UNITED STATES V. FIRST
involved. In Fox v. Hempfield and the other later cases above cited, the submission was identical, substantially, with that before us. There can be no doubt that the arbitrator may so disqualify himself by acts subsequent to his selection, as to relieve parties from the submission; and if the conduct of the architects which gave rise to the dispute involved in this; suit, had been the result of malice or intentional wrong, instead of mistake, a different case would be presented. Under such circumstances he might be pecuniarily responsible to his employer for the damages, and in consequence be that the engineers were guilty of disqualified. It is not such misconduct. Their refusal to determine the cost of alterMions in advance was doubtless the result. of their construction of the rights of the parties under the contract, and although wrong, (as pointed Q,Ut in the court's charge to the jury) no more can be justly said than that their judgment was in fault; and as the plaintiff bound himself to submit to such judgment he cannot appeal to this mistake to oust their jurisdiction. This is distinctly ruled in one or more of the cases above cited. The rule for judgment must therefore be made absolute and judgment be entered for the defendant accordingly. As the court of appeals may possibly reach a different conclusion the rule for new trial should be disposed of. It is sufficient to say that it cannot be sustained. The questions of fact were fairly submitted to the jury. To disturb the verdict because the court may think it might justifiably have been rendered for $800 or $1,000 less would not be warranted. The testimony was conflicting and the jury was as capable of passing upon it as the court.
UNITED STATES v. FIRST NAT. BANK OF BELLAIRE.
(Circuit Court, S. D. Ohio, E. D.
March 7, 1£98.)
MOTION FOR NEW TRIAL-SURPRISE.
'Vhere, three months after the entry of judgment, a motion is made tor a new trial on the ground of surprise at the testimony of a Witness, and that the only person conversant with the facts sworn to by such witness was out of the state at the time of the trial, and an affidavit of such absllnt person Is presented contradicting the testimony of the Witness, and it appears that some of the material statements In such affidavit are in contradiction to his deposition taken In another cause concerning the same transaction, the motion will be denied. The time to obtain a bill of exceptions will not be extended after the expiration of the term succeeding the trial term.
BILL OF EXCEPTIONS-EXPIRATION OF TnlE.
Harlan Cleveland, for plaintiff. Tallman H. Armstrong, for defendant. SAGE, District Judge. This case was tried at the June term, 1896. The jury returned a verdict for the plaintiff. The plaintiff moved for a judgment non obstante veredicto, and for a new trial. At the same term the time for preparing a bill of exceptions was extended until and through the month of December, 1896. On the
of that year. the! court ordered judgment for the Yeredicto, :and on the of. December judgD;lent for the plaintiff, was entered accordingly. On the 11th of ,M:arch, 189.7, the defen,dant moved the court to set aside the judggrant a new trial, on the ground of surprise; the defendant. claiming to have been taken by surprise by the testimony of Alber;t W. Roome. Other grounds were newly-discovered evidence, that the judgment was not sustained by sufficient was contrary to law, error in tile assessment of the amc;:mnt of recovery, and other reasons.. All the reasons, excepting surprise and the allowance of interest, from April 1, 1891, were fully discussed upon the hearing of the motion for judgment, and will not now be re: considered. The interest was rightly allowed from the date of demand .upon the defenp.ant for payment. At the trial of the case there was no claim of surprise at the testimony of Roome, and no continua:nce was asked. On the argument of the motion for judgment nOJ;lobstante veredicto, defendant made no claim of surprise. That claim was not made until nearly three months after the judgment had beel} entered. In support of it tile affidavit of the paying teller of thebalfk is filed, denying the testimony of Roome, which was tllat about the 23d or 24th of October, 1889, he showed to Randolph the forged draft, and notified him that the woman tpwhom the draft was payable, and whose indorsement was forged, had died in 1883; also, the affidavit of'A.p. Tallman that at the time of the trial, and after Roome's testimony had been evidence, ashe was given, it was iIppossible to prOCure then living in the state. of Illinois. But it appears from the evidence of Roome that, when he went to the bank for the express