orandum was filed with the clerk had not expired. But that fact cannot be shown by parol evidence after suit has been brought, but it must appear from the record, so that all who examine and read it can see, not only what is claimed, but also that the law has been complied with. The statute does not contemplate that the company may give its note, due 60 days or 1 or 2 years after date, for the amount due its laborer, and that then, when such note is due, 90 days shall be allowed thereafter in which to file a memorandum claiming a lien for said amount; but it means that such a claim for a lien shall be made within 90 days from the time the labor was performed, from the day the laborer was entitled to demand his wages. The legislature, for reasons plainly evident, has wisely limited the time within which such liens can be perfected, and has required that the record shall show that the party claiming has asserted them within 90 days from the time that his demand was due. The appellant is unable, from the record, to do this, and it must suffer the consequences. The statute extended to it certain privileges, and granted to it a security that many others were not permitted to enjoy; and certainly the appellant will not be allowed to accept the favor that was offered, and then to refuse to respect the terms accompanying it. A party desiring to comply with the requirements of the sections of the Virginia Code that we have been considering can easily do it, as the information called for is peculiarly within the knowledge of him who is seeking thereby to create a lien on the property of another; and, if he fails to do so, it is likely for the reason that the full statement of the facts would injure his claim, or because of either ignorance or inadvertence, neither of which will be received as an excuse, especially in cases where the rights of others are affected. The suggestion that the record, as it was made in the clerk's office, was sufficient to put any one who examined it on his guard, and that it was such notice as would induce a prudent business man to make full inquiry, is, we think, without force. No one is required to go outside of the clerk's office for the information he is told by the law he can find therein, nor expected to control his conduct by the conflicting statements made by the parties to the record; the one asserting, and the other denying, as their respective interests may suggest. The only question in such cases is, has the party claiming the lien observed the commands of the law, and been obedient to its requirements?

The conclusion we have reached is in consonance with the reason. ing as found in the opinions of a number of the courts of the coun try, to which, without quoting the language of the judges, we here refer: Boston v. Railroad Co., 76 Va. 182; Shackleford v. Beck, 80 Va. 573; Mayes v. Ruffners, 8 W. Va. 384; Phillips v. Roberts, 26 W. Va. 783; Davis v. Livingston, 29 Cal. 283; Hooper v. Flood, 54 Cal. 218; Noll v. Swineford, 6 Pa. St. 187; Witman v. Walker, 9 Watts & S. 186; Thomas v. Barber, 10 Md. 380; Delaware Railroad Const. Co. v. Davenport & St. P. Ry. Co., 46 Iowa, 406; Valentine v. Rawson, 57 Iowa, 179, 10 N. W. 338; Lyon v. Railroad Co., 127 Mass. 101; Mulloy v. Lawrence, 31 Mo. 583; Cook v. Vreeland, 21 IL 430; Vane v. Newcombe, 132 U. S. 220, 10 Sup. Ct. 60; Van

Stone v. Manufacturing Co., 142 U. S. 128, 12 Sup. Ct. 181. See, also, Phil. Mech. Liens, 576.

Holding, as we do, that the appellant did not acquire liens on the property mentioned in the bill by filing the memorandums re ferred to in the office of the clerk of the county court of Bedford county, it is consequently unnecessary for us to consider other points relied upon by counsel, presented so forcibly at the bar of this court, and passed upon by the court below. The decree appealed from will be affirmed.

BRAWLEY, District Judge. I am of opinion that the memorandum put upon record in this case was a sufficient compliance with the statutory requirements, and therefore dissent.

UNION CASUALTY & SURETY CO. v. SCHWERIN.

(Circuit Court of Appeals, Fourth Circuit. May 14, 1897.)

No. 216.

1. PRACTICE-MOTION FOR NONSUIT-ABANDONMENT.

When a defendant, after the denial of his motion for a nonsuit, proceeds to examine witnesses and make his case upon the merits, he thereby abandons the motion for a nonsuit, and cannot assign the denial thereof as error. 2. REVIEW ON ERROR-ASSIGNMENTS EVIDENCE.

An assignment of error relating to the refusal of the trial court to give instructions to the jury cannot be considered when the evidence showing the relevancy of the propositions of law involved is neither quoted in full nor its substance referred to in the assignment of error.

In Error to the Circuit Court of the United States for the District of South Carolina.

T. Moultrie Mordecai, for plaintiff in error.

Marion Moise, for defendant in error.

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

GOFF, Circuit Judge. The plaintiff below, Cecile F. Schwerin, instituted her suit in the court of common pleas for the county of Sumter, in the state of South Carolina, against the defendant below, the Union Casualty & Surety Company of St. Louis, claiming the sum of $3,000 as due her on a policy of insurance issued by said defendant on the life of one Herman Schwerin, dated April 24, 1895. The plaintiff was the beneficial owner and holder of said policy, and it was alleged in the complaint that the assured died on the 19th day of December, 1895, in said county of Sumter, during the time that the policy was in force. The case was duly removed to the circuit court of the United States for the district of South Carolina, where it was tried before a jury on the 17th day of December, 1896, when a verdict was returned for the plaintiff, on which a judgment was entered against the defendant for the sum of $3,124.83 and the costs. The writ of error we are now considering was then sued out. During the

trial the counsel for the defendant, at the conclusion of the plaintiff's testimony, moved for a nonsuit, which was refused by the court. This refusal of the court to direct a nonsuit is assigned as error. Other assignments of error relate to the action of the court in refusing to admit certain evidence offered by, and in declining to give certain instructions requested by, the defendant below.

After the court overruled the motion for a nonsuit, the defendant proceeded to examine a number of witnesses, introduced other testimony, and presented various propositions of law which it asked the court to make part of the charge to the jury. This was an abandonment of the motion for a nonsuit, and the action of the court below thereon is not now reviewable here. A defendant has the right to rely upon his motion for a nonsuit, and to have his writ of error if it be refused, but he has no right to insist upon his exception, founded on said motion, after he has offered testimony and made his case upon the merits, for the court and jury then have the right to consider the whole case as it has been made by the testimony. The defendant, having thus abandoned the nonsuit, may move to have the case taken from the jury upon the conclusion of the entire evidence. Railway Co. v. Cummings, 106 U. S. 700, 1 Sup. Ct. 493; Insurance Co. v. Crandal, 120 U. S. 527, 7 Sup. Ct. 685; Railroad Co. v. Mares, 123 U. S. 710, 8 Sup. Ct. 321; Insurance Co. v. Smith, 124 U. S. 405, 8 Sup. Ct. 534; Railroad Co. v. Hawthorne, 144 U. S. 202, 12 Sup. Ct. 591; Runkle v. Burnham, 153 U. S. 216, 14 Sup. Ct. 837.

The assignment of error relating to the refusal of the court to permit the introduction of certain testimony is without merit. The court properly declined to admit evidence hearsay and secondary in character, and we refer to it only for the purpose of expressing our disapproval of exceptions evidently untenable and clearly frivolous.

We are unable to consider the points suggested by counsel for the plaintiff in error concerning the refusal of the court below to give the instructions asked for by the defendant, for the reason that the evidence, if any there was, showing the relevancy of the propositions of law propounded thereby, is neither quoted in full nor its substance referred to in the assignments of error. It therefore follows that we must presume there was no such evidence, in which event the court properly declined to give the instructions asked for. Improvement Co. v. Frari, 8 U. S. App. 444, 7 C. C. A. 149, and 58 Fed. 171; Newman v. Iron Co. (decided during the present term of this court) 42 U.S. App. 80 Fed. 228.

The judgment of the court below is affirmed.

SHAW ELECTRIC CRANE CO. v. SHRIVER.

(Circuit Court, S. D. New York. April 15, 1897.)

1. COSTS-CERTIFICATION OF DOCUMENTS.

A party cannot tax as costs the fees for certifying documents for use in evidence, which, in the absence of stipulation, would require certification, but have not in fact been certified.

2. SAME-ALLOWANCE AND DISALLOWANCE.

Where a nontaxable charge for certifying and a taxable charge for printing have been combined in a bill of costs, and the amount of the latter can be separated from the former, it should be allowed, though the former is disallowed.

Francis Forbes, for complainant.

John R. Bennett, for defendant.

LACOMBE, Circuit Judge. I do not see any authority for taxing this sum of $500, which is practically charged as "constructive" fees. The order of this court restoring the cause to the calendar contained the proviso that complainant (who had made the motion) should file a stipulation that the "evidence taken in" the New Jersey case "be used in this case with the same force and effect," etc., "as though originally taken herein." A stipulation to this effect, including, also, testimony "to be taken" in the New Jersey suit, was forthwith filed by complainant. Thereupon the defendant had the choice either to take the evidence de novo, or to use the evidence taken in New Jersey. Of course, the order and stipulation authorizing the use of this testimony taken in another case presupposed that proper assurance of its authenticity would be made. If defendant decided to use it, the only proper shape in which it could have been offered to this court was under the certification of the clerk of the court in which it was filed, unless some further stipulation should dispense with this requirement. Had defendant obtained this certification, he could, of course, tax the disbursements necessary to obtain it, but he surely cannot charge anything for certification fees which he has not paid. Probably there was a further stipulation entered into by the parties (although the papers do not clearly show one) to the effect that an uncertified copy of the New Jersey evidence might be put in with the same effect as if it were certified, but, in the absence of any stipulation as to allowance of whatever sum defendant chose to pay for the uncertified copy, I cannot see how the court can include such sum in the bill of costs. The rules of this court, however, require that records for final hearings shall be printed. Defendant has paid out money in part to put the New Jersey evidence into print, which he was bound to do, and from which obligation no stipulation of his adversary could relieve him. The disbursements necessary to print this evidence should be allowed. Defendant ought not to lose them because he has paid both for copy and for printing in a lump sum. The proper amount is readily ascertainable, since the number of pages is known, and the price per page for such work is shown by the charge for printing so much of the record as was made up in this court.

HAYES et al. v. CITY OF NASHVILLE.

(Circuit Court of Appeals, Sixth Circuit. May 10, 1897.)

No. 464.

1. CONTRACTS-RESCISSION-ABANDONMENT.

Besides technical rescission of a contract, releasing each party from every obligation under it, as if it had never been made, there is a mode of abandoning a contract, as a live and enforceable obligation, which still entitles the party declaring its abandonment to look to the contract to determine the compensation he may be entitled to under its terms for the breach which gave him the right of abandonment; and courts, in construing the language used by laymen in such cases, will consider, not only the language of the party, but all the circumstances, including the effect of a complete rescission, and the probability or improbability of the party's intending such a result.

2. SALES-DEFAULT IN PAYMENTS-RIGHT TO RESELL.

When the title passes to something which is sold, one of the remedies of the vendor for a failure by the vendee to make payments in accordance with the contract at the time fixed for the deliveries and payments is, after notice, to resell the subject-matter of the sale, and to hold the defaulting vendee for the difference between the proceeds of the sale and the contract price.

Error to the Circuit Court of the United States for the Middle District of Tennessee.

The action below was by W. J. Hayes & Sons, a firm of brokers of Cleveland, Ohio, to recover from the corporation, the mayor and city council of the city of Nashville, Tenn., $3,750, a part of the sum deposited under a contract made between the parties for the sale and purchase of $400,000 of negotiable bonds. The defendants filed a plea averring they were entitled to retain the amount sued for because of damages in that sum sustained by them through the failure of the plaintiffs to take the bonds as agreed. The contract was as follows:

Agreement, made this 13th day of April, 1893, by and between the mayor and city council of Nashville, a corporation organized under the laws of the state of Tennessee, hereinafter to be known as the city of Nashville, and W. J. Hayes & Sons, of the city of Cleveland, in the state of Ohio, witnesseth: Whereas, the said city of Nashville did on the 11th day of April, 1893, offer to sell to the said W. J. Hayes & Sons the $400,000 of city of Nashville 42 per cent. trunk-sewer bonds, issued under the act of the general assembly of the state of Tennessee, approved February 2, 1892, and an ordinance of said, city passed in pursuance thereof on the 13th day of March, 1893, at the par value of said bonds, less 2 per cent. thereof, to be allowed and paid by said city of Nashville to said W. J. Hayes & Sons as commission; and whereas, said W. J. Hayes & Sons did on the 11th day of April, 1893, accept said offer, and agree thereto: Now, therefore, the said city of Nashville does hereby agree to and does sell to the said W. J. Hayes & Sons the said four hundred thousand dollars of trunk-sewer bonds for the sum of four hundred thousand dollars, less the 2 per cent. commission aforesaid to be paid and allowed said W. J. Hayes & Sons by said city. Said bonds are to be dated April 1, 1893, of denomination of $1,000, with semiannual interest coupons attached, interest at the rate of 42 per cent. per annum, payable semiannually at the Chemical National Bank of New York City, or at the office of city treasurer, Nashville, Tennessee, at the option of the holders of the same. Said bonds are to mature in thirty years from the date thereof, with principal payable at the office of the treasurer of the said city of Nashville, Tenn. Said bonds are to be numbered from 1 to 400, inclusive, and are to be legally issued, and the said city of Nashville shall 80 F.-41

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