of designated creditors, covers 167.66 acres of land, with crops growing thereon; 142 acres of land, with crops growing thereon, situated in Buchanan and Platte counties, Mo., subject to deed of trust for the sum of $1,840, a deed of trust for $3,000 and a deed of trust for $8,400-making in the aggregate the sum of $13,240; also an undivided one-half interest in 40 acres of growing corn on William Matney's farm, on which the defendant then lived; also 81 head of yearling steers and 53 head of two year old steers, 81 head subject to a mortgage theretofore given to the First National Bank of Buchanan county, October 31, 1902, to secure a debt of $2,800, and 53 head of steers subject to a mortgage to the same bank to secure the sum of $4,000, dated July 23, 1903. The other personal property described in this deed consisted of a pair of four year old bay mules, a pair of brown mules four years old, 2 other mules, one gray mare, 15 sows-all of which are subject to a mortgage to the Tootle-Lemon National Bank to secure $7,800; also about 1,000 bushels of corn, 2 old cultivators, 2 breaking plows, 1 farm wagon, 1 single seated buggy, 2 sets of old double harness, 1 harrow. After allowing to him his claimed exemptions, the trustee realized on sale of the personal property not covered by mortgages the sum of $105. The state of the proofs is such, relying as it does largely upon facts obtained from the defendant's testimony, when he kept no books since 1893, as to render it impossible to ascertain from the evidence exactly the times of his purchases and the number and cost of live stock actually purchased by him on the market. The following summary is gathered from his own statement: During the period. preceding 1900 of, say five years, he purchased 6 car loads of cattle for immediate shipment, the car loads averaging from 16 to 18 head of cattle. He also during that time purchased, fed, and sold sheep to the extent of a car load a year. In 1900 he purchased 10 mules, colts, which were at once sold; price not stated. He also purchased between 50 and 60 calves, taken onto the farm. He shipped one car load of cattle and hogs, three cars of hogs, three cars of cattle, two other car loads of stock, not specially designated by the evidence. In 1901 he bought 10 mule colts, $57 each, which he kept from a year and a half to two years, and sold for from $125 to $175 per head. He bought 55 or 57 calves at $14 per head, which went onto the farm. He shipped one car load of cattle and hogs, and one car load of cattle, hogs, and sheep. In 1902 he bought 140 calves at an average price of $21.25, out of which he at once sold 40 heifer calves; and shipped two car loads of cattle and a car load of sheep, hogs, and cattle. He also purchased 80 shoats (some of his hogs died of cholera); 3 mules of Guyton & Harrington, 3 from Jack Hahn, 1 from Milt Gustin (one of which he traded to one Black for a pair, paying $155 to boot), and 2 mules bought in Kansas City, for the freight on which he drew his check on the Bank of Dearborn, and which cost $400. The probable estimate of the cost of the 10 mules would be in the neighborhood of $1,500. He also had about 100 head of Hereford and Black yearling steers, mortgaged October 31, 1902. These were probably calves in 1901, but he testifies that he only bought 55 or 57 calves that year, leaving it inferable that he 132 F.-6 must have purchased somewhere about 40 or 43 not accounted for as yearlings in 1902; and it is inferable that they were paid for with the proceeds of the mortgage of $2,860 which covered them. It does seem to me, in view of the conspicuous, controlling facts in this record, that the defendant's case is brought within the rule given by the court, supra, that where "one's occupation or business which is of principal concern to him, not ephemeral, but of some degree of permanency, and on which he mainly relies for his livelihood and financial welfare, be other than farming, he is not 'a person engaged chiefly in farming.' Beyond question the defendant's energies of body and mind and his time were principally devoted to the matter of buying and marketing live stock as the chief source of his livelihood, and to which he chiefly looked for financial success. When he rented lands, it was solely to get more pasture for the stock he was buying and preparing for market. His crops cultivated bore comparatively little relation, in proportion, to the amount he bought for his feeders. The great bulk of his indebtedness was for moneys borrowed for his cattle speculation. That was his permanent, specific business. His farming was merely auxiliary-the incident, and not the principal thing. Banks and others loaning him money gave him credit on his cattle, and took mortgages thereon. His preferred creditors, whose chattel mortgages are involved in this controversy, were secured on the live stock he purchased. To hold such a debtor, with his lands all covered by mortgages, owing $40,000 growing out of buying and feeding live stock, is chiefly engaged in farming, it does seem to me would be to yield to a sentiment, rather than the spirit of the bankrupt act, which is designed to secure equality among creditors. Where such a debtor seeks protection under the exemption of the statute, he should present tangible, reliable evidence to bring himself within the exception. This the defendant failed to do to the satisfaction of the court. It results that the petition to have the defendant adjudged a bankrupt should be sustained. UNITED STATES v. CHURCHYARD et al. SAME v. FIDELITY & DEPOSIT CO. OF MARYLAND. SAME v. UNITED (Circuit Court, D. Rhode Island. August 17, 1904.) 