528

81 FEDERAL REPORTER.

result will be due to the fact that from the inception of the company, in 1891, to the time of the transfer to the complainant, in 1895, Wheeler has rio piece of paper which verifies his statement of the trust, and that the papers which passed between the parties do not snpport the kind or the terms of a trust which he says existed. While the relations between John C. Love and Wheeler were in some respects like those of an agent and principal, they were styled by the parties to be of a fiduciary character. Love voluntarily placed his certificates of stockin the possession of Wheeler, with power to transfer them to himself. They have been thus transferred to himself 01' to others, and "Wbeeler now has ClOirtificates for 17,500 shares in his own name, of which he is the legal owner, and which he holds for the exclusive benefit, and to be .disposed ofaccording to the exclusive directions, of Love. This condition of affairs brings the property into the, condition of a trust, which "in the most enlarged sense in which that term is used in English jurisprudence, may be defined to be"an equitable right, title, or interest in property, real or personal, distinct from the legal ownership thereof." 2 Story, Eq. JUl'. § 964.. The trust was an express one, voluntarily entered into by Love, and in regard to property in which Wheeler has no pecuniary interest, and upon which he has no ap, parent lien. TheallegaUons of the bill were limited to stock of which the defendanf is a trustee, and the terms of the decree must be confined to that class of stock. The bill avers that the trust is still open: and continuing; and asks for an account of it, and of all property held thereundel',and of all, the defendant's receipts and disbursements as trustee. I have not, therefore, considered the question whether there hIlS been a revocation of the trust, or, if there had been, what would be a proper decree. The certificates for 17,500 shares of stock'should be placed in the name of Albert G. Wheeler, as trustee for the complainant, .so that the, certificateI'! should distinctly show that the beneficial interest is in him. Let there be an interlocutory decree directing the transfer of the certifi· cates for that number of shares to AlbertG. Wbeeler,as trustee for the complainant, and for a ,reference to a master for an ascertainment of the entire amount of the, stock of said company held by the defendant under any trust for John C. Love and for the complainant as assignee, and for an accounting of all' the defendant's and disbursements; if any, as trustee ·ofsaid trust property.

EARI.Ly. METROPOLITAN ST; RY. CO.

(Circuit Court, S. D. New York.

, ING-S.

Aprll 19, 1898.)

'

OF FACT UPON THAVERl'E TO

OF FIND-

Where ali issue ofi fact upon traverse of a plea to a bill In equity Is Is ,entitled to a decree; but If such Issue found for the be. found In part for each party, the defen(1ant, under the thirty-third equityru\(l, IS entitled to the benefit Qf the'facts S:l found for him, and the decre'e must be limited aecordlngly,·

EARLL V. METROPOLITAN ST. RY. CO.

529

This was a suit in equity by Charles I. Earll against the Metropoli. tan Street-Railway Company for an injunction and an account for alleged infringement of letters patent No. 520,259, granted to com· plainant, May 22, 1894, for a grip mechanism for cable railways. The cause was heretofore heard and decided on a traverse of a plea. 85 Fed. 214. James C. Chapin and Esek Cowen, for plaintiff. Frederic H. Betts and Samuel B. Clarke, for defendant. WHEELER, District Judge. The motion of the defendant for leave to put in evidence a resolution of the common council of the city of New York adopted November 13, 1889, authorizing the use of cable power on the Broadway Line to South Ferry, in connection with chapter 259 of the Acts of the Legislature of New York, approved May 1, 1890, confirming the same, is granted, to make the record herein complete, and the copies thereof attached to the motion papers are allowed to be filed and are considered as a part of the evidence in support of the plea herein. These proceedings appear to show that at the time of the arrangement in respect to the plaintiff's pat· ent the Broadway & Seventh Avenue Railroad Company had the right to put in cable power down Seventh avenue and Broadway to Bowling Green, and the South Ferry Railroad Company the same right from there to South Ferry, but not that the Broadway & Seventh Avenue Company had any right to put in cable power from Bowling Green to South Ferry. It could run its cars over that part of the South Ferry Line, and, if the South Ferry Company had put in cable power, perhaps it could have run its cable cars there, but it could not then put in a cable with which to run any cars there. That right belonged to the South Ferry Company. The work then being done corresponded with these respective rights. The situation to which the understandinfl' as to the use of the plain. tiff's inventions was to apply is therefore the same as before, with the same limitation as to extent and with the same result, when the understanding is applied to it, as it was, in respect to the then existing rights. Question is made about the effect of the finding of fact upon the traverse of the plea that, as to a part of the alleged infringement of the plaintiff's patent, it is not sustained by the evidence, but must fail. In Kennedy v. Creswell, 101 U. S. 641, the authorities were reviewed by Mr. Justice Bradley, and a decrpe in chief founded upon a finding of an issue of fact joined by traverse of a plea, in favor of the plaintiff, was affirmed. .That would be, of course, suffi· cient authority for a decree in chief here for relief against that infringement. But Farley v. Kittson, 120 U. S. 303, 7 Sup. Ct. 504, where the authorities, with the rules in equitv. are again reviewed by Mr. Justice Gray, is cited and relied upon to the contrary. The law of equity pleading is not there stated differently from that stated by Mr. Justice Bradley, but the decree, which was for the defendant, was reversed, and the case was remanded, with directions to overrule the plea, and to order the defendants to answer the bill, and this direction is different from the decree affirmed in the former
87F.-34

530

. 87FEDERAX,·REPOllTER.

the latter case the plea was said,J;o consist of three parts: Ci\'First, a restatement in detail of some of ,facts alleged generally in the bill." The issu of fact found for the plaintiff, on a stipulation, is said to have related to this first part of the plea, and the second and third. parts are said to have been mere matters of law arising on the bill. So the case stood somewhat as if the bill had been demurred to, or, the plea had been set down fQr argument, whereby the. part found in either way, have stood. admitted. Thereupon the justice said that the question argued 'was not prein behalf of the plainsented by the record, and that, "as tiff at the reargument, the plea was· erroneously sustained, and must be overruled, and the defendants ordered, in accordance with the thirty-fourth rule in equity, to 8;qsWer the bill." The requirement to answer may have been. made at the request of the plaintiff for further discovery, as well as because of the form of the plea and the limited finding. This case does not overrule the former one expressly, and, as here understood, does not do so impliedly. In Elgin Wind·Power & Pump Co. v. Nichols, 65 Fed. 215, 12 C. C. A. 578, since both of these cases, a final decree in a cause on a patent founded on a finding for the plaintiff of an issue joined by traverse of a plea was affirmed by the circuit court of appeals of the Seventh circuit. In this case the substance of the plea is that the invention was so made in the defendant's employment, and the patent was so procured at its expense, that it has an iDlplied right, under t4e patent, like a territorial right to the extent. of its roads, to use the invention in the construction and operation of its roa,ds. This impliedly admits the existence and validity of the patent. The right Qf the defendant as to some of its roads is found .on the traverse of the plea in its favor, and as. to some in favor of the plaintiff. The thirty-third equity rule provides that "if upon an issue the facts stated in the plea be determined for the defendant they shall avail him as far as in law. and equity they ought to avail him." As the plea is pleaded to thewhQle bill, and is not to the whole, perhaps, but for tbisrllle,. the plaintiff would, . without leave to the defendant to amend, be entitled to a decree for the whole alleged infringement, but under this rule certainly theiluding of the right of the defendant to the .extent of certain.of its, roads ought to avail the defendant to that extent. . Decree for an injunction and. an acco'unt, except as to Broadway Line to Bowling Green. ,

-

.

.

UNION TRUST CO.v. ATCHISON, T. & S. F. R.

co.

(Circuit Court, D. Massachusetts.' June 3, 1898.)

ANCILLARVl'tECEIVERS-ACTIONS AGAINST.

Anetilary receivers in YIassachusetts Of II. Kansas 'rallroad company are notllable for a tort committed by the orIginal receivers of the compan;r in j l{ansIl.S.