cure the purchase money to be paid to the old company, and alleging gross mismanagement of the new company, praying that the receivers be appointed to manage its property, bring suits against the old company to recover the fraudulently issued stock in the new company, and for an injunction against the new company from transacting further business, paying its debts or transferring its property, but not praying for a cancellation of the alleged fraudulent contract nor for the winding up of the corporation, nor for the aid of the court in putting back the parties as nearly as possible in the position in which the persons alleged to have acted fraudulently, had found them, nor for any specific relief, and not joining as parties such persons, though it prayed that a writ of subpœna might issue against them to make them parties if they should come within the jurisdiction, is insufficient as praying for no ultimate relief. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2227-2236; Dec. Dig. 557.*]

In Equity. Bill by Michael Zuber against the Micmac Gold Mining Company and others. Bill dismissed.

Lewis & Carpenter and Charles F. Johnson, for complainant.
Verrill, Hale & Booth, for respondents.

HALE, District Judge. This case now comes before the court on final hearing upon bill, answer, replication, and proofs. The complainant, a citizen of Maryland, brings this bill of complaint against two mining corporations, citizens of Maine. It alleges that Thomas W. Moore and certain associates, citizens of Massachusetts, owned a substantial majority of stock in the Micmac Mining Company, and that they fraudulently conspired with one Phil H. Moore to dispose of the property in that company for $166,666 and to divide the proceeds among themselves; that they entered into a certain fraudulent contract to organize a new company called the Micmac Gold Mining Company, and to issue and divide the stock among themselves. The bill alleges that the issue of the stock in this new company was fraudulent; that Thomas W. Moore and his associates, as officers of the new company, fraudulently caused stock to be sold to the public for the purpose of securing the purchase money to be paid to the old company. The bill further alleges gross mismanagement of the Micmac Gold Mining Company, and prays that receivers be appointed to manage its property, and to bring suits against the Micmac Mining Company, its officers and stockholders, for the purpose of recovering the fraudulently issued stock in the new company. It prays also for an injunction against the Micmac Gold Mining Company from transacting any further business, or paying its debts, or transferring any of its property; and generally for other and further relief. The bill does not pray for a cancellation of the alleged fraudulent contract nor for the winding up of either corporation, nor for the aid of the court in putting back the parties as nearly as possible in the position in which Thomas W. Moore and his associates found them, nor for any specific relief; nor does it join as parties Thomas W. Moore and his associates; although it prays that a writ of subpoena may issue against them to make them parties if they should come

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

within the jurisdiction. Both the pleadings and the proofs disclose a sharp controversy on questions of fact. Before passing upon these questions it is the duty of the court to consider the character of the bill now before it. Its whole purpose is manifestly to obtain a receiver. In this district, in Hutchinson v. American Palace-Car Co. (C. C.) 104 Fed. 182, 185, Judge Putnam has stated the three essential conditions, compliance with which is necessary to justify the appointment of a receiver:

"First, that the case be fairly within the jurisdiction of the court having in view both the limited jurisdicton of federal tribunals and the true nature of proceedings in equity; second, that some proper final relief in equity be asked for in the bill which will justify the court in proceeding with the case; and, third, that the circumstances calling for a receiver be of a clear and urgent character."

Judge Putnam further observes that upon application for receivership, even though the parties have already agreed upon a receiver, the court is not relieved from looking at the question of jurisdiction, and from inquiring whether the application for receivership is really with the view of obtaining final relief, or merely for the purpose of securing a receivership for the mere sake of a receivership. He adds that, when the subject-matter is of itself of an equitable nature, certain conditions which might be availed of to defeat jurisdiction may be waived, citing Hollins v. Iron Company, 150 U. S. 371, 14 Sup. Ct. 127, 37 L. Ed: 1113. But I find no conditions stated in that case which affect in any way the questions now before me. In the case at bar there is no final relief asked for in the bill. A receivership cannot be held by this court to be final relief; and it cannot be made final by the suggestion that the receivers may bring suits, and in that way obtain some ultimate relief. The purpose of a receivership in equity is to be ancillary to, and in aid of, the primary object of the litigation. It cannot be the primary object of the litigation. The final relief sought by the bill cannot be made contingent upon the incidental relief of a receivership. Many cases have held that where the complainant has prayed for some final relief, and it is found that he is not entitled to the specific relief prayed for, he may nevertheless have other relief consistent with the proofs.

