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file such amended petition. The court, without passing upon the application until after the argument and the consideration of the cause on final hearing, thereafter proceeded to a decree refusing Buck's leave to file his amended petition and adjudging that the $22,000, the fund in court, belonged to Mason, and should be turned over to him, and further adjudged against Buck and his surety on the indemnity bond the costs of the proceeding and the further sum of $782.18, amount of interest at the rate of 8 per cent. per annum upon the said $22,000 from the 18th day of January, 1904, to the date of the decree.

Buck's contention, as set forth in his amended petition, is substantially as follows: In the month of April, A. D. 1900, Milliken assigned to Buck and one C. L. Rathborne a half interest in what he should become entitled to under the terms of the contract between him and Sullivan, in consideration of Buck and the said Rathborne aiding and assisting Milliken in the performance of said contract. Buck thereafter did aid and assist Milliken in such performance, and thereafter, in connection with such performance, Buck, at the request of Milliken, loaned him during the year 1900 $175, to be used by Milliken in the prosecution of a suit by him against Sullivan for the recovery of money owed under the terms of the contract. That Milliken was indebted to Buck and Rathborne in the sum of $12,000, in which Buck had a half interest. That Milliken was permitted to become indebted to Buck and Rathborne in said sum in consideration of Milliken's assignment to Buck and Rathborne, as collateral security for said indebtedness, of one-half of Milliken's interest in his claim against Sullivan. That on the 3d of April, 1900, in consideration of the money loaned by Buck as aforesaid, and of the indebtedness of Milliken to Buck and Rathborne as aforesaid, and of the interest which Buck then owned in Milliken's claim against Sullivan, Milliken agreed with Buck to pay him one-half of such sum as he might obtain from Sullivan. Prior to the time of making the agreement last mentioned between Buck and Milliken, the latter informed Buck that Rathborne had abandoned all claim to any interest, and that therefore Milliken made the interest of Buck one-half instead of one-fourth, as it would otherwise have been. Then the recovery of the judgment is set forth in accordance with the statements in the bill of interpleader, and the petition goes on to allege that, if Mason is entitled to any portion of the judgment, he is not entitled to as much as one-half thereof, and had before the filing of the petition been paid a great deal more than the actual consideration paid by him for the alIcged assignment of the judgment, and, further, that, if any assignment was made by Milliken to Mason, it was for the purpose of constituting a collateral security for money advanced to Milliken by George Mason, deceased, upon whose estate Harry B. Mason was administrator, and that, after allowing to the said Harry B. Mason all of the money advanced by his intestate and by him, the said Harry B. Mason, and the legal interest thereon, and after allowing Milliken all of the expenses incurred by him in obtaining judgment against Sullivan, there still remained $22,000, which Buck prayed should be turned over to him.

Mason set forth his claim in an unsworn answer substantially as follows: He states that the allegation that he had knowledge of Buck's claim is false, and that the assignment under which he claims is bona

fide and upon a valuable consideration, in pursuance of a written contract between Milliken and Mason's father, George Mason, now deceased, for money loaned by George Mason to Milliken, and for which he holds several promissory notes of Milliken, payable to George Mason, dated at different dates during the years 1900 and 1901, amounting to about $10,000. These notes came to Mason's hands as administrator of his father's estate. After his father's death he continued to assist Milliken financially by lending him such sums of money as he called for, for most of which he took from Milliken promissory notes, amounting to about the sum of $7,000. For the use of the various sums loaned by George Mason, Milliken agreed, by written contract of April 16, 1900, to assign one-third of his commissions owing by Martin H. Sullivan to George Mason. After the reversal of the first judgment against Sullivan by the Circuit Court of Appeals at New Orleans, in January, 1902, it became necessary to begin suit again in the lower court, and Milliken gave Mason a written agreement to assign him an interest of one-half of his recovery against Sullivan, to include the one-third interest due the estate of George Mason, deceased. After recovery of the second judgment against Sullivan, November 29, 1902, Milliken by written assignment, in pursuance of former contracts, as stated in the answer, in consideration of various sums of money loaned him by George Mason and by Harry B. Mason, transferred and assigned the whole judgment to Henry B. Mason, which was accepted in good faith, upon bona fide consideration, and without knowledge or information of Buck's claim. That Harry B. Mason, to aid Milliken in settling up claims brought against him, consented to the sum of $5,000 being paid to Hattie B. Scales and the sum of $1,500 to C. B. Leet out of the money paid in on the Sullivan judgment. The claim of Buck is denied.

Milliken filed an unsworn answer, in which he pronounces false Buck's claim that Milliken has assigned to him, as stated in Buck's petition. He denies that Buck had any connection with the sale of the lands. He denies that $175 advanced by Buck was used by him in the prosecution of his suit against Sullivan. The material part of the answer is that in which Milliken says, referring to the assignment made by him to Harry B. Mason of the judgment against Sullivan, that:

"Said assignment was made in good faith by respondent upon a valuable consideration paid respondent by said Mason and his father, George Mason, now deceased."

It is not necessary, nor would it be profitable, to review in detail the evidence in the bulky record of the issues between the appellant and the appellees. The conflict is direct between Buck and Milliken, and we are unable to reconcile their statements as to facts in regard to matters where it does not seem possible that either, with the interests involved, can be mistaken. Among the letters of the parties and the written papers put in evidence, we find the following acknowledgment in favor of Buck:

"Sam'l H. Buck, Esq., City-Dear Sir: In case I succeed in making any compromise of my claim in Sullivan land matters, I will pay over to you one-half of the amount I settle for. Yours truly,

"[Signed]

W. A. Milliken.”

As to this Milliken says.

"I agreed with Mr. Buck that, if he would lend me the money I would need to prosecute a suit against Sullivan to collect my commission for the sale of his timber lands, I would give him half of what I recovered. This agreement was verbal, and was made about the 8th or 9th of March, 1900. My only promise to give him an interest in said commission was based upon his promise to furnish me the money to carry on my suit against Sullivan, and this he wholly failed and refused to do. From the time Mr. Buck obtained from me the letter of April 3, 1900, up to this good day, he has never furnished, nor offered to furnish, me one dollar for any purpose. At my last meeting with him, about April 14, 1900, he said he could not then lend me any more money, nor could he furnish me money for my expenses, and he said I would have to make some other moneyed arrangement."

From this on there was correspondence between Buck and Milliken, in which Buck persistently asks for payment of personal loan of $175, and seeks information as to Milliken's progress in collecting claim against Sullivan, and in which Milliken fences and avoids, neither admitting nor denying, Buck's interest. When Buck writes, in letter of September 27, 1900, "Please let me hear from you what you are doing with our claim against Mr. Sullivan," Milliken answers, on September 28, 1900:

"I have collected nothing on my claim against Sullivan, and do not expect ever to get a penny out of him, except at the end of a long and expensive lawsuit."

January 4, 1901, Buck writes:

"Please advise me what steps you have taken to collect claim against M. H. Sullivan. in which we are jointly interested."

Milliken answers, January 8, 1901:

"I have never received a penny from Sullivan, and never will, if he can possibly beat me out of it. I have sued him for damages, and hope to make him pay me at least for my services and expenses," etc.

In regard to this correspondence Milliken testifies:

"I recognized, from the insidious manner in which Mr. Buck referred to his interest in my claim for commissions in his various letters to me dunning me for the $175 I owed him, that he was endeavoring to secure from me an admission of his claim in some way, which I refused to recognize. I ignored his claim, knowing it had no foundation to rest on, binding in law, equity, or good morals."

On the whole written evidence the preponderance seems in favor of Buck. The real difficulty is in regard to any consideration passing from Buck to support the assignment he claims. It does not appear that he ever rendered any substantial assistance in finding a purchaser for, or aided in disposing of, the Sullivan lands. His firm, Rathborne & Co., did write to an English correspondent, but it came to nothing. The $175 loaned from time to time by Buck to Milliken was always treated by Buck as an independent debt, for which he dunned Milliken persistently and frequently for payment, as though having no reference to the Sullivan claim.

As to the indebtedness of Milliken to Rathborne & Co., growing out of speculations in stocks, which Rathborne swears passed to him—and he is corroborated by the writings-by the settlement of the affairs of that company, Buck had no interest in that; and it is proper to note

in this connection that in October, 1901, Buck endeavored to secure whatever interest Rathborne had in the Sullivan claim as growing out of the affairs of Rathborne & Co., for he proposed an assignment on terms, as shown by documents not disputed, to wit:

"Chas L. Rathborne,

"Member N. Y. Stock Exchange. "R. W. Rathborne, Jr.

"Telephone, 2102 Cortlandt. "Cable, "Glyborne.'

"Rathborne & Son, Bankers & Brokers, 7 Wall Street.

"New York, Oct. 14, 1901. "I hereby agree to pay over in kind one-fifth of all I may receive from the claim of W. A. Milliken vs. H. M. Sullivan for commissions on sale of timber lands in Alabama and Florida for General R. A. Alger and his associates.

"[Signed]

"Witness:

"W. S. Young,

"30 Broad St., N. Y. City."

"Chas. L. Rathborne.

S. H. Buck.

"Member N. Y. Stock Exchange.

"R. W. Rathborne, Jr.

"Member N. Y. Stock Exchange.

"Telephone, 2102 Cortlandt. "Cable, 'Glyborne.'

"Rathborne & Son, Bankers & Brokers, 7 Wall Street.

"New York, Oct. 14, 1901.

"For one dollar paid in hand, the receipt of which I hereby acknowledge, and other valuable considerations, I hereby sell and transfer to Samuel H. Buck, of this city, all my rights and title in and to the claim of W. A Milliken of Washington, D. C., against H. M. Sullivan, of Pensacola, Florida. for commissions, etc., on the sale or transfer of certain timber lands in Alabama and Florida to General R. A. Alger and his associates.

"Given under my hand in New York City, this 14th day of October, 1901. "Witness:

"In handwriting of W. S. Young, 30 Broad St."

March 9, 1904, Buck wrote to Rathborne as follows:

"New York, March 9, 1904. "Mr. C. L. Rathborne, Mt. Kisco, New York-Dear Sir: I have had several talks with Walter and he has doubtless explained the importance of my proving by you only two points: (1) That Milliken originally, before sale was effected, gave you and myself one-half interest in whatever commissions he collected for the sale of lands belonging to Sullivan lying in Alabama and Florida. (2) That my interest was not included in my assignment to you. This is very important to enable me to complete my case. If you will consent to give this testimony on Friday, about noon, I will be glad to meet you in Walter's office. Please let me know if you will consent to do so.

"Yours very truly,

Sam'l H. Buck."

It is not easy to reconcile these papers, taken in connection with the evidence of Rathborne, with the claim of Buck that he had an interest in Milliken's claim against Sullivan for commissions in selling the Florida lands, because and growing out of the transactions of Milliken with Rathborne & Co. The admissions of Milliken as to Buck's interest in the Sullivan claim, as proved by Mr. Nicoll, lose force, because at that time Rathborne & Co. held as collateral the note of Sullivan conditionally promising to pay commissions. The burden of

proof to establish his claim is properly on Buck. According to the decree of the lower court, he failed to satisfy the trial judge. In our judgment, on the whole evidence, the case is too close for this court, by a majority of judges, to decree that the lower court erred in its finding.

For the reasons herein, the decree of the Circuit Court is amended, by striking out all that part condemning Buck to pay interest, in the third paragraph thereof, and condemning Buck and the Etna Indemnity Company, his surety, to pay interest and costs, as in the fourth paragraph thereof, and, as amended, the same is affirmed. The appellant to have and recover costs in this court, including costs of transcript.

ROSNEY V. ERIE R. CO.

(Circuit Court of Appeals, Second Circuit. January 25, 1905.)

1. MASTER AND SERVANT-INJURIES TO SERVANT-FELLOW SERVANTS.

All of the employés of a railway company engaged in operating either of two colliding trains were fellow servants of a fireman on one of the trains.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 504, 506–509.]

2. SAME-NEGLIGENCE-QUESTION FOR JURY.

In an action for injuries to a locomotive fireman in a collision between his train and a train engaged in switching in a railroad yard, evidence held Insufficient to require submission to the jury of defendant's alleged negligence in failing to provide sufficient help on the switching train, and in providing a yard crew incapacitated from overwork.

3. SAME-YARD RULES-SUFFICIENCY.

Where a railroad rule provided that yard limits at certain points were designated by signs, and that it would not be necessary for any engine or train occupying the main track inside of the yard limits to be protected by flagmen, except when in the time of a first-class train, it was explicit in meaning, and sufficient to protect a train on the main track within the yard limits of one of the places so designated against collision with a switching train in the yard.

4. SAME-AUTOMATIC COUPLERS-AIR BRAKES-STATUTES.

Act March 2, 1893, 27 Stat. 531, c. 196 [U. S. Comp. St. 1901, p. 3174], as amended by Act March 2, 1903, 32 Stat. 943, c. 976 [U. S. Comp. St. Supp. 1903, p. 367], requiring common carriers engaged in interstate commerce to use automatic couplers and air brakes on engines and cars used in interstate commerce, has no bearing in an action for injuries to a fireman by a collision in a railroad yard, where there was no proof that the engine and cars in collision were used in interstate

commerce.

In Error to the Circuit Court of the United States for the Southern District of New York.

A. Delos Kneeland, for plaintiff in error.

Frederic B. Jennings and Winfred T. Denison, for defendant in

error.

Before WALLACE, LACOMBE, and COXE, Circuit Judges.

COXE, Circuit Judge. The action was brought by the plaintiff, as widow of John H. Rosney, to recover damages for his death which

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