damage, or injury complained of was notice of claim or filing of claim as a due to delay or damage while being condition precedent to recovery. See loaded or unloaded or damage in transit Hailey v. Oregon Short Line R. Co. by carelessness or negligence, then no supra. notice of claim nor filing of claim shall be required as a condition precedent to recovery." The context does not permit the use of the word "damaged," or allow any meaning to be given to it. Its presence makes a grammatical defect and embarrasses interpretation. It seems obvious that the word "damage" was intended. That word is in harmony with the context as well as with the probable intention of Congress. The final "d" may be eliminated. The intention of the lawmaker constitutes the law. Stewart v. Kahn (Stewart v. Bloom) 11 Wall. 493, 504, 20 L. ed. 176, 178. See Smythe v. Fiske, 23 Wall. 374, 380, 23 L. ed. 47, 49. Being satisfied of the legislative intention, the court will not be prevented from giving that intention effect by a too rigid adherence to the very word and letter of the statute. Oates v. First Nat. Bank, 100 U. S. 239, 244, 25 L. ed. 580, 582. Having found that the word "damage" was intended to be used, the court applies the rule that "a thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; [91] and a thing which is within the letter of a statute is not within the statute unless it be within the intention of the makers." People ex rel. Atty. Gen. v. Utica Ins. Co. 15 Johns. 358, 381, 8 Am. Dec. 243; Hawaii v. Mankichi, 190 U. S. 197, 212, 47 L. ed. 1016, 1020, 23 Sup. Ct. Rep. 787, 12 Am. Crim. Rep. 465. The comma after the word "unloaded" is not entitled to have any weight as evidence of the legislative intention as against the considerations supporting the extension of the qualifying effect of the words "by carelessness or negligence" to all claims referred to in the second clause. "Punctuation is a minor, and not a controlling, element in interpretation, and courts will disregard the punctuation of a statute, or repunctuate it, if need be, to give effect to what otherwise appears to be its purpose and true meaning." Chicago, M. & St. P. R. Co. v. Voelker, 70 L.R.A. 264, 65 C. C. A. 226, 129 Fed. 522, 527. No notice of claim having been given, and no claim having been filed, as required by the uniform express receipt, it was incumbent upon the respondent to show loss, damage, or injury due to delay by carelessness or negligence of the company. The carload of eggs was delivered to the company at Louisville, February 23, and was delivered by the company to the consignee at New York, March 4. It was shown that the car was taken out of Louisville, February 23, on a train of the Pennsylvania Railroad Company, and that it should have gone to Pittsburg without transfer. There was no other evidence in respect of the intended or actual movement of the car. There was evidence tending to show that the ordinary time of a passenger train on the Pennsylvania Railroad [92] between Louisville and New York was twenty-five or twenty-six hours. But there was no evidence that such shipments usually moved, or that this shipment could have moved, on any train making that time, or to show the time usually made by trains upon which such shipments were or could be moved. There was no evidence to show what was the customary or usual time for the transportation and delivery of such shipments. The trial judge held that such reasonable time was not more than thirty hours. We think the evidence was not sufficient to sustain that finding, or to show what was a reasonable time for such transportation and delivery. It follows that there was nothing to give rise to any inference or presumption that failure to deliver at destination within thirty hours was due to negli gence, or to support a finding that there was any loss or damage due to delay caused by carelessness or negligence of the company. The evidence of market value of such eggs in New York city was as follows: February 25th, 53 cents per dozen; February 26th, 52 to 53 cents; March 1st, 36 cents; March 2d, 35.5 to 36 cents; March 4th, 36.5 cents. The eggs in question were sold March 4,-some for 35 cents, some for 35.5, and the rest for 36.5 per dozen. There was no evidence of market value at any other time. The court directed a verdict We hold that the second clause must be read as above indicated,-that care-in favor of respondent for $3,396.26, lessness or negligence