But as against that proposition the defendant has very strenuously urged that there waS the lariddepartment, both in this state and in Washington, in the administration of these grants, which has the effect of law,-is:itselfboth a construction and a determination of the law. It is also contended that the complainant has slept upon its and that its claim. is stale. It. is true that the lands were qonveYl;Jd to defendanUn 1811 and 1872; bU.t on. the other hand it i13ulsotruethat thecomplaintmt's road was not'flnished along these lands until 1,879, and thisbiUwasfiled iri 1886.' There is some testimony showing that in 1883 complainant made application for an entry of these lands, which was refused.' Whatever force there may be. and I am not prepared to say that there would not he force, in these defenses, if interposed on behalf of a bona fide purchaser, some one who had parted with -vah,lefor the property,. yet'the question here is presented simply the two railroad companies,-np grantee, no mortgagee, no bonafide purchaser, or third party, being interested in this case, and in this question. Both of these patties lleneficiaries of a grant; neither one bought the land, neither paidariy money. The United States governmentsimply made a donation: of these lands, and as between two parties, each of whom claims a right to the benefit onhe gift, I think that until the statute of limitations runs,-and there is no pretense in this case that it husrun 1-neither party Can interpose the of the claim as ll:-defense;The United States goverrlment byits congress donated these lands, and there is no reason why, under strch circumstances, either party may not insist as against the other upon the fullineasure of the ' , rights given it by the grants. For these reasons the decree will go in favor of the complainant. Ordered accordingly.
'V. HERRESHOFF MANUF'G
'(Circuii Oourt, lJ. Rl'ode Ieland. November 7, 1887.)
The tria,h which resulted in a verdict for plaintiff, came to an end February Ie, 1887. 'lJefendant secured an extension of time to file a motion for a new trial, stRting that he did not intend to proceed under his exceptions. The time was further extended .on an ea; partellpplication. The motion was then filed ,aqd .argued. before both the district .and the circuit judges. A new trial was refused, and defendant. at the nex,t term, and eight months after the trial, moved for signature of his bill of exceptions, and petitioned for a, writ of error fouJlded thereon. Held, that the motion should be overruled,a.nd the writ refused. the exceptions having been waiveli, bnth expressly and by implication', and the bill being presented for signature neither within the term, nor within a reasonable time. 1
, < ·· ' ."
OF-WAIVER OF-REFUSAL TO . SIGN.
must be prepaJ.'ed and before the end of the term at whicb the dause was, tried, Sweet v. Perkms, 24 Fell. Rep·.7'77 i or within such time as the partif'lI by. '.their t, ma.de p.art oftihe record,",maystiPuhite';' Oi-Within. the'time aI... IO,wed by the orqerto that effect, made 111 and appearing in,the re.:lord, Hake v. Strubel, (til.) 12 N. E. Rep. 676., ' A distinction is to be observed in thiji rllilpeet between'the settling and allowance' of'a' bill, 'which !san act judicilil ill its
MARINE CITY STAVE CO; 'D. HERRESHOFF MANUF'G CO.
SAME-INSUFFICIENCY IN LA.W-REFUSAL TO SIGl'I,
Although the absence of good legal ground for the exceptions is nqt a sufficient reason for refusing to sig!). the bill when properly p:resented, it may yet be taken into consideration, when the bill is presented fol' signl\ture under such circumstances, that t() sign it would be a departure from the,usual and proper pr1tctice.
On motion that bill of exceptiolls be signed, etc. ' B. Vincent, for plaintiffs. M. Eaton and Benj. F. Th:urston, for defendants.
CARPEN:I'ER, J. ThiEl isa motion that a bill of exceptions be signed, and also a petition for a writ of error founded on such bill of exceptions. The circumstances are so unuaual that I think it convenient to state the grounds of my , , ' This case was tried before me with a ju,ry, February 15, 17" and 18, .1887, in the November term of this ,court. plaintiffs pro()f tending to show that they purchased from the. defendants,. fQr about 813,000"a coil boiler and engine,wanufactured by the defendallts;that the same,W(3re put by the servants of.the defendants" anq with ,k,nowl.edge, at the expense of the pJaintiffs, in a steam-boat caHeJi "'the Mary , on the St. Clairriver; that the boiler andepgine were in a manner so negligent and unwo,rkmanlikethat the enginelUld shaft broke, and the boiler repeatedly collapsed or expl\>ded.causing expense ,and detention of the boat from herbusiness,Thedefendants as .awitn,esll :ijerreshoff, pl'esident of the defendant ",ho stated tBa:t he first saw McEltoy, the prer>ideI].t of the plaintiffco'Plpany, through whom the contract in question was made, on December 1-, 1881, and testified as follows: "He;came there by an appointment made by, telegraph betweenuB.to see . about a boat, After he arriveQthere, we found that he wanted chinery. *'1< *. After a short wherein he explained what he , wanted. i. e., a boat that would beat others in same business in that vi·all others,' I think was his phrase.-w'e l'ecOIumended ourllirgest machinery in a boat 12,0 or 130 feet long. . * 'I< *" He then fUrther testified as to the dimensions and model of the boat which he recommended, anJi as to ,the dimensions and boat hI IDltChinerywas'actually P\lt, and as to the difference between tpl;1m in respect to the power required to drive them. In crossthe plaintiffs' counsel asked the witness the following question: "Now, Mr. Herreshoff, didn't youunderstand"as a matter oUaet, that this boat for which you wel'e to furJ1ish the machinery was to be u.sedontheSt. Clair river forthe pllrpose of c;1oing a passenger and freight
and the act ofsigning and sealing the bill, wQich is merelr nlinisteriat ld. In the bill must be signed during term-time, unless authorized to beslgned after adjournment by. consent or agreement 'of counsel;" Ma-rkland T/. Albee, 2 South. Rep, 123. , But where one. has dOM all in his paw4:lr to Qfanl:i ture tQthe bill, be Prejudiced l'y thedelar of the judie. Davis 'v. Sup. Ct. Rep., 1102.' . ,,' ; " , . ., . , ,,', ' . '.
To which question the defendants objected, but it was admitted by the court, under, notice 01 exceptiori. The jury found for the plaintiffs.. Within two days after the entry of the verdict (which is the time limited by the rule in this circuit for filing a motion for a I).ew trial) the counsel for the defendants appeared before me, and. stated that the defendants would not proceed under their exceptions; ana applied for an order extending the time within which they might file a petition for a new trial. I made an order allowing for that purpose two weeks from the entry of the verdict, and afterwards, on application, extended the time to March 12, 1887. another ex Withinthislitst 'time the 'defendants filed their petition praying for a new trial on10 distinct grouhds; and the petition was heard by Judge COL'I' and myself, and held for advisement. ' In the mean time the November term ,came to an end, and the June term, 1887, of the court began. ,On the twenty-second 'day of October, 1887, in the June term; the motion for 11 new trial was denied l1nd dismissed, and judgment was entered on thet'verdict on the following day. Within a few days after the jtldgmeiit wasenteredj the bill of exceptions Was presented to me, wherein issefoutthe fact of the admission iI?- evidence of the above-recited questionin the objection of the defendant. The plaintiffs cIaih1 that no bill ,can now be allowed. I have conle to the conclusion 'that it is not proper for me to sign. this bill of exceptions for the following tea,sons. 1: The'defendl1nts have expressly waived their exceptions, and on the strength orauch waiver they have obtained time t6file a motion for a riew trial,arid have argued that motion before this court. U. S. v.Jartris,3Woodb.&M.217. ' 2. The defendants have, by implication, waived their exceptions by filing and bringing to a hearing their motion for a new trial. The motion for new trial should riot be 'heard unless the exceptions are waived; 'l1nd by calling on the motion for hearing, I think the defendants must betaken to hiwe made their election between these two remedies. Ounningham v. Bell, 5 Mason I 161. . . 3. The defendants should have presented the bill for signature within the term at which the case was tried. It was early held by the supreme court thatthe'bill must be signed within the term, unless by consent or by special order. Ex parte Bradstreet,4 Pet.l02; Walton v. U. S., 9 Wheat. 651;'Jlurner v. Yates, 16 How. 14. This is a rule not alone for the proteCtion of the judge, lest he should be asked to sign a bill after the recollection of the facts has faded from his mind. It is for the prot(jCtiOll of the parties as well; that they may not be burdened with unnecessary :delay and expense. I think they are entitled to have the rule enforced. Itls"suggested that this rule was e&tablished at a time when !'hort-hand reports of trials were not usual, and the only dependence for , a .ttue stnteme.nt of the exceptions was on the memory and the notes of the judge,:and perhaps of counsel. But I find that the supreme court still coIlsi·Mrthe }'Ule obligatory on the judges in ,the performance ofthis duty. Mu1.Iir'v. Ehlers, 91 U. S. 249. In that case, indee?, the court
.MARINE CITY STAVE CO. V. HERRESHOFF M:ANUF'G CO.
say that, "as early as Walton v. U. S., 9 Wheat. 651, the power to reduce exceptions taken at the trial to form, and to have them sii!:ned and filed, was, under ordinary circumstances, confined to a time not later than the term at which the judgment Was rendered." But a reference to the older cases will show, I think, that the term at which the bill must be signed, as meant in these decisions, was the term at which the excep-, were noted on the trial. Usually, of cO\1rse, the judgment is rendered at the same term with the verdict, and it seenis to me that the term "judgment was rendered," as used in the last-named case, must have been understood by the court to signify the term at which the trial was had, inasmuch as the older cases are quoted with approval and followed. 4. I think this bill is not presented within a reasonable time" and ought not to be signed unless the plaintiffs consent. Eight months have expired since the trial; the defendants have filed and argued a motion for a new trial, in the decision of which motion the error in the admission of this qU'estion and answer (if any there be) might have been corl'ected if the defendants had seen fit to allege it in their motion and argue it to the court; the defendants have explicitly waived their exceptions, apparently for the purpose, and certainly with the effect, of obtaining time to file a motion for a new trial and having it argued,for greater certainty, before two judges; and, finally, I am entirely unable to See that the exception as presented to me discloses any ground on which it may reasonably be argued that there was error. In addition, I cannot fail to see, from the transcript of the caSa which has been before us, that the same fact which is proven by the qt,estion and answer to which objection is made, was abundantly proven by witnesses for both plaintiffs and defendants, and was made the basis of instructions to the' jury, without objection or exception noted by either party. I cannot see, therefore, how the parties could have been prejudiced by the admission of the question. I do not mean to say that the absence of good legal grounds for the exception is a reason why I should refuse to sign it if properly presented; but, when presented under these circumstances,' I think J ought to take that question into consideration in determining whether I will depart from the usual and proper practice in such proceedings.' Greenwayv. Gaither, Taney, 227. I think, therefore, it is unreasonable that this bill should, under the present circumstances, be signed, against the objections of the plaintiffs, and I so decide, and, so far as the decision of this question rests in my discretion, I am clear that I ought to refuse to exercise that discretion in favor of the defendants. Dredge v. Forsyth, 2 Black, 563; Kellogg v. For8Yth, Id. 571; NicoU v. Insurance Co" 3 Woodb. & M. 530. The bill of exceptions will not be signed, and, as I understand thE, facts stated in the bill are the only ground of error, the petition for a writ of error will be denied.
(Di8triet (Jourt. N. D. New York. November 14, 1887.)
FUNDS. An assignee in bankruptcy, who disregards the express order of the court in, depositing funds, is liable for the interest which the designated depositary would have paid. ' 2. SAME. Be is liable also, in the absence of all explanation, for legal interest on money !lollected and not deposited, which remained in his hands through a long period of years. ' 8. SAME-LIABILITY OF ASSIGNEE-UNCOLLECTED NOTES. , .Under the act of congress of June 22, 1874, §I 4, it is the duty of the assignee to s,ell at .publicltuctipn notes which belonged to the butwhere he 'retains tbe,m, and suffers them to become outlawed, he is liable only to the that they were collectible. 4. SAMlll.' , Notes taken by the assignee in renewal of notes held by the bankrupt, to a,void the.statute of limitations, or.£or sOllie other reason equally good, ai"e a charge against him, when outlawed, only so far as they were collectible,
BANKRUPTcy-LIABILITY OF ASSIGNEE-l:NTEREST ON UNDEPOSITED
An assignee who, without the, sanction of the court, Rells the effects of tbe estate on credit, and suffers .thenotes given for the purchase price to become outIaweq; ill liable for the loss, whether the makers of the notes were responsible or not. ' ' The assignee sold teal estate to the bankrupt's wife, and, without the sanction of thl' court, took a bond, secured by mortgage, for the purchase price. The interest was allowed' to accumulate until the security became inadequate. Held,thatitheassignee was liable for the loss, and that, to avoid the delay of fo:\,ec1o&nre,' the mortgage should be tranllferred to the assignee upon payment to the estate of the amouJl1; due thereon, ' , A new assignee appointed in the place of former assignees, deceased,and who'is seeking to enforce against their estates demands which they permitted to outlaw, should not himself be permitted to set up the statute of limitations asa defense to a not'e given by him to his predecessors for goods purchased of them,
SAME-LIABILITY OF ASSIGNEE-SALE BY ASSIGNEE.
SAME-LIABILITY OF ASSIGNiE-LmITA'l'ION OF ACTIONS.
S. SAME-AsSIGNEE'S COMMISSIONS-FoRFEI'l1U:ltE BY. MISCONDUCT. Rev. St. U.,S. § 5062, provides that every assignee who shall "fail or neglec\
to well and faithfully discharge his duties * * * shall forfeit all fees and ,emoluments'," etc. ' Held, in 'a case where the assignee, a man of high standing to whom no bad faith was imputed, had a great loss to the estate by Buffering notes, etc., to beoutIawed, that the question as to whether or not commissions should be allowed. was for the register in the first instance. and that they would not be disallowed until the assignee had had full opportunity to be heard in explanation,
In Bankruptcy. Prior to 1872 Alva M. Newcomb was adjudicated a bankrupt and Charles W. Barnes and Ralph Allen were appointed his assignees. In MaTcb,1872, a dividend of 60 per cent. was declared and paid. Though large sums were subsequently collected by the assignees, there has been no dividend since that time. Ralph Allen died in 1881,.and Charles W. Barnes died in 1884, both intestate. After the death of Barnes, Frank M. Newcomb was appointed assignee of the bankrupt's estate. In De..