thos.a'to wh6serighhi,he'hllB sucaeeded,held tlievessel. Pate's lien is pmOl' in' date to the .Bradley' mortgage, .under which ·O'Connell claims.' It was also first recorded, and the priority of lien thereby:conferred'and acquired is only tabe, defeated by.anaffirmartivElsliow.ingon the part of the appellant that some one or more of the owners or purchasers ofthe vessel through or under whom he acquired his title or lien were such banafide purchasers for value, without notice, as to:out off arid defeat Pate's lien., Neither the',intervening petition' of appellant nor the find.;. ingsof the special master's report make out such a showing.' Tbereis no error inthejudgment of the lower court, and the same is affirmed, with costs ofthis court to be taxoo against appellant and sure:title on bond fofappeal.The appellee, Pate,will be allowed interest ,on the awarded him:; and the caus6will bereniandedto the district with 'the ,distribution of the funds in the,registl1 of that court arising from tbe ,sale Of the W. B. Cole, in conformity with ita de.; cree in the'premises, ,and'with ali allowance to Pate of in'tereston'th. be. decreed to be paid to him sUice date of said deeree. '
4al·. .,. THE'
BU.MD-CIDISRATING" BY MASTBB-EVIDBlfCB.
The "disrating" of certain seamen by the master was sustained by his testimony and the mate's, but was contradicted by the testimony of each seaman disrated, as regards himself, but not as regards the other seamen. The appearance of the seamen did not impress the court favorably. Held, disrating would be accepted by the court In computing the wages due. A charge for "breakage" against a vessel'··tewaM ill unuaual, and will not be allowed.
.. CHARGBS AGAINST STBWARD-BRII:'UUGB.
In Admiralty. Libel by Henry Spicer, Peter Peterson, Paul Hanson, George Peterson, and George Henry against the bark Yamoiden, to recover Decree for libelants. Alfred Driver, for libelants. John A. Toomey, for respondents.
BUTLER, District Judge. It is difficult to reach a satisractory conclusion from the evidence presented. If the libelants' offer to submit the controversy for settlement to the shippmg commissioner had been accepted, the chances of reaching a just result would have been increllBed. With
lReported by Mark Wilka Collet, Esq., ot the Philadelphia bar.
the parties before himj,in person, that officer would have had a better opportunity of gilttingat the truth than the court (with depositions alone to look to) can have. While I feel reluctant to accept the master's "disrating" of some of the mentthe evidence does not seem to justify a disregard of it. His testimony and the mate's, sustain it, and while eacb of the libelants contradicts this testimony so far as respects himself, they do not testify for extent; and what I saw of thesenien at the trial each other to a. of their prosecutions against the master,qid not impress me favorably. The settlement mustb, based ·therefore on the rates which the master hasfixed-as shown by the log and his testimony. ,The charge against Henry, the steward, 'of 810 for breaKage, should not be allowed; Such charges Ilre unusual; and if' he assented to it as the master, testifies, it was in view of the prospect of an immediate settlement....which· he could only obtain by assenting to themaater's terms. ,The..other items ofcharge against him, as well as those against his colibelants, must be allowed. The accounlt kept by the master is more reliable than their memories. A decree will be entered in favor of the libelants as follows: For Spicer 8121.92; for Peter for Hanson $39.95; for George Peterson $48.59; for Henry $264.06; whereof $24 for the use of Thompson-to whom he gijve an the master accepted for that am01;mt-this sum of 824' to be paid to Thompson or to Henry the costs. The $25 on presentation of the order. charged for advancement to each libelant, on shipment, I understand to be abandoned; if it is not, it is disallowed. It was not paid, and should not have been charged. ",,' ,
STATE OF TEXAS II. DAY LAND & CATTLE 00.
STATE OF TExAS t7. DAY LAND
(CWcuU Court. W. D. Texas, ..4,UBtin DiVf.Biqn. March 6,1899.)
B.EMOVAL OF CAUSES-(JRIMINALPROCBEDING-RBMAND-AHENDMENTII.
An actionbrongbt by thl;lstate of Texas to recover the penalty prescribed by Act. Tex. Feb., 7, 1884, for ul;llawfnlly appropriating public landi, having been removed to the feCleral court, was remanded on the ground tbat the proceeding was of a crilDinal nlltnre, and not removable. Afterwards tbe complaintw8.s8.mended so as to ask additional damages under tbat law, and a second count was added, setting up, in the alternative, a civil cause of action for tbe reasonable value of use and occupation, the removal of inclosures, etc., under Act Tex. April 1, 1887. Held, the ,ca.se of action remained, distinct from tbe case made by the second count, and was not so combined with it as to permit tbe removal of the whole case. Huskins v. Railway Co., 37 Fed. Rep. 504,andEvatnB v. DilUngham, 48 Fed. Rlilp. '. .
II. . .
Tbe clause of the removal act relating to separable controversies is applicable .only to controversies between citizens of different states, and is not available to tbe defendant opposite party is a state, The clause i>f tfie removal act autborizing tbe removal of civil suits, arising under 1 the constitution or laws of tbe United States, relates only to the entire action, and does not permit the removal of a part thereof when the rest is not removable.
At Law.,Action by the state of Texas against the Day Land &: Cattle Company. Heard on motion to remand to the state court. Granted. FQr' former report,see 41 Fed. Rep. 228. O .4. Oulber8on, Atty. Gen., for the State· · .J.i1UIher &:. Toumea and· West&: McGoum, for defendant. Before MAXEY, District Judge.
MAXEY, District Judge. This suit was originally instituted by the state against the defendant in the district court of Travis county, Tex., on the 22dday of September, 1888. On the 4th day of October, 1888, a petition and bond, for removal of the cause were filed in the state court, and the record seasonably entered in this court. A motion to remand waS' made by plaintiff', and, the same being granted, the suit was restate court for trial. In that court, and subsequent to manded to the remanq.ing order, the plaintiff filed two amended petitions, the first October 12, 1891. On the same day, June 24, 1891, and the .october 12, 1891, the defendant filed a second petition and bond for removal, andthel'ecord was duly entered here January 30,1892; and the plaintiff nowmo'ves :to remand; the cause to the state court. .The of actiqD reli'ed upon by the plaintiff in its original petition is fully by .Judge ;PARDEE in.an opir.ionrendered by him when the case :was formerly before the court. State v. Cattle 00., 41 Fed. Rep. 228. In the original petition it is alleged, in effect, that plaintiff was 'the owner of 203,000 acres of land in Greer county, which defendant ap,to i1;$,own lawful authority, for the .purpose of b:erding head of cattle and 1,000 ,horses. ltd. iur__ v A9F.no.8-88