the clerk as aforesaid the ship-keeper has retained possession of the vessel and has demanded pay for. his services. George N. Loveridge, for motion. James A. Murray, opposed. COXE, J. I have read with care all of the affidavits and papers submitted in this case and have reached the conclusion that the bill of costs and disbursements as taxed by the clerk, February 28, 1884, cannot with propriety be reduced. As the stipulation limits the inquiry to the items of that bill, I express no opinion upon the question as to the right of the ship-keeper to compensation since that day. There should be no delay, however, if the controversy is settled, in · discontinuing the action and restoring the vessel to her pl'oper owner.
(Dtstriet Oourt, N. D. New York. March,1884.)
CoSTs-LIBEL IN REM-SETTLEMENT.
The respondent in 8 suit for seamen's cannot II,vold the payment of of his proctors. costs by settling with the libelant without the
Cook Fitzgerald, for libelant. Williams Potter, for respondent. COXE, J. This is a libeIfor seamen's wages. The simple question is: can the respondent by a settlement with the libelant avoid the payment of costs? I am clearly of the opinion that he cannot. The libelant was compelled by the respondent's refusal to pay his wages to commence this suit. Costs and disbursements were incurred, due not only to the proctors, but to the marshal and clerk. By paying the libelant the respondent admits that the claim against him was a just one. Why should he not discharge all the debts which his own conduct made it necessary to incur? To permit a party, by means of what Judge BETTS sententiously terms "an out-door settlement," to avoid the payment of such obligations would be to encourage practices which the court should be slow to sanction. Courts of admiralty in actions of this character have' seldom failed in similar circumstances to grant protection to the injured party. The Sarah Jane, 1 Blatchf. & H. 401, 422; The Victory, ld. 443; The Planet, 1 Spr. 11; Angell v. Bennett, ld. 85; CollillS v. Nickerson, Id.126; Gaines v. Travis, 1 Abb. Adm. 301. The libelant's proctors are entitled to recover their costs to be taxed by the clerk.
PHELPS V. CANADA. CENT. B. CO.
PHELPS 'D. CANADA CENT.
(Circuit Court, N. D. New York. April 3, 1882.)
IlJmovAL OF CAUllE-AMENDING COMPI.AINT.
Where, before the removal of a cause, the state court has restricted plaintiff to his cause of action for breach of contract, on which an attachment has been granted, and he has elected to consent to such order, and it is still in force when the case is removed to the federal court, a motion by plaintiff in the circuit court for leave to amend his complaint may be denied, no change in the relative position or rights of the parties having been made.
Mullin et GrijJin, for plaintiff.
Motion to Serve Amended Complaint.
Edward O. James, for defendant. J. Before this action was removed into this court the state court had granted an order restricting the plaintiff from averring in his complaint any cause of action against the defendant other than for alleged breach of contract set forth in the affidavit upon which the defendant's property was attached and its appearance thereby compelled. Although the main point considered by the state cOl!rt upon the motion which resulted in such order was the right of the plaintiff to incorporate into his complaint a cause of action and prayer for equitable" relief, the order made was both broad and explicit in its terms, and confined the plaintiff to the cause of action set forth in the affidavit for the attachment. The plaintiff elected to consent to that order as a condition of retaining his attachment, which would otherwise have been vacated. Whether the state court would have thus adjudged if the plaintiff had complained upon a cause of action at law only, it is not for this" court to determine. It suffices that the order, as made, was in force when the action was removed to this court. Undoubtedly, this court has power to modify that order, but it would he unseemly, when nothing has occurred since the removal to change the rights or position of the parties, to disregard the adjudication of the state court made upon hearing and deliberation and consented to by the plaintiff. Although the plaintiff is entitled, by the Code of Procedure of the state, to amend, as of course, within the time limited by the Code after the defendant has answered, that right was waived, in so far as the exercise of it would involve any departure from the terms of the order, by the election signified upon the hearing which resulted in the order. The motion for leave to serve the amended complaint is denied. v.19,no.1l-51