SHOSHONE MIN. CO. V. RUTTER.
SHOSHONE MIN. CO. v. RUTTER et at. (Circuit Court ot Appeals, Ninth Circuit. No. 413. 1.
ADVERSE CLAIMS TO MINING LAND-JURISDICTION-FEDERAL QUESTION.
May 23, 1898.)
A suit brought in pu"suance of Rev. St. § 2326, based upon an adverse claim made upon the filing of an application for a patent for mining ground, Is a suit arising under the laws of the United States, and is within the jurisdiction of the circuit court. 75 Fed. 37, affirmed.
SAME-EQUI'rABLE OR LEGAL ACTIONS.
Suits brought in pursuance of Rev. St. § 2326, to determine adverse claims to mining ground, are In their nature eqUitable, and not legal, actions. 75 Fed. 37, affirmed. A locator may relocate his mining claim, including additional vacant ground unclaimed by others, under a different name,and convey it by the designation of the last name.
RELOCATION OF MINING CLAIM-EXTENDING LIMITS UNDER NEW NAME.
'- RIGHT TO LoCATE MINING CLAIM-DISCOVERY OF LODE OR VEIN.
Seams containing mineral-bearing earth and rock, discovered on a claim before its location, were similar to seams that had induced other miners to locate claims In the same district, and which by development had proved to be a part of a well-defined lode or vein containing ore of great value. Held a sufficient compliance with Rev. St. § 2320, requiring the discovery of a lode or vein within the limits of a claim before a valid location thereof can be made. Gilbert, Circuit Judge, dissenting.
Appeal from the Circuit Court of the United States for the Northern Division of the District of Idaho. W. B. Heyburn, for appellant. John R. :M:cBride and Garber & Garber, for appellees. Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge. .HAWLEY, District Judge. This is a suit in equity brought under the provisions of section 2326 of the Revised Statutes to determine the rights of the respective parties to certain mining ground situated in Yreka mining district, Shoshone county, Idaho.· On August 21, 1895, appellant applied for a patent to the .Shoshone lode daim. Appellees thereafter filed their protest and an adverse claim against said application, and in due time commenced this suit in support of their claim in the circuit court of the United States for the district of Idaho. Both parties are citizens and residents of the state of Idaho. A demurrer was interposed to the complaint, and overruled by the court. 75 Fed. 37. The cause thereafter came to issue, was tried upon its merits, and resulted in a decree in favor of the appel lees. The questions presented by the demurrer will be first considered: 1. Ap)Jellant claims that the circuit court had no jurisdiction to try the case. Does the complaint in this case show upon its face that the suit is one arising under the laws of the United States? This question, under the repeated decisions of the courts in this and other circuits, has been, so far aswe are advised, universally answered in
.;: , ·81
the affirmative. .Different grounds have been stated and different reasons assigned by the variolis cOlirts, but the conclusion has always have been the same,-tb,at the circuit courts of the United jurisdiction to try all cases insti.tuted under and by virtue of the provisions of section 2326 of the R:e"ised Statutes, independent of the question of citizenship of the respective parties. Frank G. & S. M. Cq;y. ;Larimer M, & S. Co., 8 Fed. 724; Cheesman v. Shreve, 37 Fed. 36; v. Mining Co., 43 Fed. 219; Strasburger v. Beecher, 44 Fed.. 209, 213; Burke v. Mining Co., 46 Fed. 644, 646; Wise v. Nixon, 76 Fed. 3, 6. But it is argued by appellant',; counsel that all of these. decisions have been virtually overruled by the decision of the supreme courtinthe case of Bushnell v.Mining Co., 148 U. S. 682, 13 Sup. Ct. 771.. As we understap.d the decisioll in that case, nq snch question as is .here presented was there raised, discussed, or decided. That action was brought in the state court, tried in the state court, and an appeal was taken to the supreme court of the state ; and after a J)etition for rehearing' was filed the. losing party for the first time suggested that a federal question was involved, to )'Vit,a construction of section 2322 of the Revised Statutes. The. petition for rehearing being denied, a writ of error was sued out, and the case taken to the supreme court of the United States. The was there dismissed upon the ground,-to quote the lan,guage.'bf .the decision:
"The attempt to raise for the first time a federal queEltion in a petition for rehearing, after judgment, even assuming that the petition presented any such qnestlon, is clearly too late. It has been repeatedly decided by this com:,t tllat a federal question, when suggested for the first time. III a petition for re, hearing, after judgment, is not properly raised, so as 'to authorize this court to review the declslon of the highest court.of the .
