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that some mischievous boy, out of curiosity, or from other motives, raised the brake and left it in the position in which it was found by the defendant in error, as it is to infer that it was left in such position by the defendant below or some of its agents? The learned judge who tried this case below, in a very able opinion, in discussing the law relating to this phase of the question, among other things said:

"It is undoubtedly true that the general rule governing the proof requisite in the case of servants injured by defects in machinery or appliances requires that the plaintiff prove, not only the defect, but that the master either knew of it, or that it had existed for a sufficient length of time to warrant the fair presumption that he should have known of it."

This is undoubtedly a correct statement of the law, and, when we come to apply the evidence in this case, we are at a loss to see upon what theory the jury could have arrived at the conclusion that the injury was due to the negligence of the master. There is nothing in the evidence, so far as we can discover, to justify the inference that the condition of the brake had existed since the last time the same was handled in the regular operation of the train. There are many facts and circumstances which tend strongly to prove that such was not the fact. The court below also stated that if the jury had found that there had been a proper inspection of the brakes, and that they had been found in good condition and without defect at the time of inspection, to wit, between the hours of 3 a. m. and 6 a. m., he would have granted the motion to direct a verdict in favor of the plaintiff in error. If such motion had been granted, it could only have been upon the theory that, notwithstanding the brake was in an abnormal position at the time the servant was injured, a sufficient time had not elapsed from the time of inspection to raise the presumption that the master had knowledge of the fact that it occupied such position. The whole question as to how and by whom the brake was placed in an abnormal position is involved in uncertainty, and, in order to reach any conclusion in regard to the matter, it becomes necessary to base an inference upon an inference, and this would be in violation of the rules of evidence by which we are controlled in determining this controversy.

In view of all the facts surrounding this case, we are of opinion that there was not sufficient legal evidence in this case to sustain a verdict in favor of the defendant in error, and that the court below erred in refusing to grant the motion to direct a verdict in favor of the defendant below.

For the reasons hereinbefore stated, the judgment of the Circuit Court is reversed. Reversed.

WADDILL, District Judge, dissents.

CONAWAY et al. v. THIRD NAT. BANK OF CINCINNATI et al. (Circuit Court of Appeals, Fourth Circuit. December 15, 1908.)

No. 822.

1. ASSIGNMENTS FOR BENEFIT OF CREDITORS (§ 243*)-ADMINISTRATION OF PROPERTY-SALE BY TRUSTEE-WEST VIRGINIA STATUTE.

Code W. Va. 1906, § 3053, which authorizes the trustee "in any such deed" to sell the property covered thereby at public auction, refers to deeds of trust to secure creditors or indemnify sureties executed in pursurance of the preceding section 3052, but does not apply to deeds conveying property for the benefit of creditors which convey an absolute title, and the trustee in such a deed may sell in any manner authorized by the grantor.

[Ed. Note.-For other cases, see Assignments for Benefit of Creditors, Cent. Dig. § 777; Dec. Dig. § 243.*]

2. TRUSTS (§ 368*)-MANAGEMENT AND DISPOSAL OF TRUST PROPERTY-ACTION AGAINST TRUSTEES-INJUNCTION.

A debtor conveyed all of his property with certain exceptions to trustees. Later, a coal company, of whose stock and bonds he was a large owner, pursuant to a resolution of its stockholders executed a power of attorney to the same trustees authorizing them to sell its lands in such manner and upon such terms as they might deem proper. After diligent attempts during a year and a half to make a sale, they received an offer for the property, of which they notified all creditors, stating that unless objection was made they should accept the same. No objection being made, they entered into a contract, receiving a cash payment, and a further payment to be made on delivery and acceptance of the deed. Complainants, who were creditors of the individual debtor but not of the corporation, brought suit to enjoin the carrying out of such contract. The trustees acted openly throughout, and after full consultation with all creditors. Held, that there was no ground for the interference of a court of equity, either because the sale was not made at public auction, because of alleged inadequacy of price, or because the debts to be paid from the proceeds of the land had not been judicially ascertained, especially as it did not appear when complainants became creditors, nor that they had a lien on any of the property.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. § 586; Dec. Dig. § 368.*]

