formal rule of court require the bond to contain an express agreement that the court may, upon notice to the sureties, proceed summarily against them in the original action or suit. See Rule 91, Ariz. Dist. Court Rules, adopted March 5, 1912; Rule 90, Wash. Dist. Court Rules, 1905. But this is not a general provision; nor is it a necessary one. For, as this court has said, sureties become quasiparties to the proceedings, and subject themselves to the jurisdiction of the court, so that summary judgment may be rendered on their bonds. Babbitt v. Finn, 101 U. S. 7, 15. The objection that a court of equity has no jurisdiction because there is an adequate remedy at law on the bond is not well taken. A court of equity, having jurisdiction of the principal case, will completely dispose of its incidents and put an end to further litigation. Applying this principle equity courts, upon the dissolution of an injunction, commonly render a summary decree on injunction bonds.1

Fourth. It is contended that notice was not given to the surety of the motion for summary judgment. It is a proper and usual practice to give such notice; but it may be questioned whether notice is always essential. See United Surety Co. v. American Fruit Product Co., 238 U. S. 140; Johnson v. Chicago & Pacific Elevator Co., 119 U. S. 388.2

1 Cases where it was held that courts of equity might render summary judgment on injunction bonds: Russell v. Farley, 105 U. S. 433, 445; Lea v. Deakin, 13 Fed. Rep. 514 (C. C. N. D. Ill.) ; Lehman v. M’Quown, 31 Fed. Rep. 138 (C. C. Colo.); Coosaw Mining Co. v. Farmers' Mining Co., 51 Fed. Rep. 107 (C. C. S. C.); Tyler Mining Co. v. Last Chance Mining Co., 90 Fed. Rep. 15 (9th C. C. A.); Cimiotti Unhairing Co. v. American Fur Refining Co., 158 Fed. Rep. 171 (C. C. N. J.). A few of the Districts have a rule of court providing that damages upon dissolution of an injunction "may be assessed in the same proceeding, either by the court or by reference to a master and judgment entered in the same action against the sureties on the bond." See Ark., West.. D. Rule XVI, as amended to Feb. 27, 1908; Ark., East D. Rule XIV, as amended to Oct. 1, 1915.

2 Cases showing the usual practice of giving to the sureties notice of

Furthermore, the last two objections, if originally well taken, were waived or cured by the subsequent proceedings. For the motions filed later invoked a decision by the court upon the question of the sureties' liability on the evidence presented by them; and no relevant fact was in dispute. There was no issue to submit to a jury, even if the sureties had been otherwise entitled thereto. After thus voluntarily submitting their cause and encountering an adverse decision on the merits, it is too late to question the jurisdiction or power of the court. St. Louis & San Francisco Ry. Co. v. McBride, 141 U. S. 127; Western Life Indemnity Co. v. Rupp, 235 U. S. 261, 273.

Fifth. It is further contended that the District Court erred in entering judgment against the surety for the deficiency, instead of merely for the costs and any damages to the plaintiff resulting from the delay incident to the unsuccessful appeal. This objection raises a more serious question. The supersedeas bond was in the common form, conditioned that the appellant shall "prosecute its appeal to effect and answer all damages and costs, if it fails to make its plea good." It has long been settled that a bond in that form binds the surety, upon affirmance of a judgment or decree for the mere payment of money, to pay the amount of the judgment or decree. Catlett v. Brodie, 9 Wheat. 553. Rule 29 of this court-Rule 13, 5th C. C. A.-makes provision for a difference with respect to the bond, between a judgment or decree for money not otherwise secured, and cases "where the property in controversy necessarily follows the event of the suit, as in real actions, replevin, and in suits on mortgages." It is not

the motion: Empire State, etc., Developing Co. v. Hanley, 136 Fed. Rep. 99; Gordon v. Third National Bank, 56 Fed. Rep. 790. Cf. Leslie v. Brown, 90 Fed. Rep. 171. Cases in state courts holding that notice to the surety is not requisite: Rogers v. Brooks, 31 Ark. 194; Meredith v. Santa Clara Mining Assn., 60 Cal. 617; Jewett v. Shoemaker, 124 Iowa, 561; Portland Trust Co. v. Havely, 36 Oreg. 234, 245.

clear whether the purpose of the rule, in case of secured judgments or decrees, was merely to limit the amount of the penalty, or was also to affect the nature of the liability, so that the sureties would be liable to answer only for the costs, and damages actually resulting from the delay.

We are, however, relieved from deciding this question; because the record discloses that after the issue of the execution complained of Pease paid the amount due "as Trustee for himself and the other stockholders of the People's Light Company." In other words, the record does not show that Pease paid the amount as surety in satisfaction of the deficiency judgment against himself. The payment by him may have been made "as trustee," because before that time the corporation had been dissolved. If this payment was made on behalf of the corporation, obviously Pease could get no benefit from a reversal of the decree; and as the decree has been satisfied by the principal obligor the sureties are in no danger of further proceeding against themselves. On the facts appearing of record the decree is, therefore,

Affirmed.

SWIFT & COMPANY v. HOCKING VALLEY RAILWAY COMPANY.

ERROR TO THE SUPREME COURT OF THE STATE OF OHIO.

No. 376. Argued December 5, 1916.-Decided March 6, 1917.

A railroad company, under a written agreement reserving a small annual rental and terminable on 30 days' notice, allowed a packing company the use, for warehouse purposes, of land belonging to the railroad and adjacent to one of its sidings, including a switch con

nected with its main line. The agreement provided that the licensee should not interfere with the tracks of the railroad company, and that the switch track should be at all times under the railroad company's control; also, it reserved to the latter a right to enter at all times "for the purpose of repairing or maintaining the track thereon, or switching or removing cars thereover." The switch track was used by cars moving goods of the licensee in interstate commerce between the warehouse and the main line. Held, that under this arrangement the switch track was not to be regarded as a private track, but as a track of the railroad company.

The court cannot be controlled by an agreement of counsel on a subsidiary question of law.

The court cannot decide fictitious cases.

A stipulation of counsel, made only for the purpose of reviewing a judgment rendered on demurrer to the petition, and declaring a proposition which, tested by the petition, is erroneous in fact and in law, will be treated by this court as a nullity.

The fact that effect was given to such a stipulation by the state courts below does not conclude this court.

Where the shipper lets his private cars to the carrier in consideration of mileage charged on both outgoing and return journeys, allowing the carrier to freight them on the return if the shipper does not, and the freight charged upon all goods hauled is the same as for goods hauled in cars owned by the carrier, the cars of the shipper are in the service of the carrier while standing loaded with goods consigned to the shipper on a switch track of the carrier at the shipper's warehouse.

In such case, the "transportation," within the meaning of the Act to Regulate Commerce, has not ended, and demurrage for detention of the cars by their owner may reasonably be exacted by the carrier, in accordance with its rules and rates duly published and filed.

93 Ohio St. 143, affirmed.

THE case is stated in the opinion.

Mr. M. Hampton Todd and Mr. William L. Day for plaintiff in error.

Mr. C. M. Horn, with whom Mr. James H. Hoyt was on the briefs, for defendant in error.

243 U. S.

Opinion of the Court.

MR. JUSTICE BRANDEIS delivered the opinion of the

court.

The National Convention of Railway Commissioners, an association comprising the commissioners of the several States, adopted in November, 1909, a Uniform Demurrage Code. Its action was based upon extensive investigations and thorough discussion, participated in by the railroad commissioners, commercial organizations, representatives of railroads and individual shippers from all parts of the country. On December 18, 1909, the Interstate Commerce Commission endorsed the rules so adopted and recommended "that they be made effective on interstate transportation throughout the country." In re Demurrage Investigation, 19 I. C. C. 496.

These rules provide that after two days' free time "cars held for or by consignors or consignees for loading" or unloading shall, (with certain exceptions not here material) pay a demurrage charge of $1 per car per day. Private cars are specifically included by the following note:

NOTE.-Private cars while in railroad service, whether on carrier's or private tracks, are subject to these demurrage rules to the same extent as cars of railroad ownership.

(Empty private cars are in railroad service from the time they are placed by the carrier for loading or tendered for loading on the orders of a shipper. Private cars under lading are in railroad service until the lading is removed and cars are regularly released. Cars which belong to an industry performing its own switching service, are in railroad service from the time they are placed by the industry upon designated interchange tracks, and thereby tendered to the carrier for movement. If such cars are subsequently returned empty, they are out of service when withdrawn by the industry from the interchange; if