in which provision was made that all stocks of goods replacing any of the granted goods should be substituted for those granted, and that the debt intended to be secured should be a lien upon all the goods then on hand and on those substituted for them. Speaking of this mortgage as to the after-acquired goods, the Court of Appeals of Maryland said: "Such a provision, whilst not of itself rendering the mortgage void, as fraudulent, is at law simply a nullity. It is the settled doctrine of the Maryland courts that a provision such as this in an ordinary mortgage creates no lien at law on after-acquired property. Hamilton v. Rogers, 8 Md. 301; Rose & Ganss v. Bevan et al., 10 Md. 466 [69 Am. Dec. 170]; Wilson v. Wilson, 37 Md. 1 [11 Am. Rep. 518]; Crocker v. Hopps, 78 Md. 260 [28 Atl. 99]. There are conditions under which a covenant like this would be held valid in equity, but they are not presented here. Butler v. Rahm, 46 Md. 541." The ground upon which a recorded mortgage of after-acquired property is held effective in equity, although a nullity at law, has been stated to be: "That whenever the parties by their contract intend to create a positive lien or charge either upon real or upon personal property, whether then owned by the assignor or contractor or not, or, if personal property, whether it is then in esse or not, it attaches in equity as a lien or charge upon the particular property as soon as the assignor or contractor acquires a title thereto against the latter, and against all persons asserting a claim thereto under him, either voluntarily or with notice or in bankruptcy." Mitchell v. Winslow, 2 Story, 630, 644, Fed. Cas. No. 9,673. This doctrine has been applied in numberless cases in equity, but most frequently in cases of mortgages to secure bonds issued by railroad and canal companies and similar quasi public corporations, where the dismemberment of the enterprise by seizing and separating any part of the after-acquired property which has been added to the original equipment in order to make it more efficient would interfere with the performance of its quasi public functions. Such added chattels and augmentation of the plant might almost be presumed to be included in the words of a general grant. The present case is that of a private manufacturing corporation. The glassware manufactured by it must have been intended to have been sold. The object of the company and its plant, and the enterprise which the mortgagee assisted by his loan of money, was to produce glassware as a commercial article for immediate sale in the regular course of business. In considering the language of the clause of the mortgage now under consideration, so far as the after-acquired glassware is concerned, we start with the fact that the glassware was intended to be sold as produced, and was not intended to be added to the plant, either in augmentation of its efficiency, or in substitution of machinery or implements worn out and necessary to be kept up, or to in any way increase the permanent value of the plant. With this idea in mind as to the supposed subject-matter of this clause of the mortgage as indicating the intention of the parties, we are to consider whether the language used indicates an intention that the glassware was to be subject to the lien of the mortgage. It is only because, as between the parties, their clear intention and express contract is permitted to govern, notwithstanding its invalidity at law, that in equity the lien on after-acquired property is upheld. It 131 F.-8 is in the nature of compelling a specific performance of a contract, and, to be entitled to favorable consideration, its terms should be free from ambiguity. The clause is: "And also all the property, real, personal and mixed, of the said Maryland Glass Company, now owned by said company, or hereafter acquired by it, together with all improvements thereon, and all rights and appurtenances appers taining thereto." It seems to me that the fair intention and meaning of that clause, under the circumstances of the case, may well be taken to mean the personal property in some way appurtenant to the fixed property of the company, and not the merchandise made for sale, and being sold day by day. In the previous clause, in speaking of the fixed structures, such as piers, wharves, tanks, pipes, boilers, etc., which would hardly need enumeration in order to pass by the grant of the land and plant, they are specified with abundant care; and it is not overstrained to say that any one reading the second clause would properly conclude that, if the goods produced by the factory were intended to be covered, they would be mentioned. Smith v. McCullough, 104 U. S. 25, 26 L. Ed. 637. It does not seem to me to have been the clearly expressed intention that the goods manufactured for sale were to be subject to the mortThe words "together with all improvements thereon, and all rights and appurtenances appertaining thereto," do not suggest a grant of glassware, but tend to exclude that idea, in a document so carefully drawn as this mortgage. It is only equitable that if a mortgage whic asserts a right expressly denied at law, and the effect of which, as to the goods produced for immediate sale, would be so contrary to the intended and actual dealings under it, and which is so markedly in derogation of the rights of creditors, who give credit to the factory on the expectation of its paying its current bills for supplies out of the unrestricted current sales of its product, is to be upheld in equity because of the intention of the parties to the mortgage, the language in which the mortgage lien on such goods is attempted to be given should be unmistakable. The question is not without difficulty. It has been most ably presented by counsel for the mortgagee, and very carefully considered by the special master in his excellent report; but, upon the best consideration I can give it, I think the exception should be sustained, so far as the fund has resulted from the sale of merchandise intended for sale, and not from articles in some sense appurtenant to the plant. COSTER et al. v. PARKERSBURG BRANCH R. CO. et al. (Circuit Court, N. D. West Virginia. April 1, 1904.) 