but run down by a steamer, should be deemed in fault for want of a 238, 243. If there was fault on the lookout. The Fannie, part of the Redfield, it did not contribute to the collision. That was due solely to the inexcusable negligence of the Canima. The Redfield was not even in the way of passing vessels, because the pier was so much shorter than the adjacent piers. The captain of the Redfield was under no obligation to anticipate such an event as took place. He was temporarilyabsent, but if he had been present he could not have rendered any material asistance in the emergency. T4e libelant is entitled to a decree of $1,000, the sum at which his damages are adjusted by stipulation, as of the date of June 23, 1884, with interest from that date, with costs of the dil:ltrict court and of this appeal.
v. THE MISCHIEF and another. t
September 23, 1887.)
(District Ooort, E.' D. New York.
COLLISION-TuGS AND Tows-NARROW CHANNEL-OVERTAKING VESSIiL-PREMATURE START.
The evidence indicating that the tug B., after she had turned to the side of the narrow channel of Newtown creek, and had slowed to allow the tug M. and her tow to pass her, started her engine again while the M. was passing, and thereby ran against the latter's tow, forcing libelant's boat against a dock, held. that the tug B. was solely liable for the resulting damage.
Hyland &- Zabriskie, for libelant. Edwin G. Davia, for the Martha Bogart. Alexander &- A8h. for Ithe Mischief.
BENEDICT, J. The decision of this case depends upon the determination of a single question of fact, namely, whether the tug Martha Bogart, after she had turned to the side of the narrow channel of Newtown creek, and had slowed to allow the tug Mischief and her tow to pass up to port of her, started her engine again while the Mischief was passing, and thereby ran against the canal-boat in tow of the Mischief, and so caused such a change of position in the respective boats as to force the libelant's canal-boat against the dock above, called "Cooper's Dock," whereby she sustained the damage sued for. Upon this question my opinion is that the weight of the evidence is clearly with the contention of the Mischief, and shows that the damage which the libelant's boat received by striking Cooper's dock was not caused by any negligence on the part of the Mischief, but by the wrongful action of the Martha Bogart in starting her engines. and pushing against the libelant's boat in the way she did, while the Mischief was in the act of passing. The libelant must have a decree against the Martha Bogart for his .da.mages, and the libel, as against the Mischief, must be dismissed, with I costs.
lReportell by Edward G. Benedict, Esq., of the New York bar.
BANKERS' & MERCHANTS' TEL. CO. and others.
(Oitrc'Uit Oowrt, S. D. New York.
MORTGAGE-FoRECLOSURE-RECEIVER-AcTION BY, TO DETERMINE ADVERSE CLAIMS.
Althouglf the order ap,?ointing a lite i!1 mortgage forecl?s. ure authorIzed hIm to brmgsuch SUlts' as he mIght be advIsed, he cannotmam· tain a suit in equity to obtain an adjudication that certain real property is sub· ject to the lien of the mortgage, and that all liens claimed thereon by parties In possession and parties out of possession are invalid against him, and to ob· tain possession thereof, against one claiming adversely, where neither the mortgagor nor mortgagee is made a party, and no assignment by them to him of the property or cause of action is shown.
4- receiver, appointed in an action to foreclose a mortgage given by a tele· graph company, claimed to cover all subsequently acquired property of the mortgagor, cannot maintain a bill for an accounting for damages suffered by the mortgagor from breach of a contract to construct certain telegraph lines. 8. EQ,uITY-JURISDICTION-BILL TO TRy TITLE TO PROPERTY IN ADVERSE Pos·
Equity will not entertain a bill to try title to, and obtain possession of, property in the possession of one claiming adversely, although at the same time complainant seeks relief in the nature of removing clouds upon title.
SAME-BILL BY RECEIVER FOR ACCOUNTING-CONTRACT WITH MORTGAGOR.
SAME-COSTS ON DISMISS[NG BILL AFTER HEARING-FAILURE TO DEMUR.
Costs will not be granted on dismissing a bill after a hearing upon the merits, for objections which might have been taken by demurrer, but which defendan.ts failed to take at any stage of the case.
Wm. T. Wilson and Hamilton WaUis, for complainant. R. G. IngersoU. for defendants.
WALLACE, J. The complainant is the receiver of the American Rapid Telegraph Company, and 'of the property covered by a mortgage or deed of trust executed and by that corporation to the Boston Safe Deposit & Trust Company, bearing date September 1, 1883. This mortgage was executed to the Boston Safe Deposit & Trust Company as trustee to secure an issue of bonds for $1,000 each, of the aggregate sum of $3,000,000, bearing interest at 6 per cent. from and aiter March 1, 1884, and maturing September 1, 1893; and was created by the American Rapid Telegraph Company pursuant to an agreement made August 28, 1883, with the Bankers' & Merchants' Telegraph Company. The trustee named in the mortgage filed a bill of foreclosure in the circuit court of the United States for the district of Connecticut, the mortgagor being a Connecticut corporation, and the complainant was appointed a receiver pendente lite by the court in that suit. By that order the complainant was directed to take possession not only of the property included in the mortgage, but also of all other property legally or equitably belonging to the American Rapid Telegraph Company I and also to take suitable and proper proceedings to obtain possession of any part of such property which might be in possession of any other person or corporation claiming right of possession and title thereto. An ancillary bill for .the forclosure of the mortgage was filed by the trustee in this court, and v.32F,no.5-20