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rate basis being Amarillo, and other lists of stations carrying differentials with Amarillo; that is to say, the tariff indicating that certain sums should be added to or deducted from the Amarillo rate basis. By a note on page 24, it is explained that the differentials shown in section 1 are to be added to or deducted from the Amarillo rates as shown in section 2, pages 32 to 51, inclusive, to arrive at the through rate, where application and routing is provided on pages 56 to 69. By the same note, it is further explained that, where no differentials are shown, the Amarillo rates as shown in section 2 are to be applied as indicated. By another note, explanatory of section 2, it is stated that rates shown in section 2, in columns headed “Amarillo," are to be applied from stations shown in section 1 as taking Amarillo rate basis, or same are to be used as a basis for arriving at through rates from stations shown in section 1 as taking differentials over or under Amarillo rates, where application and routing is provided on pages 56 to 69, inclusive, from such point of origin to destination station. 56 is found another note explaining application of rates, which reads:

"Rates provided herein from points of origin shown in section No. 1 to points of destination shown in section No. 2 will apply only via the routes indicated in chart on page 57, except as provided in item 350.”

The exception is without application here. Note 1 to the above explanation further provides :

"Where route number is not shown, there are no through rates applicable froin the originating line to the destination line via any route, except as specifically provided in section No. 3."

These several explanatory notes respecting the application of the tariff must be construed together, to ascertain their true meaning. Reading the explanatory note to section 1 by itself, and without reference to the succeeding notes, its meaning would appear to be plain that, where there were differentials, the rates shown in section 2 would not apply, unless the routing was provided on pages 56 to 09, but that, where there were no differentials shown, the shipment would take the section 2 rates, without regard to whether the application and routing were provided on pages 56 to 69 or not. The note to section 2 merely emphasizes the thought that shipments from stations carrying differentials with Amarillo will take the through rate only where the application and routing are provided for on pages 56 to 69.

When, however, we turn to the note on page 56 respecting the application of rates, we are advised that rates from points of origin shown in section 1 to points of destination shown in section 2 will apply only via the routes indicated on page 57. This is a specific declaration, general in its scope, without reference to differentials, that the rates so provided will apply only via the routes indicated on page 57. The note thereto is but a reinforcement of the idea. Page 57 is, of course, included within the limitations of pages 56 to 69. So that these later explanatory notes are but a development of the intention which possessed the rate maker from the beginning, and that must be construed to be that shipments from Amarillo common points, whether carrying a differential or not, shall not take the through rate, unless where application and routing are provided on pages 56 to 69.

Recurring again to note to section 1, page 24, the words "as indicated” in the last clause, as applying "where no differentials are shown," are susceptible of a construction, though not the natural one, viewing the context, as signifying or denoting a reference to the preceding clause and also to the note to section 2, page 32, as this latter note refers back to the item on page 24. So that the aforesaid latter clause would read that the rates shown in section 2 are to be applied as indicated by these explanatory notes, and not by section 2. This idea harmonizes the seemingly inconsistent and incongruous explanatory notes.

But, whatever may be the true rendering of the notes to sections 1 and 2, the notes on page 56 explaining the application of rates” are directly applicable to the present controversy, as no Oregon Short Line Railroad routing is shown of shipments coming from and over the Pecos & Northern Texas Railway on page 57; and, as we have seen, the regulation is general, and specifically limits the application of rates from points in section 1 to points of destination in section 2 to the routes indicated in the chart on page 57.

This construction of the tariff results in a finding for the plaintiff in each cause of action, and upon all the counts as prayed. The findings will be general, but judgment thereon will be withheld until the defendants have had an opportunity to present such findings as they may deem essential for reserving such questions for review as they may desire.

In re FRANCISCO.

(District Court, N. D. New York. September 17, 1917.) 1. BANKRUPTCY Ow20(1)-PETITION-CONSENT.

Though the judge of the state court, 'on proceedings supplementary to execution, directed that one who subsequently became a bankrupt should not dispose of any funds in his hands, such person might for the institution of bankruptcy use funds exempt from execution, or with the consent

of the owner funds in his possession belonging to another. 2. EVIDENCE 82--PRESUMPTIONS.

It will be presumed, where pending proceedings in the state court supplementary to execution the judgment debtor instituted voluntary proceedings in bankruptcy, that the state court, in determining whether the

judgment debtor was guilty of contempt, will properly perform its duties. 3. BANKRUPTCY Cw20(1)-JURISDICTION-CONTEMPT.

While proceedings supplementary to execution were pending in the state court, the judgment debtor instituted voluntary proceedings in bankrupt«y. He was adjudicated a bankrupt, and the judgment creditor, claiming that he had violated an order of the state court prohibiting him from disposing of his property, sought to continue the supplementary proceedings and to have the judgment debtor punished for contempt. Held, that the state court had jurisdiction to determine whether the debtor was guilty of contempt; it being his duty to obey the orders of such court until a stay should be granted by a court of competent jurisdiction, and a fine for contempt not being a debt dischargeable. Also held, the bankruptcy court can enjoin the party from further prosecuting the supplementary proceeding, except in so far as it relates to the punishment of a contempt committed therein prior to such bankruptcy. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

4. BANKRUPTCY 20(1)—CUSTODY OF BANKRUPT-HABEAS CORPUS.

In such case, as the presence of the judgment debtor in bankruptcy proceedings could be procured by habeas corpus, proceedings to punish him for contempt will not be stayed, on the ground that his presence in the bankruptcy court might be necessary, and that imprisonment would interfere with the proper conduct of such proceedings. In Bankruptcy. In the matter of the bankruptcy of Charles L. Francisco. On order to show cause why further proceedings supplementary to execution on a judgment obtained in the state court prior to the filing of the petition in bankruptcy, including proceedings to punish the bankrupt for alleged contempt, should not be stayed until the question of discharge should be determined. Supplementary proceedings stayed, but order of stay denied as to proceedings to punish for contempt.

Hearing on order to show cause, granted by referee in bankruptcy, why further proceedings in proceedings supplementary to execution on a judgment obtained in the state court prior to the filing of the petition in bankruptcy, including proceedings to punish for alleged contempt of the state court, should not be stayed until the question of discharge is determined. The alleged contempt is claimed to have been committed prior to the institution of the bankruptcy proceedings. The plaintiff in the execution and judgment in the state court moves to vacate the temporary stay granted by the referee, and asks that the injunction prayed for be denied. The bankrupt asks that the temporary stay be made permanent, including the proceeding to punish the bankrupt for alleged contempt in disobeying the order of the state court enjoining the now bankrupt from disposing of any of his property.

William H. Lynes, of Delanson, N. Y., for bankrupt.
Thomas R. Tillott, Jr., of Schenectady, N. Y., for judgment creditor.

RAY, District Judge (after stating the facts as above). It appears from the papers in the case that Charles L. Francisco was adjudged a bankrupt on the 11th day of May, 1917. He was owing the International Milk Products Company, on a judgment obtained prior to the filing of the petition in bankruptcy, the sum of $224.73. This claim or judgment is one from which a discharge in bankruptcy would be a release. Prior to the filing of the petition in bankruptcy an execution had been returned unsatisfied, and proceedings supplementary to execution on such judgment had been commenced and were pending in the County Court of the county of Schenectady, N. Y., before the county judge of that county. The order of the county judge prohibited Francisco from disposing of any of his property, but notwithstanding such order, on filing his petition, in order to pay his attorney, he used some money which he had in his possession. A part of this money he claims, and files affidavits tending to show, did not belong to him at all, and the remainder the bankrupt claims, and files affidavits tending to show, was money earned and paid to him within the preceding 60 days for his personal services, and was his personal earnings, and exempt from the supplementary proceedings.

The judgment creditor in the execution claims that all of this money belonged to the bankrupt, and that he paid it to his attorney to institute the bankruptcy proceedings in defiance of the order of the county judge and in violation thereof. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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[1, 2] It is plain that the bankrupt, with the consent of the owner thereof, had the right to use money in his possession which did not belong to him for the purpose of instituting the bankruptcy proceedings. It is also plain that the county judge of Schenectady county could not interfere with the use by the now bankrupt of money which was not subject to the order or jurisdiction of the county judge or County Court, but was absolutely exempt. It is presumed that the county judge will properly perform his duties, and see to it that no wrong is done the bankrupt in proceedings to punish him for contempt. It is a question for the county judge or County Court of Schenectady county to determine whether or not Francisco was guilty of a contempt of court. It is claimed in behalf of the now bankrupt that the proceeding supplementary to execution had run down and was not in force at the time the petition in bankruptcy was filed, but that is a question for the county judge to determine.

[3] This court in bankruptcy can enjoin further proceedings looking to the collection of the judgment from the property of the bankrupt, and can enjoin further examination of the now bankrupt in such proceeding; but I do not think this court in bankruptcy has any power to enjoin a proceeding in the County Court of Schenectady county, or before the county judge of that county, to punish Francisco for an alleged contempt of that court committed by him prior to the institution of the proceedings in bankruptcy. Up to the time the bankruptcy proceedings were instituted it was the duty of the bankrupt to obey all lawful orders of the County Court, or of the county judge. Unless a stay was granted by some court of competent jurisdiction, it was the duty of the now bankrupt to obey such lawful orders, even after the bankruptcy proceedings were instituted. Here there is no claim that the alleged contempt was committed after the institution of the bankruptcy proceedings. The claim is that the alleged contempt was committed before that time. A fine imposed for alleged contempt, if contempt is found, would not be a debt dischargeable in bankruptcy.

I think the order of the referee enjoining further proceedings in the proceedings supplementary to execution, so far as it enjoins punishment for contempt of court, if any, committed before the institution of the bankruptcy proceedings, should be vacated, and the application for an injunction or order restraining such a proceeding should be denied. The plaintiff in that execution and judgment should be enjoined from taking further or other proceedings under such order or in such proceeding for the collection of the debt, as the claimant may prove his claim and share with the other creditors. Punishment for the contempt of court, if any, is another matter, and a question to be passed upon by the county judge, with all the facts before him. The County Court will be able to determine whether or not there was a contempt, and whether or not it was willful, and what punishment, if any, should be imposed, if Francisco is found guilty. There will be an order enjoining and staying the International Milk Products Company, its agents and servants, and all other persons, from taking further proceedings in the proceeding supplementary to execution, except in so far as it relatesto an application to the county judge or County Court to punish Fran

cisco for a contempt committed prior to the institution of the bankruptcy proceedings.

(4) It is contended that, if the bankrupt is found guilty of and punished for the alleged contempt, it will interfere with the proper conduct of the bankruptcy proceedings. I cannot see that it will have this effect. If the bankrupt is found guilty of a contempt and punished by fine or imprisonment, this court has ample power by writ of habeas corpus to bring the alleged bankrupt before the court in case he is imprisoned.

There will be an order accordingly.

MURPHY y. MITCHELL.

(District Court, N. D. New York. October 16, 1917.) 1. PLEADING 369(1)–ELECTION BETWEEN CAUSES OF ACTION.

When the complaint contains appropriate allegations upon which a claim for equitable relief may be based, and which would seemingly also justify a recovery of damages as in an action at law, plaintiff should be required to elect on which ground he will proceed, or to so plead that there may be no mistake in this regard on the part of defendant or the court, in view of the distinction in the federal courts between actions at law and in equity, and the different manner of testing the sufficiency of

the pleading. 2. DAYAGES 141—PLEADING-SUFFICIENCY.

It is unnecessary for a pleading to show in so many words that plaintiff has sustained damages, if he alleges facts showing that he has sustained damages and demands judgment based thereon for a sum

named. 3. ACTION 25(2)—NATURE OF ACTION-LEGAL OB EQUITABLE.

A complaint alleged that the estate of S. was in excess of $1,000,000, that by a valid will and codicil plaintiff and her sister were made residuary legatees, and would have been entitled to as much as $800,000, that defendant made verbal representations and statements, fully set out, inducing the testator to change his will, or make a new one, when he was incompetent, that probate of this will was secured by fraud and deceit, and that by fraud and deceit plaintiff was induced to accept a small legacy given under this last alleged will. Held, that the suit could not be treated as one in equity to set aside the proof and probate of the lastmentioned will for fraud and deceit, but was apparently an action at law

for damages for the fraud and deceit. 4. PLEADING 367(4)—MAKING DEFINITE AND CERTAIN-ACTIONS FOR FRAUD.

Assuming that the action was one at law for deceit, allegations of false representations by others than defendant, not speaking for or representing him, or not made by his authority or procurement, were irrelevant, and the complaint should be made definite and certain as to what representations were made by defendant and what representations by others, and whether the representations by others were by his authority and procurement. At Law. Action by Mary E. Murphy against John Clark Mitchell. On application to require plaintiff to make her complaint more definite and certain. · Application granted to the extent stated in the opinion.

Application on order to show cause for an order directing the plaintiff to Teplead and make her complaint more definite and certain, by stating clearly

For other cases see same topic & KEY-NUMBER in"all Key-Numbered Digests & Indexes

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