ex rel. 8 Bates V. Brodie, 245 IT. S. 520, Coffman v. Norfolk & W. Ry. Co., 526. 114 Fed. 682; Millie Iron Min. Co. 9 Packet Co. v. Siekels, 5 Wall. v. McKinney, C. C. A., 172 Fed. 42; 580, 594; Clark v. Scovill, 198 N. Murphy v. M'Loughlin, C. C. A., Y. 279, 283; Wood v. Jackson, 8 247 Fed. 385; Gliue v. Southern Ry., Wendell, N. Y. 936. Co., 231 Fed. 238; Blue Goose Min. 10 Russell V. Place, 94 TI. S. 606, Co. v. Northern , Light Min. Co., C. 610, 24 L. ed. 214, 215) MeCarty v. 0. A., 245 Fed. 727. 1088 ANSWERS [§ 186q been said that evidence of remarks by a judge during a trial is not iadriiissible to show the grounds of his decision.^' The opinion of the court upon a question not within the issues is not binding in subsequent litigation.** The scope of the decision upon an appeal is ascertained and determined by the mandate ^^ and, it has been said, by the opinion ** of the appellate court ; and the parties are not concluded as to questions left open by the man- date and opinion, although they were passed upon by the court below." That the first judgment or decree in the matter in dispute was too small to permit its review by an Appellate Court does not prevent it from being a bar to a siabsequent suit which can be brought up by appeal or error.*' A decree for a perpetual injunction is not conclusive upon the right to commit the act enjoined under subsequent legisla- tion *' or pOssibly when under changed conditions.^" A decree einjoining the enforcement of a statutory system of rates for transportation of freight and passengers, because it resulted in confiscation, was held not to be res adjvdicata of a subsequent contention that the statutory rate for passengers, when put into operation with higher freight rates and under changed traffic conditions, was reasonable.^* § 186q. Res adjudicata in patent and trade mark cases. A judgment in an action for royalties causes an estoppel against the same defendant in a suit for royalties accruing subsequently, although he pleads a defense different from that set up in the ^rst suit.* A decree in a suit to enjoin the infringement of a patent, 13 Landon v. Clark, C. C. A., 221 18 Johnson Co. v. Wharton, 152 Fed. 841. U. S. 252, 38 L. ed. 429. As to the 14 Millie Iron Min. Co. v. McKin- effect of an appeal, see Eastern B. ney, C. C. A., 172 Fed. 42. & L. Ass 'n v. Welling, 103 Fed. 352. 15 National Foundry & Pipe 19 Vicksburg v. Vicksburg Water- Works V. Oconto Water-Supply Co., works Co., 206 TJ. S. 496, 51 L. ed. 383 U. 8. 216, 234, 46 L. ed. 157; 1155. Liileoln Gas Co. v. Lincoln, 250 U. 20 Central of Ga. R. Co. v. Rail- S. 256; Farmer V. Atl-coast Line H. road Commission of Ala., 209 Fed. Co., 205 Fed. 319, 322. 75. 16 Ibid. 21 Ibid. iTEussell V. Russell, 129 Fed. § 18eq. 1 Johnson Co. v. Whar- 434. ton, 152 U. S. 252, 38 L. ed. 429. § 186q] RES ADJUDICATA IN PATENT CASES 1089 which declares that the same is valid,: binds upon this question the same defendant in a second suit to enjoin similar infringe- ments, although the only issue raised by the pleadings in the former suit relate to the title.^ But where there was no such finding in the first decree, and the only question then litigated had been the defendants' claim of a Ueense, it was not estopped from contesting 'the validity of the patent in a second suit.' 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 supple- mental bill.^ But the burden of proof is upon the complainant to show that the issues are not the same.^ Since the owner of ^ patent cannot split up his cause of action, a judgment 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 commencepient of the action at law.' A judgment dismissing a suit by the patentee for reclamation of articles subject to the patent, finding that the articles belong to the trustee in bank- ruptcy of a licensee, compels the dismissal of a subsequent suit to enjoin an alleged infringement of the patent by the sale of the articles by the trustee. A decree for a perpetual injunction, damages and profits in a patent case is an estoppel against a second suit for damages and profits on account of infringements committed during the period covered by the first suit of which no evidence was given nor recovery prayed.' But it does not prevent a second perpetual injunction against the same acts to support a decree for an accounting of profits caused by infringe- ments subsequent to the first suit.® , A general vprdict of a jury in an action at common law award- 2 Empire S. N. Co. v. American 6 Panoulais v. Nat. Equipment S. L. B. Co., C. C. A., 74 Fed. 864. Co., 198 Eed. 493. See supra, 3 Lublin V. Stewart H. & M. Co., § 186j. 75 Fed. 294. 7L. E, Waterman Co. v. Kline, , 4T.'b. Wood's Sons Co. v. Val- C. C. A., 234 Fed. 891. ley Iron Works, 198 Fed. 869. 8 Hortou v. N. Y. C. & H. E. R. B Sanitary St. Flushing Mach. Co., 63 Fed. 89. Co. V. Studebaker Corporation,: 226 9 Ibid. Fed. 797. Fed. Pf ac. Vol. I — 69 1090 ANSWERS ,[§ 186q ing damages for the infringement of a patent establishes the validity thereof as between' the parties, but does not disclose the construction placed upon it by the jury, nor what claims in the suit were held to be valid.^" 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 infringemfent hy a different deviee.^^ A judgment denying reclamation by the patentee of articles held by the trustee in bankruptcy of his licensee is binding against the former^ in a subsequent suit to enjoin the latter from selling the articles.^* A decree enjoining the infringement of a patent, Upon d bill alleging that the defendant clalimed 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 plaintiffs' patent.^* Where the owner of a patent had sued a manufacturer for infringement, in which suit the Circuit Court of Appeals of one circuit had adjudicated in favor of the defendant ; and he subsequently; in a suit in another circuit against the seller of a similar article, not made by the former defendant, obtained an adjudication in his favor by the Circuit Court of Appeals ; thfe defendant in the first suit was granted an injunction restraining him from bringing similar suits in any part of the United States against any of that de- fendant's customers; although that defendant had assumed the defense of the second suit.^* 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.^* A decree for a permanent injunction in one circuit, which excepted therefrom a prohibition against, the defendant 's selling infringing articles 10 Cheatham El. S. D. Co. v. Tran- Stanley Instrument Co., 68 C. C. A., sit Development Co., 197 Fed. 563. 541. : 11 Ibid. UKessler v. Eldred, 206 V. S. 12 L. E. Watennan Co. v. Kline, C. 285, 51 L. ed. 1065. ' See ' § 186y, C. A., 234 Fed. 891. supra, § 269a, infra. 13 Leonard v. Simplex El. Heat- 16 Hurd v. James Goold Co., 197 ing Co., 145 Fed. 946. See a note Fed. 756. to "Westinghouse El. & Mfg. Co. y. § 186q] BBS AD JUDICATA IN PATENT CASES 1091: made in another, where the patent had been held to be invalid, was held to be. not an adjudicatibn of the defendant's right to sell sjieh articles in the latter circuit, but merely a reservation of the question until it should arise in a proper case.^^ Where, upon a decree establishing the right to a trademark, it was stipulated that neither the defendant, nor its customers, should be held liable for past infringements, the complainant could not subsequently bring a suit for contributory infringe- ment against one who "had previously, furnished the former defendant cartoons containing the infringing trademark.^'' I A person who has assumed and conducted the defense of a patent case is bwnd; by. the decree, although, not a party to the same.^' A corporation which, pending the suit, acquires the subject-matter of the patent in suit, is estopped by the decree therein ; ^' and where his assignee was successful, the decree ^ is an estoppel in his favor against the oposite party or his privies.^" Purchasers of articles subsequent to a decree in a patent suit are not privies to the decree, nor protected by' the same.** . A decree dismissing a bill in equity upon the merits for an infringement of a patent is a bar to a:subsequent action at law *^ or suit in equity: for an infringement of the same patent by the same device,*' notwithstanding the fact that the complainant, by notice, restricted his proofs and contention to certain specified claims, which are not in issue in the subsequent suit.** A decree sustaining the validity of a patent awarding a permanent in- iSHurd V. Seim, 189 Fed. 591. Co. v. Eaoine Eng. & Mach. Co., 163 17 Hillside, qhemical Co. v. Muu- Fed. 914. son &. Co., 146 Fed., 198. As to the 80 Confectioners ' Mach. & Mfg. effect of a decree which prescribes Co. v. Eacine Eng. & Mach. Co., 163 the language of a certain statement Fed. 914. when enjoining the violation of a 8lHurd v. Seim, 189 Fed. 591. trademark, see G. & C. Merriam Co. 22 Eobinson v. Am. Car & Foun- V. Saalfield, C. C. A., 190 Fed; 927. dry Co., C. C. A., 159 Fed. 131. ISEmnford Chemical Works v. 23 Marshall v. Bryant El. Co., C. Hygienic Chemical Co., C. C A., C. A., 185 Fed. 499; afSrming Bry- 159 Fed. 436; Confectioners' M»eh. aat El. Co. v. Marshall, 169 Fed. & Mfg. Co. V. Eacine Eng. & Mach. 426. Co., 163 Fed. 914; Bryant El. Co. v. M Marshall v. Bryant El. Co., C. Marshall, 169 Fed. 426, afE'd, C. C. A., 185 Fed. 499; affirming Bry- C. A., 185 Fed. 499. See supra, ant El. Co. v. Marshall^ 169 Fed. § 1861. 426. 18 Confectioners ' Mach. & Mfg. 1092^ ANSWERS [§186r junction against infringemetit' and directing an accountihg^ is interlocutory, and is hot final, 'and is not conclusive of the validity of the patent in a subsequent suit between the parties,*^ although it has been affirmed by the Circuit Court of Appeals.^^ § 186r. Effect of splitting cause of action. In order to avoid multiplicity of suits and the harassment of persons by superflu- ous litigation, it is a rule of law ^ and of equity^ that a plaintiff cannot split his cause of action and bring different suits upon demands which the law considers to be indivisible. When a defendant interposes a counter-claim for a sum in excess of the court's jurisdiction, a judgment allowing so much thereof as is within the jurisdiction leaves the remainder open to recovery in a suit where the lialbility of the original plaintiff will be res adjudicata.^ The rule in equity is not inflexible and under special cir- cumstances two claims under a single contract may be the sub- ject of separate suits.* Thus it has been held that where, in a suit upon the same contract for the exploitation of a mine to re- cover from individual defendants money spent in its develop- ment, and from a corpbrationj stdck and dividends, the State court refused to pass upon the latter demand because it in- volved the internal management of a foreign corporation; a second suit might be brought in equity for this relief.* Where an action founded on the Federal Anti-Trust Act' was based on the same facts that had 'been pleaded in an action to en- force a State Anti-Trust law, it was held: that facts adjudi- cated in the latter could not be contradicted in the other.* In the courts of the United States a judgment for; the damages caused by a nuisance such as the excessive use of a street by a railroad company does not bar a subsequent action for a cpn- 25 Australian Knitting Co. v. Mfg. Co., 251 Fed: 696; Union Cent. Gormly, 138 Fed. 92 ; Whitteihore Life Ins. Co. v. Drake, C. C. A., Bros. & Co. T. World Polish Mfg. 214 Fed. 536. Co., 159 Fed. 480. 3 Canton-Hughes Pump Co. v. 26 Australian Knitting Co. v. Llera, C. C. A., 215 Fed. 79. Gormly, 138 Fed. 92. IBeltz v. Great Western Lead §186r. 1 Watts V. Weston, C. C. Mfg. Co.,. 251 Fed. 696. A., 238 Fed. 149, Goodno v. Hotch- B Ibid. kiss, 257 Fed; 687 ; Srere v. Gottes- 6 Straus v. Am. Publishers, C. C. man, 254 Fed. 217. • A., 201 Fed. 306. 2Beltz V. Great Western Lead § 186r] SPLITTING CAUSE OF ACTION 1093 tinuance of the same nuisance.' But where a street has been permanently occupied by a railroad company without compensa- tion to the owners, all the damage thereby caused must be re- covered in a single action.* Where an action for personal injuries .did not abate by the plaintiff's death, it was held, that a judgment therein in favor of his administratrix did not prevent subsequent statutory actions to recover damages for his death.^ Where by the same acts of negligence, the plaintiff suffers a personal injury and also an injury to his property^" or to personal property and real estate,^' separate actions for each class of damages may be maintained. Where the defendants, after an action at law against them for infringement of a patent, commit similar in- fringements, a suit in equity may be maintained for an injunc- tion and damages.^* Where different grounds or relief relating to the same prop- erty contemporaneously exist, a decree dismissing a biir praying for one is no bar to a subsequent suit praying for the other.^' A suit, to compel the transfer of stock and the payment of dividends thereupon declared, was held to be no bar to a suit after the transfer to enforce the. right to subscribe for shares of a new issue of stock which existed before the prior suit was brought." ' If the prayers for relief are inconsistent, a denial of one is no bar to a subsequent suit praying the other ; ^^ but the grant of relief bars a subsequent suit for inconsistent relief based upon the same facts. ^® Thus, a judgment for damages, for breach of 7 Baltimore & P. E. Co. v. Fifth v. Transit Development Co., C. C. A., Baptist Church, 137 U. S. 568, 34 209 Fed. 229, s. c, 203 Fed. 285. L. ed. 784. 13 Union Cent. Life Ins. Co. v. 8 Shepherd v. Baltimore & O. E. Drake, C. C. A., 214 Fed. 537; Bates Co., 130 U. S. 426, 32 L. ed. 970. v. ttnited Shoe Mach. Co., 216 Fed. 8 Puget Sound Traction, Light & 140. See supra, § 185b. Power Co. v. Frescoln, C. C. A., 245 14 Bates v. United Shoe Machinery Fed. 301. Co., C. C. A., 216 Fed. 140. 10 Boyd V. Atlantic Coast Line E. IB Union Cent. Life Ins. Co. v. Co., 218 Fed. 653. Drake, G. C. A., 214 Fed. 537. 11 Chicago, B. & Q. E. Co. v. Daw- 18 English v. Brown, C. C. A., 229 son, C. 0. A., 245 Fed. 338. Fed. 34. 12 Cheathem El. Switching Device .1094 ANSWERS [§ 186s a contract to deliver stock, is a bar to a suit to enforce an equit- able lien thereupon."; ' ..: . ' , "When it is doubtful upon, the pleadings and judgment whether the second suit involves the splitting' of a demand, testimony may be taken upon the subject.^* § 186s, Res adjudicata against privies. A judgment or de- cree is binding upon both parties and; those in privy with them.^ The adjudication may be used- for ^ the benefit of the original parties and their privies.^ It has no legal effect against persons not parties or privies to the suit,^ but under the doctrine of stare decisis it may have great weight as a precedent;* especially in patent and trade^mark cases.^ It was held that a decree es- tablishing a lost muniment of title was not admissible against strangers to the suit, although it was contended to be an admis- sion against the interest of parties against whom it was made.^ Privies are all who have acquired any interest in the propei?ty in dispute after the judgment or decree,' or pending the suit,* provided, in the latter case at least, that; compliance was made with the necessary statutory requirements.^ A grantee of part of a tract of land is not in privity with the grantee of another n English V. Brown, C. C. A., 229 Qo. v, OMrles, C. C. A., 251 Fed. 83. Fed. 34. 7 Moor v. Walsh CJopper Co., 1 18 Societe Nouvelle D 'Armement Eq. Gas. Abr. 39 ; Werlein v. New V. Barnaby, C. 0.' A;, 246 Fed. 68. ' Orleans, 177 tJ. S. 390, 44 L. ed. i 186s. 1 Moor v. Welsh ' Copper , 817. Co., 1 Eq. Cas. Abr, 39; Werlejn v. , 8 Moor v. Welsh Copper Co,,; 1 New Orleans, 177 IT. S. 390,, 44 h. Eq, Cas. Abr. 39. Confectioners' ed. 817; W. A. Gaines & Co., v.Eoek Maeh. & Mfg. Co. v. Eacine Bng. & Spring Distilling Co., 226 Fed. 531. Mach. Co., 163 Fed. 914. G. & C. 2 Carroll v. Goldsehmidt, C. C. A., Merriam Co. v. Saalfield, 0. C. A., 83 Fed. 508; Confectioners' MaehJ & 190 Fed. 927, where those who sue- Mfg. Co. V. Eacine Eng. & Maeh. eeeded to the business of a publisher Co., 163 Fed. 914. pending a suit against him were 3 Searchlight Gas Co, v. Presto-0- l;eld to be bound by the decree sub- Lite Co., C. C. A., 215 Fed. 693; sequently therein entered. But see Mcllhenny Co. v. Gaidry, C. C. A., Eeinecke Coal Min. Co. v. Wood, 253 Fed. 6l3; Bayley & Sons, Inc., 112 Fed. 477; Stewart v. ONeal, 237 V. Blumberg, C. C. A., 254 Fed. 696. Fed. 897^ (a remainderman born 4 DeBearn v. Sale Deposit & Tr. after the time limited for contest Co. of Baltimore, 233 U. S. 24. ' of a will). BSee infra, §277, 279. 9 Jones v. Smith, 40 Fed. 314; 6 Virginia & West Virginia Coalil .supra, §§82, 83, infra, §375. § 186u] RES ADJtIDICATA AGAINST PRIVIES 1095 part nor, boiind by a judgment against the latter." A tenant .whose lease, was prior to the suit;is,ootin privity with the land- lord.^^ The principal is not bound by a judgment against his surety.^* An express ^^ or iraplied ^* warrantor is bound by the' judgment in' a suit against his warrantee if he ihas notice of the sU|it aud an opportunity to defend it. § 186t. Res a4judlcata, a^gainst party in different capacities. A decree dpes. not bind a party in another capacity from that in which he was sued. Thus, a judgment against a trust company, sued individually,, is no ^stopp^L against a suit by it as trustee.^ A decree against, the trustee of a mortgage does not affect the same person Vfi^fiiij claiming as trustee of another mortgage without proof that the bondtiolders Ave the same.* In order that he piay be estopped in his representative capac- ity, it is, not .essential that a party be so described in the title, if it appeal's in the body of the bill.? A party is not estopped by a judgment against him so far as concerns an interest of a stranger to the. suit which he hajS subseque9tly bought.* § 186u. Res adjudicata against beneficiaries of a trust. Or- dinarily, the beneficiary of a trust is bound., by a judgment ,against his trustee ^ or the latter 's predecessor.* Subscribers to 10 Kapiolani Estate v. Atclierley, matter pending the suit and before 23? TJ. S. 119. adjudication. Carroll v. Gold- H See Iroquois Iron Go. v. Kruse, sohmidt, 0. C. A., 83 Fed. 508, 27 C. C. A., 241 Fed. 433; Doctor Jack 0. C. A. 566; Confectioners' Mach. Pot Mining Co. v. Majjsh, 262 Fed. & Mfg. Co. v. Eacine Eng. & Mach. 261. The lUinois Dram Shop Act, Co., 163 Fed. 914, 919. But see 111. R. S. eh. 43, § 10, which makes a Ingersoll v. Jewitt, 16 Blatehf. 378, judgment in proceedings against the Fed. Cas. No. 7039. tenant binding upon the landlord, is § i86t. 1 Bancroft v. Wicomico valid. Eiger v. Garrity, 246 U. S. County Com'rs, 121 Fed. 874. 97. 2Compton v. Jesnp, C. C. A., 68 laU. S. V. California Bridge Co., pg^ 47 ^(.f. Carey v. Roosevelt, 245 V. S. 337. q q ^^ 102 Fed. 569. 18 Wolfe v.Barataria Land Co., C. jg^^ Manigatilt v. Hohnes, 1 C. A., 255 Fed, 503. Bailey Eq. (S. C.) 283. ^ 14 Strathleven Steamship Co Lim- ^ ^ ^ 2^3 ited, V. Bauleh, C. C. A., 244 Fed. j, ^ 930 , 412; Ouneo Importing Oo. v. Ameri- ® " • ^ , „ can Importing & T. Co., C. C. A., 247 § IS^u. 1 Kent v. Lake Superior Fed. 413. See George A. Fuller Com- S. C Co., 144 U. S. 75, 36 L. ed. pany v. Otis Elevator Company, 245 352; Hejall v. Greenhood, 92 Fed. U. S. 489. The estoppel can be 945. For the exceptions, see GofE used by a purchaser of the subject- v. Kelly, 74 Fed. 327; Handlan v. 1096 ANSWERS bonds who have repudiated' their subscriptions are not palfties to a suit by or against the trustee.? A judgment against a guardian ad litem binds his ward.* An ancillary administrator in one State is not in privity with an ancillary administrator in another, and a judgment against the one is not a bar to a suit by the other.^ The same rule applies between executors of a will and administrators with the will annexed appointed in another jurisdiction.^ A judgment upon the merits against a widow, in an action for the benefit of her- self and children, is not a bar to a second suit, brought by her as administratrix, for the same cause of action under the Em- ployers' Liability Act' when the recovery would be for the benefit of the same persons and the defendant is the same.* A judgment against the husband concerning the title to property claimed to be held in community was held to estop him and his wife in a subsequent suit.® § 186v. Res adjudicata aga.inst mortgagees. A mortgages is bound by judgments against the mortgagor entered before the mortgage or in suits pending when the mortgage was made,^ "Walker, C. C. A., 200 Fed. 566, in bankruptcy. Raphael v. Wasatch & J. V. E. Co., C. C. A., 201 Fed. 854; Linton v. Omaha Wholesale .Pi-oduce Market House Co., C. C. A., 218 Ted. 3*1 ; Schnepfe v. Sehnepfe, C. C. A., 230 Fed. 781 ; In re Franklin Brew- ing Co., 254 Fed. 910. 2 New Orleans v. Citizens Bank, 167 U. S. 371, 389, 42 L. ed. 802; infra, § 1864. 3 Beyer v. City of Athens, Tenn., C. C. A., 249 Fed. 849. 4Dunscomb v. Chicago, B. & Q. B. Co., C. C. A., 246 Fed. 394; Co- lumbia-Knickerbocker Trust Co. V. Abbot, C. C. A., 247 Fed. 833, 851. 6 Brown v. Fletcher's Estate, 210 U. 8. 82; Ingersrli v.' Coram, ,211 U. S. 335, 53 L. ed. 208, re- versing C. C. A., 148 Fed. 169, and affirming 132 Fed. 168, 136 Fed. 689. 