Ludlow McCarter, for libelant. Alexander & Ash, for respondent.
WALES, J. A contract was made between the libelant and the claimants, for the transportation of passengers on vessels belonging to the claimants. Thp. contract was a maritime one, but wholly executory, and no performance of it had been entered .upon. The libelant has sued in rem for a breach., 'rhe vessels were attached under process, and released on bond. The claimants have appeared by their proctor only to except to the libel, and to object to the jurisdiction of the court. They have put in no answer. ,It conceded that no lien exists on the vessels, and application is now Qlade by the libelant's proctor for leave to amend the libel, by praying process and judgment in personam against the owners. .been decided in this circuit that proceedings in rem and in per· sonam cannot be joined .in the same libel, except as provided for in the supreme conrt rules in, admiralty. The Alida, 12 Fed. Rep. 343. The present case does not fall within any of the exceptional visions.. It was held The Monte A., 12 Fed. Rep. 338, that such ameIld'ment could not be allowed where, under the rules, both remedies oould not be conjoined in the same libel. In that case the owner had appeared,.and put in his answer, and much testimony had been taken before it was discovered that no lien existed upon the vessel; at the nearing, under the peculiar state of the pleadings and evidence, the libelant was permitted to amend, and proceed in personam. It has been said (under a semble) to be the practice of the admiralty court in some cases -in suits in rem, where the record shows a clear right to recover irn personam, against one who has appeared and contested the suit-to allow the libelant to proceed to a decree in personam, (The Zodiac, 5 Fed. Rep. 222;) but the case at bar does not belong to that class. Exceptions sustained, motion to amend refused, and ordered that a decree be entered dismissing the libel, with costs.
THE BURGUNDIA. 1
and others v.
(OVrcuit Oourt, E. D. NCIJJ York. June 21,1886.)
CARRIERS-OF GOODS-SHIPs-DAMAGE TO CARGO-1:MPROPER STOWAGE.
On the delivery of a consignment of eight drums of glycerine, two were found to be broken. On suit brought for the loss, held, that if all eight were stowed in an equally proper place, then the stowage of the two could not, in detail and arrangement, have been proper or sufficient. If the two were
Reported by R. D. & Wyllys Benedict; Esqs., of the New York bar.
stowed in a less safe place than the six, considering the peculiar character of the drums, that was improper stowage; and therefore that the carrier had not relieved himself from the presumption of negligent stowage as the cause of the loss, and that the vessel was liable for the loss.
L. H. Arnold, Jr., for libelants. Lorenzo Ullo, for claimant.
BLATCHFORD, Justice. I concur in the conclusion of the district judge that there must be a decree for the libelants. 1 The case is substantially like that of The Surrey,S in this court. The six drums came in good order, whatever perils of the sea there were. If the two drums which were broken had ,been stowed properly, they would not have been injured. If all eight were stowed in an equally proper place, then the stowage of the two could not, in detail and arrangement, have been proper or sufficient. If the two were stowed in a less safe place than the six, considering the peculiar character of the drums, that was improper stowage. On the whole evidence, including the new testimony taken in this court, the carrier has not relieved itself from its liability, or succellsfully rebutted the presumption of negligent stowage as the cause of t,he damage. There must be a decree for the libelants for $649, with interest from March 1, 1884, aud their costs in the district court, taxed at $129.86, and their costs in this cQurt, to be taxed.
IThe decision of the district judge WIl8 not accompanied by an opinion.-[REPS. 'The following is the opinion of Mr. Justice BLATCHFORD in the case ofMal 'X v. ThtJ Surrey, in the circuit court, E. D. of New York, Jnly 2, 1885, (not heretofore reported:) BLATCHFORD, Justice. On the new proofs taken in this court it appears that on the same voyage the vessel carried 35 drums ofglycerine consigned to one Korneman, which were delivered on arrival in the same good order as when received. In view of this fact, and of aU the evidence in the case, it cannot be held t,hitt the carrier has relieved himself from the liability thrown on him by his bill of lading, by showing the existence of a sea peril sufficient to account for the damage to the libelants' drums, and to rebut the presumption of negligent stowage Il8 the cause of such damage. Let there be a decree for the libelants, with a reference to Il8certain the damages.
UNION TRUST CO. ,UNION TRUST
ROCHESTER & P. R. CO.
December 6, 1886.)
w: D. Penn8ylvania.
CoRPORATIONS-CONSOLIDATION OF CORPORATIONS ORGANIZED UNDER r,AWS OJ' SEVERAL STATES-JURISDICTION OF CIRCUIT COURT-JUDGMENT-NlllwYORlt STATUTE-PENDING SUIT IN STATE COURT.
In a suit in the circuit court for the Western district of Pennsylvania, brought by': a corporation of the state of New York against a corporation formed'UIider statutes of New York and Pennsylvania, by the consolidation of several corporations, some of which were organized under the laws of one' of said states and some-Under the laws of the other, upon a judgment duly obtained in a state court in New York, held (1) that, for the purpose of jurisdictiou, the defendant must :be considered a cItizen of Pennsylvania; (2)' that, by vtrtue of such consolidation, the constituent companies merged into each l other,and became one corporation; (3) that the judgment obtained against the consolidated corporationiri ,the state of New York is binding upon the corporation everywhere, and the case is not open to 'any inquiry upon the merits; (4.). that the New York statutory provisions forbidding suit to be brought on & judgment rendered in a court of that state, without the previous permission of such court, is intended only to regulate the practice in New York state courts, and has no application here; (5) that the jurisdiction of the court over the subject matter of this litigation is not affected by pending proceedings in the court of cammon pleas of Elk county, Pennsylvania, in which the custody of certafn railroad property of the defendant was committed to a receiver, In an action in one state on a judgment obtained in another state, an alleged collusive arrangement between the plaintiff and the officers of the defendant corporation, whereby no defense was interposed, but a recovery was promoted, is not pleadable. l An action of debt will lie on a Judgment of another state, notwithstanding the pendency of an appeal or wrIt of error.
JUDGMENT-AcTION ON JUDGMENT OF ANOTHER SION.
SAME'-ACTION OF DEBT PENDING ApPEAL.
At Law. Action in debt sur judgment. Sur rule for judgment for want of a sufficient affidavit of defense. George Shims, Jr., for the rule. Samuel Dickson and R. O. Dale, contra. ACHESON, J. 1. It has been authoritatively adjudged that, where a corporation created by the laws of several states is sued in a federal court in anyone of those states, it must be regarded, for the purpose of jurisdiction, as a citizen of that state, whatever its citizenship may be elsewhere. Railway Co. v. Whitton, 13 Wall. 270; Muller v. Dows, 94 U. S. 444. Hence it is not a valid objection to the jurisdiction of this court that the plaintiff is a corporation of the state of New York, and the defendant is a corporation formed statutes of Pennsylvania and New York, by the consolidation of several corporations, some of which were organized under thelaws of the former state, and the others under the laws of the latter.
lBee note at end of case.