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trust fund that the Florence Machine Com- of an interest in the property held in trust . pany could make an equitable attachment? | by them. Thayer v. Daniels, 113 Mass. 129, Did § 5057 render it necessary for the as- and cases there cited. See also Putnam v. signees to intervene and contest the attach-Story, 132 Mass. 205; Butterfield v. Reed, ment within two years? If not within two 160 Mass. 362, 35 N. E. 1128. By virtue of years, then within a reasonable time? Was the assignment in bankruptcy, the complete the machine company, in November, 1881, ownership in this incorporeal interest in barred by $ 5057 from bringing the attach- this personal property became vested in the ment suit?

assignees, and the ownership drew after it Section 5044 of the Revised Statutes repossession, so far as the interest here in quired the register in bankruptcy to trans- question (an incorporeal interest, because fer by instruments under his hand all of the an interest in remainder) is capable of posestate of the bankrupt. The assignment re- session. This result is not affected by the lated back to the commencement of the pro-fact that the assignees were for a time ig. ceedings, and operated to vest the title in norant of the existence of this property of the assignee. Section 5046, in most com- the bankrupt. This ownership and possesprehensive terms, vested in the assignees all sion in the assignees has continued ever rights in equity and choses in action which since, and all persons are barred by U. S. the bankrupt had, and 5047, all of his Rev. Stat. § 5057, from controverting it. remedies. Section 5057 reads as follows: The contention that one in possession of

"No suit, either at law or in equity, shall property is barred from exercising the rights. be maintainable in any court between an which that ownership confers on the owner, assignee in bankruptcy and a person claim- by not having brought an action, is grounding any adverse interest touching any prop-less. Under these circumstances we have erty or rights of property transferable to not found it necessary to choose between or vested in such assignee, unless brought the opinion in Dushane v. Beall, supra, and within two years from the time when the the decision in Rock v. Den nett, supra.” cause of action accrued for or against such The cases referred to are antagonistic in assignee.”

their construction of $ 5057. In Rock v. Under these provisions the contention of Dennett, it was held that the limitations ex. plaintiff in error is, that, notwithstanding pressed by that section applied to adverse the bankruptcy and the broad language of claims arising after the assignment in rethe sections referred to, Sweetser had an in-spect to property vested in the assignee. terest in the trust fund that could be as- In Dushane v. Beall the court said: “That signed or attached, and in such way a title limitation [8 5057] is applicable only to could be acquired good against all the world suits growing out of disputes in respect of except the assignees, and good against the property and of rights of property of the assignees by their inaction within the time bankrupt which came to the hands of the prescribed by $ 5057 or by their abandon- assignee to which adverse claims existed ment. Applying this principle plaintiff in while in the hands of the bankrupt, and beerror contends that “three years having fore assignment.” elapsed without anything having been done Plaintiff in error contends for the conby the assignees in the way of disposing struction expressed in Rock v. Dennett of this equitable asset, the bankrupt, in against that expressed in Dushane v. Beall, November, 1881, had such an amount of title and insists that the latter case does not that he could have brought a suit against overrule prior cases upon which Rock v. the trustees under the will to obtain his Dennett was based. We will not stop to share, assuming that the contingency had reconcile Dushane v. Beall with prior cases. then happened upon which the right to a | It is a later utterance by this court, and distribution depended.” And that Sweetser, disposes of the contention of plaintiff in having such title, it followed, it is con- error based on § 5057. tended, that the Florence Machine Company, The supreme judicial court also found a subsequent creditor, could make an equita- adversely to plaintiff in error's contention ble attachment and make it incumbent upon that the assignees had abandoned the propthe assignees to assert their rights within erty. The court said: "The only other contwo years, in accordance with § 5057. The tention made by the defendant, Hammond, supreme judicial court met this contention is equally groundless; to wit, that the asby the effect of the local law. The court signees abandoned this property. The consaid:

tention is put on the ground that they did “The title of the assignees in bankruptcy not sell their interest in remainder in this became complete on the assignment to them fund. Were that all that appeared the arguof this interest in remainder. In this com- ment would be without merit. But that is monwealth notice to the trustees is not nec-not all.” And, referring to the suit brought essary to complete the title of an assigneel by the assignees in the district court in 1882,