1. FEDERAL COURTS-RAILROADS-RECEIVERS JURISDICTION-EMINENT DOMAIN -ACTIONS. Where a federal court has appointed a receiver of a railroad company in proceedings to foreclose an underlying mortgage, a proceeding against such receiver by another railroad to condemn a grade crossing could only be permitted in the court where such receivership was pending, notwithstanding the act of Congress permitting such receivers to be sued without leave of court first obtained, since such act relates only to suits arising out of acts of the receiver in the discharge of his duties in transactions connected with the property in his hands. In Equity. Reese Blizzard and W. S. Meredith, for petitioner. GOFF, Circuit Judge. The bill of Coster et al., trustees, was filed March 13, 1899, its purpose being the foreclosure of the underlying mortgage of the Parkersburg Branch Railroad Company, dated July 1, 1879. In accordance with the prayer of said bill John W. Davis was appointed receiver of all the property of said railroad company, and he duly qualified as such officer. Pending the proceedings in that case the Buckhannon & Northern Railroad Company, on the 27th day of October, 1903, filed its petition therein, asking permission to institute and prosecute in the circuit court of Taylor county, W. Va., certain condemnation proceedings against the said receiver, the object of which was to secure a crossing for the Buckhannon & Northern Railroad Company over the railroad and right of way of the Parkersburg Branch Railroad Company at a point within the corporate limits of the city of Grafton, in Taylor county, W. Va. It was set out in the petition that the Buckhannon & Northern Railroad Company is a corporation organized under the laws of the state of West Virginia for the purpose of constructing and operating a railroad for public use from the town of Buckhannon, in Upshur county, to Fairmont, in Marion county, W. Va., and thence on to the boundary line between the states of West Virginia and Pennsylvania; and that in constructing its railroad it is necessary for the petitioner to cross at grade the right of way and roadbed of the Parkersburg Branch Railroad at the point desired to be condemned for that purpose, and that such crossing was necessary in connection with the construction of petitioner's railroad; that said petitioner and the Parkersburg Branch Railroad Company could. not agree upon the amount of compensation to be paid for such crossing, nor upon the point at which it was to be made, nor the manner of making the same. This court, on consideration of such application, granted permission to the Buckhannon & Northern Railroad Company to institute and maintain a suit against John W. Davis, receiver of the Parkersburg Branch Railroad Company, relative to such crossing; the 1. Suits by and against receivers of federal courts, see note to J. I. Case Plow Works v. Finks, 26 C. C. A. 49. order then entered containing these words: "The court at this time not passing upon the forum in which said suit or proceeding is to be instituted.' On the 4th day of November, 1903, the receiver moved the court to strike from the record of this cause the order entered therein on the 27th day of October, 1903, giving such permission to institute proceedings to condemn, and the court, on considering such motion, set the hearing of the same for November 17, 1903. Notice of the fact that this court had so set the hearing of such motion was served on the Buckhannon & Northern Railroad Company on the 6th day of November, 1903. On November 9, 1903, the Buckhannon & Northern Railroad Company served notice on the receiver that it would, on November 19, 1903, make application by petition to the circuit court of Taylor county, W. Va., to appoint commissioners to ascertain a just compensation to the owners, and to secure such orders as might be necessary to condemn the right of way before mentioned. This notice was served without any application having been made to this court to dispose of the question of the forum, reserved when leave to sue was granted. The receiver, on November 17, 1903, filed a report of his proceedings as such officer, and, the cause coming on to be then further heard, it was ordered that the hearing on the motion to set aside the order giving permission to sue be had on December 2, 1903, and that in the meantime the Buckhannon & Northern Railroad Company be restrained from prosecuting its said action in the circuit court of Taylor county, W. Va., until the further order of this court. Counsel have been fully heard on the questions raised by said motion, and the court has carefully