L

GOFF'S ADM'R 11: NORlhlLK & W. R. CO.

299

could bind complainant by: a declaration that the certificates should,:outrank its equitable lien. It is entirely clear that cer-, tificates would not acquir\) a li\Jn prior to the $3,000,000 mQrtgage:,upon' the property included in it when it was recorded, or upon the accessorial improvements and additions. It is not so clear that a- 'purohaser without notice, and for value, would not obtain a paranlount lien lipon the western lines; assuming that the certificates were ,authorized by the order or decree of a competent court in possession of the property at the time by its receivers. But these questions are not properly .here, and cannot be considered under the issues made by the pleadirigs. .The .defendants do not assert in the answer that they are bona fide purchasers of such certificates, but, as has been mentioned, one of them, the l)'nited Lines' 'felegraph Company, sets up title under the foreclosure of the $10,- , 000,000 IIIortgage, and the other, the defendant Stokes, founds his claim upon the sale by Ohio court, which has been set, aside. ,ltmay be gathered from the record that the certificates which were issued by the receivers were subsequently used as ca&h, and applied towards the purchase money at the sale in the foreclosure of the $10,000,000 mortgage. If this were so, the certificate holders would not reqUire any protec;tion, and this is probably the reallon why no attempt has been nmde to pre., sent the defendllnts as certificate holders in the answer. It is noipbstacle to the relief prayed for by the bill that the real estate sough't t() be subjected to the decree lies in another state. It suffices thatthe cq1,1rt has jurisdiction of the persons qf the defendailts, and can compel them to observe its deCree. Mulle:r v. Dows, 94 U. S. 444. A de<;lree is or- ' dered for the Complainant, conformably to the conelusions which have been expressed. If necessary there will'be a reference to a Ill,asterto ascertain what property is to be included in the description of the" reconstructed lines" ip the decree. ' .

·

GOFF'S Am,I'R

v.

NORFOLK

& W. R. Co.

, (Circuit Court,

w: lJ.

Virginia. February 11, 1888.)

1.

,After administrator appointed by a Virginia cou,oty court had qualified , by giving bond without security, the court, in term, made an order permitting him to resign, and on the following day appointed a new administrator, who qualified' by giving bond with security. Held, that the second appointment' was regular. , ,
,SAME..,-ACTION-COURTS--:-FljlDluUL COURTS-JURISDICTION-CITIZENS1lI1'. ,',

ExECUTORS AND ADMINISTRATORS-AppOIl'iTMENT AN'II'REMOVAL.

"'0

9.

, The .fact 'that a citizen Ofanottier state is se.1ectedaiJ administrAtor for the purpose of:coJlfettJng on the United ·8tates circuit court Jurisdiction of an tion to be brought by him. does not defeat that jurisdictIOn. 8.:MAsTEBAND SERVANT-"-RISKS' OF' EliIpLOYMENT-bu!'ANCY. ' , i .It is,an act of negligence on the part of a railrOad company to take·int'o'its' employment as a brakeman a minor of such tender years as not to know tho

ac-

300

FEDERAL REPORTER.

risks of the servIce, If the agent of the company makIng the contract knows that he is a minor. and that the contract is made without the consent of the parents, but notif the agent believea from his statements and his general appearance that he is not a minor.

4.

SAME.

Where plaintiff's intestate enters the employment of defendant as brakeman. with knowledge of the fact that there are overhead bridges on the road, which are dangerous. and of the bridge which caused his death, and. being possessed of sufficient intelligence as to the danger, and how to avoid it. is struck by the bridge while standing upright on the top of a car, plaintiff cannot recover, although his intestate was'a minor. 1

, At Law.

Daniel Trigg, F. S. Blair and D. F. Bailey, for plaintiff. Fulkerdon &; Page. for defendant.
PAUL, J.This is an action oftrespass, brought by J. G. Queesenbury, administrator of Walter Goff, deceased, and commenced Allgust 29, 1887. whJch is the date of the summons sued out at the institution of' the suit. The declaration alleges that the said J. G. Queesenbury is a citizenof the state of Maryland. while it is admitted that his intestate was a citizen of the, state of Virginia. The defendant filesthree pleas in abatement; two of them going to the oapacity of the plaintiff to sue, the third to the of the court. Two of the pleas allege that at the time this action was instituted the plaintiff was not the administraGoff. The third plea is that said administrator is tor of the not a resident ,of the state of Maryland. The evidence shows that at the April term, 1887, of the county court of Wythe county, one Painter qualified as administrator of the estate of said decedent, giving bond as such but without security. On the 12th day of August, 1887 ,saidcounty court, in term, made the following order, shown by a certified copy produced in evidence here now, to-wit: . "Virginia. ' At a court continued and held for Wythe county at the , house, on Friday, 12th August. 1887,-present the same as on yesterday,-upon motion of Henry Painter he has leave to resign the administra. tion of Walter Goff, deed., heretofore committed to him, it appearing that no funds of any kind have come to his hands. Ordered that court be adjourned G. J. HOLBROOK. until to-morrow morning. 100'elock. "A copy. Teste:, E. H. UMBARGER, D. Clerk. ,For WH. B. FOSTER, Clerk of the County Court of Wythe County, Virginia. II On the following day of said court the plaintiff was appointed administratorofsaid Walter Goff, and duly qualified as such by giving bond with security. The:(\ourt is of opinion that at the time the plaintiff was' appointed administrator the powers of the former administrator had been revoked,and thafthe appointment of the plaintiff was regular and legal, aridJhat he, was the legally qualified, representative of the deceased at the date of the institution of this suit. 4nother objection to the jurisdiction of the Gourt is based on the allegation byjhe defendant, and the facts admitted by the counsel for the
lAs to the risks of ,employment assumed by railroad employes, see Railroad Oo.:v. (Ind.) 17 N. E. Rep. 584; Scanlon v. Railroad Co., (Mass.) 18 N. E. Rep. ,209, anil
I" . I'·

