the rule a,pplicable. The signal by the Joys was merely a notification that ahe chose to pass on the south side. This was assented to. The danger of meeting in the bend was and as apparent to one vessel as the other. A signal of danger would have given no warning to the Joys that she had not already received. Her master had expected to pass the asoending boat above the bend. He knew she was approaching and entering the bend. He knew that a meeting in the bend was hazardous. He would not stop when he could safely do so, although his omission of duty had produced the situation. He preferred to experiment with known danger, and the consequences must fall where they justly belong. . The libel will be dismissed.
THE O'BRIEN 11. THE ASHFORD et
(1HBtrict Coon, S. D: 1¥ew York.
CoLLtIlJow-BBTWBBN CANAL-BOATS-BuRDBN 01' PROOF.
Where two canal-boats collide while each il! ,being towed by a tug upon a hawser nearly 409 feet long. and it appeal'S that neither tug-is going at an improper rate a! speed. and that eaoll canal-boat bas suflicient steering gear to enable her to keep on her side of the canal. the owner Wllo libels the other boat for damages cannot recover where the evidence does not show. by a fair preponderance of the proo!, that the libelant's boat was at the time of the collision on its own side of the canal, or, if not, that the other boat might, by reasonable prudence, have avoided her. .
In Admiralty. Libel for damages· .A. B. Stewart, for libelant. Hyland Zabriskie, for the Ashford and the Bishop. Hull Fanton, Henry D. Donnelly, and Jamea J. Macklin, for Crandall.
BROWN, J. On themoming of the 29th of September, 1889, as the libelant's canal-boat F. W. Whalen was proceeding westward in the Erie canal, in to.w of the steam canal-boat Lizzie Crandall, on a hawser of about 375 feet, she came into collision with the cl!-nal-boat Bishop, which was. upon a hawser of about the same length, and going east in tow of the steaID canal-boat Ashford. The place of collision was about a mile and a halfto the eastward of Holly, eith!'lr at the point where the canal there bends to the southward, or a few hundred feet eastward of that point. The tow-path was there upon the northerly side of the canal, and in meeting and passing each other boats bound to the westward were required to take that side, and boats passing to the eastward to go to the right, or on the heel-path side.
More than the usual contradiction is found in the testimony. Almost every detail is a subject of dispute. In the perplexity that arises from 80 much contradiction, I am constrained to give controlling weight to the place where the Whalen was found, and from which she was taken when raised. Trustworthy testimony shows that when raised her bow was about 20 feet only from the southerly shore. The canal was there about 90 feet wide. There was indeed some opportunity for a change of position from the time the Whalen was struck until she sank, and there is evidence tending to show such a change; that she was first thrown by the force of the blow upon the tow-path, or northerly side, from which she rebounded, or was shoved off, until she approached near the opposite shore. But I cannot adopt this suggestion. It was the Bishop that a.fter the collision was athwart the canal, so that her stern touched the northerly bank, and it was she that was shoved over towards the northerly shore, so as to let other boats pass, and she subsequently went down between the northerly shore and the Whalen, having just room for that purpose. I am satisfied that neither tug was going at an improper rate of speed, and that there was nothing in the conduct of either tug to have prevented the canal-boats avoiding each other when they were each at the end of hawsers nearly 400 feet long. Both canalboats wel'e sUPflIied with appropriate and sufficient steering gear, and could be handled with ease. Either could have kept within her own half of the canal. At the time of collision no other boats were in the way. To warrant a decree in favor of the libelant, it must therefore appear, by a fair _preponderance of proof, that the Whalen, at the time of collision, was on her own side of the canal; or, if not, that at least the Bif.3hop might, by reasonable prudence, have avoided her. I do not think this burden sustained. The weight of proof is that the Whalen at the time of collision was wholly over upon the Bishop's side of the canal; and, with so little space left for her navigation, I cannot hold the Bishop to blame. As respects the Lizzie Crandall, I think it is immaterial whether she was·20 feet, more or less, on the southerly side of the center of the canal at the time of the collision. She was nearly 400 feet distant, and any such difference of position in no way affected the duty or the ability of the Whalen not to run into the Bishop in passing her, or to keep on her own side of the canal. It is not necessary to determine the particular reason why the Whalen was not kept upon her own side, since the evidence leaves in my mind no doubt that she had sufficient appliances for easily doing so, and I am satisfied that she did not. The libel must· therefore be dismissed; but, inasmuch as in some other particulars the case is not free from doubt, the dismissal will be without costs.
CROCKER NAT. BANK II. PAGENS'1'ECHER.
CROCKER NAT. BANK
(Cirouit Cow"'. D. Massachusetts. October 8, 1890.)
FBDERAL COURTs-JmUBDIOTION-REMOVAL-FORBIGN ATTACHMENT.
The provision of Aots Congo 1888, c. 866, § 1, (26 St. U. S. 4.'13.) that no suit shall be brought in the' circuit court" against any person by any origmal'process * * * in any other district than that whereof he is an inhabitant, "applies only to suit& commenced in that court; and it is no bar to the jurisdiction of the circuit court of a case removed to it from a state court that defendant was not a resident of the district. and that the state court hd acquired jurisdiction by foreign attachment, without any personal service.
At Law. Acts Congo 1887, C. 373, § 1, (248t. U. S. 552,) and Acts 1888, c. 866, § 1, (25 St. U. 8. 433,) provide that "no civil suit shall be brought before either of said courts [circuit or tlistrictcOl1rts] against any person by any original process or proceeding in any other district than he is an inhabitant; but, where the jurisdiction is founded mily 10n the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff' or the defendant. " William Gaston and Frederick E. Snow, for, plaintiff. Louis D. Brandeis, for defendants. CARPENTER, J. This is a motion to dismiss the action. for want of Jurisdiction. The action wRsbrought in the superior court ofthe state of Massachusetts on January 7,1890, and the writ was served by foreign attachment, the sheriff returning that he was not able to find the defendants., On the return of the writ, notice of the pendency of t4e action was given by publication in a newspaper, pursuant to the statute of Massachusetts and to lin order made in that behalf by the superior court. The action was then, on petition of the defendants, renloved into this court, "and the defendants file this' motion' to dismiss, for the reason"That at the time of the issuance of the writ and the commencement of proceedings herein the deiendants were not inhabitants, residents, or citizens of the ,state or district of Massachusetts, but then were, and for a long time previous had been, and now are, residents, inhabitants, and citizens of New Yorkj and that the defendants, or either of ,them, were not found within the state or district of Massachusetts. and no service of the writ or original process in this suit ever was. or ever has been, made upon or either of them. as appears by the return of the deputy-sheriff on the writ in this cause." The argument of the defendants is that the court has no jurisdiction, under the provisions of the statute, (St. 1887, C. 373, § 1; 24 St. 552; and St. 1888, c. 866, § 1; 25 8t. 433,) for the reasons,-Pirst, that the defendants are not residents of the district of Massachusetts, and. secondly, that no personal service of process has been made upon them. For the support of the proposition that the courts of the United States can in no case have jurisdiction of any action in which there is not personal service they rely on the decision of Judge COLT in Perkins v. Hendryx, 40 Fed. v.44F.no 10-45