plied that it would pay whatever sum the state might legally require from it thereafter. This being so, it made no difference (thus the argument proceeds) that, when the petition in bankruptcy was filed in January, 1901, followed by an adjudication in the next month, the so-called tax for the year had not been ascertained or assessed, . nor that the statutes of the state did not make it demandable until the first Monday of June, because the implied contract is to be regarded as making the corporation, at the moment of its creation, contingently liable for all future taxes and charges that might be imposed by the state. The ascertainment of the amount for 1901 was a mere liquidation of a liability that had existed from the birth of the corporation, and therefore the obligation to pay existed when the petition was filed, although the precise sum to be paid had not yet been ascertained. This argument is ingenious, but I do not regard it as sound. In my opinion, clause 4 of section 63 does not refer to any such implied contract, as, for the purposes of this case, may be conceded to exist between the corporation and the state. As I read the statute, the subject of "taxes," whatever may be the scope of the word, is dealt with by the bankrupt act in clause "a" of section 64, and is not referred to at all in clause 4 of the preceding section. Certainly, the ordinary meaning of the phrase, "a contract, express or implied," does not include the public duties that a corporate creature owes to its sovereign creator. If it includes the duty to pay lawful annual charges, it also includes the duty to obey all other laws; and since "debt," in the bankrupt act, means "any debt, demand, or claim provable in bankruptcy," it would follow logically that any money claim of the state against a corporation, arising out of a violation of law, would be also provable. It seems to me impossible to stretch the language of this clause so far as to include the subject now under consideration. The disallowance of the claim is approved. BOARD OF TRADE OF CITY OF CHICAGO v. CONSOLIDATED STOCK EXCH. OF BUFFALO et al. (Circuit Court, W. D. New York. April 29, 1903.) No. 201. 1. BOARD OF TRADE-CONTINUOUS QUOTATIONS-USE-INJUNCTION. Where a board of trade sought to restrain the use of "continuous quotations," which were alleged to have been surreptitiously obtained by defendant, and such term was defined in contracts between complainant and telegraph companies for the transmission of the same as meaning prices electrically and uninterruptedly transmitted from complainant's exchange to such telegraph companies, and thence to their patrons at intervals of less than 10 minutes, and it did not appear that the quotations received by defendant were continuous quotations, as so defined, or that they had been received prior to their having been dedicated to the public, an injunction would not be granted pendente lite. 121 F.-28 Henry S. Robbins and Ansley Wilcox, for complainant. HAZEL, District Judge. The bill of complaint seeks to enjoin the defendants from using continuous market quotations at Buffalo, N. Y., as published on the exchange floor of the complainant in the city of Chicago. This motion for a preliminary injunction is founded upon the bill and affidavits. The basis of the application is a contract between complainant and several telegraph companies and the alleged unlawful use by the defendants of the quoted market prices. The relations established by the contract restrict the publication by the telegraph companies of continuous quotations to companies and individuals who are their patrons, and subject to certain stipulated conditions. The wrongful act alleged to have been committed, a continuance of which is threatened, is the theft by the defendants of the continuous quotations as they are electrically transmitted over the wires to the telegraph companies, or that such continuous quotations are surreptitiously received by them from patrons of the telegraph companies. It may be that the quoted prices are unlawfully received by the defendants in the manner charged in the bill, but the moving papers are equally open to the inference that the prices quoted are not continuous quotations of prices as that term is defined by the contract between the complainant and the telegraph companies, and which is annexed to the bill of complaint. Has not the complainant, by the arrangement with the telegraph companies, established a precise time during which it retains a property right in the quotations? Have not the telegraph companies, by the terms of the agreement, an optional right, after the expiration of the restricted. period, to distribute to the general public the prices announced on the exchange floor? Upon this point I express no opinion, as the restraining power of the court in the case at bar is sought solely by reason of the unauthorized and illegal use by the