fusal to pay; hence limitation runs against such an action only from that time.-Aldrich v. Yates, 95 Fed. 78.

[d] (U. S. C. C., Wash., 1899) A cause of action to recover an assessment from a stockholder of an insolvent national bank does not accrue until the receiver is authorized by law to bring suit therefor, which is not until the assessment has been ordered by the comptroller, and the time fixed for its payment, before it shall become delinquent, has expired.-Aldrich v. Skinner, 98 Fed. 375.

[e] (Ky. App. 1901) Rendition of a judgment in favor of the receiver of an insolvent national bank against a guardian for the amount of an assessment on shareholders to pay debts, on which execution was directed to issue against the estate of the ward, did not stop the running of the statute of limitations in favor of the ward, even if they were personally liable.Clark v. Ogilvie, 63 S. W. 429, 23 Ky. Law Rep. 552.

[f] (Ky. App. 1901) A rendition of a judgment in favor of the receiver of an insolvent national bank against a guardian for the amount of an assessment on shareholders to pay debts, on which execution was directed to issue against the estate of the ward, even if construed as a personal judgment, if obtained by fraud or rendered without service of process, was equivalent to no judgment, and the statute of limitations would apply.-Clark v. Ogilvie, 63 S. W. 429, 23 Ky. Law Rep. 552.

IX. PARTIES.

[a] (U. S. Sup., Md., 1869) It is no objection to a bill brought by a receiver to enforce the liability of stockholders under the national bank act of June 3, 1864, that some persons who are shown by the bill to be stockholders, but to be resident without the jurisdiction of the court, are not made parties.-Kennedy v. Gibson, 8 Wall. 498, 19 L. Ed. 476.

[b] (U. S. Sup., Md., 1869) The creditors are not proper parties to a suit by the receiver of a national bank to enforce the liability of stockholders for corporate debts. Creditors must seek their remedy through the comptroller in the mode prescribed by the statute. They cannot proceed directly in their own names against the stockholders or debtors of the bank. The receiver is the statutory assignee of the association, and is the proper party to institute all suits. They may be brought both at law and in equity, in his name, or in the name of the association for his use. He represents both the creditors and the association, and when he sues in his own name it is not necessary to make either a party to the suit.-Kennedy v. Gibson, 8 Wall. 498, 19 L. Ed. 476.

[c] (U. S. C. C., Wash., 1897) The comptroller of the currency and the treasurer of the United States are not necessary parties defendant in an action against the receiver of an insolvent national bank to recover an assessment made by the comptroller, and paid by the plaintiff under an erroneous belief that he was a stockholder.-Brown v. Tillinghast, 84 Fed. 71.

[d] (N. Y. Sup. 1890) Under Code Civ. Proc. § 449, excepting from the provision that an action must be prosecuted in the name of the real party in interest a person expressly authorized by statute to sue, the receiver of a national bank may sue for assessments levied on the stockholders, being so authorized by the act of congress relating to national banks.-Peters v. Foster, 10 N. Y. Supp. 389, 56 Hun, 607, 18 Civ. Proc. R. 380.

X. PLEADING AND PROOF.

[a] (U. S. C. C. A., Colo., 1899) A bill by the receiver of a national bank against its officers and directors for the unlawful diversion of funds of the bank is sufficient to support a recovery, when the diversion is proved, although a further allegation that such diversion was fraudulent is not proved. The gravamen of the bill is the fact of unlawful diversion.-Cooper v. Hill, 36 C. C. A. 402, 94 Fed. 582.

[b] (U. S. C. C., Va., 1876) The decision of the comptroller of the currency, that a national bank has become insolvent, is conclusive upon the question of insolvency, for the purpose of conferring upon the receiver authority to sue, but it is not evidence of the fact of insolvency in an action by the

receiver against the stockholders for contribution, under Rev. St. § 5151 [U. S. Comp. St. 1901, p. 3465], but other evidence of that fact must be given. -Bowden v. Morris, Fed. Cas. No. 1,715 [1 Hughes, 378].

[c] (N. Y. App. 1874) A certificate of the comptroller of the currency, approved and concurred in by the secretary of the treasury, reciting the existence of all the facts of which the former is required by the national currency act (13 Stat. 99, § 50) to be satisfied, to authorize him to appoint a receiver of a national bank, under the provisions of that act, is sufficient evidence of the validity of the appointment of the receiver in an action brought by him as such.-Platt v. Beebe, 57 N. Y. 339.

[d] (N. Y. Sup. 1868) Under the act of congress for the organization of national banks, it is the province of the comptroller of the currency to determine whether the emergency which authorizes the appointment of a receiver for a bank has risen or not. And whenever he determines that the emergency has arisen, and appoints a receiver accordingly, his determination is conclusive upon the debtors of the bank, in an action by the receiver to collect assets, though it may not be so upon the bank itself.-Platt v. Crawford, 8 Abb. Prac. (N. S.) 297.

[e] (N. Y. Sup. 1868) Act Cong. June 3, 1864, entitled "An act to provide a national currency secured by a pledge of United States bonds and to provide for the circulation and redemption thereof" (13 Stat. p. 115, § 50), provides that it shall be the duty of the comptroller of the currency to appoint receivers for the banking associations formed under it, when either of the emergencies mentioned in the act on which the appointment is to be made so arises. Held that, in an action by the receiver against a debtor of the bank, an allegation that on a day named the comptroller of the currency appointed the plaintiff receiver of the bank, in accordance with the provisions of the act of congress, and the plaintiff has taken possession of the assets, including the demand in suit, is a sufficient allegation of appointment.-Platt v. Crawford, 8 Abb. Prac. (N. S.) 297.

XI. TRIAL AND JUDGMENT.

[a] (U. S. C. C. A., Fla., 1896) In a suit against a receiver of an insolvent national bank to establish the claim of a creditor and his right to a dividend, the decree should not direct the payment of a dividend by the receiver, since the assets of such bank are, under the statutes, entirely within the control and disposition of the comptroller of the currency, but should direct that the claim of the creditor, as established, be certified to the comptroller, to be paid in due course of administration.-Merrill v. Bank, 21 C. C. A. 282, 75 Fed. 148.

[b] (U. S. C. C. A., Kan., 1900) Plaintiff sued the receiver of a national bank for money loaned the bank for which bank stock had been given as collateral security. The receiver defended on the theory that the transaction was a purchase of the stock. At the trial, plaintiff and another testified positively that plaintiff contracted for the loan with the bank cashier on the terms claimed by plaintiff. The receiver's evidence showed that after his appointment he furnished plaintiff, at her request, with a list of stockholders, in which her own name appeared, and that she did not disclaim being a stockholder, and did not begin suit for two years thereafter. Certain entries on the bank's books showed plaintiff to be a stockholder, but she had not receipted for the certificates she held on the bank's books, and it did not appear that she knew of the entries. In the letters to the comptroller and to defendant, written after the bank's insolvency, plaintiff, who was unexperienced in business matters, referred to herself as a stockholder. Held, that the evidence did not estop plaintiff from showing that she was not a stockholder, and that that issue was properly submitted to the jury.—Bank v. Williams, 42 C. C. A. 101, 101 Fed. 943.

[c] (U. S. C. C. A., Kan., 1900) In a suit against the receiver of a national bank for money loaned the bank while it was a going concern, it was error to permit plaintiff to recover interest on the loan after the bank's suspension and the appointment of a receiver, since debts of an insolvent bank must be liquidated by the receiver as of the date when insolvency supervenes, and

the amount of all debts computed as of that day.-Bank v. Williams, 42 C. C. A. 101, 101 Fed. 943.

[d] (U. S. C. C. A., La., 1899) A decree which commands the receiver of an insolvent national bank to pay over a large sum of money within 10 days, where as a matter of fact, and in accordance with law, the funds are in the custody of the comptroller of the currency, unduly limits the time for satisfying the decree, and might result in the receiver being in contempt for not paying over moneys which are not within his control.-Richardson v. Banking Co., 36 C. C. A. 307, 94 Fed. 442.

[e] (U. S. C. C. A., La., 1899) An order directing payment of interest by the receiver of a national bank from date of judicial demand is erroneous, as funds coming into the hands of a receiver are turned over to the comptroller, and could not earn interest, and any payment of interest would necessarily be taken from some other trust fund; and this particularly where the involved circumstances of the case made it impossible to pay over the amount without investigation and an accounting.-Richardson v. Banking Co., 36 C. C. A. 307, 94 Fed. 442.

[f] (Ill. Sup. 1899) It is proper in a suit on a contract of a national bank, after a receiver has been appointed for it, to render judgment against the bank only, and enter an order requiring the receiver to certify the claim in judgment to the comptroller of the currency of the United States, to be paid by him in due course of administration of the assets of the bank.-Wolf v. McNulta, 52 N. E. 896, 178 Ill. 85, reversing judgment. McKeon v. Wolf (App. 1898) 77 Ill. App. 325.

(115 Fed. 882.)

PHELPS v. CHURCH OF OUR LADY, HELP OF CHRISTIANS.

(Circuit Court of Appeals, Third Circuit. May 22, 1902.)

No. 5.

1. MINERALS-EXCEPTION IN DEED-MARBLE.

Under the law of New York as settled by its court of appeals, marble in place is a "mineral," and the title thereto does not pass by a conveyance of the land which excepts and reserves to the grantor all mines and minerals which may be found therein.

2. ASSUMPSIT-IMPLIED CONTRACT-DEFENSES.

In a jurisdiction where the rule prevails that a defendant in trover may defeat recovery by showing the ownership and right of possession of the property sued for in a third person, the same defense is available where the plaintiff elects to waive the tort and sue in assumpsit to recover the value of the property.

3. SAME TO RECOVER VALUE OF PROPERTY CONVERTED-TITLE OR POSSESSION TO SUPPORT.

Under the law of New York a lease of land for a term of years, with the right to dig, quarry, and use "all or any marble, stone, or other valuable material substance" found therein, but which excepts and reserves "mines and minerals as specified in original conveyance," where the deed under which the lessor holds title expressly excepted and reserved therefrom all mines and minerals found in the land, conveys to the lessee no title to marble in place in the land, and will not support an action of assumpsit by the lessee to recover the value of marble quarried and removed from the land by another at a time when plaintiff was not in possession.

In Error to the Circuit Court of the United States for the District of New Jersey.

Robert H. McCarter, for plaintiff in error.

David H. McClure, for defendant in error.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

ACHESON, Circuit Judge. The case presented to us upon the former writ of error was that of an action brought by the receiver of a company which had the right of property in the marble contained in a tract of land in the state of New York to recover the value of marble quarried from the land by a mere trespasser, who acted for and delivered the marble to the defendant. This statement is fully borne out by the opinion of the court. 40 C. C. A. 72, 99 Fed. 683. Speaking of the indenture made November 25, 1892, between Mrs. Mary Brady, the party of the first part, and James W. Carpenter, Jr., and James A. Phelps, the parties of the second part, the court said: "According to all the authorities, this deed operated to convey an estate in the land for the specified term of fifty years, and its legal effect was to pass to the parties of the second part and their assigns a right of property in the stone and other valuable substances contained in the land." The Metropolitan Marble Company, whose receiver is prosecuting this action, claims under the above-recited deed by virtue of a sublease from the assignee of the term. Of Sullivan, who quarried the marble, the court, in its former opinion, said: "Sullivan appears in the light of a mere trespasser, who had been in the temporary unlawful occupancy of the premises;" and the court added: "The case, as presented by this record, is not one of conflicting titles to the land. It will be observed that at the time the court gave peremptory instructions against the plaintiff the defendant had not put in any evidence whatever." We have no reason to doubt the soundness of the principles laid down by this court on the former occasion, or the correctness of the judgment pronounced. by us upon the facts then presented.

At the second trial of the case a different state of facts was developed. In the first place, it was made to appear (for reasons about to be stated) that the receiver's company, the Metropolitan Marble Company, had no right of property in the marble contained in the land. And, secondly, it was shown that, after the Metropolitan Marble Company had suspended work at the marble quarry, Mrs. Mary Brady and her three daughters executed a written lease of the quarry to the Reverend John P. Callaghan, the rector of the Church of Our Lady, Help of Christians, and that the entry of Sullivan upon the land was made and the marble was quarried and taken away under and in pursuance of this lease to Father Callaghan. The title of Mrs. Mary Brady to the tract of land in question originally came from John La Farge, who, together with his wife, by deed dated February 15, 1852, conveyed the land to one Margaret Lewis. That deed contained the following exception and reservation: "Excepting and reserving therefrom unto the parties of the first part, their heirs and assigns, forever, all mines and minerals which may be found on the above piece of land, with the right of entering at any time with workmen and others to dig and carry the same away.' Succeeding deeds in Mrs. Brady's chain of title contained a similar exception and reservation clause. Furthermore, the above-mentioned indenture of November 25, 1892, whereby Mrs. Brady demised and leased the tract of land to James W. Carpenter, Jr., and James A. Phelps for a term of 50 years, contained the clause following: "Ex

cepting and reserving mines and minerals as specified in original conveyance." And, finally, the sublease of June 25, 1895, by the assignee of the term, the Oswegatchie Quarry Company, to the Metropolitan Marble Company (the plaintiff company), contained the same exception and reservation, namely, "Excepting and reserving mines and minerals as specified in original conveyance." Since our judgment upon the former writ of error, the supreme court of New York, in the case of Brady v. Brady, 31 Misc. Rep. 411, 65 N. Y. Supp. 621, has held that the ownership of the marble in the tract of land conveyed by the above-mentioned deed of John La Farge remained in him by virtue of the exception and reservation of "mines and minerals" contained in his deed. In so holding the supreme court followed the interpretation which the court of appeals of the state of New York gave to the word "minerals" in a grant or reservation in its opinion in the case of Armstrong v. Granite Co., 147 N. Y. 495, 42 N. E. 186, 49 Am. St. Rep. 683. The land here in question is in the state of New York, and the instruments before us are to be construed in accordance with the law of that state as expounded by its courts. Under the decision in the two above-cited New York. cases it is clear that neither Mrs. Brady, nor her lessees, Carpenter and Phelps, nor the Metropolitan Marble Company, the sublessee, took any title to the marble in this land, but that the right of property therein remained in John La Farge. It should be noted that no such point was made, discussed, or considered when the case was here before. Now, not only does the present record disclose that the Metropolitan Marble Company had no ownership of the marble in place, but the proofs establish these further facts, namely: That the marble sued for was not quarried by the plaintiff or his company, and was never in the possession of either, and that during the whole time occupied in the mining and removal of it the Metropolitan Marble Company was out of possession of the quarry, and Father Callaghan was in the actual possession thereof under his lease from Mrs. Brady and her daughters. Instead of bringing trover, the plaintiff, waiving the supposed tort, sued in assumpsit for the value of the marble which was so mined and afterwards was used by the defendant in the erection of its church building at East Orange, in the state of New Jersey. Upon the indisputable facts now appearing, can the plaintiff recover in this action? It may, we think, be affirmed with great confidence that by the law of the forum, in such circumstances as exist here, a defendant in trover could defeat the action by showing the right of property in the chattels sued for to be out of the plaintiff, and in a third person. Glenn v. Garrison, 17 N. J. Law, I. This is the general rule, and it is supported by sound reason; for, if the action could not be defeated by showing that the title to the articles was at the commencement of the suit in a third person, the defendant might be compelled to pay for the same property again to such third person, he being a stranger to the first suit. Ekstrom v. Hall, 90 Me. 186, 192, 38 Atl. 106. This rule undoubtedly applies to a case such as this, where the plaintiff elects to sue in assumpsit for the value of the articles converted. Now, it is true, as shown by Northam v. Bowden, 11 Exch. 70, and