THE FRANCESCO FELIZ.
other pleadings, the legislature intended that a jury should be called upon to try grave questions of constitutional law. If it did not, then no "federal question" can legitimately arise in the cases instituted for the verification of coupons; and for this reason, if for no other, they cannot be removed into a federal court. It is in vain for counsel for the petitioner to insist that the state, in the trial of these jury issues, does, in point of fact, call upon them to pass upon the validity of those more recent laws of her legislature which forbid the receipt of coupons for taxes, either for verification or any purpose. It is for the judges of the courts trying these cases'to instruct the juries that such questions are not within their cognizance. If these judges refuse so to instruct, then, appeal being allowed by the act of 1882 to the circuit and supreme courts of the state, redress would lie in that direction, and be ultimately obtainable in the supreme court of the United States. The route to redress does not lie through this court by means of removal. We cannot assume, before a case is tried in a county or corporation court, that its judge will allow a question of constitutional law to be submitted as a question of fact to a jury. We cannot do such violence to all legal probabilities and to all judicial amenities as to assume that such a happening would be possible. If it be, then redress must be sought by appeal, not removal. These causes must all be remanded.
THE FRANCESCO FELIZ. l
(DislJrict Oourt, E. D. New York.
May 5, 1885.
ADMIRALTY-ApPEAL-PAYMENT OUT OF COURT-FAILURE TO OBJECT TO ])'ORM OF DECREE.
A decree directing the payment out of the proceeds of the sale of a vessel in the registry of the of various amounts to different petitioners was entered on notice, omitting the words "unless an appeal be taken within ten days, " and the money was paid out of court by the clerk four days after the decree was entered. A claimant against the fund, to whom notice of the settlement of the decree had been given, but who had not appeared or objected on the settlement, thereupon made a motion for the repayment into court of the money thus paid out, on the ground that the payment was made before the time for appeal had expired. Held, that as to sums directed to be paid to seamen for wages less than $50 there was no right of appeal; and as to other sums. by omitting to object to the form of the decree, the parties must be deemed to have assented to immediate payment; and they must be supposed to have relied on their right to recover them back in case of reversal on appeal, or to have acted on the belief that no appeal existed; and the motion was denied.
In Admiralty. Motion for repayment of money into court. . Martin &: Smith, for the master and seamen, petitioners, and G. Amsinck, the Portuguese consul.
'Reported by R. D. & Wyllys Benedict, Esqs., of the New York bar.
JaB. K. Hill, Wing tX Shoudy, for H. W. O. Edye and another, petitioners. Treadwell Cleveland, for the Brooklyn Sugar Refining Co., for the motion. BENEDICT, J. The first of the above-named proceedings was instituted by the master, mate, and seaman of the brig Francesco Feliz to have the amount of their wages earned on board said brig ascertained and paid out of the proceeds in the registry arising from the sale of that vessel by the marshal in pursuance of a venditioni exponas, issued in an action brought against that vessel by certain salvors. The second of the above-named proceedings was instituted by the Portuguese consul to obtain payment to him out of the proceeds of moneys advanced by him for the board of the crew of the vessel, and the expenses of returning them to their native country, where they had been shipped. The proceeds of the vessel being in the registry, upon the filing of these petitions, and upon motion of the petitioners, a reference was ordered to take the testimony upon the allegations of the petitioners, notice of which reference was directed to be given to all parties who had filed libels against the said brig. Upon such notice given to the proctors of the Brooklyn Sugar Refining Company, who filed a libel against the vessel to recover damages for breach of a contract of affreightment, among others, the reference proceeded; and the commissioner reported in respect to the claims of the master, mate, and seven seamen the amount of wages due them respectively, with the opinion that the claims were liens upon the proceeds. The amount reported due the master, and the amount reported due the mate, exceeded $50. No sum found due any seaman exceeded $50. No answer to either of said petitions was filed, nor were anyexceptions filed to the report of the commissioner, and thereupon the petitioners applied to the court upon the petitions and the testimony reported by the commissioner, and upon notice to all parties having libels against the brig, for an adjustment of the priority of respective claims pending against the vessel, li.nd for an order directing the payment to the petitioners out of the proceeds of the ,"essel of the several sums reported due by the commissioner. Upon this motion, after repeated adjournments thereof, upon the application of the Brooklyn Sugar Refining Company, various parties were heard in opposition thereto, and among others the Brooklyn Sugar Refining Company. Upon such motion, a decision l was thereafter announced favorable to
1 The decision of the court settling the priority of the claims was rendered on March 10, 1885, and was as follows, (the claim of Edye and another being for sums paid for pilotage, towage, and watching of the salved vessel:)
BENEDICT, J. I am of the opinion that the proceeds of the sale of the abovenamed vessel, now in court, so far as the same are sufficient therefor, may be aplllied to the payment of the claims of the above-named petitioners in the following
the petitioners; and thereupon application was made by them, upon notice to the parties who had contested the motion, for a decree in founded upon the proaccordance therewith, such application ceedings, the opinion of the court, and a copy of tho decree proposed to be entered. To the entry of the decree thus proposed all parties consented except the Brooklyn Sugar Refining Company, for whom, however, no one appeared at the time and place mentioned in the notice of settlement of the decree. A notice of settlement for another day was then given to the Brooklyn Sugar Refining Company for the settlement of the decree; at which time, no one appearing, and no objection having been made to the form of the decree as proposed, the decree as proposed was signed by the judge. This decree, among other things, directed the clerk to pay the master, mate, and seamen out of the proceeds of the brig the amounts of the wages reported due them, and omitted the words "unless an appeal be taken within ten days," usual in decrees where the amount awarded exceeds $50. Thereafter the costs of the petitioners were taxed, upon notice to all the parties having libels against the brig, at which taxation the Brooklyn Sugar Refining Company did not appear. Thereafter, and four days after the entry of the decree, the clerk paid to the proctor for the petitioners out of the proceeds in court the amount directed by the decree; and now, after, as appears, the money had be'en paid over to the Portuguese consul by the proctor receiving the flame, the Brooklyn Sugar Refining Company applies for an order directing the repayment into the registry of the sums so paid, upon the ground that the payment was premature, because made before the expiration of 10 days from the entry of the decree, and before the time for taking an appeal from the decree had expired. The motion cannot be granted. So far as the decree directed the payment of the sums awarded the seamen, there was no right of appeal, for no sum exceeds $50. In respect to the other sums awarded, by omitting to object to the form of the decree, under the -circumstances, the parties must be deemed to have assented to the immediate payment of the money. They must be supposed to have intended to rely upon their right to recover it back in case of reversal on appeal, or to have acted upon the belief that no right of appeal existed,a belief not without foundation, as it seems to me. Motion denied.
order: FiJrat. The claim of the Portuguese consul for moneys paid to support the crew and send them home, together with the costs of the petition; second, the wages of the crew, according to their petition, together with the costs of the petition; thiJrd, the sums paid by Henry W. O. Ed,e and another, according to their petition, together with the costs of their petitIon.
THE SARAH E. KENNEDY. MOCARTHY and others v. THE SARAH E. KENNEDY.
(nistrict Oourt, n. New J('Jl'sey. November 11,1885.)
ADMIRALTY PRACTICE -CONSOLIDATION OF SUITS - LmELS FOR WAGES AND DUCTION OF PROVISIONS-REV. ST. §§ 978, 4568.
The several libels filed by the crew of a vessel for wages due, and for compensation and allowance for the reduction of provisions during a voyage, may be consolidated.
Libels in Rem. Motion to consolidate, etc. Bedle, Muirheid cf; McGee, for libelants. Owen cf; Gray, for respondent. NIXON, J. Fourteen several libels have been filed by the crew of the brig Sarah E. Kennedy for wages due, and for compensation and allowance for the reduction of provisions during the voyage. A motion is now made by the claimant for a consolidation of the suits. It is resisted by the proctors for libelants on the ground that the additional claim of the several libelants for compensation, on account of the bad qUl1lity of the provisions furnished for the voyage, takes the cases out of the category of actions that should have been joint, or should be consolidated. The motion must prevail. See The Prinz Georg, 19 Fed. Rep. 653. Indeed, it would be a great hardship for the libel. ants to refuse it, inasmuch as the court is forbidden to allow them more than the costs of one libel, although they may recover in all the suits. It is provided in section 978 of the Revised Statutes that when proceedings are had before a court of the United States in severallibels against any vessel and cargo which might legally be joined in one libel, there shall not be allowed thereon more costs than in one libel, unless special cause for libeling the vessel and cargo separately is satisfactorily shown on motion in open court. No such cause is shown in these cases. The claim for allowance on account of insufficient supply of proper food is in addition to their wages, and is specifically provided for in section 4568, Rev. St. The principles on which compensation is to be awarded to the seamen are so clearly stated in the statute, that quite as little difficulty will arise in determining the amount in one libel, as occurs in ascertaining the several sums due for wages earned. Let an order be entered consolidating the several suits.