,PER; Ct!JRIAyj Theteis no merit in the claim o1;theJi.belantforthe detention of his vessel at'Richmond. He was aware 01 thia:htm'Self, did not assert 'any Buch' claim in his, conversations withrths:resptmdents, bUtimisted upon compensation for the detention at Poughkeepsie.; The respo.-idents, recognizing for the detenti0l1' at F()ugh keepsie, tried to induce him to accept $100 in full. He refused, and they handed him a check for $125. When he read it, and saw the amount, he told them it would not satisfy the owners; but they insisted upon his keeping it, telling him, if he found it did not satisfy the owners, to return it; and he replied that he would sue,them. Not only did he not promise to accept the check in full settlement, but he did not expressly promise to return it. If his conduct led tbem to suppose'he would return it before suing them, they have lost nothing by his oPt,ission to do so. Even if he had expressly promised to do so, his subsequent neglect" or reftlsalwould not afford the respondents a defenl!e;"'He was entitled to a much larger sum; and nothing short of an accord ilnd satisfaction. or the acceptance of the check as a discharge in full, is a release. Thedecree isJtffirmed, costs of this court to eitherp$rtY,bbth parties having appealed, and the cause is remanded to the.circuit court with in. structions to enter a decree accordingly, with interest.
THE FRED. JANSEN tit' til.
(Circuit Court qf Appeals, Second Ci,'CUU. .January 18,1898.)
eou.rSION-B,uLAND TuG' WI,",
Tow. The'schooner T. was going westward through East river. at flood-tide. keeping close to the eastern shore of Ward's island to avail herself of the slack-water. The wind died out as she reached Negro point. and here she was overtaken by a tug a schooner on a hawser of about 800 feet. The tug' passed on her port side at a distance of from 40 to 150 feet, but, as the T. struck: the tide; whloh here sets strongly towards Long island, she sheered to port, and struck the tow, though she put her wheel hard a-port, and dropped her main peak. Relit, that the tug was 801ely in fault, as it was her duty, as an C'vertaking vessel, to take sumoientroom for a safe passage. 44 Fe,d. :Rep. 773. reversed.
Appeal' from the Circuit Court of the United States for the Southern District of New York. In Admiralty. Libel by Daniel I,yneh and others against the steamtug Fred. Jansen for collisioQ. The libel was dislnissed in the district court, which decree was affirmed by the circuit court. Libelants appeal. Reversed. . Edward D. McCarthy, for appellants. Wm. W. Goodrich, for appellee. Before WALLACE and LACOMBE, Circuit Judges.
THE FRED. JANSEN.
LACOMBE, Circuit Judge. This is an appeal from a decree·of·the circuit court, affirming a decree of the district court for the southern district of New Yark, dismissing the libel. On May 22, 1890, about 11 A. M. the schooner Titus, loaded with sand, was proceeding through Hell Gate, between Ward's island and the Long Islandshor.e, bound for Newark, N. J. She was keeping towards the Ward's Island shore, and her witnesses claim that she was hugging it o1ose]y,so as to avail of. the slack-water. the tide being then flood. She was heading about soqth-westerly, with her booms on the starboard side. There had been a little wind about E. N. E., but this died out. As she, reached Negro point, which projects into the channel from the Ward's Island shore, suddenly took a sheer, or rather swept over bodily; ,towards mid-channel, although. 8.$ the answer alleges, "she had put ber wheel hard a-port, 1l.Iiddropped her main peak, but was unable to conttol her movements.» Before she took this sheer she was overtaken by,the steam-tug Fred. Jansen,towing the schooner William O. Snow on. a hawser-about 800 feet long. The tug passed the Titus on the latter'I'" port side, and had got beyond her when- this sheer took place. Tbe Titus swept over and Came in collision with the Snow,although, the latter starboarded to avoid her, coming, in- consequence,.inU> contact,with a lighter on her own port hand. The mamrial point in the case iathe distance at which the tug passed the Titusj for,being the overtaking vessel, itwas her duty to allow a sufficient margin of safety for herself and het tow, or to delay passing the Titus till a wider channel, tb& absence of other craft, or a more favorable condition of :wind and tidal: current-sgave assurance that she lnight pass in safety. There is great difference between the witnesses in their estimates of the distance between'the tug and the Titus when the former passed her. The witnessesfrom,the Titus make it about 25 feet, those from the tug and the master of the tow 100 to 125 feet, and the tug's pilot 300 feet. Disinterestedwitnesses estimate it at from 40 to 150 feet. There is a like discrepancy in the estimates as to the distance of the Titus from shore. The district judge found the place of collision to be nearer 800 than 200 feElt from shore, and that the tug passed the Titus with a margin of 200 (which is a larger estimate than that of any witness except her pilotj) and . held that to be a reasonable distance to pass, because, thoughth4il,:tug's pilot mjght expect some swinging by the Titus when she struck the flood-tide, he could not expect her to swing out so far. lt by undisputed testimony that when the tide is flood there is slack-water along the Ward's Island shore, extending out some way from the shore above Negro point, and a sharp set of the tide from Negro point over towards the Long Island shore, the natural tendency of which is to throw a vessel coming out of the slack-water into the tide over towards mid-channel. The testimony seems to leave no doubt that the movement of the Titus was caused by the action of this tidal current, which she was unbecause, the wind dying out, she had not sufficient able to motive power to make headway against it, and that she did all that
good,seamanshi'p requii'ed in putting her helm hard a-port and dropping her main' peak. Whatever, then,may have been the distance ·of'the Titus from the shore when she struck the tide, and at whateverdisHmce the tug passed her, it was undoubtedly so short that a schoon,ersnch' as the Titus,having but little way on her in 80 light a wind, would be, by the action of the tide alone, carried over that distance in'the time it took the tug and the tow to move about 150 feet; for the Titus did not begin ,to swing till the, 'Jansen had passed half the length ofi the towing hawser beyond her. ' There is no suggestion that there was any abnormal condition oriha tide on the day of the collision. 'IItS set and strength'is' known to; navigators jn those waters', and was kinown to the 'master, of the .Tansen. He admittedtbat, "provided the Titus had been in the' slack-water; and then had dropped into 'the tide,itmight cause if the tide was strolig;" insisther to' sTake a little sheer,-quite' a ing, however, that she was not in the slack-water, but in the tide, when he passed her. We are satisfied:, however, as was the district judge, that tlie TitU9 was.in going close along the shore, and that her swing followed naturally from her striking the tide. It was a movement, therefore, that should have been anticipated and guarded ,against by the master of the tug if he decided to overtake and pass her in'thatpaljof the channel. The precise moment when the witid died Bway iain,ot entirely clear upon the evidence; but it was certainly so light when the Jansen passed that he hud reason to 'anticipate that the would' not have sufficient headway to control herself when she struck the tide; She wasIDo"ing, as he admits,'so veryslowly-theu,-"scarcely"stemming thetide,"--that he supposed/she must be retarded by mistakenly, for we are satisfied she was then in slack·water/" The master of the Grace Fee, a tug bound 'eastward at that time with a tow, and who was' called as a; witness by the claimants, thought tbertlwould be a collision before the .Titus began to sheer, because,the wind being light, and the Titu'shaving "little way," he expected-the tide would· cut her out into the stream' far enough to hit the Jansen's tow. ForMt anticipating and providing for that contingenoy, we think the Jansen; an: overtakingsteam-vessel, was in fault. The decree of the cirquit court and the cause remanded, with instruCltionsto enter a decree; in favor of the libelants for damages, with costs of the district'cour.t\ disbursements of the circuit court, and costs ofthis court.
DRESSER·V. ·EDISON ILLUMINATING ,CO.
DRESSER ,,; EDISON ILtmuNATlNG
(Circuit Court, D. EhoiLe Island. February 12, 18112.)
J'muSDICTION OJ!' FEDERAL COURTS-CITIZENSHIP-RESIDENCE.
Where the parents of a minor remove from the state of her birth when she is 10 years old. her citizenship follows theirs. although for nearly 10 years longer ahe remains in the original state, completing her education, and spends but partef each year at the new home of her· parents. . One who depends entirely upon her grandparents for support, and makes her pennanent home with them at the place of her fonner residence, continues to be a resident of that place, though in company with her grandmother she spends about half of each year in a differjlnt state, living in different rented houses, and has the bonafide intention of becoming a resident of the latter state. .
At Law. Action by Susan L. R. Dresser against the Edison TIlmniriating Company. Heard on motion to dismiss for want of jurisdiction. Granted·. Wnl. G. Roelker, for plaintiff. Saml. R. Honey and Arnold Green, for defendant. CoLT,Circuit Judge. The defendant moves to dismiss this suit for want 'of jurisdiction, upon the ground that the plaintiff, at the time of bringing the suit, was a citizen of the state of Rhode Island, and nota. citizen ()fthestate of New York, as alleged in her writ. !tappoors from the affidavits· that the plaintiff is the daughter of George W. Dresser, and that she was bom in the city of New York in 1864, where her parents then lived. Subsequently, Mr. Dresser moved to Newport, R. 1., and he became a resident of that, city as early as 1875. Thisa.ppears from the following facts: He began paying personal property taxes in Newport in that year; he registered in Newport as a voter in 1873; he was on the voting lists of that city from 1878 to 1881, and voted there in 1880; he died in Newport in 1883, and was buried there. mother, died in Newport a short time beMrs. Dresser, the fore her husband, and was buried there. The plaintiff remained at school in New York after her father changed his residence to Newport, and down to about the time of her father's death, in 1883, spending only a portion of each year in Newport. This circumstance, taken in connection with the fact of her birth jn New York, is urged to support the position that she still remained a resident of New York. When Mr; Dresser established his residence in Newport, the plaintiff was a minor. about 10 years of age. Her place of residence, therefore, would naturally follow that of her parents, and would be in the place where the family home was located. Although the plaintiff continued her education in New York, and passed only a part of each year in Newport, she became legally a resident of Newport when her parents became residents of that city, and made it their permanent domicile and place of family abode. I have no doubt, therefore. that Newport was the legal residence of the plaintiff on the death of her father in 1883, she being then 19 years of age. Upon the death of their parents, the Dresser childreti1, v.49F.no.4-17