being used. This construction is not only required by the language of the proviso, but is in strict harmony with the reason and purpose of the Safety Appliance Acts, and the intention of Congress, emphatically expressed in section 5 of the Act, that all movements of defective cars not specified in the proviso of section 4 shall be unlawful. The effect of such construction is undoubtedly to prohibit a carrier from hauling for repairs over its own line a defective car which has been delivered by a connecting carrier in interchange; and to avoid. liability for hauling on its own lines a defective car thus received, it becomes necessary, as a practical matter, for a carrier to which a car subject to the provisions of the Safety Appliance Act has been delivered by a connecting carrier, to inspect it at the interchange point before accepting it, and if found to be defective, to refuse to accept it from the connecting carrier or to use or haul it upon its own line for the purpose of repairs or otherwise. Such construction, emphasizing the necessity for vigilant examination of cars at interchange points and placing the responsibility for repairs upon the carrier upon whose line they became defective, is, as we view it, in its tendency to prevent the interchange of defective cars, in direct furtherance of the remedial and humanitarian purposes of the Safety Appliance Acts. Pennsylvania Co. v. United States (6th Circ.) 241 Fed. 824, C. C. A., May 8, 1917; Gray v. Louisville Railroad (D. C.) 197 Fed. 874, 876.

[5] We find nothing either in the Safety Appliance Acts or in any rule of the common law, which requires a carrier to accept from a connecting line a car equipped in violation of the Safety Appliance Act; and we are of opinion that it is both the right and duty of a carrier to refuse to accept such defective car in interchange when such acceptance would necessarily involve its own use of such car in violation of these Acts. Clearly no contrary inference can be drawn, by necessary implication from the provision of section 3 of the Act of March 2, 1893, authorizing a carrier to refuse to receive from a connecting line cars not equipped sufficiently with such power or hand brakes as would work with the brakes in use on its own cars; this being a right which the carrier would not otherwise have had, as the Act did not prohibit ipso facto the use of such cars, but merely the running of a train not containing a sufficient number of cars equipped with power or train brakes to enable the engineer to control its speed.

[6] We add that, in our opinion, in case a defective car is received from a connecting carrier in a string or train of cars, the mere incidental handling of such car by the receiving carrier, refusing to accept it, in such manner as may be necessary to disconnect it from the other cars for redelivery to the connecting carrier and to proceed with the use of the other cars, would not be a use or hauling of such defective car by the receiving carrier which would subject it to the penalties of the Act; such incidental handling of the car not being in contravention of the purposes of the Act, but a necessary step in furtherance thereof.

For these reasons, as the defendant's answer did not aver that the car in question had been properly equipped in the first instance and had

become defective while in use on the defendant's line of railroad, we conclude that it did not state a valid defense to the first cause of action alleged in the petition; that hence the court below properly sustained the demurrer thereto and rendered judgment against the defendant upon such cause of action; and its judgment will accordingly be affirmed.

WINSLOW v. STAAB et al.

(Circuit Court of Appeals, Second Circuit. April 10, 1917.)

No. 171.

1. JUDGMENT 341-SETTING ASIDE-AUTHORITY DURING THE TERM.

As a general rule, all judgments or other orders of courts are under the control of the court which pronounces them during the term at which they are rendered or entered of record, and during that period may be set aside, vacated, modified, or annulled by that court.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 667.] 2. JUDGMENT 342(1)—SETTING ASIDE-AUTHORITY AFTER TERM.

It is the general rule that after the term has expired all final judgments and decrees pass beyond the control of the court, unless steps were taken during the term to set aside, modify or correct them.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 668.]

3. EQUITY 430(1)—VACATING DECREES-POWER OF COURT.

As a general rule, the control of a court of equity over its decrees continues throughout the term at which they are entered; but after the expiration of the term no power ordinarily exists to make a substantial change, except by a bill of review.

[Ed. Note. For other cases, see Equity, Cent. Dig. §§ 1034-1040, 1047.] 4. EQUITY ~430(1)—VACATING DECREES-POWER OF COURT.

Where, in a suit to set aside two alleged fraudulent conveyances by a bankrupt, a decree was entered dismissing the bill as to the earlier conveyance on defendant's representation that the equity in the property covered by the subsequent conveyance, at the time of the first conveyance, was sufficient to pay the then existing creditors, of the bankrupt, and thereafter defendant's counsel moved to set aside a decree for plaintiff as to the second conveyance on the ground that title to the property was in the bankrupt and his wife as tenants by the entirety, the court had authority to set aside the decree dismissing the bill as to the first conveyance though the term at which it was entered had expired, as it was obtained by misrepresentation.

[Ed. Note. For other cases, see Equity, Cent. Dig. §§ 1034-1040, 1047.J Appeal from the District Court of the United States for the Southern District of New York.

Suit by Francis A Winslow, as trustee in bankruptcy of Frederick Staab against Amy T. Staab and others. From an order (233 Fed. 305) setting aside two decrees and ordering new trials, the defendant named appeals. Affirmed.

The facts are as follows: On May 15, 1913, Frederick H. Staab, a resident of the city of Mt. Vernon, in the state of New York, transferred to his daughter, Amy T. Staab, a piece of real estate situate on Cottage avenue in Mt. Vernon, which for convenience hereinafter is referred to as the "home property." In July of the same year Staab transferred to another daughter Eflie

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

O. Staab, property situate on South Fourth avenue in Mt. Vernon, and which for convenience hereinafter is referred to as the "business property." In the year following, in June, 1914, Staab was duly adjudicated a bankrupt in the District Court of the United States for the Southern District of New York. After the first meeting of creditors had been called and the trustee elected, a bill in equity was filed in the District Court for the Southern District of New York, for the purpose of setting aside and declaring fraudulent as against creditors the transfers of the properties to which reference has heretofore been made. The two actions were tried as one. The defendants offered no evidence, but rested upon the testimony and exhibits presented by the trustee. The bill, which sought to set aside the transfer of the home property to Amy T. Staab, was dismissed, for the sole reason that it was represented that there was sufficient equity in the business property existing at the time the home property was transferred to pay the then existing creditors of the bankrupt, and a decree dismissing the bill was entered on December 29, 1915. As respects the bill relating to the business property the District Judge reserved his opinion until March 29, 1916. In the opinion which he then filed he concluded that the conveyance was in fact fraudulently made, without adequate consideration, and should be set aside as prayed, and a decree to that effect was accordingly entered.

The solicitor for the appellant then moved for an order setting aside this decree for the reason, as he alleged, that he had then learned for the first time that the title to the business property was in the bankrupt and his wife, Thusnelda Staab, as tenants by the entirety, and not in the bankrupt as owner in fee. This fact it was claimed the solicitor and his clients had suddenly discovered a few days before the making of the motion, five months after the conclusion of the trial, which had ended on November, 1915. When this motion was heard, the counsel for the trustee pointed out that, inasmuch as both of these actions were tried as one, and inasmuch as the sole reason for dismissing the complaint in regard to the home property was based upon the fact that it was represented to the judge by the solicitor for the bankrupt and his daughters that there was sufficient equity in the business property to pay the then existing creditors, and that as it suddenly appeared now that this was not the fact, if the decree was to be set aside as to the business property, justice required that the decree should also be set aside which dismissed the bill as to the home property.

The District Judge acquiesced in the above view, and set aside the two decrees, and ordered new trials. From this Amy T. Staab has appealed.

Milo J. White, of Mt. Vernon, N. Y., for appellant.

Yankauer & Davidson, of New York City (I. Maurice Wormser, of New York City, of counsel), for appellee.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

ROGERS, Circuit Judge (after stating the facts as above). The question presented is whether a court of equity has the power to set aside a decree after the term has expired, where the decree was obtained by a misrepresentation made to the court at the time the decree was obtained. In this case the trial judge has set aside a decree after the expiration of the term and has ordered a new trial.

[1, 2] The general rule is undoubted. It is that all judgments, decrees, or other orders of courts are under the control of the court which pronounces them during the term at which they are rendered or entered of record, and during that period they may be set aside, vacated, modified, or annulled by that court. But after the term has expired all final judgments and decrees pass beyond its control, unless steps were taken during the term to set aside, modify, or correct them. If errors exist, they must then be corrected by writ of error or appeal

in a court authorized by law to review the decision. Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797; Phillips v. Negley, 117 U. S. 665, 6 Sup. Ct. 901, 29 L. Ed. 1013 (1886). There are certain exceptions. to the general rule. These are pointed out in an opinion by Mr. Justice Hughes in United States v. Mayer, 235 U. S. 55, 35 Sup. Ct. 16, 59 L. Ed. 129 (1914). In that opinion the court confined its attention to the power of courts of common law to alter or set aside a final judgment after the term, stating that "we are not here concerned with the special grounds upon which courts of equity afford relief.”

[3] But we are now concerned with the powers of a court of equity over decrees, and the general rule in such cases is that the control of the court over its decrees continues throughout the term at which they are entered. Henderson v. Carbondale Coal, etc., Co., 140 U. S. 25, 11 Sup. Ct. 691, 35 L. Ed. 332 (1891); Doss v. Tyack, 14 How. (55 U. S.) 297, 14 L. Ed. 428 (1852). But after the expiration of the term no power ordinarily exists in the court to make a substantial change, except by bill of review. Cameron v. McRoberts, 3 Wheat. 591, 4 L. Ed. 467 (1818); State v. Bank of Commerce, 96 Tenn. 591, 36 S. W. 719. The technical rule of the English courts is that it is the enrollment of the decree which places it beyond the control of the court. Daniell's Chancery Practice, 682. This, however, is usually worked out by treating the decree as enrolled at the end of the term. See 16 Cyc. 474. After enrollment it has been held that a decree can be amended to insert matter inadvertently omitted. Jarman v Wiswall, 24 N. J. Eq. 68; Sprague v. Jones, 9 Paige (N. Y.) 395; Oliver Finnie Grocery Co. v. Bodenheimer, 77 Miss. 415, 27 South. 613. And so it has been held that the enrollment itself may be vacated for irregularity in obtaining it. Barry v. Barry, 1 Md. Ch. 20; Pickett v. Loggon, 5 Vesey, Jr., 702. It has been held that a decree may be amended after enrollment and may be vacated by consent. Allen v. Allen, 48 S. C. 566, 26 S. E. 786. And it has also been decided that it may be vacated for false representation in inducing the judge to sign it. U. S. ex rel. Fisher v. Williams, 67 Fed. 384, 14 C. C. A. 440 (1895). In U. S. ex rel. Fisher v. Williams the Circuit Court of Appeals in the Eighth Circuit held that a federal Circuit Court had power to set aside after as well as before the end of the term a final decree which the judge had been induced to enter by false representations as to its character and which he did not intend to enter. The court in that case said:

"It may be conceded that if the decree had been expressed in terms which were known to the judge when he entered it, and he had merely misconceived the import or legal effect of the language employed, then the mistake would have been one of law-an error of judgment-such as no court can correct. on a mere motion, after the lapse of the term, by modifying the erroneous judgment, or by setting the same aside. But such was not the case. The respondent did not read the proposed decree. He relied on the statement of counsel who had prepared it that it was an interlocutory order, and on that representation it was allowed to be spread upon the records of the court. The judge acted under a mistake of fact; his judgment was not invoked, and was not exercised, with respect to any of the terms or provisions of the alleged decree, and for that reason it was not, in any proper sense, a judicial act. We think, therefore, that on the state of facts disclosed by the return the respondent did not exceed his powers in vacating the final decree at the October term, 1893, when his attention was called to the character of that

decree. We are of the opinion that when, by a mistake of the judge, induced by erroneous statements of counsel, a decree has been entered of record, which the judge did not examine or approve, and did intend to enter, such decree may be set aside, on motion, after as well as before the expiration of the term. We can conceive of no reason why the parties to a suit, or the court, for that matter, should be bound to any greater extent by a decree of that kind than by a judgment or decree erroneously entered in consequence of a mistake of the clerk as to the character of a judgment directed to be entered. In both cases the record is affected with the same vice, in that it is made to bear witness to judicial action that was never in fact taken. It is well settled that the record of a court may be corrected at any time, from memoranda made by the judge, or even by the personal recollection of the judge, when, through a misprision of the clerk, it fails to speak the truth, or to speak the whole truth. Bank v. Perry (decided by this court at the present term) 66 Fed. 887 [14 C. C. A. 273]. And we are not aware of any substantial reason why the same rule should not be applied to the correction of errors in a record that were occasioned by a mistake of the court or judge, when they are of the character described in the case at bar. We are unwilling to concede that a litigant must resort to an original bill, or to a bill of review, for the purpose of avoiding a decree which a court was induced to spread of record on the last day of the term, without reading it, by reason of an erroneous statement made by counsel as to the character of the decree."

In the instant case the judge knew the contents of the decree he signed and the legal effect of the language employed. But he was induced. to sign it by a misrepresentation of fact made to him by counsel, and if the fact had not been so represented he would never have entered the decree. We cannot see why he should be bound by such a decree to any greater extent than he would have been bound if the contents of the decree had been misrepresented to him,

The case of White v. Tommey, 4 H. L. C. 313, decided in the House of Lords in 1853 throws light upon the question now under consideration. The facts were as follows: A decree in chancery was enrolled in 1835, and a petition for leave to appeal against it was presented in 1839 and refused; the time for appealing having expired. A bill of review was filed in 1844, and a demurrer to that bill was allowed. The order allowing the demurrer was appealed against in 1846 and the appeal dismissed. In 1847 there was a general dismissal of the appeal. In 1848 there was a petition to appeal against the original decree and in the petition it was stated "that it appeared by the order of July, 1847, that the decree of January, 1835, had not been complained of, and therefore that their lordships had not made any declaration with respect to it," and that the said decree had never been adjudicated upon. by their lordships. Accordingly leave was given to include in the appeal the decree of 1835. The appeal was heard ex parte, and in June, 1850, the decree was reversed. The House of Lords held that, as this reversal had been obtained by suppression and misrepresentation, the order should be discharged which gave leave to appeal against the decree of 1835 and the order which had reversed that decree. The Lord Chancellor, after stating the facts, said:

"Now comes the important question-what ought your lordships to do in this state of things? It was pressed very strongly on the part of Tommey by his counsel, that your lordships in truth have no jurisdiction, that after a matter has once been heard and adjudicated upon in this ultimate court of appeal, there is an end of it, that there must be an end somewhere, and that if it can be said that the trustees can be heard now to come, and call in question