PAt.ACl!:-CAR CO. fl. CEN'1'RALTRANSP. CO.
But, in view of the nature of the objections made to the bond; we are of the opinion that it is not necessary to require another bond to be given. It is made payable to the proper parties, it contains the proper statutory conditions under section 1000 oithe Revised Statutes of the United States, and no objection is made to it on the ground that the penalty or the sureties are insufficient to secure the debt, damages, and costs, if the plaintiffs in error fail to prosecute their writ to effect. The sole objections to it seem to be that it was taken and approved by the lower court before a writ of error waesued out, and that it is not signed by both of the plaintiffs in error. Section 1007 evidently contemplates that secu; rity shall be taken when the citation issues; and such is the usual and proper practice. It was irregular, therefore, to take, approve, and file a rmpersedeas bond reciting the allowance of a writ of error before any such writ had in fact been allowed. But it was competent for the court to reapprove the bond on the issuance of the citation, and such approval may beimerred or presumed, and we think it ought to be conclusively presumed from the subsequent issuance of the citation and allowance of the writ of error. Brown v. McCcmnell, 124 U. S. 490,8 Sup. Ct. Rep. 01>9; Sag6 v. Railroad Co., 96 U. S. 714. . The objection taken to ,the bond because it was only signed by one of the plaintiffs in error has much less weight. The statute (section 1000) only requires the court "to take good and suflicientsecurity." That such security bas been taken (the bond being signed by two sureties) is not denied. The bond accordingly satisfies the requirements of the statute, though only signed by one of the plaintiffs in error. ; The motion to dismiss the writ of error and vacate the superseckas win accordingly be denied, if within 30 days the return on the citation iii amended so as to show due service, and leave to amend such return w hereby granted. '. ;
(Oi'1'C'Uit Court, E. D.Pen1t8'1/Zvan1.a. December 1" ll)91.)
L EQUITY-DISCONTINUANCE':":CRoss-BILL. The complainant in an equity suit will not be allowed.to discontinue where an junction has been granted and the defendant seeks, by. a cross-bill consonant with the purpose of the original bill, to take advantage of the testimony in the case and to secure rights which he would otherwise have to secure b1 an independentao,. tion.
SAMX-WJQ:NCnoss-BILJ. :MAY BB FlLXD.
A cross-bill may be filed after answer filed, where the compla.inant is seeking to discontinue, and the object of the cross-bill is to enable the defendant to take aq aggrelisive attitude and settle finally the rights in litigation. .
In. Equity. Motion by complainant for to dis·continueand. by' defendant for leave to .file a cross-bill. Bill by Pullman'sPaiaco:Cat
lRepertedby:Mark WDk&CoJJei. Esq., of the Philadelphia b....
Qompllny againlit. the Ceutral;'.l'l'lJ,J,lsportation
to ep.JolU it fJ'Omcollectingrent under iascertaip. cotupel1/1l1t,iQndue for the uSe OroolS and tQ terminate'relati<H1S between parties, and for a prelim. iQ,ary,injuncti(jn restraining thecQllection ofrent accruing subsequently. Complainant's motion refused. Defendant's granted. Wayn6MacVeagh, J. H.BarlU8;and A. H. If'interBteen, for complainant, bitoo. as to right to dismiss: "
R.' 00...... Union Rep; 594; Railroad 00. v· H Co. 'V.CeUulof.(/, Manuj"g 00., 32 Fed.
00·· 109 U. 8.702, 8 Sup. Ct. Rep. 678 i American Zllloniu
John G: J6hmwn, for defendan'f
Before AolIEsON, Circuit Judge, ;and BUTL1l:R, DistnctJudge.