No question was 'as to' the competency of' the courts, either under the provisions ·ofsecnational or state, to tion 2326. The only question at issue there, under the pleadings alid at the trial, was as to the true course of the lode or vein. The instructions referred to in. the opinion had reference to that question only,which was solely ll; ;question. of fact; and the court said that no federal question involved,-that'is, that no:qu stion was raised which. called for any construction of section 2322.. The other decisions that we have cited to the P(HIit '1'aised in this case. In Burke". Mining 00." 644, 646, the court said :
"It is claimed on one side, and denied on the other, that this SUit, having been brought to .determine' the' title 00 'a mining claim;: .in pursuance to the requirementsotsectlon 2326 of the Revised Statutes, as. amended In :l';.Il;U'ch.. 1881 (1 Supp. · .st.p. 6(9)'l,s for that rea,son a sultarifjing under the ,laws of the Unlte.d States, wHhiil .tl:je meanhig oJ the .giving jurisdiction on that ground,irrespective the character of the questions involved 'in the litigation. It seems to us that· all the authorities, as now stand:, have determined the q:uestlon in favor of the affirmative of this proposition."
In Jackson v. Roby, 109 U. So 440,3 Sup. Ct. 30:1, which was a suit for the district· of brought in the circuit COlIrt of the United adverse claim tinder tlle.pi-ovisions of secColorado in support of tiOlt 2326 o1the Revised Statutes, the' court disposed of the case upon fair to assume that'it had no doubts as its lUerits, and it is to its jurisdiction in the premises.lri.Chambers v. Harrington, 111
SHOSHONE ·MIN. CO. V. RUTTER.
U. S. 350, 4 Sup. Ct. 428, it was claimed that a judgment rendered in a suit brought under the provisions of section 2326 of the Revised Statutes was not subject to review in the supreme court. The court said:
"But it is apparent that the statute requires a judicial proceeding in a competent court. What is a competent court is not specifically stated, but it undoubtedly means a court of general jurisdiction, whether it be a state court or a federal court; and as the very essence of the trial is to determine rights by a regular procedure in such court, after the usual methods, which rights are dependent on the laws of the United States, we see no reason why, if the amount in controversy is sufficient in a case tried in a court of the United States, or the proper case is made on a writ of error to a state court, the judgment may not be brought to this court for review, as in other similar cases."
The proceedings required to be commenced, under the provisions of section 2326, in a court of competent jurisdiction, may be brought either in the state or national courts, at law or in equity, as the facts may warrant; but section 2326 does not confer any special jurisdiction on the state courts. When the suits are brought and tried in the state courts, they are subject to the provisions of the state statutes in relation to such cases, and the courts proceed in the manner prescribed by such statutes. The proceedings in the national courts are regulated by the provisions of section 2326, as will more fully appear in the consideration of the next question involved herein. 111 several Pacific· Coast states, statutes have been passed for the purpose of supplementing the provisions of section 2326, and the cases, when tried in the courts of such states, are controlled by such statindependent of any other provisions of the state statutes.. Rose v.Mining Co., 17 Nev. 215,52,27 Pac. 1105; 2 Lind!. Mines, §§ 754, 755, and authorities there cited. In Steel v. Mining Co., 18 Nev. 87, 1 Pac. 450, the court said:
"These actions may be brought by the plaintiff, whether he is in or out of possession of the mining ground in controversy; and the only sensible construction of the law is that each party must prove his claim to the premises in dispute, and that the better claim must prevaiI."
