ina. o!85;OOO, the' waterw(jtlia 'wfll'obey' the, ptdqijlOl'lS df'tlie 'Ordmance., gralttees nevel" or atielupted to': Cdnstttibt aIiY waterworkBunder the licet1segivlSn'them by the city ordinanba, 'there has been,dt> breach of the condition of the bond. Weare of opinion that it was error in the drcuit Ool}rt, of tbe eastem'l:Iistrict of 'Nmh'Carolina to hold: that, by the terms df' the licensees therein the, citi with waterworks by the 1st of aM were bouqd\;pprsuant ,construct and operate waterworks for the use of that city; and that the court erred in holding that the defendants below(violated the conditiohsof a certain bonde:ll:ecuted:ibythem'ta'the plaintifi'(below)wherein they agreed to pa.y th,esu,tll did perJ3 Uf, o,J,w,aterw,'orks fQr these rtiHngs, for the ,9f. tpecollrti ,mlow s40uld reversed, 8.l1d the suit dis'itia ,SQ, ordered:'li
1 1 (1
. No.8i 88';
Upon a contract between manUfacturers, bywhicb, inoonsiJeratlOn of the party . of the first pBl't not using his'plant for a certain purpose, the parties of the second , part agree to pay 8 perceotage bn their sales, ne may' mailltaio an action one of them alone, where it is plain that is lu?ldenonly ror his .' , own pajment,
2. MANU1'AOTuBmG COBPORATIONs..;,;.Ur,T:RA Vt:R1!ls'-LnUTING PRODUCTION.
,AprlV:l!'t.El sw",ndson as an iodivillual with relipect to its power fAhnter mto conj;racts to lllmt productlOo, for, as it owes nospeciail duty to tbe pUblic, itcaO: ordinarily limit or omit tbe exeroise of its cor· porat6po\V1lrs· i ·, . ' ,
, '." "
A coutract between manufacturers, whereby the first 'patty agrees, in consider peroentage on the sales made bytthe'second ,party, not to use his plant for ation the proo,vctioo .of strap aod ,T binges for,fi!veyears, the,QOIltract to be in case the se<lo\ld party increase his,facilities'for the production of sucb binges. is void ,liS against publie policy..i' ,. ': , ,,,." Tbe content.i(ln of t.be party that, as he llad fullf performed llis promises, he could recover 1;he llecunilirt consideratton,eveQ though 'the contraot was not euforceable whUe entirely'executory; was
4. ElAME-.-ENFOROEMBNT-P.A:R'llIAJ:. PERFORlIUNCB.
At LllW. ,Action. by Olivet' and 'others, constitilting·the firm of Oliver 'Bros. &:PhillipsiagainstEdwinW.'Oilmore upon a con" tract. On declaration. Sustained.'
OLIVER V. GILMQRE.
