Opinion of the Court.

facts of the case do not justify their full application. The evidence upon which it is claimed that Burnap & Burnap were fraudulently palming off the "Genesee County Salt" as the salt of the Genesee Salt Company is very slight. There is possibly enough evidence to sustain the claim that originally the name "Genesee County" was adopted with the abbreviation of "Co." for "County" to induce the purchase of the "Genesee County Salt " as that of the Genesee Salt Company, though it must be admitted that a most cursory examination would show very little resemblance between the packages, for the one is white linen and the other is a brown English toweling, the lettering is not the same, one being solid and the other open, and the only resemblance is in the collocation of the words "Genesee Co.," 99.66 Factory Filled" and "Salt." It appears that as soon as the complaint was made by the Genesee Salt Company that this was a colorable imitation of their goods Burnap & Burnap sent out five thousand circulars clearly stating the difference, and showing that their salt was "Genesee County Salt," as distinguished from the salt of the Genesee Salt Company. The court below was of opinion that it would sufficiently protect the complainant from unfair competition to require that the word "Co." should be written out in full so as to read "County," and that the defendants should be enjoined from representing in any way that the salt of the defendants was the salt of the complainant, but the court was of opinion that it ought not to enjoin the defendant from the use of the words "Genesee County Salt " and "Genesee Salt" in the sale of salt actually manufactured in Genesee County, when those words were used without abbreviation, and not in imitation of or resemblance to the trade-mark of the complainant as set forth in the bill of the complainant.

On the whole case we think that the court gave the complainant all that it was entitled to. If the defendants had been persistently palming off their goods as the goods of the complainant, equitable relief might have been granted to the extent of enjoining the use of the word "Genesee" by the defendants, but by their circulars the defendants, if they ever had any purpose to pirate the business of the Genesee Salt

Syllabus.

Company by the use of the words "Genesee Co.," abandoned the purpose and explained to the public what was the fact, namely, that their salt was made in Genesee County. They may rightfully call it "Genesee Salt" or "Genesee County Salt," provided that they do not intentionally mislead the public into buying their salt as the salt of the complainant. Under the restrictions of the decree of the Circuit Court we do not think there is any evidence that they are doing this. The decree is

Affirmed.

COLER v. GRAINGER COUNTY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DIVISION OF THE EASTERN DISTRICT OF TENNESSEE.

No. 366. Argued March 5, 1896. - Decided April 14, 1896.

Where the only question raised upon the record before a Circuit Court of Appeals is a question of the jurisdiction of the court below, the appeal must be dismissed, because a Circuit Court of Appeals is not vested with jurisdiction to consider that question only, but where the record in the Circuit Court of Appeals presents questions other than that of the jurisdiction of the Circuit Court, and the case is one where the Circuit Court of Appeals cannot dispose of the case if it should disagree with the court below on the question of jurisdiction without proceeding to consider other questions raised by the record, an appeal or writ of error lies to the Circuit Court of Appeals, and that court must, ex necessitate, consider the question of jurisdiction in order that it may proceed to decide the other questions raised upon the merits. Section 1 of the act of Congress of March 3, 1875, 18 Stat. 470, c. 137, as amended by the acts of Congress of March 3, 1887, 24 Stat. 552, c. 373, and of August 13, 1888, 25 Stat. 433, 434, c. 866, and which as amended reads as follows: "Nor shall any Circuit or District Court have cognizance of any suit, except upon foreign bills of exchange, to recover the contents of any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made,”- prevents jurisdiction of the Circuit and District Courts in all suits by an assignee of a chose in ac

Statement of the Case.

tion except when the chose in action is a foreign bill of exchange, or where it is founded on an obligation made by a corporation that is payable to bearer, and is negotiable by mere delivery.

A contract to pay money for stock is a chose in action within the meaning of section 1 of the act of Congress of March 3, 1875, as amended. In this case, which was a suit based upon a written contract of subscription by a county for the stock of a railroad company, it was held (1) that as both the county and the railroad company were citizens of the same State, and as the chose in action, which was the contract of subscription, passed by voluntary assignment to the principal contractors of the railroad company, from them to a bank as collateral by voluntary assignment, from the bank through a public sale to a citizen of New York, and from him to a citizen of New Jersey, who brought suit on the contract to enforce it in a Circuit Court of the United States in the State of which both the county and the railroad company were citizens, the Circuit Court was without jurisdiction under the provisions of section 1 of the act of Congress of March 3, 1875, as amended; (2) that the changes of title, whether forced by operation of law or voluntary, had no effect to avoid the operation of the statute even if a transfer of title by operation of law did not come within its terms; (3) that in enforcing the subscription in equity the presence of the railroad company, which was the holder of the naked legal title to the subscription, was not necessary, and therefore the receiver of the railroad company, to whom the legal title had not passed, was not a necessary party to the suit; and (4) that the fact that the receiver was made a party to the suit did not confer jurisdiction on the Circuit Court which it did not otherwise possess in the suit, as he was merely a nominal and unnecessary party.

Before TAFT and LURTON, Circuit Judges, and HAMMOND, District Judge.

This is an appeal from a decree of the Circuit Court of the United States for the Northern Division of the Eastern District of Tennessee, dismissing a bill filed by William N. Coler, Jr., against Grainger County, Tennessee, and T. J. Smith, receiver of the Morristown & Cumberland Gap Railroad Company, appointed in another proceeding in the same court entitled "John Coleman v. The Morristown and Cumberland Gap R. R. Co. et al."

Coler's bill was based upon a written contract of subscription for $75,000 of the par value of the capital stock of the Morristown and Cumberland Gap Railroad Company, entered

Statement of the Case.

into, as alleged, by the county of Grainger by its proper officers and with due legislative authority. The bill averred that the railroad company was organized under the laws of Tennessee for the construction and maintenance of a railroad from Morristown in Hamblen County, Tennessee, through Grainger County, to a connection with the Knoxville, Cumberland Gap and Louisville Railroad, which was already constructed and in operation in the western part of said Grainger County; that this subscription was a consideration for the construction of the road, that the road was constructed, and that the contract of subscription, having been fulfilled on the part of the railroad company, was binding upon the county; that the railroad company had assigned the contract of subscription, together with $75,000 of the par value of the stock, to Allison, Shafer & Co., the principal contractors in the construction of the road, to enable them to borrow money for the completion of the road; that this was done with the knowledge and consent of Grainger County; that Allison, Shafer & Co. borrowed a large sum of money from the Western National Bank of New York, and deposited the contract of subscription as collateral to secure payment of the same; that afterward when the debt was due and not paid, the bank gold the subscription with the stock attached to Jordan L. Mott, a citizen of New York; that the sale was public and under the laws of New York providing for, authorizing and regulating the same and judicial in character, and by virtue thereof the said contract of subscription, and said stock with all rights thereunder, against said county of Grainger, and charged with the same trusts in favor of said county of Grainger, passed to said Jordan L. Mott, Jr., who was and is a citizen of New York; that on February 26, 1894, said Mott transferred the stock and contract of subscription to the complainant, a citizen of New Jersey at the date of the transfer to him, and who still remains such, and that the county refused to take the stock and pay for the same. The complainant asked for a decree adjudging the obligation of the county upon the subscription, and compelling it by decree of specific performance to take the stock, and to levy the tax and pay the

Statement of the Case.

same as provided by the law of the State of Tennessee, or to issue bonds at the election of the county.

By way of amendment to the bill, the complainant further alleged that on May 20, 1892, John Coleman, a nonresident of Tennessee, and a citizen of another State, filed his original creditor's bill against the Morristown and Cumberland Gap Railroad Company in the Circuit Court of the United States for the same district and division, alleging that the railway company was indebted to him, and that it was insolvent, and asking that its affairs be wound up as an insolvent corporation, and that the court take jurisdiction of the same, and direct that its affairs should be wound up in said cause; that the court appointed T. J. Smith, of the State of Ohio, to be the permanent receiver of the Morristown and Cumberland Gap Railroad Company, and of the property and assets of the railroad company, and directed him to take charge and possession of all the property, real and personal, of the said railroad company; that Smith at once qualified and took charge of the railroad and its assets, and still retained the same, and was then acting as such receiver under an order of the court, and that the suit was still pending in the court and undisposed of; that the court further ordered that all parties having claims against said insolvent railroad company should file the same therein, and that they should be and were and still were enjoined from proceeding against said insolvent railroad company or its property or other assets otherwise and elsewhere; that on January 31, 1894, a decree was pronounced in the court adjudging a large portion of the claims to be liens upon said road, and the remainder were adjudged to be general claims against the said railroad company, and said railroad was ordered to be sold to satisfy said lien claims first, and it was directed that any surplus should be applied to the general debts, but that the sale had not yet been made; that the subscription to the capital stock of the railroad by the county had been made with the Morristown and Cumberland Gap Railroad Company, and the legal right to the same, and to bring action thereon, was vested in the said railroad company, but