this situation before the court below, and moved, for the appointment of a receiver. From an order appointing a Mr. Garnett, this appeal is prosecuted. The supreme court of Illinois has not disposed of the firm's case against the city of Chicago. Mr. Weir, executor, and the Messrs. McKechney have not agreed upon the manner in which the assets of the firm shall be collected and distributed. As no question is made but that some court should appoint a receiver, the allegations of the various pleadings and affidavits in that regard are immaterial here.

John S. Miller and Noble B. Judah, for appellants.

Lawrence Maxwell, Jr., and Charles H. Aldrich, for appellee. Before JENKINS, GROSSCUP, and BAKER, Circuit Judges.

BAKER, Circuit Judge, having stated the case thus, delivered the opinion of the court.

Prior to May 14, 1901, the federal circuit court had full jurisdiction of the subject-matter of, and parties to, the original bill. An order had then been entered restraining the defendants from selling or in any way disposing of the assets of the firm. A motion for the appointment of a receiver was pending. That court, therefore, had absolute control of the whole matter, free from the interference of any other court. Farmers' Loan & Trust Co. v. Lake St. El. R. Co., 177 U. S. 51, 20 Sup. Ct. 564, 44 L. Ed. 667. And the sole question is whether the contract and stipulation of May, 1901, deprived that court. of the rightful power to act as it did upon appellee's supplemental bill and motion. Counsel for appellants are entirely right in saying that a suit is under the control of the parties, and that a court has no jurisdiction to be upheld, from imagined considerations of dignity or other motive, against a binding stipulation, and the case is to be scanned. exclusively from that point of view.

What was the situation of the Messrs. McKechney on May 14, 1901? They were defendants to the original bill,-under a restraining order. A motion was pending to have the assets of the firm collected and distributed by a receiver. The parties were willing to avoid that expense if possible. So they agreed,-to what? "The assets of the firm shall be collected and distributed in a manner to be hereafter agreed upon." And "proceedings upon the bill shall be stayed until the supreme court of Illinois shall have rendered judgment in the case of Weir, McKechney & Co. against the city of Chicago, therein pending, and until the method of collecting and distributing the assets shall be agreed upon." With respect to the control and disposition of the assets, a matter then pending in the court below, the parties agreed to agree; that is, they agreed to nothing. But they thereby expressed their desire and intention to endeavor to reach an adjustment later. So they entered into an armistice. They agreed to suspend hostilities until the supreme court of Illinois should dispose of their case and until they should unite upon a method of distributing the proceeds. In determining the scope of this time limit, it must not be forgotten that the evident purpose of the parties was to see if they could not reach a complete settlement. The only remaining asset was the judgment against Chicago. But that fact would not prevent the appointment of a receiver immediately. There might well be pressing

occasion for the appointment of a receiver long before a decision could be had. There might be urgent demands for money to use in that litigation or in defending the firm against claims of creditors, and the parties might be unable or unwilling to raise it. And a motion for the appointment of a receiver was pending when the agreement of May 14th was made. There would be no immediate need of a receiver, if the parties would proceed with their negotiations and take care of emergencies as they arose. The principal thing, therefore, was their agreement to strive in good faith to effect a settlement. The time limit of the stay was not until the supreme court of Illinois should act, but until the supreme court should act and until the parties should reach an agreement. The clause respecting action by the supreme court was coupled with another that evidenced the dominant purpose of the parties, and the whole clearly contemplated that the wait for the supreme court should be conditioned upon the parties proceeding honestly and successfully to a mutually satisfactory conclusion. And if they did not, and if emergencies arose, what was intended? The agreement to agree could not be specifically enforced. It neither dismissed the suit nor furnished a basis therefor. It did not even suspend the restraining order, for Mr. Weir only consented that the Messrs. McKechney might act with respect to the assets in such a manner as he might thereafter agree to. It only stayed the determination of the application for a receiver and the hearing on the merits until the parties found out whether they could close their remaining differences without the court's aid. If they could not, the armistice was at an end. If either refused or incapacitated himself to try, the stay was broken, and the other was at liberty to proceed in the court below as if no attempt at settlement had been made. Now, the Messrs. McKechney, by appearing in the state circuit court and consenting to the appointment of a receiver, abandoned the controlling object of the truce, repudiated their agreement to negotiate with Mr. Weir untrammeled, and placed, so far as they could, the manner of collecting and distributing the assets in the control of the state court. And this is true independently of the question whether they incited Mrs. McKechney to apply to the state court for the appointment of a receiver.

The court below was of the opinion, in which we concur, that the proceedings in the state court were collusive. On the basis that Mrs. McKechney allowed herself to be used as a cloak to mask the purposes of her husband and son, her appeal falls with theirs.

But, collusion aside, Mrs. McKechney has no standing. Mr. Weir did not give her an unconditional obligation to pay $75,000. He assigned her an interest in the subject-matter of a pending suit, with reference to the handling of which the very instrument that gave her her interest made certain provisions. She could not count on these provisions otherwise than as Mr. Weir made them. To have prevented him from taking up and pressing the motion for a receiver which was pending in the federal circuit court when she bought into the suit, it was incumbent upon her to show that he had bound himself not to do so, and that such agreement was in force. There was no direct engagement with her on the subject. She could not take the

benefits of Mr. Weir's stipulation with her husband and son without its burdens.

