39 F. 230 -

230

FEDERAL REPORTER,

vQl. 39.

it that it does prevent and obstruct the plaintiff from running its steamboats above aud beyond said bridge, to the damage of the plaintiff the sum of $5,000. The defendant moves the court to dis miss the suit for the want of jurisdiction in this court to try and determine the controversy between the parties, upon th'e ground that both the plaintiff and defendant are citizens of tblsstate, and that there is no federal question involved in the suit, as shown by the declaration. Whether there is or is not' such federal question is the only question now to be d,etermined. It is not.controverted that the Sunflower river is one of the navigable water"courses of the United States, and was so used at 'the point where di.ssaid bridge has been built across said river, and for a above said point, and was before the construction of said bridge navIgated by plaintiffs, by their steam-boats, under a license from the "{Jnited States. This right and privilege is certainly derived from the United States; and, for any unlawful obstruction or interference with the right to navigate the said river, this court certainly has the jurisdiction to try and determine the injuries done the plaintiff, and afford the proper remedy, if established as alleged in the declaration. I am satisfied that this court has full jurisdiction of the controversy stated in the pleadings, and that the motion to dismiss the cause must be overruled, and it will be so ordered. '

UNITED STATES V. AMERICAN BELl, TEL.

Co. ct al.

(Oircuit Oourt, D. MassaclLUsctts.

EQUITY-REFERENCE TO EXAMINER.

July 2, 1889.)

On a motion for the appointment of an examiner to take testimony in an equity case, the court will not restrict the testimony to the single issue of fraud which is raised by the plea.

In Equity. Motion to appoint examiner. G. A. Jenks, C. 8. Whitman, and O. A. Galvin, for complainant. C. Smith and B. F. Thurston, for defendants.
COLT, J. The plaintiff moves the court for the appointment of an examiner to take testimony. The Bell also moves for the appointment of an examiner to take testimony upon the issue raised by his plea filed in this case. The defendant company have answered generally to the bill. The defendant Bell has filed a plea and an answer in support of the plea. To the answer of the defendant company and to the plea the plaintiff has filed replications. The cause, therefore, is at issue, and it is proper for the court to appoint an examiner to take testimony. The defendants' motion seeks, in effect, to restrict the testimony by order of court to the single issue of fraud which is raised by the plea. It is certainly unusual, upon a motion made in the ordinary way for the appointment of an examiner, to ask the court by an interlocutory order to

.FI:RS.T NJ\T.BANK tl. ARMSTRo.NG.

·231

limit in advance thesoopeof the testimopy to be taken. It is probable that no appeal would lie from such an order. But, however this may be,. such action on the part o(ihe court seems to be contrary to established equity practice. Objections may be taken to the evidence on the grounds of incompetency or irrelevancy, and these objections propelly come before the court at the final hearing of the cause, but I find no precedent for limiting or restricting the taking of testimony in advance. The court should not Le called upon at this stage of the case to determine what is proper testimony and what is not, nor to determine the scope of the decision of the supreme court upon the demurrer in this case. Upon a motion in the ordinary way for the appointment of an examiner it is not for the court to settle questions which cannot be properly and intelligently passed upon at tbis time. The faet that this is an important, and in some respects an exceptional, case, should not prevent the court from following the usual and ordinary course of equity practice. The defendants' motion is denied and the plaintiff's motion is and Henry L. Hallett is hereby appointed examiner.

FIRST NAT. BASK OF ELKHART V. ARMSTRONG.

(Cij'cuit Court, S. D. Oldo, 1.

w:

D. July 12, 1889.)

BANKS AND BANKING-COLLECTIOl'IS-INSOI,VENCY.

By agreement and custom the Fidelity Bank received drafts from its correspondent bank at E.. and credited them to it as cash, with the understanding that anv draft which was unpaid shonld be charged back to the correspondent. The latter forwarded drafts which were credited to it, but were not collected before the Fidelity Bank failed. The drafts were paid after the appointment of a receiver, and the moneys actually came into his hands. The drafts were indorsed payable to the Fidelity Bank "for collection for the" bank at E . .Held that, as the drafts were, when received, credited as cash to the bank at E., which had the right at once to draw against them, the indorsement for collection did not affect the result, and the bank had only the rights of a general creditor. The Fidelity Bank, when it failed, owed $5,361.40 to the bank at E.. which had collected $1,873.97 on drafts of other banks sent to it by the Fidelity Bank for collection, and had credited the proceeds to the Fidelity Bank. The proceeds were claimed both by the banks which had sent them and by the receiver of tbe Fidelity Bank. Held, that the bank at E. should be allowed to prove up its claim before the receiver for whatever amount it saw fit, and the receiver should be allowed to accept the proof and pay a dividend thereon. without prejudice as to any claim he might have on the proceeds of the drafts collected by the bank at E.

2.

SAME-PROOF OF CLAIM.

In Equity. Agreed statement for instructions in the matter of the FiJ'st National Banks of Eikhart, Ind., against David Armstrong, receiver of the Fidelity National Bank of Cincinnati, Ohio. J. Af. Va.n Pleet1 for complainant.