the hands Qf,B. Fisher. as receiver of the SI/ring, Garden National Bank, be retained and appUe<l J>y; him, as such receiver. "And It is further ordered, that the sl\.id J. R. Adams, as receiver as aforesaid rata distribution of the assets of ,the said Spring lsentltled to Gll.rden National Bank of the Citl, of }?hiladelphia, and the ;receiver of said national bank, will payaud; accordingly the amount ascertained toibeduethe Penn Safe DeposJt ,and' 'l'rust,Company by this decree, in addi· tion to the sum of thirty-four thousand, Jline hundred and three and seventyfOur one-hundredths doll8.l"s;which appeared as a deposit to the credit of the P6nn Safe Deposit and Trust Comp@.i on the books of the Spring Garden 'Natlrinal'Bank, which has ibten alrealiyproved and dividellds paid thereoll. "An"d, it, iS',fUrther or,d,e, '" al1d ,dec,ree, ,' that there is due alld OWillg from the ,d,,' SprfugGarden Natlonal (If of Philadelphia the sum of two hUndred' and twelve thousand, nille l\undred and three dollars apd seventyfbur eents;'belng the total of ifhe afori:!said sums of Olle hUlldred and seventy.eight thousand dollars for notes and thirty-four thousand nine hundred and three dollars and sevent:v:-four cents, ,for amount of deqt proved, together with Interest from April 9; 1891, amounting in all to the sum of two hundred and forty-four thousand nine hundred and three dollars, and seventy-four cents, unto Josiah R, Ad,ams,as receiver of the Penn Safe Deposit and Trust Company, plaintitr."
decree aD litRPf;!& was taken on behalf of the bank, and ,.errors, were asSigned. ,The only one pressed however, is that Which relates to much of the decree as renders the bank the abstrl:tction of $15,000 worth of stock deposited as secW:ity for Kennedy's worthless note, in that sum. , The this transl:tction do not differ materially from those respecting the other covered by the decree; and the batik was justly held responsible for it. The responsibility arises not only out of the fact that the stock was abstracted by its president for its benefit,and the proceeds applied to its use, but out of the circ1lUlstance that it was done in pursuance I\)f the bank's scheme in organizing the trust company and its practice in dealing with its funds, and that it must therefore be treated having been done with its knowledge and approbation. It is onimportant that Kennedy owed the bank money and that the amount raised from the stock was credited to him. The bank was in trouble and the sto,ck was taken for and applied to its relief, in pursuance of its design in organizing the trust company and its practice in dealing with it. The organization of the company and tht> made of it was a plain fraud on the public and depositors, for the consequence of which the decree justly makes the bank responsible. It is therefore affirmed. Fr0ni:
AMERICAN WOODEN-WARE CO. v. STEM at. at.
(Circuit Court, S. D. New' York.
WRITB-BERVIClIlQN FOREIGN CORPORATION.
July 14, 1894.)
Serviceoti toreign corporation by serving its secretary while temporarily in the state in attendance on a federal court to testify as a witness in' a cause to whiCh such corporation was a party, held invalid, it appearing ,that such corporation did no business in the state except selling goods thl'()ugh a traveling salesman, and In one instance buying a
NIPP V. PARRISH.
stock ot goods and selling them through an agent specially appointed for that purpose. Good Hope Co. v. Railway Barb-Fencing Co., 22 Fed. 635, and Golden v. Morning News, 42 Fed. 112, followed.
This was an action by the American Wooden-Ware Company against Arthur Stem and the Oval Wood-Dish Company. Motion to vacate service of summons. The papers on this motion disclosed substantially the following state of facts:
The action was originally commenced in the supreme court for the city and county of New York by the service of a summons upon defendant company's treasurer while temporarily within the state in attendance on United States court in charge of one of the company's causes, and in expectation of testifying as a witness. Defendant company appeared on motion to vacate said service on the circumstances stated, but said motion was denied. Tbereafter defendant company removed the cause to the United States circuit court, and there renewed the motion upon additional facts. The papers before the court disclosed that prior to the action the defendant compan:v had bought in, on execution sale, a stock of goods belonging to its judgment debtor, and sold the same to various customers, in the regular course of business, .through an agent especially appointed for that purpose, and residing in the state of New York. Also that the defendant company bad for many years previously obtained in said state orders for its goods through a traveling salesman resident in Ohio. but that the company had no office or regular place of business. not did it transact business within the state of New York, except as aforesaid.
Walter D. Edmonds, for defendant company, appearing specially for the purpose of the motion. .
Cited Good Hope Co. v. Railway Barb-Fencing Co., 22 Fed. 635, 637; Golden v. Morning News, 42 Fed. 112; Atchison v. Morris, 11 Fed. 582; McGillin v. Cla.1iin, 52 Fed. 657; Ahlhauser v. Butler, 50 Fed. 705; Bentlif v. Ifinance Corp., 44 Fed. 667.
Edward Schenck, for complainant.
Cited Bryant v. Thompson, 27 Fed. 881, 883; Duncan v. Gegan, 101 U. S. 812; Estes v. Belford, 22 Fed. 275; Davis v. Railway Co., 25 Fed. 788; Carrington v. Railroad Co., 9 Blatchf. 468, 469, Fed. Cas. No. 2,448; Sweeney v. Coffin, 3 Am. Law T. Hep. U. S. Cts. 18. Fed. Cas. No. 13,686; Jones v. Andrews, 10 Wall. 327; Pope v. Manufacturing Co., 87 N. Y. 137; Ex parte Schollenberger, 96 U. S. 377.
LACOMBE, Circuit Judge. This case is within the principle of Good Hope Co. v. Railway Barb-Fencing Co., 22 Fed. 635; Golden ... Morning News, 42 Fed. 112. Motion to vacate service of process is granted.
mpp et al. v. PARRISH et
October 8, 1S94.)
(Circuit Court of Appeals, Eighth Circuit. No. 448.
PLEADING-SUFFICIENCY OF ANSWER-ACTION ON GUARANTY.
An answer to a complaint upon an alleged contract of guaranty, though loosely and inartificially drawn, and pleading the evidential instead of the ultimate facts, held to be sutlicient, in substance, where the allegations and denials led to the conclusioD that it denied that the written con. tract of guaranty was ever completely executed, so that it became an