(256 F.) 8. If the renting of the upper front room had been of a character which would, if it had been of an entire house, have divested the homestead character, that effect will not follow; it being an inseparable part of the house. Under the Texas decisions, the property in controversy was properly held exempt as part of the homestead of the bankrupt. The judgment is affirmed. SCRUGHAM et al. v. SHOUP et al. In re THOMPSON. (Circuit Court of Appeals, Third Circuit. February 13, 1919.) No. 2321. APPEAL AND ERROR 329-INTERVENTION IN APPELLATE COUrt. An appellate court will not permit an intervention in an appeal before it, which raises new issues not presented to or passed on by he court below. Petitions on Behalf of Respondents for Decision in the District Court of the United States for the Western District of Pennsylvania; W. H. Seward Thomson, Judge. In the matter of Josiah V. Thompson, bankrupt. From an order obtained by George E. Shoup and others, George E. Scrugham and others, trustees, appeal. On petitions of Hugh G. Bourie, executor, and others, and James H. McGraw and others. Order for report by trus tees. Weil & Thorp, of Pittsburgh, Pa. (A. Leo Weil, S. Leo Ruslander, and L. Pearson Scott, all of Pittsburgh, Pa., of counsel), for petitioners. William S. John, of Morgantown, W. Va., F. W. Downey, of Waynesburg, Pa., and Thomas H. Hudson, of Uniontown, Pa., for respondents. Before BUFFINGTON and WOOLLEY, Circuit Judges. WOOLLEY, Circuit Judge. The facts of this case so far as they relate to matters now under consideration are these: In January, 1915, the Court of Common Pleas of Fayette County, Commonwealth of Pennsylvania, appointed receivers for the estate of Josiah V. Thompson, an individual. In May, 1917, the Supreme Court of Pennsylvania annulled the action of the Court of Common Pleas and vacated the receivership. On August 20, 1917, a voluntary petition in bankruptcy was filed against Josiah V. Thompson in the District Court of the United States for the Western District of Pennsylvania, and, in due course, trustees were appointed for the administration of his estate. On the day following the filing of the petition and before the appointment of receivers or trustees, Thompson filed in the bankruptcy court a petition, showing that five of his mortgage creditors had previously reduced their mort For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes gages to judgment in courts of the Commonwealth of Pennsylvania and that the coal lands secured thereby, situate in Green and Washington Counties in the said Commonwealth, were then advertised for sale under outstanding writs of execution, and praying that the said mort gage creditors be restrained from proceeding further on their execu tions. The mortgage creditors named in the petition showed by thei several answers that suits had been brought on their mortgages, judg ments recovered, and executions issued prior to the proceeding in bankruptcy, and claimed accordingly, that the state courts having acquired jurisdiction of the subject matter could not be ousted of their jurisdiction by the Federal courts under bankruptcy proceedings subsequently instituted. The bankruptcy court granted a temporary restraining order extend ing to November, 1917, with leave to proper parties to move for its continuance. Later, the trustees of the bankrupt, having in the meantime been appointed, prayed that the order be continued to enable them to make an investigation of the loss which the estate would sustain if the order were annulled, and further to enable them to consummate a sale of all or a greater part of the coal lands of the estate at a price that would not only discharge the debts of all secured creditors but would enure appreciably to the discharge of debts of unsecured creditors. To this petition the several mortgage creditors demurred, and, on hearing, the petition for a continuance of the restraining order was denied. From this last order the trustees ap pealed, raising here as below a question of conflict of jurisdiction between State and Federal courts, which briefly stated is: Whether a court of bankruptcy has power to enjoin a state court from proceeding to sale of property secured by a mortgage given by the bankrupt more than four months prior to filing a petition in bankruptcy and reduced to judgment and execution within four months prior to the filing of the petition. While this appeal was pending and before a decision on the one question involved had been rendered, Hugh G. Bourie, Executor, et al. and James H. McGraw et al. sought to intervene, and by their petitions showed that they are creditors of Josiah V. Thompson, the bankrupt, holding liens against coal lands of the bankrupt situate in the States of Pennsylvania and West Virginia, on which they had instituted actions in courts of those states; that in addition to the restraining order issued by the District Court of the United States for the Western District of Pennsylvania, brought under review by this appeal, the District Court of the United States for the Northern District of West Virginia, an ancillary court of bankruptcy, had entered an order in comity with the order of the District Court of the United States for the Western District of Pennsylvania restraining further proceedings in the state courts of West Virginia against the lands of the bankrupt estate; and complaining grieviously of undue delay on the