that damages or royalties recovered for such infringement should be equally divided between the parties. It is said that, if title to this patent was wholly in the company, it needed no request on its part to bring suit, nor was the assent of Dooley essential; and that, as stated, is true. But it must not be overlooked that in any such prosecution the aid of the inventor was desirable, if not invaluable; that the company undertook at large expense to introduce this planter; that Dooley depended for the extent of his compensation upon the extent of the sales made by the company; that infringements might greatly affect the amount of sales, and so injure Dooley, who, for his compensation, was to receive a percentage upon the planters sold. It was therefore manifestly for his interest, as for the interest of the company, that he should assist, upon request, in the prosecution of such suits; and it was proper, in that view, that the damages recovered should be equally divided. The language employed does not forbid a suit by the company without the cooperation of Dooley, but gives to him the privilege, aiding the prosecution, to receive one-half the damages, paying one-half the expenses. While the language of this paragraph is perhaps inapt and somewhat obscure, it is not so obviously repugnant to the clear and well-defined expressions of the granting clause as to warrant the court in a forced and unnatural construction of the plain language which constitutes the grant. We are of opinion that Dooley is not a necessary party to the suit.

The decree is reversed, and the cause is remanded, with direction to the court below to overrule the demurrer.

(114 Fed. 627.)

THOMAS LAUGHLIN CO. v. AMERICAN SURETY CO. OF NEW YORK. BLAKE et al. v. SAME. BOYD v. SAME. CLEAVES v., SAME.

(Circuit Court of Appeals, First Circuit. April 16, 1902.)

1. SURETY-LIABILITY.

Nos. 405, 406, 407, 408, 409, 410.

A surety's liability does not ordinarily extend beyond the penal sum of the bond,-as, for instance, to costs and interest,-unless he has in some way resisted or obstructed the recovery of the claim against him.1 2. SAME-CONTRACTOR'S BOND-CLAIMS ACQUIRED BY THIRD PARTY CONTRACTING TO INDEMNIFY SURETY.

In computing the pro rata to be paid creditors of a defaulting contractor by the surety on his bond (the penalty of the bond being insufficient to satisfy the claims in full), claims which have been acquired by a third party, who has contracted to indemnify the surety, should be considered.

Appeals from the Circuit Court of the United States for the District of Maine.

Benjamin Thompson, for appellants.

Thomas L. Talbot (Henry C. Wilcox, on the brief), for appellee American Surety Co. of New York.

Harry R. Virgin (Franklin C. Payson, on the brief), for appellees Allen and Hutchinson.

Before COLT, Circuit Judge, and BROWN and LOWELL, District Judges.

LOWELL, District Judge. Morgan contracted to build for the United States a battery on Diamond Island. The American Surety Company was the surety furnished upon his bond in accordance with chapter 280 of Acts 1894 (28 Stat. 278). Morgan broke his contract, having become indebted to a considerable number of persons while engaged upon the contract work. Some of these persons brought suits against the surety company under chapter 280. The surety company filed a bill in equity, ancillary to these suits, for the purpose of settling its liability both to the plaintiffs in the suits mentioned and to other creditors of Morgan, so far as these creditors should come in. The penal sum of the bond is probably insufficient. to pay the statutory claims in full. The claims against the surety company thus arising under chapter 280 were referred to a master. Exceptions were taken to his report, and were dealt with by the circuit court. The appellants now seek to reverse the action of that court in dealing with certain claims.

The circuit court disallowed certain claims for labor, tools, and other supplies, and for the transportation of material to Diamond Island. For the purposes of this case, it is not necessary to decide if the statute of 1894 should be held to cover more than is covered by the ordinary lien statutes of the states. However this may be, we are of opinion that the labor and materials here in controversy are plainly without the purview of the statute. All the appeals except that taken by the Laughlin Company are thus disposed of.

1 See note at end of case.

That company has contended that the surety company is liable, over and above the penal sum of the bond, for interest thereon, and for the costs of the suits brought against the surety company. A surety's liability does not ordinarily extend beyond the penal sum of the bond, unless he has in some way resisted or obstructed the recovery of the claim against him. No acts of resistance or obstruction have been shown in this case, other than those which have been already compensated by the allowance in the suits at law of costs accrued up to the time of the filing of this bill. This court is not now asked to decide if costs or interest should be allowed the claimants as against the fund arising from the penalty of the bond, but only if costs or interest should be allowed as against the surety company outside that fund. To some extent the former appear to have been allowed, and to some extent allowance has been suspended to await the further action of the circuit court.

The Laughlin Company further contended that in computing the claims which are to be satisfied by the surety company out of the penalty of the bond there should be excluded certain claims now held for the benefit of one Allen, who had contracted to indemnify the surety company from loss on its bond. The evidence does not show. as was contended, that Allen was a partner of Morgan, and so the claims are not to be excluded on that ground. It follows, therefore, as stated by the learned judge below, that in computing the pro rata to be paid the other creditors these claims must be taken into consideration, "as any other ruling would compel Allen to now reimburse the complainant the full penal amount of its bond, notwithstanding he had acquired these claims; and it would also give the other creditors a larger percentage than they are technically entitled to." If these claims-some purchased by Allen, and others already paid by the surety company, which has been reimbursed by Allenbe not reckoned among the liabilities of Morgan to be charged against the fund furnished by the penalty of the bond, Allen will be required under his guaranty to pay not only the penalty of the bond, but also an additional sum equal to the amount expended by him in this purchase and reimbursement.

In each case the decree of this court is as follows:

The decree of the circuit court is affirmed, and the costs of appeal are awarded to the appellee.

NOTE.

Liability of Sureties for Interest, Costs, and Attorney's Fees. 1. Interest.

[a] Sureties on a tax collector's bond are liable for interest on money in his hands from the date of approval of the bond until payment, and on moneys afterwards received and retained by him after it was his duty to pay it over.

-(Conn. Sup. 1879) City of Hartford v. Franey, 47 Conn. 76; (Tenn. Sup. 1873) McLean v. State, 55 Tenn. 22.

[b] (Ala. Sup. 1845) It is correct, as a general proposition, that the penalty of a bond limits the responsibility of one who executes it as a surety, and consequently he is not liable, in the event of a breach, for interest upon the penalty.-Ansly v. Mock, 8 Ala. 444.

[c] (Ala. Sup. 1845) On the breach of appeal bond, a surety is not liable

for interest on the penalty, which generally limits his responsibility.-Ansly v. Mock, 8 Ala. 444.

[d] (Ga. Sup. 1877) A surety on a bond cannot be held liable for more than the penal sum named therein, with interest.-Westbrook v. Moore, 59 Ga. 204.

[e] (Ind. App. 1891) Where defendant became surety on a note bearing interest from date, and providing for payment of attorney's fees, and the payee agreed in writing that defendant should "not be bound for interest, but for the principal alone," such agreement did not relieve defendant from liability for interest after maturity.-McDonald v. Huestis, 27 N. E. 509, 1 Ind. App. 275.

[f] (La. Sup. 1851) Though the principal on a bond for a debt bearing interest must pay interest, the surety is bound to pay it only from default, if but a surety for the debt.-Dorsett v. Lambeth, 6 La. Ann. 51.

[g] (Md. App. 1830) A surety is liable to interest on the amount of the obligation or an unliquidated demand.-State v. Wayman, 2 Gill & J. 254, 280.

[h] (Mass. Sup. 1813) A surety is liable for interest on the amount of his obligation from the date of demand.-Heath v. Gay, 10 Mass. 371.

[i] (Mass. Sup. 1866) Where a surety is sued on a penal bond, he is liable for interest on the penalty from the time he has notice that he has become liable, not as part of the debt for which he originally became responsible, but as damages for its detention.-Bank of Brighton v. Smith, 12 Allen, 243, 90 Am. Dec. 144.

[j] (Mass. Sup. 1884) Where a note is taken by a bank as collateral for advances to be made, and afterwards advances for less than its face are made, but, because it is due, the maker gives the bank a demand note bearing the same date as the collateral note, a surety on the latter note is liable for interest only from the time the demand note was given.-Proctor v. Whitcomb, 137 Mass. 303.

[k] (Mo. App. 1876) In an action on a penal bond, judgment may be entered for the amount of the bond with interest from date.-St. Louis Domicile & Savings Loan Ass'n v. Augustin, 2 Mo. App. 123.

[1] (Pa. Sup. 1889) Where one conducting a business for another gave a bond, on the termination thereof, that he would pay on demand any balance that shall appear to be due from him, after an examination of the accounts and inventory, to be concluded within two months from that date, it was proper, in an action on the bond, to refuse to charge that the surety could not be required to pay interest until the balance was found, and then only on such balance.-Holmes v. Frost, 17 Atl. 424, 125 Pa. 328.

[m] (S. C. Sup. 1883) A., as principal, and B., as surety, signed a note bearing 12 per cent. interest. Judgment was recovered against A., and afterwards, the judgment remaining unsatisfied, judgment was entered against B. for a larger sum by the addition of the accumulated interest. Held, that B. could not, in the suit against him, plead the unsatisfied judgment in bar, nor (A. having subsequently paid the amount of the lesser judgment against himself) escape liability for the difference between the judgments.-Noble v. Cothran, 18 S. C. 439.

[n] (Va. App. 1656) In equity, the obligee or judgment creditor may recover interest against the principal debtor on a bond or judgment, beyond the penalty.-Tazewell's Ex'r v. Saunders' Ex'r, 13 Grat. 354.

[o] (Wis. Sup. 1884) When the damages resulting from the breach of a penal bond exceed the penalty, if interest on such damages would be recoverable against the principal, interest upon the penalty, in addition to the full amount thereof, may be recovered against the surety.-Clark v. Wilkinson, 18 N. W. 481, 59 Wis. 543.

2. Costs.

[a] (Ill. Sup. 1855) When a capias is issued at the instance of a surety on a criminal recognizance against his principal, the costs on it are not taxable as costs on scire facias against the surety.-People v. Phelps, 17 Ill. 200. [b] (S. C. App. 1847) Where the sheriff and his sureties were sued upon their bond, executed prior to the act of 1839, in South Carolina, and when by law the sureties were only liable for their proportional parts of the pen

alty of the bond, it was held that they could not include, as parcels of their proportions of such penalty, the costs of former judgments against them, nor the interest paid upon such former judginents; such costs being additional to the penalty, as well as the interest, when payment of the sum recovered had been delayed.-State v. Wylie, 2 Strob. 113.

3. Damages.

[a] (Tenn. Sup. 1873) The sureties of a tax collector are liable for damages.-McLean v. State, 55 Tenn. 22.

4. Attorney's Fees.

[a] (Ga. Sup. 1889) Attorney's fees, though embraced in a promissory note 'given for rent, are not collectible by distress warrant, and the surety on a replevy bond growing out of a levy of the distress warrant is not liable for such fees.-Jones v. Findley, 10 S. E. 541, 84 Ga. 52.

[b] (Ind. App. 1891) Defendant signed as surety a note which bore interest from date, and which provides for the payment of attorney's fees, and the payee agreed in writing that defendant should "not be bound for interest, but for the principal alone." Held, that said agreement did not relieve defendant from liability for attorney's fees.-McDonald v. Huestis, 27 N. E. 509, 1 Ind. App. 275.

[c] (Iowa, Sup. 1874) Upon a promissory note which stipulated "that a reasonable sum, to be fixed by the court, for attorney's fees, shall be allowed and taxed as costs against the parties making this note," in default of payment by the principal maker the sureties are liable for the attorney's fees as well as the principal amount.-First Nat. Bank v. Breese, 39 Iowa, .640.

(113 Fed. 289.)

BARTHOLOMEW et al. v. UNION PAPER & BAG CO. (Circuit Court of Appeals, Seventh Circuit. January 21, 1902.) APPEAL-REView-Order GRANTING PRELIMINARY INJUNCTION.

An interlocutory order granting a preliminary injunction is largely discretionary, and will not be reversed on appeal unless it appears to have been improvidently entered.

Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.

Thomas A. Banning, for appellants.

Charles K. Offield, for appellee.

Before JENKINS and GROSSCUP, Circuit Judges, and BUNN, District Judge.

PER CURIAM. This case is before us on an appeal from an interlocutory order restraining the appellants from selling, disposing of, or in any way incumbering a certain patent application filed by them in the patent office in January, 1901, and from issuing, or causing to be issued, a patent on such application, and from entering into any contracts or agreements or taking any steps which will jeopardize appellee's interests in certain inventions embodied in a contract entered into between the parties August 27, 1900, or in any improvements upon such inventions. It is enough now to say that appellants have failed to show that the provisional order was improvidently entered; and, inasmuch as the case will probably be before us again on its final hearing, no further reasons for our judgment need be given.

The decree is affirmed.