to be del1veredto either party until the same shall be agreed upon in writing under the agreement. In case nothing is recovered by the suit or other proceedings by said Norton, all of said bonds to be delivered to said Pillsbmy. [Sig'lled] "MARCUS P. NORTON. "Dated this fifth day of June, 1882." Subsequently, just before Norton brought,this suit, which was. begun November 20, 1882, this additional agreement was entered into: "This article of an agreement made on this seventh day of November, A., D. 1882. by and between Marcus P. Norton, trustee, of the city of Boston, in thl:' commonwealth of Massachusetts. party of the first part, and Fred. A. H. Pillsbury, of the city of Bangor, in the state of Maine, and his brother Ed ward B. Pillsbury, of said city of Boston, party of the second part, witnesseth: that whereas. on the fifth day of June, A. D. 1882, and at said city of Boston. the said Marcus P. Norton, trustee, and said Fred. A. H. Pillsbury, made and entered into a memorandllm agreement in writing, dated onor about the said fifth day of June, A. D. a copy of which is hereto annexed, marked'A,' and made a part 'hereof, while each of said persons hold an original in duplicate; now, therefore, in consideration ·of the sum of one dollar paid to and received to the full satisfaction of said Norton, trustee, and said Pillsbury, and in further and other valuable considerations herein and hereby dulyacknowledged by the parties hereto, the following is now and here made addition to said memorandum agreement in writing, that is to say: "The said Fred. A. H. Pillsbury, and his brother Edward B. Pillsbury, and the said Norton, trustee, have this seventh day of November, A. D.1882, duly deposited in a safe in the vault of · 'fhe Security Safe Vaults,' Equitable Build. ing, corner of Milk and Devonshire streets, in the said city of Boston, for the rental of which the said Norton, trustee, holds a receipt of the company owning said ·Security Safe Vaults,' dated Boston, November 6, 181)2, (750) seven hundred and fifty bonds of the Consolidated European & North American Railway COmpany of ($1,000) one thousand dollars each, with coupons attached, and w1)ich are the first mortgage bonds of said railway company, and dUly issued and delivered by said company as by law provided at the time of the date thereof, reference to which is hereby had for a more full description of Lhe same and of each thereof. "The said Marcus P. Norton, trustee, is now preparing and is to bring and institute one, two, or more suits, if the same, in his judgment, shall become necessary, in order to carry out the said contract and agreement, using his name in the manner and form affixed hereto, in any of the courts of the United States of America having jurisdiction to enforce and compel the payment of said bonds and coupons thereto attached; and he, the said Marcus P. Norton, trustee, for himself, trustee, his heirs and lawful representatives, have agreed in said' Memorandum Agreement' of the date aforesaid, and also now and hereby agree and contract, to commence, carryon, and to prosecute any and all of said suits to be so commenced on said bonds for their payment, together with all the coupons thereon, to a final decision and determination and conclusion in the said courts, and as speedily and vigorously as is possible for him and his attorneys, and of counsel under his instruction, to do, in the exercise of good faith and sound discretion and judgment to exercise,-all of which is to be done at his own cost and expense, and of his said heirs and lawful representatives, in case of his decease before the finishing of said suit or suits, as the case may be;, good counsel being employed by him for said suits, etc., and at his own expense as the same being also mentioned in said agreement of June 5, A. D. 1882. "The said Marcus P. Norton, trustee aforesaid, has paid for, and he is to continue to pay for, the use of said safe in said deposit vaults, No. 1,328, for
NORTON V. EUROPEAN & N. A. RY.
thE' safe-keeping of each of said bonds during the pendency (If said suit or suits, as the case may be. "Except only for ·conditions broken' on the part of sald Norton, trustee, the said (750) seven hundred and fifty bonds herein mentioned are to remain and continue to remain in said safe No. 1,328 until the final completion of and final adjustment of said suit or suits, as the case may be, unless upon the mutual-consent of said Marcus P. Norton, trustee, by order in writing, and of the said Fred. A. H. Pillsbury and his said brother Edward B. Pillsbury, by order in writing, duly obtained and given in the presence of one or more witnesses. "Upon the completion of said suit or suits, one-half (t) of the gross sum or amount adjudged, declared, or decreed as belonging to said (750) seven hundred and fifty bonds and coupons, or otherwise recovered on the same, is to be paid to said Pillsbury and his said brother, or their written order. and onehalf (!) of the gross eum or amount so adjUdged, declared, or decreed, of said bonds, and coupons, is to be paid to said Marcus P. Norton, trustee, or his written order, as herein contracted and agreed to. "If nothing shall be thus recovered in said suit or suits, and upoh completion and termination thereof by said Norton, trustee, or his heirs or legal representatives in case of his decease, all of said bonds and coupons are to be delivered to said Pillsbury and his said brother, or their