the law cast upon him the duty of continuing his vigilance during the crossing of both tracks. His failure to do so was not only the grossest sort of carelessness, but was almost madness. This case presents a far stronger one of contributory negligence on the part of the injured party than that of Railroad Co. v. Freeman, 174 U. S. 379, 19 Sup. Ct. 763, 43 L. Ed. 1014, in which the supreme court held that the plaintiff could not recover, because of his contributory negligence, notwithstanding negligence on the part of the defendant. In that case one Thomas A. Freeman, whose eyesight and hearing appeared to be perfectly good, in traveling a highway undertook to drive across the railroad track in a light wagon drawn by two horses. The evidence, as stated by the court, was practically uncontradicted that for a distance of 40 feet from the railway track he could have seen the train approaching at a distance of about 300 feet. The train was a freight train going at a speed not exceeding 20 miles an hour. The court said: “Judging from the common experience of men, there can be but one plausible solution of the problem how the collision occurred. He did not look, or, if he looked, he did not heed the warning, and took the chance of crossing the track before the train could reach him. In either case he was clearly guilty of contributory negligence." In that case, as in this, the evidence was conflicting in respect to any warning of the approach of the train having been given by those in charge of it. But here, assuming, as we have done, that the company did fail to give any warning of the approach of the train that did the injury, the party injured had actual notice of its approach in ample time to have kept out or have gotten out of its way; for he expressly states in his testimony that he saw the headlight and saw and heard the train approaching him, but that he thought it was on the south instead of the north track. No warning that the railroad company could have given would have been any more notice to him than he already had by means of his eyes and ears, according to his own statement. In the case of Railway Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485, so much relied upon by counsel for the defendant in error, the facts are given by the court as follows: "Elijah Smith, plaintiff's intestate, at the time of his death in May, 1884, was about seventy-five years of age, and had been residing on a farm, a few miles out of the city of Detroit, for several years, being engaged in grape culture. It was his custom to make one or more trips to the city every day during that period. In going to the city he traveled eastwardly on a much-traveled road, known as the 'Holden Road,' which, continued into the city, becomes an important and well-known street, running east and west. Within the limits of the city the street was crossed obliquely at a grade by the defendant's road and two other parallel roads coming up from the southwest, which roads, in the language of the defendant's engineer, curve 'away from a person coming down the Holden road.' At the crossing the Holden road is sixty-five and one-half feet wide. The defendant's right of way is forty feet wide, and the right of way of all the parallel railways at that place is one hundred and sixty feet wide. For a considerable distance-at least three hundred feet-along the right side of the road going into the city there were obstructions to a view of the railroad, consisting of a house known as the 'McLaughlin House,' a barn and its attendant outbuildings, an orchard in full bloom, and, about seventy-six feet from the defendant's track, another house, known as the 'Lawrence House.' Then there were some scrub bushes, or, as described by one witness, some stunted 48 C.C.A.-28 locust trees and a willow, a short distance from the line of the right of way. So that it seems, from all the evidence introduced on this point, it was not until a traveler was within fifteen or twenty feet of the track, and then going up the grade, that he could get an unobstructed view of the track to the right. One witness testified that, if he was in a buggy, his horse would be within eight feet of the track before he could get a good view of it in both directions. On the morning of the fatal accident, Mr. Smith and his wife were driving down the Holden road into Detroit, in a buggy with the top raised, and with the side curtains either raised or removed. Opposite the Lawrence house they stopped several minutes, presumably to listen for any trains that might be passing, and while there a train on one of the other roads passed by, going out of the city. Soon after it had crossed the road, and while the noise caused by it was still quite distinct, they drove on towards their destination. Just as they had reached the defendant's track, and while apparently watching the train that had passed, they were struck by one of the defendant's trains coming from the right at the rate of at least twenty-some of the witnesses say forty-miles an hour, and were thrown into the air, carried some distance, and instantly killed. This train was a transfer train between two junctions, and was not running on any schedule time. The plaintiff's witnesses agree, substantially. in saying that the whistle was not blown for this crossing, nor was the bell rung, and that no signal whatever of the approach of the train was given until it was about to strike the buggy in which Mr. Smith and his