question, marked ,"Exhibit A," was as follows:
'''MemorandiHn of agreement made and ,'concluded this fifteenth day ,of February, (18S3,) eighteen hundred and eighty-three, by and between Oliver the first part, and the Stanley Work's,.a corporation Bros. & Phillips, party of,the state of: Connecticut,'Roy st Co., a corporation of the state of New York, E. W. Gllmore.& Co., of North Easton, Mass" C. Hager'&,Son, of St. Louis, Mo., McKinney ManUfacturIng Company, of Alleghe,llY' Pa.,the Peck, Stowe & Wilcox Company, a corporation of Cleveland, Ohio, and elsewhere, the .A'Jtna Nut Company, a; corporation of the state of Connecticut, 'and Sargent & Co., a corporation of the state of Conpecticl1t and QfNew York, parties of the second part, witnesseth; That the said party of the first part agrees that the works, factory, and machinery owned, leased, and controlled by them, situate in Pittsburgh or elsewhere, shall not be operated or used by any perlion whatever for the manufacture of strap and T hinges (it being understood Bros. &;Phillips may use any machinery other than their regular strap and T hinge machinery for the manufacture of wrought-iron butts) for the period of five (5) years from and ailer the first day of March; (1883,) eighteen hundred and eighty-three. In consideration whel'eof, the said parties ofthe second part sevemlly agree to pay to the said party of theftrSt part, from and after the first day of March, 1883, a sum of money equal to three and one half per centum of the net sales of strap and T binges,sold by the several parties of the second part duhng the month of Marcb,1883,and for each stlcceeding during the perio!t of this agreement. wbich said sales shall be ascertained and reported to said first party as follows: Onor before the fifteenth day of each month after March, 1883, 'each indlvid:ual, firm, or corporation compoRing said second parties, forming or operating a separate establishment for the manufacture of strapandT hinges, shall make a report under oath, to be signed by some member of the as the case may be, and by a bookkeeper or firm or officer, of the other persorl;a member of, or,in tile employ of, said firm or. corporation, who shallbebest'acquainted with the data from which sales are made up, or by the person making up said sales, attested to before a notary public or justice of the peace, of the net amount of the sales farthe calendar month preceding, which said report shall be accompanied by a check or draft for the per centum, as before prOVided. .The reports and drafts herein prOVided for Shall be made to the Wheeling Hinge Company, of Wheeling, West Va. It is further agreed that,should either of said secbnd parties fail to make report of sales and pay over the'percentum thereon contempiated by the terms Of this agreem'ent at the times herein designated, to said first party, notice of such failure shall be forthwith mailed to each of said second parties, and if within thirty days after the mailing of such notice the terms of this agreement are not complied with by the corporation or firm so in default, or in case of failure by the defaulting party, then, by the association of strap and T hinge manufacturers, this agreement shall, at the option of said first party, be no longer in force, and the first parties shall be at liberty to resume tbe manufacture of hinges the same as if. this agreement bad Dot been made. It is also agreed that if any oue of the ,parties of the second part should build, buy, or place in their works any additional machinery, which will in any wayincrease their present facilities for the manufacture of strap and T hinges, this agreement shall thencefol'thbe. null and In witness whereof the said Stanley Works, the said Roy &, Co., the W. Gilmore &; Co., the saidC. Hager &, Son, the said McKinney ManUfacturing Company, the said Peck",8towe & Wilcox Company, tbesaid lEtna Nut CompanY, and the said Sargent &; Co., have affixed their names and official signatures. This agreement to bIJ void and of
· . __ " . I _' ' ". ". 'j
FEDERAL REPORTER,:vol. 52.
no effecbhnless agreed to' by aIithe parties nr.med in the bOdy of ifsp by all. to relllain in until the expiratilln tbl'l tIme in thIs agreement, 'i BROS. & PHILLIPS. PECK, STOWE & WILCOX Co., "THE STANLEY WORKs,. By R.A. N:EAL, President. "WM. H. HA&T, Treasurer. lETNA NUT Co., "Rpy & COMPANY., ' . By R. A. NEAL, President. "E.W. ,GILMOBEl,& CO. SARGENT & CO., "C·.;Il:.AAGER & SON., .. J. B. SARGENT, President." " MClU,NNEY MFG, Co., "WM. S. McKINNEY, President.
