relations during this period of delay, it would be an injustice to the latter to permit him to now assert them."

The case of O'Brien v. Wheelock, 184 U. S. 450, 22 Sup. Ct. 354, 46 L. Ed. 636 (first reported in [C. C.] 78 Fed. 673), while differing in some material particulars from this case, is most instructive and pertinent in some of its enunciations in the consideration of this Under an act of the General Assembly of Illinois, a large amount of bonds were issued by the commissioners of Pike county for the purpose of constructing a levee. Assessments had been made to pay for them against the lands alleged to have been benefited. Certain landowners contested the judgment on the assessments, and the act was adjudged by the Supreme Court of the state to be unconstitutional, so that the assessments and the bonds fell with the act. The bonds so issued were turned over to the contractor who constructed said levees in payment for his work. A large number of them were bought from said contractor by one Palms, who, after the lapse of several years, filed a bill in equity against the commissioners and others in the district for the purpose of collecting the amount of said bonds and interest, on the theory that the levee district had received the benefit of the proceeds of the bonds in the construction of the levee work, which inured to the benefit of the property owners of the district. Pending this suit leave was granted to the complainant to file an amended bill for the purpose of bringing in the landowners of the district to be affected by the decree sought. He took no action toward effecting such amendment for nine years, when he died, and the cause was sought to be revived by his representative in law. Mr. Chief Justice Fuller, in the course of his opinion, adverting to the fact of the failure of Palms to avail himself of the privilege given him to file such amended bill and to proceed, although a large amount of interest was unpaid, and although nearly $100,000 of the bonds of the first issue had fallen due, said:

*

"If the case depended alone upon the question of laches, there would be strong ground for holding that the plaintiffs and their testator so long delayed the institution of proceedings against the landowners that a court of equity ought to decline giving them any relief. * That the mere institution of a suit does not of itself relieve a person from the charge of laches, and, if he fail in the diligent prosecution of the action, the consequences are the same as though no action had been begun.",

Further on he said that the bill could not be maintained on the theory "of the validity of the act of 1871 [the act under which the bonds were issued], even though some other equity might have been asserted if in the exercise of reasonable diligence. The result is not inconsistent with the cases that hold that, although a law is found to be unconstitutional, a party who has received the full benefit under it may be compelled to pay for that benefit according to the terms of the law." He further maintained that the owners who participated in any way in the creation of the drainage district were as much interested in the invalidity of the law as Palms was in relying upon its validity when he bought the bonds. Referring

to the statute of limitation of the state, which barred actions on unwritten contracts, express or implied, within five years, he said:

"Courts of equity usually consider themselves bound by the statutes of limitation which govern courts of law in like cases. In the second aspect of their bill, appellants did not rely on their bonds as legal instruments, but they sought the aid of a court of equity for the enforcement of a lien in payment of the bonds by reason of an estoppel in pais, and the cause of action so created would seem to have been barred by that statute. But courts of equity go further in the promotion of justice, and, where laches exist, deny the relief sought, even though the statutory period may not have run under the applicable statute. The doctrine of courts of equity to withhold relief from those who have delayed the assertion of their claims for an unreasonable length of time is thoroughly settled. Its application depends on the circumstances of the particular case. It is not a mere matter of lapse of time, but of change of situation during neglectful repose, rendering it inequitable to afford relief."

On the theory of the bill of complaint, the only impediment in the way of the collection of the bonds in a suit at law was the lack of the required registration of, and certification indorsed on, them, and that the ground on which the refusal to register and certify the bonds was bottomed was the misconception of said state officers respecting the alternative feature of the proposition submitted to the electors vitiating the election. As already shown, the validity of that objection could have been tested by the writ of mandamus. Frank, the holder of the bonds, a nonresident citizen of the state, had the right, if he preferred, to invoke that remedy in the federal court, and take its independent judgment on said question. "A party by going into a national court does not lose any right or appropriate remedy of which he might have availed himself in the state court of the same locality." Davis v. Gray, 16 Wall. 203, 221, 21 L. Ed. 447. See, also, Cummings v. Bank, 101 U. S. 157, 25 L. Ed. 903; Schurmeier et al. v. Connecticut Mutual Life Insurance Co. (recently decided by this court) 137 Fed. 42. Instead of this course, Frank chose to stand inactive not only four years, whereby he permitted this adequate remedy at law to expire by limitation, but for twenty-three years, while all the changing conditions in Butler county, heretofore adverted to, were taking place, and then appeals to the equity side of the court to hear and try out the question of law and fact as to whether the bonds should have been registered and certified by the Auditor and Secretary of State. Under such conditions the door of a court of equity ought not to be opened to such a suitor to disturb the long repose of this bond controversy.

