foreclosure may be maintained. It doe!! not follow ,beC!1use,. the administrator is the proper party.to collect the debts due a decedent, and pay creditors, and for that purpose bring suits, that under no can the heirs at law maintain a suit to collect a debt which has not been collected by the personal representative. Having paid all creditors, and all expenses of administration, the administrators delivered the notes aud mortgages to the complainants, the only persons entitled to them in equity; and there is no reason why their ,possession should now be disturbed. The demurrer is overruled.
TEXAS & P. Ry. Co.l
(Oircuit Court, E. D. Louisiana. June 21, 1887.) 1.
RECEIVERS-'-ADVICE OF COURT.
Receivers can have &,eneral'advice and instructions, and, in particular eases, particular advice .and Instructions on application to the court. If there are parties in interest, and they have their day in couri, the advice may be decisive; but, if the matter is 6(Il part6, such advice is biilding only on the receivers, for the judge may change his mind on hearing full argument.
Under section.4 of the interstate commerce law, relating to the charges for the 16ng and shQrt haul, it seems that where the circumstances and conditions are dissimilar there is no prohibition; where the circumstances and conditions are similar the prohibition attaches; and that where it is difficult to point out clearly the circumstance or condition which produces dissimilarity, the doubt should go in favor of the object of the law, and the circumstances and conditions should be taken as substantially similar. Where the circumstances and conditions are similar, or substantially similar, and the result to the carrier is injurious, relief can be had. only through the commission.
In the Matter of the Petition Of Receivers for advice in relation to the <lOnstruction of the fourth section of the interstate commerce act. W. W. H(JIJ)6, for receivers. PARDEE, J. The petition of the receivers of May 23d, the evidence and report of the special master, and the arguments have been carefully oonsidered. The nature of the matters presented precludes anything beyond ex pa.rte consideration. The receivers of the Texas & Pacific Railway, operating its lines of railway under the general direction of the . court, can have general advice and instructions, and, in particular cases, particular advice and instructions on application to the court. The value of such advice depends: If there are parties in interest, and they. have their day in court, the advice may be decisive. But, if the matter is ex parte, the value of tbe advice depends largely upon the information and ability of the judge, and is probably binding only on the receivers, for the judge may change his mind on hearing full argument.
IReported by Joseph P. Hornor, Esq., of the New Orleaus bar.
MISSOURI PAC.'RY. CO; V. TEXAS & P. RY. CO.
Under of the i:qterstate commerce law, relating tothe charges for the long haul, it seems that where the circumstances and conditions are dissimilar there is no prohibition; where the circumstances and conditions are similar the prohibition attaches; and that where it is difficult to point out clearly the circumstance or condition which. produces dissimilarity, the doubt should go in favor 0: the object of the law, and the circumstances and conditions should be taken as substantially similar. Where th!il circumstances and conditions are similar, or substantially similar, and the result to the carrier is injurious, relief can be had only through the commission. The bulk of the petition presEmted, of the evidence, and of the master's report, is an argument against the interstate commerce act, and a rather vivid showing of the disastrous effects of an ,enforcement of the act with the popular construction given to the long and short haul clause, so far as the lines of the Texas &Pllcific Railway are concerned; and if any specific question is presented for the answer of the court, it is whether competition between carriers is a circumstance or condition of the riagein the ,sense in which those words are used, in ·thefourth section of said law. Theeffeetofthe enforcement orthe law upon the particular property in the hands of the receivers need not be considered, when the wholeof how tocotnply with the law. That competition, the life outs an important figure in the conditions and circumstances attendant upon transportation ofproperty and passengers, cannot well be overlooked nor denied. Nor can it well be denied that, as between theshort. and long haul, competition: may exist to that extent that what, woulddtherwise be similar circumstances and conditions will be dissimilaroircUmstances and conditions. Whether in any particular case there is that on the long haul that will justify a lower charge for the longha:1l1 than as charged' for the short haul, tinder otherwise similar circumstllnces and conditions, must be determined on the facts of the particular-case; keeping in: mind that, where the matter is not clear,the object and the policy of the law should prevail. ' As to competition its effects,and generally as to the questions under the said interstate commerce act, the receivers are referred to the late deeision'of the commission upon the petition of the Louisville & Nashville and other railroads; rendered June 16th instant. This decision is elaborate and well considered, and answers all the points made by receivers',petition herein as specifically as their general nature will permit. 'lfM lights furnished by the commission, with a disposition to enforce, the law, (giving the same an enlightened and liberal construction, to the end that the mischiefs at which the law is aimed may be prevented without unnecessary injury to any 'Species of property ,) ought to be sufficient to guide any railroad traffic manager, and to enable him to protect himself and his company against any serious complaint of unjust discrimination or unlawful conduct.
FEDERAL REPORTER. , MIsSOURI PAC. Ry. CO. v. TEXAS & P. Ry.Oo.l
In re DAVIS.
«(Jircuit (Jourt. E . .D. j,ouisiana. }1:ay 28, 1887.)
A shipper's order calling for a specific number of cars for a specified day will not, unaccepted by the carriers, constitute a CO,ntract binding on either.
On report of Master on Petition, of I. T. Davis, Claiming Damages. Sexton &- Smith and I. H. Kenna1'd, Jr., for petitioner. W. ,W. Hvwe, for receivers. PARDEE, J. This mattei" has been heard on exceptions to the master's report recommending a dismissal of the claim. The master's report fairly and fully sets forth the facts as shown by the evidence, and his legal' conclusions on the facts are supported at e\;ery,step by the' authority of adjudged cases. As the case seems to me, the claimant has, failed to establish the basis of his claim for damages, to-wit, a contract with the receivers to furnish him a specified number of cattle cars on a specified day. It may be taken as granted that thl" receiver's station agent had authority, from the general scope of his agency, to bind the receivers:in a contract to furnish cars, but it does, !lot appear that he , made Rny contract to that effect: A shipper's order palling for a spedfic number of cars for a specified day will not, by the carriers, constitute a contract binding on either. A contract of the kind referred to will bind the carrier to furnish the cars, and the shipper to furnish the goods to load the carS. Under the evidence it is apparent that the claimant did, not intend to bind himself to furnish any certain number of cattle for shipment. In fact, he did not know, at the time of the alleged first contract, how many cattle he would have to ship, or when he would be ready to ship them; and, when he sent his order for cars, he or4ered 75, when he had cattle for only 43; and at the time of the second alleged contract he again makes application for 75 cars for himself' and Beal, but fixes no particular day for shipment, and when he brings the cattle in has enough only for about 40 cars. · It is therefore ordered that the exceptions to...the master's report be overruled; that the said report be in all respects confirmed; and that the said intervention be dismissed.
lBeported by Joseph P. Hornor, Esq., of the New Orleans bar.