court, and when the day should pass without the sentence being carried into execution the sheriff said afterwards that he apprehended there might be trouble. But that was the next day, and the trouble apprehended would be founded upon the happening of that day, and there was an abundance of time in which to prepare for what might then 438] be attempted. Whatever the sheriff may have thought of the delay which might be caused by the appeal to this court, or however ill-founded his opinion as to the probable length of that delay, his thoughts on the subject furnish no evidence even tending to show that he conspired with the mob, or that he would not do what he could to protect his prisoner when the exigency arose and the time for action arrived. He may have thought there would be great delay, and for that reason did not wonder the people would hate to submit to it. All this, however, is mere evidence as to what it was supposed a mob might do the next day, but is, as I have repeated already, no evidence of conspiracy on the part of the sheriff to aid the mob, and none that he was guilty of a contempt in not resisting or attacking it up to the point of imperiling his life in a futile attempt to protect his prisoner. It seems to me that the sheriff is being held to a degree of responsibility far beyond any reasonable limit, and not justified by the evidence contained in the record. The government based its argument for a conviction of the sheriff very largely upon the interview above referred to, and which I have commented on at some length. Strike that out, and there is really nothing whatever on which to base the shadow of a claim for a conviction. For the reasons given I think the interview itself is wholly insufficient as evidence of the guilt of the sheriff, and I think the rule to show cause should be discharged as to him. I also think the evidence is too slight upon which to convict the jailer. 1056 MEMORANDA OF CASES DISPOSED OF WITHOUT OPINIONS. 487]*EX PARTE: IN THE MATTER OF THE EX PARTE: IN THE MATTER OF THE CONSOL HUDSON OIL & SUPPLY COMPANY, Peti tioner. [No. —, Original.] Motion for leave to file a petition for a Writ of Prohibition. Mr. De Lagnel Berier for petitioner. EX PARTE: IN THE MATTER OF FRANK MCWILLIAMS, Petitioner. [No., Original.] Motion for leave to file a petition for a Writ of Prohibition. Mr. Richard D. Currier for petitioner. SASS & CRAWFORD, Plaintiffs in Error, v. MINNIE THOMAS and Charley Thomas. [No. 112.] Appeal from circuit court of appeals-case arising in courts of Indian territory. In Error to the United States Circuit Court of Appeals for the Eighth Circuit to review a judgment in the United States Court of Appeals in the Indian Territory, affirming a judgment of the United States Court for the Southern District of that territory, in favor of plaintiffs, in an action of unlawful detainer. See same case below, 152 Fed. 627, 82 C. C. A. 19. IDATED RUBBER TIRE COMPANY, Petitioner. [No. -, Original.] Motion for leave to file petition for a Writ of Prohibition. Mr. Charles W. Stapleton for petitioner. April 12, 1909. Denied. GILA BEND RESERVOIR & IRRIGATION COMPANY, Appellant, v. W. H. LINN et al. [No. 199, of October Term, 1897.]; GILA BEND RESERVOIR & IRRIGATION COMPANY, Appellant, v. GILA WATER COMPANY [No. 226, of October Term, 1905]. Motions for leave to file petitions for leave to file bills of review in the lower court. Mr. E. S. Clark for petitioner. March 15, 1909. Denied. KANSAS CITY SOUTHERN RAILWAY COM- In Error to the Supreme Court of the state of Arkansas to review a judgment affirming, upon remittitur of the damages above $25,000, a judgment of the Circuit Court of Miller County, in that state, in favor of plaintiffs in an action for the death of a railway employee while adjusting a coupling. On rehearing in the state court it was contended for the first time that the undisputed evidence showed that the cars were equipped with the automatic couplers required by the Federal safety appliance act, and that it was therefore contributory neg Messrs. W. A. Ledbetter and S. T. Bled- ligence to go between the cars as the desoe for plaintiffs in error. ceased employee did to make the coupling. Messrs. A. C. Cruce and W. I. Cruce for The court said the objection was raised too defendants in error. March 22, 1909. Per Curiam: The Writ of Error is dismissed for want of jurisdiction, on authority of Laurel