CLAFLINtI. BENNETT.

693

land v. Turner, 7 Exch. 208, 219;CQuturier 'If, HatHM,5 H. L. Cas. 673, 682; Clifford v. Watts, L. R. 5 C. P. 577; Hazard v. Insurance Co., 1 Sum. 218, 226; Insurance Co. v. Ewing, 92 U. S. 38!. Conceding that the action of the medical director hi approving the application on June 7th, in ignorance of the applicant's death, was a determination to accept the application by the defendant, still there was no contract, because no notice of the acceptance of the application was in any way communicated to the applicant or his representatives. The acceptance of an offer not communicated to the proposer does not make a contract. Jenness v. Iron Co., 53 Me. 20, 23; McCulloch v. Insurance Co., 1 Pick. 278; Thayer v. Insurance Co., 10 Pick; 325, 331; Borland v. Guffey, 1 Grant Cas. Beckwith v. Cheever, 21 N. H. 41,44; Dun,. ron v. 13 S. C. 94, 96; White v.Corlies, 46 N. Y.467. Conceding that the application was accepted on June 7, 1890, by the defendant, it expressly provided that the contract of insurance should take effect and be in force only upon compliance with three conditions that a policy should be delivered, thatit should be deprecedent, livered duririg the life and good health of the applicant, and that the premium should be paid when the policy was delivered. .These eonditions were never complied with. The vital, indispensable condition Was that the policy should be delivered and take effect during the life and good health of the applicant; but that life had ended, that applicant was no more, and that condition could never be complied with, and therefore the contract could never take effect. Eliason v. Henshaw, 4 Wheat. 227, 229; Carr v. Duval, 14 Pet. 77,81. There is no view of the facts or the law under which it can be found that there was a contract between the decedent and the defendant company in this case, and the decree below is affirmed, with costs.

CLAFLIN

et al.

tI. BENNETT et

al., (McCoy et at, Interveners.)

(OirouU Court, N. D.

nunoUl. June 18, 1892.)

L

ATTORNBY '\10) CLIENT-FEEa-LIEN ON JUDGHlCNT.

Where the amount due on a judgment recovered for the purohase price of prop erty sold by plaintiff to defendant is paid into a court of equity for distributioll., plaintiff's attorney!! are entitled to receive therefrom the money due them froID plaintiff for meritorious services rendered by them to him in other suits' gr6wing out of said purcllase, where such services were rendered, with the expectation that they would be paid for out of the proceeds of such judgment.
CO:l!'STITUTBS-EvlDENOB.

Proof that two men owned a ranch and herd of cattle jointly, that they managed t.he ranch· together, rendered accounts in their joint selves. as a cOlUpany, is sutllcient to show that they were oopartners, Bltllough t.hey had no articles or agreement of oopartnership.· :. .,, . .'. . .LSUl:Ia....SETTLBMlCNT BlCTWBBN PARTNBRS-RIGHTS OP CRlCDtTORS. . A sett,lement between copartners, which determines their respective interesw In · certain partnership ,fund, iaconolusive &I to the rights of their cinidJ.torsto that fnnd. . . , . ..'.

..

FEDERAL REP.OB'l'D,

vol. 51.

'-..

,

.4 settl'emeri.t between cop'artners. ",hoare both shrswdbulliness Dl6n, of's businessaD10untitig to hundreds of thbusarids of dollars, and involving many items of account, depending upon the of the copartners, should not be opened at. the intltigat\()n of their cred i tors, after the death of one .of the copartners, even though thers ill:a strong vr'lma fame showing of mistake in the settlement.
S.UfE-RIGRT Ol!'PAUTNElR TO PLEDGE FIRM PROPERTY.

,

5.

One of two copartners cannot pledge the partnership property to secure his pri. vate debt, except to the extent of his interesL therein. Aiter the announcement of the final decision of the chancellor upon the merits of aca!'ll,lt is proper to ,refll,lle to permit the pleadings to .be so as to meet otJp.ctions WhICh were x'aised at the hearing, two months before the decision was l'eridertld, especially where such amendment would not affeotthe on whicn the is based.

6.

lilQUITY PLBADING-AMJi:NDMBNT.

