been by the fedeml courts, including that of filing a plea in the nature ,of a plea in abatemel1t to the petition for removal. Leave was then given the plaintiff to present the question thereafter in any appropriate way. Subsequently, the plaintiff, acting pursuant to such leave of c<;>Urt, filed in this cause her plea in the nature of a plea in abate.ment to said petition for removal, setting forth therein substantially the same allegations h,ercitizenship.as those contained in the affidavits .filed lnsu pport of her. motion to remand. The defendant plaintiff' has filed in the cause a joinhas demurred to that der in' demurrer; and the legal questions as to the sufficiency of the 'pleadings involved have been submitted to me by counselfor the respective parties upon briefs. In behalf of the defendant it is urged that the plea is not sufficient in matters of form when tested by the strict technical rules which at common law ,regulated in abatement. I do deem it necessary to determine whether or not this contention is well founded, for I am satisfied that this plea should not be tested by such rules. It is hot SllCh a pleading as should be looked upon with disfavor by the court, but is one which simply tenders an issue upon a material question of fact; and it fairly and with sufficient certainty sets forth allegationsas to mattersoffact which, if proven, would clearly negative thEl jurisdiction of this court. The function which such a plea performs is a substantive one, designed onlyfor bringing forward an issue of fact in which the other party may join, and so a tTial be .had.. An order overrulirig the dernurrer must therefore be entered. An opportunity, however, should be given the defendant to accept the 1ss1,1e tendered. Ten days will be .al1owed. in. w.hich the allegations of the plea as to the citizenship of the plaintiff may be traversed. In default thereoi an order will be entered remanding the cause.
et al. ".
(Oircuit Oourt, E. D;Mi88ouri, E. D. May 24.1888.)
INJUrWTIoN-T6 PROTECT PRIVATE RIGHT-VIOLATION AND TERES'r OF PROSECUTOR.
Stockholders of a corporation obtained an injunction to restrain the levy of tlloxes on certain property of the alid subsequently filed an in· formation to have certain par.ties punished for coIitempt for Violating the same. It appearing that the property to which the exemption attached had beenllQld to another corporation under a decre.e of foreclosure since the injunction. and that the complainants had no further interest in the question of Its taxll);ion, held. that they' could not maintain the prosecution for contempt.
Held, further, that if the complainants were also stockholders of the corporation whil;h had purchased the exempt property uQder the decree of lind the exemption followed the proJlerty into the hatids of the vendee. they might the prosecution notwithstahding the sale.
SECOR V. SINGLETON·
The courts will not entertain a procE'eding to punish a person for violatinll: an injunction granted to protect a merely private' right,unless the proceed· ing is instituted by some one who has a pecuniary' interest in the right to be protected.
STATES AND STATE OFFICEBS-8UIT AGATNqT STATJ;J-TAXATION-ExEMPTION.
Where 1i statute of l\ state exempts certain property from taxation, a suit brought against certain. state and county officers, to restrain them from assessing such property. is not in name or in effect a suit against a state; and 8. decree lI.g-ainst such office.rs in a federal court. enjoining them from assessing exempt property, is not void under the decision in Ex parte Ay61'8, 123 U. S. 443, 8 Sup. Ct. Rep. 164.
