where defendant could rightfully have been sued; but that, if defendant does not thus apply for and obtain this transfer, the action may rightfully proceed to judgment in the county wherein the suit was brought. The district court of Polk county, with defendant's præcipe for appearance filed in this action, might rightfully have proceeded to judgment if defendant did not apply for transfer to Lee county. This must be conceded as the logical force of the Iowa statute. By filing his application to so transfer, the place of trial might, under the statute, have been changed accordingly. Defendant now contends, since Polk county is in the central division and Lee county is in the eastern division of this district, that this right of transfer, which defendant might have exercised under the state statute in the state court, remains to it in the federal court. But counsel do not point us either to any rule of this court, or any provision of federal statute giving this right of transfer as claimed, except section 914, Rev. St., which, in effect, incorporates into the "mode of proceeding" of this court, as it is claimed, this mode of proceeding in the state court. At the threshold of this argument, we encounter the insurmountable fact that this court does not deal with county lines as jurisdictional boundaries; but that the divisions-of which this district has three-are its smallest jurisdictional sections. And the federal statute creating these divisions contains no provision, with reference to removing a cause from one division to another, analogous to the state statute above referred to. Defendant, by electing to remove this cause to this court, thereby deprived himself of whatever right he might have exercised, in the state court, of removal under the state statute.

Defendant further contends that, as neither plaintiff nor defendant is a resident of the central division of this district, defendant has the right to have the cause transferred to the eastern division, in which, and in which alone, in Iowa, lies defendant's road. The petition for removal, filed by defendant in the state court, expressly asks that this cause may be removed into the circuit court of this district, "central division, at Des Moines." Such, under the statute redistricting the state, (section 9, p. 172, 22 St. U. S.,) must have been the effect of an order of removal from the Polk county district court, had not defendant expressly asked such action. While this action was pending in the state court, (if the facts asserted by defendant be conceded to be correctly stated,) defendant might have exercised the right, either (1) to have the place of trial transferred from Polk county to Lee county under the Iowa statute, or (2) to have the action removed from the Polk county district court, to this court in the central division. Defendant elected to exercise the right to remove from the state to the federal court; and the act of defendant in procuring the removal of the cause from the state court, and in filing the transcript in the central division, precludes the defendant from now asserting that the case is now pending in the wrong division, and that it has the right to demand a removal to the eastern division Unless some sufficient reason is presented to move the discretion of the court in a different direction, this cause should be sent to trial in the division in which, on demand of defendant, it entered this court. The facts pre

sented by defendant, as bearing on this point of transfer, are not directed to the discretion of the court, nor are they calculated to impel that discretion to action. The petition for a change of venue to the eastern division is therefore overruled. Defendant is ruled to file answer herein within 30 days from the date of filing hereof.

FINANCE CO. OF PENNSYLVANIA et al. v. CHARLESTON, C. & C. R. Co. Ex parte MOORE.

(Circuit Court, D. South Carolina. March 11, 1892.)

1. RAILROAD COMPANIES-FORECLOSURE OF MORTGAGE-RECEIVERS - PRIORITIES OF LIENS.

The order which a court of equity, on appointing a railroad receiver, makes for the payment of wages due employes for a reasonable period prior to the receivership, is merely a personal protection, given ex gratia to those who depend upon their daily labor for support, and will not cover a claim by a merchant for rations furnished to such laborers, under contract with the company, and for which the company alone is liable, although the company charges the rations to its laborers as part of their wages.

2. SAME.

The claim is entitled to payment before the payment of interest on the mortgage bonds, and if any sums applicable thereto have been paid out for such interest, or for permanent improvements whereby the bondholders have been benefited, the claim will be a charge, to the amount of the moneys so diverted, upon any earnings in the hands of the receiver, or, failing these, upon the proceeds of the sale of the road. 48 Fed. Rep. 188, followed.

In Equity. Suit by the Finance Company of Pennsylvania and others against the Charleston, Cincinnati & Chicago Railroad Company to foreclose a mortgage. Heard on the petition of G. M. Moore, claiming priority of payment for supplies furnished to laborers. For other phases of the litigation, see 45 Fed. Rep. 436, and 48 Fed. Rep. 45, 188. Mitchell & Smith and B. A. Hagood, for petitioner.

