and others to violate the prorlslons of the state and national law, and especlallytbe provisions of the first clause of article fOUl'teen of the constitution of the United States, to my Injury, oppression, threatening, and intimidation; that he is violating his oath of office, and using ·hls o:fll.ce to abridge the privileges and immunities to which I am of right entitled as a cItizen of the States; and that he denies me the equal protection of the laws wlthlnhlsjurlsdletion. . .' . Theodore "". Siddall, Plalntit!." To the derelldant filed a demurrer, assigning the following reasons,.l;I,mong others: The statement is vague, uncertain, and indefinite. The pla:IJltl¢ refers to the alleged records of a suit In a state. court without forth. None of the counts in said statement discloses any legal llabllity on ·the part of the defendant.
Theo·. W. Siddall, in pro. per. George S. Graham and F. Carroll Brewster, in support of demurrer.
Judges of courts of record are not liable for their judicial acts (Bradley v. Fisher, 13 Wall. 385; Scott v. Stansfield, L. R. 3 Exch. 220; Calder v. Balket, SHoore, P. O. 28), even if they exceed their jurisdiction (Lange v. Beuedlct, 78 N. Y. 12; Yates v. Lansing, 6 Am. Dec. 290; Stewart v. Cooley, 28 A.m. Rep. 690). The statement shows on its face that the acts complained of were performed by defeudant m a judicial capacity, iu an action over which he had jurisdictioIl.
DALLAS, Circuit Judge. The statement of claim in this case does not set forth a cause of action of which this court can take cognizance. The substance of the matters averred is that the defendant,by acts done or omitted by him in the exercise of his office as one of the judges of a court of the state of Pennsylvania, has caused damage to the plaintiff, who was a suitor before him; but this tribunal has no a'Uthority to review the judgments of the state courts, and hold their judges responsible for failure to correctly discharge their judicial duties. Judgment for defendant on the demurrer.
GORMULLY & JEFFERY MANUF'G 00. v. BRETZ et at. (Circuit Court, E. D. Peuusylvania. December 4, 1894.) No. 90.
Interrogatories should be confined to the matters set up In the bill. and be releV!Ult to the case which it alleges.
SAME-CREATION OF CORPORATION.
Where a blll charges that a corporation Is practically the same concern under a corporate organization as a partnership, which partnership Is charged· with the breach of a certain agreement, and the transfer of SUCh. agreement to the corporation, it is permissible to inquire, with the object of connecting the two organi!2lations, into the circumstances connected with the creation of the corporation, and the number of its shares Which were acquired by the members of the partnership.
This was. a suit by the GormuUy & Jeffery Manufacturing Company against Jacob S. Bretz and others.
The bill disclosed that the complainant. an Illinois corporation, was the owner of a number of letters patent relating to the manufacture of bicycles and tricycle structures; that the defendants, being copartners under the
GORMULLY &: JEF;FERY MANUF'G CO. t1. BRETZ.
name of Bretz, Curtis & Co., were desirous of using, selllng, and Importin,g, and selling to others to be sold and used, bicycles and tricycles, employing in their construction and operation the inventions of one or more of the said letters patent, and securing a license therefor from the complainant; that upon certain considerations the complainant and defendants signed an agreement in which the complainant licensed the said letters patent to defendants, who thereupon covenanted not to thereafter engage In the manufacture of bicycles or tricycle structures, nor in the importation or sale of such struc.tures (except two certain English machines), without the written consent of the complainant. The defendants further agreed to make monthly reports of the numlier of structures imported and sold, and to pay monthly to complainant, for the use of such structures upon the imported bicycles, the sum of five dollars each. The complainant was to have the privilege of ·examining the books of defendants, and to calI for reports under oath. The defendants also agreed not to transfer ·the agreement. The sum to be paid complainant was at no time to be less than $1.000 annualIy. The complainant agreed to defend the defendants from certain suits for patent infringements. The bill further averred that in October, 1890, a few