amount of wages. The rule must be interpreted to both ways, and while the master claims or exercises the right to discharge when he pleases, the sailor must be allowed to go when he pleases. The subject was carefully examined by Judge CHOATE, in Moore v. Neafie, 3 Fed. Rep. 650, and I see no reason to doubt the correctness of the conclusions which he reached. There was nothing in the con· tract in the present case which required the libelant to perform a full month's service before any wages were earned, and there must be a decree in his favor for $12, and interest and costs.
(Ditltrict (JOU'l't D. Min1l&ota.
November 8, 1885.)
TOWAGE-LIEN-LACHES-BoNA FIDE PuRCHASER OF VESSEL.
A lien for towage must be enforced without undue delay, and unless due diligence is exercised it is waived as against a purchaser without notice.
In Admiralty. G. W. Walsh, for libelant. O'Brien, Eller d: O'Brien, for claimant. NELSON, J. Libel is filed by St. Louis & St. Paul Packet Company lor towage of barge Frank from St. Louis to La Crosse. 1. The towage was completed and the barge landed at La Crosse in August, 1883, where the owner of the steam-tug had an agent, or some person to look after its business. At that point she was detained by an agent of the libelant for about two weeks for the towage bill; but it does not appear that any legal proceedings were initiated to enforce the lien. She then left La Crosse for Dubuque; "let go," according to one of libelant's witnesses, Reis, upon promises, or released after being retained by Holmes, agent of libelant, as testified to by Greiner. The libelant had two weeks in the summer of 1883 within which to enforce the lien against the barge at La Crosse, and on her arrival at Dubuque, where another agent of the libelant reo sided, opportunity to enforce it was again given until at least the last of January, 1884, when the sale was made to claimant, Hansel. He did not take any steps to hold the barge. Such negligence is not satisfactorily explained.. The rule is well settled that a lien of this description should, without undue delay, be enforced, and unless due diligence is exercised it is waived as against a purchaser without notice. The towage bill should have been within a reasonable time enforced, so that, if the claimant is a bona fide purchaser, the lien for towage is waived by laches. 2. More than two years intervened bet.ween the towage service and the commencement of this suit. Reis and Greiner were engaged as
a partnership the name of "Mississippi River Advertising Service," in posting bills and advertising along the river. They owned the barge Fl'ank, which was built by them, and employed in this service. She left St. Louis in August, 1883, in charge of Greiner, and was towed to La Crosse by libelant's boat Flying Eagle. When the barge was "let go," after being detained nearly two weeks at La Crosse for non-payment of towage, she went to Dubuque, and was sold to Lena Hansel, an employe on board, whose bill for services, amounting to about $200 or over, had not been paid. The bill of sale is regular, and there is no evidence sufficient to impeach successfully the validity of the claim for wages. The barge belonged to a partnership, and Greiner could sell her and pass title, and there is no evidence that Hansel had knowledge that towage bill was not paid. Reis could not have informed her before sale, as he never saw her after the barge left St. Louis in August, 1883, up to the time the bill of sale was executed. He testifies that he told her in St. Louis, before towage service was performed, that it was not paid; but this is not sufficient to defeat her claim. lam of the opinion that, on the evidence, she is a bona fide purchaser, and comes within the rule that the lien for towage service is waived by laches. Libel dismissed, with costs.
SANGER 'V. SEYMOUR.
SANGER v. SEYMOUR and others.
(OVrlYUit Cowrt, S. D. New York. November 4, 1885.)
Bm.t:ovAL OF CAUSE-CITIZENSHIP-EVIDENCE. From 1845 until 1883 plaintiff's home was in Brooklyn, New York, with the exception of about five years, when he resided at Bay Side, Long Island. In the spring of 1883 he purchased a farm at Greenwich, Connecticut, for a summer home. From 1883 until November, 1884, he resided in New York city, spending Sundays and the summer with his family at Greenwich. From November, 1884, till May, 1885, he occupied appartments with his family in New York city. In May he returned to Greenwich for the summer, expecting to occupy his city apartments in the fall. He never voted except in New York, and he claimed that he always had been, and intended to be in the future, a citizen of New York. In April, 1885, he brought suit in a state court in New York against defendants, citizens of New York, who removed the case to the United States court on the ground that plaintiff was a citizen of Connecticut. Held, that the plaintiff was not a citizen of Connecticut, but of New York, and that the case should be remanded to the state court.
