'J: ,:J., did n.ot me any assignment of 'errors when it prayed f0f:. itsllPpeal, nor, until long atter the· six . months allowed for perfecting the appeal had expired, the errors assigned in this case must be disregarded under the me. In view of the fact that this is the first case in which we have had occasion to enforce this rule, we have carefully exalnined this arid are satisfied that no substantial error wascominitted by the court below, and that no injustice will be done by thel\Pplication of the rule to this case, while the announcement that it will be enforced may promote its observance, and thus prevent injustice from its enforcement in the future·. ',' The result is that this court. will not errors the asof which is nottnade and 1I1ed in the ,court below when the'appeal or writ of error is allowed. The .jodgment below is aftirmecL
, ' , ,:i )
of IUldel'rorsnot wU1 <»®arded,. but ';1ihe colll"t, at ita Qption, maynd,tlce"'a. plaln'error not assigned." . .', · .
L UNION PAO. RY. 00. T. OOLORADO EASTERN RY. 00.
Elghth'Cfrcult. :February 6, 1893.)
to the Circuit Court of the United States for the District of' Colorado. ' . ...' . .' . Prooeeding by ·the· ColOl"ado' Eastern ,RailwaY' Company against the Union Pacific Railway Company for the condemnation of certain 'hind. Judgment for plaintiff. '41 Fed. Rep. 293. Defendant brings error. Writ of error dismissed. John ¥. Thurston, Willard Teller, and H. M. Orahood, (E. B. Morgan, on the brief,) for plaintiff in error. 11. M.()uthbert, for defendant in error. Before CALDWELL·· and SANBORN, Oircuit Judges" and SHIRAS,District Judge.
Circuit Judge. The judgment in this case wasrendered on November 23, 1891. The writ of error wae sued on June 14, 1892; . This. court. hasnojtl,.risdiction of thi,scase, since more than six months 1:>etween th,e entry of the j\ldgment and the dayQn wb.i<::hthe writ oterror was sued out. U. S'-v. Bax. ter, 51 Fed. Rep. 624; 20. C. A. 410; ;BrookSv. Norris,U How. 201;
MORRIS tI. LINDAUER.
Scarliorough V. Pargoud, 108 U. S. 567, 2 Sup. ct. Rep. 877; Cummlngsv. Jones, 104 U. S.419; Mussina v. Cavazos, 6 Wall 355, 360. Moreover, the assignment of errors was not filed until June 11, 1892, which was more than six months after the judgment was rendered. U. So v. Goodrich,54 Fed. Rep. 21, (decided this day.) The writ of error ill accordingly· dismissed.
MORRIS et at v. (Cll'cult Court. of Appeals, Sixth Circuit. No. 7L et at February 16, 1893.)
FEDERAL COURTS KENTS.
STATlll STATUTES-FRAUDULENT ASSIGN-
The tact that the Mich1gan statute vests in the clrcu1t court of tha.t state the superv1s1on of trusts created by assignments for the benefit at creditors does not eXClude the jurisdiction of the federal circuit court, in cases of diverse citizenship, to entertain a sUit to set aside a mortgage made in contemplation of the aaslgnment, and covering all the assigned property, as in ftaud of creditors. :Ball V. 'l'ompldns, 41 Rep. 486,
Where a trustee is a party to an action in · federal eourt, brought under the diverse citizensWp cIa'.l.Se of the federal constitution, the citi· zenship of the trustee, and not that of the beneficiaries under .the trust, dew..rmlnes the jw.1sd1c11on. KDa.pp v. Railroad Co., 20 Wall 124, followed.
S.· began business in MicWgan in August, 1888, with goods of the value of $7,500. In the following spring he purchased more goods to the amount of $4,500. April 19, 1889, he executed a mortgage on the goods in favor of his brother and others, and on April 22, 1889, executed a general assignment. At the time of the assignment there were only left goods to the value of $5,000. No other disposltion of the rest of the was shown. Shortly before making the assignment B. bought other goods, and just as the obligations therefor were falling due he borrowed a large sum from a bank, and then assigned. The brother had at various times and places made contradictory statements as to the amount B. owed him, and knew all about S.'s stratl'S, and had gone to various persons with S. for the purpose of getting S. credit. Held, that the mortgage was a fraud upon the general creditors of B., and was void as to the brother.
4,. SAME-KNOWLEDGE OF GRANTEE-INNOCENT BENEFICIARY.
Where, a mortgage is given toone person for the purpose of securing debts due to himself and others, with intent on the part of the mortgagor to defraud other creditors, it is valid as to an innocent beneficiary whose debt ill an honest one, although the mortgagee h1mselt is a party to the fraud
II. SAME-KNOWLEDGE OF AGENT. But such a mortgage is void as
to one who, thOugh innocent himself, procured the security through an agent who had knowledge at the fraud.
Appeal from the Circuit Court of the United States for the Southern Division of the Western District of Michigan. In Equity. Bill to set aside· a mortgage, brought by Max Lindauer, Adolph Lindauer, and Solomon Michelbacher against Victor .Sc40enfeld, Louis E. Morris, and Jacob Aarons. The circuit court entered a decree for complainants. Respondents appeal. Affirmed.