The position taken by the libellant hostile to any claim on their part makes it improper, even if it would be regular, that their shares should be paid over to him or the owners, and that they should be remitted to an action to recover them. No reason is shown why the crew should not, as in other , eases of salvage, participate in the recovery. The court will make no order that shall appear to be a denial of their right. If such a reason exists it should be shown in this court, and upon notice to them upon proceedings duly taken for an apportionment. Let a decree be entered that the libellant recover the amount of the tender on behalf of himself and the owners, and all others who may be interested therein, including the crew; the same to remain in the registry of the court subject to a final order of distribution to be made pursuant to proceedings to be instituted therefor by the libellan.t or any other party interested.
MOWILLUMS v. THE STEAM-TUG VIM and SCHOONER SPARTEL.
(District Oourt. S. D. New York. May 15, 1880.)
A VERMENTB-ADMlRALTY RULlll 23.
S. H. Valentine, for the steam.tug. W. W. Goodrick, (Mr. Deady,) for the schoon,er. E. D. McGa1·tky, for libellant.
CHOATE, D. J. This is a libel brought by the owner of the canal-boat Captain Geo. M. Wright to recover damages for a collision. The libel alleges that the steam-tug Vim, on the fifth day of March, 1880, was proceeding up Long Island sound, bound from New York to Glen Cove, having in tow the libellant's canal-boat on her port side, and two other boats or barges on her starboard side, when, at about 2 o'clock in the morning, and when two-thirds of the way, or nearly that, between Hart's island and Sand's Point, the said tug came into collision in mid-channel with said schooner Spartel, bound to New York, so that the Spartel struck libel-
lit'WILLIAMS V. STEAM-TUG
lant's boat in the stern, and inflicted such severe Injuries that she had to be towed ashore and beached; that libellant's boat was under the control of the Vim, and entirely helpless and unable to avoid the collision; that she was seaworthy, and properly manned and equipped. The libel then proceeds as follows: "Your libellant charges, in general terms, both the tug Vim and the schooner Spartel for the said collision. The channel is many miles in width at the place of the collision, and there was no need of the schooner and the tug coming in contact, and it was gross negligence for them to have done so. Your libellant particularly charges negligence in the steam-tug and the schooner for not having seasonably seen each other." Then follows the statement of damage and the prayer for process. To the libel the owners of the schooner and the owners of the tug, both of whom have appeared as claimants to defend the suit, have filed the following exceptions: (1) That it does not allege any particular act of negligence on the part of the said schooner, [or steam-tug,] except that she did not see the said steam-tug [or schooner] in time; (2) that it does not state which way the wind was blowing or the tide running; (3) that it gives none of the particulars of the collision. The exceptions are well taken. The rules in admiralty require the libel to contain a statement of "the various allegations of fact upon which the libellant relies in support of his suit, so that the defendant may be enabled to answer distinctly and separately the several matters contained in each article." Adm. Rule 23.. The practice under this rule requires a plain statement of the movements of the two vessels as they approached each other, their courses, and. the mode in which they were sailed or handled, and the circumstances of wind and tide, where these have any bearing on the case, as they generally have, and also a distinct statement of the acts of negligence or faults of navigation which are claimed to have caused or contributed to the disaster, and such a statement of the circumstances of the collision that the connection between the alleged faults and the collision, as cause and effect, can be plainly understood. This libel contains no such
statement or details. The averment of a charge of negli. gence, in general terms, against both schooner and steam-tug. is too uncertain and indefinite to be considered an allegation of any particular negligence at all. The only specific charge is the not seeing the other vessel seasonably. This may possibly be equivalent to the ordinary averment of not keeping a good lookout. But there is noth. ing to show how or why this fault caused the collision. If the claimants had seen fit to go to trial on this libel, the only act of negligence upon which either of the vessels could be held would be the not seeing the other in time. If libellant failed to prove this his libel would be dismissed. But the claimants, even as to this charge, are entitled to a more definite and detailed statement of the facts of the collision. It is suggested that the owner or master of the canal-boat, not being in any way responsible for her navigation while in tow, lashed along-side of a tug, h!ts not the means of knowl. edge, or the information as to the circumstances and causes of the collision, which the owners of the two vessels, or those whom they have placed in charge of them, must be presumed to have. If, however, a libellant on this ground seeks to excuse himself, in some particulars, from that fulness of statement which the practice requires, it should appear in the libel that he has not knowledge, or means of information, sufficient to state the details in question. The presumption is that there was somebody on the canal-boat at the time, and that a party having a cause of action can ascertain the material facts on which it is based. Of course, greater indulgence, both in the matter of pleading and in the matter of amending pleadings to conform to the facts proved, will be granted to persons thus situated, having less full means of information, and less obligation to observe the movements of the vessels, than the principal actors in them have. But this rule of practice is wholesome and necessary for the of the real issues to be tried, and for fair play between the parties upon the trial of the cause. Exceptions sustained; the libellant to have one week to amend his libel, and to recover no proctor's fee in the suit in any event.
B., F. 'It. & P.
THOMAS, Trustee, v. THE BROWNVlLLE, FORT KEARNEY & PACIFIC RAILWAY CO. and others.
(Otrcuit Gourt D. Nebra8ka. May, 1880.)
CONTRACT-PARTIES-RAILROAD DIRECTORB.-A contract between a railroad and a construction company is void where any of the directors of the railroad are members of the construction company. 8AME-EsTOPPEL-HATIFICATION.-The stockholders of the railroad are not estopped by long acquiescence in such contract, nor can the same be ratified by a board of directors composed in part of members of ths construction company. SAME-EQ.UITABLE BELIEF-PUBLIC POLTCY.-Public policy will not permit a court to grant equitable relief under such contract, where it further appeared, upon the face of the contract, that each director of the railroad received a pecuniary consideration for entering into the contract.
In Equity. Mortgage foreclosure. J. M. Woolworth and J. R. Webster, for complainant. J. H. Broady, for defendants. MCCRARY, C. J. The defendant railway company is a corporation ol'ganized under the laws of Nebraska, and had authority to construct a t:ailroad from Brownville westward to the west line of Gage county, Nebraska. It possessed certain property and assets which, on the eighteenth day of September, 1871, according to the report of the master herein, amounted to $117,042.56. Said company having commenced the construction of said railroad, and being unable to complete it without seeuring capital from other parties, on the said eighteenth day of September, 1871, entered into a contract with Benjamin E. Smith and William Dennison, of Ohio, and J. N. Converse, of Indiana, and such others as might thereafter be associated with them, whereby the latter, for certain considerations named, agreed to complete the construction of the the .road over and along the route above named. The mortgage sued on in this case was executed to Joseph T. Thomas, trustee, to secure the payment of certain bonds issued under the said construction contract for the purpose of building the road. The validity of this contract is assailed upon the ground that subsequently to its execution, and before any work was done under it, two of the stockholders and di. IS-