SUMMERLIN ". FRONTERIZASILVER MINING ,& MILLING CO.
et al. v.
FRONTERlZA SILVER MINING
Co. et ale
(Circuit Court, W. D. Texas. February 6,1890.)
CORPORATIONS-CONTRACTS-AcTION BY STOGKiIOLDERS.
Complainants alleged that they and certain other persons agreed to organize a corporation for the purpose of operating mines. 'I'hat afterwards they organized a mining company, adopted by-laws, and elected officers. That at a regular meeting of said corporation it was agreed that the capital stock should be divided among the different members thereof, complainants to receive a certain number of shares. Subsequently complainants were induced to resign from the board of directors in order to let in other investors; they being promised that their interests should remain the same. That thereafter they were excluded from the meetings, and deniec;l all knowledge of the affairs of the corporation. That, a new distribution of ,stock was made, the original distribution being disregarded, and the shares of stock which had been allotted to complainants were allotted'to-others. Held, that all these !I11egations did not show any contract on the part of the company as sucJ;l, nor that the company, as such, had taken part in the alleged,wrongful acts, and It could not be made a party defendant to an action to compel the issue to the com· plainants of the shares of stock originally allotted to them, or for damages in caS8 suohshares could not be issued. Where it appears from the complaint that the complainants have no community or priVity of interest, not being stockholders in the defendant company, and that the contract with each complainant was separate, and there was no privity in the consideration! a demurrer to the complaint on the ground of misjOInder of complainants wil be sustained., Where it appears from the face of the complaint that there can be no speci:llcperformance of the contract allotting certain shares to complainants, and that the recovery, if any, must be limited to a money decree, for damages for non-performance, thacomplainants have a complete and adequate remedy at law, and an action in equity will not lie. The complainants not being stockholders in the company, there is no trust relation existing between them and, the company that calls, for an accounting in
\!. PARTIEa-MISJODrDER-AcTION TO COMPEL ISSUE Ol!' STOClt.
a.EQUITY-J"URISDICTlON-ADEQUATE REMEDY AT LAW.
In an action against several defendants, where the complaint contains no allega. tions conneCting one of the defendants with the cause of action stated therein, the complaint will be dismissed as to him.
InEquity. On demurrer to bill. This action was brought by R. L. Summerlin and George F. Lllpton against the Fronteriza Silver Mining & Milling Company, C. E. Lyman, George M. Wakefield, and R. C. Russell. The bill alleges the following facts:
"(1) Robert L. Summerlin and George F. Lupton. of San Antonio, Tex., and citizens of the state of Texas, bring this. their bill of complaint. against the Fronteriza Silver Mining &, Milling Company, a corporation duly organized and operated under the laws of Colorado, and a citizen of the state of ColQrado, having a branch office at San Antonio, Bexar county, Tex., and doing business thereat, and C. E. Lyman, George M. Wakefield, and R. C. Russell, of the state of Wisconsin. "(l:l) And thereupon your orators, R. L. Summerlln and G. F. Lupton, complain and say that on or about the - - - day of - - - , A. D. 1885, an agreement Was m,ade by and between certain persons hereinafter named, to form and organize a corporation for the purpose of buying, selling, bonding, developing, and operating mines ood mining property, and for smelting, rednclng, refining, and selling the products thereof, and for buying and
"" PEnERA-I: REPOR'1'ERjVOl. 41.
selling minerals; and in pursuance of said agreement, and on or about the 31st day. of August, A.>D.. 1886, the following persons, to-w'it, G. W.A.ngle··· R. H. McCracken, Joseph W. Maddox, Robert J.J. Summerlin, A. A. Alexander, George F. Lupton,.l\nd Charles W·.Ogden, formed and organized a corporate body, under the laws of Colorado, named and known as the' Fonteriza Sil vel' Mining & Milling Company, ' thearticles or certilicate of whichcorporationwere duly filed in of the secretary of state of the state of Coloradoon the17th day of September, 1886, A. D. at 9 o'clock A.1\[. ohaid day, and recorded in book 14, page 601. All of which will more fully appear. as well as other matters and things herein alleged; in a correct copy of the articles of incorporation of said corporationannexell to the original bill, and marked ·Exhibit A, ' and prayed to be considered a part hereof. "(3) Your orators furtbercomplain and say that subsequently, to-wit, on or about the - . - - day of 8eptem bel', A. D.1886, the members of said corporain San Antonio, Tex., and in accordance with tion, as .aforesaid, the provisions of said articles of incorporation, adopted a code of by-laws to regulate themethod of conducting the business of said corporation. All of which willmore (ulIy appear by reference to a correct copy of said by-laws annexed to the original bill, marked' Exhibit B,' and prayed to be taken as a part of this bill of compl.l\int. .. . '. "(4)'Yollr orators further complain and say that at the meeting of the members afsaid corporation held inSanAntonio, Tex., the following officers were electedin'aQCordance w'ith)he charter and by-laws of said corporation, towit: Geo. W. Angle, president; Charles W. Ogden, vice-president;A. A. Alexander, treasurer; R. H. McCracken, superintendent; and S. M. Johnson. secretary.
