v. Arnerir.u8, 19 Fed. Rep. 32 Fed. Rep. The bond taken was properly enough taken in their mvnnames, as agents of the owners, because they had advanced the money as SU9h agents. Their taking such a bond from the cargo owners is wholly inconsistent that in advancing the money they acted at. all as the with agents (lftbe latter. They plainly agents of the ship: and owners only. The latter were the principals. They, and not Whitney & Co., alien on the cargo until its delivery. Had Whitney & Co. paid as agents of the eargo owners, neither the ship nor her owners could hav.e held anylien thereafter on the cargo, nor have refused immediate delivery, eVen without any bond; and any bond given must have been given W Whitney & Co. individually, and simply for their personal reimburse.ment. But the bond,on the contrary, is given to them as "owners or agents of the vessel." In any suit therefor, brought upon the bond', whether in the names. of .the agents or of the principltls, precisely the defenses, such as of the ship, could be interposed. No reasons are why the rule as to voluntary.payments should not be applied to maritime transactions as much as in other cases.. The reasons in favor of tbis rule as respects actions in r,ern are even stronger .than in ordinary cases; Jor implied liens are not favored, except in so ,far as they stand upon the grounds of commercial convenience or aity, which cannot be pleadeJ in favor of actions like these. To recognize an implied lien. fQr ,the repayment of moneys voluntarily paid would ,tend, to the ,prejudice and insecurity of subsequent bona fide purchasers .a.nd incumbrancers; since such a lien, if sustainedatall, would e4ist for ·8 rE;lasonabletime to enforce it. These risks ought not.to be increased ()r multiplied except upon strict In this very case,. the char.terer,after these payments, took the ship into possession, put her up as 8 general ship, and received, a large amount of cargo, before these demands. Were the vessel to be held, and her owners prove sponsible, the result would be a heavy loss inflicteQ. aD the chll,rtererfor ·the benetit'ofthose who had voluntarily paid a demand without :raising objections, which, upon their present. contentioll t constituted a known .' defenae, .The. claims now made COme too late. The libels must be dis:missed, with costs.
(DWrfctCourtiB. D. AUtbama. Mayll,I889.)
MARlTIM1l LJENS-WAGES-DISCHARGE BY BALE OF VESSEL milDER EiECUTION;
A sale by the sheriff of a vessel under execution for debt against the owners does not divest paramount liens, such as the claim for wages of a seaman not guilty of laches. His standing by at a sheri1f's sale of the vessel without lfiving notice of his claim does not prevent a sailor from afterwards enforcing his hen in admiralty against the vessel.
JReported by Peter J. Hamilton, Esq., of the Mobile bar.
In Admiralty. On exceptions to answer. W, D. McKiTUltry, for libelant. W.E. Richardson, for claimant. TOur,MIN, J. The sale by the sheriff on execution for debt against the owners did not divest paramount liens, one of which was the libelant's claim for wages. The GazeUe,l Sprague, 378; The Powell, 1 Woods, 99. And my opinion is that there has been no laches on the part of libelant in the delay in filing the libel, and I, am inclined tothe opinion that the facts alleged in the answer do not show that claimants were bona fide purchasers without notice. It appears that they had constructive, if not actual, notice of the libelant's claim. He had brought a suit, and obtained judgment on it, and had execution issued and placed in the sheriff's hands before the sale. And the very circuInstances of the derivation of their. title front the owners were sufficient to put them upon inquiry. 1 Brown, Adm. But, even if they were bona fide purchasers with'out notIce; there is no rule of law which requires a seama.n to assert his lien inany given time. Yet such lien will become extinct or barred by unreasonable delay if the vessel passes into the hands ofa bona fide purchaser without notice. There was no unreasonable delay'in asserting the claim in question. I was at first somewhat impressed by the proposition urged by the proctor for claimants, and, sustained by some citations of authority,-that the libelant stood by and saw the sale made 'to claimants, and did not inform them of his claim for wages. On looking at the authorities, I find that some hold that. where the libelant is present at the negotiation of a sale, and knew it was being made, yet permitted the purchaser to buy without giving him notice there were wages due him, it would be' inequitable to permit the libelant to recover. These were privatesales,andthe'courts, influenced by equitable considerations, say that seamen as well as others, in order to uphold a tacit lien, should not ,intentionally conceal it, to the prejudice of purchasers acquiring the property bonafide, and in iRllorance of the incumbrance. Ido not consider this case, under the allegations of the answer, as like those referred to. This vessel was sold at public sale by the sheriff under executions against the owners thereof. The claimants took the title to the vessel cum onere, (Maxwell v. ThePowell, 1 Woods, 102;) and if there is anything due by her to libelant he is entitled to recover it in this proceeding, so far as the answer filed by the c1aimantE\ shows to the contrary. The exceptions to the answer are sustained.' See The St. Lawrence, 1 Black,522; Sheppard v. Taylor,5 Pet. 675,676; The Mary, 1 Paine, 180jThe Bolivar, Olcott, 474; 2 Pars. Mar. Law,579.
