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license, and demanded $80,000, one-fifth of $400,000 of the stock received, waiving the balance of $45,000, which the defendant refused; that the plaintiff still owns and holds the Graham patent and the license, and is ready to transfer the patent, on delivery of $80,000 of the stock, which has no recognized market value, and which he had reason to apprehend may be distributed among the stockholders of the defendant. The defendant demurs to the bill, and the principal cause of demurrer relied upon is the failure to aver readiness to surrender the license, as well as to transfer the patent.

This demurrer has been argued principally as if the bill was merely for specific performance, and the prayer is framed in that aspect; and unquestionably, as is insisted for the defendant, a plaintiff in such a bill, where the performance is sought by force of a mere contract, and things are to be done by each, must, by his bill, show himself able and ready to perform on his part Relief in equity is, however, very flexible; and a decree could readily be made, as is frequent, that the defendant should do certain things, like making conveyances or transfers of property, upon the doing of other things by the plaintiff necessary to the protection of the defendant's rights. And in this case a decree for the delivery of the stock claimed to the plaintiff could readily be made conditional upon the transfer of the Graham patent and surrender of the license, whereby the defendant's rights concerning them would be protected; and the bringing of the bill, with allegations that the defendant has once tendered the license, and has it now, may so have brought the license within the reach of the court, as a part of the case, as to authorize the court to decree that, as well as the Graham patent, to the defendant, and to entitle the defendant to have it so decreed, as a part of a decree for delivery of the stock.

But the patents are understood to have been transferred to the Rogers Typographic Company as free from the license, and as this was done in part by the plaintiff's aid, and necessarily with his concurrence, his rights as licensee may have become merged in the title to the patents, and passed with it by estoppel; so that he furnished a part of the thing sold, and therefore has an interest in the agreed share of the price paid. And, by the terms of the contract as set forth, he would have a joint interest in the proceeds of the sale, having reference to the proportion agreed, for what he did and yielded in procuring it. In this aspect the bill is brought rather upon the plaintiff's right to the stock arising out of the transaction than for a conveyance of the defendant's title in specific performance of the agreement. In a bill to so ascertain and enforce his own interest in the stock, less particularity about averring readiness in respect to conveying the license might be sufficient. The allegations of the bill seem rather meager, but, on the whole, they appear to be sufficient to support a decree if taken pro confesso, and therefore sufficient to require an answer.

Demurrer overruled, and defendant to answer by the July rule day.

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SARANAC LAND & TIMBER CO. v. ROBERTS.

(Circuit Court, N. D. New York. June 28, 1895.) 1. CONSTITUTIONAL Law-SUIT AGAINST STATE.

The mere fact that a defendant in ejectment is sued as comptroller of a state does not deprive the federal courts of jurisdiction, on the ground that the suit is against the state, where it is alleged in the complaint that the plaintiff is seised and entitled to the possession of the land in controversy,

and that the defendant withholds possession unlawfully. 2. SAME-LAWS OF NEW YORK 1893, Ch. 711, $ 18.

Laws of New York 1893, c. 711, § 13, providing that, under certain circumstances, the comptroller of the state shall be deemed to be in possession of wild, vacant, or forest lands, and that such possession shall continue until the comptroller has been dispossessed by the judgment of a court of competent jurisdiction, sanctions the bringing of a suit against the comptroller, as such, to recover possession of lands so in his possession. This was an action of ejectment by the Saranac Land & Timber Company against James A. Roberts, as comptroller of the state of New York. The defendant demurred, on the ground that the court had no jurisdiction.

Weeds, Smith & Conway and Frank Smith, for plaintiff.

T. E. Hancock, Atty. Gen., and G. D. B. Hasbrouck, Dep. Atty. Gen. of New York, for defendant.

COXE, District Judge. This is an action of ejectment. The plaintiff is a New Jersey corporation. The defendant is the comptroller of the state of New York. The complaint lleges that the plaintiff is seised in fee simple and entitled to the possession of a large tract of forest land situated in Franklin county within the Northern District of New York and that the defendant, as comptroller, is in actual possession of said land and unlawfully withholds the possession thereof from the plaintiff. The defendant demurs upon the ground that the court has no jurisdiction, for the reason that the real party in interest is the state of New York and the state cannot be sued. The situation,

The situation, then, is this: A citizen of New Jersey who is the owner in fee of land in this district sues in ejectment a citizen of New York who is in unlawful possession of the plaintiff's land. All this is admitted by the demurrer. The sole question is, does the fact that the defendant holds as comptroller of the state deprive the court of jurisdiction? As the is. sue now stands the defendant is a naked trespasser in possession of plaintiff's land without color of right. It is thought that the demurrer should be overruled on the authority of U. S. v. Lee, 106 U. S. 196–204, 1 Sup. Ct. 240; Tindall v. Wesley, 13 C. C. A. 160, 65 Fed. 731; Pennoyer v. McConnaughy, 140 U. S. 1, 11 Sup. Ct. 699, and cases there cited.