.',

',j

<

GOFF'S ADM'R tI. NORFOLK & W. R. CO.

801

plaintiff, that the plaintiff, a citizen of the state of Maryland,' was selected by the friends of the deceased, and requested to qualify as administrator of his estate, in order to give this court jurisdiction of this suit. The court has carefqlly exa.mined all of the authorities cited by counsel. Those chiefly relied on, by counsel for the plaintiff are Childre..qs v. Emory, 8 Wheat. 642; B,onafeev. WiUiams, 3, How. 574; Coal Co. v. Blatchford, 11 Wall. 172; Rice v. Houston, 13 Wall. 66. These cases really have no bearing upon this question, but they all bear upon the question as to the power of a foreign administrator to maintain a suit in a federal court, where the beneficiary and the defendant live in the same state; a question which. was decided by this court at the No:vember term, 1886, in Harper v.Railroad 00., ante, 102. It is not necessary to discuss these au:" thorities further. The authorities relied upon by the defendant are Jones v. League, 18 How; 76; New Hampshire v. Louisiana, 108 U. S. 76,2 Sup. Ct. Rep. 176; New York v. Louisiana, Id. In the case of Jonesv. League it was shown that the plaintiff was not a resident of a state different from that in which the defendants lived. It was a question of the bona fide citizenship of the plaintiff; a very different questiop ,from the now under discussion. The cases of New Hampshire and New York v, Louisiana were cases arising on statutes authorizing citizens of the former states to sue a state in the name of their respective states; the qnestionbeing,as . Chief Justice WAITEputS it: "Whether a state can all ow the use ofits name in such a the benefit of one of its citizens?"-the object plainly being to eV'ade the eleventh amendment to the constitution of the United States, which forbids a citizen suing a state. And it was held the state had no such power. The court fails to see any analogy ofthat case to the question under consideration. In the case before us it is conceded that the plaintiff is a citizen of the state of Maryland. By reason of his citizenship he has a right to resort to the jurisdiction of this court. right is conferred by the constitution and laws of the United States,and this right .cannot be annulled by any agreement or understanding on the part of the relatives of the decedent and the plaintiff that he should qualify as such administrator with a purpose, by reason of his citizenthis court jurisdiction of this suit. The reasons and moship, to tives actuating the real beneficiaries and the administrator in bringing his suit in this court are immaterial. He is authorized by the Virginia statute (chapter 145, Code Va. 1873) to bring this suit. He is the only party that could maintain it. He is officially responsible for the administration of the estate committed to his hands. He is here in accordance with the provisions of the constitution and laws defining tI,e jurisdiction of this court, and he has a right to have his case. peard here, and the objection to the jurisdiction cannot be sustained. The plea in abatement must be overruled .. The case being called for trial, the witnesses examined j upon motion of plaintiff's' counsel the court gave the following instruction:
i

"If the from the evidence that thf' rai_road through its agent, contracted with Walter Goff, the deceased, to work as a' brakeman on said railroad; that said Walter Goff, at the time of said

FEDERAL REPORTER. was a minorot such tender yearhis mIt to know the hazards and risks of the service on which he waS to enter, and that the fact of bis ,being a minor was known to said agent of and that said contract was made,\Vithout the cousent of,the mother, of saiiI Walter (}off, whIch want of consent on' the part was known to saidraiIroad agent,-then the taking of said Walter Goff into the .serviceofsaid company inpursnance of said contractWaB anact6f negligence on the part of said company, and the plaintiff '. ., is entitled to recover in this action."

,And upon motion instructions, to-wit: .

,

the court gave the.following '

,:" The general fule resulting as well of justice as of polieyis that he who engiilges in the employment of another for the pprformance of specifiedduties and serviCPll for compensation. takps upon himself the natural and ordinary risks.and perils incident to the performance of such services.He who enters the services Qf another. withthe machinery, implements, and fixtures of the employer's bUsiness in a given condition, wai ves any claim ,upon the l:lmployer to furnish oth,eror greater safegnards. If, therefore, the jury believe from the evidence that the' deceased entered into the service of the defendant with knowledge of the fact that there were overhead bridges upon the road of defendant, which were dangerous; and if they further believe from the evidencll that the deceased knew of. the bridge in 'question and if they further believe from that the deceased possessed sufficient intelligence to know the danger of such bridge, and to know how t() avpid said danger, then they must llnd for the defendant. "(2) The court further the jury that if they believe from the evidence that "Walter Goff. the deceased, was of years of discretion, while learning the duties of a brakeman passed through the bridge in question, and that he knew the danger of coming in contact ·with the top of said bridge,and that his attention had been called to the danger of injnry from the lowness of the bridge, and that, with this knowledge, he stood upright on the top of the car. so standing waS struck by the bridge and killed, then the said deceased was guilty of contdbutory negligence, and the plaintiff is not entitled to recover. : , . , " "(3) If the deceased knew of tha exposure to danger in serving asa brakeman for defendant upon a tl'sinhaving to pass bridges not sufficiently high to permit him to pass un(jerthe,m, \\'hile standing at full height on the top of a, car; and if he had sufficient intelligl'lwe to understand the danger, and know how to avoid it; and with such knowledge of the danger consented to enter the service of the defendant as such brakeman, aM was killed by coming in contact with the top of one of said bl'idges.-then the plaintiff cannot recover from the defendant by reason of the construction of sitidbridge. "(4) The court further instrnctsthe jur.r that, even if they believe from the evidence that the deceased Was a minor under the age of twenty-one years, yet. that ,8 miMr who takes employment' in a h,azardous position is held by the law to have assumed risks incidt"nt to the service in which, he engages nf which' he has noth'e or knowledge; and thei'efore. if the jury beIievefrofu the evidpnce that Walter Goff; the knew the dang-ers incident to the employment as a brakeman upon defendant's trains; and if th.eyfurther,l:!elleve ·th"t Goffpp$sessed sufficient intelligence t(} comprelwnd .the dangers inci!ient to. servlCe,;. an4,if they fUl'therbelieve that said WalterGoff was inform ed of the danger of passing through the ,j11,tiuestion,..:...then the fact that be was a niinor does not viu'S the law, and hisadminMrator is not entitled to l'ecOver for his d'eatlicauslldlJythebl'idg&. inq Uestion. . , '

UNITED STATES'V. cllUReR 'OF THill IlOLY TRINITY.

803

, r Ie (5)' The 'Cpurt: fu.rthel,'J i,nstl"nctS' the jury that.if t1;u!y ,believefrolp.: t:\le,evi. "dence Walter Goff 'V8$employed by the conductor of the train upon 'Y'hich the accident.occurred as J;lra:keman upoll that at thetiIrili, ,qf said employment the said conductor did not k'now that the,said Walter 'Goff was under twenty-one years of age; and if they furtller beHeve from the 'ev1· dencethatsaid conductor believed from the statements of said Walter Goff, and from his appearance. that he was 21 years of the,defenQant is not chargeable witlJ, negligence by reason of employing the !laid Wl,J-lterGoff as a brakemlln, even if such employment was without the consent of the parents of the said Goff; and the plaihtiffls not entitled to recover by rea,sons Of .the employment of said Walter Goff without'obtlliriing the consent of his parents. " . "(6) The court instructs the jury that the contract for service made by the deceased W. Goff;if he were a minor, with the N. & W.R.R. Co.,throQgh its conduct()r"Jphnston, was, not void but only voidl\ble, at th,e election of the said lIeceased or his mother; and untilthe said contract was so avoided {twas i!.s valid binding upon the de,ceased as if he had b'eellan adult at the time he entered into It; and the plaintiff is not entitled to recover, simplybecl\use the said contl'aCt Was made with a minor." .,

was a verdictfor the defendant..

After argument of counsel, the case was submitted to the jury, and· there .

UNITED

'STATES t7. RECTOR,

ETC.,

OF THE CHURcH OF THE HOLY

TRINITY.

(OircUii Oouri, 8. D.Nmo Y01'k. May 21, 1888.)

1.

mMIGRATION-PERSONS UNDER CONTRA.CT TO. LABO..-CLERGYMEN.

statute entitled" An act to prohibit the importation and migration of foreigners and aliens undercontract or agreement to perform labor in the United States" prohibits theencouraA\:ement of migration of aliens under COntract Or agreement previously,made to pet:form labor or servicl' of any kind in ,States, "imI?o$es a penalty on any person or encouragIng mIgratIOn of an ahen under a contract or agreement prevIOusly made ," to perform labor or service of auy kind, " .and contains a proviso exempting from its, provisions "professional actors, artists, lecturers. OJ; singers. ". The defendant, a religious corporation, engaged an alien residing in England to come here and take charge of its church as pastor. Held, that the corporation,wasliable:to the penalty prescribed. The words "labor or servic:le" of any kind cannot be given a restricted meaning, sO &.Il to exclude the vocation of 'a minister of the gospel, in view of the proviso; which plainly signifies that they are intended to apply to aU who labor In any professional callings not specially exempted.

,9. SA.ME.

At

Seaman Miller, for the demurrer. StqJhefI, A.Walker, p.S. Atty., contra.
WALLAOEjJ.

Law.

On demurrer to complaint.

posed by ,the

This suit is: brought.to recover a penalty of$l,OOQ,imof February 26, l885,{23 St. a.tLarge, 3:32,)