Page:Federal Reporter, 1st Series, Volume 10.djvu/908

896 FEDERAL REPORTER. �" The petition of Phebe E. E. Elwina Finlay, at present a resident at Clif- ton Springs, in the eounty of Ontario and state o£ New York, represents that your petitioner is a minor cliild of Jolin B. Finlay, Esq., and of Mrs. Jane B. Pinlay, lately deceased ; that she is possessed of real and personal estates, in right of her said mother, lying within the jurisdiction of said court, and has no guardian to care for her said estates. She therefore prays the said court to appoint James B. Neale, Esq., a guardian for the purpose aforesaid. The said James B. Neale is neither executor nor administrator of the estate from which my property is derived. �" Clifton Spi-ings, Maroh 29, 1878." �Upon this petition the court made this order, yiz. : �" 1 April, 1878, presented in open court, and, on due consideration, James B. Neale appointed guardian, as prayed for. Bond in $40,000; and J. E. Brown approved as surety. �"By the court." �It is shown that after the decease of Jane B. Finlay, and nntil the death of James B. Brown, the dividends on said stock, by directions of Mr. Brown, were placed upon the books of the bank to the credit of his granddaughter Elwina, both before and after her marriage, and paid out upon her checks or drafts. On February 6, 1879, Mr. Brown wrote in the dividend book, opposite the 610 shares, "Place to the credit of Elwina F. Linton. J. E. Brown;" and in two other instances he made similar entries. But the dividends declared since Mr. Brown's death have not been paid, but are withheld by the bank, the said James B. Neale having notified the bank to pay them to no one but himself ; he claiming, under the above appointment, to be the general guardian of Mrs. Linton's entire estate. �The case is now before the court upon three motions : First, to strike off a plea filed by James B. Neale as frivolous and immaterial; second, for a preliminary injunotion to restrain him from collecting or interfering with the dividends declared, or to be declared, upon said stock; tliird, for an order on the bank to pay Mrs. Linton the dividends declared in 1881. �1 . The plea alleges that the plaintiff 's real surname at the date of the suit was and is Spiller, and not Linton ; and that the real name of said Adolphus Frederick Linton, at the time of his marriage to Miss Finlay, was Adolphus Frederick Spiller. The plea is not that the suit is by a fictitious person ; nor is any question raised as to the identity of the plaintifs. Confessedly, they are she who was Miss Finlay, and her husband. Upon the pleadings it is admitted, at least impliedly, that Elwina's husband was married to her under the same name in which he now sues. The suit is in her behalf, and it would ��� �