show that they have a superior right to the assets in possession of the court, but, on the contrary, all the policy-holders and creditors are equitably interested therein, and the property must be disposed of for the common benefit.

The petition filed by the receivers appointed in Connecticut asks that their right to the assets of the company may be recognized, and that the receiver heretofore appointed be discharged; that a receiver ancillary to the petitioners be appointed to take possession of the assets, convert the same into money, and to remit the proceeds to the petitioners for distribution in the proceedings pending in Connecticut. No objection to this mode of disposing of the assets is perceived, and the order will be made accordingly.

The demurrers to complainants' bill, and to the intervening petition of the several policy-holders, are sustained. The demurrers to the intervening petition of Brooks and Stedman, receivers, is overruled.

GAMEWELL FIRE-ALARM TEL. CO. v. THE MAYOR, etc.

(Circuit Court, S. D. New York. April 19, 1887.)

1. MUNICIPAL CORPORATIONS-ACTION AGAINST-PRESENTATION OF CLAIMS.

The laws of New York, (section 1104, c. 410, Laws 1882,) respecting the presentation of claims against the city of New York to the comptroller for adjustment before bringing suit, only apply to such claims as can be prosecuted in the state courts by the actions or proceedings mentioned in section 1103. 2. FEDERAL COURTS-EQUITY JURISDICTION.

The equity jurisdiction of the courts of the United States is subject to neither limitation nor restraint by the state authorities, and is uniform throughout the different states of the Union.

3. EQUITY

PLEADING-ANSWER-CORPORATION.

Although a corporation cannot be compelled to answer to a bill in equity, under oath, it can be required to answer, and must answer fully.

In Equity. Bill for infringement of letters patent.

The defendant filed an answer which pleaded, (1) failure to make demand on the comptroller of the city of New York before bringing suit, as required by Laws N. Y. 1882, c. 410, § 1104; (2) denial of title; (3) non-infringement; (4) insufficient specification; (5) surreptitiously obtaining patent for invention of another; (6) want of novelty; and, (7) public use for more than two years. The complainant filed exceptions to the first defense stated, on the ground of impertinence, and other exceptions for insufficiency, in failing to answer the interrogatories in the bill.

Charles N. Judson, for complainant.

Betts, Atterbury & Betts, for defendants.

WALLACE, J. The exceptions to the answer for impertinence are sus tained for the reasons, (1) that the laws of New York, (section 1104, с. 410, Laws 1882,) respecting the presentation of claims against the city of New York to the comptroller for adjustment before bringing suit, only apply to such claims as can be prosecuted in the state courts by the actions or proceedings mentioned in section 1103; and, (2) if this enactment were intended to apply to actions at law brought in the federal courts, it would not apply to suits in equity. The equity jurisdiction of the courts of the United States is subject to neither limitation nor restraint by the state authorities, and is uniform throughout the different states of the Union. U. S. v. Howland, 4 Wheat. 108, 115; Payne v. Hook, 7 Wall. 430; Green v. Creighton, 23 How. 105.

The exceptions for insufficiency are also sustained. Although a corporation cannot be compelled to answer to a bill in equity under oath, it can be required to answer, and must answer fully. Colgate v. Compagnie Francaise, 23 Blatchf. 88, 23 Fed. Rep. 82; Kittredge v. Claremont Bank, 1 Woodb. & M. 244; Reed v. Cumberland Mut. Ins. Co., 36 N. J. Eq. 393.

ANGLO-AMERICAN PACKING & PROVISION Co. v. CANNON.

(Circuit Court, S. D. Georgia, W. D. June 16, 1887.)

1. EVIDENCE-BEST EVIDENCE.

The rule requiring the production of the best evidence of which the case in its nature is susceptible, is adopted for the prevention of fraud, and is essential to the administration of justice.

2. SAME-ADMISSION OF SECONDARY EVIDENCE.

It denies the admission of all evidence, substitutionary in its nature, until it is shown to the satisfaction of the court that the primary evidence is unattainable by the parties.

