850

l!'EDEaAL REPORTER, vol. 48.

granting the appeal did not sign the citation, accept the bond, nor make the return-day within'the rules. ,Tne records of'this court, however, show the transcript has been filed; and that the appellees, by counsel, have entered a regular appearance; 'so that, s() far as defective citation are concerned, no injury to appellees has resulted. It with regard to, the bond. In this respcct,'th,ecase seems to be' very similar, ifnot identical, with that ofOIRei1J,y v. Edrington, 96 u. S. 724, wherein Mr. Chief speaking for the court, says:
. :';N0n6of the?bjectious to this appeillare, In. ouropinion, well taken,. cept the one winch rf'lates to the approval of the bond,. That, wethlOk, must be sustained. The security required upnn writs of error and appeals JUu,tpe,taken by thejudge or. justice.:, St. Hecannot delegate thisp0Y'er to the clerk.)Iere the approval of the by the clerk alone;dthe jUdge has never acted; brit, liS the omission w.,as undoubtedly clmsed by the order of the court permitting the clerk to take the bond" the case is a proper one of the rule by wMch this court sometimes refuses to dismiss appeals or writs of error, failure to,comply witb such t,erma imposed for, the supplying in the proceedings. Martin v. Hunter'. Lessee, 1 Wheat. 8ta; Dayton v. Lash, __: -' . S. 112." _ _ ,.' ' U. : :. i.' .: . . t .,'

on or»eforethe in January llpless.;the appellant nexhfile,with the clerk of this court a bond, with good arid suffi.cient eecupity, conditioned according to law:. for the purposes, of tbe appeal; and it is so ordered·

p'Re:illy,y. Edringtort, 8Upra, to-wit:. ',I'bisca\lsew,ill, stand dismisiled

. And we think that the like order may go in ,this, case as was given in

."

i..

I.

, "

.TRust

Co" OF NEW ' (HIAWASSEE

t1··

'I

MARIETTA .··.li: N. G. Ry.. eo. t

' r '

.

'. (Circuit Court of

A1'1'E,A,LAlIL.'I

:Appeals, F1J'I;'N ,Circuit. Debembl!'r 7, 1891.)
ON CLAm ?J' : .. '

, . The.decisionof 8 Circuit court, on a petition of interventio1l'fn's foreclosure mit, 8ustB.tnillg'the clail:D, is "final decision," Cong, March a, 517, § 6,. giving the appeals jurilldi9tlOJ1. to review filial decisions of,the Circuit coutts. ,I , ,,', .""..,.
FORBCIlOlIt1RII' Oll' RAILROAD .", ",. , OJ' INTBBv1IHBR++iCONDITIONALSALB , ",;,. '. ,

, All improvement, company, interested, in the constrtJctloll· of a railroad,and " Wb08e:president was a stockholder in the railroad ,oomparly'81ld largely interested all aOQntractor in the constfuctipn of therailroad, equippedtt\le ,railroad with rolling'stock, and caused tile same to be marltii'dwith the nalpl>'llf 'the 'railroad company:; the intent,of the imprtl'Vementcompany being to (llnable, the uailroaO., com'pll,ny toJsElue certain bOl1dll"Be,c,:ured ,by lI10rtgage on rau,r!>ad as an equipped railroad, ahd slloh bondg issued ,and plaoed through'th1lIDstrumentality o'fthe ' preslilell,t of the improvementcompany'.' 10 a suit by a holder lof the bonds to foreol(jse lIuchmortgage, an 88signee Qf the JII1PrOvement olaiming the rolling stock. Held, that the imprbvemEmt oompan:l"a:rHlits as!llgnee were 'estopped to alleg( tbatth.e't,rans!Wtion in questro,n oonstitute.d,"a. grat,uitoUB loan of , e, the rolling stock, pr to dellY the title of · way company ,thereto as plaintiff. ' . ''','''' ' ,' ." " ' ' '. , , ,68 Fed. Rilp. 82; ,raversed. '

CEN'fRAL TRUST CO. OF NEW YORK 11. MARIETTA.& N. G. RY. CO.

851

AppeaHroln the Circuit Court of the United States for the Northern District of Georgia. ' Bill in equity by the Central Trust Company of New York against the Marietta & North Georgia Ruilway Company, to foreclose a mortgage made by the railroad company. 'fhe Hiawassee Company intervened, clairning title to certain rolling stock in the possession of the receiver appointed in the suit. Decree for intervener. Plaintiff appeals. Reversed. Act Congo March 3, 1891, c. 517, § G, provides that the circuit courts of appeals established by the ad shall exercise appellate jurisdiction to re,":iew any "final decision" in the district court and circuit courts, in all cases except as otherwise provided.
STATEMENT BY PARDEE, J.

On the 17th March, 1891, the Hiawassee Company filed a petition, as an intervpntion, in the suit of Central Trust Company of New York v. Marietta & North Georgia Railway Company, for the foreclosure of pending in the circuit court of the United States for the northern'district of Georgia, wherein a receiver had been appointed and put in possession of the railway property. Intervener claimed certain railway equipment, then in l'ossession of J. B. Glover, receiver of the Marietta & North Georgia Railway, as follows: One Brooks locomotive, 5, railroad No. IS; four Baldwin locomotives, Nos.H, 12.14. Rnd 15: two combination mail, baggage, and express cars, Nos. 11 and 12; 'two first-das!:! passenger-carl:l, Nos. 13 and 14. 'fhis petition was demurred to by Central Trust Company of New York, and thereupon was amended on 28th March. 1891, making the claim as follows: "'l'.he propprty descrilled and claimed by it Was purchased by the North Georgia Improvement Company from original owners. It WM placed !Spou the line Or the M. &, N. G. H. H. Company by the North Georgia. Improvenlent 'COlilpany, through the instrumentality of Geo. R. Eager. who was largely interested in both companies, but without any contract of purchase or lease lIy M. & N. G. R. H. Company, and has been paid on the railroau company. nor has it any claim of any kind 011 said propsame by erty. 'fhe rilCht of Ilossession to all of said property is in the H.awassee Company,'and thetitla to all of said property has vested in it. except the title to engines Nos. 14 and 15. 'fhese engines were bouKht from Burnham. Parry, Williams &, Co·. ' All of tIlt' purch'lst"rnoney has been paid on the same except six notes dated May 30, '89, for $lHS.OO each. due', rellpectively. 1'7.20, 21.22. 2::l..alid24 'months fl'om date. Upon the lJa)'ml'nt of these the tilletusaid engines also will vest in the Hiawassee Company." noted that the intervener, in its amended petition, alleges the title to two of the locomotives. Nos. 14 and 15. is in Burnham, Parry,:Williams & Co. ' The intervention, without being put in issue, having 'been referred to a special master in chancery, the testimony of R.,Eagerand J. B. GIQver, receh'er, was taken. This testimony, exhibits introduced by intervener, shows substantially tbe followillgfllCts: That R,. Eager was the contractor to bt;lild the thatl;le and a