motion to dismiss the petition is therefore denied. Counsel may arrange for atrial otthe issues immediately upon the adjournment of the present jur,r session.
TREADWELL tJ. LENNIG.
(CirCuit Oourt, E. D. Penn8l/ltoomia. Aprll
1.BQUITy-EVIDENCE-ANSWER UNDER OATH.
. Matter contained in an answer made under oath. when an oath thereto Is waived in the bill, is not evidence for the respondent after replication and proofs, even when the respondent has died since the answer flied.
BAME-BoOK OJ!' ACCOUNTS.
made evidence because the complainant called for it, and asked, when it was pro·
book of accounts, referred to in the answer. but not offered in eVidence, is not
du,Qed. 1I0me questions about it whioh brought out its oontents.
8.WITNBIilS-COMPETlINOY-l'MNSACTIONS WITIl DECEDENTS-Clloss·ELUlINA.TION.
half. ill a suit against the representatives of a decedent, as to matters independent . Of t/le matters inquire!l about in direot examination, are oompetent as against re-
Evidenoe elicited by oross-examination of oomplainant testifying on his own be-
sPDl).dellt, and would not be affeoted by an objection to the competency of the witness.
In Equity. Bill for an account against Nicholas Lennig and John B. Lennig,cxecutors of Charles Lennig, deceased. Demming & Logan and Oharles M. Demond, for appellant, cited, as to whether the book of accounts was made evidence by being called for by the respondent: Oarradine v. Hotchkiss, 120 N. Y. 608, 24 N. E. Rep. 1020; .smith v. Railwa,y Co., (Sup.) 16N. Y. Supp. 417; Carr v. Gale, 3Woodb. & M. 59; Austin v. Thompson, 45 N. H.1l3: Witheril v. Gillespy, 7 Sergo & R. 10. Charles Hart and Angelo T. Freedley, for respondent.
BUTLER, District Judge. The bill is for an account based on the following facts: On May 12, 1884, the complainant borrowed of Charles Lennig, now deceased, $3,000, on his promissory note, and a transfer, collatE-ral l of 6,OOOshares of the United Verd Copper Mining Company. The note was payable in six months from date, and contained the following. provision:
"The holder of this note may sell the shares of stock at public or private sale at any time or times hereafter, without reference or notice to me, and with the right on the part of tIJe holder of this obligation to become the purchaser at such sale or sales of the whole or any part of said collaterals, freed and discharged of any eqUity of redemption, and to transfer. assign, and deHver up the same. ,.
When the note matured another was given in renewal for an additional period of six months. This last note matured June 2, 1885, and
Reported by Mark Wilks Collet. Esq., of the Philadelphia bar.
was neither renewed nor paid. Mr. Lennig continued to hold'the note and stock until December, 1888, when he sold the latter for $6,000, being $1 per share. The answer admits the foregoing facts substantially as stated in the bill; but avers that Mr. Lennig appropriated the stock to the payment of the note, on January 10, 1887, at a little over 50 cents per share, which he says was its full value at that time, and denies liability for any further credit. The jurisdiction of the court is denied in the defendant's printed brief, but was admitted on the argument; and the subject need not, therefore, be considered. In our view of the facts it is unnecessary to examine the question raised respecting Mr. Lennig's right to make the alleged appropriation., The burden of proving that he did make it is on the respondent; and he has not produced any evidence which tends, even, to prove it. The statement in the answer is not evidence-the, respondent's oath having been "·aived. Neither is Mr. Lennig's book, or his statements to Mr. Jerome, evidence. His declarations cannot be used against the. complainant.. The book is not in evidence; the respondent did not offer it; and it could 110t have been received if he had. The fact'involved is not susceptible of pwof by book acconnt. The circumstance that the cOl;nplainant called for the book, referred to in the answer, and' that when it was produced he asked some questions respecting it which brought out its contents, does not make the book or account evidence against him. Not only is there no evidence to support the alleged' appropriation, but there is evidence to the contrary-evidence which seems to show pretty clearly that it was not made. The complainant's testimony, on examination by the respondent, if true, puts the question beyond doubt. The respondent thinks this testimony is inadmissible-that the witness was incompetent to give it. We do not agree with bim. Without regard to the question whether he was competent to testify respecting the matters inquired about by his own coun.: sel, and in his own behalf, he was fully competent to testify to any other independent matter about which the respondent might inquire. The objection noted when he was first called, if sustained, would remove from the case all he had said on his own behalf. in chief, and what he had said on cross-examination respecting this; but when the respondent pll.ssed beyond and inquired about other independent matters; respecting which his own counsel could not inquire, the answers were clearly competent. The respondent had the right thus to examine the witness; but he cannot get rid of the answers after obtaining them by such objection to his competency. He was competent to any extent when examined by the respondent. The fact that Mr. Lennig retained the note and did not inform the complainant of the alleged appropriation of the stoek, is also entitled to much weight. It was his dutv to return the note and give information, if he thus applied the stock an"d canceled the debt, and to do it promptly. But there is no evidence that he did either. It was not pretended that he returned thc note. If he had formed the complainant of the cancellation of the debt, it seems more
· . I
he would at 'the -sametiQie have note, as ,his duty required. The bill muat bo .uatained, .and. decree may be prepared accordingly.
& O. Ry. Co. d
(CWcuU Court, B. D. Ohio, E. D. .June" 18l1'.a.)
The lienal receiver'scertUloates continuesu louru order authorizing thetr luu&JIce remains in farce,thougb suoh order was made wltbout noticeto parties Inf.ei'e8ted; and the facttnat a reference is had to detennille all olaims against the noeiver and a report ill oonllrD:led wbioh D:Iakes no allusion to tbe certillcates, ill not against t.hl;tm, when It appears tbat they were not preaented or co... IIldered, and that their holder had no notioe of the reference.
, to pre.ume that the 'tecelver will notify him when the loan is to be called or tbe
.. wllioh are ordered to be paid out of the income of the from time to time, 'are In the nature of a call loan, and the holder has a righ'
.. " 'Wh4!ire a purchaser orreoeiver'lI certificates has paid their par value to tbe neiVer, without notice 01 any faots to.put him upon Inquiry, his lien is not affected by the fact that the receiver appropriates the money to his o.wn uee. ,aeoeher's certUloates 'were issued in a railroad foreclosure SUit, and thereafter tl\$ road wu sold to a qommittee of· :the bondholders, to be paid for by a deposit of the boildll.';r/le decree eonfirming tbe sale directed the oonveyance to be made ex' .....ly sUbjec,t to the payment of any,lIums in oub on .account of the purchase price the JJOurt ht,#terwards direot, and a vendor's lien to be served for Cllrlty. .These prov 10Dswere incl!rporated in the deed to tbe committee, and in tbeir:.l1eed to a new 'rporation organized by tbe bondbolders. Held,that the reser-,atlon hall tbe torqe ,01 a oovenant runniDg with the land, and, as no cash was paid in, the lien of the Oflrtifl.cates was not, transferred to the fund arising from the 'We; but was continlled on the property,
8.UtB-S'-:LlI: or PROPBRTT-CONTINUANOB or LIEN.
tIle road extends, j;be,latter oourt has jurisdiction to enforce the lien of the even in a ,separate suit and against a OQmpany which purchased the . zioad'atter tne aale in We original proceedIng. .'
"tate, and anoilliary proceedings, are had Ina federal court of another state, into
Where ,receiver'8C4!1rtillcates. are IssuE!d by direction of a federal court In one
In Equity. Bill by the Mercantile Trust Company against the KanaWha & Ohio Railway Company for the foreclosure of a mortgage. Reardon the intervention of the Adams Express Company to enforce the prior lien of certain receitver'ecertificates. Decree for intervener. .Simpeon, Thatcher tJ 'Barnum and Alexander Gretm, for complainant. BamBI!JI,MazweU for Adams Express Company.
SAG'Ill,Distriot Judge. This is before the court upon the intervening petition of theA,dams Express Company and the proofs and exhibitsotrered by the parties. It is set up in the petition that in 1883 the Obi() Central Railroad Company was the owner and in possession of the railroad involved in this suit, the river division of which extends fronl town: of Corning, in the' state' of Ohio, to a point in the county