of attachment, such plaintiff becomes a joint trespasser with the officer, and that when thereafter the attaching officer is sued, and when the party who has ihdemnified the officer takes upon himself the defense of the suit, such party is concluded by the judgment against the officer when such indemnifying party is afterwards sued for the same trespass. In other words, the supreme court held in that case that the party who indemnified the attaching officer be came so related by his own act with the defense of the suit brought against the attaching officer that, in subsequent litigation, he was estopped from claiming that he had no connection with such suit, and that he was in fact concluded by the judgment against the officer.

In the other case cited by Judge Shiras, to wit, Robbins v. City of Chicago, 4 Wall. 657, the court applied the same doctrine that was declared to be the law in the case of Lovejoy v. Murray. Robbins was the owner of a lot in the city of Chicago, upon which he had wrongfully "dug, opened, and made" an area in the sidewalk adjoining, and left it so unguarded that one Woodbury fell into it, and was severely injured. Woodbury instituted suit against the city, and recovered for his injuries $15,000 damages, which sum the city paid. Thereafter the city sued Robbins, the owner of the lot, to reimburse it for the amount of damages so paid by it. In this latter suit it appeared that Robbins had had notice from the city solicitor of Chicago of the pendency of the Woodbury suit, of the court in which it was instituted, and when it was to be tried, and that he had assisted in securing evidence in behalf of the defense. When sued by the city, Robbins was held to be bound by the recovery granted in the former suit of Woodbury against the city, and to be concluded thereby, although not a formal party of record in that case.

These are the cases relied upon by Judge Shiras to support his decree in the case cited by complainants' counsel. They could not have been cited as authority to support the construction which counsel in this case now seek to put upon the decision made by Judge Shiras in the case to which reference has been made. As before stated, Mast & Co. were not made parties to the suit before Judge Shiras, and the decree did not undertake to bind them as a party defendant, but simply undertook to show such a state of facts as would tend to estop them in subsequent litigation from again controverting the issues made in the suit of which they had notice, and in which they were interested, and in which they participated in the manner stated.

It may be that, on the final hearing of this case, the evidence may disclose such conduct on the part of the General Electric Company-such a participation in the actual defense of this caseas will justify the court in making a statement of such facts on the face of the decree, to the end that, in subsequent litigation involv ing the same issues or the same interests, the complainants may have a right to contend that the General Electric Company is estopped from further defending against the same. That is as far

as the court went in the case cited in 41 Fed. 351. It is significant to remark, in connection with that case, that, when it came for hearing in the supreme court (see 151 U. S. 186, 14 Sup. Ct. 310), no reference whatever is made in the opinion of that court to the question decided by Judge Shiras. It is true that it became unimportant, because the supreme court ordered the bill dismissed, and found that there was no infringement; but nowhere in the statement of the case or in the opinion of the court is any allusion made to the question we have been considering.

I am therefore of the opinion that as the General Electric Company is a nonresident corporation, and cannot be brought into this. court by original subpoena, leave cannot be given to amend the bill to make it a party against its will, by reason of the facts hereinbefore stated.

In view of the conclusion reached, it is not necessary to consider the proposition contended for by complainants' counsel that the General Electric Company might waive the question of citizenship,. and that it has so waived it by the acts herein before stated.

The question of whether it has so identified itself with this case as that it may be hereafter estopped in subsequent litigation from again defending as to the issues or interests now involved is a question, as I have before said, which can only be passed upon at the final hearing, and in the final decree. This is certainly as far as the court, under any circumstances, would have authority to act. I can find no authority for the proposition that by such action as the General Electric Company has taken with reference to this case, as herein before stated, it has made itself (being a nonresident corporation), against its own intention and wish, a party defendant in this case, and thereby conferred upon the court authority to make a decree binding and conclusive upon it as a party defendant. It may have put itself in a position to estop it in subsequent litigation, as heretofore stated. It will be proper to determine that question

when it arises.

The motion is overruled.

I have waited some 10 days for the brief of counsel for the General Electric Company upon the question herein decided, but having fully investigated it in the light of complainants' brief. and having reached a conclusion which is entirely satisfactory to me, I have not deemed it necessary to wait for respondent's brief.

Ex parte BUSKIRK.

(Circuit Court of Appeals, Fourth Circuit. February 4, 1896.)

No. 142.

1. CONTEMPT OF COURT-JURISDICTION OF FEDERAL COURTS.

The act of March 2, 1831, now embodied in Rev. St. § 725, is a limitation on the power of the federal courts to punish for contempt, and restricts their jurisdiction to cases of misbehavior of any person in the presence of the court, or so near thereto as to obstruct the administration of justice; to misbehavior of any officer of the court in his official

transactions; and to cases of disobedience or resistance to any lawful writ, process, order, rule, decree, or command of the court.

