CENTRAL TRUST CO. OF NEW YORK
MARIETTA: &: N. G. RY. CO.
It is claimed that these were .separate transactions; in which only the parties to each were interested,and hence allonght not to be litigated in the same action. At first impression this ground would seem to be well taken. The bill, h<;>wever, charges "that each and all of these transaCtions were part and parcel of one scheme to deprive the creditors of,the Carver Company of the power tocolleet their claims against the said company, and to'8.ppropriate the assets of said company to the use of the said bank and Charles H. Stebbins, and were each and all done with the knowledge and consent of each and all of the defendants." Under such an allegation, there is no donbthut the bill is not multifarious, and I should be inclined to think, under the authorities, the bilhvortl'd. not be subject to that objection if this allegation bad not been made. Fellm.tJ8' Y. -FeUows, 4 Cow. 682, 15 Amer. Dec. 413, and note; BO:IJr!- v. Hoyt, 5 Paige, 65; Brinke:rhoff v. Brown, 6 Johns. Ch, 139; Hamlin v. Wright, 23 Wis. 491; Chase v. Searles, 45 N. H. 511; New York &N. H. R. C,o. v, Schuyle:r, Cross, etc., 17 N Y. 592. For the reasons named the denmrrer is overruled upon all the points eontail1ed in the same, save as to theorie that the bill should show that it is for the benefit of all of the creditors of the Carver Mercantile Conipany ,and 8B to this it is sustained.'
CENTRAL TRUST Co. OF NEW YORK tI. MARIETTA & N. (BLUE RIDGE MARBLE Co., INTERVENER.)
(O-!reuit Court, N. D. Georgfa. June 22,1899.)
G.· Ry. Co.,
RBOBIVEn-CONTRA.CT FOR TRANSPORTATION-SPECIll'IC PERll'ORMANOB.
and then reshipped and carried to M. without extra charge, the entire charge for freight being paid in advance. HeLd, that. a receiver appointed in a suit by the bolldho\ders to foreclose a mortgage on the railroad could not be compelled to transponmarble from N. to M;, although the freight had been paid for such transportationbefore.the appointment of the receiver. Express CO·. v. Rai/n'oaa Co., 99 U. . S. 191, followed. :Specific enforcement of such· contract would be eq,uivalent to requiring the reo . .paym,en of the freight, .and this could not be done, Inasmuch as the complainant . had,DQ hen for such freIght. .
to M., aDd anow same to be stopped over at N., an intermedialie point, tp be drellsed,
A railroad company contraoted. with a marble compauyto carry marble from T.
In Equity. Bill to foreclose a railway mortgage. Heard demurrer to the intervening petition of the Blue Ridge Marble Company. Demurrer sustained. On January 19,1891, there was an existing contract between the Blue Company and the M'arietta"& North Georgia Raihvay Compliny, by which the railway company agreed to paul marble from the at Tates station to"Marietta; Ga., and allo}V said freight to be stopped over, cut, and dreSlied at !in intermediate station called wNelson." Oil said date, under this contract, there was considerable marble at Nelson, being dre!:ised andwol'ked,thefreight on whi<:hhad been prepaid
froIn)Tates station to Marietta; and on the said date said railway was puHp,the hands ,of a receiver on the of the trustee for the bondSaid receiver refused to .recognize said contract, and to hal,11 freight'stopped over at Nelson, although the freight charges had been prepaid Jq Marietta. The Blue Ridge Marble Company intervened tn foreclosure proceedings, and asked that receiver be compelled to ;omplete the haul of all freight at Nelson, the charges on which had, oeen prepaid, or that said receiver return to the Marble Company .freight charges unearned. The Central Trust Company demurred to intervention, upon the grouud that the claim is not a lien superior to the of the bondholders, and be.cause the claim was not a traffic btllance. or a within those usoanyallowed prior to the bonds. , ,F. O. Tate, R,N. Holland, and B. F', « O. A.Abbott, for interveners. HenryS. Tompkins, for Central Trust Co. A, Olay, for receiver.
