LEVY.!li THE
MELVILLE.
JnllY p,ot hp.ve beeu Ill,ore ,tha.n' onemi1e aubo'll,r;tbe l;>low was not one of tbose ordinary contacts that: boatEl expected to enCQ'qnter without injury. The fact thl!otshe did not sink at:once, and was only so little broken that it could be wedged up so as to enable her to complete the voyage, make strongly against the contention that her beams were as wellk as some of the claimants' witnesses suppose. Coosidering that she wa,sso heavily loaded when brought to a dead stand against such a corner, !lind that the lines attached to her were parted, there seems to me little ,doubt that boats. in the ordj,nm;y condition of, those usually towed in this business would have been injured substantially the same as tQis one, and so as to require substantially the same repairs; and that thiEj boat was notsonep.t:1y in an unseawortpy condition, or so speciaUy liable.to injury .by'the ordinary contacts of naviglittion, aato Ipake it incumbent 00 to give notice, of her wellkness, so as to demand speciljtl pare by tug in handling; and, if such notice had .been given, the p.,()es not indicate that that woqlqhave made any difthe tow· Thecasl'sofT,he, SyraC1f8e,.18 Fed. ference in the Rep, 828; The Re,ha-, 22 Fed. Rep. 546; and The N. IJ.Sf,arbuck, 29 Rep. 7,97" not, therefore, applicable here; but rather thosfl of '.fhe Granite StPfA,B Wall. 310; ,The !3altimore, 8 Wall. 3S6;. aniJ.TheHoward, 30 Fed. Rep. ,280. As in the case last cited,however, damagell can only be allowed, .for in a mannercorrespon(ijng with the preyiousconditionof the boat;, not the cost of building a new stem and new bow, . ,since the evidence shows that that. was not necessary. , The. libelant. at the time offered to take $12.5. rhedaimllintsexpected to repair her:for a, much less sum; but it !1Ppeared tbat,tpis not in,elude the, repair of the stem, which 1 thinktqe,boat was entitled to., Nor ,does itapp,ea,r that the claimants had taken into account any allowance for Which the libelant would have been enti"for the few tled to conmepsation/iftherewas for the boat at that time. I think tl25 ia probably all that tpe libelant is entitled to; but, as the testimony ontqat subject was not fully gone into at the trial, either aide can take respect to if desired, paying the costs of it obtains a less favorable result than that sum.
are
et
all. f1. '
THE THOMAS MELVILLE.
(CU'eut't OO'Utrl, .8. D. New York.
December 81. 1888.)
.
AD:MffiALTY-APPEAL-REVmW-WEIGHT OF EVIDENCE.
Although on appeal in admiralty to the circuit court a new trial fe to ba had, yet in reviewing testimony brought up from below every possible test is to be used in determining its weight; the effect which the manner and ap· pearance of a witness produced upon the judge below is proper to be con· sidered; and, where there is no decided preponderance of the evidence either way, the district jUdge will be followed.
272
FEDERAL REPORTER.
In Admiralty. Appeal from district court. TreadweUOleveland, for libelant. E. B. Glnver8, for The Thomas Melville.
81 Fed. Rep. 486.
LACOMBE; J. The appellants'counsel in this case, referring to the opinion in Windmuller v. The Tlwma8 .Melville, 36 Fed. Rep. 708, where damage to other parcels of the same cargo was under consideration, asks this question: "Is not the trial in the circuit court one in which the parties have the right to ask for the independent, untrammeled views of the judge there presiding?" and thus answers it: "In this court we submit that the trial is as ifthere had never been a trial before." In support of this answer he cites The LuciUe, 19 Wall. 74; The Charlea Morgan, 115 U. , S. 75,5 Sup. Ct. Rep. 1172; The Hesper, 122 U. S.266, 7 Sup. Ct. Rep. 1177 ,-in which it is held that an appeal in admiralty to the circuit court , vacates altogether the decree of the district court, and that there is to be in the circuit court It new trial, "in which the judgment of the court below is regarded as though it had never been rendered." His inquiry is to be answered in the affirmative, and the statements above cited as to the practice in the federal courts accepted as correct; It by no means follows, however, thata11the proceedings on the trial below are , ated'. ' If they were, and no testimony were to be considered save such as is taken in this court, the situation would be different; but so long as testimony taken below is brought up for review, the reviewing court must use every possible test to deterinine what weight it should be accorded. Thus the statement of any particul!lr witness is to be compared with the 'rest of his te8timony, with all the other evidence, and with the inherent probabilities of the case, with proper allowance for bias, for point of view, and for such physical or mental as may operate to affect his account. After all this is done. it often happens, however, that the mind is left in doubt as to whether such statement is truthful or not. It is matter of common knowledge that a proper appreciation orthe appearance oithe witness on the stand, and of the mannerin which he gave his , evidence, will in such cases lead the mind to an assuredconclu'sion. From the application of this test,1lhe reviewing judgeis debarred. The effect, however, which such appearance and manner produced upon an associate judge, is a fact in the case, spread before him on the record, and eminently proper to be considered by him in reaching his conclusion. It was the application of this principle that in view of the conflict of testimony in the district court induced this court, which could not find in the printed nal'rative a. decided preponderance either way, to follow the district judge in the Windmuller Case. The additional, evidence of the two experts,neither of whom saw the vessel, has not changed theweight of evidence in the printed narrative, and I shall therefore again follow .. <listrict '
RICH V. BRAY.
273 et ale
RICH
etal. v.
BRAY
(Oircuit Court,w.: D. Mi88ouri, C. D. January 14,1889.) 1. COURTS-FEDERAL JURISDICTION-EQUITy-EXECUTORS AND ADMINISTRATOlUI.
The federal courts will take equity jurisdiction of a bill by non-resident heirs at law against resident heirs to com,pelan accounting of the property of their intestate in the hands of the defendants, and for a distribution of the estate. notwithstanding the remedy of complainants under the probate law of the state. when the bill alleges facts evoking the exercise of the powers of a court of chancery, as that there has been no administration after the lapse five' years; that defendants have wrongfully appropriated the whole 'estate 'to their l1se, traded and speculated upon it. changing the original form of some of the property. made profits thereon. and been guilty of concealment, rendering a discovery and accounting necessary.
2.
SAME-JURISDICTIONAL AMOUNT-SEVERAL COMPLAINANTS.
The theory of the bill being that a portion of the heirs entitled to distribution may maintain the action for their respective proportions without joining others, in order to give jurisdiction to the circuit court the interest of each independent of others must amount to the sum of $2.000; and an allegation in the bill that "the amount of [the property in controversy] is unknown to said complainants, but much more than $2,000, over and above all justdebt& and funeral expenses," is not sufficient to confer jurisdiction.
8.
PARTITION-IN EQUITy-DISPUTED TITLE.
In a partition suit, either at law or in equity, the title to the land cannot be litigated; and when the bill avers. that defendant, one of the heirs at law of the complainants' intestate, possessed himself of the intestate's land on tile latter'$ death, without authority of law, and has since held the same. except such part as he may have disposed of or given to his co·defendants, to the entire exclusion of complainants. denying that there was any such property belonging'to intestate, and refusing to give complainants their share; hving . on and cultivatin/rsuch real estate as defendants own; using said property as his· own; makmg great profits thereon. no part of which has he ever shared with complainants,-the bill shows such an adverse holding under claim of right· amounting to an ouster amoug tenants in common as destroys the unity of possession, and takes away the right to partition. When an action for partition is instituted in the United States court, all the plaintiffs on one side must be non-residents of the state in which the suit is brought, and jurisdiction cannot be conferred by making a necessary party plaintiff a defendant, who is a resident of the.state. whose interests are all in common with those of the complainants, and against whom no antagonistic act is'lmeged.
4.
SAHE-PARTIES-DEFENDANTS-FEDERAL COURTS.
5.
LniITATION OF ACTIONS....PLEADING THE STATUTE.
When it .affirmativelyappears on the face of a bill that the statutory period has run, the objection may be raised by demurre'r: but, as this is personal to defendant, if he does not raise it by demurrer or plea, it rsdeemed to be wai ved. .
In Equity. ,On demurrer to bill. Bill by Ernest A. Rich and others, as heirs at law of William Bray, against Thomas Bray and Minnie G. Kinsey, also heirs at law of said William Bray, to compel an accounting of all properties in the hands of Thomas Bray coming from saId William Bray, and for distribution of the estate among the heirs. D. B. Henderson and J. O. Meredith, for complainants. Smith, Silver & Brown, for defendants. v.o71".no.7-18
