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THE GREEN BAG
the goods as having been previously exported -into Canada from the United States. The goods were not dutiable. The object of the owner in not properly entering the property was to prevent the manufacturer from learning that he was re turning it to the United States. Under these circumstances it is held that failure to enter the articles at the custom-house was an offense which rendered the merchandise liable to forfeiture in .spite of the fact that the United States was not injured in any way. EQUITY. (Injunctions — Stockholders' Meet ing — Abuse of Process.) U. S. C. C., S. C. — The case of Lucas v. Milliken, 139 Fed. Rep. 816, contains a holding relating to the unfair use of injunctive process, which seems to be founded upon general principles of equity. It appeared that two days before the annual election of direc tors by the stockholders of the corporation the .president of the corporation instituted a suit against certain stockholders for the specific per formance of an alleged verbal contract of sale by them of a certain number of shares of stock. He also alleged that since making the contract they had conspired to purchase other stock and there by obtained control of the corporation for ulterior purposes detrimental to its interests. Without notice, and on an ex parts showing, an order was granted restraining the stockholders from voting any stock held by them, and restraining the corpo ration from allowing them to vote. This order was by the president's direction withheld until after the stockholders' meeting had been organized with the necessary quorum, and then served; the result being to leave the president and his supporters in control, though they held only about one-third of the stock. They refused to adjourn until a full hearing could be had before the court, and chose a board of directors who reelected the president. Under these circumstances, it is held that the order was unwarranted, and in addition, that the use made of it by the president was unfair and an abuse of legal process, and that it should be dissolved, especially in view of the fact that on. the complainants own showing his right to relief on his alleged contract was doubt ful. EXECUTORS. (Right of Retainers.) Eng.— In in re Marvin-Crawter v. Marvin, 54, W. R., p. 74, an interesting point arose on the question of the right of an exequtor to retain his debt against a judgment — creditor of the deceased. It appeared that the plaintiff had obtained an ordinary common law judgment de bonis testatorts against the executrix and thereafter com menced an administration action. The executrix
had not pleaded plene administravit or her retainer. It was said that it was obligatory in the executor or administrator either to plead a retainer for his own debt or give it in evidence under a plea of plene administravit, and that if the executor does not set up the retainer in one form or the other a judgment bonis testatoris against an executor or administrator is conclusive proof that he has assets to satisfy it. It was held, therefore, that in an administration action an executor is unable to retain his debt against a judgment creditor in case of insufficient assets, the judg ment de bonis is conclusive between the two, and that the case is distinguishable from one in which there has been a judgment to pay out of assets in the hands of the executors " to be administered in due course of administration." The rule being that whenever there is a judgment for a definite sum against an executor or administrator such person must, if he claims to retain a debt due to him from the deceased, plead plene adminislravit or a retainer. The following cases were cited during the argument: Wheatley v. Lane i, W. M. S.; Saund 216 a, 219 b; In re Hubbach 29, Ch. D. 934. FEDERAL COURTS. (Removal of Causes — Diverse Citizenship — States.) Ind. — A recent case apparently in line with the current of authority on the subject of diverse citizenship as a ground for removal of causes is Southern Railway Com pany v. State, 75 Northeastern Reporter, 272. There it is held that a state not being a citizen of any state an action in which a state is the real party in interest cannot be removed from a state to a Federal court solely on the ground of diverse citizenship. In support of this holding the court cites the following cases: Upshur County v. Rich, 135 U. S. 470, 10 Sup. Ct. 651, 34 L. Ed. 196; Postal Telegraph Co. v. Alabama, 155 U. S. 482, 15 Sup. Ct. 192, 39 L. Ed. 231; Indiana v. Alleghany Oil Co. (C. C.) 85 Fed. 870; Huntington v. Attrill, 146 U. S. 672, 13 Sup. Ct. 224. 36 L. Ed. 1123; Ames v. Kansas, in U. S. 449, 4 Sup. Ct. 437, 28 L. Ed. 482; State v. Tolleston Club (C. C.> 53 Fed. 18; 18 Ency. PI. & Prac. 190. INSURANCE. (Spontaneous Combustion of Wool.) Kans. — A case which seems to be in conflict with a similar case noted in the last num ber of this magazine is that of Sun Insurance Office of London, England v. Western Woolen Mills Co., 82 Pacific Reporter, 513. In the former case it was held that the destruction of a quantity of wool by the action of water, resulting in sponta neous combustion was not a fire within the mean ing of the insurance policy unless accompanied.