Bill in ,the nature of a.suit of brought by and the firm of H, B. Claflin & Co.· Jessie 1. Bennett, administratrix of Milton H. Bennett, deceased t . ..... ., :!(rC4U8j Mayer &: for complainants. 1£. F,. Thompson, Ml)8f)nBr08., McCO'l/' Pope &: McCoy, and,Mdler, Starr ·1or defendants. :BWDGETT, District JUdge; On the 26th of July,; 1886, a judgment was render.ed on the luw side of this court in favor oj Mi!t<>n H. Bennett and RobertL. Dunman, Illlidin the pleadings to sue as partners, under the finu name of Bennett & Dunmanj against Edward M. McGillan, for the sum of $115,580.56"; being a balance found doe the. complainants on,the purchase price ot>aranch,rnnch outfit. and herd of cattle in the Indian Territory sold by them to McGillan. A writ of error was prosecuted by, McGillnu to,th.esnpreme court, in which proceeding he gave a. supersedeo8 bond, signed hy Jes.,e Spaulding and George M. Pullman. This judgment was affirmed by the supreme court, (10 Sup. 122,) and, alter the affirmance of the judgment, this bill WlIS filed by the complainants, composing the firm of H. B. Claflin & Co., of New York city, which alleged, in substance, that and Pullman had signed the s{vptifsedeaa bond 'in'the matter of, the writ of' errot at the request of the American Surety Company, and that such request had bee.l made at the request of complainants, and that cOl1Jylainahts Were in law and equity the final indemnitors for said McGillan on said bond, and liable for alll1mOUllts which might be recovered him, the said McGiUllnhaving become insolvp-ntj that divers assignments had been made"1)y H. Bennett and RobertS. Dunman of said judgment, or parts thereef,. ,to variousHpersons;that they (complainants) were ready, able, and "willing to pay into courttll'e totalamourtt of such " the.y nllowe<;l. to .the sum into they be'eubrogatedtoallthe rights of persons having infefe:st' iti'thll elli:inr u) 'mtfd' All the pera'Olls' and corporations who appeared by. tPMfllJPtd of 'thiscpurt to hold assignments of an int'etiist in the parties,and appeared and answered. The bill and on the' 23d of April, 1899, a

In Equity.

CLAELIN:ll. BENNETT. '

6950

decree was'entered allowing the complainants to pay into court the sum of 8122;194.42, which was the balance due on said judgment after pay· ing certairiundisputed costs and liens; and the complainants were reo leased fr!>m all liability as illdemnitors of Spaulding and Pullman and McGillan. It was fU1iher ordered that the defendants to said bill be allowed to file such amended and supplemental pleadings as shall be necessary to secure a proper adjudication of their respective rights to the money so paid into court, and to secure a proper distribution thereof. Afterwards an order was entered requiring all persons making any claim to the fund, so in court, or any part thereof, to file a statement of the same, with proofs, by the day fixed by said order; and by said order notice was required to be published in two newspapers designated in the order. In pursuance of these decrees and orders various claimants to the fund presented their claims, mainly in the form of answers to the bill, by which it appeared that, in addition to the amount paid into court by the complainant Claflin and others, there had also been paid into court the sum orabout $9,183.50, together with the commission payable in such cases, in satisfaction of a garnishment proceeding in the original suit of Bennett & Dunman against McGillan. Many of these claims were undisplited, and orders were made frani time to time by consent for the payment of such claims as were not contested, by which payments thetotalfund in court has been reduced to the sum of $60,658.79, and the contentions over this balance, as between the several interpleaders, are as 'follows: (1) McCoy, Pope & McCoy claim for services as attorneysofBennett & Dunman in the suit brought by one Baker.against them for commissions for negotiating the sale of the ranch and .cattle to McGillan, $1,250; and $350 fOl'services as attorneys for Bennett & Dunman in a suit brought by them against McGil1an onanote for $75,000, given them by McGillan for part of the purchase money of theranoh property. But that was notthe 'suit taken to the supreme court, and on which the money, now in question, was paid into court. (2) Abalance claimed to be due the Stock .Exchange Bank of Ca:ldwell, Kan., of about $3,000. (:3) A claim of Gregory, Cooley & Co. for amount due on a note of8\0..000 given them by Bennett, dated in December, 1884, and which. Bennett .assumed to secure by the assignment of this judgment against McGillan to Charles H. Moore, trustee. (4) A claim of John A. Blair fOI'!thesum of $6.000, paid by him as surety for Bennett to the Cherokee Strip Association, also secured by the assignment of the judgment to!!Moore. (5) Claim of SamuelJ. Garvin against Bennett for $40,000, which he insists is secured to him by an assignment from Bennett of Bennett's interest in the judgment against McGillan. (6) Claim of John. C; Harrison, who, by an assignment from Dunman, insists that he is entitled to all Dunman's interestinth'e McGillan judg. ment. The claim ofMcCoy, Pope & McCoy, I am satisfied, is a proper claim against this fund. It is for meritorious services rendered as attorneys.to ·Bennett & Dunman in litigation growing out of the sale of the ranch and

696

FEDERAL' REPORTER,

voL 51.

cattle to }leGillan, and I have no doubt that, at the time the services were rendered, they looked to this large claim against MeGillan as the fund, from' which they would be' paid. If they had not relied upon being. paid out of the proceeds of the McGillan judgment, tbey would probably not have rendered .these services, or would have collected their pity at the' time the services were rendered. These two claims aggregate $1,600, and are allowed for that amount. As to the claim of the Stock Exchange Bank of Caldwell, Kan., I am satisfied from the proof that it was a copartnership claim of the firm of Bennett & Dunman, and should be paid out of this fund, but charged against Bennett's interest in the judgment. His therefore allowed to tlIe amount of $3,000, (subject to correction as to amount. as the proof does not accurately show, but simply states, that it is about $3,000.) The chief controversy in the·, case is over the claims filed by Gregory, Cooley & Co., John A. Blair, Samuel J. Garvin, and JohnC. Harrison. Gregory,C061ey & Co., Blair, and Garvin are individual creditors of Milton H.Bennett, and base: their claims to payment out of ihis fund between themselves, respectively, and Bennett. As to the on Gregory,Cooley & Co. and Blair claims, the proof shows that on the 29th of December, 1885, Bennett, in the name of the firm of Bennett & Dumnan,assigned to Cbarles' H. Moore, as trustee, the claim of Bennett ,& Dunman against: McGillan, then in suit, and. which afterwards ripened into the judgment, to secure an indebtedness due from the firm to the Stock Exchange Bank of Caldwelljand. by a paper executed by Bennett. in the name of the firm, on tl:le :26thof January, 1886, he directed Moore, the trustee, to payout of the proceeds of the McGillanclaim, after paying what was due the Stock Exchange Bank, whatever indebtedness should be due to Gregory, Cooley & Co. from Bennett, and also whatever amount should be due from Bennett to the Cherokee Strip Association, 9r Blair as surety fui' Bennett to the association, and this order was confirmed by a further instrument executed by. Bennett after the rendition of the judgment in this court against McGillan. There, is no dispute that these two claims are the individual indebtedness of Bennett, and that if his interest is sufficient in the judgment, after the payment of the claims chargeable against the 'md as copartners, theyrilight properly be paid out of the fund, to the extent of Bennett's individual interest in the judgment. Garvin claims by an assignment of the balance of Bennett's interestin the judgment, dilted September 22, which assignment was really given to secure a note of 850,000, held by Garvin against Bennett, and for which Bennett was individually liable. Gregory, Cooley & Co., and Garvin also, base their claims upon thepositi,oIlthat the notes held by them. respectively, against Bennett were given fQIl purchase money of part of the cattle sold by Bennett & Dunman to McGillan, and that, by the custom of the Indian nation, the seller of cattle had a lien upon them, and they insist that their lien frillowstbe proceeds' of the cattle, andnttaohes to the fund now in court. Harrison'selaim is based upon an assignment to him by Dunman of all Dunman's interest in the judgment, which assignment is

CLAFLIN V. BENNETT.

