This was objected to on the ground that it was leading and suggestive. The objection being overruled, the witness answered:

"Yes, sir. I knew at that time about my arrangement with Mr. Nurnberger. There was no other fact or circumstance with reference to my coming out to North Dakota to take up lands which affected my rights in any way to my knowledge except my arrangements with Mr. Nurnberger."

"Q. Any impression that you had that the transaction was wrong, was it based on anything else than your arrangement with Mr. Nurnberger? That is, was that all or was there more?"

This was objected to on the ground that it was leading, suggestive, and argumentative. The objection was overruled, and the witness answered:

"Well, I couldn't take the oath without doing wrong; that is the way I took it. I couldn't fulfill my contract without doing something that I thought was not right."

In the examination of Mrs. Lowell, one of the affiants counted on in the indictment, the prosecution being concerned to show that she made the affidavit reciting that she applied to enter the land for a homestead, not to inure to the benefit of another, and that she was induced thereto by the defendant, the following questions were asked:

"Q. State whether or not the manner in which the business was done and the extent to which it was done by Mr. Nurnberger had anything to do with making you believe that it was proper and lawful?"

Objection thereto being overruled, she answered:

"He didn't say anything about it, whether it was or not."

This being unsatisfactory to the prosecution, it was followed up with the further question:

"What I want to get at is this: State whether or not you was led to believe and did believe that the transaction was proper because it was done openly by so many people there at that time, whether that had anything to do with it."

Objection to this was overruled, and she answered:

"Yes, sir; when the affidavit was read over to me by the lawyer, I heard him say that my said application is honestly and in good faith made for the purpose of actual settlement and cultivation and not for the benefit of any other person, persons, or corporation,' but I didn't understand that way. I also heard the lawyer read, ‘and that I will faithfully and honestly endeavor to comply with all the requirements of the law as to settlement, residence and cultivation necessary to acquire title to the land applied for,' and 'that I am not acting as agent for any person, corporation or syndicate to give them the benefit of the land entered or any part thereof or of the timber thereon,' and 'that I do not apply to enter the same for the purpose of speculation but in good faith,' etc. But I don't remember him reading and that I have not directly or indirectly made and will not make any agreement or contract in any way or manner, with any person, or persons, corporation, etc., by which the title I might acquire from the government should inure in whole or in part to the benefit of any person except myself."

Finney is another entryman counted on in the indictment. He had a written agreement with the defendant respecting the arrangement between them. He was a witness for the government. The district at

torney, over the objection of the defendant, was permitted to interrogate him as follows:

"What was the agreement between you and Nurnberger, just state it all?”

This was objected to, inter alia, that as the agreement was in writing it spoke for itself, and if verbal the proper way to show what it was was to state the terms thereof. Then the district attorney asked: "State whether or not you made the trip to North Dakota and filed on the land to carry out your agreement with Nurnberger."

He answered:

"Well, that was about the size of it."

When the defendant was on the witness stand he was asked by his counsel:

"You may state if at any time you made a contract with anybody to locate them on lands under the terms of which you were to have the land at all events when he proved up."

The court sustained objection to this. He was further asked by his counsel:

"State what the terms and conditions of your agreement were when you located her (meaning Mrs. Arnold)."

Remarkably enough, in view of rulings by the court on like objections interposed by the defendant's counsel, the objection to the above question was sustained on the ground that it "called for a conclusion and not a conversation and documents."

The general rule undoubtedly is to leave the propriety of leading questions to the sound discretion of the trial court, the exercise of which is not ordinarily ground of error. The application of the rule obtains where the witness is apparently unwilling, or unfriendly to the questioner, or where the party has been misled by previous assurances to counsel. It must, however, be conceded that the abuse of such discretion would have no corrective if it were rigidly maintained that it is not reviewable. The repeated indulgence to the prosecutor in putting leading questions, and in form to suggest the answer, and calling for the mere conclusion of the witness, was manifestly unfair and prejudicial to the defendant. Many of these witnesses were not unfriendly to the prosecution, or displayed any reluctance to aid it. After the ruling of the land office department, indicated by said Exhibit A, there was some flurry among these entrymen, from apprehension of exposure to a prosecution for perjury. They were visited by an inspector. Some of them voluntarily placed in his hands the agreements between them and the defendant under which he undertook to find the lands. The witnesses, Arnold and Hall, most certainly needed no suggested testimony, or to have put in their mouths words to express it.

It were but affectation to pretend that these witnesses did not testify under the conscious sense that probably they would more certainly secure immunity for themselves by contributing freely to the conviction of the defendant. And in view of the stress under which the affiants testified it was hardly charitable to press them for an answer to

words framed by the prosecution when a failure to respond to his liking might, in their minds, endanger their desired immunity.

Words are at times especially significant. If counsel are permitted to so frame a question put to their own witness as to suggest the answer desired, there is always imminent danger of getting before the jury the phrases and ideas not really those of the witness.

Why should not the defendant have been permitted to testify that he made no contract with any of the affiants in question whereby he was to have the land in any event? It was permissible for him to testify that he did not so understand the arrangement he made with them. It is settled law that a party charged with the commission of a crime or the perpetration of a fraud may testify that he entertained no criminal or fraudulent intent. The very gist of the crime of perjury is made by the statute itself to depend upon the fact that the oath made should not only be false, but the falsehood must have been willfully and corruptly asserted. So if the affidavit made or procured was in ignorance of its contents, or under a misapprehension of its purpose, no matter how culpably negligent in a civil action the party might be, he could not be convicted of perjury, because the act was wanting in the required willfulness and corruption. The witness should have been permitted to answer the question as to whether or not he had ever made any claim to the land entered by Mrs. Arnold, especially in view of the fact that the district attorney, over the objection of his counsel, was permitted to show by the cross-examination of the defendant that in respect of some lands entered by some soldiers as homesteads as far back as 1900-1901, not counted on in the indictment, the defendant had obtained deeds thereto from such soldier soon after the entry, and prior to final proof. If that were permissible against the defendant to show "guilty knowledge," as ruled by the court, why was it not permissible for the defendant to state that as to the land of Mrs. Arnold, who had testified energetically against him, he had made no such claim? It is difficult to escape the impression that the court was either too indulgent to the government or too discriminating against the defendant.

Justice takes delight in according to every human being, charged with the commission of a crime, a fair and impartial trial. Prescribed rules of criminal procedure are the outgrowth of long and sane experience, buttressed by the earnest study and wisdom of jurists and lawgivers. They may be hedged about by some refinements, unjustly stigmatized by overzealous partizans as "mere technicalities," yet judicial, impartial, history attests the fact that often they constitute effective barriers against unreasoning passion and the behests of spasmodic clamor.

Complaint is made of that portion of the charge to the jury in which the court said:

"These affidavits are before you. They will go to the jury room with you. It is conceded in each case that the entrymen swore to the affidavit. That is one fact we start out with. What is the second fact? Did these affidavits contain any statement which was not true?"

The court then said, if the statements were true, that was the end of the case; if they were not true, the jury would proceed to the in

quiry as to whether the entrymen signed the affidavits knowing that they contained those statements, or any of them, and that any such statement was not true; if they did and intentionally swore to the affidavit, they committed perjury.

The generalization of this direction was calculated to mislead the jury. It apparently, to the mind of the laymen, narrowly directed attention to the effect of the mere recitals of the affidavit. It authorized the jury to find that, if the affiant did not intend to make actual settlement on and cultivation of the land, the oath was criminal; although the affiant may have understood and believed that as applied to his or her condition and privilege, the affiant was not required to make settlement on and cultivate the land; and therefore gave no heed to such recital in the affidavit, regarding it as formal and not material. The oath, under such conditions, would not be willful and corrupt, as it would be wanting in essential criminal intent. The charge should have been so qualified in the immediate connection to avoid the danger of the jury being misled by the stress laid upon the abstract recitals.

Other errors are pressed for consideration, but they are not of sufficient importance to justify the further extension of this prolonged discussion; and the matters complained of may rectify themselves on a second trial.

The judgment of the District Court is reversed, and the case remanded, with directions to grant a new trial.

HOOK, Circuit Judge (dissenting). That the defendant was guilty was shown overwhelmingly and beyond every reasonable doubt. Indeed, the proof went to the verge of confession. The matters mentioned in the opinion, even if unexplained in the voluminous record of a long trial, which I think is not the case, contributed nothing to an unjust result. The contention of counsel that the District Attorney was occasionally allowed to ask leading questions is, it seems to me, a fair illustration of the merit of the grounds relied on for reversal.

(156 Fed. 736.)

GRAY V. GRAND TRUNK WESTERN RY. CO.

(Circuit Court of Appeals, Seventh Circuit. May 18, 1907. Rehearing Denied Oct. 22, 1907.)

No. 1,339.

1. LIMITATION OF ACTIONS-PLEADING-Demurrer RAISING DEFENSE. Under the common-law practice in force in Illinois, the question of limitation cannot be raised on demurrer to a declaration.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, §§ 670–675.

Conformity of practice in common-law actions to that of state court, see notes to O'Connell v. Reed, 5 C. C. A. 594; Nederland Life Ins. Co. v. Hall, 27 C. C. A. 392.]

2. RECEIVERS INJURIES RESULTING FROM OPERATION OF PROPERTY-NAture of LIABILITY.

It is the settled doctrine of the federal courts that a receiver is not personally liable for injuries arising through negligent operation of the property not due to his personal negligence, but an action against him

for such injuries is in law one against the receivership in which the judg ment recovered can be enforced only against the property or funds in his hands, and which cannot be maintained after the receivership has been closed and the receiver discharged.

[Ed. Note. For cases in point, see Cent. Dig. vol. 42, Receivers, § 322. Actions by and against receivers of federal courts, see note to J. I. Case Plow Works v. Finks, 25 C. C. A. 49.]

8. SAME ASSUMPTION OF LIABILITY BY PURCHASER OF PROPERTY--NATURE OF

LIABILITY.

Where by the local law the obligation assumed by a successor or purchaser who takes over property or a fund from a receivership, with assumption of liabilities, is one of direct liability, and not merely equitable, for the payment of claims chargeable against the property or fund, such local law fixes the nature of the cause of action for the enforcement of such liability in a federal court, and an action at law may be maintained in such court against the purchaser alone to recover for a personal injury for which the property in the hands of the receiver was chargeable. 4. PLEADING-DECLARATION-DUPLICITY.

A declaration, in an action to recover for a tort committed by railroad receivers, against a purchaser which succeeded to the property, is not bad for duplicity because it alleges as grounds of liability an express assumption of liability for all claims against the receivership, and also that the defendant succeeded to betterments and improvements made by the receivers from earnings of the receivership which were liable for plaintiff's claim.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 134137.]

In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.

This writ of error is from a final judgment against the plaintiff in error, as plaintiff below, upon demurrer sustained to the declaration, as finally amended, and election to stand by such declaration.

The transcript of record shows that the plaintiff in error filed suit in trespass on the case, December 7, 1900, in the superior court of Cook county, against F. C. Austin Manufacturing Company, and E. W. Meddaugh and Henry B. Joy, as receivers of Chicago & Grand Trunk Railway Company; and that in 1903 the Grand Trunk Western Railway Company was impleaded as a defendant therein. Subsequently, after issues joined and trial in that court upon which verdict was set aside, the proceedings resulted in submission to a dismissal as to the defendants Austin Manufacturing Company and the receivers (upon suggestion of the death of one receiver and discharge of the other, and delivery of all the railroad property to the defendant Grand Trunk Western Railway Company), and continuance of the cause with a new trial granted as against the Grand Trunk Western Railway Company. Thereupon, on application of such remaining defendant, the cause was removed to the Circuit Court of the United States, on June 19, 1905. Other proceedings in the Superior Court, which are referred to in the transcript, are not material upon this writ of error. Several amended declarations were filed, resulting in the final amended declaration, upon which this judgment of dismissal rests under demurrer.

This declaration avers that the plaintiff in error was injured on March 5, 1900, in operations of the railroad under receivers named, through negligence in such operation, while he was "in the exercise of due care and caution about his own safety," and that the receivers were appointed and acting under orders of the United States Court for the Eastern District of Michigan, in foreclosure proceedings against the railroad company then owning the road. For recovery thereupon against the defendant in error, subsequent proceedings in that court under a foreclosure decree are averred in the filing of a petition by the defendant in error, as purchaser under the decree, and an order of the court granting the prayer of the petition; each entitled in that cause and reading as follows: