M'CULLOUGH tl. CITY OF DENVER.
307
'McCULLOUGH V. CITY OF DENVER
et al.
(Circuit Court, D. Colorado. July 13,1889.) INJUNCTION-TRESPASS-NmUNAL DAMAGES.
The court will not enjoin a municipal corporation from laying a ditch or flume over private property, though the entry by the city was made on the Sabbath day, and in a forcible and lawless manner, where it appears that the ditch is for a necessary public purpose, and that complainant's damages are but trilling.
In Equity. Motion for Teller & Orahood, for complainant. O. C. Marsh and J. F'. Shafroth, for defendants. HALLETT, J. In :YIcCuUough against the city of Denver and others, the court is asked to restrain the building of a ditch or flume over a tract of land adjacent to the city. The land is vacant, except that complainant is grading streets through it, and preparing it for use as town lots. It has been used for brick-yards. There are houses on all sides of it, and it is now valuable only as an addition to the town. For many years ditches on this tract have been in use for conveying water to other parts of the town, and the one last used was destroyed by complainant's,work in grading the streets. On Sunday, June 30, the city authorities entered the, premises with a large force of men, and made an underground flume on the 110rth side of Eighteenth avenue, as defined by complainant's work. It is not said that the work was done in a manner to cause unsightly ditches, or otherwise injure the land in any way, having regard to the use which is to be made of it, and the purpose was to convey water to other parts of the town, where it was greatly needed. It is a matter of profound regret that the city authorities should' feel at liberty to go about a work of this kind with force and arms, andon the Sabbath day. A municipal government, charged with the duty of maintaining law and order and rights of property within the corporate limits, should not be endowed with or entertain the predatory instincts and lawless habits of private corporations. In this instance the conduct of the city government seems to have been according to the practice of a railroad corporation stealing a right of way. Such indecent and illegal proceedings cannot be justified in any case, and there is no shadow of excuse for such conduct in this instance. The extraordinary conduct of the city authorities will not, however, give authority to the court to interpose by injunction. The damage to complainant's land on account of the flume will be trifling, and the water is needed for public use. Under such circumstances the court will decline to act, arid leave complainant to his action at law for any damages he may be entitled to.
3.08:
..FEDERA.L REPORTER,
voL39.. &
OLYPHANT V. ST. LOUIS ORE
STEEL
Co.et al.
(Circuit Court, N. D. Illinois.
July 8,1889.)
SET-OFF-UNLIQUIDATED DAMAGES-INSOLVENCY.
A garnishee of an insolvent company is not entitled, upon intervention in an action by the company's creditors for appointment of a receiver, etc., to have set off against the judg-men.t obtained against it as garnishee a claim l\gainst the company for unliquidl\ted dallll\,ges growing out of the breach of a contract independent of the one upon which the garnishee was garnished, and arising subse'1uent to the service of process in the garnishment.
In Equity. Intervening petition of the North Chicago Rolling Mill Company. George Willard, for intervenor. IItttchinson &: Duff, for respondent. GRESHAM, J. On December 1,1883, the North Chicago Rolling Mill Company, an Illinois corporation, and the St. Louis Ore & Steel Company, a Missouri corporation, entered into a written contract whereby the former company agreed to manufacture and deliver to the latter company 18,000 tons of steel rails at $35 per ton, in monthly installments, during the year 1884. About the same time Cherrie & Co., of Chicago, agreed with the Chicago company to purchase from the St. Louis Company and deliver to the Chicago company, 100,000 tons of Pilot Knob iron ore. Cherrie & Co. failed on July 3, 1884, not having fully performed their contract, and the St. Louis Company agreed to sell and deliver to the Chicago Company a quantity of ore of the 8ame class, at the same price. Ore was delivered under this contract. The failure of Cherrie & Co. appears to have embarrassed the St. Louis Company, and on July 21, 1884, in a suit brought against that company in the circuit court of the United States for the Eastern district of Missouri, a receiver was appointed, who took charge of the company's assets, and undertook to carryon its business. On the same day the Joliet Steel Com pany, an IllhlOis corporation, brought a suit in attachment against the St. Louis Company; and garnished the Chicago Company, claiming that it was then indebted to the St. Louis Company in the sum of $19,000 for ore sold and delivered under the contract already referred to. The Chicago Company.filed a plea of set-off, containing different items of indebtedness due to it from the St. Louis Company, all of which were allowed, except a claim for unliquidated damages growing out of the non-fulfillment of the contract of December 1, 1883, the court holding that a claim ofthat nature could not be allowed I'S a set-off in a suit at law. Ajudgment was, enter<.ld agod ust t.he Chicago Company, as garnishee, in favor of ·. the St. Louis Company, for $16,000, for the use of the Joliet Company; and the Chicago Company then filed its intervening petition in this case. After setting out the proceedings in the suit in garnisbment, the petition avers that the St. Louis Company is insolvent, and prays that the damages resulting from the non-fulfillment of the rail contract be ascertained
FIRST . NA'l\ , BANI{ V. CITY OF RICHMOND.
809
and set off against the judgment entered "against thepetitioneJ.'as garnishee. After the intervening petition was filed, the St. Louis Company effected a compromise with its creditors, and the suit against it in the federal court at St. Louis was dismissed, and its property was restored to its possession. The judgment against the ChicagoCompany, as .garnishee, was for money due for pig-iron bought from the St. Louis Company, and the claim of the former company is for unliquidated damages growing out of the failure of the latter company to receive rails under the contract of December, 1883, a contract having no connection with the one upon which the Chicago Company was garnished. When the latter company was served as garnishee, no part of the claim now urged as a set-off had accrued. The Chicago Company, then, had no right of action for the recovery of that claim, or any part of it. Indeed, it was then uncertain whether that company would make or lose money by the further performance of the rail contract. Without ruling upon other questions discussed by counsel it is sufficient to say that the claim for unliquidated damages growing out of the failure of the St. Louis Company to receive rails under the rail contract, after the failure of that company, and after the commencement of the suit in attachment, and the service of the writ of garnishment upon the Chicago Company, was properly rejected by the court in the trial of the action at law, and cannot now be set off against the judgment rendered against the garnishee. The intervening petition is dismissed without prejudice to the right of the Chicago Company to prosecu te an action against the -81. Louis Company.
FIRsl' NAT. BANK OF RICHMOND
V.
CITY OF RrcmwxD et al. July 15, 1889.)
(Circuit Oourt, E. TAXATION-NATIONAl> BANKS.
n.
Virginia.
Rev. St. U. S. § 5219, providing that shares of national bank stock may be taxed as part of the personalty of the owner, and that each state may tax them in its own manner. except that the taxation shall not be at a greater rate than is imposed on other "moneyed capital" owned by citizens of the state, and that the shares of non-residents shall only be taxed in the city wherein the bank is located, do not authorize the taxation of the stock of a bank in solido by the city in which it does business, but only the shares of individual owners residing in the city are taxable. and they must be taxed separately, in order that the owner may deduct from. their value the amount of his personal indebtedness, where the stale laws or municipal ordinances permit such deductions, and require equality of taxation.
In Equity. Bill for injunction. Johnston, Bmdware &- Williams, for complainant. C. V. Mer'edith, City Atty., for defendants. HUGI-IES, J. :.Tlle questignin this case is upon the amount of a tax asse'lsed by the city of Richmon,d lIpon a national bapk, and upon the manner of assessing and collecting it. It was competent for congress to