defendants of "continuous quotations." No other construction may be given the papers submitted. The contract in evidence defines that term as one referring to prices electrically and uninterruptedly transmitted from complainant's exchange floor to the office of the telegraph companies, and from thence to their patrons in the larger cities of the United States, where the price of the commodity is quoted oftener than at intervals of 10 minutes. The bill of complaint asserts that the continuous quotations published to the telegraph companies and their patrons are transmitted to the larger cities within 15 to 20 seconds from the time the prices. are established in complainant's pit. The affiant, Mayfield, who was several times in defendants' office on the opening of the Chicago market, does not testify that the quotations received in his presence were continuous quotations, as defined by the contract in question. It does not clearly appear at what precise time the prices were received by the defendants relative to the hour when the market opened or their several publications in Chicago. Although Mayfield was in defendants' office 30 minutes each time, the inferences that may be fairly drawn from his observations induce the belief that such prices may have been received subsequent to the voluntary publication by complainant, and beyond the time limit stipulated in the contract. If such was the case, the law affords no protection. Board of Trade of City of Chicago v. C. B. Thorson Commission Co. (C. C.) 103 Fed. 902. It is undoubtedly the law beyond dispute that complainant not only has a property right in original quotations of prices for a limited period of time, but it may also control the publication thereof. The unauthorized use of the continuous quotations is an infringement of such right. I am of opinion, however, that the bill and supporting affidavits do not disclose such use of continuous quotations by the defendants as is defined or forbidden by the agreement. The complainant seeks relief simply because of a violation of this contract right. Under such circumstances the facts will not permit disposing summarily of the merits. I have not overlooked the assertion that the automatically unrolled tape on the ticker was identical with the tape of another quotation ticker directly in connection with complainant. Nevertheless, I am unable to decide from the meager evidence before me that the complainant retained a property right in the prices quoted, which, from some unexplained source, were electrically transmitted to the office of the defendants. For the foregoing reason I am of the opinion that at this stage of the case a decision directing the issuance of an injunction should be deferred until the hearing upon the merits. Motion for injunction pendente lite denied. TILLINGHAST ▼. CHACE et al. (Circuit Court, D. Rhode Island. March 19, 1903.) No. 2,609. 1. BILL IN EQUITY-WAIVEr of Oath-DISCOVERY. Upon a bill in equity which waives an oath to the answer, the complainant cannot have discovery. In Equity. Philip Tillinghast and Comstock & Gardner, for complainant. BROWN, District Judge. This case is before the court upon exceptions of the complainant to the joint answer of the defendants Chace and Ingraham, and the individual answer of Baxter. The exceptions to the answer of Chace and Ingraham, both for impertinence and insufficiency, are each and all overruled. The complainant contends that he is entitled to discovery upon a bill which waives an oath. In the Union Bank of Georgetown v. Geary, 5 Pet. 99, 112, 8 L. Ed. 60, it was said by the Supreme Court: "We are inclined to adopt it as a general rule that an answer not under oath is to be considered merely as a denial of the allegations in the bill, analogous to the general issue at law, so as to put the complainant to the proof of such allegations." In Patterson v. Gaines, 6 How. 588, 12 L. Ed. 553, this language was quoted. In Huntington v. Saunders, 120 U. S. 80, 7 Sup. Ct. 357, 30 L. Ed. 580, the Supreme Court said: "It is not a bill of discovery, because the answer under oath of the defendant is expressly waived; no interrogatories are propounded to either of the defendants; no effort made to obtain from them or either of them, by way of sworn answer, anything which could be used as evidence in the case. The issue of a general denial to the bill would leave nothing on which evidence could be introduced." In the Excelsior Wooden Pipe Co. v. City of Seattle, 117 Fed. 140, the Circuit Court of Appeals for the Ninth Circuit said: "The discovery feature of the bill may be disregarded: First, because an answer under oath is expressly waived in the bill; and, secondly, because the bill propounds no interrogatories. Huntington v. Saunders, 120 U. S. 78 [7 Sup. Ct. 356, 30 L. Ed. 580]; 6 Enc. Pl. & Pr. 732." Equity rule 43 prescribes the form and effect of words preceding the interrogating part, and contains the words, "upon their several and respective corporal oaths." There is no indication in the rules that interrogatories can be propounded to be answered otherwise than upon oath; and it has generally been regarded as established law that a complainant waiving an oath to a respondent's answer cannot have discovery, and that he cannot except to an answer for insufficiency in its failure to give discovery. Story's Eq. Pldg. § 875; Harrington v. Harrington, 15 R. I. 341, 5 Atl. 502; McCulla v. Beadleston, 17 R. I. 20, 26, 20 Atl. 11; Starkweather v. Williams, 21 R. I. 55, 41 Atl. 1003; Ward v. Peck, 114 Mass. 121; Badger v. McNamara, 123 Mass. 117, 120; McCormick v. Chamberlain, II Paige, 543; 1 Daniell, Chanc. Plead. and Prac. 749 (3d Amer. Ed. 1865, by Perkins); United States v. McLaughlin (C. C.) 24 Fed. 823; Sheppard v. Akers, 1 Tenn. Ch. 326; Goodwin v. Bishop, 145 Ill. 421, 34 N. E. 47; Field v. Hastings & Bradley Co. (C. C.) 65 Fed. 279. The complainant contends that the waiver of an oath does not deprive the complainant of his right to a full answer and a full discovery from the defendants. This contention finds some slight support in Bates on Federal Equity Procedure, vol. 1, § 355, and cases cited: Kittredge v. Claremont Bank, I Woodb. & M. 244, Fed. Cas. No. 7,859; Whittemore v. Patten (C. C.) 81 Fed. 527; Nat'l Hollow Brake Beam Co. v. Interchangeable Brake Beam Co. (C. C.) 83 Fed. 26; Uhlmann v. Arnholt & Schaeffer Brewing Co. (C. C.) 41 Fed. 369; Gamewell Fire-Alarm Tel. Co. v. Mayor (C. C.) 31 Fed. 312; Colgate v. Compagnie Francaise (C. C.) 23 Fed. 82; Reed v. Cumberland Mut. Ins. Co., 36 N. J. Eq. 393; Manley v. Mickle, 55 N. J. Eq. 567, 37 Atl. 738. See, also, section 118. But there is presented no decision of the Supreme Court, or of any circuit court of appeals, for this position; and it seems contrary to principle. The cases cited by Bates cannot be accepted as sufficient authority to overthrow so well-established a principle as that a complainant who waives an oath cannot have discovery. The waiver of the oath, which reduces the answer to a mere pleading, must also require that "every fact essential to the plaintiff's title to maintain the bill, and obtain his relief, must be stated in the bill, or the defect will be fatal." Story's Eq. Pidg. § 277. Precise allegations, however, are unnecessary as to a subject which is a part of discovery sought by the bill. Story's Eq. Pldg. §§ 255-257. An allegation of fact may be put in issue by an unsworn answer, but an interrogatory propounds a question, and neither at common law nor in equity can an issue be framed upon a mere question. The complainant also claims the present right to an account on the charges of his bill. He must first establish his right to an account, and cannot, by the mere filing of the bill, require the defendants, who dispute this right, to set forth an account in their answers. The following exceptions to the answer of the defendant Baxter for impertinence, are allowed: Second, third, fourth (as to the part beginning with "that formerly" and ending with "died as aforesaid"), sixth, seventh, eighth, and ninth. The remaining exceptions for impertinence are overruled. The exceptions as to the answer of the defendant Baxter for insufficiency are overruled. The defendants' demurrers are overruled. ROSASCO et al. v. PITCH PINE LUMBER CO. (District Court, S. D. New York. February 26, 1903.) 1. SHIPPING-CONSTRUCTION OF CHARTER PARTY-CANCELING Date. A provision of a charter party requiring the vessel to sail in ballast for the port of loading within 48 hours after notice from the charterer is not a condition precedent, a breach of which entitles the charterer to cancel the contract, where there is a subsequent provision for a canceling date if the vessel shall not have arrived at the port of loading, and she arrives within the time so fixed. In such case the breach of the first condition merely gives a right of action for damages. In Admiralty. Suit for breach of charter party. Convers & Kirlin, for libellants. Wing, Putnam & Burlingham, for respondent. ADAMS, District Judge. This is an action brought by the libellants to recover damages for an alleged breach of a charter party of the Italian bark Giulia R, made at New York on the 31st day of July, 1901. The contract provided, inter alia, that the bark was then lying in the harbor of Venice and should proceed thence to Ship Island or Pensacola, charterers' option, for a voyage to "Montevideo, Buenos Ayres, or Bahia Blanca, A. R., orders on signing B/L. Loading port to be named before vessel leaves Venice, but vessel to sail 48 hours after orders are given," with a full cargo of lumber at specified rates. It was also provided that the vessel should proceed with all possible dispatch from Venice to loading port as ordered, in ballast, to enter upon the charter, and that the charterers |