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p. 488.

cerning which it desires instruction for the as shown in published tariffs, the said railproper decision of such case. 26 Stat. at way company agrees to transport 2 cars. L. 826, chap. 517, U. S. Comp. Stat. 1901, loaded with cattle (number of cars, number

of waybill, and number of animals as noted Accompanying the certificate is a detailed above), from Robertson to U. S. yds. constatement of the case as disclosed by the signed to Drumm Com. Co.; and the said evidence. It is well to give that statement first party, in consideration thereof, agrees in full. It is as follows:

to deliver the said animals to the said rail

way company, for transportation between The judgment which the writ of error | the points aforesaid, upon the following challenges was rendered after a trial and a terms, viz.: verdict of a jury for $5,000 damages caused That whereas, the said first party, before to the defendant in error, who will hereafter delivering the said animals to said railway be called the plaintiff, by the negligence of company, demanded to be advised of the the servants of the railway company, the de- rate to be charged for the carriage of said fendant below, in the operation of a cattle animals, as aforesaid, and thereupon was train, in the caboose of which the plaintiff offered by the said railway company alterwas riding under this contract:

native rates proportionate to the value of

the said animals, such value to be fixed and Burlington Route. Live-Stock Contract.

declared by the first party or his agent, and

Whereas, such alternative rates are made Issued by Chicago, Burlington, & Quincy Railway Company.

in pursuance of the provisions relating Agents of this company are not author- thereto of the classification of freights ized to agree to forward live stock to be adopted as regulations by the said railway delivered at any specified time or for any company, and fully set forth as follows, to

wit: particular market. Agents will permit only the names of the

Live Stock.-Ratings given above are owners or bona fide employees, who accom

based upon declared valuations by shippers, pany the stock, to be entered on the back not exceeding the following: of the contract without regard to passes al. Each horse or pony (gelding, mare, or stallowed by number of cars.

lion), mule or jack

$100 00 The contract, when indorsed by the per- Each cow.

Each ox, bull, or steer.

50 (10

30 00 son or persons in charge and signed in ink Each calf

10 00 by agent, will entitle such person or persons Each sheep or goat..

Each hog...

300 to ride on same train with stock to care for same, but will not entitle holder of contract When the declared value exceeds the to ride on any other train, nor will contract above, an addition of 25 per cent will be be accepted for passage on any passenger made to the rate for each 100 per cent or train.

fraction thereof, of "additional declared Conductor of freight train must punch valuation per head;" which said alternative contract, or, in absence of punch, will in- rates are fully shown in and upon the regudorse his name on back of contract, when lar tariffs and classifications printed, pubpresented for passage.

lished, and posted by the said company as. Live-stock contracts are not good for re-required by law, and turn passage. Parties entitled to return Whereas, the first party, in order to avail passage will be provided with return ticket himself of said alternative rates, and to seon application to proper office. Conductors cure the benefit thereof, has declared, and will be held strictly responsible for permit-does hereby declare, said animals to be of ting persons to ride on stock contracts ex- the value as follows, to wit: Each steer, cept when in charge of live stock.

value, $50.00

To which value the rate aforesaid is proNo. of waybill. No. and initial No. of animals

of car.
in each car.

portioned by the classifications and tariffs 50043Q

17

aforesaid. 16168Q

17

Now, in consideration of the premises and Read the Contract.

of the foregoing, it is expressly agreed that Robertson, Mo., Station. for all purposes connected with, resulting This contract, made and entered into this from, or in any manner growing out of, this 26 day of Sept., 1903, by and between Ed contract, and the transportation of the said Williams of Robertson, of the first part, and animals pursuant thereto, the value of the the Chicago, Burlington, & Quincy Railway said animals and of each thereof shall in Company, of the second part.

no case exceed the said valuation. Witnesseth, That for and in consideration It is further agreed in consideration of of 237 per cwt., subject to minimum weights' the alternative rate so made by the said rail

