of New York." The shows, thatJpe Wensleydale aryork with on .. Several,oft?ecrew were One ,after the arrIved, alld eight weresel,ltto the Swinburn .Is1f!.pd ,,:e:pspital, ,and among them a seaman ,natnt:U McCormack, who ,Itt the time at door, his extrewities cold, arid his ,abiijtY'r,to stlrvive the tranapOl:tation from the vess'el to the hospital dou1:/ted:.. He suhsequentlyrecovered, but,. owiug to the cessation of the of blood, it became necessary to amputate and nine of his t0138 were amputated in the hospital. He remained in the hospital 134 daYfJ,wqen he waa discharged. ,After his discharge from the hospital he went to Boston, and there was compelled to go into a hospital, where testifies that, some of his toes were again 1t1l1putated. The health so far. as the ftlver' was concerned, the man might have left the. hospital at the expiration oftwo months, if he had had a place to go and friends to take care, of him. But, although able to sit up, he was unable to stand upon. ,pis feet or take care of himself. Upon this evidence the claimant insiBt/; that the liability qf the ship is to be limited to the hospital expenses of two montlls,' 1 cannot agree with tliis.. The seaman had 1:>een taken sick while in the services of the ship, and was; entitled to be cared for at the expense of the ship. He was properly seht to the Swinburn Island Hospital, and was, so far as the ship is concerned, entitled to stay there until he was cured. At the expiration of two months he was far from being cured. Indeed, when he left the hospital on the 134th day he was not cured. I see no ground upon which to relieve the ship from the responsibility which the statute casts upon her for the expenses of the man for the whole time during which he was in the hospital. The libelants are entitled to a decree for the amount claimed, and , costs. .
(DiBtrict Court, S. D, New York.
February 25, l890.)
Action for freight and demurrage.
Esq., of the New York bar.
lReported by Edward G.
EGAN V. A CARM OF SPRUCE LATH.
Hyland &- Zabriskie, for libelant. Benjamin Barker, Jr., for claimant.
BROWN, J. The above libel was filed to recover an unpaid balance of freight on a cargo of laths brought from Quebec to New York. At Wbite.: hall new bills oflading were issued, and the cargo consigned to Irving Wyatt,pf this city. By him the cargo was sold before arrival to the claimant,Frank E. Smith, free of charges; but the bills of lading were not transferred. As the laths were discharged upon the wharf, they were received by the claimant, and transported to his lumber-yard, about a half mile distant. Five days after delivery this libel was filed. The case was submitted upon a brief statement of facts, by which, in addition to the above, the following appeared:
"The dischllrgewas made without knowledge on the part of the libelant that it was to any other than to the consignee, and in the expectation that all claims against the cargo would be Pilid by said consignee .or the shipper on the completion of the discharge, and without any notice of any claim or lien for freight or demurrage being made upon the claimant at the time of the disof the cargo, or before the commencement of this suit by the filing ol' the hbel, five days later. It is customary to discharge the cargo from canalboats before demanding freight and demurrage. in the port of New York. After the discharge had been completed, and the laths placed on the premises of the claimant, the libelant's claim for freight and demurrage was disputed, as to amount, by the c<>nsigllee of. the cargo and the shippers, and this action was commenced to establish a lien. "
The rule of law on this subject is laid down by the supreme court in the case of Bag8 of Limeed, 1 Black, 108. The facts of that case do not appear to me any more unfavorable to the existence of a lien than in this case, and there the libel was dismissed. There, Wills, the consignee, was sick at the time of the arrival of the cargo, and died before the discharge waS completed. His agent, before the death, had made one part-payment on account. But though in that case some special reasons existed why delivery after the consignee's death might have been deemed a qualified delivery by implication, yet it was held that the delivery, being without any actual condition or qualification, put an end to the lien. The most favorable passage in the opinion of the court states that where an understanding exists between the parties that the transfer of goods from the ship to the warehouse' shall not be regarded as a waiver of the lien, and that the shipper reserves the right to proceed in rem to enforce it if the consignee cannot pay him, or if such an understanding is plainly to be inferred from the established local usage of the port,the court of admiralty'will regard the transaction as a deposit of the goods for the time in the warehouse, and not an absolute delivery, and the lieD' will be preserved. In the case of Wilcox v. 500 Tons of Coal, 14 Fed. Rep. 49, Judge DRUMMOND states his understanding of the rule of the aboV'ecase to be that to retain the lien "there must be an understanding between the parties that the lien of the ship-ownerremains upon the cargo, or it must appear there is an established local usage of the port
where the cargo is delivered that the lien shall remain;" and there also the libel was dismissed. .. , The agreed statement of fa.cts, as itseems to me, does not establish a lien under the above authorities. There is no statement of any understandinj1; that the lien should remain j nor does the alleged custom aver the retention of any right to proceed in rem after delivery of cargo, nor any understanding or practice to that effect. The libelant relies on the language bf Mr. Justice NELSON in the case of 151 Tons oj Coal, 4 Blatchf. 368, where the intent is made the controlling circumstance; and where it is said that"a delivery of the article according to the terms of the bill of lading, * * * under the expectation that the freight will be paid at the time, is not such a deli very as parts with the lien." The facts there accord with the opinion and decision. The circumstances, as reported, plainly indicate that immediate payment was expected from the consignee ,at the.moment delivery was completed. The delivery was necessary to enable payment to be demanded, and the refusal Ofthe consignee to pay appears in the report as a quasi fraud. The demand ofpa.yment was made upon the consignee as soon as the contract and delivery were complete. In the present case the statement of facts does not show when the demand of payment was first made, except that it was made after the dis-charge had been completedj nor does it show that any demand on the claimant wall 'made by the libelant as soon as he learned that the claimant had recei'\1ed the lathsj nor that the consignee did not offer to pay him all that was just in, or that he had any idea of holding the laths until a dispute ar91'e, with the consignee I'as to amount." The demand on the claimant certainly was not made a,s soon as the discharge was completed, nor of the claJmant to whom the delivery was made,nor on the claimant's premises, at the place to which laths were carried as discharged. The necessary inference from the statement of facts is that the libelant paid no attention where the laths went when discharged, as he would have done had he intended to hold on to his lien. And the further statement that the deIiverywas made in the expectation of payment "by the consignee to me, with the idea of any conor shippers" is not compatible, it ditional delivery at the wharf,or retention of a lien after the laths were discharged and carried away, because the complaint states that the original shipment Was at Quebec, and the reshipment at Whitehallj and the expected resort "to the shipper" at Quebec or Whitehall, for the and demurrage, if not paid by the consignee, coupled with the fact that the libelant permitted the laths tobeat once carted from the wharf as fast as discharged, presumably for consumption, without inquiring who was taking them away, or where they were going, and without any notice at the time of intention to hold the laths for payment of freight and demurrage, is inconsistent with any intention at that time to hold a lien on them after delivery. As ill the cases above cited, the delivery must therefore be held unconditional, and the libel dismisaed t with costs.
ooNSOLIDATED STORE-SERVICE CO. fl. LAMSON CONSOLo S. S. 00.
CoNSOLIDATED STORE-SERVICE CO. 11. LAMSON SERVICE CO.
Marcn 25, 1890.)
Com'ORATIONB-'SUIT IN FOREIGN STATE-J"URISDIOTION OIl FEDERA,L COURTS.
24 St. U. S. 1159, which provides that no civil suit shall be brought in the federal courts against any person "in any other district than that Whereof he is an inhabitant, » does not oust said courts of jurisdiction of a .suit against a foreign corpora. \ion which has agreed, as a condition of the right to transact business in the state, to submit, to be sued there, since the right given by the statute ill a personal exemption, which may be waived.
In Equity. On motion to dismiss. G1usten Browne and Rodney Lund, for complainant. Benjamin F. Thurston and M. B. Philipp, for defendant.
CoLT, J. A motion has· been filed by the defendant to dismiss this case for want of jurisdiction. The bill as amended alleges that the plaintiff corporation was organized under the laws of the state of Maine, and that the defendant corporation was created under the laws of the state of New Jersey, and has .its office and principal place of business in Boston, Mass., and that it has appointed, in writing, the commissioner of corporations for .said commonwealth and his successor in office its true and lawful attorney, upon whom any process in any action or proceeding may be served, and in such writing agreed that any lawful process against it served upon said attorney should be of .1J1e same legal force and validity as if served upon said company, in accordance with chapter 330 of the Acts of the Legislature of said commonwealth in the year 1884. The law of Massachusetts provides, as a .conditionprecedent to a foreign corporation undertaking to establish in business in the commonwealth, that it shall make the commissioner of corporations of Massachusetts. ita attorney for the purpose of its subjection to proCess. The agreement entered into by the defendant corporation says: -"To be the. true and lawful attorney of said corporation ill and for the said commonwealth, upon whom all the lawful processes in any action or proceeding said corporation in said commonwealth may be served in like manner, and With the same efiect as if said corporation existed therein: and the said corporation hereby stipulates and agrees that any lawful process against said corporation which Is served on its said attorney shall be of. the same legal force and Validity as if served on said corporation." For the privilege of doing business in Massachusetts the defendant corporation made and filed an agreement as above provided. The question which is presented by this motion is whether the courts of the United States can enforce this agreement in view of the act of March 3, 1887,(24 St. 552,) which provides that "no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant." This act omitted the clause contained in the act of March 3, 1875, folv.41F.no.14-53