any view that may be taken of the subject, the court is at least "authorized" to hear testimony other than that of the applicant, touching the fact of residence, and it must do so if the construction contended for by the government is to prevail. A person who is called upon by an applicant for naturalization to testify as to the fact of residence for three years, as specified by section 2167, cannot, in my judgment, defend against an accusation of having made a false oath in that regard, upon the ground that the oath was not "required" by the naturalization. laws, inasmuch as the applicant might have established the fact by his own oath. An oath so taken is at least an "authorized oath." The courts before whom such proceedings are had may desire other testimony than that of the applicant to establish the fact of residence, and even according to the construction contended for by the accused, it is clear that they have authority to receive, and that it is their duty to demand, such other testimony, when in their opinion the fact to be ascertained is not satisfactorily proven by the applicant's testimony. The only fault that can well be found with the indictment in the matter now being considered is that in alleging that the oath was "required" by the naturalization laws, instead of being "authorized," the pleader alleged more than was necessary to be alleged or proven. The point made, that the oath was "extrajudicial," and that no offense is stated for that reason, is not well taken.

3. A further objection is made to the indictment on the ground that it is not averred that the deputy-clerk of the court of criminal correction, before whom the oath is said to have been taken, was appointed deputy, as required by the act creating the court, or that he was authorized to administer an oath to the defendant. The first of these objections is not tenable. The indictment alleges that the person who administered the oath to the accused was the deputy-clerk of the court, and was acting as such when the oath was administered, and that it was administered in open court. That, in my opinion, is sufficient. It was not necessary to allege the successive steps taken by which the officer became deputy-clerk. The fact alleged, that he was such clerk and was so acting, implies a legal appointment. Everything else connected therewith is evidential, and need not be averred. The second objection mentioned above would be tenable were it not for the fact that the court of criminal correction is so located with respect to this that this court is bound to take judicial notice of its powers and of the authority of its clerk to administer oaths. If the oath had been taken before some officer, of whose power to administer oaths this court is not bound to take judicial notice, the objection would, of course, be fatal. But, inasmuch as the court takes judicial notice of the general laws of the state and of the fact that the deputy-clerk of the court of criminal correction has power to administer oaths to persons appearing as witnesses in that court, I am inclined to the view, and accordingly hold, that the allegation that the accused appeared and was sworn in open court by the deputy-clerk thereof is sufficient, even in an indictment. Certainly the government on the trial will not be bound to prove anything more in the way of establishing

the clerk's authority to administer the oath than that he was the dulyappointed deputy-clerk, and that the oath was administered in the presence of the judge in the course of a judicial proceeding. I can conceive of no sufficient reason why the allegations in a case of this sort should exceed the facts necessary to be proven on the trial.

Some other more technical objections were made to the indictment, which on due consideration do not seem to be well founded. The demurrer is accordingly overruled.

WOOD et al. v. CHICAGO, S. F. & C. R. Co.

SUMMERS v. Same.

(Circuit Court, E. D. Missouri, N. D. June 4, 1889.)

1. ARBITRATION AND AWARD-CONTRACTS-ENGINEER'S ESTIMATES.

A clause in a railroad construction contract, that makes the engineer's estimate and classification of work final and conclusive, is valid and binding. 2. SAME-AVOIDING ESTIMATE EQUITY JURISDICTION.

Estimates made by the engineer in pursuance of such contract can only be avoided in equity, on the ground of mistake, fraud, or gross error, and neither fraud nor mistake can be alleged or proven to avoid the estimates in an action at law on the contract to recover the balance claimed to be due.

8. SAME.

A proceeding on such a contract, in which it is alleged, by way of avoidance of estimates made, that they were collusive, fraudulent, or grossly unfair and erroneous, is an equitable proceeding to obtain relief on the ground of fraud and mistake.

4. SAME.

Whether the alleged errors exist in the estimates, and their probable amounts, and whether the estimate ought to be disregarded, are questions of fact for the chancellor, and not for a jury.

On Motions to Strike Out Parts of Petitions.

Craig, McCrairy & Craig and Mattock & Hiller, for Wood and others. Gardiner Lathrop, T. L. Montgomery, and Ben Eli Guthrie, for defendant. A. J. Baker, Mattock, Hiller & Howard, and T. L. Montgomery, for Summers.

