lecting or delivering mail, or assign him to any other duty within the range and line of his employment as such letter carrier. That during such intervals complainant was not required by the postmaster or any rule or regulation of the post office department to keep on his uniform, and could keep it on or discard it as he might desire, but that while on duty he was required to wear his said uniform. That, by reason of the said right, power, and authority of the postmaster to summon the complainant to duty at any time during any of said intervals, the complainant was prevented and prohibited from obtaining or accepting other employment during such intervals except such employment as should be subject and second to the right, power, and authority of the postmaster to at any time so summon the complainant to duty during any and all of said intervals, and the complainant could not and did not obtain other employment. That the complainant did not actually do or perform any work or service for the defendant during any of the intervals which makes the aggregates aforesaid, but was subject during all of said intervals to be summoned by the postmaster to duty as aforesaid within the line of his employment as such letter carrier, but was under the control and direction of the postmaster during said intervals as aforesaid. That, in computing the aggregate of said intervals aforesaid, the daily dinner hour from 12 to 1 o'clock p. m. is not included. It is further agreed that this statement of facts may be taken and considered by the court as the facts in each of the other 18 cases now pending seeking a similar recovery of the defendant, except as to the amount involved in each, respectively, and the court may in each of said cases pronounce its findings, conclusion, and judgment accordingly."

The trial judge found the facts to be as set forth in the foregoing agreement, and from that finding concluded that the petitioner was entitled by law to a judgment for the recovery of the amount claimed by him, and rendered judgment accordingly. From this judgment in due season the United States sued out a writ of error on February 28, 1898, and the transcript was filed in this court April 12, 1898. Before the case was heard on this writ, congress passed an act entitled "An act to amend sections 1 and 2 of the act of March 3, 1887," approved June 27, 1898 [U. S. Comp. St. 1901, p. 752], wherein the jurisdiction of the district and circuit courts to entertain suits against the United States, on the part of the officers of the United States, to recover fees for services rendered, was taken away; and thereupon, on motion of the defendant in error, the writ of error pending in this case was abated. See U. S. v. McCrory, 33 C. C. A. 515, 91 Fed. 295. Subsequently congress passed the following:

"An act for the relief of claimants having suits against the United States pending in the circuit and district courts of the United States affected by the act of June twenty-seventh, eighteen hundred and ninety-eight, amending the act of March third, eighteen hundred and eighty-seven. "Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that no suit shall abate or be affected by the act of June twenty-seventh, eighteen hundred and ninetyeight, entitled 'An act to amend sections one and two of the act of March third, eighteen hundred and eighty-seven,' which was pending in any circuit court of appeals, circuit or district court of the United States at the time of the passage of said act; and all such suits which have been dismissed by reason of said act shall be restored to their places in such courts and proceeded with as if the same had not been enacted; and time within which an appeal or writ of error may be taken or prosecuted in any case affected by this act is hereby extended six months from the passage hereof." Approved February 26, 1900 [U. S. Comp. St. 1901, p. 758].

On the presentation of this last-mentioned act and on motion of counsel for plaintiff in error, this court on May 12, 1900, ordered that this cause be restored to the trial docket to be proceeded with in accordance with law and the rules of this court, and thereupon defendant in error filed a motion to strike the case from the docket for the following reasons:

"(1) That the act of February 26, 1900, does not include the United States. and was not intended to confer any right upon the United States, but was

intended to include 'only claimants' having suits 'pending in the circuit court of appeals, circuit and district courts.'

"(2) That the act of February 26, 1900, is unconstitutional as to the case under consideration and those similarly situated, because it is an invasion and infringement by the legislative branch of the government on the judicial.

"(3 and 4) That the judgment had become final; was beyond the power of all or any courts to impair or interfere with; that the term had passed, the right of appeal had expired, when the act of February 26, 1900, was passed; that the case was pending in no court; the writ of error had been abated, and this court had no jurisdiction to set aside the judgment abating the writ of error, nor to restore it to the docket for any purpose.

"(5) That the act of February 26, 1900, violates the fifth amendment to the constitution of the United States; that the judgment was a vested right and property, which could not be impaired by subsequent legislation."

On this motion and on the merits the cause has been argued and submitted.

Wm. Vaughn, U. S. Atty.

Denson & Tanner, for complainant.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PARDEE, Circuit Judge. "The title is no part of an act, and cannot enlarge or confer powers or control the words of the act, unless doubtful or ambiguous. U. S. v. Fisher, 2 Cranch, 358–386, 2 L. Ed. 304; Railroad Co. v. Thomas, 132 U. S. 174, 188, 10 Sup. Ct. 68, 33 L. Ed. 302. The ambiguity must be in the context, and not in the title, to render the latter of any avail." U. S. v. Oregon & C. R. Co., 164 U. S. 526, 541, 17 Sup. Ct. 165, 41 L. Ed. 541.

The act of congress of February 26, 1900, is neither of doubtful nor ambiguous meaning, but in plain terms provides that all suits pending in any circuit court of appeals, circuit or district court of the United States, on June 27, 1898, which have been dismissed by reason of the act of congress approved June 27, 1898 [U. S. Comp. St. 1901, p. 752] entitled "An act to amend sections one and two of the act of March 3, 1887," shall be restored to their places in such courts and proceeded with as if the said law had not been enacted; and it further extends the time within which an appeal or writ of error may be prosecuted by the said act to six months from the passage thereof.

This act plainly includes the present suit. All the proceedings under the act of March 3, 1887 [U. S. Comp. St. 1901, p. 752], and amendatory acts, are permissive, and in the main intended to advise the congress. The practice thereunder is exceptional, and the judgments and decrees rendered are not executory. When such judgments and decrees are adverse to the United States and are final in the courts, the attorney general reports them to congress for such action as it sees fit to take. It seems, therefore, that it is not worth while to consider whether the act of February 26, 1900, impairs vested rights or is otherwise unconstitutional.

The motion to strike the case from the docket is overruled.

On the merits, the case is identical with that of U. S. v. Langston, heretofore decided by this court (29 C. C. A. 379, 85 Fed. 613), except in respect to these findings of fact, which were not in the Langston Case.

"That during said intervals the complainant was by the rules of the post ffice department excluded from the post office, but was under the control and direction of the postmaster to the extent that the postmaster had the right, power, and authority to summon the complainant to duty at any time during any of said intervals, and send him out again collecting or delivering mail, or assign him to any other duty within the range and line of his employment as such letter carrier. That, by reason of the said right, power, and authority of the postmaster to summon the complainant to duty at any time during any of said intervals, the complainant was prevented and prohibited from obtaining or accepting other employment during such intervals, except such employment as should be subject and second to the right, power, and authority of the postmaster to at any time so summon the complainant to duty during any and all of said intervals, and the complainant could not and did not obtain other employment."

The act under which the petitioner in this case claims extra pay distinctly grants such extra pay only in case the letter carrier is employed during the extra time for which he claims.

The facts as found by the trial judge clearly show that, during the "idle" intervals for which petitioner claims he was not employed in his duties as a letter carrier, he was not required to wear his uniform; he was not required to stay in any particular place; he was doing nothing but waiting, and waiting to be employed. The fact that during the time he was so waiting to be employed the postmaster could have summoned him to duty tends strongly to show that during such interval he was not employed, and not at all that he was employed. The fact that during the time he was so waiting he could not and did not obtain other employment may raise an equity in his favor, but in no wise proves that during the intervals for which he claims pay he was employed.

Under the finding of facts, it seems perfectly clear that during the "idle" intervals, as styled in the finding of facts, the petitioner was not employed in his duties as a letter carrier. If he was not so employed, then he has no right to recover under the statute.

For these reasons and others given in U. S. v. Langston, supra, the judgment of the district court is reversed, and the cause is remanded, with instructions to dismiss the suit.

MILLER et al. v. TENNANT-STRIBLING SHOE CO.
(Circuit Court of Appeals, Fifth Circuit. January 13, 1903.)

1. ATTACHMENTCODE.

No. 1,174.

CLAIM BY THIRD PARTY - PROCEDURE UNDER MISSISSIPPI Code Miss. 1892, §§ 4425-4428, provide for the filing of an affidavit of claim by a third party to property seized under execution or attachment, and that on the making of such claim "the court shall on motion of the plaintiff in execution direct an issue to be made up between the parties to try the right of property at the same term." Section 4428 provides that, if by default of the plaintiff in execution an issue be not made up at the term to which the execution is returnable, the

11. Federal courts following state practice as to issuance of attachment, see note to O'Connell v. Reed, 5 C. C. A. 594.

119 F.-55

court shall discharge the claimant from his bond, and the property shall not be subject to the plaintiff's execution or attached. Held, that such provisions are binding on a federal court, and, where an attachment plaintiff failed to have the issue made up at the term, the claimant was entitled to have the property discharged from the levy, and to be discharged from a forthcoming bond given by him, which right was not lost by his failure to move for such discharge until after a number of terms had passed.

In Error to the Circuit Court of the United States for the Northern District of Mississippi.

The plaintiffs in error, as the claimants of certain property levied upon under writ of attachment sued out by the defendant in error, made affidavits in conformity with the provisions of section 4425 of the Mississippi Code (1892), for the trial of right of property. A portion of the property levied upon was claimed by D. W. Miller and H. J. Roper jointly, and a portion by H. J. Roper individually. For that claimed by H. J. Roper a claimant's bond was given under the statute. The writ of attachment under which this property was levied upon was returnable to the December term, 1897, of the circuit court of the United States held at Oxford, Miss. The marshal made his return on the writ December 7, 1897, and on the following day claimants filed their affidavits. The attachment issue was disposed of against the defendant in the original suit on December 7, 1899. The plaintiff in attachment never took any action toward making an issue for the trial of right of property between itself and the claimants. On December 2, 1901, the claimants filed a motion asking the court to discharge the levy under the writ of attachment and release them from their forthcoming bond, because of the failure of plaintiff to tender an issue for the trial of right of property, as required by law. The court overruled this motion,

and a trial was had without any tender of issue and without an issue being joined in the case. The trial resulted in a judgment in favor of the plaintiff in attachment and against the claimants.

James Stone, C. L. Sivley, and Smith & Totten, for plaintiffs in

error.

R. T. Fant, for defendant in error.

Before PARDEE and SHELBY, Circuit Judges, and MEEK, District Judge.

MEEK, District Judge, after stating the facts as above, delivered the opinion of the court.

The first error assigned complains of the action of the trial court "in overruling claimants' written motion to discharge the levy upon the property levied on under the writ of attachment, and in not pronouncing judgment for the claimants and releasing them from their forthcoming bond because of the plaintiff's failure to tender issue at the first term, as required by law." The attachment proceedings and the filing of the claimants' affidavits and bond for trial of right of property were had under the provisions of the Mississippi Code, and it is therefore incumbent upon this court to give effect to these statutory provisions, and to follow the construction placed upon them by the supreme court of Mississippi. Bank v. Farwell, 56 Fed. 570, 6 C. C. A. 24, 12 U. S. App. 409; Bank v. Teal (C. Č.) 5 Fed. 503.

Section 4425 of the Code of 1892 provides the manner in which third parties may make claim of ownership to property levied on under execution, and for the bonding, holding, or disposing of prop

erty pending the determination of the issue. Section 159 of the Code of 1892 makes these and subsequent quoted provisions of the law applicable to claimants of property levied on by virtue of writs of attachment.

Section 4427 of the Code of 1892 is as follows:

"Issue to be Made Up.-Upon the return of the execution with the affidavit and bond, if any, the court shall, on motion of the plaintiff in execution, direct an issue to be made up between the parties to try the right of property at the same term, unless good cause be shown for a continuance."

This places the burden upon the plaintiff in attachment to move the court to direct an issue to be made up, and it is for the plaintiff to tender an issue to the claimant, as the burden of proof is with the plaintiff. McAnulty v. Bingaman, 6 How. (Miss.) 382; Phillips v. Cooper, 50 Miss. 722; section 4429, Code 1892. The statute is mandatory as to the time when the issue shall be made up between the parties. It must be at the return term of the attachment. The trial of right of property may, for good cause shown, be continued, but the issue must be joined at the return term. This is made clear and emphasized by the provisions of section 4428 of the Code of 1892, which are as follows:

"Default in Making Up Issue.-If by default of the plaintiff in execution an issue for the trial of the right of property be not made up at the term to which the execution is returnable, the court shall discharge the claimant from his bond, and the property shall not thereafter be subject to execution on plaintiff's judgment; but if the claimant fail to join issue when tendered at the first term, the court, at the instance of plaintiff in execution, shall order a writ of inquiry as to the value of the property, and also to inquire whether or not the claim was made for fraudulent purposes or for purposes of delay."

This section seems clear and explicit in its terms. If at the term to which the writ of attachment is returnable the plaintiff in attachment fails to move the court to direct an issue to be made up, and fails to tender an issue to the claimant under the direction of the court, then the plaintiff in attachment is in default, and the claimant is entitled to his judgment discharging him from his bond, and the property is no longer subject to attachment. Sears v. Gunter, 39 Miss. 338.

In the present case the writ of attachment was returnable to the December term, 1897. This and several subsequent terms of the court passed without any action by the plaintiff in attachment looking to the making of an issue for the trial of right of property. The claimants were entitled to the judgment authorized by the statute long before it was sought by the motion interposed on December 2, 1901, but it is not apparent how their delay could operate to estop them from claiming their judgment, or how it could invest the plaintiff in attachment with any right to proceed to trial without the making up of an issue under the imperative requirements of the statute.

It is contended by counsel for the defendant in error that the issue directed by the statute need not be made up in writing; that the statute itself is silent on this point; and that no decision of the supreme court of Mississippi can be cited holding that it must be made in writing. In Smokey v. Wack, 57 Miss. 833, the sufficiency of