Hackman, 88 Pa. 120; Hutson and Hudson, 71 455]*The second assignment alleges error in This was objected to, because said transcript did not purport to be a transcript from the money order account books of the Postoffice Department of the account of W. J. Foust, the defendant, and could not tend to prove any issue in the case against W. J. Foust. The indictment was against W. J. Faust as assistant postmaster, and it was proved that he was the son and assistant of the principal postmaster, and as such had the sole management and possession of the money order business and money order funds during the entire term. It is scarcely necessary to say that there is no merit in this assignment of error. [No. 130.] The substance of the third assignment is the refusal of the court to admit evidence tending Submitted March 9, 1896. Decided May 25, to show that another person than the defendant, at a time anterior to the time of the com mission of the offense charged, had committed another and different offense than the one herein charged, and that said other person had been indicted and convicted thereof. This evidence was properly rejected as irrelevant 1896. IN ERROR to the United States Circuit Court of Appeals for the Eighth Circuit to review a judgment of that county affirming the judgment of the United States Court for the Indian Territory in favor of the plaintiffs, and immaterial. Ben. F. Lafayette et al., against the defendThe fourth assignment complains of the re-auts, George A. Eddy et al., receivers of the fusal of the trial court to permit a witness who had been examined and cross-examined to be recalled in order to make some change in the statements made by him on cross-examination. This was plainly a matter within the discretion of the court below. In the fifth assignment the charge as a whole is objected to as misleading, and also because it took from the jury the vital point at issue in the case. Missouri, Kansas, & Texas Railway, for the amount of certain quantities of hay burned up and destroyed by sparks and coals of fire emitted from an engine running upon said railroad. Affirmed. See same case below, 4 U. S. App. 247. Statement by Mr. Justice Shiras: United States court for the Indian territory The complaint in this case was filed in the on March 17, 1890, and on the same day the clerk of that court issued the following summons: state Our reading of the charge does not support either of these objections. We perceive no misdirection nor any ments calculated to confuse the jury. The jury were explicitly told that they were the judges of what the evidence was and of its weight. The sixth assignment is based on the refusal 456] of the court to charge the jury that the embezzlement must be proved to have taken place without the consent of the defendant's principal or employer. It was claimed that as the indictment failed to charge that the defendant embezzled any money without the consent of his principal or employer, and as the postmaster, J. E. Foust, employed the defendant, the defendant's responsibility was to the postmaster, and not to the government. We see no merit in this assignment. We have examined the remaining assignments and have found nothing therein set up of which the defendant has just reason to complain, and United States of America, Indian Territory. } The President of the United States of America to the marshal of the Indian Territory: You are commanded to summon George A. Eddy and H. C. Cross, receivers of the Missouri, Kansas, & Texas Railway, a corporation, to answer, on the 1st day of the next April term of the United States court for the Indian territory, being the 7th day of April, a. D. 1890, a complaint filed against them in said court by Sallie M. Hailey and Ben. F. Lafayette, and warn them that upon their failure to answer the complaint will be taken for con NOTE. As to liability of railroad company for fires set by it along its line; what admissible to prove negligence by company, see note to Grand Trunk R. Co. v. Richardson, 23: 357. That appearance cures all defects in service of process or its nonservice, except want of jurisdiction of ' subject-matter; service of summons by party or other note to Knox v. Summers, 2: 510. The judgment of the court below is accordingly improper person is but a mere irregularity,—see affirmed. Witness the honorable James M. Shackel458] ford, judge of *said court, and the seal thereof, at Muscogee, Indian territory, this 17th day of March, A. D. 1890. Wm. Nelson, Clerk. The summons bears the following return: fessed; and will make due return of the sum- | defendants," was not on March 17, 1890, such mons on the first day of the next April term agent; that J. W. Williams was not on that of said court. day such a person as could legally have been served with process against