months after signing the said agreement, the said Bretz and Curtis, together with three others, vretended to form a corporation under the laws of Pennsylvania, under the name of Bretz & Curtis Manufacturing Company (since the CurtisChild ManUfacturing Company), for the purpose of manufacturing and dealing in bicycles, etc., and similar articles. Corporate papers were issued to them on October 27, 1890. Of the 500 shares of capital stock, 240 shares were subscribed by Bretz, and the same number by Curtis, the remaining 20 shares being divided among the other three corporators (the law of Pennsylvania requiring at least five subscribers to an intended charter). The bill then averred that 200 shares each were issued to Bretz and Curtis as full paid, in consideration of the conveyance by them of certain bicycle goods, and certain contracts, licenses, and Jeases, and the business of Bretz, Curtis & Co., including the agreement above set forth; but whether or not there was a specific conveyance of said contract or license the complainant averred ignorance, and prayed discovery. Of the amount of stock in said corporation now owned by said Bretz and Curtis, the complainant also averred ignorance, because defendants have neglected to file their statement of such in the proper office, and prayed discovery thereof, averring also that the corporation is only a continuation of the partnership. The defendants have failed to make any report of bicycle or tricycle structures imported or sold, and have not paid any part of the said royalty since October 31, 1890; and the bill averred that the said corporation was engaged in the manufacture of bicycle and tricycle structures, and the importation thereof, other than the two certain English machines, and that such manufacture, importation, and sale is that of said Bretz and Curtis. The bill, after averring performance on the part of the complainant, prayed relief according to the facts set forth, and asked that defendants be perpetually enjoined from manufacturing, selUng, and importing structures other than allowed by the agreement, and damages for the breach of same. Answers were also prayed for to the following interrogatories: "(1) What contracts, licenses, and leases relating to the importation or sale of bicycle or tricycle structures have Jaccb S. Bretz and George E. Curtis conveyed or assigned to Bretz & Curtis ManufactUring Company, and when? (2) Was the contract of license of March 18, 1890, between the Gormully & Jeffery Manufacturing Company and Jacob S_ Bretz and George E. Curtis, trading as Bretz, Curtis & Co., at any time conveyed and assigned to Bretz & Curtis Manufacturing Company? And, if so, when? (3) What were the terms of the conveyance of certain bicycles, tricycles, accessories, and goods, and certain contracts, licenses, and leases, and the goodwill and business of the firm of Bretz, Curtis & Co., referred to in clause eight of the charter of the Bretz & Curtis Manufacturing Company? (4) How many shares of stock of the Bretz & Curtis ManUfacturing Company have been issued? (5) What are the names of the stockholders of said company upon the date of the filing of this bill, and how many shares are held by each? (6) Has Jacob S. Bretz acquired or disposed of any stock of the Bretz & Ourtis
:'in:BEBA.L: REPORTER) 'vol. ,64.
organimtion thereof?,;And:,-lf $0, ,what wbat'datl!!SlJ(7) Has GeQl'ge ,E. Cu1!tieRcquimd'ol' ,disthe' 'stdck ol!ilt'be. ;Bretz &. (lurtis ManullacturlngComp.any thel'eof,']I'.A.nd, If so,' what amounits and: upon. what dates?< . "IJ:\:"" .' 'I' . " ·f: :ldefendllntoTtleol): S. 'Bretzls.requirel'bto answer the interrogatoriel:'l1lmlbetM, 'reSp(l<ltively; 1,2, 3, 4,6. The defendant George E. Curtis is ; to answer'1Jbe: interrogatories numbered,' respectively, 1, 2, 3, 4, ·7. I'. ,The, defend'&int : Bveujii& . Curtis Manufacturing Oompany is required to answei'ithe:lilterrogatories' numbered, respeCtively, 1\ 2, 3,.4, 5, 6, 7." The 8JU;l\\!er' Of the 'Curtis-Child .Manufacturlng Company denied in detall the maln.:aJlegaJt1onsGf the bill, llverring that said agreement was in restraint of 'I trade, and making no response to the interrogatories propounded. The ansW6r;:of i Cut'tts'admittedtiunl:greement, but denied 1its effect In equity, for severlU':reasons, and made no Mswer to the Interrogatories. The complainant thereupon tooll:i exce:ption to the' answer's as Insufficient.·
APams, E(onace Pettit,' for defendants.
Circuit"Judge'(after stating the facts). Seven interrogatdi;esllrejncluded' the bill· in> this, case. The defendant JaCob was .n,?tseryed, and has not appeared. By note to theblll,tb,e.defenda.ntGeorge E. Curtis wa.s' required to answer theiinterrogatoItiesnumbered 1, 2, 3,4, and 7, andthedefendant Bretz (now Curtis-Child Manufacturmg was requIred to answer the interrogatories numbered 1 to 7, inclu!dve. Neither of these defendants has answered ·. either of them; rand argument has now been heard· upon exceptiQu$,·'ftled· by the complainant to their. refusal to 'do. so, Interrogatories shoqH'ibe co;nti.ne'd. to the ni'atters set up ill the bill, and be..releva.nt t9 ,the caSe wb-lAh, it a.lleges. If not materialto the purpose of the' sUit" a defenda.nt ought not to be compelled to answer them. . ..' . ' . For it is coptehded taat the' first three. interrogatories are peIitinent "the allegation that there was a conveyaJnce of the license contract in suit to the Bretz & , Curtis Companyl' The'firstintelTOgatory is notdireHed solely to that contract; licenses,"'etc., have been conveyed or !i.sl:ligned;, aI/,<I, full reply to it might involve disclosure of contracts and conveyances other than that in suit, and of transactions with respect to which the complainant has no right to discovery. The interrogatory is un'objectionable.. The third inben,n!l:wered, either fully or, by the statement ofsomefactjq.stifying the refusal to do so. Nosuffieient reason for declining, to. a.nsWer it upon the argument. ,The stated;W,af. tlle remainlpg interrogato, ellen discovery .ofthe fact that the Bretz & Ourtis.Manufacturing. Company is. the successor of :Bretz, Curtis & CiY" and under a corporate organization. 1t is il'Hl11tre, with. this ol?jeet, into the circumstances connected creationot the corporation, and the number of its shares which wereacq'uired by Bretz and Curtis, the considera, tion therefor, etc. To this extent, but not further, the fourth,fifth, sixth, and sevellthinterrogatoriesare well founded.
BOSWORTH ,.JACKSONVILLE NAT. BANK.
The first exception is dismissed. The secoBd and third exceptions are sustained. The fourth and fifth exceptions to the answer of George E. Curtis, and the fourth, fifth, sixth, and seventh exceptions to the answer of Curtis-Child Manufacturing Company, are so far sustained that the defendants are, respectively, directed to answer the interrogatories to which those exceptions severally relate, to the extent which the foregoing opinion indicates to be requisite. The defenqants are assigned to answer in accordance with this opinion on or before the next rule day.
BOSWORTH et al.
JACKSONVILLE NAT. 'RANK. No. 176.
(Circuit Court ot Appeals, Seventh Circuit. November 27, 1894.)
On September 12, 1893, the C. Railway Compnny drew two drafts 1n tavor ot the J. Bank, upon the R. Rallway Company for 11 part of a fund In the hands ot that company belonging to said C. Rallway Company, which tund, however, would not be payable until September 25th. On September 21st, receivers of the C. Railway Company were appointed, and took possession of Its property, Including the fund In the hands of the R. Rallway Company, which was subsequently paid to them. The J. Bank did not present the drafts for acceptance, or notify the R. Railway Company of their existence, until after the appointment of the receivers, nor did the R. Railway Company ever accept them. Held, that the drawing of the drafts did not, without their acceptance, constitute an appropriation of a part of the fund to the payment of the J. Bank, nor an equitable assignment to It of a part of the fund, but that the receivers became entitled to the fund upon their appointment, and it was rightly paid to them.
8. OFFICERS OF CORPORATIONS-DuTIES TOWARDS CnEDIi'ORS ERENCE.
The drafts having been drawn and delivered to the bank in payment of a note of the C. Railway Company, on which H., its president and one of Its directors, was surety, and at a time when the railway company was in falling circumstances, held, that they constituted an illegal pl'eference to one who, as an officer and member of the corporation, stood In a relation ot trust towards its general creditors.
Appeal from the Circuit Court of the United States for the Southern District of lllinois. This was an intervening petition in the nature of a bill in equity, brought by the Jacksonville National Bank against C. H. Bosworth and E. Ellery Anderson, as receivers of the Chicago, Peoria & St. Louis Railway Company, to obtain payment to the bank of certain funds in the hands of the receivers. In the circuit court a decree was entered for the intervener. Defendants appeal.
This Is a suit in equity, brought by the Jacksonville National Bank, as Intervener, against the receivers of the Chicago, Peoria & St. Louis Railway Company, to recovel' the 8um ot $7,500, being the amount ot two several drafts drawn by Marcus Hook, as treasurer of the railway COmpanY,-Qne tOl' the sum of $2,500 and the other for $5,OOO,-upon G. Purdy, treasurer of the Rock Island & Pacific Railway Company, each dated September 12, 1893. These drafts were delivered on the day of their date to' the cashier of the bank, with directions that, when paid, the proceeds were to be Indol'sed upon