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mental agreement with the Creek Tribe of Indians and for other purposes," provides:

"Lands allotted to citizens shall not * be alienated by the allottee or his heirs before the expiration of five years from the date of the approval of this supplemental agreement, except with the approval of the Secretary of the Interior."

The time had not expired when the deeds were made, nor did the Secretary approve either of them. The provision quoted appears in what may for the moment be called the sixteenth section of the act. Various other provisions are made therein regarding the disposition of homesteads, etc. At the conclusion of the section is the following: "Any agreement or conveyance of any kind or character violative of any of the provisions of this paragraph shall be absolutely void and not susceptible of ratification in any manner, and no rule of estoppel shall ever prevent the assertion of its invalidity."

The later Act April 21, 1904, c. 1402, 33 Stat. 189, 204, removed all restrictions upon the alienation of lands of allottees of either of the Five Civilized Tribes of Indians (among whom are the Creeks) who were of full age and not of Indian blood, with an exception as to homesteads. On April 25, 1904, four days after the approval of this act, the purchase from complainant was made and the first deed executed; but he was then a minor, and the restriction against his alienation still remained. When the second deed was made complainant was of age, and defendants, assuming he was otherwise capable of contracting, rely upon it as a ratification of the first. Whether the first deed was susceptible of ratification depends upon the construction of section 16 of the act of June 30, 1902, and particularly upon the meaning of the term "paragraph" in the final clause. As it now appears in the statute book, there are two paragraphs of section 16, though not designated as such, nor distinguished from each other by letter or numeral, and the five-year restriction against alienation applicable to complainant appears in the first. Defendants contend that the final clause forbidding ratification, in which the term "paragraph" appears, relates exclusively to the matters contained in the latter part of the section as printed, while the position of complainant is that by "paragraph" is meant the entire sixteenth section or subdivision of the

act.

We are of opinion that it was the intention of Congress that no conveyance forbidden by any of the terms of the sixteenth section of the act should be susceptible of ratification or be made good by estoppel. The section in its completeness has a common subject-matter, the disposition of allotments, and the provisions regarding it would naturally be grouped or placed in a single subdivision or paragraph of an agreement or in a single section of a law. The express restrictions upon alienation as to both homesteads and surplus lands appear in the first paragraph, not in the second, and it was to them the final clause was obviously directed. The act of June 30, 1902, differs from acts of Congress in general, in that the subdivisions thereof are not designated as sections. The body of the act was a prior agreement between the Dawes Commission and representatives of the Creek Tribe of Indians,

and, with some changes, it was confirmed by Congress and submitted. to the tribal council for ratification. The subdivisions or paragraphs of the prior agreement were consecutively numbered, and that arrangement was preserved when it was incorporated in the act. A similar arrangement and omission to designate numbered subdivisions or paragraphs as sections will be found in the agreement with the Choctaws and Chickasaws embodied in Act July 1, 1902, c. 1362, 32 Stat. 641. We think it quite clear that "paragraph" was used synonymously with "subdivision" or "section," and that it does not mean the minor undesignated part of the text, the arrangement of which may well be the mere result of taste, without intention to control the sense or import. The term "paragraph," in an act of Congress, will be construed to mean "section," whenever to do so accords with the legislative intent. Marine, Collector, v. Packham, 3 C. C. A. 210, 212, 52 Fed. 579.

As to the part of the decree requiring complainant to refund the consideration paid for the deeds: There was no showing that when the suit was brought, or when complainant became of age, he still had any of the money paid him, or any property that had been acquired with it, or that any part of it had been devoted to the improvement of his land. Such proof as there was tended to show the money was quickly squandered after he got it, and the effect of the decree in its present form would be to diminish the estate he possessed during minority. To hold a minor to the restoration of what he received, but has dissipated, is to go counter to the very reasons upon which his incapacity to contract is founded. The Court of Appeals in the Territory sustained the decree in this particular because it appeared complainant orally represented he was of age when he made the sale; but such representation does not differ in its effect from that which is implied from the act of conveyance. "A conveyance by an infant is an assertion of his right to convey. A contemporaneous declaration of his right or of his age adds nothing to what is implied in his deed. An assertion of an estoppel against him is but a claim that he has assented or contracted. But he can no more do that effectively than he can make the contract alleged to be confirmed." Sims v. Everhardt, 102 U. S. 300, 313, 26 L. Ed. 87. If a contract made by a minor be disaffirmed, he will be required to restore such of the consideration as remains in his hands; but repayment of the consideration will not be required, where it has been wasted, disposed of, or consumed during minority. MacGreal v. Taylor, 167 U. S. 688, 698, 17 Sup. Ct. 961, 42 L. Ed. 326. It follows, therefore, the court erred in this particular, and in dividing the costs between the parties. The decree is modified by excluding therefrom the provision that complainant repay the moneys he received, with interest, and also by awarding him recovery of costs. As so modified, the decree is affirmed.

CHICAGO & N. W. RY. CO. v. UNITED STATES.

(Circuit Court of Appeals, Eighth Circuit. March 10, 1909.)

No. 2,794.

1. RAILROADS (§ 229*)-SAFETY APPLIANCE ACT-CARS OUT OF REPAIR. The federal safety appliance act (Act March 2, 1893, c. 196, § 1, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174], as amended by Act March 2, 1903. c. 976, § 1, 32 Stat. 943 [U. S. Comp. St. Supp. 1907, p. 886]), includes, first vehicles actually moving in interstate traffic; second, such vehicles, though empty, when moving to points for the purpose of receiving interstate traffic, or otherwise commercially used by the carrier; and, third, vehicles used in connection with vehicles embraced in either of the two former classes. This would include cars that were out of repair, and were being transported solely for the purpose of repair, if they were placed in trains whose vehicles come within either of the first two classes.

[Ed. Note. For other cases, see Railroads, Dec. Dig. § 229.*

Duty of railroad companies to furnish safe appliances, see note to Felton v. Bullard, 37 C. C. A. 8.]

2. RAILROADS (§ 254*)-SAFETY APPLIANCE ACT-DEFECTIVE EMPTY CARS. The necessary movement of a defective empty car alone, for purpose of repair only, and not in connection with any cars commercially used, does not subject the carrier to the penalties of the acts.

[Ed. Note. For other cases, see Railroads, Cent. Dig. § 766; Dec. Dig. § 254.*]

3. RAILROADS (§ 229*)-SAFETY APPLIANCE ACT-DEFECTIVE EMPTY CARS.

A carrier may move empty cars by themselves to repair shops, for the purpose of having them placed in condition to conform to the safety appliance act (Act March 2, 1893, c. 196, § 1, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174], as amended by Act March 2, 1903, c. 976, § 1, 32 Stat. 943 [U. S. Comp. St. Supp. 1907, p. 886]), without being guilty of a violation of those acts while thus engaged in an honest effort to meet their requirements.

[Ed. Note. For other cases, see Railroads, Dec. Dig. § 229.*]

In Error to the District Court of the United States for the District of Nebraska.

For opinion below, see 157 Fed. 616.

C. C. Wright (B. T. White and B. H. Dunham, on the brief), for plaintiff in error.

Luther M. Walter, Sp. Asst. U. S. Atty. (Charles A. Goss, U. S. Atty., and A. W. Lane, Asst. U. S. Atty., on the brief), for defendant in error.

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

AMIDON, District Judge. This action was commenced by the government to recover penalties under Act March 2, 1893, c. 196, § 1, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), as amended by Act March 2, 1903, c. 976, § 1, 32 Stat. 943 (U. S. Comp. St. Supp. 1907, p. 886). The complaint alleges that:

"The defendant, on or about June 7, 1906, hauled on its line of railroad one car, to wit, its own No. 69581; said car being an empty car and generally used in the movement of interstate traffic, said car, at the time of the violaFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

tion of the above act, being consigned from Omaha, in the state of Nebraska, to Council Bluffs, in the state of Iowa."

It was further alleged that when the car was so hauled the grab iron or handhold on the right-hand side of the "B" end of the car was missing. The answer admits these facts, and alleges that the defect in the car was discovered while it was in the yards at South Omaha, Neb.; that the most convenient place of repair was at the defendant's shops in Council Bluffs; that the car was empty, and was moved from Omaha to Council Bluffs for the sole purpose of being repaired. A general demurrer was interposed to this answer, and sustained. Thereupon the court found the defendant guilty, and adjudged it to pay a fine of $100 and costs, and the present writ of error is brought to review that judgment.

Section 4 of the act of March 2, 1893 (27 Stat. 531), is as follows: "That from and after the 1st day of July, 1895, until otherwise ordered by the Interstate Commerce Commission, it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grab-irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars."

The amendment of 1903 (32 Stat. 943) had three objects: First, to extend the safety appliance act to traffic in the District of Columbia and the territories; second, to remove the doubt as to the meaning of the term "cars," as used in the act, created by the decision of this court in the Johnson Case, 117 Fed. 462, 54 C. C. A. 508; third, to enlarge the scope of the safety appliance act, so as to include not only "the cars, locomotives, tenders, and similar vehicles," etc., therein referred to, but also to embrace "all other locomotives, tenders, cars, and similar vehicles used in connection therewith."

Reading these statutes together, as they have been interpreted by the courts, they include, first, vehicles actually moving interstate traffic; second, such vehicles, though empty, when moving to points for the purpose of receiving interstate traffic, or otherwise commercially used by the carrier; and, third, vehicles used in connection with vehicles embraced in either of the two former classes. This would include cars that were out of repair, and were being transported solely for the purpose of repair, if they were placed in trains whose vehicles come within either of the first two classes.

The shovel car involved in the Schlemmer Case, 205 U. S. 1, 27 Sup. Ct. 407, 51 L. Ed. 681, "was part of a train on its way through Pennsylvania from a point in New York." The same is true of the cars referred to in United States v. St. Louis, I. M. & S. R. Co. (D. C.) 154 Fed. 516. In fact, so far as we have been able to examine the authorities, the cases in which carriers have been held liable for moving defective cars over their lines for purposes of repair have all presented the feature that such cars were moved in trains whose other vehicles were actually engaged in interstate commerce, and were used "in connection with" such cars, within the meaning of the last clause of section 1 of the act of 1903.

The present case, upon a fair construction of the pleadings involves a movement of the defective car alone for purposes of repair only.

In our judgment, neither the car nor the locomotive which hauled it was used in interstate commerce, within the meaning of section 4 of the act of 1893, or "in connection with" any locomotive, tender, car, or similar vehicle engaged in such commerce within the provision of the act of 1903.

The object of the safety appliance statutes was manifestly to require interstate carriers to maintain their rolling stock in a certain condition of safety. It could not have been the intention of Congress to impose this duty upon carriers, and at the same time deprive them of the only practical method of meeting its requirements. Rolling stock must necessarily become defective, within the terms of these statutes, both by use and by accident. Repair shops cannot be kept on wheels. Such shops cannot be brought to the defective vehicle. The only practical method of railroading requires that such vehicles, when out of repair, shall be taken to the shops; and if they are wholly excluded from commercial use themselves, and from other vehicles which are commercially employed, they do not fall within any of the classes covered by the safety appliance acts. A carrier may move one or more cars by themselves to repair shops, for the purpose of having them placed in a condition to conform to the safety appliance acts, without being guilty of a violation of those acts while thus engaged in an honest effort to meet their requirements.

The judgment must be reversed, and the cause remanded, with directions to grant a new trial; and it is so ordered.

In re HANNA.

(Circuit Court of Appeals, Second Circuit. February 16, 1909.)

No. 194.

1. BANKRUPTCY (§ 415*)-ProceedinGS IN OPPOSITION TO DISCHARGE-AMENDMENT OF SPECIFICATIONS.

A special master, to whom was referred a bankrupt's application for discharge, had power to permit the amendment of specifications of objection filed on behalf of a number of creditors, but signed and verified only by an agent of one, by allowing the same to be signed and verified by one of the other creditors.

[Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 415.*]

2. BANKRUPTCY (§ 409*) — Grounds for REFUSAL TO DISCHARGE FAILURE TO KEEP BOOKS OF ACCOUNT.

Under Bankr. Act July 1, 1898, c. 541, § 14b (2), 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427), as amended by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 (U. S. Comp. St. Supp. 1907, p. 1026), the failure of a bankrupt to keep correct books of account, "with intent to conceal his financial condition," debars him from the right to a discharge, whether his intent was fraudulent or not.

[Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 409.*]

Appeal from the District Court of the United States for the Southern District of New York.

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

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