ganization of the corporation and these transfers took place in October, 1907, and in January, 1908, a new mortgage was drawn up to take the place of the then expiring $1,500 mortgage. This new mortgage was properly executed and recorded; but no consent of twothirds of the stockholders was obtained, as required by the statutes of New York, being chapter 688, p. 1824, of the Laws of 1892, as amended by chapter 354, p. 961, of the Laws of 1901 (now section 6, c. 59, Consol. Laws [Laws 1909, c. 61]), by which a stock corporation is given power to borrow money and mortgage its property, upon the consent of not less than two-thirds of the capital stock in writing, or by vote at a special meeting called for that purpose, upon a similar notice to that required for the annual meeting, unless the mortgage in question be a purchase-money mortgage. The petition in bankruptcy was filed upon the 23d day of May, 1908, which was within four months after the execution of the last chattel mortgage; but the satisfaction of one chattel mortgage and an extension of time to collect would seem to be sufficient consideration to make a mortgage valid, if all requirements are observed. It would also seem that a trustee in bankruptcy can, for the benefit of creditors, under the New York state statutes, contest the validity of a chattel mortgage. The 12 months within which Mrs. Meany can file a claim as a general creditor, if her security is not held valid, has elapsed; but her claim has been presented in such a way that it would need but an amendment to protect her in that regard. In re Strobel (D. C.) 155 Fed. 692. If the corporation attempted to question the giving of the mortgage, it might be estopped, under the doctrine of Hamilton Trust Co. v. Clemes, 17 App. Div. 152, 45 N. Y. Supp. 141, affirmed 163 N. Y. 423, 57 N. E. 614, unless it returned the property; but creditors are not subject to such equitable estoppel. It is also impossible to find, as a determination of fact, that Mrs. Meany, some three or four months before the expiration of her mortgage, intended to be a party to the sale of the chattels to the new corporation, and then and there agreed to take later a corporate mortgage as a purchase-money mortgage to herself. On the contrary, it is plain that she allowed the chattels to be transferred subject to her title, with the idea that she could be secured in the future. If all the creditors were stockholders who had knowledge of the making of the chattel mortgage in question, but who had not signified their consent, the doctrine of estoppel might apply as to them; but in the absence of a certificate or consent in writing, to accompany the mortgage when filed, making it presumptively valid, it would not seem that creditors can have lost their rights by the filing of a mortgage, which ultimately proves not to have been properly executed, and where no ground of estoppel can be shown. Mrs. Meany must be left as a general creditor of the estate for the amount of her debt, and an amended claim therefor may be filed. WESTLAKE v. MARRIN et al (Circuit Court, E. D. Pennsylvania. February 15, 1910.) No. 231. EQUITY (§ 412*)-REFERENCE TO MASTER-EXAMINATION OF PARTIES PRO INTERESSE SUO-REMAND. Where, in a suit involving title to real property, an order was made for the examination of certain claimants of an interest therein pro interesse suo, and they filed no answer to the petition, order, and affidavits, and offered no proof in their own behalf, and it appeared that they did not fully understand what was required of them, the master's finding, on the evidence introduced, that the claimants had no title to the property, and that it belonged to complainant as administrator, would be set aside, and the record referred back to the master for further proceedings. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 924-926; Dec. Dig. § 412.*] Suit by Walter Westlake, as administrator of Caroline Barry, against Frank C. Marrin and others. On the master's report, following an examination pro interesse suo. Case remanded to master for further proceedings. William P. Maloney, for complainant. John McConaghy and Hampton L. Carson, for respondents. HOLLAND, District Judge. This is a petition, filed by the complainant in the original suit above mentioned, upon which this court made an order for the examination of certain parties pro interesse suo, and appointed Henry M. Tracy master for the purpose of conducting this examination. Certain parties, to wit, Eugene C. Bonniwell, Benjamin T. Welsh, Franklin Lyle, James R. Shoch, Edward P. Doyle, and Thomas Killough, claimed an interest in property which had been conveyed to Walter Westlake, the above-mentioned complainant, by Marrin and wife, under a decree of this court some time ago, and subsequently to acquiring title Westlake attempted to sell this property so claimed in Philadelphia at public sale, when these parties asserted their claim under an alleged contract of sale which they had placed of record in this city. The parties appeared before the master, but did not present any evidence of their title, nor did they controvert any of the allegations set forth in the original bill above mentioned, filed in this court, upon which the decree was made directing Marrin to convey the property to the complainant. The master, upon the evidence submitted by complainant, came to two very important conclusions in connection with this proceeding. The first is that this court had jurisdiction to make this order for an examination pro interesse suo; and, second, he found that the claimants to this property had no title whatever, but that it belonged to the complainant, as administrator of Caroline Barry, deceased. I regard the statement of these two important findings as sufficient for such disposition of the case as the record as it now stands seems For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes to warrant. At the argument it appeared that the parties claiming an interest in this real estate did not fully understand what was required of them. At any rate, as stated by the master in his report, they "made and filed no answer thereto [that is, the petition, order, and affidavits in this proceeding] and offered no proof on their own behalf." So that, while the findings of fact in the master's report may be justified. from the evidence submitted to him, although upon this I express no opinion, yet it is clear that these parties have not had a hearing as to their title to this property, and, if this proceeding can be maintained in its present form, it is proper that they should be given a fair chance to present their proofs in support of their claim. As this whole matter must go back to the master for the purpose of taking, further testimony, in order that all the material facts may appear, and the claimants be given a chance to defend their title to the property in dispute, it is proper, we think, at the same time to have the master report on the matters of law which are properly raised on the record. The report and whole record are referred back to the master for the purpose of passing upon the following questions: 1. As this proceeding is brought in the name of Walter Westlake, as administrator of the goods, chattels, and credits of Caroline Barry, deceased, can it be maintained in the United States courts sitting in Pennsylvania, he being an administrator deriving his authority as such from the courts of another state? 2. And, even if this proceeding could be amended, substituting Westlake as the record owner of this property, instead of Westlake, as administrator, etc., could he then, as owner, try the title to this real estate in this proceeding? 3. Can an examination pro interesse suo be had by any one, except a claimant for property, real or personal, in the hands of the court in sequestration proceedings, or by reason of the appointment of a receiver, or by some other means? 4. If this proceeding be restricted to a claim for property in the hands of the court, can the property in question be regarded as within the control of the court to an extent to enable it to settle the claim of title of parties in such a proceeding? 5. In case this proceeding is properly instituted, and can be maintained under the circumstances, are the claimants entitled to a decree in their favor upon the proofs they may see fit to offer, and, if entitled to a decree, the form thereof? SOVEREIGN BANK OF CANADA v. STANLEY. (Circuit Court, S. D. New York. February 21, 1910.) 1. PLEADING (§ 192*)-DEFENSES-ARGUMENTATIVE DENIALS. In an action for the value of certain ostrich feathers alleged to have been received by defendant's testator in a fiduciary capacity, defendant alleged for her first defense that her testator was a member of a firm which received the feathers under agreement that plaintiff would make advances on them; second, that the firm should sell the feathers, deposit the proFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes ceeds to its account in the bank, and pay out the advances to plaintiff; and, third, that the feathers were not received by the firm or testator in a fiduciary capacity. The fourth defense alleged the same transaction, but that the advances were a firm obligation, and that plaintiff had not exhausted its remedies against the surviving members. The fifth defense repeated the agreement, and alleged that defendant's testator died insolvent, and that plaintiff's claim was subordinate to the claims of the individual creditors. Held, that such defenses were demurrable, as argumentative denials. [Ed. Note. For other cases, see Pleading, Cent. Dig. § 416; Dec. Dig. § 192.*] 2. PLEADING (§ 392*)-VARIANCE. Where plaintiff sought to recover the value of certain ostrich feathers, alleged to have been deposited with defendant's testator in a fiduciary capacity, proof that the transaction was with a firm of which testator was a member would constitute a fatal variance. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1315, 1316; Dec. Dig. § 392.