about the farm then belonging to him. To his executors he gives, in trust, $15,000, which they are to invest and keep invested during her life, and pay her the income thereof not exceeding $1,000 per annum. He then directs that after her death the farm and the $15,000 shall "revert" to his executors and "be disposed of by them in the same manner as the rest and residue of his estate thereinafter mentioned." He next gives to his executors, in trust for the benefit of his heirs at law, his sons, Thomas, Robert, George and William, land in Westchester county, New York, and leaseholds in the city of New York, with power to convert them into money at any time before the estate shall be divided, and whenever in their judgment the estate will be benefited by the sale. He then gives to his executors, in trust for the benefit of "said heirs at law" (his sons), all and singular the rest and residue of his estate, "both real and personal, consisting of bonds, stocks, notes and money and other securities," and declares that it is his will that his estate shall not be divided or the heirs be paid their respective shares thereof until the youngest of them shall have attained the age of twenty-five years; and he further directs that upon the arrival of the youngest of them at that age, the estate shall then be divided among them in equal shares. He also directs that until such division or distribution shall take place, the executors invest and keep invested the money of the estate and accumulate it, and adds that they are not to pay away any portion of it except in the case of the illness or death of any of his "said heirs at law," in which event they are to have power to make such disbursements as in their discretion the emergency may require. He also provides that in case any of his "said heirs" shall die before the division of the estate shall take place, the share of such decedent shall, if he be married and have issue, go to the issue; but if no issue, then the decedent's wife shall receive her dower out of said share, and the rest and residue shall revert to the surviving heirs."

The questions submitted for decision are whether the executors have power to sell the farm; and if so, whether they can execute the power before the death of the widow, she being desirous that the sale be made and being willing to join with them in the conveyance or to convey or release her estate to them or the purchaser.

The testator intended to give his wife, for life, the farm (with remainder in fee to the executors) and $1,000 a year of the interest of $15,000; the rest of his property (except of course the $15,000) to go to his ex. ecutors, to be converted by them into cash and invested for the benefit of his children, and to be equally divided among the latter when the youngest should have attained to the age of twenty-five years. At the death of the widow, whether before or after the youngest child should have reached the age of twentyfive years, the $15,000 and the farm were to be disposed of in like manner with the rest of the estate.

་་

The executors undoubtedly have power to sell the farm. The will provides that after the decease of the testator's widow that property is to "revert to the executors and be disposed of by them in the same manner as the rest and residue of the estate thereinafter mentioned. It then gives to the executors the land and leaseholds in New York, with express power of sale. This is followed by the gift to them, in trust, for the benefit of the testator's children, of all the rest and residue of his estate, both real and personal. The gift of the New York property and the residue is for the purpose of enabling the executors to take care of, invest and accumulate those parts of the estate and divide them when the time of distribution arrives. The gift is unqualified, except by the trust. Moreover it is of personal and real estate blended together,

to be divided and paid over in shares, and in the meantime to be invested for accumulation.

Where an executor is directed by the will or bound by law to see to the application of the proceeds of the sale, and no direction is given as to the person by whom sale is to be made, or if the proceeds of sale in the disposition are mixed up and blended with the personalty-which it is the duty of the executor to dispose of and pay over-then a power of sale is conferred by implication. Lippincott v. Lippincott, 4 C. E. Gr. 121. There can be no doubt that the executors have power to sell the farm, and I am of opinion, that with the consent of the widow, and on her releasing to them or to the purchaser her life estate, or joining with the executors in their conveyance of the property, they may lawfully convey the farm at once. The will provides that after the widow's death the farm shall "revert "to them, and be disposed of by them in the same manner as the rest and residue of the estate thereinafter mentioned. The intention of the testator, in this provision, was to give to the executors the remainder in fee. And he intended that after the termination of his wife's life estate, whether by death or otherwise, the property should go to them. There is no evidence of any intention, on his part, that it shall be held unsold until after her death, for any rea son, whether prospective rise in value, benefit of infant children or any thing else. The possibility that the widow might desire to part with her interest in the property before her death was not contemplated by him, and it seems clear that had he contemplated it, he would have provided for the sale of the property by the executors and her together, or by them with her consent.

In Uvedale v. Uvedale, 3 Atk. 117, where a testator, by his will, directed that his wife should have the rents, etc., of certain lands for her life, and directed that after her death the property be sold, Lord Hardwicke said that the words, "after her death," were not put in to postpone the sale, and directed that the sale be made. See also Co. Litt. 113 a note; 8 Vin. Abr. 466, 469; Sug. on Powers, 349, 350.

In Gast v. Porter, 13 Penn. St. 533, it was held that a power given to executors to sell at the death of the widow was well executed, if the widow, for whose benefit the sale was postponed, joined as one of the executors in the deed, and that the fee would pass to the purchaser. The decision was put on the ground that the intention of the testator governed the case, and made it an exception to the general rule, that a devise to executors to sell on a contingency cannot be executed until the contingency happens. And so too in Styer v. Freas, 15 Penn. St. 339. Mr. Ram, in his work on Assets, says: "The rule to be deduced from the cases is that where the property which is the subject of the power of sale is devised for life, the time for sale will depend on the intention to be collected from the whole will; and so far as the particular words may not be governed by the context in the will, on the weight due to the authorities, grounded on the same or similar expressions, and consequently the time for sale may be either before or after the death of the tenant for life, according to the circumstances of the particular case." Ram on Assets, 108.

In the case under consideration the testator gives a life estate to his wife with remainder in fee to his executors, and directs (substantially) that after her death they convert the property into cash to divide it among his children. Here is not a mere power of sale, but a gift of the property to the executors in fee, subject to the life estate. The widow wishes to remove from the farm and desires to have it sold, if possible, and for that purpose is willing to relinquish her life estate and to convey it to the executors or to the purchaser, or any one else, in order to make a clear title

to the property. George Snell is dead. He died since the testator's death. He was never married and left no will. Thomas and William are both past the age of twenty-five years. The former is thirty-eight and the latter twenty-seven. Robert left his home in 1871 and has never since (a period of about thirteen years) been heard from, although much effort has been made to obtain tidings of him. He was then unmarried. If living, he is now about thirty-four years old. Thomas Snell and Maltby G. Lane are the executors. They are desirous of selling the property. A price is offered for it, which in their judgment, and in that of William also, is a good one, and they and he think it would be advantageous to all persons interested to sell it at that price. In my judgment, the executors, with the consent of the widow and her release of her life estate, have power to sell the property now.

NOTE. The general rule, that where a power of sale is to be exercised at a specified time, its attempted execution before then is invalid, has been recognized in this State in Booraem v. Wells, 4 C. E. Gr. 87; Hampton v. Nicholson, 8 id. 423.

In Ismam v. Del., Lack. & West. R. Co., 3 Stockt. 227, lands were conveyed in 1834, in trust to be leased until 1840, and then to be sold, and the proceeds invested, and the interest therefrom paid to the grantor's sisters, A. and S., for life, and to their children after their death, until the youngest child should be twenty-one, and then the principal to be divided among said children per capita. In 1836, before A. and S. had married, they with the trustee reconveyed the lands to the original grantor. A. and S. afterward married, and in 1856, both had children. Held, that the reconveyance in 1836 was void, but capable of confirmation by the trustee after 1840. See Hetzel v. Barber, 69 N. Y. 1.

In Fairly v. Kline, Penn. *754, lands were devised, in 1785, to testator's wife for life or widowhood, and then power was given to the executor to sell and divide the proceeds among testator's children, equally. In 1797 the executor sold the lands, with the widow's consent, and paid over the proceeds to the surviving children, who paid the widow £5 each annually until her death, in 1801. No question as to the validity of the executor's sale was raised, as the case turned on another point.

In Meyrick v. Coutts, 1 Sug. on Powers, *335 [*350], under a devise to testator's wife for life, and after her decease a power to trustee to sell and to pay the money among the children of B., who had an infant child then living, a bill by the widow against the trustees and infant for an immediate sale was after two arguments dismissed.

A

In Smith v. Great Northern R. Co., 23 W. R. 126, a testator gave to his wife the personal use of a leasehold messuage for her life, and if she should not think fit to reside therein, the premises should form part of his residuary estate. He then directed the conversion of his real estate, with power in his executors to postpone such conversion. Under the trusts of the residue, the widow took one-fourth of the income. railway company having taken the premises, under its compulsory powers, while the widow was in occupation, made an agreement with her as to her interest, and a separate agreement with the trustees. Held, that although the house, subject to the interest of the widow, was part of the residuary estate, it would not be a proper exercise of the executor's trust to sell during the continuance of the widow's occupation.

In Mosley v. Hide, 17 Q. B. 91, lands were conveyed to trustees, to the use, after the husband's death, of his wife for life, and ou trust upon her death, to sell and divide the purchase-money among the children of the marriage on their respectively attaining twenty

one.

E. and M. were the children, and after they had attained twenty-one, and the husband had died, the trustees, during the wife's life-time, sold the lands. Held, that the sale was void. See Cox v. Day,14 East, 118.

In Want v. Stallibrass, L. R., 8 Exch. 175; 5 Eng. Rep. 363, vendors sold as trustees under a will which devised the estate to them on trust to pay the income to F. S. for life, and thereafter to sell the estate and hold the proceeds "upon the trusts for the children of F. S.; " and it was further stated by counsel that F. S. would join in conveying the property. The trusts for the children were that the proceeds should be paid to those who were living at testator's death, to be paid to them at twenty-one, or if daughters, at twenty-one, or on marriage. All of said children were over twentyone at the time of the sale. Held, that specific performance would not be decreed.

In Henry v. Simpson, 19 Grant's Ch. 522, a testator gave to his wife during her life all the rents and issues of his property for her sole use; then that his property should be divided into three shares-one to his wife, one to his daughter M., and one to his daughter E.; that M. should have her portion after her mother's death, and should invest it for the benefit of her children; that E. should have one-half of her portion absolutely, and the interest of the other half for her life, and that then this half should go to M.'s children, unless E. had a child, and if so, to E.'s child. The wife and daughters were executrixes. Held, that the lands could not be sold during the life-time of the wife even with her consent.

In Davis v. Howcott, 1 Dev. & Bat. Eq. 460, there was a devise of the use of certain lands to testator's widow during the term of her natural life, and after her death said lands were to be sold by the executors and the proceeds of the sale divided among testator's four children or their survivors. The widow and executors, by order of the court, on their joint petition sold the lands, and no part of the purchase-money ever came to the use of the children. Held, that their legal title to the land, after the widow's death, was not barred.

In Jackson v. Ligon, 3 Leigh, 161, power to sell lands was given to an executor after the death or marriage of testator's wife, for whom he made provision in his will. The wife renounced those provisions, and the executor sold thereafter, while she was living and unmarried, aud his sale was held void.

In Rope v. Sanders, 21 Gratt. 60,under a similar will, dower was assigned to the widow after her renunciation, and she subsequently joined with the executor in selling the devised lands. Held, that the executor had no power to sell during her widowhood; and held further that the court could set aside the sale, so far as made by the executor, and confirm it, so far as made by the widow.

In Hall v. McLaughlin, 2 Bradf. 107, testator devised certain property to his wife during her widowhood until his youngest son should arrive at age, when he directed it to be sold by his executors and the proceeds divided. The widow died before the youngest son attained twenty-one. A petition by one of those entitled to the proceeds of the land when sold, to compel the executor to sell, was dismissed. Quære, Under such circumstances, who is entitled between the death of the widow and the time when the youngest son attains twenty-one? See Levet v. Needham, 2 Vern. 138; Mansfield v. Dugard, 1 Eq. Cas. Abr. 195; Carter v. Church, 1 Ch. Cas. 113; Boraston's case, 3 Co. 19; Lomax v. Holmeden, 3 P. Wms. 176; Coates v. Needham, 2 Vern. 65; Castle v. Eate, 7 Beav. 296; Laxton v. Eedle, 19 id. 321; Green v. Tribe, 38 L. T. (N. S.) 914; Simpson v. Cook, 24 Minn. 180; Williams v. Murrell, L. R., 23 Ch. Div. 360.

In Sutherland v. Northmore, 1 Dick. 56, a feme covert had a power under her marriage settlement, to create a term and to raise money after the death of her husband. Her execution thereof during her husband's life-time was, on the case being sent to the King's Bench, held to be good; and this holding the Court of Chancery confirmed. See Wandesforde v. Carrick, L. R., 5 Irish Eq. 486.

In Duke v. Palmer, 10 Rich. Eq. 380, a testator appointed his wife and son executors, and gave to his wife several slaves during her life, and at her death to be sold and equally divided among his lawful heirs. The son alone qualified as executor, and afterward with his mother's co-operation, sold one of the slaves for a full consideration. The mother survived eleven years thereafter. Held, that one of testator's heirs could not, after the mother's death, set aside the sale as against a bona fide purchaser of the slave from the original purchaser, but that his only remedy was against the executor for the proceeds of the sale.

In Bazemore v. Davis, 48 Ga. 339, lands were held in trust for A. for life, and at her death to her children. The trustee sold and conveyed the whole estate, as trustee, A. entering on the deed a written consent to its execution. Held, that A. did not thereby forfeit her life estate in the premises, so that a right of action immediately accrued to the remaindermen. See also Champlin v. Champlin, 3 Edw. Ch. 571; Styer's Appeal, 2 Grant's Cas. 453; Loomis v. McClintock, 10 Watts, 274; Bartles' case, 6 Stew. Eq. 46; Greene v. Aborn, 10 R. I. 10.

The court has no jurisdiction to order a sale before the time designated in the power, on the ground that it would be beneficial to the parties, Johnstone v. Baker, 8 Beav. 233; Bristow v. Skirrow, 27 id. 590; Blacklow v. Laws, 2 Hare, 40; Troy v. Troy, Busb. Eq. 85; Simpson v. Cook, 24 Minn. 180; 27 id. 147; nor the Legislature, Rodman v. Munson, 13 Barb. 63; Ervine's Appeal, 16 Penn. St. 256; see Clarke v. Hayes, 9 Gray, 426; Mohr v. Porter, 51 Wis. 504; Forster v. Forster, 129 Mass. 564; Cooley's Const. Lim. (4th ed.) *97.-J. H. STEWART REP.

[See also 17 Am. Rep. 709; 13 id. 23; 25 Eng. Rep. 792.]

UNITED STATES CIRCUIT AND DISTRICT

COURT ABSTRACT.*

MORTGAGE-COVENANTS-AFTER-ACQUIRED TITLEMARRIED WOMAN-CAPACITY TO CONTRACT-RULE OF PROPERTY-FOLLOWING STATE COURTS.-A mortgage containing covenants of general warranty will, as between the mortgagor and mortgagee, pass an after-acquired title. Rice v. Kelso, 7 N. W. Rep. 3; 10 id. 335; Jones Mort., §§ 561. 682, 825, and cases cited. But this rule does not apply to covenants in the deed of a married woman, for they amount to nothing more than a release of dower,and do not estop her to claim an afteracquired interest. Bish. Mar. Wom., § 603; Childs v. McChesney, 20 Iowa, 431; Iowa Code, § 1937. There is upon the face of the mortgage no express statement that the wife shall be bound by the covenants contained therein. O'Neil v. Vanderburg, 25 Iowa, 104; Thompson v. Merrill, 10 N. W. Rep. 796. In order to set aside a contract upon the ground of unsoundness of mind it must appear that there was a total deprivation of reason. Ex parte Barnsley, Atk. 168; Stewart's Ex'r v. Lispenard, 26 Wend. 255. The more modern rule is that it is only necessary to show that the party executing the contract was of such weak and feeble mind as to be incapable of comprehending its nature. This rule is sometimes stated in another form, thus: *Appearing in 20 Federal Reporter.

"To constitute such unsoundness of mind as should avoid a deed at law the person executing such deed must be incapable of understanding and acting in the ordinary affairs of life." This statement of the rule is given in the opinion of the House of Lords in Ball v. Mannin, 1 Dow. & C. 380, and is quoted with apparent approval by the Supreme Court of the United States in Dexter v. Hall, 15 Wall. 9. In the former of these cases the court below refused to charge that the unsoundness of mind must amount to idiocy; and this ruling was sustained first by the Court of King's Bench in Ireland, afterward by the Exchequer Chamber, and finally by the House of Lords. The rule is thus stated in Dennett v. Dennett, 44 N. H. 531: "The question. then in all cases where incapacity to contract from de fect of mind is alleged, is not whether the person's mind is impaired, nor if he is affected by any form of insanity, but whether the powers of his mind have been so far affected by his disease as to render him incapable of transacting business like that in question." And again: "Every person is to be deemed of unsound mind who has lost his memory and understanding by old age, sickness or other accident, so as to render him incapable of transacting his business and of managing his property. When it appears that a grantor has not strength of mind and reason to understand the nature and consequences of his act in making a deed, it may be avoided on the ground of insanity." Re Barker, 2 Johns. Ch. 232. In Converse v. Converse, 21 Vt. 168, it is said that a person is of unsound mind if "the mind is inert, the memory is unable to recall and the mind to retain in one view all the facts upon which the judgment is to be formed for so long a time as may be required for their due consideration." The rule as to the responsibility of a lunatic or person non compos mentis upon his contracts, is the same in equity as in law; and if this court is bound to follow the ruling in Dexter v. Hall it is conclusive of the question now under consideration. It is insisted however that a different doctrine has been established in this State by several decisions of its Supreme Court, and that these decisions constitute a rule of property here, which this court should adhere to. It is true that the Supreme Court of this State has held that "equity will not interfere to set aside a conveyance, on the ground of the insanity of the grantor, to one who shall have purchased in good faith, and for value, in ignorance of the mental condition of the grantor,' Ashcraft v. De Armond, 44 Iowa, 229. And also that "persons of unsound mind will be bound by their executed contracts, where such contracts are fair and reasonable, and were entered into by the other parties without knowledge of the mental unsoundness, in the ordinary course of business, and where the parties cannot be placed in statu quo." Abbott v. Creal, 56 Iowa, 175; S. C., 9 N. W. Rep. 115. And see, to the same effect, Behrens v. McKenzie, 23 Iowa, 333. These cases undoubtedly hold a different doctrine from that laid down in Dexter v. Hall; and the question is whether they establish a rule relating to land titles within the State of Iowa which this court should follow, notwithstanding a con trary decision by the Supreme Court of the United States. It is true that where any principle of law establishing a rule of real property has been settled in the State courts that rule will be applied by the Federal courts within the same State; and it makes no difference whether such rule of property grows out of the Constitution or statutes of the State, or out of the principles of the common law adopted and applied to such titles. Jackson v. Chew, 12 Wheat. 153. It may be doubted whether the question here presented is not a question of equity law, and if it is, this court is not bound by the decision of the State court. Nev es v. Scott, 13 How. 268; United States v. Howland,

*

the vessel from liability for loss occasioned by 'pirates, robbers, thieves, * * or from any act, neglect or default of the master or mariners." The defendant's vessel was a general ship, and a common carrier. The clause of the bill of lading exempting her from liability for any "act, neglect or default of the master or mariners" is therefore invalid, and affords no defense if the loss was occasioned through their negligence. Railroad Co. v. Lockwood, 17 Wall. 357; Bank of Kentucky v. Adams Express Co., 93 U. S. 174; The Hadji, 16 Fed. Rep. 861; 18 id. 459. It is not necessart to consider the conflicting views as to the ship's liability under the exception of "thieves, robbers," etc., that the theft had been committed by one of her own employees (Spinetti v. Atlas Steamship Co., 80 N. Y. 71; Taylor v. Liverpool, etc., L. R., 9 Q. B. 546), nor what effect, in the consideration of that question, should be given to the principles laid down by the Supreme Court in Railroad Co. v. Lockwood; since J., who is satisfactorily shown to have committed the theft, was not at this time in the ship's employ, but had been previously discharged. The exception of loss by thieves or robbers is valid, unless it be shown that there was negligence on the part of the ship which contributed to the theft or facilitated it; and upon defendant's proving that the theft was committed by a person not belonging to the ship, the burden of proof is upon the libellants to show to the satisfaction of the court that the loss might have been avoided by the exercise of reasonable and proper care on the part of the ship, and that the theft would not have occurred if such care had been exercised. If the carelessness of the ship was such as to invite the theft, or to make it easy, or if the attempt would not have been successful except through the lack of such watchfulness and care as was reasonably incumbent upon those having charge of such treasure, then the loss must be held to be occasioned by the carrier's negligence and inattention to his duty, as well as through the direct acts of the thief. In Clark v. Barnwell, 12 How. 272, 281, the court say: "But if it can be shown that it (the loss) might have been avoided by the use of proper precautionary measures, and that the usual and customary methods for this purpose have been neglected, they may still be held liable. It is competent for the libellants to show that the respondents might have prevented it (the loss) by proper skill and diligence in the discharge of their duties. In Transportation Co. v. Downer, 11 Wall. 129, 133, the court say: "If the danger might have been avoided by the exercise of proper care and skill on the part of the defendant, it is plain that the loss should be attributed to the negligence and inattention of the company, and it should be held liable, notwithstanding the exception in the bill of lading." See also Six Hundred and Thirty Quarter Casks of Sherry Wine, 14 Blatchf. 517; Dedekam v. Vose, 3 id. 44; Richards v. Hansen, 1 Fed. Rep. 54, 63; The Invincible, 1 Low. 225; The Montana, 17 Fed. Rep. 377. The Saratoga. Dist. Ct., S. D. N. Y., June, 1884. Opinion by Brown, J.

