80 .82 FEDERAL REPORTER,

crImInally, nnder 8ll indictment therefor, or will support a cfvll action for dam-ages, and the same is true of all other offenses which cause injury to person orproperty. In such cases the jUrisdiction of the civil court is invoked, not toenforce the criminal law and punish the wrongdoer, but to compensate the Injuredparty for the damages which he or his property has suffered, and It is no defenseto tile civil ,action that the same act by the defendant exposes him also to indict-ment and punishment in a court of criminal jurisdiction. So here the acts of thedefendants mayor may not have been violations of the criminal law..If theywere, that matter is for inqUiry in other proceedings. The complaint madeagajnst them in this is of disobedience to an order of a civil court made for theprotection of property and the security of rights. If any criminal prosecutionbe brought against them for the criminal offenses alleged in the bill of complaint,of derailing and wrecking engines' and trains, assaultJing and disabling employl!sof the railroad companies, it will be no defense to such prosecution that theydisobeyed the orders of Jnjunction served upon tilem, and have been punished forsuch disobedience."

The simply calls for an application of the injunctive processto prevent complainants' business from fraud and obstruction, and abusiness is just as much the subject of suit, with a right to protec-tion, as ordinary forms of tangible real and personal property. What-ever doubt may have been expressed at any time, the cases are nowagreed upon this proposition. It needs no extended statement tomake it manifest that the right to carry on a business without inter-ference, without fraud, and ,without obstruction, is one of the mostvaluable of all rights. Indeed, in the commercial world the right ofgreatest value is the right to freely carryon a lawful business withoutunlawful interruption. It is a substantial right, which may be pro-tected by any remedy known to the as fully as a coustitutionalor statutory right, and as fully as a right in the ordinary forms of prop-erty. In Scott v. Donald, 1,65 U. S. 108, 17 Sup. Ot. 262, alreadyreferred to, it was held by the Ilupreme court of the United States thatthe constitutional right of the complainant to import for his use,from time to time,ale, wines, and liquors, the products of other states,might be protected by injunction from repeated invasion by seizureof goods under color of an uncollJ'ltitutional statute of the state of South.Oarolina. The ruling was based on the ground of avoiding a multi-plicity of suits, and the want of adequate,remedy at law. In Arthurv. Oakes, 11 0. 0. A. 209, 63 Fed. 310, it was held (Mr. Justice Harlandelivering the opinion of the court) that, while a contract for personalservices could not be enforced by injunction, nevertheless, when em-ployes quitting the service of their employer combine to obstruct thebusiness of .such employer by force, threats, or other unlawful meth-od&, such as inducing other employes to quit, and deterring othersfrom taking the,places of those leaving, such an injury might be pre-vented by injunction, and the right to carryon the business without

protected. This, too, would be a novel use of the injunc-tion. In Davis v. Zimmerman, already referred to, it was expresslyadjudged that' the business of a person, if lawfully conducted, is aproperty right, and may be protected by injunction from injury or de-struction. In a full note to the case of Arthur v. Oakes, as reportedin 10 Am. Ry. & Corp. Rep. 443 (s. c., 63 Fed. 310), cases are cited inwhich the same principle is applied to railroads, carriers by water,Ilmnufacturers,producers, and others. All these lines of business

.ASHVILLE, C. Ii: ST. L. BY. CO. v. JrI'CONNELL. 81

are protected by injunction when the ordinary remedies are Inade-quate. Other cases are cited at the bar, but I do not deem it neces-sary to further accumulate authorities upon this point. I may heremake reference to the case of Lumley v. Wagner, 6 Eng. Ruling Cas.652. A contract had been made by a lady, in writing, with the plain·tiff, upon proper consideration, to sing and perform at his theater fora specified period, and that during her engagement with the plaintiffshe would not sing elsewhere without his license in writing. After-wards a contract was made to sing at a different theater during thesame period specified in her engagement with the plaintiff. Uponbill by the plaintiff praying that the defendant might be restrainedfrom singing and performing elsewhere than at his theater during theperiod specified, the court granted an injunction accordingly. Thecourt, on motion to dissolve, admitted that a contract for personalservices could not be directly executed, but it held that it was en-tirely within the power of the court to prevent by injunction a viola-tion of the contract by singing at another theater. The court did notdoubt its power to prevent her from violating her contract by singingat the other thf'uter. This is known as negative enforcement of con-tract by injunction. In referring to the ground on which the courtallowed the injunction, the lord chancellor said:"Let us see for a moment what Is the principle of the jurisdIction 01' the court.

