Ferry, and to adopt the testimony of those witnesses who say that the tug was going up the rivElr, and was run over by the schooner overtaking her from below. The libelant, John J. Pareis, must therefore recover for the loss of his tug, and the libel of Soper for the injury to the schooner must be dismissed.
(District Court, '8.
December 27, 1886.)
NBGLIGENCE-NEGLECT OF THOSE IN CHARGB OF INFANT-IMPROPER PLACELIABILITY. OF VESSEL--RUDDERCHA,INS.
Llbelarit's ward, an infant three years old. was injUred' on 'board of the steam-ship Burgundia, by the rudder -chain, which ran in an open box on the main ,deck. Previous to the acoiden!'o the infant's nurse had left him to himself, and, when hurt, he was in apart of the ship where he had no right t<» be. Held, that the fault rested with those who had chargeot the child,and that the vessel was not liable for the injury.
In Admiralty· .A. 13.·. Stelpart,' for libelant. Benedict, Taft Benedict, for claimants.
BROWN, J. The libelant's ward, Louis Cartarsso, a child 01 three years old, while on a voyage to this port from Naples, on the second day out, had its fingers crushed in putting them into the trough that carries the rudder chain. across one of the pulleys upon the main deck. The child, being uneasy, had been set down by the nurse a few minu;tes before, and ran aft of the place where the steerage passengers were allowed; and, as the evidence shows, a few minutes afterwards its screams were the first notice tnatthe nurse had that, it was meddling with the chain. The wooden groove or box was such as is usual upon nearly all steam-ships, and ,no customary precaution was neglected. It is necessary that such chainsshall be subject to constant and immediate inspectioll. It is plain that the child was where it had' no business to be, and was improperly left to run into what dangers it might find. There is no law that requires a ship to prevent the possibility of accidents to infants incapable Of takingcare who are suffered by those in charge of them to roam ship. Thebo::x: provided in this instance was a reasonis ably sufficient precaution against liability to accident, and the wholly on tb'6se in charge of the child. . ., :Thelibel must be dismissed. .
lReported by EdwardG. Banedict, Esq., of the New York bar.
SCIlNADIG 'V. FLESCHER.
Rm:lol:OVAI. OJ' CAUSE-REV.
ST. § 639, SUED. 8--DIVER8ITY OF CITIZENSHIP. "IUs a condition requisite to removal ,under Rev. St. U. S., § 639, subd. 3, $at'the diversity of cItizenship must exist. both when the suit was begun and when the petition for removal is filed. Gib80n V. BruC8,2 Sup. Ct. Rep. 878· . 8. C.l08 U. S. 5(i1, followed.
QP,"Motion to Remand case to state court. mUon, for plaintiff. Geo'.''r.)iUen, for defi311dallt.
:6R'EWElt; J; The motiontp remand is sustained on the authority of Gibhdnv.Bruce, 108 U. S; 56t, S. C. 2 Sup.,Ct.:Rep; 873, and Freling-
huyseJn v.Baldwin, 19 Fed'. Rep. 49. The first case is an authoritative declaration that, under the removal act of 1875, the requisite citizenship mmte:&ist, both at the time of commencing the suit and also at the time offiJing the petition forrenioval. The language oithe act of 1867 is with that oithe act of 1875, but the difference is not such ast()indioote a different intent on the part of eongress. See the opiniou of Oirc\iit Judge WALLACE in the second case.
(OiJrcuit Oourl. 8. 1J. Georgia, E. 1J. NO'\"ember 80,1886.)
RmJlOVAL OF CAUSES-CITIZENSHIP.,...AcT OF CONGRESS OF MARCH
3, 1875. Ullder the act of Ma!'ch 3, 1875, a suit cannot be removed from a state court unless the requisite citizenship of the parties existed both when the suit was begUl1and when the petition for removal was filed. SAJlJl:-ACT OF CONGRESS OF MARCH 2, 1867. Under the act of March 2, 1867, it is not necessary that the parties should have been citizens of different states at the time when the suit was brought. if they are citizens of different states when the petition for removal is filed.
SAME-FINAL HEARING-DEM.URRER OVERRULED-STATE EQUITY RULES.
Wbere the rules of procedure in equity of a stltte provide that a demurrer ; shall be disposed of at the fitst term, and the second shall be tlle trial term, the hearing of a demurrer to a bill, and an order overruling it, is not such a finltl he,aring of the CRURe as will defeat a removal.
A bill of revivor is a mere continuation of the original suit, and, where the .Jurisdict!on of the COU1;t had completely to the controversy, it can· not be dIvested by the death of the non-resident defendant, and his executor has the right to defend the suit without regard to his own citizenship. (81111aJJu8 by the Oou'rt.) ,
SAMJil-DEATH OF NON-RESIDENT DEFENDANT-BILL OF REVIVOR BY EXECUTOR.
In Equity. MotIOn to reDland. R. . ;Richards, for movant. (J'l,lera,rd !1nd . v.29F.no.11-30