Now, if there were no statute of the state specially providing for the trial of this class of cases, it might be that the state courts would not be able in all cases to try questions required to be heard and determined by section 2326, as amended. But, be that as it lllaY,our conclusion is that, upon reason and authority, the circuit courts of the United States have jurisdiction to hear and determine the respective rights of the parties in controversies arising under the provisions of section 2326, if the property in controversy exceeds in value the sum of $2,000, independent of the question of the citizenof the fact as to whether or not the ship of the case presents any federal question involving the construction of any other provision of the laws .of the United States. In other words, that a circuit court of the United States is "a .court of competent jurisdiction!' to try such <:ases, within the meaning of those words as , .. used in said statute. 2. The next point raised,);>ythedemurrer is "that it appears on the lace of the bUl that ;the plaintiff has an adeqpateremedy at ,law/'
87 FEDERAL REPORTER.
The among other things, alleges that the complainants long prior to August 20, 1895, were, "ever. since' have been, .and now are the oWners (subject only to the paramount title of· the United States) and in the possession of that certain mine and mining claim con· taining a lode of rock in place, bearing silver, lead, and other valu· able minerals and metals, situate in Yreka mining district, Shoshone county, state of Idaho, called the 'Kirby Fraction !.<Ide and Mining Claim;''' which is particularly described by metes and bounds; that the defendant, claiming to be the owner of an alleged adjacent min· ing claim, called the "Shoshone Mining Claim," on or about the - - day of August, 1895, wrongfully caused said Shoshone mining claim to be so surveyed as to crop upon and overlap the said Kirby Frac· tion lode mining claim, and to include a portion thereof, which is particularly described in the bill; that on or about the 24th day of August, 1895, the said defendant applied for a United States patent at the proper land office; "that in and by said application for patent thE! defendant set up and wr'ongfully alleged that it was the owner and in possession of the whole of said Shoshone mining claim, inclusive of the premises last above described, and of the lode therein, part of the Kirby Fraction lode and mining claim, and the property and in the possession of the complainants." The proceeding required, flllthorized, and directed by section 2326 of the Revised Stat· utes has no specific relation whatever to the action of ejectment, or to any other common·law action. The object of the proceeding is the determination of the contest in the land office, as to which of the parties, if either, is entitled to a patent from the government, -a right which arises out of a foIl compliance with. the laws of confor theaequisition' of a government patent for mineral lands. The proceedings are purely statutory, and their incepti()n is in the land office, not in the courts where the suit is commenced. As was said in Wolverton v. Nichols, 119,U. S. 485, 488, 7 Sup. Ct.' 289, 291:
lIThe this case Oy the assertion. of the defendants' claim to have a' patent Issue to them ,for' the land In controversy.. The 'next step was the filing of an adverse claiin by the plaintiffs In the land office. 8l).d. the present suit Is but a'. .of those. proceedings, by the laws of the United States to have a of the question as to which of the 'contesting parties Is entitled to the patent.. The act of con· gress requires that the certified copy of the judgment Of the court shall be filed In the land office, and shall be there conclusive. And we must keep thIs main purpose of the action in view,in any decIsion' made with regard to the rights of the .partles."
Whatever may be said of the nature and character of these proceed'ingswhen tried in the statecolirts, where the statutes have,as to the forms of action, abolished the distinction \yhich exists in·the 'national courts between law and equity, it must, we think, be conceded that such proceedings ate of an equitable nature, and, when brought in the national courts, are to be tried as equity cases. The mere fact that in certain casesa.n action at law has been deemed sufficient does not change theequita.ble character of the suit. The suit is brought for special relief, and the judgment required to be entered is such as a court exercising in equity alone could render.,;'rrhis is clearly shown by the court in Hammer v. Mill-
ing 00., 130 U. S. 291, 296, 9 Sup. Ot. 548, where the court, in the course of its opinion, following the views expressed in Basey v. Gallagher, 20 Wall. 670,679, said:
"The suitor, whate>,er relief he may ask, Is required to state in ordinary, concise language, the facts of his case, upon which he Invokes the judgment of the court; but the consideration which the court wiil give to the questions raised by the pleadings when the case Is called for trial or hearing-whether it will submit them to a jury, or pass upon them without any such interventionmust depend upon the jurisdiction which Is to be exercised. If the remedy sought be a legal one, a jury is essential, unless waived by the stipulation of the parties; but, if the remedy sought be equitable, the court is not bound to call a jury, and, if It does cal! one, it is oUly for the purpose of enlightening its consclence, and not ,to control its judgment. The decree which it must render upon the law and the facts must proceed from its own judgment respecting them, and not from the judgment of others. The court might therefore have heard this case and disposed of the issues without the intervention of a jury, but, it haVing called a jury, the trial was conducted in the same manner as a trial of an issue at law. Such Is the practice under the system of procedure In the territory" (of Montana).
