UNxWD [STATES tI. THE RESOLUTE.
Hyland' & Zabris7Cie, for E. G. Dam, for respondent.
BROWN, ,J. Taking' aU ,the testimony together, respondent's as well as libelant's, I am satisfied that the nnderstanding upOn which the tin was shlpP\3<l upon the respc;mdent's lighter was that it should be insured by the rellPondent. common carrier or not, ,he 'is here praein the same situation. For the injury and loss of the tin by the subsequent sinking of the lighter the respondent is therefore answerable. The amended answer claims a limitation of his liability to the valua oftha vessel, under the acts of 1851, (Rev. St. § 4283,) and of June 26, 1884, (23 St. at Large,p.57 ,§ 18.) In previous cases I have expressed the opinion that the act of 1884 does not limit the liability of the owners of vessels upon their direct personal contracts outside of the ordinary business oithe vessel, but only the liability cast upon them by law, by reason of their ownership of tIle vessel, through tbe contracts or torts of the master Or others engage!! jn her navigation. The Amos D. (hrver, 35 Force v. IrtBMTa'Y!ce Oo.,ld. 778; M'I11er v. O'Brien, Id. 783. The contract in the present case was the personal contract of tbe respondent; and, following the view previously expressed, I must bold him not to the limitation of liability as claimed, and order judgment for ilie libelant for, 82,100, the amount proved, with interest and
UNITED STATES 'V. THE RESOLUTE.
(DIstrict Cowrt, D. Rhode IBtand. November 9, 1889.)
L l(Bt1TR4LIT1' LAWs---ll'ORII'EITURllS. Rev. St. U. B.5 5288, provides for the forfeiture of vessels violating neutralltI laws, "one-half to the use of the informer, and the other half to the use of the Unitea Btates. ", HeW, that where a vessel is forfeited and sold under this provision, and one-half of the proceeds is paid to the United Btates. the other half remaining in the custodycof;the court, latter half will npt be paid to the United States, even after the laJ!se of many years, where it does not appear that it will not be needed to satisfy a"J,Ud.gment forsorne Ola.imli,n.t &8. informer, and it is im,material that ..' v. S.to U. S. 'S 8689, provides for,refunding moneIs and oovered into the 'Ilry; betoretlie payment of legal and just oharges against the same. It I. BAIIB. . . . " . Even if no otherclaimant ev:er appears, such :(wid is not the property of the United States, under the statute.
In Admiralty. treasu . .·, :
Petition for payment of moneys into the United States
Gardner, U. S. Atty., for the petitioner.
CARPENTER, J. The schooner Resolute was libeled and condemned for violation of the neutl'ality laws, (3 St. at Large, c. 88, § 3, p. 447; Rev. St. §.52S3,) and ,the proceeds of sale were paid into in tbe year 1874.,Olle-half of tboseproceeds was paid to the United, States, and the other one-half, amQunting to $2,322.42, remains.in the registry of the court. A claim was filed by David Ritchie, alleging that he WlUl entitled dto i this' as, informer, and hill .claim heard ,and" dismissed by the court. This petition is now"filed on behalf of the Unite;d
l!'E:bERAL REPORTER,· vo1.40..
States, praying that the fund now in the registry be paid .into.the· treasury. To the granting of this motion there are, as it seems to me, two objections: First. It does not appear that the money will not be needed to satisfy a judgment in favor o(some claimant who may prove·his right as inf9rmer. Such a result,: in.this case,after the lapse of so much time, seems v:eryimprobable; I cannot male a judicial finding based on the proposition that it is impossible. The district attorney suggests that if such a contingency should arise the money would be still available for the satisfa<;ltion of the iDformer, under the provisions of Rev. St. § 3689, which appropriates suchsums as may be necessary "to refund moneys received and covered into the treasury before the payment of legal and just charges against the same." This suggestion does not meet the difficulty. The appropriation act above quoted is intended to pay sums erroneously., or by inad,vertence, paid into the treasury; and, however efficient,itmay be for that j)urpose, it does not justify apayment into the treas1lry .in a case where it is known at the. time of the payment that there a just and legal claim on the jJart of some other person.· Still further,it seems to me clear that the statute quoted would not be efficient to secure the repayment of tQis fund, if it shouM be needed. A claimant who had established hisright,and obtained the judgment of for the payment to him of the fund in question, would be then obliged to present his claim for the money to the accou·ntingofficers of the treasury, in which he must allege that the money had been paid into the treasury "before the payment of legal and just charges against the same." To support this allegation he must, of course, maintain the proposition that his claim is a "legal and just charge." If the statute contained a provision, in express and unmistakableJanguage, that the judgment of the court should be conclusive on this. question, it might, perhaps, be argued that the fund would certainly be Piloid over in purimance of the judgment, oi.',llt least, that the court sh.ould assume that it would be so paid over. But, in the. present state of the case, I should think it not improbable theacco)lnting officers <>rthe treasury would conceive themselves required to make an independent examination of claim were a "legal and just charge," and to the question whether decide the question of payment according to the result' of such examination. I do not think it right to subject to such contingencies a fund now properly in the custody of the court. Secondly;. .It does not appear that the fund now in court is the propof the United States, even if no further claimant should ever set up a demand to receive it as informer. The statute provides that the ship Qr vessel "shall be forfeited, one-half to the Use of the informer, and the Qther half to the use of the United States." Rev. St. § 5283. There does not· appear to be in this language any expression of an intention that the wh<?!e shall go to the United States, ,in ·case no person establishes his right as an informer. Such a case seems to have been left without aIly provision as to the disposal of the share set apart for the informer. On the whole, therefore, I am of opinion that the petition should be denied and dismissed. Petition dismissed.
11; MANUFACTURERS' ACCIDE!\T INDEMNITY CO.
MANUFACTURERS' ACCIDENT INDEMNITY CO. OF THE UNJ;l'ED STATES.
(Circuit Court,E. D. Wisconsin. December 18, 1889.)
REMOVAL OF CAUSES-TIME OF ApPLICATION.
Under the removal act of 1888, (25 St. U. S. o. 866, 58, p. 435,> providing that the petition for removal must be filed "at the time or any time before !s required, by the laws of the state or the ruJe of the state court in WhICh SUIt IS broughtl to answer or plead to the declaration, " an extension of the time to file the answer Deyond the time expressly provided in the state statute does not extend the time to file a petition, for removal beyond th\lot time. l
At Law. On motion ro docket cause. Fairchild & Fairchild, for Webster & Wheeler, for plaintiff. JENKJNS, J. The plaintiff brought action in the state court against the defendant, a foreign corporation, by service of summons and complaint, 011 the 20th day of May. 1889. By law ,the answer was due June 9th. The defendant appeared to the action, and un the 3d day of June obtained from the plaintiff a stipulation extending the time to plead until July 9th. On July 6th the defendant filed in the state court its answer, and also its bond and petition for the removal of the cause into the federal court, and moved for an order accordingly. The nl0tion was denied by the state court, upon the ground that the application was not timely filed. The defendant now presents a certified· copy of the record, and asks leave to docket the cause in this court. The present removal act requires, with respect to the time within which the right to removal is to be asserted, that the petition mllst be filed "at the time or any time before the defendant is required by the laws of the state or the rule of the state court in which suit is brought 25 St. c. 866, to answer or plead to the decl!1ration of the § 3, p. 435. The question presented. is whether an extension of time to plead enlarges the time to petition for removal of the cause. The history of legislation with respect to the removal of causes from state to federal courts throws light upon the intention of congress, and aids to properly construe the provision under consideration. By the judiciary act of 1789, (1 St. 79,) the application for removal must be made by the party "at the time of entering his appearance." Under that lWt it is clear that the right must be exercised with the initial step in the cause, or it was lost. Under acts of 1866 (14 S1. 306,) and of 1867 (14 St. 558,) the right of removal could be exercised at any time before the trial or final hearing of the cause. These acts enlarged both the right and time of removal, and under them abuses sprung up. The right was frequently exercised to delay the cause, ra*er. than to obtain its adjudication in a federal court·. The act of 1875 (18 St. 470) sought
lAs to what Is the proper time for tlling a petition tor removal of a cause, see Burck Y. Taylor, 39 Fed. Rep. 581. and note. '