of this translation, and, still more, in disregarding the opinion of the court on the spot, familiar with Hawaiian habits, and not improbably with Hawaiian speech. John Ii died in 1870. In 1894, the Hawaiian Islands then being an independent sovereignty, a bill was filed by Irene and her two children, the present defendants in error, by A. F. Judd as their next friend, and A. F. Judd, as executor, guardian of Irene, and trustee under the will, against Charles A. Brown, husband of Irene, alleging that Brown was in possession and squandering the estate, and praying, among other things, for a construction of the will and determination of the relative rights of the children and mother, and for the reinstatement of Judd in possession as trustee. An amended complaint joined Sanford B. Dole as plaintiff, he having been appointed to take the place of Komoikehuehu, deceased. The case dragged along and finally, the chief justice and one of the justices being disqualified, the remaining justice requested and authorized two members of the bar to sit with him, which they did. At the hearing they reserved questions of law to the supreme court of the Islands two of which were: "1. Was a trust created in the property devised to Irene Ii by the will of her father, John Ii? 5. Has Irene Ii Brown a fee-simple title in said property, or is her estate one for life only?" The supreme court entertained the case, and, as appears from the opinion, against the earnest contention of the counsel for the plaintiffs, decided on May 11, 1897, that Irene, after she bore a child, became the owner in fee simple of the estate. This decision is relied upon as an adjudication concluding the present case. Brown v. Brown, 11 Haw. 47. properly parties, and were not separately In January, 1903, another bill was brought by the defendants in error, by their next friend, A. F. Judd, the purposes of which it is unnecessary to state further than it sought to have the previous decision declared void and the interest of Irene adjudged to be only a life estate. The bill was dismissed upon demurrer, and the supreme court of the territory expressed the opinion that the previous decision precluded a collateral attack by the minors, dealing in terms with all the objections except the first, which it sufficiently disposed of by assuming the prior decision to have the effect of a formal decree. Brown v. Brown, 15 Haw. 308. See Calaf y Fugurul v. Calaf y Rivera, 232 U. S. 371, 374, 58 L. ed. 642, 645, 34 Sup. Ct. Rep. 411. It is unnecessary to consider whether this second case again made the matter res judicata. It is enough to refer to it here as authority with regard to matters of local procedure, as to which innumerable cases have established the weight to be given to the local courts. Tevis v. Ryan, 233 U. S. 273, 291, 58 L. ed. 957, 967, 34 Sup. Ct. Rep. 481; Nadal v. May, 233 U. S. 447, 454, 58 L. ed. 1040, 1041, 34 Sup. Ct. Rep. 611. The chief objection that is urged to the conclusiveness of the decision is that after the opinion of the supreme court no further proceedings were taken in the case. This seems to be answered by the decision next mentioned, and by the analogy, if not by the letter, of the statute then in force as to cases stated; that the case, the submission, and the written decision, shall constitute the record. Civil Code of 1859, § 1142. It is said further that the court was not legally constituted because two members of the bar were called in. The constitution and statutes allowed the filling of a vacancy if a justice was disqualified, but it is said that the power extended only to a single one. We understand that the practice was the other way for years, and as the supreme court seems to have felt no difficulty, it would be most undesirable to allow the question to be raised now. It is urged again that the children were not restated, from United States v. Percheman, It appears to us surprising to suggest that the highest court of the Hawaiian Islands did not decide in accordance with the requirements of the law of which that court was the final mouthpiece; and that courts of another jurisdiction, sitting long afterwards, know its duties and powers so much better as to be entitled to pronounce its proceedings void. The caution required in such a venture, even as against less authoritative decisions, has been stated and 7 Pet. 51, 95, 8 L. ed. 604, 620, to Michigan (235 U. S. 327) pany. V. COURTS (385)-APPEAL-FROM DISTRICT bond of a public contractor. Reversed and Messrs. John R. Halsey and Adrian T. Mr. Justice McKenna delivered the opinion of the court: The United States, suing for the use of UNITED STATES OF AMERICA FOR THE the Alexander Bryant Company, plaintiff USE AND BENEFIT OF ALEXANDER in error, was plaintiff in the court below, BRYANT COMPANY, Plff. in Err., and the defendants in error defendants. The complaint alleged the following NEW YORK STEAM FITTING COMPANY facts: The New York Steam Fitting Comand the Title Guaranty & Surety Company entered into a contract with the United States for the mechanical equipment of the New York custom house at New York. It gave bond for the faithful performance of its contract with defendant in error the Title Guaranty & Surety Company, as surety. One of the conditions of the bond was that the Steam Fitting Company would, among other things, promptly make a payment to all persons supplying it labor and material in the prosecution of the work contemplated by the contract of the Steam Fitting Company with the United 1. A judgment of a Federal district court is reviewable in the Federal Supreme Court under the Judicial Code, § 238, as involving the jurisdiction of the lower court, where the controversy between the parties must have been understood by the referee and the district court to involve the jurisdiction of that court, and both referee and court, in the decision of the issue thus presented, dis missed the action, although they may have erred in so doing. [Ed. Note.