Oil & Gas Co. v. Morrison, 212 U. S. 291, ante, 517, 29 Sup. Ct. Rep. 394, decided on February 23, last. late, and, further, that, in any event, there was evidence to sustain a finding that the coupling appliances were in such condition that they could not be operated from the outside. See same case below, 87 Ark. 443, 112 8. W. 967. Messrs. James F. Read, James B. Mc-, this nature, in order to secure transportaDonough, and Samuel W. Moore for plain- tion for his cattle by the railway company tiff in error. at the same rate and on the same terms in Mr. William H. Arnold for defendants in its care, but he had the option to have them error. April 19, 1909. Per Curiam: Writ of Error dismissed for want of jurisdiction. Gulf, C. & S. F. R. Co. v. Texas, 204 U. S. 411, 51 L. ed. 545, 27 Sup. Ct. Rep. 360; Behn v. Campbell, 205 U. S. 407, 51 L. ed. 859, 27 Sup. Ct. Rep. 502; Leathe v. Thomas, 207 U. S. 93, 52 L. ed. 118, 28 Sup. Ct. Rep. 30; Stickney v. Kelsey, 209 U. S. 419, 52 L. ed. 853, 28 Sup. Ct. Rep. 508; Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, ante, 417, 29 Sup. Ct. Rep. 220. [No. 154.] The transported at the same rate in the care of the railway company, and to ride on a passenger train from the point of shipment to the destination of the cattle for the regular fare, or to ride free in the caboose car of the cattle train under his contract to hold the railway company exempt from liability for his injuries, and to care for the cattle himself. He freely exercised this option. and chose the latter alternative. danger of injury to one riding in the caboose of a cattle train is about four times the danger to one riding over the same railroad in the coach of a passenger train. Upon these facts, the railway company, which had pleaded its exemption from liability under the contract, requested the court to instruct the jury to return a verdict in its favor; the court refused; an exception was taken to this ruling; and this ruling and many others have been assigned as errors and are pending in this court for determination. "And the circuit court of appeals for the eighth circuit further certifies that other questions of law which relate to the admis Argued and submitted April 16, 1909. De- sion of evidence are presented by the assign cided April 26, 1909. N A CERTIFICATE from the United States Circuit Court of Appeals for the Eighth Circuit, which, omitting the caption and formal parts, is as follows: "The judgment which the writ of error challenges was rendered after a trial and a verdict of a jury for $5,000 damages. At the trial these facts were conclusively established: The defendant in error was injured by the negligence of the servants of the railway company while he was riding in a caboose of a cattle train under a contract between him and the railway company for the transportation of his cattle at the regular rate, in which contract the railway company had agreed to transport him free, and he had agreed, in consideration of the free transportation, that the railway company should not be liable to him for any injury or damage, from whatever cause, which he might suffer or incur while he was so carried; that the cattle should be in his charge for the purpose of attention and care, and that the railway company should not be responsible for such attention and care, but he should load, unload, water, and feed them. He was not constrained, required, or requested to make this contract, or one of NOTE.-On the definiteness of question to be certified--see note to Waco Water & Light Co. v. Waco, 31 L.R.A. 392. ment of errors in this case, and are pending for the decision of this court, but that the following questions of law are also presented by the assignment of errors, and their decision is indispensable to a determination of this case in this court; and that, to the end that this court may properly decide the issues of law presented, it desires the instruction of the Supreme Court of the United States upon the following questions of law: "1. In a contract between an owner of cattle and a railway company for the transportation of the cattle at the regular rate, which contains the further agreement that the owner shall be transported on the cattle train free in consideration that he contracts that the railway company shall not be liable to him for any injury or damage which he sustains while he is being so carried, and that he will load, unload, feed, and care for the cattle during the transportation, is his agreement that the railway company shall not be liable to him for any injury or damage which he sustains while being so carried a valid contract? 