6 Brown v. Fletcher's Estate, 210 U. S. 82, 28 Sup. Ct. 702, 52 L. ed. 966; Wilson v. Hartford Fire Ins. Co., C. 0. A., 164 Fed. 817. A Fed- eral court followed a California statute and the construction of the same by the State courts, so far as to hold that a foreclosure decree of a State court against an admin- istrator of the mortgagor was bind- ing upon the latter 'a heirs, with- out determining whether, if the foreclosure had been instituted in the Federal court, the heirs would have been necessary parties. Cf. Norton v. House of Mercy, C. C. A., 101 Fed. 382; Hearfield v. Bridges, C. 0. A., 75 Fed. 47. 7 35 St. at L. 65, Comp. St. Supp. ICll, p. 1322. STroxell v. Delaware, L. & "V^ E. Co., 227 tJ. S. 434, reversing 200 Fed. 44; 9 Lichty v. Lewis, 63 Fed. 535. § 186v. 1 Keokuk & Western E. § 186w] RES AD JUDICATA AGAINST 'OOBPOBATIONS 1097 but, not by judgnients in subsequent suits to which he was not a jjarty.^ The holders ot, mortgage, bonds, praviously issued, are not bpund by a, judgment against the mortgagor concerning the liability of its property to taxation; ^ nor concerning the validity or, duration of a franchise covered by the mortgage.* A decree against a trustee binds his successors.^ §186w. Res adjudicata, against corporations, directors and stockholders. A corporation is not estopped by a decree in a suit to, which one of its stockholders was a party.^ Otherwise, however, when the corporation was foFijied by the same persons, who def^Uided the former, suit, ipr the purpose of escaping from the effect of the adjudication.^ A judgment in a patent: suit adjudicating, no infringement by a manufacturing corporation was held to be available as res adjudicata in its fayor by another company which, it owned and contrpUed and acted as its selling agent.' The officers of a corporation are estopped by a decree against their company, ■wh,en they, assisted it in the acts therein enjoined and exclu- sively managed and controlled the same.* Where a corporation I was sued; for the torts of its servants it was held that a judg- ment in favor of the servants was a bar to, an action against it.* A judgment against the corporation estops in his individual capacity an officer who has had control of the defense.^ A judg' Co. V. Missouri, 152 XT. S. 301, 314, B Lewis v. Holmes, C. C. A., 224 38 L. ed. 450, 456. Ted. 411. 2 Pull y. Blackman, 16Q U. S, § l,86w. 1 Am. Coat Pad Co., y., 243, 42 L. ed. 733; Keokuk & West- Phoenix Pad Co,, C. C. A., 113 Fed. em K. Co. y. Missouri, 152 IT. §. 629,632. Nor by a decree against a 301, 314, 38 L. ed! 450, 456; Camp- president and director of the same bell V. Hall, 16 N. Y. 575; Southern in his ,indiyidu,9,l capacity. Brinck- B. & Tr. Co, V. Folsom, C. C. A., 75 erhoff, v. Holland Tr. Co., 159 Fed, Fed. 929; Columbia, A;ye. gav., Fund, 191. Safe Deposit, Title & TrusJ; , C,o. v. 2 Seie McCabe & Steam Constr. Dawson, 130 Fed. 152; Black y. Co. v, Wilson, 209 U. S. - 275, 52 L. Manhattan Trust Co., 213 Fed. 693. ed. 788. ■, I ■, ;, , 3 Wicomico County Com'rs v. 3 Hart Stpel , Co., y., Railroad Sup- Bancroft, ,C, C,. A., 135 Fed. 977; ply Co., 244 p. S. 294. Laighton y. City of. Cajthage, Mo., 4 Saxhelner y. Eisner, 140 Fed. 175, Fed.','l45; _,01d iColpny ,, Trust 93,8, Co. V. Omaha, 230 IT. S. 100., BWilliford v. , Kansas City,- M. 4 Illinois Trust & Savings Bank y. & B. E. Co., 154 Fed. 514. Dqs Moines, 234 Fed. 620. 6 United States Envelope Co. v. 1098 ATfSWERS [§ 186w ment against the' corporation which was' not obtained by fraud, establishes the company's indebtedness to the plaintiff in a suit to enforce a director's liability.'' Stockholders, present or former, 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 corapany ndr' the amount and the necessity of the assessment,* nor Whether it was correctly imposed upoii former stockholders;® but they niay defend upi6n the ground that their shares were fully paid, or as to atny other questioii peculiarly affecting their iiidividtial liability.^" Former stock- holders are also, it has been said, concluded by a judgment finding that there were claims unpaid existing at the time of their transf er.^^ Where the stockholders were parties to such a suit or proceeding and were duly served, they are bound by all questions therein deterniined,^^ alnd a judgment upon the merits in their favor is a bar to subsequent proceedings in another jurisdiction for the same relief.'-* Stockholders are not bound by a judgment against their corporation in a suit which was brought after the proceedings to liquidate its assets had begun.'* It. has been held that a judgilient establishing the 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.is '■'■■ Transo Paper Co., C. C. A., 221 Ted. ' and the ratable share of the latter 79. ' ,..!,. 1 g]^gg_ 7 Northern Pac. Ey. Co. v. Crowell, 10 Eood v. Whortbii, 67 Fed. 434 ; 245 Fed. 668. Mottinger ' v. Hendricks, 208 Fed. 8 Hawkins v. Glenti, 131 U. S. 824. ' 319, 33 L. ed. 184; s. c, 135 V. S. n Hamilton v. Selig, 195 Fed. 153. 533, 34 L. ed. 262 ; Hamilton V. Aff'd. 234 XJ. S. 652. Levison, 198 Fed. 444; Southworth 12 Irvine v. Blackburn, 198 Fed. V. Morgan, 205 N. Y. 293; Bood v. 360. Whorton, 67 Fed. 434. Be New- 13 Converse v. Stewart, 192 Fed. foundland Syndicate, C. C. Al, 201 941. Fed. 917; Selig v. Hamilton, 234 l4Schrader v. Manufacturers' U. S. 652; Marin, as receiver of the Nati Bank, 133 U; S. 67, 33 L. ed. American Biscuit Company; of 564. Cf. Ward v. Joslin, C. C. A., Crookston v. Augedahl, 247 tJ. S. 105 Fed. 224. 142. IB New Orleans v^ Citizens ' Bank, 9 Selig v. Hamilton, 234 U. S. 652, 167, XJ, S. 371, 380, 402,-42 L. ed. § 186y] EES ADJUDICATA AGAINST STRANGERS 1099 § 186x. Effect as adjudications of proceedings against public corporations and public officers. A State is not bound by a judgment against one of its ofScers for the possession of lands, which he claims to hold in its behalf. ^ A homesteader is hot bound by a decree against the United States in a suit brought by the Government to cancel a lalhd patent to a railway coinpaiiy.^ A judgment against a municipal officer binds his successor in office, the municipality, and the Other officers, so far as their official obligations are concerned,' and also the citizens and tax- payers.* The same effect is given to an order for a mandamus,* or for a writ of prohibition.® A municipal corporation is not necessarily bound by a decree in a suit against another munici- pality, to which officers of the State were parties.' Au injunc- tion in a taxpayer's suit, which restrains a municipal corporation from paying bonds, ■ does not estop a bondholder, who is not a party to the suit.' § 186y. Res; adjudicata against persons not parties nor privies. A person who succeeded ito the defendant's rights, previous to the institution of the suit, is not bound by and cannot claim the beiifefit of the' decree therein.^ Persons not parties nor their privies have been held to be bound by ^ and to have the, benefit of decrees as estoppels When 202, 205, 212. See TTnion & Plant- 101 Ted. 665; MeEvoy v. New York, ers' Bk. v. Memphis, 189 U. S. 71, 56 App. Div. 222. See sufra, § 186j; 47 L. ed. 712. in/ro, §§ 457, 459. 6x. 1 Tindal v. Wesley, 167 U. 6 Bank of Ky. v. Stone, C. C. A., S. 204, 42 L. ed. 137. See supra, 88 Fed. 383y 395j 398. See infra, §105. §450. 2 Brandon v. Ard, 211 IT. S. 11, 7 Bank of Kentucky v. Kentucky, 53 L. ed. 68. 207 TJ. S. 258, 52 L. ed. 197. 8 New Orleans v. Citizens' Bank, SClagett v. Duluth Tp., C. C; A., 167 U. S. 371, 389, 42 L. ed. 202, 143 Fed. 824. 208; Scotland County v. Hill, 112 § 186y. 1 Calftulagraph Co. v. Au- U. S. 183, 28 L. ed. 692. Harshman toinatie Time Stamp Co., 154 Fed. V. Knox Co., 122 U. S. 306, 30 L. 166. ed. 1152; State v. Eainey, 74 Mo. 8 Plumb v. Crane, 123 U. S. 560, 229; Harmon v. Auditor, 123 111. 31 L. ed. 268; Bank of Ky. v. Stone, 122, 5 Am. St. Eep. 502. ' 88 Fed. 383, 396; Lane v. Welds, 4 Mcintosh V. Pittsburg, 112 Fed. C. C. A.j 99 Fed. 286; PenBeld v. 705, 707. C. & A. Potts & Co., C. C. A., 126 B Police Jury v. TJ. S., 60 Fed. Fed. 475; Sacks v. Kupferle, 127 249; Eansom v. Pierre, 0. C. A., Fed. 569. 1100 ANSWERS [§ 186y they have controlled the defense ; ^ v;^hen they have defended the suit openly to the knowledge, of the adverse party and for the protection of their own interests ; * but not unless they have exercised some control over the management of the defense or prosecution as the case may be.^ A decree is not res adjudicata against a stranger who partici- pated in the defense unless it is so far final as to be res adjudi- cata against the original defendant.* The secret payment of the expenses of the defense,' unless known to the opposite party, in which latter case the judgihent binds the payer,* or the public filing of a brief upon appeal,^ in the first suit, is insufficient ; but a party who intervenes upon an appeal will be estopped by the decree.^" 3 Parish v. State Banking Board, 235 XJ. S. 498. 4 Cramer v. Singer Mfg. Co., 93 Fed. 636; Greenwich Ins. Co., v. N. & M. Friedman Co., C. C. A., 142 Fed. 944; Confectioners' Mach. & Mfg. Co. V. Eaeine Eng. & Mach. Co., 163 Fed. 914; Bemis Car Box Co. v. J. G. Brill Co., C. 0. A., 200 Fed. 749; Gilchrist Co. v. Erie Spe- cialty Co., 215 Fed. 741; Eowe v. HiU, C. C. A., 215 Fed. 518; James Clark Distilling Co. v. Western Maryland Ey. Co., 219 Fed. 333; Cushman v. Warren-Scharf Asphalt Paving Co., C. C. A., 220 Fed. 857; U. S. Envelope Co. v. Transo. Paper Co. (D. Conn.), 221 Fed. 79; Gil- christ Co. V. Erie Specialty Co., C. C. A., 231 Fed. 659; Searchlight Horn Co. v. Am. Graphophoue Co., 240 Fed. 745. Se Dashiell, C. C. A., 246 Fed. 366; T. L. Smith Co. v. Cement Tile Machinery Co., C. C. A., 249 Fed. 481; Dunscomb v. Chicago B. & Q. E. Co., 246 Fed. 394; Sabine Hardwood Co. v. West Lumber Co., 248 Fed. 123; Deer Island Lumber Co. et al. V. Savannah Timber Co., C. C. A., 258 Fed. 785. 6 Eumf ord Chemical Works v. Hygienic Chemical Co., 215 TJ. S. 156, 54 L. ed. 137; Confectioners' Maeh. & Mfg. Co. v. Eaeine Ehg. & Mach Co.,, 163 Fed. 914; Taigman V. Desure, C. C. A., 253 Fed. 364. 6 S. & C. Merriam Co. v. Saalfield & Ogilvie, 241 U. S. 22. 7 Cramer v. Singer Mfg. Co., 93 Fed; 636; Litchfield v. Goodnow, 133 U. S. 549, 31 L. ed. 199; Hanks Dental Ass'n v. International Tooth Crown Coi, C. C. A., 122 Fed. 74; Westinghouse Electric & Mfg. Co. V. Jefferson Electric Light, Heat & Power Co., 135 Fed. 365; JefEerson Electric Light, Heat & Power Co. v. Westinghouse Electric & Mf^. Co., C. C. A., 139 Fed. 385; EumiEord Chemical Works v. Hygienic Chemi- cal Co., 148 Fed. 862, aff'd 215 U. S. 156, 54 L. ed. 137; Kapiolani Estate V. Atcherley, 238 IT. S. 119; Helm V. Zarecor, 213 Fed, 648; Stromberg Motor Devices Co. v. Zenith Carburetor Co., 220 Fed. 154; M'llhenny Co. v. Gaidry, C. C. A., 253 Fed. 613 ; M. B. Fahey Tobacco Co. V. Senior, 247 Fed. 809. SGoodno V. Hotchkiss, 237 Fed. 687; Elliott Co. v. Eoto Co., C. C. A., 242 Fed. 941. estryker v. Goodnow, 123 TJ. S. 527, 31 L. ed. 194. 