BUTI.oER, District Judge. ThebiU which the plaintitr asks leave to withdraw, avers (among other things) that the lease. ,therein named is invalid;;l1nd. furthermore, that (if, it is not) the plaintitfis authorized by its eighth .seotion, and the happening of a contingenoy therein stated, to terminate it, on notice to the d<;lfendant; that the contingency has 'happened, ,the authority been and,notice given. It therefore ,pnlysthe court to enjointp8,defendant against proceeding at law to ooIlect· rent under the lease; (to assist the plaintiff in makiQg delivery of the leased property, Md in ascertaining what compensation should to defendant, for its previous use; and generally to afford its aid in settling the controversy which has arisen out of the tra.nsactions between the parties, and terminating, finally, their relations. The oourt, acknowledp;ing the plaintiff's right to terminate the lease under the· circumstances stated, granted an injunction against proceeding at law to recover rent accruing subsequently to such notice; and declined to interfere with an action, then pending, brought to recover rent previ. ously due. because the question of validity raised, could be interposed and decided on the trial thereof. Subsequently on such trial, and review by the supreme court, the lease was found to be invalid. The plaintiff in the billilow seeks to discontinue proceedings under it, while the defendant endeavors, through the instrumentality of a cross-bill, to avail himself of its use as a means of recovering possession of his property, or its equivlj.lent, and compensation for the plaintiff's enjoyment of it under the lease. We do not think the plaintiff's motion should prevail. The propriety of allowing discontinuances in equity depends upon whether defendants may be prejudiced thereby. A decree, or decretal order, entered is usually a conclusive answer to the application. Here, not only was such an order entered, but it now appears that the proceeding, or a similar independetlt one eommenced by himself is the defendant's only means of enforcing his rights-rights which the bill in a measure concedes.qThe object of the originally, was to accomplish the object' wbi<.:h the defendant now seeks; and considerable testimony has been taken with a view to this end. The defendant would, therefore, ,Qo prejudiced by its discontinuance.
SOuTHERN PAC. B. CO.
only would he lose the benefit of this testimony, but he would also be delayed,and might be compelled to Beek the plaintiff in another jurisdiction. The of the cross-bill is to enable the defendant to assume an aggressive attitude in the proceeding, and to use it as a means of settling and closing up the entire controversy on which it is1ounded. This object seems proper and commendable; and we do not find anything in the rules governing equity pleading, 'which forbids its allowance. The decisions in which ithasbeel1 held that cross-bills come too late after answers have been filed---that they should be presented as soon as practicable, so as to avoid delaying the plaintiff's efforts to obtain a trial,are not applicable to the circumstances of this case. The plaintiff's motion must therefore be dismissed and the defendant's allowed.
ACHESON. Circuit Judge, concurs.
(CfrcuU Court, S. D. CaH,fornfa. February 8, 1892.)
Qt1IJITDfG TITLB-RAILROU L.ullD GBANTS.
I. BAlDI. ' It would befnequitable to regard such a company as the legal owner for the pnrpose of imposing taxes upon it, whUe denying it the same standing with respect to the enforcement of its rights. 8. SAME-FOLLOWING STATE STATUTES, Code Civil Proc. Cal. § 788, J?6rmittlng actions to quiet title to be brought by persons not in possession, is applicable to suits in the federal courts.
·· RAILROAD LAND GRANTS-PASSING OJ' TITLE.
The rule that a suit to quiet title can only be maintained upon the legal title does not apply as against a railroad company, with respect to lands granted to it by the government, when it has done everything required to entitle it to the grant, sinoe it is powerless to compel the government to issue a patent therefor.
Under Act Congo March 8, 1871, granting lands In aid of the Texas Pac11ic Ranroad Company, the full equitable title passed at the time of filing the map of deftnite location of the road, and, as against such title, no rights could attach between that date and the date of the order withdrawing the land from market. A bill to quiet title, alleginlt that the United States had full title at the time complainant's grant attached, and that defendant claims under a patent issued by the. state 118 for 1l\nd to Which the state was entitled in Heu of certain other grants, shows a cloud upon the title, although it is .DOt alleged that such lands were ever listed to the state; since the state patent creates a presumption that all steps necessary to its issuance have been c\>mplied with.
SAME-LU4ITATI.ONS-INTEREST OF GOVERNMENT.
T.· SAMB-LAOBES. . . In BJi action by a railroad company to quiet title to lands granted to it by the United Stattjs no.laches can be imputed to the company with respect to time pass-
In an action to quiet title to railroad grant lands, In respect to which the company bas perfpJ'med requisite condition.s·.and has constantly BOught, witbout suocess, to. obtain a patent, against one claiming under a state patent issued as for lands selected in lieu of other grants, theO.nited States being legally liable to make . the company's ,title good, hBII such an interest in the suit, afthough not a party, as will prevent limitatiQn from running against the company'. cause of action.
ing betweehthe date of the grant and the time of complete performance of the conditions fQr, though the title passes as of the date of the grant, it only does BO by relation, upon the performance of the conditions, and before performance 110 such suit could be malntained.