plainants had a cause of action, that cause | ly. The instalments of interest for 1875, of action arose before May 4, 1878, when 1876, and 1877 had not been paid, and those Palms filed his bill, yet the landowners were succeeding remained unpaid. not proceeded against until the 22d of April, 1889. In 1880 the circuit court entered the order permitting Palms to bring in the landowners by filing a supplemental or an origi nal bill; and in that same year there were numerous breaks in the levee. The statute of limitations of Illinois provided that actions on unwritten contracts, express or implied, and all civil actions not otherwise provided for, should be commenced During the same year a new drainage diswithin five years next after the cause of ac-trict was organized under the provisions of tion accrued. Courts of equity usually con- the act of 1879, which had been passed in sider themselves bound by the statutes of accordance with the constitutional amendlimitation which govern courts of law in like cases. In the second aspect of their bill | appellants did not rely on their bonds as legal instruments, but they sought the aid of a court of equity for the enforcement of a lien in payment of the bonds by reason of an estoppei in pais, and the cause of action so created would seem to have been barred by that statute. But courts of equity go farther in the promotion of justice, and where laches exist, deny the relief sought, even though the statutory period may not have run under the applicable statute. The doctrine of courts of equity to withhold relief from those who have delayed the assertion of their claims for an unreason able length of time is thoroughly settled. Its application depends on the circumstances of the particular case. It is not a mere matter of lapse of time, but of change of situation during neglectful repose, rendering it inequitable to afford relief. Palms purchased these bonds of the contractors to whom they had been delivered by the commissioners, who assumed a right to issue and make that disposition of them by virtue of the power to borrow money granted by the act of 1871. The enterprise of erecting such a barrier to the incursions of the river was, in its nature, hazardous, and the levee required not only the utmost skill in construction, but the utmost effort and vigilance in its repair and maintenance. The transaction was in its nature speculative as the value of the reclaimed lands depended on the permanency of the structure. The enforcement of the assessments for benefits on which the payment of the cost of the work depended was resisted from the first by certain landowners, who had opposed the scheme as attempted to be authorized, [494] and their legality was brought to the test as soon as in the orderly progress of judicial proceedings it could be done. The result was that in 1876 the act of 1871 was held void and the assessments illegal. In that same year the levee broke and the lands were devastated. In 1877 some of the landown ers raised some thousands of dollars, giving trust deeds as security, for the repair of the levee, the money to be devoted to that purpose exclusively; and repairs were made. May 4, 1878, Mr. Palms filed his bill, to which the landowners were not made parties. The principal of the first and largest assessment was payable one tenth annually beginning with 1882, but the interest, at the rate of 10 per cent per annum from October 1, 1872, was collectible annually, and the interest on the bonds was also payable year ment of 1878. Large assessments were levied upon the lands, aggregating hundreds of thousand of dollars, and the money was put into the property. In 1881 the levee broke again, but the new drainage corporation went on with its work. The levee broke again in 1888, and additional assessments were levied. Palms did not avail himself of the order, in the original cause, of July 7, 1880. He took no further steps, and died November 24, 1886. His executors filed this bill April 22, 1889. The record affords no explanation of the delay, and it seems to us that this was such laches as forbids relief. To enforce these bonds against those by whose courage, energy, and expenditure the lands have attained whatever value they now possess, would in our judgment be too inequitable to be permitted. Mr. Palms knew of the decisions of the supreme court of Illinois in the Webster and Updike Cases; of the breaks in the levee; of the efforts of the landowners to re-(495] build and maintain it by large expenditures of money; and he could not lie by until after such expenditures, and with the condition of the district and the personnel of its people constantly changing, and then insist that during all this time the parties were under a liability to him which, in equity, they were estopped to deny. So far as part of the old levec became part of the new levee, the new drainage corporation used it because they could not do otherwise, and besides Palms, as a purchaser of bonds in the open market, was a stranger to the work. Even if the contractors con'd have claimed an equitable lien on the struc ture itself, Palms could not, and, indeed, any resort to subrogation is disclaimed by appellant's counsel. Such a claim could not have been successfully maintained under our decision in Etna L. Ins. Co. v. Middleport, 124 U. S. 534. 31 L. ed. 537, 8 Sup. Ct. Rep. 625. There the town of Middleport had issued certain bonds to aid in the construction of a railroad; the road was constructed and the bonds delivered to the railroad company in payment of the work, and were afterwards sold to the complainant. The supreme court of the state of Illinois held the bonds void, and a bill was filed in the circuit court of the United States to enforce their collection on the theory of subrogation to the right of the railroad company to enforce the contract evidenced by a vote of the town appropriating the amount involved to pay for the railroad, and the acceptance and fulfilment of the contract by the railroad company. But it was decided that complainant having bought the bonds as negotiable securities from the railroad company could not be substituted to any rights which it might have had against the defendants; that no right of subrogation existed; that subrogation was applicable only in cases where a junior encumbrancer was forced to pay off a superior lien for the protection of his rights, or in some similar case; and that a mere volunteer was not entitled to claim the right. It is worthy of remark that the decree of the circuit court in that case was placed on the ground that the right of action of the railroad company, resting only in parol, was barred by the statute applicable to contracts not in writing. Blodgett, J., 31 Fed. 874. [496] *Here no bonds were ever sold by the commissioners to Palms or anyone representing him. They were delivered to the contractors and were taken in payment at 90 cents on the dollar of their face value. If the acts of any of the landowners created any equities against them it was in favor of the contractors, and these equities could not be asserted by Mr. Palms, unless by subrogation, which could not be availed of. And if it could be held that the money of Mr. Palms did enter into the construction of the levee, yet it was inextricably intermingled with that furnished by private individuals, by the new levee and drainage district, by three railroad companies, and by the United States government, the total aggregating half a million dollars, from 1877 to 1893. *A. J. TULLOCK, Piff. in Err., 2. JOAB MULVANE. (See S. C. Reporter's ed. 497-524.) Appeal--error to state court-Federal question-liability on injunction bond-effect of pending appeal-right to attorney's fees. 1. The question whether there can be any liability on an injunction bond given in the course of proceedings in a Federal court, because of the alleged effect of certain stipulations dismissing a portion of the case, and of an appeal from the decree that was afterward rendered, involves a claim of an immunity from liability depending on an authority exercised under the United States, such as will constitute a Federal question for review by the Supreme Court on writ of error to a state court. 2. 3. 4. The withdrawal by stipulation of the only part of a case which can sustain an injunc tion is the equivalent of a final determination against the right to an injunction, for the purpose of creating a right of action on the injunction boud, notwithstanding the fact that an appeal may be taken from the decree rendered in that part of the case which is not dismissed. A claim of immunity from liability for attorney's fees as one of the elements of damages under an injunction bond given in a Federal court presents a Federal question for review on writ of error to the state court from the Supreme Court of the United States. The attorney's fees for procuring the dissolution of the injunction cannot be allowed as an element of damages on an injunction bond given in a Federal court, notwithstanding the fact that by the local law of the state in which the bond was executed such fees could be recovered in a suit on the boud. [No. 59.] Argued October 25, 28. 1901. Decided IN ERROR to the Supreme Court of Kan- In Litchfield v. Ballou, 114 U. S. 190, 29 L. ed. 132, Sup. Ct. Rep. 820, it was held that a creditor who had loaned to a munici-, pal corporation, in excess of the amount of; the indebtedness authorized by the Consti- ! tution, money which had been used in part for the construction of public works, was not entitled to a decree in equity for the return of his money, because the municipality had parted with the specific money and it could not be identified; that a bill in equity praying for the return of specific and identical moneys borrowed by a municipal corporation from complainant in violation of law would not support a general decree that there was due from the municipality to him a sum named, which was equal to the amount borrowed; and further, that a conStatement by Mr. Justice White: stitutional provision forbidding the municiGeorge P. Wescott and Samuel Hanson pality from borrowing money operated were complainants in a bill in equity which equally to prevent moneys loaned to it in was filed, on January 13, 1893, in the cirviolation of this provision and used in the cuit court of the United States for the disconstruction of a public work, from becom-trict of Kansas. Joab Mulvane and various ing a lien upon the works constructed with it. And if in this case any ground of relief on the theory of implied contract ever ex See same case below, 61 Kan. 650, 60 Pac. 749. other persons and corporations were made state isted, the want of diligence presented an in- ed. U. S. 267, and Kipley v. Illinois cx rel. superable bar to its assertion. Decree affirmeȧ. Mr. Justice Brown did not hear the argument and took no part in the decision of this case. Akin, 42 L. ed. U. S. 998. As to what is a Federal question; when considered-see note to Re Buchanan, 39 L. ed. U. S. 884. As to damages recoverable on injunction bonds-see Hubble v. Cole (Va.) 13 L. R. A. 311, and note. 657 [497] sought was to compel the specific performance of a contract alleged to have been entered into between the complainants and Mulvane for the sale by the latter and purchase by the former of all the capital stock of the Topeka Water Supply Company, a [498] Kansas corporation, *also a defendant to the suit. Incidentally it was sought to annul a purported sale of the waterworks plant to another of the defendants, the Topeka Water Company, a Kansas corporation, which it was asserted had been organized by Mulvane. The bill also sought to prevent the Topeka Water Company from encumbering the plant with a mortgage which, it was averred, was about to be executed, and to restrain the issuing and negotiation of bonds proposed to be secured by such mortgage and the sale or disposition of stock of both the Topeka Water Supply Company and the Topeka Water Company. The members of a copartnership, styled Coffin & Stanton, doing business in the city of New York, whom it was charged were offering to the public for sale the bonds so proposed to be issued, were likewise joined as defendants in the bill. On February 13, 1890, the court ordered a temporary injunction to issue, as prayed, upon the giving of an approved bond. Two days later, however, it was ordered that instead of a bond the complainants "may deposit with the clerk of this court the sum of $75,000 in cash, and that said deposit shall stand for a bond for all damages from the commencement of this suit until the further order of the court, whereby said complainants will be obligated and bound to pay to the defendants all costs and damages aforesaid, if it shall be finally held