The view reached makes it unnecessary to consider whether, if the allegations of the bill were sustained by tbe evidence, the complainants would be entitled to any relief in the present action, whether they are not concluded by the decree of the circuit court of the city of Richmond confirming the resale, and whether they have any remedy, ,not hllving sought it at the hands o.fthat court. WheJ;l they became purchasers at the original sale they submitted themselves to the jurisdiction of that court in the foreclosure suit as to all matters connected with such sale, or relating to them in the character of purchasers. Casamajor v. Strode, 1 Sim. & S. 381; Requa v. Rea, 2 Paige, 339; Blossom v. Railroad qo., 1 Wall. 655; Minnesota 00. v. St. Paul Co., 2 Wall. 609. They acquired a sufficient stat'us to enable them to apply to that court to vacate the re':' sale. The cases are exceptional in which an original suit should be sanctioned by a party to a ·foreclosure suit to set aside a sale under a decree, where relief could have been obtained by a summary application totbe court in the suit. Ordinarily that is the only court which is competent to protect all parties interested in the sale, because generally that can only be done by ordering a resale upon condition looking to the pro-: tectiouofall. BrOW'l'/,v· .FrOBt, 10 Paige, 243. I Where the circumstances are such that the purchaser becomes a trustee ex ma1eficio; s\.1ch'suits have been allowed. Cocks v. Izard, 7 Wall. 559;R'ibonv. Railroad Cos.',' 16 Wall. 446. In the present case the purchasers are not parties to the suit; neither are the plaintiffs in the foreclosure suit; and could, not be determined in their absence upon any theory of relief. They are certainly entitled, as well as those who purchased from them, to be heard before thelsnle could be vacated. The delay which has intervened be-: fore filing the ,present bill (a period of six years) is not exphiined, and probably cannot be, because those associated with Best were aware of what took place at the resale when the order confirming it was made; and, in the,absence of such explanation, the laches of complainants pre-' elude them from asking to have the resale set aside as fraudulent.' Bar.;. wood v. Bailroad Co.,.17 Wall. 78. Moreover it would not be equity to decree against the special commissioners, deducting 886,000 from the amount due on the bonds, and tbus deprive the bondholders not represented by Oakman and Bates of their share, when neither the sioners nor these bondholders have been participants in a wrong in any' way. The motion is denied. '
DDEBALBEPOBTER
vol. 40.
LEE
et al.
11. TERBELL
fctrcuoft
Court, S. D. New York.
October 5. 1889.'
AOTION-WHO :MAY lLuNTAIN.
Special commissioners, appointed by a state court to sell mortgaged premises UDder foreclosure, and authorized to 'receive purohase-money bonds in part payment thereof, can maintain an action in the federal circuit court sitting in another state upon such bonds executed to them in their offioial capacity, without ancillary appointmellt in that state.
At Law. On motion for new trial. For opinion on demurrer to complaint, see 33 Fed. Rep. 850. John T. llifa$01Ii and H. O. (!loughtm, for plaintiffs. Joseph H. Ohouie and John Winslow, for defendants.
J. The only question which it seems necessary to consider this motion for I,l new trial is whether the plaintiffs, 8sspecial comappoiutedby the circuit the city of Richmond, Va., to sell mortgaged premises undel;' a decree in a mortgage foreclosure suit, to receive the bonds of the purchaser in part payment, can action in this GOUrt upon the bonds given to them as such commlilsioners. The promise by the defendants, in the bonds, is to the plaintiffs" as special commissioners in the cause," etc. The general rule is familiar that a suit in 'another state cannot be maintained by persop.,s coming en. autre droit under the appointment of foreign laws, unless their appointments are repeated under the laws of the state they sue. But where, 8,S here, the contract sought to be enforced is made directly to the persons who sue, although they are described in their official characters, it would seem that the suit can be prought by such persons in a foreign jurisdiction in their own names, witllout the addition of their official character,and that the desr.riptioperl/Wllie may qe rejected as mere surplusage. Buffum v. Ohadwick. 8 Mass. 103; Kq,ne,,'v. Pam, 14 Pet. 33. However this may be, the plaintiffs can sue hereupon the promise lUlldeto them, just as a foreign executor could sue in such a case without An ancillary .appointment here. Talr 'qI-age v. Chapel, 16 Mass. 71; La:wrrmce v. Lawrence, 3 Barb. Ch. 74; John801liv. Wallis, 112 N. Y. 230, 19 N. E. Rep. 653.; Barton v. Higgin8; 41 Md. 539; Barrett v. Barrett, 8 Me. 346. The case of Wilkins01li v. Culver, 23 Blatchf. 416,25 Fed. Rep. 639, fully sustains the right of the plaintiffs to sue here. The motion for a new trial is denied. WALT,ACE,
·
\
X'NBILL II. TOWN
or
ANDES.
-, McNEILL '11. TOWN OF ANDES. (Oircuit Oou'rt,·N. D.
Ne:w
York.
October 9,1889.)
1.
PRAOTICE IN CIVIL CASES-STIPULA.TIONS.
t. B.
The parties en,tered into a stipulation to stay proceedings until the decision of an appeal in a test case, as follows: "The plaintiff stipulates and agrees that if upon said appeal the bonds or coupons in controversy therein are held to be void, or for any reason shall be ,held not to the valid obligations of said town, then that this action shall be forthwith dismissed, with costs. And the defendant stipulates and agrees that unless such decision is rendered, then that defendant's "nRwer shall after the decision of said appeal, be stricken out, and that the plaintiff shall have judgment as demanded." The appeal was decided, not on its merits, and without reference to the validity of the bonds. Hew" that defendant could not be relieved on the,ground that the action of the appellate court was not in the,contemplation of ,the parties when the stipulation was signl1d.
SAME-WAIVER OF DEFENSES.
Defenses not reserved by the stipulation are thereby waived, though they are· not J?resented by the recprd in the test case. . . Newly-discovered defenses,which would not be sililicient cause for a new'trial, will not justify .relief. .' , , , . .
SAME-NEWLy-DISCOVERED DEFENSES.
On application to be reliev/:ld of 1888 the defendant made motion/or a, of pending ,the decision of the supreme"court 'in; the case of Slauson against this defendant, involving suQstantiaJJ.y the same questions. .An order wl:l.s.entered· grl:l.nting the ulOtioo,on condition that the would file a· stipulation, ,within 10 days .from the date of tp.;e order, this cause should abide the result in tile Supreme court.. In default of such stipulatlon the cause was to proceEii in the usual On the 30th of October' th 13 parties, after due deliberation and consultation, entered into a stipulation, the important Pllrt of which is as follows: "Stipulated, that all proceedings herein shall be stayed until the determination of the appeal now pending in the Unit,ed of the town of A.ndes. plaintiff in error, against Albert Slauson, in consideration of the following: The plaintiff stipulates and agrees that if upon said appeal the bonds,or coupons in controversy therein are held to be void, or for any reason shall be held not to be the valid obligations of said town, then that this action shall be forthwith dismissed, with costs. And the defendant stipUlates and agrees that. unless such decision is rendered, then that defendant's answer shall forthwith. after the decision of said appeal, be stricken out, and that the plaintiff shall have jUdgment as demanded." But for this stipulation, and the stay obtained .by virtuetherel)f;;;the plaintiff could have obtained judgment at the November term, 1888, as the law, so far as this court is concerned, was settled beyond dispute in the Slauson Case. In;Apri.l, 1'8&9,thesuprenle courtaffinned the judgment in th,at case for the reasons stated in the opin'on. 13Q U: S.435, :9 Sup. Ct. Rep. 573. It was not a decision upon the merits. The de.fendant now asks to be relieved from the stipulation, for the reason that the action of the suprernecourt could not havl;lbeen anticipated" and was not in the parties WIlen the stipulation was signed. -;,' , . ',,'! J. B.; Gleason, I".
At Law. In
W. H. Johnson, for defendant· . -' J
I if;
,,11' ,
.' r
COXE, J., abO'qe.). I l}ot ho,! court can properly mterfere to reheve tbe defendant. The sbpulatl9n IS very broad. Its terms are unmistakablE}. .The agreement .was that, if the were fOtitt1J. teasollheld be void by the supreme court, the . suitsnoUld be 'On the other hand, if the supreme .court did not deci<ie tha.tthe bonds .were void; the plaintiff was to have judgIneIl,tforth,wltb. To entitle the.. plaintifftojudgment; .nothing was 'required but ideeision'of court which did not invalidate The deCision reudered;. or a decision dismissing the writ of error foHack of'jurisdiction, brfor defects in the recor<l; was just as much within the stipulation as an 'affimlance on the Thecourt 'appreciatesthe:dilemmaof the defendant, and would afford relief if it could be done with justice to theplaintiffj but the,lj).tter has acted .in.good faith, l'l::llyingupon:the'temis oUhe The parties cannot be relegated to the position in which they were when the stipulation was entered into. TbElplaiJ;1tiffbas parted with valuable rights. At any of-the fOUf termslost.'b}t'irteans of the staytM plaintiff could 'h'afeoo¥ned .afitinl tbe:recoveryatid interes'twUlbe to enaole: the defendant to carry the cause to the 'suprernecourt·, witlhhe conse<l'jleht'4elay. ..' . f , ' , ,Other'reasons are' urged whyithe' relief should be granted, which may be divided into two classel!C.;.thoserelating to alleged: matters of defense 'hot ptesented bythe recordin'tbe'SlaU8on Case, andtboae basednpon defenses:. J{l:lttfthe' former, being 'within theknowledger (if the p$rtfesa,t the tiifre;'and not. reserved, they clearly waive'd 'Hythe stipJllation.'The SUpreme court could not pO'dsib:y have th:erh.. , As tcithe)at!et, I them as.if prea mot,loll for and see uo .rea Sal} to Ilet asIde the : HIl<\ they on the, tna), .qfthe, Sla'U8O'l1 0Qae the result;would hll;ve, been. the same. The·motion ja,deuied.