In Equity. Citation against R. M. Thompson, J. E. Billups, W. W. Buford,and William Y. Wyue, to show cause why they should not be punished Jor contempt. F. T. Hughes. H. S.Priest, and Geo. S. Grover, for complainants. Anderson £to Davis, for respondents· . THAYER, J. 1. The motion to adjudge respondents guilty of cOntempt notwithstanding the return to the citation, like a demurrer, admits all the facts stated in the return. Complainants, as non-resident stockholders ofth'e Missouri, Iowa & Nebraska Railway Company, on May 10,1882, obtained a final decree against the then county judges of Scotland -county and the county collector, enjoining them and their successors in office "from levying or attempting to levy, collecting or in any manner .attempting to collect, from or of the Missouri, Iowa & Nebraska Railway Company,any taxes whatever, state, county, school, or, .municipal, * * * until the expiration of the period exemption from taxation limited in the charter of said railway company, to-wit, until December 1, 1892." The interest which complainants had in the property that had been exempted from taxation was that of stockholders in the rail. Toad company that then owned the exempt property, and it was on the cStrength of sucb interest that they were allowed to maintain the bill for .an injunction, and eventually secured the decree above mentioned. The respondents' return alleges, among other things, that all the property of the Missouri, Iowa &-Nebraska Railway Company to which the exemption from taxation applies. was sold under a decree of foreclosure on Au,gust 18, 1886, and that on December 3, 1886, it was delivered to and became vested in a corporation known as the" Keokuk & Western Railroad Company," "and tha,.t the complainants have no longer any interest whatsoever in said * * * property, or in the question of the taxation thereof, or iil the matter of collecting taxes thereon." That clause -of the return which I have placed ill quotation, if standing alone, might be treated as a conclusion of law, and be ignored for that reason. Taken, however, in con.llection with the averments which precede it, (showing in what manner the complainants have been dispossessed of their interest,) the clause in question is well pleaded, and cannot be disregarded. For the purposes of the motion the foregoing averments must be taken as -confessed. The question accordingly arises whether, in the face of the
admission had lost all interest whatsoever in the maintenance of the ,injunction when the information, herein was filed, the court ought to entertain their application to punish the respondents for a contempt. This question must be answered in the negative. When an injunction has been granted, as in this instance, in a suit between individuals to protect one of the parties in the enjoyment of some private right, imrnunity,orfranchise,'it seems to be the rule that no onecan complain of a violation of the same, unlesl;! it be some one who has a present interest in maintaining injunction, nor unless he, was a party to the suit in which the order was obtained, or for some reason stands in privity with one who was a party to the litigation. In cases where an injunction has been granted to enforce or maintain a merely private right, a proceeding instituted to punish a -party for violating the order is very generally regarded as a proceeding to redress a private injury in which the public have no 'concern, and for that reason the prosecutQr or person filing the information must have an interest in the proceeding differing from that <;If the general public; otherwise the courts will not entertain the information,' Hawley v. Bennett,4 I Paige. 163jRap.Contempt, § 127; 2 High,Inj. (2d Ed.) § 1449. The cases show that a party in whose favor an injunction hits been lI.ward>ed cmay by express agreement, or by his condnct, release the injunction, or at least waive his right to have acts done in violation of the >restrainingorder adjudged to be a contempt. Milla iv. Oobby, 1 ,Mer. 3; Barfield v. N"wholson, 2 Law J. Ch. 90; H1dJ, v. Harris, 45 Conn; 544;2 High, Inj. (2d Ed.) § 1450. ' It would ,Seem to follow that an injunction obtained to protect a merely private right, 'is SO 'far within the control oithe party obtaining it, and 1-s so far a lnatter of individual concernjthat only those persons who have a present interest in the right to be protected, can be heard to complain of its violation. Ifa person in whose favor an injunction has been granted complains of its Violation, a presumption should no doubt be indulged tMt he still has an interest in the SUbject-matter to which the injunction. relates, without any averment to that effect; and ifsuch interest is called in by the respondent, the court ought not to inquire very particularlyas totha extent of the prosecutor's interest, further than to assure itself that the prosecutor is not a mere intermeddler. If the present com· plainants are now stockholders of the Keokuk & Western Railroad, which !has become the owner of the exempt property; I am inclined to the view that that gives them a sufficient interest to maintain this prosecution, assuming for the purposes of the case that the property in the hands of "the 'Keokuk & Western Rallroad is still exempt from taxation. Never'theless it is essential that the person who sets on foot a prosecution for ·cbntempt should have some present interest in enforcing obedience to ·theorderivhichhas been violated. When it is admitted, as in the preslent 'case; that no' such interest exiSts, the court cannot properly entertain :theproceeding.' . " 2. SlI.iddisposes ofthe motion; but 'as the action ofthe 'court in overruling the motion on the ground above stated does not necessarily end the proceeding, and as s01ue other questions have been dis-
SECOR, 'I. SINGLETON.
