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be noticed that in the case before us there was in fact a change of the most substantial character from the situation contemplated by the parties when the penal bond was executed.

In the opening sentence in its opinion in United States v. Allsbury, 4 Wall. (U. S.) 186, 18 L. Ed. 321, the Supreme Court said: "It is unnecessary to refer to authorities to show that the liability of the surety cannot exceed that of his principal." In the case before us no member of the firm of Willard & Cornwell is in anywise bound to Hardaway & Prowell for any part of the demand claimed, and yet it is sought to hold the surety on the penal bond for this claim, although the principals on that bond are manifestly not bound for it, and who, if ever bound, were released by the contract itself. Not only is the principal in the bond released from liability for this claim, if any liability ever existed under the contract of June 2, 1903, but the contention here would extend the liability of the surety entirely beyond any possible liability of his principal, thus in effect making the surety the principal and the only debtor to Hardaway & Prowell.

Upon these grounds it will require a more licentious construction of the penal bond executed in this case than I am willing to give to it to hold an outside party liable for the debt these claimants owe themselves for the labor and material supplied to themselves in a venture in which they embarked with the expectation of making a profit for themselves, and for that purpose alone. It seems to me clear that the surety in the penal bond never agreed that that profit, if any, should be made out of it, nor that any loss would be paid by it, and, while in an appropriate case we might fairly construe the bond to include a subcontractor in the proper sense of that term as having been originally within the contemplation of the parties, we cannot imagine that such an arrangement as that made between the parties to the contract of June 2, 1903, was within the contemplation of the surety when it signed the penal bond. It may be proper to say that probably no court has more often reminded the bar that general expressions in an opinion of the court must be limited to the case in hand than has the Supreme Court of the United States, and I see nothing in the facts in the case of the United States v. American Surety Co. which seems to me fairly to control this phase of this case. But I do note in the opinion in that case a suggestion that upon the facts there shown the court could not see how the surety on the bond could be injured. That remark certainly could not be applied to this case, for, if this surety was ever thought of before the ultimate losses developed (which may well be doubted), there was the most reckless disregard of its interests and rights in the premises, and all, too, without the slightest notice to the surety of what was going on. This general fact shines through the contract of June 2, 1903. It shows through the obviously extravagant expenditures of the claimants and probably in other ways apparent upon the record. We hold, therefore (1) that this claim does not come within the penal bond at all; (2) that the contract and what was done under it greatly changed and increased the actual risk of the surety if in any other view of the case it was bound for what these claimants did after June 2, 1903; (3) the principals in the penal bond were never bound for this claim; and (4) the claim is not, in many respects, satisfactorily proved. But, even if some or all of the labor and materials claimed to have been supplied were put into the lock and dam, they were not supplied to the firm of Willard & Cornwell, nor to any member of that firm, for that purpose, as provided for in the penal bond, but were supplied to Hardaway & Prowell by themselves under their contract of June 2, 1903-a very different proposition. To enforce the latter against the complainant as though it were a party thereto or had notice thereof would be to place the complainant at the mercy of parties it had never heard of under a contract it had never seen, as to prices and quantity of labor and materials, and without the curb that would always have been present in the sense that claimants own interests and their profits depended upon economy and good management, and not even in part upon large expenditures upon which a commission was to be paid. Indeed, there were at least four concurrent conditions upon which the liability of the surety of the penal bond was made to depend by the agreement of the parties. They were (1) that the labor and materials should be supplied; (2) that they should be supplied to Willard & Cornwell; (3) that the

labor and materials so supplied should be used in the work on the lock and dam; and (4) that payment therefor had not been made by Willard & Cornwell. All these must concur. If either was wanting, the surety did not agree to be bound. It is entirely clear that one of the express and most material conditions is absent, to wit, the second one just named, and we are not at liberty to supply it. And it may be repeated that this increase of the surety's risk was clearly outside of any reasonable contemplation of the parties to the penal bond.

I might write more in detail, but this general statement will indicate the grounds upon which I will sustain all of the claimant's exceptions to the claim of Hardaway & Prowell. And the same disposition may be made of their own exceptions to the ruling of the special master upon their claim.

The fund in court: This fund, as before indicated, is $8.176.75. It is made up of certain percentages withheld by the government from time to time out of what would otherwise have been due under the contract. It appears from the record that the whole sum was reserved upon the estimates for work done previous to June 2, 1903, and consequently the surety is entitled to the full benefit of this fund, though Hardaway & Prowell, in my judgment, would have been entitled to any reservation in respect to the work done after June 2, 1903. Section 3468, Revised Statutes of the United States, respecting the rights of sureties, may also support this conclusion of the court, even if the facts in the record do not otherwise make it clear.

Conclusion: It results that the complainant is liable for $13,261.76 on the claims of classes 1 and 2. This sum includes, of course, the $8,176.75, the fund in court. The difference, namely, $5,085.01, and the costs of this action, should be paid into the court by it.

Costs: The agreed order of November 8. 1904, seems to take care of all questions of costs, but if not, they may be provided for when the judgment is prepared. An allowance to the special master for his services should be made, and it should include whatever may be proper to cover expenditures for stenographic work. Counsel may prepare and present a judgment.

MIOCENE DITCH CO. v. MOORE, Judge of United States District Court, et al.
SAME V. CAMPION MINING & TRADING CO.

(Circuit Court of Appeals. Ninth Circuit. February 4, 1907.)
No. 1,254.

1. APPEAL AND ERROR-ARPEALABLE ORDER-MATTERS FINALLY DISPOSED OF. Where property rights not originally involved in a suit were subsequently brought in by amended pleadings filed by stipulation and determined by the decree, an order setting aside such decree and striking the amended pleadings from the files is a final disposition of the case as to the matters set up therein, and is appealable.

2. JUDGMENT-VACATION DURING TERM-DISCRETION OF COURT.

A court has power during the term at which a decree is entered to set the same aside on motion, provided the facts are such as to justify the action in the exercise of a judicial discretion.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, § 667.} 3. ATTORNEY AND CLIENT-SCOPE OF ATTORNEY'S AUTHORITY-COMPROMISE AND SETTLEMENT.

An attorney at law by virtue of a general retainer acquires no authority to inject into a suit against his client property in no way involved in or connected with it, and then consent to a disposition of that property by a compromise decree.

4. JUDGMENT-VACATION DURING TERM-COMPROMISE BY ATTORNEY.

Defendant, an Illinois corporation, owned or claimed valuable water rights in different streams in Alaska. Complainant brought suit in Alaska

against defendant to determine their priority of right with respect to the waters of one of such streams. The cause was tried and submitted to the court, after which one of the two attorneys representing defendant left Alaska; the other and the secretary of defendant remaining there. Subsequently, and before the case had been decided, such remaining attorney arranged a compromise and settlement with complainant pursuant to which amended pleadings were filed by stipulation, and defendant's rights in the waters of other streams were brought into the case and adjudicated by a consent decree which provided that the waters of all should be brought together and gave complainant a priority of right in the same after they were united. Defendant had no knowledge of such proposed settlement, nor was it assented to by its secretary, who, in fact, had no authority to dispose of any of the corporation's property. Held, that it was within the discretion of the court on motion of defendant filed at the same term, and, such facts being shown, to vacate the decree and strike from the files the amended pleadings filed after the original submission. Appeal from the District Court of the United States for the Second Division of the District of Alaska.

On return to alternative writ of certiorari and on appeal.

These proceedings consist of an appeal from an order of the District Court of Alaska, Second Division, vacating a decree theretofore entered by it in the case, and striking from its files certain amendatory and supplemental pleadings, and resubmitting the case for final decision, and a writ of certiorari sought and obtained from this court to review the action of the trial court in entering the order from which the appeal is taken. They involve a consideration of the same facts, were argued and submitted together, upon substantially the same record, and seek the same relief, namely, the annulment of the order from which the appeal is prosecuted. The record shows that the Miocene Ditch Company commenced suit on the 8th day of August, 1904, in the District Court of Alaska, Second Division, against T. A. Campion and the Campion Mining & Trading Company to quiet its alleged title to 2,100 miners' inches of the waters of Nome river, to be diverted at its intake on Nome river about 500 feet below the mouth of Buffalo creek, and to enjoin the defendants to that suit from diverting from that creek any water that would reduce the waters taken by the plaintiff at its intake on Nome river to less than 2,100 miners' inches. The defendant Campion answered the complaint, disclaiming any right to the waters of Buffalo creek, but the defendant Campion Mining & Trading Company, by its answer, asserted a right by prior appropriation to the waters of Buffalo creek, and also set up against the plaintiff to the suit an estoppel on its part to claim any adverse rights to the waters of that creek. The attorneys for the plaintiff in that suit were W. H. Metson and Ira D. Orton, and the attorneys for the Campion Mining & Trading Company were William A. Gilmore and Dudley Du Bose. On the 11th of July, 1905, the plaintiff filed a supplemental complaint, in which it set up that since the commencement of the action, and from and including the 8th day of August, 1904, to and including September 30. 1904, the defendant Campion Mining & Trading Company diverted from Buffalo creek, at a point above the dam and intake of the plaintiff's Nome river ditch, certain specified quantities of water, to the plaintiff's damage in the sum of $48.478.50, which allegations, except those charging the defendant with the diversion of the waters of Buffalo creek, were denied by the defendant company in its answer to the supplemental complaint. The issues made by the pleadings thus stated came on for trial before the court below, and upon the conclusion of the trial were submitted to the court on July 12, 1905, for decision.

The record shows that on the 25th of July, 1905, and while the cause stood submitted to the court for decision, the following stipulation was presented to and filed in the court below, upon which stipulation the order appended thereto was made:

"It is hereby stipulated and agreed that the complaint of the plaintiff on file in the above-entitled action may be amended, and the same is hereby amended by adding thereto, after paragraph X thereof, the following allegations, the

same being as and for second and third separate and distinct causes of action, to wit:

"XI. The plaintiff herein complains of the defendant the Campion Mining & Trading Company, and for cause of action alleges: (1) That it is now, and has been for a long time prior hereto, the owner of and in the possession of, and entitled to the possession of, certain water locations and water rights, situated on the Grand Central river, in the Kougarok mining district, district of Alaska, to the amount of 5,000 miners' inches thereof, and is the owner of the waters of said Grand Central river to the extent of said 5,000 inches. (2) That said plaintiff is also the owner and in the possession and entitled to the possession of certain rights of way connected with said 5,000 miners' inches of water aforesaid, for the delivery of said waters in Nome river, above the present intake of said plaintiff's ditch on said Nome river. (3) That the said defendant denies the right and title of the plaintiff of, in, and to the said water, water locations, water rights, and rights of way, and claims the same adversely to said plaintiff, but that the said claim of the said defendant is without right.

"XII. That for a third, separate, and distinct cause of action plaintiff alleges: That it is now, and has been for a long time prior hereto, the owner of. and in the possession and entitled to the possession of, certain water locations and water rights, situated on David creek, in the Cape Nome mining and recording district, district of Alaska, to the amount of 1,000 miners' inches thereof, and is the owner of the waters of said David creek to the extent of said 1,000 miners' inches. (2) That said plaintiff is also the owner and in the possession and entitled to the possession of certain rights of way connected with said 1,000 miners' inches of water aforesaid, for the delivery of said waters in Nome river, above the present intake of said plaintiff's ditch on said Nome river. (3) That the said defendant denies the right and title of the plaintiff of, in, and to the said water, water locations, water rights, and rights of way, and claims the same adversely to said plaintiff, but that the said claim of the said defendant is without right. And that the prayer of said complaint may be amended by adding thereto the following: That the right, title, and interest of the said plaintiff of, in, and to the waters of the Grand Central river in the Kougarok mining district, and David creek, in the Cape Nome mining and recording district, district of Alaska, and of the rights of way connected therewith, and the possession thereof, be quieted as against the claims of the said defendant, and that the said defendant be enjoined and debarred from ever asserting any right, title, or interest therein, or to any part thereof, or to the possession thereof adversely to the plaintiff; and for such other and further relief as to the court may seem just and equitable in the premises.

"Dated at Nome, Alaska, this 24th day of July, 1905.

"J. H. Tam, of Counsel.

"W. H. Metson,

"Albert Fink,

"S. D. Woods,

"J. K. Woods,

"Attorneys for Plaintiff.

"W. A. Gilmore,
"Dudley Du Bose,

"Attorneys for Defendant Campion Mining & Trading Co. "The verification of the above and foregoing stipulation is hereby expressly waived.

"Dated, Nome, Alaska, July 24, 1905.

"W. A. Gilmore,
"Dudley Du Bose,

"Attorneys for Defendant Campion Mining & Trading Co. "It is hereby ordered that the plaintiffs' complaint be amended as above stipulated.

"Dated July 25, 1905.

"Alfred S. Moore, Judge District Ct.,

"Dist. of Alaska, Second Division."

The record further shows that on the same day this answer to the amendment of the complaint was filed:

"Answer to Amendment of Complaint.

"Comes now the defendant the Campion Mining & Trading Company in the above-entitled action, and for answer to the amendment of the complaint of the plaintiff on file herein alleges and denies as follows, to wit: (1) Denies that the plaintiff is the owner or in possession, or entitled to the possession, of any of the waters of said Grand Central river, or of said David creek, or of any rights of way connected therewith. On the contrary, defendant alleges that it is the owner of, in the possession of, and entitled to the possession of, the said waters and water rights, locations, and rights of way connected therewith, and that the claim of the said defendant is not without right, but that the same is founded upon a prior location and appropriation of the said waters, and the whole thereof, duly and regularly made according to law, and the customs of miners, in the Kougarok mining district, district of Alaska. For a further separate and affirmative answer to said amendment to the complaint of plaintiff filed herein, said defendant alleges: That on or about the day of 1903, a contract was made and entered into by and between the Campion Mining & Trading Company, T. A. Campion, and the Miocene Ditch Company, being the parties plaintiff and defendant herein, which said contract is in the words and figures as follows, to wit:

"Whereas the Campion Mining & Trading Company and T. A. Campion claim certain water rights on what is known as "David Creek" and the Grand Central river; and whereas, the Miocene Ditch Company also claim certain water rights on Grand Central river and McLennan creek and David creek; and whereas, the said Campion Mining & Trading Company and the said T. A. Campion have given rights of way to said Miocene Ditch Company, and do hereby give, grant and convey rights of way to said Miocene Ditch Company, for the purpose of building a ditch or ditches from Nome river to Grand Central river and from Nome river to David creek and beyond, and for flumes, pipes, wastegates, incidental to said ditch rights, and with the right to enter upen and excavate said ditch and ditches and to place said pipes, flumes and other incidents in position and keep the same in repair, said rights of way and rights to excavate covering as large a capacity as the said Miocene Ditch Company may determine, to carry through said ditches and pipe incident: Now, therefore, it is agreed that if the said Miocene Ditch Company does build and complete said extension that when it does so build and complete the same, that it, the said Miocene Ditch Company shall build, excavate and construct a ditch, pipe, flume and incidents of such a large capacity as will carry, free of charge, for said Campion Mining & Trading Company and said T. A. Campion jointly from twelve hundred two thousand inches of water, measured under four-inch pressure of the water and water rights owned, controlled, and furnished by said Campion Mining & Trading Company and T. A. Campion and along the line of said ditch, flume, and pipe as laid, excavated, and constructed by it, said Miocene Ditch Company, between said Nome river and said David creek and said Nome river and Grand Central river, all in the Nome recording district, district of Alaska, all the said water to be used by said Campion and said Campion Mining & Trading Company exclusively by them, or either of them upon the mining locations and mining property now owned and held by them, or either of them along said Nome river and the creeks tributary thereof above Hobson creek, the said water to go to said Campion and said Campion Mining & Trading Company is not to be let, farmed out, sold, or incumbered in any way for any other purpose than for use upon their own mining properties and locations, or either of them, and the water carried and conveyed in said ditch to be delivered to said Campion Mining & Trading Company and said T. A. Campion, in no event, at no time, to exceed one-half of the water put therein or caused to be put therein by said mining and trading company or said Campion; the other one-half is to be the sole and exclusive property of said Miocene Dítch Company.

"In witness whereof the said parties hereto have hereunto set their hands

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