The view reached makes it unnecessary to consider whether, if the allegations of the bill were sustained by the evidence, the complainants would be entitled to any relief in the present action, whether they are not concluded by the decree of the circuit court of the city of Richmond confirming the resale, and whether they have any remedy, not having sought it at the hands of that court. When they became purchasers at the original sale they submitted themselves to the jurisdiction of that court in the foreclosure suit as to all matters connected with such sale, or relating to them in the character of purchasers. Casamajor v. Strode, 1 Sim. & S. 381; Requa v. Rea, 2 Paige, 339; Blossom v. Railroad Co., 1 Wall. 655; Minnesota Co. v. St. Paul Co., 2 Wall. 609. They acquired a sufficient status to enable them to apply to that court to vacate the resale. The cases are exceptional in which an original suit should be sanctioned by a party to a foreclosure suit to set aside a sale under a decree, where relief could have been obtained by a summary application to the court in the suit. Ordinarily that is the only court which is competent to protect all parties interested in the sale, because generally that can only be done by ordering a resale upon condition looking to the protection of all. Brown v. Frost, 10 Paige, 243. Where the circumstances are such that the purchaser becomes a trustee ex maleficio, such suits have been allowed. Cocks v. Izard, 7 Wall. 559; Ribon v. Railroad Cos., 16 Wall. 446. In the present case the purchasers are not parties to the suit; neither are the plaintiffs in the foreclosure suit; and the cause could not be determined in their absence upon any theory of relief. They are certainly entitled, as well as those who purchased from them, to be heard before the sale could be vacated. The delay which has intervened before filing the present bill (a period of six years) is not explained, and probably cannot be, because those associated with Best were aware of what took place at the resale when the order confirming it was made; and, in the absence of such explanation, the laches of complainants preclude them from asking to have the resale set aside as fraudulent. Harwood v. Railroad Co., 17 Wall. 78. Moreover it would not be equity to decree against the special commissioners, deducting $86,000 from the amount due on the bonds, and thus deprive the bondholders not represented by Oakman and Bates of their share, when neither the commissioners nor these bondholders have been participants in a wrong in any way. The motion is denied.

LEE et al. v. TERBELL et al.

(Circuit Court, S. D. New York. October 5, 1889.

ACTION-WHO MAY MAINTAIN.

Special commissioners, appointed by a state court to sell mortgaged premises urder foreclosure, and authorized to receive purchase-money bonds in part payment thereof, can maintain an action in the federal circuit court sitting in another state upon such bonds executed to them in their official capacity, without ancillary appointment in that state.

At Law. On motion for new trial. For opinion on demurrer to complaint, see 33 Fed. Rep. 850.

John T. Mason and H. O. Cloughton, for plaintiffs.

Joseph H. Choute and John Winslow, for defendants.

WALLACE, J. The only question which it seems necessary to consider upon this motion for a new trial is whether the plaintiffs, as special commissioners appointed by the circuit court of the city of Richmond, Va., to sell mortgaged premises under a decree in a mortgage foreclosure suit, and authorized to receive the bonds of the purchaser in part payment, can maintain an action in this court upon the bonds given to them as such special commissioners. The promise by the defendants, in the bonds, is to the plaintiffs "as special commissioners in the cause,” etc. The general rule is familiar that a suit in another state cannot be maintained by persons coming en autre droit under the appointment of foreign laws, unless their appointments are repeated under the laws of the state in which they sue. But where, as here, the contract sought to be enforced is made directly to the persons who sue, although they are described in their official characters, it would seem that the suit can be brought by such persons in a foreign jurisdiction in their own names, without the addition of their official character, and that the descriptio persona may be rejected as mere surplusage. Buffum v. Chadwick, 8 Mass. 103; Kane v. Paul, 14 Pet. 33. However this may be, the plaintiffs can sue here upon the promise made to them, just as a foreign executor could sue in such a case without an ancillary appointment here. Talmage v. Chapel, 16 Mass. 71; Lawrence v. Lawrence, 3 Barb. Ch. 74; Johnson v. Wallis, 112 N. Y. 230, 19 N. E. Rep. 653; Barton v. Higgins, 41 Md. 539; Barrett v. Barrett, 8 Me. 346. The case of Wilkinson v. Culver, 23 Blatchf. 416, 25 Fed. Rep. 639, fully sustains the right of the plaintiffs to sue here. The motion for a new trial is denied.

MCNEILL v. TOWN OF ANDES.

(Circuit Court, N. D. New York. October 9, 1889.)

1. PRACTICE IN CIVIL CASES-STIPULATIONS.

The parties entered into a stipulation to stay proceedings until the decision of an appeal in a test case, as follows: "The plaintiff stipulates and agrees that if upon said appeal the bonds or coupons in controversy therein are held to be void, or for any reason shall be held not to be the valid obligations of said town, then that this action shall be forthwith dismissed, with costs. And the defendant stipulates and agrees that unless such decision is rendered, then that defendant's answer shall forthwith, after the decision of said appeal, be stricken out, and that the plaintiff shall have judgment as demanded." The appeal was decided, not on its merits, and without reference to the validity of the bonds. Held, that defendant could not be relieved on the ground that the action of the appellate court was not in the contemplation of the parties when the stipulation was signed.

2. SAME-WAIVER OF DEFENSES.

Defenses not reserved by the stipulation are thereby waived, though they are not presented by the record in the test case.

3. SAME-NEWLY-DISCOVERED DEFENSES.

Newly-discovered defenses, which would not be sufficient cause for a new trial, will not justify relief.

At Law. On application to be relieved from a stipulation.

In the autumn of 1888 the defendant made a motion for a stay of proceedings pending the decision of the supreme court in the case of Slauson against this defendant, involving substantially the same questions. An order was entered granting the motion, on condition that the defendant would file a stipulation, within 10 days from the date of the order, that this cause should abide the result in the supreme court. In default of such stipulation the cause was to proceed in the usual manner. On the 30th of October the parties, after due deliberation and consultation, entered into a stipulation, the important part of which is as follows: .

"Stipulated, that all proceedings herein shall be stayed until the determination of the appeal now pending in the United States supreme court of the town of Andes, plaintiff in error, against Albert Slauson, in consideration of the following: The plaintiff stipulates and agrees that if upon said appeal the bonds or coupons in controversy therein are held to be void, or for any reason shall be held not to be the valid obligations of said town, then that this action shall be forthwith dismissed, with costs. And the defendant stipulates and agrees that, unless such decision is rendered, then that defendant's answer shall forthwith, after the decision of said appeal, be stricken out, and that the plaintiff shall have judgment as demanded."

But for this stipulation, and the stay obtained by virtue thereof, the plaintiff could have obtained judgment at the November term, 1888, as the law, so far as this court is concerned, was settled beyond dispute in the Slauson Case. In April, 1889, the supreme court affirmed the judgment in that case for the reasons stated in the opinion. 130 U. S. 435, 9 Sup. Ct. Rep. 573. It was not a decision upon the merits. The defendant now asks to be relieved from the stipulation, for the reason that the action of the supreme court could not have been anticipated, and was not in the contemplation of the parties when the stipulation was signed.

J. B. Gleason, for plaintiff.

W. H. Johnson, for defendant.

COXE, J., (after stating the facts as above.) I do not see how the court can properly interfere to relieve the defendant. The stipulation is very broad. Its terms are unmistakable. The agreement was that, if the bonds were for any reason held to be void by the supreme court, the plaintiff's suit should be dismissed. On the other hand, if the supreme court did not decide that the bonds were void, the plaintiff was to have judgment forthwith. To entitle the plaintiff to judgment, nothing was required but a decision of the supreme court which did not invalidate the bonds. The decision rendered, or a decision dismissing the writ of error for lack of jurisdiction, or for defects in the record, was just as much within the stipulation as an affirmance on the merits. The court appreciates the dilemma of the defendant, and would gladly afford relief if it could be done with justice to the plaintiff; but the latter has acted in good faith, relying upon the terms of the agreement. The parties cannot be relegated to the position in which they were when the stipulation was entered into. The plaintiff has parted with valuable rights. At any of the four terms lost by means of the stay the plaintiff could have obtained a final judgment. Now, however, the recovery and interest will be sufficient to enable the defendant to carry the cause to the supreme court, with the consequent delay.

