the witness was out of the state of Montana, but that his absence was permanent, or indefinite. We think the contention answered by the statute of Montana, which declares: * "In conformity with the preceding provisions, evidence may be given upon a trial of the following facts: (8) The testimony of a witness deceased, or out of the jurisdiction, or unable to testify, given in a former action between the same parties, relating to the same matter." Section 7887, Rev. Codes Mont. Apart from the statute, however, we are of the opinion that the testimony was admissible. In Chicago, St. P., M. & O. Ry. Co. v. Myers, 80 Fed. 361, 365, 25 C. C. A. 486, 490, the Court of Appeals of the Eighth Circuit said: "The defendant company assigns for error that the trial court wrongfully excluded a stenographic report of the testimony of a witness by the name of Moses R. Dickey, which had been given on a former trial of the case, after the defendant company had shown that the said Dickey was a resident of the state of Ohio, and that the defendant had been unable to procure his attendance at the second trial. The rule appears to be established in Minnesota-where this case was tried-that such testimony is admissible. Minneapolis Mill Co. v. Minneapolis & St. L. Ry. Co., 51 Minn. 304, 53 N. W. 639; King v. McCarthy, 54 Minn. 190, 55 N. W. 960. And the same rule, it seems, prevails in some other jurisdictions. Railway Co. v. Elkins, 39 Neb. 480, 58 N. W. 164, and cases there cited. We can see no substantial objection to the admission of such testimony when, on the first trial, the witness was fully examined and cross-examined, provided, always, that the stenographic report of his testimony is proven to the satisfaction of the trial court to be correct, by the person by whom it was reported, and provided further that the witness is beyond the reach of the process of the court, and his personal attendance cannot be secured." In 5 Encyc. of Evidence, p. 904, the rule is thus stated: "The absence of a former witness from the state is sufficient ground for admitting proof of his former testimony"-citing many cases. And in Wigmore on Evidence, § 1404, it is said that where the witness is out of the jurisdiction, and it is therefore impossible to compel his attendance, his testimony given at a former trial is generally accepted. [7] In the course of the testimony of Bigelow so introduced, he gave a detailed statement of his familiarity with the roadway, the team of horses in question, of the trip to Bainville, and of the accident on the return trip, and of the piece of paper that has been mentioned, saying, among other things, on cross-examination: "That piece of paper blew across the road between the house and the Hanson gate, about ten rods from the house. It just blew across the road, and went on down another part of the country. * These horses took fright at this piece of paper like any ordinary horses, just kind of shied out to one side a little bit. I pulled them right up, and they settled down and seemed to be as calm and cool as could be. It was not over two or three minutes that I took to calm them down and get them cool. It was about a minute until I had them down to a walk. I just pulled them down and got them on a walk. * * As to whether I have testified to the effect that * it was the blowing of the paper across our path that frightened them, well, it was fluttering there and then blew across. As regards which frightened them, the fluttering or the blowing across, it was the blowing across. The fluttering frightened them first, and then the blowing across. A small piece of paper fluttering on the bush started them first." The record proceeds: "Thereupon there was offered and received in evidence a written statement, signed by the witness, and referred to in this testimony, reading as follows: 'A small piece of paper on a bush fluttered considerably close to this crossing, which frightened the team. This was about at the bottom of the hill referred to. I had just got the team quieted down when we reached the fill or approach to the track, and at that moment the wind blew the odor from the dead carcass right toward them, which frightened the team, so that they became unmanageable and ran away.' "As to whether, as I approached this crossing, I did not expect the horses to be frightened to such an extent that they would get beyond control, I had a tight hold on them in case; I thought I had control over them enough to hold them. No, as I approached this crossing I did not expect the horses to be frightened to such an extent that they would get beyond control. No, sir; I had not been drinking any that day. As to whether I am a drinking man, yes, sir, I take a drink. I was not drinking intoxicating liquors prior to that time to excess. "The remainder of said transcript of the testimony of the witness Bigelow, as given at the last trial, read as follows: 'Q. Do you remember at any time, or did you at any time state to any one at any place, that it was this piece of paper which caused this runaway, and not this carcass? By General Nolan: I object to that. This is a witness in the case, and I suppose if there is some evidence it was made in some particular statement. By the Court: Sustained. By Mr. Veazey: We are not laying the foundation for impeachment, but are inquiring for evidence. By General Nolan: Well, then, if you are not, the testimony is incompetent. Of course, any statements made by this man would be hearsay, except in so far as this statement would be contradictory to anything he has said on the stand here. By the Court: I will allow him to answer the question. Q. Did you ever at any time or at any place make any statements to any one to the effect that this runaway had been caused by the horses becoming frightened at the piece of paper, and not by the carcass? A. No, sir.' "Before the first question above set forth, beginning with the words, 'do you remember at any time, or did you at any time,' etc., was read, counsel for the defendant advised the court that defendant desired to withdraw said question, and to waive it, and advised the court that, if the witness were present, an impeaching question would be propounded, since impeaching testimony was not available, and defendant demanded that the witness be produced, in order that an impeaching question might be propounded; but the court declined to allow said question to be withdrawn. To which ruling of the court defendant, by its counsel, then and there duly excepted. Which said exception was thereupon noted and allowed. And the court likewise overruled the demand of the defendant that said witness be produced. To which ruling of the court the defendant, by its counsel, then and there duly excepted. Which said exception was thereupon duly noted and allowed. "Likewise when that part of said transcript, containing the objection to said question and the court's ruling sustaining the said objection, and the declaration by counsel for the defendant that defendant was not laying the foundation for impeachment, but was inquiring for impeaching evidence, was read, counsel for defendant advised the court that defendant desired to withdraw said disclaimer that it was not laying the foundation for impeachment, and counsel stated that, at the time of the former trial, the defendant did not have any impeaching testimony, and was forced to inquire of the witness as to whether there was any, and could not call his attention to any particular statement or impeaching testimony, but that since then impeaching testimony had been procured, and defendant desired, therefore, to withdraw said disclaimer and to impeach the witness. By the Court: The court will not permit it. Now, we will hear what the witness has to say and bring that up later. To which ruling of the court the defendant, by its counsel, then and there duly excepted; which said exception was thereupon duly noted and allowed. Thereupon, the testimony of said witness, as above set forth in said transcript, was read to the jury." Sections 8022 and 8025 of the Revised Codes of Montana provide as follows: "Sec. 8022. The party producing a witness is not allowed to impeach his credit by evidence of bad character, but he may contradict him by other evidence, and may also show that he has made at other times statements inconsistent with his present testimony, as provided in section 8025." "Sec. 8025. A witness may also be impeached by evidence that he has made, at other times, statements inconsistent with his present testimony; but before this can be done the statements must be related to him, with the circumstances of times, places, and persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing, they must be shown to the witness before any question is put to him concerning them." In speaking of those statutory requirements, the Supreme Court of Montana, in the case of State v. Burrell, 27 Mont. 285, 70 Pac. 982, said: "Owing to the frequency with which able counsel raise the point, and contend for it in this court, that when, on cross-examination, a witness is asked if he has not at other times made statements inconsistent with his present testimony, he must have related to him, before an answer is required, the circumstances of time, place, and persons present, we find it now proper to say that it is not always necessary to make such relation to the witness. If such a question be asked without reference to such circumstances, the question is proper. If, in answer to a question so put, he deny that he has made any inconsistent statements, or say that he does not remember, that ends the matter; and he cannot be impeached by production of evidence that he has done so, for the reason that a proper foundation has not been laid. Section 3380, Code of Civil Procedure. Before such evidence may be introduced to contradict him, common justice and ordinary fairness demand that he have his memory aided by such relation of such circumstances, and that he be allowed to tell and explain exactly what he did say, if he said anything apparently or at all inconsistent at other times. If counsel intend to go further, and to bring in evidence of such inconsistent statements, if the witness deny them or say he does not remember, then, and only then, is it necessary to lay such a foundation." If it be conceded that the court below erred in refusing to permit the defendant to withdraw the waiver made in the course of the proceedings above set out, it is manifest from the further record of the case that no harm resulted therefrom to the defendant; for it appears that the only inconsistent statements claimed to have been made by Bigelow were said to have been made to the witness Gardner, who testified that he talked with Bigelow in regard to the accident. "I do not remember," said the witness, "what the substance of that conversation was. I know we were talking about this case, but I do not know what the substance of the conversation was. I do not remember what he said at that time in regard to how the accident happened. I remember talking with Dr. Brockman in regard to the accident. Q. Do you remember telling him what Bigelow told you in regard to the accident?" The objection to that question was sustained, the defendant reserving an exception to the ruling. Later Dr. Brockman was called, and the record discloses these proceedings in regard to that witness: "I know William Gardner. I talked with him in regard to the Ennis accident. By Col. Nolan: You want to ask this witness if Gardner didn't tell him something. By Mr. Veazey: Yes. Thereupon defendant offered in writing to prove by the witness now on the stand (Dr. Brockman) that shortly after the accident he had a conversation with the witness Gardner, in which Gardner discussed the accident and the cause thereof, and told the witness that Bigelow had told him (Gardner) that it was a piece of paper that scared the horses and caused them to run away, and not the carcass. By Col. Nolan: I object to that as incompetent and hearsay. By the Court: Objection sustained." In our opinion the ruling was clearly right. (236 Fed. 29) EMERSON et al. v. CASTOR et al. In re CATARACT RUBBER CO. (Circuit Court of Appeals, Sixth Circuit. October 12, 1916.) A rubber company incorporated in New York, having its principal place of business in Rhode Island, maintained a plant in Ohio. At the suit of appellee, one of its employés, a receiver was appointed and ordered to take possession of the company's assets in Ohio. Two days later proceedings in involuntary bankruptcy were commenced in the District Court for Rhode Island, and the company was adjudged a bankrupt. Appellant, who was appointed receiver, was by the District Court for Ohio appointed ancillary receiver of the bankrupt to collect assets located in that state and to carry into force and effect the orders of the original court of jurisdiction. Thereafter the receiver appointed in the Ohio state court filed a final report, showing a considerable balance in his hands, and on the same day the Ohio state court approved the report and entered an order, reciting that the federal District Court for Ohio had made an order for it and its receiver to pay over to appellant, the receiver, the balance in his hands. Thereupon appellees asserted liens against, and claims for priority in, the funds under Gen. Code Ohio, § 11138, giving priority to laborers' and operatives' claims to the amount of $300. In no case was the fact of the rendition of services or their value in dispute. The claims of appellees to priorities were sustained. Held, that the proceeding plainly was not one to secure a judgment allowing a debt or claim, and therefore an appeal from an adverse decree was not governed by Bankruptcy Act July 1, 1898, c. 541, § 25a, cl. 3, 30 Stat. 553 (Comp. St. 1913, § 9609), allowing appeals in such cases where the amount involved is $500 or over. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 916; Dec. Dig. 455.] The case, although informally presented in the court below, gave rise to a controversy in bankruptcy proceedings amounting to an intervention under Bankruptcy Act July 1, 1898, § 24a (Comp. St. 1913, § 9608); the proceeding was not open to revision here, under section 24b of the act, since the fund was recovered in the court below subject to liens alleged to exist against it. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 915; Dec. Dig. 440.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 3. BANKRUPTCY 4502, New, vol. 14 Key-No. Series-PROCEEDINGS APPEALS -AMOUNT IN CONTROVERSY. The right of appeal in bankruptcy proceedings given by Bankruptcy Act July 1, 1898, § 24a, is not affected by the amount in controversy. 4. BANKRUPTCY 11-PROCEEDINGS-ANCILLARY PROCEEDINGS. In such case, though appellant receiver was appointed trustee before the state court entered the order directing payment of the fund to him, and Bankruptcy Act July 1, 1898, § 70a (Comp. St. 1913, § 9654), declares that the trustee shall be vested by operation of law with the title of the bankrupt as of the date he was adjudicated a bankrupt, the District Court for Ohio did not, by reason of appellant's appointment as trustee, lose the right to determine in the ancillary proceedings claims of local creditors to liens and priorities, for the court had ancillary jurisdiction under section 2, cl. 20, as amended by Act June 25, 1910, c. 412, § 2, 36 Stat. 839 (Comp. St. 1913, § 9586), over persons or property within its territorial limits in aid of the receiver or trustee appointed in bankruptcy proceedings pending in other courts, and appellant could not, having invoked such jurisdiction, at his option withdraw the fund from the custody of the court under authority of which he secured it. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 11; Dec. Dig. 11.] 5. BANKRUPTCY 11-PROCEEDINGS-DISTRICT COURT-ANCILLARY JURISDIC TION. As District Courts in bankruptcy possess ancillary jurisdiction to make orders and issue process in aid of proceedings pending in other districts, such ancillary jurisdiction carries with it power for the ancillary tribunal to decide questions of liens and priorities to property over which it exercises jurisdiction. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 11; Dec. Dig. ~~11.] 6. BANKRUPTCY 350 PRIORITIES-LABORERS-OPERATORS. Gen. Code Ohio, § 8339, provides that in all cases when property of an employer is placed in the hands of an assignee, receiver, or trustee, claims due for labor performed within the period of 3 months prior to the time such assignee, receiver, or trustee is appointed shall first be paid in preference to all other claims, except claims for taxes and costs of administration, while section 11138 declares that every person who has performed labor as an operative in the service of the assignor within 12 months preceding the assignment shall be entitled to receive out of the trust funds, before the paying of other creditors, the full amount of wages due for such labor not exceeding $300. The latter section appeared in the chapter regulating the administration and distribution of estates of insolvent debtors, while the former was part of the chapter providing for liens of laborers and employés of any person. Held, that as the two sections were distinct, providing different time limits, the one fixing an amount for which the claim might be asserted, and the latter fixing none, the latter section must be construed as not applying where a receiver or trustee is appointed, and hence laborers or operatives having claims against an insolvent employer are not, receivers having been appointed before bankruptcy and its assets subsequently taken over by the receiver and trustee in bankruptcy, entitled to assert claims under section 11138, but must assert them under section 8339. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 537; Dec. Dig. ~~350.] 7. BANKRUPTCY 350-PRIORITIES-PERSONS ENTITLED-LABORERS. Within Gen. Code Ohio, § 8339, giving priority to claims due for labor performed, employés of a rubber company who, on its falling into difficulties, abandoned their work of superintendence and engineering and For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |