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thority of section 14 oi Jersey entitled "An ct L. 1903, p. 537), w ch submit interrogatori i to issue, that written a suo that the answers si ill party proposing the int Geen made to strike ut service of said inter ogs! gress constituting lite or procedure oi the aid

We deem it unne 253 proposition, since it im in the United States coll question made that ucl ted, or the answers t erd Varch 9, 1892, 27 S at. case of Ex parte Fis :, is decisive of this po nt. to, has not enlarged he Dental Assn. v. Too L. Ed. 989, Chief ) 1st reference to this act th

ord shows, were white persons and without right of allotment. A question is then presented, in whose right were the Morrisette boys in possession of the premises at the time the allotment was made? The weight of the evidence upon this subject is, to my mind, clearly with McWhirk; so that he not only made the selection prior in time to Louisa, but had the possession through the Morrisette boys at the time the allotment was made to him by the commissioners. This gave him the better and superior right to the allotment. Hy-yu-tse-mil-kin v. Smith, 194 U. S. 401, 24 Sup. Ct. 676, 48 L. Ed. 1039.

The cause has been twice contested in the Interior Department, finally resulting favorably to McWhirk, and I find no reason for disturbing that result. The complainant sues in behalf of his brothers and sisters as well as himself, claiming as heirs of Louisa Morrisette; but as Louisa was not entitled to the allotment, the complainant cannot have the relief prayed. The bill of complaint will therefore be dismissed.


"It does not purport to Comp. St. 1901, p. 661 in the subsequent sec 01 depositions; and, as it mony in writing, we being so, that it is supp) (8]."

Farther on in the o

*That the courts of th depositions not authories bis authorized to be ta en ber of taking, or that pro

National Cash Revis 1. 372, and Despeaix the same effect. Oh these seem to give i. act of 1892, and, in v back upon the decision under consideration,

Plaintiff's counsel treated as in the nati the practice in that Cash Register Compa the law.

He also st rogatories is prematu made in the matter i offered in evidence; i the interrogatories is


P. L. N. J. 1903, p. 537, § 140, providing that either party to a suit at law may submit interrogatories to the other concerning matters material to the issue, and that written answers shall be made thereto within 30 days, which answers shall only be evidence in the cause if offered by the party proposing the interrogatories, is inapplicable to federal courts sitting in New Jersey.

[Ed. Note.—Procedure of federal courts and adoption of state practice as to taking proof, see notes to Diamond Coal & Coke Co. v. Allen, 71 C.

C. A. 10.] 2. SAME.

Act Cong. March 9. 1892, c. 14, 27 Stat. 7 (U. S. Comp. St. 1901, p. 664). providing that in addition to the mode of taking depositions in cases pending at law or equity in the district or circuit courts of the United States it shall be lawful to take the depositions or testimony of witnesses in the mode prescribed by the laws of the state in which the courts are held, does not enlarge the causes or grounds for taking depositions for use in


Where interrogatories were served on defendant, to be answered by him and used at the trial of the cause in a federal court, under P. L. N. I. 1903. p. 537, 8 140, authorizing such practice, which was inapplicable to the federal courts, defendant was not required to wait until the answers were offered in evidence before objecting thereto, but was entitled to raise

the question of their regularity by a motion to strike.
On Motion to Strike Out Interrogatories.
Henry G. Ward and Charles E. Gummere, for the motion.
John Rellstab and A. V. Dawes, opposed.


CROSS, District Judge. The plaintiff has served upon the defendant written interrogatories, to be answered by him and to be used on the trial of the cause. Presumably they were propounded under au

on 140 of an act of the Legislature of the state of New “An act to regulate the practice of courts of law" (P. 7), which provides, in substance, that either party may gatories to the other concerning matters material to the tten answers shall be made thereto within 30 days, and ers shall be evidence in the cause if offered by the ng the interrogatories, but not otherwise. Motion has strike out these interrogatories, on the ground “that the 1 interrogatories was not warranted by the acts of Connting United States Circuit Courts, nor by the practice of the said court." at unnecessary to go into any extended discussion of the since it is well settled that such practice is not permissible i States courts. We do not understand that there is any de that such interrogatories could not have been submitnswers thereto given in evidence prior to the statute passed 92, 27 Stat. 7, c. 14 (U. S. Comp. St. 1901, p. 664). The parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724, 28 L. Ed. 1117, of this point. The act of Congress of 1892, above referred enlarged the power of the court in this respect. In Hanks n. v. Tooth Crown Co., 194 U. S. 303, 24 Sup. Ct. 700, 48 , Chief Justice Fuller, speaking for the court, says, with o this act, that: not purport to repeal in any part or to modify section 861 [U. S. 901, p. 661), or to create additional exceptions to those specified sequent sections by enlarging the causes or grounds for taking

and, as it is applicable alone to the taking of depositions or testiriting, we cannot attribute to it any such effect, nor hold. this hat it is supplementary to section 914 [U. S. Comp. St. 1901, p.

I on in the opinion he says. be courts of the United States are not given discretion to make s not authorized by federal law, but, in respect of depositions thereized to be taken, they may follow the federal practice in the manking, or that provided by the state law." nal Cash Register Company v. Leland, 94 Fed. 502, 37 C. C. and Despeaux v. Penn R. R. Co. (C. C.) 81 Fed. 897, are to e effect. Other cases might be cited were it necessary, but em to give a clear exposition of the object and effect of the 1892, and, in view of the exposition so given, we are thrown on the decision in Ex parte Fisk, which controls the case now consideration. tiff's counsel contends that these interrogatories should be

as in the nature of a bill for discovery, and as simplifying actice in that respect. A reference to the opinion in National Register Company v. Leland, however, shows the contrary to be -w. He also suggests that the motion to strike out the interories is premature, or, rather, that no objection can properly be

in the matter until the answers to the interrogatories shall be d in evidence; but this cannot be so, since, if the submission of nterrogatories is unwarranted, the defendant may wholly disre

gard them. If he should refuse to answer them, he could not be punished for contempt, and, if such an attempt were made, he could avail himself of the remedy adopted in Ex parte Fisk.

The interrogatories will be suppressed.

(Circuit Court of Appeals, Fourth Circuit. May 31, 1907.)

No. 705.


Defendant, hiwving a claim against L., and desiring to obtain certain documentary evidence in possession of the husband of plaintiff's decedent, contracted to pay decedent or her assigns $4,325 on a specified date, in consideration of a delivery of the papers, and further obligated himself to pay decedent, in addition, $5,000 out of any money he might recover and collect from L. or F. under a specified contract, on condition that defendant recover judgment against L. for the amounts of money that might be recovered against defendant thereafter, for which defendant had claims against L. under his contract. Defendant thereafter compromised his suit against L., taking the note of a third person in full satisfaction of the claim. Held, that such compromise rendered performiance of the condition by which decedent was entitled to the additional payment impossible, and she, not being responsible therefor, was entitled to recorer the additional payment, as though the condition had been performed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, 1446.] In Error to the Circuit Court of the United States for the Northern District of West Virginia, at Parkersburg.

H. P. Camden, for plaintiff in error.

George E. Price and Richard S. Ker (W. N. Miller and Braxton, Ker & McCoy, on the briefs), for defendant in error.

Before GOFF and PRITCHARD, Çircuit Judges, and MORRIS, District Judge.


ti SE

PRITCHARD, Circuit Judge. This is an action at law instituted by defendant in error against plaintiff in error in the Circuit Court of the United States for the Northern District of West Virginia, at the trial of which judgment was had in favor of the plaintiff below for the sum of $3,167.20, from which judgment defendant' below sued out a writ of error.

From an examination of the record, 'it appears that on the 23d day of November, 1893, the plaintiff in error in this action instituted suit in the Circuit Court of the United States for the Eastern District of Virginia, in assumpsit, against Robert A. Lancaster, demanding damages in the sum of $30,000, in which action plaintiff in error was seeking to recover the sum of $18,090.87, alleged to be due by reason of a certain contract in relation to the purchase of the stock of the Greenbrier White Sulphur Springs Company. Lancaster 'was supposed to be insolvent at that time. Plaintiff in error and George L. Peyton had both been stockholders and directors of the Greenbrier White Sulphur Springs Company. On December 1, 1893, George L. Peyton was in



als sar ant are


plaintiff in error in Washington City, to discuss other he affairs of plaintiff in error in connection with the Springs Company. During the conversation, it appears d plaintiff in error about certain papers of value to on with the Lancaster suit then pending, which papers plaintiff in error, and, being asked what he would take ied that he would take $10,000 for the same. Aftthe matter for some time, plaintiff in error accepted the 1 gave his obligation, which is the basis of this suit, and 1 of the papers; the terms of the agreement being that

error was to pay Mrs. Peyton, the wife of George L. m of $10,000. The consideration moving the plaintiff in rtake such payment was valuable papers actually delivatemporaneously with the making of the contract; that nsideration of $10,000, $5,000 thereof was to be paid in t the remaining $5,000 was only to be paid upon condintiff in error should recover judgment against Robert A.

the claims which he had against said Lancaster, and he basis of the suit then pending against him. Under this ntiff in error paid the $5,000 which was to be paid in any eclined to pay the remaining $5,000. On the 12th day of 1904, the plaintiff in error compromised the Lancaster suit of $7,500, to be paid out of the proceeds of a certain Broun ollected. tanding the fact that the defendant in error relies upon a tract, which purports to have been executed for a valuable on, to wit, valuable papers delivered to Camden, nevertheattempted to vary the contract by oral testimony. It is inlaintiff in error, that instead of the contract being a single t is really two contracts in one, relating to separate and atters, and demanding separate and distinct performances. al of the case in the court below, the learned judge admitted over the objection of defendant in error, by which it was

prove a different consideration from that stated in the consubmitted certain instructions, tendered by the plaintiff and t, respectively. The defendant filed a bill of exceptions toith an assignment of errors, and the plaintiff likewise filed a xceptions together with an assignment of errors. e, comes before this court on writs of error sued out by the reparties. original declaration contained three counts, and a demurrer erposed by the defendant to the same, and the demurrer was d as to the first and second counts, and the action was remandCules, with leave to amend at bar or at rules, whereupon an d declaration was filed. A demurrer to the declaration was terposed by the defendant below, but the court overruled the

We have carefully considered the contentions of the defendlow relating to the allegations contained in the declaration, and opinion that the same are without merit. real question involved in this controversy is whether the plainelow is entitled to recover upon the contract upon which this ac

The case,

tion is based. It appears from the evidence, as well as the contract, that on the 1st day of December, 1893, the defendant in error delivered to the plaintiff in error certain valuable papers, for which the plaintiff in error undertook and agreed to pay the defendant in error on May 1, 1894, $1,325, and, "in addition to the above-named amount,” to pay to the plaintiff the further sum of $5,000 upon the happening of the condition set forth in the contract. The contract is as follows:

"This is to show that I have this day, Dec, 1st, 1893, agreed to pay Mrs. Mary C. Peyton or her assigns four thousand three hundred and twenty-five ($4,325) dollars on May 1st, 1894. The consideration is for valuable papers delivered to me this day. And I further agree and obligate myself to pay her in addition to the above named amount five thousand ($5,000) dollars out of any money I may recover and collect from R. A. Lancaster or F. 0. French, under my contract with the said R. A. Lancaster of May 31st, 1881. Upon the condition that I recover judgments against said Lancaster for the amounts of money that may be recovered against me hereafter, for which I may have claims against the said Lancaster under and by virtue of said contract."

It appears from the evidence that the plaintiff in error had brought suit against a man named Lancaster, and that the husband of Mrs. Mary C. Peyton had in his possession certain valuable documentary evidence which was material to the questions involved in the controversy between the plaintiff in error and Lancaster, and the plaintiff in error, being anxious to secure this evidence, entered into the foregoing contract, by which he agreed to pay on the 1st day of May, 1894, the sum of $4,325, and also agreed to pay the further sum of $5,000 upon condition that he recovered judgment against Lancaster; in other words, the plaintiff in error agreed to pay Mrs. Mary C. Peyton the sum of $5,000 in addition to the sum first mentioned in the contract, provided he succeeded in accomplishing what he had undertaken by the suit he had instituted against Lancaster. It appeared that for some reason, which is unexplained by the record, the plaintiff in error entered into a compromise by which he secured a note from a man by the name of Broun in full satisfaction and compromise of the claim which he held against Lancaster. The action of the plaintiff in error in compromising the suit which he had instituted against Robert A. Lancaster rendered impossible the happening of the condition upon which defendant in error, according to the terms of the contract, would have been entitled to recover the sum of $5,000. The defendant in error was in no wise responsible for this condition of affairs, and under these circumstances we are called upon to determine whether the plaintiff in error by his action in compromising the suit would be entitled to take advantage of a situation whereby his acts rendered the performance of the contract impossible. It is admitted that the plaintiff in error compromised his claims against Lancaster, which forever precluded the possibility of securing a judgment upon the same. It is a well-settled principle of law that where the obligor to a contract which contains a condition does that which renders the performance of the condition impossible he immediately becomes liable on his contract.

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