moving trains, without taking any thought of the frogs and guard rails, or as to where he may be stepping, is negligence on his part contributing to the catching his foot in them.--Gillin v. Railroad Co., 44 Atl. 361, 93 Me. 80.

[c] (Mo. Sup. 1891) It is not contributory negligence as a matter of law for a servant to continue in employment after knowledge of an unblocked switch.-Hamilton v. Mining Co., 18 S. W. 977, 108 Mo. 364.

[d] (Ohio C. C. 1894) Where the manifest weight of the evidence, in an action against a railroad for damages for wrongfully causing the death of one of its employés, showed that the injury occurred where there were switches or frogs, at a point where the decedent had no duties to perform, and by his thoughtlessly stepping one foot between the tracks immediately in front of a moving engine, whose bell was ringing, no recovery can be had. -Railway Co. v. Eagan, 18 Ohio Cir. Ct. R. 886, 4 O. C. D. 20.

6. Assumption of Risk.

[a] (U. S. Sup., Utah, 1894) An experienced railroad employé, familiar with a certain freight yard, and knowing that unblocked frogs are in use there, assumes the risk incident thereto, and where the evidence shows that, in attempting to make a coupling, he put his foot in a frog and was warned of the danger thereof, but persisted until his foot was caught, the court should instruct the jury to return a verdict for the defendant.-Southern Pac. Co. v. Seley, 14 Sup. Ct. 530, 152 U. S. 145, 38 L. Ed. 391, reversing Seley v. Railway Co. (1890) 23 Pac. 751, 6 Utah, 319.

[b] (U. S. C. C. A., Ohio, 1899) In the absence of statutory provision, a switchman employed in the yards of a railroad company assumes the risk incident to unblocked switches and guard rails, where, in general, there are no blocks used in such yards, and the servant has been employed therein for such a length of time that in the exercise of ordinary observation he must have known such fact.-Narramore v. Railway Co., 37 C. C. A. 499, 96 Fed. 298, 48 L. R. A. 68.

[c] (Ark. Sup. 1891) When an experienced brakeman enters the service of a railroad company, knowing that its frogs are not blocked, he assumes the increased risk incident thereto.-Railway Co. v. Davis, 15 S. W. 895, 54 Ark. 389.

[d] (Ill. App. 1885) Where deceased had been in the employ of defendant for a year preceding the accident, and for two months in the yard where the accident occurred, he will be deemed to have had knowledge of the danger and to have assumed the risk.-Railroad Co. v. Smith, 18 Ill. App. 119.

[e] (Ind. Sup. 1881) In an action for injuries to a brakeman by having his foot caught in an unblocked frog, it appeared that the switches were in the same condition during all the time that plaintiff was in defendant's employ, that they were of the same kind as those used on other railroads, that the frogs could be plainly seen, and that plaintiff could have acquired knowledge of their condition. Held, that plaintiff had assumed the risk.-Railway Co. v. McCormick, 74 Ind. 440.

[f] (Ind. Sup. 1894) Where none of the frogs at any of the switches of a railroad company are blocked, a brakeman, by continuing in employment, assumes the increased risk incident thereto.-Sheets v. Railway Co., 39 N. E. 154, 139 Ind. 682.

[g] (Ind. Sup. 1898) A railroad company blocked the space between switches and guard rails, except at street crossings. There were about 50 of these, all unblocked. A brakeman's foot was caught in an open space while attempting a coupling. The space was in the same condition when the brakeman entered on his employment, and since then he had passed it once a day, except Sundays, for over a month. Held, that he had assumed the extra risk incident to the space being left open.-Railroad Co. v. Ray, 51 N. E. 920, 152 Ind. 392.

[h] (Howa Sup. 1884) Where, in an action for the death of an employé, it appeared that deceased had been in the employ of defendant for six weeks on the track where the accident occurred, he will be presumed to have had knowledge of the danger and to have assumed the risk.-Mayes v. Railway Co., 19 N. W. 680, 63 Iowa, 562.

[i] (Iowa Sup. 1898) Where a brakeman has worked for a number of years around a certain switch, which is dangerous, because so constructed as to be

likely to catch the foot of one walking over it, he is negligent in attempting to uncouple moving cars while passing over such switch, and cannot recover for an injury caused thereby.-Quinn v. Railway Co., 77 N. W. 464, 107 Iowa, 710.

.

[j] (Kan. Sup. 1887) Where, in an action for the death of a brakeman resulting from a failure to have the switch and the guard rails blocked, it appeared that deceased had been employed in the yard where the accident occurred for about 2 months prior to the accident, that the track was in the same condition as when it was constructed, and that it was constructed like those of other roads, deceased must be deemed to have had knowledge of the danger and to have assumed the risk.-Rush v. Railway Co., 12 Pac. 582, 36 Kan. 129.

[k] (Mass. Sup. 1888)

Where plaintiff enters into employment, knowing that frogs are not protected, he assumes the risk.—Wood v. Locke, 18 N. E. 578, 147 Mass. 604.

[1] (Mich. Sup. 1890) Notwithstanding Pub. Acts 1883, p. 191, requiring all railroad companies to fill or block the frogs, switches, and guard rails, there can be no recovery for the death of a brakeman who, while voluntarily attempting to uncouple moving cars, gets his foot caught in an unblocked "split switch," when it appears that he had been several years in the employ of the company, was familiar with the switches and track where the accident occurred, had been warned by the written rules of the company, which he had read, not to enter between the cars in motion to couple or uncouple them, and had signed an acknowledgment, when he became brakeman, that he knew the duties were dangerous, and that he had read the rules by which he would be governed.-Grand v. Railroad Co., 47 N. W. 837, 83 Mich. 564, 11 L. R. A. 402.

[m] (N. Y. App. 1888) Where a switchman had for a long time been employed in a railroad yard, and knew the shape and purpose of a "frog," and knew that it was unblocked, it was error to submit to the jury, as a question of fact, whether he was charged with notice of the difficulty of removing his foot from the converging rails, and of the danger resulting from having his foot caught therein.-Appel v. Railway Co., 19 N. E. 93, 111 N. Y. 550.

[n] (N. Y. Sup. 1893) Plaintiff's intestate, a brakeman in defendant railroad company's employ, was killed by an engine by reason of his foot being caught in an unblocked frog. He had been in defendant's employ for several years, and knew that the larger portion of the frogs on defendant's tracks were generally provided with blocks, had been employed around the frog from which the accident occurred for over an hour, and with slight vigilance could have seen that it was not blocked. Held, in the absence of evidence that blocks were in general use on defendant's tracks or on those of other roads, that the failure of defendant to provide a block for the frog at which the accident occurred was not negligence, and that intestate must be held to have assumed the risk incident to the use of the frog.-Spencer v. Railroad Co., 22 N. Y. Supp. 100, 67 Hun, 196.

[o] (N. Y. Sup. 1893) A brakeman, who has been more than a year in the employ of a railroad company, assumes the risk incident to the fact that some of the guard rails in the company's switch yards are not blocked, so as to prevent an employé's foot from being caught between the guard rail and the main rail; and the company is not liable for his death, caused by failure to block such guard rails.-McNeil v. Railroad Co., 24 N. Y. Supp. 616, 71 Hun, 24, following (1888) Appel v. Railroad Co., 19 N. E. 93, 111 N. Y. 550.

[p] (Va. Sup. 1891) A railroad company is not liable for the death of an employé, caused by his foot being caught in an open frog, if it is of a standard sort, though it is the only frog in the yard not blocked, if the employé has been working over it for a long time, and had an opportunity to become familiar with its character.-Railroad Co. v. Risdon's Adm'r, 12 S. E. 786, 87 Va. 335.

[q] (Wis. Sup. 1897) A railroad employé working in a yard does not assume any risk arising from the defective condition or insufficient blocking of a guard rail.—Curtis v. Railroad Co., 70 N. W. 665, 95 Wis. 460.

7. Evidence.

[a] (U. S. C. C., Ohio, 1895) Plaintiff sued a railway company for injuries caused by catching his foot in a guard rail. A statute made it obligatory on the railroad company to block its guard rails, so as to prevent the feet of its employés from being caught therein. Defendant claimed that a block which would have prevented the injury would have been inconsistent with the safe running of its trains, and so could not be required. Held, that evidence that after the accident a sufficient block was placed in the guard rail without endangering the trains was admissible to show that such a block could be used with safety.-Railroad Co. v. Van Horne, 69 Fed. 139.

[b] (Neb. Sup. 1888) In an action by an administratrix against a railroad company for damages for the death of her husband, a brakeman, the petition alleged that in constructing its railroad the defendant negligently failed to block its switches and frogs, by means of which deceased, in coupling cars, stepped between the rails of a switch and became fastened there, by reason of which he was run over by the cars and killed. Held, that the plaintiff could not recover without evidence that unprotected frogs and switches are inherently unsafe and dangerous when prudently and carefully worked and managed, and that blocking them materially lessens the danger of their use and management, and that such was generally recognized by those engaged in the construction and operation of railroads in the country or vicinity by the adoption and use of such improvement, or of evidence equivalent.-Railway Co. v. Lewis, 40 N. W. 401, 24 Neb. 848, 2 L. R. A. 67.

[c] (Neb. Sup. 1888) The construction and operation of a railroad without blocking its frogs and switches is not negligence per se, of which a court will take judicial notice upon proof of the fact of such construction and operation, and failure to block the frogs and switches only.-Railway Co. v. Lewis, 40 N. W. 401, 24 Neb. 848, 2 L. R. A. 67.

8. Questions for Jury.

[a] (Iowa Sup. 1887) In an action against a railroad company for the death of a brakeman in its employ, occasioned by his foot being caught in the space between the main and guard rails of the track, there was no evidence tending to show that the block in such space was improperly placed, or so placed as to be dangerous to employés; but the evidence did tend to show that the block was worn, and a portion of it split off, caused by the operation of the road. Held error to submit to the jury the question whether or not the block was so placed as to be dangerous to brakemen coupling or uncoupling cars in the exercise of ordinary care.-Griffith v. Railway Co., 34 N. W. 609, 72 Iowa, 645.

[b] (Minn. Sup. 1885) Whether it was the custom of defendant to leave frogs unblocked, so that its employés might be presumed to know that such was the custom, and by continuing in the employment to have assumed the risk, is a question for the jury.-Sherman v. Railway Co., 25 N. W. 593, 34 Minn. 259.

[c] (Mo. Sup. 1891) Whether or not a coal company, operating a spur railroad and switching tracks at its coal mines, was negligent in failing to block the rails, is a question for the jury.-Hamilton v. Mining Co., 18 S. W. 977, 108 Mo. 364.

(107 Fed. 1.) KIRTLEY v. HOLMES.

(Circuit Court of Appeals, Sixth Circuit. February 12, 1901.)

No. 837.

1. CORPORATIONS-CONSTITUTIONAL LIABILITY OF STOCKHOLDERS-ENFORCEMENT IN OTHER JURISDICTIONS.

Under Const. Ohio, art. 13, § 3, providing that "dues from corporations shall be secured by such individual liability of the stockholders, and other means, as may be prescribed by law; but in all cases each stockholder shall be liable over and above the stock by him or her owned, and

any amount unpaid thereon, to a further sum at least equal in amount to such stock,"-a contractual liability exists upon the part of every stockholder in an Ohio corporation to its creditors, in case of its insolvency, at least equal to the amount of his stock, which may be enforced in the federal courts against a stockholder domiciled in another jurisdiction, where the evidence in the case shows the insolvency of the corporation, that its indebtedness exceeds the stockholder's liability, and that assessments have been made by a court of Ohio, under its statutes, against domestic stockholders, to the full amount of their liability, so as to make it fully appear that the foreign stockholder will not be unjustly discriminated against.

2. SAME-SUITS BY RECEIVER.

Rev. St. Ohio, §§ 3258-3260, provide, in accordance with the provisions of the state constitution, that stockholders in corporations shall be individually liable to creditors in an amount equal to their stock; that such liability shall be enforced in an action in behalf of all creditors and against all stockholders, in which the court shall determine the amount payable by each person liable on all the indebtedness of the corporation, and shall render judgment therefor against all stockholders served. The supreme court of the state has held such suit to be equitable in its nature, and one in which it is proper for the court, under the statutes of the state, to appoint a receiver to collect the amounts for which judgment has been therein rendered. Held, that it was also within the power of such court to authorize its receiver to bring suits against stockholders domiciled in other jurisdictions, and that a federal court in another jurisdiction should, on the principle of comity, recognize his right to maintain an action therein in behalf of all creditors to enforce the liability of a stockholder domiciled within its jurisdiction to an amount proportionate to that which domestic stockholders have been required to pay.

8. FEDERAL COURTS-JURISDICTION-SUIT TO SUBJECT LANDS OF DECEDENT. Where the statutes of a state permit a creditor to follow the lands of a decedent in the hands of his heirs, or when conveyed to others than bona fide purchasers for value, and it is shown that there are no debts of the estate other than the one sued on, and that it has no property except lands which have been conveyed by the heirs to the widow of the decedent without consideration, a federal court may entertain a suit in equity by a creditor to establish his claim against the estate, and enforce the same against such lands, subject to such rights of dower or homestead as are given the widow therein by the state statutes.

Appeal from the Circuit Court of the United States for the District of Kentucky.

This case originated in the attempt of John R. Holmes, a receiver appointed for the purpose of collecting the stockholders' liability of the Commercial Bank of Cincinnati, an insolvent corporation, to enforce the liability alleged to have been incurred by one John M. Kirtley as a stockholder in said bank. It appears that on the 27th day of March, 1895, the Commercial Bank made an assignment for the benefit of its creditors under the laws of the state of Ohio. On the day following, one Albert Berger filed his petition in the court of common pleas of Hamilton county, in said state, in behalf of himself and other creditors of said bank, against the stockholders, for the purpose of recovering the additional stockholders' liability under the Ohio constitution and statutes. On reference to a master, an accounting was taken of the amount of stock held by stockholders, the amount of claims of creditors, and the amount due each. On the 24th of April, 1896, a report was filed by the referee setting forth the names of the stockholders, the number of shares held by each, the names of creditors, and the amount of claims held by each. John M. Kirtley, it was alleged, was the owner of 120 shares of said stock, of the par value of $6,000. He was an original party to the suit, served with process, but having died in February, 1896, at his domicile in Covington, Kenton county, Ky., a conditional order of revivor was issued in the case on the 10th day of April, 1896, finding that Elizabeth M. Kirtley and Jerry H.

Kirtley had been appointed, respectively, administratrix and administrator of said estate; and it was ordered that the action be revived as against said representatives by publication, and afterwards, the publication having been made, the court undertook to order the cause revived in the name of said representatives. Afterwards, on the 6th day of July, 1896, a judgment was entered on the report of the referee, finding the insolvency of the corporation; also the claims of creditors, amounting at the time of the failure to $840,388.38, from which was to be deducted the proceeds of certain collateral security, leaving $632,774.45 due the general creditors of the bank. The court found the assets of the bank, other than those pledged as collateral security, to be sufficient to pay not to exceed 50 per cent. of the indebtedness, and that not less than $381,104.63 would remain unpaid after the application of all the assets of the bank to the payment of its liabilities. The court thereupon found that it would be necessary to levy an assessment upon the stockholders of said corporation to pay said indebtedness. Further, that there were 6,560 shares, of the par value of $50 each, outstanding at the time of the failure of the bank, representing $328,000; that, of these shares, 665 were held by persons not within the jurisdiction of the court, and 1,095 shares by persons insolvent, leaving 4,800 shares held by persons who were solvent and within the jurisdiction of the court, amounting to $240,000. And the court found that the assessment to be levied upon each stockholder should be equal to the par value of the shares of stock held by each, and that the proceeds arising from such assessment would be insufficient to pay the balance due upon the uncontested claims against said bank, and much less than enough to pay the claims allowed by the court. An assessment was made, and judgment rendered accordingly. Among other stockholders, the court undertook to adjudge that Elizabeth M. Kirtley and Jerry H. Kirtley, as administratrix and administrator, respectively, of the estate of John M. Kirtley, deceased, should be assessed in the sum of $6,457; and the parties held liable were ordered to pay their several assessments within 30 days to the receiver, and this further order was made: "Upon motion of the plaintiff and the cross petitioners herein, the court doth hereby appoint John R. Holmes receiver herein, and does authorize and direct said John R. Holmes, as such receiver, to collect and receive from the defendants the amounts assessed against them, and to take all steps that may be necessary for that purpose, including the employment of counsel, the commencement of actions in this or any other court, whenever it may be necessary to make collections, as well from the defendants herein as from those who are not within the jurisdiction of the court, or from those whose property has been attached herein. Said John R. Holmes, receiver, before entering upon his duties as such receiver, shall give bond, conditioned according to law, in the sum of $100,000, and otherwise qualify himself by taking the oath of office." And said receiver was ordered to pay the costs of the action, the fee. of the master, and to bring the remainder of the moneys coming into his hands into court for final distribution.

John R. Holmes, the said receiver, thereupon gave bond and proceeded to execute the duties of his office, and, among other things, instituted the present action in the circuit court of the United States for the district of Kentucky. In the bill allegations were made of the facts above stated as to the assessment by the order of the court of common pleas of Hamilton county, Ohio, with a statement of the proceedings leading up to the same. The bill also contained allegations as to the amount of outstanding indebtedness, and the consequent necessity of assessing each and every stockholder for the full amount of his stock. It also alleged the ownership of said 120 shares by John M. Kirtley during his lifetime, his death and appointment of his said representatives, proof of the claim, and refusal of the administratrix to allow and pay the same. It also alleged that said Kirtley was the owner of certain real estate in the county of Kenton, city of Covington, and state of Kentucky; that the personal estate of said Kirtley was insufficient to pay his debts; that the real estate of said Kirtley had been transferred by his children, who were defendants in the bill, to their mother, Elizabeth M. Kirtley; and that said transfer was not for a valuable consideration, and was fraudulent as against the creditors of said John M. Kirtley.