EMM.oXS ·V.UNITED STATES.
vised Statutes of the United States permits ,the amendment by the court of any process returnable to or before it when the defect has not prejudiced, and the amendment will not injure, the party against whom such process issues. If there be no summons, 0r if the summons misleads, or tends to mislead, the defendant, or to put him oft' .his guard, or if the amendment works a surprise upon him, or'if there he nothing in the record to amend by, the amendment should not be allowed. Such are the cases quoted by counsel for defendant: Dwight v. Merritt,4 Fed. Rep. the summons had not the seltl of the court, nor the signature of the clerk, and so was not in fact ,a sumrntms; Braum v. Pond,S Fed. 'Rep. 34; U. S. Rose, 14 Fed. Rep. 681-\vhere the summons issued for the recovery of a penalty did not have upon it indorsed the statute imposing the pen:Hty, as is required in the New Yorkprllctice, and there was no complaint served with the SUmmons explaining it. In.,the:case. now before us, the summons admitted inthe motion to be a of the court andispropeliIy tested. Itealls atsummoDshas tentionto the terms of the complaint filed with and attached to it. It requires an answer thereto, specifying the time andr place for the serVice of such answer·. So ·thedelendant is in n() wise misled or surprised. He knows exactly the nature of the wrong with which he is charged. He cannot have been misled or injured by theerroneous assertion that, on his failure to answer, judgment would be taken'against him. Nor can· the amendment injure him: whereby, this is chw'lgedinto the assertion that, in such event, application will be made to the court for the relief sought·. Had he been served with nsiimmons only, the case would have been different. But the complaint, a part of the record, served simul..; taneouslywitb ,the· summons, not only- gave . him clear notice, but also furnishes ,something by which the sllmmonscanbe'amended; Randolph v. Ba.rrett, 16 Pet. 141. This a mendment, ,beingallow.ed pending a cause, requires no notice. Leave is granted to plaintiff to amend the summons as indicated. See Semmee v. U. 8.,91U. S. 24; Pilton v. Oojield,.93 U. S·. 164.
v.
EmlONB 17. UNITED STATES.
courc, D. Oregon. November II, 1891.) ABBIGNBlI.. States may Buethereon in his own name. (StillabU8 bJlthe Court.) Ullder the act of 1887. (24 St. 606,). the assignee of a.cUllm against the United
.
AtLal\'.·. , Mr: Zera Snow, ror plaintiff. Mr. FranklinP·. MayuDdMr. Charles E.Locfcwood, for the United States. , I · ·
J.. This Mtion is brought to recover ;QEAD\",
the
30;, l889. It ntO r ..-.
44
FEPERAL REPORTER,
vol. 48.
,
gon City:as,purchase price and fees on three several entries of timber land under the act of June 3, 1878. In the amended petition it is alleged that the parties making these entries believed at the time that the lands were unfit for cultivation, and chiefly valuable for timber; that afterwards the commillsioner of the generalland-ofitioeset aside and canceled said entries on the ground that said lands, or the major part of them" were fit for cultivation when the timber was removed, and restored them to the public domain; and that subsequent to said cancellation the final certificates issued to the purchasers in said entries, and the elaimstbereon arising against the United States were duly assigned to the plaintiff, who' now holds the
same.
: There is a prayer for judgment, coupled with an offer to surrender the certiti.cntes as the court may dirElct. The cauSe was. heard before the district judge for Washington on a demurrer! the petition, who, on April 18; 1890. sustained the demurrer OJ;l' the, 'ground that,iwhile the· United States is liable in an action bytheentt:y.,.$an, an assignee cannot: maintai.n the same; and, further, that the, petition should show a.surrender of the. certificates, or account fot . The . pll1intitr had leave to 'amend his petition in regard to the surrenqar of tbe oer.1;ificates, whicb he did on May 8, 1890; and on the same day filed a .petition for. rehearing on the' question of. the right of the assignee to sue. The; petition was granted, and thecatise heard on a demurrer to the atl1ended petition. Section.l,of,rt,he act of 1853 (lOSt. 170) provides "that all transfers and \assignments" thereafter made of any claim' against the United States shalli!be.null· and:void, unless made after ,the allowance of the same and the issue of. a. warrant for the payment thereof. court of claims wasestnblished in 1855. 10 St. 612. The act was silent on the right of an assignee of a claim to sue thereon. In 1877 the supreme court, in U. S. v. Gillis, 95 U. S. 407, held that the act of 1853 applied to suits in the court of claims, and this ruling has been adhered to. On March 3, 1887, an act was passed.{24 St; 505) enlarging the jurisdiction of the court of claims, and. giving the circuit and district courts concurrent ju:risdietiontnerewith'; within certain amounts. Section 1 of this act defines the jurisdiction to be of all claims arising itf It certain manner, "in respect of which claims tpe party would. be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable." The right' of an assignee to sue has not been passed upon by: the supreme court since the passage of this act. .:'. . ,:Tbe:Hght;toaue the United' State'stin respect aD 'which it is liable, under the act of 1887, either in a court of law, equity, or admiraltY',alfif'it were "suable" generally,-alI a private person,':certainly includes the assignee of such claim.
FINANCE CO. OF PENNSYLVANIA V. CHAR.J,ESTON, C.
&;
C. R.
co.
4:5
The assignee of a claim the United States is the" party" to whom the claim belongs. He owns it; and, being such owner, he is entitled,in my judgment; to redress against the United States, as if it "'vere suable," not by the assignor or original holder alone, but generally, as if the United States were a private person. The court is as competent to deal with the claJm in the hands of the assignee as in those of the assignor. Proof of the assignment is the only additional circumstance in the case, and that is a very simple matter. U. S. v. Jones, 131 U. S. 1, 9 Sup. Ct. Rep. 669, was a suit under the, act of 1887 by an assigne'e. The objection was not made in that case, and it appears to have been taken for granted, that the assignee could maintain the suit if the assignor could. 'Sooner or later this question must be decided by the supreme court, and itmay as well be in this case as any other. My impressionis that under the act of 1887 the assignee may sue the United States, in' respect to the claims mentioned therein, ad if it were a priva1irperson, and I will give judgment '. ,
FINANCE, Co.
et al. v.
R.
In re HaT. (Oircutt'Oourt. ,D. South Oarolina. ATTORNBY'S LIEN-MISUSlll
1891.)
o:r PUBRB-RIGllT 01' INSPEOTION· .t\.!l in possessiqu of papers of _ railroad COlIlpallY Upon which he bas a a lien for legal services cannot be compelled to perJ;llit an inspection ,thereof by the company's attorney. or to deliver them up to the court, upon a suggestion that he ; is now, retained by persons bringing suits against the comJ!any upon canses ot· action' arising out of transactions with which he was profeSSlOn!¥ly while counsel 'for the company, and that his possesBion ,of the. papers would an undue, when no particular suits are spet;l1!ed, li'ud the attorney denies that he is any liction to which the papers in his possession relate either directly or indireotly. " .
At Law. In. the matter of the. suggestion of counsel for D.H. Chamberlain, receiver, against James F. Hart, Esq. A. T. Smythe, for re.ceiver. . O. E, Spencer, for respondent. James F. Hart, Esq.,wasfor many months generalat, tomey for the Charleston, Cincinnati & Chicago Railroad Company.: His oonnectionwith the company in this capacity ceased 30th J une;l89L At the- time .:he'so ceased to be its attorney he had in his hands' papers belonging to it, obtained 'by him in his daims a lien upon until his arrears of salary, amounting to several thoufland dollars, have been paid. The present proceeding is based. upon the statements that the said James F. Hart is the attorney for persons