an applicatjon in behalf of the libelants to determine the question of priority between the claim of the libelants and the claim of the bottomry holder. Upon the hearing, however, the question of priority was not , argued, but only the question'Oflienjand the court was asked by the bottomry holder to reduce the claim of the libelants by striking from the libelants'biIlbettain itenls, upon the ground that advances to pay such itl'ms do not subject the vessel to a lien. This method of obtaining an adjudication on the right of the libelants to recover their demand is irregular. After the interlocutory decree in favor of the libelants by default, it was not open to any person to contest the question of lien. After the entry of the interlocutory decree in favor of the libelant, the only question, open to the holders of the bottomry bond was the question of priority"and upon that question there is no dispute. The libelants' demand, of course, takes precedence over the bottomry bond. Notwithstanding the irregular method in, which thA question of lien has been presented,--a. method whiohis not approved,-inasmuch as the question has been argued by both sides, it will be disposed of now, to save the parties further trouble and expense. The first question is whetherthe'libelantshave a lien upon the vessel seven dollars paid by them to the Long College Hospital. The proof as to this item is that it was a. charge made by the hospital for attending to sick of the crew while the vessel was here in port. Upon this evidence, it must be found tha.t the item constituted alien upon the ship. Caring for the crew is a necessary expense of the ship, for which the ship herself is chargeable. ' The next question is whether the item of $102.50, being sums paid th6pereonswbo made the'suTveys upon the vessel to ascertain her condition afterdher 'arrival in New York, is a lien. No question arises as tothe'reasonableheas of the charges of tbe surveyors or as to the propriety of bolding,the surveys.,' Theiusageof maritime nations requires sucb surveys to be ilre strictly in the interests of the vessel. Upon their result depends the question of whether the vessel is to :becondemned, or to continue her v6yage; and I see no reason why one ·who,on the request of theniRster, holds a survey upon a ship. should not',be entitled'to a lien upon tbe ship herself for the valne of his servbeing so, the libelants are entitled toiecover the amount adIftnced by them' to pay' the charges made by the'surveyors. ,iThe item objected to is the sUm of $'45.96, paid for tbe expenses of cabling to the owners respecting the affairs of the ship. It was certainly under the circumstances, for the 'master to communica.te With ,his own'ere itiregard to the disposition to be made of the ship. It 'wasequallyprbper for the libelarits, upon the request of the master, to The expense incurred was t'Or tbebenefit of the and, it seeins' to me, constitutes a proper charge upon the ship herself. -' ": ' , , ' ",!,' " iiBhtls consulage. Such' an item' was before the supreme court in the case of The Emily Souder, 1,7 Wall. 666, and was illowed. .,', ,," ,
t1. THE EXCELSIOR.
item is the libelants' charge for attending the' entry at the custom-house, $18.35, and $200 for their other services in J:>eha.lf or the vessel after her arrival in this port. It was necessary,thatsucn services ,as the 'libelants rendered should be rendered by Sonlel;mt'j,l:1-nd they inured to the benefit of the ship. Such services differ, as it seems to me, from services rendered in procuring a charter for the ship, in that they are compelled by the necessities of the ship herself. I think they constitute a lien. Similar charges were allowed in the of The Emu1lBoooe;r,above cited.
(Circuit OO'UTt, S. D. New Yor7c. Ootober 10,1889.)
'r ·t L COLLISIOlf"':STEAVDR ANn C,+.NAL-BOAT-EVIDENOB"
, Where the testimony is conflioting and irreoonollable as, to whether a steamer
whioh oollided with'a canal-boat moved from her berth in her own water, 01'901lowed her stern to swing ,so far from the pier as to cause the collision, the conolusion of thedistriot judge, who 'saw and heard the wi'1;neilses, will be acoepted,bythe circultcourt. '
If a sf.!lamer at a pier in a slil> is so situated that she cannot haul under ,her owupower.even with the exercise of due oare. without swinging outside of tJ;1e open ,water, ,through whioheheundertakes' to maneuver, she is liable for a,collision with a canal-boat reSUlting from the swinging of her stern, outside of her :own
SAMB..".DuTY OP S T B A M B R . ,
a.. &VD:....;nt1TY OP CAN'4L-BOAT.: '
When a canal-boat is oast off from a steamer in a slip,and ffom all' with the lower pier, and is made fast to boats which are themselves fastened to the upper pier, the boat thus forming the outermost of a tier which reaohed more . than half-way across tbe slip, and within four feet of a steamer, it is the captain's duty! when he knows that the steamer is about to start, to seek some other place withln the slip, or to betake himself elsewhere, and, if necessary, to ask assistance therefor.
