secretary of said company, and filed in the office of the clerk of the county where the business of the company shall be carried on, and if any of said company shall fail to do so all the trustees shall be jointly and severally liable for all the debts of said company then existing, and for all that shall be contracted before said report shall be made. No liability shall attach to any trustee, or board of trustees, by virtue of the provisions of this section, for a failure to cause to be published in a newspaper the report in this section mentioned, if within the time herein mentioned, the said trustee, or board of trustees, or company shall annually cause said report to be filed in the office of the clerk and recorder of the county in which the business of the said company is carried on, as declared in its certificate of incorporation." Comp. Laws, p. 728, § 460.

The defendants have pleaded to the jurisdiction on the fellowing grounds, namely:

"(1) Because the action was brought by the plaintiff as assignee of three separate and distinct causes of action, neither one of which amounts, without interest and costs, to the sum of two thousand dollars, and neither one of which could have been brought within the jurisdiction of this court by the assignor. (2) Because the sum or amount, viz. two thousand dollars, required to give jurisdiction of this action to this court, is made up by illegally joining three several counts for less amounts, each of which sets up a separate and distinct cause of action, not arising out of the same transaction, and in no way related to each other, and not proper to be joined in the same action. (3) Because the complaint is an attempt to enforce in this court a penal statute of the state of Montana, which can only be enforced in the courts of that state, and of which this court will not entertain jurisdiction. (4) Because the rights, such as they are, of the several assignors, mentioned in said complaint, to the benefits of the Montana statute, are not assignable, and do not follow the alleged assignments to the plaintiff of the said rights of action against said Obelisk Mining & Concentrating Company."

Counsel for defendants, in support of the first point, cited section 629, Rev. St. 1878, as amended by the act of August 13, 1888 (25 Stat. 433, c. 866), which provides that the circuit court shall not "have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of any assignee, # unless such suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made." It has been repeatedly held that the restrictions as to amounts and as to suits by assignees are distinct and independent in language and purpose; that the intent of all the legislation since the enactment of the judiciary act of 1789 has been, by the provision as to amounts, merely to prevent the dockets of the federal courts from being crowded with small cases, and, by the provision as to assigned choses in action, to prevent the creation of jurisdiction by the transfer of claims held by a citizen of the same state with the debtor to a citizen of another state. Stanley v. Board (C. C.) 15 Fed. 483; Hammond v. Cleaveland (C. C.) 23 Fed. 1; Bernheim v. Birnbaum (C. C.) 30 Fed. 885; Chase v. Roller-Mills Co. (C. C.) 56 Fed. 625.

In Bowden v. Burnham, 8 C. C. A. 248, 59 Fed. 752, Judge Caldwell, delivering the opinion of the court of appeals, said:

"When the plaintiffs had acquired, in good faith, from citizens of states other than the state of which the defendants were citizens, claims amounting in the aggregate to $2,000, they had a right to sue the defendants on all of such claims in one action in the circuit court, although no one of the claims amounted to $2,000. The requisite amount and the citizenship necessary to confer the jurisdiction are united in the plaintiffs, and the jurisdiction is not

affected by the fact that the several assignors of the claims could not have maintained separate suits thereon because the claim of each was less than $2,000 in amount."

The complaint alleges that the assigned claims originally belonged to citizens of the state of Montana, and they together aggregate more than $2,000.

The second point, namely, misjoinder, was disposed of by Judge Shipman on a prior hearing, on motion for leave to amend the complaint by the addition of a third count. 83 Fed. 982. Judge Shipman was of the opinion that "these statutory claims arose out of the same transaction, that is, the same neglect, and that, being owned by one person, they can be proved in one complaint."

The third point raises the question whether said statute is penal, so as not to be enforceable outside the state of Montana. It is unnecessary now to consider what the law may formerly have been in the federal courts or what may now be the law in the state courts. In Huntington v. Attrill, 146 U. S. 676, 13 Sup. Ct. 231, 36 L. Ed. 1131, the supreme court of the United States says that as such a statute "gives a civil remedy at the suit of the creditor only, and measured by the amount of his debt, it is, as to him, clearly remedial. To maintain such a suit is not to administer a punishment imposed upon an offender against the state, but simply to enforce a private right secured under its laws to an individual. We can see no just ground, on principle, for holding such a statute to be a penal law, in the sense that it cannot be enforced in a foreign state or country." See, also, Whitman v. Bank, 28 C. C. A. 404, 83 Fed. 288. Counsel for defendants contends that the supreme court of Connecticut decided in Mitchell v. Hotchkiss, 48 Conn. 1, that such a cause of action was penal, and that this court is concluded by said decision. But that case only holds that the cause of action does not survive against the administrator, and that decision is not necessarily inconsistent with the opinion of the court in Huntington v. Attrill, supra. The Connecticut statute, which was considered in Mitchell v. Hotchkiss, like that of New York, which was considered in Huntington v. Attrill, is penal in the provision for the punishment of the corporate officer who intentionally neglects or refuses to file the statutory notice. Therefore, "as the statute imposes a burdensome liability upon the officers for their wrongful act, it may well be considered penal, in the sense that it should be strictly construed." Huntington v. Attrill, supra. Bút the Montana statute does not impose a burdensome responsibility for a wrongful act. For the benefit of the creditors of the corporation, it provides that, if any such corporation shall fail to file a report, all the trustees shall be liable. In short, it merely makes such trustee liable in case of loss by reason of his failure to watch the other officers, and see that they perform their statutory obligations. And as this provision "gives a civil remedy at the private suit of the creditor only," etc., "it is as to him clearly remedial." Huntington v. Attrill, supra. Such a transitory statutory right of action can be enforced in another state, where it does not substantially conflict with the public policy of such state. Dennick v. Railroad Co., 103 U. S. 17, 26 L. Ed. 439; Railroad Co. v. Cox, 145

