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. SMITH V. INTERNATIONAL MERCANTILE CO. 1. COURTS-FEDERAL COURTS-DISCOVERY-EFFECT OF STATE STATUTES. [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 the federal courts. 3. SAME-INTERROGATORIES-MOTION TO STRIKE OUT. 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. J. 1903. p. 537, § 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. 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 thority of section 140 of an act of the Legislature of the state of New Jersey entitled "An act to regulate the practice of courts of law" (P. L. 1903, p. 537), which provides, in substance, that either party may submit interrogatories to the other concerning matters material to the issue, that written answers shall be made thereto within 30 days, and that the answers shall be evidence in the cause if offered by the party proposing the interrogatories, but not otherwise. Motion has been made to strike out these interrogatories, on the ground "that the service of said interrogatories was not warranted by the acts of Congress constituting United States Circuit Courts, nor by the practice or procedure of the said court." We deem it unnecessary to go into any extended discussion of the proposition, since it is well settled that such practice is not permissible in the United States courts. We do not understand that there is any question made that such interrogatories could not have been submitted, or the answers thereto given in evidence prior to the statute passed March 9, 1892, 27 Stat. 7, c. 14 [U. S. Comp. St. 1901, p. 664]. The case of Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724, 28 L. Ed. 1117, is decisive of this point. The act of Congress of 1892, above referred to, has not enlarged the power of the court in this respect. In Hanks Dental Assn. v. Tooth Crown Co., 194 U. S. 303, 24 Sup. Ct. 700, 48 L. Ed. 989, Chief Justice Fuller, speaking for the court, says, with reference to this act, that: "It does not purport to repeal in any part or to modify section 861 [U. S. Comp. St. 1901, p. 6611, or to create additional exceptions to those specified in the subsequent sections by enlarging the causes or grounds for taking depositions; and, as it is applicable alone to the taking of depositions or testimony in writing, we cannot attribute to it any such effect, nor hold. this being so, that it is supplementary to section 914 [U. S. Comp. St. 1901, p. 684]." Farther on in the opinion he says. "That the courts of the United States are not given discretion to make depositions not authorized by federal law, but, in respect of depositions thereby authorized to be taken, they may follow the federal practice in the manner of taking, or that provided by the state law." National Cash Register Company v. Leland, 94 Fed. 502, 37 C. C. A. 372, and Despeaux v. Penn R. R. Co. (C. C.) 81 Fed. 897, are to the same effect. Other cases might be cited were it necessary, but these seem to give a clear exposition of the object and effect of the act of 1892, and, in view of the exposition so given, we are thrown back upon the decision in Ex parte Fisk, which controls the case now under consideration. Plaintiff's counsel contends that these interrogatories should be treated as in the nature of a bill for discovery, and as simplifying the practice in that respect. A reference to the opinion in National Cash Register Company v. Leland, however, shows the contrary to be the law. He also suggests that the motion to strike out the interrogatories is premature, or, rather, that no objection can properly be made in the matter until the answers to the interrogatories shall be offered in evidence; but this cannot be so, since, if the submission of the interrogatories 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. CAMDEN v. JARRETT, Sheriff. (Circuit Court of Appeals, Fourth Circuit. May 31, 1907.) No. 705. CONTRACTS-PERFORMANCE-CONDITIONS. Defendant, having 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 performance of the condition by which decedent was entitled to the additional payment impossible, and she, not being responsible therefor, was entitled to recover 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, Circuit Judges, and MORRIS, District Judge. 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 Aft vited to meet the plaintiff in error in Washington City, to discuss other suits involving the affairs of plaintiff in error in connection with the White Sulphur Springs Company. During the conversation, it appears that Peyton told plaintiff in error about certain papers of value to him in connection with the Lancaster suit then pending, which papers he showed the plaintiff in error, and, being asked what he would take for them, replied that he would take $10,000 for the same. er considering the matter for some time, plaintiff in error accepted the proposition, and gave his obligation, which is the basis of this suit, and took possession of the papers; the terms of the agreement being that the plaintiff in error was to pay Mrs. Peyton, the wife of George L. Peyton, the sum of $10,000. The consideration moving the plaintiff in error to undertake such payment was valuable papers actually delived to him contemporaneously with the making of the contract; that of the said consideration of $10,000, $5,000 thereof was to be paid in any event, but the remaining $5,000 was only to be paid upon condition that plaintiff in error should recover judgment against Robert A. Lancaster on the claims which he had against said Lancaster, and which were the basis of the suit then pending against him. Under this contract, plaintiff in error paid the $5,000 which was to be paid in any event, but declined to pay the remaining $5,000. On the 12th day of September, 1904, the plaintiff in error compromised the Lancaster suit for the sum of $7,500, to be paid out of the proceeds of a certain Broun note when collected. Notwithstanding the fact that the defendant in error relies upon a written contract, which purports to have been executed for a valuable consideration, to wit, valuable papers delivered to Camden, nevertheless it was attempted to vary the contract by oral testimony. It is insisted by plaintiff in error, that instead of the contract being a single contract, it is really two contracts in one, relating to separate and distinct matters, and demanding separate and distinct performances. On the trial of the case in the court below, the learned judge admitted evidence over the objection of defendant in error, by which it was sought to prove a different consideration from that stated in the contract, and submitted certain instructions, tendered by the plaintiff and defendant, respectively. The defendant filed a bill of exceptions together with an assignment of errors, and the plaintiff likewise filed a bill of exceptions together with an assignment of errors. therefore, comes before this court on writs of error sued out by the respective parties. The case, The original declaration contained three counts, and a demurrer was interposed by the defendant to the same, and the demurrer was sustained as to the first and second counts, and the action was remanded to rules, with leave to amend at bar or at rules, whereupon an amended declaration was filed. A demurrer to the declaration was also interposed by the defendant below, but the court overruled the We have carefully considered the contentions of the defendant below relating to the allegations contained in the declaration, and are of opinion that the same are without merit. same. The real question involved in this controversy is whether the plaintiff below is entitled to recover upon the contract upon which this ac 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, $4,325, 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. O. 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. |