NEWM1N, District Judge. I am satisfied that the question involved, in this. intervention is controlled. by the case of Co. v. RailroadCo./ 9.9, U. S,. 1.91. In th,at Case the contract was made between the express company and the railroad company, whereby the expreSS company agreed to lend the railroad company $20,000, to be expended in repairing and equipping its road, and ,that the railroad company should grant to the express company the necessary privileges and facilities for the transaction of all its express business over the road; the sum found. to :be 'due the railroad company ,therefor upon n:ionthly settlements of accounts to o.e applied to the payment of the loan and the interest thereon. The $20,000 was paid in compliance with the contract, and shortly thereafter the express OoUlpahy entered upon the road, transporting freight according to the terms of. the contract, keeping accounts, and exhibiting them to the company, which were always apprbted; audit cQntilllled to act under said contract until a receiver;appointed in a bill to foreclose the mortgage, refused to continue the contract, and the express company was <?pmpelled to abandon the road, although its debt was unpaid. By consent of the court, the express company was allowed to file its bill in circuit court of the United States.for the western district of North Oarolina, where the foreclosure proceedings were pending. The bill prayed for a decree compelling the railroad cbmpany to specifically perform its contract, and. to such other and further relief nature and circumstances of the case might require. The prayer of petitioners In this intervention is the same in effect as the prayer of complainants in the case referred to. The supreme court, after disposing of other questions, uses the following language in the opinion: "ThereIs &Q-otper. objection to the appellant's case, which is no less con.. The r9'ad is .ill t,he hands of rec,eiver, appointed ina suit by the bOndholders to foreclose their mortgage: The appellant has no lien. The cp it tract neIther expressly nor by implication touches that subject.. It is. Dot a license,' as inilisted by counseI.It Jls 'Simply r. contract for the transportation of persons and property over the road. A specific performance by the receiver would, be Ii form of satisfaction or payment which he cannot be-
SMITH 11. WALTON.
required to make. As well ,might he be decreed to satisfy the appellant's de· mand by money, as by the service sought to be enforced. Both belong to the lienholders, and neither canthus be diverted. The appelIant can, therefore, have no locus standi in a court of equity." It is clear that the view of the supreme court as just quoted must control the question presented by the intervention in this case. It is a peculiar condition of things, and unfortunate for the and a hardship on them, undoubtedly; but to require the receiver to transport its marble to Marietta would be equivalent to requiring the receiver to pay them in money the amount of the freight from Nelson to Marietta, and this the court certainly could not do, inasmuch as they have no lien. 'The petition of interveners sets forth the fact as above stated, and consequently the demurrer to the petition must be sustained,aDd it is so ordered.
SMITH 11. WALTON
(District Court, S. D. New York-June 20,
PATENT ON 'W90DlI:N
PENALTY. . :' ' 'ThepBtenteejlf;wooden dishes whicbmight have been marked "Paten1ied, n etc., as by section 4900J Rey. St., did not stamp the dishes, but only the crates , in which they were packea. Upon a suit for penalties under the secOnd paragraph , of seCtion :4001 against the defendant. for plllcing a similar stamp upon crates of similar dishes mlllle by the defendant without license, held, on demurrer 'to complaint, that sectionl! 4000 and 4901 must be construed together; that the stamping of artides capll-ble ilf stamping was necessary; and that the stamping of tl1e crates them was insufficient, and was not protected by sections 4900 and 4901; and: that a similar stamping of his own crates by the defendant did not render him liable to any penalty. ' . ,
ST. §§ 4000; 4901-IHlTA.TION-No
At Law. Action by Seth H. Smith against David S. Walton and George West to recover penalties for alleged violation of the patent laws. Heard,op,demurrer to the complaint. Demurrer sustained. Rush Taggart and Almon Hall, for plaintiff. P. Foster, for defendants.
The above action is brought under section
4901, of the United States Revised Statntes to recover $220,000 penal-
ties alleged to have been incurred by the defendants in marking upon and affixing to 2,200 crates of wooden dishes the word" Patented" and the words" Oval Wooden Dish" with intent to imitate and counterfeit the mark' and device of the plaintiff, who was the patentee of said dishes, without his consent, and without having, obtained any patent therefor·. The complaint consists of 2,200 counts, each of which, after the first, charges a similar offense in regard to "a certain other crate of wooden dishes," claiming a penalty of 8100 for each offense. The defendantshave demurred on t):leground that the complaint does not state facts sufficient to constitute a cause of action, and under this bead have v.51F.no.1-2