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defendant about cartons. Defendant furnished new ones, and also disposed of a large part of the stock on hand of the Terraline Company cartons. In October, 1898, and in the spring of 1899, defendant sold the balance of the old stock of Terraline cartons to said Glyza Chemical Company and has never sold any to any other parties. Complainant brought suit in the Supreme Court of the District of Columbia against said Glyza Chemical Company for infringement of its trade rights in Terraline. A restraining order was obtained against the Glyza Company, but was later discharged, and an application for preliminary injunction was twice denied, and the litigation at last terminated in a so-called "stipulation and decree," filed March 21, 1901, which sets forth, inter alia, "that the said cause shall not be further proceeded with" unless defendants should do something wrong thereafter, and "that no claim of any kind shall be made against the customers of the defendants, or any of them, because of the purchase from them, or any of them, of any Terraline prior to the date of this stipulation," and that a decree shall be entered adjudging that "from and after this date" the complainant, the said Hillside Chemical Compais entitled to the exclusive use of the trade-mark "Terraline," which decree was on that day accordingly entered. A sample exhibit of the boxes complained of carries on its front these words, "Prepared only by the Terraline Company, Washington, D. C." The balance of the old stock sold to complainant by defendant had the same inscription on its front, but carried on its back the statement that it was put out by complainants as successors to the Terraline Company.
The proofs satisfy me that the defendant was careless, and perhaps indifferent, in its dealings with the complainant and the Glyza Company in 1898 and 1899. If the litigation with the Glyza Company had resulted in a complete victory for the complainant, it would hardly do for defendant to say, "You people were fighting about your respective rights. I could stand neutral, and furnish you both with ammunition to carry on the business end of your warfare." It was defendant's duty to examine into the matter more closely.
The stipulation and decree in the Washington suit, however, puts a different face upon the matter. Defendant has sold the alleged infringing cartons to no party except the Glyza Company. Its wrong, then, consists in having furnished in 1898 and 1899 the sinews of war to the great infringer. On March 21, 1901, the present complainant forgave the principal wrongdoer all its sins up to date, and promised not to follow up those whom it had made co-sinners by placing in their hands the offending bottles and boxes. It would be highly inequitable now to pursue one who had helped the principal sinner in its wrongdoing. Technically, and following the very letter of the stipulation and decree, it is possible to argue that this is not a case in which one of two joint feasors has been released, but when we study the matter in the spirit which always animates a court of equity we find that the result arrived at is the same.
This situation is so strongly marked that it seems superfluous to discuss whether or not the complainant's hands are clean.
Let the bill be dismissed, with costs.
HATCH v. CURTIN.
(Circuit Court, D. Massachusetts. April 23, 1906.)
1. COURTS-JURISDICTION OF CIRCUIT COURT-REVIEW OF PROCEEDINGS OF DISTRICT COURT IN BANKRUPTCY.
A Circuit Court of the United States is without jurisdiction of a suit which seeks to review a judgment of a District Court in bankruptcy, to recover money in the hands of a trustee in bankruptcy and to enjoin him from paying the same out in dividends in obedience to the order of the District Court even though it is alleged that such judgment was rendered coram non judice.
[Ed. Note.-Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]
2. SAME-SUIT AGAINST TRUSTEE.
The jurisdiction of a Circuit Court of a suit by an adverse claimant of property against a trustee in bankruptcy is expressly excluded by Bankr. Act July 1, 1898, c. 541, § 23a, 30 Stat. 552 [U. S. Comp. St. 1901, p. 3431], where it would not have had jurisdiction if the suit had been against the bankrupt.
Harold Williams, for complainant.
Robert K. Dickerman, for defendant.
LOWELL, Circuit Judge. This is a bill in equity brought by the trustee under the will of Luther P. Tucker against the trustee in bankruptcy of Frederick M. and Tracy H. Tucker, a partnership under the name of F. M. Tucker & Co.
The bill sets out a provision in the will of Luther P. Tucker, which directs the bankrupts, as his executors, to hold in trust a part of his estate, paying the income thereof to Marion E. Tucker, granddaughter of Luther, with other provisions to take effect at her death. It alleges that the bankrupts acted as Luther's executors, but were never appointed trustees under his will; that they set aside, held, and dealt with certain specific property which was in their hands as executors, and assumed to hold the same as trustees for Marion; that they wrongfully appropriated a part of the trust property by lending certain specific stocks and bonds to Frederick; that, to secure this loan, Frederick assigned his seat in the stock exchange to both the bankrupts as trustees for Marion; that Tracy, as trustee, demanded from Frederick a return of the securities lent as aforesaid; that Frederick said he was unable to return them or pay therefor; that the bankrupts thereupon took the stock exchange seat in payment of the loan, whereby the stock exchange seat became the property of the bankrupts as trustees for Marion; that thereafter Frederick and Tracy were adjudicated bankrupts, and the defendant was appointed their trustee in bankruptcy; that the defendant filed a petition before the referee for leave to sell the stock exchange seat; that the bankrupts objected to the sale; that the referee ordered the seat to be sold, although, as the bill alleges, the stock exchange seat was not in the possession of the trustee, but in the possession of the bankrupts holding as trustee for
Marion; that the District Court affirmed the judgment of the referee, and the seat was sold; that the bankrupts, assuming to act as trustees for Marion, but without authority to act on her behalf, thereafter filed a petition before the referee, asking for an accounting to determine the rights of Marion in the stock exchange seat; that, upon this petition, the referee decided that neither Marion, nor Frederick and Tracy as trustees, had any right in the seat, which judgment was affirmed by the District Court; that Marion was not represented at any of the proceedings aforesaid; that thereafter the Supreme Court of Massachusetts appointed the complainant trustee for Marion under the will of Luther; that the complainant, as such trustee, filed a petition in the District Court for leave to intervene in order to contest the jurisdiction of the District Court as to the petition for an accounting; that his petition to intervene was denied; that the referee ordered a dividend upon the bankrupt estate; that the complainant believes that there are not funds in the defendant's hands outside the proceeds of the stock exchange seat sufficient to pay the dividend; that the defendant now holds the proceeds of the stock exchange seat intending to use them for the payment of the dividend; wherefore the bill prays that the defendant may account to the complainant for the proceeds of the seat, and that he may be enjoined from paying out any of the proceeds in dividends, or from seeking any order declaring a dividend payable out of the said proceeds. The defendant has moved to dismiss the bill for want of jurisdiction.
In effect, the bill seeks to review a judgment of the District Court, alleging that it was rendered coram non judice. The review sought is to be effectuated by taking property from an officer of that court, a trustee in bankruptcy, and by enjoining him from obeying the order of that court issued in due form.
If the District Court exceeds its jurisdiction in bankruptcy, its action may be controlled by the Supreme Court on appeal, or by the Circuit Court of Appeals through its authority "to revise in matter of law the proceedings of the several inferior courts of bankruptcy within their [its] jurisdiction." The Circuit Court is without jurisdiction to review the proceedings of other federal courts like those of bankruptcy and admiralty, even if these proceedings are alleged to be coram non judice. No such jurisdiction is given to this court by statute, and jurisdiction is expressly excluded in a case like this by clause "a" of section 23 of the bankrupt act, which reads as follows: "The United States circuit courts shall have jurisdiction of all controversies at law and in equity, as distinguished from proceedings in bankruptcy, between trustees as such and adverse claimants concerning the property acquired or claimed by the trustees, in the same manner and to the same extent only as though bankruptcy proceedings had not been instituted and such controversies had been between the bankrupts and such adverse claimants." Act July 1, 1898, c. 541, 30 Stat. 552 [U. S. Comp. St. 1901, p. 3431].
For the history of this section, see In re Hammond (D. C.) 98 Fed. 845, 848. The complainant could not have sued the bankrupt in this court to recover the stock exchange seat or its proceeds. Furthermore, even a state court, which has general jurisdiction of suits to recover property, cannot take property from the possession of a
court of bankruptcy. White v. Schloerb, 178 U. S. 542, 20 Sup. Ct. 1007, 44 L. Ed. 1183; In re Spitzer, 130 Fed. 879, 66 C. C. A. 35; Treat v. Wooden (C. C.) 138 Fed. 934.
As this court is without jurisdiction, the bill will be dismissed, without costs.
UNITED STATES v. HART.
(District Court, N. D. Illinois, E. D.)
ARMY AND NAVY-OFFENSES-PLEDGING CLOTHING AND ACCOUTERMENTS OF SOLDIERS.