U. S. 604, 12 Sup. Ct. 905, 36 L. Ed. 829; Stewart v. Railroad Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537; Railroad Co. v. Doyle, 60 Miss. 983; Whitford v. Railroad Co., 23 N. Y. 465; McDonald v. Mallory, 77 N. Y. 547. The whole question is exhaustively discussed in Huntington v. Attrill. It has been found impossible to distinguish the principles therein involved from those in the case at bar. See, also, Fitzgerald v. Weidenbeck (C. C.) 76 Fed. 695. Even if the decision in Mitchell v. Hotchkiss, supra, is inconsistent with the decision in Huntington v. Attrill, the authority of the latter case must prevail. There the court holds that the question whether such a statute is penal or remedial is one not of local, but of international, law, and adds as follows:

"In this country, the question of international law must be determined by the court, state or national, in which the suit is brought. If the suit is brought in a circuit court of the United States, it is one of those questions of general jurisprudence which that court must decide for itself, uncontrolled by local decisions. Burgess v. Seligman, 107 U. S. 20, 33, 2 Sup. Ct. 10, 27 L. Ed. 359; Railway Co. v. Cox, 145 U. S. 593, 605, 12 Sup. Ct. 905, 36 L. Ed. 829."

The fourth point raises the question whether the liability under the statute follows the assignment of the choses in action. The original choses in action are assignable, and the assignee may sue thereon in his own name, under the provisions of the statutes both of Montana and Connecticut. Sections 1351 and 1981 of the Civil Code of Montana provide as follows:

"A thing in action arising out of the violation of a right of property or out of an obligation may be transferred by the owner."

"The right arising out of an obligation is the property of the person to whom it is due and may be transferred as such."

Section 587, Code Civ. Proc., provides as follows:

"An action, or cause of action, shall not abate by death, or other disability of a party, or by the transfer of an interest therein, but shall in all cases where a cause of action or defense arose in favor of such party prior to his * * transfer of interest therein survive and be maintained by his representative or successors in interest; and in case not begun may be begun by his successor."

The Connecticut statute (Gen. St. p. 234), as to suits by assignees, is as follows:

"Sec. 981. The assignee and equitable and bona fide owner of any chose in action, not negotiable, may sue thereon in his own name; but he shall, in his complaint, allege that he is the actual, bona fide owner thereof, and set forth when and how he acquired title thereto."

It is unnecessary to decide whether the naked right to enforce this statutory liability would be such a chose in action as to be the subject of assignment, or whether there is any conflict on this point between the law in the federal and state courts. The assignee herein has brought this action, not by virtue of the assignment of a right to enforce a penalty, but as the assignee of the notes and judgment sued on, and of the debts evidenced thereby; and, when the debt itself is assigned, the assignee thereby acquires the right to secure the benefit of such statutory remedy. Brackett v. Griswold, 103 N. Y. 425, 9 N. E. 438; Stokes v. Stickney, 96 N. Y. 323; Bolen v.

Crosby, 49 N. Y. 183; Bonnell v. Wheeler, 1 Hun, 332, 338. As such assignee, he acquires the right to every remedy available to his assignor. Hill v. Frazier, 22 Pa. St. 324. In Fitzgerald v. Weidenbeck, supra, the court, construing the statute in question, said: "We see nothing in the nature of the claim itself which prevented the holder from assigning it. It was not, as the defendant insists, a mere penalty. It was a debt from the company to Frasier, which he might transfer like any other debt, and the assignee was entitled to all the remedies for its recovery which the original creditor would have had."

The validity of the assignment is governed by the law of the state where the liability arose, and which is the domicile of the assignor and assignee; and, so far as the right and interest of the assignee to the thing assigned is concerned, the federal courts and the courts of this state will recognize and follow the law of such foreign state. The demurrer is sustained.

STERNENBERG et al. v. MAILHOS et ux.

(Circuit Court of Appeals, Fifth Circuit. January 9, 1900.)

1. APPEAL-RECORD.

No. 869.

Instructions printed in a transcript on appeal as having been given, or asked and refused, on the trial, but which are not contained in any bill of exceptions, or in any manner authenticated by the trial judge, do not constitute a part of the record in the case.

2. SAME-BILL OF EXCEPTIONS.

To enable an appellate court to review exceptions to the giving or refusal of instructions, the bill of exceptions should contain a sufficient statement of the evidence to show whether or not such instructions were applicable to the case before the jury.

8. SAME QUESTIONS PRESENTED BY RECORD-PRESUMPTIONS.

Where the record on appeal fails to show that it contains all the evidence, the presumption is that there was evidence which justified the court in refusing to direct a verdict.

4. WRONGFUL DEATH-ACTION BY PARENTS-DAMAGES-LOSS OF SERVICES. Under the Texas statute (Rev. St. 1895, art. 3017) giving a right of action for actual damages on account of injuries causing the death of any person, when caused by the negligence or wrongful act of another, the parents of a minor may recover in such an action for the loss of services of the deceased during minority, although he was instantaneously killed.

In Error to the Circuit Court of the United States for the Eastern District of Texas.

The following statement is agreed to: On the 16th day of September, 1898, plaintiffs in error were the owners of a steam sawmill and plant located in Hardin county, Tex.; and in connection therewith they owned a tram road running from the mill into the forest, with which they supplied their mill with sawlogs. The tram car was supplied with rolling stock, such as a steam engine or locomotive and log cars. The log cars were about 30 feet in length, and were so constructed that they could be fastened together by means of a coupler on each end. On the last-named date the deceased, Robert Mailhos, was employed by plaintiffs in error in the dual capacity of fireman and brakeman; and, while engaged as a brakeman, in an effort to couple together two cars loaded with logs he was so crushed that he instantly died. On the 20th day of March, 1899, Dominique Mailhos, father of the deceased, for himself and for the use and benefit of his wife, Christie Mailhos, began this suit against

plaintiffs in error for the sum of $12,000 actual damages, and $5,000 exemplary damages. Plaintiffs' first amended original petition, upon which they went to trial, contained two counts as a basis for the recovery of actual damages, as follows: "(1) Plaintiff says that it was negligence on the part of defendant, their agents and servants, in loading and placing said logs on said cars in the manner and position in which they were placed thereon, for he says that on said cars the logs, which were twenty-eight feet, were so loaded and in such a position that the ends of the same projected over the ends of said cars to such an extent that it rendered dangerous an attempt to couple together said cars, as was necessary in the prosecution of said business, as before mentioned, and whereby the lives of the defendants' employés and servants whose duty it was to go between said cars for the purpose of coupling together the same were greatly endangered." The other count for actual damage is as follows: "Plaintiff further alleges that defendants' said roadbed and track at the time when and place where said Robert Mailhos was killed was defective and in bad repair, and in a dangerous and unsafe condition, in that at said place said track was very unlevel, one side being much lower than the other, and that there was not sufficient support, by means of cross-ties or otherwise, under the rails of said track, to keep the same in a steady and safe position and condition, but, on the contrary, the rails of said track at said point, on account of the unlevel position and condition of said track, and on account of the insufficient support under said rails, and consequent depression in the roadbed, were very unsteady, unlevel, loose, and unsafe for the operation of said engine and cars over the same; that on the occasion aforesaid, while plaintiff's said son, in the discharge of his duty as brakeman, and in obedience to the orders of said engineer, was attempting to couple one of said cars to another, then being run back for that purpose by said engineer, and just as said car being run back passed over the rails at said point, and just as the drawheads of said cars were about to meet and join together in the usual and proper manner, whereby the said Robert Mailhos could have made the coupling with safety (he having gone between said cars for the purpose of making said coupling), one of the rails on the lower side of said track, by reason of the unlevel position of said roadbed, and the want of the proper and necessary support under said rails, and depression in said roadbed consequent therefrom, immediately sank down below its usual and proper place and position, whereby and on account of which the drawheads of said cars failed to meet and join together, but, instead, said drawheads passed one under the other, thereby permitting said cars and logs to run and jam together while plaintiffs' said son was between the same, whereby said plaintiffs' son. without fault or negligence on his part, was caught between said cars and logs, and thereby crushed and mangled and instantly killed; that the defendants well knew of the defective, unlevel, unsafe, and dangerous condition of said roadbed and track as before set out, or by the use of ordinary care could have known of the same; that it was no part of the duty of plaintiff's said son to inspect, repair, or in any manner look after the condition of said road, and that his said son at said time was a young, inexperienced boy, of immature judgment, and never knew of the dangers attendant upon his duties in coupling together said cars, and never knew of the dangerous condition of said track and roadbed at said time and place when and where he was killed, and had never been warned by defendants of the same; that, while he had been in the employ of the defendants for several years previous to his death, he had only acted in the capacity of fireman and brakeman, or either, for about ten days previous to his death." The count alleging gross negligence as a predicate for exemplary damages, after the testimony was all in, was abandoned by plaintiffs, and formed no part of the issues submitted to the jury. That count was as follows: "Plaintiff alleges that defendants were grossly negligent in having and keeping in their employ said engineer, Bud Herrington, who, plaintiff alleges, was an incompetent, unskillful, and reckless engineer, and that defendants well knew that said engineer was incompetent, unskillful, and reckless, and unfit for and unsafe to operate and control said engine, but, notwithstanding their knowledge of said fact, said defendants kept said engineer in their employ, and permitted him to operate, run, and control their said engine, and placed the said Robert Mailhos under him, as fireman on said