The declaration was ihtwo counts,as follows: The plaintiffs say the defendant made a,Qontract with them, Cf>Vy,ot'which is l;tefElto annexed, marked · A,' whereby, in consideration of made by ,the plaintiff, the defend!lnt ..prc;lInised to pay gn or the fifte.l'l,uth day of each mpntb, except J anua sum of mOlley equal to half per cent. of of straP!lnd T hinges made by him dUJ;mg, the, month preced. fHrther to mllke a of saili sales. signed ,\)tn to, as .p. .and s.end"t.he to the WheelIllgI:;J;iRgeCompany; and ,the plaintiffs have done aU tlungs wInch they agreed to (10, ill ,said ,c\>ntract.,A nd the plaintiffs say that and one half per c\'ln t.""'.lI.n of t.he ne,t sales made b.y tile (lefen.dant during the .. . . ..' . ven mo.nt hs . qtl887'amounted to the llum of three thousand dollars during each of said but the defelldanthas neglected and refused topay said sum of a,lldhas andrefused to make reports.. as aforesald, made upon bimso to do on the fifteenth day of each of said,roonths;. wherefore the defendant owes the plaintifJ;s saId sum of three thollSllpddollars, and interllst thereon from each of said fifteenth daYll. . Oount. And the plaintiffs say the de,fendant made a contract with I.hexn, ,a copy of which is hereto annexed, marked "A," whereby, in consideratiQl:l of the promises therein made by the plaintiffs, the d,efendant promised nat, t9 build, buy, Of. :place in hill, works any machinery which wouI'd in any way incrll.a.s.e his facilities for the manufacture of strap and T andtbe plaintiffs have done all things they agreed to do in said conbut the defendant, during the year 1887, at divers times, did build, bUy, and place in his works. additional machinery for the manufacture of strap and T hinges, whereby the plaintiffs are greatly damaged, to wit, in the sum of ten tbousand dollars."
M. F. Dickinson, Jr., and Samuel Williston, for plaintiffs. Frands L.HaYe8, for defendant.
PUTNAM, Circuit Judge. Plaintiffs concede that the second count is invalid. The important and difficult 'questions in the case turn on the firSt coutit,and the w,hich is made a part of it by'its tenor. We desire at the to disposeo(two or three mitior considerations. H is clear that the point of nonjoip.der other parties is not well taken, because itia plain .that each subScriber to the contract is holden only for his own payment. Also, ontbematter of ultra vires, inasmuch as a corporation instituted for private':.trading or manufacturing purposes, and owing rib 'special 'duty to the public,can ordinarily limit or entirely
omit the exercise of its corporate powers, and is no more holden than an individual to proceed at a pecuniary loss with its intended operations, no question of that sort can be raised on a declaration alleging unqualifiedly that a contract was made. In a declaration of this character, all questions of ultra vires, authority of officers of the corporation,and formalities of execution are covered in; and objections in reference thereto can only be made to appear by subsequent pleadings, or by the facts as developed at the trial. The proposition of the plaintiffs that, as they had fully performed, the defendant is liable, even, if the contract could not be enforced while it was executory on both parts, is not sufficiently sustained by the authorities cited by them, and is controverted. by Bishop v. Palmf/l', 146 Mass. 469,16 N. E. Rep. 299; Arnotv. Coal 00.,68 N. Y. 558; Gibb8 v. Gas Co., 130 U. S. 396,9 Sup. Ct. Rep. 553; and Central Trarup. Co. v. Pullman'8 Palace O:tr Co., 139 U. S. 24, 11 Sup. Ct. Rep. 478. Also, the plaintiffs' proposition that what is sought to be accom'" plished by this contract indirectly might have been, under the law i accomplished directly, by the defendant's purchasing the works and closing them, does not aid us in coming to aconcll1sion in this case. There are many matters which the law cannot prevent, but which it refuseS to' aid when in an executory form. This is singularly illustrated by many. of the expressions in the house of lords in Stea'TMhip 00. v. McGregor,"  App. Cas. 25. Also the decisions quite uniformly recognize tbe .distinction, in actions for the price of manufacturing plants sold, J>etween .cases where the vendor merely has knowledge of the purpose of the pur.chaser to create a monopoly, and those where the vendor becomes an active participant in that purpose. If we were to accept the law without modification, as one branch of it was left by the court of king's bench in Mitchel v. Reynolds, 1 P. Wms. 181, (A. D. 1711,) and as the other was stated in 4 Bl. Comm. pp. 156-159, concemingforestalling and engrossing, there would seem to be no doubt that the demurrer would necessarily be sustained. So far as the latter branch is concerned, the .contract would seem to be in violation of the old rilles of the common law, intended to prevent the gathering up of the control of commodi· ties into few hands; and, as to the former, while MUckel v. Reynolds, was that of an individual excluding himself from pursuing his occupation, yet there can be no difference in principle or practical application between shutting out a person and shutting out a manufacturing plant or establishment. Indeed, the latter would much more probably tend to the detriment of public and private interests than the former, and on a much larger scale. In such instances, not only does an individual operative Euffer the personal injury against which Mitchel v. ReynoldB, was aimed, but the public receives detriment through a destruction of values and a depopulation extending through entire towns or villages. We must, however, take cognizance of the fact that the rules formerly laid . .down touching this topic are notnowto be regarded as illflexible, and have been considerably modified. Gibbs v. GaB Co., ubi 8WpTa, 409, and Fow'" v. Park, 131 U. S. 88, 97, 9 Sup. Ct. Rep. 658. This has, perhaps, theen the result of the pressure of the tremendous advances made. by th.