697

dated October 8, 1887. This claim of Harrison to Dunman's interest in the judgment also appears to be merely as security for indebtedness due from Dunman to Harrison. The proof shows that, on the 16th day of December, 1886, Bennett & Dunman had a full settlement of their business dealings with each other, including this McGillan judgment, which resulted in a specific in which Bennett admits that he is indebted to agreement in Dunman in the sum of $39,055, and to secure the same assigns to man that am(>unt in the proceeds of the McGillan judjrment when collected; that is. the settlement resulted in an agreement that the interest of Dunman in the judgment was $89,855, and the interest of Bennett was fixed at $25,745; treating the judgment at its face. and in that proportion of what should be actually collected. It is clear from the proof that this settlement was intended to be a complete adjustment of all the business affairs between these parties, and that the apportionment to each of his share in thisjudgment was intended to be a division of the partnership assets, upon a basis fixed by this settlement. The settlement agreement contained this clause: "It is further agreed between the parties that each bave accounted in this settlement for all notes and bonds for which the said Bennett & Dunman as a company are liable." Gregory, Cooley & Co. and Garvin have put into the record a great deal of testimony for the purpose of showing-First, that part of the (lattle sold by Bennett & Dunman to McGillan had been purchased of Hewins. & Titus by Bennett, for which Bennett gave the note now held by Garvin, and that by the custom of dealing in the Indian nation a lien attached to these cattle for the purpose of securing the payment of the paper given for the purchase money, and, further. that there was a specific verbal pledge by Bennett of the cattle to secure the payment,of tlie purchase money; secand. that Bennett & Dunman were not partners, but only owners in common of the ranch property and cattle sold to McGillan. From a careful reading of the proof, I am constrained to say that I do not think it is shown that any such lien was understood to exist or follow cattle sold as is contended for. What I mean is that, while there may have been a usage or understanding of that kind, it is of so shadowy and unsubstantial a nature as to work no substantial right to enforcement by the courts. I also conclude that Bennett & Dunman were partners as to the ownership of the ranch and cattle sold to McGillan. The proof shows that Dunman owned one half of the ranch, and cattle then on it, and that in December, 1883, Bennett bought out the interest of Hewins & Titus, who owned the other half, and from that time on to the sale to McGillan, in April, 1885, Bennett & Dunman managed the ranch and cattle as partners. They do not appear to have had any articles or agreement of copartnership,but the conduct of their business and their methods, so far as they can be got at from the proof, show that they considered themselves as copartners. Their accounts with commission men, to whom they shipped cattle, were kept and rendered ill the part-

698

FEDER'ALREPORTER. ;

vol. 51.

nership name, or( Bennett & Dunman ;:bEirik accounts :ke'Ptand checksdraW1ll in:the firm Qamej.aad the last clause. of thesetUement, from which I have just quoted, shows ,that they j each, of them, 'consid· !relations withiOOcb:other had been that of.partl'ifiTs. Taken altogethJer;the testimony leavesrno doubt upon: rn[ylfnJind that these two men riot onlitcted'ias partners, but considered themselves as such to'suc"hS:n 'extent as' wotlld estbp them both from denying their partnership, and would also work! an estoppel as against either of these claimants to the fund. BeiiIlgpartners. there is no contention that they had noLtha :right to settle the .partnership affairs, and determine by such settlement 'theirrespectiv'e interests in the assets of i the firm, in· .chiding this judp;ment; Ais .against the creditors of the firm they could not defeat their'right to be pm out ofthe assets, but, as between themseh'es and the individual creditors of each of thertl, they could settle had in, all assets. Much istl'essislaid. by;tlw,;atool'neys for Garvin upon the testimony it is Dunman denied of 'Mr. McCoy in the' that they were ever partners; but thecireumstances under, which that urqnthe .as to,9learlysllow, tomYPWl, Dupman a statement 111llst'be takep.' as a denial that he was a partner with Bennett in the purchase of the cattle from Hewins & Titus. Just what relation Dunman and Hewins & Titus had borne'towards '6ther in the manageITlent of the ranch and cattle is not very cleaJ.llydisclosed by thetestiniony, nor is it material. It !is suffi<lienHo saythatJtbeproof does show that Bennett bought Hewins & Titus' interest in the ranch lind cattle, then on the ranch, and that froll1 'the time he bought.-iritothe· business he apd Dunman' oondocted tha businessdf themn&haspartners.. Illln .tberefore of opinion.that, witMol1t ''liegard! to tben of dates :ofsome of these assignments nlll-de by Bennett; they; were all made subject to the right of Bennett lllld'Dunman to detel'mitni between themselves what their respective inter.estswerc·in this judgment. and settled the interest they have in the fund in (lOurt which:,is the proceeds of the judgment. Mr. Bennett's individ ual creditors' OltI1 l ellliin .no· interest· in this judgment except what 'beldngedto'him on al1'llCc6unting with his partner, Dunman. It is further charged'in:,thettnswer of Garvin that the settlement was by reason of fraud;!onthe part of Dunman, ai1d also that the same should be set aside gross mistakes therein, and a great deal of proof has been!hdduced for the purpose of showing such mistakes. It is not contendl(Klthat the proof shows any fraud was prac:ticedonthe part ofDUtnnll:nin o'btaining this s.ettlement or securing the <resUlt, the only positibn' urged' being that mistaklea were made which, if ,oorrected, would widel1 vltty,the'result, and shdwBennett to beeutitled to ,a much than the settlement deter'Ittlined. The proM shows! that-this settlementwfts made after, 'eareful "pl'eparation both by Bennett and Dunman; that they called in the services and able lawyer,-one in whom they both had confi· dence;. that no books ofacqount were kept by the firm, and that neither

on

,

<;LAFLIN '11. BENNETT.

:1

of them pretended to keep a set of regular account bQoks. They were dealers and ranch men. dear-·headed. bright men,. with no special education.. They kept their llccollnts with e:;tch other and the business largely in lOOse memoranda a,nd vouchers, and the ,oourt will assume that, like most unlearned men, who by their shrewdness and business capacity have been successfjll in the acquisition of property aQd the management of their affairs, their, memories had' become so trained as to enable them to keep a general idea of their business affairs in mind, without regard. to' books or bookkeeping. They came together for the purpose of after several da)'sOf comparison of such vouchers and memoranda as they had. at the is shown in their written agreement. Thi;ly hadea'cli bought and sold,large numbers of ip. the common interest, so that the,'llggregate transactions, which had pfissed through the hands of each, amounted to hundreds of thousands of doBars. Just how these "ariou8 amounts were considered and dealt With by the parties, it is impossible now to make clear. Mr. Dunman. and the friend who assisted them, (Mr. Bennett being dead,) both confess their inability, at this late day, to recall the details of the settlement. All this is not surprising. That anyone, after this settlemel1tw3.s made, by groping about among the fragmentary data now accessible, shall be able to arrive at a more correct result than was reached by the parties themselves seems hardly' possible. Because we cannot see just how the parties arrived at the result is no evidence, to my mind, that the parties to this settlement did not fully understand it,or that any mistakes had been made. Undoubtedly, both parties were most materially helped "by their memories, and no traceis left of what they thus recalled and acted upon. Each had paid out money in the purchase of large droves of cattle, and each had received large sums of mom'y from the sales of cattle. When one item balanced the other, no figures were made in regard to them. It is true. there is some proof in the case tending to show that Bennett said he was disappointed in the result, and that Dunman had got the best of the set. tlement. He may, until brought face to face with such figures as were produced, have had. an impression that his intereet was illrger than it was found to be; but he acquiesced in it. and took no steps, after the settlement was made, to set it aside, although he lived over three years after tbat time. It also appears that he was deeply in debt (insolvent) at the time of the settlement, and from then on to his death. These expressions in regard to the settlement may have been made by way of exculpating himself to his creditore, or because he was in fact disappointed, and the result was, to some extent, different from what he had expected. It is urged that the proof shows that Bennett remitted from Kansas to Dunman, in Texas, the sum of $12,000 at one tirne,.$10,000 at another, and $20,000 at another, of which no trace is found in the memoranda Of this settleri1ent. And it is insisted that this large mistake was made ',lgainstBennett in the settlement. That small sums may have been ,pr forgotten, in such a settlement between such men, is not

7M

FEDERAL

REPOn.TER, vol. 51.

mcm/'with:' thmtwits about them, and their memories trained as these

only' possible, but probable; but it is inconceivable 'that two shrewd ·lhust.; have been, could have overlooked sums which, in the agamtluht to $42,000, It smaIl fortune of itself. .Upon:: this point a quotation from the opinion of Chancellor W ALwon.':\i'F1'in'WiWe v. Jenkins, 4 Paige, 494, seems to appropriate: "I;may1alBb-state, from anexat'nination of the books and from other evidence In titiHlase,tbat both parties uoderstood it to bea full and fi nal' adjust.the pal'tnership concerns up to that time. .It must therefore require stt:Ofl,g conclusive evidence of error or mistake to Induce the court to op!lll.tbe accounts, or go lleyond tha adj ustment thereof, in J uoe, 1847. The modes accounts are so various that It is difficult for third persons to uhdmtl\nd them with all the lights which evidence in thecaSebauthrow upon recent traosactlons. The practice of opening accounts, therefore, which parties who could bestundarstand them have themselves adj\letfctd.. ls not to be encouraged, and it shQuld naver be done upon the merll of errors, ,supported by doubtful or eV.en probable testimony where tbe pal;ti(ls to the settlement stand upon terms of peronly; fect equality"80 that there could be no pretense of fraud or imposition practiced 'by one party upon another." In
SIlALL: ',: i:

1 Brock. 149, it was said by Chief Justice

MAR-

,"DoubtfllI.or even testimony is not sUfficient to open a longsettled iJ} the. .of proof of fraud . or undue influence. The r>foof such as to no'doubt of the party's ignorance." SOfltlSQ;:it .by ,the supreme court of the United States in Cranch, 305: be motedarigerous than that of opening accounts which the have adjusted, on suggestion supported oy doubtful or only probaWe testimony." It Seems to me, therefore, that in the attempt to open the accounts betweenthes8' paTties, 'l1ndreadjust them, at this late day, the court wouldbeiil:greater dangeI' 'of doing injustice than to leave the settlem.ent where'the parties left it. . . As totheelaim that a iien exists upon this money by reason of any special or eXpressed pledge: bf the cattle bought from Hewins & Titus by Bennett, Ii deern it enough to say that, in any event, that pledge could only reach Bennett's interest in the cattle, or the money they produced, and Dunman!s interest in the judgment or the copartn.ership assets cannot:he affected by it. ButT mliy also add that the record is barren of proof of the mOhey now in court is the proceeds of those cattle. Cattle had been sold off the ranch, and others had been bought to replace them, for two years before the sale to McGillan, and it is hardly' probable of the cattle. that were purchased from Hewins & Titus passed to McGillan; or are represented by the money now in court. As to'the point made in behalf of Gregory, Cooley & Co., it is sufficient to 'say that Mr. Bennett had no right to pledge the cattle of the firm for his private debt, and that Dunman's interest in the partnership assets cannot be depleted or reduced by his attempt to do so.,

CLAFLIN .,. BENNETT.

701

By the settlement between the parties, Bennett was to pay the amonnt due the Stock Elchange Bank of Kansas as a personal indebtedness of Bennett's; $15,000 has been paid by consent of all parties. out of the fund in court to the; hank, and $3,000 is the balance claimed. This, of course, comes out of Bennett's share of what is left of this fund in court, if any is left. I have not been advised, and the proof does not show, how much of the various amounts which have been, by agreement of parties, drawn out from time to time was in payment of individual indebtedness of Bennett, further than this $15,000to the bank. If, however, there ;is enough money left, upon the basis of the respecth'e interests of ,Bennett and Dunman in the judgment, to pay either of these claims, they should be paid in the following order, after deducting from the undivided money the amount allowed to McCoy, Pope & McCoy, $1,600: If anything is left belonging to Bennett, if he still has any share in the judgment, then the indebtedness of the bank should be paid out of Bennett's share of the judgment. If Bennett's interest in the judgment as fixed by the settlement is exhausted, then it must be deducted from the undivided fund, because it was a partnership debt, as between the bank and the firm. If anything is left after that payment, then the indebtedness to Gregory, Cooley & Co., and, after that, anything that is due to Blair and Garvin, in the order named, as the assignees of Bennett's interests should be paid .in the order of their date. The proportions of the parties should he observed , .as the fund is depleted by these payments, charging to each whatever was his individ1!lal indebtedness. The proof shows that Dunman has received·$38,864.70,-thatis, payments have been made as of his individual indebtedness out of the fund in court to that amount; the items being to Peak, administrator, $28,864.70; and to Harrison, $10,000. From this data, and from what I have said, counsel will be able, I think, without reference to a master, to compute the amount now due Dunman, and the amount which should be paid to him from the fund in court, and the amount, if any, due to Bennett, and which should be paid, in the order ofpriority-Fir8t, to .the bank; aecond, to Gregory, Cooley & Co.; third, to Blair; and, fourth, to Garvin.
MEMORANDA.

On reading the foregoing opinion on the 8th of June inst., in the presence of all the counsel in the case a motion was made in behalf of Gregory, Cooley & Co., John A. Blair, the Cherokee Strip Live Stock Association, and Samuel J. Garvin, for leave to amend their respective pleadings 80 as more specifically to state the mistakes on which they relied as their grounds for setting aside the settlement made between MilL. Dunman, on the 16th of December, 1886, ton H .. Bennett and by which the respective interests of Bennett and Dunman in the fund in court were settled and agreed upon. While it is undoubtedly within the discretion of a court of equity to allow amendments of the pleadings at any stage of the case before the entry of a final decree, I am satisfied that this discretion should: not be exercised in this case for the following rea-