PARDEE, J. The libel in this case is to recover from the vessel, under section 3088, Rev. St., the. penalty imposed on the master and mate for violation of section 2807, Rev. St.; both sections being embraced in title 34, "Collection of Duties," Rev. St. The libel seems to be brought on the· instance side of the court, following the case of The Missouri, 3 Ben. 508; no averment being made as to previous seizure by the customs officers within the district. The claimant urges as fatal to the libel (1) that a previous seizure was necessary as a jurisdictional fact; (2) that the vessel cannot be held until the mastiill'< has been convicted and the penalty adjudged against him; (3) that the libel does not aver that the owner or master, at the time of the alleged;illegal act, was a consenting party or privy thereto. With regard to thefiit'st two objections, I am disposed to adopt the reasoning and. conclusions of Judge BENEDICT in The Missouri, tWJpra, as I find that since its rendition it has been generally followed in practice in this circuit,.and because I find no authoritative decisiQPsto the contrary 'rendered since..the adoption of the Revised Statutes. ,It ""ill be noticed .that the leading case as to the necessity of seizure to give jurisdiction (The Ann, 9 Cranch, 289) was based upon the wording ofsection 9 ofthejudiciary ac.t 00789, (1 St. at Large, 76;) and also that the words of that act, to-wit, "including all seizures under laws of import navigation Or trade," etc., sre not reproduced in the Revised Statutes in connection with the grapt of jurisdiction to the district courts. However, if we consider the adjudged cases, and the proper construction of admiralty rule 22, the question presented is one of great difficulty; and I should hesitate to give s'decision upon it without s more exhaustive examination, and a fuller argument, than has been had in this case. The question presented under the third objection is one of little dUnculty, and is decisive of the case. By statute 'approved :February 8, 1881, (21 St. at Large, 322,) it is declared as follows: ;'That no vessel used by any person or corporation as common carriers. in the transaction 'of their business as such common carriers, ·shall be SUbject to seizure or forfeiture· by force of the provisions of title thirty-four of the Re:viset;! Statutes.of theJJnited States, unless it shall appear that the owner or master of such vessel, at the time of the alleged illegal act, was a consenting party or privy thereto."
In order, therefore,tochargethevessel with responsibility for the alleged illegal act charged in the libel in this· case, the consent or privity of the owner or master must appear affirmatively; in other words, must 'be alleged and proved. ThiEl necessary averment is entirely omitted from the libel; and, under the evidence in the case, it cannot be said to appear, 'except inferentially, 'and in' a negative way, that the owner or master was a consenting party or privy to the alleged illegal act, The <>bjection appears to have been taken in the distr,ict court, and it was 89 .it is,clearthat.tne government prQctor strongly urged ill this has not been surprised, and that the difficulty lays in the facts of the case as well as in the pleading. . The decree will·be eIltered dismissing the libel.
WHITMAN V. HUBBELL.
WHITMAN 11. HUBBELL,
(Oircuit CQurt, 8. D. New York'. February 22,1887.)
REMOVAL OJ!' CAUSES-AMOUNT IN DISPUTE.
In a suit to restrain the maintenance by defendant of an awning over a part of a street adjoining the plaintiff's premises, the matter in dispute is the value of the right to maintain the awning, and not the amount of damage done by it to plaintiff. The value of such right held to be more $500, within the meaning of Act of March 8, 1875, (1M St. U. S. 470, § 2,) relatmg to removal of causes from state courts to United States courts. The representative character of a party does not affect his right of removal of the cause from a state court to the United States circuit court. It depends upon his citizenship alone, without regard to that of those whom. he represents, or of those who are interested in the controversy, but are not parties to the record.
ALONE.....CODECIVIL PRoc.N. Y. 1919, 1923. Under sections 1919, 1928, Code alvil Proc. N. Y., suit may be brought by
SAME-CITIZENSIDP-DEFENDANT SUED IN REPRESENTATIVE CAPACITY.
PARTms--I'REsIDENT OR TREASURER OF JOINT-STOCK AsSOCIATION -
or 'president or treasurer of a joint-stock aSSOCiation, instead of joining all the Individual members.
In Equity. Ira D. Warren, for plaintiff. (1larence A. Seward, for defendant.
,'WHEEtJm, J.The plaintiff is a citizen of New York, and ant of Connecticut. The Adams Express Company is a joint-stock ciation of New York. This suit was brought in the state court to restrain the maintenance of an awning over a part of Great Jones street adjoining the plaintiff's premises. The defendant removed the cause into this court. The plaintiff moved to have it remanded because as he says the matter in dispute does not exceed the 130m or value of $500, and there is not a controversy in it between citizens of different states. Act of March 3, 1875, (18 St. 470, § 2.) The matter in dispute is the value of the right to maintain the awning, not the amount of damage done by it to the plaintiff. Railroad Co. v. Ward, 2 Black, 485. This appears to be more than $500. The Adams Express Company is a part'nership, and not a corporation. It has no existence apart from the members, and does not appear to be of itself a citizen of any place. The law of the state permits suit to be brought by or against the president or treasurer of such an association, instead of joining all the individual members. Code Civil Proc. §§ 1919, 1923. When an action is so brought, no action can be brought against the members except on failure to' obtain satisfaction of the jndgment. Section 1921. The officer is the only defendant on the record, although he represents the association, and the execution against him, if obtained, is to be satisfied outoi the assets of the association. Section1921. The controversy is therefore between citizens of different states in this case, althoughotherB who mayor may not be citizens of the same state with the plaintiff are '\T.30F.no.2-6