The United States offered to prove by the witnesses Rees Pilcher and Henry Pilcher that, on the night before the whisky was removed from the warehouse, the defendant broke the lock of the warehouse, or drew out the staple to the lock with a road pick. To the admission of this evidence the defendant objected on the ground that he had been indicted for breaking the lock, and had been tried thereon at the previous term of the court and had been acquitted, and that this evidence was irrelevant in this case, and calculated to confuse, mislead, and prejudice the jury against him. The court overruled the objection, and the defendant duly excepted. He assigns this as one of the grounds of error. The transactions were so close together in point of time, and so nearly related in their character, that the evidence offered would have been clearly admissible if the case then on trial for a violation of section 3296 had been heard before the trial and judgment in the case against the defendant brought under section 3268, which reads:

"Every person who destroys, breaks, injures, or tampers with any lock or seal which may be placed on any cistern-room or building by the duly authorized officers of the revenue, or opens said lock or seal, or the door to said cistern-room or building, or in any manner gains access to the contents therein, in the absence of the proper officer, shall be fined not less than five hundred dollars nor more than five thousand dollars, and imprisoned not less than one year nor more than three years."

While the judgment of acquittal in that case would be a bar against any further effort to punish him for a violation of section. 3268, and could rightfully be considered by the jury in passing upon the credibility of the witnesses testifying on this trial, it was not ground for sustaining the objection to the introduction of the testimony offered. This assignment of error is not well taken.

The United States offered to prove by one John Harmon that about one week after the burning of the distillery warehouse, while he was in the employment of a revenue officer, and charged, as such employé, to get up evidence against the guilty parties, he crawled under Richard Pilcher's house one night, and overheard some other men talking with Richard discussing the removal of the whisky, the destruction of the warehouse, and the best way to get out of the trouble, and that it was his impression that one of the voices he heard talking was that of the defendant, with whom he was acquainted; but of this he was not certain, and he could not say it was the defendant's voice because he did not see him. The defendant objected to the admission of this evidence on the ground that it was too indefinite, and did not tend to prove the defendant's actual presence or participation in the conversation. The court overruled the objection, the evidence was admitted, and the defendant excepted. This action of the court is assigned as error. The bill of exceptions shows that the distillery warehouse was a legal one; that there were a number of packages of whisky therein, subject to the tax imposed by the laws of the United States, on which the tax had not been paid; that the warehouse was destroyed by fire on the night of July 5, 1899; that, soon after the burning, six or seven barrels of this whisky, which had been in the warehouse, and on which the tax had not been paid, were found concealed

in Rees Pilcher's potato patch; that this Rees Pilcher had also been indicted for removing and concealing this whisky, and on a day prior to this trial had pleaded guilty to that indictment; that the distillery at which the whisky was made, and the warehouse that was burned, belonged to Richard Pilcher, and that steam to run the distillery was supplied by means of a pipe from the boiler of the sawmill of the defendant, situated 300 feet distant from the distillery. The defendant's dwelling house, in which he and his family resided at the time the offense was committed, was situated half a mile distant from the distillery and the warehouse. The objection to the admissibility of John Harmon's testimony was that it was too indefinite, and did not tend to prove the defendant's actual presence or participation in the conversation. This seems to present, somewhat vaguely, two grounds of objection: (1) That the witness was not able to identify the defendant by his voice so as to show that he was present in the house under which the witness had placed himself in prosecution of his effort to get up evidence against the guilty parties; and (2) that the witness did not attempt to relate anything that the voice, which impressed him as being that of the defendant, uttered; did not testify to any language, or the substance of any language, used by the defendant, or others present, which would tend to incriminate the defendant, or to incriminate specifically any other person; and hence that the testimony was irrelevant, and should not have gone to the jury for any purpose. It is not expressly stated in the record what was the family relation existing between the various Pilchers mentioned in the record; but it seems to be clearly implied that Richard Pilcher, now deceased, the owner of the distillery and of the warehouse that was burned, was the father of the defendant and of the witnesses Rees and Henry Pilcher. There can be no question that a witness will be allowed to identify a person by his voice if able to do so; that is to say, the testimony is competent to be considered by a jury. And if the presence of the defendant at his father's house a week after the removal of the whisky and the burning of the warehouse was a fact which of itself would tend to charge him with the offense, the objection to the testimony that he was identified only by his voice, and that the witness would say no more than that it was his impression that it was the voice of the defendant,-was giving his impression, rather than stating a fact, would not be well taken. The presence of the defendant at his father's house a week after the commission of an offense at another place does not tend to show that either the defendant or his father, or any other certain person, had committed the offense. The witness was allowed to testify that he, while under Richard Pilcher's house, overheard some other. men in the house talking with Richard, and discussing the removal of the whisky, the destruction of the warehouse, and the best way to get out of trouble, and that it was his impression that one of the voices he heard talking was the voice of the defendant. The witness does not give any of the language, or the substance of the language, that impressed him as having been uttered by the voice of the defendant. He does not give any of the language of any of the other persons. present in the house that would show, or tend to show, that the

speakers said or implied that the defendant was in the trouble, or that he had any connection with the destruction of the warehouse or with the removal of the whisky. The bill of exceptions shows that much other testimony given on the trial was sharply conflicting as to the guilt of the defendant. While this testimony did not tend to show his guilt, and should have been excluded because irrelevant, in the very nature of the case, and especially in the condition of the proof, it had a tendency to prejudice the minds of the jury against the defendant. The admission of this testimony seems to us to violate fundamental principles too well known to admit of discussion. For this error, the judgment must be reversed.

It is ordered that the judgment of the district court is reversed, and the cause is remanded to that court, with the direction to award the defendant therein a venire de novo.

(113 Fed. 251.)

UNIVERSAL SAVINGS & TRUST CO. et al. v. STONEBURNER et al. (Circuit Court of Appeals, Fourth Circuit. February 4, 1902.)

No. 418.

1. COURTS-JURISDICTION-RESTRAINING Order.

Where a bill in chancery is filed with the court, it has jurisdiction to issue an order restraining defendants and appointing a receiver, though the bill is not lodged in the clerk's office and subpoena issued until two days thereafter.

2. INJUNCTION-Receiver-APPLICATION TO REMOVE-Hearing-Decree—Ap

POINTMENT.

Where an order restraining defendants and appointing a receiver is awarded before subpoena is issued, if such award is improvident a decree, made after hearing on defendants' application to discharge the receiver and dissolve the injunction, denying such relief, amounts, in substance, to the granting of an injunction and the appointing of a receiver.

8. SAME-BILL-Right of Stockholders to Sue-JurisdICTION

EQUITY.

Complainants in their bill alleged that they owned full-paid stock in a building association, which, under the by-laws, they were entitled to withdraw and receive the value thereof; that they had given the prescribed notice and demanded such value repeatedly, but, though other stock on which notice was served after theirs had been paid, payment was refused them; that the managers of the association had squandered and mismanaged the funds, and conspired with the directors of a rival company to turn the assets and business over to such company, and, pursuant to such conspiracy, had caused the election of the majority of such directors as directors of the association, and officers thereof; that such new directors and officers were conducting the business fr their own personal gain and in the interest of the other company, ignoring the interests of the stockholders; and that the association was wholly insolvent. Complainants prayed an injunction and receiver. Held, that the bill stated facts entitling complainants to equitable relief, and giv ing the court jurisdiction; application by them to the directors or a meeting of the stockholders for redress or leave to institute the suit being unnecessary.

4. SAME-DISCRETION.

Where, on the application for receiver and injunction, the allegations of such bill were fully supp rted by affidavits and exhibits, the court did not improvidently exercise its discretion in awarding such relief.

5. SAME-APPEAL-ERROR NOT PLAINLY APPARENT.

Where an injunction and receiver were properly awarded on the bill, affidavits, and exhibits presented by complainants, and the answer and testimony presented by defendants on their application to set aside such order did not materially change the case, and the application was denied, though the evidence is conflicting, it not being plainly apparent that the court erred in entering the orders, they should not be reversed. Appeal from the Circuit Court of the United States for the Eastern District of Virginia.

W. P. De Saussure and Wyndham R. Meredith, for appellants. Robert Stiles, A. L. Holladay, and Emmett Seaton, for appellees. Before GOFF and SIMONTON, Circuit Judges, and JACKSON, District Judge.

GOFF, Circuit Judge. The appellees, who were complainants below, on the 25th day of May, 1901, tendered their bill to the circuit court of the United States for the Eastern district of Virginia, alleging, among other things, that they were the owners of stock in the defendant company to the amount of $12,000, and that they had paid cash to said company for the stock to the par value of the same; that the appellee Stoneburner owned of said stock 50 shares of class E and 50 shares of class C, each share of said stock being of the par value of $100; that the money invested in the stock of class E could be withdrawn at any time after 6 months from the date of the certificate therefor, and the money invested in class C stock could be withdrawn at any time, upon the holder thereof giving written notice of his purpose so to do, but that, in its discretion, the company could require the lapse of 60 days before making payment of the money due on class C stock; that the appellee Stoneburner on the 3d day of April, 1900, gave notice in writing. to the company of his intention to withdraw the value of all his stock of both classes, and that shortly thereafter the appellee Young did also give such notice; that the receipt of such notices by the company was duly admitted; that both of said appellees repeatedly made demand upon the company for the payment of the withdrawal value of their stock, and that such payment was always refused, nor had the same been made when the bill was filed, that said failure so to pay was because of the improper manner in which the business affairs of the company had been theretofore managed; that it was the duty of the officers and directors of the company to make provision for the payment of withdrawing stockholders, and that many stockholders owning relatively smaller amounts of stock than said appellees held had been paid in full the amounts due them, to the prejudice of the appellees, since their said notices had been served; that within the two years immediately preceding the filing of the bill the business of the company had materially decreased, as also had its assets, but that during the same time its liabilities had increased; that the officers and directors of the company in office prior to January 23, 1901, formed a plan with the defendants other than said company, seven in number, that they would, by their votes, and the votes of others controlled by them,

51 C.C.A.-14

deliver said company into the hands and management of said seven defendants, who constituted the board of directors of the Prudential Banking & Trust Company, then a competitor for the character of business the defendant company was engaged in; that on January 23, 1901, five of. said defendants were elected directors of the defendant company, one of them secretary and treasurer, and the remaining one assistant secretary and treasurer, the old board and old officers then and there retiring; that after such election the new officials set to work to carry out their preconceived plan of personal gain to themselves, ignoring the interests of the stockholders of the defendant company, the control and management of which had been absolutely turned over to them; that said new officials did, by all means in their power, endeavor to prevent the payment of the cash value of the stock of those who had filed notices for withdrawal, their intention being, instead of paying cash therefor, to issue new stock that would not have the withdrawal feature: that their purpose was to combine the assets of said company with the assets of the Prudential Banking & Trust Company, of which they were then also directors; that said new directors, soon after their election, increased the expenses connected with the management by voting additional salaries to the officers thereof, and that they also passed a resolution reducing the stock of all stockholders 20 per centum; and that the defendant company was, at the time of the filing of said bill, insolvent. The prayer of the bill was that the complainants therein be paid the withdrawal value of their stock, and that the same be declared a lien upon the assets of the company, that a receiver be appointed to take charge of and administer the affairs of the defendant company under the direction of the court, and that the defendants be enjoined and restrained from disposing of any of such assets, and also for such general relief as, under the circumstances, to equity appertains. The bill was sworn to by both of the complainants, and with it were filed a number of exhibits containing the by-laws of the company, its plan of doing business, and copies of various statements published by its management, showing its financial condition. On the day the bill was so presented to the court, an order was made and signed by the judge thereof, after he had read and considered said bill and exhibits, by which it was decreed that the company show cause before the court on the 6th day of July, 1901, why an injunction should not be granted, enjoining and restraining it and its officers from disposing of or exercising control over its assets; and, it appearing to the court that there was danger of irreparable injury from delay, it was ordered that in the meantime, and until the further order of the court, a restraining order issue in accordance with said prayer, but it was provided that said company might at any time, on giving five days' notice to complainants, move to vacate such restraining order and discharge the receiver which the court then proceeded to appoint. The bill so filed in court on the 25th day of May, 1901, was lodged in the clerk's office at Richmond, Va., on the 27th day of May, 1901, on which day the subpoena in chancery summoning the defendants to appear was duly issued, as was also the restrain