cussed,. they will be decided. First in otder of imrJortance is the plea that. the co,urt .Qught not to punish the respondents for the alleged conteJApt,bepa'\lse the Keokuk & Western Railroad Company has for a long alleged contempt. That period acquiesced in the,aets constituting there been such, acquiescence admits of rio controversy on :the facts recited in the return. In March, 1886, William Y; Wyne, as collector of Scotland county, intervened in a suit brought to foreclose· a mortgage on the property of the Misaouri, Iowa & Nebraska Railway for the purpose ofcollepting taxes for: the year 1885, levied by the county court of f;lcotland coqnty on whatis claimed to have been property 1.aat was exemptfrqm taxation according to the decree of this court and the decision orthe allpreme court, of ,Missouri, in Scotland Co.v. Railway Co., 65 Mo. 123. .,S-uQsequently, in the year 1887,he brought suit against the Keokuk & Western' Railroad ,Company, in the circuit court of Scotland county, to recover taxes for the year 1886, assessed against the same property. The present county judges of Scotland county, who are made respondents, did not levy the taxes for 1885 and 1886 so sued for, such levy having been made, it seems, by their predecessors in office. They made an appropriation, however, of certain money to prosecute the intervention in the foreolosure proceeding for the taxes of 1885. ' These are the several acts constituting the alleged contempt. In each of those suits the Keokuk & Western Railroadjoined issue and went to trial long before the present information was filed by the complainants to punish the respondents for contempt in bringing the suits. In one of the cases judghad already been recovered for the taxes of 1886 before the information was filed. In the other case it seems that the Keokuk & Western Railroad.was instrumental in causing the same to be ,set for trial and heard, although the respondents had taken no action in that direction. That case, however, is as yet undecided. After these acts, after the Keokuk & Western Railroad Company has participated for months in litigationthat was carried on apparently in open violation of a decree of this court, and after it had been defeated in one of the sUits, the present information waS filed on March 16, 1888, and it is now insisted that the court shall commit the respondents for contempt unless they release the judgment already obtained, and dismiss the intervention which is still pending and undetermined. OIl the face of the transaction it looks very the Keokuk & Western Railroad Company is the real much as prosecutor, and as though its object was to defeat the suits above mentioned, which it has not succeeded in doing in the courts before whom the same are pending. If such be the fact, the'right to insist that the respondents shall be punished for contemptbecause the suits were brought, and that they shall be compelled to dismiss the same, must be denied. The parties have acquiesced too long in the right asserted by the respondents to maintain those actions, to now insist, so far, at least, as those particular suits are concerned, that they have all the time been prosecuted in violation of the orders of this court.MUls v. Cobby, aupra. If such was their 'View oUhe effect of the injunction, they should have asked thisQOurt to interpose its authority to arrest the prosecution of the suits
at an earlier day. As a purchaser from the Iowa & Nebraska Railway of the property to which the exemption attached, no reason is perceived why the Keokuk & Western Railroad Company might not have lodged an information complaining of the alleged violation of the decree of May 10, 1882. It did not choose to pursue that course. It made its election to defend the suits as though rightfully brought, and took the chances of making a successful defense. Having adopted that- course, (if the facts be as stated in this return,) the court will not, at the instance of the Keokuk & Western Railroad Company, adjudge the prosecution of those particular suits to be a contempt, nor ",ill it interfere with the further prosecution of the same in the respective courts in which they are now pending. If it be true that the complainants filed the present information of their own volition, to protect their own interests, and that they did not file it at the solicitation of the Keokuk & Western Railroad Company, theconclusioll already announced would not be changed. It is obvious that complainants Can have no personal interest in the subject-matter of the controversy, except as stockholders of the Keokuk &.Western Railroad Company, which now owns the exempt property. Though the taxes for the years 1885 and 1886 Were assessed