. SOWLES 'V. WITTERS.
tempting to do so, and in the mean time one of the members of the finn of Riggs & Co. has died. This statute is by its terms obligatory upon courts of equity. Its language is: "No suit at law or in equity shall be maintainable in allY court .. * * * unless brought within two years," etc. It is not altogether clear that a court of equity, when the proofs show that the action has not been brought within the time prescribed by a statute which is addressed· to the court, ought not to dismiss the bill, although the defense has not been taken in the pleadings. In Bailey v. Glover, the defense was raised by demurrer, and the court treated the question as properly raised in that way. The defendant has not set up in terms the two-year limitation by plea or answer, but his answer al.leges that the complainant had full knowledge of the purchase. of the bonds by Riggs & Co. at the time they were purchased, and thatthe caUSe of action did not accrue within six years prior to the commencement of . the sliit. Upon the authority of Bogardus v. Ohurch,4 Paige, 178, and Van Hook v. Whitlock, 7 Paige, 37.3, the answer is sufficient to enable the defendant to avail himself of the statute. In the latter case Chancellor WALwonTH said: "The allegation in the answerthat the complainant's right of action, if any, had not accrued within six years, necessarily covered the shorter period of three years limited by this clause of the 6th section of the statute." So, here, the allegation that the cause of action did not accrue withi'n six years necessarily includes the statement that it did not accrue within two years. . As the pleadings put in contestation every fact necessary to enable the court to decide whether the action was brought within the 'propertirlie, there seemsilp be no reason why the defense should not be .considered. That the statute ·applies to a:case like the present 'Was decidedbythis'eourt when this cause was here on the demurrer of KieckThe bill hoefer, (29 Fed. Rep. 53,) and is plliin upon the is dismissed.
et 01. '11.
(Oirc'Uit Oo'Urt,D. Vermont.
In an. actipn,against the receiver oJ a bank, for d.ivldends upon a debt for a deposit in tbe nanle of "S., trustee." the mere general statement of S. that the . ·money depollited was his daughter's, in connection with evidence tbat she owned propel,'ty of. which he had the .management, and from which deposited might have been derived, it not being shown that it was derived therefroM, is not sufficient to enable the daughtel,'to recover.
E. A. Sowles, for orators. O. w. Witter8, for defendant·
J. The defendant is receiver of the First National Bank of
When that institution closed its doors
on April 8, 1884,
there was standing upon its books an account in the name of "E. A. Sowles, Trustee." It comprised two credit items, viz., a deposit of$l ,300 on March 18, 1884, and a further deposit of $553,,43 on April 1, 1884. There was no debit item, and the balance standing to the credit of the account when the bank suspended was $1,853.43. On July 15, 1884, the receiver duly certified in the usual form to the fact that "Edward A. Sowles, trustee," was a creditor of the bank to that amount, and subsequently two checks or drafts (for dividends from the assets) were drawn by the comptroller of the currency on the subtreasury to the order of "E. A. Sowles, trustee," and are now in the posses::ion of the defendant. This action is brought to reCQver those drafts, or their equivalent in money. action is brought by "Edward A. Sowles, trustee of Susan B. Sowles," and "Susan B. Sowles." The last-named plaintiff is the daughter of Edward A. Sowles. She was a nlinor when the deposits were made, but since then, and before the beginning of this action, has pome of age. The complaint expressly avers that Susan was and is the lawful owner in fact of the deposits; that since she has corne of full age she has demanded the said money and said certificates. She prays .depvery to herself in her own right. The answer puts the orators to the proof of these averments, and they must be established by satisfactory .evidence before recovery can be had in this action. It will not <10 for complainants merely to show. that E.A. Sowles made the deposit as trustee for an unnamed beneficiary, who might or might not be Susan, but whose not now shown. They must go further, and show Susan's. title to the fund by proof as convincing as if, Edward A. being dead, and his trusteeship at an end, Susan B. were here as sole plaintiff, claiming to be the real owner of the fund. This view of the case renders the evidence at great length. It may be canthat on. the"testimony as it stands the bank was notified when Sowles deposited the money that the fund was not his, but that he held it in trust for some other person. Nor need we consider whether such notification conformed to the facts, except so far as to determine whether it were money which at the time of its deposit he held in trust for Susan. It appears that, irrespective of a considerable sum of money held in trust for her by Margaret B. Sowles, Susan B. Sowles, while yet a minor, and before the date oLthese deposits, received from time to time a large number of gilts of personal property, choses in action, and real estate, made to her by Hiram Bellows in his life-time, by Susan B. Bellows in her . presumably before the.embarrassments which culminated in the failure of the bank of which he was president. These various gifts several thousands of dollars. The income of this Hiram Bellows had in part received during his life-time, and at his decease much of it passed into the hands of E. A. Sowles. For several years prior to 1884 he was having large transactions on account of his daughter, covering "a good many thousandf:1.," and entirely independent of the specific trust fund given by Hiram Bellows' will to complainant's wife in trust for Susan. He collected moneys for her, and carried on for her a large farm of about 430 acres, given her when she was about
MOXIE NERVE-FOOD CO. V. BEACH.
five or six years old. The income from the farm was large. These facts are all testified to by Edward A. Sowles, and fully explain how it might happen that on March 18, 1884, and April 1, 1884, respectively, he shouldfi.nd himself in possession of $1,300 and of $553.43, which belonged to his daughter. The plaintiffs must show more than this, howA. that the money he ever, and the mere general statement of deposited on those dates was hers is not sufficient. He admits that during the e:l\:citement and harassment of that period, when his bank was tottering on the verge of bankruptcy,his memory of details is not as full as it might otherwise be, and in fact his first recollection as to the source from which the money came seems to have been at fault. Fortunately, however, the deposits were of checks which have been identified, and to entitle Susan B. Sowles to this deposit she must show ownership of these checks, or of the money they represented. It must appear by proof either that they were her property when they came to Edward A. Sowles' possession, or that they fepresented money which he had the right and was under the obligation to set apart for her benetit. It is here that the complainant's prooffalls short. It is not shown that this money was receivEld either as the income or the principal of any of the gifts to Susan B. Sowles above referred to. The suggestion was made upon the argument th l1t the plaintiff Edward A. and the estate of Hirarn Bellows were debtors to Susan B. for moneys of hers advanced by Edward as her trustee to Pll.Y legacies due by the estate, and that this money, belonging either to hini or the estate, was applied to repay that loan. The proof, however, nowhere shows that any money of Susan B. had been used ,to pay the debts of Hiram Bellows' estate, while it appears quite plainly that the amount of the first deposit was derived from the foreclosure of a mortgage originally the property of Hiram Bellows, and as to which there is nothing to show that it was ever distributed from his estate to any particular individual. Let there be a decree dismissing the bill.
(Oircuit Oourt, D. Ma88achu8eUa. July 2, 1888.;
Where a witness for plaintiff testifies, on direct examination, only as to the uses and effects of "Moxie," or "Moxie Nerve Food," he cannot on cross-examination be required to disclose the particular ingredients of that preparabeing a trade secret, the disclosure of which would injure plaintiff's busmess. '
COLT, J. Under the rule which prevails in the United States courts limiting the right of cross-examination of a witness to the matters stated
in his direct' examination, (Railroad Co. v. Stimpson, 14 Pet. 448, 461; Houghton v.Jonea, 1 Wall. 702, 706,) I do not think the proposed questions to Dr. Thompson are admissIble. The witness was asked in his as to the uses and effects. of Moxie, or Moxie Nerve direct Food, for the terms are used interchangeably, but he was not asked as to the particular ingredient of Moxie, what it was, or the place or sour0e from which it'came. In spite of the contention of defendants' counsel to .the contrary, it seems to me that this may fairly be considered the limit of the inquiry by the counsel for complainant. But aside from this, I have grave doubt whether the' witness can be obliged, under the circumstances existing in this case, to disclose what is evidently a trade secret, the result of which might be to ruin his business. I have examined withcate the briefs of counsel, and it must be admitted that the ql1estion is' riot free from difficulty. I am strongly impressed, however, that it would be inequitable to force the witness to make the disclosures called for, and therefore, unless hound by authol'ity,' I. DlUSt deny the motion. ' The defendants have failed to produce any authorities in their .favorupon'the exact point in is&ue. The complainant supports its position by reference to the case of Tetlow v. Savournvfl" 15 Phila. 170, 11 Wkly. Notes Cas. 191, where a rule for attachment against the plaintiff for his refusal to answer what ingredients his goods were composed of was dismissed. The counsel for the plaintiff in that case urged that the whole ,commercial value of such proprietary manufacturers depends upon secrecy as to their composition, and protested against depriving a man of his property by such a proceeding 'as this. If these questions must be answered, every manufacturer will be at the mercy of anyone who desires to extort from him an account of his process, for an attempt to 'restrain RJ;l infringer would result in the disclosure of aU that makes the invention valuable. The case was heard berore Judge MITCHELL and' Judge HAnE. It seemS to me that the arguments urged in Tetlow v. Satlournin against the right of the defendant to oblige the witness' to m,ake disclosure are sound, and are applicable to the present case. Motion dismissed.
, " «7lorcuit OO'U'1't,S. D. New York. July 9, 1888.)
.. Whf1re plaintiff alleges in ;his complaint that he is a citizen of Pennsylvania, and defendant of New York, and defendant in his answer as to this allegation denies "any knowledge or information sufficient to form a belief," and then answers to the merits, he waives his plea to the jurisdiction, and the same is properly disregarded; and this rule is not altered by Code Civil Proc. N. Y 518, recognizing and providing for the ver,i,tication of dilatory defenses; and section 48tl, providing for a demurrer when want of jurisdiction of the court. (If of capacity of plaintiff to sue, appears on the face of the complaint; and section 498, providing that the objection may be taken by answer when it does
AND REVIVAL-O:BJEOTION TO JURISDICTION-WArVER, , '