Every evening, Wilmington daily commercial., 1921-11-07

cause. the Federal courts would be
prompted TO discharge their receiver
after directing that-the assets In his
hands he delivered to receiver
ancillary to the one to be appointed
~ this court.
This contention In predlcated on
he theory that where two courts have
current jurisdiction. the one In which
relief In FIRST sought will. as a matte,
ot comfy, he permitted 10 proceed
With the cause without interference
from the other. That such In the rule
In laid down In the cause OF Ward V.
toulkrod. 2ei Fed. 6e7.
The opinion i'm that case was rem
dored by Circuit Judge Woollcy after
an exhaustive and learned examination
lof the authorities. This court accepts
ms corrcct~ the principle laid down in
tn Ward case. IL has, however, no
application TO the case now before the
chancellor. This is manifest Tor the
reason that In the case OF Ward "
Foulkrod, supra, the bill filed In the
Court OF Chancery Of this State charR-
ed and relied upon insolvency. and n
receiver was sought on that ground:
at later time bill was fildd In the
United States District Court for, the
Eastern District of PENNSYLVANIA
against the same defendant, similarly
| charging insolvency and seeking re-
ceiver upon that ground. IL was held
by the Circuit Court that the Court of
Chancery of this State was prior In
point OF time and. therefore, in point
OF Jurisdiction. and that upon proper
application the District Court ought
to discharge it's receiver after he had
passed his account, and appoint
anclllary receivers.
"In the case now before me. how
ever, the situation Is quite different.
The feature that distinguished this
case from the case OF Ward V. Foulk.
rod is that when the original bin was
fled I'm this cause IL charged mis-
management of solvent corporation.
This was in December, 1920, and at n
later date. namely, I'm the following
January, the bills were fled In the
Federal courts in Michigan, Ohio and
Indiana charging insolvency, and pray.
ing the appointment of receiver on
I
the two suits were, therefore. different.
After litigation In the Federal
courts had proceeded To the point
where decree Of insolvency had been
entered. after receiver had been
appointed and all the assets directed
To be transferred TO such receiver and
sold, the complainant in this cause
amended his bill on April %, 1921, by
alleging insolvency. This was the
FIRST time that ground OF complaint
TO wit. insolvency. WIS set up ON this
case similar 10 that which had at a
prior time been set up and adjudlcated
In the other jurisdictions
THE complainant contends that the
amendment thus filed should relate
back and be dated as Of the time OF tn,
Hing of the original bill. to wit De.
cembsr II. 1899; and that IL this b,
allowed, then clearly this court hat
taken cognizance Of insolvency as !
ground ~ complaint at date anterior
o. the Federal courts. and being thu:
prior In time. this courts jurisdiction
should he regarded as superior In right
With this view l cannot concur. wher,
an amendment is OF such "A nature as
to introduce new and distinct cause
lof action. u cannot. for the purpo~-
now sought, speak as Of the date oi
the fiiirg ~ the original bill: i, must
Insofar as the matter Of time is con.
cerned. be regarded as of the date OF
Is fling.
The history OF the procedure in the
lpendins cause indicates that the com.