-For other cases, see Courts, Cent. Dig. 1022-1025, 1031; Dec. Dig. 385.1 UNITED STATES (§ 67°)—Bonds-OF PUBLIC TION. States. The bond was accepted and the work undertaken and duly completed on or about February 19, 1908, the Alexander Bryant Company having, in pursuance of a contract with the Steam Fitting Company, furnished all the materials and performed all of the work, upon which there is a balance due to the Bryant Company of $5,431.18. Under the terms of the agreement between it and the Steam Fitting Company it should have been paid as the 2. The requirement in the provisos of the act of February 24, 1905 (33 Stat. at I.. 811, chap. 778, Comp. Stat. 1913, § 6923), that the last publication of notice to credit ors of a suit brought by a creditor upon the bond of a public contractor must be "at least three months before the time limited therefor," is not jurisdictional, but is directory only, and cannot be con-government paid the former; and as final strued as cutting down the limitation of one year from the complete performance of the contract and final settlement thereof prescribed for such suits by another proviso in the statute, although giving the entire year for the commencement of such action may preclude the opportunity for intervention given by still another proviso, which declares that only one action shall be brought, in which any creditor may file his claims and be made a party thereto "within one year from the completion of the work, and not later." [Ed. Note. For other cases, see United States, Cent. Dig. 50; Dec. Dig. § 67.] [No. 67.] payment was made by the government February 15, 1908, interest is demanded. No action, it is alleged, had been brought by the United States against defendant within six months after, nor had one year elapsed since, the performance and final settlement of the contract by the New York Steam Fitting Company prior to the commencement of this action. It is alleged that, in pursuance of the requirements of the act of Congress of August 13, 1894 (28 Stat. at L. 278, chap. 280), as amended February 24, 1905 (33 Stat. at L. 811, chap. 778, Comp. Stat. 1913, § 6923), under and by virtue of which this action is Argued November 9, 1914. Decided Decem- brought, complainant served personal notice ber 7, 1914. of the pendency of this action upon all known creditors, informing them of their IN ERROR to the District Court of the right to intervene as the court might ordere United States for the Southern District of New York to review a judgment which dismissed an action by a creditor on the and in addition thereto published the notice in a newspaper of general circulation in the city, county, and state of New York for •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes ↑ Act March 3, 1911, c. 231, 36 Stat. 1157 (Comp. St. 1913, § 1215.) three successive weeks, the last publication of which was three months before the time limited therefor as in the acts of Congress provided. A bill of particulars was furnished defendants, of which the following is a copy: "The plaintiff as and for a bill of particulars, demanded by the Title Guaranty & Surety Company herein avers — "That, pursuant to the requirements of the acts of Congress under which this action is brought, the plaintiff herein made personal service of notice of the pendency of this action upon all known creditors of the New York Steam Fitting Company as follows: "On Messrs. Peet and Powers, November 21st, 1908; on Hermann & Grace, November 21st, 1908; on Henry R. Worthington, November 19th, 1908; on John Simmons Company, November 20th, 1908; on Cutler Hammer Company, November 19th, 1908; on Rob't A. Keasby Company, November 20th, 1908. "That under date of November 21st, 1908, Messrs. Hardy & Shellabarger, attorneys for New York Steam Fitting Company and the Title Guaranty & Trust Company of Scranton, Pennsylvania (now the Title Guaranty & Surety Company), stipulated with the attorney for the plaintiff as follows: "It is hereby consented on the part of the defendants that defendants waive any failure on the part of the plaintiff to notify | creditors under the third proviso of the statute, provided no more such notices are sent.' "That on the 5th day of November, 1908, and on each day thereafter to and including November 25th, 1908, there was published in the New York press of New York city, New York, a notice of the pendency of this action, addressed to all known creditors of the defendant, the New York Steam Fitting Company. Attached hereto and forming a part of this bill of particulars is a copy of the form in which personal notice of the pendency of this action was served upon all known creditors of the New York Steam Fitting Company, and a copy of the notice which was given by publication in the New York press to aforesaid creditors. Dated, New York, December 7th, 1909." Copies of the notices are inserted in the margin. It was stipulated that certain "Please take notice that the abovenamed Alexander Bryant Company has commenced an action in the name of the United States of America under the provisions of the act of Congress of August 13th, 1894 (as amended by act of Congress of February 24th, 1905), to recover a judgment against the defendant New York Steam Fitting of the creditors who were served with personal notice appeared in the action and filed pleas of intervention. The action was subsequently discontinued as to them, they having been settled with by the Surety Company. The answer of the Surety Company is unimportant except so far as it raises the issue, which is the crux of the case, whether the action was brought in time, or whether proper notice of it was given to other creditors. The answer of the Steam Fitting Company is also unimportant. The case, by consent of the parties, was referred to a referee, upon whose report judgment was to be entered "as if said cause had been heard before the court." The referee found and reported the basic facts of liability of the Surety Company, but found besides that the action was not commenced