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of the evidence indicates a permanent injury. There is, however, à conflict of testimony. One doctor of great skill and learning, of the highest character and of unquestioned honesty, testified that there was nothing the matter with the plaintiff which could be attributed to the accident. When he testified, I could see that his testimony did not tend to persuade the jury; but that, on the other hand, it prejudiced them against the witness, on account of the summary and severe view which he expressed, and that it may have influenced them against the defendant. The witness was unquestionably conscientious in his belief; but such belief was contrary to that of the other physicians who testified, and at great variance with the conclusion to which the jury came. It is sometimes the duty of the court to prevent any unfair preju ice from controlling the jury. But in this case the defendant deliberately offered the testimony to which I have alluded. Its prejudicial effect upon the jury cannot be a reason for the court to grant a new trial. While the physician to whom I refer was the only one who testified that the plaintiff was not suffering from the injury which forms the basis of this case, there was much conflict of evidence among the medical men. By his appearance, as well as by his testimony, the plaintiff himself induced the belief in the minds of the jury that he had received a painful and permanent injury. From a careful analysis of the testimony,

in my opinion, there was evidence from which the jury could fairly find that his injury was permanent. It is the province of a jury to pass upon cases of conflicting evidence. In this case the jury evidently believed the testimony of the plaintiff and his physicians, and did not give credence to the medical testimony offered by the defendant. After a full examination of all the evidence upon this question, I cannot say that the jury have exaggerated the damages; and I conclude that it is not my duty to disturb the verdict.

The motion of the defendant for a new trial is denied.

TACOMA RY. & POWER CO. V. PACIFIC TRACTION CO. et al. (Circuit Court, W. D. Washington, W. D. July 30, 1907. On Rehearing,

August 10, 1907.)

No. 1,160.

A street railroad company, whose right to occupy a city street is being contested by the city, which is by statute vested with the control over its streets, cannot maintain a suit in equity to enjoin another company from occupying such street, to which suit the city is not a party; it being impossible for the complainant to establish a legal right in such suit as a basis for the relief prayed for. In Equity. Suit by a street railway corporation for an injunction to prevent a rival street railway company from occupying a public street in such a manner as to obstruct the complainant in laying tracks for an extension of its system. On final hearing. Injunction refused and suit dismissed.

B. S. Grosscup, A. G. Avery, and C. O. Bates, for complainant.
Ellis & Fletcher, for defendants.

HANFORD, District Judge. The Tacoma Railway & Power Company, complainant, commenced this suit against the Pacific Traction Company, which is a rival street railway corporation, and its manager, B. J. Weeks, and the Independent Asphalt Paving Company, a contracting corporation, which at the time of commencing the suit was engaged in paving Commerce street, in the city of Tacoma, and two other defendants, designated in the bill of complaint by the fictitious names of John Doe and Richard Roe. Pursuant to a stipulation of the parties the case has been dismissed as to the Independent Asphalt Company, and the court has not acquired jurisdiction of the mythical John Doe and Richard Roe. Therefore the case as presented on the final hearing is merely a controversy between two rival street railway companies for the right to occupy with railway tracks the center of a public street.

The complainant's claim to a prior and superior right is based upon an ordinance of the city of Tacoma granting a franchise to a corporation named “Point Defiance Railway Company” for the construction and operation of a street railway system in certain streets of the city of Tacoma, including the street in question, which franchise it claims to own as successor of the grantee, and a permit from the commissioner of public works of the city of Tacoma. The evidence proves that the franchise was granted in 1890. Section 1 of the ordinance comprehended lines of street railway which were at the date of the ordinance already constructed and in use. Section 2 of the ordinance contemplated lines of railway in certain streets between designated points, including that part of Commerce street, north of Ninth street, which is the subject of this controversy. No part of said contemplated lines have been constructed, and the first attempt to construct any part of the same was on the day preceding the date of the commencement of this suit, to wit, June 7, 1907, and the permit from the commissioner of public works did not issue until said date, and subsequent to the time at which the complainant had commenced work. Section 214 of the Tacoma city charter of 1890, which became effective after the grant of the franchise to the Point Defiance Railway Company, provides as follows:

"All franchises or privileges heretofore granted by this city which are not in actual use or enjoyment, or which the grantees thereof have not in good faith commenced to exercise at the time of the adoption of this Charter, are hereby declared forfeited and of no validity, and it shall be the duty of the city council to carry out the provisions of this section by the enactment of ordinances repealing said, franchises."

The brief filed in behalf of the complainant contains a statement to the effect that the complainant, after commencing to place its tracks across Ninth street, and extending northward into Commerce street, "continued to work as best it could until the afternoon or evening of said day, when it was enjoined from further proceeding by an injunction issued from the superior court of the state of Washington for Pierce county, at the instance of the city of Tacoma.” It is the opinion of the court that the complainant has no standing in a court of equity to obtain an injunction. The fatal point in the case is in the fact that the object of the suit is to obtain an injunction to protect a


disputed legal right. The admission that the city of Tacoma is aggressively opposing the extension of the complainant's tracks in Commerce street, and that it has sued out an injunction against such extension, puts the complainant out of court. Erhardt v. Boaro, 113 U. S. 537, 5 Sup. Ct. 565, 28 L. Ed. 1116.

The long delay of the grantee in commencing to use its franchise, and the declaration of forfeiture in section 214 of the city charter, and the authority of the city government to control the use of its streets, shows that there is probable cause for the suit which the city is prosecuting, and until the issues in that case shall have been adjudicated it will be impossible for the complainant to prove the legal right which is the foundation of its case in this court. By the laws of this state the control of the public streets in incorporated cities is delegated to the city governments, and within the limitations of its authorized powers the legislative branch of the city government of Tacoma is authorized to permit or restrain the construction of railway tracks and the operation of street railways in the public streets of that city. If the city council of Tacoma stands as sponsor for any attempt to deprive the complainant of vested rights contrary to law, the city is necessarily an indispensable party to any suit or proceeding to obtain judicial protection, for the reason that a decree which would not bind the city would be nonenforceable. I have no doubt that this court might grant an injunction to restrain the unauthorized use and occupation of a public street, in such a manner as to interfere with the enjoyment by the complainant of its legal rights. Seattle Gas & Elec. Co. v. Citizens' Light & Power Co. (C. C.) 123 Fed. 588; Gen. Elec. Ry. Co. v. Chicago, I. & L. Ry. Co., 98 Fed. 907, 39 C. C. A. 345, 58 L. R. A. 231. By “legal rights” I mean rights which have been firmly established and are undisputed or indisputable; but it is contrary to the principles of equity to grant an injunction to a complainant for the protection of rights which are disputed and the subject of litigation, when there is no threatened irreparable mischief to be prevented.

It is obvious that a decision of the vital question in this case will not settle the controversy, nor have any effect upon the rights of the parties before the court, otherwise than as a possible make-weight to influence the state court, in which the city of Tacoma is a litigant, in rendering a judgment for or against the complainant. But the court cannot legitimately render an opinion for any such purpose. I consider that it would be impertinent for a court, which does not have jurisdiction of an indispensable party, to volunteer advice to a court which has complete jurisdiction; and, although the parties in court have submitted the case for a decision on the main issue, it must be dismissed, because the case is not cognizable in equity without the presence of the city of Tacoma.

Let a decree be entered, denying the application for an injunction and dismissing the complainant's bill, with costs.

On Rehearing The complainant has petitioned for a rehearing; the most substantial ground assigned being error of the court in assuming that there is litigation pending between the city of Tacoma and the complainant affecting the right to extend its tracks in Commerce street. Conceding the error, and that the supposed lawsuit must be eliminated from consideration, I am nevertheless still of the opinion that the decision heretofore rendered is right. Although the injunction suit has been dismissed, and at present there is no actual litigation, it is still true that there is an unsettled controversy between the city government and the complainant concerning this matter, and the city must be reckoned with or coerced before the tracks can be extended. This court cannot determine that controversy, for the simple reason that the city is not a party to this suit.

Petition denied.



A petition by one who sold goods to a bankrupt firm during several months prior to its bankruptcy, seeking to rescind the sales for fraud and to reclaim all of the goods remaining, will not be considered and referred for hearing, under the peculiar circumstances of the case, unless it not only alleges all the facts necessary to entitle the petitioner to rescind, but also sets out all the transactions and describes the goods in detail.

In Bankruptcy. On petition of American Woolen Company for reclamation of certain goods in possession of the receiver.

For former opinion, see 148 Fed. 654.
Hays & Hershfield (Ralph Wolf, of counsel), for the motion.
James, Schell & Elkus (James N. Rosenberg, of counsel), opposed.

HOUGH, District Judge. Viewing the petition in reclamation as a pleading, it seems to me obvious that it should contain all the allegations necessary to sustain a complaint in trover and conversion, or required by the strictest practice in an affidavit for replevin. This petition rests upon the attempted rescission of a contract which, in the language of the pleader, the American Woolen Company “does now elect to rescind.” The ground of rescission is that the contract in question (i. e., a contract of sale) was induced by a false statement of solvency made by the bankrupts to the petitioners, upon which statement the petitioners relied. These facts, if true, are obviously insufficient to warrant a rescission. It must be further alleged and proved as a part of the fraudulent action of the bankrupts that at the time of making the contract of sale, now sought to be rescinded, they did not intend to pay for the goods received in pursuance of said contract. Considering the manner in which this question is brought to the attention of the court, I think the petition should be treated as a pleading objected to by general demurrer.

Under such circumstances every allegation of the complaint is to receive its most favorable intendment for the pleader, and I therefore hold that the statement in the eleventh article of the petition, to the effect that at all times between the 6th of December, 1905, and the 6th of September, 1906, Levi & Picard received goods from the petitioner "with intent to defraud the petitioner,” and “concealed the fact of their said insolvency from your petitioner for the purpose of defrauding your petitioner," as a sufficient allegation of intent not to pay. This proceeding is brought, however, in a court having the lawful physical possession of the goods in question, or some of them. The recaption of these goods by the vendor at this stage of the proceeding is a very serious interference with a profitable realization of the bankrupt's assets, and is to be granted only upon equitable considerations to be applied to the circumstances of each case. The facts attending this particular bankruptcy are peculiar. It is needless to recapitulate them, further than to say that the insolvency of the firm came as a surprise, not only to the trade, but, as I believe, to the bankrupts themselves. This petition apparently asks for the return of all goods (found in the receiver's possession) delivered by the woolen company to the bankrupts during a space of nine months. In order to validate a rescission under such circumstances, the referee who tries this reclamation must believe that during all that considerable length of time every piece of dry goods ordered by the bankrupts from the woolen company was so ordered with a contemporaneous intent not to pay for the same.

With this legal necessity obviously existing, I do not consider it equitable to grant the usual order, until the petitioner has much more fully explained to the court, and under oath, the history of those transactions between itself and the bankrupts which are now sought to be rescinded. The application for reclamation will therefore be denied, unless within 10 days from this date the petitioner files as a portion of its moving papers an affidavit, verified by one of its officers, setting forth in detail: First, each sale made by it to the bankrupts between December 6, 1905, and September 6, 1906, showing (a) what goods were sold and delivered; (b) what was the price of the goods so sold and delivered; (c) how much, if any, of said price has been paid by the bankrupts to the woolen company; and, second, showing to what sale item each item of goods now in the possession of the receiver belongs; that is, when each piece of goods now sought to be reclaimed was sold and delivered. This direction is given on the assumption that the petitioner has had an inspection of the goods in the receiver's possession. If no such inspection has been had, one may be granted by the receiver without further direction from the court.

Upon the filing of such affidavit the papers may again be brought to my attention, and I will take the matter up de novo. If no such affidavit be filed within the time now set, an order of course may be entered, denying the application for reclamation.

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