considered the briefs filed and the authorities cited. This court, by its order appointing John W. Davis receiver, assumed the administration of the assets of the Parkersburg Branch Railroad Company; all of which the court took into its possession for the benefit of those it might thereafter find entitled to the same. It is the duty of this court to see that the receiver not only properly and faithfully performs his duties, but also that every reasonable facility is afforded him to do so, and that the property with which he is intrusted, and for which he is responsible, is duly protected by its orders and its officers. Would it be fair to the receiver and to those he represents for this court to transfer to another jurisdiction the control of any portion of the property for which such officer is responsible? If the court submitted to such other jurisdiction the questions relating to the condemnation of the property, would the receiver's liability therefor cease, and, if so, would he be accountable for the same? Would it be just to those entitled to the property, or to the funds arising from its sale-parties who, under the law, have the privilege of entering this jurisdiction, and who having entered it insist on their right to remain therein-for this court to require them to litigate in another tribunal matters which, as stated by the party presenting them, will necessarily have a direct and important bearing on the property and the funds involved in this suit? I am not favorably impressed with the contention of counsel for the petitioner that the Buckhannon & Northern Railroad Company could have maintained its suit against this receiver in the circuit court of Taylor county, W. Va., without first having obtained the permission of this court so to sue him. The act of Congress relating to such suits au thorizes them to be brought without leave of the court only where the suit so instituted is because of some act or transaction of the receiver in carrying on the business connected with the property in his possession. If a receiver appointed by this court has negligently discharged his duties, and thereby has caused an injury to another, he can be sued therefor in any court of competent jurisdiction; and if he has made a contract as such official, and thereafter refused or neglected to observe the terms of the same, he may be sued concerning it within another jurisdiction, without the permission of this court, for in such instances the suits would be in respect to his act in carrying on the business connected with the property in his custody. In this case the object of the bill is to foreclose the underlying mortgage of the Parkersburg Branch Railroad Company, dated July 1, 1879. If counsel are right in their contention that in all cases permission to sue the receiver is unnecessary, then the validity of that mortgage, or the claim that it has been satisfied, could be litigated in a suit filed in another court against said receiver, thereby at least greatly embarrassing the complainants in this suit, as also this, the court of original jurisdiction. That would be a most anomalous situation, one not calculated to promote the due and orderly administration of justice, and, in my judgment, one not contemplated by the Congress when it enacted the legislation referred to. When this court passed the order authorizing its receiver to be suedthe order it is now asked to set aside-it especially reserved all questions relating to the court in which the suit should be filed. It was asked to designate the circuit court of Taylor county, W. Va., and it did not do so, but held that matter open for further consideration. With the assistance of counsel, the court has given the matter the careful attention its importance demands, and has reached the conclusion that under the circumstances of this case it would not be proper to either authorize or permit its receiver to be sued in any other jurisdiction for the purpose set out in the petition of the Buckhannon & Northern Railroad Company, filed herein. The practice found by long experience to be productive of the best results to all concerned is to hear and determine all matters and claims relating to the property in the hands of a receiver by petitions filed in the cause in which he was appointed. This rule has been modified by statute, so far as the courts of the United States are concerned, by permitting a receiver appointed by those courts to be sued in another jurisdiction in cases where his act is drawn in question in transactions connected with the property in his hands, arising during the discharge of his duties as such official. In reaching the conclusion I do I have not overlooked the opinion of the Supreme Court of the United States in the case of Gableman v. Peoria, D. & Evansville Railroad Company, 179 U. S. 335, 21 Sup. Ct. 171, 45 L. Ed. 220. The opinion and judgment in that case had reference to the special facts. then presented to the court, from which it clearly appeared that the receiver had been sued in a court other than the one by which he was appointed for alleged negligence in the operation of a railway train, and for carelessness in the use of gates at a railway crossing. The Supreme Court held that under such circumstances the receiver could be sued in another jurisdiction without the leave of the court appointing him. I cannot reach the conclusion that the Supreme Court, by its |