SUMMERLIN 11. ll.'80N1'ERIZA SILVER !lUNING & MILLING 00.
agreedthaHbe stookallottedto individual members oNhe said mining cor· poration, as hereinbefore proportioned and distributed, or agreed to be distributed, should not pesold or disposed of in any way without the consent of all the original members of the said corporation. "(9) Your orators further complain and say that in September, A. D. 1886, the said corporation, by and through its board of directors, determined and agreed to dispose of a portion of the said treasury stock for the purpose of creating a fund to pay current expenses, and to procure additIonal machinery for operating and working the said Fronteriza silver mine more successfully; and in furtherance of these objects the said silver mine was examined and inspected by Dr. N. T. Lupton, and the facilities for working the same were accurately ascertained, and assays of ore made, in order to profitably dispose of the said treasury stock. as will more fully appear from Exhibit C to original bill, etc.; and that the first payment of the purchase money for said silver mine was made on or about. the 19th dayof October, A. D. Hl86, when the said corporation began working and operating the said silver mine, and have continued to work and operate the same until the present time. "(10) Your orators further complain and say that.tbe said corporation, through its officers and agents, represented to your orau,rs that certai n investments in the said silver mine would be made if said investors were allowed representation, and the same could be had and obtained, on the board of directors, and thereupon your orators were requested to resign their positions as directors, and were assured that their interests would not be jeopardized, but would remain the same; and upon this assurance and prolllise, having faith and confidence in the said representations of the officers and agents of the said corporation,and for the purpose of furthering tbe interests thereyour orators placed their resignations as members of the board of directors of said corporation in the hands of the president thereof, "(11) Your orators further complain and say that some time in 1887 the said corporation was in need of funds to successfully promote its interests, and thereupon the complainant R. L. Summerlin made arrangements with certain capitalists to Bupply the required funds as needed fortha uses and purposes of tbe said corporation, which arrangements were made after the resignations aforesaid; and, for the purpose of thwarting and destroying the said arrangement, a false report, prejudkial to the value of said silver mine as an investment, was procured and secretly exhibited and read to the said capitalists, for the purpose, and with the corrupt design. of deterring them from investing in the same; and yonr orators charge that the said corporation had positive knOWledge that the said pretended report upon the said Fronteriza silver mine was false, and was designed for the fraudulent purpose of deceiving and misleading the said capitalists, and breaking up the said arrangements for procuring funds, and for preventing your orators from engaging in the business affairs of said corporation, and for defrauding them out of their just and legal rightll as members of the said corporation. "(12) Andyour orator R. L. Summerlin complains and says that in the formation and organization of said corporation, and in furthering its interests, he has expended much time and labor, and bas used his knowledge and information to promote the same, besides various sums of money expended in behalf of said corporation, amounting to about three thousand dollars, ($3,OUO;) that he has never received a dollarin return for his services, skill, and money, and, jn· violation of all agreements, and contrary to his rights as a charter member Qf said corporation, he bas not received a single share of the stock allotted to him, although he has often requested and demanded his apportionment, under the allotment agreed upon between the corporate mllmbers of ssidcorporation; ar..d tbat he was entitled to receive his distributive share ot stock When the said corporation was organized, and after the said stock llad
been ::set apart for the working capiti\l or treasury fund, which was on or about the - - day of - - , A. D.· 1886. "(13) Your orator G. F. Lupton complains and says that he has expended much time and labor in advancing the interests and business of the said corpOration, llesides expending various sUms of money. to-wit, one thousand <lollars. ($I,UOO,Jfor the report made by Dr. N. T. Lupton upon the Fronterizet silver mine, and various other sums, aggregating about sixteen hundred uollars. ($I,600i) and that he has not receh'edhis apportionment of stock as agreed upon,and due him, at and upon the organization of the said corporation, al. though he has frequently demanded the same, and was refused as herein more specifically stated and set forth, and has received nothing whatever from said coqiiJrll'tion, either in money. stock, or other things of value. "(14) Your orators further complain and say tbat since their resignations. obtailled as aforesaid, they have endeavored in divers ways to ascertain when and where the meetings of the said corporation were or would be held. and what progress bad been made, and what was the condition of the affairs of said corporation, to all of which Inquiries no 'answer or information was given or obtained; and your orators fortber say that the said meetings of the said corporation were held at times and places unknown to them, and they are informed and believe, and so charge the truth to be, tbat a meeting of tbe .Fronteriza Silver Mining & Milling Company was secretly held some time in October, A. D. IS87. and without notice to them, and that a re-election of officers was held, and a new distribution and rt'allotment of stock was made. by the said corporation, and tbat tbe original distribution or allotment was disregarded, set aside, and beld for naught; and that ou t of the 100,000 shares of stock, being the entire capital stock of the corporation. your orators were allotted nothing, although. as charter members of said corporation. and by virtue of the original allotment at a regular meeting of said corporation, and by a nnanimous vote of the members thereof at a regular meeting of the board of directors, your orators Were legally entitled to receive 26,750 sbares of stock,-the evidence of which is in the possession of defendant. "(15)' Yonr orators further complain and say that the said Fronteriza Silver Mining & Milling Company is now operated and governed by the articles of incorpol'lltion formed according to and under the la WB of the state of Colorado, and that the said corporation has distIibuted the shares of stock allotted to yourbtators among the present members of the said corporation, and which said stock" belonged to your orators, and was issued for their use and benefit, but never delivered to them; all of which was in violation of their corporate rights, and to wbichthey were entitled as charter members of the said c<;Irporatfon at the time of the organization thereof. And they further say that they at divers times demanded their proportionate shares of stock from the said and, although theotiicers and agents thereof were able to deliver the respective allotments of stock as originally agreed npon, and voted to your orators at a regular met'ting of the directors, yet they have persistently refused to deliver the shares of stock as aforesaid, and do still refuse so to deliver tbesame to your orators, and continue to bold, use, and enjoy the same. "(16) Your orators further complain and say that the said 26,750 shares of stock allotted to them as aforesaid were beld by tIle said corporation for the use and benefit of you r orators,and under an express agreement, as aforesaid. that the same were not to be transferred, sold, or hypothecated without the consent of all the-members of the said corporation. and are now wrongfully withheld from them. "(17) Your orators further complain and say that the said corporation. through its board of directors; have misappropriated or misapplied the said ehares of stock allotted to your orators by increasing and enlarging original
SUMMERLIN .,. FRONTERIZA SII,VER MINING & MILLING CO.
allotment to the members of said corporation, and that under said llIegal and fraudulent distribution of stock 'G. W. Angle, the president of said corporation, received 18,887 shares, being an excess of 5,887 shares over the original allotment, and in excess of what he was entitled to; R. H. McCracken, superintendent of said corporation, received 18,887 shares being an excess of 5,887 shares over the original allotment, and over what he was entitled to; C. W. Ogden, attorney, etc., of said corporation, received 8,000 shares, being an excess of 3,000 shares over the original allotment, and what he was entitled to; and others, who are non-stockholders in said corporation at such redistributionreceived large amounts of such shares of stock, all of which aggregate an excess of stock over .the amount allotted to, and owned by, and to which they were and are now entitled, and which is now wrongfully withheld from them by the Said corporation. "( 18) Yonr orators further complain and say that this suit is not simulated. or the result of collusion with other parties in order to confer jurisdiction on this court, but is real and instituted for the sole purpose of obtaining a redress of the wrongs complained of herein against the defendant corporation. "(19) Y'our orators further complain and say that they have made every reasonable effort to obtain the shares of stock allotted to them from the said corporation, and have endeavored to ascertain the place of meeting of said corporation, to the end that they might induce the directors and officers thereof to take some action in their behalf, but without avail. On the contrary, the said officers and agents of the said corporation neglected and failed to give the annual notice demanded by law, in the newspapprs, of the time and place of meeting of said corporation; and that they neglected and failed to mail a printed notice to your orators at It'ast thirty days previous to each meeting, or any notice Whatever, verbal or otherwise, in utter violation of the charter and by-laws of said corporation, and