with more or less brevity the reasons for such decision in each case. It is quite possible thf\t .il;1 of these assignments ;"indee!l",.it"umy be wrong :\:s to each a:ntl etery'one' ()fthe'r:I1;but it is th6ug'tit'ftlat the proper practice for the correction Ofliluch errors is by certiorari, and '. ."i' not by certificate.."." P)aiIlJtiff jp err()r al;lksto' have per)llating--,certain parts of the evidence. which .he 'has selected.' Defendllnts in'el'ror inslstthaf thitf seleetioni'is tinfair,'andask that furtlierquofutlons;to:b'e selectM'by lidMIl. .It is quite w()uld, satisfy both.. apparent that no "selection" from the parties iand· neitberthe coud (below, nor. the .jury, nOr this court passed onanysuch,".selecfion," but on the body of proof. '['he foundlltion of the motion'Js the ill, rul,e3,7pf thestIPi'em,e c'Ourt which provides that certIficates' ttshan' corifairi 'a proper statement of facts ,qn;wmch propoaitipn, of law aristjl'j.,,; B,ut the very phraseology of this clause indica,tes' tb,atWJ is the fundtl-, that the, which evidenti\ll facts are inthe fundamental facts are fo 11I1 (1.. .When ,it to .be a question cluded as part of of inixed law and fact," such of pure law,' and becom:eli' it as involves questions ofi jl1dgmeri1!by the court upon the weight or effect of testimony, or facts adduced in the case. And it is certainly settledbyauthol'ity that certification is not tor,The availed ;of to propound to the supremecourt'.any such "question of:mixt!d laW and fact." ;Jewellv. Knight, 123 426, 8 Sup.CiL 193: We find DO fundamental fact in the proposed amendment not already included in our statement; only evidentiallfacts from which 'plaintiff in error may make some contention that the jury 'and this court erred in finding one or m')ret>fthe fundamental Jacts against plaIntiff in error,or that the verdict wa,s excessive. For these reasons the mo.. tion is denied.
(Circuit Court of AppeAls; Ninth CI:rctiit.
February 7, 1808.)
APPEAL AND ERROR-ExCEPTIONS TO INSTRUCTIONS'-TIME FOR TAKING.
. ,Exceptions to Instructions taken after the jUry. bad retired 'will not be' con-· sidered, thQugh It Is shown by the recprd tbat ,by the practice and l'ullngs of the. trial court S\lch exceptions were; not, allowed to be In the presence of the jury.
In Error to the Circuit Court of the United,States for the Northern Division of the District of Washington. . George H. Fearons, L. D.' McCutcheon, and R. B. Carpenter, for plaintiff in error. , Harold Preston, E.M. Carr, and L. C. Gilman, for defendant in error. ,.; r ROSS"and MORROW, Qircuit Judges. ;., ,·.' , '. J.i .'-'. ;, .;
i", " , ;' . ·
f ' .... '. " ".. ) ,
WESTERN UNION TEL.