the said receivers; and that the return and service were made improperly. In support of this motion the defendants proved that they were receivers of the said Missouri, Kansas, & Texas Railway, duly appointed as such by the circuit court of the United States for the district of Kansas, and by the circuit court of the United States for the western district of Arkansas, prior to the institution of this suit; that as such they were engaged in operating the said railway previously to and at the time of the service of the summons upon J. W. Williams; and that J. W. Williams was, on March 17, 1890, station agent for the said receivers at Muscogee, Indian territory. The defendants filed at the same time the affidavit of J. W. Williams to the effect that since the month of June, 1887, he had been station agent for the said receivers, but that he had never been the agent of "the Missouri, Kansas, & Texas Railway, a corporation" within the Indian territory, and was not such agent on March 17, 1890. Received this summons at 2 P. M., March 17, 1890, and I certify to having served said summons by leaving a copy thereof with J. W. Williams, the agent of the within-named defendants, at Muscogee, this 17th day of March, 1890. T. B. Needles, Marshall. The complaint began as follows: "The plaintiff, Ben. F. Lafayette, white, and residing in the Indian territory, and plaintiff, Sallie M. Hailey, an Indian, and residing in the Indian territory, allege that the defendants George A Eddy and H. C. Cross, white men, were at the time hereinafter mentioned, and are now, the receivers of the Missouri, Kansas, & Texas Railway, a duly incorporated railroad company doing business in the Indian territory, and operating its railroad through the Indian territory under and by virtue of the laws of the United States, and that said George A. Eddy and H. C. Cross were on the day of duly appointed as receivers of said railroad by the circuit court of the United States for the eighth judicial district." It proceeded to allege that the said railroad was located near the premises of the plaintiff, Sallie M. Hailey, in the Indian territory; that the defendants had negligently permitted large quantities of dry grass and weeds to accumulate on the railroad right of way, which was 100 feet in width on either side of the track; that the defendants, on August 20, 1889, were operating and running over the road an engine, No. 63, which was not supplied with the best appliances for arresting sparks of fire, and that while using the engine upon the road near the premises of the plaintiff, Sallie M. | Hailey, they negligently permitted it to cast sparks and coals of fire into the dry grass on the said right of way, thus starting a fire which spread over the land of the said plaintiff, and 459]there destroyed large quantities of *hay, which she and the plaintiff, Ben. F. Lafayette, had jointly put up and cured, and in the proceeds of the sale of which the plaintiffs were in certain proportions to share. It was averred that the amount of the hay so destroyed was 666 tons, of the value of $2,666, for which sums the plaintifl's asked judgment. On May 6, 1890, the defendants entered a special appearance in the case, stating that they appeared "specially and only for the purposes of this motion and for no other purpose," and moved the court to quash both the said summons and the said return, upon the grounds that the summons was improperly and illegally issued, did not show the nature of the complaint filed, and did not set forth a cause of action; that the return was untrue; that J. W. Williams, who was designated in the return as "the agent of the within-named] The court, having heard and considered the motion, overruled the same, to which action the defendants excepted. Afterwards, on May 19, 1890, they filed their answer, *denying[460 therein all the essential allegations of the complaint, but protesting that they had not been served with process, and asserting that the court had not acquired jurisdiction over them in the case. A trial was duly had before the court and a jury. After all the evidence on the part of the plaintiffs had been introduced, the defendants moved to have the same stricken out for the reason that it did not show that the engine which caused the alleged damage was engine No. 63, as alleged in the complaint. The motion was overruled, and the court granted the plaintiffs leave to amend their complaint by striking out of the same the words and figures "No. 63." The defendants excepted, and then moved for a continuance of the case in order to give them time to meet the aliegations of the complaint as amended. This motion also was overruled, to which action the defendants excepted. At the close of all the testimony the defendants moved the court to direct the jury to return