is an element in each case of loss, damage, or injury included therein, and that, in such cases, carriers are not permitted to require the difference between the amount for which the eggs were sold March 4 and their value calculated at 53 cents per dozen, the price prevailing February 25. The facts are stated in the opinion. with interest. The date when the eggs, maintenance of railroad shops at a desshould have been delivered to consignee, ignated place. Reversed. and the market value at that time, were essential to respondent's case. In the absence of either, the amount of the loss, if any, cannot be determined. The judgment given cannot be sustained. Reversed and remanded for further proceedings not inconsistent with this opinion. [93] CENTRAL UNION TRUST COMPANY OF NEW YORK, Appt., V. ANDERSON COUNTY, TEXAS, et al. (See S. C. Reporter's ed. 93–97.) Courts - right to maintain ancillary suit. 1. An ancillary suit may be maintained by the plaintiff in the principal suit against strangers to the record, to determine a controversy having relation to the property in the custody of the court, and which, in justice to the parties before the court, ought to be determined in the principal suit. Judgment effect served. questions re2. The sale and delivery of railroad property to a purchaser under a decree of foreclosure does not deprive the court of jurisdiction over the property, or terminate plaintiff's right to carry on an ancillary suit, if the decree reserves all questions not determined and those affecting the property for further hearing and determination. Courts ancillary jurisdiction lief from railroad contract. re 3. A Federal court decreeing foreclosure of a railroad mortgage has jurisdiction of an ancillary suit to determine the validity of an alleged contract requiring the maintenance of shops at a particular place, which, under the allegations, would burden and restrict the operation of the road, require great and unnecessary expenditures, and diminish the value of the road. [No. 178.] Messrs. S. B. Dabney and H. M. Garwood submitted the cause for appellant: The court erred in sustaining the motion to dismiss and in dismissing the cause for lack of jurisdiction, because the suit was ancillary to a suit for foreclosure of a mortgage on railroad properties and was filed before the sale of the properties under the decree of foreclosure, and while the properties were in the possession of the court, whereby the court below had jurisdiction, and such jurisdiction remained, and said. court was the proper forum for the suit. Julian v. Central Trust Co. 193 U. S. 93, 48 L. ed. 629, 24 Sup. Ct. Rep. 399; Krippendorf v. Hyde, 110 U. S. 276, 28 L. ed. 145, 4 Sup. Ct. Rep. 27; Dewey v. West Fairmont Gas Coal Co. 123 U. S. 329, 31 L. ed. 179, 8 Sup. Ct. Rep. 148; Compton v. Jesup, 15 C. C. A. 397, 31 U. S. App. 486, 68 Fed. 263; St. LouisSan Francisco R. Co. v. McElvain, 253 Fed. 123; Ferguson v. Omaha & S. W. R. Co. 142 C. C. A. 145, 227 Fed. 513; Hume v. New York, 166 C. C. A. 564, 255 Fed. 488; Cushman v. Scharf Asphalt Paving Co. 135 C. C. A. 289, 220 Fed. 857; Gas & Electric Securities Co. v. Manhattan & Q. Traction Corp. 266 Fed. 634; Mutual Reserve Fund Life Asso. v. Phelps, 190 U. S. 147, 47 L. ed. 987, 23 Sup. Ct. Rep. 707; Peck v. Elliott, 38 L.R.A. 616, 24 C. C. A. 425, 47 U. S. App. 605, 79 Fed. 10; Brun v. Mann, 12 L.R.A.(N.S.) 154, 80 C. C. A. 513, 151 Fed. 145. Warren The court erred in dismissing the cause, because in the suit to which this suit was ancillary, it had the power to reserve, in the decree of foreclosure of the railroad properties and in the decree of confirmation of sale after the institution of this suit, exclusive juris Argued and submitted January 16, 1925. diction. Re Farmers' Loan & T. Co. 129 U. S. 206, 32 L. ed. 656, 9 Sup. Ct. Rep. 265; APPEAL by complainant from a de- Wabash R. Co. v. Adelbert College, 208 cree of the United States District Court for the Southern District of Texas dismissing a suit to test the validity of a contract requiring the U. S. 38, 52 L. ed. 379, 28 Sup. Ct. Rep. 182; Central Trust Co. v. St. Louis, A. & T. R. Co. 59 Fed. 385; Smith v. Missouri P. R. Co. 266 Fed. 653; Gunter v. Atlantic Coast Line R. Co. 200 U. S. 273, Note.