damages for injuries resulting from its fault or negligence, or from the fault or negligence of any person delegated with authority to represent it. The true construction of the clause requires the words "any person" to be limited so as not to include the person injured. Thus construed, the clause would read:

"Where such injury resulted from the act or omission of any person (except the person injured) done or made: (1) in obedience to any rule, regulation, or by-law of such corporation; or (2) in obedience to the particular instructions given by any person delegated with the authority of the corporation in that behalf."

This construction makes the statute harmonious, and gives effect to every word and member of it. Under this construction, the effect of this clause is to prevent the corporation from setting up the defense that the injury to the plaintiff was caused by the act or omission of a coemployé, when such coemployé was acting in obedience to the rules, regulations, or by-laws of the corporation, or in obedience to the particular instructions given by any person delegated with the authority of the corporation in that behalf. In my opinion this clause of the statute ought to receive no broader construction. Thus construed, the paragraph is insufficient. The injury complained of did not result from the act or omission of a fellow servant, done or made in obedience to any rule, regulation, or by-law of the corporation, or in obedience to the particular instructions of the defendant's foreman, nor is it shown to have resulted from any fault or want of care of either. The demurrer is therefore sustained, to which ruling the plaintiff excepts.

CENTRAL TRUST CO. OF NEW YORK v. EAST TENNESSEE, V. & G. R. CO. (OLIVER, Intervener).

(Circuit Court, N. D. Georgia. June 1, 1895.)

No. 688.

NEGLIGENCE-INEVITABLE ACCIDENT.

An engine was thrown from the track by running over some calves which sprang upon the track almost immediately in front of the moving engine, which ran for some distance along the ties, and then turned over. Held, that the receivers operating the road could not be held responsible for injuries to the engineer primarily caused by this inevitable accident, even though they had failed to exercise due care in selecting the brakemen, whose inefficiency was alleged to have caused the overturning of the engine.

This was an intervening petition filed by J. W. Oliver, in the suit of the Central Trust Company of New York against the East Tennessee, Virginia & Georgia Railroad Company, claiming damages for personal injuries. The petition was referred to a master, who reported adversely to the petitioner. Exceptions to the master's report were duly filed.

King & Anderson, for intervener.
De Lacy & Bishop, for defendant.

NEWMAN, District Judge. There is one conclusion to which the special master came in this case which must control it independently of questions raised by other exceptions to the master's re port. That conclusion is that the injury to the intervener was the result of an unavoidable accident, against which no sort of diligence could have been effective. The accident which resulted in the injury for which this suit was brought was caused by the engine striking some calves on the track, causing the derailment of the engine and its overturning, by which the intervener, who was the engineer, was injured. It appears from the testimony of the intervener that the calves sprang on the track almost immediately in front of the moving engine,-"in the headlight," as he expressed it. The engine ran over the calves, and was caused thereby to mount the rails, and, after running some distance on the cross-ties, to leave the track, and turn over.

It has already been determined in this case, and also in former cases where the same question was raised, that an employé, such as this engineer, could not recover against a receiver of a railroad for an injury caused by the negligence of a fellow servant, as a brakeman would be to the engineer. The right to recover, after the adjudication of this question, has been placed by the intervener on the ground that the brakemen, whose negligence it is claimed was the cause of the overturning of the engine, were unskillful and incompetent, and that the receivers were responsible for having such men in their employ. The master has found this question of the receivers having incompetent employés against the intervener, and has reported that the evidence does not sustain the charge. It is not altogether certain from the evidence, as reported by the master, that he is correct in this view, and it is not entirely clear from the evidence that the men were fitted for the positions or that due care was exercised in their selection. It may be, however, that the finding of the master is not, on the other hand, so clearly erroneous as to justify the court in sustaining the exception on this ground, if it stood alone. But, be that as it may, and independently of it. it would be mere surmise to say that the negligence of the brakemen at the time or any general incompetency or unskillfulness on their part was the cause of the engine turning over and injuring the intervener. It is not contended, as I understand it, that the derailment of the engine could have been prevented even if the brakes had been applied in the quickest and most skillful manner, but that the engine would not have upset if this had been done. It can only be conjectured that the highest diligence and the greatest skill on the part of the brakemen might have prevented the unfortunate result. Certainly, from this evidence and the report of the special master, the court would not be justified in sustaining the exception, and setting aside the report, so far as the report is made on the ground that this was an unavoidable accident, for which the receivers were not responsible. The exceptions will be overruled, and the report confirmed.

MUSE et al. v. ARLINGTON HOTEL CO.

(Circuit Court, E. D. Arkansas. June 1, 1895.)

