for plaintiff, defendant brings exceptions. returning to Plymouth, there is no evidence Exceptions overruled. Case under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]) to recover for injuries received by the plaintiff on January 21, 1914. Trial by jury and verdict for the plaintiff. At the time of the accident the defendant was a common carrier by railroad engaged in commerce between Vermont, New Hampshire, and Massachusetts, also in commerce within New Hampshire, and the plaintiff was in its employ as a locomotive engineer. On defendant's road, near Ashland, N. H., there is a point called the Summit, which is the apex of the grades from north to south and from south to north. At the time of the accident it was necessary to assist heavy trains over the Summit from north to south and from south to north by attaching to them an extra engine called the helper. The plaintiff was employed by the defendant to operate the helper. On the day of the accident there was occasion to help interstate train No. 604 from Plymouth to the Summit, and the plaintiff was assigned to the task. He was given a copy of the orders for operating No. 604, and in addition thereto, on a separate sheet, an order to return to Plymouth with his locomotive as soon as he left No. 604 at the Summit. He had no further orders. The accident occurred on his return trip. At the close of the evidence the defendant's motion for a directed verdict upon the ground that the plaintiff was not shown to have been engaged in interstate commerce at the time of the accident was denied, subject to exception. Martin & Howe, of Concord (De Witt C. Howe, of Concord, orally), for plaintiff. Streeter, Demond, Woodworth & Sulloway, of Concord (Jonathan Piper, of Concord, orally), for defendant. PEASLEE, J. [1] The question presented is whether the evidence warranted a finding that the plaintiff, at the time of the accident, was engaged in interstate commerce within the meaning of the federal Employers' Liability Act, as construed by the Supreme Court of the United States. Counsel do not differ materially as to the test to be applied. If the act the servant was performing at the time of the accident was incident to interstate work, or if it was incident to a whole day's work which was partly interstate and partly intrastate, he is within the provisions of the act. [2] The defendant claims that when the plaintiff left train No. 604 he had completed his interstate employment, and that, as it does not appear what he was to do after to warrant a finding that he was engaged in interstate commerce on that return trip. Reliance is put upon the fact that he had two orders, one to help the freight to the Summit, and the other to then return to Plymouth. But this is satisfactorily accounted for by the rule that all engaged in operating a train work under a common order. So long as his engine was attached to train No. 604 he would operate under the orders for moving that train. But, when his engine was detached, further and separate orders to direct his movements were necessary. For this reason his orders were in separate parts, one the order common to him and the men on train No. 604, and the other for his own direction after leaving No. 604. These orders were both given to him at the same time, and, taken together, made up the directions under which he left Plymouth. By them he was given a task to perform, and that task was not completed until he returned to Plymouth. The argument that his return may have been to take up an intrastate task, if of value to the defendant upon the legal questions involved, is not supported by the evidence. There is no evidence to warrant a finding that he was ordered back to Plymouth for any particular work. He had no further orders. As the plaintiff put it in argument, his orders were to do the required work and come home. Upon this evidence 2. TRADE-MARKS AND TRADE-NAMES --INJUNCTION-LACHES. Delay in seeking relief against a continuance of the use of a proprietary name, such as a trade-mark, is not ordinarily a defense recognized in equity courts, however much it may affect the rights to an accounting for profits. 95(5) | by the defendant of its corporate name, as referred to in the affidavits, does not constitute laches. But even if so, delay in seeking preventive relief against a continuance of the use of a proprietary name, such as a trade-mark, is not ordinarily a defense recognized in equity courts, however much it may affect the rights to an accounting for profits. Menendez v. Holt, 128 U. S. 514, 9 Sup. Ct. 143, 32 L. Ed. 526; McLean v. Fleming, 96 U. S. 245, 24 L. Ed. 828; Fahrney v. Rummier, 153 Fed. 735, 737, 82 C. C. A. 621; Saxlehner v. Eisener, etc., 179 U. S. 19, 39, 21 Sup. Ct. 7, 45 L. Ed. 60. Suit by the Oklahoma Producing & Refining Company against the Oklahoma Consolidated Producing & Refining Company. Preliminary injunction ordered as stated in opinion. Statement of the Case. The bill of complaint in this cause was filed for the purpose of restraining the defendant, its officers, servants and agents from transacting any business whatever or selling any stock under the name of Oklahoma Consolidated Producing & Refining Company; from in any manner representing that it is the complainant, and from making any representations that will lead the public to believe that it is the complainant; and from issuing or publishing letters, circulars, prospectuses, or any other writing, whatever, relating to the oil business, or the sale of its corporate stock under the name of Oklahoma Consolidated Producing & Re fining Company. Upon motion of the solicitors for the complainant, after notice to the defendant, a restraining order and a rule requiring the defendant to show cause why a preliminary injunction should not be issued were ordered, and the cause came on to be heard at the return of the rule on bill and affidavits on behalf of the respective parties. William Watson Harrington and James M. Satterfield, both of Dover, for complainant. Herbert H. Ward and Andrew C. Gray, both of Wilmington, for defendant. THE CHANCELLOR. This being a motion for a preliminary injunction, I will not do more at this time than state my tentative views as to the respective rights of the parties, reserving opinions on all matters until the final hearing. The admissions of the defendant respecting the sales of its stock in the same locality as the complainant sells its stock, entitles the complainant to a preliminary injunction like the restraining order. But I am not sufficiently convinced at this time that the defendant should be enjoined from buying, developing or selling oil producing property, or refining or selling oil. The likelihood of deception and the probabilities of confusion between the two corporations arising from similarity of names is the moving element in such cases, and the basis of the relief. I am not now reasonably satisfied that that element has existed, or will exist, and so should not now by order practically terminate the business activity of the defendant company. Let an order be entered accordingly. (11 Del. Ch. 430) DU PONT et al. v. BALL et al. (Supreme Court of Delaware. Nov. 29, 1918.) General Corporation Law (22 Del. Laws, c. 394) § 20, providing that stockholders' liability for unpaid subscriptions may be enforced as provided for in section 49, which section provides for creditor's action at law or bill in chancery, does not make such remedies exclusive, and such liability may be enforced by receivers in insolvency. 261 - STOCKHOLDERS [1] The similarity of the names of the complainant and defendant are such as that it is probable that the public would be de-2. ceived thereby, and as this tends naturally and inevitably to harm the complainant, it is Where creditor proceeds in equity to secure clear that as the matter now stands, the the appointment of receivers on ground of incomplainant is entitled to have its rights solvency of the corporation, obtaining a judgprotected by a preliminary injunction until ment and unsatisfied execution is not a condithe case can be fully heard upon the proofs tion precedent to enforcement by the receivers adduced in the regular way. The opinion of stockholders' liability for unpaid subscrip of Judge Bradford in Philadelphia Trust, etc., Co. v. Philadelphia Trust Co. (C. C.) 123 Fed. 534, furnishes ample authority for this view. [2] It seems to me at this time that the acquiescence of the complainant in the use tions. 3. CORPORATIONS 259(7)-STOCKHOLDERS— LIABILITY-REMEDY. Creditor's remedy by "bill in chancery" against a stockholder of a corporate debtor, given by General Corporation Law (22 Del. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Laws, c. 394) § 49, must be initiated by a cred- 10. CORPORATIONS 243(10)-STOCKHOLDERS itor's bill. -LIABILITY-ESTOPPEL. 4. CORPORATIONS 563(2)—STOCKHOLDERS— LIABILITY-ENFORCEMENT BY RECEIVERS. The ordinary liability of a stockholder for unpaid subscription is an asset of the corporation, enforceable by its receivers upon insolvency, while a statutory liability for a sum in addition to unpaid subscriptions, as under a "double liability" statute, is not such an asset, but a liability directly to the creditors, which a receiver, in the absence of statutory authority, has no power to enforce. 5. CORPORATIONS 235-DOUBLE LIABILITY OF STOCKHOLDERS. Stockholder's liability in addition to unpaid subscriptions, as under a "double liability" statute, is not resorted to if the assets of the corporation, including unpaid subscriptions, are sufficient to pay creditors. 232(1)-STOCKHOLDERSLIABILITY-DEFENSE OF ULTRA VIRES STOCK ISSUED WITHOUT CONSIDERATION. - It is no defense to liability for unpaid stock that, the stock having been issued without consideration, contrary to the constitutional provision, the issue was ultra vires and void; the ultra vires feature of the transaction being, not the issuance, but the failure to exact payment for the stock, and the agreement that it need not be paid for. 8. CORPORATIONS 246-STOCKHOLDERS-LIABILITY-CLASSES OF STOCK. As to stockholders' liability for unpaid stock, there is no distinction or priority of liability between stock subscribed for and that which is issued and accepted without being paid for, or between preferred and common stock; the test, under the statute, being not the class or char acter of the stock, but whether it has been paid for. One subscribing for and accepting preferred stock for his own benefit, and holding himself as the legal owner thereof, is estopped to deny liability as stockholder to bona fide creditors on the ground that his stock was illegally issued and void. 11. CORPORATIONS 240(1) — STOCKHOLDERS -LIABILITY-KNOWLEDGE OF CREDITORS. The liability of stockholders for unpaid subscriptions is unaffected by creditors' knowledge or lack of knowledge of the facts and circumstances under which the stock was issued. 12. CORPORATIONS 240(1) — STOCKHOLDERS -LIABILITY-CREDITORS ENTITLED TO ENFORCE-PARTICIPATION IN ILLEGAL ISSUE. That a creditor actually participated in the issuance of unpaid stock as full-paid and nonassessable, or consented thereto, does not estop him from enforcing, as a statutory liability on unpaid stock, his claim against other stockholders, to whom such stock was issued with his assistance or acquiescence, where there was no intention on his part to perpetrate a fraud upon the others, or gain an unfair advantage by the transaction. 13. CORPORATIONS 274-STOCKHOLDERS LIABILITY-DETERMINATION. Stockholders should not be assessed, and required to pay their assessments, before their legal liability is definitely determined, because the amounts assessed may be much in excess of what they are legally liable to pay. 14. CORPORATIONS 273-STOCKHOLDERS LIABILITY-AMOUNT-INTEREST ON CLAIMS. In proceedings by receivers of insolvent corporation to assess stockholders on their liability for unpaid stock, interest on creditors' claims should commence at the time the receivers asked the court to make an assessment for the payment of such claims; there being nothing before which indicated that they would be expected to pay such claims. 15. CORPORATIONS 277- STOCKHOLDERS LIABILITY-EXPENSES OF RECEIVERS-COUNSEL FEES. In proceeding by receivers of an insolvent corporation to enforce stockholders' liability for unpaid stock, the receivers are entitled to proper expenses and a reasonable compensation, to 262(2)-STOCKHOLDERS- be paid by the stockholders. LIABILITY -VALIDITY OF ISSUE-"ACTUAL CAPITAL PAID IN CASH OR PROPERTY." 9. CORPORATIONS Although the General Corporation Law (22 Del. Laws, c. 394) provides that at no time shall the total amount of the preferred stock exceed two-thirds of the actual capital paid in cash or property, it is no defense to liability for unpaid preferred stock that the issue of preferred stock was void and not assessable for the debts of the company, because the common stock was not paid for in cash, since creditors may assume that the par value of common stock has been paid, so that the words of the statute, "actual capital paid in cash or property," mean, as to creditors, the par value of the common stock issued. 16. CORPORATIONS 274 - STOCKHOLDERS LIABILITY ASSESSMENT OF RESIDENT STOCKHOLDER ALONE. In proceeding by receivers of an insolvent corporation to enforce stockholders' liability, it was inequitable to require the single stockholder found in the jurisdiction to pay the entire assessment, although such course was the most convenient for the receivers and expeditious for the creditors; but the receivers should have been ordered to collect every assessment they should find to be collectible, and that would justify the expense of collection, in order that the burden might be fairly distributed. Heisel, J., dissenting in part. Appeal from Court of Chancery. Bill by the John W. Cooney Company against the Arlington Hotel Company, in which receivers were appointed. From a decree of the Chancellor upon petition of the receivers, levying assessment against T. Coleman Du Pont and others, as stockholders of defendant company (101 Atl. 879), they separately appeal. Decree affirmed, except as modified in opinion. The appellants were stockholders of the Arlington Hotel Company, and from a decree of the Chancellor entered on the 4th day of August, A. D. 1917, the appellants took separate appeals. The facts, in addition to those stated in the report of the case below (John W. Cooney Co. v. Arlington Hotel Co., 101 Atl. 879), are sufficiently stated in the opinion of the Supreme Court. Argued before PENNEWILL, C. J., and BOYCE, CONRAD, RICE, and HEISEL, JJ. William S. Hilles and Robert H. Richards, both of Wilmington, for appellants Du Pont, Fenn, Dunham, and Taft. Saulsbury, Morris & Rodney, of Wilmington, for appellant Blackistone. John R. Nicholson, of Wilmington, and Henry H. Glassie, of Washington, D. C., for appellees. The statement of the case contained in the opinion of the Chancellor, from whose de cree this appeal was taken, is so clear and comprehensive that it is deemed unnecessary to restate in this opinion the facts, the pertinent constitutional and statutory provisions, the proceeding in the lower court, and the many questions argued by counsel. We shall discuss only those questions that appear to be important and upon which the appellants seemed to mainly rely. Upon the much debated question of jurisdiction the court have reached the opinion, after a very careful examination of the case, that the conclusion of the Chancellor is sound. But our opinion is based upon reasoning somewhat different from that of the Chancellor. not paid for. The only troublesome question is: What proceeding may be employed to enforce the liability? Are the two remedies mentioned in section 49 of the Delaware act exclusive of a preexisting remedy that would be equally, if not more, convenient and effective in carrying out its purpose; and if they are does the statute mean that the remedy "by bill in chancery" shall be initiated by what is known as a creditor's bill? Or does it mean any proceeding in that court that is adapted to the accomplishment of the purpose sought? It so happens that New Jersey has an incorporation law very similar to ours, and most of the questions raised in this case have been raised there and settled by decisions of the highest court of that state. A good deal of ingenuity and refinement have been used by counsel for the appellants in the effort to show that there is a very substantial difference between the statutes convincing. There is, of course, some differof the two states, but the argument is not ence in language, but it seems to us the efthe distinction contended for exceedingly fort to find any in principle is strained, and technical. There is but one difference noted by the appellants which need be considered by the court. The difference to which we refer, and upon which alone it is possible to base an argument, is the concluding clause of section 20 of the Delaware act which does not appear in the New Jersey act, viz.: be recovered as provided for in section 49 of this act * * after a writ of execution against the corporation has been returned unsatisfied, as provided for in section 51 of this act. "Which said sum or proportion thereof may The courts of New Jersey have held that the remedies prescribed by section 92 of their act (2 Comp. St. 1910, p. 1655), which corresponds with section 49 of the Delaware act, cannot be employed to enforce the liability of stockholders under section 21 of their act, which corresponds with section 20 of our act without the concluding clause. And the reason for so holding appears to be that said remedies are made available in actions against officers and directors, as well as stockholders, and that the Legislature in enacting section 92 had in mind liabilities other than those that might arise under their section 21. The court are not much concerned about the history of the law respecting the stockholder's liability for the debts of the corporation before the enactment of our General Corporation Act (22 Del. Laws, c. 394). The learned and elaborate discussion of this sub- We agree with the construction placed upject, including the trust theory and the hold-on section 92 of the New Jersey act by the ing out theory, in the briefs of counsel, is courts of that state, and, therefore, hold interesting but not very helpful. Whatever that the remedies prescribed by section 49 may have been the law before, and whether of the Delaware act could not be employed the statute of this state is simply declaratory to enforce the stockholder's liability under of pre-existing law or not, the important section 20 if that section did not contain fact is that the statute clearly and express- the clause which specifically makes such ly states the stockholder's liability to cred- remedies available. itors to the extent of the par value of stock And we are more strongly confirmed in this opinion because upon investigation it is found that said section 49 was taken from the Incorporation Act of 1883 (17 Del. Laws, c. 147), which did not contain the concluding clause of section 20 of the present act. The concluding clause of section 20, unlike the New Jersey law, expressly makes said remedies applicable, so that the questions that arise, touching the matter of jurisdictions, are the two we have already mentioned. [1] But assuming that the procedure adopted in the court below was not authorized or contemplated by the statute, are the remedies mentioned in section 49 and made available to creditors by section 20 of our statute exclusive of the usual procedure employed in collecting the assets and paying the debts of an insolvent corporation, viz. a bill in chancery for the appointment of receivers on the ground of insolvency? the law does not permit a creditor to collect his claim from stockholders if he can recover it from the corporation, and the only way his inability to do this can be shown to the court is by a judgment and unsatisfied execution. But if he proceeds independently of the statute, by a bill asking for the appointment of receivers on the ground of insolvency, a judgment and execution are not required because the court is compelled to determine the very fact that the judgment and execution are designed to establish. Firestone Tire & Rubber Co. v. Agnew et al., 194 N. Y. 165, 86 N. E. 1116, 24 L. R. A. (N. S.) 628, 16 Ann. Cas. 1150. It will be observed that section 41 of the Incorporation Act of 1883, while providing for the creditor an action at law directly against the stockholder did not give him a remedy by bill in chancery. The natural inference from this circumstance is that the Legislature intended in the present act to provide for the creditor a direct remedy in chancery also, and in addition to the one he already had under the Insolvency Act. The giving to the creditor a personal and direct remedy at law by the act of 1883 did not take away from receivers the power to collect the assets and pay the debts of a corporation; neither did the giving of such a remedy in chancery by the present act take away such power. If the statute had not provided any remedy at all for enforcing the stockholder's liability under section 20, unquestionably the creditor would have a remedy in equity, and such has been the decision of the courts of New Jersey and other states in similar cases. Can it be that because the Delaware act provides that the creditor may enforce the stockholder's liability under section 20 by an action at law or by bill in chancery he is not permitted to enforce such liability by proceeding under the insolvency act? Are [3] It is the opinion of the court, therethe remedies prescribed exclusive of or ad- fore, that there are now two remedies in ditional to the usual remedy in chancery? chancery for the enforcement of the stockIt seems to the court that it was the pur-holder's liability under section 20, viz.: (1) pose of the Legislature, not to take away A proceeding under the Insolvency Act for from the creditor a plain and effective remedy that already existed, but to provide other remedies that he might use if he preferred to do so, and that might be more available and effective in some cases. It is reasonable to believe that the Legislature intended by the concluding part of section 20 to make the creditor independent of receivers appointed under the Insolvency Act, by providing remedies that he might employ directly against the stockholder. And it is also reasonable to believe that the Legislature thought there might be cases where the corporation would not be in such a condition of insolvency as would justify the appointment of receivers under the statute, but nevertheless in such a condition that the creditor could not collect his claim by judgment and execution. This view is strengthened by the fact that the statute provides that the particular remedies prescribed may be employed only after judgment has been recovered against the corporation and execution thereon returned unsatisfied. [2] There can be no doubt that obtaining a judgment and unsatisfied execution against the corporation is a condition precedent to the employment of the remedies mentioned in section 49 by the creditor directly against collecting the assets and paying the debts of the corporation, which remedy existed prior to the passage of the statute and was the one employed in this case. (2) A proceeding by bill in chancery as prescribed by the statute; and this remedy was intended by the Legislature to be used by the creditor directly against the stockholder, and must be initiated by a creditor's bill. In the one case a bill would be filed asking for the appointment of a receiver because of insolvency, and this would probably be the procedure chosen where undoubted insolvency could be shown. In the other case the creditor would file a bill against the stockholder if he is unable to collect his claim by legal process as evidenced by a judgment and unsatisfied execution. [4, 5] The appellants argued strongly and with much confidence that receivers could not, under the law, enforce a stockholder's liability created by statute, as in this case, and cited many authorities which seemed to sustain such proposition. But upon examination the cases referred to do not seem to us to be applicable to the present case. The statute of this state is unlike those that impose a liability upon the stockholder beyond the amount of his unpaid stock, such as |