their nature, and for none of which can a remedy be given at law. The first is for relief by canceling of releases under seal said to have been fraudulently obtained, which is peculiarly a topic for equity. The next is the claim that the corporation was insolvent, and asking for the winding up of its affairs on that ground. Passing by the question whether a bill for that purpose should, if objected to, be allowed to be maintained outside of the district of the domicile of the corporation, and also the question arising from the fact that the Supreme Court has steadily maintained that a debtor has a right to an issue to a jury on a claim which has not gone to judgment, and that therefore, in the federal courts, an ordinary creditors' bill cannot be maintained until there has been a judgment, such relief is clearly equitable in its nature, unless there is some statute especially providing for the winding up of corporations.

The third topic of which the bill treats is a claim that the corporation be wound up because its main business was that of conducting "bucket shops," which it is said is of a fraudulent character. Passing by the question whether a corporation can be wound up for any reason of that nature unless a statute of the state of its creation especially provides therefor, this topic is also one purely for equitable consideration. Therefore, aside from the fact that, even where there is an adequate remedy at law, the right to exclude the complainant from the chancery may be waived when the topic is of an equitable character, as complainant says was done here, it is clear that the whole subject-matter of this bill was purely equitable, and, therefore, in no event could a motion be sustained of the character we have described. Indeed, we may go further and remark that, inasmuch as the claim for the canceling of the releases in question was properly suable in equity, a motion to dismiss would not lie, even if the entire burden of the bill aside from that was not anywhere cognizable, because even in that event the respondent's remedy would not be by a motion to dismiss, or by a general demurrer, but by a demurrer to the parts of the bill which were demurrable and an answer or plea to the rest.

The remaining errors assigned, except the seventeenth, and except the objection based on the fact that a receiver was appointed without notice, are either clearly frivolous or relate to rulings as to which the record is not sufficient to show that they could be prejudicial, even if they were erroneous. The seventeenth assignment concerns exceptions to the rulings of the master. The master's report was summarily filed without any submission to the parties of a draft as required in equity, so that there was no opportunity to file exceptions before him, and, consequently, no explanations by him which would enable this court to understand the relations of the exceptions to the facts of the case. Neither were the proofs brought in by the master. The parties have not referred us to the order appointing the master, and we have not found it. It was said in the opinion of the learned judge of the Circuit Court, and also by counsel for the complainant, that this order did not require him to return the proofs into court. We are unable, therefore, to discover enough in the record to assist us in determining whether his rulings objected to were material or prejudicial, even if

erroneous.

In fact, inasmuch as the reference to the master of the issues raised by the bill and answer, at the stage of the case when it was made, was irregular under equity rules 67 et seq., to which we have referred, and under the decisions in Kimberly v. Arms, 129 U. S. 512, 524, 9 Sup. Ct. 355, 32 L. Ed. 764, and Davis v. Schwartz, 155 U. S. 631, 636, 637, 15 Sup. Ct. 237, 39 L. Ed. 289, unless made by the consent of the parties, we are unable with this defective record to divest his report in any particular of the peculiar force which, according to the decisions we have cited, must be given it. While we are not able to ascertain from the record that the reference was by the express consent of the parties, yet, as otherwise it would have been irregular, and was not objected to so far as the record shows, we must conclude that it had their implied consent if not an express one. In any view, however, there is not enough before us to enable us to review any of the findings excepted to. The decree appealed from conformed strictly to the findings, so that it follows that we cannot review it adversely in any particular.

We have been asked to pass on 48 distinct propositions. We think we have explained fully our views on all the topics to which our attention has been at all carefully called; and, there are so many objections, the court cannot be expected to run out for itself any questions with regard to which it has been addressed only in a general manner. One topic of an interlocutory character remains to be considered. As we have said, a receiver of the assets of the respondent corporation was appointed immediately on the filing of the bill, without notice to it, on the giving of a bond, with a surety, in the penalty of $10,000. The fact that a receiver was so appointed makes the burden of a very considerable number of the errors assigned. Appointing a general receiver of the assets of a corporation, or a copartnership, or an individual, carrying on an active business, in which the maintenance of the credit of the respondent is a necessary element, is quite equivalent to the issue of an execution before judgment, and means, ordinarily, financial ruin. Therefore, in Joseph Dry Goods Co. v. Hecht, 120 Fed. 760, 764, 57 C. C. A. 64, the opinion rendered in behalf of the Circuit Court of Appeals for the Fifth Circuit well said:

"Notice should be given and the defendant furnished an opportunity to be heard, except in cases of imperious necessity, requiring immediate action by the court, and where protection can be afforded the plaintiff in no other way."

