of the defendant. Stone was a foreman in charge of a crew of men whose duty it was to load and unload cars.

Some time before October 1, 1924, the defendant suffered losses of articles in its possession as a carrier.

There was evidence that a teamster by the name of Delong, in the employ of the Coyle Fish Company, reported to the defendant that Stone had applied to him to take a couple of automobile tires from the shed of the defendant, that he refused to do so, and that these tires had been taken from the possession of the defendant; that the plaintiff, Stone, was first summoned to the office of the defendant and examined; that he at first denied that he knew anything about the taking of tires, or that he had had any talk with Delong, but finally admitted that Barnes told him that another employee, Gallagher, had some tires in his possession and asked him to arrange to get them from the shed of the defendant; that he had spoken to Delong about taking the tires away, but the latter refused to take the tires and talked to him about the danger of tampering with other people's property; that a typewritten statement was then prepared, which Stone read over carefully and signed. This was dated October 1, 1924, and was, in substance: That the statements it contained were made of his own free will without promise or threat of any kind; that some time near the latter end of the spring of 1924 Barnes came to him and asked him to arrange with Delong to take for him (Barnes) a couple of automobile tires from the express company's shed; that he spoke to Delong, who advised him of the danger of taking other people's property, and refused to do it; that he understood at the time these tires were the property of the American Railway Express Company. This statement was witnessed by two of the special agents of the defendant, Boyle and Given.

Barnes was then sent for, and he signed a statement, after being shown what Stone had signed, which was in substance as follows: That some time near the latter end of the spring of that year employee Gallagher came to him and told him he had a couple of tires put away that belonged to the express company; that he (Barnes) then spoke to Stone about the matter, who asked him to wait until he saw Delong and ascertained whether he could take them away or not.

man was summoned by telephone and the statements submitted to him. In response to the call Policeman Spinney came, and in the office of a Mr. Gleason, at the North Station, he saw the special agents, Boyle and Given, and Stone, Barnes, and Gallagher. He testified that Given told him there had been a larceny of automobile tires which they had been investigating, and that Stone and Barnes had made certain statements. Spinney read the written statements and said it was no place to make an investigation there, and they had better be taken up to the station. He further testified that Given said. in substance to him that he wished him to arrest these men, and that, when he read the statements, "I was interested enough to take them up to the office for further investigation." He then telephoned for a police patrol wagon and took Stone, Barnes, and Gallagher to the police station, where they were further examined.

He also testified that Delong came to the station and was there in the presence of Stone and Barnes; that after talking with Gallagher he told the plaintiffs that as a result of his investigation he did not consider "they were deeply enough interested to hold," and told them that they had a form of release, and "if they wanted to sign it they could go, and if they did not wish to they would have to go to court and go through the regular channels"; that this was done in accordance with instructions received by him in cases were it was found there was not sufficient evidence to hold the accused; and that the plaintiffs both read the statement submitted to them and signed it before the clerk.

The following is the release signed by each of the plaintiffs at the police station:

"Commonwealth of Massachusetts.

"October 1st, 1924. "To the Officer in Charge of Division 1, and All Other Officers Assisting in My Arrest or Detention:

imprisonment which I may have against Capt. McConnell, Spinney, and Mooney. "Dated at Boston this 1st day of October, 1924."

The errors assigned are the denial of a request to direct a verdict for the defendant; the refusal to give the following requested instructions: That "if the defendant's agents assisted the police officers in making the arrest they were jointly responsible with the police officers"; that the release signed at the police station relieved the defendant from liability; that it is the duty of the police officers to retain custody of a prisoner until he can be taken before a court, and that they have no power or right to discharge him; and that it was not duress for a police officer, who had arrested a prisoner, to inform him that he cannot release him, but must hold him and take him before a court, unless he signs a request for his discharge and releases the officer from liability. The instruction of the jury that the release signed by each plaintiff did not release the defendant, but merely released the police officers, is also assigned

as error.

There are also errors assigned as to the admission of a newspaper article containing an account of the arrest and to the exclusion of evidence in regard to information received by the special agent, Given, which directed his attention towards the plaintiffs.

The main question to be decided, however, and which has been fully argued by counsel upon both sides, is whether the release signed at the police station released the defendant, as well as the police officers.

That the defendant, through its special agents, who had instigated the arrest, was a joint tort-feasor with the police officers, is clear, and the instruction requested, that it was, should have been given.

The offense with which the plaintiff was charged was a felony, and it is settled under the decisions of Massachusetts that, when one is suspected of being guilty of a felony, an officer has a right to arrest him without a warrant, provided he has reasonable cause to suspect that he is guilty (Commonwealth v. Phelps, 209 Mass. 396, 404, 95 N. E. 868, Ann. Cas. 1912B, 566; Keefe v. Hart, 213 Mass. 476, 481, 100 N. E. 558, Ann. Cas. 1914A, 716; Wax v. McGrath, 255 Mass. 340, 151 N. E. 317), but that, having made the arrest, it is the duty of the officer making it to take the arrested party before a magistrate for a determination of whether there was ground to hold him, which could not be settled by the arresting officer (Keefe v. Hart, supra, and cases cited). It has been

held, however, if one so arrested consents to his release without being taken before a magistrate, and waives the requirements of the law, and discharges a claim for damages against the officer who makes the arrest, he cannot afterwards complain of the failure of the officer to perform this duty (Keefe v. Hart, supra; Horgan v. Boston Elevated Railway, 208 Mass. 287, 94 N. E. 386; Wax v. McGrath, supra, 344 [151 N. E. 317], and that this is so whether the agreement to discharge the claim for damages is in writing under seal, or is oral (Bates v. Reynolds, 195 Mass. 549, 554, 81 N. E. 260; Caffrey v. Drugan, 144 Mass. 294, 295, 11 N. E. 96).

Whether the release signed at the police station was procured by duress or coercion was not submitted to the jury, and they were told: "You can consider it in a general way, but you have not got to make up your minds whether that was got by the defendant under any kind of undue pressure."

As the defendant was a joint tort-feasor, if the arrest was made without probable cause, the failure to give the requested instruction in regard to the effect of the release on the defendant's liability was erroneous, as well as the following instruction: "Now, I am going to tell you that, as a matter of law, that release does not release the defendant; that it merely releases the police officers, and therefore you need not consider the question whether that release in the police station was a free release, or under duress, as we call it, or anything about it." The decisions of the Supreme Judicial Court of Massachusetts hold that a release, although not under seal, given to one joint tort-feasor discharges all, provided it is absolute and unconditional, and is not simply a covenant not to sue the party released, and there is no evidence of a reservation to sue other joint tort-feasors. Brown v. Cambridge, 3 Allen, 474; Stone v. Dickinson, 5 Allen, 29, 81 Am. Dec. 727; Brewer v. Casey, 196 Mass. 384, 388, 389, 82 N. E. 45; Feneff v. Boston & Maine Railroad, 196 Mass. 575, 581, 82 N. E. 705; Horgan v. Boston Elevated Railway, supra; Cormier v. Worcester Consolidated, 234 Mass. 193, 196, 125 N. E. 549; Muse v. De Vito, 243 Mass. 384, 388, 137 N. E. 730; Gold v. Boston Elevated Railway, 244 Mass. 144, 138 N. E. 251. All joint tort-feasors concerned in the alleged wrong for which the plaintiff seeks redress were discharged by the release of one, if the release was not obtained by fraud or duress, and unless it may be construed as a covenant not to sue the police officers. In some of the decided cases which have been brought to our attention, where an instrument

has been construed to be a covenant not to sue, a reservation to sue or seek redress from other parties concerned was inserted in the release, and in others there was evidence upon which the jury could find that this was the intention of the party who signed it. No reservation was made in this release, and there was no evidence that it was the intention of the plaintiffs to reserve the right to sue other joint tort-feasors. It was an absolute and unqualified release of the police officers and released all who had co-operated with them. Tanana Trading Co. v. North American Trading & Transportation Co. (C. C. A.) 220 F. 783, 786; Kirkland v. Ensign Bickford Co. (D. C.) 267 F. 472; Spiess V. Sommarstrom Ship Building Co. (C. C. A.) 272 F. 109, 111; The Adour (D. C.) 21 F. (2d) 858, 862. See, also, Carpenter v. McElwain Co., 78 N. H. 118, 97 A. 560; Cleveland v. Bangor, 87 Me. 259, 264, 32 A. 892, 47 Am. St. Rep. 326.

v.

Having reached the conclusion that the release operated as a discharge, not only of the police officers, but also of those who instigated the arrest, it is unnecessary to consider the other errors assigned. As the jury did not, under the instructions of the court, pass upon the question of whether the release was obtained by duress or not, the entry must be in each case:

The judgment of the District Court is reversed, the verdict set aside, and the action returned to that court, with instructions to grant a new trial; the plaintiff in error to recover costs in this court.

3. Executors and administrators 533-Creditor could not sue surety on executor's bond for deficiency arising from mortgage foreclosure, where probate court had not ordered claim paid (Rem. Comp. Stat. Wash. §§ 1543, 1546).

Creditor held not entitled, under Rem. Comp. Stat. Wash. §§ 1543 and 1546, to sue surety on executor's bond for claim arising through deficiency on mortgage foreclosure, under allegations that estate was being wasted and that executor had failed to comply with section 1529, where creditor's claim had not by probate court been ordered paid.

In Error to the District Court of the

United States for the Northern Division of the Western District of Washington; Edward E. Cushman, Judge.

Action by Anton C. Carstensen against the United States Fidelity & Guaranty Company. Judgment for defendant, and Affirmed. plaintiff brings error.

The plaintiff in error, hereinafter named the plaintiff, brought an action in the court below, alleging diversity of citizenship of the parties, and that in August, 1923, Clarissa Bigelow died, and upon September 1, 1923, her will was admitted to probate by a superior court of the state of Washington; that the executor named in her will was duly appointed and confirmed; that the defendant became the surety on his bond in the sum of $25,000; that within the time allowed for the presentation of claims against the estate claims amounting to $12,320.90 were presented; that the plaintiff duly presented a claim which was rejected by the executor; that on May 17, 1924, he brought an action to recover judgment against the executor for $4,000, with interest and costs, and the foreclosure of a mortgage given by the decedent to secure said sum; that in May, 1924, judgment was rendered for $4,824.29, and that

ITY & GUARANTY CO.

Circuit Court of Appeals, Ninth Circuit. June 25, 1928.

No. 5403.

1. Executors and administrators 533-Creditor cannot sue surety on executor's bond until final accounting and settlement.

Creditor may not bring an action against the surety on an executor's bond until after the final accounting and settlement of the estate in probate.

2. Courts 489(13)-Strict probate matters are not within federal court's jurisdiction. Matters of strict probate are not within jurisdiction of federal courts.

of a deficiency the amount thereof should be paid by the executor in due course of administration; that in June, 1924, the plaintiff at execution sale bought in the real property so foreclosed for $880.06 and credited the same on his judgment; that the balance of $4,000 has never been paid; that all other claims against the estate have been paid in full by the executor, although they were in the same class as the plaintiff's claim; that demand has been made from time to time upon the executor for the payment of the said judgment, but without success, and that the estate is being eaten up by the payment of taxes, allowances to the beneficiaries of the will, and allowances to the executor, at

torney's fees, interest, and costs, and is liable to become insolvent through maladministration; that the executor has failed to comply with section 1529 of Remington's Compiled Statutes, requiring him within 30 days after the expiration of the time for creditors to file claims to file a complete report, containing a statement of claims allowed and claims rejected, the amount of property of the estate, moneys collected, and sums paid out. The plaintiff demanded a judgment against the defendant for $4,000, with interest and costs. A demurrer was interposed for lack of jurisdiction of the subject-matter of the action and legal capacity of the plaintiff to sue and failure to state facts constituting a cause of action. The demurrer was sustained and the action was dismissed.

And section 1546 provides: "Whenever a decree shall have been made by the court for the payment of creditors, the executor or administrator shall be personally liable to each creditor for his claim or the dividend thereon, except when his inability to make the payment thereof from the property of the estate shall result without fault upon his part. The executor or administrator shall likewise be liable on his bond to each creditor."

[2,3] Matters of strict probate are not within the jurisdiction of the federal courts. Sutton v. English, 246 U. S. 199, 205, 38 S. Ct. 254, 62 L. Ed. 664. It is true that where, by state law, parties interested are given the right to bring an action inter partes as to independent matters in probate, federal courts,

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above). [1] It is assigned as error that the trial court sustained a demurrer to the complaint for want of jurisdiction of the subject-matter of the action, until such time as the probate court should lose jurisdiction over the res. But it is a settled rule that a creditor may not bring an action against the surety on an executor's bond until after the final accounting and settlement of the estate in probate. Commonwealth v. Magee, 220 Pa. 201, 69 A. 805; Reed v. Hume, 25 Utah, 248, 70 P. 998; Probate Court v. Chapin, 31 Vt. 375. Exceptions to that rule are found in cases, some of which are cited by the plaintiff, where claims have been judicially ascertained and by the probate court ordered paid, or where there has been such maladministration of the estate as to constitute a breach of the conditions of the bond, or where the executor has fled from the state, so that jurisdiction cannot be had to compel an accounting. The present case does not come within any of the exceptions, for the claim has not by the probate court been ordered paid. Section 1543, Remington Code, provides: "No claim against the estate shall be paid until the same shall first have been allowed by both the executor or administrator and the court."

ficient amount in controversy, may entertain jurisdiction. But, as was said by the court in Waterman v. Canal-Louisiana Bank Co., 215 U. S. 33, 44, 30 S. Ct. 10, 12 (54 L. Ed. 80): "A citizen of another state may establish a debt against the estate. Yonley v. Lavender, 21 Wall. 276 [22 L. Ed. 536]; Hess v. Reynolds, 113 U. S. 73 [5 S. Ct. 377, 28 L. Ed. 927]. But the debt thus established must take its place and share of the estate as administered by the probate court; and it cannot be enforced by process directly against the property of the decedent." And while in Payne v. Hook, 7 Wall. 425, 19 L. Ed. 260, it was held in view of the issues involved that a distributee, citizen of another state, might establish his right to share in an estate and enforce such adjudication against the administrator or his sureties, the case was one that came within the exceptions to the general rule above noted, for the complaint alleged gross misconduct on the part of the administrator, his false inventory of the property, his personal use of the money of the estate for his private gain, and his fraudulent acquisition of a receipt in full for the plaintiff's share in the estate, and it was said in the opinion that a federal court of chancery sitting in Missouri would not enforce demands against an administrator or executor, if the courts of the state having general chancery powers could not enforce similar demands.

The judgment is affirmed.

Amendment of March 4, 1927, of Organic Act of Porto Rico, § 20 (Act March 4, 1927, 8 3 [48 USCA § 786]), held not to authorize auditor to levy or assess taxes, or to revise decisions of board of equalization and review, created for the purpose of reviewing and revising the action of the treasurer of Porto Rico in levy and assessing taxes.

Appeal from the District Court of the United States for the District of Porto Rico; Wells, Judge.

Application by the Fajardo Sugar Company to show cause why a permanent injunction should not issue against Frederick G. Holcomb, Auditor of Porto Rico. Decree granting an injunction, and defendant appeals. Reversed and remanded.

William Cattron Rigby, of Washington, D. C. (J. A. Lopez Acosta, of San Juan, Porto Rico, on the brief, and James R. Beverley, Asst. Atty. Gen., of counsel), for appellant.

David A. Buckley, Jr., of New York City, for appellee.

Before BINGHAM and JOHNSON, Circuit Judges, and HALE, District Judge.

JOHNSON, Circuit Judge. This is an This is an appeal from the District Court of the United States for the District of Porto Rico. The case has been here before, and this court, in an opinion announced November 23, 1926, reversed the judgment of the District Court of Porto Rico, dismissing the plaintiff's bill because the jurisdictional amount of $3,000 was not involved, and dealt very fully with the relation of the auditor of Porto Rico to its government.

The appellee, hereinafter caller the Sugar Company, filed with the treasury of Porto Rico its income tax return for the year ending July 31, 1920, in accordance with the law of Porto Rico, and upon this return a tax of $540,337.44 was assessed by the treasurer of Porto Rico and paid by the Sugar Company. The treasurer afterwards levied and assessed an additional tax of $398,524.72 upon the Sugar Company, from

which an appeal was taken to the board of equalization and review in accordance with the law of Porto Rico, which reduced the additional tax to $180,977.84.

By section 47 of the law of Porto Rico enacted in 1921 (Laws 1921, No. 43), it is provided that the decision of the board of equalization and review shall be final in such

cases.

The auditor of Porto Rico, acting under the direction of the Governor, sought to reverse this decision of the board, contending that under the Organic Act of Porto Rico he had the power and the duty to review and revise its decision. Upon this contention this court held that:

"The treasurer is to assess and collect taxes on the basis of the income return of the

taxpayer; he is to investigate such returns finds due; if he assesses an additional tax, and compute any additional tax which he the taxpayer may appeal to the board of review and equalization, whose decision shall 'be final,' subject to the taxpayer's making payment under protest and resorting to the

courts.

"In the light of these explicit provisions, consistent with the general framework of the Porto Rican government, existing under Porto Rican statutes approved by the Governor and impliedly approved by Congress, we cannot hold that the auditor is, as is now contended, part of the tax levying and administering machinery of Porto Rico."

Fajardo Sugar Company v. Holcomb, 16 F. (2d) 92, 96.

The court upheld the authority of the auditor to make an investigation for the purpose of obtaining "pertinent information relative to the scope and interpretation of the tax statutes, or as to the competency and efficiency of the tax administering officials," and held that upon such an investigation the auditor might need to use the powers conferred upon him to summon witnesses and take evidence concerning the acts of officials in any department, and that no taxpayer could successfully resist process to appear with books and documents and give evidence for such purposes.

The case was remanded to the District Court for further proceedings not inconsistent with its opinion.

On March 12, 1927, the Sugar Company filed its petition for an order to show cause why a permanent injunction should not issue, alleging among other things that while the case was formerly before this court the auditor of Porto Rico, on July 7, 1926, "disregarding the decision of the board of equali