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in involuntary cases while performing the duties herein prescribed, and to the bankrupt in voluntary cases, as the court may allow."

Any such allowance is a preferred claim, and is to be ordered paid by the trustee.

Under this it would seem that the basis of compensation is not payment for all services which the bankrupt may request of his attorney, but for the services to the bankrupt in involuntary cases, while performing the duties prescribed upon the bankrupt by the bankruptcy law. Most of the work covered by the application for this allowance was apparently work done at the request of the bankrupt, and not work required from the bankrupt's attorney by the provisions of the statute. The disbursements by the attorney for the bankrupt, for car fares and lunch, will evidently have to be determined in the light of the words "fees and mileage payable to witnesses." This application will be held as pending until the question of discharge has been passed upon by the referee, and until the matter is brought before this court for final adjudication. If an allowance is made, it will be directed to be paid before the declaration of the final dividend.

MALLOY v. NORTHERN PAC. RY. CO.

(Circuit Court, W. D. Washington. March 5, 1907.)

No. 1,197.

MASTER AND Servant-INJURIES TO SERVANT-INTERSTATE CARRIERS-EMPLOYERS' LIABILITY ACT-ASSUMED RISK.

Employers' Liability Act June 11, 1906, 34 Stat. 232, c. 3073, fixes a liability on all common carriers engaged in interstate and foreign commerce for damages to their employés who may suffer injuries resulting from negligence or by reason of any defect or insufficiency due to negligence in appliances, machinery, ways, or works, etc., and section 3 provides that no contract of employment shall constitute any bar or defense to any action brought to recover damages for personal injuries to or death of such employé. Held, that where plaintiff was injured while operating an unboxed saw in the car shops of defendant, an interstate railway company, by which he was employed, plaintiff did not assume the risk of voluntarily accepting employment in the shop, though the danger was obvious.

Action to recover damages for injuries suffered by plaintiff while working in defendant's carshops, at Tacoma, in the month of August, 1906. The complaint charges negligence on the part of the defendant in its business as a common carrier of interstate and foreign commerce by operating an unguarded saw in its carshops, and that said saw by reason of its defective condition caused a piece of timber to be hurled violently, causing the injury. By its answer the defendant pleads in defense that the unboxed saw and the danger of its operation were obvious, and known to plaintiff, and that by voluntarily accepting employment in the shop he assumed the risk of any injury which might happen from the operation of said saw. Demurrer to answer sustained. Govnor Teats, for plaintiff.

B. S. Grosscup and A. G. Avery, for defendant.

HANFORD, District Judge. Act Cong. June 11, 1906, 34 Stat. 232, c. 3073, commonly called "The Employer's Liability Act" fixes a liability upon all common carriers engaged in interstate and foreign commerce, for damages to their employés who may suffer injuries resulting from negligence, or by reason of any defect or insufficiency due to negligence in cars, engines, appliances, machinery, track, roadbed, ways or works, and the third section of the act provides:

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"That no contract of employment, entered into by or on behalf of any employé, shall constitute any bar or defense to any action brought to recover damages for personal injuries to or death of such employé.”

The intent and object of Congress in the enactment of this statute is plain, viz., it is to make the liability of common carriers engaged in interstate commerce for injuries to their employés in consequence of negligence, or insufficiency or defects of the physical property usea in the carrying business or pertaining thereto, more nearly absolute, and to deprive such employers of the benefit of defenses which were, previous to the enactment of the statute, legal. It is still lawful for men to engage in hazardous employments; but the class of employers to which the act refers cannot by any contracts which they may make with their employés avoid liability for damages which may be suffered as a consequence of negligence. An express contract between the plaintiff and the defendant, exempting the latter from liability for damages in case of an injury caused by the operation of a saw in its carshop, negligently permitted to be unnecessarily dangerous by reason of being unboxed, would not constitute a bar to a recovery of damages in this case, because the statute so declares, and if an express contract would be unavailing, this special defense, predicated upon an implied contract, must also fail.

Demurrer sustained.

MEMORANDUM DECISIONS.

BURLEE DRY DOCK CO. v. MORRIS & CUMMINGS DREDGING CO. (Circuit Court of Appeals, Second Circuit. March 5, 1907.) No. 169. Appeal from the District Court of the United States for the Southern District of New York. Martin A. Ryan, for appellant. Albert A. Wray, for appellee. Before WALLACE, LACOMBE, and COXE, Circuit Judges. PER CURIAM. Decree (145 Fed. 740) affirmed, with costs.

EVENING LEADER CO. v. BUTLER. (Circuit Court of Appeals, Second Circuit. February 28, 1907.) No. 188. In Error to the Circuit Court of the United States for the District of Connecticut. J. P. Goodhart and W. B. Stoddard, for plaintiff in error. George D. Watrous, Henry H. Townshend,

and Adrian H. Larkin, for defendant in error. Before WALLACE, LACOMBE, and COXE, Circuit Judges.

PER CURIAM. Judgment of Circuit Court affirmed. See 134 Fed. 994.

FEDERAL INS. CO. et al. v. STARIN. (Circuit Court of Appeals, Second Circuit. April 1, 1907.) No. 244. Appeal from the District Court of the United States for the Southern District of New York. James D. Dewell, Jr., and Avery F. Cushman, for appellant. L. Kneeland, for appellees. Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

PER CURIAM. Decree (134 Fed. 1010) affirmed, with interest and costs, on 'the opinion of the commissioner and of the court below.

GURVICH v. UNITED STATES. (Circuit Court of Appeals, Ninth Cireuit. October 22, 1906.) No. 1,046. In Error to the District Court of the United States for the First Division of the District of Alaska. Malony & Cobb, for plaintiff in error. John J. Boyce and Marshall B. Woodworth, U. 8. Attys.

PER CURIAM. In conformity with the opinion and mandate of the Supreme Court of the United States (25 Sup. Ct. 803, 49 L. Ed. 1172) it is ordered and adjudged by this court that the judgment of the said District Court In this cause be, and hereby is, reversed, and the cause is remanded to the said District Court for a new trial. See, also, Rassmussen v. U. S., 25 Sup. Ct. 514, 49 L. Ed. 862.

LANE BROS. CO. et al. v. WILCOX MFG. CO. (Circuit Court of Ap peals, Second Circuit. March 26, 1907.) No. 219. Appeal from the Circuit Court of the United States for the Southern District of New York. A. Parker Smith, for appellants. C. E. Pickard, A. H. Adams, J. L. Jackson, and H. A. Heyn, for appellees. Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

PER CURIAM. Decree (141 Fed. 1000) affirmed, with costs.

NATIONAL CASH REGISTER CO. v. UNION COMPUTING MACH. CO. (Circuit Court of Appeals, Third Circuit. March, 1907.) No. 5. Appeal from the Circuit Court of the United States for the District of New Jersey. Edward Rector, for appellant. A. D. Kenyon, for appellee.

PER CURIAM. Appeal dismissed, at the costs of appellant. See 143 Fed.

342.

THE ROSEDALE. THE CYGNUS, (Circuit Court of Appeals, Second Circult. March 5, 1907.) Nos. 200, 201. Appeal from the District Court of the United States for the Southern District of New York. La Roy S. Gove and James J. Macklin, for appellant. A. G. Thatcher and Butler, Notman & Wynderse, for appellee. Before WALLACE, LACOMBE, and COXE, Circult Judges.

PER CURIAM. Decree (141 Fed. 1001) affirmed, with Interest and costs.

ST. LOUIS CORDAGE CO. v. MISSOURI, K. & T. RY. CO. (Circuit Court of Appeals, Eighth Circuit. January 17, 1907.) No. 2.494. In Error to the Circuit Court of the United States for the Eastern District of Missouri. W.

D. & Davis Biggs and David Goldsmith, for plaintiff in error. Geo. P. B. Jackson, for defendant in error.

PER CURIAM. Reversed, at costs of plaintiff in error, on authority of Francisco v. Chicago & Alton Railroad Co. (C. C. A.) 149 Fed. 354, and remanded, with directions to dismiss the cause without prejudice.

SPENCER & CO. v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. January 11, 1907.) No. 118 (3,953). Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 143 Fed. 916, affirming a decision of the Board of United States General Appraisers (G. A. 5,943; T. D. 26,090), which affirmed the assess-* ment of duty by the collector of customs at the port of New York. Comstock & Washburn (Albert H. Washburn, of counsel), for importers. J. Osgood Nichols, Asst. U. S. Atty. Before WALLACE, TOWNSEND, and COXE, Cir

cuit Judges.

PER CURIAM. Decree affirmed, on opinion of Circuit Court and Board of General Appraisers.

THE TENEDOS. (Circuit Court of Appeals, Second Circuit. January 7, 1907.) Nos. 110-114. Appeals from the District Court of the United States for the Southern District of New York. Harrington Putnam, for appellants. Lawrence Kneeland, J. Tanner, and Black & Kneeland, for appellee. Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

PER CURIAM. Decrees of District Court (137 Fed. 443) affirmed, with interest and costs, upon opinion of Judge Holt.

UNITED STATES v. PLOWMAN. (Circuit Court of Appeals, Ninth Circuit. February 4,'1907.) No. 1,328. In Error to the District Court of the United States for the Central Division of the District of Idaho. N. M. Ruick, U. S. Atty. Fremont Wood and W. E. Borah, for defendant in error. Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS, Circuit Judge. It is conceded in the brief for the government that the facts in this case are substantially identical with those presented in the cases of United States v. Basic Company, 121 Fed. 504, 57 C. C. A. 624, and United States v. Rossi, 133 Fed. 380, 66 C. C. A. 442; and as the points of law again argued by counsel for the government in the present case were considered and disposed of by us in the cases cited, we affirm the judgment on the authority of those cases. The judgment is affirmed.

UNITED STATES v. SPENCER & CO. (Circuit Court of Appeals, Second Circuit. January 18, 1907.) No. 141 (3.973). Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 146 Fed. 112, reversing a decision of the Board of United States General Appraisers, which had affirmed the assessment of duty by the collector of customs at the port of New York. J. Osgood Nichols, Asst. U. S. Atty. Comstock & Washburn (J. Stuart Tompkins, of counsel), for importers. Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

PER CURIAM. Decree affirmed in open court.

UNITED STATES FASTENER CO. v. MEYERS et al. (Circuit Court of Appeals, Second Circuit. March 5, 1907.) No. 179. Appeal from the Circuit

Court of the United States for the Southern District of New York. Donald Campbell, Odin Roberts, Roberts & Mitchell, and Messimer & Campbell, for appellant. Livingston Gifford and George Cook, for appellees. Before WAL LACE, LACOMBE, and COXE, Circuit Judges.

PER CURIAM. Decree (145 Fed. 536) affirmed, with costs.

WELSBACH LIGHT CO. v. CREMO INCANDESCENT LIGHT CO. (Circult Court of Appeals, Second Circuit. February 26, 1907.) No. 123. Appeal from the Circuit Court of the United States for the Southern District of New York. Thos. W. Bakewell and Thos. B. Kerr, for appellant. Louis Hicks, for appellee. Before WALLACE, LACOMBE, and TOWNSEND, Cir. cuit Judges.

PER CURIAM. Decree of Circuit Court (145 Fed. 521) affirmed, with costs.

THE WYOMING. (Circuit Court of Appeals, Second Circuit. January 30, 1907.) No. 127. Appeal from the District Court of the United States for the Southern District of New York. Herbert Green, and Wilcox & Green, for appellant. Chas. C. Burlingham and Wing, Putnam & Burlingham, for appellees. Before Judges WALLACE, LACOMBE, and COXE, Circuit Judges. PER CURIAM. Decree of District Court (145 Fed. 735) affirmed, with interest and costs.

YOST V. UNION PAC. R. CO. (Circuit Court of Appeals, Eighth Circuit. December 4, 1906.) No. 2177. In Error to the Circuit Court of the United States for the Western District of Missouri. Jules C. Rosenberger and Jacob L. Lorie, for plaintiff in error. N. H. Loomis and I. N. Watson, for defendant in error.

PER CURIAM. Reversed, at costs of plaintiff in error, and remanded, with directions to enter a dismissal without prejudice, on authority of the case of Francisco v. Chicago & Alton Railroad Co. (C. C. A.) 149 Fed. 354.

END OF CASES IN VOL. 151.

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