not binding on yourself or Judge BREWER, still, if Judge BREWER would consider that binding on him to that extent, as to the construction of the Missouri statute, your honor would defer to that ruling of Judge BREWER, and I would therefore ask as a favor-I can only consider it such-that I may be permitted to argue the motion before Judge BREWER.

Treat, J. It was my thought to suggest to the counsel that this hearing should be had before Judge BREWER, but you forced me to hear it, and I have had to decide it in the light of what must be considered the authoritative ruling in this circuit until something happens, which has not happened, in the way of a decision of the supreme court of the state, or Brother MILLER overrules himself. It does not become me to overrule Justice MILLER.

Mr. Goode. I wish, as Judge BREWER said in my hearing once, and as he has also said in the Nordmeyer Case, 25 Fed. Rep. 71, (reported and read by Mr. Smith,) that he wished the state supreme court would authoritively construe the statute; indicating, by his expression and wish, his belief that they would construe it differently from Justice MILLER, and satisfy him that he was right in differing with that opinion. I wish, therefore, to show him the Kansas City court of appeal's decision, which has, for the first time in the history of any court in this state, construed section 354, and ask him if that is not sufficient authority, I have that confidence in Judge BREWER that he will consider it sufficient, and as he will be here within 15 days, there will be no harm in granting me that privilege.

Treat, J. I have no objection to your motion. You can file it under the rules. I will not hear the motion until he comes. There will be no great delay. There was a difficulty when this case was first presented, which suggested itself to the mind of the court, viz., that here was an officer of the state court, Mr. Carter, who was a general assignee, and, being an officer of the state court, was bound to comply with its provisions with regard to inventories, bonds, etc. To what extent would this court interfere therewith? Why not go into that court, and have the matters determined? Possibly, that court bad taken a different view of the question from what this court had taken. But parties came here, and asked to get by a decree of this court what they were satisfied they could not get from a decree of the local court. That is the first difficulty. Of course, if they had a constitutional right to come here, this court must uphold their right jurisdictionally. Now, what should be done? The original bill, as it stood here, as I have read it, only asked that this mortgage might be decreed a general assignment under the statute. This technical difficulty arose the fund and the jurisdiction, as of a general assignment, were in the state court. Then, by consent of parties, Mr. Carter, the assignee of that tribunal, was made a party defendant. That was done to avoid confusion, etc. He came in. Now, the theory of the bill was to declare the mortgage an assignment. Suppose, technically

speaking, the court had so done, what becomes of the general assign. ment made a few minutes subsequently? If that was a general assignment, you can see at once what confusion would arise with regard to the matter. There was no allusion made in the original bill to that assignment, as I remember it, for any ruling against it, because that assignment was in compliance with the terms of the state statute, for the benefit of creditors generally; but the trouble was in the mind of the plaintiff in this bill that this mortgage covered the property, and left in the assignee only a few dollars. It was to accomplish the end which it was supposed the statute was designed to effect, viz., that the entire estate should be distributed pro rata among all creditors; and, as is usual in these equity bills, we have a general prayer for relief,-consequently the form that I suggested. I declared the mortgage void. It is not from any fraud or anything of the kind. I simply establish the validity of plaintiff's demand, and permit the mortgagee to share equally with the others, and let the assignee of the state court close out the estate accordingly. That is the only way I could accomplish the end. Now, certainly it is desirable that Brother BREWER may go over this. Therefore I cheerfully allow you to file your motion for a rehearing. I may say this preliminary question troubled me a good deal at first. Now, there is what I may call, under the decisions of the supreme court, an elemental doctrine, Where a fund is in possession of any other tribunal, this court will not interfere with it, and that is the first thought I had in this matter,-whether this case did not fall under those rulings, and whether, on the face of the bill, if the facts had been stated fully, I would not dismiss it at once, and leave the tribunal that had the custody of the estate to determine it. There was the question never presented. I expected it to be raised by the defense, and I would then have said, "No; we will not interfere with the custody of an estate in the hands of another tribunal."

Mr. Goode. That shows our bona fides.

Treat, J. It is not a question of bona fides, but of comity. Of course, as far as the case discloses, your client Holts-not speaking of the other one-is a creditor to the extent of the amount stated, and the only question is, what is the law? So far as the bill discloses, there is no question as to the custody of the estate. Otherwise we would have unseemly conflicts between the state and the federal courts.

BLUE RIDGE CLAY & RETORT Co. v. FLOYD-JONES and others.1

(Circuit Court, C. D. Missouri. March 17, 1886.)

EQUITY PRACTICE-FILING SPECIAL REPLICATION OUT OF TIME.

A replication due at the October rules not having been filed, defendants filed a motion to dismiss December 3d. A special replication was thereafter filed. Held, that the motion must be sustained.

In Equity. Motion to dismiss.

The motion to dismiss was filed December 3, 1885. lication was filed December 5, 1885.

A special rep

Fag & Hatch and Davis & Davis, for complainant.
George H. Shields and R. H. Floyd-Jones, for defendants.

TREAT, J., (orally.) In the case of the Blue Ridge Clay & Retort Co. v. Floyd-Jones there is a motion to dismiss. There are irregularities of practice in this case from the beginning to the end. First, under the statute of the state, where, instead of by regular proceedings to foreclose, the party chooses to proceed under the powers given in the deed of trust to secure a debt, and does so proceed, the right of redemption exists for a year, but it exists on the terms prescribed by the statute, to-wit,, the payment of the debt secured by the deed of trust, the costs, etc., that have been incurred. Now, four days before the expiration of the year after the sale a bill was filed in this court, the plaintiff being a New York corporation. In the bill there is no averment anywhere that the amount of the debt, costs, etc., has been tendered as required by the statute, or is intended to be, nor that the amount is now brought into court to be paid. There is an utter failure on the face of the bill to comply with the terms of the statute.