KINNICK II. UNION INS.
M)NNICK 11. UNION
(Ctrc1tft CouTt, W. D. Michigan, 8. D. November 26,1880.)
REMOVAL OJ' CAUSES-LoOAL PRJlJUDIOE-REPEAL OJ!' STATUTE.
Rev. St. U. S. § 639, subel. 8, providing for the removal of suits between ott!zens of different states from state to federal courts, on the flling of an affidavit in the state court stating that affiant "has reason to believe, and does believe, that, from prejudice or local influence, he will not be able to obtain justice in such state court, "is repealed by the. removal act of March 8, Ib87, which repeals all ing laws, and section 2 of which p_'ovides for a removal of such causes into the federal circuit court by defendant, "when it shall be made to appear to said circuit court that, from prejudice or local influence, he will not be able to obtain justice in such state court, " etc. An aftldavit, flIed in the federal circuit court, stating that affiant "has reason to believe, and does believe, " that· defendant will not be able to obtain justice in the state court, is not sufficient evidence of that fact to warrant a removal under the later statute. 1
At Law. On motion to remand to state court. Rev. St. U. S. § 639, subd. 3, provides for the removal of suits between citizens of different states from state to federal courts, on the filing of an affidavit in the state court stating that affiant "has reason to believe, arid' does believe, that, from or local influence, he Rot be able to obtain justice in such state court." Act March 3, 1887, § 2, cl. 4, provides for a removal qf such causes into the federal circuit court, by defendant, "when it shall be made to appear to said circuit court that from prejudice or local influence he will not be able to obtain . justice in such state court," etc. Chaddock « Sullivan, for plaintiff. Norris «NorriB, for defendant. SEVERENS, J. This is an action at law, heretofore pending in thecircuit court of the state for the county of Muskegon; being a consolidation of two causes in that court, in which suits were brought upon two policies of insurance. An application was made to this court by the defendant, after issue joined, but before trial, for an order of removal from the of prejudice and local instate court into this court, upon the fluence. The petition of the defendant and supporting affidavit set forth the pendency of the suit, and the affidavit, which was made by a special agent of the company, alleged that the affiant had good reason to believe, and did believe, that, from prejudice and local influence, the defendant would not be able to obtain justice in the state courts. It was not shown by the petition or affidavit what sum was in controversy, but it appears from the transcript filed in this court that it was about 8500. The order for removal was made by me':' upon the supposed authority of Whelanv. Railroad Co., 35 Fed. Rep. 849. A motion to remand to
1 For a disoussion of how prejudice or local influence may be "made to appear" under the act of 1887, see Co., 35 Fed. Rep. 625, and SoutJ}wortb v. Reld, 86 Fed. Rep. 451, HuskinS v,. Rallway 117 Fed. Rep. 504, Denmson V. Brown, 38 Fed. Rep: 535 ; Amy v. MannlUg, Ill. 586,l:l'jlS; Goldworthy v. Railway ··.1d. 769; Hakes V. Burns, 40 Fed. Rep. 83. ·Not reported.