There is no basis for the claim that Mrs. McKechney, on account of her citizenship in Illinois, could not apply to the federal court for protection of her dependent interests and was compelled to resort to the state court. Ex parte Tyler, 149 U. S. 164, 13 Sup. Ct. 785, 37 L. Ed. 689.

The contention that Mr. Weir could avail himself of the facts exhibited in his supplemental bill only as a defense to the proceedings in the state court is without merit. The federal circuit court had the right to decide for itself whether its original jurisdiction had been lost. The intervening creditors have been permitted to file briefs in support of their position that, after their petitions had been filed, the original parties could not dismiss the suit without their consent. In view of the conclusions already reached, it is needless to decide that question.

The order appealed from is affirmed.

UNITED STATES ex rel. KILPATRICK et al. v CAPDEVIELLE et al.

(Circuit Court of Appeals, Fifth Circuit

No. 1,157.

November 25, 1902.)

1. FEDERAL COURTS-ENFORCING JUDGMENTS AGAINST CITY-EFFECT of State STATUTE.

Act La. No. 5, Ex. Sess. 1870, which prohibits the granting of a mandamus for the collection of judgments against the city of New Orleans, is not binding upon the federal courts, which derive their power to enforce their judgments in such cases by mandamus from section 14 of the federal judiciary act of 1789, now Rev. St. § 716 [U. S. Comp. St. 1901, p. 580].

2. CITIES-CREATION OF INDEBTEDNESS-NEW ORLEANS DRAINAGE WARRANTS. Under Act La. No. 16 of 1876, authorizing the city of New Orleans to purchase the drainage plant and franchises of the Mississippi Gulf Ship Company, and to pay for the same in drainage warrants, payable exclusively out of drainage assessments, warrants so issued did not create a new indebtedness, since they covered not only the price of the property, but a settlement of an existing indebtedness of the city to the previous owners upon assessments theretofore made against it as the owner of streets and other public property, which had been reduced to judgments; and holders of the warrants are entitled to enforce collection of such assessments for their benefit.

8. SAME-AUTHORITY TO LEVY SPECIAL TAX.

The authority given by the Louisiana drainage acts of 1858, 1859, 1861, and 1871 to make special assessments against the city of New Orleans, as owner of the streets and public grounds, for the cost of drainage work, necessarily carried with it, in the absence of express provision otherwise, authority for the levy of a special tax by the city to discharge the indebtedness created, in addition to the regular levy authorized for general municipal purposes.

McCormick, Circuit Judge, dissenting.

1. Enforcement of judgment against municipality by mandamus, see note to Holt Co. v. National Life Ins. Co. of Montpelier, Vt., 25 C. C. A. 475. 13. See Municipal Corporations, vol. 36, Cent. Dig. §§ 2040, 2043.

In Error to the Circuit Court of the United States for the Eastern District of Louisiana.

By Act No. 165 of 1858, amended by Act No. 191 of 1859 and Act No. 57 of 1861, certain drainage districts were established covering certain territory within the city of New Orleans. The cost of the work was imposed on all the lands within the several districts. Assessments were made against private owners, and against the city as quasi owner of the streets and other public places, by the boards of the several districts prior to 1871. In that year the legislature, by Act No. 30, transferred the powers and duties of the boards to the Mississippi Gulf Ship Canal Company. Subsequent to this transfer the administration of the city made further assessments under authority of Act No. 30. All of these assessments were reduced to judgment between the years 1861 and 1872. They constituted the fund out of which the Canal Company was to be paid for the drainage work required to be done under said Act No. 30. By Act No. 16 of 1876, approved February 24th, the city of New Orleans was authorized to purchase the drainage plant and franchises of the canal company, and to discharge the price in drainage warrants, payable exclusively out of drainage assessments. Pursuant to this authority, the city, on the 7th of June, 1876, made the purchase, and issued $300,000 of warrants in payment of the price. The Jackson warrants involved in this suit are part of that issue. Jackson intervened in the suit of Warner v. City of New Orleans, No. 12,350 on the docket of the circuit court, which was brought on part of the same class of warrants by the complainant in his own interest and that of others similarly situated, and recovered a decree against the city for the amount of these warrants, payable out of drainage assessments, as follows:

No. 12,350.

"United States Circuit Court, Eastern District of Louisiana. "John G. Warner et als. v. City of New Orleans. "This cause came on to be further heard at the present term upon the intervention of James Jackson, the proofs and master's reports as heretofore confirmed by the court, and was argued by counsel for the respective parties. Thereupon, in consideration thereof, it was ordered, adjudged, and decreed as follows: First. That the court finds in accordance with the reports of the master, and decrees that the defendant is chargeable with and owes drainage taxes assessed against it upon the area of the streets, squares, and public places within the several drainage districts of the city of New Orleans under the provisions of the acts of the legislature of the state of Louisiana, as set forth in the original and amended bill of complaint, to the amount of one million eight hundred and fifty-three thousand and three hundred and thirty-six and 52/100 dollars ($1,850,336.52); that defendant is indebted in said sum to the drainage fund established by the decree in this cause of December 5, 1898, as a trust fund for the benefit of the complainant and all of the holders of drainage warrants, including the intervener, James Jackson, similar to those of complainant, who have established their claims before the master; that said fund so due by the defendant is more than sufficient in amount to pay all the drainage warrants issued by defendant under authority of the act of the legislature of the state of Louisiana No. 16, of February 24, 1876, in principal and interest; and that the intervener, James Jackson, is entitled to an absolute judgment against the defendant for the sum of forty-five thousand dollars, with 8 per cent. per annum interest thereon from June 6, 1876, until paid, as found by the master in his several reports which have been heretofore confirmed. Second. It is therefore ordered, adjudged, and decreed that the said James Jackson do have and recover absolute judgment against the defendant, the city of New Orleans, for the sum of forty-five thousand dollars, with eight per cent. per annum interest thereon from June 6, 1876, until paid, with all costs of suit, and that he have execution therefor against the defendant as in cases of suits at common law in actions of assumpsit, according to the rules in equity established by the supreme court. It is further ordered that A. G. Brice, Esq.. master, be allowed a fee of one thousand dollars, to be taxed against the

defendant as part of the costs in the cause. Thus done and signed in open court at New Orleans, La., on this the fourteenth day of June, A. D. 1901. "[Signed] Charles Parlange, U. S. Judge."

Execution issued on the decree June 26, 1901, and was returned nulla bona July 29, 1901. On the 1st of February, 1902, the petition for a mandamus in this case for the levy of a tax to pay said decree was filed in the circuit court. The answer filed by the mayor and councilmen of the city denied all the allegations of the petition as to the rendition of the decree, the issuance of an execution and the return of the marshal thereon, but substantially contains only two defenses: (1) That Act No. 5, Ex. Sess. 1870, affords the only remedy to which relators can resort for the collection of their judgment, and that said act prohibits the granting of a mandamus for its collection. This act provides that judgments shall be registered with the comptroller of the city, and paid in the order of registry. (2) That at the present time the city has no unexercised power of taxation, the present rate authorized by law being 22 mills on the dollar, which has been levied.

The evidence in the case, as set out in the bill of exceptions taken to the charge of the court below, is undisputed and without conflict. It appears from the stipulation signed by the attorney of the city that the following drainage taxes against the city have been assessed: Assessment in the First drainage district, dated September 12, 1861, and reduced to judgment March 11, 1863, $223,110.60; in the Second district, assessment dated March 11, 1861, and reduced to judgment November 11, 1868, $199,997.17; in the Third district, assessment dated March 30, 1872, $207,441.46; in the Fourth district, assessment dated November 8, 1872, and reduced to judgment March 13, 1873, $69,956.77. These assessments, as appears from the findings of the master, and by the court in the decree in favor of Jackson, amounted, in principal and statutory interest, to $1,850,336.52, at the date of the decree. It appears that when the drainage plan or scheme was put in operation by the Acts of 1858, 1859, and 1861, which authorized the assessments to be made, Act No. 164 of 1856, which limited the rate of taxation to 1%1⁄2 per cent. for all purposes, was in force, and continued in force up to 1870; that this rate of 1% per cent. was levied each year up to 1870, except for the years 1862 and 1863, in which years only 1 per cent. was assessed, leaving an unused taxing power of one-half of 1 per cent. in each year. It appears that from 1870 to 1872 the full limit of the taxing power was used, but by Act No. 73 of 1872, § 15, p. 127, the city was authorized to levy-"First, a city debt tax, based on a detailed estimate of the sinking fund and interest falling due; second, a tax for current city expenses, including police, and exclusive of interest and schools. This tax shall in no year exceed one and one-fourth per centum." It appears from said comptroller's report that under said Act No. 73 for the year 1873 the rate allowed for city expenses and police was 12.50 mills; the tax levied for expenses was 7.51 mills; the tax levied for police was 3.20 mills, and the unused taxing power for said year was equal to 1.79 of a mill on the dollar. The supreme court of the state, however, seems to have found that the unused taxing power for this year was 22 mills. See State v. City of New Orleans, 37 La. Ann. p. 13. This was based on 10 mills levy for city expenses and police. In 1874 the tax for city expenses was 6.08 mills; the tax for city police was 4.45 mills. This left the city an unused taxing power of 14 mills for the year 1874. In 1875 the tax for city expenses was 5.1 mills; the tax for police was 4.95. This left the city an unused taxing power of nearly 21⁄2 mills for the year 1875.

These facts were not disputed in the court below, but the court refused to instruct the jury to find for the relators, and directed a verdict in favor of respondents, to which relators duly excepted. The case comes here upon the whole record on the following assignments of error:

"(1) At the conclusion of the trial and before the jury retired, the relators submitted the following request: 'Now, at the conclusion of the trial in this cause, and before the jury had retired, come the relators, by their attorney, and request the court, upon all the evidence adduced in the cause, to direct the jury to find a verdict in their favor,'-which charge the court refused