MARTIN V. RAINWATER.

11

of other claimants who are thus embraced, from asserting by bill or petition, his right to share in the fund Is est.'lblished by numerous authorities both in, England and the United States."

The court reaffirmed the doctrine laid down in the case of Williams v. Gibbcs, 17 How. 239, where the court said:
"Kow, the principal is well settle-d in respect to these proceedings in chancery for tJw distribution of a common fund a mong the fleveral part ies interested, eHher on the application of the trustee of the fund, the executor or adminifltrator, legatee, or next of kin, or on the application of any party in interest, that an absent party, who had no notice of the and not guilty of willful laches or unreasonable neglect, will not be concluded by the decree of distribution from the assm·tion of his right by bill or petition against the trustee, executor, or administrator; or, in case they have disu'i!mled the fund in pursuance of un order of the court, against the distributees. "

And, after citing various cases, the court added:
"The cases above referred to relate to the rights of creditors and next of kin, but the principle is equally applicable to all varties interested in a common fund brought into a court of equity for distribution amongst the several claimants."

Johnson v. Waters, 111 U. S. 640, 4 Sup. at. Rep. 619; Flash v. Wilkerson, 22 Fed. Rep. 689; 2 Daniell, Oh. Pro (4th Ed.) 1204. These authorities are conclusive of this case. The rule established by the cases cited by counsel for the appellees-that whcll a judgment creditor who is in a position to assail conveyances made by his debtor in fraud of his creditors files a bill for that purpose, he thereby acquires a lien on the property which entitles him to priority over other creditors-has no application to this case. Kimberling V. Hartly, 1 McCrary, 13G, 1 Fed. Rep. 571. In the case at bar the conveyance was not fraudulent. 'l'he assignment was a valid instI1lment, and was made for the equal benefit of all the creditors of Smith & French, and every creditor has a right to participate in the distribution of the fund in proportion to the amount of his debt upon contributing his proportion of the expense of establishing and enforcing the tI1lst. 'l'he attorneys' fees for prosecuting the suit were, upon the petition of the complainants themselves, ordered paid out of the trust fund, which could only have been done on the theory that the suit was prosecuted for the equal benefit of all the creditors interested in the fund. Creditors are not required to obtain a judgment at law against Smith & French before filing their interventions. They may file their claims in the master's oflice, and when allowed they will be entitled to share pro rata with the appellees and all other creditors in the distribution of the fund. In view of the length of time that has elapsed since the assignment was made, and the long continuance of this litigation, it is probable that all the creditors of Smith & French have already intervened, or are ready to do so whenever it is known that they have that right. For these reasons we think 30 days' public notice by advertisement in a newspaper published in the Indian 'l'erritory, to all creditors of Smith & French, to appear before the

IS

FEDERAL REPORTER,

vol. 56.

master, and establish their several debts, will give the creditors sufficient time to intervene, and that the order of distribution Mould be made as soon thereafter as the claims filed can be adjudicated. The decree of the court below is reversed, with directioDs to proceed therein not inconsistent with this opinion.

TENNANT et al. v. SMITH et IlL (Circuit Court of Appeals, Eighth Circuit. May I, 1893.) No. 200. Appeal from the United 8tates Court in the In<11an Ternrory. In Equity. Petition of Intervention by Tennant, Walker & Co. In II. creditors' suit brought by Rainwater, Boogher & Co. and others against Smith & French, Johnson Thompson, and Mrs. J. A. French. The petition was dismissed on demurrer, and they appeal. Reversed. S. O. finds and W. C. Jackson, for appellants. N. B. Maxey, Isaac H. Orr, and Harvey L. Christie, for appellee Orr-Lind&ley Shoe Co. W. T. Hutchings, L. P. Sandels, and Joseph M. HllI, for appellees except Smith & French, Johnson Thompson, and Jennie A. French. Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge. CALDWELL, Circuit Judge. This case Involves the Mme questions decided in Martin v. Rainwater, - U. S. "'pp. - , - C. C. A. - , 56 l<'ed. Rep. 7, and is reversed on the authority of that case, and remanded with like lDstructions. MEHLIN et nl. v. ICE. {Circuit Court of Appeals, Eighth Circuit. No. 182.
L

EJECTMENT-DuE PROCESS OF LAW-CHEROKEE LAWS.

I, 1893.)

Stat. Cherokee Nation, c. 3, art. 19, § 154, as amended by Act Dec. 7, 1889, provides th:!t when, In an action of ejectment, application is made for a writ of ejectment, the district clerk shall give the defendant 10 days' notice to show cause why the writ should not issue, and the clerk Is authorized to determine upon the showing made whether the writ shall ls."ue. Held, that tllis proceeding Is snfficient to constitute due process of law, within the meaning of the federal constitution. proceedings and judgments of the of the Cherokee Nation In eases within their jurisdiction are on the same footing with those of the courts of the territories of the Union, and entitled to the same faith and credit; and hence, where a party in a federal court justifies an entry under such writ 0:1' ejectment, the sufficiency of the evidence before the clerk to justify its issuance cannot be Inquired Into.

J. ,

CHEUOKEE NATION-JUDGMENTS-FEDEUAL COUUTS.

a.

.

SAME-COURTS-JURISDICTION-GENERAL ApPEARANCE.

Where a person responds to the notice so issued, enters a general appear· ance, and defends the case on the merits, he thereby waives any exemption from the jurisdiction of the courts of the Cherokee Nation to whicb. he, as 8. white citizen of the United States, may be entitled.