3. SAME-TELEGRAM.

A telegram is executed in counterpart, and each counterpart is primary evidence against the party executing it.

4. SAME-LOST OR DESTROYED TELEGRAM.

When the party offering secondary evidence testifies that the original is "lost or destroyed," without showing a search or other facts to support his statement, the court will not adopt the conclusion of the party, and secondary evidence will be rejected.1

5. SAME-LETTER-PRESS COPY.

A letter-press copy of a letter or telegram is merely secondary evidence. (Syllabus by the Court.)

At Law.

Plaintiff brought an action for breach of contract, and tendered in evidence copies of certain telegrams which were relied on to show the contract. Defendant objected, and the objection was sustained under the following ruling of the court. Plaintiff being thereupon unable to proceed, a juror was withdrawn by consent, and the case continued.

Bacon & Rutherford, for plaintiffs.
Dessan & Bartlett, for defense.

SPEER, J. The plaintiff brought his action for breach of contract relating to the sale of a large quantity of meat, which the defendant refused to receive. The plaintiff tendered in evidence certain copies of telegrams, which were relied on to show the contract. The defendant objected to the admission of the copies, because the original telegrams were the best evidence, and because the failure to produce them was not sufficiently explained to warrant the admission of secondary evidence. Upon this point the evidence of the plaintiff's agent was that the copies were accurate, and that the originals "were lost or destroyed." There was no evidence of any effort on the part of the plaintiffs to procure the originals, if lost, or to explain the manner of their destruction, if destroyed. The rule requiring the production of the best evidence, of which the case in its nature is susceptible, is adopted for the prevention of fraud, and is declared to be essential to the pure administration of justice. 1 Greenl. Ev. 82. By requiring the production of the best evidence, the law denies the admissibility of that evidence which is merely substitutionary in its nature, when the original evidence can be had. Until it is shown that the production of the primary evidence is out of the parties' power, no other proof of the fact is in general admitted. Id. 84; Sebree v. Dorr, 9 Wheat. 558-563.

This principle has been well expressed in that admirable codification, which is of such value to the profession and the judiciary in this state. "The best evidence which exists of the facts sought to be proved must be produced, unless its absence is satisfactorily accounted for." Code Ga. § 3760. Now, a telegram is a document which is executed in counterpart. Each counterpart is primary evidence as against the party executing it. Greenl. Ev. 84, note a, and authorities there cited. It has been held that the copy delivered at the other end of the line is the original. Durkee v. Vermont Cent. Ry. Co., 29 Vt. 127. It has been also held that the copy filed in the office whence the message is sent is the original. Matteson v. Noyes, 25 Ill. 591. But here the plaintiff produces, neither the telegram sent nor the telegram delivered, stating generally that the originals are lost or destroyed, -a mere conclusion, without giving the facts upon which he concludes that it is lost, or if destroyed, altogether omitting to explain how or by whom this was done. There is no satisfactory explanation of the absence of the original. The court cannot, upon evidence so insufficient, ignore a salutary rule, made for the protection of the property and interests of the people.

It is quite possible that the plaintiff voluntarily destroyed this evidence, and, if that were true, he would not be allowed to introduce secondary evidence until he has repelled every inference of a fraudulent design in its destruction. Blade v. Noland, 12 Wend. 173; Greenl. Ev. par. 37.

But a letter-press copy of what was stated to be the original telegram was offered. This is but secondary evidence. The supreme court of this state, in Watkins v. Paine, 57 Ga. 50, Judge BLECKLEY delivering the decision of the court, held that a letter-press copy is not original, but secondary, evidence; and that distinguished tribunal proceeds to say: The defendant's original letter-press copy book was rejected as evidence of the contents of letters which he had written to the plaintiff. Theletters themselves were the primary evidence, and nothing was done to procure them, or account for their non-production. Judgment affirmed. See, also, Foot v. Bentley, 44 N. Y. 166, reported in 4 Amer. Rep. 652. And the supreme court of the United States in Gilbert v. Moline Plough Co., 119 U. S. 491, 7 Sup. Ct. Rep. 305, refrained from holding otherwise. The copy telegrams offered must be rejected.

Ex parte KOEHLER.

(Circuit Court, D. Oregon. July 4, 1887.)

1. CARRIERS - INTERSTATE COMMERCE ACT-LONG AND SHORT HAUL - COMPE

TITION.

The fact that there is competition in the carriage of persons or property to or from a particular place is a circumstance that justifies a common carrier. under section 4 of the interstate commerce act, to charge less for a long haul to or from said place than a short one included therein.

2. SAME-PASSES TO FAMILIES OF EMPLOYES.

Section 2 of the interstate commerce act in effect prohibits the giving of passes or free carriage to particular persons, and the exception allowed in section 22, in favor of officers and employes of the road, does not include the families of such persons.

(Syllabus by the Court.)

Petition for Instruction.

John W. Whalley, for petitioner.

DEADY, J. On June 25, 1887, the receiver of the Oregon & California Railway Company filed his petition in this court, asking for direction touching certain questions arising in the management of the road under the interstate commerce act. The road is 400 miles in length, and lies wholly in this state, between Portland and the southern boundary thereof; and since January 19, 1885, it has been operated by the petitioner, as receiver of this court.

It appears from the petition that the Oregon & California road will soon be connected with the California & Oregon road, when the two will form a through line between Portland and San Francisco; that between these points there is also water communication by steamers and sail-vessels, that carry passengers and freight at less than the average cost of transportation by rail between said places and all intervening stations; that the road of the Oregon Pacific Railway Company runs from Yaquina bay to Albany, in this state, and there crosses the line of the Oregon & California road, from whence it is being constructed to the eastward; that with the aid of steam-boats on the Wallamet river it receives a portion of the freight which would otherwise be carried on the Oregon & California road; that the bulk of the freight obtained by the Oregon Pacific Railway Company from the Wallamet valley is carried to Yaquina' bay, and thence to San Francisco, at special rates, on the steamers of the Oregon Development Company, which are apparently under the same control as the Oregon Pacific road; that the Canadian Pacific road connects with a line of steamers running between its western terminus and San Francisco; and that to compete with such all water and rail and water transportation between Portland and points to the north and east of it, and in the Wallamet valley on the one hand, and San Francisco on the other, it is necessary to make corresponding rates on the Oregon & California road.

The petitioner also states that it will be necessary for him, under section 6 of the interstate commerce act, in conjunction with those in control of the connecting lines, to make the rates between Portland and San Francisco; and in view of these general statements, and many illustrative details contained in the petition, he asks (1) whether, under the interstate commerce act, such rates can be made, for through travel and traffic, as will enable the Oregon & California road to compete for the same, at points where competition by water or rail exists, although the rates for the long haul between Portland and San Francisco or intervening points may be less than those for a shorter haul in the same direction between said places or such points; and (2) whether, in conjunction with the Northern Pacific Railway Company or other transportation lines, the Oregon & California road may meet the competition of the Canadian Pacific road, or other transportation lines, on transcontinental business originating to the north and east of Portland, although its share of the through rate may be less than the local charges over the road, or its share of the through rate on competitive business between Portland and San Francisco.

The petitioner also states that it has been customary to issue passes to the families of employes of the road, as well as the employes themselves, and that the same have been regarded as a part of the consideration for the services of the latter; and asks whether, under section 22 of the interstate commerce act, he can issue such passes over the Oregon & California road, to be used on interstate travel; and whether he can interchange the same for the passes of other roads, to be used in such travel by the families of the employes of such other roads.

The interstate commerce act applies, by its own terms, "to any common carrier engaged in the transportation of passengers or property wholly by railroad, or partly by railroad and partly by water, when both are used under a common control, management, or arrangement for a continuous carriage or shipment" not "wholly within one state;" and all charges for any such service "shall be reasonable and just." Section 4 of the act provides "that it shall be unlawful for any common carrier subject to the provisions of this act to charge or receive any greater compensation in the aggregate for the transportation of passen