dence relied upon as defense was not attributable to his own want of diligence. Ib.
4. Enjoining enforcement; when defense not deemed newly discovered. For the purpose of equity restraining the enforcement of a judgment at law, a defense is not deemed to be newly discovered or to have been lost by accident or mistake, if it was, or ought to have been, within the knowledge of the party when he made his defense to the action at law. Ib.
5. Enjoining enforcement; when defense of justification in libel suit not deemed newly discovered.
A defendant in a libel suit who deliberately abstained from defending by justification of the charges, cannot, after verdict and judgment against him, come into equity and seek to restrain the enforcement of the judgment on the ground of newly discovered evidence tending to prove the truth of the charges. Ib.
6. Foreign; determination of effect of.
Where a judgment of the court of another State is set up as a bar, the effect of that judgment in the courts of the State which ren- dered it is a question of fact to be determined by the court in which it is set up. Bigelow v. Old Dominion Copper Co., 111.
7. Privity of joint tort-feasors.
The privity that exists between a stockholder and the corporation that makes a judgment against the corporation conclusive as against the stockholder does not exist as between joint tort-feasors. Han- cock National Bank v. Farnum, 176 U. S. 640, distinguished. Ib. See CONSTITUTIONAL LAW, 19-24; HABEAS CORPUS, 3;
1. Under § 709, Rev. Stat.; record and not certificate must show constitu- tional question set up and denied.
To give this court jurisdiction under § 709, Rev. Stat., it must appear
upon the record, and not by certificate of the judge, that a right under the Constitution or laws of the United States was set up and denied. While such a certificate may make more certain the fact that the Federal right was asserted and denied, it is insufficient to confer jurisdiction if the record itself does not show the fact. (Louisville & Nashville R. R. v. Smith, 204 U. S. 551.) Seaboard Air Line Ry. v. Duvall, 477.
2. Under § 709, Rev. Stat.; when claim based on Federal statute suffi- ciently set up.
The fact that a case in the state court asserts a claim based on a Federal
statute, does not give this court jurisdiction to review the judg- ment under § 709, Rev. Stat., if none of the exceptions are based on the refusal of the court to make a definite construction of the act as requested by the plaintiff in error. Ib.
3. Under § 709, Rev. Stat.; scope of review.
Where the case comes up under § 709, Rev. Stat., this court is not one of general review. It can reëxamine only those rulings which denied Federal rights specially set up. Ib.
4. Under 709, Rev. Stat., duty of counsel in setting up claim of Federal right.
It is the duty of counsel asking in the state court for a particular con-
struction of a Federal statute involved in the case to put the re- quest in such definite terms that the record will show that it was a claim of Federal right specially set up as required by § 709 in order to give this court jurisdiction. Ib.
5. Under 709, Rev. Stat.; when right under Federal statute sufficiently
set up. Where the only defense to an action for personal injuries by an em-
ployé of an interstate railway carrier is contributory negligence on the part of the plaintiff in going into a car in violation of a rule requiring him to remain in another car, no construction of the pro- vision of the Employers' Liability Act that the employé can only recover if injured while employed by the carrier is involved which is reviewable by this court, unless the request is definitely set up as a Federal right specially asserted and denied. Ib.
6. Under § 709, Rev. Stat.; when right under Federal statute sufficiently set up.
Excepting to a part of the charge by saying that an employé's going
from the baggage car into the express car of a train is such an act that a reasonably prudent man would not have done under the circumstances does not raise specific questions as to the construc- tion of the Employers' Liability Act under which the action was brought and give this court jurisdiction to review under § 709, Rev. Stat. Ib.
7. Of appeal from Circuit Court of Appeals; when judgment of that court not final. Where the petition of the receiver, appointed in a case dependent on
diverse citizenship, invokes the jurisdiction of the Circuit Court not only as ancillary to the receivership but also to protect the estate on grounds involving alleged infractions of the Federal Constitution and rights secured thereby, the case is not one in which the judgment of the Circuit Court of Appeals is made final by the act of 1891, and an appeal lies to this court where the amount in controversy exceeds one thousand dollars. Ohio Rail- road Commission v. Worthington, 101.
8. Of appeal from Circuit Court of Appeals; time for taking. Where the jurisdiction of the Circuit Court is invoked not solely on the ground of diverse citizenship but also because the case is one arising under an act of Congress, an appeal lies from the Circuit Court of Appeals to this court, and by § 6 of the act of 1891 the time within which to take the appeal is one year; the limitation of thirty days under § 7 applies only to appeals to the Circuit Court of Appeals from the Circuit Court. United States Fidelity Co. v. Bray, 205.
