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Suits brought subsequent to April 18, 1918, against carriers elsewhere than in the county or district where the cause of action arose or where the plaintiff resided at the time of the accrual thereof, it was said, should have been dismissed,22 provided of course that this objection was duly and specifically made.23 In other cases against railroad companies the stay of proceedings was held to be in the discretion of the Court.24 In order to - obtain a stay, it was said that there should be a showing as to the number of witnesses, the inconveniences to which the defendant may be put by bringing it witnesses to a trial in the district, the nature or quality of the work in which the witnesses were then engaged, whether they could be conveniently replaced during a temporary absence, and a general showing of the number of men in the defendant's employ.25 A removal from the State

Co., 253 Fed. 459; Cocker v. N. Y. & O. Ry. Co., 253 Fed. 676; Harnick v. Pennsylvania R. Co., 254 Fed. 748. Contra, Friesen v. Chicago R. I. Ry. Co., 254 Fed. 870.

22 Wainwright v. Pennsylvania R. Co., 253 Fed. 459; Cocker v. N. Y. & O. Ry. Co., 253 Fed. 676, 677. Contra, Friesen v. Chicago, R. I. & P. Ry. Co., 254 Fed. 875. See Seaver v. Hines, 261 Fed. 239; supra § 61. 23 Harnick v. Pennsylvania R. Co., 254 Fed. 748.

24 Harnick v. Pennsylvania R. Co., 254 Fed. 748, per Manton, Ct. J.; Cocker v. N. Y. & O. Ry. Co., 253 Fed. 676, 679, 680, per Mayer, D. J.

25 Harnick V. Pennsylvania R. Co., 254 Fed. 748. The following facts were held to justify a stay: "Coming now to the case at bar, it appears that the plaintiff is an infant about 14 years of age, now suing by his guardian for an injury which occurred at Scranton, Pa., on August 9, 1916. Plaintiff and his guardian then resided and now reside in Scranton, Pa. Four witnesses of the railroad are actively employed by it in its freight service, and are

at present engaged in moving coal, freight, munitions, and other war materials at and in the vicinity of Mayfield Yard, in Pennsylvania. The most important branch of the defendant railroad at this time is the one running from Cardozia, N. Y., to Scranton, Pa., over which are hauled many carloads of coal from the mines in Pennsylvania, and in which freight service the railroad witnesses are engaged. The showing is well made that the absence of these employes at this time would be serious, because defendant is shorthanded, owing to the large number of employes who have gone into the military service, or who have left to obtain positions at shipyards and other industries performing war service, for which larger compensation is paid. The engineer, the fireman, the conductor, and one of the trainmen are all necessary and material witnesses concerning the accident.

Defendant further submits the affidavit of a physician to the effect that although the infant plaintiff's left leg has been amputated above

to the Federal court was a waiver of the objection.26 In a proper case, when the plaintiff's injuries are serious and his financial condition desperate, a preference upon the trial calendar may be allowed.27 Such a case may be removed from the State court to the Federal court in the same district when a necessary diversity of citizenship exists and the jurisdictional amount is involved, 28 unless it arises under the employers' liability law.29 Such a removal waives any objection by the defendant that the suit was not brought in the proper district.30

Actions growing out of the possession, use or operation of the lines under Federal control should now be brought against the agent designated by the President for that purpose as previously described.31 Federal control of carriers has terminated under the Federal Transportation Act of February 28, 1920.

§ 96j. Suits against telegraph and telephone companies when under Federal control. The Act of August 29, 1916, provides: "The President, in time of war, is empowered, through the Secretary of War, to take possession and assume control of any system or systems of transportation, or any part thereof, and to utilize the same, to the exclusion as far as may be necessary of all other traffic thereon, for the transfer or transportation of troops, war material and equipment, or for such other purposes connected with the emergency as may be needful or desirable. On July

the knee, he is strong and robust, and his heart and lungs, and abdomen are normal. Defendant also submits an affidavit from one O'Boyle, presumably an investigator, that he has seen the infant plaintiff; and called upon him with the physician, and that the boy is regularly attending school.

In this case it is manifest that no one is dependent for support upon the plaintiff, and he does not need any medical attendance. On the other hand, the showing made by the railroad indicates beyond question that the just interests of the government would be prejudiced by a present trial of the action in this jurisdiction. An action can

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be promptly brought in Scranton, where plaintiff resides, and where the witnesses of defendant will be available at a minimum of inconvenience." Cocker v. N. Y. & O. Ry. Co., 253 Fed. 680, 681, per Mayer, J.

26 Ibid.

27 Harnick v. Penn. R. Co., 254 Fed. 748.

28 Ibid.

29 St. at L. 278. Comp. St. 1010; supra, § 61, infra, §§ 537-538. 30 Harnick v. Pennsylvania R. Co., 354 Fed. 748, 749.

31 Act of Feb. 28, 1920, § 206 quoted supra, § 95.

§ 96j. 139 St. at L. 645, Comp. St. § 1974a.

22, 1918, the President by proclamation took possession of the telegraph and telephone lines and systems in the United States through the Postmaster General.2 There has been no subsequent legislation upon the subject.

This statute is constitutional.3 Pending such government control, no State commission can regulate or interfere with prices charged for telegraph or telephone service in interstate or international commerce. It was held that an action might be brought against a telegraph and cable company for delay in delivering the cable while the company was under federal control.5

§ 96k. Suits against alien property custodian. The act to prevent trading with the enemy provides: "Any person, not an enemy, or ally of enemy, claiming any interest, right, or title in any money or other property which may have been conveyed, transferred, assigned, delivered, or paid to the alien property custodian hereunder, and held by him or by the Treasurer of the United States, or to whom any debt may be owing from an enemy, or ally of enemy, whose property or any part thereof shall have been conveyed, transferred, assigned, delivered, or paid to the alien property custodian hereunder, and held by him or by the Treasurer of the United States, may file with the said custodian a notice of his claim under oath and in such form and containing such particulars as the said custodian shall require; and the President, if application is made therefor by the claimant, may, with the assent of the owner of said property and of all persons claiming any right, title, or interest therein, order the payment, conveyance, transfer, assignment or delivery to said claimant of the money or other property so held by the alien property custodian or by the Treasurer of the United States or of the interest therein to which the President shall determine said claimant is entitled: Provided, That no such order by the President shall bar any person from the prosecution of any suit at law or in equity against the claimant to establish any right, title or interest which he may have in such money or other property.

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If the President shall not so

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order within sixty days after the filing of such application, or if the claimant shall have filed the notice as above required and shall have made no application to the President, said claimant may, at any time before the expiration of six months after the end of the war, institute a suit in equity in the district court of the United States for the district in which such claimant resides, or, if a corporation, where it has its principal place of business (to which suit the alien property custodian or the Treasurer of the United States, as the case may be, shall be made a party defendant), to establish the interest, right, title, or debt so claimed, and if suit shall be so instituted then the money or other property of the enemy, or ally of enemy, against whom such interest, right, or title is asserted or debt claimed, shall be retained in the custody of the alien property custodian, or in the Treasury of the United States, as provided in this Act, and until any final judgment or decree which shall be entered in favor of the claimant shall be fully satisfied by payment or conveyance, transfer, assignment, or delivery by the defendant or by the alien property custodian or Treasurer of the United States on order of the court, or until final judgment or decree shall be entered against the claimant, or suit otherwise terminated.

Except as herein provided, the money or other property conveyed, transferred, assigned, delivered, or paid to the alien property custodian shall not be liable to lien, attachment, garnishment, trustee process, or execution, or subject to any order or decree of any court.

This section shall not apply, however, to money paid to the alien property custodian under section ten hereof." By Section 10: (f) The owner of any patent, trade-mark, print, label, or copyright under which a license is granted hereunder may, after the end of the war and until the expiration of one year thereafter, file a bill in equity against the licensee in the district' court of the United States for the district in which the said licensee resides, or, if a corporation, in which it has its prin

§ 96k. 1 Act of Oct. 6, 1917, ch. 106, 9, 40 St. at L. 419, Comp. St. § 3115e. As to the confiscation of a debt owed by a citizen to an enemy, compare Am. Exchange

Nat. Bank v. Palmer, U. 8. D. C.,
S. D. N. Y. March 5, 1919. Cohn
v. Jacob & Josef Cohn Inc. U. S. D.
C. S. D. N. Y. April 1920.

cipal place of business (to which suit the Treasurer of the United States shall be made a party), for recovery from the said licensee for all use and enjoyment of the said patented invention, trademark, print, label, or copyrighted matter: Provided, however, that whenever suit is brought, as above, notice shall be filed with the alien property custodian within thirty days after date of entry of suit: Provided further, That the licensee may make any and all defenses which would be available were no license granted. The court on due proceedings had may adjudge and decree to the said owner payment of a reasonable royalty. The amount of said judgment and decree, when final, shall be paid on order of the court to the owner of the patent from the fund deposited by the licensee, so far as such deposit will satisfy said judgment and decree and the said payment shall be in full or partial satisfaction of said judgment and decree, as the facts may ap pear; and if, after payment of all such judgments and decrees, there shall remain any balance of said deposit, such balance shall be repaid to the licensee on order of the alien property custodian. If no suit is brought within one year after the end of the war, or no notice is filed as above required, then the licensee shall not be liable to make any further deposits, and all funds deposited by him shall be repaid to him on order of the alien property custodian. Upon entry of suit and notice filed as above required or upon repayment of funds as above provided, the liability of the licensee to make further reports to the President shall cease.

If suit is brought as above provided, the court may, at any time, terminate the license, and may, in such event, issue an injunction to restrain the licensee from infringement thereafter, or the court, in case the licensee, prior to suit, shall have made investment of capital based on possession of the license, may continue the license for such period and upon such terms and with such royalties as it shall find to be just and reasonable."’2 By Section 12: "Any money or property required or authorized by the provisions of this Act to be paid, conveyed, transferred, assigned, or delivered to the alien property custodian shall, if said custodian shall so direct by written order, be paid, conveyed, transferred, assigned, or delivered to the Treasurer

2 Ibid § 10, 40 St. at L. 420, Comp. St. § 31151⁄2ee; supra, § 87.

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