HERDSMAN V. LEWIS.
853
over demands Of the firm; nor will such mortgage be set aside for that reason by a court of equity, unless, perhaps, when created in contemplation of insolvency, to give an improper preference.. Nat. Bank of Metropolis v. Sprague, 20 N. J. Eq. 13. See, also, Waterman v. Hunt, 2 R. I. 298. If a partllership may thus execute a valid mortgage, to secure the individual debt of one partner, much more may it legally encumber its real estate, by mortgage, to secure ajirm debt, as in Lancaster Bank v. Myley, 13 Pa. St. 544, cited in the prin" cipal case. And, as stated by the learned judge who delivered the opinion in the principal case, if the partners may encumber their real estate by mortgage. no reason is seen, there being no unlawful preference created, why they may not resort to any other lawful method of creating a lien upon such property. No case has been found upon the precise question involved in the principal case, but, upon principle, its cOlTectness seems beyond question. Union College of Law of Chicago, January 18,1882. MARSIIALL D. EWELL.
HERDSMAN
and others v.
LEWIS
and· others.
(Circuit Court, E. D. Dew York. January 30, 1882.) 1. EQUITy-IsSUES OF FACT.
Neither party to a suit in equity brought in a federal court has an absolute right to have a question of fact arising in the cause passed on by a jury.
On a Motion to Award Feigned Issues. H. P. Herdsman, for complainants. Blatchford, Seward and Griswold et De Costa, for defendants. D. J. This is a motion in an equity cause for the trial before a jury upon feigned issues of certain questions of fact raised by the pleadings. It appears by the papers that no testimony whatever has yet ,been taken in the cause, and that the decision may turn upon the. question of fact, whether certain instruments described in the bill, and against which the plaintiffs sEJek relief, were procured by fraud and duress. While it is not doubted that a court of the United States, sitting in equity, may in a proper case direct questions of fact arising in an equity cause to be passed on by a jury, neither party has an absolute right to such a trial. Whether a jury trial be in any case necessary or desirable depends upon the facts of the case. In this case I see no necessity at this time for such a proceeding. Feigned issues are awarded, it is said, "in order to relieve and ease the conscience of the court," but here the necessity of such relief does not as yet appear. The surmise that the testimony, when taken before
854
FEDERAL REPORTER.
an examiner, will prove conflicting and uncertain, affords no foundation for present action by the court. Another of the reasons assigned for granting feigned issues, viz., because "the court is so sensible of the deficiency of trial by written evidence," (2 Daniell, Ch. Pro 631,) also fails in this case, for it is quite apparent that on a jury trial the testimony would be for the most part in writing, owing to the circumstance that the transaction in question occurred in Texas. For these reasons the motion to award feigned issues in the cal() at this time is denied.
WOOSTER v. CLARK and others. (Oircuit Oourt, S. D. New York. August 29, I. TEsTIMONy-RULE
69.
Equity rule 69 is imperative that no testimony taken after time shall he allowed to be read at the hearing.
On Motion to Strike out Testimony. BLATCHFORD, C. J. The motion to strike out the testimony taken on the part of the defendants must be granted. Rule 69 is imperative, that no testimony taken after time shall be allowed to be read at the hearing. The plaintiff duly objected on the record to the taking of what was taken, on the ground that it was taken after time, and such objection has never been waived. Moreover, the defendants, after that, specially moved for time to take proofs, and the motion was denied. The proof of the sale of a binder is sufficient. It is plain that it infringes claims 2, 4, and 5. The granting of the reissue to the plaintiff is sufficient proof of his title to sue. There must be a decree for the plaintiff.