GILBERT, Circuit Jl1(lge., The. assignments ,qf error in this case are confined to the rulings of the circuit court in giving and refusing instructions .to.the jury. The defendanUn error raises the question of the power of this court to consider the alleged errors, upon the ground that it from the record that no e:xception was taken by the plaintiff ,iIi error to the instructions so given and refused until after the jury had retired to consider their verdict. It was held by this court in the case of Bank v; McGraw, 22 C. C; A. 622, 76 Fed. 930, that exceptions taken to the ,instructions given or refused to 1:ne notQe entertained upon a writ'of error upfess they 'taken' while th,e ·jury were, at the, bar "and, before they retired to d,eliberate "lipoD; their verdic,t.,' That po£,!itionis we by every' court to which the question hilEf been, presented. Railway Co. v. Spencer, 18 C. O. A. 114, 71 Fed. 93; Stone v. U; S" 12 C. O. A. 451, 64 Fed. 667; Van Etten v. Town of Westport, 60 Fed. 579, 585; Bracken v. Railway 00., 5 C.O. A. 548, 56 Fed. 447, 450; Sutherland v. Round, 6 O. O. A. 428, 57 Fed. 467, 470; John,sony. Garber, 190; C;A.556, n Fed. 523;, Phelps v. Mayel'( 15 How. 160 ; Turner 1V. Yates, 16 How. .14, 29; StMton v. Embrey; 93 U. S. 548, 555. ,I" '" It is stated in the record that all the exceptions "were take.u in writing after the jury had retired to deliberate upon their verdict, and before the rendition of their verdict, for the reason that this court refused in all cases to allow' exceptions to be taken in the presence of the jury, and would not have allowed exceptions to be taken in this case had it been asked, but no request was made by either party to take such exceptions, before the, jury retired." In Johnson v. Garber, supra, it appeared that a similar practice was followed in the circuit court for theWestern division of Tennessee. It is thus referred to in the opinion in that case:
"The trial judge states It to be the' invariable practice of the court belowweU and acted upon though no formal rule to this effect has been adopted by the court.,....o.ot to require such speci(ic objections to be so tal,:e'Ii, but counsel on either side Is understood always to have taken the objection to any Instruction, or any' part of the charge, 'so that, In subsequently making up the bill of exceptions, hemllY take any objection as If the rule of taking It at the time had been fully complied ,with."·
l'he court proceeded to say:
"rn: view of the proper practice, defined In the decisl()ns already referred to. the practice of the court below was Improper; and the fact that sllchpractice obtained, cannot give this court power to consider an exception which, was not reserved at the only 1;imewhen, uIlder the law, It could have been reserved, namely, at the trIal, and While the jury were at the bar."
We i think the language of the opinion in· that case is applioable to thill. The judgment of the court below must be affirmed.
. ; .i"'.,
(CIrcUIt CoUrt, S. D. New 18&1.)
CIRCUIT COURTS-EFFECT OF DECISIONS IN OTHER CIRCUITS.
A decision in another circuit, in an action between two railroad companies, that the right of action for unpaid dividends due under a lease 'was in the lessor 'company, will be foIiowed in an action by stockholders of that company against the lessee for an accounting of such dividends.
This was a suit by William Reed against the Atlantic & Railroad Company to recover dividends alleged to be due from the latter company to the plaintiff as a stockholder in 'the Pacihc Railroad Company, under the terms of a lease made by the Pacific Company to the defendant. EdwardL. Andrews, for plaintiff. John E. BUl'rill, for defendant. WALLACE, Circuit Judge. I should incline to the opinion, were it not for the decision of the .circuit court for the district of Massachusetts, that the plaintiff, as one of the stockholders of the Pacific Railroad,could maintain this action; and that its directors were not his agents, or the agents of the stockholders generally or of the cor· poration, in accepting a surrender of the lease made by the corporation to the defendant. It would seem that, by the lease of all its property to the defendant for 999 years, with a power to mortgage. the Pacific Railroad practically abdicated all its functions, dissolved its relations with its stockholders, and constituted its stockholders creditorsof the defendant. By the terms of the lease, it was to maintain its corporate 'organization in the interests of the defendant, and was also to retain sufficient vitality to re-enter and take possession of the demised property, in case the interest to its bondholders, or dividends to its stockholders, were not paid the defendant according to the covenants. For all practical purposes, the corporation was as defunct as anything short Qfa judgment Qfdissolution could make it, and this was the result contemplated by aU the parties to the lease. If its directors had accepted 'a surrender under circumstances which, in any conceivable way, could have :inured to the interests of its stockholders or creditors, their action might be deemed as equivalent to exercising the power of re-entry. :aut in the suit brought in the name of the corporation against the defendant to recover, among iother things, the stockholders under the lease, it was decided, by a court of co-ordinate jurisdiction with this, that the cause of action was in the corporation, 'and not in the individual stockholders. Pacific R. R,: v. Atlantic & PI R. Co., 20 Fed. 277. That decision is entitled to great respect. Upon the case in the form in which it was there presented, the conclusion reached by the court
1 This case has been heretofore reported in 22 Blatch!. 469, and is now published in this series, so as to include therein all circuit and district court cases elsewhere reported which have been inadvertently omitted from the Federal Reporter or the Federal Cases.