« 이전계속 »
United States are, of course, controlling, to say nothing of numerous other cases. The fact that the defendants set up a counterclaim in the state court does not seem to be material. So far as is now apparent, the same defense will be available in the circuit court.
The demurrer to the plea in abatement is therefore sustained.
In re ŞAXTON FURNACE CO.
(District Court, E. D. Pennsylvania. March 27, 1905.)
1. BANKRUPTCY-SALE OF PROPERTY DISCHARGED OF LIENS-RIGATS OF BOND
Holders of the bonds of a bankrupt corporation, secured by a mortgage, which gives them the right to use such bonds in the purchase of the property if sold at judicial sale, should not be deprived of such right by an order authorizing the trustee to sell the property free from liens, 80
long as their title to the bonds is unimpeached. 2 SAME-NOTICE OF APPLICATION.
To authorize an order for the sale of a bankrupt's property free of liens, the record should show affirmatively that every creditor whose lien will be discharged has received notice of the application therefor, and a general statement by the referee that such notice has been given is insufficient.
In Bankruptcy. On certificate from referee concerning order to sell, discharged of liens.
Arthur G. Dickson and Beck & Robinson, for trustee.
J. B. McPHERSON, District Judge. I do not see how the proposed order of sale can be supported. The creditors who hold the furnace company's bonds have a right, under the mortgage, to use them in payment of the purchase money if the property shall be sold by a judicial sale, and of this right they should not be deprived if their title is unimpeachable. If the trustee disputes their right to retain the bonds, averring that they have received a preference, it would seem to be his duty to obtain a judicial decision of the question, even at the cost of delay and inconvenience.
Moreover, the record should show affirmatively that every creditor whose lien will be discharged by the sale has received notice of the trustee's application to sell. The referee's general statement that such notice "was given to each and every general creditor and lien creditor" is obviously insufficient. No doubt, this is his opinion, and it may be true, but his record must show the facts by which other persons can verify the correctness of his statement.
If the present is a favorable time for the sale of such property as furnaces and rolling mills, I regret the inevitable postponement, but the defects in the proceedings are fundamental, and can only be cured by the consent of the parties whose rights are involved. But as they must all desire to be paid, and paid speedily, I trust they may see
their way to an agreement that may advance their interests. Otherwise there seems to be no escape from the necessity to determine first of all who are the lawful holders of the bonds.
The order is set aside.
In re GUTTERSON.
(District Court, D. Massachusetts. March 28, 1905.)
1. BANKRUPTS-INTEREST IN ESTATE-SALE.
Where a bankrupt's trustee applied to sell all the interest of the bankrupt in the estate of his father, and the referee found that there was a purchaser who was willing to give a substantial sum for the proposed transfer, and it did not plainly appear that the bankrupt had no right in his father's estate which passed to his trustee, the sale was authorized.
[Ed. Note.--For cases in point, see vol. 6, Cent. Dig. Bankruptcy, 88
356-360.] 2. SAME-OBJECTIONS-TIME.
A bankrupt was not entitled to object to a private sale of his interest in the estate before appraisement, for the first time before the judge, but should raise such objections on an application to the referee for a modification of the original judgment.
LOWELL, District Judge. The bankrupt's father had died testate before the bankruptcy. The trustee filed a petition for leave to sell at public auction or private sale "all the right, title, and interest of said bankrupt in the estate of his father.” The referee granted the petition, and the bankrupt has appealed to me on the ground that the bankrupt had no right in his father's estate which passed to his trustee. For the purpose of this case, I have assumed, without deciding, that the bankrupt is interested in the question presented, and may appeal from the referee's decision.
It is not necessary to determine in this proceeding precisely what right in the estate of the bankrupt's father passed to the trustee in bankruptcy. The trustee desires to sell this right for whatever a purchaser will pay for it, the purchaser taking the chances of the speculation. Thus to sell an uncertain claim nay benefit the bankrupt estate by saving it from the expense of litigation, Doubtless the referee may refuse to order the sale of a speculative claim, where the sale is sought merely to annoy the bankrupt, and where the gain to the bankrupt estate will be merely nominal. In the case at bar, the referee has found that there is a purchaser who will give a substantial sum for the proposed transfer, and a hasty inspection of the will does not satisfy me beyond a doubt that the trustee's claim is unfounded, whether under the will or under intestate succession to property not disposed of thereby. Under these circum
stances, neither the referee nor the judge is called upon to make further study of the will or of the law applicable thereto.
At the argument the bankrupt objected to a private sale and to sale before appraisement. It does not appear that these objections were made to the referee, and they cannot be made for the first time before the judge. If either objection is substantial, the bankrupt should apply to the referee for a modification of the original judgment.
Judgment affirmed, with leave to apply as stated above.
CHASE ELECTRIC CONST, CO. V. COLUMBIA CONST. CO. et al.
(Circuit Court, E. D. Pennsylvania. April 8, 1905.)
No. 51. EQUITY-AMENDMENT OF BILL-AFFIDAVIT.
Under equity rule 28, entitling plaintiff to amend the bill, as matter of course, before answer, plea, or demurrer filed, the amendment need not be supported by affidavit.
In Equity. Overruling motion to strike amendment from record.
