·CAMPBELL '0. JAMES.
chase of stock from Carter & Gibson, and the mortgaging of the company's property to secure the indebtedness crell.tedby such purchase of stock; was fraudulent as to existing creditors. Without disputing any of these positions, it is sufficient to say that, as the case is presented to the court, the complainants consented to the purchase of stock from and the execution of the mortgage' to Carter & Gibson, and as long as the complainants stand upon the mortgage of November, 1885, which lsthe basis of their bill, they are estopped from attacking the validity of the Carter & Gibson mortgage. The injunction pendente asked for must berefused, and the restraining order heretofore granted upon a bill not setting forth the conceded facts in the case must be dissolved.
(Oitrcuit Oour:t, B.,D. New York. July 14, 1887.)
Where a cause was remanded to the circuit court from the supreme court. with directions to the lJill pf .complaint, held, .such mandat\l included the whole bill upon whICh plaintiff's case rested,and that a decree of this court dismissing not only the original, but also the amended, bill of complaint, did not go beyond the mandate.
If there was any error in the decree. it could ouly be corrected at that term, or by proceedings for review under the rules or on appeal, not by motion at subsequent term.
BILL---AMENDED B I L L . .
SAlliE-CORRECTING ERROR IN DECREE.
In Equity. MarCUIJ P. Norton, for plaintiff. Stephen A. Walker, U.S,Atty., for defendant· .WHEEL;ER, J. This cause was remanded from the supreme court at its October term, 1881, to this court, with directions to dismiss the. bill of complaint. This court, after various delays in the taxation. of costs, in its October term, 1883, entered a final decree dismissing the bill 'and amended. bill of complaint, with coststaxed, and awarded execution for the costs. The plaintiff now in this April term, 1887, moves to set aside this decree, and for further proceedings. It is said, in support of this motion"that this.court went beyond the mandate to dismiss the bill, by dismiflsing not only the bill" but the amended bill. It is understood, however, that the bill. directed to be dismissed :was the whole bill on case rested, including the original bill as anIflnded, which the as well, as the original bill as at first filed. Nothing would be accomplished by dismissing, the original bill,and leaving the an16nded bill" on which the cause depended and was tried, still pending. Perhaps it would have been more proper to have made a decree dismissing the bill merely
ml'ndate, leav.ing it to include the whole bill, I'S the 104 U. S. 356. But, however that maybe, the decree which"this court! made was full arid final, and dis.Whole case. If there was any error in it, the error could J>p.ly,becorl'ected ,at tbat. (tenn, or by proceedings for· review under the -rules, 0.1' on appeal. Bronson v. Schulten, 104 U. S. 410; Ph1llipav. Negley, 117JJIS.665, 6 Sup. Ct. ,Rep. 90l. This ,court is withoutpower to open the case now. Motion denied.
, .' ;,1'
(On intervention of
(Circuit Oourt, llJ. D. Louisiana. January 22, 1887.)
RAILROAD COMPANIES-NEGLrGENd:s:=-:-DAMAGE ,FROM FIRE,
Where the evidence shows that the fire complained of originated from sparks or otJ;ler fire from,a loc:omotive of ,the company, in a manner so liS to make It reasonably probable and certain enough to raise the presump'tion of ignorance in the operation of said engine, the defendant company wIll be held responsible for the damages resulting from the fire.
In Equity., ,On excepti<?tls to J. Jr., for.intervenor. W. W. Howe and S. S. PrMtiss, for receivers.
PARDEE, J. :Exceptionsarefiled to the. master's report, to the effect that the facts do not establish a presumption of negligence against the receivers, nor a legal basis for a recovery in favor of intervenor. An examination of the evidence shows that all ,the circumstances point to the fact that the fire frOl;n from engine 619 of the railway, not so strongly as to .t::rlitke it certain, but so as to make it reasonably probable, and certain enough to raise thepresumptioll of negli,gence: in thEJ!6pera!tion 6fthesaid engine. This showing is only met roy evidence shoWing that on the morning of the 'day' the ,fire occurred, J.uly 31,1'886; 'lind four days afterwardS,on August 4,1886, theengine 619 wits examii:Ied at Marshall shops, and then the condition of the stackthe dumper was good. The fireoccUtredabout 190 Marshall shops, and at 12 hours after first miles west amination, !and3l days before the second. And after the first exami.. nation,' and' before the fil.'e, the engine must have traveled over that distance of 190 miles. At any: time betw'eeu'the twoexamiriations,' while the, 6ngitie l was'inuse, the or dumper maybave' been shaken iht0bad 'ordel'; Whether the engine was examinedll.t'any of the shops west'of does not appear.' 1'he master ooD.clUdesthat the en" gineer so the engirie,l not' ;dJfective in its appliances, as to
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'. ;JReported byJosephP. Hornor, Esq;, 'of1he New- Orleans bar;' ,