V.

said further: "This bill apparently was plaintiff in error and the Southern Railway brought by the assignees as soon as they Company, for damages alleged to have been learned of the existence of the fund and of received by the defendant in error to certhe fact that creditors of Elbridge were tain car loads of corn shipped over the seeking to reach and apply this interest Southern Railway Company from certain of Elbridge in satisfaction of the debt due points in Tennessee, to be delivered to defrom him to them. The bringing of this fendant in error or its order at Birmingham, bill (which seems to have been a bill in the Alabama. nature of a bill quia timet) disposes of the The bill alleged that at the time of the contention that it was in fact the intention shipments the two railway companies were of the assignees to abandon this property.” common carriers of goods and chattels, the

We think that the record sustains the con- Southern Railway being the receiving and clusion of the court.

initial carrier, and the one with which the These views dispose of all the questions contracts were made, and the plaintiff in in the case.

error being the connecting and ultimate carDecree asfirmed.

rier, and, as such, bound by said contracts and the law relative to common carriers to receive said cars of corn, and to forward

and deliver them to destination whereunto LOUISVILLE & NASHVILLE RAILROAD consigned, in good order and in a reasonCOMPANY, Piff. in Err.,

able time. It was alleged that one of said

companies "breached the said several conSMITH, HUGGINS, & COMPANY.

tracts," whereby the damage complained of

accrued. Error to state court-Federal question-how raised.

The companies filed separate answers. 1. A carrier's denial that "it was bound That of the Southern Railway Company we

. by law,” as alleged by complainant, to re- need not set out. Plaintiff in error, in its ceive, as a connecting and ultimate carrier, answer, neither admitted nor denied certain a certain interstate shipment and forward of the allegations of the bill, and expressed and deliver it to its ultimate destination. want of knowledge as to others. Touching does not amount to tue assertion of a right the allegation of the bill, that it was under the act to regulate commerce, so as common carrier, it admitted that it was to sustain a writ of error from the Supreme such in certain states and portions of the Court of the United States to review a judgment of a state court adverse to such country where it operated lines of roads, contention.

but denied "that it was the connecting and Error to state court-Federal question-ef- ultimate carrier of the car loads of corn fect of certificate of state court.

alleged to have been delivered to the South2. The certificate of the chief justice ofern Railway Company," denied that it made the highest court of a state cannot help out the contracts or was liable under them, or the total failure of the record to show that “that it was bound by law to receive said a Federal question was raised which would alleged car loads of corn and forward and sustain a writ of error from the Supreme deliver them to their ultimate destination Court of the United States. *

in good order and in reasonable time." [No. 198.]

The chancellor adjudged that there was

no liability on the part of plaintiff in error, Argued and submitted January 31, 1907. and dismissed the bill as to it. He held Decided February 25, 1907.

the Southern Railway Company liable for N ERROR to the Supreme Court of the tracts, within a reasonable time, and, after

not delivering the cars, according to its con: State of Tennessee to review a decree report by a master, to whom the cause was which affirmed a decree of the Chancery referred, decreed that complainant have and Court of Appeals of that state, reversing recover the sum of $1,015.69.. The case was the decree of the Chancery Court for the taken to the court of chancery appeals, both County of Jefferson, and adjudging that aby defendant in error and the Southern railway company was liable as a connect- Railway Company. And that court ading and ultimate carrier for failure to re-judged that the court of chancery erred (1) ceive an interstate shipment and forward in adjudging that the Southern Railway and deliver it to its ultimate destination. Company was liable for any part of the Dismissed for want of jurisdiction.

damages to the corn which accrued after its

arrival upon the delivery tracks of the comStatement by Mr. Justice McKenna: pany in Birmingham, and after notice to

This suit was brought in the chancery the consignees of its arrival; (2) in adjudgcourt for the county of Jefferson, state of ing that plaintiff in error was not liable Tennessee, by defendant in error against the for the damages suffered by the corn after

IN

*Ed. Note. For cases in point, see vol. 13, Cent. Dig. Courts, § 1088.

