674.

formed

DEPORTER,

volJt60.

that lsnot to be per..

one year .maklng thereof." .Section 3800 'of: the Coder of Georgia provides:
It

.

"That· parOl dict 01\ '"stY:

i

that ,1.mder, the circumstances of the case parol eVidence is COnipetent to c:li'ltnge the character of the deed of 1882 fromR S.Wimberly to John R.Wimberlyinto a mortgage or Of.tl'tl.·,'.a.4. un'de..r Whi,CbH.'. So ,Willl.b..,e.rly really held, as of right, th.e .· .. . . .. . , :rederp,p,tion.lfit is this was true at the assignment of 1886,iJi twmting,:by J., R.Wimberly to Mrs. Tarver, with the admit· ted not procurement, of Henry S. of the equity of 'redemption, and by ltenry S;' Wimberly of Mrs. Tarver'$;Ilote i,n payment therefor, would seem. tohave divested all right and I title of H.. S. Wimberly. If tbis be so, it is clear that the alleged 1'eBeission afterwa:rtls of this transfer of the equity of redemption canJl,otbeset up, by 'parol. It w;as an independent transaction in regard to the land, propositi9n to establish such rescission and t1;l.e:eontinued equityin:H. S.Wimberly by parol is far from being a.Vroposition to sJilowby parol that an equitable interest was reserved,to J;L S. the tim.e he parted with the legal title, or that the absolute deed then executed walJ intended to operate as a mortgage. If we go further, and admit, for the purposes of the case; that there is some equity of redemption still left in Henry S. Wimberly, still, as the validity of the debt of $5,000 secured by the deed'of J. R. Wimberly to Charles L. Flint, and now amounting to about $9,000, and wholly unpaid, is admitted, then, under sections 1969. and. 1970 of the Code of Georgia, which provide that a deed with a bond to reconvey passes the title to the vendee until his debt is paid, it is clear that without payment of the debt the said H. S. Wimberly can assert no title to the land in controversy cognizable eitherina court of law or a court of equity. The decree of July 25, ·1893, appealed from, restraining J. F. F. Brewster, the New England Mortgage lSecurityCompany, and the Union Real-Estate Trust Oompany from taking out and having executed a writ of assisU,tnce on the decree of January 10, 1891, should be reversed, with costs, and the cause remand,ed to the circuit court for such further proceedings not inconsistent with the views herein expressed; and it is IilO ordered.
'.

is

: terms of a valid written" InstrUment."
'

Irrldence 18 :Inadmissible generally to contraI'

. !.,

AMES et at. v. UNION PAC. RY. CO. et al.

(Circuit CoUli, D. Colorado. February 8, 1894.)
No. 3,013.

RAILROAD COMPANIES-RECEIVERS-CHANGING RtrLES AND WAGES.

The court wUl not confirm the action of the receivers of an Insolvent raJlroad system In reducing the wages and changing the regulations for the condUct of Its employes which were in force when the property was

AMES '17. UNION PAC. BY. CO.

675

turned over to the receivers, where the employes affected were not notified of the proposoo ,changes, and given an opportunity to point out, before the receivers, any inequalities or injustice that wllI be caused by them.

In Equity. Petition filed by Oliver Ames, 2d, and others, receivers, against the Union Pacific Railway Company and others.
The receivers herein appear by petition, and state that, by their general order No.1, they have retained in their employment all of the officers, employes, agents, and servants who had been theretofore in the employment of the corporations defendant, but that such employment had ceased, and a fresh engagement began, when the defendant companies went into their hands; that because of the general decIlne of the earning capacity of the company's system of railways, and of the task imposed upon them of ,conducting the insolvent trust estate in tbeircare in as economical manner as possible, they investigated the rules, regulations, and schedules governing their employes prior to the time' the companies came into their hands,as also the wages paid, and made a comparison with the wages paid upon otber railway systems similarly situated, and found that the wages they paid were in excess of the prevailing rates paid for similar classes of labor in a like region of country. The receivers pray for an order sustaining them in their revision and rearrangement. of the rules, regulations, schedules, and wages of the nonsalaried employes, as promulgated, and that the employes be directed to refrain from conspiring with intent to induce a strike upon the system of railways operated by the receivers.

J. M. Thurston, for receivers. T. Fulton Gantt, John H. Croxton, and George L. Hodges, for defendants. Before HALLETT and RINER, District Judges. RINER, District Judge. In the matter of the petition filed by the receivers of the Union Pacific system in relation to certain proposed schedules affecting the employment of men engaged in the service of the various railway and telegraph lines composing that system, now in the hands of the receivers, we are of opinion that it is necessary to the proper and economical management of the property now under the control of the receivers to adopt and maintain rules, regulations, and schedules governing the conduct, employment, and establishing the wages of all persons employed in the service of the receivers, in and about the management, operation, and conduct of the business in relation to these railways and properties. It appears by the pleadings in this case that, prior to the appointment of the receivers, certain rules, regulations, and schedules, the result of negotiations between the managers and employes of the various railway lines entering into and composing the Union Pacific system, touching the matter set forth in the petition, were in force, and were recognized and acted upon by the employes and managers of the railway companies composing this system., Our own view is, if the receivers deem it advisable and necessary to the proper and economical management of the properties in their hands that rules, regulations, and schedules different from those in force at the time the property came into their hands should be adopted, that a hearing upon the question of proposed changes thought necessary by the receivers be had, in the first instance, betore the receivers; that the employes affected by any proposed

676

FEDERAL REPORTER,

vol. 60.

chrunge; be notified, and be given time and opportunity to point out 1:1>' i;)le receivers any inequality in schedules, or any inj'Q.$tice which they may think will be done them by any proposed change the rules and regulations. If, after such negotiation and consUltatIon, the receivers and employes are unable to agree as to any proposed rule, regulation, item, 'or items of the wage schedules prothe mattersO! difference be referred to the court for final dete!'llill)ation. If thil1l' course' pursued, the result, in our judgment, will be that after a full consultation and discussion of these mattersjbetween the receivers and employes (meeting, as they will, in a spiI'it of fairness upon both sides, determined to do the right thing, existing cOi).di;tions), very little will be left to the determination ofthe court, to this matter. This course not having been pursued in this instance, we deem it advisable to deny the of the petition of, the '. recei",ers; and an, order to that ef· fect will he entered in this district, and in the district of Wyom.ing.' ,',
SHWARTZet Ill. v. H. B. OLAFLIN CO. KERN et al. v. SAME.

(Oircul.t Court of 4;ppeals, Fifth Oircuit.

December 23, 1893.)

No. 159.

1.

DESCENT AND DrSTRmUTION-'-LIABILITY OF HEIRs-ABATEMENT.

Under Code Pr. La. art. 120, which declares that, upon death of a defendantpending suit, the SUit'shall' not abate, but shall be e<intinued against h18 by notice 9n them, but that, judgment can only be given agaiJU\t for, Ais, ,of the Inheritance" It Is error to render judgment tbe heirs in solido on service of notice, but without appoorallce by them, or' entry of default against them, or submission to a jury of any issue as'to their heirship and respomslbility. in the federal courts shall dissolved by any cause which would dissolve similar attachments ·. in the state courts, an attachment is dissolved in Louisiana by an acce'vted cesSion of the attached property to creditors under the insolvency 1,aws of that state. '
·

2.

ATTACHMENT-DISSOLUTr01lr-INsor,VENCY-FEDERAL COURTS. Under Rev. St. U. S. §. 9sa, dec1aring that attachments

8. B..U IE-PLEADING.

Such a dissolution of. an attachment maY be pleaded by the insolvents and by interveners who, claim the attached property as purchasers prior to the cession, as well as by the syndic.

In Error to the Circuit Court of the United States for the East· ern District of Louisiana· . Attachment by the H. B. Claflin Company against H. Kern & Son. An intervention :was filed by A. Shwartz & Sons. Plaintiff obtained a .personal judgment. Defendants and interveners bring error.
Suit was brought by the H. B. Claflin Company against H. Kern & Son, in the circuit court, of the Untted States, to recover $21,728, due the plaintifl' on certain. notes. A writ of attachment issued, under Which the marshal seized the stock' of goods in the store formerly occupied by defendants. Shwartz & Sons were also made as' alleged debtors of Kern & Son. On the 23d of 1892, the day after theseiztire, Shwartz & Sons filed a