The Pacific Railroad v. The Missouri Pacific R'y Co. all corporate acts authorized by the charter. Laws of Mo., 1851, p. 268. We have already seen that the stockholders were aware of the suit; that their attention was directed to it; that they distrusted the officers of the corporation and took steps looking to the assertion of their rights. It is also apparent from the record of the proceedings in the Ketchum Case that they knew the facts now set up by way of defense. Akers, one of their number, and also the county of St. Louis, on behalf of themselves and such other stockholders as might join therein, appeared in said suit, and by leave of court answered and filed cross-bills, setting forth in substance the principal facts now relied upon. Record Ketchum Suit, p. 24. It was therefore correctly stated by the judges of this court in their return to the alternative writ of mandamus in Ex parte Cutting, that "said Cowdrey and all other stockholders who might join with him were in court during all proceedings of the term when the decree of foreclosure and sale was entered, and had the fullest opportunity to intervene by joining in the answers and cross-bills filed by Akers and said St. Louis county, and otherwise." This, upon the ground that the stockholders were bound to take notice of the proceedings of the stockholders' meetings, and were also bound by the action of their committee appointed to represent them in this litigation, as well as upon the further ground that some of their number actually appeared and were admitted as parties to the suit. We are therefore constrained to hold that the stockholders were concluded by the decree and sale, and that whatever concludes the stockholders individually and collectively concludes the corporation as well. Another consideration has great weight with us. The stockholders of the Pacific Railroad, having knowledge of all the facts, and an opportunity to move in the original suit before decree, or to file a bill immediately upon the rendition of the decree, failed to do either during a period of four years. In the meantime the decree had been fully The Pacific Railroad v. The Missouri Facific R'y Co. executed; the property had been sold and the sale had been confirmed; the purchaser at the sale had conveyed to a new corporation, which had issued new stock, and executed negotiable bonds for large sums secured by mortgage upon the property. The stock and bonds of the new company have gone into the market. Whether it is all held by innocent purchasers, we are, of course, in the absence of proof, unable to say, but the facts and circumstances to which we have adverted certainly furnish strong reasons for holding that the stockholders and the corporation have been guilty of laches. The case of Wetmore v. The St. Paul, etc. Railroad Company, 1 McCrary C. C. Rep. 466, was a bill by stockholders to set aside a sale and the decree of foreclosure upon facts somewhat similar to those presented by the present bill. "The purpose of the Mr. Justice MILLER in that case said: petition is no less than to set aside the sale of a railroad, which is perhaps worth $20,000,000, or more; a road which has been reorganized since the purchase, with a new set of directors, a new set of stockholders, very largely, and above all, a new set of bondholders. The road was purchased under a decree of this court, the purchase was confirmed, and a new company organized, which has been in possession of the road over a year, and has issued, as I say, some $10,000,000 or $15,000,000 of new bonds, held all over the world; and now original bondholders in the old company, representing $1,500,000, come and ask that all these proceedings be set aside, and that we proceed de novo to sell the road." And again: "The sale was had. A part of the original bondholders were, under a special organization, according to the laws of Minnesota, purchasers. That did not settle the controversy or the rights of the parties absolutely. The master who made that sale was required to report it into court. He did report it, and the sale was confirmed. Now, that sale being confirmed, a deed made by the master, property turned over and delivered to the purchasers, those purchasers having reorganized under another corporate name, The Pacific Railroad v. The Missouri Pacific R'y Co. doubtless a great deal of the stock that they held passed into the hands of other men certainly the bonds that they issued upon the strength of that new organization, to the extent of $8,000,000, having passed into the hands of other men- these parties now, for the first time, come into this court and ask that they be permitted to upset all the transactions, to do that which they did not seek in the five years of litigation, namely, to be made parties to this suit, and then to be treated in the double aspect of persons who are parties to the suit and having all the rights of parties from the beginning, and also in the aspect of persons who were not parties to the suit, and whose rights have not been foreclosed. "No authority is shown, no precedent is shown, and I do not believe any can be shown, for such a proceeding. It is so anomalous, so unusual, so much out of the way, that I think it requires express authority in the way of precedent or statute to show that such a thing as that can be done.” Numerous other questions, and some of them important, and perhaps doubtful questions, have been discussed at the bar, but the conclusion reached renders their decision unnecessary. Among them is the important question, whether, regarding this as an original proceeding to set aside a decree of this court for fraud, the court has jurisdiction irrespective of the citizenship of the parties. Another is the question whether such a bill, like a bill of review on the ground of newly discovered facts, must be filed within the period for taking an appeal. The affirmative of the latter proposition seems to have been held in Massachusetts and elsewhere. Evans v. Bacon, 99 Mass. 213. The demurrer to the bill is sustained. TREAT, District Judge, concurs. Ross v. The Chicago, Milwaukee & St. Paul R'y Co. Ross v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY. (District of Minnesota. June, 1881.) 1. NEGLIGENCE - FELLOW SERVANTS. If a corporation employs several agents as fellow servants in the same common employment, and one of those servants is injured by the negligence of another, the corporation (at common law) is not liable unless it be that the servant who is guilty of the negligence was employed by the company with knowledge that he was incompetent or negligent, or was continued in service by the company after notice of the fact that he was incompetent or negligent. - 2. SAME-COMMON SERVICE. If the company sees fit to place one of its employees under the control and direction of another, then the two are not fellow servants engaged in the same common employment within the meaning of the rule above stated. 3. SAME-SAME. - Where the rules of the company required that "conductors must in all cases, while running by telegraph or special orders, show the same to the engineer of their train before leaving stations where orders are received," and that "the engineer must read and understand the order before leaving the station," held, that the engineer was in an important sense subordinate to the conductor, and they were not fellow servants. 4. SAME-SAME. — Under such a rule the conductor was the superior of the engineer in respect to the duty of delivering or showing the running orders to the engineer, and when such conductor failed to show such orders to the engineer, and an accident happened by which the engineer was injured, held, that the company was liable. 5. RAILROAD COMPANY-DUTY TO EMPLOY COMPETENT PERSONS. — When a railroad company takes a servant into its employ it becomes obligated to use proper diligence in the employment of fellow servants of ordinary fitness and competency, and not to continue an incompetent or unfit person in its service after notice. 6. SAME DUTY OF GIVING NOTICE. If one servant of a railroad com pany becomes aware of the negligence or incompetency of a fellow servant, it is his duty to give notice to the company. 7. SAME-DUTY OF COMPANY UPON RECEIVING NOTICE. - Upon receiving notice of the incompetency or negligence of an employee, the railroad company continues him in service at its own risk, notwithstanding the fact that it may have made inquiry or had an investigation and decided that such servant was not negligent or incompetent. It is bound by the fact, whatever it may be. 8. SAME REMAINING IN SERVICE AFTER NOTICE. - Where an employee knows that a fellow servant is negligent or incompetent and gives notice thereof to the company, he is not bound, at once, to leave the service of the company. He may remain a reasonable time with the expectation that the company will do its duty, Ross v. The Chicago, Milwaukee & St. Paul R'y Co. This was an action for damages received by the plaintiff, who was an engineer of a freight train. The injury was the result of a collision between the freight train and a gravel train. One McClintock was the conductor of the freight train, and had received orders to stop at a certain station and wait for the gravel train to pass, but had failed to show said orders to the engineer (plaintiff) as he was bound by the rules of the company to do. This negligence of the conductor caused the accident. It was alleged that the conductor was a negligent and unfit person, and that the company had notice of this fact and continued him in service. The principal defense was, that the accident was caused by the negligence of a fellow servant in the same common employment with the plaintiff. C. K. Davis, for plaintiff. Lochaan, McNair & Gilfillan, for defendant. MCCRARY, Circuit Judge, charged the jury orally as fol lows: Gentlemen of the Jury-It is your exclusive province to consider and decide all the disputed questions of fact which arise in this case; it is the duty of the court, however, to instruct you concerning the questions of law which arise, and which ought to be understood by the jury in order that they may properly apply the facts to the law. The plaintiff snes the defendant to recover damages for personal injuries which he has received, as he alleges, through the negligence of the defendant. The controlling question in the case, then, is one of negligence. The fundamental inquiry is, whether the plaintiff has received his injury because of the negligence of the defendant and without any negligence of his own. Negligence is the want of ordinary care and prudence such ordinary care and prudence as a man of common intelligence would exercise under the circumstances. The defendant here is a corporation, and in the nature of |