The party respondent has answered elaborately. The replication was due at the October rules. The regulations prescribed by the supreme court concerning equity matters have, I may say, almost the force of statutes in this court. Had application been made, possibly an extension of time might have been granted as to the replication. No application was made. After the motion was filed to dismiss for non-compliance with the rules, the party came in and filed a replication, which is a paper wholly unknown to equity practice, under rule 45. I suppose his mind was resting on the practice which prevails in the state courts. Under rule 66 the party was entitled to have this suit dismissed, as of course, unless the party, for cause shown, applied to the court to escape the consequences of his negligence. No such application was ever made. He filed a paper which is not an equity replication. Now, what shall be done? The motion

1 Reported by Benj. F. Rex, Esq., of the St. Louis bar.

v.26F.no.11-52

here is grantable, as of course, no application having been made on the other side, for cause shown, with respect to it. I have gone through all the papers in the case, as if the rights of the parties were here to be determined on a controversy which they sought to present. The court must enforce the rule of the supreme court in regard to this matter.

The motion to dismiss will be sustained, (without prejudice).

SCHUMACHER and another v. SCHWENCKE and others.

(Circuit Court, S. D. New York. March 23, 1886.)

TRADE-MARK-JURISDICTION OF CIRCUIT COURT-INFRINGEMENT NOT IN FOREIGN COMMERCE OR TRADE WITH INDIAN TRIBES.

The circuit court has no jurisdiction of a suit for the infringement of a trademark by a citizen of the same state as the complainant unless such infringement consists in using the trade-mark by the defendant upon goods intended to be transported to a foreign country, or used in lawful commercial intercourse with an Indian tribe.

In Equity.

Antonio Knauth, for orator.

Louis C. Raegener, for defendants.

WHEELER, J. This suit is brought to restrain infringement of trademark No. 9,737, registered October 17, 1882, and consisting of the words "Henry Lee" appropriated for use upon prints, labels, showcards, calendars, printed cards, and tags. The parties appear from the bill to be all of them citizens of the state of New York. It is alleged that the orator, a corporation, has used this trade-mark on labels in domestic commerce, inter-state commerce, and commerce with foreign countries, and that the defendants have in New York applied it to labels not made or sold by or for the orator, and sold the same, and have sold the same in other states of the United States, “and have sold the same in foreign countries." These are all the allegations there are as to the use of the trade-mark by the defendants in foreign commerce, and all such sales and use are denied by the defendants. There is nothing in the case about use of it in commerce with any Indian tribe. The courts of the United States have no jurisdiction of suits like this unless it is given by statute under which. the trade-mark was registered. Trade-mark Cases, 100 U. S. 82; Luyties v. Hollender, 21 Fed. Rep. 281; 21 St. at Large, 504, c. 138, § 11. That statute limits the jurisdiction under it so that it is not conferred "unless the trade-mark in controversy is used on goods intended to be transported to a foreign country, or in lawful commercial intercourse with an Indian tribe." It seems to be understood by

the orator's counsel that jurisdiction is given if the trade-mark is used by the orator in foreign commerce, or upon goods intended to be transported to a foreign country. But the authority of congress over this subject arises from the power to regulate commerce, and does not extend to the protection of trade-marks within a state. Trade-mark Cases, 100 U. S. 82. The orator may have a valid trademark, and an exclusive right to its use in New York; but, if so, his rights in that respect do not rest upon the laws of the United States. The registration under the statute only confers a right to it in foreign commerce, and a claim for infringement, or to be protected against infringement, cannot arise under the constitution or laws of the United States unless the infringement is upon the right to use it in foreign commerce, which can only be by using the trade-mark without right in such commerce. The jurisdiction is not conferred at all by express words of the statute; but only by providing a mode of acquiring a right, a suit for the invasion of which would arise under the laws of the United States within the act of 1875. The clause quoted from is restrictive of that jurisdiction. The defendants do not infringe upon any right resting upon the laws of the United States unless they use the trade-mark in foreign commerce, and jurisdiction of a suit for such infringement is not left in the courts of the United States unless such infringement consists in using the trade-mark by the defendants upon goods intended to be transported to a foreign country. The bill falls short of alleging such use; and this court appears to be without jurisdiction to restrain the use which is alleged.

Motion for preliminary injunction dismissed.

WHITTEMORE v. AMOSKEAG NAT. BANK and others.

(Circuit Court, D. New Hampshire. December 3, 1885.)

CORPORATION-ACTION BY STOCKHOLDERS-COLLUSION-EQUITY RULE 4.

Bill in action by stockholder against a national bank held demurrable, because it contained no allegation that plaintiff was a shareholder at the time of the transaction complained of, or that his share had since devolved on him by operation of law, and that the suit was not a collusive one to confer jurisdiction on the circuit court, and because plaintiff failed to allege any efforts made to secure such action as he desired on the part of the officers of the corporation, and the cause of his failure to obtain such action as required by equity rule 94.

In Equity.

H. G. Wood, for complainant.

Livermore & Fish, for respondents.

COLT, J. There being no allegation in this bill that the plaintiff was a shareholder at the time of the transaction of which he com