CUTTING V. FLORIDA RY. &: NAV. CO.
event would be to the advantage of the assignee of the policy, and thus lay the assignment or purchase open to the objection that it was against public policy. In point of fact, the transaction whereby each claimant acquired the policy was not intended asa mere speculation or wager. .Fisher undoubtedly took the policy to secure as much as he could of a bad debt, and the United States Savings Institution, now represented by Holthaus, evidently loaned money to Fisher in good faith, and in the ordinary course of business, taking the policy as collateral. defense of want of insurable interest, in my judgment, might have been mvoked by the insurer with as much reason against one claimant as again.st the other, as neither claimant appears to have had any interest in the assured life after the respective assignments were made. Ihe msurer, however, has waived the defense of want of insurable interest, by paying the fund into court, and confessing its absolute liapility on the policy either to Fisher or to Holthaus. As between the two claimants, I consider that Holthaus has the superior right, inasmucQ as he holds the policy under and by virtue of a transfer of the same by Fisher, whereby the latter pledged the proceeds thereof when the policy became payable to secure his own debt. I have not overlooked the case of Warnockv. Davia, 104 U. S. 775, wherein the supreme court of the United States have held that the assignee of a policy must have some interest in the life of the assured to entitle him, under an assignment of a policy, to hold and retain the proceeds thereof. This case, however, under the facts as ahovestated, does not seem to call for an application of that doctrine. The controversy here is between two successive assignees of a policy,and not between an assignee of a policy and the personal reppresentative of the assured. For the purposes of this decision, it is concede,d by the pleadings that one or the other of the assignees of the policy is entitled to the fund; and in that view of the matter, and for the reasons above indicated, I am of the opinion that Holthaus has the superior right. A decree will be entered disposing of the fund in the manner above indicated.
In re Petition of
(Oircuit Oourt, N. D. Florida. April 12, 1887.)
RAILROAD COMPANIES NECTING LINES. bl"TERSTATE COMMERCE
Under the interstate commerce act, all charges made by a railroad for any service in the transportation of passen/!:ers and property from one state or territory into another, odor receiving, delivering, stormg, or handling such property, must be reasonable and just; and there must be no discrimination in rates, charges, and facilities in favor of one connecting line, or against an· other, but equal rates and facilities for trade and travel, for equal service, anc from all points, must be given to both.
A petition was filed in this action by C. H. Mallory & Co. and the New York & Texas Steam-Ship Company to obtain an order directing the receiver, appointed by the court for the Florida Railway & Navigation Company, to desist from further discriminating against the petitioner, and in favor of the Clyde, (a competing line,) in respect to rates on freight and passenger traffic, and.to extend to petitioners all facilities of prompt carriage of freight and passengers as he has given, or may hereafter give, to the Clyde line, or other common carrier. The petitioners also ask that an account may be taken of the amounts heretofore paid the receiver by them in excess of the amounts charged the Clyde line for similar service, aHd that sl!ch amounts be ordered repaid to the petitioners. The receiver in his· answer alleges that the railroad he is in charge of is absolutely without means to earn revenue or to discharge its duty as a public carrier, and is wholly at the mercy of a foreign rival and competitQr, unless jt can have the assistance of and a connection with a first-class line of steam-ships; that its business will not support two lines of ships; that, as between the service offered by petitioners and the Clyde line, the former is incomparably inferior to the latter, and that it is essential to the interest of the railroad that he should have the right to discriminate between the petitioners and the Clyde line; and that the discrimination which he had made was for this reason, and on this account. But at the Eaine time he alleges that since the interstate commerce bill became operative he has reformed his tariff, and it is his intention to make no discrimination in future in favor of either the line of the petitioners or the Clyde line, or against either, but that in his new tariff he charges on all business passing in or out of Fernandina over his railroad the same price, on the same class of goods, to all carriers, and allows no pro rata or rebate or reduction of his tariff charges on any such business with any line, except that upon all business originating in New York or Jacksonville, and passing thereto or therefrom by the Clyde line, and over a portion of respondent's line, he charges in the reformed tariff a different or less rate on his proportion of said charges thereon for through service than would be his proportion of the same on through business by another line; this difference being made for the sole reason that the said rate is rendered necessary by the circumstances of the extent of the service of the Clyde line into his territory, which circumstances force him to the said change of rates in order to secure for himself any part of the business offering between New York and Jacksonville. Horatio Bi8bee, for petitioners. John A. Henderson and Hartridge Jc Young, for receiver. SETTLE, J. This petition was filed on the twenty-first day of March, 1887, which .was before the interstate commerce act went into effect. The answer 'of the receiver, H. R. Duval, was filed on the fourth day of April, 1887, in which he submits that he has reformed his tariff of rates, and intends to comply, in all respects, with the provisions of the interstate commerce act. In view of this answer, I deem it unnecessary and
inexpedient at this time to do more than to give to the of the Florida Railway & Navigation Company some, general instructions in respect to such of his business with the parties to this petition as falls under the head of interstate commerce. (1) All charges made for any service in the transportation of passengers or property, or for receiving, delivering, storing, or handling property, must be reasonable and just. (2) He will not discriminate, in his rates, charges, and facilities, for or against the Clyde line or the Mallory line, but will give to both equal rates and facilities for trade and travel, for equal service, from all points.
and others'll. CANADA.
(Oirouit Oourt, D. Kan8a8. April 26, 1887.)
An attachment in a United States circuit court, ina case where no service was made on defendant. and defendant could not be found in the district, is void. under Rev. St. U. S. § 739, which exempts a party from suit in the United States courts, except in the district in which he is an inhabitc.nt, or may be served with process.
A subsequent appearance of the defend,ant in the case does not waive the invalidity of the attachment procJedings.
SAME-ATTACK BY THIRD PARTms.
A third party, claiming to own the goods attached, is entitled to set aside the attachment, the defect being jurisdictional.
Jame8 & John8on and John Martin, for plaintiffs. Overmeyer & Safford, for Miner & Sowers.
FOSTER, J. This proceeding was commenced by the plaintiffs against defendant, Enos Canada, on December 1, 1886, to recover on account of goods sold and delivered to defendant. The petition alleges that the plaintiffp. are citizens of the state of Missouri, and that defendant is an alien and a resident of Canada. At the time of filing the petition, the plaintiffs swore out a warrant of attachment and garnishment against the goods and property of the defendant. It appears from the marshal's return on the summons that the defendant was not found in this district, and no service of the writ was made. But, in pursuance of the command of the writ of attachment, the marshal did attach and take into his possession a lot of goods pointed out by plaintiffs' agent as the property of defendant; saict goods then being in the possession of Miner &Sowers, who claimed to own the same, and did also serve said Miner & Sowers with process of garnishment. The garnishees appeared, and moved to discharge the garnishment, and set aside the attachment, on the grounds that they were illegal and void. Pending this motion, and on the twenty-eighth day of March, 1887, at the procurement of plaintiffs, Canada entered a voluntary ap-