2. SAME-VIOLATION OF STIPULATIONS.

A federal court has no jurisdiction to punish, as a contempt, an act of disobedience to an order which the court intended to make, but which in fact was never entered; or an act which is a violation of a mere oral stipulation made in open court between the attorneys of the parties. Nor can the court make so punishable an act not forbidden by any order or decree at the time it was committed, by afterwards entering a nunc pro tunc order forbidding such act.

3. PRACTICE IN CIVIL CASES-NUNC PRO TUNC ORDERS.

The courts may, by nunc pro tunc orders, supply omissions in the record of what was actually done, but which was not entered on the record, by reason of mistake or neglect; but they cannot thereby modify orders previously made, or make an order which they in fact intended to make at a previous. time, but did not in fact make, so as to bind the parties as of the date to which the order relates; and especially is this so in matters relating to criminal proceedings.

4. HABEAS CORPUS-ACTS IN EXCESS OF JURISDICTION-CONTEMPT PROCEEDINGS. A federal court may discharge on habeas corpus a person imprisoned for an alleged contempt in committing an act which was not forbidden by any order of the court existing at the time, but which the court afterwards attempted, in excess of its jurisdiction, to forbid as of a prior date, by an order nunc pro tune.

This was a petition by Uriah B. Buskirk for a writ of habeas corpus. John A. Hutchinson, for petitioner.

Maynard F. Stiles and E. L. Buttrick, for respondents.

Before GOFF and SIMONTON, Circuit Judges, and BRAWLEY, District Judge.

GOFF, Circuit Judge. Uriah B. Buskirk, the petitioner, was one of the defendants to an action of ejectment pending in the circuit court of the United States for the district of West Virginia, in which Henry C. King was plaintiff. The land in controversy was situated in the state of West Virginia, and it was claimed that Buskirk, with one Mullins, was in the possession of a part thereof. King, on the 31st day of May, 1895, tendered his bill on the equity side of said court, in which he charged that Buskirk and Mullins were preparing to cut and remove large quantities of timber from the land in controversy. The court, at Charleston, on the 31st day of May, 1895, ordered that the bill be filed, which was done, and it appears from the record that no further proceedings were had in said matter, of which an entry was made at the time on the court's records, until on the 12th day of June, 1895, at Charleston, when the following or der was made, viz.:

"Henry C. King, Complainant, v. U. B. Buskirk et al., Defendants. "This day came the complainant by his counsel, and presented the affidavit of Maynard F. Stiles, charging the said defendants with a violation of a stipulation heretofore made in this cause, and asked a rule against defendants. And the defendants, by counsel, presented their affidavit in reply thereto, and thereupon the said matter came on to be heard. Whereupon it is ordered that the said affidavits be filed, and that the said matter be continued with leave to each party to file further affidavits, and for complainant, upon reasonable notice to defendants or their counsel, to

renew his motion herein for said rule. And it is further ordered that in the event the complainant decides to renew his application for a rule to show cause why the defendants should not be fined and attached, that before doing so he serve the defendant or his counsel of record with eight days' notice of the time and place of the application."

The next order made in said proceedings was on the 27th day of June, 1895, as follows, viz.:

"Henry C. King, Complainant, v. Uriah B. Buskirk and M. B. Mullins, Defendants. In Equity.

"This cause came on to be heard upon the 20th day of June, 1895, by consent of counsel for the respective parties upon the application and motion of complainant made on the 12th day of June, 1895, for a rule against defendants to show cause why they should not be atached and fined for contempt in violating certain orders and decrees of this court made in this cause, which said order of June 12th is as follows."

Here follows a copy of the order as given above. At the same time a large number of affidavits made by various parties, and having reference to the cutting of timber on said land by defendants, were tendered and filed. They thus became a part of the record, and were considered by the court below, but in the view that we take of this case it will not be necessary for us to again refer to them.

The defendant Buskirk, on the 27th day of June, 1895, appeared. and filed his answer to the motion for a rule, which was in the following words, viz.:

"Plea and Motion of Defendant Buskirk.

"Henry C. King vs. M. B. Mullins et al. In Equity.

"The defendant U. B. Buskirk comes and says that this court ought not to take any further cognizance of the motion and proceedings for an alleged contempt against him upon the following grounds and for the reasons following: First. No order was ever made in said equity case by way of injunction or otherwise against this defendant, which he has in any wise violated. Second. The so-called 'stipulation' on which the affidavit of M. F. Stiles was filed in this cause against the defendant Buskirk was not in writing, never signed, and that the court never made any order thereon. No order exists of record in said cause in relation thereto. Third. The only evidence of any promise, agreement, or stipulation of the purport alleged in the affidavit of M. F. Stiles, filed in this cause, as a foundation for a rule against said Buskirk, is what was stated in open court, as said Buskirk understands, by his counsel and the counsel of the plaintiff, Henry C. King, as to which, and the scope and extent thereof, the said plaintiff's counsel, M. F. Stiles, and his agent, V. A. Wilder, disagree with the counsel of the said Buskirk himself, as shown by the written affidavits filed before this honorable court; so that in fact the basis of the proceedings against the said Buskirk is upon an oral proposition acceded to by all parties, which was never reduced to writing and signed, and depends upon the memory of the persons present at the time the said proposition was made and agreed to in court. Fourth. The proceedings against respondent herein upon said motion for a rule therefore depend, not upon a violation of any order of the court, but upon an alleged violation of a promise or understanding, never reduced to writing, between the parties by their counsel. Fifth. It is respectfully submitted that, in the absence of an order of the court in writing, which must exist as the basis of any action in the proceeding for contempt, it would be wholly unjust and contrary to the rules and practice of a court of equity and to the principles governing proceedings of a criminal nature in the courts of the United States to proceed further with the proceedings herein against the said Buskirk as if he were on trial for an alleged contempt of the orders of the court.

Sixth. It is respectfully objected that no order of injunction ever was in fact granted in said chancery cause; that, while there was a verbal understanding between the counsel before the court, there was in fact no order of injunction granted by the court. Seventh. In the absence of an order of injunction granted by the court, not of record in the cause, according to court's practice in such case, any action of the court so taken would not be a bar to any proper proceeding or any other proceeding which might be jurisdictional. Eighth. According to the law of the land there can be no such thing as a verbal decree or order of injunction as a part of the record of a court of chancery. Ninth. The affidavit filed by the said Buskirk fully and completely exonerates him from any alleged contempt even of any verbal order in said cause, and fully and distinctly explains each and every fact, circumstance, or thing tending to charge him with any violation of the alleged verbal order or understanding. Tenth. The said Buskirk respectfully moves the court to dismiss said proceedings upon the grounds alleged, and also for the reason that no rule has been issued and no issue has been made up, and no steps have been taken properly in the proceedings now pending against him according to the law of the land and the practice of this honorable court, and nothing done herein will be a bar to any future action the court might take according to the regular course." On the 28th day of June, 1895, the following order was made and entered of record, to-wit:

"In the Circuit Court of the United States for the District of West Virginia, at Charleston, June 3rd, 1895.

"Henry C. King vs. Uriah B. Buskirk and M. B. Mullins. In Equity. "This day this cause came on to be heard upon the bill of complaint of the said complainant, filed by him on the 31st day of May, praying an injunction to restrain the defendants and each of them from cutting, hauling, selling, or in any manner trafficking in the timber upon the land claimed by the complainant and described in said bill of complaint. The counsel for both complainant and defendants being present in open court, and here agreeing and stipulating that the further hearing of this cause be had at Parkersburg on the 20th day of June, and that meanwhile the said defendants will cut no timber upon the lands described in said bill and the exhibit filed therewith and made part thereof. from the cutting of which the said complainant asks that they be restrained, it is ordered that this motion for an injunction be sent down for hearing at Parkersburg on the 20th of June, and in the meanwhile, and until the further order of this court, the defendants be inhibited and restrained from cutting any timber upon the land claimed by the complainant and set out in his said bill and the exhibit made a part thereof."

This order was prepared on the 28th day of June, and then entered as a nunc pro tunc order. And on the same day, to wit, on the 28th day of June, 1895, the following order was made and entered of record, to wit:

"H. C. King vs. U. B. Buskirk and M. B. Mullins. In Equity. "This day came the defendants, U. B. Buskirk and M. B. Mullins, and tendered their answer to the plaintiff's bill, and the same is ordered to be filed, to which the complainant replies generally."

On the said 28th day of June the court below awarded the rule against Buskirk, to which he appeared and filed his answer on the same day, which was in substance to the same effect as the answer he had filed the day before to the motion for a rule, and which we do not deem it necessary to again set forth. And at another day, to wit, on the 29th day of June, 1895, the following order was made and entered of record in said cause, viz.:

v.72F.no.1-2