The determination of the rights of the parties, as required by section 2326, as we have already said, is not necessarily the subject of a common-law action; and a trial thereof on the equity side of the court is certainly not a violation of the provisions of the constitution, which declares that the right of trial by jury shall be secured to all and remain inviolate forever. The equity jurisdiction of the United States courts is nO,t controlled by state legislation. In Perego v. Dodge, 163 U. So 160, 16 Sup. Ct. 971, the court held that the amendatory act of March 3, 1881 (21 Stat. 505), was not intended to require, and does not require, all suits brought under section 2326 to be actions at law, and to be tried by a jury. In the course of the opinion, in reference to sections 2325 and 2326 the court said:
"ThUS, the determination of the right of possession as between the parties Is referred to a court of competent jurisdiction, In aid of the land office, but the form of action Is not provided for by the statute; and apparently an action at law or a suit In equity would lIe, as either might be appropriate under the partiCUlar circumstances,-an action to recover possession when plaintiff Is out of possession, and a suit to qUiet title when he Is In possession."
The courts in this circuit have frequently entertained jurisdiction of suits in equity instituted under the provisions of section 2326. In Mining Co., 43 Fed. 219, there is a clear enunciation of the principles applicable to this case, substantially in accord with the views herein stated. That case was affirmed in this conrt in 17 C. C. A. 190,70 Fed. 458, 462. In Preston v. Hunter, 15 C. O. A. 148, 67 Fed. 996, counsel, being in doubt as to whether the suit should be classed as one in equity or an action at law, sent up two transcripts,one upon appeal, as required in equity snits; the other upon writ of error, as required in actions at law. This court, without any discussion of the question, considered the case as an equity suit. It follows from the views herein expressed that the court did not ,err in overruling the demurrer to the bill. 3. This brings us to a consideration of the case upon its merits. It appears from the record that appellees first located a claim on a portion of the ground in dispute, under the name of the "Edith Mining Claim," and recorded the same; that thereafter, before any right of
'87 FEDERAL REPORTER.
the appellant was made to the ground, the locators of the Kirby Fraction mining Claim made a location "on top of the Edith," and also included more ground. These locations were made by the same parties. The Edith was located June 10, 1886, embracing 1,200 feet on the lode; the Kirby, on July 11, 1886, claiming 1,400 feet. Jacob Johns, One of the locators, testified that after the location of the Edith he found more ground,"and located anothercla1m right over it. lt was all our property, anyhow, so we located over .it,-rIght over the top of the Edith. The location of the Edith was completed before the Kirby was located. . * I intended to hold both the Edith and KirbY:lo'cl;ttions." In the conveyances made by the locators, they mentioned the Edith as well as the,Kirby claim. Upon these facts appellant contends that, if the Edith location was valid, the Kirb,v location is, void; that the appellees cannot recover upon the Edith title, because they have not set up any title to that claim in their bill; that they cannot recover upon the Kirby title without showing an abandonmept of E,dith location. In considering these ques· tions it must be remembered that the Kirby was located long prior to the Sboshone claim. The evidence does not show that the ground covered. by tpe Edith location was intended to be abandoned, but it does show tp.at ilie original locators of the Edith concluded to change the boundanies by adding more ground, and gave a new name to their claim. The locators had the right to do this, as long as they did not interfere with the rig]:Its of other parties. The fact that the Edith ,was mentioned in, conveyances does not prove that the parties ,relied title under that name. A conveyance of the ground by metes. ay)d b9unds, by any name of the claim, would be valid and effective. 1'he 'name is generally used to designate 01' identify tbe claim, but it maybe designated. or identified by the use ,of one, 01' more than, 0:Q,e, pame, ,if it is, known. or called by different names. There is no statute, 1l;tw, ruJ,e, or which prevents locators of mining' claims from relocating their own claim, and including ad· ditional vacant ground,unclaimed by other parties, under a different name, and conveying 'it by the designation of the last name. In Weill v; Mining 00., 11 Nev. 200, 210. where the facts were in some respects similar to the .case in hand, there were two locations made by the same parties, known, respectively, as the "Boston" and the "Lucerne." The Boston was located miol', and the Lucerne subse· quent, to the location ,of the Waller's Defeat, owned by the plaintiff. The questiouwas whether the defendant obtained any title to the Boston 'ground under a dBed same by the name of the "Lucerne Company's Claims." The court said:
"If the Bostoh notice and. the Lucerne notice were posted upon and claimed the same lode,a conveyance of his interest in the lode neces.sarily conveyed his interest .In, both. location!;!, llnd it was immaterial by. what particular name he designated ;t. Phillpotts Y;. ;Bla;sdel, 8 Nev. 61."
4. lt is next claimed that there was no sufficient discovery made of lode, or vein at the time the Kirby claim was located, and that l'orthat reason the Kirby l(lcation was absolutely void. Up· on this 'point there is some evidence,'but the weight and prepol1derarrce, in its entirety, clearly isnows that at'the time the loca-
SHOSHOnE MI:'\. CO. V. RUTTER.
tion was made the locators had discovered a vein, or seams of rock in place, bearing minerals. The discovery was made in running a tunnel,where small seams of iroll oxide, quartz, and small quantities of carbonate of lead were found, two or three inches wide. These indications were of such character as miners in that district would follow in the expectation of finding ore, and such as would justify miners in working a claim for that purpose. The rock in these seams was different from the country rock, and was of such character as is designated by the witnesses, who were practical miners, "as a vein containing rock in place, bearing minerals." These facts show that the location was made in good faith, and not "simply upon a conjectural or imaginary existence of a vein or lode," which cannot be permitted. King v. Mining- Co., 152 U. S. 222, 227, 14 Sup. at. 510. The seams, containing mineral-bearing' earth and rock, which were discovered before the location was made, were similar in their character to the seams or veins of mineral matter that had induced other miners to locate claims in the same district, which by continued developments thereon had resulted in establishing the fact that the seams,as depth was obtained thereon, were found to be a part of a well-defined lode or vein containing ore of great value. The discovery made at the time of the Kirby location was therefore such as to justify a belief as to the existence of such a lode or vein within the limits of the ground located. Erhardt v. Boaro, 113 U. S. 528, 536, 5 Sup. Ct. 560. The subsequent developments made after the claim was located, and before the location of the Shoshone, show more clearly the existence of a lode or vein. We are of opinion that the testimony on behalf of appellees is sufficient to show a compliance with the provisions of section 2320, which requires that there must be a discovery of a vein or lode within the limits of the claim before a valid location thereof can be made. In Book v. Mining Co., 58 Fed. 106, 120, the court, in construing this section of the statute, said:
"The words 'vein or lode,' In the last clause of this statute, were evidently intended to apply to such veins or lodes as were described in the first section, and to have the same meaning, viz. a vein or lode 'of quartz or other rock in place bearing gold, silver,' etc. This statute was Intended to be liberal and broad enough to apply to any kind of a lode or vein of quartz or other rock bearing mineraI, In whatever kind, character, 'or formation the mineral might be found. It should be so construed as to protect locators of mining claims, who have discovered rock In place, bearing any of the precious metals named therein, sufficient to justify the locators in expending their time and money In prospecting and developing the ground located. It must be borne in mind that the veins and lodes are not always of the same character. In some districts the veins, lodes, and ore deposits are so well and clearly definec1 as to avoid any questions being raised. In other localities the mineraI Is found in seams, narrow crevices, cracks, or fissures in the earth, the precise extent and character of which cannot be fully ascertained until expensive explorations are made, and the continuity of the ore and existence of the rock in place, bearing mineral, is established. It never was intended that the locator of a mining claim must determine all these facts before he would be entitled, under the law, to make a valid location. Every vein or lode is liable to have barren spots and narrow places, as well as rich chimneys and pay chutes, or large deposits of valuable ore. When the locator finds rock in place, containing mineral, he has made a discovery, within the meaning of the statute, whether the rock or earth is rich or poor, whether it assays high or low. It is the find'ng of the mineral in tbe rOCk in place, as distingUished from float rock, that
constitutes the discoverY,and warrants the prospector In making a location of a mInIng claim." ,
See, also, Migeon v. Railway Co., 44 U. S. App. 724, 737, 23 C. C. A. 156, and 77 Fed. 249; McShane v. Kenkle, 18 Mont. 208, 4:4 Pac. 979; Bonner v. Meikle, 82 Fed. 697, 703. The purpose of the statute in requiring that "no location of a mining claim shall be made until the discovery of a vein or lode within the limits of the claim located" was to prevent frauds upon the government by persons attempting to acquire patents to land not mineral in its character. But as was said in Bonner v. Meikle, supra:
"It was never intended that the court should weigh scales to determine the value of mineral found, as between a 'prior and subsequent locator of Ii mining claim, on the same lode."
The location of the Kirby was made in 1886. The discovery of mineral then made was sufficient to induce the locators and their grantees to perform the amount of annual labor thereon as required by the mining laws; to expend their time and money in prosecuting the work thereon, in the belief and expectation of finding ore of profit· able value therein. The location of the Shoshone was not made until 1895. There is no good reason why the owners of the Kirby should be deprived of the discov'eries made by them in prosecuting the work thereon after the location was made, and prior to the time of ·the location of the Shoshone claim. The court did not err in admitting the testimony upon this point. North Noonday Min. Co. v. Orient Min. Co., 1 Fed. 522,531; Jupiter Min. Co. v. Bodie Consol. Min. Co., 11 Fed. 666, 676; Strepey v. Stark, 7 Colo. 614, 5 Pac. 111; Zollars v. Evans,'5 Fed. 172, 175; Patchen v. Keeley, 19 Nev. 405, 415, 14 Pac. 347. 5. We have examined the objections made and exceptions taken by appellant to certain rulings of the court at the trial with reference to the' annual assessment work done upon the Kirby claim in the years 1895 and 1896, and find no errQr therein. 6. Another case between ,the flame parties was commenced in the state court, removed to the United States circuit court, and there tried as an equity suit, and, as it involved the title to the same mining ground, was consolidated, for the purpose of this appeal, with the case above disposed of. In the case brought in the state court, appellant claimed title to the minibg ground under the Ibex location. The facts and cirCllffistancesas to the location of the Ibex claim are substantially the same as those pertaining to the Shoshone claim. Having arrived at the conclusion that the Kirby claim was a valid location, and it being prior in point of time to the others, it becomes unnecessary to notice any of the questions raised concerning the Shoshone or Ibex locations. The other questions are the same'in both cases. The decree in each .case is affirmed, with costs. GILBERT, Circuit Judge (dissenting). dissenting from that portion of the opinion which deals with the question of the jurisdiction, I am guided solely by what I conceive to· he the purport of the decision of the supreme court in the case of Bushnellv. Smelting Co.! 148 U. S. 682, 13 Sup. Ct. 771. I am unable to concur in the view
that the only point decided in that case was that the suggestion of a federal question in a petition for rehearing after judgment comes too late. The jurisdiction of the supreme court in that case was invoked upon two grounds: First, that a federal question was presented upon the pleadings in the case and the instructions to the jury, since it was a case arising under section 2326 of the Revised Statutes; and, second, that a federal question was specially presented in the petition for rehearing which was filed in the supreme court of the state of Colorado, asserting rights under section 2322. The first question was inherent in the case, and appeared upon the face of the record. It required no presentation by petition or otherwise. It was in passing upon the second question that the court ruled that the attempt to raise for the first time a federal question in such a petition, after judgment, was too late. But in dealing with the other question the court said:
"It Is plainly manifest that neither the pleadings nor the instructions given and refused present any federal question, and an examination of the opinion of the supreme court affirming the action of the trial court as to instructions given, as well as its refusal to give Instructions asked by the defendants below, fails to disclose the presence of any federal question. It does not appear from the record that any right, privilege, or immunity under the constitution or laws of the United States was specially set up or claimed by the defendant below, or that any such right was denied them, or was even passed upon by the supreme court of the state; nor does It appear, from anything disclosed In the record. that the necessary effect in law of the judgment was the denial of any right claimed under the laws of the United States. The decision of the supreme court of Colorado in no way brought into question the validity, or even construction, of any federal statute, and it did not deny to the plaintiffs In error any right arising out of the construction of the federal statutes."
