THE ELLA 1. SLAYMAKER.
ceded that in a suit for "demurrage" under the charter, the cbarterrate would include wharfage and watchman's fees. It is a mere question the damage caused by the delay. When of the mode of the damage is computed independently of wharfage, the wharfage is to be allowed as a separate item; otherwise not. The adoption of the charter rate of demurrage in this case, and the want of any intimation in the testimony that the charter rate was not a full equivalent, at the time of the injury, for all the items that the charter rate usually covers, lead me to the conclusion that that rate should be deemed to cover wharfage and watchman's fees. In other respects the report is confirmed.
THE ELLA J'. SLAYMAKER.
v. THE ELLA J'. SLAYMAKER.
(Diatrict Oourt, D. Delaware. August 18, 1886.)
A court of admiralty will not try the equitable title to a vellel, or ctlmpel the performance of a mere tru8t, when there is no evidence of a maritime contract between the parties.
2. SAME-MARITIME CoNTRACT-SALE OF VESSEL A8 COLLATERAL SECURITY.
A bill of sale of a vessel as collateral security for the repa,Yment of a loan, or as indemnity against 108s on the contingent payment of oblIgations assumed . for the vendor, is not. per 8e, a maritime contract.
In Admiralty. Benj. Nields, for libelant. Johnston ft Hayes, for respondent. WALES, J. This is a libel to try the title to and recover possession of the schooner Ella J. Slaymaker. The substantial facts are that the libelant, being the owner of the vessel. on the nineteenth day of August, 1884, executed a bill of sale transferring and conveying her to Samuel G. Warner, by way of collateral security, to indemnify the said Warner against loss on the contingent payment of certain obligations which he had assumed for the libelant, with the express understanding and agreement, and upon the special trust, that, when the said obligations were paid and discharged by the libelant, t):le vessel should be reconveyed to the latter; that all the obligations have been paid by the libelant, and Warner is no longer liable for the payment of the same or any part thereof; that the schooner was never delivered to Warner, but always remained in the possession and under the control of the libelant from the time the bill of sale was executed until the second of July, 1886, when she was attached at the suit of one
Pierson against Warner, as the property of the latter, and was in the custody of the marshal at the time of the filing of this libel. Several exceptions are made to the libel, but they all amount to this: that the admitted facts do not bring the case within the admiralty jurisdiction of this court. It is plain that the agreement between Kent and Warner is not a maritime contract. It had no connection with or reference to the employment of the vessel in navigation,-to making repairs or furnishing supplies. The bill of sale, therefore, whether considered as the transfer of the property by way of a pledge or collateral security, or as a mere mortgage for the repayment of a loan, or as indemnity against a contingent loss, not being for the benefit of the vessel, and in nowise related to her use, does not afford a proper subject for admiralty. The contract is not, per se, a maritime one. The libelant retains only an equitable title to the vessel, and courts of admiralty in this country confine their jurisdiction to the trial of legal titles, and do not compel the performance of mere trusts. Kellum v. Emerson, 2 Curt. 79. The remedy of the libelant is in equity, and although a court of admiralty exercises equitable as well as legal jurisdiction, the subject must be of a maritime nature, and so come within the power of the court, which then applies the principles of equity. Ben. Adm. § 263; Kellum v. Emerson, supra. In Bogart v. The John Jay, 17 How. 402, the supreme court decided that the mere mortgage of a ship, other than that of an hypothecated bottomry, is a contract without any of the characteristics or attendants of a maritime loan, and is entered into by the parties to it without reference to navigation or perils of the sea. See, also, The Larch, 2 Curt. 427; The Willut'm D. Rice, 3 Ware, 134; Ward v. Thompson, 22 How. 330; The Trowbridge, 14 Fed. Rep. 874; The Venture, 21 Fed. Rep. 928; Deely v. Brigantine, etc., 2 Hughes, 77. The cases cited by libelant's proctor do not conflict with the above authorities. There must be a decree dismissing the libel.
RUMSEY V. CALL.
and another v.
(Oircuit Oourt, No D. Iotoa,
October Term, 1886.)
·· REMOVAL OF CAUSE-SEPARABLE CONTROVERSy-TENANTS IN CoMMON.
2. SAME-REMAND-FACTS ApPEARING DIFFERENTLY IN UNITED STATES COURT
A removal to the United States court having been properly ordered by a state court, upon petition and bond being filed for that purpose, the petition showing both plaintiffs to be citizens of a different state from that of the only defendant who defended. (the other defendants disclaiming,) but, upon a trial of a plea in abatement filed in the United States court. the facts as to citizenship appearing differently; and not such as to give jurisdiction, the case is remanded to the state court.
-PLEA IN ABATEMENT.
In Equity. Plea to jurisdiction. John F. Duncombe, for complainants. George E. Clarke and Henderson, Hurd et Daniels, for defendants. SHIRAS, J. This suit, brought for the purpose of quieting the title to certain real estate, was commenced in the circuit court of Clay county, Iowa, alid in the petition filed the complainants averred that they were joint owners and tenants in common of the realty, and had been in possession thereof for over two years last past; that on or about the twenty-third day of September, 1885, the defendants A. F. Call and E. C. Hughes unlawfully confederated together for the purpose of casting a cloud upon the title of complainants, and for· that purpose procured a quitclaim deed to be made by one D. M. Shuck and wife to the defendant Call, which was duly spread upon the records of the county wherein the land is situated; that subse· quently the said A. F. Call and wife, in furtherance of the purpose of clouding complainants' title, executed a deed of the realty to the defendant D. W. Arnold, which deed was likewise duly recorded; that this deed is merely colorable, and without consideration; and therefore complainants pray that the title in and to said premises be quieted in complainants, and that defendants be barred from asserting any claim thereto adverse to complainants, and that the deeds from Shuck and wife to Call, and from the latter and wife to Arnold, be declared void, and canceled. The defendants Call and Hughes severally appeared, and filed answers dil;lclaiming all right, title, or interest in the lands in question. The defendant Arnold filed an an· swer denying the substantial allegations of the petition, and also filed a cross-petition against the complainants, Rumsey and Sleeper, in v.28F.no.15--49