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managers and officers of the corporation,—to wit, David Reeves, the president, John Griffin, director and superintendent, and William S. Reeves, director and assistant superintendent, who as such members of said firm make large profits at the expense of the corporation, by means of unlawful contracts which they as such managers and officers enter into, to the prejudice of the corporation; that the plaintiff has sought information respecting the affairs of the company—the salaries paid to its officers, and the character of its dealings with the said firm, but the defendants, members of the said family, or subject to its control, have combined to keep him in ignorance, by withholding such information and refusing access to books and papers from which it might be obtained; that the plaintiff attended a meeting of stockholders and there sought redress, but that his efforts were rendered fruitless by reason of the conduct of the defendants, who combined against him for that purpose.

The foregoing statement embraces legitimate ground for equitable interference,-in substance, that the defendants, members of one family, and principal owners of the stock, have unlawfully combined to abstract the property of the corporation and apply it to their own use in the form of salaries, and profits of the firm of Clarke, Reeves & Co., and to keep the plaintiff in ignorance of their transactions in this respect. To this extent, and to this only, the bill must be allowed to stand.

So much of the demurrer as relates to the first, second, third, and seventh prayers of the bill, and the statements touching the same, is therefore sustained. As respects all other causes of demurrer assigned, the said demurrer is overruled, without prejudice, however, to the defendants hereafter.

A. C. & A. B. TREADWELL & Co. v. ANGLO-AMERICAN PACKING Co.

FOWLER BROTHERS v. A. C. & A. B. TREADWELL & Co.

(Circuit Court, W. D. Tennessee. July 26, 1882.)

1. SALES-TERMS OF CONTRACT_"CURED MEAT.”

Where a sale of “cured meat” was made by a broker to a merchant at Memphis, that term is to be interpreted according to the understanding of the trade at Memphis, and not according to that where the seller resided, if there be any substantial difference between the two.

2. SALES-BILL OF LADING WITH DRAFT ATTACHED-DELIVERY-RISK OF TRANS

PORTATION

Where goods are sold and delivered to a carrier, with bill of lading in the name of the shipper indorsed to the purchaser, to be delivered only when the draft is paid, the ownership remains with the seller until the draft shall be paid, and the goods are at his risk. But when the payment is made, the ownership and risk change to the purchaser.

These two cases were heard together, but only so much of the charge of the court and the facts relating to the points of law that were disputed by counsel are reported here.

In October, 1880, the Treadwells purchased through a broker, at Memphis, one car load of meat, from the Anglo-American Packing & Provision Company, which, according to the memorandum of contract, was to be "cured meat,” to be delivered at Atchison, Kansas, "free on board,” freight not more that 42 cents. The bill of lading was to the order of the Anglo-American Company, indorsed "Deliver, to A. B. & A. C. Treadwell & Co.," to which was attached a draft, payable at sight, for the price of the meat. This was sent to a bank at Memphis, with instructions to deliver to the Treadwells only in payment of the draft. The draft was paid November 3, 1880, and the bill of lading delivered.

When the meat arrived it was alleged to be spoiled, whereupon the purchasers notified the shippers that they held it subject to their orders, and demanded the refunding of the money and expenses, which was refused. The Treadwells brought suit by attachment, in the state court, and the meat being attached, was sold. The Treadwells, in the mean time, having through another broker ordered a car load of meat from Fowler Brothers, of Chicago, it came billed by the Anglo-American Company, and a draft from them for the price on account of Fowler Brothers. The Treadwells refused to pay the draft, and attached this car load as the property of the AngloAmerican Company, whereupon the Fowlers brought suit for the price of the meat. The suits were removed to the United States court by the non-resident parties. The jury found on the facts that the meat was not cured according to the contract, and gave a verdict for the Treadwells for $2,129.75, and that the second car load of meat belonged to Fowler Brothers, and not the Anglo-American Company, and gave a verdict in their favor for the price, $1,962.32, against the Treadwells. The defence contended that if the meat was spoiled on arrival it was because of negligence in transportation or natural causes after shipment, and that the meat was at the risk

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of the purchaser. They introduced proof tending to show that the meat was "cured,” according to the understanding of that term in Kansas, when it left the shipper. The plaintiff introduced proof tending to show that "cured meat," as that term is understood in the trade at Memphis, would not spoil in a transportation of 14 days.

The two cases were heard together.
Clapp & Beard, for the Treadwells.
Taylor & Carroll, for Packing Co. and Fowler Bros.

HAMMOND, D. J., (charging jury.) The agreement contemplated "cured meat." The meaning of this term is to be interpreted by you according to the understanding of the trade at Memphis, if there

any difference between that term as it is used there and at Atchison, Kansas. The agreement was made at Memphis between a purchaser and a broker acting as the agent of the seller, although he may have been the agent of both parties. The meat was to be used in the Memphis market, and I think there can be no doubt that it was to be "cured” according to the understanding of the parties at Memphis. But if the meat was properly cured, and spoiled in transit, where does the loss fall ? I think there is no reasonable doubt, under the decisions of the supreme court of the United States, which I shall call to your attention, that if you find, as there is no dispute, that this meat was not to be delivered to the purchasers until they paid the draft attached to the bill of lading, the ownership remained in the sellers and at their risk until the draft was paid on the third day of November. After that payment, the ownership changed to the purchasers, and the meat was at their risk.

If, therefore, the meat left Kansas properly cured according to the contract, and was spoiled while in transit prior to the third day of November, the loss is that of the seller; but if afterwards, on the purchaser. Dows v. Nat. Exchange Bank, 91 U. S. 619; The Merrimack, 8 Cranch, 317; The Venus, Id. 253; The Frances, Id. 359; S. C. 9 Cranch, 183; The St. Joze Indiano, 1 Wheat. 208. However this point may be found under the English authorities cited by counsel, or the state cases relied on, I am of opinion that the supreme court has ruled the principle as I have indicated. They cite approvingly the sections of Mr. Benjamin's work on Sales, where he criticises and seeks to reconcile the apparent conflict in the cases, and I have no hesitancy in ruling according to the principle thus established, although the cases may not be exactly precedents for this

The older cases arose under the law of prize, and it was estab

one.

lished that where the foreign seller attached as a condition that the goods were not to be delivered until the price was paid, they remained enemy goods, and subject to capture as such. I see no distinction in principle between those cases and this.

In re SMITH, Petitioner, etc.

(Circuit Court, D. Massachusetts. July 26, 1882.)

CRIMINAL LAW-TRIAL-STANDING MUTE-PRACTICE.

The law, section 1032 of the Revised Statutes, which provides that when one who is “indicted” for any offense against the United States stands mute, or refuses to plead or answer thereto, it shall be the duty of the court to enter a plea of not guilty in his behalf, and proceed to try him by a jury, should be liberally construed to bring within its scope persons arraigned upon information or complaints, as well as persons indicted.

Petition for Writ of Habeas Corpus.
E. W. Burdette, for petitioner.

LOWELL, C. J. The merits of this case have been argued on the petition, the allegations of which are admitted to be true. The petitioner was indicted for beating and wounding certain of the crew of the vessel of which he was an officer. Rev. St. § 5347. The district attorney, discovering some misstatements of fact in the indictments, which might be considered variances, discontinued them, and as the grand jury had been discharged, filed complaints under Rey. St. § 4300. The petitioner being called upon to plead, stood mute, by advice of the counsel, and the district judge entered a plea of not guilty, and ordered the issue to be tried by a jury. Against this order the petitioner protested. The jury returned a verdict of guilty, and the petitioner, before sentence, submitted to imprisonment rather than give bail, and brought this petition for habeas corpus.

The argument for the petitioner is that by section 4301 of the Revised Statutes a trial by jury is to be had only when the defendant demands it; and in other cases by the court. This is true of the mode of trial after an issue of fact is made up; but if the defendant refuses to make an issue, the section, like the defendant in this case, is silent.

The petition, therefore, does not raise the question whether the court may lawfully try the issue of fact. The law which dispenses with an indictment for petty offenses on the high seas has been found

very useful both to the goverment and the accused. The district judges who have sat here since this law was first passed in June, 1864, have had very grave doubts of the constitutionality of that part of section 4301 which provides for a trial by the court; and it has been usual to try all contested cases by jury. It has been considered that the law is valid, excepting as to the mode of trial, and up to this time no question has been made about it. For the reason already given the question is not before me, and I shall content myself with saying that I share the doubt whether the legislature can require the court to try the main issue of facts in a criminal case; and that I fully agree that the remainder of the statute is valid and can be availed of, whether that particular feature of it is constitutional or not.

The only question in this case is, what should be the practice when the defendant declines to plead or answer? There is a law which provides that when one who is “indicted” for any offense against the United States stands mute or refuses to plead or answer thereto, it shall be the duty of the court to enter a plea of not guilty in his behalf and proceed to try him by a jury. Rev. St. § 1032. It would seem that this law might be liberally construed to bring within its scope persons arraigned upon information or complaint as well as persons indicted. Such has been the practice in Massachusetts under a similar statute. Ellenwood y. Com. 10 Metc. 222; Com. v. McKenna, 125 Mass. 397.

But there is one course of reasoning which shows conclusively that the petitioner has no just ground of objection to the mode of proceeding in the district court. Formerly the law of England and of the several colonies was that in capital felonies a defendant standing mute was to undergo the peine forte et dure; that is, to be pressed to death in prison. Giles Corey suffered in this way, in Massachusetts, in the time of the witchcraft madness. The punishment was inflicted in England, as I am informed by a learned friend, so late as the early part of the last century.

In 1772 an act was passed in England, which was to extend to the colonies and plantations in America, by which, if any person arraigned upon an indictment for felony or piracy should stand mute, he should be convicted of the felony or piracy, and the court should award judgment and execution as if such person had been convicted by verdict or confession. 12 Geo. III. c. 20. This had always been the law in respect to treason, petty larceny, and misdemeanor. See 4 Bl. Comm. 435; 2 Hawk. c. 30, § 14; 1 Chit. Cr. Law, 424; 1

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