construction possible, nothing more is secured to the employé, injured by the negligence of a fellow servant, than the right to recover from the common master damages for such injury, in the same manner and to the same extent, as if the same acts or omissions were those of the master himself in the performance of a nonassignable duty. We are unable to perceive how, by any possible interpretation, the scheme known as the Relief Department, or becoming a member thereof, can be said to waive the right of action secured to the employé by the Constitution. As uniformly held by other courts, in which the same contention has been made, the employé does not waive, or agree to waive, any rights to which he is entitled by becoming a member of the Relief Department. He simply agrees that, after the injury is sustained, and his cause of action accrues, he will elect whether to sue for damages or accept the benefits secured by the Relief Department-that he will not do both. There is no suggestion that plaintiff made his election under such circumstances or conditions, either mental, moral, or physical, making it inequitable to enforce it; similar statutes have been enacted, whereby agreements made in advance of an injury, caused by the negligence of a fellow servant, or defective appliances, ways, or means are declared to be invalid. The courts have held that becoming a member of the Relief Department was not within the letter or spirit of these statutes. Pittsburgh, C., C. & St. L. R. R. v. Cox, 55 Ohio St. 497, 45 N. E. 641, 35 L. R. A. 511; Railroad v. Moore, 152 Ind. 345, 53 N. E. 290, 44 L. R. A. 643; Hamilton v. Railroad (C. C.) 118 Fed. 94. At the moment plaintiff sustained the injury for which this action is brought, the right of action, or "benefit," secured to him by the Constitution (section 162) of Virginia was complete; his membership in the Relief Department did not affect it in the slightest degree. Defendant insists that, the ground of the demurrer being specifically limited to the provisions of the section 162 of the Constitution, it is not open to plaintiff, upon this writ of error, to attack the special plea for any other ground. The assignment of error is confined to the action of the court in overruling the demurrer and rendering judgment against plaintiff. This being an action at law, we are governed, in questions of practice, as near as may be, by rules prevailing in the courts of the state of Virginia. Passing the question of practice, we will consider the other question, argued by counsel for plaintiff in a well-considered oral argument and printed brief, in which he insists that, independent of the prohibitory provisions of the Constitution, the contract entered into by plaintiff, when he became a member of the Relief Department, is against public policy and void. In passing upon this contention we are confined to averments in the special plea, which are admitted pro hac vice to be true. This excludes any suggestion that the plaintiff was not fully advised of the regulations of the Relief Department as it alleges "that a book containing the regulations of the said Relief Department was on or about May 30, 1907, delivered to the plaintiff," or that he did not enter into it voluntarily, as it is alleged that "he made a voluntary application in writing in due and legal form to be admitted as a member of said Relief Department," or that, after sustaining the injury, he was under coercion, or was misled, or kept in ignorance of his rights in the premises, as it is alleged "that he did exercise his election and did accept and receive from said department benefits to which he was entitled under the regulations thereof." The sole question, therefore, is whether there is such inherent vice in the plan or scheme, established by defendant, set forth in the plea, as brings it under the condemnation of the principles of the common law, rendering all contracts made, and all acts done under and pursuant to it, null and void, or whether the relations existing between the plaintiff and the defendant were such as to render it contrary to sound public policy for them to enter into the contract, or to enforce rights, or set up defenses acquired under it. The question of the validity of the contract, or contracts, in all respects similar to the one before us, has been so fully discussed by the courts, both state and federal, and so uniformily upheld, that nothing new is open to be said. It has been expressly decided by this court. In A. C. L. R. Co. v. Dunning, 166 Fed. 850, 94 C. C. A. 128, in a well-considered and amply-sustained opinion by Judge Morris, in which Mr. Chief Justice Fuller concurred, the same contract relied upon by defendant herein was upheld. The learned judge says: "By a great number of carefully considered adjudications of the courts, both state and federal, contracts of this character have been upheld and determined not to be against a sound public policy, but distinctly beneficial to the employé, as well as wise on the part of the employer." He cites a large number of cases sustaining his opinion. It is not necessary that we do more than refer to the volume of the Federal Reporter in which the case is reported. The basis upon which all of the decisions rest is that, by becoming a member of the Relief Department, the employé does not waive, or contract against, liability for damages for an injury sustained by the negligence of the