In the case before me there is no ultimate relief prayed for. Although the attention of counsel was expressly called to this matter at the final hearing, they have failed to point out any proper ultimate relief which this court can grant, even though their allegations of facts should be found to be true. And it is not evident from the pleadings, or from the proofs, what final relief could properly be asked for. In the present aspect of the case it is not fitting to enter upon the discussion of the proofs, or to decide whether or not they sustain the allegations of the bill; nor is it necessary to decide whether the bill presents all the parties affected by the subject-matter in controversy, or whether a decree for full and final relief could be passed with the present parties to the bill; nor is it necessary to pass upon other defenses raised by the learned counsel for the respondents. The court can only pass upon the bill as it finds it. In view of the rule an

nounced by Judge Putnam in the Hutchinson Case, and in accordance with general equitable principles, I must hold that the bill before me does not contain such prayer for proper final relief as will justify the court in proceeding with the case.

The bill is dismissed, with costs for the respondents.

THE SCOUT.

THE A. W. SMITH.

(District Court, E. D. New York. July 21, 1910.)

SALVAGE (8 7*)-COMPENSATION-ASSISTING VESSEL AFTER COLLISION. Awards in the nature of salvage made for services rendered to a steam yacht after collision, and when she had been abandoned by her crew, while still under steam with her engines reversed, in keeping her afloat, and preventing further collisions with other vessels.

[Ed. Note. For other cases, see Salvage, Dec. Dig. § 7.*

Awards in federal courts, see note to The Lamington, 30 C. C. A. 280.] In Admiralty. Suits by Bartin Haigh and William Deviling by Peter Cahill, and by George F. Barnes against the steam yacht Scout, and by August Belmont, and others against the steam tug A. W. Smith. Decrees against the Scout. Libel against the Smith dismissed.

Peter S. Carter, for plaintiffs Haigh and another.
Foley, Martin & Nelson, for plaintiff Cahill.

Kneeland & Harison, for plaintiffs Belmont and others.
MacFarland, Taylor & Costello, for plaintiff Barnes.
Kneeland & Harison, for The Scout.

Harrington, Perkins & Englar for The A. W. Smith.

CHATFIELD, District Judge. The Scout was injured while entering the gateway of the Erie Basin, at high speed. The actual blow was occasioned by the movements of the Scout under a reversed engine, the captain of the Scout, immediately upon the imminence of collision, assuming that it was his duty to reverse. While perhaps he cannot be blamed for forming that conclusion under the circumstances, nevertheless the fact that his actions seem to have made the collision inevitable is sufficient to relieve the Smith, there being no negligence on the Smith's part prior to the time when the engines of the Scout were reversed. For that reason the libel against the Smith must be dismissed.

The injuries to the Scout by reason of the collision caused her to settle by the head, but her watertight bulkheads did not give way and she remained afloat, moving rapidly astern under the reversed engine, in such a direction as to pass entirely around the Smith and into the Basin. Her speed astern was such as to carry her entirely across the Erie Basin and into collision with the steamer Luckenbach before she could be reached by any one. In the meantime the crew had climbed

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

on board the Smith, while the Scout was working around the Smith under the reversed engine, and the Smith proceeded to turn around and follow the Scout. As the Scout touched the Luckenbach, Haigh succeeded in getting on board and making what appears to be a brave and quick-witted attempt to prevent further loss and any possible danger by shutting off the engines and pulling the fires, which had to be done in a space where the possibilities of danger to himself were very great. While he was occupied in this, the exact occurrence's being accompanied with so much excitement that none of the parties seem to have a satisfactory recollection of just the order of events, the Smith caught up with the Scout, and the crew of the Scout again came on board, the engineer of the Scout then going down to the engine room to see about his engines and fires. The tug Moran also came alongside of the tug on the other side from the Smith, and from that time on both the Moran and the Smith lent the proper amount and kind of aid in supporting the bow of the Scout, arranging a sling with hawsers, standing by her during the night, and leaving in the morning after about 10 hours of service. The Smith continued to assist the Scout until she was placed in a dry-dock some three or four hours later.

Under the circumstances, the Moran and the Smith should be compensated for their services in the nature of salvage, not for services under great danger nor of extreme difficulty. The repairs of the Scout which must be borne by the owner are considerable, and, if the whole situation is taken into account, it would seem that 10 per cent. of the Scout's value ought to compensate the different parties for what they did. I will allow Haigh $400, the Moran and her crew $700, and the Smith and her crew $700.

While the services of the Smith were longer in duration, there was nevertheless some obligation on her to do what she could, inasmuch as she had been in collision with the vessel; and the services of the Moran, while they were not called for by any relation between the Moran and the Scout, nevertheless accomplished no more than the services of the Smith.

As to the engineer, who apparently suggested to Haigh his action at the same time that the idea occurred to Haigh, I think the matter should be left to be adjusted between themselves.

UNITED STATES v. ILLINOIS CENT. R. CO.

(District Court, N. D. Iowa, C. D. June 23, 1910.)

MASTER AND SERVANT (§ 13*)-HOURS OF SERVICE-REGULATION-INTERSTATE_ CARRIERS-STATUTES-"DUTY."

Act March 4, 1907, c. 2939, § 2, 34 Stat. 1415 (U. S. Comp. St. Supp. 1909, p. 1170), provides that it shall be unlawful for any common carrier subject to the act to require or permit any employé subject thereto to be or remain on duty for a longer period than 16 consecutive hours, and whenever such employé has been continually on duty for 16 hours he shall be relieved, and not required or permitted again to go on duty until he has had at least 10 consecutive hours off duty; and no such employé who has been on duty 16 hours in the aggregate in any 24-hour period shall be required or permitted to continue or again go on duty without having had at least 8 consecutive hours off duty. The act further provides in section 1 that the term "employés" as used in the act, shall be held to mean persons actually engaged in or connected with the movement of any train. Held, that where an interstate carrier had a rule requiring engineers to report 30 minutes before leaving time, during which they were required to overlook their engines in preparation for the trip, to see that they were properly oiled and the brakes O. K., and to connect the engines with their trains, the time so occupied constitutes a part of their time of duty; and this, though it was the custom of the carrier not to strictly enforce the rule.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. § 13.*

For other definitions, see Words and Phrases, vol. 3, pp. 2283, 2284; vol. 8, p. 7646.]

Action by the United States against the Illinois Central Railroad Company to recover a penalty. Verdict directed for plaintiff.

F. F. Faville, U. S. Atty.

Kelleher & O'Connor, for defendant.

MORRIS, District Judge (orally). The question here is as to the effect of the rule of the company requiring men to report 30 minutes before the leaving time of the train to do the things required by the rule, coupled with the fact that this man did comply with that rule.

I do not think the custom of the company not to strictly enforce the rule makes any difference. This man complied with the rule. He arrived at the engine 30 minutes before the leaving time of the train, and was actually engaged in doing the things required by the rule; and the question here is whether he was during that time, within the meaning of the act, actually engaged in or connected with the moving of that train. That is the question here. In my opinion this man was on duty, within the meaning of the act, from the time he went there and commenced to supervise, or overlook, that engine in preparation for the trip. It does not make any difference whether he was paid for this time or not. That was the time his work and the strain on him began. The work of an engineer, an employé of the railroad, begins when under the rule of the company he is there and is at work in connection with the preparation of the engine for the moving of the train. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes