was done, and the oommissioner is entitled to the lawful fees there. for. I ha.ve looked through the testimony to ascertain whether the allegation is true that the commissioner charged for a greater number of days than he actually attended. The record does not disclose, as it should, the times when and the places where the commissioner was in attendance. When an appointment is made and the commissioner attends, he is entitled to charge three dollars, whether the parties come or not. If one side comes, and the failure to go on arises from the absence of the other, the charge should be made against and paid by the defaulting party. If neither attend, then it should be charged against the losing party; when the court orders the costs to be paid to the successful party. The clerk is directed to ascertain the number of days that he actually attended on the reference as commissioner, to verify the same by oath, and retax the costs accordingly. With regard to the allegation that the number of folios in the testimony taken has been overestimated, the clerk of the respondent's proctor has filed an affidavit setting forth that he diligently counted over the words, and that they aggregated 120 folios. There are 76 pages of the testimony, and the commissioner has estimated the same at the rate of two folios per page,. which would seem to be a reasonable estimate. But this is a. question of numeration and not of law, and the clerk will ascertain whether more folios have been charged for than were actually written; and if an error in count has been committed, he will retax for the correct number at the rate of 20 cents per folio.
THE POLARIA. 1
(District Court, E.
n. New York.
July 11, 1885.)
PERSONAL rnJURIES-NEGLIC1ENCE OF SAILOR IN UNLABIIING A SKID.
A skid belonging to a stevedore employed to load a steam-ship had been placed by his men resting on its side on the deck of the vessel, and leaning against the fore-rigging, lashed to it. The lashing was unfastened, and the skid fell and injured the libelant, who was in the employ of a warehouseman, and was engaged on the deck of the vessel in counting bags into which grain was being put. The proof was that, when it fell, a sailor was engaged in tarring the rigging against which it rested. Held, that the fair inference was that the sailor unlashed the skid, and that this was negligence of a servant which occurred in the course of discharging a duty imposed on him by his employer, for which the employer was liable, and that no negligence on the libelant's part contributed to the accident. A release given to the stevedore by the libelant was held no defense, since on the proofs there was no negligence on the stevedore's part, and he was not responsible for the sailor'aact.
Reported by R. D.
Wyllys Benedict, Esqs., of the New York bar·
Horace Graves, for. libelant, Thomas Gannon. Ullo, Ruebsamen et Hubbe, for claimant. BENEDICT, J. The injuries to the libelant were in consequence of the falling upon him of a skid belonging to a stevedore employed to load the steam-ship Polaria, which skid had been placed by the stevedore's men, resting upon its side, on the deck of the steamer, and leaning against the fore-rigging, and lashed to the rigging. So lashed, the skid was not dangerous, and it could not have fallen as it did unless the lashing had been unfastened by some one. The case turns upon the question, who is responsible for the unlashing of the skid? The proof is, that when the skid fell upon1the libelant a sailor was engaged in tarring the rigging against which the skid rested. In order to tar the rigging properly, it would be necessary for the sailor to unfasten the lashing of the skid; but considering the size and weight of the skid, and the motion of the vessel. the skid would be dangerous while unfastened, unless otherwise supported. The lashing was unfastened and the skid left unsupported, and in consequence it fell and injured the libelant. The fair inference from the testimony is that the sailor who was tarring the rigging unlashed the skid for the purpose of enabling him to tar the rigging at that point. It is therefore found that the injuries to the libelant arose from the negligence of the sailor, such negligence consisting in casting oft' the lashing that bound the skid to the rigging. For this negligence of his servant the employer is responsibJe, because it occurred in the course of discharging a duty imposed upon the servant by the command given by the employer to tar the rigging. So long as the skid remained lashed the rigging could not be properly tarred. 'l'he case is one where a servant, not maliciously, nor for his own interest, but with a view to further his master's interest, acted upon his own judgment in a contingency that arose in the course of his employment, but acted carelessly. For such an act the employer is liable. The duty in which the sailor was engaged was a ship's duty, connected with the tackle of the ship, and required for the preservation thereof. A lien upon the ship was therefore created by the negligent performance of that duty by the sailor. The fact that the libelant has given a release to the stevedore is no defense. Upon the proofs there was no negligence on the part of the stevedore. He had no connection with the sailor, nor was he in any way responsible for the sailor's act. No negligence on the part of the libelant contributed to the accident. He must therefore recover of the steamer his damages caused by the falling of the skid upon him, which may fairly be put at $450. For that sum and c08tslet a decree be entered.
FIDELITY TlWST CO. '11. GILL CAR CO.
FIDELITY TRUST CO. V. GILL CAR CO.
(Oircuil., Oourt, S.
December 2, 1885.)
REMOVAL OF CAUSES-JURISDICTION OF FEDERAL COURT DEPENDS ON THAT OF STATE COURT.
If there be in the state court an entire absence of jurisdiction of the subjectmatter of the suit, on removal the federal court can have no jurisdiction of the case, although it might have been brought originally in that court. This is not a mere technical feature of the situation, but a matter of substantial right arising out of the necessity of the defendant into court by DOtential process before there can be "a SUIt" to be removed.
FORECLOSURE OF MORTGAGE-EFFECT OF THE INSOLVENCY .uAWS OF OHIOREVISED STATUTES OF OHIO, 6835 ET SEQ.-ExCLUSIVE JURISDICTION OF THE PROBATE COURT DENIED-EQ.UITY JURISDICTION OF THE COMMON PLEAS SUSTAINED.
If a bill to foreclose a mortgage be filed in the court of common pleas, after a general assignment by the mortgagor and the qualification of the assignee in the probate court, the general equity jurisdiction of the common pleas is not ousted by the probate court proceedings under the insolvency laws of Ohio, the jurisdiction of the latter court not being exclusive; Wherefore, the suit may be removed from the common pleas to the federal court, where the plaint.iff is entitled to a decree as if the case had been originally commenced in that court.
SAME-GENERAL AND SPECIAL COURTS-JURlSDICTION.
It is a general rule of law that a jurisdiction conferred upon a special tribunal does not oust that of the courts of general jurisdiction, unless there be a plainly manifested intention of the legislature to that effect, to be derived from the words of the statute, or a necessary implication therefrom.
STATUTES-CONSTRUCTION OF-LEGISLATIVE INTERPRETATION.
The legislature should not be held to have interpreted a former statute in a given way because, on the of a judicial opinion of the supreme court, it has amended a defect III the law, notwithstanding the reasonmg of the opinion may support that interpretation; particularly, if the amendment be as reasonable under some other construction of the statute.
In Equity. Bill to foreclose a. mortgage. The facts are stated in the opinion of the court. R. H. Platt and R. C. Dale, for plaintiff. R. A. Harrison, W. J. Gilmore, Jordan <f; Jordan, and Taylor <f; Taylor, for defendant. HAMMOND, J. This bill was filed originally in the court of common pleas of Franklin county to foreclose a mortgage. That court is the one of general jurisdiction in that county for such purposes under the laws of the state of Ohio. A demurrer was filed denying its jurisdiction, because it appeared by the bill that subsequently to the mortgage the mortgagor had made a general assignment of all his property for the benefit of his creditors; that the assignee had duly filed the assignment, given bond, and qualified as required by law in the probate court of the proper county. Pending that demurrer the cause was removed to this court by the plaintiff, where the demurrer upon the pleadings as they then stood was overruled by our Brother SAGE, and the parties were required to answer. The answer of the assignee shows that he was proceeding with all reasonable speed to administer his trust according to the requirements of the law in that behalf. The case is set down for hearing on the bill and answer. v.25F,no.13-47