(Circuit Goort, S. D. Florida. March 26, 1800.) 1.
The master of a steam-boat, who was also manager of the company owning it, brought suit for the engineer's wages, in his absence, kno.wingl Y claiming less than was due, and wrote the engineer that he could afterwards sue for the remainder. The latter never admitted that the claim was for the full amount, except by ratifying the suit. Held no waiver of his claim for the balance.
. The fact that, as a libelant, he stood by at a sheriff's sale of the boat without giving notice of his additional claim, does not discharge his lien therefor, when it appears that some stockholdeN of the original company were interested as purchasers, and the master as their agent bought in the vessel. 3. Sum. The engineer, having removed to a different port, libeled the vessel on her first appearv.nce there. Held that, although a year had elapsed, he had not lost his lien where the delv.y caused no change for the worse to claimants.
In Admiralty. On appeal from district court. W. D.McKinstry, for libelant. W. E. Richard8on, for claimant.
40 Fed. Rep.
PARDEE,. J. In March, 1887, the steam-boat Lillie, owned by the Montgomery & Prattville Daily Line, was navigating the waters of the Alabama and Coosa rivers. March 5th the libelant was employed on said steam-boat as engineer, and continued in such employment until December, 1887, when the buat was seized under an execution issued in favor of A. A. Janney & Co., on a judgment said firm had obtained against the Montgomery & Prattville Daily Line in the circuit court of Montgomery county, Ala. During his employment he was paid various sums on account, but at the time of said seizure there was a conceded balance due him as wages. On the 23d of November, 1887, a suit was instituted in favor of libelant against the Montgomery & Prattville Daily I..ine.before a justice of the peace in the city of Montgomery, claiming balance of wages due to October 20th, $95.85. Process issued in said suit, and on November.30th, on trial, a judgment was rendered for the plaintiff against the defendant for said sum and costs. December 8th a writ of jim facia8 was issued therein, which was returned December 19, 1887, with the following indorsement: "Levied on steam-boat Lillie, her furniture and· tackle. and same was sold 1887, for six hundred and ve dollars, ($625.00,) on 21st and the money applied to prior executions, and no pJ;Operty to satisfy this ft.
Early in January following a iibel was prepared claiming wages due to libelant, and was filed in the district court for the middle district of Alabama; but, for some reason or other not apparent, no process issued thereon. The boat lay at Montgomery some time after the sale of derexecution, and continued in the waters oftha middle district until January, 1889, when, on its arrivaJ. in Mobile, the libel in this case was
filed. In the district court the claimant made an elaborate answer, setting out a number of defenses, to .which; al1SW'er exceptions were sustained. and the claimant had leave to further answer. The further answer filed in the case sets forth severaT defenses; but, on exceptions filed thereto, put. the question of eqpJtable estopped by all issues reason of libelant's alleged presence at the sale of the boat under the ecutiou,,aforesaid. In coq.rtthe whole case has ,been argued, and the delenses made are as follows: (1) That the amount claimed ($241.05) is tom;altethatsum libelant has charged wages at $50 a month up to October Ist,and thereafter at $75 a month, when the is to have been that his wages were to be $50 a month, with a further agreement that during cer4tin time of sicklless,and while the boat was aground, he was to charge nothing; and because the bill that he made out, upon whlch suit was brought in the justice's courtin Montgomerf'lI'as for only $95;85, claiming that sum only.in suit being a waiver orriny greater c1aiD1. (2) That the libelant was present at the sale by the sheriff, and made no objection to such sale, nor any claim of Uny Ji,en. an the boat. for his. wages; and afterwards .enteredinto the employ of the purchasers, and rendered. services to said boat, for which he was paid, at which time he made opclaim for wages due him·. (3) Laches on the part of the libelant in asserting his claim. The' evidence. shows that the Montgomery & Prattville Daily Line was in ;financial difficulties in the month of November, at which time the general manager of ,the compiliny and the'masterof the Lillie" (who, by theway,.is now the master; and represents the claimants in this case,) knowing that wages were due the libelant for his services, :himself prepared:,iin:the absence of the::libelant, the, bill upon which the suit was brought in the justice's conrt,proved up the claim, and otherwise therein represenited the libelant's :iQterest. It appears by the evidence also that,' at.thetime said master caused the bill to be made out, he knew it did not: cover all ,the libelant's wages, and he informed libelant, by let.. ter"tbat.he could "get one afterwards." There is no evidence .showing that libelant ,ever asserted or consented that the amount :sued for betore the, justice' was all that was due him tor wages, 'except, i:o£,oourse, the .facHnat he ratified the action of the master in .. Under tlrese circumstances, theoourt cannot find tllat:the;Jibelant has waived:any part of his claim. While the libelant was present at the sale, the evidence does not astablishith&1:.hesaid anything' Jlimself,or heard anything said, with 1'&0 ga'rd to'::a titlebeingOigiven by the sale, or in any except by inducing any personlvhatever to buy the said boat as free and clear of liens. It does appear in the case that 'oile Montgomery &PraU\'illeDailj' Line was one of thephr6hasers at:th'El' s'herifl"s sale; 'and ·has continuously held, and now'holds;his inletest:ih the said boat; that the master onh,e boat and agent of the· 0w'nerS,whd 'WItS also a stockholder while she belonged to tlie Modtg6mery&',Prattville Daily Line, retained some interest ir.: said 'boat;' though notsS aatEiokholcler, andlllHhe Hme'ofthe seizure ,hereinj
. TilE R., B.
