UNITED STATES
V.
PEARSON.
309
the corporations and persons who are necessary parties to a foreclosure, and whose rights would be affected by the decree, parties to the suit. Upon such a bill the court could determine what property should be sold under the decree, and what liens created subsequently to the mortgage should be extinguished. As has been suggested, the second controversy referred to, presented by the bill, would seem to be properly the subject of another suit in which the American Rapid Telegraph Company should be complainant, and the defendants should be those persons and corporations only who are necessary parties to such a controversy. If the objections thus suggested had been taken as they might have been by demurrer, much expense and delay would have been saved to the parties. As they were not thus taken, and as they have not been taken at all by the defendants, although the bill must be dismissed costs will not be given to the defendants. Brooks v. Byami 2 Story, .553. The dismissal is without prejudice to the complainant to bring such other suit as he may be advised.
UNITED STATES ex ret SEEGER'l1. PEARSON, Postmaster, etc. (Oircuit Oourt, S.
n. N(fU)
York.
June 29, 1887.}
MANDAMUS-JURISDICTION OF CmCUIT COURT-POST-OFFICE.
·
A circuit court of the United States has no jurisdiction to issue's writ of mandamus, as an original proceeding, to compel a postmaster to enter and transmit through the mails 8 certain publication as second, and not 88 third. class matter.
Mandamus. The relator alleges that he is the editor and proprietor of a newspaper periodical called "Medical Classics," and has requested the defendant, who is the postmaster of New York, to enter and transmit through the mails this publication as second-class matter. This request was refused by the defendant, and the publication was charged a higher rate of postage, as third-class matter, because held to be designed as an medium. The relator denies any such purpose. On appeal by the relator to the first assistant postmaster general, this refusal was sustained; and the relator brings this proceeding to compel the defendant, by mandamus, to receive and transmit the publication as second-class TOW'Tisend, Dyett & Einstein, for relator. Stephen A. Walker and Abram J. Rose, for the United States. to entertain this proceeding by mandamus.
I am constrained, by the weight of authority, to decline A long line of decisions of the supreme court has affirmed the broad doctrine that the circuit court. has no jurisdiction to issue a writ of mandamus as an original proceeding, but only as ancillary to some other proceeding or right of which it has jurisdiction.
BROWN, J.
:no'
FEDERAL REPORTER.
Considering that the fourth subdivision of section 629 of the Revised Statutes gives the circuit court express jurisdiction "of all causes arising under the postal laws," (Act March 3, 1845; 5 St. at Large 739,) and that the fourteenth section of the judiciary act(section 716, Rev. St.) authorizes the federal courts to issue such writs whenever "necessary for the exercise of their respective jurisdictions, and agreeable to the uses and principles of law," it might have been inferred, in the absence of authority, that if the relator was entitled to thereHef demanded, according to the general usage and practice of the law, and if a writ of mandamus was the proper remedy for such relief, the writ might have been issued in the exercise of the proper jurisdiction of the court; inasmuch as the cause is one arising exclusively "under the postal laws." Upon repeated examination of the decisions of the supreme court, however, I cannot find myse]£ authorized to treat this question as an open one. In most of the cases in which the question has arisen, the circuit court had undoubted original jurisdiction of the subject-matter of the proceedings, under some one or other of the express provisions of the statutes, quite as clear as. is its authority to determine "all causes arising under the postal laws." Nevertheless, the right to pursue the remedy by means of an original writ of mandamus has been uniformly denied. McIntire v. Wood, 7 Cranch,504; McClung v'. Silliman, 6 Wheat. 598; Bath Co. v. Amy, 13 WaIL 244; Graham v. Norton, 15 Wall. 427 ;Cownty of Greene v. Daniel, 102 U. S.187i. Davenport v. Oounty of Dodge, 105 U. S: 237; Ro-. senbaumv. Board, 28 .lfed. Rep. 223; U. S. v. Smallwood, 1 ChI. Leg. N. 821. . . Without considering, therefore, in what cases, or to what extent, a review of the decision of the postmaster or of the assistant postmaster general, as respects the determination of a question of fact upon which the rating of postal matter depends, is either reviewable at all, or under a proceeding by' mandamus, (see' Garrick v. Lamar, 116 U. S. 423, 6 Sup. Ct. Rep. 424,) lroust dismiss the application upon the ground first stated.
STR..,USS f7. ABRAHAMS.
(Oircuit Court, E. D. 1.
E. D. October 12, 1887. /
ATTACmlENT-GROUND8 OF-BURDEN OF PROOF.
The affidavit for attachment chuged that the defendant bad (1) fraudulently conveyed or assigned his property so as to hinder and delay his credito,si (2) fraudulently concealed. removed, or disposed of his property with thesatne intent; and (8) fraudulently contracted the debt sued for. Held, that proof of all the grounds stated in the affidavit was not necessary to entitle the plaintiff. to a recovery. but that proof of one or more was sufficient. . ' . .
9
. 8.
. Where the attachment is based' upon a charge of fraud on the part of the debtor, the burden of proof upon that question is on the plaintiff. S.AME-:--GBOUNDs of-FluuDULENT INTENT.
A fraudulent intent upon the part of the debtor in attachment, whe.ther in contracting the debt sued for, or in concealing or disposing of· his effects,