written order, without claim or any hindrance thereafter. "For and only upon hereinbefore stated I conditions it is. agreed by said Marcus P. trustee, that immediately thereafter the said Fred. A. H. :Pillsbury and his said brother shall be entitled to have and to know the combination of said safe No. 1,328, so as to enable said bonds, under said supposed circumstances, to be at once delivered to said Pillsbnry and his said brother, together with said coupons, otherwise said bonds and coupons al'e to remain as herein provided; and at the final termination of any and all suits mentioned herein, if successful, on the part and in behalf of the said Marcus P. Norton, trustee, or anyone lawfully representing him, then the said bonds and coupons are at once to be divided by and between the said parties hereto in the manner herein provided. "The foregoing articles of agreement are, on the day first above written, to-wit, this seventh day of November, A. D. 1882, made, signed, sealed. executed, and delivered to the parties herein named, respectively, in duplicate, and upon comparison by Mr. Fred. A. H. Pillsbury, one of the parties hereto, and Joseph P. Day, in the office of said Marcus P. Norton. "In testimony whereof we havo on this seventh day of November, A. D. 1882, hereto set our hands and seals, in the presence of two witnesses, namely: "MAR(,'US P. NORTON, Trustee. "FRED. A. H. PILLSBURY. Seal· .. EDWARD B. PILLSBURY. Seal. "JAMES H. RICE. "LEWIS C. LILLIE." On December 17,1883, Edward B. Pillsbury petitioned to be allowed to join as plaintiff in this suit, which was granted. On January 3, 1884, Norton released to Edward B. Pillsbury aU interest in said bonds, except in 100, of which he took possession that day; and Pillsbury, with the assent of his brother, released to Norton all interest in said 100 bonds, and agreed, among other things, to pay all expenses which shall herev.fter be incurred in the prosecution of the Norton suits. It further apthat several sales of the bonds in the possession of Edward B. Pills1>"ry took place to outside parties, beginning November 4,1882. These
sales were negotiated by F. A. H. Pillsbury, and the money in the first inl"tance was paid over to him, and the i.ndorsements on his brother's note of $1,000 were made by him. Such are the leading facts bearing upon the standing of the complainant Norton, and the subsequent complain. ant Pillsbury, in this case. From a careful reading of the whole evidence, and especially that of a documentary character, I am satisfied that the principal if not the only real party in interest in this suit is F. A. H. Pillsbury, a citizen of the state of Maine; and that the transfer of bonds to his brother, and the agreements with Norton, were made for the purpose of giving this court jurisdiction over the controversy. At the time of the proceedings under the so-called land grant mortgage. which it is now sought to set aside, neither the elder Pillsbury nor his brother nor Norton were the owner of a single bond of the consolidated company. It was the inof the consolidated company to the firm of Haynes & Pillsbury,and'the la"'suits which resulted, that led to the purchase of these bonds by the elder Pillsbury. Having acquired a large number at the bonds, the next step was to bring suit. It is evident that the elder Pillsburydid,notwish to bring suit in the sta.te court, because he could have done sO at any time in his' own nama, but, manifestly desiring to try the case iri the federal court!!, 'he plans accordingly. His brother Edward was a y;Q\1llg inan ltbout 25 years of age, residing in Boston, in the employ of the-Bankers' ,& Merchants'Telegraph Company,at a salary of $1, 20080 year, and with no property, as he testifies, except some household goods and a-few hun.dreddollars.MarcusP. Norton was a lawyer inter.ested inrailroad matters. It was through residing in. these instrumentalities tb'at'the elder Pillsbury hoped to c&rry on a suclitigation in the federal courts. Whatever app;jl.rent transfers or agreementElwere made respecting these bonds, it will be observed throughout these transactions that -everything seems to emanate -from and to be controlled by the elder Pillsbury. He purchased all the bonds, except the 50 bought by his brother from the Imperial BlUlk, the sale of which he It. was owing to information received from him _about a propqs1tionfrom Norton that Edward B. Pillsbury had an interview with Norton, which resulted in the agreement of June 5, 1882, in which, for a oonsiderationof one-half of at least 750,000 bonds, Norton agreed to carryon suits af his own expense. This was followed July 29, 1882, by a transfer of 700 bonds from him to his brother upon his giving a note for $1,000 and the agreement attached thereto. After this so-called- saie, he was still one of the principal parties-tn the Norton agreement of November 7, 1882. Subsequent sales of bonds to third - parties appear to have been made by him, and he seems to have had the dispol!iition of the proceeds, and he has always taken the most active _interest in the prosecution of' this suit. He was bound by his contract with his vendors to account to them for at least one-half of what was realizedfr6m :these bonds', as the result of suits to be brought, but this he could not-do if the transfer to his brother was valid; Further, the testimonyof EdwardB. Pillsbury, that incon,sideration of his becoming a
NORTON, 'V. EUROPEAN· 8< N.· A. RY.
party to the arrangement with Norton, Haynes arid Pillsbury should furnish the whole consideration to Norton from their bonds, is inconsistent with the fact of a sale' of these same bonds to him. From the whole evidence, I am forced to the conclusion that the real party in interest in respect to these 700 bonds is F. A. H. Pillsbury, that the sale to his brother Edward wag not bonafide, and that this pretended transfer and the agreements with Norton were the means employed through which Norton might bring suit in this court. Whatever interest Norton had at the beginning of this suit 'in the bonds deposited under his agreement was derived from F. A. H. Pillsbury, a resident of Maine, and was obtained by collusion between F. A. H. Pillsbury and himself, assisted by Edward B. Pillsbury, for the purpose of giving jurisdiction to this court; and therefore under the act of March 3, 1875, (18 St. 470,) this court is without jurisdiction, and the bill should be dismissed. Farmington v. Pillsbury, 114 U. S. 138, 5 Sup. Ct. Rep. 807. But it is said that E. B. Pillsbury was the bona fide owner of 50 bonds purchased from the Imperial Bank of London before the commencement of this suit, that 40 of these bonds have been deposited in court, and that, therefore, the court should entertain jurisdiction as to him. It was through F. A. H. Pillsbury that these bonds were purchased 'in April, 1882, about the time negotiations began with Norton. The contract E. B. Pillsbury made with the bank was likethose his brother had made with Kay and others. Considering this, and the condition and position of the younger Pillsbury in this whole matter, I cannot but suspect that the real party in interest in this transaction was F. A.H. Pillsbury, whatever form the transaction may assume on paper. But admitting that E. B. Pillsbury owns these bonds, the question arises whether this court should allow him to intervene more than a year after a suit was brought which was collusive in its origin, and which the statute declares must be dismissed, because the transfer to the complainant was colorable merely I and made for the purpose of giving this court jurisdiction, while the real party in interest was a citizen of the same state with the defendants. Under these circumstances I do not think this court should retain' this bill, because a subsequent intervenor may have a standing here. A bill in equity may be amended by the addition of a new party as plaintiff, when the new party is a necessary party to the case made by the bill; but this is quite different from the allowance of an amendment making a new party to the bill, and at the same time making a new case for such party in the bill. Pillsbury comes in to assist in the prosecution of the original bill; but if the original bill ought to be dismissed, it is difficult to see on what ground to base his right to intervene. Further, Norton is still a complainant in this suit with Pillsbury., And we now have joined togethe!' in the same bill two complainants, over one of whom the court has jurisdiction, while over the other it has none, because Norton really stands in this suit for F. A. H. Pillsbury, a resident of Maine. We think this court may well say that the condition of parties is the same in this case as if F. A. H. Pillsbury were actually before the court in place of Norton, and that, therefore, the rule
should be applied which was first laid down by Chief Justice MARSHALL in New Orlean8 v. Winter, 1 Wheat. 91, and recently in Iron 00. v. Stone, 121 U. S. 631, 7 Sup. Ct. Rep. lOlO,and the case dismissed for want of jurisdiction.
BIENVILLE WATER SUPPLY
;Oz'rcuit Oourt, S. D. Alabama. December 2, 1887.)
INJUNCTION-WHEN GRANTED-INCONVENIENCE RESULTING.
In 1840; the city of Mobile granted to plaintiff's testator the exclusive right to supply.the city with water for 20 years, or until the city should redeem his works bUllt for that purpose. In 1883, defendant company was chartered, and began supplying the city with water. Plaintiff filed a bill to enforce the monopoly granted his testator, and applied f9r an injunction pendente lz'te restraining defendant from supplying water. Held. that the injunction must be refused, as liable to cause harm of serious character to the people of the city, and the plaintiff will have leave to renew the application on final hearing of the bill. .
SAME-INFRINGEMENT OF FRANcmsE-INTERFERENCE WITH WORKS.
In such case, however, the court will grant an injunction restraining the defendant from injuring, or in any way interfering with, any pipes, conduits, or mains constructed pursuant to the agreement between the city and the plaintiff's testator.
On Application for Injunction pendente lite. The bill in this cause was filed April 25, 1887, by Louis Stein, as executor of Albert Stein, deceased, and sought to enjoin the defendant from laying mains and pipes in the streets of Mobile, and from conducting water to that city and supplying the inhabitants therewith. Beginning with 1820, several attempts were mllde by public and private enterprises to supply the city of Mobile with water, but these met with little success. The first attempts went little further than the definite selection of the head of Three-Mile creek, near Mobile. as the source of supply, and the laying of bored logs with three and six-inch holes. The privileges granted were in each case limited as to time, and. on the failure of the different plans, the rights of the promoters were by the legislature \'ested in the city of Mobile. December 26, 1840, an agreement was entered into by the city and Albert Stein, (confirmed January 7, 1841, by the legislature of Alabama,) whereby the city granted him" the Bole privilege of supplying the city of Mobile with water from the ThreeMile creek for twenty years," and agreed at such time to redeem the water-works from him at a valuation to be fixed by arbitration. The agreement continues: "During the said term of twenty years, or any further time until said works are redeemed as above stipulated, said Stein shall have the exclusive privilege of supplying to the citizens and inhabitants of the city of Mobile water from the water-works aforesaid," at certain rates, and have quiet possession of the said works. Stein, on his side, agreed to construct the water-works within two years, "so that the said city of Mobile, and the inhabitants thereof, may at all times