superable. The opinion of the learned judge of the Circuit Court observes that under the laws of Massachusetts this corporation could not issue bonds without the approval of the board of railroad commissioners, and makes reference to sundry statutes, of which we need cite only section 23 of chapter 112 of the Revised Laws of 1902. The opinion also observes as follows: "The petitioner advances the proposition that under this trust indenture there may exist, not only legal bondholders, whose bonds have been authorized by law, but equitable bondholders under the agreements contained in these notes. For the court to accept this proposition would be to lay down the principle that a street railway company in Massachusetts may first execute a mortgage, and then, in direct violation of the state statutes, may proceed to issue bonds to the amount named in the mortgage under the form of contracts embodied in its promissory notes. This is in effect taking the control of street railways out of the hands of the state, by permitting them in this way to annul the laws which the state has passed for their proper regulation." We are forced to agree with these observations, and they seem to leave us nothing except to affirm the judgment of the Circuit Court. What is involved in the line of statutes concerning this matter is a deep-seated, clearly implied, public policy, intended to protect the community, and incidentally both secured and unsecured creditors. The statute which we have named requires that no bond be issued except, of course, by a vote of a majority in interest of the stockholders of the corporation, which condition, perhaps, is sufficiently covered in this record. Nor can they be issued until the board of railroad commissioners is satisfied that the value of the property of the corporation, "excluding the value of the franchise, taken at à fair value for railway purposes, * * equals or exceeds the amount of the capital stock outstanding and the debt"; nor until the board, "after an examination of the assets and liabilities of the company, and such further investigation as it considers expedient, shall by vote approve their issue." * * * Proceedings under the line of statutes to which the section quoted relates have never been merely formal, but, according to the practice, they are not completed until after due notice, public hearing, and a solemn adjudication. Indeed, this section requires a formal vote by the board, to be passed "after an examination of the assets and liabilities of the company, and such further investigation as it," that is, the board, "considers expedient." All this emphasizes the fact that this legislation is in line with a deep-seated public policy, which, inasmuch as the corporation involved is purely local, we could not in any way disregard with reference to either a formal or an equitable mortgage, or to any attempt to authorize the complainant to share with the holders of the bonds already issued, or even to protect it by a lien on the property in excess of their claims. Any attempt in either direction would be equally violative of the local statutes appertaining hereto. It is true that it is settled that a court proceeding in bankruptcy, or for the purpose of winding up insolvent estates in any method, may lay hold of the value of seats in stock exchanges, notwithstanding transfers of them require the approval of the officers of the exchanges. Such a condition, however, involves no rule of public policy. It is also true that, in Fisher v. Cushman, 103 Fed. 860, 43 C. C. A. 381, 51 153 F.-11 L. R. A. 292, decided by us on June 15, 1900, we authorized the court in bankruptcy to lay hold of the proceeds of a license for the sale of intoxicating liquors, issued in accordance with the statutes of Massachusetts, notwithstanding the same could be transferred only by authority of the commissioners. It appeared, however, in that case that the commissioners were accustomed to grant authority for such transfers, unless there was some special reason to the contrary, and that in that way licenses had proved of substantial value, yielding sometimes from $4,000 to $5,000. However, we made no attempt to avoid the statutes of the state, because a transfer had been lawfully approved, and we dealt only with the proceeds thereof. Therefore, such classes of cases are of no assistance here. It is also true that, if the corporation involved here were still an active one, we might, on a bill in equity framed therefor, but otherwise like that at bar, compel it to apply to the board for authority to issue the bonds asked for. But this corporation went into the hands of a receiver before this bill was filed; and there is no allegation that the circumstances are such as would call upon the commissioners to authorize any further lien, because there is no allegation that the property of the corporation would, as required by the statute we have. cited, at a fair value for railway purposes, equal or exceed the amount of the outstanding capital stock and debt. On the other hand, the whole case is based on the hypothesis that the corporation is insolvent, without sufficient assets to pay its creditors, much less to divide anything to its stockholders. It is defunct and powerless, and incapable of acting under orders from a court sitting in equity, or of receiving the recognition of the board of railroad commissioners for any purposes involved in this litigation. On the whole, we find no method by which the difficulty stated by the learned judge of the Circuit Court can be overcome. The decree of the Circuit Court is affirmed, and the appellees recover their costs of appeal. LOWELL, Circuit Judge, concurs in the result. On Appeal from Clerk's Taxation of Separate Costs for the Several Appellees Who Appeared Separately and Filed Separate Briefs. PER CURIAM. In this case the clerk taxed separate bills of costs for each of the several parties appearing as appellees, and an appeal was taken to us, claiming that only one bill should be taxed. By analogy to the implication of equity rule 62, the taxation by the clerk must be sustained. The appeal is dismissed. 