9. Of direct appeal from Circuit Court; effect of dismissal of bill for failure to prove existence of property.
Where the jurisdiction of the Circuit Court is dependent, under § 8 of
the act of 1875, upon property affected being within the jurisdic- tion, the defendants not being therein, the fact that the bill was dismissed because complainants failed to prove the existence of any property within the jurisdiction does not affect the right of a direct appeal to this court under § 5 of the act of 1891. Chase v. Wetzlar, 79.
10. Of direct appeal from Circuit Court; jurisdictional and constitutional questions involved.
In this case held, that the Circuit Court in taking jurisdiction and de- ciding the cause on the merits, notwithstanding there was a partial demurrer to the jurisdiction, maintained its power and jurisdiction as a Circuit Court, and also necessarily decided questions arising
under the Constitution expressly alleged in the bill. Mississippi Railroad Commission v. Louisville & Nashville R. R. Co., 272.
11. Of direct appeal under § 5 of act of 1891; phase of jurisdiction of Federal court to give.
Under § 5 of the act of 1891, the jurisdiction of the Federal court as such must be involved. The direct writ will not lie if the question is one which might arise in a court of general jurisdiction, such as insufficiency of the pleadings. Darnell v. Illinois Central R. R. Co., 243.
12. Of direct appeal under § 5 of act of 1891; when necessary question of jurisdiction of Federal court involved. Whether plaintiff's declaration in a case for reparation for excessive rates is sufficient without an averment of previous action by the Interstate Commerce Commission is a question which would arise in any court, state or Federal, in which the case was brought and does not go to the jurisdiction of the Federal court as such; a direct writ of error therefore will not lie from this court under § 5 of the Court of Appeals Act of 1891. Ib.
13. Under Judiciary Act of 1891; effect of saving clause of act of June 7, 1878.
Under the saving clause of the act of June 7, 1878, 20 Stat. 99, c. 160, the review of the order in this case was not provided for by the Judiciary Act of 1891. Kyle v. Hammond, 692.
14. To review judgment of state court under § 709, Rev. Stat.; § 237, Judicial Code.
Where defendant sets up the claim that it enjoys right or privilege sought to be enjoined under authority of an act of Congress and the state court denies the right, the judgment is reviewable here under § 237 of the new Judicial Code (§ 709, Rev. Stat.). Creswill v. Knights of Pythias, 246.
15. Of suit attacking constitutionality of state statute where general de- murrer for want of equity sustained. Where appellant, as complainant below, attacked as unconstitutional a state statute under which the sale of his product was interfered with by the state officer enforcing the statute, and a general de- murrer for want of equity is sustained, this court has jurisdiction of the appeal; nor will the appeal be dismissed because the bill in one of its allegations asserted that complainant's product was not one of those specified in the act, if, as in this case, the bill also
alleged that the proper state officer had construed the statute as applicable thereto. Savage v. Jones, 501.
B. OF CIRCUIT COURTS OF APPEALS.
1. Effect of right of direct appeal to this court.
Where the case can be taken to the Circuit Court of Appeals, the fact that it involves grounds that warrant a direct appeal to this court does not deprive the Circuit Court of Appeals of jurisdiction. Ohio Railroad Commission v. Worthington, 101.
2. Of appeals from interlocutory decrees of Circuit Court.
Section 7 of the Court of Appeals Act of 1891, as amended April 14, 1906, 34 Stat. 116, c. 2627, provides for an appeal to the Circuit Court of Appeals from certain interlocutory decrees of the Circuit Court, and in this respect establishes an exception to the general rule in Federal courts that an appeal lies only from a final decree. United States Fidelity Co. v. Bray, 205.
3. Intervention; finality of decree.
Where a petition of intervention is entertained and disposed of in virtue of jurisdiction already invoked, if the decree of the Circuit Court of Appeals is final in respect of the original suit, it is equally so in respect of the intervention. Shulthis v. McDougal, 561.
4. Finality of judgment in case involving conflicting claims to allotted lands in Creek Nation.
In this case held, that as the jurisdiction of the Circuit Court depended solely upon diverse citizenship, the judgment of the Circuit Court of Appeals was final; and, notwithstanding the case involved con- flicting claims to allotted lands in the Creek Nation, it was not one arising under the laws of the United States. Ib.
1. Over bankruptcy matters. The Circuit Court cannot entertain a bill in equity which invokes a reconsideration of the referee's order allowing claims as preferred and of determinations of the bankruptcy court as to rights of holders of claims and as to charges that the trustee was speculating in claims; those matters are for the bankruptcy court and fall within its exclusive jurisdiction; nor can it surrender its control thereover or confide them to another tribunal. United States Fidelity Co. v. Bray, 205.
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