Olv. App. 12, 21 §. W. 692, holding initial carrier liable under its contract for loss of animals on connecting line; Gulf, etc., R. R. Co. v. Cole, 8 Tex. Civ. App. 640, 28 S. W. 394, finding through contract and first carrier liable for personal injuries; dissenting opinion in Piedmont Mfg. Co. v. Columbia, etc., R. R. Co., 19 S. C. 379, majority holding charge erroneous fixing liability on initial carrier. See note, 72 Am. Dec. 242.

Distinguished in Harris v. Grand Trunk, 15 R. I. 373, 5 Atl. 307, holding shipper bound by bill of lading and not entitled to recover from first carrier.

Carriers are under duty to furnish suitable vehicles for transportation, and if unfit, carrier is not relieved by fact that shipper knew them to be defective and used them, p. 133.

Cited and indorsed as the correct rule in St. Louis, etc., R. R. Co. v. Lesser, 46 Ark. 241, holding carrier at fault in providing unsafe car; Union Pac. R. R. Co. v. Rainey, 19 Colo. 228, 230, 34 Pac. 987, 988, holding similarly where cars were unsuitable for shipping horses; Beard v. Illinois, etc., R. R. Co., 79 Iowa, 521, 18 Am. St. Rep. 384, 44 N. W. 801, 7 L. R. A. 282, holding carrier liable for transporting butter in ordinary cars; State v. Cincinnati, etc., R. R. Co., 47 Ohio St. 140, 23 N. E. 931, 7 L. R. A. 322, and n., compelling railroad to supply equal facilities to all for transportation of oil; G., C. & S. F. R. R. Co. v. Wilhelm, 3 Tex. App. Civ. 560, where sheep were lost from use of defective cars. See valuable note, 63 Am. St. Rep. 566.

Carriers cannot stipulate for unreasonable exemptions from liability, as, for negligence of themselves or their servants, p. 134.

Doctrine approved and cited as follows: Liverpool, etc., S. S. Co. v. Phenix Ins. Co., 129 U. S. 442, 32 L. 792, 9 S. Ct. 472, affirming S. C., 22 Blatchf. 397, 22 Fed. 728, holding stipulation against loss by perils of sea arising from negligence, invalid; Voight v. Baltimore, etc., R. R. Co., 79 Fed. 563, holding railroad could not contract with express messenger to exempt itself from liability for negligence; Pierce v. Southern Pac. Co., 120 Cal. 165, 47 Pac. 876, 40 L. R. A. 353, holding railroad liable for negligence in shipping orange trees by northern route; Union Pac. R. R. Co. v. Rainey, 19 Colo. 231, 34 Pac. 988, and Armstrong v. Missouri, etc., R. R. Co., 17 Mo. App. 402, where railroad furnished unsuitable cars for live stock; Missouri, etc., R. R. Co. v. Carter, 9 Tex. Civ. App. 689, 29 S. W. 570, holding contract requiring statements and notices of condition of cattle unreasonable, and not binding; Davis v. Chicago, etc., R. R. Co., 93 Wis. 481, 57 Am. St. Rep. 939, 67 N. W. 19, 33 L. R. A. 658, reviewing cases, and holding provision for immunity for negligence, void.

The following cases approve the rule, but hold stipulations reasonable and valid: Hart v. Pennsylvania R. R. Co., 112 U. S. 338.

28 L. 720, 5 S. Ct. 154, and Brown v. Wabash, etc., R. R. Co., 18 Mo. App. 574, limitation of liability in bill of lading as to value of live stock; Phoenix Ins. Co. v. Erie Transp. Co., 117 U. S. 322, 29 L. 879, 6 S. Ct. 754, stipulation giving carrier benefit of any insurance effected upon goods; Kansas City, etc., R. R. Co. v. Sharp, 64 Ark. 118, 40 S. 782, limitation of liability to that of warehouseman upon arrival of goods at station of delivery; Ballou v. Earle, 17 R. I. 448, 33 Am. St. Rep. 888, 22 Atl. 1115, 14 L. R. A. 437, and n., limitation upon value of packages; Houston, etc., R. R. Co. v. Park, 1 Tex. App. Civ. 143, limitation of liability to carrier's own line. Cited in notes, 32 Am. Dec. 500, and 13 Am. St. Rep. 783.

Appeal and error.- - Judgment will not be reversed for error clearly producing no injury, p. 135.

Cited in Runkle v. Burnham, 153 U. S. 224, 38 L. 697, 14 S. Ct. 840, holding rejection of telegrams, being immaterial, not reversible

error.

Miscellaneous.- Miscited in Pickett v. Merchants, etc., Bank, 32 Ark. 370.

22 Wall. 136-150, 22 L. 743, ST. JOHN v. ERIE RY. CO.

Corporations.-"Net earnings," as used in agreement for divi dends upon preferred stock, are those which remain after deduc tion of all charges or outlay, as net profits, p. 148.