1. FEDERAL COURT-JURISDICTION-ACTION ON CONTRACTORS' BOND. At Law. On motions to dismiss for want of jurisdiction. Edward D. Bassett, for Burrows & Kenyon. Darius Baker, for Swinburne, Peckham & Co. Wm. B. Greenough, for Fidelity & Deposit Co. of Maryland. Edwards & Angell and James E. Smith, for United States Fidelity & Guaranty Co. BROWN, District Judge. These actions of debt are brought in the name of the United States on bonds given by Churchyard, a contractor. In each case the beneficial or use plaintiff is a person who furnished labor or materials of less than $2,000 in value for public works of the United States. The plaintiffs rely upon the act of Congress of August 13, 1894, c. 280, § 1, 28 Stat. 278 [U. S. Comp. St. 1901, p. 2523], entitled "An act for the protection of persons furnishing materials and labor for the construction of public works." Churchyard's bond to the United States conformed to that act. A breach of the condition "to promptly make payments to all persons supplying him with labor and material in the prosecution of the work" is assigned. Unless this is a controversy "in which the United States are plaintiffs," or unless the said act confers jurisdiction where the amount is less than $2,000, the motions to dismiss must be granted, for all other statutory provisions are coupled with the requirement of a jurisdictional amount larger than is involved in any one of these cases. The defendants rely chiefly upon the decisions in United States v. Henderlong (C. C.) 102 Fed. 2, and United States v. Sheridan (C. C.) 119 Fed. 236. In the first case it was held that: "The United States are neither the legal nor equitable plaintiffs in the present action. They are seeking no remedy for any injury to, or for the withholding of, any of their rights; nor have they any equitable right to or interest in the thing sued for. They have neither the legal right of action nor any equitable interest in the matter in controversy. The United States are simply a formal or modal party; a mere name, used for convenience only." It was also stated: "No reason is perceived why the courts of the United States should take cognizance of the suits of laborers and materialmen, unless the citizenship of the parties and the amount involved in the controversy are such as would give jurisdiction as in the case of other suitors. These views find support in the decisions of the Supreme Court in Browne v. Strode, 5 Cranch, 303 [3 L. Ed. 108]; McNutt v. Bland, 2 How. 9 [11 L. Ed. 159]; Walden v. Skinner, 101 U. S. 577, 588, 589 [25 L. Ed. 963]." The action was dismissed for lack of jurisdiction. In United States v. Sheridan (C. C.) 119 Fed. 236, 239, it was said: "But can it be maintained that Congress, by permitting private litigants, under certain circumstances stated in the act, to use the name of the United States in their suits on the bond, intended thereby also to enlarge the jurisdiction of the federal courts by providing that the use of the name of the United States by such litigant should mean that such cases were to be included among those of which federal courts were given jurisdiction, upon the ground that the 'United Stated sued as plaintiff' within the meaning of the Judiciary act, when in fact the United States did not, in any essential sense, sue at all, and had no kind of legal interest in the claim asserted by the real party, to wit, the materialman? It seems to me not." It was held that, in order to maintain jurisdiction in a case of this character, the amount claimed, exclusive of interest, and costs, should exceed the sum of $2,000. There are many decisions of the Supreme Court to the effect that in determining whether a case is truly a controversy between citizens of different states the substantial, rather than the formal, parties should be regarded. In Stewart v. Baltimore & Ohio Ry. Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537, it was said: "For the purposes of jurisdiction in the federal courts, regard is had to the real, rather than to the nominal, party." United States v. Beebe, 127 U. S. 338, 8 Sup. Ct. 1083, 32 L. Ed. 121, is also an illustration of this principle. In that case it was held that the Attorney General has authority to file a bill in equity in the name of the United States to set aside a patent of public land alleged to have been obtained by fraud or mistake, where the government has a direct interest in the tract patented, or is under an obligation respecting the relief invoked by the bill. But the court also said (page 346, 127 U. S., page 1088, 8 Sup. Ct., 32 L. Ed. 121): "An inspection of the record shows that the government, though in name the complainant, is not the real contesting party to the title or property in the land in controversy. It has no interest in the suit, and has nothing to gain from the relief prayed for, and nothing to lose if relief is denied." For this reason, though jurisdiction was retained, it was held that the complainants could not invoke the rule that the United States are not bound by statutes of limitations, nor barred by laches. In