10 Martin v. People's Bank, 115 Fed. 226. § 186z] EES ADJUDICATA IN CLASS SUIT 1101 § 186z. Bes adjudicata in suits on behalf of a class. A de- cree in a suit brought by one on behalf of all of a class of bond- holders ^ or other fcreditors ' or it seems, of any other class, except holders of certificates of membership in an insurance company or association,' taxpayers,* and in certain cases stock- holders,*, does not bind the rest ; unless they come in and con- tribute or prove a claim against the fund in court. A decree in a representative suit brought by some on behalf of all, or against some as representatives of the other members, of aclass of holders of certificates of life insurance in an insurance com- pany or association binds them all.* So, it has been held, does a decree in a suit brought by on€ on behalf of all the stockholders as regards their common rights ; or to enjoin or set aside a contract made by the corporation.' It has been said that where the stock- holder does not expressly sue on behalf of the others the decree against him does hot bind' them.* It seems that a judgment in a taxpayer's suit binds all the taxpayers.' A person subjects him- self to the estoppel of the final decree by proving his claim.^" The doctrine of laches and estoppel may be applied to other mem- bers of the class who had notice of the suit and an opportunity § 186z. 1 Wabash R. R. Co. v. trol property held for religious uses. Adelbert College, 268 V. S. 38, 58, 2 Hart v. Globe Ins. Co., Il3 Fed. 52 L. ed. 379, 388; Compton V. Jes- 109. up, C. C. A., 68 Fed. 263, 285 (both 8 Hartford Life Ins. Co. v. lbs. these eases relate to the same bond- 237 U. S. 622, 671. holders ' suit) ; Hart v. Globe Ins. 4 Gamble v. City of San Diego, 79 Co., 113 Fed. 309 (a creditors' I^ed. 487. suit); Jaekson Co. v. Gardiner In\». BDana v. Morgan, C. C. A., 282 Co., C, C. A., 200 Fed. 113, 117 (a Fed. 85. bill filed by stockholders, which was 6 Hartford Life Ins. Co. v. lbs, not expressly filed on behalf of the 237 V. S. 662, 671. others.) See supra, §§114-116. In 7 Dana v. Morgan, C. C. A., 232 Helm v.^arecor, 213 Fed. 648, 653, Fed. 85. it was held that a decree of a state 8 Jackson Co. v. Gardiner Inv. Co., court in an action quo wairanto to C. C. A., 200 Fed. 113, 117; Contra, oust a religious body was not res Grant v. G-reene Consol. Copper Co., adjudicata in a subsequent suit by 169 App. Div, (N. Y.) 206, 215. members of the religious body on 9 Gamble v. City of San Diego, 79 behalf of themselves and the rest Fed. 487. against certain members of the for- 10 St. Louis-SanFranciseo Ey. Co. mer body on behalf of them and the v. McElvain, 353 Fed. 123. others to determiae the right to con- 1102 ANSWERS [§ 186zz to intervene.^^ The failure to raise the objection of fraud in the first suit does not effect the conclusiveness of the judgment when the latter suit seeks the same relief.^* Neithet does the 'fact that in the first suit acts were repudiated and a trust ex maleficio in consequence thereof sought to be enforced, while the second ease is brought to enforce an express trust asserted to have arisen from the same acts which the second plaintiff ratifies, ^ the relief in each being substantially the same.^' The plaintiff in the second suit has the burden of proof that he had no contemporary knowledge of the former litiga;tion,^* . It has been held that the doctrine of res adjudicata will be applied to a suit by stock- holders to enforce a right of their corporation,^^ to a suit by one of those interested in a mortuary insurance f Jind on behalf of those similarly interested, to establish respective rights r of the members thereof. ^^ § 186zz. Res axljudicata between joint parties. Where par- ties sue or are sued, jointly and there are no cross pleadings between them, the judgment in favor of either or both creates no estoppel between them, as to the duty of contribution or the right to share in the proceeds,' iinless the record shows that 'a controversy between them' upon the subject was actually raised and determined.^ § 187. Practice upon the defense of res ad judicata. In plead- ing a judgment or decree, it is not necessary to set it forth, nor the proceedings upon which it was founded, at length,^ but so much of the decree and pleadings should be averred as will show that the same point was in issue,* together with the commence- ment and service of process in the former suit, its general char- acter and object, the relief therein prayed, and sufficient 11 Dana v. Morgan, C. C. A., 232 § 186zz. 1 Bradford v. Meyers, Fed. 85. See §§183, 185, swpra. 231 U. S. 725; In City of Owens- 12 Dana v. Morgan, C. C. A., 232 boro v. Westinghouse, Church, Kerr Fed. 85. & Co., C. C. A., 165 Fed. 385. 13 Grant v. Greene Consol. Copper § 187. 1 Mcintosh v. Pittsburg, Co., 169 App. Div: (N. Y.) 206. 112 Fed. 705. 14^6 Dashiell, C, C. A., 246 Fed. ZRicardo v. Garcias, 12 CI. & 366; F. 368; Story's Eq. PI., §783; 16 Dana v. Morgan, C. C. A., 232 Mound City Co. v. Castleman, 171 Fed. 85. Fed. 520. 16 Hartford Life Insurance Co. v. lbs. 237 V. S. 662. § .187] PRACTICE ON DEFENSE OF iIeS ADJUDICATA 1103 averments of the facts to show that there is an identity: of subject-matter.? In case of such a plea, underthe fqrmer prac- tice, 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.* It has been held: that profert of the judgment is sufficient.* "Where a decree in a former suit is introduced in evidence on stipulation without the objection that it has hot been properly pleaded, it will be given full effect as a bar.^ A prior decree can usually be put in evidence without having been pleaded where the pleading of the party sets up the facts which were adjudicated by the decree; and the decree is then con- clusive evidence of such factsv' When the former judgment was at common law, there is no necessity for a preliminary de- cree in equity to establish the defense.* 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.® 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.^" But offering evidence of such facts while the former decree was merely in- terlocutory does not waive the right to claim that it is a bar after it has ripened into a final decree.^^ It has been held: that a motion to strike out evidence as to the origihal cause of action, beca;use this was merged in the judgment, did not preclude the defendant from showing that the judgment was invalid.^* 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 3 Mound City Co. v. Castleman, 8 Weber v. Hertzell, C. C. A., 230 171 Fed. 520. ^ed. 965. 4 Emma S. M. Co. v. Emma S. 9 Southern Bao. By. Co. v. U.. S., M. Co. of N. Y., 1 Fed. 39. C. C. A., 186 Pad. 737. .„ o. A -D 1,1- V, . 10 Mack V. Levy, 60 Eed. 751. 6F. Straus v. Am. Publishers' u David BradlS Mf g. Co. v. Ea- Ass'n„C. G. A., 201 Fed- 306, 309. ^^ ^^^ ^^^ ^^ ^^^^%^^, ^^^^^ 6 Emma S. M. Co. v. Emma S. M. ^ National Metal Weatherstrip Co., Co. of New York, 1 Fed. 39. ^47 pg^ 741. uayia Bradley Mfg. 7 David Bradley Mfg. Co. v. Cq. v. Eagle Mfg. Co., C. C. A., 57 Eagle Mfg. Co., 58 Fed. 721; South- Fed. 980. ern Pac. R. Co. v. TJ. S., 168 U. S. 12 Wayne County Securities Cp. v. 1, 57, 42 L. ed. 355, 379. Hughitt, 228 Fed. 816. 1104 ANSWERS [§187 to the same effect has been entered.^' 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.^* 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 - fiinal decree, and '■ within a month after the dismissal by the Supreme Court of the United States of a petition ior a writ of certiorari to review the same. ^* 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 ;^s but it might be considered when raised by an amended answer,^'' or in a petition.!* A decree based, in whole or in part- upon a plea of res adjwdHcAtay^-will be reversed upon appeal; where, subse- 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; !* even when it was by a State court ; ^* 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 aidjudicata.'^^ . It is no ground fc(r reversal that in subsequent litigation the State court of last resort ^^ or the Supreme Court of the, United States ^^ has over- ruled the doctrine, which was the foundation pf the decision that 13 David Bradley Mfg. Co. v. Ea- Mining & Developing Co. v. Bunker gle Mfg. Co., 57 Fed. 980; Brediii Hill & S. Mining & Concentrating V. National Metal Weatherstrip Co., C. C. A., 121 Fed. 973; Hen- Co., 147 Fed. 741. ' nessy v. Tacoma Smelting & Befiii- WPenfield v. C. & A. Potts & ing Co., C. C. A., 129 Fed. 40. Co., CO. A., 126 Fed. 475. 20 Ibid. 15 Penfield v. C. & A. Potts Cb., 21 Board of Councilmen v. Deposit C. C. A., 126 Fed. 475. ' Bank, C- C. A., 124 Fed. 18. 16 Warren Featherbone Co. v. 22 Virginia-Carolina Chemical Co. De Camp, 154 Fed. 198; infra, v. Kirven, 215 TJ. S. 852, 54 L. ed. §195. 179. 17 See infra, §§212, 214. 23 Ferguson v. Babcock Lumber & 18 Penfield v. C. & A. Potts & Co., Land Co., C. C. A., 252 Fed. 705, C. C. A., 126 Fed. 475. aflarming 243 Fed. 623; see «iipr», 19 Fansom v. St. Pierre, 0. C. A., § 50. 101 Fed. 665; Empire State-Idaho v § 187] PRACTICE ON DEFENSE OF RES AD JUDICATA 1105 is pleaded. 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 Supreme Court of the United States- and is there pending undetermined.2* Where a decree for a perpetual injunction and an accounting was afiarmed, it was held: that an infringement could iot' before accounting set up by petition to the Circuit Court of Appeals as res adjudicata,^^ a judgment of another Cir- cuit Court of Appeals in another action.^^ The defense may be raised by a demurrer when the allegations of the bill show that it exists**' A statement in the judgment or the judgment roll that the defendant appeared by counsel is ' presumptive evidence that the appearance was authorized.^^ j^ g, suit upon a foreign judgment the authority to appear may be contradicted.** Evidence that the attorney was authorized to appear specially but not generally in the original suit is suflScient to attack the validity of the judg- ment.^" The recitals in the record of the judgment are not conclusive proof that the defendant was served or duly appeared ; *^ but they are presumptive evidence of the point and in view of the presumption of regularity, a decree which recites that an order , or publication had been duly published and executed is not open to collateral attack because no aflSdavit in support of the order is in the record, when the State statute does not specificially require a written aflSdavit.** It has been said that to authorize rec(3very upon a judgment there should be some evidence, either by the recitals of the judgment or otherwise, to show that ihQ court, which rendered it had acquired jurisdiction over the defendant, or the court should have before it the entire reeoi'd upon which, nothing appearing' to the contrary, to predicate a presumption 24EaateiH B'g & Loan Ags'n v. 28 Lucas v. VuJean Iron Works,, Welling, 103 Fed. 352.. 233 Fed. 823. 26 National Brake & El. Co, v, 29 Ibid. Christen'sen, C. C. A., 258 Fed. 880. 30 Blue Goose Mining Co. v. 26 Hewitt V. Great Western Beet Northern Light Mining Co., G. C. A., Sugar Co. et. al., C. C. A., 230 Fed. 245 Fed. 727. 394. SI Virginia & West Virginia Coal arjarrell v. Cole, C. C. A., 215 Co. v. Charles, C. C. A., 251 Fed. 83. Fed. 315; Lucas v. Vulcan Iron ^32 Denny v. Giles, C. C.iA,,; 250, Works, 233 Fed. 823. Fed. 987. Fed. Prac. Vol. 1—70 1106 ANSWERS [§188 of jurisdiction over the parties:'^ The court may refuse ' to receive evidence to prove want ' of jurisdiction until the de- fendant's case is reached, and before then admit judgment, subject to attack.^* In a suit upon a foreign judgment, certified copies of the record on appeal showing affirinajice are admis- sible.*'' The court will take judicial notice of its own records, as to proceedings formerly had by a party to a proceeding before the court.*® § 188. Defenses peculiar to patent cases. The Revised Stat- utes provide: "In any action for infringement the defendant may plead the general issue, and having given notice in writing to thci 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 description and specifica- tion filed by the patentee in the Patent Office was made to con- tain less than the whole truth relative to his invention or discov- ery, or more than is necessary to produce the desired effect ; or, second, that he had surreptitiously or unjustly obtained the pat- ent for that' which was in fact invented by another, who was using reasonable diligence in adapting and perfectinjg the same; ; or, third, that it had been ;paterited 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 material and substantial part of the thing patented; br, fifth, that it had been in public use or on sale. in this country for more than two years before his application for a patent, 'or had been abandoned to the public*,: And in notices as to proof I 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 residences 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 tjie like defenses may be pleaded in any suit in equity for relief against an alleged in- 33 Blue Goose Mining Co. . V. 86 De Beam v. Safe Deposit & Tr. Northern Light Mining Co., C. C. Go. of Baltimore, 233 U. S. 24. A., 245 Fed. 727. 88 Infra, § 329a. 34 Ibid. § 188] DEFENSES PECULIAR TO PATENT CASKS 1107 friingement; and proofs of the same may be given upon like notice, in the answer of the defendant, and with the like effect.'' ^ Inconsistent defenses may be pleaded.^ The defendant may deny complainant's title and allege that he owns the patent and also deny its validity.' The respondent cannot set up as a de- fense that if coinplainant's patent be so construed has to cover the machine tnade and sold by him, then the machine embraced in said' patent was knowj^ and used prior to the invention thereof by the patentee.* It has been held that defenses impugning the validity of complainant's patent^ and the defense of ubn-in- fringementi^ are nbt 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 by the patent was not an invention, and a further plea that the invention was not patentable.'' ■ A denial in the ansiVer in a suit for infringement of la patent .that, the patentee was the first inventor of the improvement described in the patent named in the bill, specifying it by num- ber,, is sufficient to raise the issue of invention, although the title of the patent as stated in the answer may be' technically inaccurate.* Where a bill alleged past and present infringe- ment, 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 adniitted that defendant had previously sold a machine which had been adjudged an infringeiment, but alleged that it had ceased selling: the same ''long prioE" to the beginning of the suit and returned the parts on hand to the manufacturer, and siiice "that time" had sold no machines of 1 TJ,. S. R. S., § 4920. Cf. 8 Cleveland Eng. Co. v. Galioh Anderson v. Miller, 129 XT. S. 70, Dynamic Motor Truck Co., 243 Fed. 32 L. ed. 635. 405. 8Eq; Eule. 30, mpra, § 175. Un- 4 Graham v. Mason, 4 Cliff. 88. der the former rule it was said that S Nat. Mfg. Co. v. Meyfers, 7 Fed. ".tie , respondent cannot set up as 355. a defense that if complainant 's pat- 6 Niagara Fire Extinguisher ' Co. ent be so construed as to- cover v. Hibbard, C. C. A., 179 Fed. 844. the machine made and sold by him, 7 BricMU v. Hartford, 57 Fed. then the machine embraced in said 216; Blackedge v. J; M. Shock patent was known and used prior Absorber Co., 213 Fed. 478. to the invention "thereof by , the 8 Robinson v. American Gar & patentee." Graham v. Mason, 4 Foundry Co., C. C. A., 135 Fed. 693. Cliff. 88. ■, 1108 ANSWERS [§188 that , character;, was indefinite and evasive and not responsive, and must be treated as admitting the averment that defendant had infringing machines on hand which it was offering for sale.' Where the answer alleged that : the patented machine had been u^pd by the defendant before the application for the. patent and that he was its inventor, upon his failure tOi sustain such allega- tion, it was held that there was such an i admission of infringe- ment ;as entitled the complainant to a degree against him.^" When defendants avoided answering specific interrogatories concern- ing a charged infringement, but merely denied the use of any inachinej*y "in, violation and infringement of any rights of the plaintiff, or;tliat they are using, or haye made, or sold, or used any machines not protected or covered by the proviso in the act of Congress; 'Sit was said that they thereby presumptively ad- mitted the infringement charged.*^ . T,he patentee who has assigned his patent:^* or a licensee whose license has not been repudiated ^* cannot contest its validity in: a suit for its infringement.^* The same rule iapplies to the licensee pf the assignor ^* and to the employer of the assignor who has in- structed the latter to design a competing device which will avoid infi;'ingement.^® The estoppel does not prevent the assignor or 9peere,& Webber Co. v. Dowag- thaler Linotype Co. v. lat. T, Maek. iac Sifg;'t!o.,,C. C. A., 153 Fed. 17,7. Co!, 229 Fed. 168; Lpa,der Plow (3o. lO'Eeed V. bropp Concrete Ma- v. Bridgewater Plow Co., C. C. ,A., cMliery Co., C. C. A., 225 Fed. 764. 237 Fed. 376. It has been held that llAgawam Co. v. Jordan, 7 Wall. the assignor of a patent cannot siie 583, 609, ,19 L, ed. 177, 184. An his assignee for infringement of an admission in an answer that the older ahd broader patent , subse- defendant had maiie locks of the quently acquired by him covering kind described in the patent sued the same invention when' the assig- upon, "is satisfied by assuming that nee has acted within the limits of the the smallest number of locks were patent assigned. United Printing made consistent with • the use of Mach. Co. v. CrosS Paper Feeder that word in the plural, and with Co., 220 Fed. 322. the use by the defendants of any 13 Martin v. New Trinidad Lakp part I of the patent which is valid." Asphalt Co., 255 Fed. 93. See Miller, J., in Jones v. More- 14 Mergenthaler Linotype Co. v. head, 1 Wall. 155, 165, 17 L. ed. Int. Typesetting Mach. Co., '229 Fed. 662, 664. But compare Troy I. & 168. N. Factory v. Coming, 6 Blatchf . 15 Leader Plow Co. v. Bridgewater 328, 336, 337. Plow Co., C. C. "A.; 237 Fed. 376. 18 Underwood Typewriter Co. iSBabcook & Wilcox Co. v. To- V. Manning, 221 Fed. 652; Mergen- ledo Boiler Works Co., C. C. A.j'170 § 188] DEFENSES PECULIAR TO PATENT CASES 1100 licensee from proving the. state of the prior ajt for the purpose of limiting the scope of the patent.. Nor from denying; the in- fringement.^'' A compla,inant is not estopped to attack a patent, introduced by defendant as part of the prior art,; which vas originally pleaded in the biU but afterwards abandoned.^* It has been held that the assignor cannot escape the estoppel by alleging that he was induced to part with the patent ,by unfair, represen- tations.^* But in a later case a defendant was permitted to deny the complainant's title to the patent and in a counterclaim allege equitable ownership in itself and pray for a decree quieting its title.^. An allegation in an answer to a suit for infringenient that the Government had begun a suit for the dissolution of the complainant company as an illegal monopoly was held. to be ir- relevant.*^ In a suit for the cancellation of an interfering patent the answer may allege any objection, to the validity of the gatr ent of the complainant;** it was held that in such a suit.ialJega^ tions as to the decision of questions in a prior suit between dif- ferent pa,rties were irrelevant.** . . The notice required by the rule, need not be under oath, and a consent to an order that the answer be considered as amended by lihe insertion of such defense and notice is a waiver of any furthjer oath.** Under this statute it, has been held that no evidence caji 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;*'' the complainant's patent is then prima facie Fed. 81; Standard Plunger Elevator 20 Cleveland Eng. Co. v. Gallon D. Co. v. Stokes, C. C. A., 212 Ted, 941; M. Truck Co., 243 Fed, 405. Mergenthaler Linotype Co. v. Int. 21'Motion Pict'. Patent Co. v. Typesetting Maeh. Co., 229 Fed. 168, Eclair Film Co., 208 ' Fed. 416. '' 172; H. D. Smith & Co. v. South- 22 Nikola Tesla Co.' v. Marconi ington Mfg. Co., C. C. A., 247 Fed. Wireless Tel. Co., 227 Fed. 903. 342. 23 Nikola Tesla Co. v. Marconi 17 H. D. Smith & Co., v. Southing- Wireless Tel. Co., 227 Fed. 903, See ton Mfg. Co., C. C. A., 247 Fed. 342; infra, § 237.. Moon-Hopkins Billing Mach. Co. v. 24 Campbell v. Mayor of N. T., 45 Dalton Adding Mach. Co., C. C. A., Fed. 243. 236 Fed. 936. *5 Teese y. Huntington, 23 How. 18 Mergenthaler Linotype Co. v. 2, 16 L. ed. 479; Agawam Co. v. Int. Typesetting Mach. Co., 229 Fed. Jordan, 7 Wall. 583, 19 L. ed. 177; 168, 173. Blanchard v. Putnam, 8 Wall. 420, 19 Vacuum Eng. Co. v. Cunn, C. G. 19 L. ed. 433; Bates v. Coe, 98 XT. A., 209 Fed. 2i9. S. 31, 25 L. ed. 68; Pitts v. Ed- 1110 ANSWERS [§ 188 evidence of the priority of his invention ; ^® but the respon- dent, after pleading these defenses or some of them, with tte names of such of the persons therein referred to as he knows, may also plead a general allegation "that the same had been pre- viously invented and known and used by many other persons whose names are unknown to the respondent, which, when known, the respondent prays leave to insert and set forth' in the an- swer. ' ' *'' Upon the subsequent discovery of any such persons, testimony concerning them may be taken, and leave obtained from the court to insert their names in the answer by amend- ment mine pro tvmc. An order to this effect may be obtained before or after the testimony has been taken.** The omission to serve the notice will be waived if the defend- ant fails to move to strike out the defense as insufficient or to object to the evidence as to the matters which should have been therein included.** "An averment that a patent "was obtained upon false and fraudulent representations by the plaintiffs, 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.'" In pleaditig prior patents, it is sufficient to give their number and date and the name of the pd,tentee.'^ In plead- ing prior publicsttions, they must be clearly identified or a copy thereof must be filed.'* Where a prior device which is pleaded as anticipation may be made the subject of an exhibit, the de- fendant will not be required to set forth the dtawings thereof but the complainant may be allowed an inspection before testi- mony is taken." In pleading prior use, the time and place thereof must ,be set forth with such directness and, certainty as will enable complain- ant to go upon the ground and determine what acts there done monds, 2 Fisher, 52, 54; Salaman- 220, 24 L. ed. 384, 386; Brown v. der Co. v. Haven, 3 Dill. 131; Jen- Hall, 6 Blatohf. 405. nings V. Pierce, 15 Blatehf. 42; 28 Ibid. Williams v. Boston & A. E. Co., 17 29 Monroe v. Bresee, C. C. A., 239 Blatehf. 21; Decker v. Grote, 10 Fed. 727. Blatehf. 331; Morton v. Llewellyn, 30 Clark v. Scott, 5 Fisher, 245. C. C. A., 164 Fed. 693 ; El. Storage 31 Corrugated Metal Co. v. Patti- Battery Co. v. Phila. Storage Bat- son, 197 Fed. 577. ' tery Co., 211 Fed. 154. 82 Ibid. 26 Fay V. Mason, 120 Fed. 506. 33 Todd v. Whitaker, 217 Fed. 319. 27Roemer v. Simon, 95 IT. S. 214, § 188] DEFENSES PECULIAR TO PATENT CASES 1111 mdy be relied on.^* The omission of the place of the use makes the notice fatally defective.** But a notice is not defective foi" failure to state the particular place within a specified city at which the defendant proposes to prove the previous use.'* Evi- dence stated in a notice to' be proposed for one purpose cannot be used for another.*' The defenses that complainant was not 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 de- fendant relies upon both he must give notice accordingly." It seems that when a previous 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,'* to show the state of the art at the date of the complainant's, al- leged invention,** and to aid in the proper construction of the patent in suit.*^ The state of the art can always be pleaded with- out notice.** "When two applications are pending in the patent office at the same time neither is prior art as against the other since neither applicant had a right to know of the other's appli- cation.** Where the answer alleges want of invention and nov- elty in vi^w of the prior art an article shown to have been manu- factured and on sale before the patent may be admitted in evi- dence although not specifically pleaded.** A patent subsequent to that upon which the complainant rer lies may be offered in evidence upon the issue of infringement 81 Ibid. V. Llewellyn, 0. C. A., 164 Fed. 693; SSSchenck v. Diamond Mateh Co., Campbell v. Skinner, 236 Fed. 359; C. C. A., 77 Fed. 208; s. c, 71 Fed. Simplex Window Co. v. Hauser Re- 521. versible Window Co., 0. C. A., 248 36 Wise V. AUis, 9 Wall. 737, 19 Fed. 919; H. D. Smith & Co. v. L. ed. 784. Southington Mfg. Co., 235 Fed. 160. 37 Pennock T. Dialogue, 4 Wash. 41 Morton v. Llewellyn, C. C. A., 538; s. O., 2 Pet. 1, 7 L. ed. 327. 164 Fed. 693. 38 Meyers v. Bushby, 32 Fed. 670. 42 Vance v. Campbell, 1 Blaek, 89 Atlantic Works v. Brady, 107 427, 17 L. ed. 168; Brown v. Piper, U. S. 192, 27 L. ed. 438. But see 91 tJ. S. 37, 23 L. ed. 200. Parks V. Booth, 102 TJ. S. 96, 105, 43 Mergenthaler Linotype Co. v. 26 L. ed. 54, 57; Kennedy v. Solar Int. T. Maeh. Co., 229 Fed. 168, Eef. Co., 69 Fed. 715. 172. 40 Am. S. Co. V. Hogg, 1 Holmes, 44 Johnson v. Lambert, C. C. A., 133; s. c, 6 Fisher, 67; Stevenson 234 Fed. 886. V. Magowan, 31 Fed. 824; Morton U12 ANSWERS- [§188 whfiiXiOne of the article^ alleged, to be infringements was made thereunder.*^ It has been held, ithat a witness may be asked whether the defendant's machine is, similar to a model of the plfiintiff's patented, machine, although .no notice of such testi- mony has been given.*^ The defenses.tbat the plaintiff's device is not patentable and that it is not , workable *' need not be pleaded in the answer.** It is unsettled whether the defense of insufi&cient description can be, set jip without alleging an intent to deceive itheMpublic.*® The 'Statute requires notice of the names and residences of the inventors and of those who have the prior knowledge of the thing 46 E^is V, EospfeH, C. C. A-; 204 Fed.' ''282. ' ' ''''"''' ' 46 Evans v. Hettick, 7 Wlieat. 453, 469, 5' L. ed. 496, 50O. 4l';May v. Juneau County, 137 U. S,;40,8, 34 L. ed.,729; Stevenso;a V. Ma,gowan, 31 Fed. 824;' Wills v. Scranton Cold Storage & Warehouse Co., G. C. A., 155 Fed. 181. It has been said concerning the defense of want of novelty: ','Wher^ the. thing: ; patente,d, is an entirety, consisting of a separate device or of a jingle combination of old elements incapa- ble of 'division or separate use, the respondent = I (Sannot make' good the,', defense in question by proving that a part of the entii;e invention js found in one prioi; patent, printed publication, or machine, and an- other part in. another," and so on, indefinitely, aud from the whole or ; any given number expect the court to determine the isgue of noveHy adversely to the compjainajit. " . ,-;,,■■:] ' ''Befense, of the kind, if the thing ■ 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 Tphich cases the several defenses may be made to each patent in the suit, and to each invention, , to which the charge of infringement, rela,tes. ' ' Mr. , Justice Clifford, in Parks v. Booth, 102 TJ. 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 phfirging that, the. original patentee "fraudulently and surreptitiously obtained the patent for that which he well knew was invented by an- other, tinacoompanied 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. 48Hildreth v. Mastoras, 253 Fed. 68. ' , ■ " 49 Loom Go. V. Higgins, 105 XJ. S. 580,, 588, 589, 26- Jj. ed. 1177, 1180, 1181; Grant v. 'Raymondy 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. . § 188] DEFENSES PECULIAR TO PATENT CASES ' 1113 patented, not the names of the witn'essefe.*'' Notice ^of the time when the person named ipossessed a knowle'dge or use' tof the in- vention is not required."^ The notice is not a pleading and should be served upon the plaintiff.** It is the better practice to file the notice ^vith the pleadings after it has been served^*' The pendency of a previous suit for the infringement of cer- tain claims of a patent, specified by number in the bill, is not a bar to a second suit in the same courts between the' same parties, for an infringement of different claims of the same p^teht, also specified in the latter bill, where th« two sets of claims' cover distinct and separate devices in the same machine.** When, after a bill has been filed to restrain the infringement of a patent and to obtain an account of profits, the defendant eontiniies his infringemenjs, the pendency of the first is no objection to a sec- ond bill seeking an injunction and an account, founded upon the subsequent infringements.*® Notwithstanding' a decree for an injunction in the former suit, a decree for an injunc- tion and account was granted in that for the subsequent infringements,, the second injunction being useless except to support the equitable jurisdiction.** The pendency of a- sdit SOWoodbuiy P. Maeh. Co., y. Blatchf. 179. A plea stricken pmi Keith, 101 IT. S. 479, 25 L. ed. 939 ; by the court is not a sufficient legal Eoemer v. Simon, 95 IT. S. 214, 24 notice. Silsy .v. Foote, 1 Blatohf. L. ed. 384. ' 445; s.' c, 14 How. 18. No demur- 61 Phillips V. Page, 24 How. 164, rer lies to a notice. Henry v. U. 'S., 16 L. ed. 639. 22 Ct. CI. 75. A defect in the notice 62 Cottier v. Stimson, 20 Fed. may be remedied by a second notice 906. See, also, 10 Saw. 212; Henry without leave of the court. Teese v. V. IT. S., 22 Ct. a. 75. The defend- Huntingdon, 23 How. 2, 10. ant may also plead his defense spe- 63 Teese v. Huntington, 23i How. eiaJly if he so desires. Cottier v. 2, 10, 16 L. ed. 479, 482. Stimson, 20 Ted. 906, 907; Evans V. 64 Bates Mach. Co. v. Wm. A. Eaton, 3 Wheat. 454; Grant v. Bay- Force & Co., 1,39 Fed. 746. mond, 6 Pet. 218; Phillips T. Comb- 65 Wheeler v. McCormick-i 8 stock, 4 McLean, 525; Day v. N. E. Blatchf. 267; Eoemer v. Newman, C. S. Co., 3 Blatchf. 179. In such a 19 Fed. 98; Higby v. Columbia R. case it seems that no notice may be Co., 18 Fed. 601. Contra, Gold ,& given. Cottier v. Stimson, 20 Fed. Stock Tel. Co. v. Pearce, 19 Fed. 906, 907; Evans v. Eaton, 3 Wheat 419. 454; Grant v. Raymond, 6 Pet. 218; 66 Horton v. N. T. C. & H. B. R. Phillips V. Gombstoek, 4 McLean, Co., 63 Fed. 897. 525; Day v. N. E. C. S. Co., 3 1114 ANSWERS [§188 for the infringfiijaent of apateiit in one district isno bar to a suit against the; same defendant 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 ap- pearance in the former.*'' Ownership or part-ownership by de- fendant of the patent which is the foundation of the bill,*' a license,** and estoppel,*" 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 complainant 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.*^ It has been held: that the Federal statute of limitations,: six years, to the recovery 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,®^ but it is a defense as to which. the defendant bears the burden of proof ; ®* The complainant has the burden of proving that the patentee was the original and first inventor of the invention patented.®* : Ordinarily the patent itself creates a presumption upon this point in his favor.** Where subsequent to its issue another patent for the same invention was granted to an earlier applicant it was held that the mere priority of date did not establish the presump- tion.*'' An invention to be patentable must be useful and a pat- ented device must be operated.** It seems that the issue of a patent creates a rebuttable presumption of the utility of the in- 87 Warren Bros. Co. v. City of its infringement to be dismissed Montgomery, 172 Fed. 414. without a trial on the merits is not 88 Puetz V. Bransf ord, 31 Fed. such laehe* as to bar a second suit 458. against the same defendant, Wels- 69 Watson V. Smith, 7 Fed. 350; bach Light Co. v. Cohn, 181 Fed. Puetz V. Bransf ord, 31 Fed. 458. 122. 60 Pennsylvania Co. v. Cole, 132 66 West Coast Eoof & Mfg. Co. v. Fed. 668 ; supra, § 185a. Elaborated Eeady Roof Co., C. C. 61 Curtain Supply Co. v. Nat. A., 249 Fed. 221, 226. Lock Washer Co., 174 Fed. 45. 66 Mygatt v. SchafEer, C. C- A., 62 29 St. at L. 694; supra, § 180. 218 Fed. 827. 63 Peters v. Hanger, C. C. A.,' 134 67 Ibid. Fed. 586. 61 Troy Laundry Maeh. Co. v. Co- 64 Ibid. The fact that the owner lumbia Mfg. Co., 217 Fed. 787. of a patent permitted a suit for § 188] DEFENSES PECULIAR TO PATENT CASES 1115 vention.*^ It was held that evidence, that the owner of the patent had made but had ceased to make the patented article was not admissible as tending to prove its inutility.'" Where there was a dispute as to the usefulness of the invention and it appeared that neither the'patentee nor any subsequent owner had used it practically it was held that the owner had failed to produce con- vincing evidence which was within his possession and that the fullest weight must be given to the defendant's proofs.'^ The plaintiff has the burden of proof as to infringement, even when the defendant pleads a license as well as non-infringe- ment.'* Where the answer admitted that defendant, during the time alleged in the bill, had made and used articles conform- ing to the claims of the patent, no further proof on the issue of infringement was required from complainant,'' Where the de- fendant in its proposal for a Government contract which had been accepted specified a machine which would have infringed the patent, in the absence of evidence from the defendant show;- ing what machine it furnished under the contract, the Court found an infringement.'* Proof that defendant's device was made under a later patent does not create a presumption of non- infringement.'* The defendant has the burden of proving the defenses of an- ticipation and prior use beyond a reasonable doubt.'* 69 Ibid. is sufficient, prima facie, to estat)- 70 Ibid. lish infringement by the defendant. 71 Troy Laundry Mach. Co. v. Co- Rumf ord Chemical Works v. Hy- lumbia Mfg. Co., 217 Fed. 787. gienic Chemical Co., C. C. A., 159 72 Niagara Fire Extinguisher Co. Fed. 436. V. Hibbard, C. C. A., 179 Fed. 844. 74 Int. Curtis Marine Turbine Co. 7S Fox V. Knickerbocker Engrav- v. William Cramp & Sons Ship & ing Co., C. C. A., 165 Fed. 442. In Eng. Bldg. Co., C. C. A., 202 Fed. a suit for infringement against the 932. ,, ■ Hygienic Chemical Company of New 75 Simplex Window Co. v. Hauser York, where it was shown that de- Reversible Window Co., C. C. A., fendant was a selling company only, 248 Fed. 919. while the Hygienic Chemical Com- 76Beckwith v. Malleable Iron pany of New Jersey was a manu- Range Co., 174 Fed. 1001 ; Diamond facturing company only, the testi- Patent Co. v. S. E. Carr Co., C. C. mony of a witness that he pur- A., 217 Fed. 400; A. B. Dick Go. v. chased an article shown to be an Underwood Typewriter Co., 246 Fed. infringement from the "Hygienic 309; Taigniam v. Desure, C. C. A., Chemical Company" in New York 253 Fed. 364. iri6 '■ ■AmwEks. [§189 A plea to a bill for an injunction to restrain the infringement of a reissued patent, wiiicii set up that the claiift had been unlawfully expanded so as to embrace subsequent improvements covered iby later patents, was held good.'''' A plea to a bill filed under section 4918 of the Revised Statutes against the owner of a patent interfering with that of the complainant, which set: up that the invention descfibedin'the complainant's patent was described' in a previous Eiiglish patent published in the United States, and filed in the Patent Office here before the issue of the complainant's patent, was held bkd and overruled.''* §189. Proceedings to compel answer. By the Equity Rules of 19l2, if the defendant fails to file his answer or other defense to the bill in the clerk's' office within the time nameid in the subpoena, "the plaintiff may, at his election, take an order as of course that the biU be taken pr& confesso; and thereupon the cailse shall be proceeded in ex parte." ^ "Averments other than of value or amount of damage, if not denied, shall be deemed con- fessed, except as against an infant,' lunatic or other person non compos and not under guardianship." ^ They contain no other provision for proceedings to compel an answer. By the rules of 1842 : ' ' The plaintiff, if he requires any discovery or answer to enable him to obtain a projper decree, shall be entitled to process of attaohment against the defendant to coinpel an ansWer, and the , defendant shall not, when arrested upon such process, be discharged therefroim, flnlgss upon filing his answer, or; other- wise complying 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."* , 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 is- sued against him.* If the sheriff was unable to attach the de- fendant and returned, accordingly {ro'R est irwenius,. a commis- VTHubbell V. De Land, 14 Fed. 2Bq. Eule 30. 471. 3 Eq. Eule 18 o& 1842. TSPentlarge v.Pentlarge, 19>Fed. 4 Matter of Vanderbilt, 4 J. Ch. 817; si c, 22 Fed. 412. But see (N. Y:.).58., See Daniell's, Ch. Pr., Foster v. Lindsay, 3 Dill. 126, il31. (First Am. ed.) 538. § 189. 1 Eq. Eule 16. ' § 190] FRAME OP ANSWER 1117' sion of rebellion, would iasue." If that proved insufficient, it was followed by a writ of sequestration.® §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.^ 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 he must correct it in the part following the title of the cause; thus, "The answer of the def endaints, the mayoT, aldermen, land commonalty in the bill called the mayor, aldermen, and cit- izens of the city of New York. ' ' * The answer should begin substantially thus : ' ' The answer of John Aber, one of the aboTe-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."' 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.* 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.* An answer by a person defending by guardian dr next friend should state that fact: "James Fifield by Edward Jennings, his next friend." * ' If two or more defendants join in the same answer; it usually begins, "The joint and several answer;" ' un- less they are husband and wife, when it is "The joint answer;" * SBoudinot v. Symmes, Wall. C. SDaniell's Ch. Pr. (Stfr Am. ed.) C. 139; Smith's Ch. Pr. (2a ed., 731; Kigby v. Eigby, 9 Beav. 3ll, 1837), 183, 186. 313. eSmith's Ch. Pr.,: (Second ed. 4Damen's Oh. Pr. (5th Am ed.) 1837) 183-188; Daniell's Ch. Pr., 731. (First Am. ed) 543 ; Davis v. Ham- 5 Peck v. Peek, Moseley, 45. mond, 5 Sim. 9. SDaniell's Ch. Pr. (5th Am. §190. iDaniell'a Ch. Ft. (5th »d.) 731. Am. ed.) 731. 'Davis v. Davidson, 4 McLean, SAtty. Gen. v. Worcester Corp. 136. 1 C. P. Cooper, 18; Daniell's Ch. SDaniell's Ch. Pr. (5th Am. ed.) Pi. (5th Am. ed.) 731. 731. 1118 . ANSWERS [§ 190 but an answer is not defective if put in by^ several as a joint an- swer merely.® , i > '^ •>'■■ When discoveryis required, all 'of the defendants who joindn an answer must swear to the same. ^^ 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 sfep- aratelyj costs, were ;under the practice in chancery, not allowed for such separate answers or other! proceedings, unless a master, upon reference, to ihim, certifiedi that sudh separate answers and other proceedings were necessary or proper, and ought not to have been' joined tbgether.^^ ' Next followed fbrmerly a clause reserving to the defendant any and all advantages that might be taken by exception to the bill.^* This was always useless ^* and is forbidden by the Equity Rules of 1912." Then comes the substantive part of the answer, setting up the matters of affirmative defense' and giving thei discovery rie- quired.^" ■Next should be 'inserted any counter-claim or set-off upion whioh the defendant relies.^* It is the safer practice to specific cally describe the matter thus pleaded as a couhter-tslaim- or set-' off, as the case may be. ^'' ■ n ; The answer usually closes with a general traverse inserted out of abundant caution, denying the unlawful combination charged in the bill, and' all other matters therein contained." In the answers of infants and other persons under a disability, the reservation and general traverse have always been dee^led properly omitted.^' 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 8 Davis V. Davidson, 4 McLean, 17 Bates v. Bosekrans, 37 N. T. 136. 409; Ward v. Conegys, 2 How. Pr., 10 Bailey W. M.Oo. v. Young, 12 N. S. (N. Y.) 428; Burke.v. Thome, Blatchf. 199. 44 Barb. (N. Y.) 363; Burral v. De 11 Rule 62. Groot, 5 Duer (N. Y.) 379; Bquit- 18 Mitford 's PI., et. 2, § 2, part able Life Ass 'n. v. Ouyler, 75 N. Y. 3; Story's Eq. PI., §870. 511, affirming 12.Hunj;247. But 18 Story's Eq. PL, § 870; Eules see Acer v. Hotehkiss, 97 N. Y. 39,5. 39, 44. 18 Mitford 's PI, eh. 2, § 2, part 3, 14 Bq. Rule. 30. Story 's Eq. PI., § 870. IB Mitford 's PI. ch. 2, § 2, part 3. 19 Story's Eq. PI., § 871. 16 See Eq. Rule 30. §192] SIGNATURE SEAL. AND OATH TO ANSWER 1119 them: as he shall be advised, and throws himself ou the protec- tion of ;the court.*" But if; such a defendant hasi any substantive defense, he should plead the same.*^ § 191. Signature and seal to answer. The answer must be signed individually by one or more solicitors of record.^ It has been held that under the new rules the defendant need not sign the answer.* If the former practice is followed,' an answer must be signed by the defendant, making it; even, it seems, i when an answer under oatii has been waived,' unless he answers by guar- dian, when the latter should sign it,* or unless an order has been obtained dispensing with such signature on account 'of the de- fendant's absence, or for some other reason.^ A person answer- ing in a dual capacity need sign but once.® An: answer by a eor- .poration must be under its corporate seal.' In such a case it is advisable to have the seed attested by one of the corporate offi- cers.* When an answer is made without oath, the signature of the defendant should also be attested." This is usually done by his solicitor.^" § 192. Oath to answer. Under the former practice, unless an answer, under oath, was waived in the bill, a deiendant^ if a natural person, was obliged j to swear ; ^ or . if . conscientiously scrupulous of taking an oath, in lieu thereof to make solemn affir- mation to the truth of the facte, stated by him.* ,,No c^th was necessary to an answer by a corporation.' 80 Chancellor Kent in Mills v. 7 Haight v. Proprietors Morris Dennis, 3 J. C!h. (N. Y.) 367, 368. Aqueduct, 4 Wash. 601y 605; Mon- 21 Holden v. Hearn, 1 Beav. 445, areh Yaeuum Cleaner Co. v. Caeuum 455; Lane y. Hardwieke, 9 Beav. Gletaer Co., 194 Fed. 172. 148, 149. SDaniell's Ch. Pr. (5th Am. ed.) § 191. 1 Eq. Rule 24. 735, note 2. 8 Kinney v. Kee, 238 Fed. 441. SDaniell's Ch. Pr. (5th Am. ed.) 5 Story 'sEq. PI., §875; Davis v. 738. Davidson, 4 McLean, 136; Bayley 10 Daniell's CSi. Pf. (5th Am. ed.) V. De Walkiers, 10 Ves. 441; Fulton 738. Bank v. Beach, 2 Paige (N. Y.), §192. 1 Fulton Bank v. Beaoh, 307; Denison v. Bassford, 7 Paige 2 Paige (N. Y.) 307; Darnell's Gb. (N. Y.), 370. Pr., (5th Am. ed.) 735. 4 Anon., 2 J. & W. 553; Daniell's 2Eq. Rule 91 of 1842, which so Ch. Pr. (5th Am. ed.) 733. • far as it applies to cases in which 6 Story's Eq. PI., §875; v. an oath is required, re-enacted in Lake, 6 Ves. 171; v. Gwillim, Eq. Bule 78 of 1912. See TJ. S. R. 6 Vea. 285. S. §5013. 