TRE D. S. NEWCOMB.
BUTLEll, D. J. The libellant cannot recover. His sunken barge obstructed the channel. It was his duty therefore to remove it speedily. After sufficient time for this had elapsed, I incline to be· lieve the vessel might have been treated as a nuisance. I think the authorities cited in respondent's statement of law support this. view. Lt is not necessary, however, to decide the point. The delay, coupled with the fact that another vessel; the Havana, had in the mean time rested upon the barge, and as probably did mischief as the Atlee, has rendered ascertainment of the injury inflicted by the latter impracticable. This situation having resulted from libellant's negligence he must bear the consequences. Respondent must not be subjected to the danger of guessing, thus rendered necessary. That there was very great delay in removing the barge is not open to doubt. She could have been raised in 24 hours j and yet it was on the sixth day after she sank that the Atlee entered the dock. The failure of those whom libellant employed does not excuse him. It It is not doubted that he could have had the work done within 48 hours, if he had displayed the energy and vigilance which his duty required. That the Havana rested upon the barge in advance of the Atlee, can only be questioned by imputing perjury to ,a witness, who appears to be disinterested and is uncontradicted. A decree must be entered dismissing the libel, with costs.
w: D. Penn811l"ania.
May Term, 1882.,
The general maritime law gives no lien for services In raisIng a sunken vessel, rendered in her home port.
Nor is a contract for raising a sunken vessel within the purview of a local statute which gives a lien for work done or materials furnished" in the build· ing, repairing, fitting, furnishing, or equipping" vessels, although the execu· tion of the contract involves the bUlk-heading, planking up, and closing tho breaks in her hull to keep her afloat while being towed to the docka.
In Admiralty. Sur exceptions to libel. John Barton tl Son, for libellant. Knox et Reed, for exceptants.
ACHESON, D. J. If it be conceded that the libellant's services were maritime, and that the libel sufficiently avers that they were rendered upon the credit of the D. S. Newcomb, the objection to this libel in rem, that they were performed at the home port of the boat, still remains. That in such case no lien exists by the general maritime law is settled. The Lottawanna, 21 Wall. 558; Mon. Nav. 00. v. Steam-tug Bob Oonnell, 1 FED. REP. 219. Can the libel be sustained under the local statute? steam-tug D. S. Newcomb had been sunk in the Allegheny river at the foot of Thirteenth street, in the port of Pittsburgh, and the libellant's services were in raising and putting her afloat ready for the dry-dock. The act of assembly, it seems to me, gives no lien for such services. "All debts contracted - · - for or on account of work and labor done or materials furnished - - lit in the building, repairing, fitting, furnishing, or equipping" vessels, is the language of the act. Par. 97. In the present case the contract was for raising a sunken boat for a specified sum of money. It is true the libel avers that this "involved the necessity of making material repairs to said vessel by bulk-heading, planking up, and closing breaks and openings in her hull, and making the same seaworthy, so that said vessel could be towed and navigated and taken to the docks located on the Ohio river, in the lower part of Allegheny City." But the main thing was the raising of the boat, and the alleged repairs were merely incidental, and but temporary expedients to keep the boat afloat while being towed to the neighboring docks for repairs. The act of assembly is not to be enlarged by construction. I am of opinion that it does not embrace the libellant's contract. The third exception to the libel is sustained. Let a decree be drawn dismissing the libel, with costs.
TILLOTSON and others.
(Circuit Court, S. D. Illinois.. July 7,1882.1
REMOVAL OF CAUSE-NECESSARY PARTIEB-CO:NTROVERSY TO BE FULLY !lINED.
Where one of two necessary party defendants is a citizen of the same stat. With the complainant, and there is no separable controversy between the'com plainant and the other defendant, citizen of another state, which can determined as between them without the presence of defendant who is a Oitizen of the same state with the complainant, the federal court has no juris diction.
HARLAN, Justice, (orally.) This suit in equity was commenced in the circuit of McLean county, Illinois, and was thence removed. upon the the petition of Tillotson and the insurance company, to the circuit court of the United States for the southern district of Illinois. The complainant moved to remand the cause to the state court, upon the gronnd that it was not removable under the statutes regulating tho jurisdiction of the courts of the United States. The complainant is, and was at the commencement of the suit, a citizen of Illinois, al! were also the defendants Tillotson and Winegardner. The insurance company, the remaining defendant, is a corporation created by the laws of Massachusetts. The facts bearing u.pon the question of juris diction are these: Winegardner having borrowed of the insurance com pany the sum of $3,500, (for which· he gllove his bond, or note, witb interest coupons attached,) executed a deed of trust conveying to Til· lotson two lots, or parcels of land, in Bloomington, lllinois, in trust to secure the repayment of the amount so borrowed. The deed provided that in case of default in the payment of the bond, or of any interest coupon at maturity, the principal should become due, and the trustee should, upon the. application of the legal holder of the bond, after hav ing advertised for 30 days in a public newspaper in McLean county, sell the premises, and all the right, title, and equity of redemption and homestead of Winegardner, to the highest bidder, for cash, execute to the purchaser a conveyance in fee for the premises so sold, and applJ the proceeds to the mortgage debt. A default in paying interest having occurred, the trustee, in conformity with the demand of the company, advertised the property for sale. The present suit was brought by Mrs. Mitchell, for the purpose of enjoining the sale of one of the lots. Her suit proceeds upon the ground that the lot in question is her separate property, and that whatever rights were acquired in or to v.12,no.9-47