(Distriot Oourt· .E. D. New York. ApriU8. 1888.)
COLLISION-STEAM UD SAIL-Tows.
A collision occllrred in the Hudson river. in broad daylight and fairweather, between a tow, bound down stream, and a schooner, bound up. The schooner wus approaching th", tow under jib alone, at a rate of about four miles an hour, whereas the tow thought she was at anchor, and. consequcntly kept up her own speed and course towards the schooner until collision was imminent. Held, that the cause of the collision was want of proper lookout on the towboat, for which she was liable.
When collision was imminent, the schooner was luffed into the wind, in an effort to stop' her headway, and lessen the damage likely to ensue. Held, no fault <m t.h.e part of the schooner.
In Admiralty. Libel for damages. Carpenter Mosher, for libelant. Wing, Blurud:y Putnam, for the schooner.
BENEDICT, J. This is an action by the owner ofthe steam canal-boat Deland, and the canal-boat J. W.Brakey, to recover damages for a collision which o,ccurred between the schooner Gladys and the J.W. Brakey, laden with a cargo of corn, and at that time in tow of the Deland, bound down the North river above Stevens Point, on the westerly side of the Hudson river. The collision occurred in broad daylight, in fair weather. It was no doubt caused by & mistake on the part of those in charge of the tow, supposing that the schooner Gladys, Been ahead of them, was at anchor, when in fact she was sailing under ajib, and approaching the tow at a speed of about four knots an hour. Under this mistake'the tow kept up her speed and course towards the schooner, until a" collision was imminent. When collision was imminent, and not before, the schooner was luffed into the wind, and her jib let go. This was not an effort on, the part of the.schooner to pass across the course of the tug, but simply all effort to stop the headway of the schooner, when keeping on ,would only tend to increase the damage caused by the collision. It was no violation of duty on the part of the she did. The obligation to hold her schooner to come into the wind course had ceased; that duty had been performed. When the schooner came into the wind, it had become her duty to do all she could to lessen the damages likely to result, and luffing was the best course to accomplish such result. The luffing, therefore, was no fault on the part of the sailing vessel, and it did not cause the collision. The cause of the eollision was the steam canal-boat's omission to take seasonable steps to avoid the sailing vessel, and the cause of her failure to do this was want ()f a proper lookout. The libel must be dismissed, and with costs.
'Reported by Edward G. Benedict, Esq., of tAe New York bar.
BALTIMORE & O. R. CO.
& O. R.
CoUNTY COURT OF TAYLOR COUNTY et CO. et al.
(Oircuit Oourt, D. West Virginia. June 16. 1888.)
REMOVAL OF CAUSES-CITIZENSHIP-CORPORATIONS-FOREIGN-BALTIMORE OHIO RAILROAD COMPANY IN WEST VIRGINIA.
The Baltimore & Ohio Railroad Company is a Maryland corporation, and not a corporation created by any enabling act of Virginia or West Virginia; the Virginia act of 1827 merely conferring upon such company a license to transact business in the state, and is entitled to remove a cause begun in the West Virginia courts to the Federal courts on the ground of citizenship. A bill was filE'd. the objects of which were-First, to restrain the B. & O. company from using or transferring 1,160 shares of stock of the G. & G. Company; second, if the stock had not been issued. to restrain its issuance; fltird, to enjoin the collection or negotiation of bonds transferred by the G. & G. Company to the B. & O. Company. It appeared that the G. & G. Company had issued the stock, and transferred the bonds to the B. & O. Company, before the commencement of the action. The G. & G. Company's answer adopted the B. & O.'s answer, and showed that it had no interest in the controversy Held that, as it was unnecessary to notice the second prayer, the stock having been issued, and as the only relief which could be granted was under the first and third prayers. relating solely to the B. &. O. Company, the action was separable, and the G. & G. Company not a nece8sary party. Under Acts Congo 1887, c. 373, § 2, c1. 4, providing "that a removal shall take place when it is made to apIear to the circuit court that from prejudice or local iufiuence it [defendant will not be able to obtain justice" III the state courts, a plea by plaintiffs simply denying defendant's belief in the existence of such prejudice or local influence is insufficient, and raises no issue on that question, as the plea should affirm that it does not exist. I Where action taken by a board of directors of a corporation at a special meeting is ratified at a subsequent special meeting, of which all the members. of the board had legal notice, and at the next regular meeting', "The minutes of the last two meetings were read and approved." it is immaterial whether all the members of the board were legally notified of such first special meeting, in the absence of fraud or .conspiracy on the part of the officers or directors. The action ofa board of directors of a corporation in delivering corporate stock in paYl1lent of a portion of its indebtedness, and consolidating the remainderinto a mortgage on the corporate property, is not rendered illegal by the fact that members of the board had become guarantors for further advances made to the corporation after it had exhausted its credit, which advances were to be paid by the delivery of the stock.
COPORATIONS-BoARD OF DIRECTORS-NoTICE OF SPECIAL MEETING-RATIFICATION.
SAME-INTEREST OF DIRECTOR IN CORPORATE ACT.
SAME-DEALINGS BY ONE CORPORATION IN STOCK OF ANOTHER-ADVANCES ON SECURITY OF STOCK.
Where one corporation makes advances to another, taking as collateralseeurity mortgage bonds of the latter, which it is unable to redeem, defaulting in the payment of the interest, and thereafter such corporation makes further advances secured by bonds and stock of the latter corporation, such transaction is not within the prohibition of Code W. Va. forbidding one corporation to subscribe for-or purchase stocks, bonds, or securities of another corporation except in payment of a bona fide debt.
1 Respecting the removal of causes from state to federal court, under the act of 1887, on the grounds of prejudice and local influence, and tbe sufficiency of pleading and amdayit in obtaining such removall see Short v. Railroad Co., 33 Fed. Rep. 114; Hills v. RaIlroad Co" Id. 81; Short V. R811road Co., 34 Fed. Rep. 225.