vaste:lttensipf:la;and ·rapidly oC modern businesS' and of an apptlJient inability of perceiving howthe..old.BtnctrulesQanIbe applied judicially to the present conditions. withQut,laying down ,propositions.whieh might in their applica. tiQ}lpheck.,enUlrprise, ·or. interfere with . freedom of trade. The de· hl this ,direction byi:tbe judiciary and by legislation have been eVen more .mali'bd in Great Britain than 'in the United States. This wUl. be seen, so l far .as. tbecou'rts are concerned; from striking expressions iIN30meoftheEnglish caSElj! which we will cite, especially by the result in L. R. 4 App. Cas. 674, and by many things said in SteamY, MeGregCYr, supra, in the hOUSe' of lords, by Lord COLERIDGE, (21 Q·.15; .Div. 544,)ancUn the court of appeal, (23 .Q. B. Div. 598.) While jl). ,the. United States. there isa tendency to re"ive,with the aid of legislation, ,the strict rules·6f the common law against' all forms of nopolyor 'engrossing, thaJegislation of .Britain had a different .· ln SteannBhipCo.,v. McGregor, 23 Q. B.Div.628, 629, Lord
Justice.FRY said: ' ,".'JIbe aneient:common law of this country and the statutes with reference as badgering, forestalling, regrating,. and engrossing in· Illjnd of the an<i of jlJdges that certain large operaIn, which with t\le Ipore .9rdinary COIJrlle of trade were were accordingly. But early in the III. the'. mind of the legislature showed symptoms of cbltl1g&.'t'll this: matter, and the penal statutes were repealed,'(12 Geo. III. c. 71,) its unaidM operation'. This repealing stat.. and ute.cQ1\t.,lntbe preamble the stlltement that it had been found by experi. t.qe Il"ll$traint lai4 upon th.e dea,ling in corn, meal, 1l0ux:,cattle"anq.8undry Qthersorts of victQa!s, by preyenting a free trade in the ealdi;plDlllOdlties, bad' a to discourage the. growth and to enhance 'tile price of the . This Is very noteworthy. It contains a confession of failure in tMpast; tbeindicationof anew policy for the futur.e.frhe'oevtpolicy bll8,been moret:learl y declared and acted upon in the pr$lentrejgn; for the legiBlllture haa, by7 & 8 Vict.c.24, altered the common lawby. utterl,tabolisqipg the several of badgering, engrossing. and, regrating. ' :
Tberefore t in view of the Plodem English tendency. encouraged in the legislationl9xplained by Lord Justice FRY, it may not be safe to follow the later English decisions too closely, although some of their most extreme expressions I are found in the cases cited· by the supreme court in Gibbs v. Gas 00.,.130 U. S. 396, 9 Sup. Ct. Rep. 553. We do not intend, however, to launch into a boundless sea ofttouble by attempting a general in. vestigation'oHhepresent condition of this branch of the law in the United States and Great Britain; · We have rC;lferred to it only to show the necessity of making sufficient to ascertain whether there are anymodificatiODs of the old rules which reach the mse at bar. We think it will >be found tbaHhe later decisions divide themselves into three or four classe8* none of which affect it. One embraces such cases as Oolli'l13 &nd:iIrlachinery Co. v.Dolph, 138 U. S. 617,11 Sup. Ct. Rep. ,412\. aridi28 Fed. Rep. 553. This consists, not in agreements that .tabliahments sball.be closed, or that any shall withdraw from
OLIVER t1. GILHOltJl;
·his trade or profession, although such results may inoidentally follow, but in agreementa for apportionments between individuals or Gorporations; and these are quite likely to be in the line of the modern division of labor; and thus ptove of advantage to the community. Another class relates to newenterpriseB, for the building up ·of which parties are not likely to venture, unless permitted to impose their own' eonditions. TIl's class is illustrated.in part by Fowle v. Park, 131 U.S. 88, 9 Sup. Ct. Rep. 658; .and Oloth 0>. v·. Lor8fYnt, L. R. 9 Eq. 345. Another relates to conditions on which persons enter the employment of manufacturers or dealers, and is illustrated by RousiUon v. ROU8illfYn, 14 Ch. Div. 351. . Still another class, and perhaps the most striking of all, is that which enlarges the limitation of the territory within which, for proper reasons, an individual may bar himself from pursuing his trade or profession. The courts now seem·to consider that Mitchel v. Reynolds referred to a trade which was necessarily local, at a period when all trades werl' presumably of that character; and thatis therefore not strictly applicable to the present condition of affairs, ,when the good will which a manufaCturer or dealer S8cures is"often national or international inits character, requiring (or its protection agreements likewise national or international in their effect. The principle of this class is recognized in RousiJlon v. RoUBillon. ubi ompra, and in NatYigationCo.v. Wimcr,20 Wall. 64. Wet4lnk. it will be difficult to find any departure or modification· of the old rules not covered by the foregoing classification,'no part of which seems to touch the case at .bar. This relates solely to the question whether a contract is against pUblic policy, in which, for a merely pe:ouniary oonsideration, a manufacturer agrees to close his works entirely" or in part, fora specified number of years; in the case. at bar malleaD the more characteristic in, consequence of the counter stipulation thllt, if either of the other parties to the agreement should extend his works, the contract should become void. The defendant maintains that there is a lack of legal consideration for his promise. We presume he does not mean by this that a contract which may in some senses operate in reIItraint of trade, is invalid simply because the only consideration which the promisor receives is a pecuniary one·. In Navigation Co. v; Winsor, ubi ompra, this was the only consideration; yet the court sustained the contract, observing that the stipulation objected to "was presumed to be founded on a valuable consideration in its influence on the price paid for the steamer." The cases are full of observations to the effect that the courta maintain these contracts under reasonable circumstances, principally because it is through them only that parties who have built up by honest industry a trade with a valuable good will, can secure an equivalent for tbe laHer. The suggestion of the defendant on this point, however, leads dlrectly to a proposition which seems to open a path through this case. It will be observed that,although the suggestion of the defendant that a me.re pecuniary consideration is not sufficient to sustain these contracts be taken witheut qualification, yet this class of agreements is so different from ordinarJr ones that no action can be maintained on one of
tbem, because it i!luntler seal, without some reasonable consideration is IIbown. What is this reasonable consideration? Ordinarily, it is that when the. covenanter 'surrenders his trade or profesSion an equivalent is givehto the publio;' because, ordinarily, as a part of the transaction, the coveha.htee the trade or profession, nothing is abandoned, and only a transfer it! accomplished. The same occupation conmnues; the same number of mouths are fed. So, in the later cases, modiif;ymg Mitchelv. Refrnolris with reference to, the territory within which agreemehts to withdraw from a trade or profession may lawfully be effecti,v8ja8'the fact is tBatthe field through which the'transfer oithe business;a.perates is frequently national or intemational,'instead of local. So, 8i1tio;in the. class of cases already'spoken of, in which there is only a. division, of labor. ,This doctrine of compensation, by force of which the publie and individuals lose nothiilg,was recognized in ]fa'/;-igation Co. v. 'WinBor,.ubiBUpra,;in original contract under discussionin that case related to a period of seven years. As to this, the couri.isaid (page 71) ,that I'the publili was not inju1'edby being deprived of myoUhe business"eilterprise oithe country."A subsequ13nt contraefLwaBlDade"which'was the one, then before the court, by which, to the public, a new contract covering ten years was made for a merely pecuniary consideration,'and the court held wvoid;fo!' the additional three years. In this case the colirt uiled (page. 69) necessary to protect the' former' company from in· itsQwl'I businesS. It-,had no tendency to destroy the useful. "nll not deprIve the country of, .ny industrial agency. 