16. The court affirmed the ninth point submitted by the defendant, and charged the jury that "in ascertaining the cause of the fire, the jury may, under the evidence that sparks may be emitted from locomotives without negligence of the defendant, consider the evidence of the way in which the plaintiff used its property, and particularly the evidence of the cellar door having been open just prior to the fire, and of the existence of the waste in and about the bin and baling press near the door at the point where the fire is said to have started." This was affirmed, because if the railroad company was not negligent, then it was entirely proper for the jury to consider the condition of the property set on fire, for the purpose of ascertaining whether or not it was not possible for it to have been ignited by the accidental falling of a spark from a locomotive having spark arresters of the most approved kind in good condition; in other words, it was competent for the jury to consider the ease with which the fire could have been actually caused without negligence on the part of the railroad company. For the reasons given, a new trial is refused. GUARANTY TRUST CO. OF NEW YORK v. CHICAGO UNION TRACTION v. WEST CHICAGO ST. R. CO. et al. (three cases). Nos. 26,727-26,729. STREET RAILROADS-SUIT TO FORECLOSE MORTGAGES-REORGANIZATION SCHEME. Suits were brought to foreclose mortgages on the properties of various street railroad companies in Chicago whose lines had passed by a succes. sion of leases into the possession of a lessee which operated them as a single system. Such suits were consolidated, and receivers were appointed for all of the property. The franchises granted to the mortgagors under which the streets were occupied by most of the lines had expired, and the city passed an ordinance granting a franchise for their use to a reorganized company representing the greater part of the bondholders and stockholders of the mortgagor companies, and in which all were entitled to join, on condition that such company obtained possession of the existing property and accepted its terms by a certain date, but if not, granting such franchise to another company. Held, that the court, as the only means of preserving the property as a going concern and thus maintaining its value until foreclosure and sale, had power to authorize its receivers to turn the same over to the reorganized company pending its sale. On Petition of Chicago Railways Company. Gilbert E. Porter, for Guaranty Trust Co. of N. Y. William Burry, for Fidelity Trust Co. of Philadelphia. James C. Hutchins and Frank H. Scott, for Illinois Trust & Savings Bank et al. Frank H. McCulloch, for Merchants' Loan & Trust Co. William J. Calhoun, for North & West Chicago St. R. Co. W. W. Gurley and Arthur Dyrenforth, for Chicago Union Traction Co. Brainard Tolles, for Guaranty Trust Co. of N. Y. Noble B. Judah, for Northern Trust Co. et al. Colin C. H. Fyffe, for Central Trust Co. of N. Y. et al. John R. Montgomery and Louis E. Hart, for Equitable Trust Co. et al. Schuyler, Jamieson & Ettelson, for certain stock and bond holders. Newman, Northrup, Levinson & Becker, for A. G. Becker & Co. et al. Pam & Hurd, for Central Trust Co. of Ill. John A. Rose, for Chicago West Division Ry. Co. et al. Henry Crawford and Charles R. Aldrich, for certain holders of certificates of indebtedness. GROSSCUP, Circuit Judge. Upon the coming down of the decision of the Circuit Court of Appeals, reversing the former order of this court, that turned over to the Chicago Railways Company the properties now in the hands of the court (158 Fed. 923), an ordinance was passed by the City Council of the City of Chicago, extending until February 1, 1908, the privilege of the Chicago Railways Company to accept the ordinance of February 11, 1907; it being provided, however, in such extension ordinance, that in the event that said ordinance of February 11, 1907, as extended by the ordinance of September 12, 1907, was not accepted within the time fixed, the Chicago City Railway Company and the Chicago City Railroad Company were required to comply with the obligations imposed upon them by the companion ordinance of February 11, 1907, to the Chicago City Railway Company, with respect to the streets covered by said ordinance of the same date to the Chicago Railways Company; that is that the Chicago City Railway Company would have the right and would be obligated to construct, maintain and operate a system of street railways in and upon the streets that otherwise would have been granted to the Chicago Railways Company. Following this, the Chicago Railways Company presented to Judge Peter S. Grosscup, and Hon. John C. Gray, for their approval, a modified plan of reorganization and readjustment, which plan has been approved; the changes from the old plan being confined chiefly to the raising of the rate of interest of the new bonds to be issued for the old, from four and one-half to five per cent, and the issuing, to the holders of certificates of general indebtedness, of bonds of the new company, instead of the new company notes secured by collateral. Concurrently with the adoption of this modified