diction as involved in the case, comes too late, and is entirely unavailing.— The Bayonne, 159 U. S. 687, 16 Sup. Ct. 185, 40 L. Ed. 305.

[n] (U. S. Sup., N. Y., 1895) An order directing the filing of an assignment of errors, which alleges error of the court below in taking jurisdiction of the cause for reasons therein separately stated, is not equivalent to the certificate of jurisdictional questions required by the act of March 3, 1891, in cases of appeal to the supreme court on the ground that the jurisdiction of the court below was in question, nor a compliance with the statutory provisions in relation to such certificate.-The Bayonne, 159 U. S. 687, 16 Sup. Ct. 185, 40 L. Ed. 305.

[o] (U. S. Sup., N. Y., 1895) A prayer for the allowance of an appeal from the district to the supreme court stated that the appeal was "upon the ground that this court was without jurisdiction to make said decree," but specified no question of jurisdiction, and asked that a transcript of the record, proceedings, and papers upon which said final decree was made should be sent up, as if the appeal were on the whole case. The judge entered thereon, "Appeal allowed.' Held, that this was entirely insufficient to answer the purposes of a certificate of jurisdictional questions.-The Bayonne, 159 U. S. 687, 16 Sup. Ct. 185, 40 L. Ed. 305, distinguishing In re Lehigh Min. & Mfg. Co. (Va.) 156 U. S. 322, 15 Sup. Ct. 375, 39 L. Ed. 438, and Shields v. Coleman (Tenn.) 157 U. S. 168, 15 Sup. Ct. 570, 39 L. Ed. 660.

[p] (U. S. Sup., Ohio, 1893) Where a person imprisoned by the circuit court for violating an injunction seeks his discharge on habeas corpus in that court, on the ground that the court had no jurisdiction to commit him, the determination against him of the questions thus raised does not involve any question as to the jurisdiction of the court in the habeas corpus proceeding, and hence no appeal therein can be taken direct to the supreme court under the first subdivision of section 5 of the judiciary act of 1891.-Ex parte Lennon, 150 U. S. 393, 14 Sup. Ct. 123, 37 L. Ed. 1120, following Carey v. Railway Co. (Tex.) 150 U. S. 170, 14 Sup. Ct. 63, 37 L. Ed. 1041.

[q] (U. S. Sup., Tenn., 1895) Where an appeal is allowed direct from the circuit court to the supreme court on a question of jurisdiction, under section 5 of the judiciary act of March 3, 1891, it is not necessary that, in stating such question, the word "certify" be formally used; and, while no mere suggestion that the jurisdiction of the court was in issue will answer, it is yet sufficient if there is a plain declaration that the single matter which is by the record sent up is a question of jurisdiction, and the precise question is clearly, fully, and separately stated.-Shields v. Coleman, 157 U. S. 168, 15 Sup. Ct. 570, 39 L. Ed. 660, following U. S. v. Jahn (N. Y. 1894) 155 U. S. 109, 15 Sup. Ct. 39, 39 L. Ed. 87, and In re Lehigh Min. & Mfg. Co. (Va. 1895) 156 U. S. 322, 15 Sup. Ct. 375, 39 L. Ed. 438.

[r] (U. S. Sup., Tex., 1893) To warrant a direct appeal to the supreme court under the first subdivision of the fifth section of the act creating the circuit court of appeals (13 Sup. Ct. xiv.), there must be an issue as to the jurisdiction of the circuit court in the very case in which the appeal is taken; and, where the suit is one to set aside a foreclosure decree, it is not sufficient that there is an issue as to the jurisdiction of the circuit court to enter that decree.-Carey v. Railway Co., 150 U. S. 170, 14 Sup. Ct. 63, 37 L. Ed. 1041.

[s] (U. S. Sup., Va., 1895) Where, in an action in the circuit court in which the only question involved is one of jurisdiction, the judgment not only recites that, for reasons filed as part of the order, the court considers it has no jurisdiction, and dismisses it for want of jurisdiction, but the judge certifies, in the bill of exceptions, that it was "held that the court did not have jurisdiction of the suit, and ordered the same to be dismissed," and, in the order allowing a writ of error, certifies that it is allowed on "the question of jurisdiction," there is a sufficient compliance with Judiciary Act March 3, 1891, § 5, which provides that in any case in which the jurisdiction of the circuit court is in issue the question of jurisdiction alone shall be certified to the supreme court from the court below for decision.-In re Lehigh Min. & Mfg. Co., 156 U. S. 322, 15 Sup. Ct. 375, 39 L. Ed. 438.

[t] (U. S. Sap., Va., 1898) Where the record on an appeal shows that the case plainly involves the jurisdiction of a circuit court of the United States 48 C.C.A.-23

to discharge from custody, on a writ of habeas corpus, a prisoner confined under an indictment in a state court, it is immaterial that the certificate does not expressly state the jurisdictional question involved.-Harkrader v. Wadley, 172 U. S. 14S, 19 Sup. Ct. 119, 43 L. Ed. 399.

[u] (U. S. Sup., W. Va., 1900) A direct appeal from a circuit court to the supreme court of the United States, on the ground that the jurisdiction of the circuit court is in issue, may be sustained when the final decree dismissing a bill and the order allowing the appeal therefrom, as well as the distinct and contemporaneous certificate by the court, show that the only question on which the decree was based was that of jurisdiction.—Huntington v. Laidley, 176 U. S. 668, 20 Sup. Ct. 526, 44 L. Ed. 630.

[v] (U. S. C. C. A., Cal., 1892) A party against whom a judgment is rendered in the district or circuit court may take the case to the supreme court directly, on the question of jurisdiction, if the same is at issue, or to the circuit court of appeals on the whole case; and the court of appeals may, if it sees proper, certify any question arising therein to the supreme court, under section 6 of the act of 1891, giving it such power.-Barling v. Bank, 50 Fed. 260, 1 C. C. A. 510, 7 U. S. App. 194.

[w] (U. S. C. C. A., Cal., 1892) Act Cong. 1891, § 5, declaring that appeals or writs of error may be taken from the district or the existing circuit courts direct to the supreme court in any case in which the jurisdiction of the court is at issue, in which case the question of jurisdiction alone shall be certified to the supreme court from the court below for decision, does not apply where a case has been appealed to the circuit court of appeals.Barling v. Bank, 50 Fed. 260, 1 C. C. A. 510, 7 U. S. App. 194.

[x] (U. S. C. C. A., Mich., 1895) The questions of jurisdiction which may be certified directly to the supreme court, under Act March 3, 1891 (26 Stat. 729) $ 5, establishing circuit courts of appeals, are the initial questions of jurisdiction over subject-matter and parties, and not questions as to whether a particular matter is within the jurisdiction of a court of law or of equity. --U. S. v. Swan, 65 Fed. 647, 13 C. C. A. 77, 31 U. S. App. 112.

2. Jurisdiction of Circuit Courts of Appeals.

[a] (U. S. Sup., La., 1893) Under the judiciary act of March 3, 1891, an appeal from a decree of a circuit court in a suit by contractors, against the United States, to recover for materials furnished for the construction of a levee, must go in the first instance to the circuit court of appeals, and not to the supreme court.---Ogden v. U. S., 148 U. S. 390, 13 Sup. Ct. 602, 37 L. Ed. 493, following Bank v. Peters (Va. 1892) 144 U. S. 570, 12 Sup. Ct. 767, 36 L. Ed. 545, and Hubbard v. Soby (Conn.) 146 U. S. 56, 13 Sup. Ct. 13, 36 L. Ed. 886.

[b] (U. S.) Where the jurisdiction of the circuit court is in issue, and the jurisdiction is sustained, but there is a judgment for defendant on the merits, plaintiff must appeal to the circuit court of appeals, which may certify the question of jurisdiction, if it arises in such court.-(Sup., N. Y., 1894) U. S. v. Jahn, 155 U. S. 109, 15 Sup. Ct. 39, 39 L. Ed. 87; (C. C. A., Mo., 1900) Evans-Snider-Bucl Co. v. McCaskill, 101 Fed. 658, 41 C. C. A. 577.

[c] (U. S. C. C. A., Colo., 1898) Where a demurrer, challenging the jurisdiction of the circuit court, and also the sufficiency of the facts alleged in the bill to constitute a cause of action, is sustained on the latter ground, an appeal by the plaintiff lies to the circuit court of appeals, which may determine the question of jurisdiction, or certify the same to the supreme court. ---Emigration Co. v. Gallegos, 89 Fed. 769, 32 C. C. A. 470.

[d] (U. S. C. C. A., Colo., 1900) The circuit court of appeals is without jurisdiction to review the judgment of a circuit court dismissing a suit on a motion challenging its jurisdiction.-Dudley v. Board, 103 Fed. 209, 43 C. C. A. 184.

[e] (U. S. C. C. A., Idaho, 1891) Act Cong. March 3, 1891, § 6, confers appellate jurisdiction upon the United States circuit court of appeals "in all cases other than those provided for in the preceding section of this act, unless otherwise provided for by law." Section 5 provides that appeals or writs of error may be taken from the district courts direct to the supreme court "in any case in which the jurisdiction of the court is in issue." Held, that the circuit court of appeals has no jurisdiction of a writ of error from

the district court when the jurisdiction of such court is the question for review, but it must be taken direct to the supreme court.-U. S. v. Sutton, 47 Fed. 129, 2 C. C. A. 115.

[f] (U. S. C. C. A.) Under Act March 3, 1901, creating the circuit courts of appeals, and declaring that appeals and writs of error may be taken from the trial courts directly to the supreme court "in any case in which the jurisdiction of the court is in issue," the circuit court of appeals has no jurisdiction to review a judgment dismissing an action on demurrer for want of jurisdiction.-(Ill. 1895) Cabot v. McMaster, 65 Fed. 533, 13 C. C. A. 39, 24 U. S. App. 571; (Ind. 1894) Manufacturing Co. v. Barber, 60 Fed. 465, 9 C. C. A. 79, 18 U. S. App. 476.

[g] (U. S. C. C. A., Mass., 1894) The circuit court of appeals has jurisdiction, on appeal by a petitioner for a writ of habeas corpus from a judgment remanding him to the custody of an insane asylum, to pass on the jurisdiction of the circuit court, when such jurisdiction is challenged on constitutional grounds.-King v. McLean Asylum, 64 Fed. 325, 12 C. C. A. 139, 21 U. S. App. 407.

[h] (U. S. C. C. A., Mich., 1895) Where a circuit or district court refuses to hear a cause for want of jurisdiction, and the question may be certified directly to the supreme court, under Act March 3, 1891 (26 Stat. 729) § 5, that court only, and not the circuit court of appeals, can issue a mandamus to the lower court to take jurisdiction.-U. S. v. Swan, 65 Fed. 647, 13 C. C. A. 77, 31 U. S. App. 112.

[i] (U. S. C. C. A., Mich., 1896) The circuit courts of appeals have no power to issue a mandamus directing a circuit court to dismiss a case in limine, on the ground that no jurisdiction has been acquired over the defendant by the method of service pursued, for the circuit courts of appeals can only issue a mandamus in aid of their own jurisdiction (Act March 3, 1891, § 12; Rev.. St. §716); and they have no jurisdiction in a case in which the only question involved is the jurisdiction of the court below, as such cases are reviewable on appeal only in the supreme court (Act March 3, 1891, §§ 5, 6). -U. S. v. Severens, 71 Fed. 768, 18 C. C. A. 314, 37 U. S. App. 622.

[j] (U. S. C. C. A., Mo., 1900) The power of the circuit court of appeals to certify the question of jurisdiction to the supreme court necessarily includes the power in that court to decide the question, and in every case in which the complaining party has the right, or has and exercises the option, to carry his case to the circuit court of appeals for review, that court may decide the question of jurisdiction.-Evans-Snider-Buel Co. v. McCaskill, 101 Fed. 658, 41 C. C. A. 577.

[k] (U. S. C. C. A., Or., 1895) On the dismissal of a libel to enforce a maritime lien against a vessel in possession of an assignee for creditors, for want of jurisdiction of the court, the court of appeals has no jurisdiction of an appeal.-The Alliance, 70 Fed. 273, 17 C. C. A. 124, 44 U. S. App. 52; Allen v. Strong, Id.