'rhe merlll'y tJ;ie steamer from tbeemployment of,one comIl¥iyto't1:latof,another. situated and doing business in another atate. It involved no'transfer ot residence or alleginnce on tbe part of the vendee In order to· pursue its employment. nor any cessation or diminution of its busi. ness whatever. Tbepresumption IstMt the arrangement was mutually beneficial to both compan.ies, and that it promoted the general interests of commerce .the Pacific coast... . Toa.like effect is Central ·. v. PuUman'B Palace GIr 00.,139 U. S. 24, 53, 54, 11 Sup. Ct. Rep; 478. Navigation. Co. v. Winsor laid down very satisfactorily the reasons supporting this branch of the law, stating that one is the injury to the pUblic. by being deprived of the restricted party's industry, and the other the "injury to the party himself by being precluded from pursuing his ocpupation, and bemg thus prevented 'from supporting himself and his family. It seems to the court that the case at bar is subject to both of ebjeotions.stated, without any ,proper compensatory consideration. The court also thinks that, in lieu of having "no tendency to destroy the usefulness" of prQperty, or "to deprive the country of any industrial agency," or to require "transfers of residence or allegiance," or "the cesIl8tion,drdiminution of business,'1 it is in all these respects directly the-
Some;9fthe decisions obaerve that contracts are presumably invalid
OLIVER IJ. all-MORE.
which prevent a manufacturer from operating his works for a considerable period of time as he may deem his own interests or those of the public require; and the court finds nowhere any modification of the old rules which relieves the case at bar from this objectionable feature. It il not intended by this to say, whether or not, in an emergency of an over· stock, manufacturers or miners may stipulate for handling their works or mines in .aspecific manner, or for shutting them down in whole or in part, each for such limited time as would ordinarily enable a congested market to relieve itself; but a contract extending over a period of five years, intended, like this at bar, for restricting production, and absolutely binding manufacturers and dealers, while still retaining their plants and establishments, to operate them in a particular way, or to shut them down in whole or in part, is such an incumbrance on the freedom of individual action, necessary to the public good, as to be invalid. Therefore, in view of the fact that by this contract plaintiffs stipulate to shut down their works, at least so far as strap and T hinges are concerned, for the long period of five years, for no consideration except a pecuniary one, and without a lawftilequivalent with reference to the continuance of manufacturing, or its development, in other directions, and also in view of the· other fact, that this contract is especially marked by the further stipulation that it shall be void if the other parties to it increase their existing facilities, the court hold!! that, as the case stands, the demurrer must be sustained as to both countB. The expression of the supreme court in Gibbs v. Gas Co., 130 U. S. 396, 409, 9 Sup. Ct. Rep. 553, repeated in Fowle v. Park; 131 U. S. 88, 9 Sup. Ct. Rep. 658, that "the question is whether, under the particular circumstances of the case and the nature of the particular contract involved in it, the contract is or is not unreasonable," must, however, be regarded. The court will not presume to define, in advance of the facts which may be shown, or perhaps to define at all, what may be the practical effect of these expressions; but, being warned by them, it cannot determine on this demurrer that it is impossible for the plaintiffs to allege particular circumstances, not now appearing, which may modify the result. It is equitable as between the parties that the plaintiffs should recover the money stipulated for by the contract; therefore an opportunity sb,ould be given to amend, if desired. Demurrer sustained. The first and second counts and the declaration are adjudged inSUfficient. Judgment for defendant, with costs, unless on or before November rules next plaintiffs amend, and pay costs to the time of filing their amendment.