against the Missouri, Iowa & Nebraska Railroad, yet, under the law, they can only be enforced against the property on which they were levied, and that has long since passed into the possession of the Keokuk & Western Railroad. Both the state and the county of Scotland must look to property now belonging to the Keokuk & Western Railroad for payment of the tax-bills, even if it be conceded that the assessments were lawful. Assuming the matters stated in the return to be true, it is not possible to conceive how the Missouri, Iowa & Nebraska Hailway can at the present day be in anywise interested in the pending controversy. That being the case,and inasmuch as complainants derive whatever interest they have in maintaining the injunction from their connection with the Keokuk & Western Railroad Company> it follows that if the railroad comj)!\uy has waived 01" forfeited its right to have respondents pnnished for con'tempt because' of the acts alleged in the information and return, then the complainants are equally without right to maintain such prosecution. 3. In conclusion I will add that I see no reason' to question the validity or binding force of the decree rendered in this case on May 10, 1882, onacconnt anything contained in decision in Ex parte Ayers, 123 U. S. 443, 8 Bup.. Ct. Rep. 164. The two cases, in my opinion, may be readily distinguished. In the Ayers Case, there was no doubt whatever that the officers enjoined were proceeding to do what the laws of the state of Virginia expressly required them to' do. The inj unction awarded against them was, in effect, an injunction 'against the state. In the present case no law of the state of Missouri required the officers of Scotland county to assess taxes against the property of the Missouri, Iowa & Nebraska Railway, or to bring suits for their collection if such property was exempt. The court held that the propert,y was exempt. Its injunction, therefore, instead of commanding a state officer to refrain from doing that which a statute of the state imperatively commanded him to do, really
AUGUST f1. CALLOWAY.
enjoined the officer not to violate 8 law of the state by assessing taxes on exempt property. The state was neither a nominal nor real party defendant. An order will be entered overruling the motion to commit respondents notwithstanding the return. If complainants desire to take issue with any of the averments in the return they will have leave to do so within five days; otherwise respondents will be discharged from the citation, at complainants' costs.
May 15, 1888.)
(Oircuit Court, 8. D. Gef)7'gia,
AsSIGNMENT FOR BENEFIT OF CREDITORS- V ALIDITy-PREFERENCES-SuavIVING PARTNER.
The supreme court of Georgia having held that the laws governing voluntary assignments with preferences must be strictly construed against the assignee, and the law being that a surviving partner cannot make such an assignment unless both he and the partnership are insolvent,an assignment preferences made in by a surviving partner, which does not on its face show the fact of such Insolvency, is void. Un4er act Ga. Oct. 17, 1885, § 1, requiring that a person making an assignment with preferences shall attach to the deed a full and complete inventory and schedule of all debts. setting forth in detail the nameH and residences of aU his. creditors. and the amounts due them. the schedule must show the nature of each obligation, and not merely its amount.
In Equity. Bill for injunction and receiver. Alexander Proudfit, for plaintiffs. HIJrdeman & Davis, Dessau & Bartlett and Bacon & Rutherford, for defendants. SPEER, J. The bill before the court is filed by the general creditors of the late firm of Winship & Calloway, to set aside an assignment made by Joel T. Calloway, surviving partner, with preferences to certain creditors. Emory Winship, of the firm, died on the 6th day of April, 1888; ,Six days thereafter Joel T. Callowa)T, as surviving partner, made What purported to be a deed of assignment to W. P. Baldwin, as assignee. The assignment conveyed to Baldwin, to be held in trust for certain ferred creditors, all the property of every kind owned, possessed, clairl,led, or to which the said firm of Winship & Calloway was in any mannerentitled. It consisted of the stock of goods, principally ready-made clothing, hats, etc., store fixtures, furniture, safes, desks, claims, notes, books pfaccounts, a,ndchoses inaction. The assignee was empowered to convert the assets into cash by making sales by wholesale or retail, or by publicor pr,ivatEl. sale,as in his discretion will be for the best interest of the creditors ofthe said Winship & Calloway; and in like manner to collect up the choses inactionbyauit, by compromising the