*] 3. PLEADING (§ 11*)—DEFENSES—IRRELEVANT SURPLUSAGE. Where plaintiff sought to recover the value of certain goods alleged to have been deposited with defendant's testator in a fiduciary capacity, allegations in separate defenses that the transaction was with a firm of which testator was a member, that plaintiff had not exhausted its remedies against the firm, and the insolvency of the estate constituted a pleading of evidence, and were irrelevant surplusage. [Ed. Note. For other cases, see Pleading, Cent. Dig. § 31; Dec. Dig. § 11.*] 4. PLEADING (§ 114*)-TRAverse. In general, all evidence is admissible under a traverse which contradicts the truth of the allegations denied, and should not be pleaded. [Ed. Note. For other cases, see Pleading, Cent. Dig. § 238; Dec. Dig. § 114.*] Action by the Sovereign Bank of Canada against Martha F. M. Stanley, as executrix, etc. On demurrer to certain alleged defenses. Sustained. The complaint is to recover for the value of certain ostrich feathers, which the defendant's testator received as the plaintiff's property and in a fiduciary capacity. Having received it, he sold it, and in exchange received as the property of, and in a fiduciary capacity for, the plaintiff, certain negotiable instruments, which he then transferred to certain banks to which he was indebted, and so converted them to his own use. The answer contains denials and six defenses. Of these, the plaintiff demurs to the first, fourth, and fifth. The first defense alleges, first, that the defendant's testator was the member of a firm which received the ostrich feathers under agreement that the plaintiff would make advances upon them; second, that the firm should sell the feathers, deposit the proceeds in its accounts in banks, and pay out the advances to the plaintiff from these accounts; third, that the feathers were not received by the firm, or the defendant's testator, in a fiduciary capacity. The fourth defense alleges the same transaction as is stated in the first, but also that the advances were a firm obligation, and that plaintiff has not exhausted its remedies against the surviving members. The fifth defense repeats the agreement, and alleges that the defendant's testator died insolvent, and that the plaintiff's claim is subordinate to the claims of individual creditors. Rounds, Hatch, Dillingham & Debevoise, for plaintiff. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes HAND, District Judge (after stating the facts as above). The demurrer is well taken, for all the defenses are argumentative denials. The plaintiff, to succeed, must prove an individual transaction between. itself and the defendant's testator. If it proves to be a firm transaction, it will be a fatal variance, without amendment. The only thing necessary for the defendant to show will be that the transactions upon which it relies were not with the defendant's testator, but with a firm f which he was a member. That shown, his complaint will have been answered. To plead that the agreement was with the firm is to plead evidence which will meet the allegation that it was with him. This being true, all the allegations as to the character of the transactions. with the firm, the failure of the plaintiff to exhaust its remedies against the firm, and the insolvency of the estate of the defendant's testator, are irrelevant surplusage. The two last would perhaps be valid defenses, if the defendant's testator was sued for what the complaint alleged to have been a firm debt, but not when it relies upon an individual transaction. The defendant's citations are not apposite. In Linton v. Unexcelled Fireworks Co., 124 N. Y. 533, 27 N. E. 406, the defense was that the plaintiff had given ground for discharge. That evidence did not meet the issue of the existence of the employment or its termination. It should therefore have been pleaded. In Duryee v. Lester, 75 N. Y. 442, the matter of defense did not tend to disprove the fact of the employment or the rendition of the services, which was all the complaint alleged. Wilbur v. Collins, 4 App. Div. 417, 38 N. Y. Supp. 848, seems to be the contrary, and I must concede that the reasoning of the case is not apparent to me. McKyring v. Bull, 16 N. Y. 297, 69 Am. Dec. 696, decides that payment must be pleaded, which was the law in indebitatus assumpsit, even before the Hilary Rules, as I recall. In general terms it may be laid down that all evidence is admissible under a traverse which contradicts the truth of the allegations denied, and it must not be pleaded. The defendant does not raise any question of the validity of the complaint, and therefore the demurrers must be sustained. The plaintiff may take judgment sustaining the demurrers, with a respondeat ouster within 10 days after entry. OLD DOMINION COPPER MINING & SMELTING CO. v. LEWISOHN et al. (Circuit Court, S. D. New York. December 30, 1909.) 1. EQUITY (8 271*)—BILL-AMENDMENT. Complainant in equity, after the pleadings have been closed and the evidence has been taken and is ready for printing, is not entitled to leave to file a substituted bill of complaint, except to make the pleadings correspond to the evidence. [Ed. Note. For other cases, see Equity, Cent. Dig. §§ 558-560; Dec. Dig. § 271.*] For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |