Page:United States Reports, Volume 209.djvu/338

 312 OCTOBER TERM, 1907. Opinion of the Court. 209 U.S. The record shows that the contract between Flaherty and the United States' was entered into December 10, 1903, and the material was furnished to Flaherty by the Struthers Wells Company in March, 1904. It us appears that the bond was executed under the provisions of the Original act of Congress, and the materials were furnished Flaherty while that act was in force and before its amendment. The legal rights of the Struthers Wells Company had become vested before the enact- ment of the amendment. It is contended on the part of the plaintiff in error that the passage of the amendment (Feb- ruary 24, 1905) made it necessary for the defendant in error to follow its provisions when it commenced this action on the tweffth of April, 1905. It is argued that the amendment pre- scribes the procedure to be followed by material-men in en- forcing claims against a surety on a bond of the nature of the one in suit; that, as amended, the law prohibited a material- man from commencing any action in any district other than that in which the contract was to be performed (in this case and payment for which has not been made, shall have the fight to intervene and be made a party to any action intitutad by the United State on the bond of the contractor, and to have their right and claim adjudicated in such act/on and judgment rendered thereon, eubiect, however, to the priority of the claim and judgment of the United States. If the full amount o! the l/ability of the surety on said bond is insufficient to pay the full amount of said claims and demands, then, after paying the full amount due to the United States, the remainder shall be distributed pro rata among aid inter- venor. If no suit should be brought by the United State within six mentha from the completion and final settlement of said contract, then the parson or parsons supplying the contractor with labor and materials . . . shall, upen application therefor, and furnishing affidavit to the Department under the direction of which said work has been prosecuted, that labor or materials for the prosecution of such work has been supplied by him or them, and pay- ment for which has not been made, be furnished with a certified copy of said contract and bond, upon which he or they shall have a right of action, and shall be and are hereby authorized to bring suit in the name of the United States in the Circuit Court of the United States in the district in which aid contract was to be performed and executed, irrespective of the amount in .controversy in such suit, and not elsewhere, for his or their use and benclOt, against said contractor and his sureties, and to prosecute the same to final judgment and execution: Proved, That where suit is instituted by any of

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