FORM XXIII.-BILL OF REVIVOR. United States [District] Court, Southern District of New York. THE WEBSTER LOOM COMPANY against EMMA L. HIGGINS, EUGENE HIGGINS and JOSEPHINE BROOKS, as Executors of the last Will and Tes tament of ELIAS S. HIGGINS, Deceased, and JULES REYNAL and JOHN H. HIGGINS, surviving trus tees, and NATHALIE FLORENCE REYNAL, residuary legatee under the last Will and Testament of NATHANIEL D. HIGGINS, deceased. In Equity. To the Honorable the Judges of the [District] Court of the United States for the Southern District of New York: The Webster Loom Company, a corporation organized under and pursuant to the Laws of State of New York, and having its principal place of business in the City of New York in said State, brings this its bill of revivor against Emma L. Higgins, Eugene Higgins and Josephine Brooks, as Executors of the last Will and Testament of Elias S. Higgins, deceased, and Jules Reynal and John H. Higgins, surviving trustees,—— and Nathalie Florence Reynal, residuary legatee under the last Will and Testament of Nathaniel D. Higgins, deceased. Said Emma L. Hig. gins, Josephine Brooks, Eugene Higgins, Jules Reynal, John H. Higgins and Nathalie Florence Reynal being citizens of the State of New York and residents of the City of New York in said State; and thereupon your orator complains and says that on or about the 19th day of June, 1874, your orator filed a bill in equity in this Court against Elias S. Hig. gins and Nathaniel D. Higgins, alleging infringement by them of certain Letters Patent of the United States, which were Numbered No. 130, 961 and dated August 27th, 1872, of which your orator was at that time, and is now, the owner. That thereafter the said Elias S. Higgins and Nathaniel D. Higgins, having been duly served with the writ of subpoena, appeared by counsel and filed their answer to said bill of complaint, to which answer a replication was filed on the part of your orator. That thereafter your orator proceeded to take proof in support of its said bill of complaint; and thereafter said defendants proceeded to take proofs in support of their said answer and in defense of said actions. That thereafter said suit was brought to final hearing before the Honorable Hoyt H. Wheeler; that said judge filed his decision on the 31st day of May, 1879, adjudging invalidity of the fifth claim of the patent— being the claim in suit-and dismissing the said bill of complaint, as by reference to said decision reported in 15 Blatchford, 446, will more fully and at large appear. That thereafter your orator appealed to the Supreme Court of the United States from the decision of the [District] Court for the Southern District of New York; that the said appeal was argued before said Supreme Court of the United States, and a decision made by said court, the opinion being written by Justice Bradley, adjudging the validity of said patent and that defendants had infringed the same, and remanded the cause to this court, ordering a decree against said defendants restraining them from further infringement, and also granting a reference to a master to ascertain and report damages and profits caused by said infringement, all of which will more fully and at large appear by reference to said decision reported in 15 Otto, 580. That thereafter the accounting in this cause was commenced and voluminous proofs taken. That thereafter the master filed his report awarding nominal damages to your orator, against said defendants. That thereafter, on exceptions duly filed to said report, argument was had before His Honor Judge Shipman on motion to confirm said master's report; that said judge filed an opinion on the 26th day of July, 1889, recommitting said accounting to the master for further action in accordance with the said opinion. That no order has yet been entered on Judge Shipman's decision. That during the pendency of said accounting the defendant Nathaniel D. Higgins died, leaving a last will and testament, which on the 31st day of January, 1882, was admitted to probate in the Surrogate's Court of New York County, New York, and letters executory thereupon were on said 31st day of January, 1882, duly issued out of said Surrogate's Court unto Elias S. Higgins, Jules Reynal and John H. Higgins. That said will, after directing the payment of an inconsiderable percentage of the testator's estate as specified legacies to certain persons therein named, directed the said executors to hold in trust for the benefit of the testator's grandchildren, for a period of time that has not yet expired, the sum of one million and five hundred thousand dollars, and to pay the rest and residue of testator's estate unto his daughter Nathalie Florence Reynal. That on the 31st day of December, 1888, said executors filed their final accounting in the office of the Surrogate of the County of New York, N. Y., whereby it appeared that they had paid said specific legacies, and that after paying to Nathalie F. Reynal aforesaid a sum amounting to between three and four millions of dollars, they still retained in trust for the benefit of said grandchildren of said testator the sum of one million and five hundred thousand dollars. That said account was approved by said Surrogate and an order was entered in the court of said Surrogate on the 31st day of December, 1888, discharging and releasing said Elias S. Higgins, Jules Reynal and John H. Higgins from their duties as executors under said last will and testament, but directing them to continue to hold said trust fund of one million and five hundred thousand dollars as directed in said last will and testament. That said Elias S. Higgins, Jules Reynal and John H. Higgins thenceforth continued to so act as trustees under said will as to said trust fund, and said Jules Reynal and John H. Higgins are now so acting. That the aforesaid Elias S. Higgins died upon the 18th day of August, 1889, leaving a last will and testament, which on the 14th day of September, 1889, was admitted to probate in the Surrogate's Court of New York County, New York, and letters executory thereupon were on said 14th day of September, 1889, duly issued out of said Surrogate's Court unto Emma L. Higgins, Eugene Higgins and Josephine Brooks, and still remain in full force and virtue. Wherefore, your orator prays that the said cause may be revived by the decree of this Honorable Court, and that it may proceed to a decree in its favor in accordance with the prayer of the original bill of complaint herein. Your orator further prays that a writ of subpœna may issue in due form of law, directed to the aforesaid defendants Emma L. Higgins, Eugene Higgins and Josephine Brooks, as executrices and executor of the estate of Elias