J'EDERAL·· UPORTERf vot
A!SPLEY . v·.MUn,PHY' et·al.
«O£rcutt Oo'lJli'ffJ! AppeaUl, Fifth O'irduit. June 20, 1892;);.
;, '.;. 'I:
':'. ' ., '; .
. . 1846;' entItled An act to· organize probate oourts, " ,(2 Sayles' Early ,Llh"stTaar1i; 1786,)wbicb, in eeotlon'lfj' 'expressly repea,ls "IloU raws and parts of infQrce. rel..a tiveto . at, probate oourts," was. apPlicable. o Itt«> laWII conferring gene,rar Pl'.obate 'jurf$diotion, a.nd not .to :A:<Jt Tex.' 1844, § 2. , .Early Laws·Tex.: art. 184<1,)whlohvests in thoslboourts the special (If oPlltraots to o@veY land. 50 Fed. Rep.
O;N:-SPBQI;r,IO.,PBRl"ORr.(ANOB-RBfBAL OP STATUTE.
S.SAME;' .,.,')....·'JJh. ea.ot. .
it. 2, . nterre.d po,,:eruppn. to aythc;>rlze AAadu;IlDlstrlltor to make a deed in satIsfaotIOn of a cllUm for land due " by'tbe"eetktei 'When: tlie'$I:'IIIiiriistrator'lI.ecept;lld the olaim; and the court, onevi-
the CirC)uit rCourt of the States for:tlwNorthern District of, Ttttas.·n\: ' Aetion:by.Rober.tF.AspleyagainstJ.p. Murphy otherl3 to reinterest in and to block 77, in the city of'Dallall,Tex. The Qirc\:lit oourt,ov.er:,the ohjection of plaintiff, admitted in of the probate court. See 50 .Fed. Rep. 376·. :The court the jury to return a verdict for the defendants. bringllerror. Affirmed. Chas. 1. ,Evt1nl8· and B. H. Ba88eU, for plaintiff in error. Simkina!cfc MtJ1l'rW), (W. S. Si:mhi/M, of counsel,) fpr defendnnts in error. Before, PARDEE, Cirduit Judge,' and LoCKE and BILLINGS, District JUdges.'
Judge. This case is before this court upon a writ of error to the drcuitcoilrt of the United States Jor the northern district of Texll:s.i'Thesuitwas an action of trespass to try title, brought by the plainhff' in' error aga.inst the defendants in error, to recover an undivided interest in a blockof ground situate in the city of Dallas. There was a' trial and th'ere is a bill of exceptions as to the admission of,a deedblfered in evidence by the' plaintiff below·.. The bill of exceptions presen!8several grann'ds of exoeptions to the admission of the deed. But one ground was insisted on in the argument, 'and that presents the question: "In the year 1847, had the probate courts of the state of Texas the power to authorize an administrator to make a deed in satisfaction or payment of a claim for land due by his e8tate, where the administrator accepted the· claim, and the court, upon evidence taken, approved it?" The record shows that the facts in the case bearing upon this question were as follows: John Grigsby died in March, 1841. In February, 1847, the administrator of his estate, the administration of which was pending in the