with the sale. He was a mining engineer, 34 years of age, and, according to his own statement, received an annual salary of $20,000. He approved of the sale, and thought the price fair at the time it was made.

The complainant seeks to overcome these convincing circumstances by asserting that Hazlewood deceived not only his client, who was in California, but the lawyers Gordon and Beaty, and the mining engi neer, Veatch, who were on the ground and had every opportunity to know the market value of the property. The special master and the Circuit Court ruled correctly, I think, in refusing to indorse such a theory.

I do not concur in the view that the burden of proof is on the defendants. A conspiracy being charged in the bill and denied in the answers, the burden is on the complainant to prove it. Hazlewood being charged with betraying and deceiving his client, and having denied it, the burden is on the complainant to prove the charge. Cochran v. Blout, 161 U. S. 350, 16 Sup. Ct. 454, 40 L. Ed. 729. Moreover, the evidence, where fraud is charged, must be so clear and cogent as to satisfy the triors of the issue of the truth of the allegation. The law is reluctant to impute fraud and unfair dealing on slight and conflicting evidence, and thereby cast an unjust reproach of a grave nature on the character of the defendants. Bump on Fraudulent Conveyances, 562.

I concur in the view that, it appearing that Hazlewood acquired an interest shortly after the termination of his agency, it is incumbent on him to show affirmatively that there was no agreement at the time of the sale by the principal that he was to have an interest in the purchase. He does this in the only way that it could be done, by his own testimony, giving in detail the facts that led to his purchase several weeks after Mrs. Snow's sale, and by the testimony of Campbell, who acted for the Hogg-Swayne Syndicate in making the sale to Hazlewood, and by Marshall, who was present when Hazlewood's note was given and who made the suggestion as to dating it back to November 8th, so that it would bear interest from that time; and Marshall's evidence also indicates that he was a witness to the transfer made to Hazlewood, which does not appear in evidence and will be referred to later. All three of these witnesses testify to circumstances which enable them to fix the date when Hazlewood acquired the interest, and that it was about the last of November or the first of December. This evidence, I think, fully shows that Hazlewood acquired the interest in question after the termination of his agency. The evidence showing that there was no previous agreement that he was to have such an interest has already been mentioned.

Mrs. Snow's deed conveying her interest to a trustee for the syndicate is dated November 6, 1901. She alleges in her bill that before or at that time it was understood between Hazlewood and the other defendants that the former was to have a one-half interest in the purchase from her. Hazlewood claims that he obtained his interest afterwards, between November 28 and December 4, 1901. Great stress is laid on the date of a note offered in evidence as tending to sustain the averments of the bill. Here is the photographic copy of the note:

promise to pay to the video of

until pard, and len per unt additional on amount offerincipal and interest unpaid for Allorneys for if placed on the hands of an alterncy for cottection.

On the back of the note is the following indorsement, without date: "It is hereby agreed that the one-fourth interest in the Snow claim, being one-half of that of Mrs. Annie Snow purchased by W. T. C. and held in the name of W. F. Casey is security for this obligation.

"R. R. Hazlewood."

Just below this indorsement are several credits, beginning December 4, 1901. This photograph was taken by a photographer in New Orleans, who received the note from E. C. McLean, one of the appellant's attorneys. The record shows, without substantial conflict, the manner in which the original note was obtained by McLean. While Gordon and Hazlewood were partners in the practice of law at Beaumont, Tex., they bought an iron safe for use in their office. It had an outside door with a combination lock and two inside steel doors that locked with keys. Gordon had the combination to the safe, but each carried a key to the inner doors. Inside were wooden boxes, each having two keys. One of these boxes was used by Gordon and one by Hazlewood for keeping their private papers. Gordon kept both keys to the box in which he kept his private papers, and HazleWood kept both keys to the box in which he kept his private papers. Hazlewood had in his private box, among other papers, the paid note which he had made to Campbell when he bought the interest in the Snow claim. He testifies that he also had in the box a written transfer made by Campbell at the same time the note was given, which written transfer bore its true date. When Hazlewood was served with subpoena in this case, he went to the safe to get these papers. The outer door of the safe had been opened in the morning, and, on trying to unlock his private box, he found something wrong with it, but he finally opened it. He saw marks on the edge of the box indicating that it had been forced open with a chisel. He found in the box other papers which he kept there, but the note he made to Campbell and the transfer which Campbell made to him were both gone. He then called witnesses to see the condition of the box. W. D. Gordon, who testifies for the complainant, says, in substance, that he and McLean concluded that Campbell had advanced the money to Hazlewood for a portion of the purchase by the Hogg-Swayne Syndicate from Mrs. Snow, and that evidence to sustain this theory existed in Hazlewood's box in the safe. By taking out the box immediately above Hazlewood's box, he (Gordon) and McLean were able to raise the lid over Hazlewood's box and get access to his papers. In that way they obtained the original note, and McLean carried it to New Orleans, where it was photographed. It was then returned to the box.

The note is dated two days after the date of Mrs. Snow's deed, but it is so near its date as to give some support (if it bears its true date) to the theory that Hazlewood had an interest in the purchase when made. If the transfer had been produced, it would probably have made it clear when Hazlewood acquired an interest. Hazlewood says it was in the box with the note. There is conflict between his statement and Gordon's on this point. Both Hazlewood and Campbell, as has already been said, testify that the former's purchase of an interest in the Snow claim occurred between November 28 and Decem

ber 4, 1901-and they give reasons for so fixing the date and that the note was dated back to November 8th to make it bear interest from that date. Marshall, a witness with little, if any, interest in the suit, corroborates this statement. The special master evidently believed them; and I see no good reason to doubt the truth of their statements. The transfer, if it could have been produced, would have cleared up the difficulty. Hazlewood, Campbell, and Marshall testify, in effect, that there was such an instrument, and that it bore the true date. Hazlewood says it was in his box. It is altogether probable that he would have kept it in the box with the note. Evidence was offered of declarations by McLean tending to show that he claimed to have in his possession a transfer from Campbell, the existence of which he thought Campbell would deny. The complainant did not examine McLean as a witness. When Hazlewood's "private box was surreptitiously ravished"-to quote the opinion of the majority in this case-in the unlawful hunt for evidence to convict him of fraud, if the transfer with the true date had been found, would it have been photographed also? Would it have been offered in evidence? Would not the motive that made the searchers disregard the sanctity of private papers have been strong enough to make them produce and use only those that tended to sustain the theory they sought to establish? The motive that caused this invasion of Hazlewood's private box must have been strong to have made lawyers violate a right instinctively respected by gentlemen and held so sacred in this country that it has been the subject of constitutional protection—the right to hold one's papers secure against unreasonable and unlawful searches and seizures. When a motive exists that leads to such a method of obtaining evidence, we should scan with suspicious scrutiny all the evidence coming from the same source.

In my opinion, the evidence shows that a transfer was made, bearing date the latter part of November or the 1st of December, 1901, and that the note was dated back to make the interest run from November 8th, as explained by Hazlewood, Campbell, and Marshall. I think the decree of the Circuit Court confirming the report of the special master should be affirmed.

CHICAGO, B. & Q. RY. CO. v. GRIFFIN

(Circuit Court of Appeals, Eighth Circuit. November 11, 1907.)

No. 2,578.

MASTER ANd Servant-INJURY TO SERVANT-ASSUMPTION OF RISK.

Plaintiff, who for a number of years had been employed as engineer and fireman on engines on defendant's railroad, while working as fireman, was injured by the explosion of the glass water gauge in the cab of the engine. In an action to recover for the injury, the only negligence alleged against the defendant was the failure to cause the gauge to be inclosed in a screen to prevent the particles of glass from flying off in case of an explosion. Plaintiff knew that none of the gauges on defendant's engines were screened, and that they sometimes exploded, but made no complaint on that account, and testified that he never apprehended any danger from that source. Held that, under such circumstances, he as