1. PUBLIC LANDS-SPANISH GRANT.

The regulations of Gov. O'Reilly in the province of Louisiana of February 18, 1770 (section 12), provided that all grants should be made in the name of the king by the governor general, who would at the same time appoint a surveyor to fix the bounds thereof, both in front and depth, in the presence of the judge ordinary of the district and of two adjoining settlers, who should be present at the survey; that such four persons should sign the procés verbal made thereof; that the surveyor should make three copies of the same, one of which should be deposited in the office of the scrivener of the government, another directed to the governor general, and the third to the proprietor, to be annexed to the title of his grant. Held, that no title was conveyed by a paper purporting to be a Spanish grant, made while such regulations were in force, by the governor of such province, "of a tract of land of one square league, situated in the district of Arcansas, on the north side of the River Ouachita, at about two leagues and one-half distant from said River Ouachita, and understanding this land is to be measured so as to include the site or locality known by the name of 'Hot Waters,' as is besides expressed by the figurative plan and certificate of said surveyor, Trudeau, above named; and recognizing this mode of measurement, we approve of this survey, using the faculty which the king has placed in us, and assign in his royal name unto the said" grantee "the said league of land," etc., in the absence of any actual survey on the ground, and the filing of a copy thereof in the office of the scrivener of the government, and an actual putting of the grantee in pedal possession according to the form and proceedings then prevailing in Spain and such province.

2. LIMITATIONS-ACTION TO RECOVER LAND GRANTED BY SPAIN.

Act May 26, 1824 (4 Stat. 52), entitled "An act enabling the claimants of land within the limits of the state of Missouri and territory of Arkansas to institute proceedings to try the validity of their claims," permitted all persons claiming under French and Spanish grants to file petitions in various courts named, in order to have their titles confirmed, and provided that any claim to lands "within the purview of this act which shall not be brought by petition before the said courts within two years from the passing of this act, or which, after being brought before the said courts, shall, on account of the neglect or delay of the claimants, not be prosecuted to a final decision within three years, shall be forever barred," etc. Such act was several times extended; the last time for five years, by Act June 17, 1844 (5 Stat. 676). Held, that such statute bars an action brought in 1894 for a tract of land including the hot springs in the city of Hot Springs, Ark., by the heirs of a grantee of an alleged Spanish grant, dated February 22, 1788.

8. SAME.

Such action is also barred by Act Cong. June 11, 1870 (16 Stat. 149), known as the "Hot Springs Act," which gives all persons claiming title, either legal or equitable, "to the whole or any part of the four sections of land constituting what is known as the 'Hot Springs Reservation,' in Hot Springs county, in the state of Arkansas," an opportunity to institute suit in the nature of a bill in equity against the United States in the court of claims, "and prosecute to final decision any suit that may be necessary to settle the same: provided that no such suit shall be brought at any time after the expiration of 90 days from the passage of this act, and all claims to any part of such reservation upon which suit shall be not brought under the provision of this act within that time shall be forever barred."

4. PUBLIC LANDS-GRANT-ABANDONMENT-PRESUMPTION FROM LAPSE OF TIME. A claim by a grantee of an alleged Spanish grant, dated February 22, 1788, or his heirs, to a tract of land including the hot springs in the city of Hot Springs, Ark., will be presumed to have been abandoned, in an

action brought by such heirs in 1894, to recover such tract of land, though it appears that such heirs brought a suit in the name of an assignee under Act May 26, 1824, for confirmation of the claim, which was dismissed for noncompliance with an order for the production of the original papers. 5. ESTOPPEL IN PAIS.

In 1788 the hot springs were on lands occupied and owned by Indians. After the cession in 1818 the United States bought up the title of the Indians. In 1832 it reserved the property from entry and sale. Between such time and 1894 the government spent large sums for hospitals and improving and beautifying such property. A prosperous city was built about the springs, and by the joint labor and money of private citizens, such city, and the government, streets were laid out, parks established, churches and schoolhouses erected, railway connections created, and millions of dollars expended in hotels. Held, that the grantee of an alleged Spanish grant of the tract of land including the hot springs, dated 1788, and his heirs, none of whom ever paid anything for such grant, or any taxes on the land, or spent any money in making the many enduring and costly improvements thereon, are estopped from claiming an adverse title to such land.

This is an action of ejectment, brought on the 25th day of July, 1894, by the plaintiffs, as heirs of Juan Filhiol, against the defendant, for a tract of land including the hot springs in the city of Hot Springs, in this state. The plaintiffs rely for title on certain documents, copies of which are filed with the complaint, and are made exhibits hereto, and which are as follows:

1. A paper, made Exhibit A, purporting to be a Spanish grant, translated from the Spanish language to the English, in the following words:

"(From the Land Archives.)

"The governor intendent of the provinces of Louisiana and Florida West, inspector of troops, etc. Considering the anterior surveys made by the surveyor of this province, Don Carlos Trudeau, concerning the possession given to Don Juan Filhiol, commandant of this post of the Ouachita, of a tract of land of one square league, situated in the district of Arcansas, on the north side of the River Ouachita, at about two leagues and one-half distant from said River Ouachita, and understanding that this land is to be measured so as to include the site or locality known by the name of 'Hot Waters,' as is besides expressed by the figurative plan and certificate of said surveyor, Trudeau, above named, and recognizing this mode of measurement, we approve of this survey, using the faculty which the king has placed in us, and assign in his royal name unto the said Juan Filhiol the said league of land, in order that he may dispose of the same and the usufruct thereof as his own. We give these presents under our own hand, sealed with the seal of our arms, and attested by the undersigned, secretary of his majesty in this government and intendents.

"In New Orleans, on the 22nd of February, 1788. "By mandate of his excellence.

"Andres Lopez Armesto.

"Registered."

Estevan Miro.

2. A paper purporting to be a survey, also translated from the Spanish language, marked "Exhibit B," in the following words:

"Don Carlos Trudeau, land and particular surveyor of the province of Louisiana, in consequence of a memorial signed on the 12th of December of the year 1787 by Don Juan Filhiol, commandant of the post of Ouachita, and by order of his excellency, Don Estevan Miro, brigadier of the R. Ex. Gob., intendent of the province of Louisiana, West Florida, etc., dated the 22nd of February, 1788, directing me to give possession to the aforesaid commandant of a tract of land of one league square, situated in the district of Arkansas, to include that spot known by the name of the 'Warm Waters'; and in conformity with the aforesaid order I certify having measured in favor of the aforesaid commandant, Don Juan Filhiol, the league of land indicated in the memorial situated on the north side of Ouachita river, in the district of Arkansas, at about two leagues and a half distant from said river, to be verified by the figurative plan which

accompanies, in conformity with December, and of the current year, 1788.

"[Signed]

of the 6th of the present month of Carlos Trudeau."

Exhibit C to the complaint appears to be a deed from John Filhiol to Narcisso Bourgeat, conveying "a tract of land 84 arpents front and 42 in depth on each side of the stream called the source of the hot springs, about two leagues from where it flows into the Ouachita river, having the source of the hot springs as a center, the boundary lines on the east and west running parallel to their full depth, bounded on both sides by public lands, being the same property acquired by me from Stephan Miro, then governor of these provinces, under date of December 12th, 1787." This deed is not dated, but on it there is indorsed an acceptance of it, dated November 25, 1803.

Then follows Exhibit D, which purports to be a retrocession by Narcisso Bourgeat to John Filhiol of "one league square, situated at the mouth of the Hot Springs creek, where it flows into the Ouachita, being the same property which he sold to me by act passed before Vincent Fernandez Texiero, then commandant of Ouachita post," dated July 17, 1806, signed by Narcisso Bourgeat.

The defendant demurred to the complaint because (1) it states no cause of action; (2) because, if plaintiffs have any remedy, it must be pursued in equity, and not at law. The defendant also filed exceptions to the documentary evidence as follows: "Comes said defendant, and excepts to the socalled land grant,' made an exhibit of evidence marked 'Exhibit A' to complaint, because (1) the said instrument does not purport to be official, or to come from any official depository. And said defendant excepts also to the paper purporting to be a survey made by Don Carlos Trudeau, marked 'Exhibit B,' to the complaint, because (1) it does not purport to be official; (2) it does not purport to come from any official depository; (3) because it shows no such survey as is required by law to sustain the pretended Spanish grant set up in said complaint. And the said defendant excepts to the instrument purporting to be a conveyance by John Filhiol, marked 'Exhibit C' to said complaint, because (1) the said deed does not purport to have been signed by the grantor therein; (2) because the same does not describe the land set forth in the complaint herein; (3) the said deed does not purport to come from any official source, or ever to have been filed in any office; (4) it is not authenticated as required by law. The defendant also excepts to the instrument purporting to be a retrocession by Narcisso Bourgeat, a copy of which is marked 'Exhibit D' to the complaint herein, because (1) it is not authenticated in a manner required by law; (2) it does not purport to come from any official source; (3) it does not purport to come from any official depository of conveyances of lands; (4) it does not describe the lands mentioned in the complaint." C. H. Boatner, E. W. Rector, Dan W. Jones, and Mr. McCain, for plaintiffs.

Rose, Hemmingway & Rose, for defendant.

WILLIAMS, District Judge. By the statute of Arkansas the pleadings in the action of ejectment are very nearly assimilated to those of a suit in equity to quiet title. The pleading is special, and not general. In his c In his complaint the plaintiff must set forth "all deeds and other written evidences of title on which he relies for the maintenance of his suit, and shall file copies of the same, as far as the same can be obtained, as exhibits therewith, and shall state such facts as shall show a prima facie title in himself to the land in controversy." Sand. & H. Dig. § 2578. All objections to exhibits must be made by exceptions to their admissibility before the trial. Id. § 2579. The object of this statute is to prevent surprise to either party; also to prevent, as far as may be, the discussion of questions of evidence during the trial, so that trials