David Josiah Brewer

“ The sole question, therefore, is whether the equitable lien which the bank claims it has without reference to the question of its subrogation is paramount to the right of subrogation which unquestionably exists in favor of Hitchcock. In other words, the rights of the parties depend upon whether Hitchcock's subrogation must be considered as arising from and relating back to the date of the origianl contract, or as taking its origin solely from the date of the advance by him.'
It seems unnecessary to again review the authorities. ”

“ In May, 1890, Sundberg & Company defaulted in the performance of this contract and Hitchcock, as surety, without any knowledge of the alleged rights of the bank, assumed the completion of the contract and disbursed therein about $15,000 in excess of the current payments from the govenment. In a contest between Hitchcock and the Prairie Bank it was held that Hitchcock had the superior euqity, and the judgment of the court of claims in his favor for the amount still due from the government was affirmed. ”

“ A motion is made to dismiss on the ground that the jurisdiction of the circuit court was invoked solely on the ground of the diversity of citizenship of the parties, and hence the decree of the circuit court of appeals was final. ”