wa:s: the, maate!" and agent of the owners, ,who at 'the sale ,on eX'ecutiorl.,. The court ha.s a right tainfer, from this stlil,te of facts,tbllt , the purchasers at the sheriff's sale were charged with notice of the clai;rn «)f.libelant, and of his right to be, paid by preference over ,the general creditors of the Montgomery & Prattville Daily Line. The claimants · took, the title of the vessel cum Qnere. The derivation of their title, from the owners, through a sheriff's sale on exeqution,was a circumstance;to ·pnt them, on.inquiry.Tbe maxiIil, caveat emptor, fully appIies, to lOucb purchases. All this is well settled in admiralty. ,; Practically, the position of the parties has not been changed .from. the day of the sheriff's, aale 'until the bringing of tbis libel; no one of the cl\limp,nts l>as changed his position for the worse, or in wise been inI delay in libel. ,Oonsideting that the 'libelant Ii.ved in was ,empl<lyed in Mobile for this service;. after Had 'been dischargM returned 'tb Mobile, and then .libeled the boat time tha't,sh,eTeturned to that port; and that, iu:fact, oriiy12 ni'oritlis Jeltipsed before brmging the libel, and, that no party' has beerl in,':':""t11e 'colHt is nOt disposed to convict the'libE!lant of · hipqes bih.Qlding his deh],and, as stale". 'See Coburn v, 20
1 .'., ,
as concerns the dispute to as the 'amount of wages; it is
, t9 ",anfS;'al'ltl',a:llowed . ,i does dif:.itrict
:'1' ",',:; (.',
yielde1 to the lit $50 per month. As thehoelanthas' not plain ofthat It seems clear thll.t the should be affirmed, and it is so otUer6d.'
j , ' ,
D. Michigan. March 17,1890.)'
TORTS",,":,PJj)RSONAL INJURIES. ,, , ' " .
. , 'Libelant, who was engaged in repairing a vessel wllichmy at II wharf,attempt_ .. ad to descend a ladder connect-ing the whar:f 'lVith the bulwark of the vessel. ,I 'l'\l.e protectell.against by a cleat the bottom. b.ut hll,d. removed from the protectIon of the cleat by the negligent act of the master. 'In descending:tlle ladder,.it slipped, and libelant was tllrownupon whar,f iandip.· i\lred., ,alllia, that a of admiralty has ". :
In Admiralty. This was a libel in rein for personal injuries received u.nder the f6110*ing circumstances. In January, 1889, the steam-barge H. S. Pickands waslyitig in winter quarters at her wharfin Detroit, hemmed in by the ice. She was at the time undergoing repairs, and libelant was engaged in dtlil'lgsome work connected with her boiler.' Access to'thesteamer wasga.ined by a 12 feet in Ieogth, leading from thewhltrf "t() of the, ..whichl].ad bottom by a cleat which prevented its slipping. A few minutes before the aCQi4ent,
libelanfhimself had made use of it to board the vessel with a plank; and :while there the master of the vessel, unknown to the libelant, had moved the ladder from the cleat, and left it unprotected. In attempting to go on shore to procure other material to use in his work, libelant mounted the ladder, which slipped at the bottom, owing to the icy condition of the wharf, throwing libelant down upon the wharf, fracturing two of his ribs, and otherwise him severely. This libel was filed to recov-er for his pain and suffering, his medical attendance, and his loss of time. H. a. Wisner, for libelant. ·.. Allen H. Frazer and Henry A. Mandell, for -claimant.
I am clear in roy opinion that 8 court of admiralty bas no of this case. It halJ 'never been d(>ubted 8inc.e the case of Th.eflymauth. 3 Wall. 20, that, to us to take of 8 tort, the injury must have been the damThe mere fact that the wrongful act was age received, upon the adjudications have in no done upon a ship is insufficient. wise.tended to limit orq.ualify .th,is rule. Ex parte Phenix 1m. Co., 118 U. S. 610,7 Sup. Ct. Rep. 25; The Ne;i1, Cochran. Brown, Adm. 162; 'fhe.fJttawa, Id. The a. Accame,20 Fed. Rep. 643;. The Maud
In this case, not onlYW88 the damage received upon the land, but the : s}ipping of the ladder the injury occurred there, althot;lgh the removal of the ladder produced the slipping was done by the master while on board the vessel. It is true that in the case of The Dayletiford, 30 Fed. Rep. 635, the libelant was allowed to recover in a case similar to this; but the question of jurisdiction appears to bave escaped the attention of counsel, and is not noticed in the opinion of the court. The same remark may be made with regard to The Caroline, 30 Fed. Rep. 199. But in 'the case of The Mary Stewa?·t, 10 Fed. Rep. 137, it was held that an injury done to a man standing on the wharf by a bale of cotton which was being hoisted aboard a ship loading at the wharf, llndwhich fell before it reached the ship's rail,and struck him, WAS not .cognizable in the admiralty, although the rope which broke was furnished by the ship. one end of which waS fastened 'to an engine which stood upon the wharf and furnished the hoisting power, and the other end of which passed through a pulley a.ttached to one of the masts of the ship, and was fastened to the cotton which was being hoisted on board. This case is readily distinguishable from that of Leathers v. Blessing, 105 th 8.626, in which the libelant was injured while on board the vessel by: a bale of cotton falling upon hilU, and the jurisdiction was sustainedlipon the ground that the injury was received on board the vessel . itself. . . A decree will be entered dismissing the libel, but without costs, as the.defense might ha\Te made by way. of exception to the libel. . . NOTE:. pn appeal to the court this case was affirmed by Mr. Justice
'dREWER·...... ' . .
LoUISVILLE BRIDGE CO. et. al.
(Oircuit Court, D. Kentucky. April 5, 1890.)
REMOVAL OF CAUSES-PLEADING.
Where defendant's petition'for removal of a canse distinctly alleges that a federal qnestion is raised, his answer, filed after a motion to remand. and setting out Ulore in detail the nature of the defense, may properly be considered on that motion. Whether or not a removal bond should have no fixed penalty, a bond otherwise valid is properly accepted where the penalty is sufficient to cover the costa likely
. A proceeding to exclude 8 bridge company from the use of a franchise to operate railroad tracks in a public street does not raise a federal question, though such . tracks lead to its bridge, built under Aota Congo July 14, 1862, and Feb. 17, 1865, authorizing the construction of 8 railroad bridge over the Ohio river, and declaring that it "shall be a lawful structure, and shall be recognized and known as a postas those acts do not attempt to give the right to the use of the street as an . : A proceeding by a state to forfeit a franchise cannot be removed to the federal cour.ts on tbe ground that it. iml.airs the obligations of 8 contract j the probibition of the constitution being that Iio state shall pass any law" impairing the obligation of contracts.
LAW-OBLIGATION OF CoNTRACTS.
In Equity. On motion to remand. P. W. Hardin and Muir. Heyman« Muir, for the Commonwealth. Oha8. H. Gib80n and Barnett, Miller « Barnett, for defendants. BARR, J.The commonwealth of Kentllcky brought this suit in the Jefferson court of common pleas; and it has been removed here, on the petition of the defendants, upon the alleged ground that the controversy is one arising under the constitution and laws of the United States. The plaintiff moves to remand the case to the state court, and insists that it does not raise any question under the constitution or laws of the United States; and it is also insisted that the bonds executed in the state court are not sufficient, and the execution of a proper bond is jurisdictional. The suit is a statutory one under the Code of Practice of this state, which authorizes such a proceeding in lieu of a writ of quo warranto, or an information in the nature of a quo warranto, and is for the purpose of having the defendants excluded from the use of the to operate a double-track stearn railroad in and over Fourteenth street, in this city, from Main street to Maple street, and to recover damages for the wrongful use of said franchise heretofore. The plaintiff alleges in the petition that defendants, in co-operation with each other, have usurped the use of Fourteenth street from Main street to Maple street, a disto nee of about one mile, and have used the same, by operating a double-track railroad, with steam, for many years, and are still operating said road over and through said street, for the transport.ation of passengers and freight, and are now, and have been for more than 10 years, charging tolls and compensation therefor illegally, and that they are exercising said franchise without wauant or right from the plaintiff, and without any lawful authority whatsoever. The petition for removahlleges that there ian. fed-