a verdict in their favor. The court overruled the motion, and the defendants excepted. They then requested the court to give the jury certain instructions, among which was the following: "The court instructs the jury that if you find from the evidence in this case that the hay claimed by the plaintiffs to have been burned by sparks cast out from the fire of one of defendants' engines was cut from the public domain or open lands of the Creek nation, and not upon land owned or possessed by plaintiffs or either or both of them, and that said hay was so cut upon the said public domain or open lands of the Creek nation, without the consent of the said Creek nation or its officers or agents, that then the plaintiffs cannot recover in this action." The court refused to give this instruction, to 10. The court further instructs the jury that evidence of a railway company allowing combustible materials to accumulate upon its track and right of way which is liable to take 461] *fire from sparks escaping from passing engines and communicate it to adjacent property, is sufficient to warrant the jury in imputing negligence to the company. which refusal the defendants excepted. 15 Hurlst. & N. 679; Hammersmith & C. R. Among the instructions which the court gave, Co. v. Brand, L. R. 4 H. L. 171, 201, 202. and to the giving of which the defendants ex- No presumption of negligence arises upon cepted, were the following: the plaintiff simply showing that fire was set out by an engine, and the plaintiff must go further and show some act of negligence in the construction or operation of the engine. Gandy v. Chicago & N. W. R. Co. 30 Iowa, 419, 6 Am. Rep. 682; Sheldon v. Hudson River R. Co. 14 N. Y. 218, 67 Am. Dec. 155; Macon & W. R. Co. v. McConnell, 27 Ga. 481; Hull v. Sacramento V. R. Co. 14 Cal. 387, 73 Am. Dec. 656; Philadelphia & R. R. Co. v. Yerger, 73 Pa. 121; Morris & E. R. Co. v. State, 36 N. J. L. 553; Indianapolis & C. R. Co. v. Paramore, 31 Ind. 143; Kansas P. R. Co. v. Butts, 7 Kan. 308; Burroughs v. Housatonic R. Co. 15 Conn. 127, 38 Am. Dec. 64; Jeffries v. Philadelphia, W. & B. R. Co. 3 Houst. (Del.) 447; Ruffner v. Cincinnati, H. & D. R. Co. 34 Ohio St. 96; Ellis v. Portsmouth & R. R. Co. 2 Ired. L. 138; Jacksonville, T. & K. W. R. Co. v. Peninsular Land, T. & Mfg. Co. 27 Fla. 1, 157, 17 L. R. A. 33; Henderson v. Philadelphia & R. R. Co. 141 Pa. 461, 16 L. R. A. 299; Edrington v. Louisville, N. O. & T. R. Co. 41 La. Ann. 96; Lowney v. New Brunswick R. Co. 78 Me. 479; Lyndsay v. Connecticut & P. R. R. Co. 27 Vt. 643. 12. It is the duty of a railroad company to keep its right of way clear of combustible materials, and failure to do so is a circumstance showing negligence. "13. The court further instructs the jury that if they shall find for the plaintiffs, then the measure of damages is the market value of the hay when burned, together with interest at 6 per cent per annum from the date of the destruction of the hay." On June 27, 1891, the jury rendered a verdict for the plaintiffs for the sum of $2,664, with interest thereon at 6 per cent, and on July 10, 1891, judgment was entered in favor of the plaintiffs in the said amount, with 6 per cent interest on the same from date until paid. The defendants took the case upon writ of error to the United States court of appeals for the eighth circuit, where, on February 15, 1892, the said judgment was affirmed. They then made a motion for a rehearing in that court, and the same having been denied, they sued out a writ of error bringing the case here. Messrs. James Hagerman, Clifford L. Jackson, and Joseph M. Bryson, for plaintiff in error: The petition does not allege facts constituting a cause of action. It fails to allege that fire was negligently permitted to spread from right of way to plaintiff's hay. The mere setting out a fire does not raise a The trial court erred in charging the jury that the action of the receivers in allowing their right of way and track to be and remain in condition shown by testimony was sufficient to warrant the jury in imputing negligence to the company, and showed negligence. White v. Missouri P. R. Co. 31 Kan. 280; Gibbons v. Wisconsin V. R. Co. 58 Wis. 335; Benson v. Gulf, C. & S. F. R. Co. 69 Tex. 407; Kesee v. Chicago & N. W. R. Co. 30 Iowa, 80, 6 Am. Rep. 643; Bass v. Chicago, B. & Q. R. Co. 28 Ill. 90, 81 Am. Dec. 254; Delaware, L. & W. R. Co. v. Salmon, 39 N. J. L. 299, 23 Louisville, N. A. & C. R. Co. v. Ellert, 87 Ind. 339; Indiana, B. & W. R. Co. v. Adam-Am. Rep. 214; Flynn v. San Francisco & S. J. son, 90 Ind. 60; Pittsburg, C. & St. L. R. Co. v. Hixon, 79 Ill. 111. The court erred in not directing the jury at close of the evidence to return a verdict for defendant; and further erred in charging the jury that evidence simply showing that the fire originated