The decree of the Circuit Court is affirmed.

ARTHUR et al. v. TEXAS & P. RY. CO.

(Circuit Court of Appeals, Eighth Circuit. May 16, 1905.)

No. 2,044.

1. CARRIERS-BILL OF LADING-LIMITATION OF LIABILITY-FIRES.

The consideration expressed in a bill of lading for the transportation of cotton was sufficient to support the whole contract, including a provision exempting the carrier from liability for a loss by fire.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 641643.]

2. SAME.

Where a shipper accepted a bill of lading for the transportation of cotton containing a fire exemption clause, without requesting that the carrier furnish a rate at which it would ship the cotton under a commonlaw liability contract, the shipper merely assuming that such a rate would not be conceded, the carrier was not liable for loss of the cotton by fire not due to the carrier's negligence.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 691, 692.]

3. SAME-INDEPENDENT CONTRACTORS-NEGLIGENCE.

Pursuant to a rule of the Texas Railroad Commission, providing that when cotton is tendered to railroad companies on compress platforms situated on the track of such railroad companies it shall be the duty of such companies to take charge of and receipt for the cotton in the same manner and on the same terms as they would receive and receipt for cotton when taken at their own depots or platforms, etc., defendant's company issued a bill of lading for cotton delivered by plaintiff to an independent compress company on a compress receipt, the bill of lading providing that each carrier carrying the cotton should be entitled at its own cost to compress the same for greater convenience in handling and forwarding, etc. While the cotton was on the platform of the compress company with other cotton, and before actual delivery to defendant, but after the issuance of such bills of lading, it was destroyed by fire communicated by the engine of another railroad company. Held, that the compress company, being a separate independent contractor, was not the servant or agent of defendant, and that the latter was therefore not liable for its negligence in storing or handling the cotton.

[Ed. Note.-Negligence of employé of independent contractor, see note to Atlantic Transport Co. v. Coneys, 28 C. C. A. 392.]

In Error to the Circuit Court of the United States for the Western District of Arkansas.

This is an action instituted by plaintiffs in error against the defendant in error to recover $2,605.53, the value of 50 bales of cotton alleged to have been delivered to the defendant company by plaintiffs at Texarkana, Tex., to be transported to Utica, New York. The defendant company, a railroad corporation in the state of Texas, had its depot station in Texarkana on the Texas side, the state line between Texas and Arkansas running through said city. The defendant company had no line of railway from Texarkana to Utica, N. Y., but had a traffic arrangement for the division of revenues between it and connecting carriers between Texas and Utica. The defendant company had authority to give a bill of lading for the shipment of cotton made over the through line, the rate of shipment from Texarkana to St. Louis being 25 cents per 100 pounds, and from there to Utica 60 cents, making in the aggregate 85 cents. The petition alleged that the defendant company held itself out as a common carrier for such transportation.

The Union Compress Company was an independent corporation, engaged in the business at Texarkana of compressing cotton delivered by shippers at said point for transportation. Its platforms for such purpose were on the Arkansas side of the state line. According to the usage of such business which pre

vailed at that place, as at other shipping points in Texas and Arkansas, when cotton was brought in by shippers it was unloaded at the platforms of the compress company, and a receipt taken therefor from said last-named company by the shipper, which he would carry to the agent of the railroad company, who would take the same up, and issue, based thereon, a bill of lading to the shipper. The compress company retained possession of the cotton until such time as it could compress the same, and when compressed it delivered the same on board the cars of the railroad company. The bill of lading in this case contained the following stipulation: "That neither the Texas & Pacific Railway Company nor any connecting carrier handling said cotton shall be liable for damages to or destruction of said cotton by fire, nor for any loss thereof or damage thereto by causes beyond its control." It contained the further stipulation that: "Each carrier over whose route the cotton is to be carried hereunder shall have the privilege, at its own cost, of compressing same, for greater convenience in handling and forwarding, and shall not be responsible for deviation or unavoidable delays in procuring such compression." Two days after the cotton was so left upon said platform it was destroyed by fire, in connection with a large amount of cotton belonging to other shippers, with which it had been mingled. The fire was caused by sparks communicated to some part of the quantity of cotton on the platform from a passing engine of another railroad company.

The petition alleges that said platform of the Union Compress Company was not a safe place on which to keep cotton; that it was not inclosed, and no proper provision was made to prevent its destruction by fire; that the compress company had failed to provide suitable or proper apparatus for putting out fires, or to keep proper watch over the same; and that it was destroyed by reason of the negligence of those in charge thereof. The further allegation of the petition is that the defendant railroad company received the cotton from the plaintiffs and turned the same over to the compress company as its agent, to be compressed, and that it is responsible for the negligent act of its agent. The answer denied that the defendant company received the cotton from the shipper; but alleges the facts, as above stated, that the shippers delivered the cotton in fact to the compress company as an independent contractor, and that it was not at the time the agent of the defendant company for the compression and preparation of said cotton for transportation. It put in issue the allegation of the petition that it held itself out as a common carrier for said cotton from Texarkana to Utica, or that it was in partnership with the other roads which were to carry the cotton to its destination. It admitted that it had a traffic arrangement with the other roads upon a division of revenues for the carriage of said cotton over the lines to Utica, N. Y. The answer alleged that the entire line owned and operated by the defendant was in the state of Texas; that it had its own depot station in Texarkana, in the state of Texas; and that the cotton was delivered as aforesaid at said platform of the compress company for compression according to the rules and regulations that prevailed in such matters.

The evidence tended to show that the cotton, while on said platform, was not properly safeguarded against accident or destruction by fire, and that the servants of the compress company perhaps did not keep sufficient watch over the cotton to prevent its destruction in the event of fire being communicated to it by railroad engines passing said platform.

The Railroad Commission of the State of Texas had adopted and maintained in force the following rule in reference to the receipt of cotton by railroads in Texas located on cotton compress platforms: "When cotton is tendered to railroad companies upon compress platforms, which is situated on the track of such raйroad companies, it shall be the duty of the railroad companies to take charge of and receipt for such cotton in the same manner and on the same terms as they would receive and receipt for cotton when taken at its own depot or platform erected for such transactions; provided, however, that the shipper or the compress company shall in such cases assume the additional risk of insurance involved by such act of the railroad company." Pursuant to said regulation the defendant railroad company adopted rule 11, covering substantially the requirements of said regulation. The plaintiffs were cotton buyers at Texarkana, and had for some time prior to the shipment in question been shipping

cotton on like arrangements with the defendant company, and were familiar with the usages that obtained at said place in respect of such shipments. At the conclusion of the evidence the court directed the jury to return a verdict for the defendant, which was done, and judgment entered accordingly, to reverse which the plaintiffs prosecute this writ of error. Other facts will appear in the following opinion.

W. H. Arnold, for plaintiffs in error.

Hiram Glass (W. L. Estes and John J. King, on the brief), for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS, District Judge.

PHILIPS, District Judge, after stating the case as above, delivered the opinion of the court.

The plaintiffs seek to avoid the stipulation in the bill of lading, which exempted the railroad company from liability for the loss of said cotton occasioned by fire, on the ground of what counsel terms duress in accepting said bill of lading, and for the want of proper consideration for such special exemption. He contends. that the railway company had established and offered but one rate for such through shipment, based upon such exemption, without affording the shipper the alternative opportunity of paying a higher rate of carriage to fix upon it the common-law liability of such common carrier. The validity of such provision in such shipping contract was considered by the Court of Appeals of the Fifth Circuit in Cau v. Texas & Pacific Railway Company, 113 Fed. 91, 51 C. C. A. 76. That case grew out of a loss from the same fire involved in the case at bar. The validity of the fire exemption clause in the bill of lading was assailed on grounds quite similar to these here interposed. The ruling of the court is expressed in the syllabus as follows:

"A shipper is bound by a provision in a bill of lading exempting the carrier from liability for loss of the goods by fire, where he was chargeable with knowledge that the bill contained such clause, and made no objection thereto, and it is not shown that the loss resulted from the carrier's negligence."

On writ of error to the Supreme Court this ruling was affirmed. 194 U. S. 427, 24 Sup. Ct. 663, 48 L. Ed. 1053. The Supreme Court decided, in effect, every contention here made by plaintiffs in error. It held that it was perfectly competent for the carrier, by special contract, to limit its common-law liability in this respect, so long as it practiced no deceit or fraud on the shipper in making it. In respect of the suggestion that there was no independent consideration for the exemption, the court said:

"This point was made in York Co. v. Central Railroad, 3 Wall. 107, 18 L. Ed. 170. In response it was said: "The second position is answered by the fact that there is no evidence that a consideration was not given for the stipulation. The company probably had rates of charges proportioned to the risks they assumed from the nature of the goods carried, and the exception of losses by fire must necessarily have affected the compensation demanded. Be this as it may, the consideration expressed was sufficient to support the entire contract made.' In other words, the consideration expressed in the bill of lading was sufficient to support its stipulations. This effect is not averted by showing that the defendant had only one rate. It was the rate also of all other roads, and 139 F.-9