BALL V. WINSLOW.
August 20, 1883.)
(Circuit Court, D. Massachusetts.
The evidence in this case, upon examination, appears to sustain the judge men t of the district court, and It is accordingly attirrned. The Blenheim, 14 FED. HKP. 797, affirmed.
OF VESSEL-TORT-TBIE AXD PLACE.
The maxim that damages for a tort are to be assessed as of the time and place at which the tort is committed, mllst be taken with a good deal of allowance, so far as the place is concerned. If a foreign ship is destroyed in American waters, and if in such a place her market value is low by reason of our navigatIOn laws, the measure of damages for her loss would be her value in the home port.
In Admiralty. Frank Goodwin, for Ball. Almon A. Strout, for Winslow. LOWELL, J. The callses of this collision are obscured by the usual conflict of testimony; but, after a careful study of the record, I concur in the conclusionR of the district judge in The Blenheim, 14 FED. REP. 7!)7, that the brigantine is not proved to have contributed to the disaster by a change of course. '1'hat her people tried to deaden her way, is proved; but, if that is all, no possible injury can have resulted from their action. I find the preponderance of the evidence to be that whatever they did was done in the last extremity, and was not the cause, in whole or in part, of the collision. The objection taken to the assessor's report, ably argued as a point of law, is rather one of fact. The valuation of $12,OUO for the ship was adopted from the evidence of two persons who were weU acquainted with her, one of whom had an interest in the result, and the other not. The experts called on behalf of the claimants, who estimated the ship at about $1,500 less, candidly admitted that they should prefer the opinion of persons who had actual knowledge. The point that the market value at Demarara should be the measure of damages, because the collision happened within a few miles of a port in that country, is not in the case, because there is no evidence from either side of such value. I will say, however, that the maxim that damages for a tort are to be assessed as of the time and place at wuich the tort is committed, must be taken with a good deal of allowance, so far as the place is concerned. If a foreign ship is destroyed in American waters, and if in such a place her market value is low by reason of our navigation laws, the measure of damages for her loss would be her value in the home market. However, that point is merely a moot one in this case. The witnesses on both sides have adopted the home market in making their estimates, and the assessor has decided fairlv and iustlv upon the ()f the evidence. Decrees affirmed.
FILER t'. LEYY.
and others v. LEVy. 1
(Circuit Court, lV. D. Louisiana.
The question,whether or not this cause is a suit in which there exists a controversy oetween citizens of different states, is not an issue which can oe raisell and judicially determined on the trial of a motion to remand the case to the state court. 2. SAME-PLEA-EQUITY HULE 3l. 'Yhen the pleadings show jurisdiction, as in the instant case, the question of citizenship can only be brought to the attent,ion of the court by a plea duly filed and sworn to according to rule 31, Hules of Practice in Equity. Hoyt v. Wright, 4.FED. HEP. 1(i8; 12 Blatchf. 3:20; 6 Blatchf. 130.
BY EXECUTOR, LEGA'I'EE, AJo;D l'ARTXER.
A suit originally instituted in the state comt by an executor, legatee, who also sues as the agent of other legatees, non-residents, claiming a sum of money from a liquidat.ing ,,,ntner as due to the succession of his deceased partner, is not an actiou merely incldeatal to the settlement of the sll"cession of tile deceased partner; is not an action which is supplemental to nor auxiliary of any pending proceeding in such succession, nor in any sense ail ancWar:" suit; but is a separate, distinct, and independeat suit, purely within the provisions of the fedl3ral judiciary act of Ib75, and is properly removed to this court on the application of either party 4. SAME-SUBJECT-J\IATTER OF SUIT-ACT OF IS75. The judiciary act of 1875 does not declare what particular suhject-matter shall or shall not enter into the controversy sought to be removed; hence it is not WIthin the prOVince of the state or federal courts to say that a suit in equity, where there is a controversy between parties of dilIerent citizenship, cannot be removed because of its pecuEar subject-matter. 5. 1;0< PnonATE COUR'I'. The fact that the liquhlating partller gave bond in the prohate conrt of the state, or that he is an ofllcer of such conrt, might alIeet this court'sjurisdietion ratione materiw to entertain the suit originally, but these facts are of no in considering the motion to remand. 6. S.UIE-HE)WVl,L OF l'nOK\TF: PnocEJ<.DJXGS. This court has jurisdiction of "lIitS in what are called probate proceedings, when properly removed to it trol1l the state court. Suits anJ proceeding.· in l'c,n de tined.
On to Remand. Alexilluicr & Blanchard, for plaintiff. Land d: Land and Il. I. Looney, for defendant. BOAmuN, J. Lazarus Bodenheimer, a member of the commercial partnership of Leyy & Bodenheimer, died, leaying a large estate in the pa.,'mership. In his will he appointed William Filer and Simon Levy executors, Rnd Simon Levy also qualified, as liquidating partner. Levy having administered the partnership for one year,-the time allowed him for closing up the business,-'William Filer, as executor, legat£le, and as the agent for other legatees, citizens of New York, sued Leyy in the state court. They allege that Levy, having made no final account of his administration of the partnership, has
by Talbot fotillman, Esq., of the )Ion:-oe, Louisiana, bar.