J'EDEBAL REPORTER' "vol.
was adverse to the plaintiff. The argument is'that, with, an intelligent understanding of the evidence in the. case and the law applicable, there could not be an honest difference of opinion as to the plaintiff's rights. r think that r havefair]y stated this point, and that in stating it r have llufficiently answered it. Certainly the courtcannot,upon a mere inference, based upon nothing but a difference of opinion, decree a reversal of the action of the highest officers of one of the executive departments of the government because of official misconduct and fraud on the part of said officers. The plaintiff has failed to make a case entitling him to any relief according to the principles of equity, and, without considering the affirmative pleaded, a decree dismissing the suit, with costs, must be awarded.
& T. C. Ry. Co. tit ale
(CircwUCourt, E. D., Texas. January 18; 1891.)
CQaE's FEEs-DEPOSIT Ol'EAaNBST MONET.
Rev. St. U. S. S 995, provides that' all money/! paid into any conrt the United States or received by theofftcers thereof in any cause pending or adjudicated in ,Inch court s4all: be forthwith deposited with t,he treasurer, an 88sistanttreasnrer, or a designated depositary of the United States, provided that the deli very of such money upon secUrity, and according to agreement of parties, undertlhedirections of the court" may be allowed. The fee-bill (Rev. St. U. S. § 828) allll,ws "for recieiVing, keeping, and paying out money, in pursuance of any statute or order of ;court, onel?ar'cen1:uln';on the amount so receiVed, kept, and paid;" HeW, that wqerea decree ordering the, sale of mortgaged ,railroad property requires the payment of earnest money court at the time of the sale. to be returned in case the same is not coo firmed, and afterwards,bycoBsent of parties, the decree'is mod· Hied 80 as to .allow. certified bauk-.check to be given instead of cash,' and requir"fUg the commissioner to deposit the same with a trust company. the. clerk of the , ooul'ti is not 'entitled to receive any percentage 6S a fee. ' DistioR'uishing Ex parte Pre8cott, 2 Gall 146, and Thomcu v. RaUWltli Co., 87FecL Rep. 1548.
, '. for complainants. among other provisions, was the following:
" Fwd & McComb. for intervenor.
)3,q,ker, Botts &
In the final, decree, directjng the sale of the mortgaged
·. , ',''+!Jat,of the plJrchaseprice bid on such sale a deposit. Ilmounting to the dollars, ($100.000.0(),} shaJ,l'.be in eash to tM, j'pmnHssioneratthe thue of sale, an<.l shall be deposited in the registry of this c6u'rtto the 'o1'(1er'OI the cause. If separate bids be made andaebepted . thlo' property to be sold, then thedetJositS(fwade shall 'nat be less than ,seventy",five thousand dollars 011 the purchase of :the main ,of, way ann ,its appurtenances, and twen ty-five;tho\Jsan\ldoll/trs purcllase ofany otherportipn. addiqon, to ordepQsitll lit, Pllfchase pric? shall :be 'l>IIid in 'cash' arid 'deposited' as tbe court ,in thiS 'cltllsemay from tIme to 'time:direct; ,tbe:ctilltt 'teser'ving right to resell ·in·tHis the' pl'emises i wid lUraeteaJo be sold,' or aay'pllrt soltlseparate11i upon thefll,il-
HOUSTON & Tl 'C; illY;; CO.
or pnrcbasel'll tl;lereof, pr, tlleir or, assigns. to days with laDy order 01 ,the court in that : And in ca;se otanY till the failure ,of the purchaser <;Ir purcbas.e,"s with the terms of' the bid or the orders'of the court relative to such additional partial payments as may from time'to time 'be:dii'ected, all'suIh!l,paid. in by such purchaset;shaR be forfeited asa penalty tor such non'-compliance; If any sale:for:which'adeposit is made, be not confirmed by the court sQch deposit shall be returned. to the bid!ier." , 'I;' ' ur-e,of
, It was further provided in said decree that c. any party tathe canse, also any inter",ening petitioner, who has duly, filed hispelition herein, and also the receivers, may at any time apply to thiscburtforftirther relief at theJobt .j)f this decree, as\Yelll\ll'for such modifications thereof in respect futhedistribution ()f the proceeds of sale," etc. :'l'hereafter, on the 'petition Of the 'complainants and tIle 'consent' of the defendants, that part of, the decree; to-wit: "And itisfurther ordered, adjudged, and decreed that of the purchase price bid on 'such sale a deposit,amouilting to thesumi of'one hundred thousand [email protected]
ute or order of court. one per' centum on the 'amount 'So received, kept, and p'aid, I, in connection wUhsection995 of the;Revise:d Statutes. to-wit:. '''All woneys paid into any court, of tile l,Jnited StMea"or received by the officers thereQf,in any cause pendi,ng or !\djudicated in, be forth,'!Vith deposited with the trel!Burer, an assistant a designated depositary of thelJnited States, in the name and to the credit of such coiirt: prothat herein shall' be ,construed· to prevent thedeli,very of,any such money uponsecutity. and according tQagreement of parties under the dil'ectionsofthecourt.":;' " '
The court had the right to modify the decree. The original' decree for modifications up<!ln lJroper' application"and, the complainJlntl,lpe:titioned for the o.ne in lluestion,and t the defendants consenited thereto" ,! The mOdification seems'to have, been,a proper ()l1e'undel' : the circumstances of the case. The money affected by it wasearue&t i Ol"far;J feit Ida contingency it wllsto:bel'estoredin: its entirety! to'the p,ulC.haser, and was undoubtedly pis mohey; :until' the salelshou-lc1b6
confirmed. If it had been deposited in the registry of the couit, as provided in the original decree, and the sale had been set aside, it could not have been restored in its entirety to its owner, because, in that case, the clerk's fee would have attached, and properly so; for then he would have had the responsibility of receiving, keeping, and paying out the money. The proviso of section 995, Rev. St., stipulates that that section shall not be construed to prevent the delivery of money described in the statute upon security, and according to agreement of parties under the directions of the court. The deposit of the earnest money in this case was upon security satisfactory to the parties, and according to their agreement under the direction of the court. The cases of Ex parte PrescaU, 2 Gall. 146, and Tlwmas v. Railway 00.,37 Fed. Rep. 548, are cited in support of the, clerk's claims in this case. Ex parte Prescott was a case where certain prize proceeds deposited in banks subject to the order of court were held chargeable with clerk's commission under a statute which provided that the clerk of the district court shall, among other fees, be entitled to H per cent. on all money deposited in the court. The question decided by Judge STORY was whether the prize moneys aforesaid had been deposited in court. In deciding that, and allowing the clerk's commission as claimed, Judge STORY said: "Where the language of an act is plain and clear, the cases are not to be excepted from the generality of the expressions unless such exceptions are fairly implied or necessarily drawn from the purview. The statute does not speak of money coming into the hands or possession of the clerk, and to ingraft sucb 8 qualification upon the language would be legislation, and not judicial construction." It may be noticed that the fee-bill in force at the time Ex parte Prescott was decided is entirely different from the present law in relation to the registry fee of the clerk; instead of being upon moneys deposited in court, it is now "for receiving, keeping, and paying out money in pursuance of any statute or order of court." In the case of Tlwrna8 v. Co., 8upra, the proceeding before,the court was to vacate an order made by consent of the parties that certain moneys (the proceeds of a judicial sale) be deposited in the hands of a master to the credit of the cause, the same to be paid upon the master's checks, countersigned by the solicitor for the complainant, on the ground that such order had been improvidently made in violation of section 995 of the Revised Statutes. The syllabus of the case credited to the court is as follows: "Money received by a master in chancery in payment of property sold upon the foreclosure of a mprtgage ought, in pursuance of Rev. St. § 995, to be de-posited with a designated depositary of the United States, and the clerk is entitled to bis commission thereon." The question really decided in that case was that the deposit agreed to by the parties was not the delivery of money upon security according to theagreeruent of the parties under the direction of the court, and the order was vacated. If the present case was one to vacate the modified decree providing for thedepQsit of the earnest money with the Central Trust Company
the decision just referred to would be very strongly in point. Here the question is simply whether the clerk is entitled to commissions upon moneys which he has not actually received, kept, and paid out in pursuance of any statute or order of the court, because, as he claims, the money was paid into court, and should have been deposited with the treasurer or some. designated depositary. The adjudged cases laying down the bebier rule in this matter are Upton v. Tl'iblecock, 4 Dill. 232, note; Inre Goodrich, ld. 230i Leechv. Kay, 4 Fed. Rep. 72; and Ex parte Plitt, 2 Wall. Jr. 453,-where it is held that the commission allowed to the clerk under section 828, .Rev. St., "for receiving, keeping, and paying outin pursuance of any statute or order of court," cannot be claimed unless the money passes through his hands. The intervention should be dismissed,and it is so ordered.
AMERICAN BISCUIl' de MANUF'a Co. v. KLOTZ et 01.
court, E. D. Lou1.siana. January 8,1891.)
RBOEIVlllUl-COMBINATtONS TO RESTRAIN TRADE·.
Defendant and his partner sold their bakery business to complainant oorporation receiving payment in its stock, and defendant leased to it the premises where .the business was conducted,and oontracted to carry it on as the purchaser's a¥ent, for a salary. After operating under this arrangement for a time, he repudiated the sale, resumed possession undei' the old firm name, and refused to account to complainant. The, bill was brought to enjoin him from asserting a hostile claim, for an accounting, and a receiver.. Defendant, and his partner as intervenor, filed a cross-bill for resci8sion of the sale for fraudulent representations, and tendered hac.k the stock. .COI:nPlainant was practically a "trust, "organized to monopolize the business, and had already secured control of 85 leading l:1akeries in 12 different iltates. Held that, while a case was made for a receiver, pendinlir litigation between ordinary partlell, the prayer would be denied, ss equity WOuld not encourage a combination in restraint of trade, and probably illegal, under Act Congo July "to protect trade and oommerce against unlawful restraints and monopolies, " and Act La. JUly 5, 1890, for the ssme purpose.
In Equity. T. J. Semmea and Bayne, Denegre Bayne; for complainant. W. S. Benedict and Rouse Grant, for defendants. Before PARDEE and BILLINGS, JJ.
rER CuRIAM. This cause is submitted upon an application for a receiver. Some time in May last, the defendant Klotz, and Fitzpatrick, hi3 partner, composing the fl:rm of B. Klotz & Co., sold to the complainant their biscuit and confectionery manufactory for the price of $259,000, and an assumption of the debts of B. Klotz & Co., amounting to $42,000, which it was understood and agreed should be paid out of the iQcome from the. future business. The visible property was estimated to be of the value of .$101,000, and the good-will of the business to be of the value of $200,000. The price was paid in stock of the complainant's corporation, .estimated to be of value at pari that is, to be worth v.44F.no.10-46