roadbed should have been given. But it is not necessary to go into a detailed statement of the facts. As stated before, I am satisfied that the master has reached a correct conclusion, and that there was negligence on the part of the receiver and his subordinates in undertaking to move that train over that track in its condition at that time. The question, however, about which I have been more perplexed, is the amount of damages awarded by the master. He has given the basis upon which that award was made. The earning capacity of these two men was shown. Their probable future life was established by the annuity tables, and the master, giving due allowance for the extra hazard to life because of the nature of the employments of the deceased, made his calculation, and allowed to Cassie Alberts the sum of $9,935, and to Ida Beaulieu the sum of $11,606. It is evident in this estimate that the master has given to these petitioners the full benefit of all the probable years of life before them, and the full benefit of their present maximum earning capacity. One of the most difficult questions for a court to determine is a correct and just measure of damages in a case of this kind. It is hard to say that a human life is not worth such a sum as the master has given in this case, because the record shows these men 'were men of excellent habits, fond and affectionate husbands, and in every way a help and comfort to their families and useful to the public, and it is with great reluctance that I interfere in any way with this award. But in a large number of states where the limit for the loss of life has been fixed by legislation the sum of '10,000 has been fixed as the maximum allowance to be made. This is a legislative construction of a fair maximum sum to be awarded in such cases. I think' the court may properly, therefore, accept this concurrent judgment of 80 many different state legislatures as justifying it in saying that the maximum ought not in anyone of that, if the petitioner Ida Beauthese cases to exceell lieu will reIUit sufficient of the award made to' her to reduce it to the sm:pof $10;000, and if the petitioner Cassie Alberts will remit sufficient of the award made to her to reduce it to $8,500, the court to that amount, and order the receiver will then approve to pay the, same.
MltLER v. MORGAN.
Oourt of Appeals, Fifth Olrcult. DeeeJPber 18, 1894.)
BILLS 01' EXCEPTIONS-Tum 01' :fILING-ExPmA.TION 01'.
A bill ot· exceptions allowed and filed' after the close of the term, rule or consent of the parties, and Without authority or any 110t wltbinthe time specially allowed or any extension .thereof, Is Imand cannot be considered. U. S., T. Jones, 13 Sup. Qt. 840.149 U. S.262,followed. . "
ern District! of Texas.
In Er1'6r to the Circuit Oourt of the United States for
MII.LER V. MORGAN.
This was an action brought by George B. Morgan, receiver of the Ninth National Bank of Dallas, Tex., against W. B. Miller and his wife, E. A. Miller, to recover $3,000, being an assessment of '60 made by the comptroller of the· currency of the United States upon each of 50 shares of the stock of the bank held in the name of E. A. Miller. The court charged the jury that the stock on which the assessment was made was the community property of W. B. Miller and his wife, and directed the jury to find for the plaintiff, as against defendant W. B. Miller, but not to find anything against defendant E. A. Miller. A verdict was returned in accordance with these instructions, and the court entered judgment thereon against W. B. Miller for $3,172.50, and in favor of E. A. Miller for her costs. W. B. Miller brings error. Barry Miller, for plaintiff in error. U. F. Short, for defendant in error. Before PARDEE and McCORMICK, Circuit Judges. and BRUCE, District Judge. PARDEE, Circuit Judge. Judgment was rendered in this case on 'May 30, 1894, and on June 1, 1894, a motion for a new trial was made, which, on July 2d, was overruled; the overruling order reciting that "the defendants be allowed twenty days from this date within which time to prepare, submit, and file bills of exception herein." The court adjourned for the term on July 11, 1894. No bills of exception were prepared and filed within the 20 days allowed by the order of the court, but some 8 days after the expira· tion of the time, to wit, on the 30th day of July, 1894, the plaintiff in error, without notice to the defendant in error, and without his consent, and without any standing rule of the court authorizing the same, applied to the judge who tried the case, and obtained an order, to wit: "In this case the defendants are allowed until August 10, 1894, to prepare and present bills of exceptions." No exceptions were filed within the time allowed by this order, but bills of exception were prepared and submitted to the trial judge, and by him signed and delivered to the clerk, who, on the 20th day of August, 1894, indorsed thereon: "Filed as of date Aug. 10th, 1894, by order of John B. Rector, U. S. Dist Judge." The bills of exception were improvidently allowed. U. S. v. Jones, 149 U. S. 262, 13 Sup. Ct. 840, and cases there cited. See, also, Railroad Co. v. Russell, 60 Fed. 501-503, 9 O. C. A. 108; U. S. v. Carr, 61 Fed. 802, 10 C. C. A. 80. As the errors assigned arise wholly upon the bills of exception, we are oompelled to affirm the judgment; and it is 80 ordered. .
FEDERAL REPORTER t
CENTRAL TRUST CO. v. CONDON et aL (Circuit Court of Appeals, Sixth Circuit. March 5, 189lS.) No. 207.
One E., In April, 1890, made a contract with the K. Ry. Co. for the construction of its road. The contract was dated back to August, 1887, to cover the time during which a construction company had been engaged in building a part of the road, under a contract which bad been assigned to E. The first clause provided that E. agreed to build and complete the road on the designated route, according to specifications. By the second clause E. agreed to furnish the money to pay for right of way and depot grounds, and for legal proceedings necessary to acquire the same, and It was mutually agreed that all works, materials, and plant theretofore constructed, equipped, and provided by either party, then In use about the construction or operation of the road, should be deemed works, materials. and plant provided under the agreement by E., and should be his property. By thll third clause the K. Ry. Co. agreed, whenever required by E., to survey and layout Its road, and acquire by purchase or condemnation such rights of way, etc., as were necessary. The fourth and fifth clauses provided that the railway company should execute a mortgage to secure Its bonds, or the bonds of any other company taken or used by E. In payment, to the amount of $20,000 per mile, and to pay E. for the railroad construction $20,000 per mile In first mortgage bonds and $20,000 per mile In stock. The last clause provided that the road should be fully con· structed, and furnished with all the appurtenances contracted for, before August 13, 1890, but that E. might sooner deliver to the railway company any completed portion of the road, and the same should then be operated by the railway company, E. paying all expenses and receiving all the earnings. Held, that this contract did not Impose upon E. an obligation to furnish the road with an equipment of rolling stock. railway company, but when he first made a Held, that E. was not such stock.
SAME-DAMAGES-FAILURE TO DELIVER WORTHLESS STOCK.
E. received a large amount of the stock of the less than he was entitled to receive. At the time demand for the stock, however, It was worthless. entitled to any damages for the failure to deliver
S. SAME-CONSTRUCTION OF RAILROAD.
In order to complete the road within the time limited, and to secure certain stock subscriptions, made conditional upon such completion, E., with· the assent of the railway company, constructed a temporary line around a difficult part of the road, and afterwards constructed a part of the permanent line by a more direct route, which required more difficult and slower work. E. received the stipulated rate per mile for the temporary line. Held, that E. was entitled to payment and a lien for so much of the permanent line as he completed as It was reasonably worth.
Held, further, that E. was not entitled to extra pay for building cattle guards, water tanks, stop gaps, slides, sidings, or Y's, the same being all parts of the complete construction of the road; nor was he entitled to a lien, under the Tennessee statute (Mill. & V. Code, § 1774), for a steam shovel, purchased by E., and which passed into the possession ot the railway company.
Held, further, that E. was entitled to be repaid for expenditures for engineering of the road.
SAME--PAYMENT OF INTEREST ON BONDS.
Pursuant to an arrangement between the K. Ry. 00. and the M. Ry, Co., a line owned by the same persons who had projected the K. Ry. Co. as an extension of the M. Ry., bonds of said M. Ry. Co. were issued to E. In part payment of the amounts due under his contract. Before the contract was completed, certain interest on these bonds fell due,