The seventeenth article of war (Act July 27, 1892, c. 272, § 1, 27 Stat. 277 [U. S. Comp. St. 1901, p. 947]), provides that any soldier who sells, or through neglect loses or spoils, his horse, arms, clothing, or accouterments shall be punished as a court-martial shall adjudge. Rev. St. § 3748 [U. S. Comp. St. 1901, p. 2527], declares that clothes, arms, military outfits, and accouterments furnished by the United States to any soldier shall not be sold, bartered, exchanged, pledged, loaned, or given away, and that no person not a soldier or duly authorized officer of the United States who has possession of any such clothes, etc., shall have any right, title, or interest therein, but the same may be seized and taken wherever found. Held, that clothing issued to soldiers while in the military service remained the property of the United States, within section 5438 [U. S Comp. St. 1901, p. 3674], providing that every person who knowingly purchases or receives in pledge from any soldier any clothes, equipment, or other public property, which the person selling or pledging the same has no right to sell, shall be imprisoned, etc.
C. B. Morrison, U. S. Atty.
Thomas E. Milchrist, for defendant.
BETHEA, District Judge. This is an indictment for violation of the provisions of section 5438, Rev. St. [U. S. Comp. St. 1901, p. 3674]. The part of the section under which the indictment is drawn is as follows:
66* ** Every person who knowingly purchases or receives in pledge for any obligation or indebtedness from any soldier, officer, sailor, or other person called into or employed in the military or naval service any arms, equipments, ammunition, clothes, military stores, or other public property, such soldier, sailor, officer, or other person not having the lawful right to pledge or sell the same, every person so offending in any of the matters set forth in this section shall be imprisoned at hard labor for not less than one nor more than five years, or fined not less than one thousand nor more than five thousand dollars."
It appears that Edward Hart, the defendant, on a number of different occasions at his place of business in Highwood, Ill., purchased and received in pledge from soldiers employed in the military service of the United States at Ft. Sheridan certain articles of clothing, consisting of fur caps, fur gauntlets, capes, and coats, which articles had been previously issued to them as soldiers by the United States. On motion to take from the jury, the question arose as to whether certain articles of clothing, namely, caps, gloves, shoes, and coats, which had been issued to soldiers in the service of the United States, and by them sold
and pledged to the defendant, are public property, under section 5438 of the Revised Statutes. Clothing is issued to soldiers by the United States for use by them in the capacity of soldiers. The government determines the character, quality, and quantity of clothing to be issued to the soldiers, and when the clothing is issued, although it is charged against the soldiers on their clothing account, they receive but a qualified interest therein. The seventeenth article of war (Act July 27, 1892, c. 272, § 1, 27 Stat. 277 [U. S. Comp. St. 1901, p. 947]) provides that any soldier who sells, or through neglect loses or spoils, his horse, arms, clothing, or accouterments shall be punished as a courtmartial may adjudge. Section 3748 of the Revised Statutes [U. S. Comp. St. 1901, p. 2527] provides that clothes, arms, military outfits, and accouterments furnished by the United States to any soldier shall not be sold, bartered, exchanged, pledged, loaned, or given away, and that no person not a soldier, or duly authorized officer of the United States, who has possession of any such clothes, arms, military outfits, or accouterments, so furnished, shall have any right, title, or interest therein, but the same may be seized and taken wherever found. These sections of the Revised Statutes indicate that the title to clothing issued to soldiers remains in the United States; therefore, I hold that in this case the articles of clothing which were issued to the soldiers at Ft. Sheridan while they were employed in the military service of the United States were public property, under section 5438. Motion to take from the jury overruled.
Jury instructed to return verdict of guilty.
BRINCKERHOFF v. HOLLAND TRUST CO. et al.
(Circuit Court, S. D. New York. April 18, 1906.)
Where a petitioner for leave to intervene alleges rights in the subjectmatter of the suit which make him a proper party, and his intervention will not prejudice the rights of other parties, but rather tend to facilitate the final determination of the rights of all of the parties, his petition will be granted, and the court will not undertake on such preliminary application to decide questions of right which may be doubtful.
[Ed. Note.-For cases in point, see vol. 19, Cent. Dig. Equity, §§ 275279.]
On Petition for Leave to Intervene.
Geo. H. Yeomans and Arthur H. Masten, for the motion.
COXE, Circuit Judge. The petitioner, R. B. Roosevelt moves to intervene in this action and asks permission to file his petition as a cross-bill. Upon the argument, and in the briefs subsequently submitted, the discussion has taken an exceedingly wide range including many of the questions which must be determined at the trial of the suit. It is unnecessary to decide these questions upon this motion and it might be prejudicial to the rights of the parties to do so. The