on these grounds alone, we might properly reject the plaintiff's proposition in reference to this clause.

However, the authorities are all against him. We will not rely on Cunard Steamship Company v. Marten, just referred to, because that decision was put on narrow grounds. Lord Justice Roemer, at page 515, does, indeed, restate what we have already said with reference to the historical construction to be given insurance policies, with regard to the fact that language intended to accomplish a peculiar purpose is inserted in the printed parts of the customary form notwithstanding the printed parts may have little or no application to the precise risk insured. But he let the case turn on the fact that the sue and labor clause ordinarily does, and then did, refer to "the said goods and merchandise and ship," and indicated that it could have no relation, and is inapplicable, to an indemnifying policy. In the present case, Cunard Steamship Company v. Marten, if literally accepted, might compel us to hold that, if the tug had been liable for stranding the tows in question, the tug could not recover from the underwriters any expenditure made in relieving the tows from their stranded position. This we would be reluctant to do. It is sufficient for us that we determine that the sue and labor clause has relation only to the subjectmatter of insurance, which in the present case was the liability of the tug to the stranded tows, and nothing else. The cause of the legal expenses involved here arose, not out of the fact that the policy attached, but out of the fact that somebody claimed that it attached when in fact it did not.

Not only does the positive language of the policy lead to the conclusion we have stated, as explained by the learned judge of the Circuit Court, but we repeat that the authorities are decisive, and this even when the complete sue and labor clause is present. They are well summed up in the sections of Arnold on Insurance to which we have referred, and are very crisply stated in Tyser's Marine Insurance Losses (1894) p. 51, as follows:

"The underwriter is not liable under this clause [meaning the sue and labor clause], unless he would be liable for the loss to avert which the labor or expense is incurred."

The earliest case to which we may refer is Biays v. Chesapeake Insurance Company, 7 Cranch, 415, 419, 3 L. Ed. 389 (1813). That was a suit on a memorandum policy limiting liability to a total loss. The court held that the sue and labor clause did not apply, unless, perhaps, in case where the services might have prevented an actual total loss. The principle involved was announced as follows:

"If this clause [meaning the sue and labor clause] be construed with reference to what is most evidently its subject-matter-that is, a loss within the policy and in connection with other parts of the instrument, it seems impossible to misunderstand it, or that it should receive so extensive an application as the plaintiff is desirous of giving to it. The parties certainly meant to apply it only to the case of those losses or injuries for which the assurers, if they had happened, would have been responsible."

These observations were recognized as representing the law by Mr. Phillips in his work to which we have referred at section 1777.

We can pass over more than half a century to Xenos v. Fox, L. R. 4 C. P. 665, 667 (1869), already referred to. Here the sue and labor clause was in a policy which had a running-down clause. Xenos v. Fox has been many times relied on, both by the courts and the textwriters. Chief Justice Cockburn there said that the sue and labor clause applied to a loss or misfortune happening to the thing insured; and it was held that the underwriters were not liable for the expenses of a suit brought against the owners of the vessel in whose behalf the policy issued, which suit was unsuccessful. We might well have disposed of this case on the authority of the decisions last cited, namely, Biays v. Chesapeake Insurance Company and Xenos v. Fox, which have stood unquestioned; but the propositions submitted to us were of sufficient interest and importance to justify the consideration which we have given them.

The judgment of the Circuit Court is affirmed, and the defendant in error recovers its costs of appeal.

(155 Fed. 52.)

HALL V. UNITED STATES.

(Circuit Court of Appeals, Ninth Circuit. May 27, 1907.)

No. 1,405.

DISORDERLY HOUSE-PROSECUTION FOR KEEPING-PROOF OF CHARACTER OF HOUSE.

Although Alaska Pen. Code, § 128, expressly makes common fame competent evidence in support of an indictment for keeping a bawdyhouse for purposes of prostitution, such evidence alone is not sufficient proof to warrant a conviction, but there must be some evidence that the house was in fact kept and used for such purposes.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Disorderly House, §§ 26-29.]

In Error to the District Court of the United States for the Second Division of the District of Alaska.

Plaintiff in error, defendant below, was tried and convicted under an indictment charging him with keeping and setting up a bawdyhouse for purposes of prostitution within the limits of the town of Nome, Alaska, the indictment being framed under section 127, tit. 1, of the Act of Congress, approved March 3, 1899, 30 Stat. 1272, which provides that if any person shall keep or set up a house of ill fame, brothel, or bawdyhouse for the purpose of prostitution, fornication, or lewdness, such person upon conviction thereof shall be punished by imprisonment in the county jail not less than three months nor more than one year, or by fine not less than $100 nor more than $500. Defendant sued out a writ of error, and has assigned errors based upon rulings of the lower court and the instructions given to the jury.

Jas. W. Bell, C. D. Morane, Hobbes & Bell, A. H. Elliot, W. H. Bard, and James E. Fenton, for plaintiff in error.

Henry M. Hoyt, U. S. Atty.

Before GILBERT and ROSS, Circuit Judges, and HUNT, District Judge.

HUNT, District Judge, after making the foregoing statement of the case, delivered the opinion of the court.

Plaintiff in error first presents the same question of jurisdiction that we have considered and decided in the case of Rosencranz v. United States, 155 Fed. 38; Hornstein v. United States, 155 Fed. 48, and Botts v. United States, 155 Fed. 50. Upon the authority of those decisions we hold that the District Court for the District of Alaska had jurisdiction of the case, and that it properly overruled the plea and demurrer.

In this case, as in that of Botts and Haughey v. United States (just decided by this court) 155 Fed. 50,1 error is assigned upon the charge of the court that, "in all prosecutions for the offense of keeping a bawdyhouse, common fame or reputation is competent evidence in support of the indictment as to the character of the house. Therefore, if the house has the reputation of being a bawdyhouse or house of ill fame beyond a reasonable doubt, that is sufficient to support a finding that it was such, and if there is no evidence offered to the contrary. This was an erroneous statement of the law, as we have shown in the case of United States v. Botts and Haughey, supra, in that it authorized a conclusion upon one of the essential elements of the charge against the defendant upon a quantum of proof less than the law demands. It is not possible to regard the error as cured or without prejudice. The jury were not only directed that they could predicate a finding upon the measure of proof prescribed by the instruction, but the evidence in the record shows that proof of the reputation alone of the house alleged to have been kept by defendant was relied upon as sufficient, and that no evidence of use or purpose other than reputation was considered necessary.

Moreover, the plaintiff in error requested a charge that reputation or fame, while competent, was by itself "not sufficient evidence to warrant a conviction for keeping a bawdyhouse; there must be some other evidence showing that the house is actually used as a bawdyhouse"; but the court, consistent with its rulings throughout the trial, refused so to charge. Inasmuch as our opinion in United States v. Botts and Haughey, supra, covers the point under consideration, we do not deem it necessary to repeat the views we there laid down. We advise that upon a new trial the court reform its definition of a reasonable doubt so as to avoid the double definition which was given substantially in language which was criticised by this court in Owen v. United States, 130 Fed. 279, 64 C. C. A. 525.

The judgment is reversed, and the cause remanded for a new trial.

1 83 C. C. A. 646.

(156 Fed. 321.)

NEW ENGLAND TELEPHONE & TELEGRAPH CO. v. BUTLER.

(Circuit Court of Appeals, First Circuit. October 18, 1907.)

No. 685.

1. WITNESSES-COMPETENCY-KNOWLEDGE OR MEANS OF KNOWLEDGE OF FACTS. A clerk in the office of a district foreman of a telephone company is not, from the fact of his position alone, qualified to testify as to the duties of subforemen, who are under the orders of his chief, on an issue as to whether the chief duty of such subforemen was superintendence, so as to render the company liable to other employés for their negligence under the Massachusetts employers' liability act (Rev. Laws, c. 106, §§ 71-79). [Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 8087.]

2. MASTER AND SERVANT-LIABILITY FOR NEGLIGENCE OF SUPERINTENDENTMASSACHUSETTS STATUTE.

* *

The fact that a foreman having charge of a gang of men works with his hands, the same as the rest of the men, for the greater part of the time, or even all of the time, does not necessarily exclude him from being one "whose principal duty is that of superintendence," within the meaning of the Massachusetts employers' liability act (Rev. Laws, c. 106, §§ 71-79), for whose negligence, causing an injury to another employé, the master is liable.

3. SAME-ACTION FOR INJURY TO SERVANT-QUESTIONs for Jury.

Plaintiff was a telephone lineman engaged, with others, under a subforeman, in stringing new wires. He was upon the cross-arm of one pole holding back two wires, while they were being run over the cross-arm of the next pole. To the end of the wires was tied a rope, and beyond that a piece of insulated wire. The foreman and others were beyond the next pole pulling the wires over the cross-arm, when he called to plaintiff to "let them come." Plaintiff did so, and the wires sagged and came in contact with highly charged electric light wires, which ran transversely across the line at a lower level, and he received a shock which caused his injury. There was evidence that the method pursued was not usual nor proper under the circumstances, the plaintiff did not know the position of the light wires, and, because of intervening trees, could not see it distinctly, nor tell whether the insulated wire, the rope, or the bare wires were over the light wires when he was ordered to slack. Held, that whether he had such knowledge of the situation that he assumed the risk, or was justified in relying on the care of the foreman and obeying the order, or was negligent in doing so, were questions for the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1068-1132.

Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 48 C. C. A. 314.]

In Error to the Circuit Court of the United States for the District of Massachusetts.

Henry W. Dunn (Pitt F. Drew and Powers & Hall, on the brief), for plaintiff in error.

William A. Pew, Jr., for defendant in error.

Before PUTNAM, Circuit Judge, and ALDRICH and DODGE, District Judges.

DODGE, District Judge. The three counts of the declaration upon which the case went to the jury were all based on the Massachusetts employers' liability act (Rev. Laws, c. 106, §§ 71-79). A fourth count

charging liability at common law was stricken out by amendment. Each of the counts under the statute alleged injuries to the defendant in error (hereinafter called the plaintiff) by reason of the negligence of a superintendent in the employ of the plaintiff in error (hereinafter called the defendant). The first count did not specify wherein the alleged negligence of the superintendent consisted, the second count alleged negligence in failing to adopt proper, suitable, and safe methods for doing the work on which the plaintiff was employed, and the third alleged negligence in giving an order to the plaintiff to pay out a certain wire under circumstances rendering it dangerous to him so to do. The answer denied each and every allegation in these counts.

The plaintiff was one of a gang of men, all employés of the defendant, who were engaged in stringing new telephone wires upon certain poles belonging to the defendant, on Rantoul street, in Beverly. Five men in all composed the gang, including McKenzie, a subforeman, and in charge. McKenzie was the alleged superintendent whose negligence was claimed to have caused the plaintiff's injury.

The jury found for the plaintiff, and the case is here on exceptions to rulings made and instructions refused or given by the court at the trial.

The first assignment of error is that a question put on behalf of the defendant to one of its witnesses was excluded.

The witness was one Gwinn, employed by the defendant as clerk in the office of one of its district foremen. The excluded question was: "What are the duties of the subforemen, one of whom, I understand, McKenzie was?" There was no dispute that McKenzie was a subforeman. It appeared that he was one of four subforemen, all under the authority of the district foreman in whose office the witness was employed. The question at issue as to his duties being whether or not his principal duty was superintendence, if all the subforemen performed, or were expected to perform, or had assigned to them, the same duties, evidence tending to show what those duties were might have been admissible. But it did not appear that Gwinn knew what those duties included, and what they did not include. It was not to be presumed, prima facie, that as a clerk in the district foreman's office he had such knowledge. It appeared that he assumed the district foreman's duties when the latter was absent, as often happened, and in that way came in contact with the four subforemen; that among the duties so assumed was the giving of directions to the subforemen when sent to do work of various kinds on the lines within the district-where to go, what pieces of work to do, and what men to take with them. It appeared that he kept the district foreman's books, made a record of the work done, and paid the men. But in all this there was nothing which would naturally require or enable him to know what the duties were which the defendant had assigned to or expected from its subforemen. As to the duties in fact performed by them when at work, it is not contended that he knew, or had any opportunity to know, from actual observation, what these were. He testified that he was present very little when work was being done. The extent to which he claimed to have knowledge regarding the subforemen's duties was stated by him as follows: