the rope was worn out, and would break, and asked for another; but I am satisfied, from the other evidence in the case, that, if this statement at all, it was after libelant's injury, and before the second parting is of the rope, that the complaint was made. Besides, the' second mate was charged with no duty in respect of the loading of the ship. The fact that the second mate,' although examined asa witness, was not asked as to any such communioatitm, is very significant, and corroborates the view that Burns was mistaken as to the time, if not as to the conversation. The libel in this case will be dismissed, with costs.
THE ETHEL.! KIMBALL'll·. THE ETHEL.
D. Texal. January, 1887.)
ADMlRALTy-PRACTICE-ApPEAL-MoTION TO DISMISS.
On motion to dismiss.
PARDEE,J. This case has been submitted to me by the proctors for the libelant and appellee on a motion to dismiss the appeal and affir!Jl the judgment of the district court, on the gro1;1nds that the transcript shows no evid.ence nor agreed statement of facts nor assignment of errors. That there was no evidence to warrant the judgment of the district court may be the reason underlying the. appeal. Admiralty cases, on appeal to the circuit court, are. tried de novo, on the original or amended pleadings, and on such evidence as may be properly offered, whether the same was offered in the district court or not. The causes assigned are good, but the transcript is not properly made up and certified, and the appeal might be dismissed for that reason; but as the record of the cpse shows a general confusion in the minds of all parties, and as I cannot say the defective transcript is imputable solely to.the appellant, I think it will accord mOre with justice if an order is entered denying the motion to dismiss the appeal, and to direct the appellant to procure and file in the circuit court by the first day of the next term a proper transcript, duly made up and certified according to the. fifty-second admiralty rule, as adopted by the supreme court of the United States: otherwise his appeal to stand dismissed. The clerk will enter such order, and notify proctors.
by Joseph P. Hornor, Esq., of the New Orleans
y'DONALD v. SALEM CAPITAL FLOUR-MILLS CO.
McDoNAW and anotherv. SALEM CAPITAL FLOUR-MILLS Co. and others.
1. (Ozrcuit Oourt, D. Oregon. August 1. 1887.)
REMOVAL OF CAUSES-PLEA TO THE JURISDICTION.
A party against whom a case has been removed from a state to a national court may contest any allegation of fact on which such removal was had, by a plea in t4e nature of a plea to the jurisdiction of the latter court; and this, whether such allegation IS contained in the pleadings proper or the petition for removal.
SAME-RESIDENCE AND CITIZlI;NSHIP.
EQUITY PLEADING-ARGUMENTATIVE PLEA.
A plea to the jurisdiction that one of the parties to the Ollose is a citizen of a state other than that alleged in the petition for removal, need not be supported by an answer. ' , . .I (81/ llabu8 by the Oourt.)
SAME-ANSWER IN SUPPORT OF PLEA.
John M. Bower, for Kelly and McDonald. WiUiam B. Gilbert, for the bank and for Stuart.
DEADY, J. This suit was brought by the plaintiff, R. McDonald, in the state circuit court for the county of Marion, against the Salem Capital Flour-Mills Company, the First National Bank of Salem, the City of Salem Company, William Stuart, and James McDonald, trustee. On February 19, 1887, an amended complaint was filed, making Joseph F. Kelly·a party plaintiff. The object of the suit is to establish and enforce the alleged lien of two certain judgments in favor of the plaintiffs, respectively, as the assignees of the Oregon & Washington Mortgage Savings Bank, against the defendant, the City of Salem Company, namely: Ajudgment obtained by McDonald in the state circuit court for the county of Multnomah, on December 6, 1886, for $14,368.22, and one obtained by Kelly in the same court on April 3, 1886, for $12,771.50,-and to that end to set aside, as so far null and void, certain mortgages and conveyances of the property of said City of Salem Company, executed to certain of the defendants after the existence of the indebtedness on which said judgments were given, namely: A mortgage to William Stuart of August 2,1883, to secure the sum of$71,940; a conveyance on June 10, 1884, of all the property of said company to James McDonald, in trust for the Salem CapitalFlour-Mills Company, and a conveyance of the same by the v.31F.no.l0-37