HOLLAND, District Judge. Before the defendant in this case had filed any answer, plea, or demurrer, the plaintiff, in a material matter, amended its bill, but before any costs had been occasioned to defendant. There was no affidavit attached to the amendment, and for this reason a motion was made to strike it from the record. Under equity rule 28, the plaintiff was entitled to amend, as a matter of course, before answer, plea, or demurrer filed, and it was not necessary that the amendment proposed should be supported by affidavit. It has not been the practice here to require bills in equity, or the amendments thereto, to be supported by affidavit, when neither is to be used as evidence upon an application for a provisional injunction or in any other way, and this seems to be so in the other districts. In the case of Hughes v. Northern Pacific Railway Co. (C. C.) 18 Fed. 110, the court said:
"The objection that the bill is not verified is immaterial. A bill in equity is not required to be sworn to unless it is sought to be used as evidence upon an application for a provisional injunction or the like."
The practice when an affidavit will be required in support of a bill in equity, or amendments thereto, is set forth in Foster's Federal Practice (3d Ed.) § 87. And in cases where an affidavit is required there seems to be no imperative rule requiring the verification at the time it is signed, even where an injunction is prayed for Black v. Allen Co. (C. C.) 42 Fed. 622, 9 L. R. A. 433.
Motion to strike off amendment is overruled, and the defendant required to answer within 10 days from this date.
BROWN V. NEW YORK, N. A. & A. R. CO.
(Circuit Court, D. Vermont. March 11, 1905.) WBONGFUL DEATH-ACTION FOR DAMAGES-SUFFICIENCY OF DECLARATION.
In a suit in the federal court in Vermont for wrongful death occurring in Connecticut, based on the statute of that state, which requires notice of the claim to be given within four months, the declaration is not demurrable because it fails to allege the giving of such notice, since, while such allegation is required by the Connecticut practice, it is not by that of Vermont, by which the court is governed.
At Law. On demurrer to declaration.
WHEELER, District Judge. This suit was brought in a state court for an injury to the intestate in Connecticut, while employed by the defendant, resulting in death. The defendant removed it to this court, and has demurred to the declaration, and set down specially the want of allegation of notice within four months, under the Connecticut statutes. According to Peck v. Fair Haven & W. Railroad Co., 77 Conn. 161, 58 Atl. 757, the want of such allegation may by the practice there be taken advantage of by demurrer in this manner. But by the statutes of the United States (Rev. St. § 914 [U. S. Comp. St. 1901, p. 684]) the forms and modes of procedure in the United States courts must conform to those of the state in which the court sits. Such a notice by similar language is required to be given in highway cases in this state (V. S. 3492); but in the procedure of the state courts it need not be alleged. Kent v. Lincoln, 32 Vt. 591; Matthie v. Barton, 40 Vt. 286. Therefore in the state court where this suit was brought, and in this court to which it has been removed, the allegation of notice is not necessary, and the want of it is not a good cause of demurrer.
The want of domicile of the intestate in Vermont is suggested in argument; but letters of administration from a proper probate court appear, which are prima facie sufficient.
It is also suggested that, as the injury was received by the intestate in the employment of the defendant about running trains, it must have been caused by the negligence of a fellow servant of the intestate, for which the defendant would not be liable. But the declaration alleges that the injury was done by the defendant itself, which implies a competent agency, however it may turn out to be on the proof.
As the case now stands upon the demurrer, which admits everything well pleaded, the declaration must be adjudged sufficient.
HILLS & CO., Limited, v. HOOVER et al.
(Circuit Court, E. D. Pennsylvania. March 30, 1905.)
Pictures printed in successive colors from metal plates from which parts have been cut out so as to leave portions of the print in relief are entitled to copyright as "prints," under the general enumeration of Rev. St. $ 4956 [U. S. Comp. St. 1901, p. 3407), and are not within the proviso requiring chromos or lithographs to be printed from "drawings on stone made within the limits of the United States, or from transfers made therefroin,” to be entitled to copyright.
[Ed. Note.—Matter subject to copyright, see note to Cleland v. Thayer,
58 C. C. A. 273.) 2. SAME_COPYRIGHT NOTICE.
A notice of copyright on a picture, reading: "Copyright 1902. Published by Hills & Co., Ltd., London, England"—is sufficient. In Equity. Suit for infringement of copyright. On final hearing.
J. Martin Rommel, Benno Loewy, and Hector T. Fenton, for complainant.
W. Horace Hepburn, for respondent.
HOLLAND, District Judge. I am not convinced from the evidence in this case that the copies from which defendants had their alleged infringing copies made contained the word "published” in the notice of the plaintiff's copyright; but, even if the notice did contain the word "published,” the defendants were not misled or deceived. It was a deliberate act on their part to copy the plaintiff's paintings, and they did it with ample and legal notice of the fact that the paintings were copyrighted by the plaintiff,
For the reasons given in the case of Hills & Co., Limited, v. Austrich (C. C.) 120 Fed. 862, a perpetual injunction and an accounting will be awarded, as prayed for.
Let a decree be drawn accordingly.
UNITED STATES v. LEE WING. SAME v. LOUIE YOU. SAME V. LOUIE
SAME v. LEE WON JEONG.
Nos. 4,770, 4,771, 4,775-4,778, 4,781, 4,782.
Chinese testimony to the effect that defendants, arrested for deportation, were born in the United States, or that they are merchants, is sufficiently corroborated by the testiniony of credible white witnesses, in the one case, that they have seen and known defendants since they were