have also refused access to and inspection of the records, books, and papers of the said corporation to your orators. .. (21) Yoqr orators further complain and say that the said Fronterizasilver ' and is now, successfully operated and worked by the said COl,"mine has poration, producing a large revenue to the stockholders thereof, of which your orators have received nothing, and yet the said corporation refusps to deliver to them the .said 26,750 shares of stock, or any part thereof, or to pay the value thereof, althoughyonr orators have repeatedly demanded the same; that the par value of said stock is fixed at ten dollars per share, and the aggregate value of said stock is $267,500; and that the said shares of stock allotted to and belonging to your orators are worth far more than the par value in the market. . "That the said corporation called and known as the' Fronteriza Silver Mining & Milling Company,' by and through its proper officers, may be compelled to deliver to your orator Robert L. Summerlin 11,750 shares of stock in said corporation. and to yonr orator George F. Lupton 15,000 shares of the stock of said corporation, being in the aggregate 26,750 shares allotted to your orators by said corporation at its organization, or, if that cannot be done, by reason of the sale, transfer, hypothecation, misappropriation, or any other disposition of the said shares of stock, that an account may be taken, by and under the direction of this honorable court, concerning all the corporate dealings and transactions in and about the sale, transfer, hypothecation, or mis" appropriation of the said shares of stock allotted or agreed to be distributed to your Ol:ators, and how much was realized therefrom, and what, if anything, was due to your orators, and what .di vidends have been declared or profits sale of silver ore or bullion; and that Whatever may be found made from due to your orators on account of the said 26,750 shares of stock, and a proportlonateshare olall diVidends and profits and products, may be decrood
tW:YCl!lrQratQrs, together with you!.' orators abl&ll have such Qtper,lind :fi.urther, relief as the natureQf t,heir case mayrequil'e;i,and to your honors alla11 seerpweet. "
bill company and C. E. Lyman demurred. Sitmmerli7!-, for complainahts. ' , W. Ogden, for defendants. Before PARDEE and MAXEY, JJ.
PARDEE, J. 1. Complainants sue on a resolution of the board of directOrs of; <iefendant: company allotting to them individually, as charter members and incorporators, a number of shares of (to complainantSum,merlin, 13,000j to oomplainant Lupton, 15,000) of the defend,ant company, which stock they allege has been wrongfully converted and issued ,to other parties. The company, C. E. Lyman, and George M. Wakefield are'made defendant to the bill. The latter has not been serveQ" nor has he entered an appearance. The defendant, company and Q. E,' Lyman jointly and severally demur to the bill, assigning as the grounds therefor' that on the face of the bill the court is withoutjurisdiction; that the bill is without equity; that there is a deficiency of necessary parties defendant, and a misjoinder of parties complainant. The bill shows that complainants and certain other persons, year 1885, agreed 'to ,organize a corporation for the purpose of operating mines and mining propertYj and that afterwards, on or about August 31, 1886, the complaillants and five others formed and organized a corporate body under the laws of Colorado, known as the "Fronteriza Silver Mining & Milling Company," the present defendant; that subsequently, in September of the same year, the members of said corporation adopted a code of bylaws, (the act of incorporation and the code of by-laws being attached to the bill as exhibits,) and elected officers; that thereafter it was agreed at a regular meeting of said corporation (meaning, of course, the organizers aforesaid) that the capital stock should be allotted and divided, and it was allotted and divided, by a resolution of the board of directors, (presumably the organizers aforesaid,) among the different members of the corporation, reserving, however, about one-third of the shares for the purposes of the organizatjonj that the corporation, through its officers and agents, (presumably members ofthe organization,) represented to complainants that certain investments in the silver mine would be made if investers were allowed representation on the board of directors, and thereupon complainants were requested to resign their positions as directors on a promise their interests would not be jeopardized, but would remain the same, upon which terms and representationsof the officers and agents of saidC9rporation complainants did resign from the .board of directorsj that thereafter compiainants were denied knowledge of the affairs of the corporation. and were excluded from the meetings, which were secretly heldjand that, at a meeting held some time in October, 1887, without notice tothe complainants, a re-election of officers beld, and a new distribution and reallotment of stock was made, in which the original allotment or distribution was disregarded,
SUMMERLIN .,. FltONTEIUZA SILVER MINING & MILLING 00.
set aside, and held for naught,'and in which distributioncomplttinanf.l!l were allotted nothing; that all the shares of stock of the sl1id corporation, including that'which belonged to com plainants, were isSued and disposed of to other members of the corporation, and particularly to G. W. Angle, president, R. H. McCracken, superintendent, and C. W. Ogden, attorney, in violation of complainants' rights; that they at divers times had demanded their shares of stock" which, although the officers and agents were able to deliver, has been persistently refused by said officers and agents, who still refuse to deliver the same, but continue to hold, use, and enjoy the same; that the corporation, through its board of has misappropriated and misapplied the shares ofstock allotted to complainants by. increasing the original allotment to other members of· the corporation, and by making distribution to others who are non-stock. holders in said corporation. The wrongs suffered by complainants, .as set to have been committed by the other promoters, rators, and charter members; and all advantages and benefits arising fromsucll wrongs seem to have been secured by them. It is difficult to see how. the company took any.part, save as a victim, in the alleged wrongfuhctsl The company, as a company, is not alleged to have made any contract with complainants, and apparently has no interest in the personnel of the stockholders. The resolution of which is the basis of complainants' demand, was manifestly a collateral arrangement on the part ·of the incorporators, who controlled all of the stock of the corporation, as none had been issued in a regular way, and who were acting, apparently, regardless of the company's interests; and, whatever its binding effect upon the parties thereto, it is difficult to see how it is company. See J08lin v. Stokes, 38 N. J. Eq. 31; Par8CYn8 binding on v. Howard, 2 Woods, 1. However this may be, it would seem that, if the company is bound to the complainants, in an action to enforce the agreement, and to recover the stock allotted, the parties who manipulatedthe company to complainants' injury, and who received and now hold. the stock in controversy, should be made parties to the suit, or good reason given for not making them parties. 2. While the complainants' causes of action arise at the same time, and under the same resolution, it does not appear that the complainants have any community or privity of interest. Complainants are not stockholders of the defendant company. It is because they are not stockholders that this suit is brought. Each complainant is suing on his individual right, for the enforcement of a separate contract. The bill does not show any privity in the consideration. Each complainant's case stands on a different footing, and requires separate proof. The diligence of one cannot advantage the other. The failure of one could not in any way affect· the other, except beneficially. The company's defenses may be differentjrequiring different proof. A release by One complainant would not defeat the other. Perhaps the cases are such, and bear such relation to each other, however, that under section 921 of the Revised Statutes they might be consolidated, conformably, to the usages of the court, for the purpose of avoiding unnecessary costs and delay; but in
'''QQ. <Qf!.Seit would seem that such: action would be warranted orily on the defendant.
the bill, on. its face, appears to be for a specific performance of.R <;:ontract for the delivery of stock, yet the bill shows that the defendantCOl;npanyhas already issued the stock, has no stock to issue now, aI,J.;d" iu &bort, that there can be no specific performance. The prayer for relief is made to .cover such a state of facts, and is for the delivery of the shares of stock, and if that cannot be done,-and the bill alleges it for a decree for the value of the stock, and the divide.odll ,declnred thereon. The case seems to· be similar to the case of Lacompe v'. Forstall's Sons., 123 U. S. 562, 8 Sup. Ct. Rep. 247 , which was a tel recover certain pledged bonds to have been wrongfully dispased of, and wherein the counsaid:
. "It is c.1ear that the c!omplainants. when they brought this. action, knew. very well that they could not have the relief asked for in the first part of their claim, bec,ause by their own indorsement of the bonds they had been transferred; under valid !:lales,to numerous persons, who either held them as innocentpllrQhaserS tor value, or had parted with them to others, who held them in character. Their only efficient prayer for relief, therefore, was value of the which they now for ,a decree. against the defendants for insist must be estimated as of the time of the decree. Thl'l first objection to this relief is that it is simply what they could recover, if they could recover at all, in an action at It is the damages which, on their theory. are due for an unlawful conversion of the bonds. * * * We see no reason why a court of eqUity should be resorted toforthis remedy; nor is there anything in the of the transaction, since no·actual fraud OIl; the part ,of Forstall's Sons is proved, why an action at law should not have oeen,the appropriate or difficult one to reco,vel' these damages.. The case ill by no means a one. The factBare few, and ei\sily proved. The transactions are open, and patent to everYbody, and an action at lll:w would afford complete and ample remedy for/the wrong 'complsi ned of.
