(156 Fed. 1022.)

LOUISVILLE & N. R. CO. v. LACY. (Circuit Court of Appeals, Fifth Circult. November 18, 1907.) No. 1,730. In Error to the Circuit Court of the United States for the Southern District of Alabama. G. L. Smith and H. T. Smith, for plaintiff in error. J. W. McAlpine, E. M. Robinson, and C. E. Hamilton, for defendant in error. Before PARDEE and SHELBY, Circuit Judges, and BURNS, District Judge.

PER CURIAM. This case was submitted to the jury in accordance with the opinion and judgment of this court in Lacy v. Louisville & Nashville R. Co., 152 Fed. 134, 31 C. C. A. 352; and we find no reversible error assigned or apparent in the proceedings of the trial court in the last trial of the case, and we therefore affirm the judgment rendered.

(156 Fed. 1022.)

LUTCHER & MOORE LUMBER CO. v. KNIGHT et al. (Circuit Court of Appeals, Fifth Circuit. December 10, 1907.) No. 1,629. In Error to the Circuit Court of the United States for the Western District of Louisiana. J. D. Wilkinson and Geo. E. Holland, for plaintiff in error. A. J. Murff and M. J. Cunningham, Jr., for defendants in error. Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. After a thorough and attentive consideration of the questions raised on this writ, we are of opinion that the matters of defense relied upon by plaintiff in error on the trial below, in so far as they were not given consideration, were of an equitable nature, not cognizable in a court of law. We therefore affirm the judgment of the Circuit Court.

(156 Fed. 1022.)

METROPOLITAN LIFE INS. CO. v. TALBOTT. (Circuit Court of Appeals, Fifth Circuit. December 3, 1907.) No. 1,660. In Error to the Circuit Court of the United States for the Northern District of Texas. Maurice E. Locke and Eugene P. Locke, for plaintiff in error. Wendel Spence, for defendant in error. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges. PER CURIAM. The judgment of the Circuit Court is affirmed. See 142 Fed. 694, 74 C. C. A. 26.

(156 Fed. 1023.)

MEXICAN CENT. RY. CO., Limited., v. ECKMAN. (Circuit Court of Appeals, Fifth Circuit. November 26, 1907.) No. 1,475. In Error to the Circuit Court of the United States for the Western District of Texas. T. A. Falvey and Waters Davis, for plaintiff in error. Geo. E. Wallace, for defendant in error. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges. PER CURIAM. Considering the answer of the Supreme Court of the United States to the questions heretofore certified in this case (see Mexican Central Railway Co., Ltd., v. J. W. Eckman, Guardian, etc., 205 U. S. 538, 27 Sup. Ct. 791, 51 L. Ed. 920, and the case of Slater v. Mexican Central National Railroad Company, 194 U. S. 120, 24 Sup. Ct. 581, 48 L. Ed. 900), the judgment of the Circuit Court is reversed, and this cause is remanded, with instructions to dismiss the same at the costs of the plaintiff below, but without prejudice to an action in any court willing and competent to administer relief under the laws of Mexico.

(156 Fed. 1023.)

ROLLER v. BURKETT et al. (Circuit Court of Appeals, Fifth Circuit. November 26, 1907.) No. 1,553. Appeal from the Circuit Court of the United

*Rehearing denied January 21, 1908.

States, for the Eastern District of Louisiana. Thos. J. Gibson, Hiram Glass, W. L. Estes. Jno. J. King, and C. K. Bell, for appellant. Chas. S. Todd, for appellees. Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. This appeal is dismissed, on the authority of Menge v. Warriner. 120 Fed. 816, 57 C. C. A. 432, and Cay v. Vereen, 144 Fed. 839, 75 C. C. A. 667, and authorities there cited.

(156 Fed. 1023.)

WAGGONER et al. v. NATIONAL BANK OF COMMERCE et al. (Circuit Court of Appeals, Fifth Circuit. November 26, 1907.) No. 1,718. Appeal from the Circuit Court of the United States for the Northern District of Texas. W. O. Davis and Sam J. Hunter, for appellants. J. H. Barwise, Jr., Geo. E. Miller, and F. E. Dycus, for appellees. Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. This is the second appeal in this case. The decree now before us seems to be in accordance with our views as expressed in our former opinion (143 Fed. 53, 74 C. C. A. 207), and in the matters not passed upon in the former appeal seems to be correct. It is, however, somewhat involved, and, as it is suggested that under one aspect of the decree, it might permit a double recovery on the Coffey-Neal chattel mortgage, it is amended by limiting the full recovery by the National Bank of Commerce and the Bank of America, as against W. T. Waggoner and Robert Houssels, to the sum of $13,337.50, together with 10 per cent. interest thereon from date of decree, that being the full amount secured by said chattel mortgage; and, as thus amended, the decree is affirmed.

(156 Fed. 1023.)

ZARAFONITIS et al. v. UNITED STATES.* (Circuit Court of Appeals. Fifth Circuit. December 10, 1907.) No. 1,717. In Error to the Circuit Court of the United States for the Northern District of Texas. Yancey Lewis and Nelson Phillips, for plaintiffs in error. Wm. H. Atwell, U. S. Atty. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. Notwithstanding the exhaustive brief filed, we adhere to our conclusions in this case when it was before the court at a former term (United States v. Zarafonitis et al., 150 Fed. 97, 80 C. C. A. 51); and the judgment of the Circuit Court is affirmed.

*Rehearing denied January 21, 1908.

END OF CASES IN VOL. 84

INDEX.

ABATEMENT AND REVIVAL.

Judgment as bar to another action, see "Judgment," § 3.

Pleas in abatement in criminal prosecution, see "Criminal Law," § 4.

ABUTTING OWNERS.

Compensation for taking of or injury to lands or easements for public use, see "Eminent Domain," § 1.

Rights in streets in cities, see "Municipal Corporations," § 1.

Accounting as to profits in suit to restrain unfair competition, see "TradeMarks and Trade-Names," § 2.

ACCRUAL.

Of right of action, see "Limitation of Actions," § 1.

ACKNOWLEDGMENT.

Operation and effect of admissions as evidence, see "Evidence," § 3. Operation and effect of admissions as ground of estoppel, see "Estoppel," § 1.

ACTION.

Accrual, see "Limitation of Actions," § 1.

Bar by former adjudication, see "Judgment," § 3.
Jurisdiction of courts, see "Courts."

Laches, see "Equity," § 2.

Limitation by statute, see "Limitation of Actions."

State legislation affecting equitable defenses in action at law in United States court, see "Courts," § 2.

Actions between parties in particular relations. See "Attorney and Client," § 2; “Master and Servant,” § 5.

Actions by or against particular classes of persons.

See "Brokers," § 2; "Carriers," & 2; "Receivers," § 2.
Foreign insurance companies, see "Insurance," § 1.

Particular causes or grounds of action.

See "Death," § 1; "Fraud," § 2; "Insurance," § 3; "Negligence," § 2; "Waste." Bond of depositary, see “Depositaries.”

Broker's commissions, see "Brokers," § 2.

Death caused by operation of railroad, see "Railroads," §§ 1-3.

Death of passenger, see "Carriers," § 2.

Infringement of copyright, see "Copyrights," § 2.

Infringement of patent, see "Patents," § 5.

Personal injuries, see "Landlord and Tenant," § 2; "Master and Servant," § 5; "Railroads," §§ 1, 2.

Services of attorney, see "Attorney and Client," § 2.

Taking of or injury to property in exercise of power of eminent domain, see "Eminent Domain," § 1.

Unfair competition in trade, see "Trade-Marks and Trade-Names," § 2.
Unpaid taxes, see "Taxation," § 1.

See "Ejectment."

Particular forms of action.

Particular forms of special relief.

See "Divorce"; "Injunction"; "Quieting Title."

Alimony, see "Divorce," § 2.

Cancellation of written instrument, see "Cancellation of Instruments."
Determination of adverse claims to real property, see "Quieting Title."
Removal of cloud on title, see "Quieting Title."

Particular proceedings in actions.

See "Damages"; "Evidence"; "Judgment"; "Limitation of Actions"; "Pleading"; "Removal of Causes"; "Trial."

Particular remedies in or incident to actions.

See "Injunction"; "Receivers"; "Tender."

Proceedings in exercise of special or limited jurisdictions.

Criminal prosecutions, see "Criminal Law.”

Suits in equity, see "Equity."

Review of proceedings.

See "Appeal and Error"; "Equity," § 4; "New Trial."

§ 1. Joinder, splitting, consolidation, and severance.

Under Rev. St. § 921 [U. S. Comp. St. 1901, p. 685], which authorizes federal courts to consolidate "causes of a like nature or relative to the same question," a Circuit Court has power in its discretion to consolidate for trial separate actions brought against a railroad company to recover for the death of persons who were killed at the same time and in the same manner.

-Diggs v. Louisville & N. R. Co., 156 Fed. 564; Dunnaway v. Same, .84 C. C. A. 330

Id.

ADEQUATE REMEDY AT LAW.

Effect on jurisdiction of equity, see "Equity," § 1.

ADJUDICATION.

Of bankruptcy, see "Bankruptcy," § 1.

Of courts in general, see "Courts," § 1.

Operation and effect of former adjudication, see "Judgment," § 3.

ADMINISTRATION.

Of estate of bankrupt, see "Bankruptcy," § 3.
Of property by receiver, see "Receivers," § 1.

ADMIRALTY.

See "Collision"; "Shipping."

ADMISSIONS.

As evidence in civil actions, see "Evidence," § 3.

ADVERSE CLAIM.

To real property, see "Quieting Title."

ADVERSE POSSESSION.

See "Limitation of Actions."

§ 1. Nature and requisites.

If one claiming under an assurance of title defining boundaries place a tenant in possession without limiting him to any definite part, the tenant's possession will extend to the landlord's boundaries, although the land actually occupied is but a small part of the whole.

-Bell v. North American Coal & Coke Co., 155 Fed. 712.....

84 C. C. A. 60

Under Shannon's Code Tenn. § 4456, possession of land under assurance of title, if continued for seven years, operates not only to bar an action on a superior title, but to devest that title and vest it in the adverse holder; but, on the other hand, possession without color of title continued for seven years gives a mere right to defend against the title so long as the possession is actual and continuous, under section 4458, which provides that no person shall have any action for any lands, but within seven years after the right of action has accrued, and such right is lost the moment the possession is abandoned. Hence, under such statute as construed by the Supreme Court of the state, where one in possession of land without color of title attorned to another who had made entry from the state of a definite tract, including his own, and agreed to hold possession of the whole for his landlord, the effect was an abandonment of his own possession, and from that time his possession was that of his landlord and referable to the entry, and extended to the whole tract, although there was no extension of his actual inclosure.

-Bell v. North American Coal & Coke Co., 155 Fed. 712.....

84 C. C. A. 60