District of Pennsylvania. J. H. Beal, for appellant. Johns McCleave, for appellee. Before DALLAS and GRAY, Circuit Judges, and BRADFORD, District Judge.

DALLAS, Circuit Judge. Careful consideration of this record and of the arguments of counsel leaves us in no doubt as to the correctness of that part of the decree of the circuit court which is here complained of. We think the opinion of the learned judge of that court sufficiently sustains his conclusion that the Pittsburg & Western Railway Company was under no contractual obligation to construct the track which is the subject of controversy. Consequently we need not decide whether or not, if such obligation had existed, there should, under the circumstances of this case, have been a decree for its specific performance; but, if the determination of that question had been necessary, it would have been entitled to serious attention. 2 Story, Eq. §§ 742, 767; 3 Pars. Cont. p. 357; Du Bois v. Baum, 46 Pa. St. 537. The decree is affirmed.

(105 Fed. 1003.)

MILLHISER et al. v. SMITH. (Circuit Court of Appeals, Fourth Circuit. November 5, 1900.) No. 370. Appeal from the District Court of the United States for the Eastern District of North Carolina. In bankruptcy. H. L Stevens, for appellants. C. B. Aycock and F. A. Daniels, for appellee. Appeal dismissed by consent of counsel, under rule 20.

(105 Fed. 1003.)

MUTUAL LIFE INS. CO. OF NEW YORK v. HILLMON. (Circuit Court of Appeals, Eighth Circuit. December 7, 1900.) No. 1,450. In Error to the Circuit Court of the United States for the District of Kansas. Edward Lyman Short, James A. Seddon, James L. Blair, and George J. Barker, for plaintiff in error. L. B. Wheat and C. F. Hutchings, for defendant in error. Dismissed, with costs, on motion of defendant in error.

(105 Fed. 1004.)

NATIONAL SURETY CO. v. UNITED STATES ex rel. ANNISTON PIPE & FOUNDRY CO. (Circuit Court of Appeals, Eighth Circuit. January 7, 1901.) No. 1,475. In Error to the Circuit Court of the United States for the Eastern District of Missouri. J. E. McKeighan, Shepard Barclay, and M. F. Watts, for plaintiff in error. T. A. Post, for defendant in error. No opinion. Affirmed, with costs, on authority of U. S. v. National Surety Co., 34 C. C. A. 526, 92 Fed. 549.

(105 Fed. 1004.)

PACIFIC COAST DREDGING & RECLAMATION CO. et al. v. BOWERS. (Circuit Court of Appeals, Ninth Circuit. January 7, 1901.) No. 545. Appeal from the Circuit Court of the United States for the Northern District of California. R. Percy Wright and D. M. Delmas, for appellants. John H. Miller, for appellee. Appeal dismissed, upon filing of stipulation of counsel for respective parties therefor, without costs to either party in either court. See 99 Fed. 745.

(105 Fed. 1004.)

PARDON v. McGEORGE. (Circuit Court of Appeals, Eighth Circuit. January 26, 1901.) No. 1,488. In Error to the Circuit Court of the United States for the District of South Dakota. Ralph W. Parliman and F. V. Brown, for plaintiff in error. Melvin Grigsby, S. H. Wright, and Sioux K. Grigsby, for defendant in error. No opinion. Affirmed, with costs.

(105 Fed. 1004.)

PINE RIVER LOGGING & IMPROVEMENT CO. et al. v. UNITED STATES. (Circuit Court of Appeals, Eighth Circuit. December 17, 1900.) No. 1,494. In Error to the Circuit Court of the United States for the District of Minnesota. John B. Atwater. Eugene G. Hay, and William H. Bennett, for plaintiffs in error. John E. Stryker, for the United States. No opinion. Affirmed, without costs to either party in this court.

(105 Fed. 1004.)

REDMAN v. UNITED STATES. (Circuit Court of Appeals, Fourth Circuit. November 17, 1900.) No. 376. In Error to the District Court of the United States for the District of Maryland. Wm. Colton, for plaintiff in error. John C. Rose, U. S. Atty. Writ of error dismissed under rule 23; record not having been printed when case was called for argument.

(105 Fed. 1004.)

RYNAN et al. v. McCULLOM et al. (Circuit Court of Appeals, Sixth Circuit. January 19, 1901.) No. 845. Appeal from the District Court of the United States for the District of Kentucky. In admiralty. Campbell & Campbell and E. W. Bagby, for appellants. Bishop & Hendricks, for appellees. No opinion. Decree of district court modified.

(105 Fed. 1005.)

SAN FRANCISCO BRIDGE CO. v. BOWERS. (Circuit Court of Appeals, Ninth Circuit. January 7, 1901.) No. 544. Appeal from the Circuit Court of the United States for the Northern District of California. R. Percy Wright and D. M. Delmas, for appellant. John H. Miller, for appellee. Appeal dismissed, upon filing of stipulation of counsel for respective parties therefor, without costs to either party in either court. See 91 Fed. 381.

(105 Fed. 1005.)

SOUTHERN RY. CO. v. MOZELY. (Circuit Court of Appeals, Sixth Circuit. January 19, 1901.) No. 852. In Error to the Circuit Court of the United States for the Eastern District of Tennessee. Jourolmon, Welcker & Hudson, for plaintiff in error. Templeton & Carlock, for defendant in error. No opinion. Affirmed.

(105 Fed. 1005.)

SWEENEY v. BARNEY & SMITH CAR CO. (Circuit Court of Appeals, Sixth Circuit. December 11, 1900.) No. 884. In Error to the Circuit Court of the United States for the Southern District of Ohio. Coffee & Mallon and Sprigg & Fitzgerald, for plaintiff in error. McMahon & McMahon and Paxton & Warring, for defendant in error. Dismissed per stipulation.

(105 Fed. 1005.)

TEXAS & P. RY. CO. v. DE VITT et al. (Circuit Court of Appeals. Fifth Circuit. December 3, 1900.) No. 983. In Error to the Circuit Court of the United States for the Northern District of Texas. T. J. Freeman, for plaintiff in error. Maitlock, Cowan & Burney, for defendants in error. Dismissed per stipulation.

(105 Fed. 1005.)

TRACY et al. v. EGGLESTON et al. (Circuit Court of Appeals, Fifth Circuit. January 15, 1901.) No. 909. In Error to the Circuit Court of the United States for the Western District of Texas. Charles J. Gillespie, for plaintiffs in error. R. H. Ward, for defendants in error. Dismissed for want of prosecution.

(105 Fed. 1005.)

UNITED STATES v. BORGFELDT et al. (Circuit Court of Appeals, Second Circuit. December 12, 1900.) No. 33. Appeal from the Circuit Court of the United States for the Southern District of New York. Chas. D. Baker, for the United States. Everit Brown, for appellees. Before LACOMBE and SHIPMAN, Circuit Judges. No opinion. Affirmed in open court.

(105 Fed. 1005.)

UNITED STATES v. DOWNING et al. (Circuit Court of Appeals, Second Circuit. December 21, 1900.) No. 45. Appeal from the Circuit Court of the United States for the Southern District of New York. W. Usher Parsons, for the United States. Albert Comstock, for appellees. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. No opinion. Decision of circuit court affirmed.

(105 Fed. 1005.)

UNITED STATES v. SILBERSTEIN et al. (Circuit Court of Appeals, Second Circuit. December 11, 1900.) No. 30. Appeal from the Circuit Court of the United States for the Southern District of New York. W. Usher Parsons, for the United States. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. No opinion. Affirmed (99 Fed. 263) in open court.

END OF CASES IN VOL. 44.

INDEX.

ABATEMENT AND REVIVAL.

§ 1. Transfer or devolution of title, right, interest, or liability.
A successory trustee of a fund takes it in privity with his predecessor,
and subject to suits pending against him which affect the administration
of the trust. Such suits are not abated or defeated by a change of trustee.
-Guarantee Co. of North Dakota v. Hanway, 104 Fed. 369.

1. Nature and necessity.

44 C. C. A. 312

An acknowledgment of the execution of an instrument affecting the
title to real estate in Nebraska is not essential to the validity of the
instrument between the parties to it. The acknowledgment is not a
part of the conveyance under the statutes of Nebraska, but its purpose
and effect are to authorize the record of the instrument, and to qualify
it for admission in evidence without further proof.

-Linton v. National Life Ins. Co. of Vermont, 104 Fed. 584...

2. Taking and certificate.

44 C. C. A. 54

A consul general is a "consul of the United States," within the mean-
ing of Comp. St. Neb. 1899, c. 73, § 6, and has authority to take and
certify the acknowledgment of instruments affecting the title to real
estate situated in the state of Nebraska.

-Linton v. National Life Ins. Co. of Vermont, 104 Fed. 584........
44 C. C. A. 54

3. Operation and effect.

A certificate of acknowledgment of an instrument affecting the title
to real estate is presumed to be true, and, even in a controversy between
the parties to the instrument, that presumption cannot be overcome with-
out evidence that is so plain and convincing that the issue is not doubt-
ful. A mere preponderance of evidence is not enough. The evidence in
this case considered, and held to be insufficient to impeach the certifi-
cate of the officer even between the parties to the letter of attorney.
-Linton v. National Life Ins. Co. of Vermont, 104 Fed. 584.

44 C. C. A. 54

As against a bona fide purchaser or mortgagee who is not a party to
the instrument, and who has paid his money in reliance upon the certifi-
cate of the acknowledgment of a deed or other instrument affecting the
44 C.C.A.
(687)

title to real estate, which is duly signed and delivered, the grantors are
conclusively estopped from denying the existence of the facts which the
officer taking the acknowledgment had jurisdiction to, and did, evince by
his certificate.

-Linton v. National Life Ins. Co. of Vermont, 104 Fed. 584...........

44 C. C. A. 54

A husband and wife signed and delivered to F. a letter of attorney
empowering him to mortgage or convey the property of the wife. The
consul general of the United States at London affixed to this letter of
attorney his certificate that the grantors of the power had duly acknowl-
edged its execution, and the letter of attorney and this certificate were
properly recorded in the state of Nebraska. Thereafter F., as attorney
in fact for the grantors in the power, borrowed $25,000 of the National
Life Insurance Company, which made the loan, and paid the proceeds
to F., in reliance upon the letter of attorney and certificate, and F., as
such attorney in fact, gave to it notes and a mortgage of the grantors
in the power upon the separate estate of the wife. Held, that the gran-
tors in the letter of attorney were estopped by these facts from denying
that the execution of the power of attorney was acknowledged by them
as stated in the certificate of the consul general.

-Linton v. National Life Ins. Co. of Vermont, 104 Fed. 584....

44 C. C. A. 54

ACTION.

Abatement, see "Abatement and Revival."

By or against particular classes of parties, see "Carriers," §§ 1, 2; "Corpora-
tions," § 3; "Principal and Agent," § 2; "Receivers," § 1.

corporate officers, see "Corporations," § 2.

stockholders, see "Corporations," § 1.

taxpayers, see "Municipal Corporations," § 6.

trustees in bankruptcy, see "Bankruptcy," § 2.

Criminal prosecutions, see "Criminal Law."

Jurisdiction of courts, see "Courts."

Particular causes or grounds of action, see "Death," § 1; "Fraud," § 1; "Torts."
alienation of affections, see "Husband and Wife," § 2.

infringement of patent, see "Patents," § 4.

infringement of trade-mark or trade-name, see "Trade-Marks and Trade-
Names," § 2.

obstruction of river, see "Navigable Waters," § 1.

personal injuries, see "Carriers," § 2; "Master and Servant," § 1; "Rail-
roads," § 2.

unfair competition in trade, see "Trade-Marks and Trade-Names," § 2.
Particular forms of special relief, see "Injunction"; "Partition," § 1; “Quiet-
ing Title."

foreclosure of mortgage, see "Mortgages," § 3.

removal of cloud on title, see "Quieting Title."

setting aside fraudulent conveyance, see "Fraudulent Conveyances," § 3.
Particular proceedings in actions, see "Costs"; "Damages"; "Evidence";
"Judgment"; "Pleading"; "Reference"; "Removal of Causes"; "Trial.”
Review of proceedings, see "Appeal and Error"; "Exceptions, Bill of."
Set-off, see "Set-Off and Counterclaim."

Suits in admiralty, see "Admiralty."

in equity, see "Equity."

ADEQUATE REMEDY AT LAW.

Effect on jurisdiction of equity, see "Equity," § 1.

ADJUDICATION.

Operation and effect of former adjudication, see "Judgment," § 3.