STATES t1. BAXTJeB.
(OInluit CotWCo! Appeal8, Eighth 06rcmit.
, 'When' a writ of error from the circuit court of appeals ill allowed within the lib "p?-opths fixed by the stat.ute, (2(i St. at p. 826, 5 11,> but is not aotually issued 'bY the"clerk until after the expiration thereof, it will be dismissed, f()1', in the legal lense, · writ of error 18 not broughtuiltn it is1lled in the court below.
01' EBBO":-TI1iI'8 01' SUING OUT WBl'l.
In Error to the Circuit Court of the United States for the District of MinQElSQtll. Action by George N.,Baxteragainst the United States to recover Jl10neys claimed to! bel due him, as district attorney. Judgment for plaintiff. Both patties bring error. Plaintiff moves to dismiss defendapt's writ of error. Dismissed. (]eorge N. Baxter, for the' motion. , G. Hay, opposed. ;ae!Qre CALDWll:LLand SANBORN, Circuit Judges, and SRmAS, District JudgE,l.
SANBORN, Circuit Judge,' delivered the opinion of the court. ThE,l judgment in thisC8se was rendered.August 31,,1891; and while of error Wll.SalIowed by the acting circuit judge, February 8, 1892, .it was, without fault of the district attorney, not actually issued until after March 6, 1892. No juqgmentor decree of the circuit court can be reviewed in'this court upon"writ of error unless the writ is sued out within six -months after the entry of the judgment: 26 St.U. S.p. 826,§ 11. In Brooks v. Norris, 11 How. 207, the supreme court, speaking by Chief Justice TANl\1Y, said: "The w,rit of error is 'DGf; brought. in the legal meaning of the. term, until Is lHlld In the court which ,rendered the jUdgment It is the filing of the the',reQord from the Inferior to the appellate court, and tbe'pei'iod ()fllmitation must be accordingly." And in Scarborough y.Pargoud, 108U. S. 567, 2 Snp., Ct. ,Rep. 877, that court expressly the ver;y question presented in this case, and held that where :writ. was by the judge,. but Wlj.S not aCtually issued by the 'clerk within the time limited it out,the writ must be dismissed. Cumming8 v. Jemes, 104 U. S. 419; MUBBina v. Cavazo8, 6 Wall. 355, 360. It follows that the writ of error in this case was not brought within the time limited by law, and this court is without jurisdiction. For this reason the writ is dismissed.
BLEWETT V.'J'JtONT ST. CABLE BY. CO.
tI.FBONT ST. CABLE
FBeNT ST. CABLE
Ry. Co. v.
(C1.rcuU Oourt oj
Ninth. Circuit. Jul7 18, 1891.)
BOImIl-AOTION J'OR PENALTY-MEASURE OJ' DllIAGIl8.
A bond executed by defendant to plaintiff, in a penalty equal to the value of certain .lands conveyed by plaintiff on the same date, recited that the land was conveyed to al/. "assignee" of defendant as a part of a bonus given to secure the building of a certain cable railroad, and was conditioned for the construction of tne road. road was not buUt, and the bond was sued on. Held, that the whole penalty could be recovered, as the value of the property was a proper meas,. ure of damages for the breach of the contract. 49 Fed. Rep. 126, affirmed.
Wher:e the damages equal or exceed penalty of the bond, the rule is in favor of allowing from and after the date of the breach; but as the lots were Wholly unproductive, yielding no income; and this fact was expressly taken into . by the court in disallowing interest, its finding was in the nature of the verdict of a'jury, and should not be disturbed. 49 Fed. Rep. 126, affirmed. Parol evidence was nllt admissible to show that the deed which was delivered to and purported to vest the title unconditionally in the assignee. was not to .take effect if the road was not buUt on account of failure to secure additional bonuS. 49 Fed; Rep. l26, affirmed.
EVIDBNCE TO VAaT WRITING.
·· PLEADINcr,-,AMENDJIlENT8-DISCRETION OJ' CoURT.
. Defendant having set up such parol agreement in his answer, the court sus· ,tained ., demurrer. thereto, and at the trial allowed plaintiff to amend his com,plaint br alleging that the sole consideration for the conveyance was the.bond, and the sole considerB'tion for the bond was the conveyance. Held. that thiS amend· m.ent was within the court's discretion, not being·variantfrom the recitals of the bonQ., and could not have prejudiced defendant, as the evidence admitted in sup· 1>0l't thereof could properly have been admitted under the allegations of the plead· lngs before the amendment.
Cross Errors to the Circuit Court of the United States for the Difiltrict
of Wasbington, Northern Division. Action by Edward Blewett against the Front Street Cable Railway
Company on a penal bond. Jury waived, and trial to the court. Findings and judgment for plaintiff for the amount of the penalty, withollt interest. 49 Fed. Rep. 126. Both parties bring error. Affirmed. Burke, Shepard JcWoods, (ThO'flUUJ R. Shepard, of counsel,) for plaintiff. Hughes, !Iastings &: Stedman, (C. C. Hughes, of counsel,) for defendant. Before McKENNA. and GILBERT, Circuit Judges, and DEADY, District Judge.
GILBERT, Circuit Judge. This is a writ of error to the cirr.uit court for the state of Washington. Edward Blewett, the plaintiff, brought an action against the defendant to recover upon breach of a bond. The complaint alleges that on November 23, 1889, the defendant executed to plaintiff a. bond in the penal sum of $18,000, upon the condition following:
"The condition oftbe foregoing obligation ill sucb tbat wbl'reas, the said ;Edward;Blewett has granted and conveyed to.Jacob Furth, assignee of the ,Front StreetOable Railway Company, the following described property, [deicribing certain lots,] heretofore deeded to Jacob Furth as a part of a bonus gi'Ven tosoouretbe building of the cable'road hereinafter mentioned: Now,