Bill by Henry Adams andothel's against the KehIor Milling anllothers, to set aside a .fraudulent· assignment. Decree for complainant, and for other credit9l'S, who. intervened, See 35 Fed. Rep. 433. The complainants' solicitors moved for. an allowance for their services, to be taxed as costs in the .case. , Mills &- Fli:tcrajt, for complainants. G. M. Stewart, for defendants. ,:'
THAYER, J,. In accordance with the decree heretofore entered, (35 Fed. Rep. 433,) the master has filed his report. An application is now made by .complainants' :solicitors for an allowance of attorneys' fees, to be taxed:.ll.I:i costs against the defendants. The claim, as made, appears to, be It claim for compensation for services rendered as solicitors for complainants in this case, and also for services rendered to complainants in the state court" in obtaining a judgment against the Kehlor Milling Company, on. which thep.l'Oceeding in the federal court was based. It is clear that this court bas n(;) lI.uthori:tyto tax against the defendants any fees due from the complainants to their solicitors for services rendered in the suit in the state cQurt"although the judgment obtainedein that suit forms the basis pf the, proceeding in the federaL court. It is equally clear that the. costs as between solicitor and client in the suit pending in this court cannot be taxed against. the defendants for a greater sum than the statute allows. It is well,settled that when, under a bill filed by one beneficibehalfiof himselCand all other beneficiaries, a fund is ary in a trust, recovered and brOUght into court for distribution, the court may tax a reasonable solicitQr's fee as :costs, i'llld order it to be paid outofthe fUnd So, recovered. ,Tru8tees,v... Gre(fftO'V,gh, 105U. S. v.PetWs, ll3U. 8.11.6, 5 StJp.Ct. Rep. ,387 ;; Thisrulerests upon the ground that where one litigant has borne the burden and expense of a Jitigation that has inured to the benefit of others as well as himself, those who have shared in the benefits should contribute to the expense. In that class of cases it is customary to tax against the fund realized a fee in favor of complainant's solicitor, before any distribution is ordered. But even this rule would not authorize1lhe court to tax the costs 'as between solicitor and client against the defendants. Defendants are liable for a fee of $20. taxed tirldel: section 824, Rev. St U. S. Hany further fee is taxed, it must be taxed against a fund actually or constructively in the cU8t9dy qf the court fOt the purpose of The has reported ;$at heretofore made the amount due to the complainants from the defendants is $1,281.94. He also reports that J. M. Whitcomb, Jack & Co., and Henderson, Freen & Co., who, as unsecured Milliu.g Comp/1-ny,haye intervened in the cause since the decree was rendered, are entitled to further amounts aggregating ,$2,617.15, The parties who have intervefled have unquestionably Jl#gatlc)l) complainants in, hehalf of all unsecured creditors. and, undenithe rule announced in the case of Trustees v. Greenough, supra, they should contribute ratably to the payment of a reasonable fee to complainants'solicitors. A final o,rder
the repQrt.Qf.the master dire.etil1g:the'defendants to pay into court, sum of $3,899.09 for·distribution between complainants and intervenors,.in,the proportjon recommended by 'the master. A sum to to per cent. of that amount will be taxed against and pl;lid out of the £und solicitors. The defendants will also be required into court the costs of the suit.
SAV. BANK' V. McMAHON et aZ.
(O';rcuit Court, 8. D. Iowa,. W; D. April 6, 1889.)
L'NEGOi'i.A:BLE MERCHANT. IN AMOUNT-LAW.
A stipplation in a promissory note, the installments of interest, lind, when due, the principal, llayable at a !Siven placfl, ."with renders the note non-negotiable under the law merchant, as it cannot be known. until the times of paymentarriV'e what the'rates of exchange will be, and the necessary to discharge the note is therefore' uncertain.
SAME-JURISDICTION OF FEDERAL COURTS.
Under actCong. 1875, providing that the federal courts shall have .no juris, diction :of a suit founded on a contract in favor of an assignee unless the assignor could have prosecuted:the'suit in'the same court, "except in cases of promissory notes. negotiable by thelaw-me.rchant, and bills of exchange, " the negotiability ofa note, 80 far as is necessary to determine the question of jurisdiction, is governed wholly' by the rules of the law-merchant, regardless of the statutory provisions. of the state in which the action is brought.
In Equity. Bill for foreclosure. , The Windsor Savings Bank, assignee .of William B. Somers, brought . this bill against S. A. McMahon and others, to foreclose a mortgage executed by said Mc¥ahon on land to seC1,ll'e the payment of a note to said . " Somers. L. W. R088, for cOmplainant. Wright,. Baldwin &: Haldane, for defendants. J.This suit was brought for the purpose of foreclosing a JDortgage executed by S. A. McMahon, given to secure the payment of note for $14,000. The note bears date at Council Bluffs, a Iowa, and provides that "both principal and interest payable at the office of J. W.and E. L. Squire,.Oouncil Bluffs, Iowa, with exchange on New York." The jurisdiction of the court is now questioned by a suggestion on behalf of the defendant that the note is payable to the order of William B. Somers,l,l.n.d it is admitted by the parties that at the date of the the sui,t the mortgagor and payee of the note were citizens of the state of Iowa. Underth!=l provisions of the act of 1875, in force when the suit commenced, this cour.t has .not jurisdiction of a suit founded contract in favor ofan assignee, unless the assignor could have prosthe' same in this court in case no assignment had been made, 'i1.1 cases nc;>tes negotiableb:K the law-merchant,.and