S. Higgins, deceased, and Jules Reynal and John H. Higgins as trustees, and Nathalie Florence Reynal as residuary legatee under the will of Nathaniel D. Higgins, deceased, and requiring them to appear and show cause, if any they have, why this cause should not be revived; and if no cause shall be shown by said defendants why said suit should not be revived, that a decree be entered reviving said suit in favor of your orator. William G. Smith, being duly sworn, says that he resides in the City and County of New York, and is the president of the Webster Loom Company, the complainant herein; that he has read the foregoing bill of revivor and knows the contents thereof, and that the same is true of his own knowledge. Deponent further says that the reason why this verification is not made by the complainant is, that it is a corporation; that deponent is an officer of the same, to wit, president. Sworn to before me this 3d day of December, 1889. [SEAL.] WM. G. SMITH. A. G. N. VERMILYE, Notary Public, N. Y. Co. FORM XXIV.-SUPPLEMENTAL BILL. United States [District] Court for the Southern District of New York. RIDGWAY BOWKER, Plaintiff, against HAIGHT AND FREESE COMPANY, SEABOARD NATIONAL BANK, CONSOLIDATED NA- In equity. TIONAL BANK, PRODUCE EXCHANGE SAFE To the Honorable the Judges of the [District] Court of the United States for the Southern District of New York: RIDGWAY BOWKER, of Camden, in the State of New Jersey, who is a citizen of said State of New Jersey and resident therein, presents the following supplemental bill against the said Haight & Freese Company, Seaboard National Bank, Consolidated National Bank, Produce Exchange Safe Deposit & Storage Company, John Doe and Richard Roe, all of whom are citizens and residents of the Borough of Manhattan, City, County and State of New York, and thereupon your orator complains and says: That heretofore and on or about the 9th day of May, 1905, your orator duly filed his original bill of complaint in this Honorable Court against the defendants, in which your orator prayed for certain relief, the par-ticulars of which are set forth in full in the said original bill filed in: the office of the Clerk of this Court on the said 9th day of May, 1905,. reference to which is hereby made the same as if the same were set: forth herein in full. And your orator further shows to your Honors that said above-named defendants were duly served with process or subpœna: in said suit, and that none of the said defendants have appeared except: the Haight & Freese Company, which appeared herein by its solicitor;, Franklin Bien, Esq., and put in its answer in due course. That pursuant to orders duly made herein one James D. Colt, Esq of Boston, Massachusetts, and one Beverley Randolph Robinson, Esq., of New York, were duly appointed receivers of the property of the defendant Haight & Freese Company until the final decree herein, with the powers enumerated in the order, appointing them, which said order has been filed in this Court, and which has been duly served with notice of entry upon said defendant Haight & Freese Company. The time of the defendants to answer other than the Haight & Freese Company has. expired. Your orator further shows that after the answer of the said defendant: Haight & Freese Company your orator duly filed his replication to said. answer. That the proofs herein have not yet been closed as by the said bill and proceedings now remaining, as of record in this Honorable Court, reference being had thereto, will appear. Your orator further shows that subsequent to the joining of issue in said suit, and on or about the 16th day of October, 1905, the defendant Haight & Freese Company, by its sole surviving directors George G. Turner and Harvey Watson, filed under oath a petition in the Supreme Court, State of New York, said Haight & Freese Company being a corporation organized and existing under the laws of the State of New York praying for a voluntary dissolution of the said corporation pursuant to the statutes of the State of New York in such cases made and provided, on the ground that the said defendant Haight & Freese Company was insolvent, and alleging that said defendant Haight & Freese Company was insolvent. Said petition was thereafter filed in the office of the Clerk of the County of New York, in which County the said defendant Haight & Freese Company had its principal office and place of business, and such proceedings were therein had that an order was made by the said Supreme Court of the State of New York, appointing a receiver, to wit, Arthur D. Truax, of all the property of the said Haight & Freese Company, the above named defendant, said proceedings being entitled, "Supreme Court, New York County, in the Matter of the Voluntary Dissolution of the Haight & Freese Company, a corporation," and thereafter said receiver by order of the said Court had conferred upon him all the powers of a permanent receiver, except that the said receiver should not make any distribution of the assets of the said company amongst the creditors and stockholders thereof before the final order in the said proceeding, unless otherwise specially directed so to do by the said Court, and no further order otherwise directing has been made by the said Court. On or about the 22d day of January, 1906, the said Arthur D. Truax as such receiver, in a petition duly sworn to and verified by him the said 22d day of January, 1904, alleged that the said corporation was insolvent, and that its total assets in all jurisdictions do not amount to fifty (50) per cent. of the amount of undisputed claims against it, and your orator further alleges that by instrument in writing, dated the 3d day of November, 1905, and duly acknowledged on said day, said defendant Haight & Freese Company made a general assignment of all of the property and assets of the said Haight & Freese Company to the said Arthur D. Truax for the benefit of its creditors, and your orator alleges and says that the said defendant Haight & Freese Company is, and at all times since the commencement of this action has been insolvent. To the end, therefore, that the defendants may, if they can, show why your orator should not have the relief hereby prayed, and may, according to the best and utmost of their several and respective knowledge, remembrance, information and belief, full, true and direct answer make to the allegations in the bill, but not under oath, an answer under oath being expressly waived, your orator prays for the relief hereinbefore prayed in the original bill of complaint filed herein on the 9th day of May, 1905, reference to which is hereby made, the same as set forth herein in full, and the prayer for relief in which is hereby reiterated |