that said injunction or restraining order was improvidently granted." On April 4, 1890, upon a hearing, the court sustained a motion which had been filed on behalf of Coffin & Stanton to dissolve the temporary injunction. The dissolution was predicated upon the ruling that an indispensable party had not been made a defendant, and could not be made without ousting the jurisdiction of the court, because such party defendant and the plaintiffs were citizens of the same state. In October, 1890, pursuant to a stipulation made between complainants and certain of the defendants, filed in the cause, the bill was dismissed as to all the defendants except Mulvane, and so much of the bill as sought a specific performance of the alleged contract between complainants and Mulvane was withdrawn. By the stipulation the defendants who were dismissed from the cause expressly waived all right of action upon the injunction bond or otherwise, by reason of the allowance of the temporary injunction. On September 26, 1892, upon the hearing of the cause as between complainants and Mulvane, the bill was dismissed. The case was then appealed to the circuit court of appeals for the eighth circuit. [7 C. C. A. 242, 19 U. S. App. 125, 58 Fed. 305.] That court decided the appeal on the assumption that the question for decision was whether, in view of all the circumstances attending the making of the agreement between complainants and Mulvane, it was one which a court of equity could specifically enforce. The court observed that the cause had evidently been argued and disposed of in the court below on the theory that under the stipulation, even though the right to have specific performance had been waived, nevertheless damages might be assessed by a court of equity as for a breach of the contract, if the court was of opinion that the appellants were, at the[500] time the bill was filed, entitled to specific performance. Assuming, then, the regularity of this procedure, and its power as an equity court to execute the agreement, the court reviewed the evidence, and held that the complainants were not at the time the bill was filed entitled to the specific performance of the contract, for the reason that they d never put the defendant Mulvane in default by tendering him the sum which he was entitled to receive under the contract of sale, to enforce which the bill had been filed. The court further observed: court erred in dissolving the temporary in"It is assigned for error that the circuit junction as well as in dismissing the bill on the ground heretofore stated. As the first of these assignments was somewhat pressed on the argument, it becomes necessary to Thereafter, on June 3, 1890, by leave of say, and we think it is all sufficient to say, court, a formal bond was substituted for the that the appellants cannot be heard to comcash deposit which had been made under the plain in this court of the order dissolving order of the court previously stated. A. J. the temporary injunction after voluntarily Tullock and W. M. D. Lee were the sureties. withdrawing so much of their bill as sought The bond recited the order for an injunction, a specific performance of the alleged contract. An injunction could only be awarded the subsequent permission to deposit cash in lieu of a bond, the making of such cash de- as an incident to that species of equitable posit, the withdrawal of the deposit with the relief. and when the allegations and the [499 sanction of the court on the condition that prayer of the bill looking to that form of a bond be executed. The fact that the in-relief were withdrawn, the injunction necjunction had been in the meanwhile dis-essarily shared the same fate." solved by the court was also recited. The condition of the bond is reproduced in the margin.† "Now, therefore, if the said George P. Wescott and Samuel Hanson shall pay, or cause to be paid, to the said Joab Mulvane, the Topeka Water Supply Company, the Topeka Water Company, William Edward Coffin, Walter Stanton, Intermediate the dismissal of the bill by the circuit court and the affirmance of the decree of dismissal by the circuit court of Charles H. Jackson, and Charles F. Street, partuers doing business under the firm name and style of Coffin & Stanton, and the Atlantic Trust Company, and to each of them, all damages which they, or either of them, have already appeals, Mulvane, on November 5, 1892, in- | court to charge in substance as follows: 1. The action in the state court was tried to a jury. Because of the ruling by the trial judge, in excluding evidence as to expendiLures for attorneys' fees in procuring the [501] dissolution of the *injunction, Mulvane prosecuted error, and the judgment entered by the trial court was held by the supreme court of Kansas to be erroneous because of such ruling. 58 Kan. 622, 50 Pac. 897. A new trial was thereupon had in the lower court. At this trial, on the offer by Mulvane, the plaintiff, of evidence tending to show payments made by him for attorneys' fees, such evidence was objected to as follows: "The defendant further objects because it appears that this bond was given in a proceeding in the Federal court, and under the law of the United States governing the liability of parties for damages on bonds or in such proceeding in Federal courts attorneys' fees are not included." At the close of all the evidence, the court allowed the respective parties to amend their pleadings. The petition was amended, among other particulars, by setting out specifically the sum of asserted damage result ing from the payments alleged to have been made by Mulvane to various attorneys in resisting the allowance and procuring the dissolution of the injunction. In the amendment of the answer it was specifically pleaded that the sums paid to the attorneys by Mulvane were not elements of damage embraced within the terms of the injunction bond, if such bond was construed and enforced according to the rules applicable in the courts of the United States, as Founded by the Supreme Court of the United States. It was asserted that the bond must be measured by the principles controlling in the court where it was given, and that to hold otherwise would deprive the surety of the protection of the law of the United States, in contemplation of which he had contracted. ex After the amendments and in negation of sustained or may at any time sustain by rea- That as by the condition of the bond liabil- Mr. W. H. Rossington argued the cause, and, with Messrs. Charles Blood Smith and Clifford Histed, filed a brief for plaintiff in error: The case at bar, being upon an injunction bond given under order of the United States circuit court for Kansas in an equity case pending before said court, is, as to all of its elements, a case involving Federal questions, finally cognizable and determinable in this court. or the withdrawing from the hands of the clerk the said sum of $75,000 deposited in lieu of the bond as required by the court to be given, then the above obligation shall be null and void; otherwise shall be and remain in full force and effect." | 121 Pa. 30, 15 Atl. 490; 2 High, Inj. 3d el. §§ 1638-1641: Beach. Inj. § 227; Apollinaris Co. v. Venable, 136 N. Y. 46, 32 Ñ. E. 555; Columbus, H. V. & T. R. Co. v. Burke, 54 Ohio St. 98, 32 L. R. A. 329, 43 N. E. 282; Cassem v. Ernst, 84 Ill. App. 70. Bein v. Heath, 12 How. 168, 13 L. ed. 939; Russell v. Farley, 105 U. S. 433, 26 L. ed. 1060; Meyers v. Block, 120 U. S. 206, 30 L. ed. 642, 7 Sup. Ct. Rep. 525; Arnold v. Frost, 9 Ben. 267, Fed. Cas. No. 558; Sey mour v. Phillips & C. Constr. Co. 7 Biss. 460, Fed. Cas. No. 12,689; Leslie v. Brown, 32 A cause in chancery cannot be said to be C. C. A. 556, 61 U. S. App. 727, 90 Fed. 171; finally decided and determined when apTyler Min. Co. v. Last Chance Min. Co. 32 pealed until the record in the case has been C. C. A. 498. 61 U. S. App. 193, 90 Fed. 15; finally examined by the appellate tribunal Walker v. Windsor Nat. Bank, 5 C. C. A. and the whole matter reviewed and decided. 421, 5 U. S. App. 423, 56 Fed. 76; Coosan Sibbald v. United States, 12 Pet. 488, 9 Min. Co. v. Farmers' Min. Co. 51 Fed. 107; L. ed. 1167; Stewart v. Salamon, 97 U. S. Lea v. Deakin, 13 Fed. 514; Lehman v. Mc-361, 24 L. ed. 1044; Southard v. Russell, Quown, 31 Fed. 138; Crane v. Buckley, 3816 How. 547, 14 L. ed. 1052; Durant v. EsC. C. A. 688, 105 Fed. 401; 2 Beach, Mod-ser Co. 101 U. S. 555, sub nom. Durant v. ern Eq. Pr. $ 770. Storrow, 25 L. ed. 961; Kingsbury v. BuckInasmuch as this suit was subject to writner, 134 U. S. 650, 33 L. ed. 1047, 10 Sup. of error from the Supreme Court of the Ct. Rep. 638; Aspen Min. & Smelting United States, it was the duty of the state Co. v. Billings, 150 U. S. 31, 37 L. ed. supreme court to adopt, follow, and enforce 986, 14 Sup. Ct. Rep. 4; Gaines v. Rugg, the rules and decisions of this court upon the questions therein involved. Beleker v. Chambers, 53 Cal. 635; San Benito County v. Southern P. R. Co. 77 Cal. 518, 19 Pac. 827. The power to impose a bend as a condi tion for the injunction carried with it the power to relieve or mitigate the liability thereunder in the exercise of a sound discretion by the Federal court. Russell v. Farley, 105 U. S. 442. 26 L. ed. 1060; Leslie v. Brown, 32 C. C. A. 556. 61 U. S. App. 727, 90 Fed. 171; Tyler Min. Co. v. Last Chance Win. Co. 32 C. C. A. 498, 61 U. S. App. 193, 90 Fed. 15. Counsel fees are not recoverable as an ele ment of damage for breach of injunction bonds exacted by Federal courts. Arcambel v. Wiseman, 3 Dill 306, 1 L. d. 613; Bồn v. Heath, 12 Hew. 168. 13 L. el. 939; Octricks v. Spain. 15 Wall. 239, sub nom. Odriels v. Williams, 21 L. ed. 15: Browning v. Porter, 2 McCrary, 581, 12 Fed. 460: The Alice, 12 Fed. 502: Jacobus v. Monongahela Nat. Bank, 35 Fed. 396; Fidelity Ins. Trust & S. D. Co. v. Roanoke Iron Co. 91 Fed. 21. ་ That this is the rule of the Federal court has been recognized in numerous state decisions. Oliphint v. Mansfield, 36 Ark. 195; Dor ris v. Willer, 105 Iowa. 569, 75 N. W. 483: Thurston v. Haskell, 81 Me, 306 17 AU. 74: Wood v. State use of White, 66 M4. 68, 5 Atl. 479: Frost v. Jordan, 37 Minn. 546, 36 N. W. 714: Hill v. Thomas, 19 S. C. 236; Loeb v. Men, 39 S. C. 470. 18 S. E. 2; Stringfield v. Hirsch, 94 Tenn. 432, 29 S. W. 611; Galreston, II. & S. A. R. Co. v. Ware, 74 Tex. 50, 11 S. W. 920: Jones v. Rosedale Street R. Co. 75 Tex. 383, 12 S. W. 998. 148 U. S. 228, sub nom. Gaines v. Caldwell, 37 L. ed. 432, 13 Sup. Ct. Rep. 611; Bissell Carpet-Sweeper Co. v. Goshen Sweeper Co. 19 C. C. A. 25, 43 U. S. App. 47, 72 Fed. 545. See also Metcalf v. Watertorn, 16 C. C. A. 37, 34 U. S. App. 107, 68 Fed. 859; Morgan's L. & T. R. & S. S. Co. v. Texas C. R. Co. 32 Fed. 525; Morrin v. Lawler, 91 Fed. 693. No action accrued on the bonds pending appeal. Cohn v. Lehman, 93 Mo. 574, 6 S. W. 267; Hamilton v. State use of Hardesty, 32 Md. 318; Howard v. Park, 59 How. Pr. 344; Musgrave v. Sherwood, 76 N. Y. 194; Gray v. Veirs. 33 Md. 159; Penny v. Holberg. 53 Miss. 567; Murfree, Official Bonds, § 391; High. Inj. §§ 1648 et scg. And until the appeal from the decree of the court on the question of damages was determined, no action accrued. Thompson v. McNair, 64 N. C. 448; Cohn v, Lehman, 93 Mo. 574. 6 S. W. 267; Howard v. Park, 59 How. Pr. 344; Musgrave v. Sherwood, 76 N. Y. 194; Gray v. veirs, 33 Md. 159: Penny v. Holberg, 53 Miss. 567: Murfree, Official Bonds, § 391; High, Inj. §§ 1648 et seq. The suit. being founded upon a bond exacted by the Federal court, necessarily involves a Federal question. Bein v. Heath, 12 How. 168, 13 L. ed. 939; Meyers v. Block, 120 U. S. 206, 30 L. ed. 642. 7 Sup. Ct. Rep. 525. The jurisdiction of the United States circuit courts to entertain original suits upon such obligations irrespective of the citizenship of the parties has been recognized in a large number of cases, and has never been questioned. Leslie v. Brown, 32 C. C. A. 556, 61 U. S. App. 727, 90 Fed. 171. By the voluntary act of the parties the condition upon which the liability depended, In that class of cases in which a Federal ramely, a final decision that the injunction | question is involved, and on which jurisdieught not to have been granted, was ren- tion of the courts of the United States dedered impossible, and except upon such een-pends, the character of the question is the dition no liability could attach to the surety, same whether the jurisdiction exercised is Palmer v. Foley, 71 N. Y. 106: Johnson lapsellate, criginal, or by removal; the juris v. Ebrood, 82 N. Y. 362; Tuler Min. Co. v. dietien in either form depending upon the Last Chance Min. Co. 32 C. C. A. 498, 61 constitutional grant of power. U. S. App. 193, 90 Fed. 15: Large v. Steer,' Nashville, C. & St. L. R. Co. v. Taylor, |