In regard to this identical street, it has been | if there were no other, we would be required to decided that the proceedings to open were void, hold that the complainants have no standing in inasmuch as there was no payment of the dam-equity. The demurrers are sustained, and the ages within one year. bill is dismissed.

Philada. & Wil. R. R. v. City, 9 Phila. 563.
City v. Dyer, 5 Wright, 469.

Under a similar Act to that of March 26,
1808, it was held that an order to open must
precede the assessment of damages. There can
be no presumption that an order to open issued.
Mifflin v. Commissioners, 5 S. & R. 69.
Improvement Co. v. Munson, 14 Wall. 442.
1 Green's Evidence, 20.

Seechrist v. Baskin, 7 W. & S. 403.
Baskin v. Seechrist, 6 Barr, 154.

Oral opinion by ALLISON, P. J.

Common Pleas-Law.

C. P. No. 1.

Ingersoll v. Campbell.

Oct. 15, 1881.

April 16, 1881. THE COURT (after stating the material facts.) The obstructions to the highway mentioned in the bill filed in this cause have been in existence since the year 1852, without objection on the part of the complain-Practice-Capias ad respondendum-Motion to quash on a plea of freehold-Court will quash within a reasonable time, though after the quarto die post.

ants, and during all of this time they have had full knowledge of them. We are now asked to grant the relief prayed for, upon the ground that the property of complainants has greatly depreciated in value by reason of the obstruction of Fifteenth Street, which has been set up and maintained by the defendants.

But it does not appear that the injury which the complainants say they have sustained differs in kind from that which the public have suffered. If the injury is a common and public nuisance, suffered by the portion of the community residing on or near to the section of Fifteenth Street, obstructed by the defendants, relief should be obtained through the interposition of the Attorney-General, but he is not a party to the proceeding, nor has he asked to be allowed to intervene, in his official capacity, to protect the rights of the public, if such rights have been invaded. It is apparent that the foundation of the complainants' equity, as they believe it to exist, is the injury which they allege they have sustained by an invasion of a public right. If the injury was special to the complainants, and not resulting from an infraction of a common, public right, the remedy is at law, and not in equity, and to that remedy they must be remitted, upon the case as it stands upon their own showing.

Rule to quash capias ad respondendum.

A writ of capias ad respondendum was served upon the defendant on September 20, 1881, returnable October 3, 1881. The defendant entered his plea of freehold on October 8, 1881, and thereupon obtained the present rule.

R. P. Dechert, for the rule.

The defendant is a freeholder. He has made

He

his affidavit in proper form, and now presents the deeds and other evidences of title. should, therefore, be discharged under the authority of the Act of March 20, 1725, § 3.

(Bright. Purd. Dig. 49, pl. 48; 1 Sm. L. 164.) Lex, contra.

The Act provides that if a defendant exempt from arrest is taken by any writ of arrest, "the Court where such writ is depending shall forthwith, on the defendant's motion, stay all further proceedings against him," etc. This clause has been interpreted to mean that the defendant shall make his application to the Court on or before the expiration of the quarto die post.

Blackiston v. Potts, 2 Miles, 388.

Court.

THE COURT. In the absence of any decision For almost thirty years the complainants have by the Supreme Court, we consider it to be a been content with the condition of Fifteenth hardship to limit the defendant in entering his Street, of which they now complain. This is suffi- claim of freehold. The word "forthwith" in cient, of itself, to bar them out of equity. No one the Act of 1725 applies to the action of the can sleep over an alleged injury of which he is fully advised for a long period of time, and yet retain a standing in equity. When laches so manifest appears, the doors of equity are closed against the suitor who asks for relief. To fail in a prompt assertion of one's rights is to forfeit the privilege of enforcing them in this forum. In this case laches has been so long continued that, upon this ground

Rule absolute.
Per BIDDLE, J.

ate a car trust.

The matter was referred to the Special MasThe petition set forth, inter alia, that the ter, George M. Dallas, Esq. Testimony was rolling stock of the Philadelphia and Reading R. offered before him in support of the petition, R. Co., which passed to the Receivers at the and he reported in favor of granting the prayer time of their appointment, was not sufficient to thereof, saying that the evidence satisfied him transact the increased business of the road and that the present supply of rolling stock was inits leased lines. That in order to keep the adequate for the business of the company, and road in a proper condition of efficiency, the that the proposed increase of equipment was Receivers had found it necessary in addition to necessary to the proper operation of the road by the renewing and repairing of the rolling stock, the Receivers. That it would not be fair or and keeping it up to its former carrying capacity, advantageous to the creditors of the company to to construct additional cars at the cost of over pay for the necessary additional equipment out $50,000, and engines costing over $125,000, of the current earnings of the company, and and in addition to order to be built cars and that the agreement and lease proposed by the engines to the value of over $975,000, amount-Receivers provided a proper and wise means for ing in all to upwards of one million of dollars. carrying out the scheme suggested by them. That while such additional equipment was The Receivers thereupon moved for a decree absolutely essential to the proper operation of in accordance with the prayer of the petition, the road, the Receivers considered it unfair and and the report of the Master thereon. disadvantageous to the creditors of the company to pay for said equipments from the current earnings of the road, as it would deprive the bondholders and other creditors of the usual source of revenue for the payment of their in

come.