1 Equity Rule 62.-When the same solicitor is employed for two or more defendants, and separate answers shall be filed, or other proceedings had, by two or more of the defendants separately, costs shall not be allowed for such separate answers, or other proceedings, unless a master, upon reference to him, shall certify that such separate answers and other proceedings were necessary or proper, and ought not to have been joined together. KENTUCKY COAL, TIMBER, OIL & LAND CO. v. HOWES et al. (Circuit Court of Appeals, Sixth Circuit. March 21, 1907.) No. 1,631. 1. WRIT OF ERROR-TIME FOR BRINGING. While a motion for new trial seasonably filed in an action at law in a Circuit Court prevents the judgment from becoming final until it is disposed of, time given for the allowance of a bill of exceptions has no such effect and cannot enlarge the time within which a writ of error must be brought, which, where the writ is returnable to the Circuit Court of Appeals, is limited to six months from the date of the final judgment. [Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, 1889-1896.] 2. SAME WHEN "BROUGHT.” A writ of error is not "brought" within the meaning of Rev. St. § 1008 [U. S. Comp. St. 1901, p. 715], until the writ is actually filed or lodged with the clerk of the court which rendered the judgment sought to be reviewed. [Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1918.] 3. SAME-ORDER ALLOWING WRIT-CONDITION. An order allowing a writ of error conditioned on the giving of a bond by the plaintiff in error is ineffective until the condition is complied with. [Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1915.] 4. SAME ISSUANCE-DUTY OF CLERK. A writ of error must be served, and such service is made by depositing it with the clerk of the court which rendered the judgment. While the clerk of a Circuit Court may issue a writ of error to that court, under the statute, as well as the clerk of the appellate court, upon an order allowing the same, it is not his duty to do so unless requested, but it is the duty of the plaintiff in error to apply for the writ and to deposit it for filing when issued. [Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 2105-2113.] In Error to the Circuit Court of the United States for the Eastern District of Kentucky. On motion to dismiss writ of error. D. W. Steele, Jr., for plaintiff in error. C. B. Wheeler and E. W. Hager, for defendants in error. LURTON, Circuit Judge. This cause is now heard upon a motion to dismiss this writ of error, because not "brought" within the limitation of six months, prescribed by section 11 of the Court of Appeals act (Act March 3, 1891, c. 517, 26 Stat. 829 [U. S. Comp. St. 1901, p. 553]), after the date of the final judgment. The judgment sought to be reviewed was rendered May 27, 1905. A motion for a new trial was not denied until September 5, 1905. This motion, having been seasonably entered, prevented the judgment from becoming final until disposed of. In re McCall, 145 Fed. 898, 76 C. C. A. 430; Aspen Mining Co. v. Billings, 150 U. S. 31, 14 Sup. Ct. 4, 37 L. Ed. 986. But no writ of error was filed with the clerk of the court until May 7, 1906, which was more than six months after the judgment became final. That the Circuit Court, from time to time, after the judgment became final, enlarged the time for filing a bill of exceptions, did not prevent the running of the time limit within which the writ might be "brought." A pending application for a rehearing in an equity cause, or a new trial in an action at law, does suspend the time within which an appeal may be "taken" or a writ of error "brought" because neither the decree nor the judgment can be final until the motion is disposed of, and the time limit does not begin to run until the decree or judgment is final. But the allowance of a bill of exceptions has no effect upon the finality of a judgment and an enlargement of the time for filing cannot therefore affect the time limit for bringing a writ of error. But it is said that a petition for a writ of error was filed together with an assignment of error on October 24, 1905, and a journal entry made. allowing the writ "upon the plaintiffs giving bond in the sum of $500.00." There is nothing in the transcript to indicate that this was ever prosecuted by giving the bond upon which the allowance of the writ was conditioned, or if so, that it was ever given within the time within which the writ must be brought. But, however this may be, no writ of error was ever filed with the clerk of the court until May 7, 1906, and this seems to have been issued because upon that day there was a second allowance of a writ of error by one of the judges of the court. A writ of error is not "brought," to use the verbiage of section 1008, Rev. St. [U. S. Comp. St. 1901, p. 715], within the legal meaning of the term until the writ is actually filed or lodged with the clerk of the court which rendered the judgment. sought to be reviewed. "It is the filing of the writ," said Chief Justice Taney, in Brooks v. Morris, 11 How. 203, 207, 13 L. Ed. 665, "that removes the record from the inferior to the appellate court, and the period of limitation prescribed by the act of Congress must be calculated accordingly. The day upon which the writ may have been issued by the clerk, or the day on which it is tested, are not material in deciding the question." This case has been many times followed. Mussina v. Cavazos, 6 Wall. 355, 18 L. Ed. 810; Scarborough v. Pargoud, 108 U. S. 567, 2 Sup. Ct. 877, 27 L. Ed. 824; Polleys v. Black River Co., 113 U. S. 81, 5 Sup. Ct. 369, 28 L. Ed. 938; Mutual Life Co. v. Phinney, 178 U. S. 327, 335, 20 Sup. Ct. 906, 44 L. Ed. 1088. The principle applicable to writs of error applies also to appeals. Credit Co. v. Arkansas, etc., Ry. Co., 128 U. S. 258, 9 Sup. Ct. 107, 32 L. Ed. 418. But it is said that whether plaintiff filed a bond or not it was the duty of the clerk under the order allowing a writ of error, made October 24, 1905, to issue and file the writ before the limit for the bringing of the writ should expire, and that, when a plaintiff has done all that he is required to do, he should not be deprived of his remedy by reason of the fault of the clerk in not actually issuing and filing the writ in accordance with the order of the court. For this, counsel cite Mutual Insurance Co. v. Phinney, cited above, where it was held that the failure of a clerk to indorse a writ lodged with him as filed will not defeat the writ; the plaintiff having properly and seasonably sued one out and left it with the clerk for filing. The case does not apply to the facts of this cause for two reasons: First, the plaintiff did not do all that he was required to do; and, second, the clerk did not neglect any duty which the law imposed upon him. The allowance of the writ of error on October 24, 1905, was conditional upon giving bond. Plainly, it was ineffective until the condition was complied with. Nothing appears to show when, if ever, such a bond was given. The inference from a new allowance upon May 7, 1906, when a writ was filed, is that the allowance of a writ on October 24, 1905, was abandoned and never prosecuted. But assuming a bond to have been given in time, and that the plaintiff did not follow it up by obtaining a writ and delivering it to the clerk for filing, was it the clerk's duty to issue a writ and file it for the plaintiff in error, although not requested so to do? It must be remembered that the writ of error which is to deprive the Circuit Court of jurisdiction and to remove the record to the appellate court is the writ of the Supreme Court or of this court, according to the jurisdiction of those courts, and not of the Circuit Court, although the clerk of that court may actually issue it. Originally they issued only from the office of the clerk of the Supreme Court. But by statute enacted in 1792 it was provided that a form of writ should be prepared by the Supreme Court and copies placed in the hands of the clerks of the Circuit Courts to be issued upon application under the seal of that court. Mussina v. Cavazos, 6 Wall. 355, 18 L. Ed 810. This enactment is now carried into the Revised Statutes as section 1004 [U. S. Comp. St. 1901, p. 713], whereby it is provided that the writ may be issued either by the clerk of the Supreme Court or the clerks of the Circuit Courts. By section 11 of the Court of Appeals act, all of the existing provisions of law regulating methods of review are made applicable to the Circuit Courts of Appeal. Under this, writs of error, returnable to this court, may be issued from the office of the clerk of this court or the office of the clerk of the circuit court in which the judgment was rendered Northern Pacific R. R. Co. v. Amato (C. C.) 49 Fed. 881. The writ runs in the name of the President and bears the test of the Chief Justice. It is directed to the judges of the Circuit Court, and commands them to return, with the writ, into this court, a transcript of the record. Such a writ must be served, and it is so served when it is deposited with the clerk of the court in which the judgment was rendered. This deposit of the writ is its service, and the file mark, which it is the duty of the clerk to place thereon, is but evidence to show the fact of service and its date. It is clear that it is the duty of the plaintiff in error to apply for the writ, either to the clerk of this court or, if more convenient, to the clerk of the Circuit Court, and then it is his duty to deposit the writ, when issued, with the clerk of the Circuit Court. The clerk of the Circuit Court is under no greater duty to issue such a writ, without it is demanded by the plaintiff, than is the clerk of this court. Of course, for a neglect to issue the writ when requested an action might lie, but that it not the question here. Baltimore & O. R. Co. v. Weedon, 78 Fed. 584, 24 C. C. A. 249. The clerk was not requested to is |