In 80 ruling upon that question the court had under consideration the very question which is before us in the case at bar, namely, whether the fact that a case arises under section 2326 presents, of itself, a question of the construction of a law of congress. The court expressly held that the pleadings suggested no federal question. The pleadings in that case contained the necessary averments and issues to determine the rights of the contesting claimants under section 2326. It so distinctly appears from the opinion. In that respect the case is identical with the case before us. In the present case there is no suggestion of a federal question, unless it be in the fact that the pleadings raise an issue under section 2326. The other questions which the record contains are similar to those which were submitted to the jury in Bushnell v. Smelting Co. The language above quoted from the opinion in that case applies with equal propriety to the case at bar. I find no allegation in the bill in the present case which suggests that a question arises under a federal statute, or that the right of either party to the suit will depend upon the interpretation to be given to such a statute. If there was no federal question in the case of Bushnell v. Smelting Co., there is none in this. The decisions in that case and in other recent cases in the supreme court have established the doctrine that the United States circuit courts cannot entertain jurisdiction of a cause upon the ground that it presents a question of a federal nature unless· it
clearly' from. the averments of the complaint or the declaration th!it'in the progress of the trial, and preliminary to an adjudication, the right of the one or the other of the parties to the controversy will depend upon the construction to be given by the court to some provision 'of the constitution, laws, or treaties of the United States. Metcalf v. Watertown, 128 U. S. 586, 9 Sup. Ct. 173; Mining Co. v. Turck,150 U. S. 138, 14 Sup. Ct. 35; Tennessee v. Union & Planters'Bank, 152 U. S. 454, 14 Sup. Ct. 654; Chappell v. Waterworth,.15'5 U.S. 102, 15 Sup.Ct. 34. The cases of Jackson v. Roby and Chambers v. Harrington, cited in the opinion of the majority of the court, are not in conflict with the foregoing views of the purport and effect of the decision in Bushnell v. Smelting Co. In Jackson v. Roby no question of the jurisdiction was raised, and it may be assumed that the case was one Of which the court had cognizance, either upon the ground of the diverse citizenship of the parties, or the federal question suggested by the pleadings. The case of Chambers v. Harrington was in the supreme court upon appeal from a territorialsupreme court, and hence no question of the jurisdiction could arise. The language of the court in that case, "And as the very essence of. the trial is to determine rights by a regular procedure in such court, after the nsnalmethods, which rights are dependent on the laws of the United States, we see no reasonwhy, if the amount in controversy is sufficient in a case tried in a court of the United States, or the proper case is made on a writ of error to a state court, the judgment may not be bronghtto this court for review, as in other similar cases," is not with the view that,in order that the case made' shall be one of federal cognizance, the jurisdiction must be made to appear by a proper averment pointing to the statute Wljich the court shall be called upon to construe. And if, indeed, any expressi0J;l of the court found in the language so quoted can be construed as 'countenancing a"different doctrine, it is. certainly dis· credited by the later decisions'of the supreme court to which reference has b.een lluideabove. '
BURDEN CENTRAL SUGAR-REFINING co. v. FERRIS, $UGAR-MFG. CO., LImited, al. ','"j , : -,
(Circuit Court of Appeals, FIfth Circuit.
COUNSEl, FEES'-SUIT AGAINST INSOLVI!;NT CORPORATroNS-PAYMENT FROM GEN-
The for, a creditor commenced a suit against an insolvent corporation, in its beh;l1f, and. in behalf of all other creditors who might intervene and contribute to the ex,pense, and procured the appointment of a receiver.Subseauently' they carrIed on other lltigation in the name of theIr client, but 'to the benefit of the creditors. Held, that they were tIed to compenlla,tIon out of the general fund for the services rendered after, as well as those rendered before, the appointment of the receiver.
ERU F U N D . ' : ' ,
Appeal from the Circuit Court of the United States for the Eastern District of Louisiana.