That the petitioners believe that the best interests of the creditors of the company demanded that the said additional equipment should be provided for by the creation of a car trust of a million of dollars, for which a loan should be created by certain trustees, in whom the title to the said rolling stock should be vested, and who should lease the same to the Receivers, and upon the termination of the receivership to the com

Richard L. Ashhurst and Samuel Dickson, for the Receivers.

John C. Bullitt for McCalmont Brothers, stock and bondholders of the company, and for the company.

October 19, 1881. THE COURT. This is in effect an application on the part of the Receivers to borrow money upon rolling stock (cars and engines) manufactured at the company's shops and elsewhere, and in process of manufacture, for the Receivers. In terms, it is for the creation of a car trust, but in effect, it is for authority to make a loan, as stated.

Two questions arise in considering the appli

cation,-first, Is the matter contemplated within | of the proceeding whereby the property of the the scope of the Court's duty and authority, as company was placed in charge of the Court, and custodian of the road and other property of the the character of the Court's authority respecting company? Second, If it is, would it be wise to it, we have heretofore had occasion to explain grant the application? As respects the first very fully. We hold the property of the railquestion, it must be borne in mind that the road company to preserve it, to keep it in its custody of the Court is only temporary, to present condition, while the proceedings under preserve the property so long as may afford the bill of foreclosure are being prosecuted reasonable time to the plaintiffs in the foreclos- to their termination. I entertain considerable ure bill to prosecute their proceeding to a close, doubt of the authority of the Court to make the in case the company fails to make satisfactory order asked for, and this of itself is sufficient for arrangements to relieve itself from the proceed-me; but I agree with Judge BUTLER in all he has ing. Whether the order asked for by the said respecting the inexpediency of making the Receivers, or the allowance of it, falls within loan, even if we had authority so to do. The the proper scope of the Court's authority, under property should pass, with as little delay as is the circumstance, is certainly open to doubt. reasonably practicable, into the possession and I will not, however, enlarge upon this subject, control of owners, who will best be able to for if it was not so open to doubt I am satisfied determine how it should be managed, and what that it would not be wise to make the order.

measures relative to it are most likely to promote The petitioners admit, and the testimony their interests. To the extent that the earnings proves, that the net earnings of the road are of the road are required to keep it up in stock amply sufficient to make the purchase required; and equipments, and to preserve the property, and if necessary, these earnings should be so ap- the Receivers have authority so to apply it; but plied. The ground on which the petitioners to borrow money to enable them to continue to desire to borrow (instead of using such moneys) pay interest to bondholders I consider unwise. is that the moneys should be applied to payment of the bonded creditors of the company, in discharge of interest. We esteem it wiser, if necessary, to allow such interest to go unpaid, rather than to pay it by means of borrowing money -which may tend to mislead creditors and others respecting the actual condition of the road and its earnings. It must be borne in mind that the Court's custody of this property is not likely to continue very much longer. The foreclosure proceeding has been running for eighteen months, and it should close without unnecessary delay, and the Court expects it to do so. The interests of all parties involved require that the road and other property shall pass into the custody and management of its owners as speedily as possible.

The modern practice prevailing to some extent, elsewhere, of transferring corporate property to the custody of the Courts, to be thus held and managed for an indefinite period of years, to suit the convenience of parties, whereby general creditors and stockholders are kept at bay, I regard as a mischievous innovation. I have no doubt the petitioners are fully satisfied of the wisdom of the measure they suggest, and that they are actuated by a sincere desire to promote the best interests of the road. We do not, however, agree with them in this matter, and must be governed by our own judgment. The petition is therefore disallowed.

Oral opinion by BUTLER, J.

M'KENNAN, Circ. J., concurring, said:-I concur in what Judge BUTLER has said. The object

U. S. Circuit Court-
Law.

April, 1881.

Fisher v. Dandistel, defendant, and John
F. Hartranft, Collector of the Port of
Philadelphia, garnishee.

Foreign attachment-Collectors of ports can-
not be made garnishees as to goods held for
duties-Harris v. Dennie, 3 Peters, 292, fol-
lowed-Conard v. Pac. Ins. Co., 6 Peters,
262, distinguished-Removal of causes-Act
of Congress, U. S. Rev. Stat., § 643-Inter-
pretation of the word "suit" therein.

Sur rule by plaintiff to remand case to State Court.

Sur rule by garnishee to quash writ of attach

ment.

This case came before the Circuit Court on a certiorari from Court of Common Pleas No. 4, of Philadelphia County, under the following circumstances.

Revenue Collection Act. ch. 2, 88 27-58, ¿? 36, 62,

A writ of foreign attachment having been the Collector implying a right to seize and sell issued at the suit of Frederick Fisher against the goods. Philip Dandistel, defendant, fourteen cases of wine consigned to the defendant were seized by the sheriff on their arrival at the Port of Phila

delphia in the possession of the "Red Star Line," Peter Wright & Sons, Agents; and the "Red Star Line," the Pennsylvania Railroad Co., and John F. Hartranft, Collector of the Port of Philadelphia, were summoned as garnishees. The Collector of the Port having taken possession of the wine and stored it in a bonded warehouse, the plaintiff tendered him the amount of duties due upon the wine; but he refused to receive it or to allow the wine to be taken from his custody. A rule was then granted on petition of plaintiff requiring the Collector of the Port to show cause why he should not receive the duties and surrender the goods into the custody of the Court. Thereupon John F. Hartranft, the Collector, obtained a certiorari from the United States Circuit Court under the provisions of sect. 643, of the Revised Statutes of United States to remove the record to that Court.

Here the plaintiff moved to remand to the State Court, and the Collector moved to quash the writ of attachment as to him.

John K. Valentine, U. S. District Attorney, for the Collector of the Port.

Whenever a right is litigated between parties in a court of justice, the proceeding by which the decision is sought is a suit. Therefore a foreign attachment as to the garnishee is a suit within the meaning of the Act of Congress, U. S. Rev. Stat. § 643

Purdon's Digest, 717 % 4.

49, 50, 56.

The goods therefore being in the custody of the United States, the State Court has no juris

diction.

Taylor v. Carryl, 20 Howard, 594.
Payne v. Doewe, 4 East, 523.
Peck v. Jenness, 7 Howard, 625.
Oliver Jordan, 2 Curtis, 414, in Taylor v. Carryl,
20 Howard, 600.

Hagan v. Lucas, 10 Peters, 400, 403.
Lewin W. Barringer, for the plaintiff.

A part of a controversy only cannot be removed, but the case must be so removed that it can be wholly determined.

Hervey et al. v. Illinois Midland R. R. Co., 7
Bissell, 103.

The Collector, as appears by the petition and record, being a mere nominal party with no interest in the subject matter of the dispute, there is no ground under the Revised Stat. U. S., § 643, for removal to the U. S. Court, nor has the United States Court any jurisdiction in the premises.

City of Chicago v. Gage, 6 Bissel, 467.

The priority of the United States is only a priority of payment, not of possession: the actual possession by the Collector is not a legal possession adverse to the consignee, but is only to secure the lien of the duties.

Conard v. Pac. Ins. Co., 6 Peters, 271.
Conard v. Atl. Ins. Co., 1 Peters, 441.
U. S. v. Lyman, I Mason, 499.

Howland v. Harris, 4 Mason, 497, 499.

U. S. v. Case of Silk, 13 Int. Rev. Rec., 58. If the Collector or other officer refuses the delivery of the goods after the duty or the proper

Weston et al. v. City Councils of Charleston, 2 Peters, security therefore is tendered it is a tortious con464.

Taylor v. Carryl, 20 Howard, 597.

Goods in the hands of a collector of customs are not liable to attachment at the suit of a creditor of the owner and importer.

Harris v. Dennie, 3 Peters, 292.

This case is distinguished from Conard v. Pac. Ins. Co. (6 Peters, 262), wherein the plaintiff was the assignee of the importer, and therefore virtual owner not a creditor.

The revenue laws clearly intend that the United States shall hold the goods until the owner or consignee, his agent or factor, enters them at the custom-house and pays the duties or gives bond therefor; and it would be a violation of this provision to allow an attachment to issue to

version which renders him liable for damages. Conard v. Pac. Ins. Co., 6 Peters, 271.

Tracy & Balestier v. Swartwout, 10 Peters, 98. Revenue laws not being penal must be construed favorably.

Cliquot's Champagne, 3 Wallace, 114.
The Collector having. no legal possession, the
jurisdiction of the State Court is prior to that of
the United States.

Buck v. Colbath, 3 Wallace, 341.
Taylor v. Carryl, 20 Howard, 583.
Hagan v. Lucas, 10 Peters, 400.

C. A. V.

April 15, 1881. THE COURT. The motion to remand is refused, and the service of the writ of attachment as to John F. Hartranft, the Collector, is set aside.