Consequently, in that case the decree of the Circuit Court appointing a receiver was reversed on an appeal taken within the period of statutory limitation. The receiver here was appointed on May 8, 1905. The act now in force is that of April 14, 1906 (34 Stat. 116, c. 1627), which has not changed the law so far as any question before us is concerned. The law in force on May 8, 1905, was that of June 6, 1900 (31 Stat. 660, c. 803 [U. S. Comp. St. 1901, p. 551]). Under the last-named statute the respondent might immediately have appealed from the decree appointing the receiver; and it was settled, in accordance with plain rules of interpretation, in Joseph Dry Goods Co. v. Hecht, just cited, that an appeal would lie notwithstanding the order appointing the receiver was ex parte.

The time limit for an appeal under the statute of 1900 was, as is well known, 30 days. It has never been decided by the Supreme Court whether that statute, or other statutes of that class, still permit appeals from the interlocutory orders to which they relate to be taken after final decrees and after the expiration of more than 30 days. It would not be an unusual or an unjust construction to hold that they do not, because, as in the present case, if the appeal from an interlocutory order appointing a receiver is delayed as it was prior to this class of statutes, the appellate tribunal is left to deal often with mere wreckage; and, as in the present case, ordinarily no advantage comes from a reversal. In view of this last fact, we are quite content that the record shows beyond question that the respondent acquiesced in the appointment of the interlocutory receiver promptly after it was made. While it is true that the terms of the agreement relating thereto, signed by the counsel for the parties and filed in court, and on the same day put into the form of an interlocutory order or decree, did not in express language state that the parties acquiesced in the receivership, yet they were of so radical a character that in equity the respondent cannot deny an implied, if not an express, consent.

Both the agreement and the interlocutory order contained a provision that the powers of the receiver should be those of a permanent.receiver until the final determination of the cause; and, what is an emphatic feature, they provided that the bond to which we have referred should be canceled and all liability thereunder terminated. All this is inconsistent in equity with any proposition that the order, or decree, appointing the receiver can now be reversed.

Perhaps we should observe that one of the errors assigned complained that creditors were allowed to intervene and to obtain relief concurrently with the original complainant. This is based on the propositions that the intervening petitioners had filed no proper, sufficient, or legal petitions, pleadings, or statements of claims, and that they had in no way established their right to be made parties. So far as the last branch of these objections is concerned, they did establish their claims before the master to his satisfaction; and, as we have shown, we cannot on this appeal revise the master's doings. The respondent's brief is practically a nullity beyond restating this assignment in general language, and it contains no references to the record required by our rules. All we have been able to find through our own investigation is a motion by the respondent for specifications by the intervening creditors, without anything to show that it was ever brought to the attention of the court. For this and other reasons, the record is insufficient to call on us to review the case so far as this topic is concerned. The decree of the Circuit Court is affirmed, and the appellees recover their costs of appeal.

(156 Fed. 336.)

NORTHERN PAC. RY. CO v. WENDEL.

(Circuit Court of Appeals, Ninth Circuit. October 7, 1907.)

No. 1,426.

1. MASTER AND SERVANT-ACTION FOR INJURY TO SERVANT-EVIDENCE. In an action by an employé to recover for an injury resulting from the breaking of a belt used to run a planing machine, the alleged negligence of defendant being the use of a belt which was decayed and defective by reason of its age, it was not error to admit evidence offered by plaintiff to show that the knives of the machine were dull at the time, and the gauge inaccurate, not to establish an independent and different act of negligence, but as showing conditions likely to be met with and affecting the strain on the belt.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 920.]

2. SAME QUESTIONS FOR JURY.

In an action by an employé to recover for an injury resulting from the breaking of a belt alleged to have been due to its age and defective condition, evidence that the breaking might have been due to other causes held insufficient to entitle defendant to the direction of a verdict.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1089-1132.]

3. SAME-ASSUMPTION OF RISK.

A workman, who was injured by the breaking of a belt used to run a machine, due to its weakness from age and from a recent splicing, although he had operated the machine for some years, cannot be held to have assumed the risk from such danger, where it is not shown that he knew the age of the belt, or what the life of such a belt was, or that the splicing would increase its tendency to break.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 575.

Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]

4. SAME CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY.

Where the evidence on an issue of contributory negligence, in an action by an employé to recover for an injury, is conflicting, the question is one for the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1089-1132.]

5. SAME-ASSUMPTION OF RISK.

A servant engaged in operating a machine by standing at its side, instead of behind it, where its construction contemplated that the operator should stand, did not thereby assume the risk of injury from the breaking of a belt which was greater there than at the rear of the machine, where there was no obvious danger in the position taken, and in fact no danger at all if the appliances were sound, while the position behind the machine was obviously dangerous from other causes, and it was customary for all operators to stand at the side.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 560.]

6. SAME-DAMAGES-EVIDENCE-EARNING CAPACITY.

In an action by a servant employed as a car repairer to recover from the master for a personal injury, where it was shown that he was a carpenter by trade, on the question of damages, evidence of his disability caused by the injury was not limited to the effect on his earning capacity

as a car repairer, but it was competent to show the effect on his capacity to earn wages as a carpenter.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 490.]

7. MASTER AND SERVANT-INJURIES TO SERVANT-INSTRUCTIONS-EFFECT OF CONTRIBUTORY NEGLIGENCE.

In an action by a servant against the master to recover damages for a personal injury, an instruction that plaintiff's contributory negligence would not preclude his recovery, unless without it the defendant's negligence could not have caused the injury, was not erroneous.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 796.]

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

The defendant in error was the plaintiff in the court below in an action against the plaintiff in error to recover damages resulting from personal injury. He alleged in his complaint that, while employed as a car repairer for the plaintiff in error and operating a planing machine driven by a belt, his right arm was broken by the parting of the belt; that the cause of the breaking of the belt was that it was old, decayed, and defective; that the plaintiff in error had negligently allowed it to remain so, and had negligently failed to box it. The answer denied the alleged negligence, and pleaded contributory negligence, and averred that, as to the unboxed belt, the defendant in error had assumed the risk. On the trial it was shown that the defendant in error was a carpenter of 34 years' experience. For six or seven years he had worked as car repairer in wood and iron in the shops of the plaintiff in error. It was his duty to operate the planing machine, which was the only machine of that kind in the shops, and the one he had always operated, and which he used some times every day and at other times every second or third day. The belt had never been boxed. Just how long the belt had been in use was not proven, but there was evidence that it had been used at least 12 years before the time of the accident, and that it had turned black from age. It had been spliced a short time before the accident, when a piece had been cut off one or both ends, and a new piece had been inserted to restore it to its former length. There was evidence that a belt is weakened by splicing, and that its weakest part is at the point of lacing. It was proven that the life of a belt used under the conditions which attended the use of the belt in question is. ordinarily from six to seven years.

Wallace & Donnelly (William Wallace, Jr., of counsel), for plaintiff in error.

Walsh & Nolan and T. J. Walsh (T. J. Walsh and C. B. Nolan, of counsel), for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and DE HAVEN, District Judge.

GILBERT, Circuit Judge, after stating the facts as above, delivered the opinion of the court.

It is assigned as error that the court admitted testimony that the knives of the planing machine were dull at the time when the defendant in error sustained his injury, and that the machine did not cut exactly as indicated by the gauge. The argument is that since the only specification of negligence in the complaint was that the belt was old, decayed, and defective, and that it should have been boxed, it was a variation from the cause of action alleged to permit the defendant in error to prove that the knives of the planer were dull, or that the gauge was inaccurate, and that, if the belt was good enough to stand the