'I11at principle Is to bind men's consciences to a talr and liberal performance oftheir agreements. I have always thought you may attribute a great deal 01' theright teeliUg and tair dealing that exIsts between Englishmen to the exercise otthis jurisdIction. Men are not suffered by the law of this country to depart tromtheir contracts at their pleasure. It does not leave the party with whom the con·tract has been broken to the mere chance of' what a jury may give In the shape01' damages, but it entorces, where it can, the llteral performance of the contract;and this, I belleve, has maInly tended to produce the good faith that exists to agreater extent in thIs country than in many others. Although the jurisdictIonof the court is not to be extended, a judge would desert his duty If he did not actup to the rule which predecessors have laid down lIS the proper exercise 01' amost valuable and wholesome jurisdiction. Wlhere Is the mischief In this {'!lseot exercisIng that jurisdiction? It is objected that, if I refuse this application, Iexclude this lady from performIng at Covent Garden, when I cannot compel herto perform at the Queen's Theater. I cannot compel her to perform, of course.That Is a jurisdiction 1Ihat the court does not possess, and It Is very proper that itshould not possess that jUrisdiction; but what cause of complaint is It that Ishould prevent her from doing an act which may compel her to do what sheought to dO?"There is contained in this statement of the lord chancellor a great

truth, worthy to become the subject of much thought. The fact thatthe "right feeling and fair dealing that exists between Englishmen"is in a large measure due to the fact that the English courts vigor.ously and promptly enforce the law, execute proper contracts, and re-strain lawlessness, is a truth of wide application. Just as the courtsof any country uphold the law and repress fraud and wrong, just tothat extent will there exist "right feeling and fair dealing," eonfidencein the courts, and respect for lawful authority. In regard to a crim.inal statute, it is to be remarked that, if it existed, .it could furnish,no SUbstantial redress for a civil wrong, but only for a public wrong,except such protection as might ultimately result from a total sup-pression of the business. It may be that in respect of a given prao-

82F.-6

82 'S2'"FEDERAL REPORTER,

tice a! criminal is desirable as a remedy for the publiowrong, and to protect the public interest. This is within the legis-lative province. But when by the same practice a private civil in-jury: is being done this is a subject for the judicial department, byappeal to the courts; and the courts cannot justifiably desert theirduty, imposed by constitutional mandate, to administer justice.vVhether or not a criminal enactment, if put upon the statute book,would be adequate to suppress the evil, would depend upon whethera criminal court should promptly and fairly avail itself the newlegislative remedy thus placed in its hands. Ours is a governmentof co-ordinate departments, each department exercising power con-stitutionally defined and limited. It cannot, compatibly with a gov-ernment thus constructed, be claimed that the legislature shall becalled upon to meet by criminal enactment a question of private wrong,growing out of the new conditions incident to constant changes inbusiness relations and methods. The criminal statute could onlyoperate prospectively, and there would be a complete failure of justiceas to all past private injury, however great or shocking. Moreover,as before suggested, what remedy would the criminal law furnish forthe private wrong? This question was answered by the court inShoe Co. v. Saxey, cited above, in these words:"Equity will. not Interfere when there Is an adequate remedy at law. But

what remedy does the law atl'ord that would be adequate to the plaintiffs' in-jury? How would their damages be estimated? How compensated? The de-fendants' learned counsel cites us to the criminal statute. But how will thatremedy the plaintlft's' Injury? A criminal prosecution does not propose to remedya private wrong. And, even if there was a statute giving a legal remedy to plain-tiff, It would not oust the equity jUrisdiction. The legal remedy that closes thedoor of a court of equity Is a common-law remedy. Where equity had jurisdictionbecause the common law affords no adequate remedy, tbat jurisdiction is notaffected by a'statute providing a legal remedy. What a humiliating thought Itwould be If these defendants were really attempting to do what the amendedpetition Charges, and what their demurrer confesses! that is, to destroy the busi-ness of t'hese plaintiffs, and to force the eight or nine hundred men, women, boys,and girls who are earning their livings in the plaintiffs' employ to quit their workagainst their will; and yet there Is no law in the land to protect them."So, aside from other questions in the case, I have no difficulty about

the right to employ the writ, so far as the novelty of this applicationis concerned, which is supposed to be a fundamental objection. Un-der our system of jurisprudence, the theory is that at any momentof time there is a sufficient remedy, legal or equitable, for every civil,private wrong; and the courts are under a duty, by proper process,to make this theory good in fact.Another point made is that this special-ticket contract, providing

as it does for forfeiture of all rights under the ticket by transfer there-of, has in that way provided a remedy for a breach of such contract,and that this is exclusive of all other forms of relief. It is sufficientto repeat what has already been said, to wit, that these are suitsto protect the plaintiffs' business, and in no sense suits upon theseticket contracts, to enforce the same, or to recover damages for breachthereof. These suits are to restrain these defendants from the con-tinued and repeated use of these contracts as instruments and meanswhereby to commit frauds upon complainants' bushiess. They are

NASHVILLE, C. & ST•.L. RY. CO. V. M'CONNELL. 83

not suits between the parties to these contracts, but against third par-ties, to restrain the fraudulent use of the contracts as means of com·mitting such wrong. This contention is therefore inapplicable, andthis question does not call for judgment by the court. The defend·ants' counsel, not as a separate point, but in aid of other objections tothe relief asked, says that the ticket broker's business is, to an extent,at least, beneficial to the public, and, to an extent, contributes to thesuccess of the Exposition. It was not made entirely clear to thecourt whether this suggestion related to the general business of theticket brOker, or to that particular business which is now under exam·ination, but the illustration put may speak for itself in this respect.It is said that a person at Chicago, desiring to go East, but not spe·cially intending to come to the Exposition, may be induced to do soif he can buy a low-rate Centennial ticket from Chicago to Nashvilleand return, and, coming by way of Nashville, sell to the broker thereturn coupon, and buy at a like cheap rate the return coupon on anEastern-sold ticket, and in this way go to New York on a low rate,taking in the Exposition on the way. Whether it is best that all ofthe parties to such a transaction, as a matter of public policy, shouldbe thus permitted to violate a contract and practice an imposition isa question which may be safely left for answer before those who arethoughtful of the deeper consequences involved. It is further evi·dent, in the very nature of the case, that, where one person visitsthe Exposition in this manner and under such circumstances, hundredsattend for the sole purpose of the Exposition and its benefits; andthe number of those who may be induced to come to the Expositionin the way suggested is as one to hundreds, and is relatively whollyinsignificant in its importance to the question of much larger impor·tance, of maintaining open to all persons this favorably low·rate ticketdesigned to promote the success of the Exposition. The use of thesetickets in the method hereinbefore pointed out is demoralizing, andsubversive of public good and of public morals, and at the same timea private, civil injury; and this, I think, is made sufficiently plain bywhat has been said. Just before passing away from this point, itmay not be inappropriate, in view of the suggestion made, to remarkthat the question of whether the ticket scalpers' business is one of pub·lie good is not a new question, and the view I take of this particularbranch which is now under consideration is by no means a new viewof the same subject. The highest authorities in the country, bothlegislative and judicial, have examined this business, and have pro-nounced judgment upon it. The Interstate Commerce Commission,in its annual report for 1896, after a study of the subject extendingover some years, referred to ticket brokerage in terms as follows:"In our last annual report we took occasion to comment with some severity

upon the unlawful practices of a considerable class of persons who engage in theunauthorized sale of interstate passenger tickets, and Wllo are commonly referredto by the expressive name of 'scalpers.' What was then said is, In part, asfollows: We deem it a special duty to call your attention to the persistent sur·vival and continued increase of the illegitimate business known as 'ticket broker·age' or 'scalping.' So far from showing any signs of diminution, It appears to besteadily enlarging in scope lind volume. It is impossible to give any reliable esti·mate of the number of persons who take advantage of this means of procuring

84: 82 FEDERAL REPORTER.

unlawful transportation, but It is evident that a considerable percentage of rail-road passenger travel is accomplished through the medium of tickets bought at

rates of so-called 'brokers.' In every city, and in many of the smallertowns, offices are to be found whose proprietors sell rallroarl tickets to very manypoints at much less than the published tariffs. The streets are placarded withalluring advertisements, Incoming and outgoing travelers are openly solicited,while in hotels and other public places, and not infrequently in regular railroad

the runners and agents of these clandestine dealers invoke participationin transportation bargaIns, which upon their face, to gIve them no harsher term,are an obvious evasion of the law. This disregard of law to whIch we thus re-ferred has apparently continued during the current year, and assumed still greaterand more serious proportions. This illegitimate traffic has become a positive scan-dal, and decIsive measures should be taken to put an end to these illegal transac-tions. The remedy for this evil is easIly found. A simple enactment would besufficient, in our judgment, to prevent these abuses and eff£c1:ually check thisspecies of mIsconduct. We therefore recommend that it be made a penal offensefor any person to engage In the business of selling Interstate passenger tIcketsunless he Is an antllorized agent of the can1er, duly constituted such by wrIttenappointment, and iliat every such person bE:' required, under appropriate penalty,to expose in his place of busIness a certificate of his authority. We also call at-tention to the fact tha:t extensive frauds upon the public are accomplished by theprinting and sale of counterfeit tickets. It has come to our knowledge that hun-dreds of innocent persons have been victimized by ilie purchase of spurious ticketsfrom iliose whose identity could not be clearly established after the fraud wasdIscovered. The actual money loss thus resulting to unsuspecting travelersamounts to a considerable sum, while the dIstress and annoyance to which inno-cent persons, have been SUbjected because they have been induced to purchaseiliese sham tickets can be easier imagined than described. It is a defect In thefederal statutes that ilie counterfeiting of railroad tickets Is not made a criminaJoffense, and we earnestly recommend ilie correction of this defect by an appro-priate enactment."In 1890 the commissioner had said, in part:"The busIness is therefore hurtful both to the roads and to ilie publlc, In a

financial sense, and. the extent of the Injury it Is scarcely possibly to measure.The harm done by an army of unscrupulous depredators upon a legitimate busi-ness cannot be computed by any known standard. Lawless greed recognizes nolimits, and weak compliance by Its vIctIms only stops at exhaustIon. But iliemoral injury boili to railroarl officIals and to ilie public is even greater. To rail-road officIals the busIness serves as an Invitation and an excuse for dishonestpractices. It is used as a cover-deceltfnl and transparent, It is true-for evasionsof law, and for dIshonorable violatIons of compacts among competing roads tomaintaIn agreed schedules of rates. The public morals are affected by the naturalInference that railroad officIals are deficIent In sense of honor and integrity,and iliat, It the railroad code of ethics permits one road to cheat another, It isequally permissible for the public to cheat the railroads. The Inevitable tendencyof the practice, therefore, Is to eliminate the moral element, and ilie ruIe of actIonthat element tnculcates,-business honor,-from the practical field of transpor-tation. In whatever aspect ticket scalping may be vieWed, it is fraudulent alikeIn its conception and in its operation. The competitIon of roads affords the op-portunity for the work of the scalper. Without rival roads competIng for business,he could have no field. The prospect of seIling more transportation at a discountthan at the elrtabllshed rate, and so dIverting business dishonestly from a com-petitor, Is the temptation to a road to let a scalper do for it secretly what It doesnot dare do openly. The weak excuse of every road that transgresses in thismanner is that some competitor does it. Fraud, therefore, is the incentive tothe business, and In its conduct every step !s one of actual fraud. The scalper'svocation, the necessIty for hIs occupation, is to sell transportation at less than pUb-Hshed and established rates; in other WQlrds, below lawful charges. Every suchsale Is a fraud upon the law, It fraud upon competing roads, and a fraud upon thestockholders and the creditors of the road for whIch sale is made."In addition to this, a number of the states of the Un;on-among

them leading states, like Illinois, Texas, New York, and PennsylvanIa

NASHVILLE, C. & ST. L. RY. co. V. M'CONNELL. 85

-have enacted legislation suppressing the ticket brokerageand this legislation has been upheld by the courts of last resort, asjustified by the exercise of the police power of the state. In Minne-sota v. Corbett, 57 Minn. 345, 59 N. W. 317, the supreme court ofMinnesota held such legislation valid; and in the progress of theopinion, referring to the scalpers' business, the court said:"With these elementary propositions in mind, we proceed to consider the evils,

or supposed evils, which the legislature designed to remedy, and the measureswhich they have adopted to accomplish that end. It was Gommonly asserted andbelieved (to what extent correctly is not important) that spurious and stolen tick-ets, and tickets which had expired by limitntion, or that were not transferable,were often put on the market to such an extent as to work great frauds uponboth the public and the carriers; that frequently those selling such tickets wereirresponsible, so that the party defrauded had no redress; that the business oftrafficking in such tickets often furnished an inducement to railway employes tosteal tickets, or issue spurious ones, and put them on the market. It was alsocommonly believed that, in order to evade statutes designed to secure Uniformityof rates and to prevent discriminations, some carriers of passengers were in thehabit of placing large blocks of their tickets with 'scalpers,' ostensibly not theiragents, for sale at cut rates. To remedy these and similar abuses, real or sup-posed, this statute was passed. That all its provisions have some relation to,and tendency to accomplish, this end, is quite cIear. Do they transcend any con-stitutional limitation upon legislative power? It seems to us that most of the ob-jections to the act-certninly the first two-are based upon a radical misconceptionof its provisions, aud of the character of transportation tickets as property.Oounsel for the defendant seems to assume-First, that such tickets are vendiblechattel property, which are the legitimate subject of barter and sale, the same asany other chattels; and, second, that this statute Is designed to be a 'license law,'in the ordinary sense of that term. With these two premises assumed, the taskof successfully assailing the validity of the act Is a very easy one. While a ran-road ticket Is, In one sense, property, yet It is not merchandise or chattel. It Ismerely the evidence of the contract of the carrier to transport the holder betweenthe points, and on the condition, therein named. Treating It as a contract Itself,it Is in the nature of a chose in action. No one with whom a carrier makes sucha contract has any inherent constitutional right to insist that It shouid be assigna-ble. At common law, all choses In action were nonassignable, and if the legIs-lature had deemed it necessary, In order to prevent the supposed evils, to providethat ail transportation tickets shouid be nontransferable, or even to prohibit theissue of tickets altogether, and require carriers of passengers to collect fare incash, we fail to see why they had not the power to do so."If the contention that ticket brokerage is beneficial to the public

in any sense can be made good, it is necessary to discredit this legisla-tion and the opinions of these great tribunals. That such legislationwas enacted, and the judgment of the courts pronounced, only afterthe most thorough examination and study of the subject, will readilybe conceded. Wbatever future investigation or study of the subjectmaydisclose as fo the ordinary business of the ticket scalper, and what-ever may be the final word in any state as to such business, it is cer-tain that methods of the kind which form the subject of the presentsuit can never be justified from any standpoint of public or privategood; and if by such metlhods the entire business, in all of its branches,is brought into such disrepute as to demand total suppression, it willonly make manifest the repetition of history in the end which hascome to all such practices.Another defense urged is that these companies have not themselves

adopted proper methods of business whereby to protect themselvesagainst this imposition, and that they are practically not entitled to

86 82 FEDERAL REPORTER.

relief at the hands of the court of equity. I quite fully agree withcounsel that the plaintiffs asking protection of the court of equity musthave adopted in good faith, and executed, all proper measures to pro-tect themselves before invoking the power of the court, and I wasmuch impressed with this view when presented at the bar with muchpo\ver. It is said that the complainant companies have been guiltyof discrimination with respect to the public, by issuing an open ticketand an ironclad ticket, without any sufficient reason for the distinc-tion. The ironclad ticket is the one which is required to be signedby the purchaser, and contains stipulations against transfer or use byany other person, while the open ticket is issued in a similar form,and at the same rate, but without the signature, and without provi-sion against transfer. Upon examination it appears that the com-panies have what they call a "zone" or "radius" of, say, 80 to 100miles around the city of Nashville, and that within this zone the openCentennial tickets are issued and sold, while beyond the zone limitironclad tickets only are used. So, too, it does appear that in someinstances at the same point both forms of ticket have been sold, andthat at particular places, like Jackson, Tenn., and Birmingham, Ala.,the ironclad ticket only is sold, while open tickets are put in evidenceas having been sold on either side of these places. So far as thezone limit is concerned, I must say that I do not consider the reasonoffered for establishing such a limit as very satisfactory. Whetherthis is because the requires expert knowledge, I do not know,but I fail to see any good reason for this. Be this as it may, thepublic have made no complaint on this score, and I do not think it isopen to these defendants to say, in opposition to the relief, that theyshould be allowed to continue the injury inflicted on these complain-ants, and also, it would seem, upon the public, upon the ground thatthe com.panies have established this limit arbitrarily. So far as theother irregularities presented are concerned, I find, after an examina·tion of these, that they are extremely few and unimportant,when com·pared with the whole volu,me of business transacted in regard to thesetickets. By an order in effect June 10, 1897, most of the irregulari-ties were corrected. The Western & Atlantic Railway Company iscomparatively free from any irregularity whatever. The Nashville,Chattanooga & St. Louis Railway Company has allowed but few. andthe chief of these was due to the fact that an unsuspecting agent wasimposed on by the grossest form of misrepresentation by a ticketbroker. There are some circumstances in the record to support thebelief, and create strong suspicion, that since the institution of thesesuits a considerable number of the irregularities presented have beenbrought about at the suggestion of these defendants, by misleadingunsuspecting agents, for the purpose of using the irregularities in thesesuits. The greater number of the failures to have the tickets prop-erly signed and witnessed on the Louisville & Nashville Road maybe due to the larger volume of business transacted, and the greaternumber of employes in its service. In the nature of the case, theselarge concerns, employing as they do so many persons, cannot at anygiven time have in their service employes all of whom are sufficientlyintelligent and watchful. I am unable to say, even if the

NOTE TO NASHVILLE, C. &: ST. L. BY. CO. V. M'CONNELL. 87. .

were one coming from a proper source, that the defaults on the partof the companies have been such as to deprive them of relief, so far asthis ground of objection is concerned.I have now disposed of all of the grounds of objection urged by

the defense. In doing so I have given to the subject that carefulstudy demanded by its importance, and by the earnest ability withwhich the objections to the bills have been pressed. The use of thewrit of injunction is a serious, delicate duty, in any case. It is astriking manifestation of the strong arm of civil authority. My con-clusion is that the plaintiffs are entitled to an injunction as prayedfor in these bills, upon the execution in each case of bond in the sumof $20,000, to be approved by the clerk of the court, with the usualconditions required by law,-among them, to satisfy and pay all suchdamages as defendants may sustain by reason of the wrongful suingout of the injunction, in the event the suits shall not be successfullyprosecuted. If this amount is not deemed adequate, the defendantsare at liberty at any time to ask that the bonds be increased-. Itmay serve to clear up the situation to particularly point out thatthe injunction now allowed is operative against defendants only inrespect to the Centennial low-rate tickets duly signed by the originalpurchaser in ink, and not in pencil, and not by initial; but, withinthese limits, it may be well if this injunction is obeyed without indi-rection. It may further conduce to a clear understanding to say thataccording to the cases Ex parte Lennon, 12 C. C. A. 134, 64 Fed. 320,and In re Lennon, 166 U. S. 548, 17 Sup. Ct. 658, persons wb,o haveknowledge of this injunction are rendered amenable thereto, althoughnot parties to this suit; and it may be well if this fact is kept in mind.It is apparent enough, without being repeated, that the general busi-ness of the ticket scalpers is not here in question, and is not inter-rupted or interfered with by this injunction. It is only the scalpers'practice of dealing in the particular Centennial tickets when dulysigned and executed in the manner suggested above.

NOTE BY THE JUDGE.That tickets with conditions and re9trldlons like those contained in the Cen-

tennial ticket are valid and binding on the purchaser has been often decided.Among many cases, Mosher v. Railway Co., 127 U. S.390, 8 Sup. Ct. 1324, Boy-lan v. Rallrood Co. 132 U. S. 146, 10 Sup. Ct. 50, Drummond v. Southern Pac.Co•• 7 Utah. 118, 25 Pac. 733, and Cody v. RaIlroad Co., 4 Sawy.114, Fed. ens.No. 2,MO, may be cited. KnIght v.Railroad Co., 56 Me. 234, and Rallroad Co. v.Connell. 112 Ill. 296, are cases holding that through tickets in form of couponsconstitute a contract with each company over whose line transportation Is calledfor. see. also. RAIlroad Co. v. Weaver, 9 Lea, 38.INJUNCTION-IN WHAT CASES A PROPER REMEDY RESTRAININlJ CRIMINAL ACTS.Injunction will lie, at the suit of the state. against a corporation, when it Is

misusing and abusing its corporate franchises and privIleges. and Is maintalningIts property as a nuisance, though Its acts also constitute a crime. ColumbianAthletic Club v. State, 143 Ind. 98, 40 N.E. 914, and 2 Am. & Eng. Dec. Eq. 340.And wherever an Individual can show a distinct and Irreparable injury to himself,apart from the pUblic in general, he may maintalna bill for injunction againstthe acts complalned of, although crimiDal, and although the party complained ofIs liable to prosecution for such IlCIls. Such injunct:lon will be granted where theelement of irreparable injury exi9l:s in the case. Oolumbian Athletic Club v.State, before cited; Shoe Co. v. Saxey (decided bi the supreme COUl1 of MissourI)

88 82 FEDERAL REPORTER.

82 S. W. 1106; In re Debs,before referred to,-all reported in 2 Am. & Eng.Dec. Eq•. 340, 856, 864. In valuable and extended notes to these cases asrepOl"OOd will be found modern cases illustrating the use of the injunction as apreventive remedy, wherever the facts show that the common law affords noadequate remedy for the acts when once accomplished; and it is no objection tothe injunction in such cases that the acts are also criminal. as criminal prOS€cutionfurnishes no redress for a private injUry sustained. See. also, Stamping Co. v.Fellows, 163 Mass. 191, 40 N. E. 105, and 2 Am. & Eng. Dec. Eq. G99, and note.PROTECTION OF TRADE OR BUSINESS AGAINST FRAUD.A lawful business may be protected against fraud by Injunction, although not

('3.l'ried on under monopoly of a valid trade-mark. So, if a person is using some-thing to designate his articles, tlle exclusive right to use which cannot be claimedas a trade-mark, nevertheless, if such person can show to a court of equity thatanother person is selling an article like his in such way as to induce the pUblic tobelieve that it is his, and that he is doing this fraudulently. he may have relief bymjunction to prevent such piracy. It is a fmud for one person to palm off hismanufactures as those of another person. although he commits fraud by the useof names which are not a subject of trade-mark property. California SyrupCo. v. Frederick Stearns & Co., 48 U. S. App. 234. 20 C. C. A. 22, and 78 Fed. 812;Salt Co. v. Burnap, 48 U. S. App. 248, 20 C. C. A. 27, and 78 Fed. 818. Moderncases Clearly are to the effret that a lawful business is entitled to protection byinjunction against fraud, regardless of any question of trade-mark. LawrenceManuf'g Co. v. TeIIDessee Manuf'g Co., 138 U. S. 587, 11 Sup. Ct. 396; Coots v.'Ihread Co., 149 U. S. 562, 18 Sup. at. 966. See, also, Oxley Stave Co. v. Coop-ers' InterJlll,tional Union, 72 Fed. 695; Wire Co. v. Murray, 80 Fed. 811; Centra]Trust Co; of New York v. Citizens' St. R. Co., Id. 218. In Blindell v. Hagan. 5-iFed. 40 (affirmed in 6 C. C. A. 86, 56 Fed. 696), it was decided that jUrisdictionof the circuit court to entertain suit to enjoin a combination of persons from inter-fering witll and preventing shipowners from shipping a crew could be maintainedon the g).'ound of preventing a. multipliCity of suits at law, and because damagesat laW for interrupting the business and Intercepting the profits of pending enter-prises and voyages must, In their nature, be conjectural, and not susceptible ofcertain proof. It WI!L8 alleged in that case that complainants could not obtain acrew without a restralning order of the court.

FEDERAL AND STATE COURTS- WHEN INJUNCTION WILL BE GRANTED BY FED-ERALOS STATE COURTS AGAINST THE PROSECUTION OF SUITS IN EACHOTHER',S J.URISDICTION.

In regard to this question, although not specially related to the question of theprincipai case, the following statement Is found In 36 Am. Law Reg. & Rev. (.July,1897) p. 462: "As a general rule, the federal courts will not enjoin the prosecu-tion of a suit in a state court. being prohibited by statute. Rev. St. U. S. § 720;Diggs v. Wolcott (1807) 4 Cranch, 179; Dillon v. Railway Co. (1800) 43 Fed. 109;Haines v. Carpenter (1875) 91 U. S. 254; Dial v. RE'ynolds (1877) 96 U. S. 840;The Mamie (1884) 110 U. S. 742, 4 Sup. Ct. 194. But cases may arise whichfall withoutthesmtute.Flsk v. Railway Co. (1878) 10 Blatchf. 518, Fed. Cas.No. 4,830; French v.. Hay (1874) 22 Wall. 200; Railway Co. v. Kuteman (1892)4 C.O. A. 003, 54 Fed. 547. So, though a state court generally will not enjoin theprosecution of a suit in a federal court.-RIggs v. Johnson Co. (1867) 6 ·Wall.166; U.S, v.. Keokuk, Id. 514; Mead v. Merritt (1881) 2 Paige, 402; Schuyler v.Pelissier (1838) 3 Edw. Ch. 191; Town of Thompson v. Norris (1882) 63 How.Prae. 418.-it may do so in a proper case. and punish the offender for contempt Ifhe persists•...,...Hines v. Rawson (1869) 40 Ga. 856." See, also, Simpson v. Ward.80 Fed. 561;. Holt Co. v. National Life Ins. Co. of Montpelier, Id. 686.BREACH· OF INJUNCTION Br. rERSONS NOT ENJOINED OR A PARTY TO THE ACTIOB'

-AIDING AND ABETTING...-COMMITTAL.In the late case of Seww.v. Patterson [1897] 1 Ch. 545, the English court of

appeal af;firmedthe decision o(North, J., and held that the court had jurisdictionto commit for contempt a person not included In an injunction or a party to theaction, but who nevertheless,knowing of the injunction. aided and abetted a de-fendant in coIDInitting a breach thereof. It WI!L8 said there was a clear distinc-tion betWeeIl a motion to commit a man for breach of lUl injunction on the grOUDd

LONE JACK MIN. CO. V. MEGGINSON. 89thAt lie Wllll bound by the Injunction, and II. motion to commrt a man on tilecround that he aided and abetted In the breach of such Injunction.With respect to the use of the injunction and the parties who may be made d.

fendants to the same bill In respect to the same SUbject-matter, the followIng casesmay be referred to generally: Lembeck v. Nye (decided May 20, 1890) 47 OhioSt. 336, 24 N. E. 686; Morgan Envelope Co. v. Albany Perforated Wrapping-Paper Co., 40 Fed. 577; Supply Co. v. McCready, 4 Ban. & A. 588, Fed. Cas. No.

Snyder v. Bunnell, 29 Fed. 47; Wallace v. Holmes, 9 Blatchf. 65, Fed. Cal.No. 17,100; Chemical Works v. Hecker, 2 Ban. & A. 351, Fed. Cas. No. 12,133:Tie Co. v. Simmons, 106 U. S. 89, 1 Ct. 52; Tilghman v. Proctor, 102 U. S.707; Travers v. Beyer, 26 Fed. 450; Alabastine Co. v. Payne, 27 Fed. M9:Cuervo v. Jacob Henkell Co., 50 Fed. 471; Von Mumm v. Frash, 56 Fed. 830;Heaton-Peninsular Button-Fastener Co. v. Eureka Specialty Co., 25 C. C. A. 267,77 Fed. 288. See, also, rd., 65 Fed. 620; Cooley, Tom, p. 15S; 1 Jagg. Torts, §123; Varick v. Smith, 6 Paige, 137; Emigration CO. T. Gulnault, 37 Fed. 523:Story, Eq. PI. § 284.With special reference to tb.e protection of business from Injury by

or combination, directly or indirectly, the following well-considered cases maybe consulted with much advantage: Sherry v. Perkins, 147 Mass. 212, 17 N.E. 307; Curran v. Galen, 152 N. Y. 33, 46 N. E. 297; Murdock v. Walker, 152Pa. st. 595, 25 Atl. 492; Barr v. Trades Counell, 53 N. J. Eq. 101. 30 AU. 881;Vegelahn v. Guntner (Mass.) 44 N. E. 1077; Spinning Co. v. Riley, L. R. 6Eq. 551 (decided In 1868); Carleton v. Rugg, 149 Mass. 550, 22 N. E. 55; Lit·tleton v. Fritz, 65 Iowa, 488, 22 N. W. 641; State v. Crawford, 28 Kan. 126;Kansaa v. Ziebold, 123 U. S. 626, 8 Sup. Ct. 273.

LONE JACK MIN. CO. et al T. MEGGINSON.

fOlrcuit Court of Appeals, Ninth CIrcuit. June 28, 1891.'No. 845.

L APPEAL-OBJECTIONS IN LOWER COURT-EQUITY JURISDICTION.In an eqUity proceeding to quiet title, where the trial court had jurlsdlctlon

of the SUbject-matter, an objection to the jurisdiction, on the ground that thecomplalnant had a plain and adequate remedy at law, comell too late whenmade foc the first time on a.ppeal.

,. EXECUTION-SHERIFF'. DEED-LAWS OF CALIFORNIA.The grantee in a sherifl"s deed, made by the successor In office of the sherift'

who sold mining property on a valid decree of foreclosure against the owner,has title to such property by virtue of Code eiv. Proc. Cal. § 700, whichprOVides that "upon the sale of real property the purchaser Is substitutedto and acquires all the right, title, interest, and claim of the judgment debtorthereto," and the act of 1858 authorizing sheriffs to make deeds for Jandssold by their predecessors ('St. cal. 1858, pp. 95, 96).

a. MORTGAGES-FoRECLOSURE SALE-STATUTORY JUDGMENT LIEN.The lien enforced upon a foreclosure sale Is not a statutory judgment lien,

but the contract lien of the mortgage, and the title of the purchaser restsupon such lien. Code Clv. Proc. Cal. § 671, prescribing the period for whicha. judgment shall live or be a lien, has no application to such sale.

4. S.uIE-TII,fE OF SALE.A sheriff's sale under foreclosure, made more than five years after entry

of the decree, Is not void by reason of the prOVision of Code Civ. Proc. Cal.I 681, that execution may be Issued at any time within five years after entryof jUdgment, if the order of sale was issued within the five years.

I. MINING CLAIMS-LOCATION BY ALIEN-DECLARATION OF INTENTION.The subsequent declaration of intention to become a cltizen, by an alien

who had exploted and located a mining claim on public lands, relates backto the date of the location, and, in the absence of adverse rights attachingprior to the declaration, operates to validate the loca:tion.

Appeal from the Circuit Court of the United States for the NQrth·ern District of California.