,586
J!'ED:ER4L RE:PORl'ER,
vol.. 44.
The. judgment will be entered j , with interest from date of verdict. This will give ,the defendant the right to sue out its writ of error. Wpere side ,theJaw.,willeanction it, we. should so apply it as to give an opportunity of review. ,)
..
;
.
:BlJTI.EB '
fl·· POOLE.
(G'«rcu(t Court, D. J ,-,': ' j ; ! ; ' ,
Ma88aChmett8. December 80, 18110.) ..' ·... . ·.·. .... .
on the stock are subjeot to the state statutes of limitatioIlll. {; I · .'
Abtiona by the receiver of a national bank against stockholders for aueumeaa . i . ' .:
," iA,taw.,' On motion to quash the .writ:ofscireJacia8· . for'plllintitr.·· .' . I Johb JAufelJ. and George Hale, for defendant·. '.... _{;',. :' .. ': ' . !; t
.eific .Natidnal ,Bank agll.imst Seth ,B·. Poole" to recover an assessment on shares·of 'stockowned:by him at the time of the fallure of the 'bank.' 'Fhe·.writ is dated::lv.[arch 14, 1883. On the 9th day of Febru:ary, 1884:"the Poole died, and on November 16, 1886, hiB was suggested January 28, 1887, the plaintiff's cOUniel filed, a petition for a 8cire facias to summon in the executors of defendlant's iwill,which was gmntedand issued without notice·.·. Counsel' for ·the now appear specially, and move to quash the 8cire fama, and'diswiss,tbe suit, upon the ground that the.action is barred by. the ,following provision of the Public Statutes of Massachusetts, (chapter 8:). :,! , :
,.; COl.'!', J .. 'This is anactitfu at law. brought by tbe.receiver of thePa,.
not be issued after .till' 8.lliPimtionof two yeara from. time l3uc!l executor administrator has the 9f his trust, if he has given notice of hisap. ·. . 11 " ,.. required by ,: ! ,'liqe gave bond. on the 4th day of March, ,1884, and gave The only question upon the present rnaP,9Jil .s :whether t9.!'l of limitations is applicable to S!'lction. 914 of .the Reviseq, Statutes provides that t.h!l prae..#.1l6, and fOrIJ:lB and mode of proceeding in the courts nl'la.r as,may be, tothose of the state. In .actions of hQ,l;! l;1!lld that state statutes of limitation, where no .· pfpyjsh>!;1, has. beell. made by CQngress, form the ,rUle of decision States. McOluny v.SiUiman, 3 Pet. 270j . p12jRo88 v.Duval, ld. 45; Taylor v. Holmes, I 511;fricev. Yate8,19 Am. Law.: J. 295, (1879;) ·. v. T. .1,70. .The CIted It I I I . 1 '. -". .
, '\The citation [to executors ;toappear and defend] shall
LAJtE SUPERIOR SHIP-CANAl.., RY. &:
rnbN· CO. tJ.
CUNNINGHAM.
fiS7 "
by the plaintiff, taking a contrary view, are cases where the'suhjebtmatter is within the exclusive jurisdiction of the federal courts, like patents, and they are not applicable to cases where the jurisdiction iscon-: current. The position taken by the plaintiff that this is, in substance, . an action brought by the government, and thilt therefore the statute does not run, is not tenable. The fact that the receiver in this suit is proceeding under certain provisions of an act of congress establishing a national' banking system does not make this in any proper sense a government case. The government has no pecuniary interest in this suit. Itisin fact a contest between creditors and a stockholder of the bank. It is further urged by the plaintiff that section 955 of the Revised Statutes provides 8cire facia8 as the process to be issued, without any lim-' itation as to the time when the writ may issue. But it has been decided that section 955 is governed by the statute of limitations of the state.' Barker v. Ladd, 3 Sawy. 44; Price v. Yates, 19 Alb. Law J. 295·. That the Massachusetts statute provides one mode of bringing the parties' before the court, and the federal statute another, is not material in this connection. Congress might adopt a totally different system of ing from that of the l:!tates, and yet the state statute of limitations would apply. M.otion granted. ·
LAKE
SUPERIOR SHIP.CANAL, RAILWAY SA1l1E
& IRON Co.
11. CuNNINGJ,IAM.
v.
DONAHOE.
SAME 11. FINAN.
(Circuit Court, W. D. M1.cMgan, N. D. July 27, 1890.)
L
EmCTMRNT- WHEN MAINTAINABLE-GRANTs oir PUBLIC LAND-VOID SELECrI01'l'CONFIRMATION, '.
Wbere, under a grant of pUblic lands to aid In the cODstruction of a canal; a selection Is made of lands wblcb had been appropriated under a prior g-rant. and so were.not subject to selection u.nder tbe later one,:a subsequent act of congress confirming tbe lands to the canal company does not relate bal"k to tbe date of selection so as to enable tbat company to maintain ejectment for the lands brought before thepas&age of the confirming act. GRANTEE: RAILROAD
S.
AID -
OVERLAPPISG
GRANTS -
SURRENDER BY ,ONB ·
a.
Where the limits of lands· granted in aid of the construction of two branche\l of a railroad by tbe act of congress of ISM overlap, a .release and surrender of the lands in the common limits by descriptions, by a railroad company wbich bas acquired the rights of both the original companies on tbose brancbes and by the governor of tbe state, in its behalf, to tbe United States, is a valid surrender of all the laDlts witbin the common or overlapping limits. " ". " PUBLIO" LANDs-GRANTs-FoRFEITURE-COSFIR)fATION TO INTERVESING CLAIMANTS.
Act Cong. March 2, 1889. declaring a forfeitul'e of certain lands theretofore' granted to the state of Michigan, in aid of cert;ain railroads, provides, in' section 2,. that "this act sball not be construed to prejudice' any right of the Portage Lake 'Canal. 00, * * * to apPlY hert-after to tbe CCilUl'ts. or to .congress for any relief, ' , legal \>1' eqUitable, to whlCb tbey may now be entitled. " . .f:le,la, tbat tbis special pro- I 'Vision /for the claims of the canal company eXCludes it from' tbe benefit of the general . !Is.;of section,S. which confirms the titles of to Whom. anY'·of'tinch. IBnd's have been dispo/led of under color of the pubhc land govern: : consideratioD. . . "