UNITED STATES, to Use of HARLAN & HOLLINGSWORTH, v. SCOFIELD CO. et al.

UNITED STATES, to Use of HARLAN & HOLLINGSWORTH, v. SCOFIELD CO. et al. (Circuit Court, M. D. Pennsylvania. November 11, 1911.) No. 309. United States (§ 67*) — Oontraotobs eor Public Works — Action on- Bond. Act- Feb. 24, 1905, c. 778, 33 Stat. 811 (U. S. Comp. St. Supp. 1909, p. 948), amendatory of Act Aug. 13, 1894, c. 280, 28 Stat. 278 (U. S. Comp. St. 1901, p. 2523), authorizing persons furnishing labor or material for the construction of public works to sue in the name of the United States on the bond of the contractor, is not retroactive, and, where a contract was made and the bond given prior to the passage of such amendment, the rights of a subcontractor, although he furnished labor and materials afterward, are governed by the original act, and he may maintain a suit against the surety on the bond thereunder in the district of the surety’s residence. [Ed. Note. — For other cases, see United States, Dec. Dig. § 67.*] ♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes At' Law. Action by the United States, to the use of Harlan & Hollingsworth, a corporation, against the Scofield Company and the Title Guaranty & Surety Company. On demurrer by plaintiff to plea of the Title Guaranty & Surety Company. Demurrer sustained. G. W. Pepper and Thomas Stokes, for plaintiff. John M. McCourt, for defendant. [MAJORITY — WITMER, District Judge.] WITMER, District Judge. The question presented here by this demurrer to the plea of the defendant the Title Guaranty & Surety Company was decided adversely to the defendant by Judge McPherson, in United States, to Use of General Electric Company, v. Schofield Company et al. (C. C.) 182 Fed. 240, which, on appeal, was affirmed by the Circuit Court of Appeals, reported in 187 Fed. 98. In view of what was there said, and since the bond sued upon was given May 24, 1904, under the provisions of the act of August 13, 1894,’ and the claim of’the usé of the plaintiff arises under a contract made before the act of February 24, 1905, which is not retroactive, although the plaintiff did the work and furnished the materials for which suit is brought, since the enactment of the latter, the former act controls, and suit may be brought in the district in which the principal office, of the surety company is located. The demurrer to the defendant’s plea to the jurisdiction is therefore sustained, and the plea is denied.