BANltl1. ARMSTRONG,
,, I):'
,i,' ;
'. {! l'.,
;1' ' " , ' Oourt, B.D.
' : pleaders.)
NAT.
lJANK i'.
et al., Inter-
1 1i;. D.. Oeto):HIr> 4,lSSl/;)
',Z.' N
, ,
I
:I
PflY BlIInkl 1J1l1l1l:.. ,It waatb,e . pracw,e;of .the F. a.allk,in witl\ claimant, to tpe latter on the of r6'Cllt'pt'foralt drafts; Oheckli!,et<l.; lJ6nt for collection, tlillitWerepayable at
F. notified claimant that it had been credited, "subject to payment;" but the credit was not drawn against1 nor were made, kept a memorandum 01 its transmlSSlon for colleotlon. The F. sent the draft. to ita
FlF,:rH, .:"
"
BANK V. ARMSTl\ONG· 0'" .
, reserye agent, in,!lorsed for and the amo)lDt of it was counted :01 the :Bt.'sreserve fund, thougl:1 thls fact was not known to olaimant. Held. that, ,the ind()rsllmentbeing the F. acquired no title to it; and that upon the insolvency of the F., beforil :IlotUl.cation of the collection of the draft, the claimant agent. ' . WaBentitled to the proceedi ot iHn tl:1e handa of the
At Law. This ill a controversy between the defendants concerning .the ownership of a certain fund now in the custody of the complainant. The case 'is to be decided with reference to the following facts:, On June 6,J887, · the Farmers' National Bank of Portsmouth, Ohio, sent tothe Fidelity , National Bank a sight draft, in the usual form', drawn by Samuel J. 'Huston on Thomas Shelby, of Lexington, Mo., in the sum of $4,100. ''The draft was indorsed as, follows:. "Pay Fidelity National BankofCincinnati, Ohio, or order, 'for collection for Farmers' National Portsrpouth, Ohio. J. M, WALL, Cashier/' ·qn June 11. the 'Augusta National Banko(Staunton, Fidelity, :papk a similar draft for $1;216, drawn on Henry Rohr, St. Johns, Kan., which ,was indorsed in the llame form as last described. .Both .of tbese,drafts forwarded by the:Fidelity Bank to Mo., for its account; and tbe,latter barikprQqeeded · to collect tpe same thrQugh. bordinate agtrnciell"and was not,ifit¥!,9fthe 23d, : payrilet\t. tnereof ']3l1nk was fromo,nd after June was tlle ,cbmptroller of the Cl1rrency M. , June 21, put intoliquida:Hon. : and Staullt,<;>O banIql claimed tpe.pro;ceedsof the respective d,rafts, fouI,ld, iQ.the lJ,anqs, of the FiftJ1:Natipnal 'Bank, aq.d the latter bank .filed ita of on A l1gust 9, · It was the uniform practice of the Fidelity Bwk'. in itsde!\1ingswith batik" to wve :the. the day of for 'all checks, arllfts, etc., to It forcollecbon, that were' at " sight or on demand; and the balance created, 'Vas subject, ,t()-bl! dr,al'\'n upon by the Portsmouth bank.' The also paid at 21 per .cent. p'er. annum', on, the dailybal!l:nces Jill favor of · Inouthb'ank,arising if paper forwarded for poJ'leptioD, and credited asaJoresaid,was nO,1; paW,it wasthil invariable , custi:>.mtocparge the sameblj,cl,t against tlip accouJIt of the '.bank. 'The' method. described was well known. to the Pdrtsmouth ba.nk, and ,was assented toby it·. :The ShelqY;.d.Ji8.ft ,was 'credited bY the Fidelit'Y13anlt to the Portsinouthbank, . in cc;mJorIDity with the practicein questio,n. Notice Was given by mail :drltft 'liadbeen "subjecttp pll.ymentj" b,ut the was riqtdra,wu 'against bythePortstpo,l1th'qitnk, nor were any, a4vancesznade 9U.tbe 'strength thei-e9f,. and iIi ',ppint fact the Bimk closed, jts, PQOfS ,before that the draft was paid. '.The Portsmouth bank the Fidelity, but lDerely kept 'bmllWodid 'ri'ot, .,tandumof th,e"transmission of the same to the latter bank foJ:· CQU,eqtioll, by 'the'drawer tha,t}t would 'paid ·.
.
'lI: