has performed its whole duty in respect to an audible warning of the approach of the train," says:

"When the prescribed audible signals are given in conformity with the statute, whether they are heard or heeded by the traveler crossing the track or not, the company is absolved from negligence, so far as concerns this kind of audible warning of the approach of its trains."

So, too, in the case of Hackett v. Railroad Co., supra, the trial judge submitted to the jury the question whether the persons in charge of the train gave such other signal as would give reasonable warning, and said that if the jury thought such warning was not given as the statute required, or as they thought was required, there was a basis on which defendant could be held responsible. The supreme court, reviewing the charge of the learned judge, held it to be erroneous in this respect, and reaffirmed the principle laid down in Railroad Co. v. Leaman, supra, with regard to the sufficiency of a compliance with the statutory requirement to absolve the defendant from liability for negligence, so far as concerns that kind of audible warning. With this construction of the statute we entirely concur, but in so doing we cannot adopt the conclusion of counsel, that, in having performed its duty with regard to audible signals, the company thereby becomes exempt from all liability, or is relieved from the obligation of taking additional precautions to provide for the safety of the travelers upon the highway. We hold that it is the duty of railroad companies, in crossing public highways at grade, to use all reasonable care to avoid collisions, and provide for the safety of travelers who enjoy thereon privileges in common with them (Favor v. Railroad Corp., 114 Mass. 350); that the degree of care varies with the character of the crossing, whether the view be free, or obstructed by trees, fences, buildings, or the natural configuration of the land,-with the use made of the highway by the traveling public, and with the speed and frequency of passing trains. Whether the care actually exercised is reasonable, or whether, by the omission of such precautionary measures as were proper, or as they had accustomed travelers on highways to expect, the railroad company has been guilty of negligence, are questions of fact to be determined by the jury upon all the circumstances of the case. field v. Railroad Corp., 10 Cush. 569; Norton v. Railroad Co., 113 Mass. 366; Zimmer v. Railroad Co., 7 Hun, 552, affirmed in 67 N. Y. 601.

Lin

Entertaining these views, we find no error either in the charge of the learned judge, or in his refusal to charge as requested. The judgment of the circuit court should be affirmed, with costs.

(99 Fed. 532.)

VOLK v. B. F. STURTEVANT CO.

(Circuit Court of Appeals, First Circuit. February 2, 1900.)

1. APPEAL-PROCEEDINGS IN FORMA PAUPERIS.

It seems that Act July 20, 1892 (27 Stat. 252, c. 209), permitting proceedings in the federal courts in forma pauperis, should be construed to apply to proceedings by appeal or writ of error in the circuit court of appeals.

2. SAME-REQUISITE OF SHOWING.

To authorize the granting of leave to proceed in forma pauperis under such statute, it must be shown that the petitioner is a citizen of the United States, and, where he sues as representative of a decedent, the financial condition of the estate, as well as his own, must appear; and inasmuch as the statute is expressly limited to those who are unable to pay the fees or costs of the suit, or to give security for the same, a showing of inability, and not merely inconvenience or hardship, is essential.

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

Edward H. Savery, for petitioner.

Before COLT and PUTNAM, Circuit Judges, and WEBB, District Judge.

PUTNAM, Circuit Judge. This is a petition filed by Teresa Volk, administratrix, plaintiff in error, for leave to proceed in forma pauperis under the act of July 20, 1892 (chapter 209, 27 Stat. 252). It appears by the record that the original suit was brought in the circuit court by one Esch, who described himself in his writ as a subject of His Majesty William, the German emperor, and an alien. Therefore, inasmuch as the statute under which the petition was filed is expressly limited to citizens of the United States, Esch could not have availed himself of it. After the suit was entered in the circuit court, Esch deceased, and this petitioner was admitted to prosecute as administratrix of his goods and estate. Neither her petition nor the record shows whether she is a citizen of the United States or an alien. In view of this omission, the petition fails to bring itself within the statute referred to, and might be denied on that account.

Moreover, the petition contains no facts with reference to the financial condition of the estate of Mr. Esch; and, as that estate may be in condition to furnish the necessary funds and security for fees and costs, and as, moreover, it would be holden to make good to the petitioner whatever fees or costs she might be required to pay, the petition ought to set out its financial condition, as well as the financial condition of the petitioner individually. As it fails to do this, it might also be denied on this account.

The question has been raised whether this statute applies to writs of error and appeals. Wickelman v. A. B. Dick Co., 29 C. C. A. 436, 85 Fed. 851; Brinkley v. Railroad Co. (C. C.) 95 Fed. 345, 354. The view has been expressed in this circuit, in Columb v. Manu

facturing Co. (C. C.) 76 Fed. 198, that it does. Certainly this is within its equity, and is not excluded by its letter.

Aside from the defects to which we have called attention, and which possibly may be overcome by amendments, the petition alleges that the petitioner is a laundress; but it admits that she has about $600 out in loans to different persons, and about $200 in some savings bank. She attempts to excuse the force of these facts by a statement that she cannot take these funds for the purpose to which the petition relates, because it is all she has with which to provide. for herself in case of illness, and for her old age. Nevertheless, the statute is expressly limited to those who are unable to pay the fees or costs of the suit, or to give security for the same. The record in this case is brief, and the fees and costs involved would be so small that this court cannot determine judicially that a person of the means which the petitioner possesses has the inability which the statute requires. Therefore we must deny the petition. Nevertheless, inasmuch as the record is brief, as we have already said, the court, under the circumstances, would be disposed to listen favorably to an application to hear the case on a sufficient number of clear typewritten copies being furnished for that purpose.

Ordered, that the petition of Teresa Volk, administratrix, for leave to proceed in forma pauperis, be denied.

(99 Fed. 539.)

In re JACOBS.

(Circuit Court of Appeals, Eighth Circuit. February 3, 1900.)

No. 15.

1. BANKRUPTCY-APPEAL AND REVIEW.

Bankr. Act 1898, § 24b, giving to the circuit courts of appeals jurisdiction to "superintend and revise in matter of law the proceedings of the several inferior courts of bankruptcy," on petition filed by any party aggrieved, applies only to some action taken or order made in the course of a proceeding in bankruptcy. Such a petition will not lie to obtain a review of an alleged error of the district court in entertaining jurisdiction of a bill in equity brought by a trustee in bankruptcy against a stranger, a citizen of the same state, to set aside an alleged fraudulent conveyance of property to him by the bankrupt.

2. SAME.

From a final decree rendered by the district court in such a case an appeal may be taken to the circuit court of appeals in the ordinary way, bringing up for review every question decided in the case, or the question of the jurisdiction of the district court may be certified by that court to the supreme court of the United States.

Petition to Review Proceedings of the District Court of the United States for the Eastern District of Missouri in Bankruptcy.

Chester H. Krum, for petitioner.

Nathan Frank and Mr. M. N. Sale, for respondents.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges. THAYER, Circuit Judge. This is a petition for review under subdivision "b" of section 24 of the bankrupt act, approved July 1, 1898

(30 Stat. 544, 553, c. 541), which is filed in behalf of Charles F. Jacobs, against whom an original bill in equity was exhibited by Samuel Rosenfeld, trustee in bankruptcy of the Mechanics' Clothing Manufacturing Company, a bankrupt, on the 10th day of January, 1900, in the district court of the United States for the Eastern judicial district of Missouri. The purpose of the suit was to obtain a decree vacating a certain deed of trust, and to recover the property, or rather the proceeds of the property, which was thereby conveyed to said Charles F. Jacobs, the trustee in said deed of trust. The instrument in question was executed on April 16, 1899, by the MechanIcs' Clothing Manufacturing Company, and proceedings in bankruptcy were instituted against it on May 1, 1899, under which it was subsequently adjudged a bankrupt on November 20, 1899. Samuel Rosenfeld, the complainant in the bill, was appointed and qualified as trustee in bankruptcy of the Mechanics' Clothing Manufacturing Company on December 18, 1899, and on the 10th day of the following January he exhibited an original bill in the district court, where the adjudication had taken place, to annul the aforesaid deed of trust, charging, in substance, that it was conceived by the bankrupt company in bad faith, for the purpose of hindering, delaying, and defrauding its creditors, and for the express purpose of evading the operation of the existing bankrupt act.