[1] (U. S. C. C. A., Or., 1897) In a suit in admiralty, where the district court has jurisdiction of the parties and the res, but dismisses the libel on the ground that the cause of action is barred by lapse of time, the question involved, on an appeal from such decree, is not one concerning the jurisdiction of the district court, so as to prevent the circuit court of appeals from taking jurisdiction.-Laidlaw v. Navigation Co., 81 Fed. 876, 26 C. C. A. 665. [m] (U. S. C. C. A., Pa., 1898) Where a circuit court remands a cause to the state court on the ground of a lack of jurisdiction to take cognizance of it, the case is one in which the jurisdiction of a circuit court is in issue, within the terms of section 5 of the act creating the circuit court of appeals and is therefore excluded by section 6 from the cases of which that court is given jurisdiction by such section.--In re Aspinwall's Estate, 90 Fed. 675, 33 C. C. A. 217.

[n] (U. S. C. C. A., Tenn., 1895) Where a general creditors' suit is properly pending in a circuit court of the United States, for the collection, administration, and distribution of the assets of an insolvent corporation, the question whether such court has jurisdiction to hear and determine an ancillary suit instituted in the same cause by its receiver, in accordance with its order, against debtors of such corporation, so far as in said suit the receiver

claimed the right to recover from any one debtor a sum not exceeding $2,000. should be certified (Act March 3, 1891, § 6) to the supreme court of the United States for decision.-White v. Ewing, 66 Fed. 2, 13 C. C. A. 276, 31 U. S. App. 178.

[o] (U. S. C. C. A., Tex., 1898) On appeal from an order granting a preliminary injunction in aid of the appointment of a receiver, where the question as to the jurisdiction of the circuit court was of a grave and vital character, held, that the circuit court of appeals would not then determine it, but would decide the question of the propriety of the injunction on its merits, and leave the jurisdictional question until after final decree below, so that the parties, if they so desired, might take it direct to the supreme court.-Carson v. Combe, 86 Fed, 202, 29 C. C. A. 660.

[p] (U. S. C. C. A., Wash., 1898) The circuit court of appeals has no jurisdiction of an appeal in proceedings in admiralty for limitation of liability, when the only question for review is whether the district court had jurisdietion, after final disposition of the questions of limitation, to enter a decree in personam against the owners of the vessel for damages suffered by some of the interveners.-The Annie Faxon, 87 Fed. 961, 31 C. C. A. 325.

[q] (U. S. C. C. A., Wash., 1900) The court below having maintained its jurisdiction and decided the cause on its merits, defendant may appeal on the whole case, including the question of jurisdiction.-Mills v. Trust Co., 100 Fed. 344, 40 C. C. A. 394.

[r] (U. S. C. C. A., Wis., 1896) An assignment of error that the circuit court erred in dismissing the action as against any of the parties named in the process, though they had not been served, and, by reason of nonresidence, could not be, and an objection that the order of dismissal was a final order, did not involve solely a question of the jurisdiction of the circuit court, and hence the circuit court of appeals had jurisdiction of the writ of error.Beck & Pauli Lith. Co. v. Wacker & Birk B. & M. Co., 76 Fed. 10, 22 C. C. A. 11.

[s] (U. S. C. C., Pa., 1895) The jurisdiction of the court is not drawn in question by the denial of the right of the plaintiff to the judgment entered in its favor, nor is the authority of the court to enter the judgment put in question by the allegation that it is erroneous, so as to allow a writ of error from the circuit court direct to the supreme court, under the act establishing circuit courts of appeals.-Engineering Co. v. Ritter, 70 Fed. 679.

(109 Fed. 258.)

FOX et al. v. TYLER et al.

(Circuit Court of Appeals, Eighth Circuit. April 29, 1901.)

No. 1,368.

1. CONTRACTS-CONSTRUCTION-GENERAL RULES.

The situation of the parties to a contract when it is made, and its subject-matter and purpose, are material to determine the intention of the parties, and the meaning of the terms they used; and, when these are ascertained, they must prevail over the dry words of the stipulations. 2. SAME IMPLIED MODIFICATION-ESTOPPEL.

A merchant, having made a general assignment, entered into a written contract with certain of his creditors by which they agreed to grant extensions, and to induce his other creditors to do the same. The contract provided that the debtor should execute and deposit notes to the creditors, with a surety, which should become valid obligations only when all creditors should agree to grant the same extensions, in which case the assignment should be canceled, and the goods returned to the debtor. The creditor having charge of the negotiations sent to the custodian other notes for execution, and wrote that all except two small creditors had assented, and suggested that it was not necessary to wait

for their assent, since, if it was refused, their claims could be paid. This letter was shown to the debtor and his surety, who was his brother, and also the assignee, and they thereupon executed the remaining notes, which were delivered to the creditors, canceled the deed of assignment, and the goods were returned to the debtor, who sold the same. Held, that by such action they impliedly agreed to a modification of the written contract, requiring the assent of all the creditors, and, having thereby obtained the goods, could not deny the validity, of the notes because of the nonassent of the two creditors.

In Error to the United States Court of Appeals in the Indian Territory.

W. R. Fox was a retail merchant doing business at Wayne, in the Indian Territory. He purchased a stock of merchandise from various wholesale houses on credit, and, when his bills therefor matured, he was not able to meet them, and on his own motion executed a deed of assignment to his brother, F. M. Fox, on his stock of goods, for the benefit of his creditors. Before the assignee qualified, some of his mercantile creditors appeared on the scene, with the result that it was agreed that his creditors would grant him an extension of four, eight, and twelve months upon he and his brother, F. M. Fox, executing their joint notes for the sums due his several creditors, indorsed by J. E. Colbert. As all his creditors were not present and consenting to the arrangement, it was agreed that the written agreement hereinafter set out should be placed in the hands of A. D. Hawk, cashier of the Chickasaw National Bank, and, when the assent of the creditors to the extension had been obtained, and Mr. Hawk was advised of that fact, he was to have W. R. Fox and F. M. Fox execute notes in accordance with the agreement, and send them to the creditors, and the deed of assignment was to be annulled, and the stock of goods returned to W. R. Fox. W. F. Miller, the representative of one of the creditors, was to see to obtaining the assent of the absent creditors to the arrangement. He procured the assent of all the creditors except two, touching which he wrote Mr. Hawk on the 28th of August as follows:

"St. Louis, August 28th, 1896.

"Mr. A. D. Hawk, Cashier Chickasaw Nat'l Bank, Purcell, I. T.-Dear Sir: Herewith please find inclosed notes properly made out for the claims of the Raney-Alton Mercantile Co., Dowden-Williamson Grocer Co., Turner & Jay, Richards-Conover Hardware Co., Kingman-Moore Implement Co., and Barton Bros. This includes all of the claims or accounts against W. R. Fox, with the exception of a small claim at Chicago, and one at Readsville, N. C. I will write to these parties to-day, and send them a copy of the agreement, and hope within a few days to receive a favorable reply from them. This, however, will not prevent the signing of the inclosed notes by W. R. Fox and F. M. Fox and J. E. Colbert, for, in the event that these parties at Readsville, N. C., and Chicago do not agree to the settlement, they could be paid off either by Fox or the creditors."

On the same day he wrote F. M. Fox as follows:

"St. Louis, August 28th, 1896.

"Mr. F. M. Fox, Attorney at Law, Purcell, I. T.-Dear Sir: I have just written to Mr. Hawk, and inclosed to him notes for the balance of the accounts, to be signed by yourself and W. R. Fox and J. E. Colbert. All of the parties have signed the agreement with the exception of the parties at Readsville, N. C., and the one at Chicago, to whom I will write to-day, and will send a copy of the agreement for their signature. This, however, need not prevent the signing of the notes, for, in the event that they refuse to come into the agreement, these two small accounts could be paid off by you or the creditors, if it is found to be absolutely necessary to do so. I would like very much for you to sign these notes at your earliest convenience, so that Mr. Hawk can forward them to the parties to whom they are made payable. Yours, very truly, W. F. Miller."

On the receipt of these letters, and after Mr. Hawk had shown his letter from Mr. Miller to the two Foxes, they executed their notes to the creditors,