BI.ACK V. BLACK.
98.5
ministration of this estate, the way was open to them by proper iWtion in the state courts. Having neglected to avail themselves of the proper remedy, they cannot complain in this court of the results the delay, for which they are partly responsible. In fa<lt it may be said generally of the attack made upon the proceedings eonnected with the settlement of the estate now in question that· it is largely based upon matters which were entirely withi.I1 the control and discretion of the probate court in 'the first instance. It appears more than possible that many of the criticisms made upon the action of the administrators have good foundation, and if exception had been taken thereto at the proper time, and in the proper court, much that is now complained of might have 'been avoided. We agree in general with the views advanced by counsel touching the evil of allowing estates to remain open withont good reason, and in condemning the absorption of the property of estates in useless expenditures and .liberal allowances for commissions and the like; but the remedy for such evils does not lie in encouraging the parties interested in the estate to remain inactive for years, and then, when the estate has been finally wound up by the probate court, to maintain a bill in equity against the administrator and his sureties, which in effect oDly proposes to reinvestigate and resettle the accounts of the administrator, which have already been passed upon and approved by the court primarily charged with that duty. The remedy for these evils, as is pointed out by the supreme court of Arkansas. consists In the exercise of diligence and watchfulness on the part of those interested in the estate, whereby all mistakes or wrongs can be promptly righted, and an effectual remedy be provided against the recurrence thereof in the future. Under the facts developed in the evidence in this case, we find no suffichmt ground· calling for the interposition of a court of equity in setting aside the order of the probate court discharging the administrator and his sureties from further liability and in undertaking to restate the accounts passed upon by that court. The decree of the drcuit court. dismissing the bill on the merits, is therefore affirmed, at costs of appellants.
If the complainants herein desired to bring about a more prompt ad-
or
BLACK v. BLACK. (Circuit Court, E. D. Pennsylvania. February 2, 1893.) No. 191WRIT 011' ERROR-BOND-CORPORATION AS SURETY.
A corporation will not be accepted as surety on a writ of error to the United States supreme court when there is fair ground to question whether power to bind itself by such a contract is conferred by the acts under which it is incorporated.
At Law. Action by Mary K. L. Black, against Mary M. Black, administratrix of the estate of Edgar N. Black, deceased. Heard on application for the approval of the surety on a writ of error. Denied.
986 ! ,-:,' (:. ':.':;jl; ,: :,: :;'
ftDER+L REPORTER,
vol 53.
fqJ: applioll.tl9D.' _ __: __ I
;""f;,,;'
,
DALI.!AS,.ciroujtJ)ldge..,. The has offered the Solicitors': L9an It .TrustCompjtJ;lY, or, lUI' it named in the of,tb,estate ()t :fennsylvania, the "SolicitgfS'Company," aa' surety upon writ of ·eilrpr.f,o the ,supreme courtof.the·l]Iltted States. The tiona. ;Withe cOrpQl'jttiou;so. surl3ty, in substance, to an . avel'lll,ent ,thl:lit' said' con>oration· ,authority tobeeomeliuch Oounselfor parties have coul'thas also had the benefit .of an been fully! heard, able ,presentation of $e, the counsel for the corporation in question, .insnp;port of i1;$' ,liloSserte4, power andjtuthority. t() become surety on a b.ondsuch8B is now .conside;ration.,. The power and be derived from and granted by an act of tlle i J{enel'llJassembly of the entitled "AnMtto: for the jncorpora.tion and regulation of certain 6orpoN-tionst,approvedApril 29, 1S74, and the supplements theretol :under which this corporation was created; and also from and by acel'tain otherstatute of the same state, entitled "An act supplementarY' before.mentioned, etc., approved the 9th day of May, 1889, (p·. L. 159.) , For the plaintiff it is contended:-First, that the power and authority in question are clearly not conferred by the act of 1874; and, .second, that, though it is admitted that the act of 1889 does in terms give "the power and right" "to. become security upon any writ ,of erroro;J.' appeal, or in any proQeeding instituted in any court of this commonwealth in. wl::lich security may be required," the'last-mentioned act cannot avail to entitle thiseorporation to be 'approved as surety in this case, because it has nqt been, in any manner or formwhate:ver, accepted by the stockholders of the cor.pomtion. . Exceptions to the sufficiency of aeol'Poration tendered as surety maybe founded upon either or both of two distinct grounds,-that it is noto! pecunia.ry responsibility such as to warrant its approval, or that it is not possessed of lawful power to bind itself in the manner proposed. The first ground is not asserted, but in fact is wholly disclaimed. It therefore need not be, and is not, considered. The only questio.n and to be passed upon is that which relates to the ground second above mentioned; and I may say, in passing, that in deterinirting it no other matters; such as whether the writ of error, even upon approvalof security, would or would not operate as a supersedeas, although discussed at bar, will be to any extent considered. . , An affidavit of 'the secretary of the Solicitors'. Loan & Trust Compa1ly has been submitted, and will be filed herewith, from which it appears that said company is accepted as surety inseve:ral of' the courts of this court disclose of. the state of Pennsylvania,and tb.e that it has been twice aceeptedhere. It does not appear, however, that the powt .now has, ever bee:n.. determined by, or even stJ.ggested to, any Pennsylvania court,and it is plain beyond question
the
BLACK
v. 'BLAcK.
