On Rehearing.
PER CURIAM.The motion for a rehearing renews the principal arguments made on-the original hearing, which, after careful consideration, were unanimously held to be untenable. On the appeal counsel for appellants urged, and rightly, that the removability of the controversy was determinable alone from the face of the bill of complaint as it then appeared. Still in their brief on the petition for a rehearing on the question of the removability it is insisted that the court in its opinion on that question did “not touch the points in isstie in the hill and answer,” and, further, that “Brown Bros. & Co. did not claim in their answer that they only gave a participation receipt for a like amount to the bank; on the contrary, they expressly admitted in their answer that the same participation receipt made out to appellants was vested in the bank.” What the court did say in its opinion was that:
“A decree against Brown Bros. & Co. that they make the claimed allotment in favor of the complainants, which they liad the power to do from auglit that appears on the face of the bill, would give the complainants all the relief to which they are entitled under the contract; and whatever may he the mutua! rights and obligations as between Brown Bros. & Co. and the bank, by reason of the alleged dealings between them, is, as to these complainants, res inter alia aeta.”
This was correct. There is no intimation in the original bill that, if Brown Bros. & Co. should be decreed to issue to the complainants a participating receipt according to the terms of 'the alleged contract, they could not comply therewith for the reason that they had made allotments and issued receipts covering the entire amount of the $7,000,000 of securities. The prayer of the bill was simply that Brown Bros. & Co. be enjoined from making or attempting to make any change in the allotment of the $ 116,160 allotted to be paid by complainants, and that they be enjoined from receiving- or attempting to dispose of such portion of the stocks, bonds, and securities belonging to the complainants, and that the bank be enjoined from interfering witli complainants’ right in the premises and from setting up any claim to the stock, bonds, and securities purchased by complainants, and, further, that Brown Bros. & Co. and the bank be required to deliver up to complainants all of said securities, and that complainants be adjudged to be entitled to receive, hold, and own all of said stocks, bonds, and securities apportioned to them as above stated, upon the payment of the stated amount. The bill nowhere disclosed that the defendant bank had any of the securities, bonds, or stocks, nor did the prayer even ask that the participating receipt held by the bank be delivered to the complainants, but that complainants “be adjudged to be entitled to receive, hold, and own all of said stocks, bonds, and securities apportioned to them as above stated, upon the payment of the above amount.” The participating receipt did not pass title to any specific securities, but only to the right to receive the pro rata proportion of cash or securities, or both, subject to the syndicate agreement. If the complainants are entitled to share in the distribution of the securities purchased by Brown Bros., and for this reason to a specific performance, the relief to be granted would be for *764so many securities which Brown Bros, would have to deliver to them. It would be immaterial whether the'se securities are the same which were retained by Brown Bros, for themselves, or those sold to the bank, or others purchased in open market. All complainants ask in their bill is for a participating receipt under their agreement, and, so 'far as complainants are concerned, it matters not where Brown Bros. & Co. procure such a receipt, as long as they can make delivery thereof to complainants, if by the decree of the court they are directed to do so. The bill admits that these receipts can be purchased in open market.
The claim that “appellees Brown Bros. & Co. created an express trust in favor of appellants, entitling them to receive immediately the ‘negotiable receipt/ and subsequently the securities represented thereby,” was not made in the original bill upon which the cause was removed. The first intimation of a claim of a trust relationship is in the bill of repleader and amended bill, which was filed after the removal of ■the cause, and can, of course, not be considered in determining the fight to remove, which depended solely upon the allegations contained in -the bill then before the state court.
The claim that the authoritj' given to the bank by appellants was irrevocable, and never pretended to be revoked, was not only not made in the original bill, but was specifically denied.' The bill charges that “said bank had no authority to act for them in that matter and could acquire no rights to the secürities belonging to plaintiffs by any such action.” Looking at the face of the original bill, as it was when the petition for removal was presented, it in no wise made the right to relief dependent upon the transactions had between Brown Bros. & Co. and the bank, and therefore an answer by Brown Bros & Co. that they had made an allotment of similar amount to the bank, and that the bank asserted title thereto, would have constituted no defense. Suppose the complainants had named Brown Bros. & Co. as the sole defendants in this bill,’ and they had set up in their answer the transaction by which the bank acquired the participating receipt and claimed that the bank was an indispensable or necessary party? Could such a defense have been entertained for one moment by the court? The complainants could have successfully said that the transaction in no degree absolved Brown Bros. & Co. from the letter of their obligation to them, and as the plea did not disclose that the bank held a single one of the securities, or that participating receipts had been issued to the full extent of the $7,000,000, there would have been nothing disclosed to show, if a decree went directing the -allotment claimed, that it would not have afforded full measure of relief to the complainants without the presence of the bank.
■ Touching the merits' of the case, to which the motion for a rehearing goes in part, it is sufficient for the court to say that it adheres to its opinion thereon and perceives no additional reason in the earnest reargument made by the counsel on this motion either for changing or adding to the views there expressed. Independent of all these considerations, the complainants’ bill should fail for the,reason that they did not accept the ultimate proposal of Brown Bros. & Co. except upon terms imposed by the acceptor which were different from those proposed by the vendor.
*765The request to certify the jurisdictional question involved to the Supreme Court, under Act March 3, 1891, c. 517, § 6, 26 Stat. 828 [U. S. Comp. St. 1901, p. 519] establishing United States Circuit Courts of Appeals, must be denied for two reasons:
First. Questions should not be certified after the case has been decided. Louisville N. A. & C. Ry. v. Pope, 20 C. C. A. 253, 74 Fed. 1; Andrews v. National F. & P. Works, 23 C. C. A. 454, 77 Fed. 774, 36 R. R. A. 153. In the first-cited case Judge Jenkins, speaking for the United States Circuit Court of Appeals tor the Seventh Circuit, in which a similar motio'n was made, said:
“Whether a question should he certified rests within the discretion of the court, but it is not a discretion the exercise of which may be invoked by a party as of right. The certification is for the instruction of the court upon doubtful questions; and while in cases of magnitude and upon intricate and doubtful questions of law the court upon the argument may perhaps properly indulge the suggestion of counsel of the desirability of the advice and instruction of the Supreme Court, we are compelled to say that this formal motion is not conformable to correct practice. It cannot be tolerated that the argument of a cause may be thus split up into sections. If the suggestion of counsel may be entertained that a question in the canse should for any reason be certified, the suggestion must come at the argument of the case upon its merits, when the court can be fully advised whether the questions involved are so intricate and doubtful and essential to be resolved that the instruction of the Supreme Court is necessary or desirable. If the present motion were entertained, it would furnish a precedent for a practice that would seriously interfere with the proper dispatch of the business of the court. It may bo that upon the argument of the cause upon its merits some question may bo raised which, upon consultation, the judges may deem proper to certify. We shall reserve the right and discretion so to do if and when we deem it needful to the proper determination of the cause. We must decline at this time to entertain the motion, or ,to recognize the right of a party to challenge our judgment upon the propriety of so doing in advance of the argument of the case upon its merits. The motion to certify certain questions to the Supreme Court is overruled.”
A petition to the Supreme Court lor certiorari in the Andrews Case was denied. 166 U. S. 721, 17 Sup. Ct. 996, 41 L. Ed. 1188.
Second. It is only in cases of grave doubt that questions should be certified to the Supreme Court, Fabre v. Cunard Steamship Co., 8 C. C. A. 199, 59 Fed. 500; the Horace B. Parker, 20 C. C. A. 572, 74 Fed. 640. The questions involved in this case are not of that nature.
The motion for a rehearing, as well as the petition to certify the question of jurisdiction to the Supreme Court, is overruled.