a short time after a train passed and that sparks were seen escaping from the engine of such train was prima facie proof that the receivers had negligently set out the fire and that the burden of disproving their having negligently set out the fire was thereupon cast upon the receivers. Pierce, Railroads, 437; Redf. Railway Law, 8d ed. 454; Flynn v. San Francisco & S. J. R. Co. 40 Cal. 14, 6 Am. Rep. 595; Rood v. New York & E. R. Co. 18 Barb. 80; Philadelphia & R. R. Co. v. Yeiser, 8 Pa. 366; Frankford & B. Turnp. Co. v. Philadelphia & T. R. Co. 54 Pa. 345; Jefferis v. Philadelphia, W. & B. R. Co, 3 Houst. (Del.) 447; Baltimore & S. R. Co. v. Woodruff, 4 Md. 242, 59 Am. Dec. 72: Bur roughs v. Housatonic R. Co. 15 Conn. 124, 38 Am. Dec. 64; Thirteenth & F. St. Pass. R. Co. V. Boudrou, 92 Pa. 475, 37 Am. Rep. 707; Sheldon v. Hudson River R. Co. 14 N. Y. 218, 67 Am. Dec. 155; Vaughan v. Taff Vale R. Co.) R. Co. 40 Cal. 14, 6 Am. Rep. 595; Perry v. Mr. William T. Hutchings, for defendants in error: The complaint states a good cause of action. If the complaint is defective in the particular urged, it was cured by the verdict. Lassiter v. Jackman, 88 Ind. 118. But the complaint charges actionable negli gence against the defendants. The only cases holding the contrary, even when the question was raised in the lower court, are those from Indiana cited in brief of plaintiffs in error. Those cases are discussed and distinguished in Haugen v. Chicago, M. & St. P. R. Co. 3 S. D. 394. Similar allegations in complaints have been held good in Black v. Aberdeen & W. E. R. Co. 115 N. C. 667; Louisville, N. A. & C. R. Co. v. Hanmann, 87 Ind. 422. The direction in which the engine was going, the character of the train it pulled, and its number are not material allegations. Hoskison v. Central Vermont R. Co. 68 Vt. 618; Grand Trunk R. Co. v. Richardson, 91 U. S. 454 (23: 356); Pittsburg, C. & St. L. R. Co. v. Noel, 77 Ind. 110; 8 Am. & Eng. Enc. Law, 7, 9. It was the duty of the receivers to keep their right of way and track clear of combustible materials. The instruction to the jury that evidence of the railway company allowing combustible materials to accumulate upon its track and right of way, which is liable to take fire from sparks escaping from passing engines and communicate it to adjacent property, is sufficient to warrant the jury's imputing negligence to the company, correctly states the law. Pittsburg, C. & St. L. R. Co. v. Jones, 86 Ind. 496, 44 Am. Rep. 334; Tilley v. St. Louis & S. F. R. Co. 49 Ark. 536; Black v. Aberdeen & W. E. R. Co. 115 N. C. 667. Mr. Justice Shiras delivered the opinion of the court: This was an action brought in the United States court in the Indian territory to recover for damages caused to the property of the plaintiffs by the negligent management of the railroad of the Missouri, Kansas, & Texas Railway Company, a corporation created by the laws of the United States, and, at the time of the accident, in the control and management of George A. Eddy and Harrison C. Cross, receivers, who had been appointed such by the United States circuit court for the district of Kansas and by the United States circuit court 462] for the district of Arkansas. Both of those districts and the Indian territory constitute a portion of the eighth judicial circuit of the United States, and the railroad in question traverses the states of Arkansas, Kansas, and the Indian territory. The first question presented is whether the trial court acquired jurisdiction to try the case against Eddy and Cross, receivers of the Mis souri, Kansas, & Texas Railway, by virtue of the summons served on one Williams as agent of said receivers in charge of their station at Muscogee in the Indian territory. The return of the marshal was that he had served the summons by leaving a copy thereof with J. W. Williams, the agent of the defendants at Muscogee, on March 17, 1890. On April 8, 1890, the defendants entered a special appearance by attorney, and moved to quash the return of the marshal, for four reasons: "First, because on the day alleged in said return as the day of the service of said summons, to wit, March 17, 1890, J. W. Williams, styled in the marshal's return on said writ of summons as the agent of the withinnamed defendants, was not such agent; second, because said J. W. Williams, on the 17th day of March, 1890, was not such a person upon whom process against the said George A. Eddy and H. C. Cross, receivers of the Missouri, Kansas, & Texas Railway, could legally have been served; third, because said return was untrue; fourth, because said service and said return were illegally and improperly made." On May 6, 1890, the defendants, appearing specially, withdrew the motion theretofore filed by them to quash the return of the writ of summons, and, again appearing specially. and only for the purposes of a motion to quash writ of summons and return thereon, and, by leave of court, filed such motion, and in support thereof filed an affidavit of J. W. Williams and a certified copy of the order appointing receivers. The reasons filed in support of the second motion to quash were as follows: "First, because said writ of summons is improperly and illegally issued; second, because the writ of summons in this cause does not show the nature of the complaint filed therein; third, because no cause of action is set forth in the *writ of summons issued [463 herein; fourth, because said return on said writ is untrue; fifth, because said J. W. Williams, who is designated in said return as the agent of George A. Eddy and H. C. Cross, receivers of the Missouri, Kansas, & Texas Railway, a corporation, was not on the day alleged in said return as the day of the service of said summons, to wit, said 17th day of March, 1890, such agent; sixth, because said J. W. Williams was not on said 17th day of March, 1890, such a person upon whom process against George A. Eddy and H. C. Cross, as receivers of the Missouri, Kansas, & Texas Railway, could legally have been served; seventh, because said return and such service were illegally and improperly made." The affidavit of J. W. Williams was to the effect that, at no time, was he ever the agent of the Missouri, Kansas, & Texas Railway, a corporation within the Indian territory, but that since the month of June, 1887, he has been station agent for George A. Eddy and H. C. Cross, receivers of the Missouri, Kansas, & Texas Railway Company, and has been such agent at said town of Muscogee in the Indian territory. It therefore appears by the affidavit of J. W. Williams that the allegation, in the reasons filed, that said Williams was not the agent of the said receivers, was untrue, and that Williams was their agent at the time and place named in the return. So far, then, as the objection to the service and return of the summons depended on the allegation that Williams was not the agent of the receivers, it goes for naught, but the question remains whether he was such a person or agent on whom process against the receivers could be validly served. In and by the act of Congress of May 2, 1890 (26 Stat. at L. p. 94, § 31), it was provided that certain general laws of the state of Arkansas, in force at the close of the session of the general assembly of that state of 1883, as published in 1884 in the volume known as Mansfield's Digest of the Statutes of Arkansas, should be extended and put in force in the Indian territory until Congress should otherwise provide; and among those laws, so extended, were those relating to *questions of prac-[464 tice and procedure; and it is alleged, in the opinion of the circuit court of appeals in the present case, that it is conceded that under the laws of the state of Arkansas, which have been made applicable to the Indian territory, such service as was had in the present case is sufficient to confer jurisdiction, when the defendant is a railway company or a foreign corporation. The trial court and also the circuit court of appeals were of opinion that the 3d section of intermarried with a citizen of this nation, shall the judiciary act of March 3, 1887 (24 Stat. at be allowed to enclose more than 2 acres of L. 554), authorizing suits to be brought against our own public domain, nor be allowed to cut receivers of railroads, without special leave of and put up hay from one common pasturage, the court by which they were appointed, was and any noncitizen, not intermarried, licensed intended to place receivers upon the same plane trader found cutting and putting up hay from with railroad companies, both as respects their the common pasturage shall be fined $10 per liability to be sued for acts done while operat-acre for each acre so cut and put up.' ing a railroad and as respects the mode of service. We concur in that view and in the conclusion reached, that the service in the present case, on an agent of the receivers, was suffi-nation, it was urged that he, as a trespasser, cient to bring them into court in a suit arising within the Indian territory. This conclusion renders it unnecessary to consider the soundness of the further view of the circuit court of appeals that the receivers waived their objections to the service of the summons by pleading to the merits and going to trial, although having excepted to the rulings of the trial court sustaining the regularity of the service. Such is certainly not the general rule. The court below thought the rule in Arkansas is that mere defects in the service of process may be waived by appear ance after a motion has been overruled to set aside the service in cases where the court has jurisdiction of the subject-matter of the controversy and the defect in the service only impairs the jurisdiction over the person of the defendant, citing several decisions of the supreme court of Arkansas to that effect. As already said, however, we do not deem it necessary for us to consider that ground of the decision upholding the validity of the service in the present case. Another objection argued in the court below and in this to the summons was that it did not sufficiently set forth the nature of the complaint. 465] *The circuit court and the circuit court of appeals were of opinion that the terms of the summons were in accordance with the provisions of Mansfield's Dig. Ark. Stat. § 4868, under which this summous was issued, and we see no reason why we should not agree with them. Coming to the case on its merits we are met by the contention that the plaintiffs failed to show such title to the hay destroyed as entitled them to recover its value. The title to the land from which this hay was cut is in the Creek nation, and it is claimed that the nation alone is in possession of the land and entitled to maintain an action for trespass or injury to the same. The view taken of this contention by the circuit court of appeals was that the record failed to show whether the hay was cut on the common pasturage of the nation or on lands at the time occupied and held by Mrs. Hailey individually, according to the customs and usages of the nation, and that court declined to presume that either of the plaintiffs were guilty of a trespass, much less that in cutting the hay either of them violated a criminal statute. The latter observation, as to a violation of a criminal statute, was occasioned by the putting in evidence by the defendants of a statute of the Creek nation, as contained in the compilation of their laws of March 1, 1890, which was in force at the time the hay in question was cut and burned, and was in the following words: "No noncitizen licensed trader, who has not And as it was shown that B. F. Lafayette, one of the plaintiffs, was a noncitizen licensed trader, not intermarried with a citizen of the could not recover for the hay. But the evidence for the plaintiff tended to show that the hay in question was cut and put up for Mrs. Sarah M. Hailey, a citizen of the *Creek [466 nation, who had contracted with Lafayette to cutand put the hay, and that Lafayette was to have an interest in the proceeds of the hay, in consideration of his services. There was no evidence tending to show that Mrs. Hailey, in procuring the hay in question to be cut and put up, was acting illegally or was in any wise a trespasser. And the statute above quoted implies that citizens of the nation might cut hay without limit from the common pasturage, as it forbids only noncitizen traders from cutting hay from the common pasturage; and we agree with the court below that there is nothing in the present record that would authorize us to say that the hay was gathered on the public domain without license. No law of the nation was shown forbidding Mrs. Hailey from cutting hay on land which she occupied in common with other members of the Creek nation. The trial court charged the jury as follows: "The court further instructs the jury that evidence showing that the fire originated from sparks of a passing engine is prima facie proof of negligence, and the burden shifts on the railway company to show that it was guilty of no negligence," and it is assigned for error in this court that the circuit court of appeals erred in not correcting this error. It is sufficient to say that no exception was taken to this part of the charge in the trial court, nor was it assigned for error in the circuit court of appeals. Exception was taken in the trial court to the following part of the charge: "The court further instructs the jury that evidence of a railroad company allowing combustible materials to accumulate upon its track and right of way which is liable to take fire from sparks escaping from passing engines and communicate it to adjacent property, is sufficient to warrant the jury in imputing negligence to the company;" and that instruction was assigned for error in the circuit court of appeals whose refusal to hold the same to have been erroneous is complained of here. We think that part of the charge was plainly correct, and no error was committed by the circuit court of appeals in sustaining it. As we read the instructions given by the trial court, *the jury were not told that the action [467 of the railway company in allowing combustible materials to accumulate upon its track and right of way, which was liable to take fire from sparks and communicate it to adjacent property, was negligence of itself, but was a fact from which, a the circumstances shown, the jury might infer negligence. |