Libel for damages.
On appeal from district court.
Hyland &- Zabriskie, for Downes. Oha9. H. Tweed and R. D. Benedict, for the Excelsior.
LACOMBE, J. As to the steamer. The controlling question is whether or not she moved out from her berth in her own water, or allowed her stern to swing so far off from the pier as to bring her propeller into collision with the canal-boat. Upon this point the evidence is conflicting; witnesses for the steamer insisting that she did not swing off, and witnesses for the canal-boat claiming, with equal positiveness, that she did. The evidence is irreconcilable; one side or the other has misconceived, misremembered, or misstated the facts. In such circumstances the conclusion reached by the district judge, who saw and heard the witnesses,
and has thus had the opportunity oC observing their demeanor under examination,'will be accepted. He found that there was a change of the Excelsior's stern, caused by its movement outward from the dock, and thatthe collision occurred inconsequence of' such movement. If this movement was caused by any carelessness on the part of those controlling the steamer's motions, she is of course to be held ,liable. If the situation at the time she started was such that, even with the exercise of due care, she could not haul out under her own power without swinging outside of the open water, through which she undertook to maneuver, she should not have undertaken such maneuver in so contracted a space. As to the canal-boat. The testimony is conflicting as to the number of boats and their respective positions in the slip at the time the Excelsior started out. The fact, however, which seems undisputed, that immediately after the collision an effort, was made to haul the Fowles over towards the dock on the upper side of the slip, indicates that there was a place within the slip more remote from the Excelsior which the captain of the canal-boat might have sought before the steamer started. If, when he was cast offfrom the steamer, and from all connection with · the lower pier, he made fastto boats ,which were 'flistened to the upper pier, his boat thus fonning the outermost of a tiel' which ." reached from its dock more' tbanhalf-way across the slip, .and as close to the Excelsior as he claims, (four feet,) it was clearly his duty, when he knew the Excelsior was about to start, to seek some other place with. , intheslip, or to betl\.ke himselfelsewhere. If he could not move his · boat without assistance, it was:his duty at least to ask for it; and even ·this he did not do. The decree of the district court is affirmed, but, as both sides haveap. Jl0aled. without costs.
BBISCOE II. SOUTHERN KAN. RY.
SCHOFIELD 11. DEMOREST.
(O(roo4t OOUrt, S. D. New York. July 10,1889.)
RBHOVAL OJ!' CAUSES-CITIZENSHIP.
l'Jnder removal act Cong.1888, § 2, cl. 8, providing for the removal of caUBe8 where the controversy is between citizens of different states, a defendant sued in a coun of his own state cannot remove the cause to a federal court.
At Law. Application to remand cause. This cause was removed from the state court under the third clause ,of section 2 of the removal act of 1888, which provides as follows:
"When in any sqit mentioned in this section there shall be a controversy between citizens of different states which can be fully determined as between them, either one or more of the defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the p:toper district. "
The plaintiff is a citizen of Connecticut; the defendant a citizen of New, York., The plaintiff moves to remand. ' Rabe k Keller, for plaintiff. OarliileNQTWood, Jr., for defendant.
LACOMBE, J. If anything seems plain in the removal act of 1887.it is that a defendant sued in a court of his own state oannot remove the cause into the federal cOlirts, and to that effect are the cases cited on the argument. The motion to remand is granted.
BRDlCOE t1. SOUTHERN KAN.