2. Where the owner of the cattle is not constrained, required, or requested to make the contract described in the foregoing question in order to have his cattle transported at the regular rate, but freely chooses to make such an agreement in preference to contracting for the transportation of his cattle at the regular rate at the risk of the railway company, and riding himself on a passenger train to the destination of the cattle at the regular rate, is his agreement that the railway company shall not be liable to him for any injury or damage which he sustains while being so carried a valid contract? "3. Do the facts which were established at the trial, and which are set forth in the statement which precedes these questions, show a valid contract by the owner of the cattle, the plaintiff below, that the railway company should not be liable to him for any injury or damage which he sustained while he was riding in the caboose of the cattle train under the contract specified in the statement?" Dismissed. Mr. O. H. Dean argued the cause, and, with Messrs. W. D. McLeod, H. C. Tim monds, O. M. Spencer, and Hale Holden, filed a brief for the Chicago, Burlington, & Quincy Railway Company. Mr. John H. Denison submitted the cause for Williams. Messrs. John Hipp and Ralph Talbot were on the brief. Mr. William E. Fowler also submitted the cause for Williams. Messrs. D. C. Allen, James M. Sandusky, and S. G. Sandusky were on the brief. upon it. That is the best of reasons for propounding it. The only objection is not to deciding the case here, but to putting questions that turn upon conclusions from evidence, or that present a general statement and ask a judgment with regard to unspecified questions of law. Mr. Justice White and Mr. Justice Moody concur in this dissent. GEORGE W. THOMAS, Plaintiff in Error, v. Error to state court-Federal question. In Error to the Supreme Court of the State of Illinois to review a judgment which affirmed a judgment of the Circuit Court of Cooke County, in that state, condemning certain real property to the use of an elevated railway company, over the objection that the alleged failure of the company to proceed with the construction of the road within two years after its articles of incorporation were filed defeated its right to exercise the power of eminent domain, and that therefore such taking would be a denial of the equal protection of the laws, and without due process of law, in violation of United States Const. 14th Amendment. The state court held that whether the alleged failure of a railway company to proceed to the construction of its railway in compliance with statute operates to defeat the grant of corporate power could only be determined by a direct proceeding instituted in behalf of the state, and could not be raised and urged by a private individual. See same case below, 218 Ill. 571, 75 N. E. 1058. Mr. George W. Thomas, in propria persona. Messrs. Monroe L. Willard and Cecil Page for defendant in error. April 26, 1909. *Per Curiam:[497 Writ of Error dismissed for want of jurisdiction. Stevens v. Nichols, 157 U. S. 370, 39 L. ed. 736, 15 Sup. Ct. Rep. 640; Loeber v. Schroeder, 149 U. S. 580, 37 L. ed. 856, 13 Sup. Ct. Rep. 934; Central Land Co. v. When this case was here before I felt doubts, but deferred to the judgment of the majority, as I think one should when it does not seem that an important principle is involved or that there is some public advantage to be gained from a statement of the other side. But it seems to me that the present order is a mistake upon an important matter, and I am unwilling that it should seem to be made by unanimous consent. I think that such questions are to be encouraged as a mode of disposing of cases in the least cumbersome and most expedi-Laidley, 159 U. S. 103, 40 L. ed. 91, 16 Sup. tious way. The former certificate was thought Ct. Rep. 80; A. Backus, Jr., & Sons v. Fort to invite a consideration of mixed questions Street Union Depot Co. 169 U. S. 557, 42 of law and fact. However that may have L. ed. 853, 18 Sup. Ct. Rep. 445; Ballard been, the present one puts definite questions v. Hunter, 204 U. S. 241, 51 L. ed. 461, 27 of pure law, and I think