olating any of the provisions of this article to recover all damages, immediate, consequent, legal and extraordinary, which he or they may have sustained by reason of such violation as aforesaid, whether such person may have been convicted or not."

Plaintiff further relies upon the decision of the Kentucky Court of Appeals in Yantis v. Burditt, 2 Dana (32 Ky.) 254, construing a like statute, which he claims is not nearly so comprehensive, in its provision as to the damages that may be recovered, as the one now under consideration, and also upon the later case of Kentucky Land & Immigration Co. v. Crabtree, 118 Ky. 395, 80 S. W. 1161, 4 Ann. Cas. 1131, which discusses at some length the decision in the Yantis Case, and distinguishes between the statute under consideration in that case and the bond which was the basis of the action in the later case. The defendant insists that such a construction would be wholly inconsistent with the public policy of the state as declared by the Court of Appeals, and cites a number of cases in support of this contention. It is also claimed on behalf of the defendant that, even if plaintiff is entitled to recover attorney fees, they must be taxed as cost, and not included in the estimate of the amount in dispute or controversy.

If the plaintiff is entitled to recover attorney fees, he must do so under the provision of the statute authorizing a recovery for damages immediate, consequent, legal, and extraordinary. If he is not entitled to recover attorney fees as part of his damages, then he is clearly not entitled to recover such fees as costs. It was held by the Supreme Court in Brown v. Webster, 156 U. S. 328, 15 S. Ct. 377, 39 L. Ed. 440, that interest on the principal sum might be included for the purpose of jurisdiction in an action for damages for breach of warranty of title, where under the law of the state in which the action arose the measure of damages was the price paid, with interest. If, under this statute of Kentucky, attorney fees may be included in the damages that plaintiff is entitled to recover, then this item becomes an elemental part of the total damages the plaintiff has suffered, and must be included, the same as all other items of damages in determining the jurisdictional amount. Springstead v. Crawfordsville State Bank, 231 U. S. 541, 542, 34 S. Ct. 195, 58 L. Ed. 354, and cases there cited. [2] Without intending in any way to express an opinion upon the plaintiff's right to recover attorney fees in this action, we are nevertheless of the opinion that his claim

I. Attorney and client 72-Evidence held to show counsel authorized to make settlement on terms named in agreement.

Evidence held to show that plaintiff, in copyto enter into agreement of settlement on terms right infringement suit, authorized its counsel and conditions named therein, pursuant to which suit was dismissed.

2. Dismissal and nonsuit 81 (5)-Possible invalidity of settlement agreement, pursuant to which suit was dismissed, held not ground for vacating order of dismissal.

Invalidity, if any, of settlement agreement in copyright infringement suit, pursuant to which suit was dismissed, arising from plaintiff's promise therein not to oppose any action of prosecuting attorney in reference to dismissing indictments then pending which grew out of, and were based on alleged infringement, held not ground for vacating order dismissing bill; court being entitled to presume that contract of settlement was lawful. 3. Dismissal and nonsuit-81(5)-Decree dismissing action not vacated because of subsequent dispute between litigant and counsel or invalidity of settlement agreement.

of parties, on representations that cause was settled, will not be vacated merely because a dispute has arisen between one of litigants and his counsel as to fees, or because settle

Decree dismissing action entered at request

ment agreement contains terms in violation of

law.

Appeal from the District Court of the United States for the Eastern Division of the Southern District of Ohio; John E. Sater, Judge.

Copyright infringement suit by the Baldwin Law Publishing Company against Karl Mog, wherein the bill of complaint was dismissed and temporary injunction dissolved, on representation of counsel for both parties that settlement had been effected. From a decree overruling a motion and supplemental motion to vacate and set aside the dismissal, plaintiff appeals. Affirmed.

On March 6, 1923, an action was commenced in the District Court by the Baldwin Law Publishing Company, an Ohio corporation, against Karl Mog, charging infringement of a copyright, owned by the plaintiff, of a publication known as the "General Code of the State of Ohio," and generally known and referred to as "Throckmorton's Code," and praying for an injunction and accounting.

On October 25, 1923, an order was entered by the court dismissing the bill of complaint, dissolving the temporary injunction, and releasing a writ of seizure for certain books described in the complaint, upon the representation of counsel for the respective parties that the matters in dispute had been settled to their accord and satisfaction. On November 16, 1923, the Baldwin Law Publishing Company, through its president, W. E. Baldwin, filed a motion to vacate and set aside the alleged settlement, and to vacate the order and judgment of the court based thereon, for the reason that plaintiff had not consented to any such settlement, and that counsel representing the plaintiff was wholly without authority to make the same. Upon the hearing of this motion, it appeared from the testimony of Forrest F. Smith that, as a condition of the settlement, it was agreed and promised on the part of the plaintiff that it would not oppose such action as the prosecuting attorney of Hamilton county and the district attorney of the federal court might see fit to take in reference to dismissing indictments then pending in the Hamilton county common pleas court and the federal court of the Southern district of Ohio, Western division, which indictments grew out of and were based upon the alleged infringement of plaintiff's copyright. Thereupon a supplemental motion was filed by plaintiff, in which it is alleged that plaintiff had no knowledge, prior to the time this testimony was given, that the settlement contained any such provision or agreement, and urged this as an additional ground for vacating and setting aside the judgment.

The District Court, upon consideration of all the evidence, overruled the motion and supplemental motion to vacate, and set aside the former judgment and decree, and dismissed the same at plaintiff's cost. The plaintiff appeals.

Forrest F. Smith, of Columbus, Ohio, in pro. per.

Before DONAHUE, MOORMAN, and KNAPPEN, Circuit Judges.

PER CURIAM. [1] While there is a direct conflict in the testimony material to the issues presented by these motions, nevertheless it appears by a clear preponderance of the evidence that the plaintiff company authorized its counsel to enter into the agreement of settlement upon the terms and conditions named therein, and that substantially the only complaint made by the plaintiff through its president, Baldwin, after the de

cree was entered, was in reference to the fee charged by its counsel, which fee plaintiff considered excessive. This conclusion naturally follows from the testimony of the wit

nesses Atkinson and Hogan, to the effect that a few days after plaintiff had been notifees of its counsel would be $1,500, Baldwin, fied of the settlement, and advised that the the president of the company, called at the office of Atkinson, Smith & Hogan, in the absence of Mr. Smith, and, without making any other objection to the settlement, said to Mr. Hogan, in the presence of Mr. Atkinson: "Why, Mr. Hogan, do you think I would have accepted this settlement had I known your fees were to be that size?" This testimony is not denied by the plaintiff, and was evidently believed by the District Court.

[2,3] It is further contended on the part of the appellant that this agreement was wholly void, in that it contained a provision for compounding, abandoning, or agreement to abandon, a criminal prosecution already commenced. However that may be, it cannot affect the disposition of these motions. Litigants may not trifle with courts. When the court is informed that the matter in controversy has been settled and adjusted by the parties themselves, and the terms and conditions are not disclosed, the court has a right to presume that such contract of settlement is lawful.

to recover for telephone service furnished both corporations of value exceeding $3,000, held,

serted as basis of individual defendants' liability were not sustained, did not under Judicial Code, § 37 (Comp. St. § 1019), necessitate a dismissal on ground that, in absence of liability for both claims, a jurisdictional amount was not involved.

[4] It is also claimed that the court erred in cross-examining the defendant. The court did ask the defendant a number of questions, but it does not appear that defendant interposed any objections or took any exceptions to the questions propounded by the court, which it is now claimed constituted prejudicial error. Nor does it appear that any of these questions were improper.

[5] It is also claimed that the court erred in its charge to the jury. It is sufficient to say in reference to this contention that there was no error in the charge, in so far as exceptions were taken thereto. This court will not consider alleged errors to which no exceptions were taken, except and unless it appears that by reason of these errors there has been a miscarriage of justice. It does not appear to this court that there has been any miscarriage of justice in this case, but, on the contrary, that the defendant has had a fair and impartial trial, that the evidence fully sustains the verdict of the jury, and that the errors assigned are highly technical and without merit. Judgment affirmed.

3. Courts 351/2-Want of support for claim asserted in good faith as grounds for court's jurisdiction does not require dismissal.

Judicial Code, § 37 (Comp. St. § 1019), providing for dismissal of suit not really and substantially involving a dispute or controversy within jurisdiction of court, does not require dismissal of a suit on a claim made in good faith, although court may decide that claim is not supported by the evidence. 4. Action

70-Amendment of bill to declare

on written contract held not abandonment of original suit.

In suit against two corporations, a director of each, and the principal stockholder of both, to recover for telephone service furnished both corporations, wherein individual defendants introduced written contracts by which they had assumed liability for claims sued on and sought dismissal on ground that plaintiff had adequate remedy at law, plaintiff's amendment of bill so as to declare on the written, contracts was not an abandonment of original suit.

5. Account 6-Suit to recover for telephone service held within equity jurisdiction because of complicated nature of accounts.

Suit against two corporations and certain individuals to recover for telephone service furnished the corporations, consisting principally of long-distance conversations over a considerable period of time, wherein defendants claimed numerous overcharges and disputed correctness of each item, held within equity jurisdiction on ground of complicated and disputed character of accounts.

6. Trial 11(3)-Suit to recover for telephone services involving accounting by individual defendant held within equity jurisdiction.

In suit against two insolvent corporations, a director of each, and the principal stockholder of both, to recover for telephone services, where it was found that principal stockholder had illegally appropriated large sum from treasury of one of corporations, held, equity jurisdiction existed for purpose of compelling an accounting by him which would be retained as to other individual defendants without sending case to law side of court.

7. Equity 427 (1)—Judgment held properly entered against individual defendant under contract proved by him, though bill not amended to declare on contract.

In suit against two insolvent corporations and certain individuals to recover for telephone services furnished both corporations, where individual defendants to defeat equity jurisdiction proved written contracts by which they assumed individual liability and asserted that an adequate remedy at law existed, held, court having jurisdiction on other grounds could prop

erly enter judgment against one of the individual defendants on his liability under the contracts proved by him, though as to him no trial amendment of bill to declare on the contract was made.

8. Pleading 236 (5)-Allowance of amendment increasing plaintiff's claim to conform to proof is within discretion of court. Allowance of amendment increasing plaintiff's claim to conform to proof is within discretion of court.

Appeal from the District Court of the United States for the Northern District of Texas; William H. Atwell, Judge.

Suit by the Southwestern Telegraph & Telephone Company against the Walker Grain Company and others. Decree for complainant (3 F.[2d] 819), and defendants appeal. Affirmed.

E. B. Robertson, of Fort Worth, Tex. (W. E. Spell, of Waco, Tex., and H. T. McGown and P. T. Lomax, both of Fort Worth, Tex., on the brief), for appellants.

their claims, the bank accounts of the corporations were kept constantly overdrawn, and the profits as fast as earned were taken by Walker and deposited either to the credit of himself or his wife, and arrangements were made by him with the bank in which the deposits of the corporations were kept to pay any overdrafts which Walker made on behalf of the corporations and charge the same to his individual account. In this way the corporations became liable to creditors in the aggregate amount of several hundred thousand dollars, and were insolvent. J. L. Walker had wrongfully taken and appropriated to his own use large sums of money, many times the amount of appellee's claims, belonging to the corporations. Mrs. Walker was a director in the Walker Grain Company, and Ivy in the Ivy Grain Company, and these individual defendants participated in the fraudulent scheme and practices of J. L. Walker. The accounts of the corporations with appellee were made up of charges for long-distance telephone conversations, and covered a considerable period of time. Defendants claimed there were numerous overcharges and disputed the correctness of each

BRYAN, Circuit Judge. This is a suit in equity in which appellee recovered a decree fór telephone service furnished to the Walker Grain Company and the Julian A. Ivy Grain Company. Separate accounts were kept, according to which the indebtedness of each company, exclusive of interest and costs, was less than $3,000, but the indebtedness of both companies exceeded that amount.

The original defendants were the two grain companies, J. L. Walker, and his wife, Mrs. M. M. Walker; but by amendment Julian A. Ivy was also made a party defendant.

The bill was filed by appellee in its own behalf, and for the benefit of all other creditors who might join in seeking the relief prayed and contribute to the costs of the suit. The case made by it is this: J. L. Walker was engaged in the business of buying and selling grain for future delivery. In order to avoid personal liability, he formed the defendant corporations and subscribed to practically all of their capital stock, and used them as mere dummies. He caused these corporations to enter into contracts for future delivery of grain and to accept or repudiate them according to whether there was a profit to be realized or loss to be sustained. In order to prevent creditors from realizing on 10 F. (2d)-18

counts were complicated and their settlement was properly the subject of inquiry by a court of equity.

During the taking of evidence before a master, defendants introduced two contracts in writing, in one of which the individual defendants bound themselves to pay the amount due upon the account asserted by appellee against the Walker Grain Company, and in the other entered into a like obligation on behalf of the Ivy Grain Company. The contracts were pleaded in the answer of defendants which alleged that the individual defendants, including Ivy, had signed them and thereby appellee was given a full, complete, and adequate remedy at law. After the contracts had been introduced in evidence, appellee filed a trial amendment, in which the contracts were pleaded "for the purpose of making the pleadings of the complainant conform to the evidence introduced herein," but omitted to pray for judgment against the defendant Julian A Ivy. All the other defendants were included in the prayer for judgment. However, the amendment prayed for general relief.

[1] The district judge approved findings of the master to the effect that the corporations were insolvent, but had not been organized for the purpose of enabling Walker to perpetrate a fraud upon his creditors. The mas