regard which is final. The order to produce in no way affects their liberty, their property, or their liability. It is no more final than a subpoena, with a duces tecum clause directing them to produce documents in their possession, would be. An attachment for contempt is requisite to constitute a final and appealable decree in case of a subpœna of that character. Alexander v. United States, supra. It is urged, however, that under Rev. St. § 724, the Circuit Court cannot enforce its order to produce by an adjudication for contempt for nonproduction, and that, because it cannot attach, an order to produce is the last order the court can make, and therefore a final one. Not only is this a non sequitur, but that a Circuit Court is powerless to enforce by attachment for contempt an order which by statute.it is empowered to make, is a proposition I am not yet prepared to concede, if that question were before us. In that connection it suffices to say that if the construction placed on this statute by Mr. Justice Washington in Bas v. Steele, 3 Wash. C. C. 381, Fed. Cas. 1,088, be correct, namely, that the objects of the statute are not only to lay grounds for a judgment of default, but also "to obtain evidence from the contents of the papers called for," it may well be contended that the Circuit Court under its general powers as a court can by attachment compel production of that evidence which it was the object of the statute it should obtain. But assuming, for present purposes only, the court has no power to attach, it by no means follows that the mere order on such a custodian of papers as here to produce is a final decree simply because the court can do no more. Such order lacks all the elements of a final, reviewable decree. It subjects such custodian agent to no liability either in person or property. He is not concluded, affected or harmed by such order. It enters no judgment, default, lien, or decree against him. It subjects him to no penalty, and he is not aggrieved thereby. But, apart from this, if the only power the court has under this statute is to enter a judgment by default, then the entry of such default and the liquidation of a judgment is the final decree under the act which makes the case appealable, and then the appeal is by the party aggrieved and not by the mere custodian of such party's books and records. No judgment by default having been entered and liquidated, it follows that no final, appealable decree was entered. To entertain this writ is to concede to a stranger to the controversy higher rights than the litigants themselves possess. Whether this order to produce is valid, whether it warrants a judgment by default against the defendant, are matters in which these plaintiffs in error have no concern. If the court below finally entered judgment on default in that case, these questions could be properly subjected to review by the aggrieved party, the Pennsylvania Railroad. But in advance of that time these plaintiffs in error-whether they seek to do it as mere individuals or as officers of that company -cannot, under cover of an alleged final decree in a mere order to produce, confer on this court by indirection a jurisdiction to review in a preliminary stage questions between the coal and railroad companies which neither of said companies can have reviewed until final decree. For these reasons, I would dismiss this writ of error for want of jurisdiction. CASSATT et al, v. PENNSYLVANIA COAL & COKE CO. (Circuit Court of Appeals, Third Circuit. January 2, 1907.) In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania. John G. Johnson, for plaintiffs in error. Joseph Gilfillan and George S. Graham, for defendant in error. Before GRAY and BUFFINGTON, Circuit Judges, and LANNING, District Judge. PER CURIAM. The record of this case is similar to that in Alexander J. Cassatt et al., Plaintiffs in Error, v. Mitchell Coal & Coke Company, Defendant in Error (decided at this term), 150 Fed. 32. The same questions of law are presented. The opinion in that case controls the decision of this. The motion to dismiss the writ of error is denied, and the judgment of the Circuit Court is reversed, with costs. CASSATT et al. v. WEBSTER COAL & COKE CO. (Circuit Court of Appeals, Third Circuit. January 2, 1907.) In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania. John G. Johnson, for plaintiffs in error. Joseph Gilfillan and George S. Graham, for defendant in error. Before GRAY and BUFFINGTON, Circuit Judges, and LANNING, District Judge. PER CURIAM. The record of this case is similar to that in Alexander J. Cassatt et al., Plaintiffs in Error, v. Mitchell Coal & Coke Company, Defendant in Error (decided at this term), 150 Fed. 32. The same questions of law are presented. The opinion in that case controls the decision of this. The motion to dismiss the writ of error is denied, and the judgment of the Circuit Court is reversed, with costs. MARTHINSON v. KING et al. (Circuit Court of Appeals, Fifth Circuit. November 3, 1906.) No. 1,542. 1. SPECIFIC PERFORMANCE-OPTIONS. Where an owner of property gives another a written option for a valuable consideration, agreeing to sell it to him at a fixed price if accepted within a specified time, such option is binding on the owner and on a purchaser from him, with knowledge thereof, and in a proper case may be specifically enforced. [Ed. Note. For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 51-53, 178.] 2. VENDOR AND PURCHASER-STANDING TREES. Trees growing on land constitute a part of the realty as provided by Ga. Code 1895, § 3045. [Ed. Note:-For cases in point, see Cent. Dig. vol. 40, Property, § 4.] 3. SPECIFIC PERFORMANCE-ADEQUATE REMEDY AT LAW. Complainant procured an option from defendant K. in consideration of $1,000, to purchase a cross-tie camp and outfit, together with certain growing timber, for $6,923.57, whereupon complainant gave a similar option to defendant lumber company to purchase the same outfit for $14,295. Defendant K. thereafter refused to perform his option to plaintiff, but sold the outfit direct to the lumber company, by which plaintiff alleged that he lost a net profit of $6,371.43. Held, that in the absence of any allegation that either K. or the lumber company were insolvent, complainant had an adequate remedy at law, and was not entitled to compel specific performance of his option. [Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 5-8.] 4. SAME-DISCRETION. The granting of specific performance is not a matter of arbitrary discretion, but of judicial discretion controlled by principles of equity exercised on consideration of all the circumstances of the particular case. [Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 17, 18.] 5. EQUITY-JURISDICTION-ALLEGATIONS. Equity jurisdiction cannot be invoked by mere charges of fraud, conspiracy, prayers for injunction, and the cancellation of deeds as a cloud on title. [Ed. Note.-For cases in point, see Cent. Dig. vol. 19, Equity, §§ 323330.1 6. SAME. The defense of adequate remedy at law is one of substance in the national courts affecting the jurisdiction, and may, therefore, be raised at any stage of the proceedings, either by the parties, or the court of its own volition. [Ed. Note.-For cases in point, see Cent. Dig. vol. 19, Equity, §§ 173176.] 7. COSTS-IN EQUITABLE CASES-DIVISION. Where, in a suit for specific performance in a federal court, defendant raised the question of adequate remedy at law by answer, but did not call the court's attention thereto until final hearing on the merits, after large costs had been incurred in the taking of testimony, the court on sustaining such defense should have directed that a part of the costs should be taxed to defendants. [Ed. Note.--For cases in point, see Cent. Dig. vol. 13, Costs, § 262.] Appeal from the Circuit Court of the United States for the Southern District of Georgia. T. P. Ravenel, W. G. Charlton, and Livingston Kenan, for appellant. Samuel B. Adams, for appellee N. B. King. Before PARDEE and SHELBY, Circuit Judges, and MEEK, District Judge. SHELBY, Circuit Judge. The main purpose of the bill in this case is to enforce the specific performance of a contract. The suit is brought by Charles Marthinson, an alien and a subject of the King of Denmark, against N. B. King, a citizen of Georgia, and the Hall 150 F.-4 Tie & Lumber Company, a Virginia corporation. On the 16th day of July, 1903, two contracts were made. To understand this controversy it is necessary to state the substance and purpose of both of them. The first contract is between Charles Marthinson, the plaintiff, and N. B. King, one of the defendants. By its terms, in consideration of $1,000 which Marthinson paid to King, and the further sum of $6,923.57, to be paid on August 1st following, King sells, or agrees to sell, to Marthinson a cross-tie camp and outfit, all the growing timber on certain described lots, 12 buildings, 4 mules, a certain mortgage against J. M. Revels, and other property specifically described in the contract. It is provided that King was to execute no transfer of the property until all of the purchase money was paid in full, and that in case of default of payment of all the purchase money King was to retain the property and also the money paid to him in advance. Such is the substance of the contract sought to be enforced in this suit. On the same day, July 16, 1903, the other contract was made between Charles Marthinson, the plaintiff, and the other defendant, the Hall Tie & Lumber Company. This contract recites that Marthinson had previously given the company an option to purchase the outfit and property described in the foregoing contract of sale between King and Marthinson, and that such option had been extended in consideration of $200. In consideration of $1,000 paid by the company to Marthinson, the latter agreed to extend this option to August 1, 1903. The company was to pay Marthinson in all $14,295 for the property described in the first contract. Both contracts are in writing, and each is attested by two witnesses. For convenience of reference, they are copied in a footnote. It appears from the two contracts that, if both had been carried out according to their terms, Marthinson would have made a profit of $6,371.43 on the transaction. The bill alleges the execution of both contracts, and that all the parties to the suit had actual notice of both; that on the 1st day of August, 1903, the plaintiff and an agent of the company met in the city of Savannah for the purpose of closing these trades; and that the plaintiff was then ready and willing and able to pay N. B. King the balance of the purchase money agreed to be paid, but that King failed to be present and refused to carry out his contract. It is also alleged that a representative of the company was then present, willing and ready to pay the plaintiff $14,295 for the property, according to the agreement, and that the failure and bad faith of King "has resulted in great loss and damage to your orator; for by and under the terms of his purchase from King and sale to said Hall Tie & Lumber Company your orator would have realized a net profit of $6,371.43." It was then alleged that King, having failed to carry out his contract with the plaintiff, conveyed the property directly to the Hall Tie & Lumber Company, and that such conveyance was made "in order to defeat and defraud your orator out of all of the aforesaid property to which he was and is justly entitled under said contracts with said King, and out of the profits which he would realize out of the said trades touching said property, and in order to themselves profit by their said fraud, etc.; and it is alleged that all this is "contrary to equity and good conscience, and works a manifest wrong, injury, and irreparable loss to your orator in the premises." In the eighth paragraph of the bill it is alleged that the plaintiff is remediless by the strict rules of the common law, and is only relievable in a court of equity. The plaintiff makes a tender to King of the balance of the purchase money, which tender is to continue during the pendency of the suit. The bill contains a prayer that the court should require King to execute and deliver to the plaintiff a good and sufficient title to the property, and that the transfer or pretended transfer between King and the Hall Tie & Lumber Company should be canceled. There is also a prayer that the defendants be enjoined from selling or disposing of any of the property and from cutting or removing the timber from the premises. The bill contains no averments as to the insolvency of either of the defendants. The defendants filed a joint answer to all the paragraphs of the bill. In answer to the eighth paragraph they averred that each of them is solvent and amply responsive in damages; that each of them owns property in the state of Georgia more than sufficient to pay the sum claimed by the plaintiff; that the defendant company has large interests in the state of Virginia, North Carolina, and other states, and in this connection they expressly deny plaintiff's allegation as to his damage being irreparable. On the contrary, they aver that: "His remedy is ample at common law, and that they have abundant property to meet any judgment that he may recover against them, or either of them." The case was tried on the merits, much evidence being taken and offered on both sides, and the court rendered a final decree dismissing the bill and remitting the plaintiff to his remedy at law. The plaintiff has appealed to this court, and assigns that the court below erred in dismissing the bill. 1. Whenever a contract is of such a form and nature that it has mutually executory promises, or whenever it is intended that it should require future acts or omissions from each of the parties, and that each should be bound to perform his stipulated part, there must be both mutuality of obligation and of remedy. It follows that, as a general rule governing cases for specific performance, the contract must be mutual, and either party is entitled to the equitable remedy of a specific performance. But when the contract is unilateral, and by its express terms is binding upon one of the parties only, it may, of course, be specifically enforced against that party, although the remedy cannot be granted to him against the other. Pomeroy on Specific Performance of Contracts, § 169. It is now well settled that if an owner of property gives another a written option on it for a valuable consideration, agreeing to sell it to him at a fixed price, if accepted within a specified time, it is binding upon the owner, and it is equally binding upon those who purchase from the owner with a knowledge of such agreement. In a proper case the courts will not hesitate to enforce an option as readily as they enforce other contracts. Johnston v. Trippe (C. C.) 33 Fed. 530; Black v. Maddox, 104 Ga. 157, 30 S. E. 723; Ross v. Parks, 93 Ala. 153, 8 South. 368, 11 L. R. A. 148, 30 Am. St. Rep. 47. Conceding, therefore, that the contract between |