The petitioner insists that the district court has no jurisdiction of the bill to vacate the deed of trust, and that the suit should have been brought in the courts of the state, under the provisions of section 23 of the bankrupt act, because Rosenfeld and Jacobs, the parties plaintiff and defendant to the bill, are both citizens of the state of Missouri, and because subdivision "b" of section 23 expressly provides that "suits by the trustee shall only be brought or prosecuted in the courts where the bankrupt whose estate is being adminis tered by such trustee might have brought or prosecuted them if proceedings in bankruptcy had not been instituted, unless by consent of the proposed bankrupt." It is claimed that the district court erred in entertaining the bill, and such is the error of law which we are asked to review. The respondents have filed a motion to dismiss the petition for review, and we are confronted in limine with the inquiry whether the alleged error of law is one which may be reviewed under subdivision "b" of section 24 of the bankrupt act. section reads as follows:

That

"Sec. 24. Jurisdiction of Appellate Courts.-a. The supreme court of the United States, the circuit courts of appeals of the United States, and the supreme courts of the territories, in vacation, in chambers and during their respective terms, as now or as they may hereafter be held, are hereby invested with appellate jurisdiction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases. The supreme court of the United States shall exercise a like jurisdiction from courts of bankruptcy not within any organized circuit of the United States and from the supreme court of the district of Columbia.

"b. The several circuit courts of appeals shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matter of law the proceedings of the several inferior courts of bankruptcy within their jurisdiction. Such power shall be exercised on due notice and petition by any party aggrieved."

The first paragraph of section 2 of the bankrupt law of March 2, 1867, which now appears in the Revised Statutes of the United States as section 4986, reads as follows:

"The circuit court for each district shall have a general superintendence and jurisdiction of all cases and questions arising in the district court for such district when sitting as a court in bankruptcy, whether the powers and jurisdiction of a circuit court have been conferred on such district court or not; and except when special provision is otherwise made may upon bill, petition or other proper process of any party aggrieved, hear and determine the case as in a court of equity; and the powers and jurisdiction hereby granted may be exercised either by the court in term time or in vacation by the circuit. justice or by the circuit judge of the circuit."

In view of the similarity of the language employed in the two statutes above quoted and the general object designed to be accomplished by the two acts, we are of opinion that the jurisdiction conferred on the several circuit courts of appeals by subdivision "b" of section 24 of the recent bankrupt act is the same as that which was vested in the circuit courts by the bankrupt act of March 2, 1867, under the first paragraph of section 2 of that act, which now appears in the Revised Statutes as section 4986, above quoted. Congress, as we think, intended to confer on the several circuit courts of appeals the same supervisory control "of controversies arising in bankruptcy proceedings" in the district courts which the circuit court exercised under the act of 1867 by virtue of the abovequoted provisions of that act. It was doubtless deemed most expedient to transfer the supervisory jurisdiction formerly exercised by the circuit court to the several circuit courts of appeals, because since the creation of the latter courts by the act of March 3, 1891, the circuit court has ceased to exercise appellate functions, and is generally held by the district judge whose action that court would be called upon to review. But, be this as it may, we discover nothing in the provisions of the recent bankrupt act which leads us to infer that the revisory power of the circuit courts of appeals to be exercised by petition for review is in any respect more extensive than that formerly exercised by the circuit courts under the act of 1867.

In the case of Lathrop v. Drake, 91 U. S. 516, 23 L. Ed. 414, it was held by the supreme court that the bankrupt act of 1867 conferred on the district court two distinct kinds or classes of jurisdiction:

"First, jurisdiction as a court of bankruptcy over the proceedings in bankruptcy initiated by the petition, and ending in the distribution of assets amongst the creditors, and the discharge or refusal of a discharge of the bankrupt; secondly, jurisdiction, as an ordinary court, of suits at law or in equity brought by or against the assignee in reference to alleged property of the bankrupt, or to claims alleged to be due from or to him."

The court further said:

"The language conferring this jurisdiction on the district courts is very broad and general. The various branches of this jurisdiction are afterwards specified, resulting, however, in the two general classes before mentioned."

It was also held in the same case with respect to the circuit courts that the appellate jurisdiction conferred upon them by the act of