part of this court in rendering a decision in the case to which they even then were not parties-the petitioners prayed, first, that a prompt deIcision be made on the question raised on demurrer by the several Pennsylvania creditors holding mortgages against certain of the bank (256 F.) rupt's lands in Pennsylvania, and second, that the decision be in accordance with the contention of the Pennsylvania mortgage creditors, the appellees in this appeal. An examination of these petitions shows that the questions of law they raise while related perhaps to the questions in this caseare not predicated on a like state of facts and are not the same questions of law. Being different questions newly raised, we are not required to entertain them on this appeal when they have not been presented to nor passed on by the court below, nor are we disposed further to involve this complicated case by injecting new questions. on the eve of its decision. But we desire, of course, to secure to these petitioners, if we can, the right to proceed in their cases in their own way, if it can be done in a manner not inconsistent with the rights of the bankrupt estate. Therefore, we are inclined to limit. the scope of the restraining order of the District Court of the United States for the Western District of Pennsylvania, still in force and involved in this appeal, so that the District Court of the United States for the Northern District of West Virginia shall no longer feel bound in comity to follow that restraining order with one of its own, but may, if it choose, exclude from the operation of its order so much of the lands of the bankrupt situate in West Virginia as are not presently and actively in process of sale or disposition by the trustees in the administration of the bankrupt estate, thereby permitting creditors holding liens upon such lands to proceed thereon in such courts and in such manner as may in law be right. Such action on our part would of course involve no intimation of our opinion for or against the jurisdiction of the bankruptcy court, either original or ancillary, to hold and administer the entire bankrupt estate by the officers and through the courts provided by the bankruptcy law. With this in view, we recently directed counsel for the trustees to report to this court the tracts of coal land of the bankrupt estate situate in West Virginia, with reference to which the trustees were doing nothing toward their sale or disposition. Instead of making such a report, counsel for the trustees have filed an argument against any action by this court tending to allow lien creditors in West Virginia, acting under authority of the District Court of the United. States for the Northern District of West Virginia, to enforce their liens against lands for the sale of which the trustees have no present plans or prospects. As we shall not obstruct or delay secured creditors in the enforcement of their rights when there is involved in opposition no question. of rights of unsecured creditors, it becomes necessary to transform our request for the requisite information into an order. Therefore, as it is quite impossible to discover from the record now before us what lands of the bankrupt estate situate in West Virginia are not embraced in transactions of sale, we request the trustees of the bankrupt and the petitioning creditors of West Virginia to designate by stipulation, if they can, the West Virginia lands thus intended to be released from the original and ancillary restraining orders, and failing such stipulation, we order the trustees of the bankrupt to make to this court on the first day of the March term next ensuing a report of such coal lands of the bankrupt estate, by appropriate description, as will enable this court to dispose of them according to the premises. COVINGTON COUNTY, ALA., v. STEVENS. STEVENS v. COVINGTON COUNTY, ALA. (Circuit Court of Appeals, Fifth Circuit. March 5, 1919.) 1. COURTS 363-FOLLOWING STATE LAW-ACTIONS AGAINST COUNTY- A state law requiring claims against a county to be presented to the county board before suit may be maintained thereon is reasonable and valid, and will be recognized and enforced by a federal court unless the county board has taken action which was equivalent to rejection of the claim, and rendered its presentation unnecessary and futile. 2. COUNTIES 197-ACTIONS AGAINST-PRESENTATION OF CLAIM TO COUNTY BOARD. A claim for attorney's fees, based on an injunction bond given by a county in a suit in which it was defeated, need not be presented to the county board; such fees, if recoverable, being an incident to litigation begun by the county. 3. COUNTIES 201-CLAIMS AGAINST-PRESENTATION. Presentation to a county board of a claim for a stated suni as "actual and exemplary damages" for an alleged libelous suit does not meet the requirement of a statute requiring an itemized statement. a 4. COUNTIES →206(1)—CLAIMS AGAINST CONCLUSIVENESS OF ALLOWANCE. Under the law of Alabama a county may maintain a suit to have claim against it allowed by the county board, which claim has not been substituted by a new character of county obligation, declared invalid, and a decision against it in such suit is an adjudication of the validity of the claim. 5. INJUNCTION 252(6)—LIABILITY ON BOND-ENFORCEMENT IN INJUNCTION SUIT. Judgment may be given on an injunction bond for damages proved, arising from the issuance in the case of a preliminary injunction, which is dissolved, but attorney's fees and other expenses incident to the suit are not allowable in a federal court. 6. SET-OFF AND COUNTERCLAIM PLAINTIFF'S PLEADINGS. 34(2)-COUNTERCLAIM-LIBEL BASED ON a Damages for libel based upon the allegations of the pleadings in suit in equity in a federal court cannot be set up by way of counterclaim 7. COUNTIES 141-LIABILITY FOR TORTS-LIBEL. A county cannot be held for damages for libel. Appeal and Cross-Appeal from the District Court of the United States for the Middle District of Alabama; Henry D. Clayton, Judge. Suit in equity by Covington County, Ala., against W. L. Stevens, From the decree, both parties appeal. Affirmed in part, and reversed in part. November 10, 1914, W. L. Stevens made a contract with the board of revenue of Covington county, Ala., by which he was to be employed as architect For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (256 F.) for a new courthouse. He agreed to prepare all general and detail drawings and specifications and do all things necessary and usual in the planning and supervision of construction. His services were to begin at once, and he was to complete drawings and specifications so that the contract might be awarded not later than November 30, 1914. He was to attend to all advertising, to assist in opening bids and awarding the contract, to supervise construction, and to keep, at his expense, on the building a competent superintendent at all important stages of construction. The contract provided: "For the faithful and proper performance of this contract, the party of the second part shall pay to the party of the first part a commission of 5 per cent. of the contract price of the work, three-fifths of which shall be paid at the time of letting the contract, by warrants on the county treasurer of Covington county, Ala., bearing interest at the rate of 6 per cent. per annum, and the balance of two-fifths of which amount as the work progresses." On November 30th, the board met to receive bids, but did not award the contract. On the 1st day of December the time was extended until the 5th. On the 5th, E. R. Merrill filed a bill of complaint in the chancery court against the board and Stevens, praying that they be restrained from accepting any bids on December 5th. A temporary injunction was granted. After service of the writ, the board, on the 24th of December, entered into a contract with the Falls City Construction Company. On the 1st of January, Merrill amended his bill, setting up the facts with reference to the violation of the injunction, making the Falls City Construction Company a party, and praying that it be restrained from further proceeding under its contract. The injunction, granted in accordance with the prayer, having been disobeyed, proceedings in contempt were begun, and, the matter reaching the Supreme Court of Alabama, the court issuing the injunction was held to have been without jurisdiction. On the 1st of January, 1915, the terms of office of the members of the board of revenue expired, and a new board was inducted into office. Prior to the expiration of the term of the old board, a treasurer's warrant was issued to Stevens for an amount equal to 3 per cent. of $139,500, this being the amount of the maximum bid of the Little-Cleckler Construction Company. This warrant had a marginal note to the effect that it was payable in February, 1916. The warrant drew interest at 6 per cent. The chairman of the board of revenue refusing to sign the warrant, it was signed by the other members of the board. The new board passed resolutions declaring the contract with Stevens and the contract with the Falls City Construction Company void, and took steps to let a new contract. On June 21, 1915, the county instituted in the equity court of the Southeastern chancery division of Alabama a suit against the Falls City Construction Company, W. L. Stevens, W. H. Johnson, and M. C. Gantt. Gantt was alleged to be a resident of the county of Covington, Ala. The bill recited facts hereinbefore set out, and made further allegations to the effect that Stevens was, at the time he became employed by the county and afterwards, working to secure the contract for the Falls City Construction Company. Allegations were also made to the effect that the plans and specifications were not completed in time; that there were conflicting provisions in the specifications; that the terms of the specifications were indefinite; that no person could safely bid, except by adding amounts which might be required from one construction of the plans and specifications as distinguished from another, the interpretation being in Stevens; that the plans were inadequately advertised; that there was an intentional suppression of the fact that the building was to be constructed; that no sufficient time was given for contractors to figure upon the building; that Stevens sent out to prospective bidders what purported to be bids by contractors upon certain parts of the work, the amounts being excessive; that he furnished to certain bidders sheets, showing that the building was to be of a steel frame, the bid of the Falls City Construction Company being based upon concrete frame; and making other allegations questioning the good faith and proper performance of his duty by Stevens. There are also allegations to the effect that the contract was not let to the lowest bidder: |