The court cannot anticipate what defense the defendant will interpose. He may seek to justify under an unconstitutional law, or a law conferring no valid title. If the allegation be true that the plaintiff is the owner in fee and entitled to the possession of the land in question it is not easy to see how he can defend under a valid law. The mere fact that he is sued as comptroller is not enough to oust the court of jurisdiction. The complaint shows nothing But suppose the court proceeds a step further and assumes that the defendant is sued and will justify under chapter 711 of the Laws of 1893. Section 13 of that act provides:

“The comptroller may advertise once a week for at least three weeks successively, a list of the wild, vacant and forest lands to which the state holds title, from a tax sale or otherwise, in one or more newspapers to be selected by him, published in the county in which the lands are situated, and from and after the expiration of such time, all such wild, vacant, or forest lands are hereby declared to be and shall be deemed to be in the actual possession of the comptroller, and such possession shall be deemed to continue until he has been dispossessed by the judgment of a court of competent jurisdiction."

This section must be considered in its entirety. The last clause cannot be ignored. It would seem clear that it was the intention of the legislature to submit the question of the comptroller's title to the decision of a court having jurisdiction. It was conceded at the argument that the theory of the demurrer made the clause in question inoperative and would enable the defendant to seize and hold the property of others without being amenable to the process of any court. There is no occasion for so drastic a construction. In placing the comptroller in possession of the forest lands the legis. lature recognized the probability of controversies over his title and jointed out the manner in which such disputes should be decided. The plaintiff is pursuing the remedy of the statute. It is a suit sanctioned by the state. Reagan v. Trust Co., 154 U. S. 362, 392, 14 Sup. Ct. 1047.

The demurrer is overruled.

DAVIS v. CORNWALL,

SAME V. WAKELEE.

(Circuit Court of Appeals, Second Circuit. May 28, 1895.)

Nos. 5 and 6.

ESTOPPEL-BANKRUPTCY PROCEEDINGS-JUDGMENT.

After one D. had been adjudged a bankrupt, C., one of his creditors, who had filed a proof of debt founded on promissory notes, obtained leave from the bankruptcy court to sue D. in a state court on the notes, and thereafter duly recovered judgment. Subsequently D. applied for his discharge, and C., having filed specifications in opposition thereto, moved to dismiss such specifications, and cancel C.'s proof of debt, on the ground that c. had recovered the judgment in the state court, and that the same was in full force. The motion was granted, and C. acquiesced in the decision. Held, that D. was estopped to set up his discharge in bankruptcy in a suit afterwards brought against him on the judgment. Davis v. Wakelee, 15 Sup. Ct. 555, followed. In Error to the Circuit Court of the United States for the Southern District of New York.

This was an action by Pierre B. Cornwall against Erwin Davis upon a judgment recovered by the plaintiff against the defendant in a court of the state of California. The circuit court rendered judgment for the plaintiff. Defendant brings error. Af. firmed.

See. Wakelee v. Davis, 37 Fed. 280, 44 Fed. 532, and 18 Fed. 612; Id., 15 Sup. Ct. 555, and Cornwall v. Davis, 38 Fed. 878.

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Logan, Clark & Demond, for plaintiff in error.
Anson Maltby, for defendants in error.
Before WALLACE and LACOMBE, Circuit Judges.

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WALLACE, Circuit Judge. This is a writ of error by the defendant in the court below to review a judgment for the plaintiff entered upon the verdict of a jury by the direction of the trial judge. The action was brought upon a judgment recovered by the plaintiff against the defendant December 18, 1892, in the district court of the Fifteenth judicial district of the state of California. The defense was that the defendant had duly obtained a discharge from all his debts, including the judgment, by a decree of the United States district court for the district of California in a proceeding in bankruptcy.

