ABBOTT V. NATIONAL S. S.
was, at least, concurrent error on the part of the inspector; and,as I have said, theinspector's act was the same as that of the respondents themselves. In. eJ;fect, the master and the respondents were acting concurrently in directing what iron belonged to the respondents. If there was any mistake by the master, it is certain that the inspector concurred in it, and communicated it. In legal effect, therefore, the respondents acquiesce in what was.done through the concurrent acts of the inspector. Upon a mistake made in that way, and by the joint acts of both, if any .1'listake wasilldeed made by the master, I think the ship had the right rely on the J:espondents' acquiescence at the time, for such is the legal etrect; and to require the respondents to correct the error by pursuing the goods themf\elveswhich they bad concurred in misdirecting, rather than make a claim against the master or ship. In truth, however, there is noproQf of mistake by the master personally; the inference from the is to the contrar)'. As I have said, the proof does not go back of the inspector; and. as no failure of duty on the master's part is proved, so fa,r as shown tome, the lipelants are entitled to a decree for the freight, with interest and costs, without rebate for the alleged shortage or nondelivery. . ,
et al. v.
(DiBtf'iet Oourt,s. D. New York. January 81, 1888.)
1.8mPPmo-SHOBTAGlIl-BILL OF LADING.
Where a bill of lading declares. in effect. that the ship or the owneraare Dot to be held responsible for numbers or weight. they cannot beheld liable forshol'tage. without further proof than the statements of the bill of lading as to the:lLctual all)Ol1nt deljvered by the shipper. Thia rule applies both to actions in "tim and in personam. TheevidenC8 showing satisfactorily that respondent's steam-ship had dl'livered all the barso! iron which had been loaded UPOD her, and on Which a short\lge was claimed by reason of the statement in bill of lading of the numbersbipped, held. that respondent was not liable.· The' :terin. 181 barl short shipped... used in 8 bill of .lading, coDlJtrtled · mean so m8ny less than the number previously stated.
SAME.;,..;Bn.x,· OF LA.DtNG-CONSTRUCTION OF TlIlttMS.
In Admiralty. Hamilton R. Squier, for libelants. JohnChetwood, for respondent.
BROWN, J. The libelant sues to recover an alleged shortage of64 bars of iron in a consignment brought from London to New York on board the respondent's steamer Denmark, in September, 1881. The bill of lading provides for a delivery of iron in the following form: "4,264 bars
Reported by Edward G. Benedict, Esq., of the New York bar.
Of iroh, 131 bars short shipped." The bill of lading, among other excepti6ns from liability, includes the following: "Not accountable for weight, contents, value, length, measure, quantities, or condition." The bill oflading in the margin stated the weight to be 74 tons, 17 cwt., 1 qr.. Upon delivery at New York the number of bars was found to be 61 less than 4,264, butthe weight wll.s74 tons, 18 cwt., 1 qr.,4 Ibs., or 116 pounds in excess of that stated iIi the bill of lading. The only evidence in regard tel the meaning of the words" 131 bars short shipped" that was given upon the trial is to the effect that this was. deduction to be made from the number 4,264 previously stated. Upon this explanation of the bill of lading, there would be an exCess in the number6f ba.rs delivered over the number received of 70 bars. The evidenceleaves 110 'doubt that ali the iron that was put on board the steamer was delivered in New York., It is not certain, however, that all that was delivered to the respondentsitiLondon was loaded upon the steamer, or was forwa.rded. But the libelant has given, no proof of the actual number ()f bars, or of the weight, delivered to the respondents in Londo.n, ofladingitselfj and when the billoflading, whatever the precise language, declares, in effect, that the ship or the owners are not to be responsible for the number or weight stated, neither the ship nor the owners can be held for alleged shortage without satisfactory proof of the actual amount delivered. Such exceptions rebut the presumption of the correctness of\the number,or weight stated in the bill of lading. The number and weight are often taken from the mere statement of the shippers, llyJheship. Such exceptions are notice of that fact, and that there is no responsibility for the amounts stated, upon the further proof of what was delivered. This' has been fr&actions in Tent, and is manifestly applicable equally to ':the JSm,(J,ele, 14 Fed. nap. 491, 22 Fed. Rep. 559; Matthf,esserI. v.Gusi, 29 Fed. Rep. 794; The Tangier, 32 Fed. Rep. 230; Eaton v. Newmark, ante, 891. . In the prE,lll!'lnt case it would seem, from the weight stated in the margin of the bill oflading, that the full amount intended to be acknowledged by the bill of lading was delivered; since the full weight there stated was delivered, and somewhatmore, as is proved byibe customlibel must, therefore, be dismissed, with costs. house
WOODRUM V. CLA.Y.
WOODRUM 11. CLAY
«(Jircuit (Joure, D. Kansa8. February 21, 1888.)
ANnrALS-INFECTIOUS DISEASEs-TEXAS-FEVER ACT-PARTJES.
In an action under Compo Laws Kan. 1885, c. 105, § 80, lor damages for n· legally driving cattle into the state which communicated the Texas fever to plaintiff's cattle, and, to make such damages a lien on the cattle, the purchasers of the cattle who have assumed the liability for damages are properly joined as defendants, and a personal judgment may be had against them as well as against the vendor. In an action under Compo Laws. Kan. 1885, c. 105, § SO, for damages for illegally driving cattle into the state which communicated the Texas fever to plaintiff's cattle. brought against the importer and the purchasers, who had assumed the liability, the importer's interest is not adverse to that of the purchasers, so as to justify his classification as a plaintiff, and thereby give defendants a right of removal, on the ground of citizenship, to the federal courts. Under the removal acts of 1875 and 1887, the right to remove a separate controversy is confined to citizens of different states, and these acts repeal the act of July 27, 1866, and Rev. St. U. S. § 639, cl. 2, giving this right to aliens. An action on a partnership obligation is not separable, so as to entitle one partner to remove it on thG Found of citizenship.
S. REMOVAL OF CAUSES-CITIZENSHIP-ADVERSE INTEREST.
On Motion to Remand to the State Court. Ro88ington, Smith & Dallas and J. W. Rector, for plaintiff'. A.. S. . W"zlson and Guthrie ct Guthrie, for defendants Clay, Robinson & Co. FOSTER, J. The plaintiff', J. G. Woodrum, brought his suit in the dis... trict court of Washington county, Kansas, against Clay, Robinson & Co., a firm composed of John Clay, Jr., William H.Forrest, both aliens and subjects of Great Britain, and Charles Robinson, a citizen of Illinois, and George S. Elwood and the Washington National Bank, both citizens of the state of Kansas. Clay, Robinson & Co. removed the case to this court, and the plaintiff moves to remand it.to the state court. The exact ground upon which the right ofremoval is claimed does not appear in the petition. However, it is not placed upon the ground of local prejudioe, nor that there is a separable controversy in the case; but the citizenship of the different parties is set out, and the amount in controversy stated, and a general application made to remove to this court. The defendant bank claims some interest in the recovery against defendants, and its interest is really on the side of the plaintiff. The cause of action alleged against Clay, Robinson & Co. is on a written agreement, given by them to their co-defendant Elwood, whereby they purchased a lot of cattle of said Elwood, j\nd, as part consideration thereof, assuming and agreeing to pay all damages which the plaintiff, Woodrum, has sustained by reason of said cattle having communicated the Texas or Span. ish fever to the cattle of said plaintiff. It is further charged that defend. an.t Elwood drove the cattle from the territory l:Iouth of Kansas into this v.33F.no.16-57