order, and do, as said receiver, respectfully decline to proceed further therein; and it is further ordered that, if any plaintiff or claimant in or under said garnishment action, notice, writ, or process shall thereafter further proceed therewith in said state court, such plaintiff or claimant shall not be granted leave nor allowed to file in this court any application or claim for payment of or with ref· erence to said claim so set up in said state court or judgment thereon (if any rendered thereon), nor shall he be decreed or permitted to receive therefor from said receiver or through this court, in any manner, any wages or funds that at any time may be in the hands of said receiver, which may be due or belong to any alleged debtor in such garnishment proceedings, nor the payment of any costs in such proceedings incurred.
NOTE. The above order was subsequently so modified as to pprmit the copy to be filed with the officer serving the process, etc., to be an uncertified copy. .RICHARDSON v. WALTON et al
(Circuft Court ot Appeals, Third CircUit.
No. 15. ApPEAL-AsSIGNMENT OF ERROR. Where error is alleged in the findings of fact embodied in a decree ot a lower court, the assignment, to be entitled to consideration in the appellate couft, should specifically and plainly point out the particular error al· leged. Bank v. Rogers, 3 C. C. A. 666, 53 Fed. 776, followed.
Appeal from the Oircuit Oourt of the United States for the District of Delaware. This was a suit by Oharles Richardson against Ephraim T. Walton and :Francis N. Buck, former copartners, wherein the bill of complaint prayed that the articles of dissolution be declared to have been procured by fraud and duress, and that the same be reformed in accordance with the real value of the firm's assets at the time of said dissolution. The case is fully reported in 49 Fed. 888. The complainant now appeals from the decree of the circuit court. S. S. Hollingsworth, Henry N. Paul, Jr., and Anthony Higgins, for appellant. Benj. Nields and George Gray, for appellees. Before DALLAS, Circuit Judge. and BUTLER and GREEN, District Judges. DALLAS, Circuit Judge. The parties to this suit had been partners for a number of years, when negotiations to dissolve that relation were entered upon, which on July 13, 1885, I'eSUlted in the execution of articles of dissolution, by which the plaintiff sold to the defendants all his interest in the partnership business and property, except certain claims and accounts, at a price and upon terms therein set forth. On October 12, 1888, the plaintiff filed his bill to have these articles of dissolution declared to have been procured by fraud and duress, and for reformation thereof "in accordaur-e witll
J'ED:lCRAL REPORTER,vol. 61.
the real value of the1lrIri's assets at the time of the dissolution," which the complaina.nt· alleged was much greater than the value which had beenplacednpon them when the agreement was made. There is no ground upon which the charge of duress can be supported. The pl'incipalquestion is, did the defendants perpetrate a fraud upon the plaintiff,' by which he was led to enter into the contract in question ?The allegation of the plaintiff. is that the contract was in. part bal'led upon an estimate of the profits of the firm for the then current year, which estima,te was accepted by the plaintiff llnael' the belief that the defendants had no lmowl· edge of the exact amount of those profits, whereas they were then filllyand accurately informed of their arnollnt,but designedly concealed their knowledge, and the fact that they were possessed of it, from .the plaintiff, who, in consequence, agreed to accept, with :respect to said profits, a sum much less than their true amount. The defendants admit that in the negotiations which led up to the contract the profits referred to were considered, and that they were involved in the agreement which was embodied i,n that instrument; but they assert that the estimation of their amount, which, after considerable discussion,: ,was acquiesced in by both parties, was arrived at in good faith upon their part, and they positively deny that they then had any information upon the subject which they withheld from the plaintiff. The learned counsel for the appellant ask us to independently consider this question of fact, because, as they suggest, the circuit court made no finding upon it; but. this suggestion is incorrect. That court, with reference to this matter, said:
a reformation of the artlclesof dissolution is sought.
The bill charges fraud, and To entitle the plaintIff, to relIef, the proof be free from. all doubts, and convincing; but they do not appear so to be, to 'Us. Taking the proofs as a whole, this much can be safely said: That the evidence Is not so clear and satisfactory as to justify a decree sustaining the charge-" "The burden of proof Is upon the plaIntiff.
Both as to law and fact, we concur in this statement. That the burden was upon the complainant to establish the. fraud which he alleged, by clear and satisfactory proof, isunqllestionable; and that he failed to do so, our. examination of the: record has entirely satisfied us. But, if this question of fact had been a doubtful one, this court would not have been disposed to review the finding of the court below withrespect to it, in the absence of any assignment specifically pointjng out, and indicating with particularity, the precise error alleged and relied upon. Bank v. Rogers, 3 O. C. A. 670, 53.Fed. 776. What has been said is conclusive, and therefore it is not necessary to consider any other of the points which are dealt with in the opinion of the court below. T'he decree is affirmed, with costs.
(AprIl 30, 1894.)
PER OURIAM. Since the foregoltig was written, attention has been directed to the' circumstance' that the statement quoted from
CLAP '1. INTERSTATE ST. RY. 00.
the QPIDlon of the court .belowwaa not embodied in its decree. Consequently, what has been said as to the absence of a specific assignment of error is inapplicable. This, however, does not affect the judgment heretofore announced, inasmuch as this court did, for itself, examine the question of fact referred to.
CLAP et at v. INTERSTATE ST. RY. CO. (Circuit Court, D. Massachusetts.
June 5, 1894.)
After the appointment of a receiver for a street-railway company, the court will not appoint a separate receiver for one of its branches, especially where such branch has ceased to be operated, by reason of the destruction of its power house.
In Equity. On petitions of Boston Safe-Deposit & Trust Company, trustee under mortgage of the Attleborough, North Attleborough & Wrentham Street-Railway Company, Charles Francis Adams, owner of certain bonds of the Interstate Street-Railway Company, and the General Electric Company, owner of certain shares of stock of the Attleborough, North Attleborough & Wrentham Street-Railway Company, for appointment of separate receiver in the suit of Harvey Clap and others against the Interstate Street-Railway Company. William G. Roelker, for complainants. E. W. Burdett, for complainant United Traction & Electric Co. Gaston & Snow and Solomon Lincoln, for complainant Boston SafeDeposit & Trust Co. H. E. Warner, for complainant Charles F. Adams. Charles H. Tyler, for complainant General Electric Co. Walter H. Barney, for respondent receiver. COLT, Circuit Judge. The only question properly raised by these petitions is whether the receiver, Cornelius So Sweetland, shall be discharged from the possession and control of that portion of the railway lines of the Interstate Street-Railway Company known as the Attleborough, North Attleborough & Wrentham Street-Railway Company, and a separate receiver appointed to take charge of that property. The real controversy between these petitioners and the Interstate Company t:RIVlOt be determined except upon proper pleadings and proofs. Whether the Interstate Company acquired a valid title to the Attleborough road, or whether the second issue of bonds by the company was in excess of the amount allowed by law, and other matters in dispute which are set out in the petitions and accompanying affidavits, cannot be decided by the court at this stage of the proceedings, but must await a full hearing according to the usual course of equity procedure. As the case now stands, I have simply to determine whether, in the exercise of a sound discretion, another receiver should be appointed to manage the Attleborough Branch. The office of a receiver is merely to preserve the