ing of the cargo on Saturday, or even Monday morning. If he had arrived at the place on Monday m9rning, even, it is evident that he would have been discharged at once. The libelant must recover for three days' detention at Atlantic City at the rate provided in the charter. Let a decree be entered in favor of the libelant ic>r $175 and costs.
THE STEPHEN BENNETT. l THE ELlZABETH T. COTTINGHAM.
tDf.4tJrict Oourt, E; D. New York. May 10, 1890.) .
COLLfSION-UVERTJJUNGVE8SEL-MISSfNG · . 'J;\'Il9 schooners were beating l1P the ooallt, the B. following in close proximity to the 'C.",nd slightly on her. 'l'he C. went about, immediately afterward-II the B, littempted to do' the same, but misstayed, and, gathering sternway, got under of the C" anawa& struck bY ber. The B. had misstayed once before that morning. Held, tha,t the collision was aaused by the B. in tacking so close to the C.I',with knowledg.e'thatshe was liable to misstay.
fqrdamages by collision. , OWifff,'.(}ray &' St1J,rges, for the Elizabeth T. Cottingham. .,GOQq,rich" lJeq.dy&' ()Qodrich, fOJ: the Stephen Bennett.
l3E;NE:l?ICT, J are cross-libeJs filed to recover by rea.aOn' artlc eollision· which occurred about noon of December 6, 1888, off . the New Jersey coast near to Barnegat, between the schooner Stephen Benllete'and the schooner Eliitlbeth T. Cottingham. The weather was clear., wind blowing very hard from the N. N. W., and a heavy sea rolling in'ftQm the N. E. Both vesqels, loaded with lumber, were beating up the coast. They had stood in from offshore towards the beach for about an hour, the Oottingham being ahead and a point on the lee bow Qfthe Beanett. When the master of thE! Cottinp;ham judged that he was ncar enough to the ;beach he tacked. At the same time, or perhaps a momentlater,the Bennett also came 'Up into the wind, intending to tack, butmissieyed, and;. gathering sternway, got under the bow of the Cot'Ainghnm, and' was struck by' her. Upon the evidence, the Bennett alone f(lr tlle collision. She was the overtaking vessel. She hadltllsstayedhefore that morning, a.nd knew that she was liable to misno right to tack so close to the Cottingham as to . rendeflcpnision inevitable in case she should misstay. The Cottinghanl ·was gUilty of no fault. She Was ,,jn the open sea, and, although she rnightperhapshavegone a littlenea'l'er to the shore than she did, it was no fault ill her to tack where she didj andit wail the duty of the Bennett, following her so closely,-gaining on her, indeed, as the evidence shows, --,not to tack so close to her as she did. The libel against the Cottingham ,m1Jl'st be diflmislled, with costs,and the libelants in the first action ;:/llustbave :Il.. decree; with anol'der ofreference;
by Edward ,G·.. BenedLCt, Esq._ 'Clf
New York bar.
DETWEILER II. HOLDERBAUM.
DETWEILER '11. HOLDERBAUM
(Circuit Court, S. D. Iowa. June 3,1811O.) 1.
FEDERAL COURTS-JURISDICTION-SUITS TO FORECLOSE MORTGAGES-PARTIEB.
Rev. St. U. S. §737, provides that, when there are several defendants in any suit in t,he federal courts, one or more of whom are neither inhabitants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may entertain jurisdiction, and proceed to trial and adjudication of the suit between the parties who are properly before it; but thE' judgment rendered thereon shall not cOllclude or prejudice other parties not regularly served with process, nor voluntarily appearing to answer, and the non-joinder of such other parties shall not constitute matter of abatement or objection to the suit. Beld, that the actdoes , not give the circuit court jUrisdiction of a suit to mortgage given by an executor under a power in the will on land devised to testator's children, where some of the devisees are non-residents, and are neither made parties defendant, nor appear to answer. In such case the court cannot proceed with the suit,and foreclose the mortgage, without atrecting the interest of the devisees who are not parties, since, the mortgage covering all the ·land, and the devisees being joint tenants, a decree would affect the interest of the non-resident devisees just as if they owned the entire property. Nor can the mortl!'agebe foreclosed as to the interest of those devisees only who are parties to tbe SUIt, sinee the entire lien would thus be cast on their interest.
In Equity. Bill to foreclose a mortgage on real estate. Rev. St. U. S. §737, relating to the jurisdiction of federal courts, provides that, "when there are several defendants in any suit at law or in equity, and onebr more of them are neither inhabitants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may entertain jurisdiction, and proceed to the trial and adjudication of the suit between the parties who are properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not reguJarly served with process, nor voluntarily appearing to answer, and non-joinder of parties who are not inhabitants nor found within the district as aforesaid shall not constitute matter of abatement or objection to the suit." Kauff'lMn&: Guern8ey, for complainant. . John Leonard Son and Gatch, Connor Weaver, for defendants. SHIMS, J. Michael Holderbaum was during his life-time a resident of Iowa, owning a farm in Page county, in this state. By his will, he appointed A. C. Holderbaum executor thereof, and authorized him to negotiate a loan to take up certain mortgages then existing against his realty. His property was devised to his children and grandchildren. Aft!ll" his death, his executor negotiated a loan of complainant for the purpose named,in the will, and to secure payment thereof executed, as executor, a. mortgage on the realty in Page county. 'i'he present bill was for the purpose of foreclosing this mortgage; the complainant being a citizen of the state of Ohio. To this bill, as it now stands, there a.re made d.efendantsthe executor and the immediat!l children of Michael Holderbaum. Two grandchildren, who ,represent the interest of their v.42F.no.7-22