respondent herein consented, agreed, and became in duty bound under said articles of consolidation to exchange his said shares of stock in the manner therein provided for such exchange." On the argument the court was inclined to the opinion that the phrase "other and divers acts" was sufficiently broad to sustain an allegation of full knowledge and acquiescence; but it is now thought that these words must be construed to mean only "acts" similar to those already enumerated. So we are brought merely to A, B, and C, with no averment that Miller ever contemplated or sought to effectuate consolidation, or had the remotest idea that such was the purpose of those who were the controlling spirits in these transactions. The facts averred are not sufficient to warrant the relief prayed in the cross-bill. As to the suggestion that having purchased stock in a corporation which might, under the statutes of the state which created it, consolidate with another, if two-thirds of the stockholders voted so to do, it is sufficient to refer to the articles of consolidation, which expressly provide for those who are unwilling to surrender their stock in the old company. The views expressed in the former opinion have not been modified by the subsequent argument of this demurrer to the cross-bill. The demurrer is sustained, and cross-bill dismissed. Exceptions to Answer to Original Bill. Certain averments are made in the bill as to the earnings of the Alton Railway lines and the disposition made of income derived by the said railway from stock of the old Alton. The answer asserts these allegations to be immaterial, and for that reason fails to admit or deny them. It is by no means certain that, even if the suit is maintained solely on the terms of the consolidation agreement, the facts as to these matters may not be helpful towards a construction of that contract. The first four exceptions for insufficiency are therefore sustained, and defendant should admit or deny the averments. The fifth exception is also well-founded. If defendant's books are so kept that it is not possible to determine readily without a long accounting whether or not earnings derived from properties and franchises of the old Alton have been applied to the payment of charges against the properties of the Alton Railway, etc., that fact should be asserted, and will excuse answering the averments of the bill in that regard. But if defendant knows the fact to be as charged, or knows that it is not as charged, the allegations of the bill in that regard should be admitted or denied. The sixth exception is overruled. The averments criticised seem to state the facts sufficiently to define the issues. It is overruled, and so is the seventh. The remaining exceptions are to the answers to some of the interrogatories annexed to the bill. Generally speaking, these ask for much fuller details than the complainant is now entitled to have. To .answer them would apparently require a long accounting, such as would ensue upon a decree for complainant on the merits. The ninth exception is overruled, and so is the twelfth. Answer to the latter will be unnecessary after defendant has amended its answer so as to meet the first four exceptions. The thirteenth and fourteenth exceptions are also overruled. The seventeenth exception is sustained. Manifestly the interrogatory is not answered fully, and no sufficient reason is shown for not answering it. The eighteenth, nineteenth, and twentieth exceptions are overruled. The answers to interrogatories 9, 10, and 11 give the information in sufficient detail for the purposes of the trial. It would seem that the so-called separate defense is not the subject of exception. The three which have been taken thereto are overruled. UNITED STATES v. BOECKMANN. (Circuit Court, E. D. New York. January 15, 1910.) FOOD ( 12*)-FOOD AND DRUGS ACT-"MISBRANDed.” A food product, labeled "Compound: Pure Comb and Strained Honey and Corn Syrup," is not "misbranded," within the meaning of Food and Drugs Act June 30, 1906, c. 3915, § 8, 34 Stat. 771 (U. S. Comp. St. Supp. 1909, p. 1191), so that its shipment in interstate commerce constituted a misdemeanor thereunder, merely because the percentage of corn syrup in the compound largely exceeds that of honey. [Ed. Note. For other cases, see Food, Dec. Dig. § 12.*] Criminal prosecution by the United States against Henry Boeckmann. On demurrer to indictment. Demurrer sustained. William J. Youngs, U. S. Atty. (William P. Allen, Asst. U. S. Atty.. of counsel), for the United States. Otto F. Struse, for defendant. CHATFIELD, District Judge. A demurrer has been interposed to an indictment charging the defendant with having shipped from the state of New York to the state of New Jersey, a certain article of food for man, labeled "Compound: Pure Comb and Strained Honey and Corn Syrup"; that the label was false and misleading, and the contents of the jar misbranded, in that "the said label represented the principal ingredient of the said contents of said glass jar to be pure comb honey," when in fact the contents were "almost wholly glucose and starch sugar, and the said contents of the said glass jar in truth and in fact consisted of a very small percentage of pure comb honey." It has been called to the attention of the court that under the authority of the statute of June 30, 1906 (Act June 30, 1906, c. 3915, 34 Stat. 768 [U. S. Comp. St. Supp. 1909, p. 1187]), certain regulations for the guidance of the public, and for carrying out the provisions of the law, have been made by the Secretary of Agriculture, and certain rulings or decisions by the Secretary of Agriculture have construed the language of the statute. For instance, Food Inspection Decision No. 75 provides that: "When both maple and cane sugars are used in the production of syrup, the label should be varied according to the relative proportion of the ingredients, For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes the name of the sugar present in excess of fifty per cent. of the total sugar content should be given the greater prominence on the label; that is, it should be given first." Also, Food Inspection Decision No. 87 provides that "viscous syrup obtained by the incomplete hydrolysis of the starch of sugar" should be labeled "corn syrup with cane flavor," if a small percentage of the product of the cane is added thereto. There is no charge of any violation of regulations, or refusal to comply with the rulings of the Commissioner of Agriculture; but the case presents an entirely distinct question, depending upon the provisions of the statute itself. In the present indictment we have an allegation that the defendant has put upon the market, for interstate commerce, an article which is misbranded, in that the label is misleading, solely because the principal ingredient is alleged to be held out to the public as "pure comb honey," when in reality "glucose and starch sugar" made up almost wholly the actual "principal ingredient." Under the decision of In re Wilson (C. C.) 168 Fed. 566, such a label as is recited would not be contrary to fact, and this court agrees in the opinion that it is impossible to say what portion of the label as printed would signify greater percentage of the product. The demurrer will be sustained. MAY v. RHODE ISLAND CO. (Circuit Court, D. Rhode Island. February 5, 1910.) STREET RAILROADS (§ 99*)—Injury at CroSSING-ACTION-CONTRIBUTORY NEG LIGENCE. Where it was shown by the positive testimony of disinterested and reputable witnesses that a plaintiff, injured while crossing the track of an electric railroad, with nothing to obstruct his view, drove upon the track such a short distance in front of the moving car by which he was struck that the motorman could not stop the car in time to prevent the accident, although he endeavored to do so, a verdict for plaintiff against the railroad company will be set aside as against the evidence. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 209-216; Dec. Dig. 99.*] Action by Patrick May against the Rhode Island Company. On petition by defendant for new trial, Granted. See, also, 72 Atl. 562. A. B. Crafts, for plaintiff. J. C. Sweeney, for defendant. BROWN, District Judge. Upon the whole testimony the plaintiff's negligence is so conclusively shown that it is evident that the jury did not observe the instructions of the court as to the law of contributory negligence. A number of disinterested and respectable witnesses testified that when the plaintiff turned to cross the track the car was so near that a collision was inevitable. According to positive testimony *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes the motorman immediately endeavored to stop the car, and his failure to avoid the collision was due, not to the lack of effort or due diligence on his part, but to the nearness of the place at which the plaintiff attempted to cross the track. The sole testimony tending to show the slightest degree of care on the part of the plaintiff is from the plaintiff himself, who says that he turned to cross behind a car going west, and that his horse's head was about one foot from the rail when he looked up the track, in the direction from which the car that struck him was coming, for a considerable distance. His statement that he looked out is directly contradicted by several witnesses, and by the fact that, if he had looked, he must have seen the car but a short distance away. Upon a former trial of this case in the state court the plaintiff recovered a verdict, which was set aside by the trial judge, whose action in so doing was affirmed by the Supreme Court of Rhode Island. 72 Atl. 562. While the fact that two juries have found for the plaintiff should have its weight, this does not relieve this court of the duty of determining whether the testimony affords any reasonable basis for a verdict to the effect that the defendant was proved guilty of negligence, and that the proof failed to show that the plaintiff was guilty of negligence. When carefully reviewed, the evidence shows beyond a reasonable doubt the plaintiff's negligence, and is clearly insufficient to justify a finding that the defendant's motorman was negligent. Petition for a new trial is granted. HITNER et al. v. DIAMOND STATE STEEL CO. (Circuit Court, D. Delaware. February 26, 1910.) No. 260. (Syllabus by the Court.) 1. CORPORATIONS (§ 568*)-INSOLVENCY-PAYMENT OF CLAIMS. One having a pecuniary claim ascertained in amount against an insolvent corporation in the hands of receivers, and holding collateral security for its payment, has a right in equity to receive out of its general assets pro rata dividends calculated on the basis of the amount of the corporate indebtedness to him existing at the time of the declaration of insolvency, including interest thereon, if any, to that time, without regard to such collateral security or any payment or payments he may have received on account of his claim since that time, provided, that he shall not receive and retain from any or all sources more than the real amount of his claim, with interest thereon until paid, aside from any costs, charges and expenses incurred by him in the enforcement of or realization upon such collateral security. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 2288; Dec. Dig. § 568.*] 2. CORPORATIONS (§ 568*)-INSOLVENCY-RIGHTS OF SECURED CREDITOR. One having a pecuniary claim ascertained in amount against an insolvent corporation in the hands of receivers, holding as collateral security for its payment bonds issued to him by it as such collateral, secured by a mortgage of a portion of its property executed by it, has no right in equity to receive out of its general assets pro rata dividends calculated on the basis of the aggregate amount not only of the corporate indebtedness to *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes him existing at the time of the declaration of insolvency, including interest thereon, if any, to that time, but also of the face value of such bonds so far as unpaid at that time including the stipulated interest thereon. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 2288; Dec. Dig. § 568.*] 3. CORPORATIONS (8 568*) — INSOLVENCY - DISTRIBUTION OF ASSETS - UNPAID BALANCE. There is a broad distinction between continuance in force of the contractual relations, notwithstanding insolvency, between lender and borrower where collaterals have been pledged, and ability to contravene the equitable rule of equality, subject to established liens, preferences and priorities, as between creditors with respect to general assets. It is a function of a suit in equity brought for the purpose of administering the affairs, paying the debts, and distributing the assets of an insolvent corporation, through or by means of a receivership, to effect a pro rata distribution of such assets among the creditors, subject to established liens, preferences and priorities, and a creditor, whether secured or unsecured, has obtained full satisfaction of his claim with respect to the general assets, so far as the particular proceedings in equity are concerned, when, aside from any lien, preference or priority held or possessed by him, he has received his full pro rata share of the general assets. If he has not received payment in full of the real indebtedness to him, the unpaid balance still constitutes a claim against the corporation which he may or may not succeed in collecting at some future time. It is as unsound to assume that he may receive from the general assets double dividends by reason and on account of two promises or obligations made for one and the same debt as it would be to assume that in a case of solvency the same creditor could receive double satisfaction by reason of a mere duplication of a promise or obligation. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 2288; Dec. Dig. § 568.*1 In Equity. Action by Henry A. Hitner and Joseph G. Hitner against The Diamond State Steel Company. Exceptions to report of special master. Exceptions sustained in part. William Clarke Mason, for exceptant. BRADFORD, District Judge. This case comes before the court on exceptions to the report of the special master. The Diamond State Steel Company was declared insolvent by this court December 12, 1904, and on the same day receivers were appointed who forthwith qualified and entered upon the discharge of their duties. The steel company then owned a manufacturing plant in Wilmington, including real and personal property, of which the larger part was subject to the lien of a mortgage executed by the company May 1, 1901, to secure an issue of bonds to be made, bearing the same date, of the face value of $1,000,000, and also a further issue of bonds of the face value of $750,000, to be made from time to time as should be authorized by the stockholders to secure working capital and extensions to the plant. All of the first mentioned amount of bonds were issued and outstanding either as collateral or in absolute ownership at the time of the declaration of insolvency and known as first mortgage bonds. The property covered by the mortgage has been sold free and discharged from the mortgage lien, the right being secured by order of this court to holders of bonds *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 176 F.-25 |