812
FEDERAL R;J!)PORTER,
vol. 54.
rtrl!
that we' naturally look to the action ofa sovereign a more scrupulous regard to justice and a,bjgl!,er,morality than belong to the ordinary transactions of indio viduals. if, it ,be true that the matters involved in this suit were investigated, 'as set forth in the answer, and the patents were thereafter and the .defendants, assuming that such action was a final of the question of title, and relying on the same, made tile e;penditures they claim to have made, the government should estopped from enforcing the forfeiture, The supreme court, in reversi:n,g the decree in· this case, and remanding the cause, expressly refrained from deciding the que!!tions involved in the controversy, but,reversed the case, that its merits might be investigated; and I hold it ,to be in harmony with the construction thus given by the pfQvisions of the act of March 2,,1889, as well a-sconformable to the general principles of equity that should govern tp.e a-nd all similar cases, to allow the defendants the benefit of,aU ihe, defenses here pleaded.' .The exceptioWl will be denied.
'FITZSIMMONS et al. v. UNITED STA.TES. (Oircult Court of Fifth Circuit. February 27, 1893.) No. 68. 1. APPEAL-REVIEW-RULINGS ON MOTION FOR NEW TRIM,. 2.. UNITED' STATES l{ARSHALs-':'AccmJNTING-CREDITS.
The optnl.6D· and rulings of a trial judge on motion for a new trial are not subject to review by the circuit court of appeals.
A United States maxs1lal, in his character of disbursing officer of the governmE'int, is not elltltled, as between himself and the government, to credit for unpaid disbursements,. or for services rendered and fees earned by his depUties, unless he· has paid for the same.
8.' SAME-ACTION ON BOND-SET-OFF-,MONEY DUE DEPUTIES. In an action on the official bond of a United States marshal to recover moneys due the United' States, moneys alleged to be due by the United States to, the marshal's deputies be allowed as a set-off when there is ..no showing as to the character of the services for which credit is '. or whether any return thereof, duly verifled, with details, was ever made, as required by Rev. St. § 833, or that the same had ever been '; subInittedto the treasury department to be audited and allowed inaccordance with section 841.
In Error to the Circuit Court of the United States for the Northern DistIiet of Georgia: ,At La",. Action by .the United States against Owen P. Fitzsimmons andtb,esureties. on his official bond as United States marshal:.. V':erdic.t fl.nd judgment for plaintiff, and new trial denied. :QeMnda:p.t&appeal. .M;qdified and affirmed. to auditor's report, see 50 Fed. Rep. 381. '. '. ' . "Sta,tkinentby PARDEE, Circuit Judge: ,; ..... , '".:
,;'
"
.
-.
FITZSIMMONS
v.
UNITED STATES.
813
The case is fully stated In the following extract from the bUl of exceptions taken on the trial of the case: . "Be it remembered that heretofore, In the circuit court of the United States for the northern district of Georgia, on the 12th day of May, 1890, before his honor, William T. Newman, presiding, there came on to be heard a certain case in said court pending, to wit, the United States, as plaintiff, v. Owen P. Fitzsimmons, former marshal, etc., William A. Hemphill, Evan P. Howell, Clark Howell, Sr., Albert Howell, Patrick Walsh, Robert H. May, James M. Smith, and Alexander R. Lawton, as defendants; the same being an action for debt on bond, viz. the official bond of said defendant Fitzsimmons, former marshal of the state of Georgia, and the other defendants as his sureties; and the caSl\ was heard accordingly in said court before said judge and jury. Before that time the said cause had been referred to William R. Hammond, as auditor, and his report and amended report were approved by the court, of tile in the cause, and was read in the evidence accordingly. Said auditor's report and aml:'nded report are here referred to and made a part of this blll of exceptions, and the same constituted the only evidence submitted to the jury on the trial of the cause, except A. P. Woodward, who testified as to certain matters not Involved in the alleged error and exceptions here In question. The defendants requested the court in writing to charge the jury, amongst other things, to wit, 'That if they find in the auditor's report a finding in favor of the deputies against the Unlted States for fourteen hundred and one dollars and thirtytwo cents, [meaning fourteen thousand six hundred and one dollars and thirtytwo cents,] it is not to be regarded as a debt to the deputies, but to the marshal's office, and must be so treated by them in the findings in the case.' "The defendants contended at the trial that, whether the defendant Fitzsimmons had paid his deputies In full or not, whatever sum may have been due and owing to the plaintiff in this behalf for services rendered by said deputies, the saine was, under the issue in this case, to be deemed and considered as services rendered by defendant Fitzsimmons, by and through his deputies, and that whatever amount was due and owing by the plaintiff for and on behalf of said services was to be deemed to be due and owing by the plaintiff to defendant Fitzsimmons, and that the same was available in favor of the defendants as an answer and defense to the action; the defendants contending that the same were greater in amount than the largest sum which, without this item, is found against the defendants in the auditor's report. The court' held to the contrary in this contention, and decided that said item afforded no defense, and refused to charge the rule of law as contended for by defendants. and as set forth by their request in manner and form as above set forth, and the defendants then and there excepted before said court, in the presence of the jury, in writing, and' their said exceptions were allowed by the court, and filed of record in the cause. "Before that time, when the auditor's said report and amended report were first filed, the defendants excepted thereto in writing on the following first ground, amongst others, because the auditor excluded from his consideration the accounts of the deputies, and failed or refused to treat them as a credit to be given to the marshal in the government's settlement with him, thus excluding an amount of eleven thousand nine hundred and eighty-six dollars and seventeen cents, ($11,986.17,) which he found in the fees and emoluments, due on account of the deputies, which must be placed to the marshal's credit before a legal and fair settlement could be reached between the government and the marshal. Considering the said exception, the court, at the March term, 1889, passed the following order, to wit: 'Ordered, that the amended exceptions herein set out to the auditor's report are disallowed, on the ground that the first exception does not set up the proper matters of credit or set-off to O. P. Fitzsimmons, late marshal.' And the defendants then and there e,xcepted, In writing, to said action, and their said exception was allowed and filed of record in the cause, in open court, to Wit, on the 6th day of June, 1889, as appears of record. "Before the' trial, in the same case, and In-the- same court, the defendants, in due time and in due form of law, filed an amendment to their plea, whereIn they pleaded as a. set-ot! and defense, due from the plalntit! to defendant
. F.EDE;aAL
yolo 54.
,tor the usfilof certaln9!.l1tllqlep:qt1es, for serytjleSrendered by them as such deputies during the time said Fitzsimmous he\dthe office of for,1#e northe,rn. ,dl!!,trictof Georgia, the sum of eleven . $e lU;ld,eigpty-m dollars and seventeen cents, ($11,986.17,) set fortlj"and which plea, silPled by counsel for defendants, with bUlof llarticulars, contained the names of the deputles,with amounts due fo" each respectively, as of file in the cause. To this plea. the plaintiff, by Its cqunsel, demurred genera,lly; and, after argument, the court, under order dated 'Ju.n,e5, 1889, as appears of record, ;sustained the demurrer, and ordered that saldplea be stricken, on the ground that it states no legal cause for defense; and defendants then and there excepted, and in open court, on the 6th day of .Tune, 1889, presented their exceptions, in writing, wwch were allowed: and ordered, filed by the cpurt, and the SI;lme were filed, and appear of record And at the. trIa.labove and beforename(j, to 'Wit, on the 12th day in the of May, 1$9(), .the jury, under the charge .of the court, returned a verdict In favor, of tb,e plaintiff ittialnst the defen<1ants for the sum, of one thousand eight hundred and eighty-five dollars and twenty-three cents, ($1,885.23,) with Interest Md "cost of suit-The court was about to enter. a final judgment upon said VeNJct, and the same,was written out and signed accordingly, when the defendaJits ,lnterpQsedby. their motion for J,lew trial. which appears in the record, a;rid thereupon the saId court entertained said motion for Dew tdal, and, on the 4th day of June, 1890, during the same term, In" open court, passed and made tlieto:UowiIig ordeJ;'lnsald case, to wit: .'It appearing to the court that the is dissatisfied ,with the verdict In said case, and for causes 1;his mc;>tlop,foj.'ne}V,trial,it is ordered that said motion be duly filed, and COllY be furnished tbe distdct .attorney, and the. same be set for hearIng at such; time as the court flball appoint, and that the sam,e operate as a su, persedeas Of ju(1gment until further ordered. [Signed] ,William T. Newman, IT. said motion for new tr),al was afterwards amended, (but the. hearing' delayed and and never heard or tinally determined ,1892, when, after argument had, t1le. court made a wdtten until '. MafCh, opinioJ,l the motion, which opinion Is filed ,In, the cause, and afterwards, tq wittOn the 21st day of 1892, the court made and signed, on .motion of cOlIpsel for plaintiff!!, a formal order, refusing a· new mal, and ordering that ,the supersedeas do cease; and defendants say that no judgment on the said 'lverOict became or was final until said order was entered and the supersedeaS thereby ended,.". .. Thecaile 1$ brought to thIs court on the following assignment of errors: , "(1) That the court erred In failing and refusing to charge the jury, when so requested In wrtting, as fonows, to wit: 'If they find In the audltor'lil report a finding In favor of the deputies against the United States for fourteen hundred and one dollars and thiry-two cents, [meaning fourteen thousand six hundred and one dollars and thirty-two cents,] It is nol to be regarded as a debt due to the deputies,. but to .the marshal's office, and must be so treated In their findings In this case.'> The plaintiffs In error say that under the law, upon stating the balances between the. marshal aforesaid and the United States, the marshal was entitled to a credit for services rendered by his said deputles; tlra,t there Is and was no privity between the United States and the deputies, but only between the United States and the marshal; and that, under the law, all settlements must be made and balances ascertained as be tween the United States and the mashal, treating the deputies and their accounts as represented by and standing l:t;l the shoes of the marshal; and that the marshalls entitled to such credit In his accounts, whether In point of fact he had paid,his deputies or not; and that the court erred In holding to the contrary and refusing to charge. as thus requested. "(2) Pla1D.tiffs In error further say th/l-t when they excepted to the auditor's repq,rt on tne ground that the auditor erred In not giving the marshal credit In his accounts for. amoUlfts due on account of services rendered by his deputies, aJ1d the court at March term, 1889, passed and made an order that said exceptioIJ, disallowed, on the ground that the same did [not] set up proper amount'ot credit or set-otrto said OwenP. Fitzsimmons, late marshal, the erred therein. say that the said marshal was en-
FITZSH.llli01\8· 'il·· UNITED STATES.
815
titled to stich credit and set-olf under the Ill.ws and facts in the case, and that the court erred in holding to the con'tr8i-y, anddlsal10wing said exception to the auditor's report, in manher and form aforesaid. "(3) Plaintiffs"in error further say that the court erred in sustaining the demurrer to their plea, wherein they had pleaded as a set-off an amount due from the plaintiff to certain of his deputies for services rendered by them as in said plea set forth, said plea being in language following, to wit: 'By leave of the court defendants amend their pleas, and for further plea say that there is still due from the plaintiff to the defendant li'itzsimmons, for the use of certain of his deputies for services rendered by them as such deputies, during the time the said Fitzsimmons ·held the office of United States marshal for the northern district of Georgia, the sum of eleven thousand nine hundred and eighty-six dollars and seventeen cents, ($11,986.17.) The amount due each deputy will fully appear by reference to the bill of particulars hereto attached. Said sum defendants plead in defense of plaintiff's claim, and show nothing due plaintiff, and the residue defendants plead as a set-otr in favor of defendant· Fitzsimmons for the use of his deputies, to whom the same is due and owing, and pray judgment for the (Signed] James S. Hook, Broyles & Johnson, Defendants' Attorneys.' Plaintiffs in error say that the defense set out and contained in said plea was a proper, legal, and competent defense to the said action of plaintiff, and that the court erred in holding to the contrary thereof, and in striking said plea. The plaintitrs In error further say that if· said plea had· not been stricken out, and had been sustained, as under the facts and the law it should have ,been, the same would not only have defeated any recovery against the defendants in favor of the plaintiff, but woUld have resUlted in a finding in favor of the marshal against the United States in the sum of ten thousand and ten and 94-100 dollars, or the like sum. "(4) And the plaintiffs in error fUl'ther say that error appears in this: His honor repeats (in his decision overruling the motion for new trial) that the plea of set-otr filed by the defendants, and refers to his action during the progress of the trial disallowing and striking said plea, and affirms the correctness of that action in disallowing and striking said plea, which action and decision touching said plea was excepted to dUJing the trial, is hereby excepted to again, and Is assigned as error. And the plaintiffs in error further say that error appears in this: His honor, In his said decision, makes a quotation from the auditor's report, to show two things, to wit: First, that the auditor found no amount against the United States in favor of the deputies; second, that the accoun1:l'l of the deputies were not referred to the auditor. It is respectfully submitted that the auditor's report shows that he found that the deputies did have an account against the United States, and both this finding of the auditor, and his honor's view of it, plaintitrs in error say are wrong in law and in fact, not in amount, but in the person to whom due; and that it was not the deputies, but the marshal, who has a· claim on the United States for such service rendered by him through his deputies. And plaintiffs in error say that the court erred In this rtiling to the contrary thereof, and they assigu error on the same. "(5) Plaintiffs in error further say that error appears in this: His honor, in his said decision overruling the motion for new trial, refers to a former sult by three deputies of the marshal, which proceeded before and was determined by his predecessor, Judge McCay, but which was not made, as it could not have been made, a part of the record in this case. It is contended that this is error, and is hereby assigned as such for two reasons: First. Said former suit had no connection with this case. Second. From the views presented by his honor it only showed that, if anybody was estopped, it was the three deputies alone who had sued and obtained that decision of Judge ;\fcCay; certainlJr not the United States or the defendants in this case. "(6) Said plaintiffs allege error In this: His honor, in said decision, says: 'The auditor states In his report that in making his investigation he treated Fitzsimmons as a disbursing officer of the government, charging him with all the money which went into his hands, and giving him credit for all disbursements to which he found him to be entitled,' etc. His honor then proceeds: 'Except as to a few items, which were eliminated from the case on the trial before the jury, I do not believe that any serious objection haS ever been made
816
YEDERAL R$f.ORTER,vm.
54.
by the marshal to the statement calculation, and ftn4fng ot the auditor, and if it was proper to treat bim as a disbursing officer ot the government in making his investigations. Certain legal questions, it is true,< wero raised ,as to w,hether the auditor pursued the correct course in his method of stating the account between the marshal and his deputies, all of which were of in the opinion heretofore filed in the case. There has been no argument as to the question on this motion, and I presume tb.at it is considered ,as disposed of by the former decision of the court,' Plaintilrs in error say, as tQp.ching this finding of the court, that the object of the suit necessarily put" in issue a final adjustment and finding of a balance between the UnitooStates and the mllXShal; and that it does not make any dilrerence what descl'iptive terms be used as to Ilifferent items; and that, if the marshal was in law entitled to a credit tor services rendered by him through his deputies, he coulel not be deprived of his right to that credit by merely calling him a disb1ll'iUng And plaintiffs in error say that both the auditor and the court erred $n holding to the contrary thereof, and errol' is assigned in the same. "(7) PlaIntiffS in error further, Sl,ly thnterror appears in this: The whole case Was tried and dete:rmined on the asswpption that the marshal was not entitle4to llny credit in hiS!tccOlmts as pleaded and contended for by defendants below on account of !,ervices rendered and fees earned by his said deputies,unless the marshal had paid the same, to the deputies; the defendants conten,ding that ho was eJ).titled to such credit, and the court holding and deciding that he was not ,fuus entitled; and the same is hereby assigned· as error,"
F. B.Earhart, U. S. Atty., for defendant in error. Before PARDEE and !McCORMIOK,Circuit Judges, and LOCKE, OistriC'tJudge. , , ,
Get>; Hillyer, (Jas. S. Hook; on the brief,) for plaintiffsip error.
,
P .A:Rf)EE, Circuit Judge, (after stating the facts.) The fourth, fifth, and· sixth assignments of error relate to the opinions and rulings o,f tb:etrial judge on the motion for a new trial, and are not subject ,'to review. The first assignment of error,relating to a charge,:to'the jury refused by the court; the second, relating to error in, overruling an exception to the auditor's report; and the third,assig11ing as, error the action of the trial in sustaining a demwrerto a plea,;-all raise the same question, succinctly stated in of error, as follows: "The wholo case wlls tried and determined on the assumption that the marshal was not entitled to any credit in his account on account of services rendered and fees earned by his said deputies, unless the marshal had paid the same to the deputies; the defendants contending that he was entitled to such credit, and the court holding and deciding that he was not thus entitled." , ,
The question presented seems to have arisen in this way: . The auditor appointed by the court says in his report: "In the e:x:amlnation of this case it became necessary to go into the accounts otthe deputies against the United States, and to ascertain the amounts of their earnings, disallowances, reallowances, etc., and thus to ascertain the balances due them; arid while, in accordance iVith the :v!ew I have taken of the case, the statement of those balances is not necessary to a proper understanding'ofthe issues involved, yet I have thought proper to append the table in the, ]J:x:hibit L, covering t'f'vo pages, showing the balMces due the4eput!es there named from the United States." '
.ties from the United States sums ranging
The table appended ipurports to shoW' as the baJance due the depto $2,784.13.