987
that it has never, until now, been brought to the attention of this court. In the inM:anoo mentioned in the a,ffida;M.t' 'of the secretary the bond was filed i:p.,the. clerk's office wjthoutev;,en formal action by the court or any judge thereof. In the other case (Earnshaw v. McHose, Oct. Sess. 1890, No. 63) the written memorandum of counsel for, the opposing part;y was indorsed upou·the bond,. ''Security satisfactory,," and this was signed by said counsel. Thereupon thesecurify (on error) was formally "approved" by a judge of the court, but, mauifestly,· solely with reference to the prior approval of counsel. and cannot, therefore, be considered as a precedent. I am compelled"accordingly, to view this question as one of first impression, ·so far as this court is concerned; but I cannot disregard the fact that probably, and as stated by counsel, many such bonds have been approved by other tribunals, and, at least in one instance, by this court, and are now outstanding. The effect of a positive decision adverse to the right claimed might be to unsettle, or to raise a doubt with respect to, other transactions, the parties to which are not before the court. I therefore decline to pronounce judgment as to the existence or nonexistence of the power of this. compa.ny. to become surety as proposed. It is not, I think, necessary that 1 should do so, The present application may be disposed of. and rightly, as I think, without the determination of that matter. If the. objection to. the proposed surety were based-as it is notupon an averment of its financial irresponsibility, it might be rejected without thatit is, or is likely to become, insolvent; a reasonable doubt of its sufficiency to adequately secure the plaintiff would be enough. So, here, I need only say that the plaintiff has satisfied me that there is fair ground for questioning the power of this company to bind itself as proposed, and that I think a bondsman should be tendered, where demanded, as to whom no such question can reasonably be I have not overlooked the facts that the act of 1889 contains a provision for certification of its acceptance by the directors of the company, and that this certification was made; but in my opinion the question to which I have referred is not removed by these facts. A question-a substantial question-still remains; and that. as I have said, requires the withholding of my approval. There is. too, at least room to doubt whether the power conferred, in terms, by the act of 1889, "to become security upon any writ of error or appeal," extends to cases in this court. The language, "any court of this commonwealth," may be understood to restrict the power to cases in the courts of Pennsylvania. This subject, however, was not discussed by counsel, and I express no opinion with respect to it. The motion to approve surety·is denied.
988
FEDERAL REI'ORTER I
vol. 53.
BIDGELY v. OONEWAGO IRON CO. (Circuit Oourt, E.
D.
Pennsylvania. January 31, 1893.) No.· 22.
limBs AND lIururq.-:...LEASlll-CONS'l'BUOTION-ROYALTY. . A mining lease the lessee to mine 4.000 tons ,of ore annually, and to pay therefor a fixed sum ton, or, falling to take out such quantity, to pay therefor, bIiposes ,no obligation on the lessee to pay for such stipulated quantity after the ore in the demised premises has become exhausted.
At Law. Action by Margaretta S. Ridgely against the Conewago Iron Company for breach of a mining lease. Rule for judgment for want of a sufficient affidavit of defense. Discharged. S.S. and HenryN. Paul, for rule. H. M. North, for defendant. DALLAS, Circuit Judgoe. This aetion is brought by the lessor against the leSl!lee, upon a lease ullder seal, dated December 24, 1885, ot"the exclusive right to' mine iron ore" on a tract of land in the state of Maryland for the term of ten years. The lease contains this covenant: "'l'he paN of second part [1M, l,essee] agrees to PllrY tl,fty-five cents per ton. for every ton of 2,240 pounds of ore. mined and taken away under this lease, accounts :to be rendered and payinents to be made monthly, on the 15th day of each month; and the party ot the second part agrees andguarantles to take out at least 4,000 ,tons per YelLr,or, failiD,g to, take out that quantity', t() pay. for the sa)1le, with the undeflltanqing, however" thllt if, in anyone Yeal', the party of .the second part shall,have paid fOr nioreore. than it haS tiiltE!ll out dUring that year, it shall lulve the privilege of making up the amount in any subsequent year of this lease." '
'The breach assigned is that, during the five yel'\>rs last past, the defendant has failed to take out and pay for l'\>t least 4,000 tons of irQn ore per year. The affidavit admits this, but aver!J that the dehas, taken out and paid for all the orewhicb. was in the deJ1lised premises, and that by reason of its exhaustion it has not been possible, during the said five years, to take out any greater quantity than has in fact been taken out and fully paid for. .Mining leases commonly include, in addition to the usual undertaking to pay for what may be actually mined, a covenant that some fbwdor ascertainable s,um, at least, shall be annually paid. These C9venants are not all the same, or to. the same effect. They may be divided into two classes: First, those,which the payment of rent irrespective of produce; second, those which require that, upon failure to take out a stipulated quantity, royalty with respect thereto shall nevertheless be paid. Where the covenant is of the first class the tenant is liable for the rent, even if nothing could be got by mining. Marquis of Bute v. Thompson, 13 !fees. & W. 487; Phillips v. Jones, 9 Sim. 519; Jervis v. Tomkinson, 1 Hurl. & N. 195; Bamford v. Lehigh Co., 33 Fed. Rep. 677. Where the covenant is of the second class his obligation is to pay for the stipulated quantity,
