Isenberg

(dissenting •in part). I concur in the disposition of the belated motion to remand. It does not follow 'that, because the Custodian may assert a claim against appellee, he is an indispensable party. In any ease, there is a possibility that a third party may claim an interest in the cause of action sued upon. If appellee felt that it was in peril from conflicting claims touching its obligation, it should have acted promptly in an effort to secure protection.

On the question respecting which the rehearing was granted, I think it is a ease where the rule recognized in Galigher v. Jones, 129 U. S. 193 , 9 S. Ct. 335 , 32 L. Ed. 658 , and McKinley v. Williams (C. C. A.) 74 F. 94 , should prevail, and that therefore the cause should be remanded, with directions to take evidence and enter a decree for an amount measured by that standard.

Many of the questions involved on this appeal were novel and intricate, and the conclusion reached by this court is not free from doubt; but, after full consideration of the petition for rehearing, we refused to review or reconsider the questions determined on the former hearing, except the question of damages, and as to that question a reargument was called for.

Speaking generally, the ground or basis of the decision adverse to the appellee was that it was its plain duty, upon its appointment as trustee of the Isenberg trusts, to institute proceedings under the Trading with the Enemy Act (50 USCA appendix) for the recovery of the shares of stock here involved, and that its failure so to do resulted in the sale of the stock by the Alien Property Custodian, and its consequent loss to the cestuis que trust. As bearing upon the question of damages, it is now contended that this court did not find that the conduct of the appellee was fraudulent. It will be conceded that its conduct was not so characterized in the former opinion, nor need it be so characterized at this time; but it was found that, in assuming to act as agent or depository for the Alien Property Custodian and as…