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concerning the estate, it follows that the local court had in the nature of things power to determine, as an incident to its general and probate authority, whether the estate had been closed by the agreement, and hence to decide whether that agreement was void, and had also jurisdiction and power to determine whether the property which had been transferred to the mother by the agreement yet remained a part of the estate, and as an incident to so doing to decide the questions of fraud and simulation which were alleged in the bill. Of course, the general scope of the authority which the court then possessed endowed it with the power to liquidate and settle the community which existed between the husband and wife, as that liquidation was of necessity involved in the settlement of the estate. Speaking on this latter subject in Lawson et Ux. v. Ripley, supra, the Supreme Court of Louisiana said (p. 249):

"But it is contended that this would be giving to the court of probates the right of trying questions of title. Probate courts have certainly no power to try titles to real estate, and to decide directly on the validity of such titles; but as this court has said in the case of Gill v. Phillips et al., 6 Martin N. S. 298, ‘those courts possess all powers necessary to carry their jurisdiction into effect, and when in the exercise of that jurisdiction questions arise collaterally they must, of necessity, decide them, for if they could not no other court could. And, 'any other construction would present a singular species of judicial power--the right to decree a partition, without the authority to inquire into the grounds on which it should be ordered, or the portions that each of the parties should take. The end would thus be conceded without the means.' Baillo v. Wilson, 5 Martin N. S. 217. We are satisfied that whenever a question of title to real property and slaves arises collaterally in a court of probates, and an examination of it becomes necessary in order to give the court the means of arriving at a correct conclusion on matters of which it has jurisdiction, it must take cognizance of such title at least for the purpose of

VOL. CCIX-20

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ascertaining which property belongs to either of the spouses respectively or to the community.” The decree is reversed and the case is remanded to the court

below, with directions to dismiss the bill for want of jurisdiction over the subject matter.

UNITED STATES FIDELITY AND GUARANTY COMPANY v. UNITED STATES FOR THE USE AND BENEFIT OF STRUTHERS WELLS COMPANY.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND

CIRCUIT.

No. 154. Argued March 5, 1908.-Decided April 6, 1908.

There is always a strong presumption that a statute was not meant to act

retrospectively, and it should never receive such a construction if susceptible of any other, nor unless the words are so clear, strong and impera

tive as to have no other meaning. The act of February 24, 1905, c. 778, 33 Stat. 811, amending the act of Au

gust 13, 1894, c. 280, 28 Stat. 278, is prospective and does not relate to or affect actions based on rights of material-men which had accrued prior

to its passage, and such actions are properly brought under the act of 1394. The absolute taking away of a present right to sue and suspending it until

after certain events have happened, and the giving of preferences between creditors, are not mere matters of procedure but affect substantial rights, and as the act of February 24, 1905, consists of but a single section and deals with such subjects and only incidentally applies to procedure, the entire statute must be construed under the general rule that it is not retro

spective in any respect. 151 Fed. Rep. 534, affirmed.

This is a writ of error to the Circuit Court of Appeals for the Second Circuit, which brings up for review the judgment of that court affirming that of the Circuit Court of the Eastern District of New York in favor of the defendant in error (plain

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tiff below) against the plaintiff in error for the sum of $2,054.23. The action was brought in the Circuit Court above mentioned, in the name of the United States for the use and benefit of Struthers Wells Company against the plaintiff in error, and against the individual defendant Flaherty, as well as one Lande, upon a bond dated December 10, 1903, executed by Flaherty as principal, and the above-mentioned plaintiff in error as surety, by which they were held bound in the sum of $40,000, to be paid the United States as liquidated damages, the condition of the obligation being that if Flaherty, his successors, heirs, etc., should well and truly execute the contract annexed to the bond, which he had entered into with Colonel W. A. Jones, U. S. A., Engineer, of the Fifth Lighthouse District, for and in behalf of the United States, by which Flaherty covenanted and agreed to completely construct and deliver the metal work for the Baltimore lighthouse, Maryland, according to all the conditions of the said contract, and should promptly make payments to all persons supplying said Flaherty labor and materials in the prosecution of the work provided for in such contract, then the obligation was to be void; otherwise to remain in full force and virtue.

It was averred in the complaint that the action was brought in the name of the United States by Struthers Wells Company, for its use and benefit, against the plaintiff in error and Flaherty (and also one Lande, who had been joined with Flaherty in the contract), pursuant to the act of Congress of August 13, 1894. See 28 Stat. 278. The section is set forth in the margin.1

128 Stat. Chapter 280, p. 278:

Be it enacted, etc., That hereafter any person or persons entering into a formal contract with the United States for the construction of any public building, or the prosecution and completion of any public work, or for repairs upon any public building or public work, shall be required before commencing such work to execute the usual penal bond, with good and sufficient sureties, with the additional obligations that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract; and any person or persons making application therefor, and furnishing affidavit to the Department under the direction of which said work is being,

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The Struthers Wells Company, under an agreement with the deiendants Flaherty and Lande, and in or about the month of March, 1904, supplied to them certain materials described in the complaint, for use by them in the prosecution of the work, which they had contracted with the United States to do in constructing the metal work for the Baltimore lighthouse, as mentioned in the bond. The material furnished by the company was of the value of $1,890.25. The company duly performed all the conditions of its contract with the defendants, which it had agreed to perform, and made delivery as provided for in its agreement, and by reason of the premises there became due and payable to the company from the defendants, including the plaintiff in error, the sum of $1,890.25, with interest from June 7, 1904, no part of which has been paid. Judgment was demanded for that sum, with interest, as stated.

The action was commenced on the twelfth of April, 1905. The plaintiff in error demurred to the complaint on the ground, first, that the court had no jurisdiction of the person of the defendant, the United States Fidelity and Guaranty Company; second, that the court had not jurisdiction of the subject of the action; and, third, that the complaint does not state facts sufficient to constitute a cause of action against the defendant, the United States Fidelity and Guaranty Company. This demurrer was overruled, with leave to the defendant to answer, which the defendant refused to do, and thereupon judgment was entered for the plaintiff against it, which was affirmed by the Circuit Court of Appeals.

or has been, prosecuted, that labor or materials for the prosecution of such work has been supplied by him or them, and payment for which has not been made, shall be furnished with a certified copy of said contract and bond, upon which said person or persons supplying such labor and materials shall have a right of action, and shall be authorized to bring suit in the name of the United States for his or their use and benefit against said contractor and sureties, and to prosecute the same to final judgment and execution: Provided, That such action and its prosecution shall involve the United States in no expense."

209 U.S.

Argument for Plaintiff in Error.

Mr. Leonidas Dennis for plaintiff in error:

The question of jurisdiction depends upon the law as it was when the jurisdiction of the Circuit Court was invoked. Though plaintiff's cause of action arose before the passage of chapter 778, this action was not started until after the enactment of this law and the provisions therein contained regulating the enforcement of such cause of action apply to this action as they do not affect the cause of action itself, but only the method of enforcing the same. Larkins v. Saffarans, 15 Fed. Rep. 147; 26 Am. & Eng. Enc. of Law, 695; Endlich on Interpretation of Statutes, $ 287; United States Fidelity & Guaranty Co. v. Kenyon, 204 U. S. 359.

The court has no jurisdiction over the subject of this action.

The Circuit Courts of the United States are of statutory and not constitutional creation and jurisdiction. Whatever jurisdiction they might have had over such an action prior to February 24, 1905, that jurisdiction was repealed by the passage of the act of that date. The only court which has jurisdiction over a cause of action upon a bond like that involved in this cause is the Circuit Court in the district in which the contract was to be performed and executed. The prohibition against other courts exercising jurisdiction, is equivalent to a repeal. Insurance Company v. Ritchie, 5 Wall. 541, 544.

When a law conferring jurisdiction is repealed without any reservation as to pending cases, all such cases fall within the law. Railroad Co. v. Grant, 98 U. S. 398; Assessors v. Osborne, 9 Wall. 567; Sherman v. Grinnell, 123 U. S. 679; Gurnee v. Patrick County, 137 U. S. 141; McNulty v. Batty, 10 How. 71; Insurance Co. v. Ritchie, 5 Wall. 541; Ex parte McCardle, 7 Wall. 506, 514; National Exchange Bank v. Peters, 144 U. S. 570; Fairchild v. United States, 91 Fed. Rep. 297. • The only vested right conferred on defendant in error by the statute of 1894, is the right to a pro rata share in the amount of the bond after the contract has been completed, and the statute of 1905 does not take away this right. Larkins v.

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