Motion to Remand Cause. B. F. Watson, for plaintiff. Hawkesworth et Rankine, for defendants. COXE, J. This action was removed from the supreme court of New York to this court by the defendants upon the ground that the contro. versy is between a citizen of Connecticut on the one side and citizens of New York and New Jersey on the other. The plaintiff now movee to remand. The sole question to be determined is: Was the plain. tiff a citizen of New York or Connecticut in the spring of 1885? HE' alleges that from 1845 unti11883 his home was in the city of Brook lyn with the exception of about five years, when he resided at Bay Side, Long Island. In the spring of 1883 he purchased a farm at Greenwich, Connecticut, for a Bummer home. From the spring of 1883 until November, 1884, he resided in New York city, spending Sundays and the summer months with his family at Greenwich. From November, 1884, till May, 1885, (this action being cOl;nmenced in April, 1885,) he occupied apartments with his family in New York city. In May he returned to Greenwich for the summer, expecting again to occupy his city apartments in the fall. He alleges that he has never voted except in the state of New York, and tliat he always has been, and intends to be in the future, a citizen of this state. The defendants, in opposition to the motion, show that the plain. tiff executed a mortgage upon his Connecticut property in the fall ot 1883, in which he is described as a resident of Greenwich. The con· veyancer, however, explains the apparent contradiction by saying that he alone is responsible for the statement in the mQrtgage; that he drew it without direction from the plaintiff, and recited the plaintiff'll residence upon an erroneous and unauthorized assumption of his own. The defendants, also, swear to declarations of the plaintiff inconsist. ent with his present assertion of citizenship. It is generally true, and this case is hardly an exception, that where a disputed questiot\ v.25F,no.6-19
of fact is to be determined upon affidavits, the papers are full of vague
and evasive allegations. Many important averments are upon information and belief. Proofs and presumptions are ingeniously intermingled. Facts which should appear are omitted, and facts which should not appear are stated. Indeed, the court is often confronted with such a wilderness of irreconcilable contradictions that a doubt not infrequently arises as to the correctness of the aphorism of the English jurist that "truth will leak out even from an affidavit." Regretting that this question must be determined upon testimony so incomplete and unsatisfactory, I am convinced that the weight of evidence is with the plaintiff. There is no direct proof that he went to Connecticut animo manendi. He positively denies that he changed his domicile, and asserts that he always intended to remain a citizen of New York. He is supported in this declaration by a number of collateral facts and circumstances. His case is, it ,would seem, not unlike that of many of the citizens of the metropolis who spend the summer months at their villas along the Connecticut and Rhode Island coasts. Though they remain away from the city the greater part of the year, they do not, therefore, lose theIr citizenship. It may be conceded that the question is not free from doubt, but to doubt in such circumstances is to remand the case to a tribunal which unquestionably has jurisdiction. Levy v. Laclede Bank, 18 Fed. Rep. 193; Gr'ibble v. Press Co., 15 Fed. Rep. 689; Wolffv. Archibald, 14 Fed. Rep. 369. Should the court retain jurisdiction, this question, under the provisions of the fifth section of the act of March 8, 1875, may again assert itself in a manner which will prove disastrous to the interest of both parties. The motion is granted.
LARMON and others.
No D. illinois. October 19, 1885.)
SALE-REDEMPTION-JUDGMENT ON NOTE GIVEN FOR CLAIM BARRE]) BY BANKRUPTCY PROCEEDINGS.
A redemption from an execution sale made on a judgment obtained upon a note given in payment of a valid indebtedness that has been assigned to the judgment creditor for value, although such indebtedness has been discharged by a yroceeding in bankruptcy, will not be set aside at the suit of another bona ]tde judgment creditor. ·
In Equity. Geo. W. Smith, for complainant. Nelson Monroe, for defendants. BLODGETT, J. There is no dispute about the material facts in this case, and only a single question of law arises upon the conceded