A. T. Smythe, opposed.

SIMONTON, District Judge. The petitioner is a merchant at Blacksburg, a town on the line of the Charleston, Cincinnati & Chicago Railroad. In 1890 he entered into a contract with the defendant company to furnish rations to hands employed by it. The company charged these rations to the hands as part of their wages. The items were all charged to the railroad company. The accounts were regularly made out against and presented to the company, audited, and passed. Upon bill filed by the mortgage bondholders, a temporary receiver was appointed on 10th December, 1890. On 26th February, 1891, the permanent receiver was appointed. In the order appointing the permanent receiver is this provision: "That the receiver pay all wages due to the employes at the date of the order appointing a temporary receiver herein for labor or services, within ninety days before the same." The petitioner presents

and proves an itemized account wherein it appears that, within the 90 days before December 10, 1890, he had furnished to the company, under his contract, $321.72; and that prior to that date, from May 14, 1890, he had furnished the rest of the items on his account. The whole account, including both periods, foots up $902.80. He claims that, inasmuch as he furnished rations which were used in part payment of wages to employes, he comes within the equity of this order of 28th February, and that as to the rest of his account he comes within the equity established in Fosdick v. Schall, 99 U. S. 235. As I understand the current of cases which began with Fosdick v. Schall, the rule is this: When holders of railroad bonds, secured by mortgage, come into a court of equity, and ask not only the foreclosure of the mortgage, but also the appointment of a receiver, into whose hands the corporation shall be compelled to deliver all its property, the court, as a condition precedent to granting this last request, can impose terms in reference to the payment from the income during the receivership of such outstanding claims as address themselves peculiarly to the protection of the court. Ordinarily a mortgagor is entitled to the possession of his property until the execution of a decree for foreclosure. When the mortgagor is a railroad company, the employer of many persons on weekly wages, both the employer and employed can enter into engagements relying upon this normal condition. If, therefore, the court, at the instance of mortgage creditors, interrupts the possession of the railroad company, and suddenly removes the employer from control of current earnings, it may well see to it that the employed are not put at a disadvantage, or be made to suffer from this unexpected change. Without considering liens or equities, acting only in its discretion, it imposes upon the suitors, as the condition of granting their request, that such employes be paid, not only accruing wages, but such as have accrued within a reasonable period. This is not a right vested in the employes, or an equity administered in their favor. It is a personal protection given to them by the court ex gratia, moved thereto by the fact that this class depend upon their daily labor for their daily food. Afterwards when the court has assumed the administration of the property, and it appearing that there are certain outstanding claims in the hands of persons who furnished equipment materials, supplies, or anything which was necessary to keep the railroad a going concern, then the court administers an equity, and the benefits of this equity inure as well to the original parties keeping up the road as to their assignees. Trust Co. v. Walker, 107 U. S. 596, 2 Sup. Ct. Rep. 299. In the present case, when the complainants made their application for a receiver, the court took into consideration what conditions should be imposed on the grant of their prayer. These conditions were payment of wages due to the employes within 90 days before 10th December, 1890 There are no wages due. The petitioner did not pay them any wages; did not deal with nor credit them. He furnished the company with goods, charged them to the company, and looked to the company only. There is nothing like subrogation here; and, as the employes themselves are paid, not as a matter of right, but as a matter of grace, nothing to be subrogated

to. Dealing with the interest of mortgagees in railroad property, we encounter vested rights. They cannot be displaced upon any mere idea of right, or on any refined notions of equity. In managing the property, the court is not the owner, nor can it entertain sentiments of benevolence or humanity in disbursing the funds,-luxuries in which the owner alone. can indulge. So much of the petition as prays special priority under the order of 28th February, 1891, is disallowed. The claim comes under the principles laid down in Fosdick v. Schall. We have already passed upon several claims of this character in the intervention of the Pocahontas Coal Co. et al. in the main cause, (48 Fed. Rep. 188.) Let the claim of the present petitioner be included with those claims to the amount proved, $902.80, and share the same fate.

MILLER v. CLARK et al.

(Circuit Court, D. Connecticut. March 12, 1892.)

BILL OF REVIEW-PAYMENT OF COSTS-REASONABLE Delay.

The supreme court dismissed an appeal from the circuit court, with a mandate requiring appellant to pay the costs. Thereafter the appellant, without paying the costs, brought a bill in the circuit court to review its judgment, which was demurred to for want of an allegation that the costs were paid. The court held that this was not a ground of demurrer, but that the proper remedy was to stay proceedings until payment of the costs. No order was asked fixing a time for such payment, and payment was made and accepted by defendant's counsel two months and twelve days thereafter. Held, that the delay was not so unreasonable as to debar plaintiff from filing a supplemental bill alleging such payment.

In Equity. Bill of review by Martha A. Miller against Emma J. Clark and others. For opinion on demurrer to the bill, see 47 Fed. Rep. 850. The hearing is now on a motion to strike out a supplemental bill. Overruled.

John M. Buckingham, for plaintiff.

W. B. Stoddard, for defendants.

SHIPMAN, District Judge. This is a motion to strike from the files the supplemental bill in this case, which alleges the payment of costs, upon the ground that the payment and the supplemental bill were delayed for an unreasonable time. Two other grounds were suggested in the motion, but were not pressed in the argument. In the decision, which was made after the argument of demurrer, and which was filed November 3, 1891, I said that the omission to state the payment of costs in the bill was not a subject of demurrer, for the rule requiring payment of costs was one of procedure, rather than jurisdictional, but could be taken advantage of by a motion to stay proceedings; and also said: "Before a decision upon the other questions contained in the demurrer, proceedings under the bill of review should be stayed until the mandate. of the supreme court has been complied with," etc. No order of stay

was asked for, and therefore no time was fixed for the payment of costs. They were paid January 15, 1892, and the supplemental bill was filed on the next day,-a delay of two months and twelve days. Inasmuch as no order was asked or made fixing the time of payment, and as the defendants' counsel accepted the costs, when paid, I cannot say that this delay debars the petitioner in the bill of review from filing her supplemental bill. The decision upon the demurrer was postponed until this payment should be made or excused. Inasmuch as the case was argued some time ago, if the respective counsel have any views in addition to those which were contained in their briefs, I should be glad to receive them in writing.

SOUTHERN PAC. Co. v. RAUH.

(Circuit Court of Appeals, Ninth Circuit. March 7, 1892.)

1. JURORS-CHALLENGES-EXAMINATION-REVIEW-RECORD.

Under Code Civil Proc. Or. § 187, providing that an opinion already formed by a juror is not alone sufficient to sustain a challenge, but that the court must be satisfied from all the circumstances that the juror cannot try the case impartially, the ruling of the court on the juror's qualifications will not be reviewed unless all of the evidence taken at the examination be presented in the record, although the testimony produced shows the juror to have a fixed opinion on the merits of the cause. State v. Tom, 8 Or. 179, followed.

2. SAME-CHALLENGES.

Under Code Civil Proc. Or. § 231, providing that the point of exception to a juror must be particularly stated, it is not sufficient to challenge for cause without stating the particular reasons for such challenge.

8. SAME-REVIEW.

The discretionary finding of the trial judge in passing upon a juror's qualifications will not be reviewed unless it appears to have been exercised arbitrarily. 4. SAME-EXCEPTIONS.

Rejection, by the court, of a challenged juror for insufficient reasons, is no ground for exception when it appears that the remainder of the jury was made up of persons to whom the excepting party made no objection.

5. SAME-REVIEW.

To base error upon the court's ruling that a juror need not answer as to his prejudice against corporations, it must appear that the party making the challenge was thereby prevented from ascertaining whether the juror had such prejudice as would interfere with his conclusions in arriving at a verdict.

6. PERSONAL INJURIES-EVIDENCE AS TO FAMILY.

In an action for personal injuries it appeared that plaintiff had no external hurt except a slight bruise, but that he had been in bed ever since the accident,-a pe riod of several months. Evidence was admitted without objection that he had a wife and home. Held proper to admit further evidence that he had two children, of seven and five years respectively, not for the purpose of increasing the damages, but as explaining why the members of his family were not called to testify as to his condition during that time, and as tending to show that he was not shamming illness.

7. SAME-MEDICAL EXPERTS-VERDICT.

In a damage suit for personal injuries, where the evidence points to some internal hurt, manifesting itself in symptoms of hysteria, the medical testimony being conflicting, an instruction that the testimony of defendant's witnesses, who had had experience in similar cases, was entitled to the greater weight, is not necessarily disregarded in a verdict for plaintiff, where the latter bad produced other testimony tending to show the serious nature of his injuries.

8. SAME-EXCESSIVE VERDICT.

A verdict for $10,000 for personal injuries to an adult is not excessive where the testimony of the attending physician, corroborated by that of another medical ex