defendant, the complainant had lines upon .thOse streets except a fragment upon South PennsylvaJlJa street, WhICh had been if not legally, abandoned. I do not think the complainant,underihe ordinance of 1864 or 1865, had any vested right to the construction of a particular line without first obtain· of the common council to "the location, survey, and construction" of such proposed 'line. Therefore, the complainant, no consent from the city to occupy the streets in questi(jn, has ,no right to complain of 'their occupation by the defendant company. ' Other questions are presented in respect to the streets occupied by the complainant with the consent qf the city. The defendant, by itsltI1SWer, denies that it sets up any claim to the present occu· pancy of that part of any street lipon which the tracks of complainant's railway are laid, or that it intends or threatens to lay and operateUnes of electric railway on any street on which the complainll.l1t was operating an electric line, at the time suit was brought, "untl1 after the expiration of its right thereto, if any it has." But from the terms of the contract and ordinance under which the defendant company has acquired the rights which' it asserts, from the notice served upon the complainant, from the acts of defendant as disclosed in the record, as well as from the claims of its counsel, it seems apparent that the defendant company has been acting on the theory that the complainant's right to occupy the streets has ceased, and that under its contract it may rightfully take possession of them, 'and expel the complainant therefrom. In my opinion, the defendant company has no such rights. In so far as the defendant company claims the, right to interfere with the complainant's free and unobstructed use of its lines of electric railway on all the streets now rightfully occupied by it, its claim is wrongful and injurious. To the extent necessary to protect its quiet and undisturbed use of these lines against invasion by the defendant company, the complainant is entitled to the aid of the court. I entertain no doubt that the amended bill presents a federal question which gives the court jurisdiction. I have heretofore ex" pressed my views on this' question, and I do not think it needful to add anything to what I have already said on the same subject. Citi· R. Co. v. City Ry: Co., 56 Fed. 746.
HOOK v. AYERS et aL (Circuit Court of Allpeals, Seventh CircUit. December 14, 1894.) No. 155. CoBNRATIONS-OFFIOERS-,.14ILROAD BONDB-,PLEDGE.
A rallroadcoDlPany 247 bonds of another company pledged 125 of them to cross complainants, while,'the president of the company, with the knowledge of cross compla!nlUlts;' pledged the other 122 bonds to a sYJ:1.dicate two ot the cross compl&inaJ;lts, and others. ,!;Ie ovt the other ,members ot tlJ,esyndicate, and attempted absolutetttle to the bOnds by crediting a certain amount upon the debt of tlietrallroad Company. 'Held that, although the transac-
HOOX 11. AYEBS.
tlon might be voidable at snit otthe railroad company, its shareholders, or judgment creditors, It could not be attacked by cross complainantB. (',3 Fed. 'Wi, affirmea.
On rehearing, For former opinion and statement of facts, see 63 Fed. 347. JENKINS, Circuit Judge. The petition for rehearing would seem to be presented in misconception of our opinion. We have not held that the original pledge by Mr. Hook of the 122 bonds for the benefit of the syndicate, or the subsequent transfer of them to himself, could not be attacked by the Jacksonville Southeastern Railway Company, its creditors or shareholders. We have not determined that as to the company, its creditors or shareholders, the transaction could be upheld. We did not find it needful to consider that question. We held that the appellees, upon the record here, were in no position to make that attack. With that conclusion we are content. The transaction sought to be avoided could have been ratified by the company, could have been sanctioned by its shareholders, could have been confirmed by its creditors.,' It was therefore voidable, not void. If without original authority, and in contravention of the rights of the company, it was voidable at the election of the company, its creditors and shareholders,-not of a stranger. The cross bill filed by the appellees proceeds upon the postulate that they, as pledgees of 125 other bonds, not as creditors, can rightfully attack the transaction. This, we think, they cannot do. It is true that it incidentally appeared by the testimony of one witness that a judgment had been rendered in favor of the appellees against the company for the loan for which the 125 bonds were pledged, but the cross hill proceeds upon no such ground. The judgment is not referred to in the bill. In a general sense, it appears from the cross bill that the appellees are creditors of the company, but not that they are judgment creditors; and we have held, following- the case of Hollins v. Iron Co., 150 U. 13.371,14 Sup. Ct. 127, that simple contract creditors are not in position to attack such transactions. Morrow Shoe Manuf'g Co. v. New England Shoe Co., 18 U. S. App. - , 6 C. C. A. 508, 57 Fed. 685,-on rehearing, 18 U. S. App. - , 8 C. C. A. 652, 60 Fed. 341. The 247 bonds issued by the Louisville & 131. Louis Railway Oompany were the property of the Jacksonville Southeastern Railway Company. The latter pledged 125 of these bonds to M. P. Ayers & Co. as collateral to its debt to them for money borrowed to construct the road of the former company, whereby the bonds were earned. M. P. Ayers & Co. had no equitable or legal right to the remaining 122 bonds. They were content with their collateral security, knowing that their 125 bonds were to share with the remaining 122 bonds in the proceeds of the sale of the road, if default should be made in their payment. Possibly, the 122 bonds remaining the property of their debtor, they might, in the distribution of the proceeds of sale of the mortgaged premises, upon which all of the bonds were secured, equitably insist that their bonds should be awarded .priority.of payment because the Jacksonville Southeastern Railway
C()mpanywasUablefor, the debt tt!> 't:hehl;ii\:ridJitb,is we understand upon which thecross'bilt'pMceelts. But it is shown to that at the time of the loan M. P. Ayers Co. knew that the remainingH122, bonds hatt ieen transferred by the railway company to the syndicate composed in part of two of their firm, and with such knowledge they sold to Mr. Hook their interest in the syndicate. Thisj..J,tet'eliIt was,acquired by him upon the strength of the fact that t;b,e syn(ijoateheld the remaining bonds. ", They have thus sanctioned by which the bonds ,were !transferred by the company The stockholders of, the Jacksonville Compam:'. creditors might properly object to the transfer of the 122 WI!IMl,1:iptnot one who contracted his debt with knowledge of, and;wh(), l.ws·· participated in the avails of, the transfer. Petition overruled:
JENSEN v. NORTON at al. (CIrCUit Court of Appeals, Ninth Circuit. November 1, 1894.) No. 132.
PRELlMJ.'l!&.Rj!:INJUNCTION-PRAOTICE-CIRCUIT 'COURT OF' APPEALS.
N;.,qNught ,suit against J. to restl'l1in the .infringement of patents belongi,ng to 'N. Upon thebllI. and affidavits. supporting its material allegations" to which J. made no reply by .answer or counter affidavits, N. obtained 'a preliminary On appeal, frOID the order granting SUCh ,fnjUDctfun,J. contended that, upon the showing of N.'s own papers, the D;lMhiJ;ll'l complainedQf did not infringe N.'s patents. Held, that the cir¢uft of appeals . not, in advance of a final hearing in the Circui(:cot1rt, attempt to .4etermine, or. express any opinion upon, the main ,question in the case, the complainant having made out a prima facie case entitling him to an injunction, within the rule as laid down in BI(),1lIlt \1; B O. 0. A. 455, 53 Fed. 98.
Appeal"fr()Ill the Cil'cuit Court of the United States for the District of Oregon. . ',' , ' wwra suit by Edwin Norton arid Oliver W. N()rton against Mathias Jensen for infringement of certain letters patent, A preliminaryitlju,nction was granted by the court below. Defendant appeals.' ' Wheaton, & )Uerce, for appellant. & Adcock, for appellees. Munday, Before'ROSS, HANFORD, and MORROW,' District Judges.
HANFORJID, 'Dis1:rictJttdge. This case brings before us for review an made by the circuit court for the district of Oregon, the substantia:l part of which is as f o l l o w s : '
"This to be hean! '\Ipon the motion pf complainants for a preliminary fujunctionHls prayed for'ln the bill, and the, court havIng dulyconside1'e!l thereon, it Is now ordered' by the court that, pending the final he!4'PlII therein, the :Mathias Jensen, his agents, anI! be, and. they hereby are, enjoined and restrafIiM· !roni directly or mllking,constru<;t1ng, using, or vending toothElrs to use, any of the machines, devlces,or inventions Damed or of the follOWing lettel'8' patent, the same being the letters