282 ' ,FED]l:RAL REl'9BTER, vol. 38.
Bill by Henry Adams andothel's against the KehIor Milling
anllothers, to set aside a .fraudulent· assignment. Decree for complain-
ant, and for other credit9l'S, who. intervened, See 35 Fed. Rep. 433.
The complainants' solicitors moved for. an allowance for their services,
to be taxed as costs in the .case. ,
Mills &- Fli:tcrajt, for complainants.
G. M. Stewart, for defendants. ,:'
THAYER, J,. In accordance with the decree heretofore entered, (35
Fed. Rep. 433,) the master has filed his report. An application is now
made by .complainants' :solicitors for an allowance of attorneys' fees, to
be taxed:.ll.I:i costs against the defendants. The claim, as made, appears
to, be It claim for compensation for services rendered as solicitors for com-
plainants in this case, and also for services rendered to complainants in
the state court" in obtaining a judgment against the Kehlor Milling Com-
pany, on. which thep.l'Oceeding in the federal court was based. It is
clear that this court bas n(;) lI.uthori:tyto tax against the defendants any fees
due from the complainants to their solicitors for services rendered in the
suit in the state cQurt"although the judgment obtainedein that suit forms
the basis pf the, proceeding in the federaL court. It is equally clear that
the. costs as between solicitor and client in the suit pending in this court
cannot be taxed against. the defendants for a greater sum than the statute
allows. It is well,settled that when, under a bill filed by one benefici-
ary in a trust, in behalfiof himselCand all other beneficiaries, a fund is
recovered and brOUght into court for distribution, the court may tax a
reasonable solicitQr's fee as :costs, i'llld order it to be paid outofthe fUnd
So, recovered. ,Tru8tees,v... Gre(fftO'V,gh, 105U. S. v.Pet-
Ws, ll3U. 8.11.6, 5 StJp.Ct. Rep. ,387 ;; Thisrulerests upon the ground
that where one litigant has borne the burden and expense of a Jitigation
that has inured to the benefit of others as well as himself, those who have
shared in the benefits should contribute to the expense. In that class
of cases it is customary to tax against the fund realized a fee in favor of
complainant's solicitor, before any distribution is ordered. But even this
rule would not authorize1lhe court to tax the costs 'as between solicitor
and client against the defendants. Defendants are liable for a fee of
$20. taxed tirldel: section 824, Rev. St U. S. Hany further fee is taxed,
it must be taxed against a fund actually or constructively in the cU8t9dy
qf the court fOt the purpose of The has reported
;$at heretofore made the amount due to the complain-
ants from the defendants is $1,281.94. He also reports that J. M. Whit-
comb, Jack & Co., and Henderson, Freen & Co., who, as unsecured
Milliu.g Comp/1-ny,haye intervened in the cause since
the decree was rendered, are entitled to further amounts aggregating
,$2,617.15, The parties who have intervefled have unquestionably
Jl#gatlc)l) complainants in, hehalf
of all unsecured creditors. and, undenithe rule announced in the case
of Trustees v. Greenough, supra, they should contribute ratably to the
payment of a reasonable fee to complainants'solicitors. A final o,rder
the repQrt.Qf.the master dire.etil1g:the'defendants to pay
into court, sum of $3,899.09 for·distribution between complainants
and intervenors,.in,the proportjon recommended by 'the master. A sum
to to per cent. of that amount will be taxed against and pl;lid
out of the £und solicitors. The defendants will also be
required into court the costs of the suit.
WINDSOR SAV. BANK' V. McMAHON et aZ.
(O';rcuit Court, 8. D. Iowa,. W; D. April 6, 1889.)
L'NEGOi'i.A:BLE IN AMOUNT-LAW-
A stipplation in a promissory note, the installments of interest, lind,
when due, the principal, llayable at a !Siven placfl, ."with
renders the note non-negotiable under the law merchant, as it cannot
be known. until the times of paymentarriV'e what the'rates of exchange will
be, and the necessary to discharge the note is therefore' uncertain.
2. SAME-JURISDICTION OF FEDERAL COURTS. ,
Under actCong. 1875, providing that the federal courts shall have .no juris,
diction :of a suit founded on a contract in favor of an assignee unless the as-
signor could have prosecuted:the'suit in'the same court, "except in cases of
promissory notes. negotiable by thelaw-me.rchant, and bills of exchange, " the
negotiability ofa note, 80 far as is necessary to determine the question of ju-
risdiction, is governed wholly' by the rules of the law-merchant, regardless of
the statutory provisions. of the state in which the action is brought.
In Equity. Bill for foreclosure.
, The Windsor Savings Bank, assignee .of William B. Somers, brought .
this bill against S. A. McMahon and others, to foreclose a mortgage exe-
cuted by said Mc¥ahon on land to seC1,ll'e the payment of a note to said
Somers. . "
L. W. R088, for cOmplainant.
Wright,. Baldwin &: Haldane, for defendants.
J.This suit was brought for the purpose of foreclosing a
JDortgage executed by S. A. McMahon, given to secure the payment of
a note for $14,000. The note bears date at Council Bluffs,
Iowa, and provides that "both principal and interest payable at the office
of J. W.and E. L. Squire,.Oouncil Bluffs, Iowa, with exchange on New
York." The jurisdiction of the court is now questioned by a suggestion
on behalf of the defendant that the note is payable to the order of Will-
iam B. Somers,l,l.n.d it is admitted by the parties that at the date of the
the sui,t the mortgagor and payee of the note were citizens of the
state of Iowa. Underth!=l provisions of the act of 1875, in force when
the suit commenced, this cour.t has .not jurisdiction of a suit founded
contract in favor ofan assignee, unless the assignor could have pros-
the' same in this court in case no assignment had been made,
'i1.1 cases nc;>tes negotiableb:K the law-merchant,.and