tion or sections QUand. If averred that the complaipant had, by builditlg the line of railway in accordance with ,theterflls of the act of congress,earned certainlands, and that the United States refused to convey the legd title. therflof to complainant, then it might be that jurisdiction to hear and determine that question might exist, provided the value of the lands did not exceed the limit fix.ed by the act itself, and proyidtld further that the land department had not the question before it for consideration and determination. In other words, if the sole parties in interest were the complainant and the United States, the court might have jurisdiction to hear and determine the question whether the complainant had earned certain lands, and was therefore equitably entitled to demand a conveyance of the legal title from the United States. However this may be, and not deciding it, it still remains clear that when third parties assert rights to the lands under the homesteetd laws, and are proceeding according to law to submit their claims to the determination of the land department, then the primary jurisdiction to hear and determine the questions'involved is with the department, and the court eannot interfere therewith. If the department holds that the lands are open to settlement, and evidences of title are executed to the applIcants, then by suit against the latter the legal questions involved may be brought for adjudication before the courts; but so long as the matter is pending before the department the jurisdiction of the court is, to say the least, in ,abeyance, and eaonot be invoked. The demurrer to the bill is therefore sustained.
BEmNE et at 'D. WADSWORTH.
(Circuit Oourt. D. Minnesota.
November 14, 1888.)
EQUITY-PJ,tAQTICE-DISMI88AL FOR WANT OF PROSECUTION.
Under c.ircuit court rule 69, giving a complainant three months after Issu8 joined in which to take depositions, a cause will not be dismissed for want of prosecution for nine month!!' delay. where it appears from the affidavits of complain ant's counsel that from a conversation with defendant's counsel they were led to believe that a compromise was mutually desired and would be ef.fected, and that they in good faith submitted the matter to their clients. who lived in Ireland, and, not having been yet advised of their intentions as to the proposition, took no proof. understanding defendant to agree that none need be taken pending negotiations, though from the stateI\lent of the conversation in the affidavits of defendallt and his counsel such impression and delay were not warranted thereby.
In Equity. On motion to dismiss for want of prosecution. .Bill by Sarah Beirne and James Beirne, her husband, to set aside a conveyanqe m,ade by said Sarah Beirne to defendant, Harry H. Wadsworth. OAthe 26th day of September, 1888, the cause being at issue on bill, answer, and replication, defendant moved to dismiss the cause for want of prosecution, basing his motion on his affidavit, in which he stated that ,t4e cause had been at issue upon the pleadings since Decem-
BEIRNE t'. WADBWORTH.
ber 14, 1887, and that more than the three months provided for the taking of proof in causes pending in the circuit court under rule 69 had elapsed, and no attempt to take testimony in support of the bill had been made. Upon this a rule to show cause was moved and made, which, with copies of the motion and defendant's affidavit, was served on complainants on the same day. Complainants, to show cause against such dismissal, filed the affidavits of A. B. Choate and Thomas J. Walsh. The affidavit of Mr. ,Choate set forth that the complainants were subjects of the kingdom of Great Britain and Ireland, living in Ireland, and had never been in America; that all his consultations with them were by correspondence; that they first employed Richard W. Clifford, of Chicago, Ill., as their solicitor, in whom they reposed special confidence; and that all the correspondence was with him, which made communication slow and difficult. Affiant further stated that since the cause was at issue a proposition had been submitted to him by defendant for a settlement of the controversy, of which he thought favorably, and so informed defendant. Affiant wrote Mr. Clifford df the proposition for transmission to complainants, and informed Mr. Clifford that in his opinion there was a fair prospect of a satisfactory adjustment of the matter. For this reason no depositions were taken in support of the bill. as the most of the testimony would have to be taken in Ireland, at great expense, which they hoped to obviate by a settlement. Affiant further stated that he had not heard from complainants since the proposition was made, but believed an answer would soon be received, and the cause would either be settled and dislnissed or proofs taken to support the bill. He further stated that it was one of the terms of the proposed settlement that the cause should stand without prosecution during the pendency of negotiations, and that the attorneys for both parties agreed to unite in a proceeding to determine the interest complainants had in the land mentioned in the bill, and that said cause should be dismissed upon the reconveyance by defendant of the interest conveyed to him by complainants and the conveyance to defendant of a certain interest in said land, the exact amount of which he was unable to state from memory. The proposition was made by M. B. Koon. solicitor for defendant, to affiant. The affidavit of Mr. Walsh stated that he was an attorney residing in Chicago; that since the election of Hon. Richard W. Clifford 8S judge of the circuit court of Oook county, Ill., affiant had been attending to this cause in his behalf; that the important witnesses and the complainants themselves resided in Ireland; and that the complainants, being poor and unable to advance means to carryon the suit, were therefore desirous to settle the same; that in December and January last, Mr. Choate communicated the terms of a proposed adjustment of the controversy to Judge Clifford; that communication had been had with complainants regarding it, but that they had not as yet advised affiant of their positive intention to accept it,: but they were 'inuuced from the fact of proposition be:ing made to believe that a settlement would be reached; that, had affiant not been soiled to believe, the depositions would have been taken; that complainants were anxious to dispose of the cause, and had a mer-
itorious cause of action; that they were willing to settle the matter on account of their poverty, if a settlement could be made, and would prepare for a speedy trial as soon as it became apparent that a settlement could not be made. In support of the motion the defendant filed his affidavit, repeating of the former one, and adding that he knew substantially the personally that no true testimony in support of the allegations of the bill could be procured, which he believed to be the reason none was taken. He further stated that he did not believe complainants ever intended to prosecute the suit, but brought it by the influence of designing persons. the statements that complainants were poor, upon information He received from them; denied m'1.king any proposition himself, or tbrough any other person, looking towards a compromise; averred that there never was any prospect for a settlement of the suit, and -that neither complainants nor their counsel were ever led to believe anything of the ki.nd by him or his counsel. He also denied that complair,ants had any meritorious cause of action, and alleged that communication with them, if desired, could be had within 12 hours. The affidavit of M. B. Koon, defendant's coul1sel, stated that the object of the suit was to set aside a conveyance made by complainant Sarah Beirne to defendant of a twofifths interest in land in Minneapolis; that affiant never consented to any delay or extension of the time for taking depositions therein, and that he was never asked to do so; denied that the cause was delayed or postponed by reason of any proposition to compromise, and alleged that none had been talked of between him and complainants'counsel; and stated that the only conversation that could be so construed was one occurring about the time defendant's answer was filed, in which affiant told Mr. Choate that all his clients claimed to own was an undivided one-twentieth part of the land, and that he (affiant) thought if they had any interest at all it was greater than that, and that if they would dismiss their suit defendant would as speedily as possible ascertain complainant's interest; and that, if he succeeded in establishing their interest, he would give them what they claimed, and take whatever interest he established over and above the undivided one-twentieth, for his own share and for his trouble and expense; that Mr. Choate said he could not answer without consulting the Chicago counsel, and thereupon the matter was dropped, and affiant had no recollection of its being mentioned again. Affiant explained in detail his reasons for thinking complainants entitled to onetwentieth of the land, and for making the proposition; and also stated that he was quite well acquainted with the facts, and did not believe complainants had any cause of action. A. B. Olwate, for complainants. M. B. Kom, for defendant. SHIRAS, J. With some hesitancy, I overrule the motion for an order dismissing the cause for want of prosecution. From the affidavits filed, while it clearly appears that complainants are in fault in not preparing the cause for trial, yet the excuse offered may explain the reasons there-
CLEWS V. BARDON.
for. It is certainly the duty of complainants' counsel to either reach a settlement or prepare the case for trial. Unless such action is had, defendant has leave to renew his motion at the next' term.
et ale v.
E. D. Wi8con8in.
A national bank was organized with a capital of $60,000. The promoter of the bank took 380 shares of stock in his own name, and procured the defend· ants to be directors, as well as a person to be elected cashier by them. The directors were not acquainted with tbe banking business. The proposed cashier was known to the directors, at least by reputation. and was supposed by them to be competent and trustwortby, and of considerable experience in the business, and they bad full confidence in bis integrity and ability to take charge of the bank. The cashier acted as manager of the loan and discount business of the bank, and the directors merely as advisers. when applied to. The promoter of tbe bank knew. and tbe other stockholders were presumed to know, that the directors were wbolly unused to the banking bus· :iness: Held, that tbe directors were not liable for the acts of the cashier in violation'of the banking law, done without tbeir participation or knowledge. 9.· SAME. The cashier made loans, in excess of 10 per cent. of the capital, to a manufacturing corporation supposed by him and by the public to be entirely solvent. None of the directors knew of the loans when made. but after a loan of $3,000 in excess of the lawful limit had been made, the <;a:"1ier informed one of them of such loan, and was by him advised to call it in when due; and thereafter such director's advice was asked las to a further discount to the same corporation, and he disapproved of it. and it was not made. Afterwards further loans or discounts were made to the same corporation, without the knowledge or consent of any of tbe directors. About eight months after the bank commenced business, one or more of the debtors of the bank failed, and the directors thereupon took the active management into their own hands. Held, that none of the directors had knowingly violated. or knowingly permitted to be violated, a,ny of the provisions of the banking law, and were not liable for such violation by the cashier.
SAME-OFFICERs MAY MANAGE BANK.
Under the banking law, the managem(;lnt of a national bank may be exercised eitber by the directors, or by the cashier or other officers; therefore the directors are not liable for the illegal or negligent acts of the cashier or other ollicers by whom the hank is m'anaged, if they bave no knowedge of such acts, and do not connive at them, or willfully shut their eyes and permit them. It seems that the liability of directors of a national bank is substantially the same under the banking law as at the common law.
(Syllabu8 by th6 Court.)
On final hearing.
Tiffany, (John M. Gilman, of counsel,) for complainants. Sanborn, for defendants.
BUNN, J. This suit is brought by the complainants as stockholders in the First National Bank of Superior, Wis., against the defendants as directors of said bank, to recover losses incurred by the bank in consequence of certain loans and discounts made by the bank, which turned