in time, as provided by the acts of Congress, nor was notice given to creditors as required, and therefore directed a judgment dismissing the complaint. A judgment was subsequently entered by the court after motion for a new trial was denied by the referee. The following facts appear from the report of the referee: The date of final settlement between the United States and the Steam Fitting Company was February 19, 1908, and to show compliance with the provisions of the act of Congress set out below, the Bryant Company offered evidence of the publication of notice to creditors in the New York press, beginning November 5, 1908, and also introduced in evidence a stipulation between it and the defendants made November 21, 1908, by which defendants' time to move of plead was extended, and by which it was stipulated as follows: "It is hereby consented on the part of the defendants that defendants waive any failure on the part of the plaintiff to notify creditors under the third proviso of the statute, provided no more such notices are sent." Prior to the execution of the stipulation the Bryant Company had personally served all known creditors with notice in the form hereinbefore given. Notwithstanding the stipulation, notice by publication continued for the full twenty-one days, to and including November 25, 1908. The Surety Company moved to strike Company and its surety, the Title Guaranty & Trust Company of Scranton, Pennsylvania, for a sum of money alleged to be due and owing to the aforesaid Alexander Bryant Company for work, labor, materials, and services furnished as subcontractors under the contract and bond entered into by the New York Steam Fitting Company out the evidence of publication as incom- so instituted by a creditor or by creditors, petent, irrelevant, and immaterial on the only one action shall be brought, and any grounds: (1) That there was no order of creditor may file his claim in such action the court obtained for the giving of the and be made party thereto within one year notice. (2) That under the act of Congress from the completion of the work under said the last publication of such a notice must contract, and not later. expire three months before the end of the year after the final completion of the contract; that is, on November 18th, 1908, whereas the last publication of the notice offered in evidence was on November 25, 1908, seven days beyond the time. The motion was based on certain provisos of the act of Congress already referred to. The act is entitled, "An Act for the Protection of Persons Furnishing Materials and Labor for the Construction of Public Works." It provides for the execution of a bond by any person entering into any formal contract with the United States for any public work, and that in any action instituted by the United States any person who has furnished materials or labor to the contractor may intervene and become a party to the action. If no action be brought by the United States within six months from the completion and final settlement of the contract, then any person furnishing materials or labor may bring suit in the name of the United States in the circuit court of the United States [now district court] in the district in which the contract was to be performed and executed, irrespective of the amount in controversy, and not elsewhere, for his or their use and benefit, against the contractor and his sureties. The provisos are as follows: "Provided, that where suit is instituted by any of such creditors on the bond of the contractor it shall not be commenced until after the complete performance of said contract and final settlement thereof, and shal! be commenced within one year after performance and final settlement of said contract, and not later: "And provided further, that where suit is for the mechanical equipment of the new customhouse at New York city, New York, in which bond the defendant, the Title Guaranty & Trust Company of Scranton, Pennsylvania, is joined as surety. "As required by the express provisions of the aforementioned acts of Congress, and as one of the creditors of the New York Steam Fitting Company, under aforesaid, contract, you are hereby notified of your right to intervene and be made an additional party plaintiff in this action, as the court may order, so as to have the rights and claims of any and all existing creditors under said contract and bond adjudicated in one and the same action. "Dated, New York, Nov. 2d, 1908." "Provided further, that in all suits instituted under the provisions of this act such personal notice of the pendency of such suits, informing them of their right to intervene as the court may order, shall be given to all known creditors, and in addition thereto notice of publication in some newspaper of general circulation, published in the state or town where the contract is being performed, for at least three successive weeks, the last publication to be at least three months before the time limited. therefor." It was admitted that no court order was obtained specifying the kind of notice to be given creditors, or giving directions as to publication. The referee decided that an order of the court was necessary, and that "the publication proved did not come within the time. limit of the statute." The argument of the referee was that the conditions of suit by the creditors of a contractor were (1) the omission of the United States to sue within six months from the completion and final settlement; (2) an action by a creditor must be commenced within one year after such performance and final settlement; (3) only one action can be brought, in which any creditor may file his claim and be made a party thereto withunder said contract, and not later; (4) in one year from the completion of the work personal notice must be given to known creditors, and in addition notice by publication, the last publication to be at least three months before the time limited therefor. In other words, and succinctly, the referee held that the time for a suit by creditors must be within one year from the complete performance of the of Congress of August 13th, 1894, and of February 24th, 1905, amendatory thereof, notice is hereby given to all creditors of the above named defendant New York Steam Fitting Company under the contract between the plaintiff and the said lastnamed defendant (and the codefendant as their surety) for work incident to the construction of the customhouse, that the above entitled action has been instituted upon the bond of the defendant-contractor, and against said surety, and that any creditor may file his claim in this action and be made a party herein as in said acts of Congress provided. "New York, October 16th, 1908." Both notices were signed by plaintiff's at "Pursuant to the requirements of an act torney. By the first proviso of the act a creditor cannot institute suit until after the complete performance of the contract and its final settlement; but after such events he may do so (the United States not having sued) within one year from their fulfilment. This is clear enough. The next proviso introduces ambiguity. "Only one action shall be brought," is its provision, in which "any creditor may file his claim contract and its final settlement, and as, event. From this the complexity in the there could be only one action, this time construction of the act arises. was the limit within which other creditors could file their claims, and that notice to them, whether personal or by publication, must be in such time as to enable this to be done. He held further that this was a jurisdictional requirement. In this ruling the district court concurred and certified "that the jurisdiction of the court over the persons and subject-matter in this action is in issue," and that this was done in accordance with the provisions of § 238 of the Judicial Code [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1913, § 1215]. Defendants in error, however, move to dismiss the writ of error on the ground "that no question as to the jurisdiction of the court below to hear and determine the cause is in issue." Under § 238 of the Judicial Code a case may be brought here directly from a district court if the jurisdiction of the court was in issue, that question alone to be certified. and be made a party thereto within one year from the completion of the work, and not later." The words in italics are disturbing. "This right to intervene and file a claim, conferred by the statute, presupposes an action duly brought under its terms." United States ex rel. Texas Portland Cement Co. v. McCord, 233 U. S. 157, 163, 58 L. ed. 893, 897, 34 Sup. Ct. Rep. 550. But by its terms the instituting creditor has one year from the designated events to commence his action. If he file it The present case satisfies this require- on the last day of the designated time, what ment. The controversy between the par- then becomes of the rights of other creditties must have been understood by the ors who must file their claim within the referee and the district court to involve the same limit of time, and not later? The jurisdiction of the court. Indeed, such was question is not easy to answer and any anthe explicit contention of the Surety Com-swer may be disputed. It presents a puzzle pany, and both referee and court in the for judicial resolution apparently insolvdecision of the issue thus presented dismissed the action. The Bryant Company combated the conclusion and still combats it. The issue of jurisdiction was and is, therefore, plainly marked. It may be that the referee and the court were in error in their decision, but this could not be asserted or demonstrated except by proceedings in error, to be taken as prescribed by law, and to this court. We cannot make the possible error of the court a ground for refusing to review it. The right of review is given to correct the error, if error there be, and the decision of the question involved is given to this court by § 238 of the Judicial Code. We are brought, therefore, to the consideration of the correctness of the ruling. able. There is more ambiguity when we bring forward the next, and third, proviso. Notice of the suit must be given to creditors personally if they be known, and by publication besides, informing them "of their right to intervene as the court may order." Passing what the quoted words may mean, and coming to the requirement of notice, it is provided that it must be "for at least three successive weeks, the last publication to be at least three months before the time limited therefor." This seemingly brings us to an impasse. How can the instituting creditor (so called for convenience) have a year to commence his suit and yet give the notice required?and it is to be remembered that the inter vening creditor must file his claim also within a year. The act of Congress is undoubtedly ambiguous. Indeed, considering the letter only of the three provisos with which we are The Surety Company sees the difficulty concerned, they absolutely repel accommodaand seizes it to press its contention that tion. We must try, however, to give coherence to them, and accomplish the inten-authorization of such time, but a permisthe year's time for bringing suit is not an tion of Congress. The act is intended to be highly remedial. Its purpose is simple and beneficial. It is to give a remedy to materialmen and laborers on the bond of the original contractor, and a reasonable time to enforce it, and in a single proceeding to unite all claimants. It, however, imposes a limitation of time on all claimants, the time beginning to run from the same sion, and must be availed of so as to permit of the notice to creditors provided for; in other words, that the time in which to bring suit or file a claim, which is explicitly given, is cut down by the provision for notice; that is, the instituting creditor is given not one year from the indicated events to institute a suit, but one year to institute suit and serve notice of it, which notice |