Other reasons are urged why the relief should be granted, which may be divided into two classes,-those relating to alleged matters of defense not presented by the record in the Slauson Case, and those based upon newly-discovered defenses. As to the former, being within the knowledge of the parties at the time, and not reserved, they were clearly waived by the stipulation. The supreme court could not possibly have passed upon them. As to the latter, I have considered them as if presented upon a motion for a new trial, and see no reason to set aside the judgment. Had they been presented on the trial of the Slauson Case the result would have been the same. The motion is denied.

FIFTH NAT. BANK v. ARMSTRONG, (FARMERS' NAT. BANK et al., Interpleaders.)

(Circuit Court, E. D. Missouri, E. D. October 4, 1889.)

BANKS AND BANKING-INSOLVENCY-NEGOTIABLE PAPER-RESTRICTIVE INDORSEMENT. The claimant bank sent to the F. Bank a sight draft, drawn on a third party, indorsed, "Pay" F. Bank, or order, "for collection for" claimant bank. It was the practice of the F. Bank, in its dealings with claimant, to credit the latter on the day of receipt for all drafts, checks, etc., sent for collection, that were payable at sight or on demand, and the balance thus created was subject to be drawn on; but, if the paper was not paid, it was charged back to claimant. On receipt of the draft, the F. notified claimant that it had been credited, "subject to payment;" but the credit was not drawn against, nor were advances made on the faith of it. Claimant merely kept a memorandum of its transmission for collection. The F. sent the draft to its

reserve agent, indorsed for collection, and the amount of it was counted as a part of the F.'s reserve fund, though this fact was not known to claimant. Held that, the indorsement being restrictive, the F. acquired no title to it; and that upon the insolvency of the F., before notification of the collection of the draft, the claimant was entitled to the proceeds of it in the hands of the collecting agent.

At Law.

This is a controversy between the defendants concerning the ownership of a certain fund now in the custody of the complainant. The case is to be decided with reference to the following facts: On June 6, 1887, the Farmers' National Bank of Portsmouth, Ohio, sent to the Fidelity National Bank a sight draft, in the usual form, drawn by Samuel J. Huston on Thomas Shelby, of Lexington, Mo., in the sum of $4,100. The draft was indorsed as follows: "Pay Fidelity National Bank of Cincinnati, Ohio, or order, for collection for Farmers' National Bank of Portsmouth, Ohio. J. M. WALL, Cashier." On June 11, 1887, the Augusta National Bank of Staunton, Va., sent the Fidelity Bank a similar draft for $1,216, drawn on Henry Rohr, St. Johns, Kan., which was indorsed in the same form as last described. Both of these drafts were forwarded by the Fidelity Bank to the Fifth National Bank of St. Louis, Mo., for collection for its account; and the latter bank proceeded to collect the same through subordinate agencies, and was notified of the payment thereof on June 21st and 23d, respectively. The Fidelity Bank was insolvent from and after June 6, 1887, and was seized by the comptroller of the currency at 9 A. M., June 21, 1887, and put into liquidation. The Portsmouth and Staunton banks thereafter claimed the proceeds of the respective drafts, found in the hands of the Fifth National Bank, and the latter bank filed its bill of interpleader on August 3, 1887. It was the uniform practice of the Fidelity Bank, in its dealings with the Portsmouth bank, to give the latter credit, on the day of receipt, for all checks, drafts, etc., sent to it for collection, that were payable at sight or on demand; and the balance so created was subject to be drawn upon by the Portsmouth bank. The Fidelity Bank also paid interest, at 2 per cent. per annum, on the daily balances in favor of the Portsmouth bank, arising from such credits. But if paper forwarded for collection, and credited as aforesaid, was not paid, it was the invariable custom to charge the same back against the account of the Portsmouth bank. The method of dealing here described was well known to the Portsmouth bank, and was assented to by it. The Shelby draft was credited by the Fidelity Bank to the Portsmouth bank, in conformity with the practice in question. Notice was given by mail that the draft had been credited, "subject to payment;" but the credit was not drawn. against by the Portsmouth bank, nor were any advances made on the strength thereof, and in point of fact the Fidelity Bank closed its doors before it was notified that the draft was paid. The Portsmouth bank did not charge the draft against the Fidelity, but merely kept a memorandum of the transmission of the same to the latter bank for collection, having been advised by the drawer that it would probably not be paid. by the drawee on presentation. It further appears that, by an arrangement between the Fifth National Bank and the Fidelity, the amount of