purpose of notifying the bank of the forgery, Caroline Hinkey, who had the draft cashed, and was presumably guilty of forgery of the indorsement; had been taken to West Virginia in order to evade the authorities., Itappearsfrom the,transcript of the evidence in the case of U. S. v. American Exch. Nat. Bank, 70 Fed. 232, to recoveI,' the amount of. this. draft, that the deposition of B. E. Randolph, taken .April 4, 1892"was read in evidence. ,In that deposi· tion he testified that the first he knew of Caroline Hinkey's right to receive the money on the draft being questioned "was the time that Capt. Little took her .over into West Virginia in order to ,.evade the auth.orities.This was after she had drawn the balance on the certificate of deposit; it was quite a little while afterwards." This testimony agrees exactly with,Roome's as to the time; that is to' say, that it waswhHe' Caroline Hinkey was' in' West Virginia to evade the authorities. Ete further testified that he could not remember definitely, with reference,to the time of' tpe payment of the money, when it was that he heard that Caroline' Hinkey bad committed forgery in indorsing the draft. He said that "it might have been three months, and it might have been but one'month." The check .was.cashep. August 2, 1889, and'Roome gave the notice to the bank in the latter 'part of October, 1889.· It further from the record of given in' New York, that at tb:at time the. officers 'of the' BeHaiueBank did not pretend that
CHICAGO TI1:ILE &; TRUST eO. V. STATE BANK.
they did not have notice of the fact that the indorsement the draft· w.as. forged. .Roome "Ias a witness in that case, and testified at the trial as to the· notice· given to the Bellaire Bank; just as he did at the trial of this case. If a new trial were granted and Randolph were to swear according to the statements of his affidavit, he would be contradicted by his own deposition, taken April 4, 1892. There is, therefore, no sufficient ground for the motion to set aside the judgment, is overruled. I am appealed to to make an order to enable the defendant to procure a bill of that will be recognized as valid by the court of appeals, and that, if necessary, I make an entry nunc pro tunc. There is nothing in this case which would authorize the court to make an entry nunc pro tunc, and I am unable to see that there is any other entry that can be made that will enable the defendant to take a bill of exceptions. The time for taking such a bill expired, by limitation of the express order made, on the last day of December, 1896. The order might then have been made extending the time through and until the end of that term, but I know of no practice allowing a bill of exceptions after the expiration of the term succeeding the trial term. I have, on one or two occasions, where there was special reason therefor, on the application of counsel, set aside the judgment,-not, however, in cases where there has been trial by a jury,-and re-entered it early in the following term, so as to enlarge the time for taking an appeal. But the time for taking a writ of error in this case has long since expired,and I know of no means whereby the defendant can now obtain a valid bill of exceptions.
CHICAGO TITLE & TRUST CO. et a1. v. STATE BANK OF AMBIA. (Circult Court of Appeals, Seventh Circuit. No. 475.
81'ATE BANK-IMPAIRMENT OF CAPITAL-INDIANA BANK ACT.
May 17, 1898.)
Under section 13, of the Indiana bank act, as amended March 9, 1895, providing that, when the capital of a state bank becomes impaired, the auditor of state shall levy an assessment upon the shareholders to make good the deficiency, and, if any shareholder faIls to pay suc4 assessment,. shall .cause his stock to be sold to the highest bidder, the proceeds of such sales do not belong to the bank, but'must be paid to the shareholder, less expenses of sale.
In Error to the Circuit Court of the United States for the District of Indiana.
Plailitiffs In· error alleged In their petition that the defendant In error was a bank of discount and deposit organized under the law of Indiana with a capital stock of $25,000, divided Into 250 shares; that plaintiffs In error owned 100 of these shares, for which $100 per share had been paid by one McConnell; that they had owned these shares since the 2d day of January, 1896; that on August 1, 1896, the state auditor directed an assessment of 60 per cent. to make good an impairment of the capital stock of said bank; that on August 1, 1896, the directors of said bank gave to plaintiffs in error notice of saId assessment, amounting to the sum of $6,000 on their stoel,; that they failed to pay said assessment; that on the 10th of November; 1896, the auditor valued