27 S. C.-26.

its' arrival in Birmingham and while it was ness; in rendering judgment against it bein the yards prior to being unloaded. The cause it would not turn over its private court said:

switch yards and terminals to a competing “This court is of the opinion that the road, and because of its refusal to make a Southern Railway Company is only liable through routing with the Southern Railway for such portion of the damages as accrued Company; in holding that it was its duty by reason of the delay in transition of the to switch cars for other roads within its tercars shipped, which is fixed by the concur- minals to the exclusion of its own business, rent finding of the master and chancellor the effect being to cause an obstruction to at 40 per cent of the entire damages. interstate commerce and an interference

"This court is further of the opinion and with the paramount duties to which it was decrees that the Louisville & Nashville Rail subjected by the Constitution and laws of road Company is liable for 60 per cent of the United States. the damages reported by the master, being Other facts will appear in the opinion. the per cent of damages which accrued while the corn remained undelivered in the yards Messrs. James B. Wright and John H. at Birmingham."

Frantz for plaintiff in error. It was accordingly adjudged and decreed Mr. C. T. Rankin for defendant in error. that the complainant recover of the Southern Railway Company $415.84, and of the Mr. Justice McKenna delivered the opinLouisville & Nashville Railroad Company ion of the court: $609.42, being 60 per cent of the recovery

A motion is made to dismiss the writ of awarded by the chancellor, together with error, on the ground that no Federal quesinterest from May 8, 1905, making a total tion was raised in the state courts or deof $623.73. The plaintiff in error took an cided by them. In opposition to the motion appeal to the supreme court of the state. plaintiff in error contends that the allegaIt assigned as error the action of the court tions of the bill and its denial thereof sufof chancery appeals (1) "In refusing to find ficiently raise a Federal question, and that certain uncontradicted facts when specially the courts of the state, in rendering judgrequested to so find.” The facts were set ment against plaintiff in error, necessarily out. (2) That the court erred in holding decided that question. And it is further the company liable for any portion of the contended that, even if those courts did not alleged damage “because, under the facts of pass on the Federal question, their failure the case, it was not a connecting carrier, or refusal to do so is equivalent to a deand was not bound to handle these ship- cision against the Federal rights involved. ments.” The other errors assigned we are

A number of cases are cited to sustain these not concerned with. The decree of the chan- propositions. But is the basis of the propcery court of appeals was affirmed without ositions sound? In other words, was a an opinion by the supreme court. The or- Federal question raised, or, if raised, igder of affirmance recites that the cause came nored ? First, as to the pleadings. The "on to be heard upon the transcript of the bill charges a breach of the contracts of record from the chancery court of Jefferson shipment by one or the other of the railway county, the opinion and findings of fact of companies who, the bill alleges, were conthe court of chancery appeals, and the as- necting common carriers, and, as such,

nment of errors filed to the decree of said bound by the contracts and the law relative court of chancery appeals by the defendant, to common carriers to receive and forward Louisville & Nashville Railroad Company, to destination the goods shipped, in good and the reply brief of complainants.”

order and in a reasonable time. Plaintiff The assignments of error in this court in error admitted that it was a common are to the effect that the supreme court carrier in some states, but was not a conerred in not giving full force and effect to necting and ultimate carrier of the corn in the interstate commerce act, which, it is question, denied that it was bound by the contended, governed the shipments, and in contracts, and denied that "it was bound by not disregarding the statutes and decisions law” to receive the corn and forward and of the state in conflict therewith, and in deliver it to its ultimate destination. And denying the rights claimed by plaintiff in this denial, it is insisted, raised a Federal error under the interstate commerce act. question.

act. question. We do not think so.

We do not think so. The denial And that the court erred in holding that it was of a legal conclusion resulting from the was the duty of plaintiff in error to switch facts alleged, and added nothing to them. over its yards and terminals cars tendered Besides, if a party relies upon a Federal to it by the Southern Railway Company; in right, he must specially set it up, and a holding that it did not have the right to denial of liability under the law is not a discriminate as to freight arriving on its compliance with that requirement. For this own lines, or could not prefer its own busi- we need not cite cases.

Was a Federal question decided orig. I give preference between those that it chose nored? To answer the question a review to serve in this business.” of the proceedings is necessary. The chan- The court decided against the contention, cery court held that, as between the com- and that the company, by reason of its plainant and plaintiff in error, there was practice in handling freight, "assumed with no liability upon the part of the latter. The respect thereto the character of a common rights of the railway companies, between carrier, and hence incurred the duties and themselves, the court said, need not be de- liabilities of such character.” The court termined. The opinion and findings of the added: chancery court of appeals are very elab- “The result is that we are of opinion that orate. They state the issue, the proceed the Louisville & Nashville Railway Comings in and the judgment of the chancery pany was bound, by virtue of its previous court, and recite that

course of business, to accept these cars of “Now, it appears that the Louisville & corn and deliver them to their destination Nashville Railway denies any liability for on its terminal or spur tracks, and that, its refusal to receive corn shipped over the by reason of its failure to do so, it is liaSouthern Railway after its arrival at Bir- ble for all damages resulting from its failmingham and deliver it over its terminal ure, tracks to the American Mill & Elevator There was a petition for an additional Company, to whom the corn had been sold. finding of fact and a rehearing, which the

“Of course, this denial is predicated upon court said would take in the neighborhood the idea that it was not a connecting car- of one hundred pages of typewritten inforrier in handling the shipments of corn in- mation to set out and answer in the form volved in this case, or that it was under any in which they were presented. Some, howobligation respecting the same.”

ever, were granted; some qualified. We Passing on these denials the court said give only those which we think are relevant. that at the time of the shipments the South- The fifteenth request was that the court set ern Railway Company was placing ship out in full from the evidence, which was, ments, as they were requested, upon the it was said, uncontradicted, the conditions spur track of plaintiff in error, and that which caused the embargo to be laid by the latter was accustomed to receive them plaintiff in error against switching. The and remove them to places where they were evidence was set out. The court, answering to be delivered; and this was its custom for the request, said: years, and, until about the time or just “The simple fact in connection with this before the corn reached Birmingham, "it matter is that the Louisville & Nashville was a part of its business and a daily oc- Railroad Company declined to receive these currence to receive and remove such cars cars of corn and deliver them to their desof freight.” And this was done for all per- tination on their spur or side tracks, because sons offering them and without discrimina- it deemed it to its advantage to use its said tion. For this service it received compen- tracks for and in its own special business." sation. The court, however, also found that The twenty-fifth request was “that the plaintiff in error “placed an embargo upon terminals and equipment of the Louisville the receipt or handling of such cars, No- & Nashville Railroad Company at that time vember 13, 1902, after the complainant had were sufficient under ordinary circumstances contracted to sell the car loads of corn, and and conditions.” In granting this request after most of them were shipped."

the court remarked: The contention of the Louisville & Nash- “The twenty-fifth request is granted, with ville Railroad Company, the court stated as the statement that, in our opinion, based follows:

upon the evidence as we construe it, the “The contention of the Louisville & Nash Louisville & Nashville Railroad Company ville Railroad Company, reduced to its sim- could have handled this corn and delivered plest statement, is that it was not bound it to its destination much sooner than it to receive these cars of corn and place them. did had it not preferred other business, and

“This insistence on its part rests upon the even with that business, with the energetic proposition that, in the matter of handling appliance of all the means and facilities at the cars of other roads in its yards or over its command.” its spur tracks, it was not a common car- It will be seen from this statement of the rier, but simply a private carrier, and that, case that there is not a word in it which this being so, it had the right to refuse to refers to the interstate commerce act or the receive and handle these cars, and, as a assertion of any rights under that act. corollary to this proposition, that it had Plaintiff in error accounts for the want of the right to discriminate between freight explicit statement on the ground that the acarriving in Birmingham over its lines and tion was instituted and tried, until the defreight arriving over other lines, and could I cision of the chancery court, upon the theory that the Southern Railway Company error was not a common carrier, but simand plaintiff in error were “connecting car- ply a private carrier. The court determined riers," and that this theory of the case hav- against this proposition, and in consequence ing been disproved and the appeal dismissed adjudged plaintiff in error liable. In other as to plaintiff in error, complainant (de- words, the judgment of the court was in fendant in error) shifted its position, and, exact response to the pleading. Nor was under the broad practice and pleading in there any change on appeal to the supreme the state court, was allowed to proceed and court. The railroad company's second asprocure judgment upon the theory that signment of error was (and it is the only plaintiff in error had discriminated against one with which we can concern ourselves) defendant in error by preferring its own that it was not "liable for any portion of business, that it had failed to furnish equal the alleged damage to these various shipfacilities for interchange as to this shipment, ments, because, under the facts of this case, and that, on account of its previous switch- it was not a connecting carrier, and was not ing arrangements with the Southern Rail-bound to handle these shipments. way Company, it had no right to refuse to There is in the printed record a certificate “switch the cars over its terminals. The of the chief justice of the supreme court of record furnishes no justification for this the state, given when the writ of error was contention. The bill charged the railroad applied for, to the effect that the supreme companies as being connecting common car- court of the state was of opinion "that the riers, plaintiff in error being the ultimate statutes and laws of Tennessee were not in carrier, and that both were bound by the conflict with the act of Congress regulating contracts made, and bound to carry the corn interstate commerce, and that the act of from the points of shipment to destination. Congress did not control the shipments in Plaintiff in error denied these allegations, controversy." Counsel concedes the rule to as we have seen, and on the issue thus be that the certificate of the presiding judge formed proof was taken.

of a state court is insufficient to give us The chancery court found, it is true, in jurisdiction, but insists that it can make favor of plaintiff in error. The case was more certain and specific what is too gentaken to the court of chancery appeals, eral and indefinite in the record. There is where it was heard, the record recites, "upon no doubt of the rule, but there is nothing the transcript of the record from the chan- in this record to justify its application. cery court of Jefferson county and upon the There is nothing in the record to specialize. assignments of error and briefs of counsel.” It is less open to conjecture than the cerIn other words, the court of chancery ap- tificate. As no Federal question was raised, peals heard the case as made in the chan- the motion to dismiss must be granted. cery court. What the chancery court of It is so ordered. appeals said of the issues and contentions of the parties we have already stated, and we need only repeat that the assignment of error by complainant (defendant in error)

UNITED STATES, Appt., in the chancery court of appeals was general, and showed no change in the theory

EDWIN M. KEATLEY. upon which the case was brought and conducted. It was that the chancery court Clerks-docket fees-separate trials under erred in holding that there was no liability one indictment. on the part of the Louisville & Nashville 1. Separate trials under one indictment Railroad Company, and in refusing to hold against several defendants are separate that it was liable either alone or jointly Stat. § 828, U. S. Comp. Stat. 1901, p. 635,

causes, within the meaning of U. S. Rev. with the other company. And the court prescribing the docket fees which the clerk said that the denial of plaintiff in error of of a Federal court may charge in ó cause. liability was “predicated upon the idea that Clerks-fees—recording judgments. it was not a connecting carrier in handling 2. The services of a clerk of a Federal the shipments of corn involved in this case, court for recording abstracts of judgments, or that it was under no obligations respect- as required by a rule of court, are not coving the same." It is true the court also ered by the docket fees prescribeu by U. S. said that plaintiff in error contended “that Rev. Stat. $ 828, par. 10, and separate charit had the right to discriminate between ges therefor are justified by par. 8 of that freight arriving in Birmingham over its clerk may receive for "making any record.”

section, prescribing the fees which such lines and freight arriving over other lines, and could give preference between those that

[No. 482.] it chose to serve in this business,” but this contention, it was also said, was "as a corol. Submitted January 29, 1907. Decided Feblary” to the proposition that plaintiff in

ruary 25, 1907.

V.

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