-On direct review by Federal 50 L. ed. 477, 26 Sup. Ct. Rep. 252; InSupreme Court of district court judg-ternational & G. N. R. Co. v. Anderson ments or decrees-see notes to Gwin v. County, 246 U. S. 431, 62 L. ed. 815, 38 United States, 46 L. ed. U. S. 741; B. Sup. Ct. Rep. 370. Altman & Co. v. United States, 56 L. ed. U. S. 894, and Berkman v. United States, 63 L. ed. U. S. 877. Mr. Nelson Phillips argued the cause, and, with Messrs. Murphy W. Town send, A. G. Greenwood, A. M. Barton, pany failed to pay the mortgage debt, Roy C. Sewell, and E. V. Swift, filed a $12,908,461.06, with interest, the propbrief for appellees: The suit having been brought by appellant solely in virtue of its mortgage, and it appearing that the mortgage has been duly foreclosed, the sale of all the railroad property thereunder duly made and confirmed, and the property duly delivered to the purchasers, and now being owned by the railroad company, with which it is operating the railroad, appellant has no further possible interest in the maintenance of the suit, and the appeal is accordingly entitled to be dismissed. Willis v. Moore, 59 Tex. 635, 46 Am. Rep. 284; Soell v. Hadden, 85 Tex. 188, 19 S. W. 1087; Perkins v. Sterne, 23 Tex. 563, 76 Am. Dec. 72; Hutton v. Metropolitan Elev. R. Co. 19 App. Div. 243, 46 N. Y. Supp. 169. The suit is not one ancillary to the foreclosure proceeding. And since all the defendants were residents and inhabitants of the eastern district of Texas, the court was without jurisdiction, and the bill was properly dismissed. Hoffman v. McClelland, 264 U. S. 552, 68 L. ed. 845, 44 Sup. Ct. Rep. 407; 2 Street, Fed. Pr. § 1251; Barrow v. Hunton, 99 U. S. 80, 25 L. ed. 407; Marshall v. Holmes, 141 U. S. 589, 35 L. ed. 870, 12 Sup. Ct. Rep. 62; Arrowsmith v. Gleason, 129 U. S. 86, 32 L. ed. 630, 9 Sup. Ct. Rep. 237; Buck v. Colbath, 3 Wall. 334, 18 L. ed. 257. Mr. Justice Butler delivered the opinion of the court: The complaint in this case was filed as ancillary to and dependent on a suit for the foreclosure of a mortgage on railroad properties. On the motion of defendants, the district court held that it had no jurisdiction and dismissed the cause. This is an appeal from that decree. The question of jurisdiction alone is certified. Judicial Code, § 238. erty should be sold. Pursuant to the decree, all the property, consisting of 1,106 miles of railroad, all money, claims, and assets in the hands of the receiver, was sold for $5,000,000, subject to the lien of a first mortgage and other existing obligations, as well as such obligations as the court thereafter should fix. By decree of August 10, 1922, the court confirmed the sale and directed the execution of a deed to the International-Great Northern Railroad Company. June 5, 1922, before the sale, appellant filed this complaint. The defendants were the railway company, Anderson county, Texas, the county judge, the clerk of the county court, the city of Palestine, in that county, its mayor, and certain of its citizens as representatives of all similarly situated. The complaint alleges as follows: The defendants, except the railway company, were asserting that, in 1872 and 1875, contracts were made with the predecessors of the railway company which, taken with an act of the legislature of Texas of 1889, amended in 1899, operated to require the original contracting companies and all successors in title forever to maintain the general offices, shops, and roundhouses at Palestine. In 1912, the defendants had sued the railway company in the state district court, and obtained a decree requiring it forever to keep its general offices, shops, and roundhouses at Palestine.1 [95] Although, at the time of bringing suit, defendants had knowledge of the existence of the mortgage, they failed to make plaintiff a party to the suit. They insist that the decree is res judicata and binding against plaintiff and any purchaser under the foreclosure sale; and they threaten, if it is not observed by the purchaser, to enforce the decree with penalties. It is impossible to maintain the general offices, shops, and roundhouses at Palestine without great loss and injury to, and burden on, the railroad property. The claims of defendants, if maintained, will cause a net loss in operating the railroad of not less 1 The act above referred to is now arti [94] In 1911, the International & Great Northern Railway Company was organized, and acquired under mortgage foreclosure sale all the property of the International & Great Northern Railroad Company. At the time of the purchase, the railway company made a mortgage of all its properties to appellant. The latter brought suit in equity against the railway company to foreclose the mortgage, and, August 10, 1914, the court appointed receivers, who took possession of and operated the property. 