THE WILLIAllI F. )I'BAE.
of proof to establish this is upon the sailing vessel. This burden she has sustained in this case, because it appears that her red light was seen on the steamer in ample time to avoid her. A flash-light could have revealed nothing to the steamer in regard to the brig's position or course which she did not fully and seasonably know. It might have done harm by obscuring the brig's red light; and that would have caused evident embarrassment, while the failure to show a torchlight did not create any embarrassment to the steamer or withhold any useful information. There is no ground to suppose that the exhibition of a torch-light would have been followed by any different maneuver by the steamer, or that it would have made the slightest difference in the result. The failure to show it was, consequently, immaterial within the cases above cited, and was in no sense one of the proximate causes of the collision. Spaight v. Tedcastle, L. R. 6 App. Cas. 217, 219; Cayzer v. Carbon Co. L. R. 9 App. Cas. 873, 882, 886. The libelant is therefore entitled to a decree with costs; and lit ref· erence may be taken to compute the damages.
January 26, 1885.\
(District Court, E. D. Michigan.
ADMIRALTY PRACTICE-LIBEL FOR OOLLISION-DISMISSAL-SUBSEQUENT LIBEL BY WIFE CLAIMING AS OWNER OF
In Admiralty. This was a libel for a collision, promoted by Elizabeth McClure, who was averred to be the owner of the scow Frank Morris, the illjured vessel. The case was submitted to the court informally upon the sufficiency of the following averment in the answer:
"(5) Respondent, further answering, says that on the sixth day of October, A. D. 1883, a libel was filed in this court by one George McClure, who is reputed to be the husband of the libelant herein, against the said tug William F. McRae. etc., for the same cause of action, as will more fully appear by an inspection of said libel; that said tug. William F. McRae was arrested in said suit, and subsequently was duly released on a good and sufficient bond given, in due form, for the sum of $4,940, and that thereby the said tug was forever discharged from said cause of action, so that this suit cannot now be maintained against her."
J ante. 'J.A tki'1,t.80n, for libelant. J. W. Finney, for claimant. BROWN, J. That a vessel discharged from arrest upon admiralty process by the giving of a bond or stipulation for her value, or for the payment of the amount claimed in the libel, returns to her owner freed forever from the lien upon which she was arrested, and can never be seized again for the same cause of action, even by the consent of parties, is a proposition too firmly established to be open to question. The Kalamazoo, 9 Eng. Law & Eq. 557; The rVild Ba/lgcr, Brown. & Lush. 84 ; The Union, 4 Blatchf. 90; The TJlhitc Squall, 4 Blatchf. 103; The Old Concord, 1 Brown, Adm. 270; The ,Josephine, 4 Cent. Law J. 262. The general principle is further illustrated in the case of The In this case, a libel was filed against the bark Thales, 3 Ben. Thales to recover a balance remaining due for certain repairs, etc. Subsequently, this suit was discontinued and the costs paid. Still later, another libel was filed by the same libelants for the same cause of action, and the vessel arrested and bonded a second time. It was insisted that the discontinuance of the former suit, with the consent of the claimants therein, and the payment of the costs, which had been accepted by them, operated to make the arrest of the vessel in the second suit an original arrest, and not a second arrest. It wa:s held, however, that the case fell within the principle of The Union and The White Squall, and that the court had no power, in the absence of fraud or mistake, to order her arrested a second time, and that the fact that the first suit was discontinued with the of the claimants indicated no intention, actual or in law, to subject the vessel to a second arrest, or to waive the rights in that respect which then belonged to them. This case was affirmed hy Judge WOODRUFF upon appeal to the circuit court. 10 Blatchf. 203. There is occasionally, however, dilDculty in determining whether the second arrest is for t:1e same cause of action as the first. Thus a libel by the owner of a ship for damages by collision would obviously be no bar to a second action by the owner of the cargo for damages suffered by him in the sume collision, although it has been held, doubtless correctly, that if the ship-owner sues for damages both to the ship and cargo, as he may do under the practice of the' admiralty courts, the owner of the cargo cannot afterwards file a libel in his own name, but petition to be made a co-libelant in the first suit. The NailOr!) FED. REP. 213. In delivering tlle opinion in this case, Judge CnOA.TE remarked that "the vessel, having given bail for the value of the cargo in the first action, and the action being properly brought by the master and owners, as carriers, for the loss of the cargo, she was not liable to be again anested for the same cause of action." The rule, then, manifestly applies only to those cases wherein the libelant might have asserted his rights in the fimt actiun; and the real
THE WIJ,LIUIF. M'RAH.
question in this case is whether the libelant was not bound to aPllear in the suit begun by her husband, and ask to be made a co-libelant, or be substituted for him as sale libelant. Although it is not expressly averred in the answer in this case, it appears by the record of the former case that George McClure, the husband of the libelant, filed his libel for this collision October 0, 1883, averring himself to be the owner of the Frank Morris; and that his libel was dis missed ApriI 7, 1884, for failure to file security for costs. Pending her husballd's suit, and on the tenth of December, 1883, Elizabeth McClure, the present libelant, appearing by the same proctors, and claiming self to be the owner of the injured vessel, filed her libel in the exact language of the first libel, except in respect to the allegation of own· ership, and procured a second arrest of the vessel for the same collision. Under these circumstances, there can be no question that she had legal notice of the pendency of her husband's suit. Couldshe have been substituted in place of her husband as sole libelant in that suit? I should have had little hesitation in saying that she could, were it not for the opinion of Mr. Justice SWAYNE in the case of The Detroit, 1 Brown, Adm. 141. This was a suit for towage services, begun in the name of John K. Harrow, who was supposed to be the owner of the tug. After R!lsw:er filed, and the testimony of one witness had been taken, it was discovered that James P. Harrow was the owner of the tug at the time the services were performed. Upon an affidavit that the proctor had been misinformed at the time the suit was commenced, an amendment was permitted, substituting James P. for John IL Harrow as libelant. A motion to vacate the order permitting the amendment was afterwards made, and denied by the district court. On appeal to the circuit court it was held by the learned justice that there was no authority to make this order, and that the substitution of one. sale libelant for another is substantially the institution of a new suit. This point was not decided in view of the contingency which has arisen here; and the general rule that a vessel once arrested and bonded is to be regarded as forever freed of that lien, appears to me to be so wholesome a one that I am unwilling to admit exceptions to it, unless in a very clear case. With the utmost respect for the learned justice who decided the case of The Det?"iJit, I am constrained to say that I think the technical rule that one libelant can be substituted for another ought to give way to the general rule above stated, and to the still more equitable principle that where an action is sub· stantially between two vessels, a mistake of the pleader as to the ownership or legal title of the injured vessel (a mistake which in actual practice is very likely to occur) ought to be corrected by an amendment. It was decided by the supreme court in The Com. mander in Chief, 1 Wall. 43, that new parties may be added, and parties improperly joined may, on motion, be stricken out. And in Jennings v. Springs, Bailey, Eq. 181, it was held to be within the discretion of
the court to permit a bill to be amended by substituting the name of a new for an original complainant, even after answer filed. Here the bill had been filed by an agent o( the real complainant. But whether libelant could have been substituted for her husband or not, I see no objection to her being joined as co-libelant, and to the court making such decree upon the final hearing as to the distribution of proceeds as the justice of the case might require. In the case of The Tillie, 13 Blatchf. 514, a canal-boat wholly owned by a married woman was injured ina collision with a steam-tug. Her husband filed a libel in rem in his own name, as owner, against tug, to recover damages sustained. On the trial, the wife testified as a witness for her husband, and gave material evidence to sustain his claim for damages. It was shown that in fact the action was brought by and with the assent of the wife, and it was held that the wife would be equitably estopped from bringing another suit, and that the libel of the husband could be maintained. If, from the circumstances of this case, an equitable estoppel could be said to arise, a fortiori, would the wife be estopped if she appeared in her husband's suit and asked to be made a co-libelant with him. While the operation of this rule may work a hardship to the libelant ill this case, I do not see how, upon principle or authority, her suit can be sustained.
and others v. DELAWARE, L. & W. Ry. Co.
Jersey. March 13,1885./
REMOVAL OF CAUSE-DEMURHER-TIlIIE OF ApPLICATION-STIPULATION TO FILE
Where a demurrer has been filed in a cause pending in the state court an issne that would be triable at the regular term of the state court, but a stipulation has been filed by which it is agreed to withdraw the pleadings and tile 8 new declaration and plea making an issue of fact, the case cannot, after the term at which the demurrer would have been heard, be removed to the United States court.
Motion to Remand. NIXON, J. A second application is now made to remand this cause to the state court. On the first, I refused to remand, for reasons stated in the opinion filed. 22 FED. REP. 353. I think the decision was correct, in the light of the facts as they were then presented to the court; but on this renewal of the motion the facts appear quite materially changed. In the moving papers there is (1) the affidavit of Arthur H. Ely, of counsel with the plaintiffs, showing that on the tenth December, 1883, a declaration was filed in the action in the supreme court of New Jersey, wher9 the suit was originally commenced; on the twenty-second of the same month, demurrer; and on the eighth of January, 1884, a joinder in demurrer; and (2) copies of the said declaration, demurrer, and joinder in demurrer, with a stipulation of the parties, dated June 4, and filed June 6, 1884, signed by the respective attorneys, in which it was agreed as follows:
"It is hereby stipulated and agreed by and between the attorneys of the plaintiff and defendant in the above case: (1) That the plaintiff shall, within twenty days from that date hereof, file an amended declaration; (2) that from the time of the filing of said declaration the demurrer heretofore filed by the defendant &hall be withdrawn and of no effect; (3) that the defendant will plead to said amended declaration within thirty days from the date of service of the same upon his attorneys' (4) that the above shall be without prejUdice or costs against either party, but each shall pay their own costs.
"Dated June 4, 1884."
-and (3) the certificate of the clerk under the seal of the court verifying the said papers as true copies of the declaration, (original,) demurrer, and joinder thereto, and the stipulation in said cause, as the same remained on file in his office. Acting under the provisions of this stipulation, the amended declaration was filed June 12, 1884-; a plea of the general issue July 5,1884; and the similiter July 12, 1884. It appears from the Revised Statutes of New Jersey (tit. "Courts") that the then stated terms of the supreme court, where issues of law were triable, are held on the fourth Tuesday of February, and the first Tuesdays of June and November, of each year; and the stated terms of the Hudson county circuit court, where the issues in fact were triable, are on the first Tuesdays of April, September, and Dev.23F,no.12-36