10 00

43

way company and accepted by the first par- It is agreed that the said animals are to ty, that in case of loss or of damage to said be loaded, unloaded, watered, and fed by the animals, whether resulting from accident owner or his agent in charge; that the secor negligence of said railway company, or ond party shall not be liable for loss from its servants, the said railway company shall | theft, heat, or cold, jumping from car, or not be liable in excess of the actual loss or other escape, injury in loading or unloading, damage; and in no case shall the said rail- | injury which animals may cause to themway company be liable in any manner in ex-selves or to each other, or which result from cess of the agreed valuation upon each ani- the nature or propensities of such animals, mal lost or damaged. Nor shall said rail- and that the railway company does not way company be liable for loss or damage agree to deliver the stock at destination at after delivery to any connecting line, nor any specified time, nor for any particular for any loss or damage not incurred upon its market. own line; but, nevertheless, in the event Witness the name of the railway company that the said animals are to be transported by its agent, and the hand of the first party, beyond the line of the railway of the second the day and year first above written. party upon and by any connecting line

Chicago, Burlington, & Quincy forming a part of the system known as the

Railway Company, "Burlington System," then it is expressly

By C. M. Holt, Agent. understood and agreed that this contract Ed. Williams, Shipper. shall be for, and shall inure to the benefit If this contract is for two or more cars, of, the corporation operating such connect- and is presented to the company's agents ing line, and such connecting line shall be at the below-named addresses within 3 days liable to perform all the obligations of this from date, it may be exchanged for a return contract.

pass for the above-named party in charge, It is further agreed that the said railway it being distinctly understood that said pass company shall in no case be liable for any must be used the same day as issued. loss or damage to said animals unless a Atchison, Kans., General Agent's Office. claim shall be made in writing by the own- Beardstown, Ill., Local Freight Agent's er or owners thereof, or his or their agents, Office. and delivered to a general freight agent of Burlington, Iowa, Division Freight Agent's the said railway company, or to the agent Office. of said railway company at the station from Chicago, Ill., General Freight Office, which the animals are shipped, or to the Union Stock Yards. agent at the point of destination, within

The defendant pleaded that it was exempt ten (10) days from the time the said ani

from liability for damages to the plaintiff mals are removed from the cars. And, in case of loss or damage upon any connecting by virtue of the italicized paragraph of the line, such connecting line shall not be in any foregoing agreement. At the close of the line, such connecting line shall not be in any trial there was substantial evidence that manner liable unless claim shall be made in like manner in writing to such general offi- negligence of the defendant's servants in the cer or agent of such connecting line. And in consideration of free transporta- relative to the contract between the parties

operation of the cattle train, the evidence tion for one person, designated by the first for the free transportation of the plaintiff party, hereby given by said railway com

was uncontradicted and it established these pany, such persons to accompany the stock, facts: The plaintiff resided at Robertson in it is agreed that the said cars, and the said the state of Missouri. He had been engaged animals contained therein, are and shall be in dealing in and shipping cattle in that in the sole charge of such persons, for the state for eighteen years, had frequently purpose of attention to and care of the said made contracts of the character of that animals, and that the said railway company here in evidence, and was familiar with shall not be responsible for such attention this agreement, and with the rates and and care; and, further, that the second par- terms upon which the railway company ty shall not be liable to the first party, or transported cattle from Robertson to the any of his servants, agents, or copartners, city of Chicago. The defendant operated or other person, carried pursuant to this regular passenger trains and carried passencontract, for any injury or damage, from gers thereon between these stations for a whatever cause, suffered or incurred while regular fare of about $12. The danger of being so carried. And the first party agrees accident and injury to one riding in the that, before setting out upon the journey, caboose of a cattle train is about four times he will fully inform each of the persons to the danger to one riding in a coach of a be carried pursuant hereto of the provisions passenger train. The defendant offered to of this contract in this regard.

carry and did transport cattle from Robert27 S. C.-36.

son to Chicago and between other places on court may properly decide the issues of law its railroad, and assumed the entire respon- presented it desires the instruction of the sibility and care of them during the trans- Supreme Court of the United States upon portation, without furnishing free transpor- the following question: tation to the shipper or any of his agents, Where the owner of cattle has the option and without any agreement that he or any to ship them to market at the same rate of his agents should water, feed, or give care without free transportation for himself or or attention to the cattle during the trans- his agents on the cattle train, to throw the portation, for the same price and rate as it entire responsibility of the care of the cat. charged and received in cases in which the tle during the transportation upon the railowner or his agent received free transporta- | road company, and to travel to the market tion upon the cattle train and agreed to town on a passenger train of that company assume the responsibility of the care of the for the regular fare, or to accept free transcattle and the risk of his own injury while portation to the market town upon the catriding upon the freight train, as he did in tle train which carries his cattle, to assume the contract in evidence. The railway com

The railway com- the responsibility of their care during the pany preferred to carry and care for the transportation, and to agree that the rail. cattle without furnishing transportation to road company shall not be liable to him for anyone upon the freight trains, but never any injury or damage which he sustains theless it offered to provide, and, when de- while he is being so carried, and, without sired, did provide, free transportation on the request, requirement, or constraint, he volcattle train for one person for every two untarily chooses the latter alternative, is cars shipped upon the terms specified in the his contract that the railroad company shall italicized paragraph of the agreement. Cat. not be liable to him for such injury or damtle were shipped each way. The railway age valid? company charged and received the same rate whichever method was adopted, and left the Messrs. 0. H. Dean, W. D. McLeod, Hale shippers free to make their choice. The ma. Holden, H. C. Timmonds, and O. M. Spencer jority of the shippers accepted the free for Chicago, B. & Q. R. Co. transportation on the train with their cat- Messrs. John H. Denison, Timothy J. Buttle, and agreed to care for them and to hold ler, John Hipp, Ralph Talbot, D. C. Allen, the company exempt from liability for any and Sandusky & Sandusky for Williams. injury to themselves while they were riding on the freight train. The plaintiff and oth- Mr. Justice Harlan delivered the opinion er shippers had the option to ship their of the court: cattle without free transportation for any- In Jewell v. Knight, 123 U. S. 426, 432, one, and to throw the entire care of the cat- | 434, 435, 31 L. ed. 190–194, 8 Sup. Ct. Rep. tle on the company, or to accept the free 193-196, the court had occasion to detertransportation and to make the agreement mine the scope of those provisions of the to care for their cattle during the trans- Revised Statutes

Statutes which authorized the portation, and to exempt the defendant from judges of the circuit court in any civil suit liability for their injuries while riding on or proceeding before it, where they were the cattle train. The plaintiff was not re- divided in opinion, to certify to this court quested, required, or constrained to accept the point upon which they so disagreed. the free transportation upon the cattle

the cattle Rev. Stat. $ 650, U. S. Comp. Stat. 1901, train upon which he rode, to assume the p. 527; Rev. Stat. $$ 652, 693. Speaking care of the cattle during their carriage, or by Mr. Justice Gray, this court held that to ride on the cattle train and to agree that each question certified must be a distinct the defendant should not be liable for his point or proposition of law, clearly stated, injuries while he was so carried, but he did so that it could be definitely answered withso voluntarily because he wished to accom-out regard to other issues of law or of fact pany his cattle to Chicago and to sell them in the case. It said: “The points certified there. In this state of the case the trial must be questions of law only, and not quescourt denied the request of counsel for the tions of fact, or of mixed law and fact, — not defendant to instruct the jury to return a such as involve or imply conclusions or verdict in its favor, an exception was taken judgment by the court upon the weight or to this ruling, and it was assigned as error. effect of testimony of facts adduced in the And the circuit court of appeals for the cause.'

cause.' ... The whole case, even when eighth circuit further certifies that the fol- its decision turns upon matter of law only, lowing question of law is presented by the cannot be sent up by certificate of division.” assignment of errors in this case, that its In that case the general creditors of one of decision is indispensable to a determination the parties sought to set aside, as fraudu. of this case, and that to the end that this lent, a warrant of attorney to confess judg.

ment. The court further said: "The state. Ct. Rep. 167 (which was the case of cerment (embodied in the certificate and oc- tified questions from a circuit court of apcupying three closely printed pages in the peals), the rule as announced in the Rider record) of what the judges below call 'the Case was affirmed. To the same effect are facts found' is in truth a narrative in detail Graver v. Faurot, 162 U. S. 435, 436, 40 L. ed. of various circumstances as to the debtor's 1030, 1031, 16 Sup. Ct. Rep. 799; Cross v. pecuniary condition, his dealings with the Evans, 167 U. S. 60, 64, 42 L. ed. 77, 78, parties to this suit and with other persons, 17 Sup. Ct. Rep. 733; McHenry v. Alford, and the extent of the preferred creditors' | 168 U. S. 657, 658, 42 L. ed. 616, 617, 18 knowledge of his condition and dealings. It Sup. Ct. Rep. 242. is not a statement of ultimate facts, leaving The present certificate brings to us a nothing but a conclusion of law to be question of mixed law and fact, and, subdrawn; but it is a statement of particular stantially, all the circumstances connected facts, in the nature of matters of evidence, with the issue to be determined. It does not upon which no decision can be made without present a distinct point of law, clearly statinferring a fact which is not found. The ed, which can be decided without passing main issue in the case, upon which its de- upon the weight or effect of all the evidence cision must turn, and which the certificate out of which the question arises. The quesattempts in various forms to refer to the tion certified is rather a condensed, argudetermination of this court, is whether the mentative narrative of the facts upon which, sale of goods was fraudulent as against the in the opinion of the judges of the circuit plaintiffs. That is not a pure question of court of appeals, depends the validity of law, but a question either of factor of the live-stock contract in suit. Thus, pracmixed law and fact.

Not one of tically, the whole case is brought here by the questions certified presents a distinct the certified question, and we are, in effect, point of law; and each of them, either in ex- asked to indicate what, under all the facts press terms or by necessary implication, in- stated, should be the final judgment. It volves in its decision a consideration of all is, obviously, as if the court had been asked, the circumstances of the case.

generally, upon a statement of all the facts, "They are mixed propositions of law and to determine what, upon those facts, is the fact, in regard to which the court cannot law of the case. We thus state the matter, , know precisely where the division of opinion because it is apparent that the case turns arose on a question of law alone;' and 'It altogether upon the question propounded as is very clear that the whole case has been to the validity, in view of all the facts statsent here for us to decide, with the aid of a ed, of the contract under which the plainfew suggestions from the circuit judges of tiff's cattle were transported. This court is the difficulties they have found in doing so.' without jurisdiction to answer the question Waterville v. Van Slyke, 116 U. S. 699, 704, certified in its present imperfect form and 29 L. ed. 772, 774, 6 Sup. Ct. Rep. 662.” | the certificate must be dismissed. Sadler See also Fire Ins. Asso. v. Wickham, 128 v. Hoover, 7 How. 646, 12 L. ed. 855. U. S. 426, 434, 32 L. ed. 503, 506, 9 Sup. Ct. It is so ordered. Rep. 113.

In United States v. Rider, 163 U. S. 132, Mr. Justice Brewer dissented, 41 L. ed. 101, 16 Sup. Ct. Rep. 983, the Chief Justice, speaking for the court, said that "it has always been held that the whole case could not be certified," and that "under

AMELIA C. TRAVERS, Charles E. Travers, the Revised Statutes, as to civil cases, the

John H. Travers, Joseph Travers, James

W. Travers, and Kate M. M. Owens, danger of the wheels of justice being blocked

Appts. by difference of opinion was entirely obviated.” In that case it was also held that MARIA L. REINHARDT, Louis F. Reincertificates of questions of law by the circuit

hardt, Margaret M. Mitchell, Elizabeth courts of appeals under the judiciary act Mitchell, Mary L. Wallis, Samuel Wallis, of March 3d, 1891, are governed by the Alice V. Rohrer, William H. Rohrer, Sidsame general rules as were formerly applied ney Mitchell, Annie Mitchell, Annie E. to certificates of division of opinion in the Travers, and "The Sisters of the Visitacircuit court,-citing Columbus Watch Co. tion,” a Corporation. v. Robbins, 148 U. S. 266, 37 L. ed. 445, 13 Sup. Ct. Rep. 594; Maynard v. Hecht, 151

Wills-construction-substituting "and" for

“or." U. S. 324, 38 L. ed. 179, 14 Sup. Ct. Rep. 1. The word "and" will not be substi353.

tuted for “or” in the clause in a will proIn United States v. Union P. R. Co. 168

R. Co. 168 viding for the disposition of the testator's U. S. 505, 512, 41 L. ed. 559, 561, 18 Sup. 'estate in case any of his sons should die

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"without leaving a wife or child,” unless By the first item of the will certain lots the whole context of the will plainly and are devised to the testator's son Elias "and beyond question requires such substitution his heirs and assigns forever in fee simple.” in order to give effect to the intention of By the same item other lots are devised to the testator.

the same son, “which last two devises shall Marriage-per verba de præsenti. 2. Persons whose alleged marriage in after made in case of any sons dying without

be subject to the general provision hereinVirginia might have been invalid for want of a license had they remained there, and leaving a wife or child or children.” might also, for want of a religious cere

By the second item the testator devised mony, have been invalid in Maryland, where lot 5, in square 291, to his son “Joseph Trathey afterwards resided, must be deemed vers and his heirs forever,” and two other married in New Jersey, when, as husband specified lots "to him and his heirs forever, and wife, they took up their permanent resi. in fee simple;" lot 5 "being subject to the dence there, and lived together in that re- general provision aforesaid hereafter made.” lation continuously in good faith and open

By the third item he devised to his son ly up to the time of the man's death, being Nicholas and his heirs forever certain lots regarded by themselves and in the commu

in square 291 "subject to the general pronity as husband and wife, since their conduct towards each other in the eye of the vision hereinafter made;" also “to him and public while in New Jersey, taken in con- his heirs forever, in fee simple,” other real nection with their previous association, was estate in square 36, and a designated parcel equivalent in law to a declaration by each of ground in square 291, "said piece or parthat they did, and during their joint lives cel of ground to be subject to the general were to, occupy the relation of husband and provision hereafter made.” wife, which was as effective to establish the

By the fourth item certain devises are status of marriage in New Jersey as if it made to the son “James Travers and his had been made in words of the present tense heirs forever," "all of which devises are to after they became domiciled in that state.

be subject to the general provision herein[No. 76.]

after made."

Here follows, at the close of the fourth Argued November 1, 2, 1906. Decided April item, the "general provision” referred to: 15, 1907.

“With regard to the several estates hereinbefore devised to my several sons, it is here

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District of Columbia to review a decree and direct, as a general provision, that if which affirmed a decree of the Supreme any of my sons should die without leaving a Court of the District, confirming a report of wife or

a child

or children living at the auditor in a suit for partition, and de- his death, then his estate herein devised creeing the distribution of the proceeds of to him,

him, saving and excepting those the sale in accordance therewith. Affirmed. portions thereof expressly granted and so See same case below, 25 App. D. C. 567. named to be 'in

fee

simple,' 'and The facts are stated in the opinion. which they can sell and dispose of as

Messrs. Bernard Carter, Arthur A. Birney, they think fit, shall go, and be invested Charles H. Stanley, Edward A. Newman, in fee, to my surviving sons and the child and Fillmore Beall for appellants.

or children of such as may be dead, such Messrs. George E. Hamilton, M. J. Col-child or children representing the share of bert, William A. Gordon, and J. Holdsworth the father; but if either of my sons shall, Gordon for appellees.

at his death, leave a wife either with or

without a child or children, such wife shall Mr. Justice Harlan delivered the opinion be entitled to her dower rights and privof the court:

ileges." This suit was originally brought for the This was followed in the will by certain partition or sale of certain real estate in devises for the benefit of the daughters, as the city of Washington devised by the will well as by several codicils to the will, but (and codicils thereto) of Nicholas Travers, it is not necessary to give their provisions who died in the year 1849, leaving four sons in detail. and three daughters.

By a codicil, dated June 26th, 1848, the The only parts of that estate remaining testator revoked certain parts of his will, in dispute are certain lots in square 291 in providing:“And in lieu thereof I do hereby Washington, and the questions to be deter- give and devise all of said lots or part of mined depend upon the construction of that lots, so as aforesaid described, with the will and upon the evidence touching the house and other improvements and appurtealleged marriage of James Travers, a son nances, to my son James and his heirs, subof the testator, with Sophia V. Grayson. ject to the express stipulations and restric

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