FITZSIMMONS tI. UNITED STA.TES.
817
aggregating $12,712.21, as due to some 24 persons named. The plain· ti:ff.s in error excepted to the auditor's report, because the ex-marshal was not given credit for that amount in the statement of his account with the United States. Failing on exception, they filed a further plea, (their former pleas having been practically a general denial,) pleading the amount of $11,986.17 in defense of plaintiff's claim, "and the residue asa set-off in favor of the defendant Fitzsimmons, for the use of his deputies, to whom the same is due and owing, and praying for judgment for the same." A demurrer having been interposedand sustained to said plea, the contention was renewed by requesting a charge instructing the jury that the amount reporteq by the auditor as due to deputies from the United States "is not to be regarded as a debt due to the deputies, but to the marshal's office, and must be so treated in their findings in the case." The question thus presented is whether O. P. Fitzsimmons, late marshal of the United States, in a suit against him and his sureties on his official bond to recover balances due by him as an accounting and disbursing officer of the United States, is entitled to credit for disbursements that he has not made, or to credit for alleged services of his deputies which he does not pretend to have paid. So far as the suit is one against Fitzsimmons, late marshal, as a disbursing officer of the United States, it is plain that the credit claimed is wholly inadmissible. So far as the suit is against Fitzsimmons, late marshal, for a settlement and accounting as to the fees and emolumentsof. his office, more difficulty is presented. The following sections of the Revised Statutes of the United States bear directly upon the matter in hand: "Sec. 830. 'l'here shall be paid to the marshal his fees for services renderNl for the United States, for summoning jurol'S and witnesses In behalf of the United states, and in behalf of any prisoner to be tried for a capital offense; tor the maintenance of prisoners of the United States confined In jail tor lmy criminal offense; also for his reasonable actual expense for the transportation of criminals, and of the marshal and· guards, to prisons by the attorney general, and for hire and subsistence in that behalf, as hereinbefore provided; also his fees for the commitment or discharge of prisoners; his expenses necessarily incurred for fuel, lights, and other contingencies that may accrne in holding the courts within his district, and providing the books necessary to record the proceedings thereof: provided, that he shall not Incur or be allowed an expense of more than twenty dollars in anyone year for furniture, or fifty dollars for rent of a building, and making improvements thereon, without first submitting a statement and estimates to the attorney gen<>ral, and g-ctting his inHtructions in the prcmisps.·' "Sec. 833. Every district attorney, clerk of a district court, clerk of a circuit court, and marshal, shall, on the first days of January and July in each year, or within thirty days thereafter, make to the attorney general, in such form as he may prescribe, a written return for the half year endmg on said days respectively, of all the fees and emoluments of his office, of every name and character, and of all the necessary expenses of his office, including necessary clerk hire, together with the vouchers for the payment of the same for such last half year. He shall state separately in such returns the fees and emoluments received or payable under the bankru,pt act; and every marshal shall 'state separately therein the fees and emoluments received or payable for services rendered by himself personally, those received or payable tor serviceS rendered by each of his deputies, naming him, and
v.54F.no.5-52
818
I'JCI)EBAL BEPOBTER,vol;
;54.
tJ;1e of . and [Which, by the. terlIlfJ· of his. service, ea,c);ioeputy is to receive. Said returns shall be verlffed 'QY the oath .of the otfllMl."making them!.' . . "Sec.':S41.No marshal· shall be allowed by the attorney general, except as provided. in the next section, to retain of the fees and emoluments which he is required to include in his semiannual return, as aforesaid, for his personal eompensa:tion, over and above the necessary expenses of office, includinJ; necessary clerk hire, to be audited and allowed by the. proper accounting officers of the treasury department, and a proper allowance: to his deputies, any sum exceeding six thousand dollars a year, or exceeding that rate for any time less than a year. The allowance to any deputy shall in no case exceed three fourths of the fees and emoluments received or payable for the services rendered by him, and may be reduced below that rata by the attorney general whenever the returns show such rates to be unreasonable."
It to be noticed that neither the report of the auditor, the ex_cep· tions to the auditor's report, the overruled plea, nor the requested charge to the jury show in any manner whatsoever the. alleged services of. the deputies of the late marshal for which credit is asked, whether within or without said section 830; nor whether any return, duly with details, as required by the said section 833, was. ever nor that the same had even been submitted to the treasury department to be audited and allowed by the proper accounting -officer$ thereof, in accordance with the provisions of said section 841. SectioJ;j. 951, Rev. St., expressly prohibits the allowance of credits on the trial of suits brought by the United States against individuals, except such as appear to have been presented to the accounting officers ot the treasury for their examination, and to have been disal· lowed,in whole or in part, unless it is proved to the satisfaction of the court that the defendant is at the time of the trial in possession -of vouchers not before in his power to procure, and that he was prevented from exhibiting a claim for such credit at the treasury by absence from the United States, or by some unavoidable accident. The provisions of 1;Q.isseetion seem'to have been wholly ignored by the plaintiffs in error. The record shows no attempt whatev.er to eomply with the statutes herein referred to, nor any reason why such attempt was not made. It. seems to us that the regulations provided by law for the settlement of accounts between the United States and their officers control the courts as well as the accounting -officers of the treasury. Stress, also, ought to be laid uPQP the fact that, so far as this record shows, the amounts claimed to be due deputies of the late marshal are asserted to be due by the United States, and not by Fitzsimmons; and, further, that whether the said :amounts claimed to be due said deputies are paid by the United States. or paid by the plaintiff in error and then refunded by the United States, the account between the United States and Fitzsimmons, and the balance due the United States, involved in this suit, will remain the same. If we take the case as one where the statutes -of the United States in relation to the settlement of accounts with -officers have been complied with, and the amounts claimed to be due the deputies have been duly presented to the accounting officers of the treasury as a proper credit to the late marshal, and by such om-cers disallowed. because the same had not been paid by the late mar-
WINE¥AN
:GA,STRELL.
819
shal, .still- we cannot see how the plaintiffs iir error can get relief' in this suit, unless the court, as a matter of law, is authorized to aUow a credit for. disbursements not made. As far as this record goes, it is the United. States that owes the. deputies, and, if so, will owe them until they are paid. It may be that the fees earned by the deputies belong to the office of marshal, and that the amounts due them for services are dne by the office, but the matter is complicated by the fact that when the marshal has collected his maximum compensation, as in this case, the United States are the beneficiaries of the office. It may be that by lapse of time and mistaken efforts and attempted remedies legislation is necessary to do full justice to all parties, but in suit at law we do not think that the plaintiffs in error, on the showing made in this suit on the late marshal's official bond) can be allowed credits for amounts alleged to be due by the United States to either the marshal's office or to the deputies of the late marshal. We are constrained to hold with the trial judge, and to rule that the record presents no reversible error. The case presented, however, while showing that the judgment of the court below is proper against the plaintiffs in error, yet suggests equities in favor of other parties, to whom the judgment of the court below, if left unqualified, may be construed injuriously; and therefore, while affirming the judgment, we deem it proper to modify the same so as to avoid the semblance of such prejudice. It is therefore ordered and adjudged that the judgment of the circuit court in this case shall not be construed so as tQ prevent the plaintiff in error O. P. Fitzsimmons, late marshal of the United States for the northern district of Georgia, from claiming from the United States such sums as he may hereafter properly pay to his late deputies for services rendered to the United States within the purview of section 830, Rev. St. U. S., and which are not included in any of the claims allowed and audited in this suit; nor to prevent the late deputies of the said O. P. Fitzsimmons, late marshal of the northern district of Georgia, from applying to the United States, by suit or otherwise, for the direct payment to them for services rendered the United States during the term of office of O. P. Fitzsimmons, late marshal; and, as so modified and qualifted, said judgment be, and the same is hereby, affirmed. WINEMAN v. GASTRELL. (Circuit Court of Appeals, Fifth Circuit. January 11, 1593.) No. 20. Appeal from the Circuit Court of the United States for the Southern District of Mississippi. In Equity. Bill by Lucy E. Gastrell against Marx W'fneman to remove cloud from title. A decree was gIven for complainant, Which, on appeal by respondent, was affirmed. See 53 Fed. Rep. 697, where a full statemEnt ot the case will be found. Respondent now petitions tor a rehearing. Denied. -Johnston, for appellant. A. M. Lea, for appellee.