106 Tex. 60, 156 S. W. 499; Tex. Civ. May 17, 1915, the court entered a decree App. 174 S. W. 305, 246 U. S. 424, 62 of foreclosure, providing that if the com- L. ed. 807, 38 Sup. Ct. Rep. 370. cles 6423-6425, Revised Statutes of Texas. The substance of the statutory provisions in the case, which are reported, respectiveand litigation is disclosed by the decisions lv, in Tex. Civ. App. 150 S. W. 239, than $500,000 per year, and thereby, ent bill. But in either case the prodiminish the value of the property by ceeding is purely ancillary." Ancillary not less than $3,000,000, and constitute suits are not limited to those initiated a cloud and burden on the title and by persons who desire to come in and value of the property. The alleged con- have their rights determined. Such a tracts of 1872 and 1875 were never suit may be maintained by the plaintiff made; and, if made, never became bind- in the principal suit, against strangers ing on the successors of the corpora- to the record, to determine a controtions with whom they were made, and versy having relation to the property in are not binding upon plaintiff or any the custody of the court, and which, in purchaser under the foreclosure decree. justice to the parties before the court, Defendants, without equity or right, are ought to be determined in the principal clouding the title and burdening the suit. See Compton v. Jesup, 15 C. C. A. property, to the great injury of plain- 397, 31 U. S. App. 486, 68 Fed. 263, 284; tiff, its trust, and any purchaser of the Street, Fed. Eq. Pr. § 1248. property. The suit is brought in aid of The provision of the decree of May the principal cause and the decree of 17, 1915, retaining jurisdiction, extendforeclosure, and for the benefit of the ed to all questions not determined, and plaintiff and any purchaser under the reserved the right to resell the property decree, and for the purpose of deter- in case the purchaser [97] should fail mining whether the claims of Anderson to make any payment on account of purcounty, Palestine, and its citizens are chase price within a specified time after valid in law or equity. By appropriate the order requiring it. The decree of provisions in the decree of May 17, August 10, 1922, confirming the sale, 1915, foreclosing the mortgage and au- retained jurisdiction over the property thorizing the sale, and in the decree of with reference to all claims against the August 10, 1922, confirming the sale and railway company, and to enforce paydirecting conveyance to the purchaser, ment of any judgment therefor out of the court retained jurisdiction to deter- the property sold. It reserved all quesmine any [96] questions affecting the tions relating "to suits now pending in title to the property, or that are germane this court in this cause, or affecting the to the purpose or substance of this suit. property above dealt with . . for Plaintiff prays that the court forever further hearing and determination enjoin defendants from asserting, or in ." In view of the reservations in any court attempting to enforce, their these decrees, the sale and delivery of claims that such offices, shops, and the railroad properties to the purchaser roundhouses shall be kept at Palestine, did not deprive the court of jurisdiction and that it decree the railroad prop-over the property, or terminate plainerty to be free from the burden and tiff's right to carry on this suit. cloud of such claims. Wabash R. Co. v. Adelbert College, 208 If the complaint discloses a controversy that is ancillary to and dependent on the foreclosure suit, the district court had jurisdiction. The rule permitting third persons to come into suits in Federal courts to enforce their claims Taking the allegations of the comin respect of property there impounded plaint to be true, the maintenance of is stated in Hoffman v. McClelland, 264 the general offices, shops, and roundU. S. 552, 558, 68 L. ed. 845, 847, 44 Sup. houses at Palestine burdens and reCt. Rep. 407: "It is settled that where, stricts operation, requires great and in the progress of a suit in a Federal unnecessary expenditures, and correscourt, property has been drawn into the pondingly diminishes the value of the court's custody and control, third per- railroad. If, as asserted in the comsons claiming interests in or liens upon plaint, the claims and insistence of the the property may be permitted to come defendants are groundless, plaintiff had into that court for the purpose of set- a right to have the property sold free ting up, protecting, and enforcing their from such burdens and restrictions. claims, although the court could not The controversy has direct relation to consider or adjudicate their claims if it the operation, use, and value of the railhad not impounded the property. Pow- road property, and must be held to be er to deal with such claims is incident ancillary to and dependent on the foreto the jurisdiction acquired in the suit closure suit. The District Court had wherein the impounding occurs, and jurisdiction, and should have heard and may be invoked by a petition to inter-determined the merits. vene pro interesse suo or by a depend- Decree reversed. 864 [98] UNITED STATES, Appt., v. HARRIET ROGERS FLANNERY and J. Rogers Flannery, Executors of the Estate of James J. Flannery, Deceased. (See S. C. Reporter's ed. 98-105.) Internal revenue - fixing loss on sale of stock Act of 1918. If corporate stock purchased before March 1, 1913, is in fact sold for more than cost, although for less than its value on such date, the value on that date cannot be adopted for the purpose of showing a loss which can be deducted in assessing an income tax under the Act of 1918, providing that, for the purpose of ascertaining loss sustained from the disposition of prop erty, the basis shall be, in case of property acquired before March 1, 1913, the fair market price or value of such property as of that date. [No. 527.] Argued January 12, 1925. A 13, 1925. Wendell, 196 App. Div. 827, 188 N. Y. Supp. 301; United States v. Goldenberg, 168 U. S. 95, 102, 42 L. ed. 394, 398, 18 Sup. Ct. Rep. 3; United States v. Standard Brewery, 251 U. S. 210, 217, 64 L. ed. 229, 234, 40 Sup. Ct. Rep. 139. Mr. Edward B. Burling argued the cause, and, with Mr. Spencer Gordon, filed a brief for appellees: The Revenue Act of 1918 plainly makes the March 1, 1913, value the basis for calculating losses, regardless of original cost. Doyle v. Mitchell Bros. Co. 247 U. S. 179, 185, 187, 62 L. ed. 1054, 1060, 38 Sup. Ct. Rep. 467; Southern P. Co. v. Lowe, 247 U. S. 330, 335, 62 L. ed. 1142, 1147, 38 Sup. Ct. Rep. 540; Goodrich v. Edwards, 255 U. S. 527, 65 L. ed. 758, 41 Sup. Ct. Rep. 390; Merchants' Loan & T. Co. v. Smietanka, 255 U. S. 509, 65 L. ed. 751, 15 A.L.R. 1305, 41 Sup. Ct. Rep. 386; Eldorado Coal & Min. Co. v. Decided April Mager, 255 U. S. 522, 65 L. ed. 757, 41 Sup. Ct. Rep. 390; Walsh v. Brewster, 255 U. S. 536, 65 L. ed. 762, 41 PPEAL by defendant from a judgment of the Court of Claims in plaintiffs' favor in an action to recover an income tax paid under protest. Reversed. See same case below, 59 Ct. Cl. 719. The facts are stated in the opinion. Solicitor General Beck argued the cause, and, with Messrs. Nelson T. Hartson and Frederick W. Dewart, filed a brief for appellant: Where a taxpayer sells property for more than it cost him, he is not entitled to claim a loss, even though he receives less than he would have been paid for it on March 1, 1913. Walsh v. Brewster, 255 U. S. 536, 65 L. ed. 762, 41 Sup. Ct. Rep. 392; Goodrich v. Edwards, 255 U. S. 527, 535, 65 L. ed. 758, 762, 41 Sup. Ct. Rep. 390; Bush v. Law, 206 App. Div. 800, 201 N. Y. Supp. 513; People ex rel. Klauber v. Note. On inheritance and succession taxes, generally-see note to Magoun v. Illinois Trust & Sav. Bank, 42 L. ed. U. S. 1037. As to valuation of property for inheritance tax-see note to Re Woolsey, 24 A.L.R. 1041. As to classification of inheritances or gifts for purposes of succession tax on basis of amount-see note to State ex rel. Foot v. Bazille, 6 L.R.A.(N.S.) 732. As to income tax on sales of property -see State ex rel. Bundy v. Nygaard, L.R.A.1917E, 566. Sup. Ct. Rep. 392; Eisner v. Macomber, Brushaber v. Union P. R. Co. 240 U. S. Messrs. Arthur Ballantine and Bernhard Knollenberg filed a brief as amici curiæ: Act fix the March 1, 1913, value of the U. S. 438, 442, 45 L. ed. 1171, 1172, 21 Messrs. Richard W. Hale, Reginald H. Smith, and Sanford Robinson also filed briefs as amici curiæ. Mr. Justice Sanford delivered the opinion of the court: James J. Flannery bought, prior to March 1, 1913, certain corporate stock for less than $95,175. Its market value on March 1, 1913, was $116,325. He |