812
FEDERAL REPORTER.
show that they have a superior right to the assets in possession of the court, but, on the cuntrary, all the policy-holders and creditors are equitably interested therein, and the must be disposed of for the common benefit. The petition filed by the receivers appointed in Connecticut asks that their right to the assets of the company may be recognized, and that the receiver heretofore appointed be discharged; that a receiver ancillary to the petitioners be appointed to take possession of the assets, convert the same.into money, and. to remi!the proceeds to the petitioners for distribution in the proceedings pending in Connecticut. No objection to this mode of disposing of the assets is perceived, a:nd the order will be made accordingly. 'The demurrers. to complainants' bill,and to the intervening petition Of the several policy-holders, are sustained. ' The demurrers to the in· tervening petition of Brooks and Stedinan,receivers, is overruled.
,GAMEWEI,L FIRE-ALARM
TEL. Co. v. THE
MAYOR,
etc.
(OVrcuit Oourt, S.
n. New
York. April 19,1887.)
1.
MtrNIClPAL CORPORATIONS-AcTION AGAINST-PRESENTATION OF CLAIMS.
The laws 0:( New York. (sectipn 1104, c. 410, Laws 1882,) respecting the presentation of claims against the city of New York to the comptroller for adjustmentbefore b.ringing suit, only apply to such claims as ca.n be prosecuted In the state courts by the actions or proceedings mentioned in section 1103. The equitl jurisdiction of the courts of the United States is subject to neither limItation nor restraint by the state authorities, and is uniform throughoutthe different states of the Union. '
I.
FEDERAL COURTS-EQUITY JURISDlp1.'ION.
8·. EQUITY PLEADING-:-ANSWER-CORPORATION. Although a corporation be compelled to answer to a bill in equity, under oath. it can be required to answer, and must answer fully.
In Equity. Bill for infringement ofletters patent. The defendant filed an answer which pleaded, (1) failure to make demand on the comptroller ofthe city of New York before bringing suit, as required by Laws N. Y. 1882, c. 41.0, § 1104; (2) denial of title; (3) non-infringement; (4) insufficient specification; (5) surreptitiously obtaining patent for invention of another; (6) want of novelty; and, (7) public use for more than two years. The complainant filed exceptions to the first defense stated,'on the ground of impertinence, and other exceptions forinsufficiency,in failing to answer the interrogatories in the bill. Oharles lV. Judson,. for complainant. Betts, Atterbury Betts, for defendants. WALLACE, J. The exceptions to the answer {or impertinence are sug. tainedfor the reasons, (1) that the laws of New York, (section 1104, c. 410, Laws 1882,) respecting the presentation of claims against the city
ANGLO-AMERICAN PACKING & PROVISION CO. V. CAN:r\ON.
313
of New York to the comptroller for adjustment before bringing suit, unly apply to such claims as can be prosecuted in the state courts by the actions or proceedings mentioned in section 1103; and, (2) if this enactment were intended to apply to actions at law brought in the federal courts, it would not apply to suits in equity. The equity jurisdiction of the courts of the United States is subject to neither limitation nor restraint by the state authorities, and is uniform throughout the different states of the Union. U. S. v. Howland, 4 Wheat. 108, 115; Payne v. Hook, 7 Wall. 430; Green v. Oreighton, 23 How. 105. The exceptions for insufficiency are also sustained. Although a corporation cannot be compelled to answer to a bill in equity under oath, it can be required to answer,and must answer fully. . Colgate v. 001npa.gn.ie Francaise, 23 Blatchf. 88, 23 Fed. Rep. 82; Kittredge v. Claremont Bank, 1 Woodb. &M. 244; Reed v.Oumberland Mm. !'Q.8. 00., 36 N. J.Eq. 393.
ANGLO-AMERICAN PACKING
&
PROVISION CO. tI. CANNON.
(Oircuit Oourt, 8. D. Georgia, W. D. June 16,1887.)
EVIDENCE-BEST IDvIDENCE.
The rule requiring the production of the best evidence of which the case in its nature is susceptible, is adopted for the prevention of fraud, and is essential to the administration of justice.
2.
SAME-ADMISSION OF SEOONDARY EVIDENCE.
8. 4:.
SAME-TELEGRAM·
SAllE-LOST OR DESTROYED TELEGRAM..
When the party offering secondary evidence testifies that the original is "lost or destroyed, " without showing a search or other facts to support his statement, the court will not adopt the conclusion of the party, and secondary evidence will be rejected. 1 A letter-press copy of a letter or telegram is merely secondary evidence.
3.
SAME-LETTBR·PRESS COPY.
(Syllab'U8 by the Oourt.)
At Law. Plaintiff brought an action for breach of contract, and tendered in evidence copies of certain telegrams which were relied on to show the contract. Defendant objected, and the objection was sustained under the following ruling of the court. Plaintiff being thereupon unable to proceed, a juror was withdrawn by consent, and the case continued. lAs to what is necessary to render admissible secondary evidence of the contents of written instruments, see De Baril v. Pardo, (Pa.) 8 At!. Rep. 876; Gordon v. State, (N. J.) 7 At!. Rep. 476, and note; Michigan Land & Iron Co. v. Townsbip of Republic, (Mich.) 32 N. W. Rep. 882; Boglarsky v. Singer Manuf'g Co., Id. 880; Burrill v. Wil. cox Lum'ber Co., lei. 824; Katzenberg v. Lehman, (Ala.) 2 Souih. Rep.272: Clayton v. Rehm, (Tex.) 2 S. W. 45.
314
FEDERAL REl'ORTER.
Bacon Rutherford, for plaintiffs. De8san &: Bartlett, for defense. SPEER, J. The plaintiff brought his action for breach of contract relating to the sale of a large quantity of meat, which the defendant refused tqreceive. The plaintiff tendered in evidence certain copies of telegrams, w.hich were relied on to show the contract. The defendant objected to tbe admission of theoopies, because the original telegrams were the. best ,evidence, and because the failure to produce them was not suffi'ciently explained to warrant the admission of secondary evidence. Upon the evidence of the plaintiff's agent waS that the copies were accurate, and that the originals "were lost or destroyed." There. was no evidence of any effort on the part of· the plaintiffs to procure the originals, if lost, or to' explain the manner of their destruction, if destroyed. The rule'requiring the production of the best evidence, of which the case in its nature is susceptible, is adopted for the prevention of fraud, and is declared to be essential to the pure administration of justice.. .1. Ev. 82. By reguiring the production of the best evidence, 'tbelaw denies the admissibility of that evidence which is merely in itsuature., when, the original evidence can be had. Until it is shown that the production of the primary evidence is out of the parties' power, no otherproof of the fact is in general admitted. ld. 84j Sebree y. Drm',9Wheat. 1558-563. " .' This principle has been well expressed in that admirable codification, which is of such value to the profession and the judiciary in this state. ,ofthe facts sought to be proved must be produced, unleSs its absence is satisfactorily accounted for." Code Ga. § 3760. Now, a telegram is a document which is executed in counterpart. Each· cotmterpaft is primary evidence as against the party executing it. Green!. Ev. 84, note a, anqauthorities there cited. It has been held that the copy delivered at the other end of the. line is the original. Durkeev. Vermont Cent. Ry.G>., 29Vt.127. 'Ithas been also held that the copy filed' in the office 'whence the message is sent is the original. Matteson v. Noyes, 25 Ill. 591. But here the plaintiff produces, neither the telegram sent nor the telegram delivered, stating generally that the originals are lost or destroyed,-a mere r.onclusion,-without giving the facts upon which he concludes that it is lost, or if destroyed, altogether OIpitting to!explain how or by whom tbis was done. There is no satisfactory the absence of theariginaL . The court cannot, upon insufficient, ignore a' saIlltary .rule', made for the protection of the property and interests of the people. ' !tis quite possible that the plaintiff voluntarily destroyed this evi· dence, and, if that were true, he wonld not be allowed to introduce secondllry u I1 tilhe, has ?fa fraudulent design in its destruction.. Blade v ·. }f.olarPd, 12 Wend. 173; Greenl. Ev.. par. 37 ·. ', .... . .... '. But a letter·presa copy stated to be the original telegram was offered. This is but secondary evidence. The supreme court of
KOEHLEB,.
815
in Watkin,s v. Paine, .57 Ga. 50, Judge Br,ECKLEY delivering the decision of the court, held that a letter-press copy is not original, but secondary! evidence; and thutdistinguished tribunal proceeds to say: The defendant's original letter-press copy book was rejected as evidence of the contents of letters which he had written to the plaintiff. The letters themselves were the primary evidence, and nothing was done to procure them, or account for their non-production. Judgment affirmed. See, also, Foot v. Bentley,44 N. Y.166, reported in 4 Amer. Rep. 652. And the supreme court of the United States in Gilbert v. Moline Plough 00., 119 U. S.491, 7 Sup. Ct. ltep. 305, refrained from holding otherwise. The copy telegrams offered must. be rejected.
Ex 1.
parte KOElILEB.
(Oircuit Oourt, D. (}regon. July 4, 1887.) CARRIEBS-lNTERSTATE COMMERCE ACT-LoNG AND SHORT HAUL-COHPETITION.
a
The fact that there is competition in the carriage of persons or property to or from a particular place is a circumstance that justifies a common carrier. under section 4 of the interstate commerce act, to charge less for a long haul fo or froDl said place than a short one included therein.
Section 2 of the interstate commerce act in effect prohibits the Jrlving of passes or free carriage to particular persons, and the exception allowed in section 22. in favor of officers and employes of the road, does not include the families of such persons. (811llabu8 by tlu Oourt.)
SAME-PASSES TO FAMILIES Oll' EMPLOYES.
Petition for Instruction. John W. Whalley, for petitioner. DEADY, J. On June 25, 1887, the receiver of the Oregon &; Califomia Railway Company filed his petition in this court, asking for direction touching certain. questions arising in. the management of the road un· der the interstate commerce act. The road is 400 !piles in length, and Portland and the. southern boundary lies wholly in this state, thereof; and since January 19, 1885, it has been operated by the petitioner, as receiver of this court. It appears from the petition that the Oregon & Califomia road will when the two will soon be connected with the Califomia & form a through line between Portland and San Francisco; that between communication by steamers and sail-vesthese points there is also sels, that carry passengers and freight at less than the average cost of transportation by rail between said places and all intervening stations; that the road of the Oregon Pacific Railwli.y Company runs from Yaquina bay to Albany, in this state, and there crosses the line of the Oregon & road, from whence it is being consttucted to the. eastwardj