United States v. Bell Telephone Co., 167 U. S. 224, 17 Sup. Ct. 809, 42 L. Ed. 144, it was said (pages 264, 265, 167 U. S., page 820, 17 Sup. Ct., 42 L. Ed. 144): "Suits may be maintained by the government in its own courts to set aside one of its patents not only when it has a proprietary and pecuniary interest in the result, but also when it is necessary in order to enable it to discharge its obligations to the public, and sometimes when the purpose and effect are simply to enforce the rights of an individual. Now, in the case at bar the United States has no proprietary or pecuniary interest. The result, if favorable to it, would put no money in its treasury or property in its possession. It has a standing in court either in the discharge of its obligation to protect the public against a monopoly it has wrongfully created, or simply because it owes a duty to other patentees to secure to them the full enjoyment of the rights which it has conferred by its patents to them. Perhaps both of these objects were in view. In so far as the latter was and is the purpose of this suit, it brings it within the rule laid down in United States v. Beebe, supra." From these and other decisions it is apparent that the question whether the United States is a party is not dependent merely upon pecuniary interest. See, also, In re Debs, 158 U. S. 584, 586, 15 Sup. Ct. 900, 39 L. Ed. 1092. What is the nature of the interest of the United States in the actions provided for by the act? In United States v. Sheridan (C. C.) 119 Fed. 236, 239, it was said: "It is true that the act of August 13, 1894, c. 280, § 1, 28 Stat. 278 [U. S. Comp. St. 1901, p. 2523], was enacted for beneficial purposes, and possibly those benefits to a certain extent may extend to the United States in making more certain and prompt the obtaining of materials and labor by contractors upon public works who have given the bond with surety upon which outside parties can rely; but it is apparent that those benefits to the United States are quite incidental, if not speculative. The real purpose of the legislation was obviously to provide a guaranty of payment to laborers and materialmen through the medium of the bond required, inasmuch as they could not, without permission of the government, acquire any lien upon works of public improvement." The probable object of the act of Congress was to provide an equivalent or substitute for the familiar legislation for the protection of laborers and materialmen. See Standard Oil Co. v. Trust Co., 21 App Cas. D. C. 369, 375. The general nature of this kind of legislation is set forth in the able opinion of Judge Lurton in Jones v. Great Southern Fireproof Hotel Co., 86 Fed. 370, 383, 30 C. C. A. 108, cited with approval in Great Southern Fireproof Hotel Co. v. Jones, 193 U. S. 532, 549, 550, 24 Sup. Ct. 576, 48 L. Ed. 778. The justification for legislation by Congress upon this subject must be that, as a builder of public works, it is entitled to provide that those persons who incorporate their labor and materials into public works shall receive protection. It hardly can be doubted that Congress might have provided for a contract between the government and the contractor for public works which would give to the government the right to withhold the contract price until the satisfaction of claims for labor and material, or permit the United States to pay directly the laborers and materialmen in case of default by the contractor. Redfield v. Windom, 137 U. S. 636, 11 Sup. Ct. 197, 34 L. Ed. 811. Provisions of this general character must be regarded as sanctioned "by the dictates of natural justice." Great Southern Fireproof Hotel Co. v. Jones, 193 U. S. 532, 549, 24 Sup. Ct. 576, 48 L. Ed. 778. If it is competent for Congress to provide for such protection by requiring from the contractor a contract with the United States, and by permitting the laborer or materialman to avail himself of this contract (as I assume, since the validity of the act is not questioned), is it not also competent for Congress to permit the laborer or materialman to avail himself of the status of the United States as a suitor in the United States courts, and to maintain suit irrespective of the amount involved, and is it not reasonable to suppose that this was the intent? I cannot agree with the statement in United States v. Henderlong, supra, that the United States is not the legal plaintiff in this action. The contract is, in the strictest sense, a contract between the United States and the contractor for public works. The defendant has bound himself to the United States to the amount of the penal sum of the bond. The penalty is defeasible upon two conditions: First, that the contractor shall do his work; second, that he shall pay his laborers and materialmen. These are actions of debt, upon which ordinarily judgment is rendered for the penal sum, to be discharged upon payment of the amount of damages. Farni v. Tesson, 1 Black, 309, 17 L. Ed. 67; 3 Am. & Eng. Enc. Pl. & Pr. 670. That laborers and materialmen are authorized to institute an action does not alter the legal status of the contract, or change the legal parties to the contract. A failure to pay laborers and materialmen is a breach of an obligation to the United States assumed by the contractor under the requirement of an act of Congress. It was the apparent intent |