employé. That, after sustaining the injury, he is free to maintain an action for damages without regard to his being a member of the department. That he is entitled to the benefits secured by membership without regard to negligence or legal liability of the employer. That when he elects to take such benefits he releases, and not until then, the employer from other or further liability. With an evident and frequently expressed determination to strictly construe all contracts made by employés of public service corporations, or those in whose service the employment involves unusual hazard, waiving any rights, the courts have, with practical uniformity, and by the same process of reasoning, upheld this plan or scheme, adopted by railroad companies, and, so far as we are informed, concurred in by their employés. This injury having occurred prior to the enactment of the federal employer's liability act (April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1909, p. 1171]), the provision of that statute in regard to these contracts is not presented. The judgment must be affirmed. FIDELITY TRUST & SAFE DEPOSIT CO. et al. v. ARCHER. (Circuit Court of Appeals, Third Circuit. October 6, 1909. No. 35 (1,211). CORPORATIONS (§ 259*)—JURISDICTION-ADEQUATE REMEDY AT LAW-—PreVENTING MULTIPLICITY OF SUITS-SUITS BY RECEIVER AGAINST STOCKHOLDERS. A federal court of equity is without jurisdiction of a suit by the receiver of an insolvent corporation against numerous stockholders to enforce payment of an assessment of a fixed sum per share on its stock, made by authority of a court in another jurisdiction in a suit to wind up the affairs of the corporation to which suit the defendant stockholders were not individually parties, either on the ground of preventing a multiplicity of suits, or on the ground that it is ancillary to the main suit, where it does not appear that there is any ground of defense common to the defendants, and the bill does not pray for any equitable relief, but merely seeks to collect from each defendant a definite sum as the assessment against his stock. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1059-1067; Dec. Dig. § 259.* Stockholders' liability to creditors in equity, see notes to Rickerson Roller-Mill Co. v. Farrell Foundry Co., 23 C. C. A. 315; Scott v. Latimer, 33 C. C. A. 23.] Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania. In Equity. Suit by F. Morse Archer, who was substituted for Arthur K. Brown, as receiver of the American Alkali Company, against the Fidelity Trust & Safe Deposit Company, Annie E. Sinnott, Mary E. Sinnott, John Sinnott, and Walter George Smith, executors of the will of Joseph F. Sinnott, deceased. Decree for complainant, and defendants appeal. Reversed. For opinions below, see 156 Fed. 697; 166 Fed. 488. Ira J. Williams, for appellants. Before GRAY and BUFFINGTON, Circuit Judges, and BRADFORD, District Judge. BRADFORD, District Judge. This is an appeal by Fidelity Trust. and Safe Deposit Company, Annie E. Sinnott, Mary E. Sinnott, John Sinnott and Walter George Smith, Executors of Joseph F. Sinnott, deceased, from a decree of the circuit court of the United States for the eastern district of Pennsylvania, in a suit brought by Arthur K. Brown, surviving receiver of American Alkali Company, against the appellants and a large number of other defendants as preferred stockholders of that company, for the purpose of collecting an assessment for each share of preferred stock held by them in that company. A decree against the appellants was entered December 30, 1908, directing the payment by them, as the holders of 1,000 shares of preferred *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes stock, of $2,910, being an assessment of $2,50 per share and the interest thereon from April 5, 1906. There are numerous assignments of error, the first of which is to the effect that the court below had no equitable jurisdiction in this case, there being, as alleged, an adequate remedy at law. We shall now consider this point and in order satisfactorily to deal with it it is necessary to allude to the circumstances under which the suit was brought. The American Alkali Company was incorporated under the laws of New Jersey May 4, 1899, for the purpose, among other things, of manufacturing, buying, selling, dealing in and using alkalies and chemicals of all kinds and obtaining letters patent for any invention in connection with its business. Its total authorized capital stock amounted to $30,000,000, divided into 600,000 shares of the par value of $50 each, of which 120,000 were preferred stock and the remaining 480,000 common stock. The certificate of incorporation provided that: "After payment of $10 per share on the preferred stock, the subscribers thereto shall not be liable for any balance of their subscription excepting upon such shares as shall stand of record on the books of the company in their names at the time when any subsequent assessments or calls are made, but the holders of such shares of record on the books of the company at that time, and they only, shall be liable for the same." It further provided that the corporation might commence business after $2,000 of the capital stock had been subscribed for. Walter A. Kirkpatrick on behalf of himself and all other creditors and stockholders of the American Alkali Company filed a bill in equity against that corporation September 9, 1902, in the circuit court of the United States for the district of New Jersey, setting forth, among other things, that he was the registered owner of one hundred shares of its capital stock, and that the corporation was insolvent, and praying, among other things, that a receiver of the corporation be appointed with power to collect and take possession of all its property, and to exercise all rights of ownership with respect to shares of stock owned by and registered in its name, including the right to vote thereon, collect and receive dividends and income there from and apply the same as directed by the court; that the rights of the complainant and all other stockholders and creditors of the corporation be ascertained and that all the assets of the corporation be marshaled and administered. On the above bill the court, September 9, 1902, appointed Arthur K. Brown and Henry I. Budd, Jr., receivers of the corporation. The interlocutory decree appointing the receivers authorized them to exercise "all the general powers of receivers in cases of this kind," and contained other provisions touching their power and authority not necessary to mention in this connection. The receivers so appointed duly qualified and entered upon the discharge of their duties. September 11, 1902, Kirkpatrick, on whose bill receivers were appointed in New Jersey, as above mentioned, filed a bill against the American Alkali Company in the circuit court of the United States for the eastern district of Pennsylvania, which, after setting forth the proceedings in New Jersey, prayed the appointment of receivers of the corporation for Pennsylvania, and contained, among others, the following prayer: 179 F.-3 “(3) That your Honorable Court will make such orders and decrees, preliminary and final, as are prayed for in said bill by your complainant, in the circuit court for the district of New Jersey, and that your Honors will also make all such other and necessary orders, judgments and decrees as may be required in aid of said bill; and that your Honors will take ancillary jurisdiction with said circuit court of the United States for the district of New Jersey, and will give your complainant all the relief which may be necessary to accomplish the purpose of filing said bill; and finally that your Honors will order and direct the receivers appointed in this suit as herein prayed, to account to the receivers appointed as aforesaid in the United States Circuit Court for the district of New Jersey for all sums which shall be received by them after the costs and expenses incident to this suit, and all reasonable allowance to complainant by way of counsel fees shall have been provided for and paid." On this bill Brown and Budd were, September 11, 1902, appointed receivers for Pennsylvania with powers similar, save as to territory, to those conferred on them in New Jersey. The court, however, made no order or decree in conformity to the above quoted prayer. The receivers duly qualified and entered upon the discharge of their duties in Pennsylvania. It appears from the record that September 12, 1901, the board of directors of the American Alkali Company, for the purpose of providing funds for the completion of its then works, the building of additional works, and furnishing working capital, by resolution laid an assessment of $10 per share on each share of the preferred stock, payable in four instalments of $2.50 each respectively October 21, 1901, January 21, 1902, April 21, 1902, and July 21, 1902. September 25, 1901, the time for paying the first instalment was extended to November 11, 1901. It further appears that Joseph F. Sinnott was an original subscriber for 2,000 shares of the preferred stock of the corporation of 1,000 of which he became the registered owner under certificates Nos. 141 and 142, each for 500 shares, dated May 31, 1899. The shares represented by these two certificates were held and owned by him until his death and by his executors thereafter until and after the bringing of this suit October 13, 1906. The decedent had full knowledge of the laying of the above mentioned assessment at or about the time it was laid. Budd having died, Brown as surviving receiver applied July 14, 1905, to the circuit court in New Jersey for an order authorizing an assessment of $2.50 per share upon the holders of the preferred stock who had not paid the first instalment of the assessment laid September 12, 1901, and the court, August 31, 1905, granted his application. The assessment thus authorized was made payable on or before October 4, 1905, and subsequently the time was extended to April 5, 1906. In September, 1906, the surviving receiver presented his petition to the court below setting forth, among other things, as follows: "Your petitioner notified the holders of the preferred stock of the American Alkali Company who had not paid the assessment levied by the board on September 12, 1901, of the assessment authorized by the court on August 31, 1905, and has collected from some of the holders of said preferred stock the assessment thus authorized by the court. There are, however, a large number (aggregating between 100 and 200) of the holders of the preferred stock who have not paid the said assessment, and who are residents of the eastern district of Pennsylvania, and therefore within the jurisdiction of your Honorable Court. Against most of these persons either the American Alkali Company itself, be |