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to be determined in accordance with their agree- , on the part of C. & S. in the exchange, entitling ment. Plymouth Township v. Railway Co., 168 | W. to rescind without being required to surPa. 181, 32 Atl. 19; Norristown v. Norristown render the bonds or their proceeds. Passenger Railway Co., 148 Pa. 87, 23 Atl. 1060,

[Ed. Note.--For other cases, see Exchange of 1062; Allegheny City v. Gas & Pipeage Co., Property, Cent. Dig. $825–29;' Dec. Dig. $ 172 Pa. 632, 33 Atl. 704; Minersville Boro. 13.*i ] V. Railway Co., 205 Pa. 402, 54_Atl. 1053; Millcreek Township v. Erie Street Railway Co., 2. LIMITATION OF ACTIONS (8 84*)-RUNNING 216 Pa. 132, 64 Atl. 901; Cochranton Borough

OF STATUTE-SUSPENSION-ABSENCE OF PARv. Telephone Co., 41 Pa. Super. Ct. 146. This

TY FROM STATE. constitutional provision does not deprive the

Pub. St. 1901, c. 217, § 8, declares that, if Legislature of all power over the public high- the defendant in a personal action was absent ways; it may prohibit the construction of a from and residing out of the state at the time street railway upon any highway of the com- the cause of action accrued, the time of such abmonwealth, but it is without power to author- sence shall be excluded in computing the time ize the construction of a street railway upon any limited for bringing the action. Held that, highway without the consent of the local au- where W. was induced by the fraud of C. & thorities. The Legislature has power to change S. to exchange certain stock for municipal the form of government in municipalities, but, bonds and neither C. & S. nor their representaunder any form of government devised, the lo- tive from the time of the exchange until the cal authority to which is committed the control appearance of their receiver in the present litiof the highways, and upon which responsibility gation had been within the state, such receiver for their maintenance is cast, will, by the Con- could not claim the benefit of the statute. stitution be vested with discretion to determine [Ed. Note.-For other cases, see Limitation whether a street railway shall or shall not be of Actions, Cent. Dig. 88 439-448; Dec. Dig. constructed upon the highways. The Legisla- 8 84.*] ture might abolish the offices of supervisor in 3. EQUITY (8 71*) - LACHES - QUESTION OF townships, council, and burgess in boroughs and

FACT. mayor and councils in cities, and provide a commission form of government for each of them, claim is unreasonable is a question of fact.

Whether delay in asserting an equitable but the local authorities having control of the highways would, because of that control, by

[Ed. Note.-For other cases, see Equity, Cent. force of the constitutional provision, have the Dig. 88 204–211; Dec. Dig. s 71.*] right to determine whether any street railway 4. EQUITY (§ 24*)-LACHES-DUTY TO SUE IN should be constructed. The ordinance in ques FOREIGN STATE. tion was not, nor did it purport to be, an ex One who has been induced by the fraud of ercise by the borough of any authority conferred nonresidents to exchange certain stock for muby statute, and the learned judge of the court nicipal bonds is not required to go into another below properly held that the court of quarter state and there sue for a rescission on pain of sessions was without jurisdiction to declare it being held guilty of laches, bụt, in the absence invalid.

of a change in the circumstances, may wait unArgued before FELL, C. J., and BROWN, ble remedy in the courts of his own state.

til there is an opportunity to pursue his equitaMESTREZAT, POTTER, and ELKIN, JJ.

[Ed. Note. For other cases, see Equity, Dec. S. B. Sadler, of Carlisle, W. K. Sharpe, Dig. $ 84.*] of Chambersburg, and Lyman D. Gilbert, of 5. APPEAL AND ERROR ($ 1008*)-FINDINGSHarrisburg, for appellants. E. M. Biddle, Jr.,

CONCLUSIVENESS.

A finding by the trial court that a bill of of Philadelphia, and Harry M. Zug, of Me-interpleader was not collusively instituted as chanicsburg for appellee.

between complainant and one of the claimants

of the property, based on sufficient evidence, is PER CURIAM The order of the Superior. conclusive on exceptions. Court is afl.rmed on the opinion of Judge Error, Cent. Dig. 88 3955–3960, 3962–3969;

[Ed. Note.-For other cases, see Appeal and Porter

Dec. Dig. 8 1008.*]

6. INTERPLEADER (8 23*)-BILL-EVIDENCE. (77 N. H. 309)

Where the issues raised by a bill of interTAGJ BLLTING CO. 1 F. H. PRINCE & pleader and various answers were fully tried CO. et al.

and all parties in interest appeared and were

heard, whether the bill is maintainable depends (Supreme Court of New Hampshire. Merri- on the proof, and not on the pleadings, which mack. June 2, 1914.)

if not technically correct may be amended to

conform to the proof. 1 EXCHANGE OF PROPERTY (8 13*)-RESCISSION-FRAUD-RETURN OF CONSIDERATION.

(Ed. Note.- For other cases, see Interpleader, W. contracted to sell 870 shares of certain Cente Dig. $$ 47, 51; Dec. Dig. § 23.*] corporate stock to C. & S. at $85 a share and 7. INTERPLEADER ($ 8*)-Right to RELIEF. to buy from them $150,000 of the bonds of Where several parties claimed title to cerSanta Cruz at par and $150,000 of the bonds tain corporate stock and the corporation had of Ironwood at $105. One-half of the stock was been notified of such claims by demands for to be delivered on each lot of bonds. The Santa dividends and was a mere stakeholder, it was Cruz bonds were delivered to W., who turned entitled to maintain a bill of interpleader to over 435 shares of the stock and paid the bal- determine the lawful ownership, regardless of ance of the price in cash. There was delay in the fact that it had no doubt of its right to the issue of the Ironwood bonds, and, as a pay the dividends to one of the claimants. part of the contract, the stock so turned over

[Ed. Note. For other cases, see Interpleader, was put in the hands of P. & Co. as security Cent. Dig. 88 8, 9, 11; Dec. Dig. $ 8.*] for the future delivery of those bonds. C. & S. had not paid for the Santa Cruz bonds, and, 8. INTERPLEADER (8 23*)—BILL-ALLEGATIONS being insolvent, never did pay for them, and, OF OWNERSHIP. in proceedings to enforce the bonds, a settle Allegation in a bill of interpleader that ment was arrived at by which a discount was one of the claimants had title to the property, allowed to the city of $60,000 interest. Held, instead of an allegation that both claimed title, that such facts were sufficient to establish fraud I was immaterial, where no one was misled, and *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

91 A.-61

especially after the overruling of a demurrer to Cruz bonds were delivered to the Wallaces, the bill.

who turned over 435 shares of stock and [Ed. Note.-For other cases, see Interpleader, paid the balance of the agreed price in cash. Cent. Dig. $$ 47, 51; Dec. Dig. § 23.*]

There was delay over the issue of the Iron9. INTERPLEADER (§ 19*) - PARTIES — INTER- wood bonds, and as a part of the contract the VENTION-RECEIVERS.

Where a receiver of one of the parties to a first 435 shares of stock were put in the fraudulent exchange of bonds for corporate hands of Prince & Co., as security for the stock was permitted to intervene in an inter- future delivery of those bonds. During these pleader suit to determine the ownership of the stock at his own request, and he thereupon be transactions the Wallaces knew that the came a party to the suit and claimed the stock stock was worth only $30 a share, but they and dividends, and the case. was ultimately made no representations on the subject and tried between him and the original owner of the were not guilty of any fraud or wrongdoing. stock as the real claimants of the title, the receiver became a complete party to the proceed- At the time of these transactions, Coffin & ings, and the court had jurisdiction to render Stanton were hopelessly insolvent and knew judgment against him.

they were about to fail. They fraudulently [Ed. Note.-For other cases, see Interpleader, concealed from the Wallaces the fact that Cent. Dig. $ 41; Dec. Dig. 19.*]

they had received the Santa Cruz bonds 10. PLEDGES (8 6*)-FRAUD-EFFECT.

from the city without paying for the same, Rescission of an original exchange of certain stock for municipal bonds, for fraud, in- and that there was likely to be litigation on validates a later pledge of the stock by the that account. There was also fraud in the party to whom it was delivered in the exchange. sale of the Ironwood bonds, which sale was [Ed. Note.-For_other cases, see

see Pledges, never consummated.

never consummated. Coffin & Stanton failed Cent. Dig. § 16; Dec. Dig. § 6.*]

in October, 1894, and in the ensuing litigaTransferred from Superior Court, Merri- tion over the Santa Cruz bonds the Wallaces mack County; Wallace, Judge.

expended over $22,000. After the final deciBill of interpleader by the Page Belting sion that the bonds were valid in the hands Company against F. H. Prince & Co. and of bona fide purchasers for value (Waite v. others. Facts found, and case transferred Santa Cruz, 184 U. S. 302, 22 Sup. Ct. 327, from the superior court. Exceptions over-46 L. Ed. 552), the Wallaces settled with the ruled.

city for the face value of the bonds, disSee, also, 74 N. H. 262, 67 Atl. 401.

counting about $60,000 interest. This was After the decision overruling the demurrer done, as one of the parties testified, because of Prince & Co., they filed an answer dis- the city was poor and unable to pay more, and claiming any beneficial interest in the 435 this was the best that could be done. There shares of Page Belting Company stock and has been no communication between Coffin & the accrued dividends thereon here in litiga- Stanton and the Wallaces on the subject tion, and alleged that they held title to the since the failure. The Wallaces have always same as trustees under an agreement be- understood that they owned the stock, and astween E. G. & E. Wallace and Coffin & Stan- serted this claim to the corporation in 1899 ton. Thereafter William B. Hord, a receiver and to Prince & Co. at a later date, when of the insolvent estate of Coffin & Stanton, they demanded a transfer of the stock. Neiappeared and by leave of court became a | ther the Wallaces nor the receivers have inparty to the suit and claimed title to the tended to abandon their respective claims to property. The court permitted the Wallaces the stock, neither has done any act indicatto amend their answer by adding a claim for ing such intention, and there has been no unliquidated damages growing out of the change in the circumstances affecting the sale of the two lots of bonds hereinafter re- rights of either. Prince & Co. continued to ferred to. The receiver excepted to the al-collect the dividends until 1903, when paylowance of the amendment, and also to the ment was stopped upon the order of the Wal- . overruling of his demurrer, which was based laces. They are not acting in collusion with upon the grounds that the amended bill states the corporation in this matter. that the title is in the Wallaces, and that the At the close of the evidence for the Walclaim for damages to be satisfied out of the laces, the receiver moved that the bill be stock, being of a different nature and char- dismissed for lack of jurisdiction, upon the acter from the claims of Prince & Co. and of the following grounds: (1) The amended bill the receiver, is therefore not a proper sub- states that the property belongs to the Walject for a bill of interpleader.

laces, so that it appears the plaintiff is not The facts found were in substance as fol- in doubt as to the title. (2) Collusion is conlows: In August, 1894, E. G. & E. Wallace clusively shown. (3) It conclusively appears made a contract whereby they sold 870 shares that Prince & Co. have title as trustees and of the stock of the Page Belting Company to are entitled to receive the dividends. (4) The Coffin & Stanton for $85 a share, and bought Wallaces' claim for unliquidated damages is from Coffin & Stanton $150,000 of the bonds of a different nature from those of Prince & of the city of Santa Cruz, Cal., at par, and Co. and the receiver. At the close of all the $150,000 of the bonds of the city of Ironwood, evidence, the receiver moved for a decree Mich., at $105. One-half the stock was to be that he owned the stock, upon the ground delivered on each lot of bonds. The Santa' that on the pleadings and evidence such fact

*For other cases see same topic and section NUMBER in Doc. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

conclusively appeared. He also renewed his Again, as a business proposition every one motion to dismiss for want of jurisdiction. knows that many western municipal obBoth motions were denied, subject to ex- ligations have been repudiated because the ception. Upon the facts found, it was held places have not prospered. Compromises of that the Wallaces were entitled to claim the all sorts have been accepted. The fact that stock and dividends because of the fraud in a small city like Santa Cruz had been deprivthe sale of the Santa Cruz bonds. There was ed of the proceeds of a third of a million dolalso an alternative holding that the bonds lars worth of bonds would suggest to any be applied to make up the loss caused to the investor the likelihood that a discount would Wallaces by the fraud as to the Ironwood be unavoidable. That the fact would injure bonds. The receiver excepted to these con- the sale of the bonds is beyond dispute. clusions and also to a refusal to find that There is sufficient evidence here that the collusion was conclusively shown.

loss of interest came directly from the facts Elwin L. Page, of Concord, for plaintiff. which were concealed. One witness testified Jones, Warren, Wilson & Manning, of Man- that the discount of about $60,000 interest was chester, for defendant F. H. Prince & Co. made because the city was poor and unable Streeter, Demond, Woodworth & Sulloway, of to pay. The fact that Coffin & Stanton had Concord, for defendants Wallace. Remick & caused the city a loss of several times this Jackson and Hollis & Murchie, all of Con- amount on these same'bonds is significant of cord, for defendant Hord.

the cause of municipal poverty and the de

mand for a discount in this particular case. PEASLEE, J. The exceptions transferred, the sale of the Santa Cruz bonds was induc

There is no error of law in the finding that so far as they are material in the view here taken, involve these questions: (1) Whether

ed by actionable fraud. there was evidence to justify a finding of

It is said that there is no evidence that fraud in the contract as to the Santa Cruz Coffin & Stanton knew, or had reason to bebonds; (2) whether the Wallaces can rescind lieve, that there would be trouble over the without returning those bonds; (3) whether bonds. While there is no direct evidence of the right of rescission is barred by lapse of the fact, there is an abundance from which time; (4) whether it conclusively appears

the inference might be drawn. The city had that there was collusion between the plain- no authority to sell, except for cash. Coffin tiff and the Wallaces; (5) whether upon the & Stanton took the bonds on credit. . In the amended pleadings the bill can be main- hands of one not a bona fide holder for value, tained.

these facts invalidated the bonds. Waite v. [1] 1. Upon the issue of fraud in the sale Santa Cruz, 184 U. S. 302, 22 Sup. Ct. 327, of the Santa Cruz bonds, it is found that 46 L. Ed. 552. So far from having, as the Coffin & Stanton concealed the fact that the receiver claims, an unimpeachable title, it bonds were not, and would not be, paid for. appears that the title of Coffin & Stanton was It is argued that this is immaterial, because worthless as between them and the maker Coffin & Stanton had good title, and in the of the bonds. They were men of large exlitigation over the bonds which followed the perience in these matters; and, when they defense that they were not paid for was not disposed of property to which they had so set up. The decision in Waite v. Santa imperfect a title, it is morally certain that Cruz, 184 U. S. 302, 22 Sup. Ct. 327, 46 L. Ed. they knew litigation was likely to follow. 552, turns upon the fact that the plaintiff In any event, such a fact might be inferred represented parties who were bona fide hold from the evidence. ers for value of the bonds in question. It

2. Because of this fraud, the Wallaces thus appears that the facts as to Coffin & claim to exercise an equitable right of reStanton's relation to the property, aside scission. It is objected that this cannot be from the naked proposition of title in the done because they have kept the bonds renarrower sense, was material in the transac-ceived by them as a part of the repudiated tion with the Wallaces. It was of conse- transaction. While by the strict commonquence whether Coffin & Stanton were or law rule one could not rescind save by putwere not bona fide holders for value.

ting the other party in statu quo, the theory The fact that the bonds had not been paid has been much broken in upon since the disfor was material in other respects. If liti- tinction between legal and equitable relief gation arose over the legality of the issue, a has come to be largely disregarded; and the city might escape liability if it had gained rule now in this jurisdiction is that the renothing from the transaction, when, on the scinding party is only required “to do what other hand, if it had received the proceeds equitably he ought to do." Mead v. Welch, of the issue, it might be held liable on a 67 N. H. 341, 342, 39 Atl. 970; Thorpe v. theory of unjust enrichment. The material. Packard, 73 N. H. 235, 60 Atl. 432. See, ity of these facts in this litigation more also, Sipola v. Winship, 74 N. H. 240, 66 fully appears in the report of the case in Atl. 962. the lower federal courts. Waite v. Santa In view of the fact that the Wallaces have Cruz (C. C.) 89 Fed. 619; Santa Cruz v. made a substantial loss in the transaction, Waite, 98 Fed. 389, 39 C. C. A. 106.

even after retaining the bonds, it seems plain

that equity would not require that the bonds , right when one has the power to do so. But or their proceeds be given up. This con- in this case there has been no opportunity for clusion is combatted upon the ground that these citizens of this state to assert their in this sale the Wallaces were themselves. rights in the local forum until this time. guilty of grosso fraud. The finding to the It is true that they might have gone to New contrary is attacked as not being supported York and litigated the question against the by the evidence. The claim is that it con- representatives of Coffin & Stanton there; clusively appears that the Wallaces deceived but that is more than the law requires, cerCoffin & Stanton as to the value of the stock tainly in ordinary cases. If there might be here in litigation. The only evidence of cases where on account of changing circumthis is the fact that the stock was sold for stances such extreme vigilance would be demuch more than it was worth. However per- manded, this is not one of them. It is found suasive this may be in favor of the result that there has been no change here. All claimed, it certainly is not conclusive. The things remain as they were when the sale conclusion rests upon inference alone; and, was made. Under such circumstances, it where inferences are to be drawn, the ques- may not be unreasonable for the injured partion is one of fact unless one conclusion is ty to wait until there is opportunity to purcertain and uncontrovertible. Lyman v. Rail- sue his equitable remedy in the courts of his road, 66 N. H. 200, 20. Atl. 976, 11 L. R. A. own state. Any other conclusion would be 364.

out of harmony with the declared policy of [2] 3. It is next claimed that the right to the state as to the limitation of personal rescind is barred by the statute of limita- actions against nonresidents. tions, or by laches. The right accrued near

[5] 4. The claim that the proceeding is ly 20 years ago and would be barred at the collusive, as between the plaintiff and the same time as other suits for the same wrong Wallaces, is based upon the facts that

one of would be; that is, in six years. But the the Wallaces was president of the Belting statute runs only in favor of those who are Company, that they have at times been repwithin the state.

resented by the same counsel, that the com"If the defendant in a personal action was absent from and residing out of the state at pany has from time to time acted upon the the time the cause of action accrued, or after- Wallaces' request, or order, in its dealings ward, the time of such absence shall be exclud- as to this stock with Prince & Co., and that ed in computing the time limited for bringing after the Wallaces filed their original answer the action.” P. S. c. 217, § 8.

the plaintiff adopted it as a part of its b ll. The defense of the statute is here set up However significant these facts may be, they in the interest of the estate of Coffin & Stan- still fall short of concluding the matter. ton; and, as neither they nor their repre- Inferences must be drawn from them in orsentative have been in the state until the ap- der to make out the defense alleged. It pearance of the receiver in this litigation, it may be that in spite of all these facts the comfollows that they cannot claim the benefit of the statute. Quarles v. Bickford, 67 N. pany acted of its own volition in filing the

bill, and that the affidavit of noncollusion H. 425, 13 Atl. 642; Howard v. Fletcher, 59 states the truth. Upon this issue, as upon N. H. 151.

others heretofore considered, the receiver's Upon the question of laches there is no difficulty is that at the most he had a good specific finding by the trial court. None was

case on the evidence. It was incumbent on requested by either party; the receiver rely- him to procure from the trier of facts finding upon his general exception to the order ings in accordance with the claims set up. made upon the facts found. [3] Whether delay in asserting an equita- Having failed in this, he has no further re

course along this line. ble claim is unreasonable is a question of

[6] 5. Finally, it is argued that upon the fact. Alden v. Gibson, 63 N. H. 12; Ashuel. pleadings and facts the bill cannot be mainot R. R. v. Elliot, 52 N. H. 387, 400.

tained. At times the receiver appears to “When a suit is brought within the time fixed by the analogous statute, the burden is on the rely upon the pleadings as determinative of defendant to show, either from the face of the this question, and at other times upon the bill or by his answer, that extraordinary cir- evidence reported and the facts found. It of the doctrine of laches." Kelley v. Boettcher. can hardly be necessary to say that the lat. 85 Fed. 55, 62, 29 C. C. Ā. 14, 21; 5 Pom ter position is the correct one in this jurisEq. Jur. 8. 20.

diction. There was a controversy between As the matter is one of defense, the case some of these defendants. It has been fully stands as it would upon an affirmative find and understandingly tried. All parties in ing that there was no unreasonable delay. interest have appeared and been fully heard. The receiver can take nothing by the objec- In this state of the case, it is wholly immatetion here, unless his position is conclusively rial whether the pleadings are or are not established by the pleadings or the evidence. technically correct. If they are not, they

[4] In one sense there has been a long de- can now be made so. lay, but in the legal sense there has been [7] It is difficult to understand wherein

The delay referred to in the rule on there is any defect in the jurisdiction of the the subject consists of a failure to assert a court to try this controversy. It is not a

none.

case presenting a claim of title on one side, not a party when the former decision was and of damages to be satisfied out of the announced, yet that opinion stands like åny property on the other. There is a claim of other recent declaration of the law upon the such damages made, but the finding that the subject. Wallaces have title is not based upon it. A part of the receiver's argument on this Their title is found to rest upon a rescission question appears to be based upon the aswhich they had the right to elect because of sumption that the amended answer of the fraud. The issue of damages was here in- Wallaces was made a part of the bill. The volved only so far as it was necessary to record does not show this. The original anprove the fact as a basis for the exercise of swer was adopted as a part of the complainthe right to rescind. Both parties claim to ant's allegations, but the company took no own the stock, and are therefore properly im- such action after the amended answer was pleaded by the disinterested corporation filed. The motion that allegations of facts which issued the stock and is liable for the set out in the answer be added to the bill accrued dividends to whoever is legally enti- was made in 1906, four years before the tled thereto.

amended answer was filed. The bill, as It is said that the bill was originally sus amended by the addition of the original antained upon the allegation that Prince & Co. swer of the Wallaces, has not been changed wrongfully held the stock (Page Belting Co. in any respect since the demurrer of Prince v. Prince, 74 N. H. 262, 67 Atl. 401), and that & Co. was overruled. as this allegation was false the bill should

[9] The receiver also urges that there is be dismissed. But the demurrer was not no jurisdiction over him. But he can take overruled upon this ground alone. At that nothing by the mistaken impression (if he time both Prince & Co. and the Wallaces had had it) that he could come into this jurisdicmade demand upon the corporation for the tion and interpose technical objections, and dividends. The conclusion was that:

at the same time escape being subject to the "Since the defendants respectively made two distinct and inconsistent claims to the divi- jurisdiction according to the usual course of dends, neither of which appears to be frivolous, procedure here. At his own request he was manifest justice and equity require that they permitted to intervene, to become a party to should litigate the matter between them for the this suit, and to claim the stock and diviprotection of the plaintiff, who is merely an in- dends. At that time Prince & Co. had dis

67 Atl. 403.

claimed any beneficial interest in the stock, Moreover, since the demurrer was over- and the case was in order for trial between ruled, another claimant has appeared and the real claimants of title, the receiver on been allowed to set up his alleged title to the one side and the Wallaces on the other. The stock.

receiver's motion for leave to appear and Nor is it certain, as claimed, that payment litigate his claim of title, and the order of the dividends to Prince & Co. would have granting the motion, had precisely the same discharged the liability of the plaintiff. It effect upon the litigation as an allegation of had been notified of the Wallaces' claim to his claim in the original bill and his appearthe dividends, as owners of the stock. The ance and answer thereto would have had. matter was then in dispute between the par After the decision upon the demurrer, the ties, and the stakeholder was entitled to the case was in order for a trial between Prince, protection which this proceeding affords to it. claiming title as trustee under the pledge

[8] Of no more controlling importance is contract, and the Wallaces, claiming an abthe claim next made by the receiver that the solute title to the stock. The receiver was amended bill shows that the plaintiff had no not a party to the proceeding. There had doubt of its right to pay the dividends to the been no attempt to make him a party or to Wallaces. It may have believed that one secure a judgment which would bind him. party had title and yet be entitled to the If he had refrained from taking part in the protection of a decree against the claim set litigation, his rights would not have been up by the other party. The question was not concluded by what was done in this suit; whether the plaintiff believed Prince was but, when he intervened as a party to the right, or the Wallaces were right, or wheth- suit, his situation was changed. Assuming er it had no opinion on the matter. As point that he may be correct in his contention that ed out in the former decision, the important his submission to the jurisdiction was at first fact is that conflicting claims are made and “temporary,” the questions he then sought that it does not appear that the claims are to raise were properly decided against him. frivolous. Farley V. Blood, 30 N. H. 354; | His demurrer goes upon two grounds. The 5 Pom. Eq. Jur. $ 40, note 8. If the plain- first, that the bill as amended could not be tiff erred in alleging that one party had title maintained, had already been decided adinstead of merely stating that both claimed versely to him. The second, that the Waltitle, the error misled no one. But the ques- laces claimed damages only, is contrary to tion is not an open one. This allegation was the fact, and the case is disposed of without in the bill when it was considered upon de considering that aspect of the contention. murrer and was not deemed of vital impor If the receiver's position, that jurisdiction tance. While it is true that the receiver was to render a judgment against him was lack

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