plan, suits have been begun, by the trustees under the mortgages, to foreclose the mortgages-both by original bill and cross bill-all now consolidated however, in the original cause. And, upon a showing that the several street car companies which own the lines leased to, and composing the system of Union Traction Company, and which are the mortgagors in the several mortgages, are insolvent, receivers have been appointed-the original receivership having been extended, for that purpose, over such lessor and mortgagor companies; in which foreclosure suits decrees for sale have now been entered. The ordinance of February 11, 1907, embodied a purpose upon the part of the City of Chicago that the grant therein contained, to use the streets therein named, should go, not to any one of the old companies owning lines comprised in the Union Traction Company system, nor to a new company having no connection with the Union Traction Company, but to the Chicago Railways Company as a medium through which the interests now concerned in the Union Traction Company's system, might be given the opportunity, upon reorganization and readjustment in accordance with the conditions stated, to continue their street railway relations to the city. The relation, therefore, of the Chicago Railways Company to the several interests composing the Union Traction Company system, is not that of competitor or rival, but that of intermediary, through which existing interests may continue to live. And this completely distinguishes the matter raised by the petition before the court, from the many cases arising between rival companies that have been brought to my attention. Stripped of mere form, and reduced to its substance, the matter now before the court are these suits to foreclose the several mortgages upon the Union Traction system, and the decrees therein, the mortgagors being insolvent; and the petition before the court is a petition, pending such foreclosure, to turn over the existing property of such mortgagors, to the Chicago Railways Company, the medium through which alone the bondholders, the stockholders, the creditors, and all the interests of the Union Traction system can obtain a continued right to the use of the streets, so that the foreclosure, when it comes, will not be confined to a sale of the property as it exists, bereft of any right of the purchaser, to continue in the streets, but a sale of such property plus a right to the continued use of the streets, if such purchaser be the Chicago Railways Company. The petition, therefore, is clearly in the interest of the mortgagees and creditors in the foreclosure proceedings; giving, if granted, to the corpus of the mortgaged property a value that it would not have if the petition were denied. Indeed, unless the ordinance of February 11, 1907, be accepted, through the medium of the Chicago Railways Company, but in the real interest of all the interests embraced in the Union Traction svstem, so that the mortgaged property may be sold as a going concern, the foreclosure sale would result in very severe losses to the mortgagees. That the granting of this petition may impair in some degree the mortgagors' present right to the use of the streets, and, in that way, affect to some extent some of the abstract legal rights of the mortgagees may be admitted. But all this is overbalanced, by the infinitely greater counter objection, that unless the petition is granted, the mortgagees' rights and advantages will be almost wholly destroyed; so that the question is not one of avoiding a stated disadvantage, but of choosing between two courses both of which have their disadvantages; and in such situation, where the disadvantage on the one hand is so clearly and distinctively greater than would be the disadvantage on the other, neither the power, nor the duty of the court to exercise fair business sense ought to be open to question. It ought to be said in passing that the case made by this petition. is legally different from the case made by the former petition, and the order thereon, reversed by the Circuit Court of Appeals. In that case the danger apprehended, that the property would be lost unless the ordinance of February 11, 1907, was accepted, however conclusive the reasons therefor were, rested in inference only; in this case the City Council, by the extension ordinance of September last, has made certain that event. In the former case, the proceeding before the court was that of a creditor only-the trustees of the bondholders and other lien holders being in, in invitum; in the present case the trustees of the bondholders have come into court, themselves invoking the jurisdiction of the court to foreclose their security. In the former case the order asked for was in the nature of an order preservative of the corpus of the property to be sold, but no sale had yet been asked by those who had a right to foreclose. In this case foreclosure is asked; is asked by those who have the right to ask it; and is ordered by the decree of the court. The order prayed for, therefore, is not only preservative of the corpus, but strictly pertinent to the foreclosure proceedings now pending. To sum up the matter in a sentence, the ordinance of February 11, 1907, is a grant, by the city, in the interest of the bondholders, creditors, and stockholders of the old companies, as their interests are readjusted, of a settled "right of way" for the future; and this petition, as an adjunct to the suit to foreclose, is to so unite such right of way with existing tangible property that the whole will constitute a going street railway property, immensely more valuable as the corpus on which to rest the bonds and debts, and a foreclosure sale, than if these different elements remained apart. But whether any bondholder or creditor shall accept this plan of union is here, as it was in the August order, his own question; for he remains at liberty either to accept his aliquot part in the elements thus united, or to reject it, and look for his return in that separate element on which his security otherwise rests. The order prayed for will be entered. KALLAS V. WORTH BROS. CO. (Circuit Court, E. D. Pennsylvania. January 29, 1908.) No. 65. TRIAL-TAKING Case From JURY-QUESTIONS OF FACT. Where a case is close upon the facts, it should ordinarily not be determined by the court, but by the jury under appropriate instructions. [Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 318-345.] At Law. On motion by defendant for judgment on reserved point notwithstanding the verdict. Goodman & Mitchell, for plaintiff. J. B. MCPHERSON, District Judge. It may be conceded that this is a close case, but the concession does not necessarily involve the conclusion that the plaintiff should not recover. On the contrary, a close case upon the facts-that is, a dispute which causes the mind to doubt concerning the inferences that should be drawn-must ordinarily be determined, not by the court but by the jury under appropriate instructions. No complaint is made by either party about the legal rules that were laid down in the charge, and the sole question now is, whether the plaintiff's claim to recover should have been submitted at all. Upon this question I can only say that, while a reconsideration of the testimony has not removed the hesitation that I felt at the trial concerning the proper course to be taken, I cannot see my way to the ruling that a binding instruction in favor of the defendant would have been justified. Of course, if such an instruction should have been given, the pending motion should prevail. Accordingly judgment notwithstanding the verdict cannot be entered, and to this refusal of the motion an exception is sealed at the defendant's request. MEMORANDUM DECISIONS. ALABAMA NAT. BANK OF BIRMINGHAM et al. v. MASSASSOIT-POCASSET NAT. BANK. (Circuit Court of Appeals, Fifth Circuit. March 10, 1908. On Rehearing, April 2, 1908.) No. 1,726. Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Alabama. Paul Speake, Lawrence Cooper, and Joseph W. Carroll, for appellants. R. W. Walker, for appellee. Before MCCORMICK, Circuit Judge, and NEWMAN and BURNS, District Judges. PER CURIAM. The facts in this case are fully set out, and the conclusion reached by the Circuit Court, as well as the reasons therefor, fully stated, in the opinion filed by Circuit Judge Shelby in disposing of the case, and reported in the case of Farmers' Loan & Trust Co. v. Madison Manufacturing Co., 153 Fed. 310. We concur in the conclusion there reached, as well as in the reasons upon which the conclusion is based. Therefore the judgment of the court below will be affirmed. On Application for Rehearing.. The judges before whom this case was heard, have considered the application for rehearing; and being of the opinion that they decided the case correctly, the motion for rehearing is denied. C. B. RICHARD & CO. v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. December 4, 1907.) No. 80 (4,267). Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 151 Fed. 954, affirming a decision by the Board of United States General Appraisers. Curie, Smith & Maxwell (W. Wickham Smith, of counsel), for importers. D. Frank Lloyd, Asst. U. S. Atty. Before LACOMBE, WARD, and NOYES, Circuit Judges. PER CURIAM. Decision of Circuit Court affirmed. THE CZARINA. (Circuit Court of Appeals, Second Circuit. February 11, 1908.) No. 152. Appeal from the District Court of the United States for the Southern District of New York. Nicoll, Anable & Lindsay (A. R. Watson, of counsel), for appellant. Hyland & Zabriskie, for appellee. Before LACOMBE, COXE, and NOYES, Circuit Judges. PER CURIAM. Decree of District Court (152 Fed. 297) affirmed, with interest and costs. GARTNER, SONS & CO. v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. March 10, 1908.) No. 169 (4,457). Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 154 Fed. 957, affirming a decision by the Board of United States General Appraisers. Hatch & Clute (Walter F. Welch, of counsel), for importers. J. Osgood Nichols, Asst. U. S. Atty. Before LACOMBE, WARD, and NOYES, Circuit Judges. PER CURIAM. Decision of Circuit Court affirmed, on opinion of Judge Martin. GORDON v. DILLINGHAM. (Circuit Court of Appeals, Fifth Circuit. February 25, 1908.) No. 1,672. Appeal from the Circuit Court of the United |