(Cilroo4t Oourt, W. D· .Arkansas. October 5, 1889.)
Co11BTll-:-WBI!ITBBN DISTRICT Ol!' A1lXANSA$-SoUTHBRN IN INDIAN TERRITORY.
The 'act of congress or July 4, 1884. gives to the circuit or district court of the western district of Arkansas jurisdiction over suits by or against the Southern Kansas Railroad Company, such company having a right, by the act of congress, to build its road and operate the same in the Indian country. The claim of jurisdiction of this court must be based on the cannot depend on the citizenship of the parties. and
The court has Jurisdiction because this is a suit arising under a law of the United . States., When Is a suit one arising under a law of the United States' When it appears that some title, right, privilege, or immunity on which the recovery depends will be defeated by one construotion of a law of the United States, or sustained by the opposite construction. ' . 4. SAHE-'ToRTB IN INDIAN COUNTRY. · Prior.to the act of July 4, 1884, the plaintl1f could have had no remedylD the Indian country for the injury caused by the ton of defendant i therefore, be had no remedyaaywhere.
When that act of congreu gave for the first time a remedy. the right of platntUf became for the first time a perfect right. ' , , Until this time it was a remediless right. and. practically, was no right. as a right without a remedy is no right. "This law of congress gave the plaintiff a right or privilege for the first time.
Jurisdiotion exists in a court of the United States as well where an act;,of oonfl:ress for tbefirst time gives a,right'of. action. thus affording ,a remedy, as where It creates a right. , In either case It,isthe existence of a claim to a right or privilep;e that is founded on a law of congress, and is therefore a case arising under a law of the United States,-one where a party comes into court to demand something conferred on him by a law of congress. In a case where ,8. railroad companybae legal authorltyto lease its road. and does lease it and turnllover the wholecollti'ol'and management of the road to the lessee, it would not be liable for dam"ges caused by the torts of the, lessee. To absolve the lessor from liability the lease must bllauthorized by legislative authority.
&RAILllOAIl CoMPANJt!iS.,...LEASEs-LIAJlJUTY FOR TORTS. ,
A corporation cannot absolve itself from the performance 'of its ,obligations' to the :publio wlt)loutthe consent of the expressly given.
SA),lE. , " "
The lessor is absolved from liabllity by legislative authority, in etleet; when the by law." " ' , I' lL SAME-RECOGNITION OF EXIS'mN(lE Q)' CoMPANY. , ' , The authority is not given'by the act of congress of Jnly 4,1884, to the Southern Kansas Railroad Company, to lease its road: situated in the Indian country.' ,This authority to lease must be expressly given, ' Oongre,ss s1l:nply recPltnized the Southern Kansas Railroad as a Kansas corvotation, havin'gan'existence under the laws of Kansas, and gave to it certain rights in the Indian countrr, such as the right to ; bu,ild.tt1l rqa4 tl\rougl!- that .oo)lntry exercise all the powers incident . 'to the ownetilhipi construotlon, and 0lHlration of its rOad.' , . "
:' ,A B:t8w. W' a canIlO1o ponfer UPOIl It .. legal ght to act. , ,withint'be Jurisdiction of another'state. ' , " " , '" ' " ,'. l8. SAME. ''':f,:'", " 'il J.: ..' , , 'J ",):, Every power whioh a corporation exercises in a state other than the one creating it depends for its validity upon the laws of the sovereignty in which it is exercised. U. SAME-CONPLICT OF LA.ws. " ,,' , Courts of justice of a country have always expounded and executed oontracts according to the law of the place in which they were made, provided that law was not repugnant to the laws or polioy of their own country.
PQWl!;R6'OJ' llVllEIllN By the ,comity of nations foreign corporations are allowed to make contracts, within their respective limits, not contrary to their known policy, or injurious to their intereBts.:" ;, \ ' J
By,tbis pr,lncW.le a ;railroad corporatiolll1.l¥J tll,e right 109 e,*er<1i\l6&11 of lts 9rdinary powers in a state other than that which createdlt,-sucb out of ,its as. making col:ltraots in regard to thl;l transll.ctioJ;l of its Dusi-
neilS, e "
But under such a principle of comity a railroad company oannot exercise. out of the state which created it, an extraordinary power, such all, is involved J its road is "ituated,OJltof aai.d Iltate;· and, ,wllentheo1;lly. authority to lease it is contained in its home · .it Ollol1not ,lease a road owned by it sitll,ated beyond the limits of the jurisdiction of such home charter, so as to gl;lt rid'Qt ,I.t.s re"'" t.hepub,lic; Vl/¥,'Cb." .it w,.he,n,it e franchi!lS. 'The , ., ','leasing of its ,by a is we .anextraordinarYip.ower by liUoh,ootllpa.nt unless express ,authority is coilferred "; ..which call1lOt.
" l " ' ; : " " ,"
,,' ,,' ,"
,'. , "
, ','.; ,
Railroad companies being public corporations so. fat' as to besJlbjected .by legislati"e action,tliey oan· donp'act Which would'"l1omount to a renunciation of , , .,thelr duty ,to t1;le publio, ,or ,wlliohWll.uld d,ireotly aDd necessarily from performing it. They cannot, therefore, without express autb!>rity"convey: away
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BRIScoE 11. SOUTHERN KAN. RY, CO.
by fora'long time their franchises Qnd corporate rights. But they may contract debts, purchase on credit, and mortgage their personal property not affixed to the road, though used in operating it, as doing these things would be but the exerciseoford,inary powers.. The laws of Kansas granting to defendant the right to lease its road cannot operate beyond the sovereignty of Kansas. (SyllabUS b')J the Oo'Urt.)
At Law. This is' a suit brought by plaintiff to recover damages of defendant for the killing of his horses by the carelessness and negligence of defendant's agents or servants in running its engine and train of cars over said horses, when the same could have been avoided by the exercise of reasonablecare on the part of such agents or servants. The defendant filed its answer, dellying the allegations of plaintiff's complaint as to the negligent killing, arid setting up that before the killing Of said horses defendant had leased its road for 99 years to the Atchison, Topeka & Sauta Fe Railroad Company; that the control and management of said railroad was entirely in the hands 6f the lessee, and the running of trains over it waS by the agents and servants of the lessee, and the defendant had nothing to do with such control, management, or the running of trains on said road. The case W!l.S tried. Verdict for plaintiff. Defendant filed its motion for new trial, and in it complained specially that the court erred in instructing the jury that the lease of defendant to the Atchisori, Topeka & Santa Fe Railroud Company was unauthorized by law, and therefore void, and tnat, such lease being void, the lessor was not free from liability forthenegligel1t acts of the lessee. The motion for new trial was overruled. The other pointa raised in the case fully appear in the opinion of the court. Barne8,' Mellette Boudinot, for plaintiff. Duval Cravena, Goo. R. Peck, A. A. Hurd, and Robert Dunlap, for defendant.
·PARKER, I., (q,fter BfAting theJactJJ as above.) The first question is, did the eighth section of the act of congress of July 4, 1884, give the plain. tiff the rigbtto bring a suit in this court? The section is. ."That the United States circuit and district courts for the western district of Texas. the western district of Arkansas, and the district of Kansas, and such other courts as may be authorized by congress, shall have, without reference.to the amount in controversy, concurrent jurisdiction over all controversies arising between said I:)outhern Kansas Railroad Company and the nations and t.ribes throngh whose territory said railway shall be constructed. Such courts shall. have like jurisdiction, without referenl<e to the amount in 'controversy, over all controversies arising between the inhabitants of said nations or tribes and said railway company: and tile civil jurisdiction of said courlS is hereby extended within the limits of said Indian Territory, without diatjnctionas to citizenehipof the partiee, so far as lOay be necessary to carry out the provisions of this ,Counst:llfor.defendant. contend that the last clause of the section, towit,. so far: as may be necessary to carry out the provisions of this act," is' a limitation to the section of such a nature as to limit the jurisdiction of the fedeml·courtsto such controversies a& may arise between the