that those ques- Sup. Ct. Rep. 261; Tracy v. Ginzberg, 205 tions should be answered. Even if the third U. S. 170, 51 L. ed. 755, 27 Sup. Ct. Rep. hould be objected to, the other two are 461; Rusch v. John Duncan Land & Min. complete in themselves. It is no objection Co. 211 U. S. 526, ante, 312, 29 Sup. Ct. to a question of law that the case turns' Rep. 172. ST. PAUL, MINNEAPOLIS, & MANITOBA RAIL | Sup. Ct. Rep. 777; Bacon v. Texas, 163 U. WAY COMPANY and Great Northern Rail- S. 207, 41 L. ed. 132, 16 Sup. Ct. Rep. way Company, Plaintiffs in Error, v. STATE OF MINNESOTA EX REL. CITY OF MINNEAPOLIS. [No. 162.] Constitutional law-requiring railway company to bridge tracks at intersection of new street. In Error to the Supreme Court of the State of Minnesota to review a judgment which affirmed, on a second appeal, a judg ment of the District Court of Hennepin County, in that state, enforcing by mandamus municipal legislation requiring a railway company to construct at its own expense a bridge to carry over its tracks a street which was not extended over the right of way until after the railroad was built. See same case below on first appeal, 98 Minn. 380, 120 Am. St. Rep. 581, 108 N. W. 261, 8 A. & E. Ann. Cas. 1047; second appeal, 101 Minn. 545, 112 N. W. 1142. Messrs. Rome G. Brown, William R. Begg, and Charles S. Albert for plaintiffs in error. Messrs. Frank Healy and Albert E. Clarke for defendant in error. April 26, 1909. Per Curiam: Judgment affirmed on authority of Northern P. R. Co. v. Minnesota, 208 U. S. 583, 52 L. ed. 630, 28 Sup. Ct. Rep. 341. FIDELITY & CASUALTY COMPANY OF NEW YORK, Plaintiff in Error, v. SOUTHERN RAILWAY NEWS COMPANY. [No. 165.] Error to state court-Federal question ruling on evidence. In Error to the Court of Appeals of the State of Connecticut to review a judgment which affirmed a judgment of the Jefferson Circuit Court, in that state, in favor of plaintiff in an action upon an employer's liability insurance policy, over the objection that to admit parol evidence to contradict the written contract, and to substitute therefor the terms of a prior verbal agreement, denied the due process of law and the equal protection of the laws guaranteed by United States Const. 14th Amend ment. See same case below, 31 Ky. L. Rep. 55, 101 S. W. 900. Mr. William H. Field for plaintiff in er ror. Mr. Charles F. Taylor for defendant in error. 499] April 26, 1909. *Per Curiam: Writ of Error dismissed for want of jurisdiction. Central Land Co. v. Laidley, 159 U. S. 103, 40 L. ed. 91, 16 Sup. Ct. Rep. 80; Sayward v. Denny, 158 U. S. 180, 39 L. ed. 941, 15 1023; Burt v. Smith, 203 U. S. 135, 51 L. ed. 126, 27 Sup. Ct. Rep. 37; Barrington v. Missouri, 205 U. S. 485, 51 L. ed. 893, 27 Sup. Ct. Rep. 582; Tracy v. Ginzberg, 205 U. S. 170, 51 L. ed. 755, 27 Sup. Ct. Rep. 461; Thompson v. Kentucky, 209 U. S. 340, 52 L. ed. 822, 28 Sup. Ct. Rep. 533. MICHAEL DONOHOE, Appellant, v. EL PASO & SOUTHWESTERN RAILROAD COMPANY. [No. 516.] Estoppel-by permitting expendituresejectment or trespass against railway company. Appeal from the Supreme Court of the Territory of Arizona. Mr. Charles F. Ainsworth for appellant. Messrs. A. B. Browne, Alexander Britton, and E. E. Ellenwood for appellee. April 26, 1909. Per Curiam: Judgment affirmed. Roberts v. Northern P. R. Co. 158 U. S. 1, 39 L. ed. 873, 15 Sup. Ct. Rep. 756; Northern P. R. Co. v. Smith, 171 U. S. 260, 43 L. ed. 157, 18 Sup. Ct. Rep. 794. FRANK J. LOGAN et al., Appellants, v. FARMERS' DEPOSIT NATIONAL BANK OF PITTSBURGH, PA. et al. [No. 745.] Appeal from circuit court of appealsbankruptcy case. Appeal from the United States Circuit review a decree which modified a decree of Court of Appeals for the Fourth Circuit to the Circuit Court for the Northern District of West Virginia by rejecting all but $22,500 of a claim against the bankrupt's estate, which had been allowed by the Cir cuit Court at $100,000. See same case below, 168 Fed. 465. *Mr. Hector M. Hitchings for appel-[501 lants. Messrs. A. Leo Weil and B. M. Ambler for appellees. April 26, 1909. Per Curiam: Appeal dismissed for want of jurisdiction, on authority of Coder v. Arts, decided April 5, 1909, 213 U. S. 223, ante, 772, 29 Sup. Ct. Rep. 436. EX PARTE: IN THE MATTER OF ISAAC HELLER, Petitioner. [No. —, Original.] Motion for leave to file a petition for a Writ of Mandamus. Mr. Abraham A. Berman for petitioner. May 3, 1909. Denied. |