In the present case, the bill seems drawn on theory that there is a trust relation between the complainants and the defendant company, because they rendered services intbe organization of the corporation, and the COIPpany agreed to give them shares, whereby the company not only beda,J;tI,etheir trustee as stockholders, but in way became their trustee ,for oortain specific shares, which entitles them to an accounting by the company of the disposition, sale,. dividends, and proceeds of said shares. It is sufficient to say to this that the complainants are not stockholders of the defendant company; that it is very doubtful whether any, other trust relation exists between them. and the company; that the contract calls for no certain shares, and. such an accounting appears to be imprac.ticable, if not absolutely impossible. Complainants' whole cause of action. seems to be that the contract to give them shares was violated, and that they have been damaged thereby; and their right to recover, if they can l'e¢over at all, seems to be limited to a money decree, making a case where a complete remedy at law can be had, for the damages can be as welltlScertained at law as in equity. See Buzardv. HOU8t1m, 119 U. S. 347, 7 Sup. Ct. Rep. 249, and the cases there cited.
NAT. BANE OF LOUISVILLE.
There is Dothing in the. bill, save the .statement making him a party, . tha.t affectB in any way defendant Lyman. He is not alleged to have been a. charter member, incorporator, promoter, nor to be a stockholder, nor to have participated ill any way in doing the acts Vi' hich are the basis ofcomplainantil' bill. No relief is asked against him. It is not easy to see why, he was made a party. The demurrer should be sustained, for that there is a misjoinder of complainants, a deficiency of necessary parties defendant, and the complainants have a complete and adequate remedy at law, and. as to defendant Lyman, because the bill makes no case whatever against him.
J.. , concurs.
GEORGE 'D. FOURTH NAT. BANK OF LoUISVILLE.
(Circuit Court. D. Kentucky. June 4, 1888.)
A J,"eceipt for whisky stQ.red in a bonded warehouse is not a "document of title." 'Within the meaning of Act Ky. May 5, 1880, which provides that "every factor or other agent intrusted with possession of a document of title to merchandise $ball b.e deemed the owner, "so as to'validate a sale cr pledge oUhe property to an innocent third party, and which declares that any custom-house permit or 'warehouse receipt shall be deemed a document of title, since whisky in a bonded warehouse is snbject to the regulations of congress, and is In charge of the officers of thegov; ef1lment. II. BAME." ' . , . . ' . ' '.' '. '. · · Ali agent to whom such a receipt had' 'been given. for the purpose' of borrowing' , money on it to pay the revenue tax, paid such tax himself" and, afteratt,empting to export the whisky, stored it in Ii free warehouse. aud then pledgedtbe'.free.ware-, house receipt for his individual debt. The owner kuew tbat the whisky had not been pledged to pay the tax, and that the. agent had it "in store." Held, that ,the agent held the whisky, not as factor, 'but as creditor, and had no right, under said act, to pledge i t . , ' " '
SAME-W AREHOUBE RECEIPTS.
An ageut who receives ordiusry warehouse receipts for the purpose of uegotiating a certain loan for his principal ou their security, and who after obtaining such loan by pledge of the receipt!! pays the loan himself without the knowledge of his principal, and thusreposse5s118 himself of the receipts, bas'no authority underss:id ;sct to pledge them for anoJ;\.J;oer ,loan, sinoe, after his fit&t, pl"edge of the receiptilj :h$ was not" intrusted with" them again, within the, meaning of the .act. ' .,
At Law. This case was subJIlitted upon an agreed statement of facts.W. O. George was a citizen ofIlHhois, and the Fourth National Bank of Louisville, Ky., was a national banking <;Iorporation doing business at that place. The Newcomb-Buchanan Company was a Kentucky corporation, ' with its principal place of business, at Louisville, Ky. Its business was that of a distiller of Kentucky whiskies and a dealer therein. On the 20th of Septelnber, 1884, it made a general assignment of all of its eij'ecta for the benefit of its creditors. The qontroversy in this case cOncerns certain 50. barrels of whisky known as " Anderson," xnade in J une,,1880, v.41F.no.5-17 ','