verdict and judgment, without trial by jury, and merely on an inquiry into the purposes, intentions, and mistakes of the circuit court in entering an order refusing a new trial. The equity court is not asked to require the law court to grant a new trial. The prayer is for greater relief. It is asked to enter a decree without a new verdict, and against the one rendered, and to review and reverse the law court in its ruling on the motion, and to hold that the verdict is excessive by $4,553.90. "We are very clear," said the circuit court of appeals of the Eighth circuit, "that a bill in equity for a new trial cannot be maintained in such a case. A court of equity possesses no appellate or supervisory power over courts of law. And it is well settled that, where a motion for a new trial has been made in the trial court and refused, it cannot be successfully renewed in the form of a bill in equity in a chancery court on the same grounds. The law court had full jurisdiction of the subject-matter and the parties, and its judgment overruling the motion for a new trial is no more subject to review by a court of equity than is its judgment in any other case." Folsom v. Ballard, 16 C. C. A. 593, 70 Fed. 12. An opinion of Chancellor Kent and other authorities are cited. Id. And the supreme court has held that a court of equity cannot turn itself into a court of review to correct the errors of a court of law. That is alien to its jurisdiction, and beyond the sphere of its powers and duties. Tilton v. Cofield, 93 U. S. 163, 23 L. Ed. 858.

3. It is claimed that the circuit court, except for a mistake in calculation, would have reduced the verdict and judgment, or required their reduction, $4,553.90. This averment gives the bill no equity, for the plain reason that the circuit court had no authority to reduce the verdict in any sum. It had no authority to require the Atlantic Company to reduce it. It cannot, in the nature of things, be a "mistake," for which equity will give relief, that the law court failed to do what it had no power to do. The verdict and judgment could not have been reduced on the motion for a new trial except by the voluntary consent of the Atlantic Company. It would have been error in the court, without the consent of both parties, to reduce the judgment. Kennon v. Gilmer, 131 U. S. 22, 9 Sup. Ct. 696, 33 L. Ed. 110. Then, by the averments of the bill, what has the law court failed to do that it had power to do, and that was against the Bucki Company's interest? Refused to grant a new trial; nothing more. In a case cited in the opinion of the majority, a jury, by mistake in addition, returned a verdict for too small a sum. When it was too late for the law court to correct it, it was corrected in equity. Hamburg-Bremen Fire Ins. Co. v. Pelzer Mfg. Co., 22 C. C. A. 283, 76 Fed. 479. There it was within the authority and province of the jury to find the amount of the verdict. A verdict could not have been corrected in equity for the failure of the jury to do something that was beyond its power and authority. It was acting within its proper sphere when the mistake was made; and the thing it intended to do, it had the power to do. Not so as to the circuit court on the averments of the bill. The alleged mistake of the court was in not reducing a judgment it had no right to reduce.

4. Looking behind the motion for a new trial, the foundation of the cause of action shown by the bill is the refusal of the court to submit

to the jury the appellant's claim for damages on account of logs delivered prior to August 15, 1897. That ruling of the court was the only ground that gave the appellant a right to a new trial, if that gave it such right. If this was error, the remedy at law was complete by writ of error. In Creath's Adm'r v. Sims, 5 How. 205, 12 L. Ed. III, the court said:

"Whenever, therefore, a competent remedy or defense shall have existed at law, a party who may have neglected to use it will never be permitted here to supply the omission to the encouragement of useless and expensive litigation, and perhaps to the subversion of justice."

In Knox Co. v. Harshman, 133 U. S. 154, 10 Sup. Ct. 258, 33 L. Ed. 586, Mr. Justice Gray, speaking for the court, said:

"A court of equity does not interfere with judgments at law unless the complainant has an equitable defense of which he could not avail himself at law, or had a good defense at law which he was prevented from availing himself of by fraud or accident, unmixed with negligence of himself or his agent."

If it be conceded, contrary to the expressions of this court when the point involved was considered (35 C. C. A. 590, 93 Fed. 765), that the appellant had a good defense at law, it cannot be consistently held that he was prevented from availing himself of the full benefit of such defense in a manner "unmixed with negligence of himself [itself] or his [its] agents." This court has, without dissent, held that the appellant is not brought within the rule laid down which would entitle it to impeach the judgment at law. Id. The error of the court in not submitting the set-off to the jury was then before this court. The court expressed an opinion against the defense, but dismissed the cross writ of error because not prosecuted with the diligence required by rule 25 of this court (31 C. C. A. lxiv, 90 Fed. Ixiv). L. Bucki & Son Lumber Co. v. Atlantic Lumber Co., 35 C. C. A. 590, 93 Fed. 765.

5. But the learned counsel base the right to relief on the mistake of the judge in making the order on the motion for a new trial. And that is the theory of the bill. The order in question was made in a case at law. In some states where equitable and legal procedure are blended, the state courts may reduce or increase the verdict of the jury. But no such power exists in a federal court. The seventh amendment of the constitution declares that "in suits at common law where the value in controversy shall exceed twenty dollars the right of trial by jury shall be preserved; and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law." The only modes known to the common law to reexamine such facts are the granting of a new trial by the court where the issue was tried, or to which the record was properly returnable, or the award of a venire facias de novo by an appellate court for some error of law which intervened in the proceedings. 2 Story, Const. (2d Ed.) § 1770. The seventh amendment does not deprive equity of jurisdiction to impeach or correct judgments for fraud or mistake, but it does forbid the law court, on a motion for new trial, or otherwise, to reduce the amount of the jury's verdict. Kennon v. Gilmer, 131 U. S.

22, 9 Sup. Ct. 696, 33 L. Ed. 110. Here the alleged mistake is that the judge failed, by a mistake in calculation, to require a large reduction in the verdict and judgment,-that he failed to do something that he could not lawfully do without an amendment to the constitution of the United States. If he had made the reduction claimed without the consent of both parties, it would have been reversible error, yet it is claimed that, having failed to do it, it is a "mistake or accident," within the meaning of equity jurisprudence; that is, that equity requires the judge to do what the paramount law forbids his doing. We cannot assume that, contrary to law, the learned judge holding the circuit court intended to reduce the verdict. Averments that he had such purpose show no equity. The purpose of any calculation he made was to enable him to pass intelligently and fairly on the motion for a new trial. If he found the verdict excessive, his only power was to grant a new trial if the parties declined voluntarily to adopt any suggestion he made as to its reduction. Equity surely has no jurisdiction to control or revise his orders stating the conditions on which a new trial would be refused. Yet, barring questions, subject to review by writ of error, that is the jurisdiction invoked by the bill.

6. There is another view of this case that supports the decision of the circuit court. The demurrer to the bill is, of course, an admission that the judge made the large and remarkable mistake in calculation or in writing down the result. There is, however, no averment that the judge's attention was called to the mistake. When the court announced that so small a reduction would be required,-a simple calculation showing that the reduction should have been much larger,the attention of diligent counsel would necessarily be aroused. The counsel are, of course, presumed to know the orders made in response to motions made by them. I think the bill should show that counsel seeking to vacate the judgment did not silently acquiesce in so small a reduction when the judge was proceeding under a rule invoked by them that entitled their client to a reduction eight times as large as the one made. On the theory that a mistake in calculation or in writing down the amount was inadvertently made by the judge, it would have been the duty of counsel to call the judge's attention to the mistake. The counsel making the motion are presumed to be informed as to their client's rights. May it not be laches justifying the dismissal of the bill to remain silent as to this mistake when the order is entered, and till several applications to appellate courts are made and decided, before attention is called to so grave an error in figures? It is not conceivable, on the theory of the bill, that the judge would have refused to make the correction. And a bill is of doubtful equity, to say the least, when it fails to show why counsel did not promptly call the judge's attention to such a mistake, made under such circumstances. It is alleged "that it did not occur to your orator, nor its said attorney, that the said court of appeals had no jurisdiction on the said writ of error to review said finding of the circuit court in respect to the amount of such remittitur,-that being a question of fact,-until some time in November, A. D. 1899." It is also alleged that the plaintiff expected to secure the reversal of the case on other points. But these averments do not meet the defect. They show no reason

for the strange silence, for the failure to call the court's attention to the mistake in figures.

Referring to cases of accident and mistake, the supreme court said: "But such relief was never given upon any ground of which the complainant, with proper care and diligence, could have availed himself in the proceeding at law. In all such cases he must be without fault or negligence. 'Nothing can call forth a court of equity into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive and does nothing.'" Brown v. Buena Vista Co., 95 U. S. 157, 24 L. Ed. 422.

I do not, of course, deny that in a proper case, for fraud, accident, or mistake, equity has jurisdiction to annul, vacate, or reduce a judgment at law. This doctrine is familiar and well sustained by the authorities cited in the opinion of the court. The bill, in my opinion, does not allege any mistake or accident that confers equity jurisdiction, nor any defense against the judgment that was not available at law; and it shows a want of diligence in the plaintiff. I am therefore constrained to dissent from the opinion and judgment of the court. I think the circuit court decided correctly in sustaining the demurrer and dismissing the bill, and that its decree should be affirmed.

KEITH COUNTY, NEB., et al. v. CITIZENS' SAVINGS & LOAN ASS'N. (Circuit Court of Appeals, Eighth Circuit. April 21, 1902.)

No. 1,620.

1. MUNICIPAL BONDS-POWER OF PRECINCTS TO ISSUE-NEBRASKA STATUTE. Laws Neb. 1885, p. 268, c. 58, which provides that precincts, townships, or villages may issue bonds "in aid of works of internal improvement, highways, bridges, railroads, court houses, jails, in any part of the county, and the drainage of swamp and wet lands," in view of the contemporaneous construction placed upon it by the municipalities and officers of the state, must be held to authorize the issuance of bonds to aid in the construction of works of internal improvement other than those enumerated, including canals for irrigation purposes, especially in favor of a bona fide holder of bonds which were issued for such purposes by a precinct, and sold in the open market for full value, and to which the precinct and its inhabitants have given currency in the market by recognizing them as valid, and paying the interest thereon for a number of years without objection.

2. SAME-CONFORMITY TO STATUTE-LIMITATION AS TO TIME OF MAturity. A provision of a statute authorizing the issuance of municipal bonds requiring the levy and collection each year of a sinking fund equal to 5 per cent. of the principal, in addition to the interest, does not by implication limit the power of the municipality to the issuance of bonds running 20 years; and in the absence of an express limitation bonds issued thereunder, redeemable at the option of the municipality, are not invalid because they are made to mature at yearly intervals, beginning at the end of 20 years from the date of issuance.

8. SAME-RECITAL OF PURPOSE FOR WHICH ISSUED.

A statutory provision requiring municipal bonds to state "for what purpose issued" was sufficiently complied with where they were designated in the caption "Ogalalla Precinct Canal Bonds," and where each coupon attached recited that the bond was issued "to aid in the construction of a canal west of the town of Ogalalla."

4. SAME-IRREGULARITIES IN ISSUANCE-ESTOPPEL BY RECOGNITION OF VALIDITY. Where the proposition submitted to the voters of a precinct for the issuance of bonds, and which was adopted by a two-thirds majority, provided that the bonds should be donated to a person named, and should not be delivered until he had executed a bond to secure the construction of a canal in aid of which the donation was to be made, the fact that the bonds were sold by the county in the open market, after being registered, and the proceeds were subsequently paid by the precinct to a corporation organized by such person to construct the canal, and which gave the required bond, was not such a material departure from the terms of the proposition voted on as would enable the precinct to defeat the bonds after they had been certified by the state officers as lawfully issued, and had been sold, and after the precinct had recognized them as valid, and paid interest thereon for 10 years without complaint from any one, even though, by reason of the fact that through mistake they referred to the wrong statute as the one under which they were issued, a purchaser was not entitled to rely on their recitals as to the regularity of their issuance.

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

This was an action by the Citizens' Savings & Loan Association, the defendant in error, which is a citizen of the state of Ohio, against the county of Keith, in the state of Nebraska, Gerry T. Scott, Axel Nelson, and Fred E. Pease, county commissioners of said county, the plaintiffs in error, upon 12 coupons detached from municipal bonds, which bonds and coupons were in the following form, except that the bonds ran for different periods: "No. One.

$3,000.

"United States of America.

"County of Keith,

State of Nebraska. "Ogalalla Precinct Canal Bond.

"Ogalalla precinct, in Keith county, Nebraska, promises to pay to the bearer three thousand dollars, twenty years after the date hereof, with privilege of payment at any time after ten years from the date hereof, with interest thereon at the rate of six per cent. per annum, payable annually, on the first day of August of each year after the date hereof, until the principal sum shall be paid, on presentation of the interest coupons hereto attached; said principal sum, and the interest thereon, to be paid at the state fiscal agency of the state of Nebraska, in the city of New York. This bond is one of a series of twelve bonds, numbered from one to twelve, inclusive, number twelve being for the sum of two thousand dollars, and the other bonds of this series being for three thousand dollars each.

"The debt evidenced by this bond and the others of said series is authorized by the constitution of the state of Nebraska, and an act of the legislature thereof entitled 'An act to enable counties, cities and precincts to borrow money on their bonds, or to issue bonds to aid in construction or completion of works of internal improvement in this state, and to legalize bonds already issued for said purpose,' approved February 15th, 1869 (Laws of 1869, page 92); and an act amendatory thereof, entitled 'An act to amend section 4 of chapter 35, of the General Statutes, being section 4 of an act entitled "An act to enable counties, precincts and cities, to borrow money on their bonds, or to issue bonds to aid in the construction or completion of works of internal improvement in this state, and to legalize bonds already issued for such purpose," approved February 15th, 1869,' approved February 15th, 1875 (Laws of 1875, page 87).

"The question of issuing said bonds prior to their issue was duly submitted to a vote of the qualified electors of said Ogalalla precinct, in said county of Keith and state of Nebraska, and more than two-thirds of the votes cast at said election were in favor of the question of issuing said bonds.