municipal taxes under its charter. Af See case number 221 below, 49 C. C. A. 455, 111 Fed. 561. Mr. William H. Carroll submitted the cause for appellant. Mr. Tim E. Cooper was with him on the brief: The mere fact that the demand in this mands in the adjudged cases were for taxes case is for a tax for one year, and the defor other years, does not prevent the operation of the thing adjudged, if, in the prior cases, the question of exemption was necessarily presented and determined upon identically the same facts upon which the right of exemption is now claimed. New Orleans v. Citizens' Bank, 167 U. S. Bank of Kentucky v. Stone, 88 Fed. 383; 371, 42 L. ed. 202, 17 Sup. Ct. Rep. 905. Statement by Mr. Chief Justice Fuller: The Union & Planters' Bank of Memphis was incorporated under a charter granted by the general assembly of the state of Tennessee in 1858, which contained the following provision: "That said company shall pay an annual tax of of 1 per cent on each share of stock subscribed, which shall be in lieu of all other taxes." The corporation was located in the city of Memphis, Shelby county, Tennessee, and that city, pursuant to an act of the legislature of Tennessee, assessed an ad valorem tax for the given matter becomes the subject of litigaThe Tennessee cases hold that where a year 1899, for municipal purposes, on the tion in, and of adjudication by, a court of capital stock of the bank. The bank thereupon filed its bill in the circuit court of the competent jurisdiction, that that matter is United States for the western division of forever concluded between the parties and the western district of Tennessee, in which their privies, where the judgment is final. it was alleged that the law under which the 498; Gray v. Faris, 7 Yerg. 161; King v. Estill v. Taul, 2 Yerg. 467, 24 Am. Dec. assessment was made impaired the obligation of the contract created by the above- Vaughn, 8 Yerg. 59, 29 Am. Dec. 104; quoted clause of the charter. The bill fur-Hodges v. Bauchman, 8 Yerg. 186; Elrod v. ther averred that in a former litigation between the bank and the city, wherein it was sought to enforce a municipal assessment of taxes on the capital stock of the bank for the years 1888, 1889, and 1890, it was adjudged by the supreme court of Tennessee that, by the provision aforesaid, the capital stock of the corporation was exempt from all general taxation. The record and judgment in that suit were set out in full, and pleaded as a final judicial determination of the bank's exemption from the pay; ment of ad valorem taxes on its capital stock; and it was averred that the judg ment so pleaded was based on the identical claim of exemption now asserted, and on identically the same facts and conditions under which this assessment was made. The prayer was that the assessment be canceled, and complainant be declared to be exempt from the payment. to the city of ad valorem taxes on its capital stock. [73] *Defendants demurred, and the demurrer was sustained and the bill dismissed, November 6, 1900, whereupon complainant prayed and perfected an appeal to, and also took a writ of error from, the United States circuit court of appeals for the sixth circuit, and the case was docketed there on or about November 27, 1900. On February 11, 1901, complainant prayed, and was granted an appeal from the decree of the circuit court directly to this court, the record was filed here, March 23, 1901, and the case is now No. 67. The case in the circuit court of appeals 189 U. S. U. S., Book 47. Lancaster, 2 Head, 574, 75 Am. Dec. 749; actions. Southern P. R. Co. v. United States, 168 U. S. 5, 42 L. ed. 355, 18 Sup. Ct. Rep. 18; Forsyth v. Hammond, 166 U. S. 506, 41 L. ed. 1095, 17 Sup. Ct. Rep. 665. Mr. Luke E. Wright submitted the cause for appellee. Mr. John H. Watkins was with him on the brief: The precise point involved herein having been determined by both this court and the state court, there is no longer any Federal or other question as to the taxability of appellant's capital stock as contradistinguished from the shares of stock. Shelby County v. Union & P. Bank, 161 U. S. 150, 40 L. ed. 652, 16 Sup. Ct. Rep. 558; Union & P. Bank v. Memphis, 101 Tenn. 168, 46 S. W. 557. There is such a well-defined and unbroken line of decisions in Tennessee that judg ments and decrees in tax cases are limited to the taxes actually involved that, as a 45 713 local question, that proposition is no longer | Dist. v. Bradley, 164 U. S. 112, 41 L. ed. debatable. 369, 17 Sup. Ct. Rep. 56; First Nat. Bank v. Chehalis County, 166 U. S. 440, 41 L. ed. 1069, 17 Sup. Ct. Rep. 629; Wilson v. North Carolina, 169 U. S. 586, 42 L. ed. 865, 18Sup. Ct. Rep. 435; Missouri P. R. Co. v. Ne State v. Bank of Commerce, 95 Tenn. 221, 31 S. W. 993; Union & P. Bank v. Memphis, 101 Tenn. 167, 46 S. W. 557; Buchanan v. Springer (Tenn. Ch. App.) 35 S. W. 774. The local law as to the effect of tax judg-braska, 164 U. S. 403, 41 L. ed. 489, 17 Sup. ments will be followed by this court in cases involving the construction of a state statute or a former state judgment. Bergman v. Bly, 13 C. C. A. 319, 27 U. S. App. 650, 66 Fed. 43; Lavin v. Emigrant Industrial Sav. Bank, 18 Blatchf. 1, 1 Fed. 650; Shelby v. Guy, 11 Wheat. 367, 6 L. ed. 496; Green v. Neal, 6 Pet. 299, 8 L. ed. 402; Morley v. Lake Shore & M. S. R. Co. 146 U. S. 166, 36 L. ed. 928, 13 Sup. Ct. Rep. 54; Fidelity Ins. & S. D. Co. v. Shenandoah Iron Co. 42 Fed. 376; Tioga R. Co. v. Blossburg & C. R. Co. 20 Wall. 137, 22 L. ed. 331; Union Nat. Bank v. Bank of Kansas City, 136 U. S. 235, 34 L. ed. 346, 10 Sup. Ct. Rep. 1013; Leighton v. Young, 18 L. R. A. 266, 3 C. C. A. 176, 10 U. S. App. 298, 52 Fed. 439; Sanford v. Poe, 16 C. C. A. 305, 37 U. S. App. 378, 69 Fed. 546; Bauserman v. Blunt, 147 U. S. 647, 37 L. ed. 316, 13 Sup. Ct. Rep. 466; Thompson v. Searcy County, 6 C. C. A. 674, 12 U. S. App. 618, 57 Fed. 1030; Luther v. Borden, 7 How. 1, 12 L. ed. 581; Lavin v. Emigrant Industrial Sav. Bank, 18 Blatchf. 1, 1 Fed. 641; Christy v. Pridgeon, 4 Wall. 196, 18 L. ed. 322; Leffingwell v. Warren, 2 Black, 603, 17 L. ed. 262; Sioux City Terminal R. & Ware-house Co. v. Trust Co. of N. 4. 27 C. C. A. 73, 49 U. S. App. 523, 82 Fed. 124; Hill v. Hite, 29 C. C. A. 549, 56 U. S. App. 403, 85 Fed. 268; Union P. R. Co. v. Reed, 25 C. C. A. 389, 49 U. S. App. 233, 80 Fed. 234; Rice v. Adler-Goldman Commission Co. 18 C. C. A. 15, 36 U. S. App. 266, 71 Fed. 151; Hodgdon v. Burleigh, 4 Fed. 121; Duden v. Maloy, 43 Fed. 407; Sutherland-Innes Co. v. Evart, 30 C. C. A. 305, 58 U. S. App. 335, 86 Fed. 597. The rule of decision in Tennessee upon the question of res judicata constitutes a property rule, as well as its decisions upon its statute laws, which rule of decision the Federal courts have repeatedly announced they will follow. Ct. Rep. 130; Merchants' & Mfrs. Nat. Bank v. Pennsylvania, 167 U. S. 461, 42 L. ed. 236, 17 Sup. Ct. Rep. 829. Mr. Chief Justice Fuller delivered the opinion of the court: Diversity of citizenship did not exist, and the jurisdiction of the circuit court rested solely on the ground that the cause of action arose under the Constitution of the United States. The appeal lay directly to this court under § 5 of the judiciary act of March 3, 1891 (26 Stat. at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 547), and not to the circuit court of appeals. American Sugar Ref. Co. v. New Orleans, 181 U. S. 277, 45 L. ed. 859, 21 Sup. Ct. Rep. 646. Nevertheless, an appeal having been prosecuted to the latter court, and having there gone to decree, an appeal was allowed to this court because the judgment was not made final in that court by § 6 of the act. But the case being here, and the jurisdiction of the circuit court having *depended [74] on the sole ground that it arose under the Constitution, we are constrained to reverse the decree of the circuit court of appeals, not on the merits, but by reason of the want of jurisdiction in that court. If this were not so, the right to two appeals would exist. in every similar case, notwithstanding, as we have repeatedly held, that such was not the intention of the act. Robinson v. Caldwell, 165 U. S. 359, 41 L. ed. 745, 17 Sup. Ct. Rep. 343; Loeb v. Columbia Twp. 179 U. S. 472, 45 L. ed. 280, 21 Sup. Ct. Rep. 174; American Sugar Ref. Co. v. New Orleans, 181 U. S. 277, 45 L. ed. 859, 21 Sup. Ct. Rep. 646. In Pullman's Palace Car Co. v. Central Transp. Co. 171 U. S. 138, 43 L. ed. 108, 18 Sup. Ct. Rep. 808, an appeal was taken to this court and also to the circuit court of appeals, and a motion was made in each court to dismiss the appeal, whereupon, by reason of the circumstances, we granted a Franklin County Ct. v. Louisville & N. R. Co. 84 Ky. 65; Olcott v. Fond du Lac Coun-writ of certiorari, and brought up the recty, 16 Wall. 678, 21 L. ed. 382. The present law, as announced by this court and the supreme court of Tennessee, is controlling in this case. Lavin v. Emigrant Industrial Sav. Bank, 18 Blatchf. 1, 1 Fed. 650; Tomes v. Barney, 35 Fed. 115; Bank of Kentucky v. Stone, 88 Fed. 397; Bauserman v. Blunt, 147 U. S. 647, 37 L. ed. 316, 13 Sup. Ct. Rep. 466; Morley v. Lake Shore & M. S. R. Co. 146 U. S. 162, 36 L. ed. 925, 13 Sup. Ct. Rep. 54; Miller v. Swann, 150 U. S. 132, sub nom. Miller v. Anderson, 37 L. ed. 1028, 14 Sup. Ct. Rep. 52; Baltimore Traction Co. v. Baltimore Belt R. Co. 151 U. S. 137, 38 L. ed. 102, 14 Sup. Ct. Rep. 294; Marchant v. Pennsylvania K. Co. 153 U. S. 380, 38 L. ed. 751, 14 Sup. Ct. Kep. 894; Fallbrook Irrig. ord from the latter court before it had proceeded to decree. The question as to which was the correct route to reach this court became immaterial, and we disposed of the case on its merits. But in the present case the circuit court of appeals went to decree, and we are obliged to deal with the appeal therefrom, in doing which the jurisdiction of that court necessarily comes under review. The questions on the merits are, however, presented for disposition on the direct appeal from the circuit court. In Shelby County v. Union & Planters" Bank (1895) 161 U. S. 149, 40 L. ed. 650, 16 Sup. Ct. Rep. 558, it was decided that the capital stock of the bank was not exempt from ad valorem taxation by the pro vision of the charter in question, and was | Watertown, 153 U. S. 671, 38 L. ed. 861, 14 liable to be taxed as the state might deter- Sup. Ct. Rep. 947; Chicago & A. R. Co. v. mine. Bank of Commerce v. Tennessee use Wiggins Ferry Co. 108 U. S. 18, 27 L. ed. of Memphis, 161 U. S. 134, 40 L. ed. 645, 636, 1 Sup. Ct. Rep. 614, 617; Rev. Stat. § 16 Sup. Ct. Rep. 456. 905 (U. S. Comp. Stat. 1901, p. 677). The litigation over the alleged exemption has been protracted, and many decisions have been rendered in this court and in the highest tribunal of Tennessee in respect of it. They are *reviewed by Lurton, J., in the [76] circuit court of appeals, 49 C. C. A. 455, 111 Fed. 561. Decree of the Circuit Court in No. 67 affirmed. Decree of the Circuit Court of Appeals in No. 221 reversed, with a direction to dismiss the appeal and writ of error. But the bank objects that, notwithstanding this court has thus held that the exemption asserted does not exist, it must, nevertheless, be recognized in this case as existing, because it was so determined by the judgment pleaded as res judicata. The judgment thus relied on as a bar to this assessment is reported in Memphis v. Union & Planters' Bank (1892) 91 Tenn. 546, 19 S. W. 758, which involved the assessment of municipal taxes for the years 1887 to 1891 inclusive, on the capital stock of the bank, and a privilege tax for the years 1889, 1890, [75] and 1891. *The supreme court of Tennessee there held, in deference to the supposed scope of the decisions of this court in Far-MEXICAN CENTRAL RAILWAY COMrington v. Tennessee (1877) 95 U. S. 679, 24 L. ed. 558, and in Bank of Commerce v. Tennessee (1881) 104 U. S. 493, 26 L. ed. 810, that the bank was exempted by the charter from being assessed by the state, county, or municipality for any taxes except as specified. In Union & Planters' Bank v. Memphis (1898) 101 Tenn. 154, 46 S. W. 557, the conclusion announced in Shelby County v. Union & Planters' Bank, 161 U. S. 149, 40 L. ed. 650, 16 Sup. Ct. Rep. 558, was followed, and it was held to be the settled rule in Tennessee that the plea of res judicata is only applicable to the taxes actually in litigation, and is not conclusive in respect to taxes assessed for other and subsequent years. State v. Bank of Commerce, 95 Tenn. 231, 31 S. W. 993. As the judgment relied on as res judicata was not so regarded in Shelby County v. Union & Planters' Bank, it could not be properly so regarded in the present case; but, apart from that, it is enough that in PANY (Limited), Plff. in Err., J. M. DUTHIE. (See S. C. Reporter's ed. 76-78.) Pleading amendment after verdict and judgment. An amendment of plaintiff's petition, after verdict and judgment thereon, with no further proceedings taken, by inserting the words, "and is a citizen of said state and of the United States of America," after the allegation therein that "plaintiff resides in EI Paso, in El Paso county, state of Texas," may be allowed by a circuit court of the United States, under U. S. Rev. Stat. § 964 (U. S. Comp. Stat. 1901, p. 697), giving the trial court the right at any time to permit either of the parties to amend any defect in process or pleadings, upon such conditions as it shall prescribe. [No. 336.] Tennessee the doctrine of res judicata is Submitted March 23, 1903. Decided April not applicable to taxes for years other than those under consideration in the particular case, inasmuch as what effect a judgment of a state court shall have as res judicata is a question of state or local law, and the taxes involved in this suit are taxes for years other than those involved in the prior adjudication. Phoenix F. & M. Ins. Co. v. Tennessee, 161 U. S. 174, 40 L. ed. 660, 16 Sup. Ct. Rep. 471. In New Orleans v. Citizens' Bank, 167 U. S. 371, 42 L. ed. 202, 17 Sup. Ct. Rep. 905, referred to by appellant's counsel, no claim was made that the judgment relied on would not have been res judicata in the state courts, and attention was particularly called to the fact that the rule in Louisiana was in accord with the conception of res judicata expounded in that case. 13, 1903. United States for the Western District of Texas wherein is certified the question of that court's jurisdiction to permit an amendment to the petition after verdict and judgment, and to retain the judgment after such amendment. Judgment affirmed. N ERROR to the Circuit Court of the The facts are stated in the opinion. 'Messrs. Aldis B. Browne, Alexander Britton, and Eben Richards submitted the cause for plaintiff in error: The verdict found upon pleadings which are substantially defective is itself defective, and judgment entered thereon is void. Garland v. Davis, 4 How. 131, 11 L. ed. 907; Barnes v. Williams, 11 Wheat. 415, 6 L. ed. 508. As the judgment pleaded had no force or After the verdict and judgment entered effect in the Tennessee state courts other thereon, the trial court should not have althan as a bar to the identical taxes litigat-lowed plaintiff to amend his pleadings by ined in the suit, the courts of the United serting the necessary jurisdictional averStates can accord it no greater efficacy. ments therein, without first setting aside Cooper v. Newell, 173 U. S. 555, 43 L. ed. the verdict and judgment and granting a 808. 19 Sup. Ct. Rep. 506; Metcalf v. new trial. Smith v. Jackson ex dem. Allyn, 1 Paine, 486, Fed. Cas. No. 13,065; Robertson v. Cease, 97 U. S. 646, 24 L. ed. 1057; Halsted v. Buster, 119 U. S. 341, 30 L. ed. 462, 7 Sup. Ct. Rep. 276; Chapman v. Barney, 129 U. S. 677, 32 L. ed. 800, 9 Sup. Ct. Rep. 426; Denny v. Pironi, 141 U. S. 121, 35 L. ed. 657, 11 Sup. Ct. Rep. 966; Cooper v. Newell, 155 U. S. 532, 39 L. ed. 249, 15 Sup. Ct. Rep. 355. See also Brown v. Keene, 8 Pet. 112, 8 L. ed. 885; Continental L. Ins. Co. v. Rhoads, 119 U. S. 237, 30 L. ed. 380, 7 Sup. Ct. Rep. 193; Menard v. Goggan, 121 U. S. 253, 30 L. ed. 914, 7 Sup. Ct. Rep. 873; Wolfe v. Hartford L. & Annuity Ins. Co. 148 U. S. 389, 37 L. ed. 493, 13 Sup. Ct. Rep. 602; Horne v. George H. Hammond Co. 155 U. S. 393, 39 L. ed. 197, 15 Sup. Ct. Rep. 167; Bargh v. Page, 4 McLean, 10, Fed. Cas. No. 980. By the practice conformity act of June 1, 1872, U. S. Rev. Stat. § 914, the specific provisions of the state statutes in this respect are controlling. Glenn v. Sumner, 132 U. S. 152, 33 L. ed. 301, 10 Sup. Ct. Rep. 41; Henderson v. Louisville & N. R. Co. 123 U. S. 61, 31 L. ed. 92, 8 Sup. Ct. Rep. 60; Phillips & C. Constr. Co. v. Seymour, 91 U. S. 646, 23 L. ed. 341; Atlantic & P. R. Co. v. Laird, 164 U. S. 393, 41 L. ed. 485, 17 Sup. Ct. Rep. 120; Mack v. Porter, 18 C. C. A. 527, 25 U. S. App. 595, 72 Fed. 236. See also People's Sav. Bank & Trust Co. v. Batchelder Egg Case Co. 2 C. C. A. 126, 4 U. S. App. 603, 51 Fed. 130; Post v. Wise Twp. 101 Fed. 204; Wolf v. Cock, 40 Fed. 432. Amendments to pleadings under the Texas statute and practice are not allowable after verdict and judgment, except that, after arrest of judgment or new trial granted, the court may allow such amendment as if no trial had been had or judgment reached. Petty v. Lang, 81 Tex. 238, 16 S. W. 999; Heflin v. Burns, 70 Tex. 347, 8 S. W. 48; Missouri P. R. Co. v. Howe, 4 Tex. App. Civ. Cas. (Willson) § 197, p. 296. Mr. Leigh Clark submitted the for defendant in error: cause Judgments are under the control of the court where entered, until the close of the term. 1 Black, Judgm. § 153. Mere matters of procedure, such as the granting or refusing motions for new trial, and questions respecting amendments to the pleadings, are purely discretionary matters for the consideration of the trial court; and unless there has been gross abuse of that discretion they are not reviewable in this court on writ of error. Mexican C. R. Co. v. Pinkney, 149 U. S. 201, 37 L. ed. 702, 13 Sup. Ct. Rep. 859; Chapman v. Barney, 129 U. S. 677, 32 L. ed. 800, 9 Sup. Ct. Rep. 426; Chirac v. Reinicker, 11 Wheat. 302, 6 L. ed. 479; Murphy ▼. Stewart, 2 How. 284, 11 L. ed. 269; Spencer v. Lapsley, 20 How. 264, 15 L. ed. 902. And when such amendment is permitted, the court must, in its discretion, determine whether any submission which had been made ought to be vacated. Bamberger v. Terry, 103 U. S. 40, 26 L. ed. 317. Certain amendments will be permitted at any stage of the case, so as to bring in an essential party or to aver citizenship. Fisher v. Rutherford, Baldw. 188, Fed. Cas. No. 4,823; Hilliard v. Brevoort, 4 McLean, 24, Fed. Cas. No. 6,505. The trial court did not err in permitting the plaintiff to amend his original and first amended original petitions in said cause, after judgment rendered, at the same term of court. The Tremolo Patent, 23 Wall. 518, sub nom. Tremaine v. Hitchcock, 23 L. ed. 97; Maddox v. Thorn, 8 C. C. A. 574, 23 U. S. App. 189, 60 Fed. 217; Fitchburg R. Co. v. Nichols, 29 C. C. A. 464, 50 U. S. App. 280, 85 Fed. 869. Where the laws of the state and those of the United States conflict, the laws of the latter govern. Cooley, Const. L. p. 32; Phelps v. Oaks, 117 U. S. 236, 29 L. ed. 888, 6 Sup. Ct. Rep. 714; Southern P. Co. v. Denton, 146 U. S. 202, 36 L. ed. 943, 13 Sup. Ct, Rep. 44; Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291, 23 L. ed. 898. Mr. Chief Justice Fuller delivered the opinion of the court: damages for personal injuries in the circuit Duthie brought suit for the recovery of court of the United States for the western district of Texas against the Mexican Central Railway Company, Limited, and in his sides in El Paso, in El Paso county, state original complaint averred that he "reof Texas, in the western district of said[77] state," and that defendant was a citizen of the state of Massachusetts. The cause was tried before a jury, and resulted in a verdict record shows "that no further proceedings and judgment thereon April 10, 1902. The were had in said cause after the entry of said judgment until, to wit, the 17th day of April, 1902, on which day plaintiff filed his motion asking leave to amend his petition," to the effect "that leave be granted him to now amend his said original and first amended petition by inserting therein the following: 'And is a citizen of said state and of the United States of America,' after the allegation made in said pleading that plaintiff resides in El Paso, in El Paso county, state of Texas.'' In support of the motion plaintiff stated under oath "that he is now and was at the date of the filing of his original petition herein, and was on the 22d day of July, 1901, the date of his injuries, a bona fide citizen of the United States of America and of the state of Texas." The court granted leave to so amend, and defendant excepted. Thereupon defendant applied to the court to certify to this court the question of jurisdiction to amend, and to retain the judgment after such amend ment, and a certificate was accordingly granted. If the complaint or petition had remained as it was originally framed, and the case had then been carried to the circuit court of appeals, that court would have been constrained to reverse the judgment and remand the cause for a new trial, with leave to amend. Metcalf v. Watertown, 128 U. S. 586, 32 L. ed. 543, 9 Sup. Ct. Rep. 173; Horne v. George H. Hammond Co. 155 U. S. 393, 39 L. ed. 197, 15 Sup. Ct. Rep. 167. But plaintiff, discovering the defect in the averment before the case had passed from the jurisdiction of the circuit court, applied and obtained leave to amend, and made the amendment. So that the only question is whether the circuit court had power to allow the amendment. By 954 of the Revised Statrtes (U. S. Comp. Stat. 1901, p. 697) it was provided that the trial court might "at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe;" and since the trial court in the present case still had control of the record, it had jurisdiction to act, and [78] we may add that we do not perceive that there was any abuse of discretion in permitting the amendment in the circumstances disclosed. Mexican C. R. Co. v. Pinkney, 149 U. S. 201, 37 L. ed. 702, 13 Sup. Ct. Rep. 859; The Tremolo Patent, 23 Wall. 518, sub nom. Tremaine v. Hitchcock, 23 L. ed. 97. If the statutes of Texas forbade such an amendment, the law of the United States must govern. Phelps v. Oaks, 117 U. S. 236, 29 L. ed. 888, 6 Sup. Ct. Rep. 714; Southern P. Co. v. Denton, 146 U. S. 202, 36 L. ed. 943, 13 Sup. Ct. Rep. 44. The suggestion that defendant was cut off from trying the fact as to plaintiff's citizenship is without merit. The record does not disclose that defendant sought to contest plaintiff's affidavit, and for aught that appears the fact may have been conceded. Judgment affirmed. HENRY J. JAQUITH, Trustee, Appt., บ. G. EDWIN ALDEN. (See S. C. Reporter's ed. 78-84.) PPEAL from the United States Circuit A Court of Appeals for the First Circuit to review a judgment which affirmed a de-. cree of the District Court for the District of Massachusetts reversing a judgment of a referee who had disallowed a claim in bankruptcy unless certain payments were surrendered as preferences, and allowing the claim. Affirmed. See same case below, 118 Fed. 270. Statement by Mr. Chief Justice Fuller: F. N. Woodward et al. filed their petition in bankruptcy, and were adjudicated bankrupts November 26, 1901. They had become insolvent August 15, and on that day were not indebted to G. Edwin Alden, who afterwards, in ignorance of the insolvency, made sales to Woodward et al., and received payments from them therefor in the regular course of business, and without any idea or[79] intention on the part of Alden of obtaining a preference thereby, the sales and payments being as follows: The merchandise sold Woodward et al. was manufactured by them, and the result of the transactions was to increase their estate in value. Alden petitioned to be allowed to prove his claim of $546.89. The referee disallowed the claim unless at least the amount of $633.88 was surrendered to the estate. The district judge reversed the judgment of the referee and allowed the claim, and the decree of the district court was affirmed by the circuit court of appeals (118 Fed. 270) on the authority of Dickson Bankruptcy preferences by payments for v. Wyman, 55 L. R. A. 349, 49 C. C. A. 574, goods sold after insolvency. Payments by the vendees on a running account for goods which were sold and delivered after they had become insolvent, when received by the vendor in the regular course of business and without idea or intention on his part of obtaining a preference thereby, are not, though made within four months before the petition In bankruptcy was filed for such vendees, preferences within the meaning of the bankruptcy act of 1898, § 60 (30 Stat. at L. 562, chap. 541, U. S. Comp. Stat. 1901, p. 3445), which must be surrendered, under § 57g, before the vendor's claim for the balance due can be allowed. [No. 516.] 111 Fed. 726. Thereupon an appeal to this court was allowed and a certificate granted under § 25, b, 2. Mr. Harry J. Jaquith submitted the cause in propria persona for appellant: The record shows a preference under the bankruptcy act, which the appellee should surrender. Pirie v. Chicago Title & T. Co. 182 U. S. 438, 45 L. ed. 1171, 21 Sup. Ct. Rep. 906. set off to reduce the preference. A new credit paid for in full cannot be Peterson v. Nash Bros. 55 L. R. A. 344, 50 C. C. A. 260, 112 Fed. 311; Kahn v. Cone Export & Commission Co. 53 C. C. A. 92, 115 Fed. 290; Kimball v. E. A. Rosenham Co. Submitted January 12, 1903. Decided April 52 C. C. A. 33, 114 Fed. 85; P. S. Morey Mercantile Co. v. Schiffer, 52 C. C. A. 249, 27, 1903. |