64

Citing as authority Mobile, etc., R. R. Co. v. Tennessee, 153 U. 8. 497, 38 L. 797, 14 S. Ct. 972, defining word dividend' " under statute exempting corporation from taxation; Southern Pac. Co. v. Board of Commrs., 78 Fed. 266, defining "expenditures" in arriving at net earnings of road; Terre Haute v. Hudnut, 112 Ind. 551, 13 N. E. 690, holding witness properly used term "net earnings" to mean profits; Belfast, etc., R. R. v. Belfast, 77 Me. 458, 1 Atl. 366, holding annual contribution to sinking fund payable out of earnings; McLean v. Plate-Glass Co., 159 Pa. St. 118, 28 Atl. 212, holding part of standing indebtedness properly deducted as a charge; Commonwealth v. Phila., etc., R. R. Co., 164 Pa. St. 261, 30 Atl. 146, holding rent for rolling-stock an operating expense. See note, 99 Am. Dec. 762.

Corporations. Preferred stockholders cannot select a part of a business and say that net earnings specified in the stipulation for their preferred dividends, must be a predicate of that part and of none other, p. 149.

Cited and applied in Mackintosh v. Flint, etc., R. R. Co., 34 Fed. 605, holding revenue from land assets as applicable to payment of dividends as that from any other source; People v. St. Louis, etc., R. R. Co., 176 Ill. 531, 532, 52 N. E. 298, 35 L. R. A. 661, where net earnings were ascertained from accounts of entire system;

Schmidt v. Louisville, etc., R. R. Co., 95 Ky. 299, 25 S. W. 496, arriving at expenses of leased road by proportion of total operating expenses.

Distinguished in Nickals v. New York, etc., R. R. Co., 21 Blatchf. 181, 15 Fed. 579, where there was net profit over all expenses of all operations, stockholders held entitled to dividends.

Corporations.- Creditors of railroad becoming preferred stockholders under reorganization contract with right to receive dividends "out of net earnings of road," are not entitled to dividends until rents accruing under leases and interest upon bonds are paid, p. 150.

Cited and followed in Warren v. King, 108 U. S. 400, 27 L. 773, 2 S. Ct. 798, holding preferred stockholders had no priority over subsequent mortgagees; New York, etc., R. R. Co. v. Nickals, 119 U. S. 307, 30 L. 368, 7 S. Ct. 214, holding preferred stockholder could not enforce payment from net earnings applied to make double track; Mercantile Trust Co. v. Baltimore, etc., R. R., 82 Fed. 370, applying earnings to payment of interest in preference to div idends; People v. St. Louis, etc., R. R. Co., 176 Ill. 531, 532, 52 N. E. 298, 35 L. R. A. 661, holding indebtedness on preferred stock could not be regarded a liability; Field v. Lamson, etc., Co., 162 Mass. 390, 38 N. E. 1127, 27 L. R. A. 143, and n., collecting cases, holding that owner of preferred stock should be regarded as stockholder, and not as creditor; Miller v. Ratterman, 47 Ohio St. 159, 24 N. E. 500, holding dividends on preferred stock payable only out of net earnings; McLean v. Plate-Glass Co., 159 Pa. St. 118, 28 Atl. 212, holding part of permanent indebtedness properly paid before dividends on preferred stock; Emerson v. New York, etc., R. R. Co., 14 R. I. 558, holding preferred stockholder had no pri ority over other creditors; State v. C. & C. R. R. Co., 16 S. C. 532, holding holder of preferred stock a shareholder; Chaffee v. Rutland R. R. Co., 55 Vt. 126, holding floating indebtedness payable before interest on preferred stock.

22 Wall. 150-157, 22 L. 832, SLOAN v. LEWIS.

Bankruptcy.- Accrued interest constitutes part of a debt provable against estate of bankrupt, and, therefore, is part of debt which may be used to uphold involuntary proceedings, p. 156.

Distinguished in Woodard, etc., Co. v. Milnes, 101 Wis. 332, 77 N. W. 164, holding costs of suits incurred thirty days before act of insolvency could not be added to give required amount.

Judgments.- Where record shows jurisdiction, an adjudication of bankruptcy can only be assailed by a direct proceeding in a competent court, p. 157.

Cited and applied in Wald v. Wehl, 18 Blatchf. 501. 6 Fed. 169, holding determination by Bankruptcy Court of existence and au

VOL. VIII-33

thority of agent of bankrupt, etc., not reviewable; In re Ives, 5 Dill. 148, 149, F. C. 7,115, holding decree adjudging debtor bank. rupt could not be attacked in application for discharge; Donegan ▼. Davis, 66 Ala. 372, holding authority of assignee could not be collaterally assailed.

22 Wall. 157-169, 22 L. 819, IN RE CHILES.

Judgments. Decree in suit in equity brought to establish title of State of Texas to bonds there claimed is final and conclusive on all rights of all parties actually before the court, p. 166.

Followed in Patterson v. Wold, 33 Fed. 792, holding action to set aside fraudulent conveyance barred by prior judgment.

Injunction. Decree perpetually enjoining parties from setting up any claim or title to bonds is not limited to prohibition of suit in court, but is violated where they continue to assert title by written notices; and such action constitutes contempt, pp. 167, 168. Cited in In re Sowles, 41 Fed. 753, contempt in resisting service of execution against respondent's wife.

Contempt. Federal courts, under section 725, revised statutes, have power to punish by fine and imprisonment for contempt of their authority, and purpose is either to punish guilty party, or to compel performance of some act or duty, p. 168.

Approved in Eureka, etc., Co. v. Yuba Co., 116 U. S. 417, 29 L. 674, 6 S. Ct. 432, sustaining power of State court to punish for contempt under State statute; Ex parte Terry, 128 U. S. 310, 32 L. 411, 9 S. Ct. 81, 13 Sawy. 468, holding Circuit Court had power to punish without issue or trial; Denver, etc., R. R. Co. v. Topeka, etc., R. R. Co., 5 McCrary, 291, 16 Fed. 853, holding company in contempt for refusing to check baggage; Hendryx v. Fitzpatrick, 19 Fed. 812, 813, holding court could release one committed for contempt upon showing that he could not pay sum demanded; United States v. Anonymous, 21 Fed. 768, reviewing authorities, and fining party for interrupting examination of witness before examiner; Norris v. Hassler, 23 Fed. 581, holding witness punishable for contempt in disobeying subpoena; Corbin v. Boies, 34 Fed. 699, contempt in not paying decree; Ex parte Huidekoper, 55 Fed. 710, 711, punishing sheriff for detaining property ordered returned by court; Indianapolis, etc., Co. v. American, etc., Co., 75 Fed. 978, 979, contempt in disobeying injunction not to allow refuse of mill to escape; Ex parte Hardy, 68 Ala. 315, contempt for refusing to deliver bonds to register; Forrest v. Price, 52 N. J. Eq. 30, 29 Atl. 221, contempt in refusing to indorse drafts, etc. Cited, arguendo, in In re Graves, 29 Fed. 63; generally in State v. Davis, 2 N. Dak. 471, 51 N. W. 946.

Distinguished in Whitcomb's case, 120 Mass. 120, holding city council could not commit for contempt.

Contempt.- Party cannot be guilty of contempt for disobedience of an order not yet made, p. 169.

Cited with approval in Stuart v. Stuart, 123 Mass. 371, holding mere transfer of property to prevent execution on anticipated decree not contempt; Ex parte Lake, 37 Tex. Crim. 665, 66 Am. St. Rep. 854, 40 S. W. 730, holding relator not in contempt where court had not yet jurisdiction of his person.

22 Wall. 170-179, 22 L. 766, BURNHISEL v. FIRMAN.

Interest is calculated at contract rate until date of maturity, and afterwards, where no rate is specified at legal rate, p. 176.

Cited and applied in Holden v. Trust Co., 100 U. S. 74, 25 L. 568, promissory note in District of Columbia; Sherwood v. Moore, 35 Fed. 109, promissory note executed in Georgia; Newton v. Kennerly, 31 Ark. 628, 25 Am. Rep. 594, and Hicks v. Coody, 49 Ark. 428, 5 S. W. 714, notes executed in Arkansas; Duran v. Ayer, 67 Me. 152, and Eaton v. Boissonnault, 67 Me. 541, 24 Am. Rep. 53, notes executed in Maine; O'Brien v. Young, 95 N. Y. 430, 47 Am. Rep. 65, holding rate of interest on judgment followed change of rate by legislature. Cited in notes, collecting conflicting authorities, 6 Am. Dec. 190, and 30 Am. Rep. 47, 50.

Distinguished in Sanford v. Savings, etc., Soc., 80 Fed. 61, and Hovey v. Edmison, 3 Dak. 471, 22 N. W. 604, where rate, after maturity, was stipulated for in agreement; New Orleans v. Warner, 175 U. S. 147, holding commencement of suit sufficient demand to start running of interest. Denied in Shaw v. Rigby, 84 Ind. 878, 43 Am. Rep. 99, holding rate fixed by contract measure of damages after maturity; Union Inst. v. Boston, 129 Mass. 93, 94, 37 Am. Rep. 312, 313, reviewing authorities, and adopting rate fixed in note and mortgage as in accord with intention of parties; Borders v. Barber, 81 Mo. 645, and Briscoe v. Kinealy, 8 Mo. App. 83, both holding, where interest was payable "from date," same rate continued after maturity; Barbour v. Tompkins, 31 W. Va. 421, 7 8. E. 7, holding contract rate should govern until note is paid.

Usury. Where statute makes usury penal, but does not declare contract void, usurious bond may be enforced for amount actually due, p. 177.

Followed in Farmers, etc., Bank v. Dearing, 91 U. S. 35, 23 L. 199, holding bank charging unlawful interest under national banking act entitled to recover principal; Lewis v. Clarendon, 5 Dill. 339, F. C. 8,320, allowing legal rate on municipal bonds where contract rate was in excess of chartered powers of railroad; Curtis v. Vallton, 3 Mont. 156, holding note void only to extent of compound interest charged; Scottish M. & L. Inv. Co. v. McBroom, 6 N. Mex. 587, 30 Pac. 863, holding contract void to extent of requiring bonus in excess of legal interest.