wife were riding. The train ran on some four hundred feet or more after striking Mr. Smith before it could be stopped." Railway Co. v. Ives is one of the many cases referred to by the supreme court in Railroad Co. v. Freeman, supra, as being readily distinguishable from that case, and, I may add, with still more reason, from the present one, "either by reason of the proximity of obstructions interfering with the view of approaching trains, confusion caused by trains approaching simultaneously from opposite directions, or other peculiar circumstances tending to mislead the injured party as to the existence of danger in crossing the track." In my opinion, the judgment should be reversed, and the cause remanded to the court below for a new trial. (109 Fed. 391.) LOVELESS v. RANSOM et al. (Circuit Court of Appeals, Seventh Circuit. June 25, 1901.) 1. WRITS OF ERROR-APPEAL. No. 639. A writ of error is applicable alone to suits at law, and an appeal to decrees in equity or admiralty, and the one may not be substituted for the other. 2. SAME-APPROVAL OF BOND. The fact that the judge of the trial court approved the bond on a writ of error does not operate as a writ of error, since neither the judge nor the court below could issue such writ. Petition for Rehearing. Overruled. Before WOODS and JENKINS, Circuit Judges, and BUNN, District Judge. 1 JENKINS, Circuit Judge. The statement of the facts embodied in the opinion (Loveless v. Ransom [C. C. A.] 107 Fed. 626) 1 declares that the record does not show the bond filed March 16, 1899, to have been approved by the court, except by the order of September 2, 1899, allowing the writ of error, which was at a subsequent term. This statement of fact is challenged by the petition for rehearing. The statement of fact was correct, as disclosed by the printed record. It now appears by concession of counsel that there was attached to and filed with the bond an affidavit of jurisdiction by one of the sureties, and this affidavit was indorsed as approved by the trial judge. Without question the indorsement was intended as an approval of the bond, and should be so regarded. Does this fact avail to deny the motion to dismiss this writ of error? We think not. Cases of equity and admiralty jurisdiction are transferred to the appellate court by the order of the trial court allowing an appeal. This is the only method by which a review can be had. If the prayer for an appeal be denied, the party aggrieved must resort to his remedy through a writ of mandamus to compel the allowance of the appeal by the trial court; for it is the order of that court, and that alone, which sends the cause to the appellate tribunal. Undoubtedly the appellate courts have gone a long way in overlooking informalities in the tak ing of an appeal, and in construing acts of the trial court to work a summons and severance with regard to joint defendants in a decree, where one alone seeks an appeal. Thus, a prayer for an appeal and the order allowing it constitute a valid appeal without the filing of a bond, which can be provided for in the appellate court. Edmonson v. Bloomshire, 7 Wall. 306, 311, 19 L. Ed. 91. So, also, it has been held that the allowance of an appeal need not be by a formal order, but may be shown by the approval of the appeal bond. Sage v. Railroad Co., 96 U. S. 712, 24 L. Ed. 641; Draper v. Davis, 102 U. S. 370, 26 L. Ed. 121; Brandies v. Cochrane, 105 U. S. 262, 26 L. Ed. 989; Trust Co. v. Stockton, 18 C. C. A. 408, 72 Fed. 1; In re Fiechtl (C. C. A.) 107 Fed. 618.2 So, in the case of an appeal allowed at the term, no citation is necessary, but aliter after the term. It has also been held that during the term at which a decree was rendered the parties were constructively in court, and are charged with notice of what is done in the case affecting their interest, and the allowance of an appeal by the court during the term worked a severance. McNulta v. Commissioners, 39 C. C. A. 545, 99 Fed. 328; Kidder v. Deposit Co., 105 Fed. 821, 44 C. C. A. 593; James H. Rice Co. v. Libbey, 45 C. C. A. 78, 105 Fed. 825. It may be objected that such rulings work looseness in practice; but the rule is equitable, saving an appeal where it is manifest that the action of the trial court would not have been taken except in aid of an appeal, and its allowance is implied. With respect to writs of error, the matter stands upon different footing. A writ of error and an appeal are dissimilar. The one is applicable alone to suits at law; the other to decrees in equity or admiralty. The one may not be substituted for the other. A suit 146 C. C. A. 515. 2 46 C. C. A. 497. at law cannot be taken to an appellate tribunal by an appeal (Stevens v. Clark, 18 U. S. App. 584, 10 C. C. A. 379, 62 Fed. 321), and a decree in equity cannot be so removed by writ of error (Nelson v. Lowndes County, 35 C. C. A. 419, 93 Fed. 538). The writ of error is a writ of right issuing from the appellate court, not from the trial court. It is directed to the trial court, commanding a return of the proceedings, that they may be reviewed. It is not essential that it should be allow by any court or judge. Davidson v. Lanier, 4 Wall. 447, 18 L. Ed. 377; Ex parte Virginia Com'rs, 112 U. S. 177, 5 Sup. Ct. 421, 28 L. Ed. 691. The writ is of no efficiency until it is issued and served on the clerk of the court whose judgment is sought to be reviewed. Carroll v. Dorsey, 20 How. 204, 15 L. Ed. 803; Hodge v. Williams, 22 How. 87, 16 L. Ed. 237; Washington Co. v. Durant, 7 Wall. 694, 19 L. Ed. 164; Bondurant v. Watson, 103 U. S. 278, 26 L. Ed. 447. And it may be that a citation is always required in the case of a writ of error, in which respect lies a distinction between the two modes of review. Hewitt v. Filbert, 116 U. S. 142, 6 Sup. Ct. 319, 29 L. Ed. 581; U. S. v. Phillips, 121 U. S. 254, 7 Sup. Ct. 874, 30 L. Ed. 914. In the case before us the judge of the trial court at the term at which the judgment was rendered approved the bond on the writ of error. That was the only judicial act had at the term with respect to a review. That act cannot be held to operate as a writ of error, since neither the judge nor the court below could issue the writ, which could only have gone from this court. As we have pointed out in the original opinion, the plaintiff in error by his bill of exceptions "prayed an appeal." That was not only not allowed by the court, but would have been inefficacious if allowed. The bond filed at that term and approved by the judge recited that the obligor was "about to obtain a writ of error." But no writ of error was issued or filed until a subsequent term. There was therefore no proceeding in the trial court at the term at which judgment was rendered, when all parties were constructively in court, which can be construed to have actually or impliedly worked a severance of the joint defendants to the judgment; and, as the writ of error was sued out by one alone, we are without jurisdiction to consider the cause. The petition for rehearing is overruled. (109 Fed. 393.) L. BUCKI & SON LUMBER CO. v. FIDELITY & DEPOSIT CO. OF MARYLAND. FIDELITY & DEPOSIT CO. OF MARYLAND v. L. BUCKI & SON LUMBER CO. (Circuit Court of Appeals, Fifth Circuit. May 28, 1901.) Nos. 925, 926. 1. ATTACHMENT-ACTION ON BOND-LAW GOVERNING MEASURE OF DAMAGES. Attachment being a statutory remedy, the question of the measure of damages recoverable for breach of an attachment bond is one governed by the law of the state as expressed in its constitution and statutes, or declared by its highest court, and the law as so determined will be followed by the federal courts. 2. SAME-ATTORNEY'S FEES-FLORIDA STATUTE. Under the statute of Florida (Rev. St. 1892, § 1646) which requires attachment bonds to be conditioned to "pay all costs and damages the defendant may sustain in consequence of improperly suing out said attachment," and the decisions of the supreme court of the state thereon, reasonable attorney's fees expended by a defendant in procuring a dissolution of an attachment, and aside from those expended for the trial of the main case, are recoverable as an element of damages in an action on the attachment bond. 8. SAME. Rev. St. Fla. § 1646, which requires attachment bonds to be conditioned to pay "all costs and damages" the defendant may sustain in consequence of the improper suing out of the attachment, prescribes no rule as to what shall constitute elements of the damages recoverable for the improper suing out of an attachment, but leaves such rule to be determined as a matter of general law. And, there having been no decision of the supreme court of the state establishi such rule prior to the time when a right of action accrued on an attachment bond, it is the duty of a federal court in which such action is brought to follow the decisions of the supreme court of the United States, under which attorney's fees expended by the defendant in the attachment suit in relation to the attachment cannot be recovered as elements of damages. Per Shelby, Circuit Judge, dissenting. 4. SAME-COLLATERAL DAMAGES-LOSS OF PROFITS AND CREDIT. Under a statute which requires an attachment bond to be conditioned for the payment of "all costs and damages the defendant may sustain in consequence of improperly suing out said attachment," a surety on such a bond can only be held liable for such direct and actual damages as the defendant may have sustained by being deprived of his property, or the use thereof, or by its loss or injury, together with the taxable costs and expenses incurred in relation to the attachment. He is not liable for such collateral or consequential damages as could only be recovered from the plaintiff by proof of malice and want of probable cause; such as loss of profits incident to the levy of the attachment, or injury to defendants' credit. Per Shelby, Circuit Judge, dissenting. In Error to the Circuit Court of the United States for the Southern District of Florida. H. Bisbee, for L. Bucki & Son Lumber Co. Before PARDEE, McCORMICK, and SHELBY, Circuit Judges. McCORMICK, Circuit Judge. The proceedings to review which these writs of error were sued out were had in an action brought by the L. Bucki & Son Lumber Company against the Fidelity & Deposit Company of Maryland on two attachment bonds given in two actions brought by the Atlantic Lumber Company on October 1, 1897, on which bonds the Fidelity & Deposit Company of Maryland bound itself as surety. The cases in which the bonds were given are sufficiently stated in the decisions of this court as reported in 35 C. C. A. 59, 92 Fed. 865-867, and 35 C. C. A. 590, 93 Fed. 765, 766. The purpose of this action on the bonds is to recover all costs and damages sustained by the plaintiff therein in consequence of the improper suing out of the writs of attachment in the cases in which the bonds were given, according to the condition of the bonds and of the statute requiring them. This action was |