its terms. Upon the trial of this issue of possession and use by Mrs. Lemmon under the lease, the court below fell into the following manifest errors:

1. The government, in the examination in chief of one of its witnesses, deduced this evidence:

"Q. Did Mrs. Lemmon take possession under that lease? A. Well, I don't know whether I could answer that. We supposed she was using the land, but whether Though it was understood when the bond was executed that she made some arrangements, so that she didn't use individually the whole of that land. Q. Who had been using some portion of that land up to that time? A. Different parties. I think Mr. Fritz has been using some of it, and I think the Flournoy Live-Stock & Real-Estate Company had been using some of it, and I don't know but Mr. Wheeler had been using some of it. I think he had."

On cross-examination of this witness, counsel for the plaintiffs in error was denied permission to ask the following question, on the ground that it was not cross-examination:

"Q. Mr. Mathewson, Mr. Sawyer interrogated you with respect to the possession of this land. It was a fact that Mr. Fritz and the Flournoy Live-Stock & Real-Estate Company were in possession of this land at the time this transaction took place, was it not?"

It is too plain for argument or discussion that this question was far within the lines of proper cross-examination.

2. A witness for the government, who had shown no knowledge of any contract of agency between Henrietta Lemmon and J. S. Lemmon, no knowledge of any authority given by her to J. S. Lemmon to act for her, and no assent by her to any acts of his in her behalf, was permitted to testify, over the objection that his testimony was incompetent, immaterial, and that he had shown no knowledge of the facts, that J. S. Lemmon was generally the agent of Henrietta Lemmon, and a motion to strike this testimony from the record was denied. Agency cannot be proved by the intuition of a stranger, who has no knowledge of the contract, no knowledge of any authority given by the principal, and no knowledge of any assent by the principal to the exercise of authority by the supposed agent.

3. When the evidence for the plaintiff had been introduced, it very clearly appeared that Henrietta Lemmon had never been in possession or occupation of the leased premises during the term of the lease, and that during all that time they had been occupied by the Flournoy LiveStock & Real-Estate Company and Nick Fritz, and the government undertook to maintain its action upon the theory that the Flournoy Company and Fritz were holding under Henrietta Lemmon, and that their possession was her possession. For the purpose of meeting this contention, the plaintiffs in error offered in evidence a lease of a part of the premises described in Henrietta Lemmon's lease from the Winnebago tribe of Indians to Nick Fritz for the term of five years from April 28, 1891, executed by the council of the Winnebago tribe on the one part, and by Nick Fritz on the other, on April 28, 1891; a lease for the remainder of the premises in Henrietta Lemmon's lease from the Winnebago tribe of Indians to the Flournoy Live-Stock & RealEstate Company for the term of five years from April 29, 1891, executed by the council of the Winnebago tribe on the one part, and the

Flournoy Company on the other; proved beyond controversy that under these leases, which were conceded to be void under the acts of congress, Fritz and the Flournoy Company occupied and used the premises leased to Henrietta Lemmon during the term of her lease; and then offered to prove that, under the advice and direction of the United States Indian agent at the Winnebago agency, the Flournoy company paid to a person selected by the Indian council of the Winnebago tribe for that purpose the rent stipulated in its lease for the time between May 1, 1892, and May 1, 1893, and that on May 1, 1893, Joseph Lamere, who had been appointed for that purpose by the United States Indian agent, Robert H. Ashley, and the council of the Winnebago tribe of Indians, collected from Nick Fritz and the Flournoy Company, as rent for the premises described in the lease to Henrietta Lemmon, for the period covered by that lease, not under the Henrietta Lemmon lease, but under the two prior void leases under which Fritz and the Flournoy Company had held the land during that year, the sum of $2,200, and distributed it to the several members of the Winnebago tribe of Indians by virtue of his appointment and authority. The court rejected all these offers of evidence. These rulings are manifest error, and that for more than one reason. In the first place, although the leases of 1891 were not authorized by acts of congress, proof of their actual existence, and of the fact that the Flournoy Company and Fritz occupied the premises and paid the Winnebago tribe of Indians rent for these lands during the term cov ered by the lease to Henrietta Lemmon, was both competent and persuasive evidence that these lessees did not hold under her, but held under the void leases and under the Winnebago Indians. In the second place, it is conceded on all hands that Robert H. Ashley, the United States Indian agent, had authority to collect the rents for these premises, and if, by his direction, the lessees under the invalid. leases paid the rent to a representative of the Winnebago tribe of Indians, who accepted and distributed it, with Ashley's knowledge and consent, among those Indians, the government would undoubtedly be estopped from again collecting rent for the same premises of one who never had occupied them, and to whom it never delivered possession under its lease. The Winnebago tribe of Indians and its members were the cestuis que trustent of the government. They were the parties entitled to these rents. If by the direction of the trustee the rents were collected by a representative of the cestuis que trustent, and distributed with the consent of the trustee among the cestuis que trustent, it is difficult to perceive how the trustee can again collect the rents. All this rejected evidence was competent, pregnant, and persuasive upon the issue whether the Flournoy Company and Nick Fritz, who occupied during the term of the Lemmon lease, held under her or under their old leases from the Winnebago tribe of Indians, and it should have been received.

4. A clerk of a subsequent Indian agent, who first entered upon the discharge of his duties on January 15, 1893, was permitted to testify; over the objections of the plaintiff's in error, what the practice in the office of this Indian agent was in 1893 and in subsequent years with reference to the distribution among the members of the Winnebago

tribe of the moneys collected for rents of their lands, and he was also allowed to testify, over the objection that his testimony was not the best evidence, what certain rules of the department were, which he conceded were printed and furnished to the agents in the form of a book. The evidence of the practice of a subsequent Indian agent in the distribution of the rents was clearly immaterial, and parol testimony of the printed rules and instructions of the department was as clearly incompetent. On account of these errors, the judgment below is reversed, and the case is remanded to the court below, with instructions to grant a new trial.

(106 Fed. 653.)

PICKENS v. DENT et al.

(Circuit Court of Appeals, Fourth Circuit. February 7, 1901.)

No. 382.

1. BANKRUPTCY-JURISDICTION OF DISTRICT COURT-SUIT IN EQUITY. A district court of the United States is without jurisdiction of a suit in equity instituted by a bankrupt, pending proceedings in bankruptcy against him, to enjoin the enforcement of a decree of a state court setting aside a conveyance of property by the bankrupt and ordering its sale, entered in a suit commenced long prior to the filing of the petition in bankruptcy. Such a suit is not within the general jurisdiction of the district court, and no special jurisdiction to entertain it is conferred by the bankruptcy act.

2. SAME-EFFECT OF ADJUDICATION-COMPETENCY OF BANKRUPT TO MAINTAIN SUIT.

A bankrupt cannot maintain a suit in his own name in relation to his property not exempt, pending proceedings in bankruptcy against him, and after the appointment of a trustee therein; the title to such property, and the right to maintain suits in relation thereto, being vested in the trustee.

8. SAME-PENDING SUIT IN STATE COURT-POSSESSION OF PROPERTY.

A judgment creditor instituted a suit in a state court of competent jurisdiction to set aside a conveyance of property by the debtor. Pending such suit, and several years after its commencement, the debtor was adjudged a bankrupt, and thereafter the state court entered a decree setting aside the conveyance and ordering a sale of the property to satisfy the liens established against it. Held, that the proceedings in bankruptcy did not devest such court of the jurisdiction it had acquired over the bankrupt and the property, nor warrant a federal court in interfering with the execution of its decree.

Appeal from the District Court of the United States for the District of West Virginia.

John W. Davis (John Bassell and Davis & Davis, on the brief), for appellant.

J. Hop Woods (Edwin Marshall, on the brief), for appellees. Before GOFF and SIMONTON, Circuit Judges, and PURNELL, District Judge.

GOFF, Circuit Judge. On the 27th day of October, 1899, the appellant filed his petition in bankruptcy in the district court of the United States for the district of West Virginia, and in due time he

was adjudged a bankrupt by that court. Prior to his being so ad judged a bankrupt, in the year 1889, a suit in equity had been instituted against him and others by Susan C. Dent in the circuit court of Barbour county, W. Va., the object of which was to set aside as fraudulent a certain deed made by him to trustees, bearing date January 14, 1889, and assailing as fraudulent certain debts therein secured. The creditors of appellant were made parties to said suit, and an amended bill was filed, in which it was alleged that the complainant, Dent, had recovered a judgment at law against appellant for the sum of $10,000, with interest and costs. The prayer of the bill was that the real estate mentioned therein as the property of appellant, being the same as was described and conveyed in the trust deed, might be sold, and the proceeds applied to the payment of said judgment, and in satisfaction of the liens existing on said land. The history of that case, extending, as it does, through years of hard-fought and well-contested litigation in said circuit court, as well as in the supreme court of appeals of West Virginia, while of great interest, is still not essential to the proper understanding and decision of the appeal now to be decided by this court. It is sufficient to say that, at the time of the adjudication of the appellant as a bankrupt, it was still pending in and undisposed of by the circuit court of Barbour county.

After he was adjudged a bankrupt, the appellant, on the 2d day of November, 1899, filed an answer in said chancery cause, in which he set up the proceedings in bankruptcy, and asked that all further action in the state court might be suspended until the district court of the United States had disposed of the proceedings in bankruptcy; and he claimed in his answer that all his estate, rights, and interests of every kind and description had passed from the control of the circuit court of Barbour county and into the jurisdiction of the district court of the United States for the district of West Virginia. On the 18th of November, 1899, a trustee in bankruptcy was duly appointed for appellant's estate, who in February, 1900, presented to such circuit court of Barbour county his petition, asking that said cause be proceeded with to final decree. Thereafter, on the 23d of February, 1900, the said court rendered a decree in the chancery suit mentioned, by which, among other things, it was ordered that the deed of trust referred to in the bill be set aside as fraudulent, and that a special receiver and commissioner therein named should rent the land described in the bill until a certain date, and then sell the same; the proceeds thereof to be applied to the payment of the debts due by appellant. On the 20th of November, 1899, the complainant in the bill mentioned proved her debt (the judgment referred to) before the referee in bankruptcy as a debt against appellant's estate. The receiver and commissioner so appointed was proceeding to execute the decree of the circuit court of Barbour county when the appellant filed his bill in the district court of the United States for the district of West Virginia, in which the facts relating to said suit and to the proceedings in bankruptcy were fully set forth, and the claim was made that the state court, on the filing of the appellant's answer setting up his adjudication in bankruptcy, should have taken

no further action in said cause, and that, therefore, the decree appointing the receiver and commissioner to rent and to sell the real estate mentioned was without authority of law and void. The prayer was that all further proceedings in the suit so pending in Barbour county be inhibited, and that the receiver and commissioner be enjoined from executing said decree, during the pendency of the proceedings in bankruptcy, and that the possession and control of the property so decreed to be rented and sold be turned over to the trustee in bankruptcy; the same to be administered by him as assets of the bankrupt. On March 31, 1900, the injunction so asked for was granted by the district judge, but was by him dissolved on the 26th day of July, 1900. At the same time appellant's bill was dismissed, and costs were awarded against him. From the order dissolving the injunction and dismissing the bill the appeal we are now considering was sued out.

The errors assigned are that "it was error to hold that the district court had not jurisdiction of the matters alleged in the appellant's bill of complaint," and that "it was error to dismiss the complainant's bill, and not grant the relief prayed for, for the reason that the matters therein were of equitable cognizance and entitled the complainant to the relief asked for."

Unless the bankrupt act of 1898 specially authorized the appellant to file his bill in the district court in connection with the proceedings therein pending relating to his adjudication of bankruptcy, that court had no authority to entertain it; for it is well determined that the district courts of the United States have no jurisdiction of suits at law or in equity between private parties, except where by special provision of an act of congress such courts are given authority to hear and decide a particular class of suits. That act gives no such jurisdiction. Nor do we find that said bankrupt act gave the bankrupt the right to sue in his own name after he had been adjudicated a bankrupt. His trustee then represented him, and it was the duty of that officer, under the directions of the court, to enter his appearance in any pending suit against the bankrupt, in either a state or federal court, and defend the same, or to prosecute, with the approval of the court, any suit commenced prior to his adjudication. Among the duties imposed by the act on the trustee are those of collecting and reducing to money the property of the estate he represents, and in order that he may do so he is vested by operation of law with the title of the bankrupt, as of the day he was adjudged a bankrupt, in all his property, excepting that exempt by law from execution and liability for debts, and includ ing property transferred by him in fraud of his creditors. But the trustee himself could only sue concerning the property of the bankrupt in such courts as the bankrupt could have sued in had proceedings in bankruptcy not have been instituted. The appellant's trustee could not have sued the defendants below in the district court of the United States for the district of West Virginia, concerning the property of the bankrupt he represented, unless with the consent of said defendants; and it is, we think, quite clear that the bankrupt himself had no standing in that court. Bardes v. Bank, 178 U. S. 524, 20 Sup. Ct. 1000, 44 L. Ed. 1175.