THE IRA. B. ELLEMS.
that, if unusual exertion or expenditure· had been made to obtain the earlier despatch, this should be compensated.' ,Theevidence showed it had not, the despatch being no quicker than is common in such cases. This constl.'uctioIT'seemed to be required, not ()nly by the terms of the contract; but by ,itsspilit. It se"emed reasonable to believe that the partieS dealt on the basis of the ore's costtQthe plaintiff and the demand for it; that his profits were thus seoured, and that, as the CO&t of transportation was then unknown, this was provided fOf ·by the clause in question, which had no other object. It'seemed improbable that the parties contemplated the plaintift?sreceipt of a large additional sum, by ehargiQg the defendants so much more on account of freight than was expend-ed. Such was the court's impression at the trial. The credit claimed on account of "stevedores' commissions" paid the plaintiff, did not seem to fall within the terms of the cotitract, nor so directly within consideration of what was jte,spirit as to JUBtify this olaim.'·' After urged in suppOrt of the rules, it ilfsufficient to say that we are not convinced. that. the instruction was erroneous. The rules are therefore dis·missed. ,,The· plaintiff has also the point that so much of the claim on aecount of freigbtas relates to the Campinil and Alvito ores delivered under similar contracts is inadmissible under the pleadings. The point, however, comes too late.. ' !fit had boon made at the trial a plea of setoff might have been entered. The evidence was admitted without obwe think, if jection on this ground. :The plea might still be necessary to sustain the verdict.
Under a charter-party Which provides that theoharterer shall furnish of "to be delivered and held at eharterer's risk and expense, the cha'l1erer is not entitled to damages for the loss of logs delivered along-s1de, cat:ried away by reason of negligent mooring. .
'. . ..
AD.MIRALT;r-EVIDENOlji...,Ex PARTE DOCUMENTS.
Theoftlcial documents of the officeril of a foreign nation having jurisdiction of a port of lading, containing what purports to be a protest by a charterer against the action of the vessel, and depositions in-support of the facts alleged in such protest, being ez parte, are not admissible to establish a controverted fact. The refusal of a master to deliver a cargo until seourity is furnished for the freight gives no right of action to the charterer, as the oargo is subject toa lien for freight.
SHIPPING-LIEN FOR FREIGHT.
In Admiralty. On appeal from the district court. Libel by the Otis Manufacturing Company against the schooner Ira B. Enems for damages for breach of a charter-party. Decree for defendant.
lV; S. Benedict, for libelant. ()·. B. Sanswm, for
;,PARPE]), J. The charter-party expressly states that the second party (the Otis,Manufacturing Coinpnhy) "doth engage to provide and furnish vessel a full and complete of mahogany, and (or) cedar logs, 'the lJndEl;l'Q,nd on deck, to be delivered and held at charterer's ,riskaud, expense." This stipwation defeats the claim advanced by libel·ant for d""ll1ages for loss of logs delivered along-side of the vessel, but car'ned ;away and lost by reason of negligent fastening and mooring. evidence in the case is clear to the effect that the vessel, having previously. obtained her clearance papers, reported for cargo according to contract; tl!at the agent furnished cargo at various times until the vessel was nearly loaded, when, on the loss of a raft of logs by reason of mooring to the ship, notified the master that he had cargo to deliver, and,was'lready to finish up;" and that the no master 1endereq; bills of lading, which were refused by. the agent. And there is no evidence in the record to the contrary. This puts an end to the .libelant's claim "that in 'contravention of law, good morals/and proper Qonduct, and in fact, said vessel, after having been partially loaded .under qharter-party, ran away from 'said port of Tupilco, without signing, proper papers or delivering any bills of lading under said char.The official documents from tbecustoms and other officials from the republic of MeJl:ico, having jurisdiction of the place of lading, offered by the libelant, containing what purports to be a protest ,made by libelant's agent, and the deposition of certain witnesses in support of the facts alleged in the protest, being ex parte, are not admissible in evidence to establish any controverted fact, and are not, of themselves, even if admissible, sufficient in substance to contradict the sworn testimony offered by claimants on the hearing of this case. The fact that the master of the vessel demanded security for freight before deliveringcargo gives rise to no cause of actioli on the pint of the libelant. The nit\ster, under the contract and under the law,having a lien upon the cargo for the payfreight should ment of freight, was authorized to refuse delivery until be secured or satisfied. The trouble with libelant's case is that, while 'On paper he has made serious charges, and set forth sufficient grounds of. he has utterly Jailed to establish the same by competent evidence. The decree in the district court could not have been other than as given, and a decree to the same effect must go upon the appeal!
X'nONALD 'V. HOPE MIN. CO.
(Oircuit Oour4 D. Montana. November 16, 1891.)
REMOVAL 01' CAUSES-TIME Oll' FILING PETITION-DEMURRER.
As the removal act requires the petition to be filed at or before the time "defendant is required by the laws of the state" to answer. the filing of a demurrer, instead of' an answer, as allowed by Compo St. Mont. p. 81, § 87, does not enlarge the timefqr ,filing the petition ; for the allowance of an answer after demurrer is within the of the court, and is not in accordance with any provision of law.
The time allowed by the court for answering, after the overruling of such demurrer, is not "the time * * * defendant is required * * * by a rule of the state court * * * to answer, "within the meaning of that clause of the removal tor'that has reference. only to jurisdictions where the time to answer is tilted .by a rule of.<:ourt iu,s1;ead of by statute.
Forbi8.(!cForbiB, for defendant.
Wm. Bc4llon! F. W. Oole, and H. F. Titua, for plaintiffs.
On motion. to remand.
This cause is presented on a motion to remand that the petition for removal was not filed. withip the time prescribed by law. Plainti·ffs commenced their action by Jiling their complaint against defendant on the 3d day of January, 1891, in the district court of the third judicial district of the state of Montana, in and for Deer Lodge county. Summons was duly issued upon this complaint, and served upon the defendant on the 20th day of January j 1891. Defendant appeared in the cause on the 22d day of s.aid month, two days after said service, by filing a general demurrer to the complaint, specifying that the complaint did not state facts sufficient to constitute a cause of action. There seems to have been no ruling upon this demurrer. day of June, of the same year, defepdant filed its petition for removal from the above state court to this. la}V of Montana requires that the defendant in a cause, if served in the county ip which the same is commenced, must appear and answer (the corp.plaint within 10. days from the date of service of summons.· Defendant was served in the county in which the action was brought. The language of the act of congress of1887, and as corrected by the act of 1888, upon the subject of the removal of causes from the state court to the federal courts, contains this clause to the time when the petition for removal should be filed: "At the time or any time before the defendant is required by the laws of the state, or a rule. of the state court. in which suit is brought, to answer or plead to the declaration or complairit orthe plaintiff." It would seem that, taking the state statute as to the .time when a defendant is required to answer after service of summons,. and this provision upon removal\ and there cannot be much dispute as to the time when the petition for removal should be made. The party is required by the law ofthe state to answer within 10 days after .l:lervice of summons, and the statute of congress provides that when this time arrives, as provided by the state law, the petition for removal shall v.48F.no.8-38
to the state: court, on the ground