CORPORATION-NOTICE TO STOCKHOLDERS; NOT TO CORPORATION.-A corporation can have no agents until it is brought into existence, and after that it acts and becomes obligated only through the instrumentality of its authorized representatives. Stockholders cannot bind it except by their action at corporate meetings, and it is undoubted law that notice to individual stockholders is not notice to the corporation, and their knowledge of facts is not notice of them to the corporation. In re Carews, Act. 31 Beav. 39; Union Canal Co. v. Loyd, 4 Watts & S. 393; Fairfield Turnpike Co. v. Thorp, 13 Conn. 182; The Admiral, 8 Law Rep. (N. S.) Mass. 91. Instances may occur where associates combine together to create a

paper corporation, as a form or shield to cover a partnership or joint venture, and where the stockholders are partners in intention. The liberal facilities offered by the statutes of many of our States for organizing such corporations are undoubtedly often utilized by those whose only object is to escape liability as partners by calling themselves stockholders or directors. Where such a concern is formed, a court of equity might treat the associates as partners in fact, disregard the fiction of a corporate relation between them, and subject the title of the property transferred to it by the promoters to any equities which might have existed as against them. The general rule which charges a principal with the knowledge of his agent is founded on the presumption. that the agent will communicate what it is his principal's interest to know and the agent's duty to impart. In the language of Mr. Justice Bradley, the rule "is based on the principle of law that it is the agent's duty to communicate to his principal the knowledge which he has respecting the subject-matter of the negotiation, and the presumption that he will perform that duty." The Dis tilled Spirits, 11 Wall. 367. The rule has no application when an agent divests himself of his fiduciary character and becomes a contracting party with his principal, because there is no reason to presume that he will impart information which it is for his interest to suppress. "When a man is about to commit a fraud it is to be presumed that he will not disclose that circumstance to his colleagues." Kennedy v. Green, 3 Mylne & K. 699. Accordingly it has been repeatedly adjudged that a corporation will not be charged by the knowledge of a director in a transaction in which the director is acting for himself, because he represents his own interests, and not those of the corporation. Com. Bank v. Cunningham, 24 Pick. 270, 276; Housatonic & Lee Banks v. Martin, 1 Metc. 308; Winchester v. Balt. & S. R. Co., 4 Md. 239; Seneca Co. Bank v. Neass, 5 Denio, 337; La Farge Fire Ins. Co. v. Bell, 22 Barb. 54; Terrell v. Brauch Bank of Mobile, 12 Ala. (N. S.) 502. Cir. Ct., N. D. New York. Davis Imp. Wrought Iron W. W. Co. v. Davis Wrought Iron W. Co. Opinion by Wallace, J.

neces

JURISDICTION-U. S. COURTS - ESTOPPEL DENY AFTER REMOVAL.- All the circumstances sary to coufer jurisdiction, as provided in the first and second sections of the act of 1875, are found to exist in this case; the amount exceeds $500 and the parties are citizens of different States. Nothing more is required. Brooks v. Bailey, 9 Fed. Rep. 438; Petterson v. Chapman, 13 Blatchf. 395; Claflin v. Ins. Co., 110 U. S. 81. The subsequent clause of the first section, which provides that "no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or commencing such proceedings," does not limit the jurisdiction of the court but relates to the mode of acquiring it. It is intended for the protection of the defendant and confers a privilege which he can waive by appearing without asserting it. Robinson v. Nat. Stock-yard Co., 12 Fed. Rep. 361; Toland v. Sprague, 12 Pet. 300; Sayles v. N. W. Ins. Co., supra; Flanders v. Ætna Ins. Co., 3 Mas. 158; Gracie v. Palmer, & Wheat. 699; Kelsey v. Penn. R. Co., 14 Blatchf. C. C. 89. If permitted to do so, the plaintiff would undoubtedly have little difficulty in showing that the defendant is found within this district and is therefore in no position to claim the benefit of the privilege alluded to, but confining the case strictly to the stipulated facts it must be held that the defendant has waived any objection which it might have taken. The jurisdiction of this court was invoked by