The ruling of the trial judge in directing a judgment for the plaintiff proceeded upon the theory that the defendant was estopped from asserting this defense by his conduct in the course of the bankruptcy proceeding. The correctness of this ruling is the principal question presented by the assignments of error.

Whether the defendant was estopped depends upon the following facts: It appeared that after the defendant had been adjudged i bankrupt the plaintiff, who was then a creditor of the defendant, and had filed a proof of debt founded upon various promissory notes made by the defendant, obtained leave of the court in the bankruptcy proceeding to sue and enforce his demands against the defendant in the courts of the state, and commenced a suit which resulted in the judgment upon which the present action was brought. After the judgment had been rendered the defendant applied in the bankruptcy proceeding for a discharge from his debts, and the plaintiff filed specifications in opposition thereto, setting up the existence of various grounds disentitling the defendant to a discharge. Thereupon the defendant applied to the court in the bankruptcy proceeding for an order dismissing the specifications of the plaintiff, and canceling the plaintiff's proof of debt. This application was opposed by the plaintiff, but was granted by the court. The petition on which the application was founded set forth as the only grounds the statement that after the plaintiff had proved his debt, and had obtained leave to commence an action in the state court, he commenced such an action in the Fifteenth judicial district court of the state of California, and recovered a judgment against the bankrupt, the defendant therein, and that said judgment still stood of record in the said court, and was in full force. The plaintiff did not attempt to review the order by a petition of appeal, or otherwise, but acquiesced in the decision.

Inasmuch as the sole basis for the order of the court in the bankruptcy proceeding was the averment in the petition of the bankrupt that the plaintiff had recovered the present judgment, and that said judgment was in full force, it would seem obvious that the decision embodied in the order canceling the proof of debt and dismissing the specifications must have proceeded upon the ground that the plaintiff, because of his judgment, had no rights or interests to protect in the bankrupt court. This conclusion could only have been reached upon the view that the plaintiff's judgment could not be affected by a discharge of the defendant in bankruptcy. Manifestly it was the purpose of the petition to induce this view, and the object was accomplished by it.

The ruling of the trial judge thus presents the question whether the defendant, after having obtained a decision in the bankruptcy proceeding precluding the plaintiff from contesting his right to a discharge upon the ground that the discharge could not affect the judgment, can be permitted, when sued upon the judgment, to deny what he then asserted, and impeach as erroneous the order which he procured the court to make, to the prejudice of the plaintiff, while retaining its benefit himself. We think this question is settled adversely to the defendant by the recent decision of the supreme court in Davis v. Wakelee, 15 Sup. Ct. 555. That was a suit in equity brought in the United States circuit court for the Southern district of New York by the assignee of Henry P. Wakelee, alleging that she was about to commence an action at law in that court to enforce a judgment recovered by her assignor against the defendant in a California court, and praying for a decree in aid of such action, adjudging the defendant to be estopped from asserting a defense that the judgment was void for want of jurisdiction of the person of the defendant by the court in which it was rendered, and from setting up his discharge in bankruptcy as a defense. The estoppel claimed was predicated of facts precisely similar to those in the present case, viz. the recovery of the judgment by Wakelee after defendant had been adjudicated a bankrupt, and after leave to sue had been granted in the bankruptcy proceeding; the application of the bankrupt for his discharge, and opposition thereto by Wakelee; the application by the defendant in the bankruptcy proceeding for an order canceling Wakelee's proof of debt, and dismissing his specifications opposing the discharge; and the granting of the order, and the acquiescence of Wakelee therein. The petition upon which the order was obtained was identical with that in the present case, except as to the name of the creditor, and the date and amount of the judgment. The circuit court sustained the bill, and made a decree restraining the defendant from asserting the invalidity of the judgment. That court, however, declined to decide whether the defendant was estopped from pleading his discharge; holding that the complainant could avail herself of any such estoppel in an action at law, and did not need the assistance of a court of equity. Upon an appeal by the defendant from this decree the supreme court was of the opinion that the defendant was estopped from claiming that the judgment of the California court was void for want of jurisdiction, and affirmed the decree of the circuit court. That court, after considering the question whether the complainant could resort to equity, or could get the benefit of the estoppel in the action at law, and expressing the opinion that the remedy at law was not so plain or clear as to oust a court of equity of jurisdiction, proceeded to discuss the case upon the merits, and used the following language:

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