notice of the cestui que trust, and if the trustee relies upon the statute the burden is on him to show when notice of the repudiation is brought to the notice of the cestui que trll,st. It does not appear in this case that complainant had such notice two years before the filing of the bill. On the contrary, it is manifest from the evidence that he did not. The suit, therefore, is not barred. · But one other point has sufficient plausibility to require notice. After this bill was filed defendant applied to enter the land as mining ground, the statute, and, no protest having been made, advertised in due time he paid the purchase money, and a certificate of entry was issued to him. It is now insisted 1 that, as 90mplainant did not, protest, and then bring suit to establish his right within the time presc.ribed by statute, he wl1ived all adverse claim, and the entry is conclusive. But it was on this i'ery title which defendant in part holds in trust, that he obtained his certificate of entry. It was on these relocations, which defendant held in trust, that he proceeded, and the entry gives effect to the relocation, with the trust attached. This suit was pending at the time of applicationJor purchase, to establish, not the legal title, but a trust in it. This claim by complainant of a trust was not adverse to the possessory title upon which the entry was made, but It part of that title, and the trust which had attached before the entry, followed the title upon the entry based upon the possessory title of which it was a part. See Lakin v. Mining Co., 11 Sawy. 238, 25 Fed. Rep. 337. The complainant is entitled to the benefit of this entry to the extent of the trust. There must be a decree for fifty-one sixtieths of the mining ground in question, in pursuance of the prayer of the bill, with costs, aud it is so ordered.
(Oi'1'cuit OOU'1't, N. D. Iowa, E. D. August 9,1888.)
GUARDIAN AND WARD-AcTION ON BOND-LIMITATION.
Rev. St. Wis. § 3968, provides that "no action shall be maintained against the sureties on any. bond given by a guardian, unless it be c;:ommencE\d within four years from the time when the guardian shall have been discharged." Held, that the bond being statutory, and the limitation a special one for the benefit of the sureties, the limitation entered into and formed a part of the sureties' contract.
SAME-RuNNING OF STATUTE-DEATH OF GUARDIAN.
The death of the guardian before the ward comes of age operates to "discharge" him, within the meaning of the above act, and the special limitation in favor of the sureties begins tO,run from the date of the death. 1
I The death of the ward is held to be a discharge of the guardian under Pub. St. Mass. c. 139, § 28, which provides that actions against Sureties upon the hond of a guardian must be commenced within four years after his discharge, McKim v. Mann, (Mass.) 6 N. E. Rep. 740 Lalld the liability of the surety accrues immediately, Glass v. Woolf's Adm'r, (Ala.) 3 l:jouth. Rep. 11: 'I'he statute commences to run against lin action on a guardian's bond when the person ceases to be guardian. Probate Judge v. Stevenson, (Mich.) 21 N. W. Rep, 348. An action on a guardian's bond to recover the amount re-
HUD&ON t1. BISHOP.
At Law. Action on guardian's bond. On rehearing on demurrer to petition. For former opinion, see 32 Fed. Rep. 519. He;nderson, Hurd, Daniels&; Kiesel, for plaintiffs. A. M. Harrison, for defendant. BREWER, J. This case stands on demurrer to the petition, and involves the construction of section 3968 of the Revised Statutes of Wisconsin, which reads as follows: "Every bond given by a guardian shall be filed and recorded in the office ot the county court requiring the same, and, in case of any breach of the conditions thereof, may be prosecuted in the name of the ward for the use and benefit of sUch ward or any person interested in the estate, whenever the county court shall direct; but no action shall be maintained against the sureties on alJY bond given by a guardian unless it be commenced within four But if, years from the time when the guardian shall have been at the time of such discharge, the person entitled to bring such action shall be under any legal disability to sue, the action may be commenced at any time within four years after snch disability shall be removed." The case was submitted to my brother SHIRAS, who sustained the demurrer on the ground of the special limitation provided in the section. The question has been reargued on briefs, and I have been asked by him to join in its consideration. I think it isa close question. The gen-eral rule undoubtedly is that the law of the forum controls the remedy, including therein the matter of limitation; and yet it is difficult to evade the force of the argument so clearly put by my brother SUlRAS in his .opinion, 32 Fed. Rep. 519, that this section provides for a speciallimitation entering into and forming, so far as the sureties are concerned, a special contract. It certainly is not a part of the general limitation law -of the state, or applicable to all written contracts, but is a special provision, applicable to those who enter into a particular form of obligation. 'That the legislature has the power to provide by statute such protection to persons who thus contract cannot be doubted; and in what other way would their protection be secured than by just such special legislation? Of course, if a contract is written out, and a special limitation contained in it, as is found in insurance contracts, such limitation is recognized ev-erywhere, no matter what the general law of limitation of the forum may be, and every contract is made with reference to the law in force in the place where it is made. Of course, that may be said of contracts affected by general limitation laws; but those general limitation laws entering into and becoming a part of the contract are held to mean simply this: that no action shall be maintained within the limits of the jurisdiction nnless within the time specified in the limitation. Parties are assumed to contract with special reference to the character of the obligation assumed. But not merely in this case is the provision fOUlld in a
in the hands of the guardian firRt accrues to the ward when such amou nt is ascertamed by the county court on the settlement of the guardian's final account. Ball v. La Clair, (Neb.) 22 N. w. Rep. JI8. The fact that a claim against the estate of a qe.ceased guardian is not presented for allowance within the two years limited by statute does not discharge the surety on the bond of the guardian. Smith v. Smithson, (Ark.) .3 S. W. Rep. 49.
separate section; not merely is it a. limitation with respect to a particular class'ofbbligations, but the tenor of the section indicates that a special contract with special liabilities is contemplated. The direction of the court seems a prerequisite 'to any action, and when the nature of the liability of sureties is considered, it seems clear that the legislature of Wisconsin intended by this section a special liability bounded and limited in a special'way, and that a contract of suretyship entered into under such a statute must be held to have incorporated into it all those provisions of limitation. I have no doubt that, logically, that is a fair and true construction of the statute; alid while it conflicts with the general role as to limitations, yet I think my brother SHIRAS has shown suffi. cient reasons to justify us in holding it, outside of the general rule. I have no doubt that the death of the guardian is a. discharge within the meaning of the section. I therefore' ooncur with him in sustaining the demurrer.
(Diatrict (Jourt, D. South Carolina,. July 18, 1888.) Under Rev. St. U. S. § 864, requiring a deposition to be reduced to writing ;by the officer taking it, or by the witness in the presence of Buch officer, and ,by no other person, the irregularity of taking the in a continuous narrative' form. on a. type-writer, will be waived by appearance and cross, examination by the adverse party. who is also an attorney of record in the case, without objecting to the form of the deposition or the use of the type· writer. 2. SAME-CERTl:FICATE. Part of such testimony being in writing, and the certificate of the officer not showing whos,e writing it was,. the deposition should be suppressed as the exceptqr could not be deemed, by appearing, to have waived an irregularity . wb,ichwas not committed until after the testimony was taken. 8. SAME-SUPPRESSION-'-RE- EXAMINATION. Such omission not being the fault of the party in whose interest the depo sitio,ns were taken. he should be allowed an opportunity tore-examine the witn'esses whose depositions were suppressed.
FORM ON TYPE-WRITER-WAIVER OF OBJECTION.
In Bankruptcy. Motionto suppress deposition. Mitchell Smith, for assignee. J. P. K. Bryan, for bankrupt. SIMONTON, J. A deposition de bene esse after due notice was taken in this case before Robert R. Shellaberger, Esq., a nou1ry public, in Washington, D. witness examined was William E.Earle, Esq., an attorney on this record, for A. Blythe, assignee, resident in Washington. At his examination William M. 'l'homas, Esq., who is also an attorney onthe record, was present. The package containing the deposition was sent by Jllail to the clerk of this court. The, cause was under reference to a speCial master. An order of court was obtained, and the deposition