3. TRUSTS (§ 244*) - DEATH OF TRUSTEE - SUCCESSION UNDER WEST VIRGINIA STATUTE.

Where a purchaser of lands who was described in the contract of purchase as trustee, and was shown to have made the contract as agent and trustee for another, died before the transfer was made, the duty to execute the trust devolved on his personal representatives, under Code W. Va. 1906, § 4001, and such representatives have authority to defend a suit pending against him relating to the trust.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. § 351; Dec. Dig. § 244.*]

4. COURTS (§ 356*) - FEDERAL COURTS - DEATH OF PARTY AFTER JUDGMENT APPEAL BY PERSONAL REPRESENTATIVES.

The provision of the judiciary act of March 3, 1875, с. 137, § 9, 18 Stat. 473 (U. S. Comp. St. 1901, p. 513), that, on the death of a party to a judgment or decree of a federal court before the expiration of the time for a writ of error or appeal, his personal representative may file a duly certified copy of his appointment, and thereupon may enter an appeal or bring a writ of error, does not require the filing of such certified copy of

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

appointment as a prerequisite to an appeal, where a formal order of revivor is entered and an appeal allowed in open court.

[Ed. Note. For other cases, see Courts, Dec. Dig. § 356.*]

Appeal from the Circuit Court of the United States for the Northern District of West Virginia, at Parkersburg.

For opinion below, see 156 Fed. 144.

This suit was brought in the Circuit Court of the United States for the Northern District of West Virginia, by the Third National Bank of Cincinnati, and others, against Thomas Moore Jackson and Joseph E. Sands and others, attorneys in fact for the Dola Coal & Coke Company, a corporation, Charles E. Conaway (sometimes called erroneously C. A. Conaway in the record), and others. Such proceedings were had therein that said court, on January 17, 1908, entered a decree, among other things, setting aside a sale of certain property theretofore made by Joseph E. Sands and others, attorneys in fact for said Dola Coal & Coke Company, to said Charles E. Conaway. Shortly after said decree was entered, Mr. Conaway departed this life, and Zella Conaway and W. H. Conaway were duly appointed the personal representatives of the estate of the decedent. The said personal representativ appealed from said decree to this court.

The facts disclosed by the record are, briefly stated, as follows: On the 17th day of December, 1903, the Dola Coal & Coke Company was incorporated under the laws of West Virginia, being capitalized at $600,000. T. M. Jackson and wife, by deed bearing date December 28, 1903, conveyed to this corporation 3,821 acres of coal and 186 acres of surface land, an aggregate of 4,007 acres, lying in Harrison county, W. Va. On January 1, 1904, said corporation executed a mortgage or deed of trust on its property to the security Trust Company of Wheeling, to secure a bond issue of $500,000; that is, 1,000 first mortgage gold bonds of the value of $500 each.

On January 23, 1905, the affairs of the Dola Coal & Coke Company stood thus: It owned said 4,007 acres of coal and surface land, subject to liens as follows: First, "farmers' liens" on a few parcels of land; second, "partners' liens"; and, third, lien for the payment of said bonds, of which 500, or $250,000 worth, had been disposed of and become obligations on the company, making a total indebtedness of the corporation, including interest, of something over $500,000. It had issued and there were outstanding 6,000 shares of capital stock of the par value of $100 each, which were held by various persons. T. M. Jackson held 5,000 of them, and 1,000 were held by John F. Hosack, W. H. Koch, H. F. Jones, L. E. Sands, E. T. Hitchman, O. J. Sands, and Wm. P. Schaffer.

At that time, January 23, 1905, a meeting of the stockholders was held in the city of Wheeling, all the stockholders being present, and a resolution was adopted by unanimous vote authorizing and directing the board of directors of the corporation to cause Joseph E. Sands, Ira E. Robinson, and John W. Davis to be duly constituted attorneys in fact of the corporation to make sale of said real estate belonging to the corporation, upon such terms and at such times as they might deem proper, and to this end make and deliver an appropriate contract, deed, etc. On the same day, after said stockholders' meeting, the board of directors held a meeting, and, in pursuance of said resolution of the stockholders, authorized and directed the president of said corporation to execute and acknowledge for record and deliver to said Joseph E. Sands, Ira E. Robinson and John W. Davis a proper power of attorney in accordance with the terms of said resolution, and on the same day the president did make and deliver the proper power of attorney to said Sands, Robinson, and Davis.

Pursuant to the powers invested in them by said resolutions and power of attorney, said Sands, Robinson, and Davis, as such attorneys in fact, on the 27th day of September, 1906, sold said coal and surface land belonging to the corporation to Charles E. Conaway, who was acting for himself and as agent

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

for J. V. Thompson, for the price of $145 per acre. The contract of sale bearing date on the said 27th day of September, 1906, was reduced to writing, and duly signed and sealed by the parties thereto. By the terms of said contract, as appears from the record, the purchaser is to pay $145 per acre, or $581.015 in all. Of this sum he paid in cash $20,000 to said attorneys in fact on the day of sale, $80,000 to be paid on or before the 20th day of November, 1906, and the residue, with interest, to be made in five additional payments. The contract provides for the payment of the liens on the property out of the purchase money, and, further, that the second party, his heirs or assigns, "shall have until the 20th day of November, 1906, if required, to examine the surveys and abstracts of title, and pay said sum of eighty thousand dollars. but with the distinct understanding and agreement that the payment of said sum of twenty thousand dollars is to conclude the sale and purchase of the property upon the terms and conditions herein. It is further covenanted and agreed, however, in this behalf, that the payment of the said sum of eighty thousand dollars on or before said 20th day of November, 1906, shall be considered the essence of this agreement, but its non-payment on that date shall not suffice to release the party of the second part herein save with the consent of the party of the first part, as hereinafter provided; and if the said sum shall not be paid on or before the date (time being expressly made the essence hereof), the party of the first part, may, at its election, rescind the contract upon returning to the party of the second part the sum of twenty thousand dollars this day paid, less $10,000.00 to be retained therefrom by the party of the first part as liquidated damages for the nonperformance of this contract by the party of the second part, or may, in lieu of such rescission, elect to enforce the specific performance of this contract by the party of the second part herein by such appropriate methods as it may be advised."

After the execution of said contract of sale, and said Conaway had made the first payment of $20,000, and before the time of the making of the second payment of $80,000, to wit, on October 20, 1906, the plaintiffs instituted this suit, and the court below entered an order restraining said attorneys in fact "from taking any further proceedings for the sale of the property of the Dola Coal & Coke Company, and from executing any deed, writing, or conveyance to C. E. Conaway or any other person for the conveyance of the property of the said Dola Coal & Coke Company until the further order of this court."

The said Charles E. Conaway, before the 20th day of November, 1906, the day fixed in the contract for the second payment, to wit, on the 15th day of November, 1906, tendered and offered to pay to said attorneys in fact the sum of $80,000, and said attorneys in fact refused to accept said $80,000 for the sole and only reason that said restraining order had been awarded in this suit. After the purchaser, Conaway, made such tender to the attorneys in fact, he deposited said $80,000 in the First National Bank of Fairmont, W. Va., there to be held, ready to be paid over to the said attorneys in fact at such time and as soon as they are able and can accept the same. Thereupon said attorneys in fact declared their willingness to comply with said contract as soon as the said restraining order shall be dismissed.

The plaintiffs Third National Bank of Cincinnati and Union Savings & Trust Company filed their original and amended bills in this cause for the purpose of setting aside said sale of said coal and surface lands of said Dola Coal & Coke Company upon the alleged grounds: That the price of $145 per acre for which the property was sold "is a grossly inadequate price and value for the property"; that the sale should have been made at public auction; that, before any sale be made, there should be a judicial determination of the liens against the property; that a conspiracy exists between the Baltimore & Ohio Railroad Company, the Fairmont Coal Company, and others, in which John W. Davis and Joseph E. Sands participated to keep down the value of said property and prevent the sale or operation thereof, and that the purchaser, Conaway, "is acting at the direction and in behalf of the officers of the Fairmont Coal Company in making said pretended purchase, and that the purchase, if consummated, will inure to the benefit of the Fairmont Coal Company," etc., and the design is to acquire the property at their own price, regardless of value; that the proceedings of the corporation did not authorize said attorneys in fact to make said sale to Conaway, and that Conaway had legal notice of the invalidity of the authority to sell; and the contract of sale made with Conaway is fraudulent and void on its face.

The bill prays, among other things, that further proceedings under said contract of sale be enjoined; that said sale of the property of the Dola Coal & Coke Company to Conaway be set aside; that the liens on said land be ascertained; "that a sale by the trustees at public auction, after due advertisement, be authorized, to be made upon reasonable and fair terms"; "that a special receiver may be appointed with authority and direction to take inimediate possession and control of all the unadministered assets and property belonging to the estate of T. Moore Jackson, and the property of the Dola Coal & Coke Company, and administer said estate under the orders of this court," etc.

The cause was heard on the bills, the answers of Charles E. Conaway, John W. Davis and others, Lynn S. Horner, and T. M. Jackson all sworn to, and various affidavits, and the court, on the 17th day of January, 1908, entered a decree setting aside the sale of the property of the Dola Coal & Coke Company to Charles E. Conaway, and referring the case to a commissioner in chancery to ascertain and report the real estate belonging to said corporation, the liens thereon, and other matters concerning said corporation's affairs, also the assets of T. M. Jackson, his debts, &c. From this decree the personal representatives of Charles E. Conaway, deceased, appealed.

John Bassel and W. H. Conaway (W. S. Meredith, on the brief) for appellants.

V. B. Archer and Melvin G. Sperry (Sperry & Sperry, Johnson & Hoffheimer, on the brief) for appellees.

Before PRITCHARD, Circuit Judge, and MORRIS and BRAWLEY, District Judges.

PRITCHARD, Circuit Judge (after stating the facts as above). It is insisted by counsel for appellants that the trustees in making this sale were acting as attorneys in fact for and on behalf of the Dola Coal & Coke Company, and that therefore they were not trustees in the usual acceptation of the term, but were simply acting in pursuance of the authority thus granted by the Dola Coal & Coke Company to sell and dispose of the property in question, and that therefore any statute of West Virginia relating to sales of property under deeds of trust could not affect them in the slightest degree.

The learned judge who tried the case below, in disposing of this first question, said:

"First. It is well settled that it is immaterial as to the form and character of the instrument by which a trust may be created. It may also be created by more than one instrument in different forms, each bearing different technical names. The question in equity is always one of substance and not of form. I therefore construe the original agreement between Jackson and these trustees. the deed for his realty, the memorandum of assignment of his personal property, and the power of attorney of the Dola Company to them, as means resorted to to accomplish a single purpose, the creation of a trust in these trustees for the benefit of his creditors. The power of attorney, it is true, goes a step beyond the other writing and gives the right of disposition of the coal property of the Dola Company, in which Jackson was not alone interested. However, it cannot be denied that his interest was almost the whole thereof, that this power was executed solely because of his transfers before made, and with the sole purpose of better obtaining and securing his interests therein and vesting the same in the trustees."

The authority granted the trustees by the Dola Coal & Coke Company reads as follows:

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