6 Anon., 2 J. & W. 553. 3 Union Bank of Georgetown v. 1120 ANSWERS [§ 192 The present rules are silent upon the question as to whether an answer must be verified* They provide : ' ' Every pleading which is required to be sworn to by statutej or these rules, may be verified before a,ny justice or judge of any court of the United States, or of any State or Territory, or of the District of Colum- bia, or any clerk of any court of the United States, or of any Territory, or of the District of Columbia, or any notary pub- lic. " ^ It has been held that under the new rules an answer need not be verified even when discovery is sought, the defendant's dis- covery being limited to the answers to his interrogatories which are not a part of the pleadings.' An answer can be verified without the United States before commissioners appointed for that purpose;' oi^ 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.* 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 con1;ained 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 or deed of any other person or persons, you be- lieve to be true."® "When sworn to in a foreign country, it seems that it must be "administered in the' most solemn form Geary, 5 Pet. 99, 110, 8 L. ed. 60, Justice, one of the editors of "An- 64; Wallace v. Wallace, Halst. (N, uual Practice.," 0?here, however, in J.) Dig. 173; Smith v. St. Louis certain cases, upon plaintiff's affi- M. Ins. Co., 2 Tenn. Gh. 599; davit that in his belief there is no Burpee v. First Nat. Bank, 5 Biss. defense to the action, the defendant 405; Coca Cola Co. v. Gay-Ola Co., is not allowed to defend without C. C. A., 200 Fed. 720, 726. But permission of the court. Order XIV. see Kittre'dge v. Claremont Bank, 3 For verification of a corporation Story, 590 ; s. c, 1 W. & M. 245. wnen required, see § 174, swpra. i Although the English Judicature 6 Eq. Eule 36. Act and orders and rules are silent 6 Kinney v. Rice, 238 Fed. 441, upon the subject, the English courts 443. See §§ 347, 348,. infra. . do not require an oath to be annexed 7 Bead v. Consequa, 4 Wash. 335. to the defense in equity, which is * U. S. E. S., § 1750. But see the pleading corresponding to our Eead v. Consequa, 4 Wash. 335i answer. The writer is indebted for ' 9 Daniell 's Ch. Pr., eh. 15, § 2, this information to the courtesy p. 270; Story's Bq. PI., §872, note of Francis A. Stringer, Esq., of 4. the C^tral Office, Eoyal Courts of § 194] EXCEPTIONS FOR INSUFFICIENCY llS'l observed by the laws and usages" of that country.^" Every al- teration and interlineation in the answer should be authenticated by the initials of the officer who administers "the oath." When the verification of an answer is in the form of an affidavit, 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 sub- scribed at the foot of the answer.^^ § 193. Motions to take answers off the file. When an answer is in any respect irregular,^ or is filed by' a person not named as a defendant in the bill,^ or is filed too late, it may upoii the plaintiff's motion be taken off the file.' This may also be done when the paper purporting to be an answer is so evasive that it is in fact no answer.* If it is taken off the file for an errot in form, the (M)urt may allow- the same paper to be corrected, and then filed anew.^ By setting the cause dbwn for a heaHng upon bill and answer,^ or by filing a reply or taking any other step in the cause without raising the objection, such a defect would be waived.' 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.* ' ' §194. Exceptions for insufficiency. "Exceptions for insuf- ficiency of an answer are abolished."^ The sufficiency of an affirmative defense may be tested by a motion to strike out the same.^ It has been held that this rule does not apply to a defense by confession and avoidance.' In case of insufficiency in admis- sions or denials, the matters not properly denied are deemed con- fessed, except as against a person non compos and not uUder 10 Bead v. Ctonsequa, 4 Wash. 335. 178; Smith v. Searle, 14 Ves. 415, 11 Darnell's Ch. Pr., (5th Am. B Bailey W. M. Co. v. Toung, 12 ed.) 743; Hathaway v. Seott, 11 "Blatehf. 199. Paige (N. T.) 173, 176; Pincers v. BBesson & Co. v. Goodman, et al., Eobertson, 9 C. E. Green (24 N. J. 147 Fed. 887. Eq.) 348. 7 Pulton Bank v. Beadb, 2 Paige §193. 1 Bailey W. M. Co. v. (N. Y.), 307; Glassiilgton y. Young, 12 Blatehf. 199. Thwaites, 2 Euss. 458, 461. 8 Putnam v. New Albany, 4 Biss. 8 Allen v. Mayor, 7 Fed. 488. 365, 367. § 194. 1 Eq. Eule. 83. 3 Allen V. Mayor and Board of 2Eq. Eule 33; infra, §237. Ed., 18 Blatehf. 239. 3, Churchward Int. Steel Co. v. 4 Tompkins v. Lethbridge, 9 Ves. Bethlehem Steel Co., 233 Fed. 322. Fed. Prae. Vol. 1—71 ■1122 ANSWERS , [§195 guardianship.* By the former practice, exceptions to the insuffi- ciency of the dis0oyery could be filed within a limited time,^ ex- cept in the case of an answer by an infant or other person under a disability.^, Where such an exception was sustained and a further answer put in, which the plaintiff deemed stUl insuffi- cient, 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.' If the further an- swer 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.* When an order was obtained after answer, allowing the plain- tiff to amend his bill, and requiring the defendant to answer the amendments and the exceptions to the answer to the original bill together; upon such answer the plaintiff could only file new exceptions for a failure to fuUy answer the amendments.® The insufficiency of a defense in an answer could not be thus determined.*" §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,* or which had occurred subsequently to the filing of the same.^ They could only be filed by leave of the court, which might impose terms upon the applicant.^ 4 Eq. Rule 30. 9 Partridge v. Hayeraft, 11 Ves. 5 Bead v. Consequa, 4 Wash. 335. 570, 581 ; Smith 's Ch. Pr. (2d ed. TJhlmann v. Arnholt & S. B. Co., 1836), 286. 41 Fed. 369; Colgate v. Compagnie 10 Manhattan Tr. Co. v. Chicago Francaise, 23 Fed. 82. But see El. Traction Co., 188 Fed. 1006. United States v. McLaughlin, 24 § 195. 1 Smith v. Babcoek, 3 Fed. 823; McCormiek v. Chamber- Sumner, 583; Williams v. Gibbes, lin, 11 Paige (N. Y.), 543; Shep- 20 How. 535, 15 L. ed. 1013; Caster pard V. Akers, 1 Tenn. Ch. 326. v. Wood, 1 Baldw. 289; Suydam v 6 Copeland v. Wheeler, 4 Brown, Truesdale, 6 McLean, 459. Ch. C. 256; Lucas v. Lucas, 13 Ves. ZKelsey v. Hobby, 16 Pet. 269, 274; Mieklethwaite v. Atkinson, 1 277, 10, L. ed* 961, 963; Talmadge Coll. 173; Daniell's Ch. Pr. (5th v. Pell, 9 Paige (N. Y.), 410, 413. Am ed.) 169. 3 Smith v. Babeock, 8 Sumner, 7 Smith's Ch. Pr. (2d ed. 1836), 583; Caster v. Wood, 1 Baldw. 289. 285. 8 Smith's Ch. Pr. (2d ed. 1836), 285, 286. § 196] DISCLAIMERS 1123 The Equity Eules now 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, in- cluding the judgment or decree, of a competent court rendered after the commencement of the suit determining the matters in controversy or a part thereof."* This provides merely for supplemental answers of the second class. Such supplemental answers have been little considered in the books. Their functions might also be performed by cross-bills. It was too late after answer and decree to object to the regularity of a proceeding in which facts were set up by petition when cross- bill or supplemental answer would have been the proper prac- tice.s §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.^ It is said that it is distinct in its substance from an answer, although sometimes confounded with one.* By the former practice, it must in most cases be ac- companied 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 ascer- tain what the facts were, and to whom he had transferred his in- terest.^ Moreover, a defendant, although he may disclaim an interest, cannot disclaim a liability.* Under the present rules it has been so held where the bill charged conspiracy with other defendants to create a cloud on a title which the bill prayed to have removed.*" The only cases in which a disclaimer without an 4 Eq. Bule 34. 4 Glassington v. Thwaites, 2 Euss. SKelsey v. Hobby, 16 Pet. 269, 458; Graham v. Coape, 9 Sim. 93, 277, 10 L. ed. 961, 963; Coburn v. 102; s. c, 3 Myl. & Or. 638. Cedar V. L. & C. Co., 138 U. S. 196. 5 McDonald v. McDonald, 203 Fed. 222, 34 L. ed. 876, 886. 724. An averment that the defend- § 196. 1 Mounsey v. Burnham, 1 ant, prior to the beginning of the Hare, 15. suit, had ceased selling an alleged 2 Story 's Eq. PI., § 838. infringing machine, and that it had 3 Story's Eq. PI., §838. See Ells- no intention of nslng or seUing any worth V. Curtis, 10 Paige (N. T.), machines embodying the features of 105; Carrington v. Lentz, 40 Fed. the patent, was held not to be such 18. a disclaimer as would deprive the 1124 ANSWERS [§ 196 answer "was deemed to be sufSeient seem to have been those where the bill simply alleged that the defendant claimed an inter- est in the property in question without specifying the claim.® Under very special circumstances, a disclaimer may be with- drawn, and an answer filed setting up a claim.' Where a disclaimer is made, and it appears that the defendant was made a party without &,pparent reason, the bill will be dis- missed with costs.* Otherwise, a decree may be entered without costs against the defendant and all claiming under him since .the filing- of the bill.® If a disclaimer and answer by the same de- fendant are inconsistent, the matter will be taken most strongly against the defendant upon the disclaimer.^" The following is a form of a mere disclaimer: "The dis- claimer of Richard Flagg, the defendant, to the bill of complaint of Eobert Aber, complainant. This defendant, saving and re- serving to himself [here follows the usual general reservation in an answer] , saith, that he doth not know that he, this defendant, to his knowledge and belief, ever had, nor did he claim or pre- tend to have, nor doth he now claim, any right, title, or interest of, in, or to the estates andjrem^ises, situate [describing them], in the said complainant'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 dis- claimer concludes in the same way as an answer.^'- It has been held that without special authority an attorney has no power to bind his client by a disclaimer or retraxit.^^ complainant of the right to an in- 8 Story 's Bq. PI., § 842. junction. Deere & Webber Co. v. 9 Story's Eq. PL, § 842. Dowagiae Mfg. Co., C. C. A., 153 lOMitford's PI., ch. 2, § part 2. Fed. 177. 11 Story's Eq. PL, §844, note 6. 6 Story's Eq. PL, 838. See Gra- 12 Glover v. Bradley, 0. C. A., 233 ham v. Coape, 9 Sim. 93, J02; s. C, Fed. 721; McFarland v. Curtin, C. C. 3 Myl. & Cr. 638. A., 233 Fed. 728. ■? Story's Eq. PL, §842. See Eq. Rule 30.