[3] The appellant must have instituted her | fied: Finally Judge Barnes made action upon the theory that the fee of this expression, 'Now I want you to attend to Barnes & Martin consisted of an equitable this case. I have to go back to New York. interest in the proceeds of the compromised Now, if you will attend to this case, if you litigation to the extent of one-fourth of the will agree to attend to this case, I will give money and property received by the defend-you one third of the fee which I have coming ants thereunder. Under no other theory to me on a contingent fee from Shattuck, than that of an equitable assignment might Hanninger & Marks. Mr. O'Connell, who is she invoke an accounting and a decree re-associated with me, is entitled to the other quiring the defendants to transfer and as- third.' Judge Barnes, in a letter sign to her one-fourth of all the stock in said corporation received by them. The interveners filed their petition, reciting an agreement between Barnes & Martin and Street & Alexander, by the terms of which the latter, in consideration of professional services rendered in said mining litigation, were to receive one-third of the share of Barnes & Martin in the proceeds of such litigation, or any compromise thereof, whether in money or property. If Barnes & Martin were possessed of an equitable interest in a fixed portion of the proceeds of the compromise, and, by virtue of their agreement, Street & Alexander became the owners of, or entitled to, an equitable interest in Barnes & Martin's share, then clearly they were possessed of an interest in the subjectmatter of the action of such a direct and immediate character that "they would either gain or lose by the direct legal effect and operation of the judgment," and, under any construction which may be given the statute, were entitled to intervene. It is urged by the appellant that the evidence fails to establish an equitable assignment of any part of Barnes & Martin's fee or share in the proceeds of the compromise. [4] To constitute an equitable assignment good as between the assignor and assignee, it is not essential that the debt should have been earned or the fund be in esse at the time of the assignment, or that notice be given the present or future holder of the fund. The intent of the parties to create the lien being apparent, it is sufficient that there be a reasonable expectancy that the debt will be fully earned and the fund come into existence. Sykes v. First National Bank, 2 S. D. 242, 49 N. W. 1058; Mitchell v. Winslow (C. C.) 17 Fed. Cas. 527. [5] Whether the agreement in this case constitutes an equitable assignment of that portion of Barnes & Martin's fee in question is dependent upon the intent of the parties as evidenced by the terms of the agreement in the light of all the surrounding circumstances. Ingersoll v. Coram, supra. It appears from the record that Barnes during the conduct of the litigation between his clients and Costello felt it important in the interest of his clients that a motion for a rehearing in this court should be resisted, and that, if granted and judgment rendered in favor of Costello, an appeal should be taken to the United States Supreme Court, and that to perform such services he retained the to his partner, Martin, said: "I won both Shattuck cases with jury. He says we are to have one-fourth of the ground." Alexander's testimony that "I didn't consider that the estate of Barnes owed us anything. I considered that I had an interest in this claim," taken alone and indicating the understanding of the agreement of only one of the parties to it, would have little weight, as the understanding of the other party might have been entirely different, but taken in connection with the theory upon which plaintiff instituted her action at a time when she presumably possessed some general knowledge of the contract between Barnes & Martin, to whose interest she succeeded, and the defendants, and the statement of Judge Barnes in his letter indicating an understanding that the contingent fee of Barnes & Martin gave them an interest in the proceeds of the litigation, color is given to the theory that by the words, “I will give you one third of the fee," it was his intention that an equitable assignment should be created rather than a personal liability. The judgment of the trial court could only have been rendered upon the finding that the evidence showed it to have been the intent of the parties that Street & Alexander should rely on the proceeds of the litigation rather than on the personal liability of Barnes or the firm of Barnes & Martin. There being substantial evidence tending to support such finding, it must be treated as conclusive here. That the compensation may have been large in proportion to the services rendered is immaterial; the parties having full knowledge of their character and relative importance. [6] It is urged that the admission of the testimony of Alexander to conversations with Barnes was error under the provisions of section 2536, Rev. Stat. 1901; but the statute in question is applicable only to actions "by or against executors, administrators or guardians in which judgment may be rendered for or against them as such," and to "all actions by or against the heirs or legal representatives of the deceased." And, as the plaintiff sued in her individual capacity, the action was not within the provisions of the statute. [7] Error is predicated upon the rendition of judgment against the plaintiff in favor of the interveners, upon the theory that, as interveners claimed an equitable interest in the fee or fund and did not plead payment to the plaintiff, judgment could only have been rendered against the defendants; but the de [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 314.*] 5. CRIMINAL LAW (§ 62*)—UNLAWFUL ACTS BY AGENT-PRINCIPAL'S RESPONSIBILITY. filing of their answer setting up such pay- | rected by or knowingly acquiesced in by the ment, the plaintiff moved to dismiss as to the employer. defendants. The motion was taken under advisement by the court, and, in effect, granted by the final judgment rendered. The plaintiff did not deny that payment had been made as pleaded by defendants after suit was brought, and by the motion in effect admitted the truth of such averment and consequently judgment was properly rendered against the holder of the fund. [8] The exclusion of a copy of the telegram sent by Martin to Barnes is assigned as error, but no foundation was laid for the introduction of secondary evidence, and the rule that permits evidence of the understanding | of the parties to an oral agreement of its effect does not extend to a party to an oral contract who was not present, and did not in any way participate in the making of such contract. The excluded testimony as to statements of Costello and his attorneys respecting the appeal to the United States Supreme Court in the "Triangle" Case could, from no point of view, have been competent, and, if competent, could not have affected the result. No reversible error appearing, the judg ment of the district court is affirmed. KENT, C. J., and CAMPBELL, and LEWIS, JJ., concur. (13 Ariz. 388) GRANT BROS. CONST. CO. v. UNITED One is not liable criminally for unlawful acts of his agent, though committed in the principal's business, unless they were directed by or acquiesced in by the principal. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 75; Dec. Dig. § 62.*] 6. ALIENS (§ 58*)—UnlawFUL IMPORTATION-KNOWLEDGE OF PRINCIPAL-JURY QUES TIONS. alien contract laborers were imported in vio- weight of evidence nor determine what verdict Error, Cent. Dig. § 3987; Dec. Dig. § 989.*] 8. DEPOSITIONS (§ 35*)-NOTICE OF APPLICA- The purpose of notice of taking of depositions is to advise the adversary of the application for commissions to take the depositions and of the interrogatories attached thereto, so that he can frame cross-interrogatories. [Ed. Note.-For other cases, see Depositions, Cent. Dig. §§ 44-46; Dec. Dig. § 35.*] 9. DEPOSITIONS (§ 35*)-NOTICE OF APPLICATION FOR COMMISSION-SUFFICIENCY. Where defendant obtained a change of venue after plaintiff had prepared, but before service of, notice of an application to the clerk of the original court for commissions to take dẹp8ositions, it was not necessary to serve new interrogatories and new notices, specifying the clerk of the court to which the cause was trans (Supreme Court of Arizona. March 27, 1911.) ferred. [Ed. Note. For other cases, see Depositions, [Ed. Note. For other cases, see Aliens, Cent. Cent. Dig. §§ 44-46; Dec. Dig. § 35.*] Dig. §§ 113, 114; Dec. Dig. § 58.*] 2. CORPORATIONS (§ 526*)-CRIMINAL RESPONSIBILITY-INTENT. A corporation can form a criminal intent, and have the knowledge essential, provided the officers representing it have such knowledge or intent. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2138, 2139; Dec. Dig. § 526.*] 3. ALIENS (§ 40*) - PENAL STATUTES STRUCTION. CON Act Cong. Feb. 20, 1907, c. 1134, §§ 4, 5, 34 Stat. 900 (U. S. Comp. St. Supp. 1909, pp. 450, 451), prescribing a penalty for encouraging immigration of alien contract laborers, being penal, must be strictly construed. [Ed. Note.-For other cases, see Aliens, Cent. Dig. 100; Dec. Dig. § 40.*] 4. MASTER AND SERVANT (§ 314*)-UNLAWFUL ACTS OF EMPLOYÉ EMPLOYER'S RESPONSIBILITY. One is not criminally responsible for unlawful acts of his employé, though committed in the employer's business, unless they were di 10. DEPOSITIONS (§ 111*)—IRREGULARITIES— LABOR. Opening depositions at the adversary's request waived irregularities appearing on the outside of the envelope. [Ed. Note. For other cases, see Depositions, Cent. Dig. §§ 329-339; Dec. Dig. § 111.*] 11. ALIENS (§ 58*)-UNLAWFUL IMPORTATION -EVIDENCE-ADMISSIBILITY. In an action under Act Cong. Feb. 20, 1907, c. 1134, § 5, 34 Stat. 900 (U. S. Comp. St. Supp. 1909, p. 451), for penalties for encouraging immigration of alien contract laborates and employés of one with whom defendant ers, evidence of statements made by the associcontracted was admissible to show the acts done under the contract, though the evidence also tended to show defendant's knowledge of the unlawful acts. [Ed. Note.-For other cases, see Aliens, Dec. Dig. § 58.*] 12. ALIENS (§ 58*)—UNLAWFUL IMPORTATION -EVIDENCE-ADMISSIBILITY, In an action under Act Cong. Feb. 20, 1907, c. 1134, § 5, 34 Stat. 900 (U. S. Comp. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes St. Supp. 1909, p. 451), for penalties for en- | against the construction company to recover couraging immigration of alien contract labor- a penalty under sections 2, 4, and 5 of the ers, a decision of a board of special inquiry of act of Congress approved February 20, 1907, the federal immigration service respecting the status of the particular aliens was properly re- entitled "An act to regulate the immigration ceived in evidence. of aliens into the United States" (34 Stat. 898; Fed. Stat. Ann. Supp. 1907, p. 96 [U. S. Comp. St. Supp. 1909, p. 447]). The complaint 13. TRIAL (§ 252*)-REFUSAL OF INSTRUC-contained 45 counts. The first count alleged TIONS GROUNDS. [Ed. Note. For other cases, see Aliens, Dec. Dig. § 58.*] Instructions inconsistent with the facts as developed on the trial are properly refused. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 596-612; Dec. Dig. § 252.*] 14. TRIAL (8 260*)-REFUSAL OF INSTRUCTIONS-GROUNDS. Instructions covered by those given are properly refused. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*] 15. ALIENS (§ 58*)-LABOR LAW-SUIT FOR PENALTY-COSTS. A successful party in a suit under Act Cong. Feb. 20, 1907, c. 1134, § 5, 34 Stat. 900 (U. S. Comp. St. Supp. 1909, p. 451), for penalties for encouraging immigration of alien contract laborers, is entitled to costs. [Ed. Note. For other cases, see Aliens, Dec. Dig. § 58.*] Appeal from District Court, First District; before Justice Campbell. Action by the United States of America against the Grant Bros. Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed. Baker & Baker, Isadore B. Dockweiler, and F. C. Struckmeyer, for appellant. J. E. Morrison, U. S. Atty., and J. C. Forest, Asst. U. S. Atty. that on the 29th day of October, 1909, the construction company induced and solicited, and caused to be induced and solicited by offers and promises of employment as a laborer for the construction company, one Benito Acuna to migrate from the United States of Mexico into the United States of America, and that upon such offers and promises the said Acuna did migrate from the United States of Mexico to the United States of America, and that the construction company assisted and encouraged, and caused to be assisted and encouraged, the importation and immigration of the said Acuna into the United States, and furnished and caused to be furnished conveyance and transportation to the said Acuna, and paid and caused to be paid the expenses of his trip from Hermosillo, state of Sonora, United States of Mexico, into Naco, territory of Arizona, in the United States of America. The count further al leged that the said Acuna was an unskilled laborer and not one of the classes of persons exempt from said act of Congress. The allegations of the remaining 44 counts of the complaint are identical with the first count, except that a different alien is named in each count. Each count prays judgment for $1,000, and the complaint concludes with a prayer for judgment against the construction company for $45,000. The construction company interposed a general denial, and upon the issues so formed the jury returned a verdict against the appellant on all of the 45 counts of the complaint, and fixed the amount of the recovery of the United States at $45,000. Upon this verdict a judgment was entered, and from this judgment and an order denying a motion for a new trial, the construction company has appealed to this court. KENT, C. J. The appellant, Grant Bros. Construction Company (whom we shall hereafter designate as the construction company), is engaged in the business of a railroad contractor, and in the year 1909 was building a line of railroad between Kelton and Naco, Ariz. The construction work required the services of a large number of laborers, and, as such laborers were constantly leaving the employment, the work necessitated the constant employment of new laborers to take the place of those leaving; some 5,000 laborers in all having been from time to time employ- It is conceded by the appellant that the ed. The officer of the construction company provisions of the act in question were vioin charge of the employment of the men was lated by Carney and his associates and subAngus Cashion, its assistant general foreman. ordinates, and that in the carrying out of the During the latter part of August or the contract between him and the construction 1st of September, 1909, Angus Cashion enter- company Carney and his associates and subed into an oral contract with one W. W. Car- ordinates, by offers and promises of employney, at Nogales, Ariz., to furnish the con- ment, directly procured the importation and struction company laborers for its construc- migration of contract alien laborers into the tion camps in Arizona, agreeing to pay Car- United States, and the record amply bears ney a dollar a head in gold for every laborer out this concession. It is claimed, however, delivered to its camps and 20 cents per meal by the appellant that the acts done in viowhile en route from Nogales, Ariz., to the lation of the law were the acts of Carney and construction camps. It having come to the his associates and subordinates, and not the attention of the authorities that laborers for acts of the construction company, done withthe construction company were being brought out the knowledge, assent, or ratification of into this country from Mexico, the United the company, and for which it is in no way States brought an action in the district court responsible, and that the verdict and judg ment of the court is contrary to law, in that | States, unless such was done knowingly; [2] it is not supported by the evidence. "Sec. 4. That it shall be a misdemeanor for any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation or in any way to assist or encourage the importation or migration of any contract laborer or contract laborers into the United States, unless such contract laborer or contract laborers are exempted under the terms of the last two provisos contained in section two of this act. "Sec. 5. That for every violation of any of the provisions of section four of this act the persons, partnership, company, or corporation violating the same, by knowingly assisting, encouraging, or soliciting the migration or importation of any contract laborer into the United States shall forfeit and pay for every such offense the sum of one thousand dollars, which may be sued for and recovered by the United States, or by any person who shall first bring his action therefor in his own name and for his own benefit, including any such alien thus promised labor or service of any kind as aforesaid, as debts of like amount are now recovered in the courts of the United States; and separate suits may be brought for each alien thus promised labor or service of any kind as aforesaid. And it shall be the duty of the district attorney of the proper district to prosecute every such suit when brought by the United States." but a corporation, as well as an individual, is capable of forming a guilty intent and capable of having the knowledge necessary, provided the officers of the corporation capable of voicing the will of the corporation have such knowledge or intent. [3] This act, a statute of the United States, being penal in its consequences, must be strictly construed, and as knowledge is the principal and indispensable ingredient in the offense, the government, the plaintiff in the case, must be held to proof of such knowledge or to proof of circumstances from which it might be fairly inferred. Unless the evidence, therefore, affords proof of knowledge by the construction company, or proof of circumstances from which such knowledge may be fairly inferred, of the acts of Carney and his associates, the construction company cannot be held liable for such illegal acts of Carney, [4, 5] for the master or principal is not liable criminally for the unlawful acts of his agent or servant, though such unlawful act be committed in the master's business, unless such unlawful act was directed by him or knowingly assented to or acquiesced in. A clear definition of what is meant by legal knowledge is found in the language employed by Judge Nixon in charging the jury in the case of the United States v. Houghton (D. C.) 14 Fed. 544, which was a criminal prosecu tion based upon section 5418 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 3666), making it a misdemeanor for any person to present to any officer of the United States any false, forged, or altered public record and other writing, knowing the same to be false: "What is legal knowledge of a fact? There is great misapprehension in the popular mind on this subject. There seems to be a prevalent notion that no one is chargeable with more knowledge than he chooses to have; that he is permitted to close his eyes, when he pleases, upon all sources of information, and then excuse his ignorance by saying that he does not see anything. In criminal, as well as civil, affairs every man is presumed to know everything that he can learn upon inquiry, when he has facts in his possession which suggest the inquiry. This knowledge of the defendant must be affirmatively shown by the government. Except in the case of confession, it is generally impossible to make it out by di It is to be noted that the act is broad and comprehensive in its terms. By section 4 it is made a misdemeanor for any person or corporation in any manner whatsoever to prepay the transportation, or in any way to assist or encourage the importation or migration, of any contract laborer into the United States, unless such laborer be of the class exempt, and that by section 5 provision is made for the bringing of an action to re-rect evidence, and can only be inferred from cover a penalty against any person violating the provisions of section 4 by knowingly assisting, encouraging, or soliciting the migration or importation of any such contract laborer into the United States. [1] In order to warrant a recovery in the action, the violation of the act must have been knowingly done by the person sought to be held [6] It is the contention of the appellant responsible. Under the act it is not sufficient that the testimony adduced in the cause is that the defendant sought to be charged as- not sufficient to show knowledge on the part sisted, encouraged, or solicited the importa- of the construction company of the acts tion of a contract laborer into the United complained of. The testimony is voluminous, overt acts. Wharton, in discussing the subject, says that if the knowledge cannot be implied from the facts and circumstances which, together with it, constitute the offense, other acts of the defendant from which it can be implied to the satisfaction of the jury must be proved at the trial." for such transportation in a special car a pass was issued, reading "Cananea, Yaqui River & Pacific Railroad. Pass A. Castaneda and forty-five laborers from Hermosillo to Lomas, account laborers," and argues that as the laborers could not mean the laborers of that railroad company the pass was issued and charged to the construction company by some arrangement with the construction company not in evidence, and that the jury were warranted in so inferring; that other rec ords and passes relating to the transportation of these men are not to be found among the records and papers in the railroad's possession, as testified to by the officials; that at the time these 45 laborers reached Naco one D. R. McDonald, an agent of the con、 struction company, was there to receive them, and that Carney expected him to be there and had addressed a letter to him there, and that Carney had told Randall, his subordinate in charge of the 45 men, that Randall was to deliver them to McDonald at Naco, who was to receipt for them and to take them to the construction company's camp; that Ruppelius, under the positive instruc tions of Carney, went several times to Hermosillo to "scatter the word" in that vicinity that laborers were wanted by Grant Bros. Construction Company. consisting partly of oral testimony and part- 45 aliens from Hermosillo to Lomas; that ly of depositions read in evidence. The testimony of the plaintiff tended to show the following facts: The contract between Angus Cashion and Carney above referred to, whereby Carney was to furnish laborers to the construction company, Carney to receive a dollar a head in gold and 20 cents a meal for feeding the men en route; that Carney was a man who had had business relations with the construction company for several years prior to the making of the agreements; that Carney stated that he was going to open offices to secure the laborers in Nogales, Naco, and Douglas, Ariz.; that these three towns are along the border between Arizona ånd Mexico; that Carney's office was in Nogales, Mexico, though his house was in Nogales, Ariz.; that Carney employed the firm of C. F. Holler & Co., whose offices are in Nogales, Ariz., which firm was composed of C. F. Holler and C. J. Ruppelius, offering to pay them 50 cents of the dollar that he was to receive for each laborer. Between the time of making the contract and the 29th of October, 1909, approximately 450 men were delivered under this contract to the construction company at their works in Arizona, 95 per cent. of whom were Mexicans, and at least 80 of these had been brought up from Hermosillo, Mexico, where they had been openly employed to work for Grant Bros. Construction Company through the solicitations of Ruppelius, and, having successfully evaded the interrogations of the immigration officers, presented themselves at the American offices of Holler & Co. in Nogales, Ariz., and were thence shipped to the construction company's camp. The plaintiff showed that Ruppelius did not pay the transportation of these 80 men from Hermosillo to Nogales, that Carney did not pay it, and that Holler & Co. did not pay it, and from the fact that none of such persons interested in the contract paid such transportation, or under the terms of the contract could afford to pay it, argues that the construction company, the only other person interested, must have paid such transportation, or else that the railroad company transported the men free; that Ruppelius arranged with the agent of the Mexican railroad at Hermosillo for the transportation of these 80 laborers in a special car by telling the agent that the men were going to Nogales, Ariz., for the purpose of asking work from Holler & Co., and that they were employed by Grant Bros. Construction Company at Cochise; that as to the 45 laborers for the subsequent importation of whom from Hermosillo this action was brought, Carney issued a pass from Lomas, Mexico, to Naco, Sonora, and charged the pass to the "account of Grant Bros. Construction Company," which pass was recognized by the railroad company and charged by it to construction account; that neither Carney, Holler, nor Ruppelius Carney testified that he had received instructions by letter from the construction company to ship the men to Naco, and that the shipment of the 45 men in question was the first shipment made under such instructions. McDonald, who was at Naco to receive the shipment of 45 men, took them, by consent of the authorities, to dinner, for which he paid and charged the amount thereof to the construction company. Much other testimony was given, tending to show acts flagrantly violative of the act of Congress by Carney, Ruppelius, and others in connection with the importation of alien laborers, and much testimony, impracticable to condense, in relation to the failure of the records of the railroad companies in Sonora to show by whom the transportation of such laborers in Mexico was paid. On the part of the construction company, Angus Cashion testified that, at the time of making his contract with Carney, he said to him, "Under no conditions do you want to go into old Mexico and employ any laborer: we don't want you to solicit or talk to a man on the Mexican side"; that Nogales, Ariz., was supposed to be a good labor market. James A. Cashion, vice president and general manager of the company, testified that on October 25th he asked Carney, "Where are you getting the men," and that he said, "In Nogales," and that he thereupon said, "You want to be sure that you get them on the American side; we don't want you to get a man on the Mexican side; we don't want you to offer him any induce |