THAYER, J. The questions argued by counsel on the submission of the motions to strike out parts of the petitions do not properly arise, because the clause of the contracts making the engineer's decision final and conclusive as to the amount and classification of work done is not pleaded in the petitions; and the contracts themselves, which are attached as exhibits, form no part of the record, according to the view that is taken in this state. As these petitions are framed, the allegation that the engineer's estimates were fraudulent, collusive or erroneous is redundant matter, and might be properly stricken out for that reason, under the Missouri Code, treating the suits as actions at law. Inasmuch, however, as the

questions discussed by counsel must arise on the trial, I consider it proper to determine them now, although they do not arise on the record.

With respect to the question whether a clause in a railroad construction contract is valid that makes the engineer's estimate and classification of work final and conclusive, it will suffice to say that the weight of American and English authority is decidedly in favor of the view that such provisions are binding upon the contracting parties. Herrick v. Railroad Co., 27 Vt. 673; Kidwell v. Railroad Co., 11 Grat. 676-691; Grant v. Railroad Co., 51 Ga. 352, 353; Railroad Co. v. Veeder, 17 Ohio, 396; Railroad Co. v. Northcott, 15 Ill. 49; 2 Wood, Ry. Law, 995, 996; 1 Redf. R. R. 435; Ranger v. Railway Co., 1 Eng. Ry. Cas. 1; Knoche v. Railway Co., 34 Fed. Rep. 471. The law seems to be quite well settled that estimates made by an engineer in compliance with contracts making him the arbiter as to measurements, amount, and classification of work, are conclusive, and can only be avoided by proof of mistake, or fraud, or of gross negligence on the part of the engineer amounting to fraud. It seems to be a mooted question whether an estimate can be avoided for any other mistakes of the engineer than those of fact, as distinguished from mistakes of judgment; the better opinion being no doubt that there is no remedy for mistakes of judgment as to the quality of work done when the engineer or arbiter has acted in good faith in the exercise of his judgment. Ranger v. Railway Co., 1 Eng. Ry. Cas. 1, 13 Sim. 368. Such provisions in contracts being binding the next question is whether an estimate made by an engineer in accordance with such a stipulation can be avoided in a strictly legal proceeding by proof of fraud, gross negligence, or mistake? Of course, if an estimate thus made is regarded in the light of an award made by an arbitrator, the authorities are practically all one way,-that recourse must be had to a bill in equity, and that neither fraud or mistake can be alleged or proven to avoid the estimate, in a suit at law on the contract to recover a balance claimed to be due. The best-considered cases on the subject, so far as my observation extends, treat estimates (especially final estimates) made by an engineer in pursuance of such provisions, as an award that can only be avoided in chancery. Herrick v. Railroad Co., supra; Kidwell v. Railroad, supra; Railroad Co. v. Veeder, supra; Grant v. Railroad Co., 51 Ga. 353. It appears to me, also, that on general principles, whether such estimates are or are not technical awards, courts of equity alone have authority to vacate them on the ground of mistake, fraud, or gross errors amounting to fraud, when such estimates have been regularly made in pursuance of contract provisions. If an engineer appointed by the parties fails to act,—that is, fails to make an estimate,-I have no doubt that a suit at law may be maintained on the contract to recover what is due. Starkey v. De Graff, 22 Minn. 431, Kistler v. Railroad Co., 88 Ind.

A proceeding begun upon a construction contract containing a stipulation making the measurements, classifications, and estimates of the engineer final and conclusive, in which proceeding it is alleged by way of avoidance of estimates made by the engineer that they were collusive, fraudulent, or grossly unfair and erroneous, is, in my opinion,

essentially an equitable proceeding to obtain relief on the ground of fraud and mistake, and should be so treated. The gist of the cause of action in such a suit, is the fraud or mistake of the engineer. Whatever is done subsequent to the trial of that issue, in the way of finding out what is really due to the contractor, is incidental or collateral to the main issue. I apprehend that if on the trial of such a suit errors to any substantial amount are shown in the measurements or estimates of the engineer, such as would fairly raise the presumption that the arbitrator must have been either ignorant, inefficient, or negligent, no court would hesitate for a moment to grant relief to the contractor, but in the first instance the question whether such errors exist in the estimates, and their probable amount, and whether the estimate ought to be disregarded, is a question for the chancellor, and not for a jury. The fact, if it be a fact, that the engineer or person selected to measure and estimate the work done is in the employ of one of the contracting parties, undoubtedly makes it the duty of the court to scrutinize his estimates with great care, as the law requires of persons so situated the utmost diligence and good faith. Pierce, R. R. 382. This seems to be the rule fairly deducible from the best-considered cases, and the one I shall adopt.

In several cases bills have been entertained to avoid erroneous estimates on the ground of fraud and mistake, without a question as to the propriety of such a procedure, and, if equity has jurisdiction in such cases, it is clear that a court of law has not. Vide cases above cited, and Sharpe v. Railway Co., L. R. 8 Ch. 597. The result is that, if in the cases now under consideration the proof shows that estimates have been made by the engineer, which by the provisions of the contract are made conclusive so far as the amount and classification of the work are concerned, and if counsel are relying upon the charge that the engineer acted fraudulently, collusively, or negligently to avoid the estimates, the court will hold that the cases are of equitable cognizance, and will proceed accordingly.

COWAN v. BOND.

(Oircuit Court, S. D. Mississippi, E. D. May 21, 1889.)

1. CARRIERS-INTERSTATE COMMERCE-UNLAWFUL DISCRIMINATION.

A railroad company is not guilty of an unlawful discrimination or preference in violation of sections 2 and 3 of the interstate commerce act by receiving from a shipper cotton at Delhi, La., shipping it to Vicksburg, having it compressed there at the company's expense, and reshipped to eastern points for a rate equal to its published through rate from Delhi to such eastern points, where such an arrangement is in compliance with a recognized custom, of which all other shippers, including petitioner, could or did avail themselves, and where it does not appear that petitioner desired to ship any cotton from Delhi to the eastern points, or that he was compelled to pay a higher rate under similar circumstances.

2. SAME.

The fact that cotton raised near Vicksburg being considered by eastern buyers to be superior to other cotton, arrangements are sometimes made to

induce such buyers to believe that cotton actually raised in other localities was raised in the vicinity of Vicksburg, cannot be imputed to the railroad company so as to make the transaction by which it stops and compresses cotton at Vicksburg for eastern shipment an unlawful discrimination.

Petition against Receiver.

Dabney, McCabe & Anderson, for petitioner.

Birchett & Gilland, for respondent.

HILL, J. This is a petition in the nature of an action at law against F. S. Bond, the defendant, as receiver of the Vicksburg & Meridian Railroad Company, to recover damages, which it is alleged petitioner has sustained by reason of the alleged violation of sections 2 and 3 of an act of congress approved February 4, 1887, known as the "Interstate Commerce Act." The petition, in substance, alleges that on the 1st day of September, 1887, petitioner was, and from that time has been, and still is, engaged in the business, occupation, and employment of buying, shipping, and selling cotton in bales to cotton mills and manufacturers at different places, in different states, including Massachusetts, New Hampshire, New Jersey, New York, and Rhode Island; that said defendant, as receiver, under the orders and decrees of this court, of the Vicksburg & Meridian Railroad Company, a corporation and common carrier, was engaged in operating said railroad, and receiving and transporting for hire over the line of which it is part freight, and cotton in bales, in connection with other railroad companies, from points in Mississippi, including the city of Vicksburg, to points in other states, including those above named; also in transporting from points on the Vicksburg, Shreve port & Pacific Railroad, owned by a company which operates, and did operate at the time aforesaid, a railroad from Vicksburg, in this state, to Shreveport, in the state of Louisiana, and in connection with said Vicksburg & Meridian Railroad; that between the 1st day of September, 1887, and the 1st day of September, 1888, he bought and delivered to the defendant, as such receiver, for transportation for hire as a common carrier, 9,339 bales of cotton, weighing in the aggregate 4,407,635 pounds, which defendant received and agreed to ship, and did ship and transport, to different points in said states, some to one point and some to another, of which a bill of particulars is filed as part of the petition; that from the 1st day of September, 1887, to the 1st day of September, 1888, the firm of W. L. Wells & Co. was engaged in the same business of buying, shipping, and selling cotton to points in eastern states, their business being in all respects the same as petitioner's, and located and doing business at the same place, and to all appearances under like conditions, and hence his rivals in business; that during the same period, said W. L. Wells & Co. bought and shipped over said Vicksburg & Meridian Railroad large numbers of bales of cotton, which were to be, and were, transported in many instances to the same points as that shipped by petitioner as aforesaid; that defendant charged and received from petitioner 4 cents per 100 pounds during said time more than he charged said W. L. Wells & Co. from Vicksburg to the same points,