vious to the publication thereof, in full accordance with the requirements of the laws of the United States, ".is not sufficient. It does not tender any issue of fact, but is the statement of a legal conclusion. Lipe v. Becker, 1 Denio, 568;. Frary v. Dakin, 7.Johns. 78. While it is not necessary or proper to state what is merely matter of evidence, the substantive issuable facts upon which the pleadel"scause of action depends must be alleged. 'The special demurrer to the parts of the billwhich ask a court of equity to enforce penalties and a forfeiture, and seek for a discovery, surrender, and deli very up to be canceled and destroyed of the copies of the defendan t's directory, is supported by .the au thority of Stevena v. Gladding, 17 How. 447.
THE SYRACUSE. Gor..nsMITH v. THE SYRACUSE.
((Jircuit (Jourt, S.1J.
TOWAGE-NEGLIGENCE-PROCEEDINGS IN REM.
Where a canal·boat. while in tow by certain tugs, preparatory to making fast to a steamer which is to convey the tow to its destination. is injured by the negligence of the tugs. proceedings in rem cannot be maintained therefor against the steamer, though owned by the same company owning the tugs.
2. WITNESS--'FEES-MILEAGE-IN FEDERAL COURTS.
Witness fees in the federal courts are taxable for travel not eltceeding 100 miles. unless the distance be wholly within the district. though the witness attend the trial v.oluntarily, at the request of one of the parties.
Proceedings in rem by libelant, Goldsmith, against the steam-boat Syracuse for damage done to libelant's canal-boat by certain other tugs while in charge of a tow consisting of libelant's boat and others, prepar.atory to and before making fast to the Syracuse, which was to convey the tow to New York. The contract for towage was with the Schuyler Towing Company, by whom the tugs and the Syracuse were owned, but it did notspeci(y the particular boat that should do the towing. The libel was disltlissed by the district court, and libelant appeals. Hyland & Zabriskie, for appellant. Owen & Gray, for claimant. WALLACE, J. If the towage contract in this case had been made with the master of the Syracuse, or if the suit were in per80nam against her owner, the question whether the injuries received by the tow were in consequence of what was done before or after the Syracuse made fast to the tow would be immaterial. But as this is a suit in rem against the steam-boat it can only be sustained by evidence of negligence or breach of obligation on ber part with reference to the transaction. By the contract with the libelant the Schuyler Towing Company undertook to tow
In Admiralty. Libel for damages. On appeal from district court.
'MORSE tI. LEHIGH & W. COAL
his canal-boat from Albany to New York, but not by any particular tug or steamer. The company employed the tugs Robertson, Winants,and Betts to take tbe tow, of whicb tbe libelant's boat was one, up the river, and itfl,bout. and get the tow started on its course down tbe river; and the negligent acts by wbicb the libelant's boat was injured were committed by these tugs while they were in charge of the tow, before the Syracuse .undertook any towage service, or was under any responsibility for ipe managelllent or supervision of the tow.. The suit could as well be maintained against any otber of the steam-boats or tugs owned by the Schuyler Towing, Company which had no connection whatever with the voyage or tow in question as against the Syracuse. The libelant has mistaketJ, ,bill remedy, and for that reason the decree of the district court dismissing, the libel is affirmed, with costs of this court. The question has arisen as to the taxation of costs in the district court. It has long been the practice in this circuit to permit the taxation of fees of witnesses for travel, not exceeding 100 miles from the place of trial, unless the distance is Wholly within the district of the court, although the witness was not subprenaed, but attended upon the trial voluntarily, at the request of the party for whom he testified. The cases of U. S. v. Sanbom,28 Fed. Rep. 299, and of Spaulding v. Tucker,2 Sawy. 50, and Hainea 'V. McLaughlin, 29 Fed. Rep. 70, have been cited.' The first holds that the witness' fees may be taxed for the whole distance between his residence and the place of trial, although his residence is outside of the district, and. more thana hundred miles from the, place of trial, and .although he has not been subpoonaed, but attends vohmtarily; and the latter hold that in no case can a witness' fees be taxed unless he bas been subpoonaed to appear. These cases have been considered, but witb the result that the rule which has heretofore obtained in this circuit seems the more roosonl:\ble, and gives tqe best practical effect to the la.nguage and spirit of sections 876, 863, and 850, Rev. St. U. S.
et at v.
(Oircuit Oourt, S.
York. October 15, 1888)
Libelll-nts offered a schooner to defendants' agent to load, whereupon the agent filled up a "coal order" to one of defendants' coal pockets, which libelants 'accepted. nothing being said about chartering the vessel. Held, that the order was incorporated in the contract, and defendants were relieved from liability for failure to furnish a load by a clause to that effect in the order.
1ll.!\.dD,liralty. On appeal from district court. Libel for demurrage by Benjamin W. Morse and others against the Lehigh & Wilkesbarre Coal Compwy. Decree for respondent, and libelants appeal.